The opinion of the court was delivered by: STANLEY SPORKIN
MEMORANDUM OPINION AND ORDER
Before this Court is Plaintiff's Motion to Vacate Order Granting Defendants' Motion for Summary Judgement and Further Request for Preliminary Injunctive Relief, and Defendants' response thereto. Based on the record, the Plaintiff's motion will be denied.
While Plaintiff alleges several "material errors in fact and law which have affected the correctness of the Decision," this Court finds none of his arguments persuasive. Only one issue merits comment by the Court at this time. In both his Motion for Preliminary Injunction and his most recent motion, Plaintiff argues that the Park Service violated the Deed of Easements at issue in the case by allowing commercial tour boats to pick up and drop off passengers at the Washington Harbor dock. Paragraph 2 of the Deed of Easements prohibits "commercial uses" of the easement area, and Paragraph 18 provides "that the National Park Service shall not conduct nor permit commercial activities in such areas." In its recent decision, this Court ruled that allowing passengers to embark and disembark does not constitute commercial activity.
In his most recent motion, Plaintiff cites for the first time United States v. Carter, 339 F. Supp. 1394 (D. Ariz. 1972). While at first glance, the facts in Carter may resemble those in the instant case, such resemblance is only superficial. In Carter, the defendant rented boats to the public outside of the national park, towed them through the national park, and launched them from the national park's launch, for use in water that was considered part of the national park. Id. at 1396 ("Both the land and water area of Glen Canyon National Recreation Area are part of the 'national park system.'") In other words, the land, launch, and water of the national park were necessary prerequisites that formed the backstay of the defendant's business. Each boat rental by defendant required him to enter and perform services in the national park (e.g. towing, launching).
In the instant case, commercial boats have obtained licenses to dock briefly at Washington Harbour to pick up and discharge passengers. The tour boats at issue pull up to the water entrance of Washington Harbour; they do not enter or cross the national park area. Unlike Carter, the tour boat operators participate in no activity in the national park area itself. Nevertheless, Plaintiff argues that Carter applies because the passengers of the boat operators must cross the national park to board the boats. Such an argument is untenable. If the Court followed such reasoning, taxis and tour busses would also be precluded from picking up or dropping off paying passengers at entrances to national parks. The embarkment and disembarkment of paying passengers at park entrances do not constitute commercial activity within a park.
Accordingly, Plaintiff's Motion to Vacate is denied. An appropriate order accompanies this memorandum.
United States District Court
ORDERED that Plaintiff's Motion to Vacate Order Granting Defendant's Motion for Summary Judgment and Further Request for Preliminary Injunctive Relief is hereby denied.
Entered this 30th day of ...