Court Lets Park Service Drop Desert Tortoise Protections

A federal court has ruled that the National Park Service (NPS) does not have to protect non-game animals for the sake of the threatened desert tortoise in the Mojave National Preserve, California. The decision means the NPS need not limit sport hunting for so-called "varmints," according to Public Employees for Environmental Responsibility (PEER) which brought the suit.

Hunting of non-game animals, called "varmints," is permitted year-round without limit on the sprawling Mojave National Preserve, a tract the size of Delaware. While the threatened desert tortoise is protected by law from hunting it is often the victim of reckless discharge of firearms. In addition, carcasses left by hunters attract ravens, which prey on tortoises.

The December 28, 2011 court decision ended a decade-long effort to make NPS implement a critical provision of the agency's own 2000 General Management Plan (GMP) for the vast desert park. Back in 2002, PEER and other groups petitioned former Secretary of the Interior Gale Norton to adopt the NPS promise to limit sport hunting at the Preserve to big game animals and upland game birds only.

Ironically, limiting sport hunting, and therefore, the legal discharge of firearms, in the Preserve was not PEER's idea. It was an NPS decision. Back on September 21, 2001 former NPS Regional Director John Reynolds signed the Record of Decision for the Environmental Impact Statement on the Mojave GMP, which required that the NPS limit sport hunting in the Preserve. Reynolds adopted it despite opposition from California Fish and Game with only a minor modification to allow for rabbit hunting.

PEER and the other groups waited for the NPS to promulgate the special regulations. When the agency did not act, PEER and others filed a petition for rulemaking under the Administrative Procedures Act (APA) in June 2002. There was no response until finally April 7, 2004, when a top Interior official issued a written promise that the NPS would promulgate special regulations.

No regulations emerged, however. In April 2009, PEER wrote to the new Secretary of the Interior Ken Salazar about the long-ignored petition. The Secretary did not respond. The APA requires that agencies respond to petitions for rulemaking "in a timely fashion." PEER concluded that an eight-year wait satisfied any reasonable test of "timely." In July 2010 PEER filed an APA suit in federal court.

In October 2010, NPS Director Jon Jarvis finally acted by summarily denying the petition, deciding openly, for the first time, that the he would NOT carry out the agency's own decision to regulate sport hunting. Jarvis went further. He waived the requirement of NPS Management Policies that Mojave, like every other park in which Congress authorizes hunting, must adopt special regulations to govern and manage that hunting.

"We regret that we failed to convince the judge that this sudden reversal was an abuse of discretion," stated PEER Senior Counsel Paula Dinerstein who argued the case. "PEER is not opposed to hunting as a legitimate recreational use of the Preserve, but hunting does not take precedence over all other park values including those of other park visitors who wish to experience the quiet of the Preserve without hunting for part of the year. We hope that someday more a thoughtful and caring Park Service steward will give the benefit of the doubt to park resources."

By reversing the 2001 Bush administration decision to protect Preserve resources, Jarvis sets a standard lower than his predecessor Fran Mainella. In so doing, he disowned one of the most significant Mojave 2001 GMP decisions without any consultation with the Fish and Wildlife Service. This was also Jarvis' first waiver of NPS Management Policies, according to a PEER Freedom of Information inquiry.

Mojave is not the only park unit where Obama NPS officials have lowered protections adopted under Bush. At Big Cypress National Preserve in Florida, PEER is suing NPS over its decision to open previously protected tracts to 130 miles of trails for off-road vehicles.

"We are surprised that the present Park Service leadership is managing to make the Bush record look good," Dinerstein concluded.

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Read the court ruling

See the PEER complaint

Look at Big Cypress suit