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River Runners for Wilderness v. Martin

February 1, 2010

RIVER RUNNERS FOR WILDERNESS; ROCK THE EARTH; WILDERNESS WATCH; LIVING RIVERS, NONPROFIT CORPORATIONS, PLAINTIFFS-APPELLANTS,
v.
STEPHEN P. MARTIN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF GRAND CANYON NATIONAL PARK; DIRECTOR OF THE NATIONAL PARK SERVICE; NATIONAL PARK SERVICE; KENNETH L. SALAZAR, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR; UNITED STATES DEPARTMENT OF THE INTERIOR; DIANE J. HUMETEWA; ERIC H. HOLDER JR., DEFENDANTS-APPELLEES,
GRAND CANYON RIVER OUTFITTERS ASSOCIATION; GRAND CANYON PRIVATE BOATERS ASSOCIATION, DEFENDANT-INTERVENORS-APPELLEES.



Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding D.C. No. CV-06-00894-DGC.

Per curiam.

FOR PUBLICATION

Argued and Submitted June 10, 2009 -- San Francisco, California

Before: Procter Hug, Jr., Betty B. Fletcher and Michael Daly Hawkins, Circuit Judges.

OPINION

This case concerns the National Park Service's decision to permit the continued use of motorized rafts and support equipment in Grand Canyon National Park. Plaintiffs contend that such motorized activities impair the wilderness character of the Canyon and that the Park Service's decision violates its management policies and various federal statutes. Plaintiffs asked the District Court to set aside the decision under the Administrative Procedure Act ("APA"). For reasons explained in this opinion, Plaintiffs have not satisfied the high threshold required to set aside federal agency actions under the APA.*fn1

I. Background

Grand Canyon National Park ("Park") was established by Congress in 1919 and expanded in 1975. The Park consists of more than 1.2 million acres located on the southern end of the Colorado Plateau in Arizona.

The Park includes a 277-mile stretch of the Colorado River referred to in this order as the "Colorado River Corridor" or the "Corridor." The Park Service regulates the Colorado River Corridor through a periodically-revised Colorado River Management Plan ("Management Plan"). In November of 2005, the Park Service issued a Final Environmental Impact Statement ("FEIS") for the 2006 Management Plan. On February 17, 2006, the Park Service issued a Record of Decision ("ROD") that adopted and approved the 2006 Management Plan. The 2006 Management Plan permits the continued use of motorized rafts, generators, and helicopters in the Colorado River Corridor.

Plaintiffs River Runners for Wilderness, Rock the Earth, Wilderness Watch, and Living Rivers constitute a coalition of organizations committed to protecting and restoring the Grand Canyon's wilderness character and unique natural resources and ensuring fair access to it. Plaintiffs filed this action against the Park Service and various individual Defendants.*fn2

The district court subsequently permitted two private organizations to intervene in the action - Grand Canyon River Out-fitters Association, which consists of commercial operators of motorized and non-motorized rafts in the Colorado River Corridor, and Grand Canyon Private Boaters Association, which consists of private rafters and kayakers of the Corridor (collectively, "Intervenors").

Following exchanges of information and compilation of the administrative record, Plaintiffs, Defendants, and Intervenors all filed motions for summary judgment. The district court held oral argument on October 26, 2007.

A. Park Service Management of the Colorado River Corridor

The waters of the Colorado River originate in the mountains of Colorado, Wyoming, and Utah and run 1,450 miles to the Gulf of California. The Colorado is the longest and largest river in the Southwestern United States. Once in the Grand Canyon, the river flows some 4,000 to 6,000 feet below the rim of the Canyon through cliffs, spires, pyramids, and successive escarpments of colored stone. Access to the bottom of the Grand Canyon can be gained only by hiking, riding mules, or floating the river. Those floating the river typically do so in motor-powered rubber rafts, oar- or paddle-powered rubber rafts, oar-powered dories, or kayaks. Floating the river through the Grand Canyon is considered one of America's great outdoor adventures and includes some of the largest white-water rapids in the United States.

