Natalie Hanson

SAN FRANCISCO (CN) — Advocates for a tule elk population living in the north San Francisco Bay area urged a Ninth Circuit panel Monday to revive their fight over the National Park Service’s management of the elk during a drought.

The plaintiffs challenging the feds since 2021 say a 40-year-old policy to manage about 293 Tule elk behind an 8-foot fence in Point Reyes National Seashore, should have been revised when drought conditions in the area worsened. The elk live on Tomales Point Reserve, behind the fence erected to prevent them from accessing forage and water designated for grazing cattle. The plaintiffs say the National Park Service is obligated to revise the congressionally mandated general management plan, and that to not do so will lead to further starvation of the elk.

More than a third of the Tomales Point population have already died.

An appeal over a federal judge’s closure of the case in favor of the park service n 2023 landed at the Ninth Circuit on Monday, with U.S. Circuit Judges Andrew Hurwitz and Anthony Johnstone, and U.S. Chief U.S. District Judge Brian Morris — a Barack Obama appointee sitting by designation from the District of Montana — hearing oral arguments.

The plaintiffs' attorney Rebecca Garverman told the panel her clients are willing to enter into mediation on their claims, but the government is not. She said the law requires the park service to revise its policies when appropriate.

“The park service has continued to insist that their provision is purely discretionary,” she said. “This effort could be delayed or abandoned at any time. This is why we have emphasized that the case is not moot.”

Judge Johnstone, a Joe Biden appointee, noted that the service has revised the policy, but not in regards to management of Tomales Point. Judge Morris said that for that reason, the plaintiffs could have claimed that a revision in 2021 did not address the problem being raised.

“That seems to be an arbitrary and capricious attack, rather than a timely attack,” Morris said. He asked if they could have petitioned the agency to revise the plan to deal with what is being asked for, as is common for similar cases.

Garverman said this is an unreasonable delay case, and a petition will take so long more elk will die. Johnstone suggested the courts might not be the place to solve the herd's problem.

“Congress might be better positioned to determine what is and isn’t a timely (action), with regards to specific plans," he told Garverman.

Attorney for the government David DeVito said there will be a revised management plan out by the end of August, following an environmental analysis set to take place in May.

DeVito said the service reviewed the conditions the elk face, and the severity of the region's drought, before the lawsuit was filed. The plan revision and how quickly it is performed is not judicially enforceable, he said.

“So why did Congress pass it at all?” Morris asked.

DeVito said that the general plan creates an obligation for the service to revise such plans without judicial enforcement. He said that the service would have to respond if the plaintiffs filed a petition asking for a new revision.

For the judicial branch to intervene, “you’d have to eliminate the park service’s discretion,” he said.

On rebuttal, Garverman said that the plaintiffs are not asking the service to revise the plan in a particular way. If the service’s coming revision does not resolve their concerns, then they can pursue claims of arbitrary or capricious behavior.

When Hurwitz suggested natural conditions may dictate the demise of the herd, Garverman reminded the Obama appointee the fence that would not be there under normal conditions prevents the elk's normal migrating patterns. She said that the service has stated on its website that it did not anticipate the current conditions or how climate change has advanced the drought since 1980.

The judges did not indicate when or how they may rule.

U.S. District Judge Haywood S. Gilliam in 2023 closed the case, declining the plaintiffs’ request to order the service to act. He said that while he was not “indifferent” to the situation facing the tule elk, the plaintiffs did not identify a viable legal basis for him to intervene in the park service's wildlife management decisions.