The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiffs Bluewater Network, The Wilderness Society, Enid Sisskin, and Robert Goodman (collectively, "Plaintiffs") brought this action against Kenneth Salazar, Secretary of the Department of the Interior, and Daniel Wenk, Deputy Director of the National Park Service ("NPS") (collectively, "Defendants"). Shortly after the Complaint was filed, six parties--Personal Watercraft Industry Association, American Watercraft Association, Carmen Perry, Richard Chenoweth, Michael Soder, and William Manson--were added as Defendant-Intervenors (collectively, "Intervenors"). Plaintiffs seek to ban the re-introduction of personal watercraft ("PWCs" or "jetskis") in two national parks--Gulf Islands National Seashore ("Gulf Islands" or "GUIS") along the Gulf Coast of Florida and Mississipi and Pictured Rocks National Lakeshore ("Pictured Rocks" or "PIRO") in Michigan.
Plaintiffs challenge Defendants' actions pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. Specifically, they argue that NPS' decision to allow jetskis back into these two parks after banning them under both a national rule and park-specific decisions represents arbitrary and capricious conduct under the APA. Further, Plaintiffs maintain that the decisions run afoul of the National Park Service Organic Act ("Organic Act"), 16 U.S.C. § 1 et seq., violate the procedural requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the terms of a settlement agreement ("Settlement Agreement" or "Agreement") entered into by parties subsequent to an earlier round of litigation involving these two parks. Bluewater Network v. Stanton, Civ. No. 00-02093 ("Bluewater I").
Bluewater contends that the Environmental Assessments ("EA") prepared by NPS to analyze the impacts of PWCs in each park unreasonably concluded that jetski use is permissible. Further, they take issue with the agency's "findings of no significant impact" ("FONSI"), the final Rule promulgated for each park, each of which agreed with the EAs' conclusions that PWC use would not impair GUIS or PIRO, and the resulting lifting of the ban on operating PWCs in the parks.
Plaintiffs filed this case on May 15, 2008, challenging the re-introduction of PWCs into PIRO and GUIS. Intervenors--six individuals and organizations "with direct and substantial organizational, financial, and personal interest in maintaining existing authorized PWC use in these two park units," Mot. to Intervene at 1 [Dkt. No. 8]--were added as Defendants on August 19, 2008. Order (Aug. 19, 2008). Intervenors filed a Motion for Partial Summary Judgment ("Standing Mot.") on October 15, 2008, which challenged Plaintiffs' standing to object to the Rule at Pictured Rocks. [Dkt. No. 18]. Those arguments were incorporated into their Motion for Summary Judgment ("Intervenors' Mot.") [Dkt. No. 27], filed February 2, 2009. Intervenors' Motion became ripe on March 20, 2009. Plaintiffs also filed a Motion for Summary Judgment [Dkt. No. 24], on December 18, 2008, which became ripe February 27, 2009. Finally, the original Defendants filed their own Motion for Summary Judgment ("Defs.' Mot.") [Dkt. No. 29] on February 6, 2009, which became ripe on March 20, 2009. Parties presented oral arguments at a Motions Hearing on May 17, 2010.
Upon consideration of the Motions, Oppositions, Replies, lengthy oral argument, and the entire record herein, and for the reasons stated below, Intervenors' Standing Motion for Partial Summary Judgment is granted in part and denied in part, Plaintiffs' Motion for Summary Judgment is granted in part and denied in part, Defendants' Motion for Summary Judgment is granted in part and denied in part, and Intervenors' Motion for Summary Judgment is granted in part and denied in part.
In reaching these conclusions, the Court has examined in detail NPS' reasoning and how it arrived at the conclusions it reached, in light of the factual premises relied upon. In particular, the Court has asked whether NPS examined the relevant data and if it provided a rational and logical connection between the facts found and the policy choices made. But even apart from this probing, in-depth review, this case presents an additional overarching question. Why has NPS issued Rules allowing jetski use in two beautiful and pristine national parks, acknowledging that such use will impact, to varying degrees, water quality, air quality, wildlife, animal habitats, soundscapes, visitor use and safety, etc., when the users of jetskis are perfectly free to enjoy their vehicles in other, equally accessible areas, without threatening the serenity, the tranquility--indeed, the majesty--of these two national treasures?