Use of the Colorado River Corridor increased substantially after Glen Canyon Dam was completed in 1963 and produced a relatively steady flow through the Canyon. Because of this increased use, the Park Service initiated a series of river planning and management efforts, culminating in a December 1972 River Use Plan. The plan concluded that "motorized craft should be phased-out of use in the Grand Canyon." The plan also concluded that 89,000 commercial user days and 7,600 non-commercial user days would be allocated for the 1973 season, but that commercial use would be scaled down to 55,000 user days by 1977.*fn3 A 1973 Draft Environmental Impact Statement concluded that "[t]he use of motors . . . should be eliminated as soon as possible from the river environment" and that "[t]he propose[d] elimination of motorized trips will . . . hav[e] a positive environmental impact."

The Park Service initiated a Colorado River Research Program in 1974 to examine, among other things, the impact of motorized activities on the river. In September of 1977, the Park Service issued a document suggesting that "the use of motors is contrary to established health and safety standards" and again opining that the "use of motorized craft should be eliminated." The document noted that "[n]on-motorized travel is more compatible with wilderness experience" and that "[m]otor noise levels may have adverse effects on pilot performance, resulting in potential safety hazards." The Park Service was unable, however, to document any difference in numbers and degree of injuries between the two types of craft.

The Park Service released the first Management Plan in December of 1979. Use of motorized watercraft between Lees Ferry and Separation Canyon was to be phased out over a five-year period. The 1979 Management Plan stated that such a phase-out was consistent with the "objective of the [1976] Master Plan[,] corresponded with the park wilderness proposal," and was "based on the extensive Colorado River Research project for the Grand Canyon[.]" The Management Plan increased the allocated commercial user days from 89,000 per year to 115,500 and increased the allocated non-commercial user days from 7,600 to 54,450. In September 1980, the Park Service proposed that the Colorado River Corridor be designated as "potential wilderness" and, once motorboat use was phased-out, as "wilderness."

Congress countermanded the 1979 Management Plan in a 1981 appropriations bill for the Department of the Interior. The bill prohibited the use of appropriated funds "for the implementation of any management plan for the Colorado River within the [Park] which reduces the number of user days or passenger-launches for commercial motorized water-craft excursions[.]" Members of Congress sent a letter to the Park Service expressing their "wish that the [1979 Management Plan] be amended to accommodate the 1978 level and pattern of commercial, motorized watercraft access while at the same time protecting the increased non-commercial allocation which the plan provides." The Park Service subsequently revised the 1979 Management Plan to "retain[ ] motorized use and the increase in user-days that had been intended as compensation for the phase-out of motors, resulting in more motorized use of the river."

The Park Service issued a second Management Plan in 1989. The 1989 Management Plan was similar to the revised 1979 Management Plan. It included the same allocation of user days for commercial and non-commercial boaters, but increased the number of non-commercial launches.

B. The 2006 Management Plan

Planning for the 2006 Management Plan began in 1997 with the solicitation of public comments and a series of public workshops in Oregon, Utah, and Arizona. After this process was suspended and restarted following the filing of two lawsuits, the Park Service published in the Federal Register, on June 13, 2002, a notice of intent to prepare an environmental impact statement for a revised Management Plan. Seven additional public meetings and stakeholder workshops were held in Colorado, Utah, Arizona, Nevada, Maryland, and California. More than one thousand people attended the meetings and the Park Service received more than 13,000 written submissions.

