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Greater Yellowstone Coalition v. Kempthorne

September 15, 2008

GREATER YELLOWSTONE COALITION, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, ET AL., DEFENDANTS.
NATIONAL PARKS CONSERVATION ASSOCIATION, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF INTERIOR; NATIONAL PARK SERVICE, DEFENDANTS.



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

MEMORANDUM OPINION

The instant case represents the latest in a series of challenges to the regulations promulgated by the National Park Service ("NPS") concerning snowmobile use in the National Parks. The regulations currently at issue propose new restrictions on recreational snowmobiling in Yellowstone and Grand Teton National Parks and the John D. Rockefeller Jr. Memorial Parkway (collectively "the parks"). There are two plaintiffs in this action. The first is the Greater Yellowstone Coalition, a group of conservation organizations that "take an active interest in maintaining the integrity of the National Park System." This group includes the Sierra Club, the Winter Wildlands Alliance, the Wilderness Society, and the Natural Resources Defense Council (collectively "GYC"). GYC Compl. ¶ 7. The second Plaintiff is the National Parks Conservation Association ("NPCA"), the largest national organization in the United States dedicated to the protection and enhancement of the National Park System. NPCA Compl. ¶ 8. Defendants are the National Park Service, Dirk Kempthorne, in his official capacity as the Secretary of the Interior, Mary Bomar in her official capacity as Director of the National Park Service, and Mike Snyder in his official capacity as Director of the Intermountain Region of the U.S. National Park Service (collectively "NPS").

The new Winter Use Plan ("WUP," "Rule," or "Plan") promulgated by Defendants allows 540 recreational snowmobiles and eighty-three snowcoaches to enter Yellowstone National Park every day. Plaintiffs allege that this number is so high as to render the plan arbitrary and capricious in violation of the Administrative Procedure Act ("APA") and procedurally flawed in violation of the National Environmental Policy Act ("NEPA"). Plaintiffs also claim that the plan violates the NPS Organic Act, the Yellowstone Enabling Act, NPS regulations, and two Executive Orders. Specifically, Plaintiffs' arguments focus on the WUP's substantive and procedural deficiencies as they relate to the plan's impacts on the parks' natural soundscapes, air quality, and wildlife. Agreeing that there are no facts in dispute, Plaintiffs and Defendants have filed cross-motions for summary judgment. The Court held a hearing on the motions on August 27, 2008, and the parties filed short post-hearing briefs. Upon consideration of the motions, the responses and replies thereto, oral argument at the hearing, the post-hearing briefs, the applicable law, and the entire administrative record in this case, the Court GRANTS Plaintiffs' Motion for Summary Judgment and DENIES Defendants' Motion. The 2007 Winter Use Plan, the 2007 Final Environmental Impact Statement ("FEIS"), and the 2007 Record of Decision ("ROD") are hereby vacated and remanded to the agency for proceedings consistent with this opinion.

I. Procedural History

This Court's involvement in the ongoing series of cases regarding Yellowstone's winter management began in 1997 and has continued nearly without pause to the present day. See Fund for Animals v. Norton, 323 F. Supp. 2d 7 (D.D.C. 2004)("FFA II"); Fund for Animals v. Norton, 294 F. Supp. 2d 92 (D.D.C. 2003)("FFA I"); Fund for Animals v. Babbitt, 97-cv-1126 (EGS) (filed May 20, 1997). Over the years, environmental and recreation groups have challenged the Park Service's restrictions on the use of snowmobiles in the parks, with the more recent controversies growing out of a year 2000 Record of Decision ("2000 ROD") which found that the use of snowmobiles at present levels so harmed the integrity of the parks' resources and values that it violated the NPS Organic Act. See Record of Decision, Winter Use Plans for the Yellowstone and Grand Teton National Parks and John D. Rockefeller Jr. Memorial Parkway, 65 Fed. Reg. 80,908, 80,916 (Dec. 22, 2000). In light of this finding, in 2001, NPS published a Final Rule calling for the eventual phase-out of personal snowmobiles in the parks, and instead recommended continued winter access through the use of a snowcoach mass transit system. FFA I, 294 F. Supp. 2d at 100. The "phase-out 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. Id. In response to litigation brought by snowmobile manufacturers and enthusiasts, NPS prepared a Supplemental EIS ("SEIS") in 2003. The SEIS proposed a dramatic change of course. In place of the planned phase-out, NPS set a new limit of 950 snowmobiles per day in Yellowstone.

