The National Park Service plans to recommend removing the Tomales Point elk fence by the end of summer—but environmental activists took the agency to court again this week to make sure that it does.
They pressed their case before a three-judge panel of the Ninth District U.S. Court of Appeals on Monday, arguing that the park couldn’t be trusted to follow through on its plans without judicial oversight.
The activists maintain that the park service has shirked its responsibility to update its general management plan for the Point Reyes National Seashore, which does not include policies for Tomales Point.
They want the park to remove the fence and let the elk roam free, arguing that the barrier has prevented the animals from accessing forage and water during recent droughts and caused many to die.
The Harvard Animal Law and Policy Clinic filed the lawsuit in June 2021, but the suit was dismissed last year by U.S. District Court Judge Haywood Gilliam, who ruled that the park had the discretion to make its own wildlife management decisions.
Rebecca Garverman, a Harvard attorney, urged the three-judge panel to overturn Judge Gilliam’s decision and require the park to act promptly.
“We need a declaratory judgement confirming that the park service has a mandatory duty to revise the general management plan, as well as a court order holding the park service to a schedule to do so,” Ms. Garverman told the court.
The plaintiffs are pressing their case even though the park announced last summer that it planned to recommend removing the fence after it completes an environmental assessment and holds public hearings this spring on a new management plan for the area.
Arguing on behalf of the park, U.S. Attorney David Devito urged the court to reject further judicial involvement in the matter and argued against mediating the issue outside of court.
“We’re on the cusp of finalizing the plan,” he said. “What we would be doing there is just agreeing to things that we were already doing and in fact have almost completed.”
The park expects a final Tomales Point plan to be approved by the end of the the summer, Mr. Devito said.
It is unclear how quickly the judges might rule on the appeal. But after the proceeding was over, Jack Gescheidt, a Fairfax resident and the lead plaintiff, told the Light that he was determined to press on with the case. “Where is it written down that they will actually take down the fence, and when will they do it?” he said. “We want something definite. We can’t trust them as far as we can throw a cow.”
The two sides have been litigating the matter since June 2021, when the Harvard clinic filed the suit on behalf the Animal Legal Defense Fund, a Sonoma County nonprofit, and three individual plaintiffs—Mr. Gescheidt; Laura Chariton, a former tule elk docent for the park; and Skyler Thomas, a wildlife photographer who wrote and directed a documentary film called “The Shame of Point Reyes.” The plaintiffs said they were traumatized by the sight of elk dying from starvation and malnutrition.
The herd’s population plummeted during recent droughts, when the supply of water and nutritious forage inside the reserve was limited. When the plaintiffs filed suit, the fenced population had dropped from about 450 to 300. It fell to 221 the following year but has since risen to 315.
In the past, park officials have said the population is subject to cycles of boom and bust. When its numbers grow and competition for available forage increases, the population drops. It recovers when the supply of food becomes sufficient for the reduced herd.
But the park has said climate change is changing that calculus, prompting it to embark on an update of its elk management policies.
Tule elk were reintroduced on the former Pierce Point Ranch in 1978, and the herd multiplied behind the fence over the following two decades. By 1998, the elk threatened to overwhelm the capacity of the reserve, and the park drafted its tule elk management plan, recommending the relocation of 27 elk to a wilderness area near Limantour Estero.
Within a few years, some of those free-ranging elk made their way onto cow pastures, setting up a clash with ranching operations. That dispute is being litigated in a separate suit over an update to the park’s general management plan brought by three environmental groups—the Resource Renewal Institute, the Center for Biological Diversity and the Western Watersheds Project.
The update allowed for 20-year lease extensions to ranchers and the culling of the free-ranging herds if they surpassed set population levels. But after the suit was filed, seashore superintendent Craig Kenkel announced that the park would suspend culling and only grant short-term, interim leases while the parties attempt to settle their differences.
They are scheduled to update the court on their mediation efforts on July 19.