In the Fall of 2004, the Park Service released for public review a Draft Environmental Impact Statement ("DEIS") for the revised Management Plan. The DEIS presented eight alternatives (Alternatives A-H) for managing the river from Lees Ferry to Diamond Creek, a stretch of 226 miles (referred to in this order as the "Lees Ferry Segment") and five alternatives (Alternatives 1-5) for managing the river from Diamond Creek to Lake Mead, a stretch of 51 miles (referred to in this order as the "Lower Gorge.") The alternatives included motorized and non-motorized options. Because of the complexity of the DEIS and the level of public interest, the Park Service extended the standard 90-day comment period for one additional month. The Park Service also hosted public meetings in Colorado, Utah, Washington, D.C., Nevada, Arizona, and California. The Park Service received some 10,000 written submissions, including approximately 6,000 substantive and 30,000 non-substantive comments on the DEIS. The Park Service coded, organized, analyzed, and responded to the substantive comments, and modified the DEIS where it felt modifications were warranted.

The Park Service received comments from a coalition of groups representing both commercial and non-commercial boaters of the Colorado River Corridor - groups often at odds with each other on issues of river management. The coalition included Intervenors, American Whitewater, and Grand Canyon River Runners Association. The coalition supported equal allocation of river time between commercial and non-commercial boaters and the continued authorization of appropriate levels of motorized use.

In November 2005, the Park Service issued the three-volume Final Environmental Impact Statement. The FEIS addressed the same alternatives discussed in the DEIS, with some modifications to Alternatives H and 4, and expressed a preference for Modified Alternative H for the Lees Ferry Segment and Modified Alternative 4 for the Lower Gorge. The selected alternatives permitted the use of motorized rafts, generators for emergencies and inflating rafts, and helicopters to make passenger exchanges at the Whitmore helipad. As noted above, in February 2006, the Park Service issued a ROD that formally adopted Modified Alternatives H and 4 for the 2006 Management Plan.

II. The District Court's Task

Plaintiffs argue that the 2006 Management Plan is unlawful and should be set aside. The court's task is not to make its own judgment about whether motorized rafts should be allowed in the Colorado River Corridor. Congress has delegated that responsibility to the Park Service. The court's responsibility is narrower: to determine whether the Park Service's 2006 Management Plan comports with the requirements of the APA, 5 U.S.C. § 701 et seq.

The APA does not allow the court to overturn an agency decision because it disagrees with the decision or with the agency's conclusions about environmental impacts. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 555 (1978) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). An agency's decision may be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The standard is deferential. The court "may not substitute its judgment for that of the agency concerning the wisdom or prudence of [the agency's] action." Or. Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987).

In conducting an APA review, the court must determine whether the agency's decision is "founded on a rational connection between the facts found and the choices made . . . and whether [the agency] has committed a clear error of judgment." Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1243 (9th Cir. 2001). "The [agency's] action . . . need only be a reasonable, not the best or most reasonable, decision." Nat'l Wildlife Fed. v. Burford, 871 F.2d 849, 855 (9th Cir. 1989).

Plaintiffs assert that the 2006 Management Plan is arbitrary and capricious under the APA because it violates the Park Service's own policies, the National Park Service Concessions Management and Improvement Act ("Concessions Act"), and the National Park Service Organic Act ("Organic Act"). Each of these arguments will be addressed separately, and this opinion is precedential only as to those issues appealed.

III. Compliance with Park Service Policies

A. Enforceability of the Policies

Even though Congress has never acted on the Park Service's recommendation to designate a substantial portion of the Park as wilderness, Plaintiffs claim that the Park Service's own policies give rise to a legally binding obligation to maintain the wilderness character of the Park. Plaintiffs claim that the Park Service has breached this legal duty by authorizing the continued use of motorized activities in the 2006 Management Plan. Defendants and Intervenors argue that the Park Service policies do not have the force and effect of law and therefore may not be enforced against the Park Service in this action.

In their motion for summary judgment, Plaintiffs identified three policies that allegedly create binding obligations on the Park Service: the 1976 Master Plan, the 1995 General Management Plan, and the 2001 Park Service Management Policies (the "2001 Policies"). Two of these arguments - the 1976 Master Plan and the 1995 General Management Plan - are not on appeal. Plaintiffs instead focus on the 2001 Policies, arguing that they are binding because they are written in mandatory language, were mentioned in the ...


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