In Defense of Animals Files Lawsuit Against National Park Service Over Deer Culling Program

On October 25, 2012 a lawsuit was filed in the United States District Court for the District of Columbia to enjoin the National Park Service from implementing a deer culling program in Rock Creek Park.   This lawsuit is not focused on the zoo and aquarium industry but if successful could have a significant impact on new zoo and aquarium construction and expansion.

 Rock Creek Park is located in the heart of Washington DC.   The Park covers approximately three square miles and consists of a mix of urban natural area and public park facilities.  The National Park Service determined that the deer population in Rock Creek Park needed to be reduced. Several alternatives were considered. Ultimately, the National Park Service decided upon a deer culling program which would eliminate approximately 3/4 of the deer population in the Park.

 Several local residents who lived near the Park joined with In Defense Of Animals (IDA) to file this action seeking to enjoin the National Park service from going forward with the culling program.  IDA is an animal rights organization located in San Rafael California which seeks to prevent the mistreatment, torture and killing of animals.  IDA is particularly known for its opposition to elephant habitats in zoos.

 The lawsuit included three separate causes of action. The first cause of action is based upon an assertion that the deer culling program violates the Rock Creek Park Enabling Act which formed the Park. The second cause of action is based upon an assertion that the program violates the legislation which created the National Park Service. Both of these causes of action are based on generic language contained in the two statutes which speaks of preserving, to the extent possible, wildlife in parks. It is unlikely that these claims based upon generic language in the enabling statutes will be found to have merit.

 The third cause of action is based on the claim that the program violates the National Environmental Policy Act (NEPA). Under NEPA, any major federal action which affects the quality of the human environment must be preceded by an environmental impact statement. Generally speaking an environmental impact statement is a document which describes and summarizes all of the environmental impacts of any proposed action.   The purpose of an environmental impact statement is to allow for consideration of environmental impacts and consideration of possible mitigating measures.  Typically environmental impact statements are prepared in connection with construction and other activities which cause physical impacts on the environment.

 In this case, the plaintiffs have argued that the killing of deer in the Park would cause the plaintiffs “great anxiety and distress” and that the individual plaintiffs would suffer “aesthetic injuries” which might prevent them from being able to enjoy the Park in the future.  In effect, the plaintiffs are claiming that an environmental impact statement should consider the individual plaintiffs’ emotional distress injuries that they would suffer as a result of their knowledge that the deer had been killed.

 This third cause of action is an extreme extension of an environmental impact statement and is unlikely to prevail. If the plaintiffs are successful in this third cause of action, however, it could have a significant impact on new construction related to zoos and aquariums.   While NEPA is limited to actions taken by agencies of the federal government, many states have their own versions of environmental legislation which require some form of environmental impact statement.   Some of these statutes such as California’s Environmental Quality Act require an environmental impact statement for any project which has the potential to impact the environment and included private projects.  In addition to its possible impact on government funded zoo or aquarium construction this proposed expansion of the doctrine of the environmental impact statement could affect privately funded projects as well.

 Construction of new zoos and aquariums or significant additions to existing zoos and aquariums can trigger the requirement for some form of environmental impact statement or report.  If these sorts of claims of emotional distress become a factor which needs to be addressed in an environmental impact statement, that would have an impact on future zoo and aquarium construction projects.   Some activists take extreme views that zoos and aquariums are the equivalent of prisons and that the housing of wildlife in the zoos and aquariums is a form of torture and imprisonment. Those persons who believe that zoos and aquariums wrongfully imprison and torture animals could make the same argument that the construction or expansion of a zoo causes them emotional distress because of their knowledge of what they consider to be pending mistreatment of animals.   If environmental impact statements must consider the psychological effect and possible emotional distress suffered by persons who know the purpose of the construction, it could provide a basis for extreme animal rights groups to oppose zoo and aquarium construction projects.

 These extreme views would need to be given consideration in environmental impact statements related to zoo and aquarium construction, and arguments could then be made by zoo opponents that measures should be put in place to mitigate these psychological concerns.  Additional requirements of this type could increase the cost of zoo or aquarium construction projects.  These sorts of additional requirements could also provide a basis to delay projects while animal-rights activists litigate the adequacy the consideration of the psychological effects and the adequacy of proposed mitigation measures.