MEMORANDUM & ORDER Plaintiffs Animal Welfare Institute (“AWI”) and Wildlife Preserves, Inc. (“WP”) (collectively, “Plaintiffs”) commenced this action against the Superintendent of the Fire Island National Seashore Park (“FINS”) and the United States National Park Service (“NPS”) (collectively “Defendants”) raising various claims arising from or concerning the FINS White Tailed Deer Management Plan and Final Environmental Impact Statement (the “Plan”) adopted by the NPS. Currently before the Court is Defendants’ motion to dismiss the Amended Complaint in part pursuant to Rule 12(b)(1), (b)(6), and (b)(7), or alternatively for partial summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Motion, Docket Entry (“DE”) [28]. Plaintiffs oppose the motion. The motion is granted in part with leave to amend. I. BACKGROUND A. Factual Background1 The following facts are taken from the Amended Complaint (“AC”), DE [17], and are assumed to be true for purposes of this motion. In addition to the allegations in the amended complaint itself, that document is also “deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint.” Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citations omitted) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). 1. Conveyance of the Real Property Plaintiff AWI is a non-profit animal advocacy organization with over 40,000 members, including individuals in New York. AC 1. Plaintiff WP is a private, non-profit land conservation corporation dedicated to the preservation of natural areas, open space, wildlife and wildlife habitats. Id. 2. On June 29, 1955, WP conveyed pieces of property (“WP Tracts”) to non-party Sunken Forest Preserve, Inc. (“SFPI”). These lands make up a substantial portion of what is known as the Sunken Forest Preserve (“Sunken Forest”) within the FINS. The deed conveying the WP Tracts (the “1955 Deed”) contains the following restriction: This conveyance is made subject to the express condition and limitation that the premises herein conveyed shall be maintained in their natural state and operated as a preserve for the maintenance of wildlife and its natural habitat undisturbed by hunting; trapping, fishing, or any other activities that might adversely affect the environment or the animal population, and for scientific; and educational purposes incidental to such maintenance and operation. Should the premises cease to be used solely for the above purposes, or should any activities be engaged in thereon that would adversely affect the flora or the fauna, then the title of the grantee shall cease and determine and shall revert to and vest in the grantor, the said reversion and vesting to be automatic and not requiring any re-entry. 1955 Deed at 5, Liber 3918, page 433, Declaration of Catherine Pastrikos Kelly (“Kelly Decl.”) Exhibit 2 (emphasis removed). The habendum clause of the 1955 Deed reads as follows: “TO HAVE AND TO HOLD the premises herein granted unto the party of the second part, its successors and assigns forever, subject to the express condition and limitation hereinabove set forth.” Id. at 6, Liber 3918, page 434 (emphasis in original). On May 9, 1966, SFPI conveyed the WP Tracts and a separate parcel to the NPS via deed (the “1966 Deed”). AC 29. The 1966 Deed, which is between SFPI and the United States of America, states that the conveyance is “expressly made subject” to the following condition: That all of the premises hereby conveyed shall always be maintained in their natural state and operated solely as a sanctuary and preserve for the maintenance of wild life and its natural habitat, undisturbed by hunting, trapping, fishing or any other activities that might adversely affect the environment or the flora or fauna of said premises; and for scientific and educational purposes incidental to such maintenance and operation. 1966 Deed, Liber 5955, page 243, Kelly Decl. Ex. 3 at. SFPI is no longer in operation. Id. 30. 2. The NPS Plan In June 2011, NPS announced its intent to prepare an environmental impact study for a plan to manage deer and vegetation at FINS, and in 2014, a draft study was published. AC
32 33. After a period of public comment, the final study was published on December 31, 2015, id., 35, and in April 2016, FINS issued a Record of Decision (“ROD”) for the FINS White-Tailed Deer Management Plan and Final Environmental Impact Statement (the “Plan”). Id. 37. Plaintiffs claim that the restrictions in the 1955 Deed and 1966 Deed (collectively, the “deed restrictions”) were violated by NPS’s authorization of the Plan, which includes plans for Sunken Forest including (1) the killing of white-tailed deer by hunters, sharpshooters, or by capture and euthanasia, and (2) the use of fencing causing deer to be driven out of the fenced-in areas, with the further proviso that “any deer found within would be killed.” Id. 41. The killing and driving deer out of fenced-in areas adversely affects the fauna of the WP tracts, and thus the Plan violates the deed restrictions resulting in title to the WP Tracts reverting to WP. Id. 43. The Plan contains various provisions specific to Sunken Forest. It calls for an exclusion fence to be installed around approximately 44 acres of the Sunken Forest, approximately 29 acres of which will be “within the Sunken Forest Preserve,” in order to “protect the majority of the rare maritime holly forest from deer browse.” ROD at 18, FINS 000020.2 Although the composition of the fence is not set forth, the ROD notes that typically, it will be “a minimum of 8-10 feet high and mesh size will be sufficient to allow most small animals to move freely through.” Id. Electric fencing will not be used. Id. at 19, FINS 000021. “During the construction of the fence, deer will be removed from the fenced area by driving them out. Once the fence is completed, any deer found inside the fence will be removed through direct reduction (sharpshooting or capture and euthanasia).” ROD at 18, FINS 000020. Sharpshooting will be performed by “[q]ualified federal employees, contractors, or skilled volunteers with demonstrated expertise and training in the implementation of successful wildlife and deer management actions.” Id. at 20, FINS 000022. The Plan also states that as part of the sharpshooter reduction method, “[t]emporary bait stations could be used to attract deer to safe removal locations.” Id. at 21, FINS 000023. The Plan contemplates use of the capture and euthanasia method “where sharpshooting would not be appropriate due to safety or security concerns” and is expected to be used minimally — on 15 percent or less of the total number of deer removed. Id. at 21-22, FINS 000023-24. Most of the capture methods use bait to attract deer to a location where tranquilizer darts may be used. Id. at 22, FINS 000024. No specific locations are designated for either of the reduction methods. No public hunting is proposed for Sunken Forest as the Plan states that to the extent that public hunting is permitted, it will only take place in the Fire Island Wilderness. Id. On February 3, 2016, WP wrote to K. Christopher Soller, Superintendent of FINS,3 expressing concern about the Plan and “informing NPS that the Plan violates the deed restrictions.” AC 44. Having received no response, WP wrote to the Regional Director of NPS on two occasions in May and June 2016 informing NPS of the violation of the deed restrictions and seeking NPS’s cooperation in an effort to avoid litigation. Id.
