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Fund for Animals v. Norton

September 24, 2007

THE FUND FOR ANIMALS, 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

In 2004, plaintiffs The Fund for Animals, Bluewater Network, Walt Farmer, George Wuerthner, and Richard Meis filed suit challenging the National Park Service's ("NPS") 2004 Temporary Winter Use Management Plan for Yellowstone National Park ("2004 Temporary Winter Use Plan") and the denial of Bluewater Network's 1999 Rulemaking Petition. Pending before the Court is plaintiffs' Renewed Motion for Summary Judgment and Request for Further Proceedings. Upon careful consideration of the motion, the response and reply thereto, supplemental briefing on whether this case is moot, the applicable statutes and rulemaking, and the entire record, the Court DENIES plaintiffs' motion and DISMISSES this case with prejudice.

I. BACKGROUND

Plaintiffs filed an Amended Complaint in this case on December 15, 2004, which raises four claims. The first three claims relate to NPS's 2004 Temporary Winter Use Plan.

Plaintiffs' Claim Four challenges the Department of the Interior's ("DOI") denial of Bluewater Network's Rulemaking Petition seeking a ban on snowmobiling in all national parks.

Litigation related to the use of snowmobiles and impact of trail grooming in Yellowstone National Park, Grand Teton National Park, and the John D. Rockefeller, Jr. Memorial Parkway (collectively, "Yellowstone" or "the Parks") has been ongoing for more than ten years. This Court's previous decision in Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003), details the history of litigation and rulemaking preceding the 2004 Temporary Winter Use Plan. The 2003 decision also provides background on how Bluewater Network's 1999 Rulemaking Petition was handled prior to this lawsuit. Below is a brief summary of the background of the 2004 Temporary Winter Use Plan and Bluewater Network's 1999 Rulemaking Petition that is relevant to the current lawsuit.

A. 2004 Temporary Winter Use Plan

On November 10, 2004, NPS published its Final Rule regulating winter use in the Parks. See 69 Fed. Reg. 65,348 et seq. (Nov. 10, 2004) (codified at 36 C.F.R. pt. 7). The Rule, or 2004 Temporary Winter Use Plan, became effective on December 10, 2004. Id. at 65,348. The Rule, which provides guidelines for winter use of snowmobiles and snowcoaches in the Parks, indicated that it would only manage winter visitation and recreational use in the Parks for up to three winter seasons, with the 2006-2007 winter season being the last season. Id. at 65,348; 36 C.F.R. §§ 7.13(l)(3)(ii), 7.13(l)(4)(vii), 7.21(a)(3)(ii), 7.21(a)(4)(vii), 7.22(g)(3)(ii). By its own terms, therefore, the Rule authorizing snowmobile and snowcoach use in the Parks expired in March 2007 with the end of the 2006-2007 winter season. For each of the three winter seasons from 2004-2005 through 2006-2007 when the Rule was in effect, Congress enacted appropriations bills for the Department of the Interior that included a provision indicating that NPS's 2004 Temporary Winter Use Plan found in 69 Fed. Reg. 65,348 et seq. would be in force and effect for the relevant winter season. See Pub. L. No, 108-447, § 146, 118 Stat. 2809, 3074 (2004); Pub. L. No. 109-54, § 126, 119 Stat. 499, 525 (2005); Pub. L. No. 109-383, § 135 (2006); Pub. L. No. 110-5, § 20516, 121 Stat. 8, 27 (2007); see also 72 Fed. Reg. 27,499, 27,501 (proposed May 16, 2007) (to be codified at 36 C.F.R. pt. 7) ("Congress has three times included language in appropriations legislation for the Department of the Interior requiring that the temporary winter use rules remain in effect for the winter seasons of 2004-2005, 2005-2006, and 2006-2007.").

B. Bluewater Network's Rulemaking Petition

In January 1999, plaintiff Bluewater Network and other organizations submitted a Rulemaking Petition to the Department of the Interior asking DOI to issue regulations prohibiting trail grooming and recreational snowmobiling throughout the entire National Park System. After a year-long review of the environmental impact of snowmobiling on National Parks' resources and several reports, DOI issued an agency memorandum in April 2000 concluding that a favorable response to the Rulemaking Petition was warranted. The memorandum proposed that "all parks which currently allow recreational snowmobile use under a special regulation . . . should repeal these special regulations immediately and halt recreational snowmobile use." Mem. from Donald Berry, Assistant Sec'y for Fish and Wildlife and Parks at 4 (Apr. 26, 2000) ("Berry Memorandum"), A.R. 600076. In late September 2002, NPS began preparing a rule that would repeal general regulations allowing parks to promulgate Special Regulations governing snowmobile use. The rule was supposed to "'bring the Service into compliance'" with governing regulations. See Fund for Animals, 294 F. Supp. 2d at 102 (quoting Draft Proposed Rule, Snowmobile Use Within the National Park System (Sept. 21, 2000)). The Draft Proposed Rule was never issued. Moreover, until ordered to do so by this Court, no one at DOI even responded to Bluewater Network's Rulemaking Petition.

On February 17, 2004, Assistant Secretary for Fish and Wildlife and Parks Craig Manson, on behalf of the Department of the Interior, formally denied Bluewater Network's Rulemaking Petition. See Letter from Craig Manson to Russell Long and attached Mem. from Craig Manson, Assistant Sec'y for Fish and Wildlife and Parks (Feb. 17, 2004) ("Manson Memorandum"), A.R. 106216-106221. Although DOI acknowledges in the Manson Memorandum that DOI originally determined in the Berry Memorandum that the Rulemaking Petition should be granted, DOI ultimately reversed its position. In the Manson Memorandum, DOI indicated that it prefers to address the regulation of snowmobiles and road grooming on a park-by-park basis as opposed to issuing a global prohibition on recreational snowmobile use and road grooming for snowmobiles. The Manson Memorandum also notes that snowmobiles now are using newer technology than they did in 2000 and therefore have less adverse impact on park resources. The Manson Memorandum further indicates that there is no reason to believe that current Executive Orders and regulations are inadequate and that the primary problem is "compliance with existing regulations, not the regulations themselves." A.R. 106221. Finally, the Manson Memorandum states that DOI has decided to first focus on Yellowstone and Grand Teton National Parks and learn from the final decisions related to those parks before considering general changes in the regulation of recreational snowmobile use in other parks.

II. ANALYSIS

A. Challenge to Expired Winter Use Plan

In Claims One through Three of their Amended Complaint, plaintiffs allege that the 2004 Temporary Winter Use Plan violates this Court's previous orders, the Organic Act, the Yellowstone Act, the National Environmental Policy Act, the Endangered Species Act, and the Administrative Procedure Act. As discussed below, all claims ...


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