Tule elk are in da court!

The elk finally had their day in the Ninth Circuit Federal Appellate Court in San Francisco, before a 3-judge panel, around 10:30am this past Monday, April 1st (yes, April Fool’s Day, but this ain’t no foolin’ around). 

Our superstar-before-the-bar, attorney, Rebecca Garverman of the Harvard Animal Law & Policy Clinic, which brought this suit for us plaintiffs way back in June of 2021, argued our case in Courtroom 1 inside this stunning, ornate, Beaux Arts courthouse built in 1905.

For a lay audience, much of the 33 min. of the proceedings were dry, technical, and repetitive, but I suggest: watch at least the first 2 minutes, and then Rebecca’s closing remarks starting from the 30-min. mark.

Bonus points if you watch the opposing council, Assistant U.S. Attorney, David DeVito, representing The National Park Service (NPS) — a division of the U.S. Dept. of the Interior — try to repel challenges by the court’s judges, around the 21:00 min mark.  Judge Hurwitz asks Mr. DeVito about the Park Service’s obligation to revise the General Management Plan, about its time frame, and about a revision being “mandatory” vs. “discretionary.”

WATCH (33 min.) VIDEO of the court proceedings:

Mr. DiVito’s answers as he explained the Park Service’s positions seemed hesitant. Watch the challenges of logic that ensue.  A second judge, Justice Johnstone joins the legal logomachy at 23:18.  (I understand what Mr. DeVito is trying to argue, that’s “it’s up to us at NPS when” (i.e., discretionary, not mandatory) to revise the NPS (National Park Service) GMP — General Management Plan — which would ostensibly lead to setting the elk trapped inside the fenced, so-called Reserve free — but his argument becomes tortured.  He must simultaneously acknowledge the reality of drought conditions necessitating a revision — because hundreds of elk died in just a few years.  But wants to keep arguing that it is the NPS’ discretion to decide when and how to revise.  Watch him tangle with the judges, and Rebecca’s argument, if you’re into this stuff.  Do not watch if you go crazy at the thought of wild elk held captive and dying of thirst and hunger in a national park unit while old white men (including this one) endlessly debate legal language in a courthouse. 

Frustration is why some of us just throw up our hands — and just freakin’ haul hundreds of gallons of water out to the elk, in a futile, desperate, but also strategic attempt to help them survive and get media attention to fuel public outrage. (And even get the attention of the court.)

We think Mr. DeVito’s arguments, replies and demeanor were not as compelling as Ms. Garverman’s.  (And that’s even with compensating for our pro-elk bias.) We even felt a bit sorry for him because he was trapped in an unreconcilable argument: not wanting to admit in court, on the record, what we know to be true: that the NPS has not revised the GMP (General Management Plan) in 44 years, despite a statute requiring that they “shall” revise the plan “in a timely manner.”  “Timely” went out the window decades ago. 

Especially because conditions inside the Tule Elk Reserve at Tomales Point have changed “significantly” with climate crisis-induced heat and drought in California.  Which is what accelerated the deaths of hundreds of elk trapped inside the fenced Reserve at Tomales Point.  (Note, this fenced elk herd still suffers in other ways, even without drought. Their genetic diversity suffers because they can’t mate with elk from other locations to expand their gene pool.  And elk can’t expand their range naturally, beyond the fenced compound’s 2,600-acres, into the other 69,000 acres of Point Reyes, despite their population growing, naturally, every year. 

Hence our considering the Reserve elk not actually “wild,” nor free.  And also not living in “natural” conditions, despite the Park Service officially claiming that they do.  The NPS also argues, with a chillingly straight public face, that the Reserve herd should ideally be “managed” with rifles — aka, “shooting some elk to death” every year.  Does this sound “natural” or appropriate in a national park unit?  We don’t think so.

The Big Picture Question:  Why all this fuss and conflict between the Park Service and citizen-activists who want elk to roam free at Point Reyes?  

Short Answer: Private cattle businesses in the park want elk fenced and lethally “managed.”  Even though these beef and dairy operations are renters, not owners of the land. You, the public, own their ranch lands, even though most people don’t know that.  Because ranchers are still peddling the old, effective mythology of the “hard-working farmer” — because it keeps the ranching scam in play. Someone could write a song about this — and did, here: https://treespiritproject.com/songs/

Ranchers sold their ranch lands for the equivalent of $350 million decades ago, but have since refused to vacate the park as promised.  They have money, cattle industry backing, and thus political power. So much so, that not one politician dares to speak out against ranches. That job falls to We the People.  (Join us!) 

Oh, one other pertinent factoid: the cattle ranches are also the park’s #1 source of pollution: more specifically, land degradation (trampling, desiccation), soil pollution (via excessive cow manure), fresh water pollution (via excessive cow manure), ocean pollution (via excessive cow manure run-off), and also emit more greenhouse gas emissions than the park’s annual 1.5-ish million visitor vehicle’s tailpipe emissions (CO2) — because cows emit so much methane (MH4), which traps almost 30x more heat in the atmosphere than CO2 does.