Jetskis are "high performance vessels designed for speed and maneuverability and are often used to perform stunt-like maneuvers." 65 Fed. Reg. 15,078. Their "rapid maneuvering and frequent speed changes" cause the engine speed to "rise and fall," which creates a sound whose pitch varies. GUIS--00174; see PIRO-00024. According to NPS, "this constantly changing sound is often perceived as more disturbing than the constant sound from motorboats." Id. Plaintiffs cite studies showing that such noise significantly mars visitors' experience of the parks. Pls.' Mot. at 8. The EAs acknowledge that PWCs can "disrupt the 'passive' experience of park resources and values." GUIS-00174; PIRO-00024. Improvements to engine technology--including transition from two-stroke engines to four-stroke and direct-injection two-stroke engines--are expected to reduce PWCs' impacts on noise and pollution. Id. at 00172-74; PIRO-00023-24.
Historically, PWCs have been permitted in the National Park System. In the 1990s, however, PWC use began to increase. In response, NPS proposed a rule ("National Jetski Rule") in 1998, which became final on March 21, 2000, banning PWC use in all parks except 21 parks with a history of prior jetski use. 65 Fed. Reg. 15,077-080; 36 C.F.R. § 3.9. These 21 excepted parks, which include the two parks at issue in this case, were given a two-year grace period to develop and implement park-specific regulations that would allow PWC use;*fn3 if they decided not to take any action, the ban would go into effect upon expiration of the grace period on April 22, 2002. 65 Fed. Reg. at 15,078.
After the National Jetski Rule was issued, Bluewater Network and other environmental groups became concerned that the Rule was not sufficiently protective of the 21 excepted parks.*fn4 Defs.' Mot. at 3. They brought suit against NPS, which resulted in the Settlement Agreement approved by this Court on April 11, 2001. Bluewater I, Order (Apr. 11, 2001). Under the terms of the Settlement Agreement, if a park excepted from the national ban wished to permit PWC use after expiration of the grace period, it was required to promulgate a park-specific regulation on PWC use. Defs.' Mot. at 3-4. For such parks, the national ban would continue to apply from expiration of the grace period on April 22, 2002, until issuance of a park-specific regulation allowing PWC use if such Rule was issued. The Agreement also required parks permitting PWC use to comply with NEPA.
A. Pictured Rocks National Lakeshore
Pictured Rocks is located along the southern shore of Lake Superior in the north-central section of Michigan's Upper Peninsula. The surrounding region is a "sparsely populated area" of the Peninsula. PIRO-00021. In the Pictured Rocks EA, Defendants describe the park as a "year-round recreational destination where hiking, camping, hunting, nature study, and winter activities abound." Id. at 00015. The park features "multicolored sandstone cliffs, beaches, sand dunes, waterfalls, inland lakes, wildlife and forested shoreline" as well as "a lighthouse . . . former Coast Guard life-saving stations . . . old farmsteads and orchards." Id.
In NPS' own words, the park is significant because in part its "shoreline offers extraordinary and inspirational scenic vistas of Lake Superior, the largest body of surface area of fresh water on earth." Id. at 00021. Additionally, PIRO boasts rock cliffs "unmatched in their scenic value," "[t]welve miles of unspoiled and undeveloped . . . beach," and "a spectrum of cultural resources," among other unique attractions. Id.
PWC use was first permitted in the park around 1990. In the past, PWCs were permitted along the entire shoreline of the park, but only within a quarter-mile boundary of the shore, and were regulated in the same manner as other motorized watercraft. In 1998, Michigan passed the Michigan Personal Watercraft Safety Act. MICH. COMP. LAWS § 324.80209 (1998). That statute imposes wake, location, and depth restrictions on PWC use throughout the state. NPS incorporates the statute's provisions into its policies governing PWC use at Pictured Rocks. PIRO-00034. The Michigan legislation requires PWCs to travel at slow, no-wake speeds within 200 feet of shoreline, and refrain from traveling within 100 feet of "a dock, raft, or buoyed or occupied bathing or swimming area, a person in the water or on the water in a personal flotation device, or a vessel moored, anchored, drifting, or sitting in dead water," unless traveling at no-wake speed. Id. There are additional restrictions regarding proximity to divers and diving vessels.*fn5 Id.
C. Gustin issued a Compendium ("Superintendent's Compendium")*fn6
After the National Jetski Rule was promulgated in 2000, PIRO was given a two-year grace period to develop a park-specific rule governing PWC use. On February 7, 2002, Park Superintendent Karen closing the park to all PWC use. PIRO-03615 (Ex. 3 to Pls.' Mot.). Consequently, as provided for in the National Rule, when the grace period expired in April 2002, PWCs were banned at PIRO.
