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June 14, 1999


The opinion of the court was delivered by: Kessler, District Judge.


Plaintiffs National Parks and Conservation Association ("NPCA"), Barry Harper, and the American Canoe Association ("ACA") bring this suit against Robert Stanton, Director of the National Park Service ("NPS"), and Bruce Babbitt, Secretary of the Department of the Interior ("Secretary"), challenging Defendants' plan for management of the Niobrara National Scenic River ("Niobrara"), located in Nebraska. The challenged management plan, under which NPS delegates all its responsibilities for managing the Niobrara to an independent local council over which NPS has virtually no control, is the first of its kind. Plaintiffs also challenge the adequacy of the Environmental Impact Statement created by Defendants pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA").

This matter is now before the Court on the parties' cross-motions for summary judgment. Upon consideration of the motions, oppositions, replies, and the entire record herein, for the reasons discussed below, Plaintiffs' Motion for Summary Judgment [# 18] is granted, and Defendants' Motion for Summary Judgment [# 19] is denied.

I. Background*fn1

The Niobrara, a unique river with abundant resources that runs through north-central Nebraska, is known for its historical, paleontological, archaeological, and ecological treasures. 137 Cong.Rec. H2299 (daily ed. May 14, 1991) (statement of Representative Hoagland). Its forests abound with ponderosa pine, American elm, but oak, green ash, basswood, hackberry, and black walnut trees. A.R. at 1028-29. There is striking bio-diversity among the vegetation, where 160 plant species from eastern, western, and northern forest ecosystems intermingle along the River valley. A.R. at 1028. The Niobrara provides shelter and homes for bald eagles, turkeys, grouse, quails, doves, pheasants, ducks, and geese. A.R. at 1030. It is also home to several threatened and endangered species, including the peregrine falcon, the interior least tern, the piping plover, and the whooping crane. Id. Palaeontologists find a wealth of artifacts on the fossil beds along the Niobrara, including deposits from eighty species of extinct vertebrates. A.R. at 1028. In one fossil excavation site, at least 146 vertebrate species were found. Id. of the 164 cataloged fossil excavation sites, 15 were rated as internationally significant, and 37 were rated nationally significant. Id. The River was named one of the 10 best canoeing rivers in the nation by Backpacker magazine, and one of the eight special camping areas in the nation by Outside magazine. 137 Cong.Rec. H2299 (daily ed. May 14, 1991) (statement of Representative Hoagland).

One of the Niobrara's unique features is that it runs largely through private land. In 1991, Congress, despite local opposition, designated portions of the Niobrara to become components in the pre-existing national Wild and Scenic Rivers system. Niobrara Scenic River Designation Act of 1991, Pub.L. 102-50, 105 Stat. 254 (1991) ("NSRDA"); 16 U.S.C. § 1274(a)(117). Recognizing that the area along the River was largely privately-held, Congress limited the amount of land the federal government could acquire, and encouraged state and local involvement in the administration and management of the River locale. NSRDA, 105 Stat. at 255. Congress also created the eleven member Niobrara Scenic River Advisory Commission ("Advisory Commission"), an advisory group representing local interests, for the purpose of aiding NPS in developing a management plan for the area. Id.

As the agency responsible for overseeing the administration of the Niobrara, NPS developed, with the help of the Advisory Commission, a General Management Plan and Environmental Impact Statement ("GMP/EIS"). The GMP/EIS outlined four management alternatives for administering the Niobrara: Alternative A, which called for no action, was the baseline against which to compare the other plans; Alternative B provided for management by a local council, which would include members from various county and state agencies, as well as local landowners and business people; Alternative C provided for partnership management between NPS and local entities, where any necessary services needed in managing the River would be provided by local entities; and Alternative D provided for NPS management with involvement of local entities. In its EIS, NPS considered Alternatives B, C, and D together, without evaluating possible environmental impacts that might occur under one alternative but not others. NPS explained that it created the EIS in this manner because it did not believe the impacts of the three alternatives would be different, since they shared a common goal.