Id. at 101. Following two lawsuits in this Court and one in the District of Wyoming, NPS put into effect a "Temporary Winter Use Plan" which allowed a daily limit of 720 snowmobiles. Under the temporary plan, all snowmobiles entering the parks were required to meet "best available technology" standards for noise and emissions, and were also required to be accompanied by a commercial guide. This temporary plan was to be in effect for three winter seasons, from 2004 through 2007, and then replaced with a long-term winter use plan in 2007/2008. It is the new long-term plan that is the subject of the instant case.

On September 24, 2007, NPS published its Winter Use Plan Final Environmental Impact Statement ("FEIS"). The complete plan was published in a November 20, 2007 Record of Decision ("2007 ROD"). The 2007 ROD claims to address this "Court's various concerns regarding the winter use 2003 Supplemental EIS" and allows 540 recreational snowmobiles per day, subject to "best available technology" standards, (hereinafter, "BAT"), 100% commercial guiding, and a requirement that all snowmobilers travel in groups of eleven or less. The Rule also requires that all snowcoaches and administrative snowmobiles implement BAT standards by 2011. 2007 ROD at 5. On November 20 and 21, 2007, two lawsuits were filed in this Court by GYC and NPCA, respectively. Both suits allege that the FEIS and 2007 ROD in this case failed to comply with the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA"). On December 18, 2007, NCPA amended its complaint to include a challenge to the 2007 Final Rule, which was published on December 13, 2007. In addition to NEPA and the APA, NPCA contends that the 2007 Final Rule violates the National Park Service Organic Act, and governing Executive Orders and NPS Regulations. The GYC Plaintiffs likewise amended their complaint on January 11, 2008 to also challenge the Final Rule bringing similar claims. The cases were consolidated by Order of this Court on March 19, 2008.

The Plan at issue was selected as one of seven alternatives analyzed in the 2007 FEIS. The alternatives ranged from a "no action" alternative which would have ended all oversnow vehicle ("OSV") use in the parks, to an "expanded recreational use" alternative which would have allowed up to 1025 snowmobiles per day. The details of the Winter Use Plan (also known as "Alternative 7" in the FEIS) are as follows. Recreational snowmobiles are limited to 540 per day in Yellowstone and snowcoaches are limited to eighty-three per day. All snowmobiles must meet Best Available Technology ("BAT") standards for emissions and noise. Snowcoaches and administrative snowmobiles (including park staff and concessionaires) must also meet BAT standards by the 2011-2012 winter season. All snowmobiles must be accompanied by commercial guides and must travel in groups of one to eleven. (Note that an individual snowmobiler and his/her paid guide constitute a "group" under this definition). The plan calls for continuing the "Adaptive Management Program" created under the Temporary Rule to determine if certain goals relating to soundscapes, air quality, and the protection of wildlife are being met. The original plan called for Sylvan Pass, which connects the East Entrance of the Park to Cody, Wyoming, to be closed. However, the ROD was amended July 10, 2008 and now allows for the pass to be open subject to "full avalanche forecasting." Amended 2008 ROD at 3.

On December 13, 2007, the state of Wyoming filed a petition for review of agency action in the U.S. District Court for the District of Wyoming. The petition challenged the 2007 FEIS, 2007 ROD, and 2007 Final Rule, alleging that those actions violate NEPA, the APA, the Organic Act, the Yellowstone National Park Act, and the United States Constitution insofar as they (1) impose daily limits on snowmobile access to Yellowstone (2) impose a commercial guide requirement; and (3) impose a new management scheme for Sylvan Pass. Defs.' Mot. at 9. On January 2, 2008, the Board of County Commissioners of the County of Park filed a nearly identical petition. Id. The two Wyoming cases were consolidated by Order dated February 19, 2008. Id. On February 22, 2008, the International Snowmobile Manufacturers Association, the American Council of Snowmobile Associations, the Blue Ribbon Coalition, and Terri Manning (collectively "ISMA") filed a motion to intervene as plaintiffs in the consolidated Wyoming cases, challenging the 2007 Final Rule's reduced limit of 540 snowmobiles per day in Yellowstone and the commercial guide requirement. Id. ISMA's motion was granted the same day.

On April 24, 2008, this Court denied Federal Defendants' Motion to transfer this case to the District of Wyoming. Greater Yellowstone Coalition, et al. v. Kempthorne, et al., 2008 WL 1862298 (D.D.C. April 24, 2008). On the same day, the Court granted ISMA's Motion to Intervene insofar as it sought to intervene as a Defendant in this case, but denied its motion to assert cross-claims against the Federal Defendants because ISMA is pursuing identical claims against the Federal Defendants as a plaintiff-intervenor in the Wyoming action. Id. at *7. Accordingly, based on principles of comity and the first-to-file rule, the Court found that it must yield to the Wyoming Court's jurisdiction over ISMA's affirmative claims against the NPS.