That same year, 2002, NPS conducted an Environmental Assessment ("EA") to analyze the impact of PWCs on the park. The EA considered three alternatives: Alternative A examined PWC use at the same level that existed before the national ban; Alternative B examined limited PWC use; and Alternative C, the no-action alternative, examined the impact of prohibiting all PWC use at PIRO.
Guided by Director's Order #12: Conservation Planning, Environmental Impact Analysis and Decision-making, NPS analyzed the impacts of each alternative on park resources in terms of their context, duration, and intensity. PIRO-00006. Impacts were measured on a number of "impact topics," including water quality, air quality, soundscapes, wildlife and wildlife habitat, threatened or endangered species or species of special concern, shoreline vegetation, visitor experiences, visitor conflicts and safety, cultural resources, socioeconomic effects, conflicts with state and local regulations, and management operations. Id. at 00007-08. For each topic, NPS described "guiding regulations and policies" before setting forth its methodology for assessing the alternatives. Id. at 00006-07. Then, each alternative was compared to a baseline.*fn7 For PIRO, that baseline was represented by Alternative A (i.e. the continuation of PWC use at pre-ban levels); the EA projected impacts under this alternative, and each of the others, over the next ten years. Id. at 00007.
When the EA was completed, NPS held a public review and comment period. Based on the comments submitted, NPS issued an errata to the EA, reducing the area that would be open for PWC use under Alternative B. NPS concluded that Alternative B was the best option for protecting the park's resources and visitors, while still permitting a range of recreational activities. NPS also declined to prepare a full "environmental impact statement" ("EIS")--as required by NEPA in certain circumstances--and instead issued a FONSI in September 2005, as required by Council of Environmental Quality ("CEQ") regulations.
NPS then began its rulemaking process, publishing a proposed rule in the Federal Register for public comment from November 15, 2004, to January 14, 2005. In October 2005, NPS issued its Final Rule ("Pictured Rocks Rule"),*fn8 which re-authorized PWC use, as described in Alternative B; however, the use was restricted to an eight-mile segment of the park's 42-mile shoreline. 70 Fed. Reg. 61,896. The Pictured Rocks Rule also required that PWCs be launched from only one designated site, and prohibited PWC use within 200 feet of the shoreline unless traveling at a slow enough speed so that no wake was created.
B. Gulf Islands National Seashore
GUIS is located in the northeastern section of the Gulf of Mexico and consists of a 160-mile expanse of barrier islands and waters from the eastern end of Santa Rosa Island in Florida to Cat Island in Mississippi. Within the park are "snowy-white beaches, sparkling blue waters, fertile coastal marshes, and dense maritime forests" as well as "19th century forts . . . shaded picnic areas . . . winding nature trails, and . . . comfortable campgrounds." GUIS-00150. Additionally, visitors can enjoy GUIS' "regionally important ecological sites," the endangered species that are present in several areas, and "[s]everal mostly undisturbed, natural areas in close proximity to major population areas." Id. at 00169.
GUIS was the most heavily visited seashore in the national park system at the time that the EA was produced in 2004. It was also one of the ten most visited areas in the entire national park system, welcoming an average of 4.9 million people per year. Id. at 00252. According to enabling legislation, NPS must preserve Gulf Islands "for public use and enjoyment [of] certain areas possessing outstanding natural, historic, and recreational values."*fn9 16 U.S.C. § 459h(a). Park visitors operate a variety of watercraft, including "ski boats, personal watercraft, runabouts, day cruisers, sailboats, houseboats, canoes, kayaks, and rowboats." Id. at 00306. In addition to the presence of these watercraft, visitors can expect to encounter "military over flights, commercial fishing boats, [and] large ships," because of the military and commercial areas which are nearby. Id.
The park is divided into two management districts, one in Florida and one in Mississippi. In the past, PWC use was allowed in the park, under the same regulations as other motorized watercraft. Most PWC use, however, occurred in Pensacola Bay, in the Florida district, because the waters there were more sheltered and closer to residences with launching facilities than in the Mississippi district.
Under the National Jetski Rule, the GUIS Superintendent initially planned to permit PWC use, regulated through local rules contained in the park's Superintendent's Compendium. The Settlement Agreement, however, required GUIS to issue a special regulation, and to conduct NEPA review, if PWC use was to continue.
In 2001, GUIS management conducted a study of the effects of PWC use within the park. GUIS-00151. The findings of that study were reported in October of 2001 in an Administrative Determination ("2001 Determination") issued by the Gulf Islands Superintendent. The Determination supported a ban on PWC use in the park, id. at 00079, concluding that "PWC use is an inappropriate activity at Gulf Islands National Seashore" Id. The Determination was supported by findings that PWC use negatively impacted the water quality, wildlife, and enjoyment of the park by other visitors at GUIS. Id. at 00073-77.
