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Fund for Animals v. Norton

December 16, 2003

THE FUND FOR ANIMALS, ET AL PLAINTIFFS,
v.
GALE NORTON, ET AL, DEFENDANTS,
GREATER YELLOWSTONE COALITION, ET AL PLAINTIFFS,
v.
GALE NORTON, ET AL, DEFENDANTS,



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

I. Introduction

Plaintiffs the Fund for Animals ("Fund") and the Greater Yellowstone Coalition ("Yellowstone Coalition") challenge the National Park Service's ("Service" or "NPS") administrative decision, codified in a 2003 Supplemental Environmental Impact Statement ("SEIS") and Record of Decision ("2003 ROD"),*fn1 to allow continued snowmobiling and trail grooming*fn2 in Yellowstone National Park, Grand Teton National Park, and the John D. Rockefeller, Jr. Memorial Parkway (collectively"Yellowstone" or "Parks"). Plaintiffs allege that snowmobiling and trail grooming cause air and noise pollution, threaten wildlife and endangered species, and create health threats to visitors and park employees. Given these adverse effects, plaintiffs argue that NPS's decision to allow the continuation of these winter activities belies the evidence collected during the rule-making process, thus violating the Administrative Procedure Act's ("APA") prohibition against decision-making that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706 (2)(A) (2003). Specifically challenged are the Service's failure to act with regard to Plaintiff Bluewater Network's January 1999 Rulemaking Petition seeking a ban on snowmobiling and trail grooming throughout the National Park System, and the Service's issuance of the 2003 SEIS and March 2003 ROD, which allow snowmobiling and trail grooming to continue.*fn3 Pending before the Court are cross motions for summary judgment filed by all parties to the case.

Upon careful consideration of the motions, the responses and replies thereto, the oral arguments of counsel, the entire record herein, as well as the governing statutory and case law, and for the following reasons, it is by the Court hereby ordered as follows:

a) The March 25, 2003, Record of Decision; February 2003 Supplemental Environmental Impact Statement; and December 11, 2003, Final Rule are vacated and remanded to the National Park Service, U.S. Department of the Interior, for further proceedings not inconsistent with this Opinion;

b) The prior January 22, 2001, Final Rule, as modified by the November 18, 2002, Final Rule, shall remain in effect until further Order of the Court; and

c) The National Park Service shall respond to Bluewater Network's Rulemaking Petition by no later than February 17, 2004.

A. Parties

1. Plaintiffs

Plaintiff The Fund for Animals is a national non-profit membership organization"committed to preserving animal and plant species in their natural habitats, and to preventing the abuse and exploitation of both wild and domestic animals." Am. Compl. ¶ 7. The Fund brings this action on behalf of its members, and submitted briefs on behalf of organizational co-plaintiffs Bluewater Network ("Bluewater") and the Ecology Center, as well as individual plaintiffs Walt Farmer, George Wuerthner, Phillip Knight, and Richard Meis.

Plaintiff Greater Yellowstone Coalition is a"conservation organization dedicated to protecting and restoring the Greater Yellowstone ecosystem and the unique quality of life it sustains." Am. Compl. ¶ 18. The Yellowstone Coalition brings this action on behalf of its members, and submitted briefs on behalf of five other co-plaintiff non-profit organizations: the National Parks Conservation Association, The Wilderness Society, the Natural Resources Defense Council, the Winter Wildlands Alliance, and the Sierra Club.

The two groups of plaintiffs, represented separately by the Fund and the Yellowstone Coalition, seek different relief, and consequently have somewhat conflicting interests. The Fund ultimately seeks a cessation of trail grooming in the Parks. Greater Yellowstone seeks a gradual phase-out of snowmobile use in favor of mass transport snowcoach use; in essence, the implementation of the 2001 Final Rule, which did not call for an end to trail grooming. Snowcoach Rule, 66 Fed. Reg. 7,260 (Jan. 22, 2001). Thus, if the 2001 Rule is implemented, the Fund Plaintiffs will not obtain their desired relief because grooming will continue. Conversely, if trail grooming is enjoined, neither snowmobiles nor snowcoaches will be able to travel over the unpacked snow, thus making actual implementation of the 2001 snowcoach plan impossible.

2. Defendants

Secretary of the Interior Gale Norton, Director of the National Park Service Fran Mainella, Director of the Fish and Wildlife Service ("FWS") Steven Williams, and Director of the Intermountain Region of the National Park Service Karen Wade are sued in their official capacities, and are collectively referred to as the Federal Defendants.

The International Snowmobile Manufacturers Association, Inc. ("ISMA"), the BlueRibbon Coalition, Inc., and the State of Wyoming intervened as defendants pursuant to this Court's September 15, 2003, Order. The ISMA is an organization of snowmobile manufacturers whose purpose is promoting the growth of the snowmobiling industry and the snowmobiling sport, as well as providing information to its members, who are manufacturers of snowmobile parts. See ISMA and BlueRibbon Mot. to Intervene at 4-5. Blue Ribbon Coalition, Inc., is a non-profit organization representing over 1,000 businesses and organizations who have economic and commercial interests in snowmobile opportunities in the Parks; these members use snowmobiles to access the National Parks. Id. at 5-6.