Id.

II. Legal Standards

1. Administrative Procedure Act

Under the APA, federal agency actions are to be held unlawful and set aside where they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2)(A). While this standard does not empower courts to substitute their judgment for that of the agency, it requires "a thorough, probing, in-depth review" of challenged decisions. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971). Accordingly, an administrative action must be vacated where the agency relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983); see also Daingerfield Island Protective Soc'y v. Babbitt, 40 F.3d 442, 446 (D.C. Cir. 1995) (deference only to "reasoned, permissible construction[s] of ... relevant statute[s]") (internal quotations omitted). Review of an agency action is more demanding where the challenged decision stems from an administrative about-face. "For [an] agency to reverse its position in the face of a precedent it has not persuasively distinguished is quintessentially arbitrary and capricious."

La. Pub. Serv. Comm'n v. FERC, 184 F.3d 892, 897 (D.C. Cir. 1999). Thus, when reversing itself, "[an] agency is 'obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.'" FFA I, 294 F. Supp. 2d at 104 (quoting State Farm, 463 U.S. at 41-42) (emphasis in original). This obligation is all the more pronounced where the agency's reversal is at odds with a clear statutory mandate governing the agency's actions. See id. at 105, 108.

2. National Environmental Policy Act

NEPA generally requires federal agencies to examine the environmental effects of proposed federal actions and to inform the public of the environmental concerns that were considered in the agency's decision making. Citizens Against Rails to Trails v. Surface Trans. Bd., 267 F.3d 1144, 1150 (D.C. Cir. 2001) (citing Baltimore Gas v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983)). Specifically, NEPA requires agencies to prepare an environmental impact statement ("EIS") for all proposals for "major Federal actions significantly affecting the quality of the human environment." Id. (citing 42 U.S.C. § 4332(2)(C)). "Environmental impact statements shall state how alternatives considered in it and decisions based on it will or will not achieve the requirements of [NEPA] and other environmental laws and policies." 40 C.F.R. § 1502.2(d). An EIS must discuss "[p]ossible conflicts between the proposed action and the objectives of Federal ... land use plans, policies and controls for the area concerned," id. § 1502.16(c), and "should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public." Id. § 1502.14. "Such information may cause the agency to modify its proposed action." See, e.g., Natural Res. Def. Council v. Morton, 458 F.2d 827, 831 (D.C. Cir. 1972).

NEPA creates no private right of action and therefore challenges to agency compliance with NEPA must be brought pursuant to the APA, 5 U.S.C. § 551 et seq. Karst v. EPA, 475 F.3d 1291, 1295 (D.C. Cir. 2007). The APA requires "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. Accordingly, persons claiming a right to sue under NEPA must identify some final agency action that adversely affects them. In the NEPA context, the "final agency action" required by the APA must also be "major federal action" under NEPA. Karst, 475 F.3d at 1295. In the instant case, the final rule implementing the WUP, the 2007 ROD, and the 2007 FEIS constitute final agency action such that review under NEPA is appropriate.

3. Governing Statutory Mandates

In addition to the general requirements of the APA and NEPA, NPS is also bound by specific statutory mandates that define the Service's mission and impose independent requirements upon the agency. Plaintiffs challenge the WUP as contrary to the National Park Service Organic Act, the Yellowstone Enabling Act, two Executive Orders and the NPS Snowmobile Regulation.

The NPS was created in 1916 and charged with the duty to promote and regulate the use of the ... national parks, monuments, and reservations hereinafter specified ... by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1. Congress supplemented and clarified these provisions through the General Authorities Act in 1970, and again through enactment of the "Redwood Amendment" in 1978. That Act, as amended, reinforced that management of the parks "shall be consistent with the Organic Act" and declared that the "protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park Service and shall not be exercised in derogation of the values and purposes for which these areas have been established, except as may have been or shall be directly and specifically provided by Congress." Id. The NPS's 2006 Management Policies, which interpret the above directives, designate the Organic Act as "the most important statutory directive for the National Park Service." National Park Service 2006 Management Policies at 1.4.1 ("NPS Policies"), A.R. 120645.*fn1

The Yellowstone Enabling Act, the federal statute governing the agency's administration of Yellowstone, requires that the NPS preserve "from injury or spoliation" the "wonders" of the park and insure "their retention in their natural condition."