NPS chose Alternative B as the preferred strategy for managing the Niobrara, and that decision was memorialized in the Record of Decision ("ROD"), as was the general management plan and final EIS for the Niobrara. In July of 1997, NPS entered into the Interlocal Cooperative Agreement ("Interlocal Agreement") with local Nebraska governmental entities. The Interlocal Agreement established the Niobrara Council ("Council"), and outlined the Council's duties, which included: enter into agreements with NPS or the U.S. Fish and Wildlife Service ("FWS"); obtain and use funds from any source to perform its functions; coordinate management of the Niobrara with the responsible agencies; assist the four cooperating counties in developing zoning and other land protection methods; review county zoning ordinances and actions for consistency with the GMP; provide a forum for landowner/government conflict; work with landowners and provide technical assistance where there is no zoning; manage law enforcement, public access sites, visitor use levels, and other operational functions; retain the services of professionals as necessary to perform its duties; retain staff members to perform its functions; and acquire and manage real and personal property for staff office purposes only. Interlocal Agreement, at ¶ 5. The Interlocal Agreement also noted that the Council should attempt to find outside sources of money, to avoid having NPS "dictate the decisions of the council." Id.

The Council may only be dissolved by act of the four cooperating counties, or by termination of the Interlocal Agreement by NPS. By-Laws of Niobrara Council, art. IV, ¶ 1 ("By-Laws"). Any of the four counties may withdraw from the Interlocal Agreement upon 60 days' notice, but the withdrawal of any county does not terminate the agreement. Interlocal Agreement, at ¶ 11.

The Council consists of fifteen members: four county commissioners (one from each participating county); four landowners (one from each participating county) two representatives of local Natural Resource Districts; one timber industry representative; one recreational business representative; one representative of the Nebraska Game and Parks Commission; one FWS representative; and one NPS representative. By-Laws, art. I, ¶ 4. Decisions are reached through simple majority vote. Id. at art. I, ¶ 10(k)(1).

On August 6, 1997, the Council entered into a Cooperative Agreement with NPS, as called for in the ROD. The Cooperative Agreement can be terminated by either party upon sixty days' notice, and can be modified by mutual written agreement. By-Laws, art. VII, ¶ A. If the Council fails to manage and protect the Niobrara as set forth in the GMP/EIS, NPS has the authority to terminate the Agreement and implement one of the other Alternatives for managing the Niobrara. Under the GMP/EIS, the Council must carry out its activities to meet standards acceptable to NPS. A.R. at 965-1175. Under the Cooperative Agreement, NPS must "consider for consistency with the GMP the advice and recommendations of the Council during and upon completion of its activities identified above." Cooperative Agreement, Art. II.B.

Plaintiffs allege that although it has been over one and a half years since the Council was established, nothing has been done to protect or manage the Niobrara's resources. Plaintiffs challenge the decision to adopt Alternative B, the duties that have been delegated to the Council, and NPS' compliance with NEPA. Plaintiffs seek an injunction requiring NPS to administer the Niobrara itself, and requiring NPS to complete a more thorough EIS under NEPA.

II. Standard of Review

All parties recognize that the Court is bound by a highly deferential standard of review for agency action. Under the Administrative Procedure Act ("APA"), an agency's action 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). In exercising its narrowly defined duty under the APA, the Court must consider whether the agency acted within the scope of its legal authority, adequately explained its decision, based its decision on facts in the record, and considered the relevant factors. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

III. Analysis

The three issues presented in this case are whether Plaintiffs have standing to bring either of their claims, whether NPS has unlawfully delegated its responsibilities to the Council, and whether NPS' EIS is insufficient and therefore violative of NEPA.*fn2

A. Justiciability

Defendants argue that Plaintiffs do not have standing to bring either of their claims, and that neither claim is ripe.