A lot of the day’s arguments and discussion in the U.S. Courthouse centered around the meaning of the statutory language, “shall” and “discretionary” and “timely” and “a reasonable time” — because of the over four decades elapsed (since 1980) since the NPS last updated the park’s GMP (General Management Plan).  Despite the NPS’ unwillingness to admit it, their eventual revising of the GMP was only because of public pressure brought to bear by a few hundred activists and thousands of supportive citizens.  (Plus two lawsuits, including this one.)  As we’ve learned in our Trumpian era, the law and the courts can attain some measure of justice, if slowly.  Or when abused by unscrupulous attorneys, contorted to delay, diffuse or even deny justice.

Although I wish the Appellate Court had just taken all the park’s bull elk by their horns and led them swiftly and decisively out of their fenced compound, a maneuver befitting April 1st, I watched intently and believe the court’s 3 justices are sincere, rigorous and fair-minded. They, uh, do justice to this country’s legal system.  (My assessment must be a big relief to them, huh?)

More easily assessed is our star legal representation, young (to me) Rebecca Garverman, employed by the Animal Law & Policy Program.  Is it me getting older, or are attorneys these days younger? (Don’t answer that.)  Our Ms. Garverman left a corporate law job which paid buckets more money, because she had this opportunity to work for causes dear to her animal lover’s heart.  This is what the world needs now, sweet animal and nature love.  No, not just for some, but for every furry (and feathered and fishy) one. We’re so lucky to have her on the case.

When I was her age…  I wouldn’t have been able to perform like this —meaning speaking in public, under pressure, and televised — in a courtroom setting (even if I knew the law). 

WHO YA FIGHTIN’ FOR?

More, and more outdoor, fun: 2 days later, on Wednesday (April 3rd) a co-plaintiff and I had the pleasure of introducing Rebecca to her actual clients, who have antlers and hooves, the cud-chewing ones in the park’s Reserve.  With husband, 14-month-old daughter (and Rebecca’s parents too), the Garverman clan met, for the first time, the elk whose lives will be improved by Rebecca’s countless hours of work. (Even if we do eventually lose in court, we are winning in the important court of public opinion, which can eventually lead to a win in court.)

The vast majority of the public wants the elk fence down, the hundreds of elk set free, and even the thousands poor, abused, exploited-for-profit cows — suffering in an exploitative industry, heavily subsidized by a misled public — moved out of this national park where they have no business being.

SO WHAT’S NEXT?  WHEN WILL THE COURT MAKE A RULING?  Ask a simple question, get a complex answer…

The Appellate Court, as Justice Hurwitz says himself in this hearing, typically can take months to render a decision.  In our case, the court has announced they are choosing to delay a ruling until after Sept. 1st, by which time the NPS will presumably have followed through with their attorney, Mr. DeVito’s, statement to this court: that the NPS will announce a Final Decision about whether they are going to remove the Reserve’s 3-mile-long fence “in August.”  Which would effectively dismantle the Reserve. We consider this August-September timetable to be good news, and additional pressure to hold the NPS to their promised date for a decision. 

This would finalize an action the NPS has proposed, in June of 2023, under an approximately 16-month-long NEPA (National Environmental Policy Act) process. That would change the Point Reyes park’s federal policy about its Reserve fence, of over 45 years.

Mark another date on your calendar: May of this year.  That’s when Mr. DeVito affirmed the NPS’ intention to release the results of their 2023 public survey of responses to their proposal to remove the elk fence.  Which triggers a second and final round of public comments (Note, these are surveys, not binding votes in a popularity contents.) We’ll let you know when this happens.

 Would a fence removal render our case moot?  Maybe. Why maybe? Because…

2 MORE WILD CARDS ARE IN THE MIX 

1) The results of a second lawsuit against the Park Service, the one I call “The 3 Orgs suit” because its plaintiffs are, in alphabetical order, the Center for Biological Diversity (CBD), the Resource Renewal Center (RRI), and the Western Watersheds Project (WWP). Rumors are flying about the plaintiffs ongoing negotiations with the Park Service, which could result in a settlement to oust ranches. It could happen. It could also easily not happen. If the ranches finally go, that relieves huge pressure — and not only on Tule elk.  All the park’s wild animals who suffer, are poisoned by, harassed by and restrained by polluting cattle businesses which consider wild animals a nuisance — inside a national park.

2) Will the ranchers sue the NPS if it recommends removing the Reserve fence, as we expect them to do?  Probably not, but maybe. A rancher lawsuit would take big cow balls because it’s their cattle, not elk, which have a massive, detrimental impact on the park’s land, water and air.

The approximately 4,500 beef and dairy cows, which weigh anywhere from 900-1200 lb. and wildly outnumber (by about 7x) the park’s approximately 700 few elk.  And Tule elk weigh less (about 450-700 lbs.), eat far less, drink far less water, don’t require trucking in supplemental food as cows do, and thus have a positive effect on the land.

And, if by chance, your mind goes to the cattlemen’s favorite far-fetched fantasy confabulation, so-called “regenerative ranching,” that practice, also called “rotational grazing” is both figuratively and literally just more bullshit.  READ WHY. https://www.TreeSpiritProject.com/RegenerativeBs

June 2024 will mark 3 years for this case. We reached this federal Appeals Court because we lost in the Oakland, CA circuit (lower) court, where it languished for over a year. We expect a speedier decision here — likely after Sept 1st. We’ll keep y’all posted.

Thanks for reading all (or some of), and for caring for wild animals and national parks, one of the rare treasures of these United States.

*****