Wilkins v. Secretary of the Interior

McMILLIAN, Circuit Judge.

The Secretary of the Department of the Interior and the Superintendent of the Ozark National Scenic Riverways (collectively appellants) appeal from an order issued in the United States District Court for the Eastern District of Missouri permanently enjoining them from destroying, removing, moving, transporting, molesting or otherwise harming the feral or wild horses in the Ozark National Scenic Riverways Park. Wilkins v. Secretary of Dep’t of the Interior, 798 F.Supp. 567 (E.D.Mo.1992) (Wilkins). For reversal, appellants argue the district court erred in reviewing the action of the agency de novo and in substituting its own judgment for that of the agency. For the reasons discussed below, we reverse the order of the district court and vacate the permanent injunction.

The park, a 140-mile-long strip of land in Missouri along the banks of the Current River and the Jack’s Fork River, was authorized by Congress in 1964. Approximately 20 free-roaming, unbranded, unclaimed, wild horses roam a 24-mile stretch of a total of 71,000 acres in the park. The origin of the wild horses is unknown. In 1985, 1989 and 1990, studies and aerial surveys were made to show the impact the wild horses had on the native fauna and plant communities in the park. In May 1990, the park superintendent issued a news release announcing the park would consider proposals to remove the wild horses from the park because they “are ill-equipped to contend with the harsh win*852ters, disease, injury, food shortages and other environmental factors detrimental to their well-being” and because there “have been numerous reports of harassment and even shootings.”1 The National Park Service thereafter selected a plan, approved by the Secretary, for the removal of the wild horses and issued a special use permit to Randy Clark to trap the wild horses and remove them — either placing them for adoption or disposing of them. The government was to pay $1500 for the removal of the first five horses and $300 for each additional horse thereafter. Adverse public reaction included a petition signed by one thousand people and criticism from the Congressional representative for the district within which the park is located. In February 1991, the Secretary announced that the park would proceed with its plan to remove the wild horses from the park.

A group of local citizens (appellees) filed this action in federal district court against appellants, seeking an injunction to block the removal of the wild horses. Appellees claimed removal of the wild horses would deprive them of the opportunity to view the wild horses and would result in the disappearance of a part of the history, culture, and unique scenery of their community. The district court immediately granted a temporary restraining order.

After a trial on the merits, the district court issued a permanent injunction against the removal of the wild horses from the park, based on review under the arbitrary and capricious standard set forth in the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). Wilkins, at 561. The district court found the Secretary’s decision to remove the wild horses was a clear error in judgment because the evidence at trial did not show the wild horses were detrimental to the use of the park. Id. at 563. The district court concluded the allegations of damage caused by the wild horses were exaggerated and found the wild horses did not pose any threat to visitors of the park or to park resources. Id. The district court further found that the Secretary failed to consider whether the wild horses were a cultural or historical resource. Id. at 563. This appeal followed.2

Appellants agree that the district court correctly declared that the “arbitrary and capricious” standard of review, 5 U.S.C. § 706(2)(A), governed this case. Appellants argue that, in applying this standard, a reviewing court’s task is to determine whether the agency considered relevant factors and articulated a rational connection between the facts found and the choice made. They argue that, here, under the “rubric of clear error of judgment,” the district court improperly reviewed the decision of the Secretary de novo and thus substituted its own judgment for that of the Secretary. Appellants argue the district court failed to defer to or fully analyze the administrative record and instead, by relying extensively on trial testimony, improperly developed its own record on which it based its decision.

Appellees argue the district court properly found the Secretary’s decision violated the management policies of the National Park Service and was “arbitrary and capricious.” Appellees argue the district court’s decision should be upheld because the Secretary’s action violated National Park Service policy which states “the management of exotic species already present will be undertaken wherever such species threaten park resources or public health.” The wild horses are considered exotic species to the park; however, the district court found the evidence did not support the Secretary’s findings that the wild horses threatened park resources and the public health. Id. at 563. We disagree.

Agencies typically perform three important functions: rulemaking, adjudication, and informal decision-making. Agency decisions should only be set aside if they are “arbi*853trary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Gettlerv. Lyng, 857 F.2d 1195, 1198 (8th Cir.1988). The Secretary’s decision was an informal agency decision for which the standard of review is to determine if the agency decision was arbitrary and capricious. 5 U.S.C. § 706(2)(A). Federal courts must defer to “any reasonable interpretation given to the statute by the agency charged with its administration,” as well as to the agency’s interpretations and application of its regulations and policies in carrying out its statutory duties, unless “plainly erroneous.” Arkansas Poultry Federation v. United States Environmental Protection Agency, 852 F.2d 324, 325 (8th Cir.1988).

When reviewing agency decisions, both a district court and an appellate court must make an independent decision based on the identical record that was before the fact finder. Sierra Club v. Davies, 955 F.2d 1188, 1192 (8th Cir.1992). We hold that although the district court properly identified the standard of review to be for arbitrary and capricious action, it failed to apply it correctly. The district court concluded that the Secretary made an error in judgment and failed to consider relevant facts. Wilkins, at 564. The district court in the present case chose not to remand the matter to the Secretary, and instead developed independent findings of fact at trial. The proper standard of judicial review of agency decision-making does not permit the district court to make independent findings.

We have reviewed the administrative record and conclude there is sufficient evidence in the record to support the Secretary’s decision and that the decision was not arbitrary and capricious. Studies have shown that the wild horses graze and trample 40-60 acres of planted crops on lands rented to permittee farmers. In addition to the planted crop damage, the wild horses pose a threat to native plants by nipping young trees and random trampling and grazing. The wild horses also compete directly with native wildlife for forage. The wild horses have made extensive trails along the 24-mile range which have begun to erode causing soil compaction and bank erosion. The wild horses are considered to be exotic species, and their continued presence in the park is in conflict with the purpose of the park which is to maintain, rehabilitate, and perpetuate the park’s natural resources inherent integrity. We conclude these findings, set forth in the administrative record, are sufficient to support the Secretary’s decision.

Our conclusion is supported by the 1916 Organic Act, 16 U.S.C. § 3, and the decision of the Tenth Circuit in New Mexico State Game Comm’n v. Udall, 410 F.2d 1197, 1199 (10th Cir.) (New Mexico), cert.' denied, 396 U.S. 961, 90 S.Ct. 429, 24 L.Ed.2d 445 (1969). The court in New Mexico construed the 1916 Organic Act in the following manner:

The obvious purpose of this language is to require the Secretary to determine when it is necessary to destroy animals which, for any reason, may be detrimental to the use of the [national] park, [the Secretary] need not wait until the damage through overbrowsing has taken its toll on the park plant life and deer herd before taking action no less than [the Secretary] would be required to delay the destruction of a vicious animal until after an attack on a person.

Id. Here, likewise, the Secretary need not wait for further damage to the park before taking action.

Accordingly, the order of the district court is reversed and the permanent injunction is vacated.

. Reports include the shooting of a mare for her colt, the death of a stallion resisting capture, and the shooting of a horse purportedly to attract coyotes.

. Clark also filed an appeal (No. 92-3239) and the two appeals were consolidated for purposes of appeal. However, Clark's appeal was later dismissed for failure to prosecute. Wilkins v. Clark, No. 92-3239 (8th Cir. Nov. 23, 1991) (order).