B. Factual Background and Procedural History

In 1872, Congress established Yellowstone as the nation's first national park, setting aside over 2 million acres for the enjoyment of the public. The Grand Teton National Park was established in 1950, and the John D. Rockefeller Memorial Parkway established in 1972. The use of snowmobiles in the Parks was first permitted in 1963, and in 1968 park administrators, responding to growing concerns about the effects of snowmobiling on park resources, implemented the first official winter-use policy. In 1971, the NPS began grooming snow-covered roads to allow for safe passage by oversnow vehicles, and over the next three decades winter use, including snowmobile use, increased dramatically. Between 1983 and 1993, winter use doubled, increasing from 70,000 visitors per winter season to 140,000 visitors per season. National Park Service, Winter Use Plans Final Environmental Impact Statement at 15 (Oct. 2000)("2000 FEIS"), Administrative Record at 28,415 ("A.R."). Today, over 180 miles of Park roads are groomed at least every other night, and historical use demonstrates that as many as 1700 snowmobiles enter the Parks on peak days. Winter Use Proposed Rule, 68 Fed. Reg. 51,526, 51,533 (proposed August 27, 2003).

1. 1997 Litigation and Subsequent Rulemakings

Inevitably, a conflict arose between the NPS's mandate to protect Park resources and the accommodation of visitors' desires to view the parks via snowmobiles during the winter season. Of particular concern were the effects of trail grooming and snowmobiling on the Parks' wildlife, especially bison. During the winter of 1996-1997, Park officials documented that large numbers of bison left the Parks, some traveling along the man-made groomed trails created to facilitate oversnow vehicle use. As a consequence of this migration, over 1000 bison had to be killed to prevent the spread of brucellosis to livestock in areas outside of the Parks. 2000 FEIS at 16, A.R. 28416. In May of 1997, the Fund for Animals filed suit against the NPS, alleging that the Park's winter use plan, which permitted trail grooming and snowmobile use, violated the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA"). The Fund sought an injunction prohibiting snowmobiling and trail grooming until the Agency prepared an Environmental Impact Statement ("EIS") and consulted with the Fish and Wildlife Service ("FWS") about these activities' impacts on federally protected species.

A Settlement Agreement was reached and approved in 1997 ("1997 Settlement"). The 1997 Settlement provided that the Service would prepare an EIS"addressing a full range of all alternatives for all types of visitor winter use, including snowmobiling and trail grooming... and considering the effects of those alternatives on the Parks' environments," and then issue a ROD determining how the winter use policies would be changed. Id. ¶ 1. To obtain comparative data and information necessary for preparation of the EIS, the NPS agreed to prepare an environmental assessment ("EA"), and designate as the preferred alternative a proposal closing a trail segment during the 1997-98 winter and closing fourteen additional miles during the winters of 1998-99 and 1999-2000. Id. ¶ 6. The Park Service also agreed to prepare a Biological Assessment ("BA") detailing the impact of winter use on the grizzly bear and the gray wolf, and then request a"formal consultation" with the Fish and Wildlife Service.*fn4 Id. ¶ 5. During the EIS preparation, activities under the existing winter use plan would continue. Id. ¶ 3. The Court approved the 1997 Settlement in October 1997.

Pursuant to the Settlement Agreement, in 1997 the NPS issued an EA proposing the closure of a groomed road segment, noting that experimental closures would provide more information about how trail grooming affects bison. See Environmental Assessment, Temporary Closure of A Winter Road at 30 (Nov. 1997) ("EA"), A.R. at 6401. However, in January 1998 the NPS issued a Finding of No Significant Impact ("FONSI") on the grounds that current information did not "sufficiently demonstrate that an immediate closure [of trails] for study would provide the context or range of conditions necessary to make a closure productive." National Park Service Finding of No Significant Impact, Temporary Closure of a Winter Road, at 2 (Jan. 16, 1998)("FONSI"), A.R. 12,307. As a result, the Park Service decided that, while research concerning wildlife use of groomed trails would continue, this research would not include closing any trails to grooming. Plaintiffs subsequently filed a new action alleging that the refusal to close any trails to obtain comparative data was a violation of the 1997 Settlement Agreement, as well as an impediment to completing a comprehensive EIS. This Court found the claims were premature since the EIS was not yet complete, reasoning that "what is not final is whether the decision not to close trails will produce an EIS not in compliance with the settlement agreement and NEPA." Mem. Op., Mar. 31, 1999, at 10.

Per the 1997 Settlement agreement, a Biological Assessment was completed in July 2000, but a formal consultation with the FWS did not follow. Instead, in October 2000, the FWS"concurred" in the conclusion that the proposed action was not likely to adversely affect protected species. See National Park Service Biological Assessment of Winter Use Plans at 5 (Mar. 21, 2003), A.R. 71,084.