1. Standing

To prove standing, Plaintiffs must show: (1) they have suffered a concrete, personal, and particularized "injury in fact" to a legally protected interest; (2) a causal connection between the injury and the action of the defendant, fairly traceable to the challenged action; and (3) a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In making this showing, Plaintiffs cannot rest on mere conclusory allegations but must set forth specific facts, either through affidavits or other evidence which, for standing purposes, will be accepted as true. Id. at 561, 112 S.Ct. 2130. Furthermore, for the purposes of standing, Plaintiffs' legal theory of the case must be accepted as valid. Animal Legal Defense Fund v. Glickman, 154 F.3d 426, 441 (1998) (en banc) [herein ALDF].

a. Unlawful Delegation Claim

Plaintiffs argue that they have suffered personal and particularized injury from NPS' decision to delegate its responsibilities to the Council. First, relying on ALDF, Plaintiffs correctly point out that injury to aesthetic interests satisfies the first prong of the Lujan test. As the court found in ALDF, "the Supreme Court and [the District of Columbia] circuit have frequently recognized the injury in fact of plaintiffs who suffered aesthetic injury stemming from the condition and quality, or despoliation, of an environmental area that they used." ALDF, 154 F.3d at 434. In support of their theory, Plaintiffs argue that they have suffered injuries to their aesthetic, environmental, and recreational interests, because NPS' delegation of its duties to the Council resulted in the following serious conditions: failure to control overcrowding, failure to remove pit toilets which pollute the River, failure to screen a junk yard, failure to properly manage campsites, failure to protect delicate flora and prevent the spread of noxious weeds, failure to control erosion, failure to control development close to the River, failure to manage garbage and waste removal, and failure to control unruly crowds.

Plaintiffs are frequent visitors to the River, who seek solitude and aesthetic enjoyment of the Niobrara's resources, and all plan to visit the River again in the near future. NPCA member Susan Lawler, who regularly visits the River to canoe, observe wildlife, photograph the River, birdwatch, hike, and picnic, has stopped her weekend visits due to overcrowding and unruly visitors who are disruptive and noisy, and who throw bottles and cans in the River between canoes. Aff. of Lawler, at 1-2.

ACA member Keith Hentzen is an avid canoeist who enjoys the peace, solitude, and aesthetic beauty of his canoe trips on the Niobrara, which he visits at least once a year. Aff. of Hentzen at 1. Mr. Hentzen has suffered aesthetic injuries stemming from the creation of unofficial canoe access points along the River, as well as the encroaching development which diminishes the aesthetic and spiritual enjoyment of his canoe trips. Id. at 3.

Thomas Tiffany Varney, a member of ACA and an avid cancer and kayaker who makes annual trips to the Niobrara, has been injured by encroaching development due to the lack of zoning in one of the counties through which the Niobrara runs, as well as the failure to control overcrowding and unruly visitors. Decl. of Varney at 1-2.

Second, Plaintiffs also claim "informational" injuries. They argue that since the Council is not a federal entity, any decisions it makes are not subject to the rigorous requirements of the APA. Specifically, the Council's decisions need not be publicly announced, are not subject to notice-and-comment, and need not be published in the Federal Register, all of which the APA demands. 5 U.S.C. § 552(a), 553. Plaintiffs argue that they have thus been deprived of a single, nationally-accessible source of information about rulemaking activities affecting the Niobrara. Such "informational injuries" have been recognized as sufficient for establishing "injury in fact". Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 937 (D.C.Cir. 1986).

It is clear from Plaintiffs' declarations that they have suffered the personal and particularized injuries required under the first prong of the Lujan test; the next step is determining whether those injuries are traceable to Defendants' actions. Plaintiffs allege that their injuries can be traced to the fact that the Council has done virtually nothing to protect the River since its inception over a year and a half ago, whereas NPS would have taken some remedial action during this time which would have alleviated Plaintiffs' injuries. Plaintiffs note that in his deposition, Paul Hedren, Superintendent of the Niobrara National Scenic River, admitted that other than engaging in some discussions at Council meetings, the Council itself has failed to take any of the following actions: protect archeological and historical sites as well as cultural landscapes, monitor water quality, control erosion of delicate sand cliffs and other areas along the River, safeguard wildlife, protect fossil excavation sites, inventory natural resources, manage exotic species of vegetation, control noxious vegetation, police the River, rescue capsized cancers, control river access problems and unofficial canoe launch points, stabilize river banks, monitor visitor usage, repair forests, construct handicap-accessible facilities, prevent groundwater contamination by pit toilets, screen buildings and other unsightly structures, purchase easements, and encourage local counties to adopt zoning laws that would protect the River.

