The opinion of the court was delivered by: PRATT
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Public use of the Refuge currently exceeds 50,000 visitors each year. Approximately 30,000 boaters annually are now using the 7,000-acre South Sump that makes up the southern portion of the Refuge. P. Ex. 9 at I-1. In recent years the annual increase in boating has exceeded 19% And is projected to increase in the Elko County portion of the Refuge by over 300% By the year 2020. P. Ex. 9 at I-17, Figure 3.
2. The preferred nesting habitat for migratory birds is located in the South Sump. Although some nesting takes place outside this area, approximately 85% Of canvasback and redhead production would occur in the South Sump. P. Ex. 9 at III-5, Figure 7.
3. The reproductive cycle of over-water nesting ducks at the Refuge consists of four distinct stages: nest site selection, initial nesting, late nesting and re-nesting, and broodrearing. Waterfowl production on the Refuge for any given year is determined by the breeding population density, nesting success, and duckling survival. P. Ex. 9 at III-1.
4. Hens flush easily when disturbed by either canoe or powerboat even after nesting is well underway (P. Ex. 31 at 6), but this disturbance decreases as incubation proceeds.
5. Powerboating may cause abandonment of established nests. P. Ex. 9 at III-12, III-14 to III-16.
6. Re-nesting may occur when the first nest is lost through predation, destruction or abandonment. Re-nesting is an ordinary occurrence for canvasback and redhead ducks and re-nesting success is essential to the maintenance of production levels of the Refuge. Approximately once every four years canvasback and redhead ducks nest later than usual due to climatic conditions. Late nesting and re-nesting ducks go through both nest site selection and actual nesting stages, which together extend from May 15 through September 1. P. Ex. 9 at III-14 to III-19, VIII-49. Even in normal years delayed nesting is typical of redheads throughout their range. P. Ex. 9 at III-15. Re-nesting may account for up to 46% Of the total nesting of redhead ducks in a given season. P. Ex. 9 at III-14.
7. Broodrearing is the period from the hatching of the egg until the hen abandons the brood. During broodrearing, ducklings are dependent upon the hen for safety, and their vulnerability to predators is increased in her absence. Disturbances caused by internal combustion powerboats may separate hens from ducklings. Broodrearing continues from about April 25 to September 30 in each season. P. Ex. 9 at III-20 to III-24.
9. Samples taken on the Refuge demonstrate that where no boating was permitted the marsh produced 328% more submergent vegetation than in areas of heavy boating. P. Ex. 9 at III-30, Table 8.
10. Nesting ducks on the Refuge may be flushed from their nests by the noise of a 25 horsepower boat passing at full throttle within 300 yards of the nest. P. Ex. 9 at III-6.
11. Total Refuge waterfowl use days show a steady downward trend over the past twenty years and it appears that the most obvious cause for the decline in waterfowl use is human disturbance. P. Ex. 9 at III-28.
12. Unlimited horsepower powerboating without appropriate regulation has had unavoidable adverse impacts on over-water nesting waterfowl and has resulted in lower waterfowl production and less wildlife ...