The Service issued a Draft EIS ("DEIS") on winter use in July of 1999, which contained seven alternatives for snowmobile use and trail grooming. The alternatives ranged from permitting unmitigated snowmobile use to allowing very restricted use, but none of the alternatives in the DEIS contemplated the complete elimination of snowmobiling or the cessation of trail grooming. A Final EIS was issued in October 2000 ("2000 FEIS"), and a ROD signed in November 2000. NPS selected Alternative G, the environmentally preferred alternative, which allowed snowmobile use to continue during the 2000-2001 winter, but called for a complete phase-out of snowmobile use, in favor of snowcoach use,*fn5 beginning in the winter of 2001-02. Under Alternative G snowmobile use would be completely eliminated by the 2003-04 winter season. See Record of Decision, Winter Use Plans, 65 Fed. Reg. 80,908 (November 22, 2000).

In December of 2000, the Park Service issued a Proposed Rule, which capped snowmobile use in the winters of 2001-02 and 2002-03, and completely eliminated snowmobile use by the 2003-04 winter season. The Service received 5,273 comments during the thirty day public comment period, over 4,300 of these comments supported the proposed phase-out rule. On January 22, 2001, the Park Service published the Final Rule ("Snowcoach Rule" or "2001 Rule"), which allowed snowmobile use to continue in 2001-02, but mandated significant reductions in snowmobile use in 2002-03 and a complete elimination of snowmobile use, in favor of snowcoach use, by the 2003-04 winter season. Neither the Proposed Rule nor the Final Rule made any changes in the groomed trail system, thus allowing trail grooming to continue unabated. See generally Snowcoach Rule, 66 Fed. Reg. 7,260 (Jan. 22, 2001).

The 2001 Rule, promulgated by the Clinton administration, was published the day after President George W. Bush took office, and was immediately stayed pending a review of the Rule by the new administration. Final Rule, Delay of Effective Date, 66 Fed. Reg. 8,366 (Jan. 31, 2001). Meanwhile, the 2000 ROD and FEIS were challenged by, among others, the International Snowmobiler Manufacturers Association as an unsupported decision to ban snowmobiling. The lawsuit called for the 2000 ROD and the resulting 2001 Rule to be set aside. In June of 2001, the NPS reached a settlement with the parties, which provided that a Supplemental EIS ("SEIS") be prepared. The NPS agreed to consider data on new snowmobile technologies and incorporate"any significant new or additional information or data submitted with respect to a winter use plan." Winter Use Plan Final Rule, 68 Fed. Reg. at 51,527.

Pursuant to the Settlement, in March 2002, the Park Service issued a Draft SEIS ("DSEIS") and a Proposed Rule. The DSEIS examined four alternatives, one of which called for implementing the snowmobile phase-out as detailed in the challenged 2001 Final Rule. During the sixty-day comment period, NPS received over 350,000 pieces of correspondence from the public; over eighty percent of the public comments supported the phase-out of snowmobiles in favor of snowcoaches. Despite this opposition, on November 18, 2002, one month before the phase-out detailed in the Snowcoach Rule was scheduled to go into effect, the Service released a Final Rule delaying the implementation of the phase out for an additional year. Final Delay Rule, 67 Fed. Reg. at 69,473. Thus, snowmobile use was allowed to continue unabated during the 2002-03 winter season.

In February 2003, the Park Service issued a Final SEIS ("FSEIS" or"2003 SEIS") containing five alternatives. Four alternatives were substantively identical to those in the Draft SEIS; the additional alternative, Alternative 4, was not included in the Draft SEIS. See Winter Use Plan Proposed Rule, 68 Fed. Reg. 51,526, 51,527 (proposed Aug. 27, 2003)(explaining the differences between the DSEIS and the FSEIS). FSEIS Alternative 1b, identified as the"environmentally preferred" alternative, paralleled the Snowcoach Rule's Alternative G (the selected alternative), but deferred implementation of the phase-out for an additional year. FSEIS Alternative 4, the alternative not included in the DSEIS, was identified as the NPS's preferred alternative.*fn6

On March 25, 2003, the Park Service signed a ROD ("2003 ROD") largely adopting Alternative 4. In stark contrast to the 2000 ROD and resultant Snowcoach Rule, the 2003 ROD allows 950 snowmobilers to enter the Parks each day. The 2003 ROD further provides that snowmobiles must conform, where possible, with best available technology ("BAT") standards, and also implements a monitoring and"adaptive management" program. The ROD does not provide for any trail closures to facilitate monitoring of trail grooming effects on wildlife, but provides that monitoring will continue. Additionally, beginning in 2003-04, guided passage through the Parks will be required for 80% of snowmobiles. See generally National Park Service Winter Use Plans Record of Decision (March 25, 2003)("2003 ROD"), A.R. 81,461. On August 27, 2003, the Park Service issued a proposed rule to implement the 2003 ROD. Winter Use ...


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