16 U.S.C. § 22. The Secretary is also required to "provide against the wanton destruction of the fish and game found within the park, and against their capture or destruction for the purposes of merchandise or profit." Id.

Finally, two Executive Orders specifically address the use of snowmobiles in the Parks. Executive Order 11644, signed by President Nixon in 1972, established procedures for controlling the use of off-road vehicles, specifically including snowmobiles, on public lands. The Executive Order mandated that each agency establish regulations designating specific zones of use for off-road vehicles, and that such chosen areas be located to "minimize harassment of wildlife and significant disruption of wildlife habitats." Exec. Order No. 11644, 37 Fed. Reg. 2877 (Feb. 8, 1972). Executive Order 11989, signed by President Carter in 1977, amended and strengthened the 1972 Order, stating that if an agency head determines that the use of off-road vehicles will cause "considerable adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural or historic resources of particular areas or trails of the public lands" the agency head shall "Immediately close such areas or trails to off-road vehicles." Exec. Order No. 11989, 42 Fed. Reg. 26,959 (May 24, 1977). In response to the Executive Orders, NPS promulgated 36 C.F.R. 2.18(c), which prohibits snowmobiles "except where designated and only when their use is consistent with the park's natural, cultural, scenic and aesthetic values, safety considerations, and park management objectives, and will not disturb wildlife or damage park resources." 36 C.F.R. § 2.18(c).

III. DISCUSSION

1. Statutory Interpretation of Conservation Mandate

As an initial matter, both parties agree that the Organic Act imposes a "conservation mandate" upon NPS, and that that mandate is articulated in § 1.4.3 of the 2006 NPS Policies. However, the parties disagree over precisely what the mandate requires and when it is triggered. Section 1.4.3 provides, in its entirety,

The fundamental purpose of the national park system, established by the Organic Act and reaffirmed by the General Authorities Act, as amended, begins with a mandate to conserve park resources and values. This mandate is independent of the separate prohibition on impairment and applies all the time with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired. NPS managers must always seek ways to avoid, or to minimize to the greatest extent practicable, adverse impacts on park resources and values. However, the laws do give the Service the management discretion to allow impacts to park resources and values when necessary and appropriate to fulfill the purposes of the park, so long as the impact does not constitute impairment of the affected resources and values.

The fundamental purpose of all parks also includes providing for the enjoyment of park resources and values by the people of the United States. The enjoyment that is contemplated by the statute is broad; it is the enjoyment of all the people of the United States and includes enjoyment both by people who visit the parks and by those who appreciate them from afar. It also includes deriving benefit (including scientific knowledge) and inspiration from the parks, as well as other forms of enjoyment and inspiration. Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. This is how courts have consistently interpreted the Organic Act.

NPS Policies, § 1.4.3.

Relying on the above passage, NPS argues that the conservation mandate of the Organic Act is only triggered when the impacts from a particular use rise to the level of "unacceptable impacts." See Hearing Transcript, 95, August 27, 2008 (hereinafter "Transcript"). Defendants paraphrase the mandate as follows: "[i]f unacceptable impacts are found, the Service deems the proposed use of park recourses to be in conflict with their conservation and therefore prohibits the proposed use." Fed. Defs.' Supp. Brief at 4. Applying this theory to the instant case, Defendants argue that because NPS has determined that the impacts of snowmobiling are "acceptable," then there is no "conflict" between conservation and use, and therefore the requirement that conservation predominate is not implicated. See id.; see also Transcript, 95. NPS reasons that the above-referenced "management discretion to allow impacts" encompasses the decision to allow the WUP's admittedly adverse impacts to the parks' natural soundscape, air quality, and wildlife, because those impacts do not conflict with conservation.

At the hearing, NPS argued that the adverse impacts of snowmobiling are acceptable because the Organic Act allows adverse impacts if they are unavoidable and appropriate. Government counsel offered the following in support of this argument. "A good analogy here is on these battlefield parks where a tree will block a vista and it's important to restore that vista, that tree being a national resource, will nonetheless be removed, and that is an unavoidable impact, but it is an appropriate impact. That what the fourth sentence [of the Policies] is about, so it doesn't limit the Park Service's discretion to allow impacts in the way that the plaintiffs think it does." Transcript, 97.

