A federal judge denied an injunction against the National Park Service filed by animal rights groups who are suing over the management of tule elk in the Point Reyes National Seashore. After a hearing last week, Judge Haywood Gilliam of the Northern District of California ruled that the Harvard Animal Law and Policy Clinic did not adequately show that the park is neglecting its duty to prevent the fenced Tomales Point herd from dying of thirst or malnutrition.
“It is fully within your authority to ensure that the elk survive long enough for us to address this case and for the pendency of the litigation,” the clinic’s attorney Kate Barnekow told Judge Gilliam last Friday. “We need this temporary relief to keep the elk alive.”
But the judge affirmed the park’s management of the herd for the moment. “I don’t read the record to suggest that the park service is unaware of or indifferent to this potential risk,” he said.
Ms. Barnekow later told the Light she was “disappointed” in the decision.
The fenced herd at Tomales Point has been subject to boom-and-bust population cycles. Last year, the herd shrank by a third, with 150 animals dying of malnutrition. Last month, a group of scientists penned an open letter to the park expressing concern over the die-off and singling out the elk fence as the cause.
In June, the Harvard clinic sued the park, alleging that by failing to update its 1980 general management plan or 1998 tule elk management plan, the park shirked its obligation to protect the fenced elk population at Tomales Point. The clinic filed suit on behalf of a trio of local animal rights activists and the Cotati-based Animal Legal Defense Fund.
The plaintiffs quickly followed up on their suit by moving for an injunction and temporary restraining order against the park, contending that it needed to provide emergency relief for the elk while the lawsuit is pending.
The park service made its own case in advance of last week’s hearing. In its opposition brief, the park wrote that “the vast majority of elk observed to date by park staff…appear in good to excellent condition with no signs of starvation or dehydration.”
Attorneys for the park service cited a 1989 Supreme Court decision in Marsh v. Oregon Natural Resources Council. In that decision, the court wrote that when specialists express conflicting views, a federal agency must have the discretion to rely on its own experts.
“The park is relying on its experts, its wildlife biologists, its veterinarians,” United States attorney David Devito told Judge Gilliam last week. “Under Marsh, the park service has to have the discretion and the ability to do that.”
When asked, Mr. Devito could not give the judge a definitive timeline for the park’s review or update of its management of the elk.
Park spokeswoman Melanie Gunn declined to comment on the ruling because of the pending lawsuit.
The Tomales Point herd was the first to be introduced to the seashore in 1978, and it makes up half of the park’s tule elk population. When the population was booming almost 25 years ago, the park released more than two dozen elk from the enclosure to an area near the Limantour Estero; that and another free-ranging herd are more stable than the fenced population.
The park estimates the carrying capacity of the enclosure to be 300 animals, and the current population is just shy of that number. In its 1998 elk plan, the park chose to maintain the elk fence, and predicted the herd behind it would grow and shrink in cycles. The plan found that artificially providing food would lead to chronic overpopulation.
But in June, the park supplied water to the enclosed herd for the first time, installing three 250-gallon troughs. The park’s wildlife ecologist, Dave Press, said the natural water sources had not completely disappeared, so the move was made out of “an abundance of caution.”
In their opposition brief, attorneys for the park wrote that “NPS continues to closely track conditions and stands ready to act if needed to safeguard the viability of the Tomales Point elk population.” They wrote that the park has made reasonable decisions around food and water for the elk and has not ignored any legislative command by continuing to rely on the 1998 plan.
Plaintiffs Laura Chariton and Jack Gescheidt disagree. The day before the hearing, they submitted photographs of a largely dry pond and an apparently emaciated young male elk within the elk preserve. “I find the photos that we submitted absolutely heartbreaking,” Ms. Barnekow said. “They paint a very different picture on the ground at Tomales Point than what the park has been saying.”
Neither the photographs nor Ms. Barnekow’s argument did much to convince Judge Gilliam. He cited the same precedent as the park’s lawyers and told the court that the park appeared to be aware of and monitoring the issue adequately. “The agency with the discretion under the law to make these judgments is saying ‘here’s our judgment,’” he said.
He acknowledged the urgency of plaintiffs’ concerns, but said in order to meet the rigorous standard for a mandatory injunction, they had a high burden to show that the facts clearly favor their position.
Litigation has compelled the park to revise its management strategies in the past. A 2016 lawsuit filed by the Resource Renewal Institute, the Center for Biological Diversity and the Western Watersheds Project led to a settlement wherein the park agreed to amend its nearly 40-year-old general management plan. Many environmental groups and animal rights activists oppose the pending amendment because it extends 20-year leases to the park’s ranchers and allows for the lethal removal of some elk from the free-ranging Drakes Beach herd.
In July, the park delayed its decision on the amendment, a move opposed by ranchers but supported by the environmental groups that filed suit.
The Harvard clinic’s director, Katherine Meyer, hoped the injunction would force the park to ensure the viability of the fenced elk population before the underlying lawsuit runs its course. “Our concern is that by the time we get that issue litigated, there won’t be enough elk left,” she told the Light last month.
Though the injunction was denied, Ms. Meyer is still confident in the underlying lawsuit. Because animals cannot have legal standing in court, her clinic uses particular methods to file suit on behalf of animal rights. The lawsuit alleges that the human plaintiffs suffered aesthetic injuries by witnessing starving elk, and contends that the park service neglected its administrative duties. By proving these allegations, the clinic could win more protection for the elk.
The attorneys for both sides and the judge will set a schedule for the lawsuit to move forward at a conference call on Aug. 17.