In ALDF, where the plaintiffs proceeded under a strikingly similar theory, our Court of Appeals, sitting en banc, held that "Supreme Court precedent establishes that the causation requirement for constitutional standing is met when a plaintiff demonstrates that the challenged agency action authorizes the conduct that allegedly caused the plaintiff's injuries, if that conduct would allegedly be illegal otherwise." ALDF, 154 F.3d at 440.

In ALDF, the plaintiff alleged that his aesthetic injuries (observing animals living under inhumane conditions) were caused by the United States Department of Agriculture, which misinterpreted the statute to permit a third party to establish conditions for the animals which the plaintiff alleged were inhumane. The Court of Appeals held that the plaintiff satisfied the causation prong of the Lujan test, because the "proper comparison for determining causation is not between what the agency did and the status quo before the agency acted. Rather, the proper comparison is between what the agency did and what the plaintiffs allege the agency should have done under the statute." ALDF, 154 F.3d at 441. The Court went even further to hold that

In this case, as in ALDF, Plaintiffs allege that the agency's action (NPS' unlawful delegation of its responsibilities to the Council) authorized the conduct (Council's inaction) that caused their injuries, and that that conduct (inaction for over a year and a half) would have been illegal otherwise. Plaintiffs allege that if NPS had not delegated its responsibilities to the Council, it would have taken at least minimal steps during this time to protect the Niobrara.

In support of their argument, Plaintiffs submitted the affidavit of Eugene Koevenig, who for twenty-six years served as NPS' Chief of Maintenance at Mount Rushmore National Memorial. Koevenig stated in his affidavit that the Niobrara "is not receiving the minimum level of care and protection that the NPS provides for other units of the National Park System." Aff. of Koevenig at 3. Koevenig stated that by this point, if NPS were exercising its usual responsibilities, it normally would have initiated a carrying capacity study, considered options to limit access to the appropriate carrying capacity, taken steps to replace pit toilets with holding tanks or treatment facilities, posted signs along fragile sand cliffs warning visitors not to climb them, posted signs or barriers to prevent the destruction of sensitive flora, employed ditches, culverts, or surface roads around river access points to minimize erosion, protected a historical cabin alongside the River (which is apparently so unprotected that even cows walk inside and around it), and provided firewood to campsites to prevent visitors from destroying trees and the habitats of small wildlife. Aff. of Koevenig at 3-5.

It is perfectly apparent that these minimal, low-budget actions could have been taken while a long-term management plan for the River was being created. In contrast, the Council, totally inexperienced in managing national resources like the Niobrara, has taken no steps to rectify any of Plaintiffs' injuries. Indeed, counsel for both parties acknowledged at oral argument that as of mid-February, 1999, a year and a half after its creation, the Council had yet to hire its first employee.

Defendants argue that it takes time to create a management plan for an area such as the Niobrara, and that NPS would not necessarily have accomplished more than the Council. However, even assuming that were true,*fn3 it does not mean NPS would not, in the exercise of its usual responsibilities, have implemented those minimal, low-budget projects discussed above that would minimize Plaintiffs' injuries and provide greater protection for this national treasure.

Defendants next argue that Koevenig's suggestion that NPS would have taken certain actions is mere speculation. Defendants contend that the lack of progress is not due to NPS' decision or the inaction of the Council, but to the fact that the local Niobrara/Missouri NPS field office is in its start-up phase, and Congress has not appropriated monies even though budget requests have been made.

NPS cannot defeat standing, and defend its failure to carry out statutory obligations, on the theory that it lacked sufficient appropriations, and that its field office was in the start-up phase. For purposes of establishing standing, Plaintiffs have shown that NPS' unlawful delegation caused ...

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