Plaintiffs strenuously disagree with this characterization of the Organic Act. While recognizing that the NPS has broad discretion to carry out its mission, Plaintiffs contend that the WUP impermissibly permits adverse impacts to park resources merely to provide another form of recreation. NPCA Mot. at 41. Plaintiffs argue that unlike removing a tree to restore a vista, NPS has not explained how snowmobiling is "necessary and appropriate to fulfill the purposes of the park" such that the adverse impacts are acceptable, nor have they explained how the Plan seeks "ways to avoid, or to minimize to the greatest extent practicable, adverse impacts on park resources and values." NPS Policies, § 1.4.3.

Plaintiffs point out that under the temporary use plan in place over the past three years, NPS's own "adaptive management thresholds" for air quality and soundscape protection have been exceeded on multiple occasions without generating a response from NPS. See GYC Mot. at 21. Plaintiffs argue that because actual daily use under the temporary plan has averaged only between 260-290 snowmobiles, and NPS's own thresholds for noise and air pollution have been exceeded in spite of the low numbers, allowing up to 540 snowmobiles per day will effectively double the environmental harms seen under the temporary plan. Plaintiffs insist that this result cannot be squared with the Organic Act, regardless of how NPS chooses to define "conflict."

The Court agrees. The Organic Act clearly states, and Defendants concede, that the fundamental purpose of the national park system is to conserve park resources and values. Section 1.4.3 of the NPS Policies, which provides the NPS's official interpretation of the Organic Act, states that "conservation is to be predominant."

Defendants claim that the Act "establishes the fundamental purposes of conservation and enjoyment, but is silent as to how those two purposes should be analyzed." Fed. Defs.' Supp. Brief at 1. While it is true that the Act is "silent as to the specifics of Park management," Davis v. Latschar, 202 F.3d 359, 365 (D.C. Cir. 2000), Defendants' own official interpretation of the Organic Act explicitly instructs NPS on how to balance conservation and enjoyment. Namely, in the case of a conflict, "conservation is to be predominant." NPS Policies, § 1.4.3. Moreover, while it is true that "enjoyment" is also a fundamental purpose of the parks, enjoyment is qualified in the Organic Act in a way that conservation is not. The Organic Act charges NPS with the duty to "provide for the enjoyment" of the parks' resources and values in "such manner and by such means as will leave them unimpaired for the enjoyment of future generations." 16 U.S.C. § 1. This is not blanket permission to have fun in the parks in any way the NPS sees fit. As Plaintiffs articulated at the hearing, the "enjoyment" referenced in the Organic Act is not enjoyment for its own sake, or even enjoyment of the parks generally, but rather the enjoyment of "the scenery and natural and historic objects and the wild life" in the parks in a manner that will allow future generations to enjoy them as well. Id. Accordingly, while NPS has the discretion to balance the "sometimes conflicting policies of resource conservation and visitor enjoyment in determining what activities should be permitted or prohibited," S. Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 826 (10th Cir. 2000), that discretion is bounded by the terms of the Organic Act itself. NPS cannot circumvent this limitation through conclusory declarations that certain adverse impacts are acceptable, without explaining why those impacts are necessary and appropriate to fulfill the purposes of the park. See NPS Policies, § 1.4.3.

The limits on NPS's discretion have been recognized by this Circuit. In Daingerfield, this Circuit upheld the NPS's choice of an interchange design that NPS had concluded "would have the least deleterious effect on the environment." 40 F.3d at 446. The Court noted that the Organic Act "gives the Park Service broad, but not unlimited discretion in determining what actions are best calculated to protect Park resources." Id. (emphasis added). While not explicitly holding that NPS is required to choose the least deleterious option, the Circuit did cite with approval to the District Court's observation that "the only choice left to the Park Service was to approve the least intrusive interchange possible, which it did, or refuse to approve any interchange at all." Id. at n.3. Accordingly, at the very least, NPS is required to exercise its discretion in a manner that is "calculated to protect park resources" and genuinely seeks to minimize adverse impacts on park resources and values. See Daingerfield, 40 F.3d at 446; NPS Policies, § 1.4.3.

Many courts before this one have interpreted the Organic

Act to require as much. See Bicycle Trails of Marin v. Babbitt, 82 F.3d 1445, 1453 (9th Cir. 1996) (The "overarching concern" of the Organic Act is "resource protection."); Edmunds Inst. v. Babbitt, 42 F. Supp. 2d 1, 16 (D.D.C. 1999)(citing cases interpreting Organic Act "amendments to reflect a renewed insistence on the part of Congress that the national parks be managed in accordance with the primary purpose of the [Act], namely the conservation of wildlife resources."); Nat'l Rifle Ass'n of Am. v. Potter, 628 F. Supp. 903, 909 (D.D.C. 1986) ("In the Organic Act, Congress speaks of but a single ...


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