A federal judge heard arguments by elk advocates and park service lawyers last week in advance of what could be a final ruling in one of two pending lawsuits against the Point Reyes National Seashore. It was a chance for attorneys from the Harvard Animal Law and Policy Clinic to argue their case that the park’s policies are killing the fenced elk herd at Tomales Point, even as the park has announced it will update its strategies.
Judge Haywood Gilliam said he will issue his ruling “as soon as I can,” but attorneys said that could mean several months. When it does come, the decision will hinge on questions of legal standing: How much discretion does the park have? Does the public have a “procedural right” to participate in planning park policies?
“You can’t just identify some law that an agency isn’t following appropriately and confer standing on yourself,” said David Devito, the lead attorney for the park service. “The question is whether there’s procedural rights.”
Judge Gilliam spent much of the hearing focused on these rights, but he didn’t lose sight of the big picture of the health of the elk herd.
“Stepping away from the doctrine and from whatever the ruling might be in the case, and however it might turn out, I take it that everyone understands that it would not make sense for us to get to 2025 and have that be a moot point because the elk herd is gone,” Judge Gilliam said. “That is a concern that they are raising that seems to me to be legitimate. Detached from what the legal structure provides, it’s not an unreasonable thing to be concerned about.”
The judge’s words might have reassured Marin animal rights activists, and the Harvard attorneys who sued on their behalf, that the ruling will address current conditions for the elk, which have been dying in large numbers during the drought.
Park wildlife managers say population swings in the fenced herd are to be expected, but others say the decline is too stark. The herd now numbers 221, less than half of its 2019 size.
At this advanced stage in the lawsuit, the bulk of last Thursday’s discussion centered on whether the clinic had legal standing to influence the park’s policy. The National Parks and Recreation Act says that park general management plans “shall be prepared and revised in a timely manner.” Harvard attorneys said the park violated this directive by failing to include the elk reserve in its amended management plan and then setting out a timeline of at least three years to update the elk plan.
But Judge Gilliam suggested the mandate established by this clause still allowed for park discretion.
“Is it your position that, let’s say if this G.M.P. was created in 1980, then was there a mandatory duty to revise it in 1981?” he asked lead Harvard attorney Kate Barnekow. “At what interval do you say Congress required the agency to make a revision?”
Another question centered on whether the clinic could establish a personal injury. Such a claim can only grant standing if the park violated a planning procedure in which the plaintiffs had a right to public participation under the Administrative Procedure Act. Ms. Barnekow argued her plaintiffs’ concrete interest in the planning process gave them standing to sue, while Judge Gilliam pointed to a precedent that raised doubt.
Plaintiff Jack Gescheidt expressed uncertainty about the upcoming ruling, which he said could simply “kick the can down the road” or result in an appeal.
The seashore itself has been mum about its policies on both elk and ranching as it faces two lawsuits by activist groups. Court hearings and legal briefs have helped the public understand the park’s strategies for fighting the litigation, but details of the park’s internal planning around elk issues will likely remain murky until it begins taking public input for its update of the Tomales Point plan.
Judge Gilliam said he believed the litigation stemmed from a “good faith difference of opinion” over elk policy. “I don’t have reason to doubt that the government understands their obligation,” he said.