After the PWC national ban went into effect in April 2002, NPS conducted an EA to further consider the impact of PWCs in the park. In January 2006, the agency issued a FONSI.
The EA considered three alternatives, which were similar to those considered in the Pictured Rocks EA: a no-action alternative which would continue the ban on PWCs and would not require promulgation of any special regulation; Alternative A, which would again allow PWC use in the park at the same level that existed before the national ban; and Alternative B, which would also reinstate PWC use, but would further limit it through issuance of certain restrictions. GUIS-00151.
NPS then evaluated the impacts of each alternative using a framework nearly identical to the one used in the Pictured Rocks EA.*fn10 At GUIS, NPS considered the impacts on water quality; human health and airborne pollutants related to PWC use; air quality related values from PWC pollutants; soundscapes; shoreline and submerged aquatic vegetation; wildlife and wildlife habitat; aquatic fauna; threatened, endangered, and any other special status species; visitor use and experience; visitor conflicts and safety; cultural resources; socioeconomic effects; conflicts with state and local ordinances and policies; and impact on park operations from increased enforcement needs. GUIS-00155. After completing the EA, NPS again altered course and concluded that PWC use should be permitted in the park, pursuant to the restrictions contained in Alternative B.
This conclusion of the EA restricted PWC use to operating the watercrafts only at speeds that would not create any wake within 300 yards of the shoreline, or within one-half mile of islands with designated wilderness. PWCs would also be completely prohibited within 200 yards of non-motorized watercraft and people in the water. The proposed rule was published for public comment from March 17, 2005, to May 16, 2005. On May 4, 2006, NPS issued a final rule ("Gulf Islands Rule"), once again permitting PWC use in the park, subject to the limits described. 71 Fed. Reg. 26,232.
"The arbitrary and capricious standard [of the APA] is a narrow standard of review." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). It is well established in our Circuit that "[t]his court's review is . . . highly deferential" and "we are 'not to substitute [our] judgment for that of the agency' but must 'consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.'" Bloch v. Powell, 348 F.3d 1060, 1070 (D.C. Cir. 2003) (citations and internal quotation marks omitted); see also United States v. Paddack, 825 F.2d 504, 514 (D.C. Cir. 1987). However, this deferential standard cannot be used to shield the agency's decision from undergoing a "thorough, probing, in-depth review" by the Court. Midtec Paper Corp. v. United States, 857 F.2d 1487, 1499 (D.C. Cir. 1988) (internal citations and quotations omitted). District courts must "determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Mainella, 459 F. Supp. 2d at 90 (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)).
An agency satisfies these standards if it "examine[s] the relevant data and articulate[s] a satisfactory explanation for its action," Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), and if there is "a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 88 (1983).
Summary judgment will be granted when there is no genuine issue as to any material fact. See Fed. R. Civ. P. 56(c). Because this case involves a challenge to a final administrative decision, the Court's review on summary judgment is limited to the administrative record. Holy Land Found. for Relief and Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973)); Richards v. Immigration & Naturalization Serv., 554 F.2d 1173, 1177 (D.C. Cir. 1977) ("Summary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based upon the administrative record.").
The dispute in this case involves two distinct legal issues. First, Intervenors advance the threshold argument that Plaintiffs have no standing to challenge the Pictured Rocks Rule permitting jetskis to be re-introduced to that park. Second, Plaintiffs challenge the agency's decisions to pass regulations allowing limited jetski use in these two parks. In their three-count Complaint, Plaintiffs allege that those decisions violated the NPS Organic Act, NEPA, and the Settlement Agreement.
Plaintiffs "[invoke] federal jurisdiction" in this case, and therefore bear the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because standing is "not [a] mere pleading requirement but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof." Id. At the summary judgment stage, "the plaintiff can no longer rest on . . . 'mere allegations,' but must 'set forth' . . . 'specific facts,' which for purposes of the summary judgment motion will be taken to be true." Id. (quoting Fed. R. Civ. P. 56(e)).
Plaintiffs claim standing to challenge the Pictured Rocks Rule based on the visit of Plaintiff Robert Goodman to the park before issuance of the Rule re-authorizing PWC use at Pictured Rocks. Compl. ¶¶ 6-7. In his declaration, Goodman identifies himself as a Michigan resident, living near Detroit, about 400 miles from Pictured Rocks. Goodman Decl. at ¶¶ 1, 5 (Ex. 2 to Pls.' Opp'n to Standing Mot. ("Pls.' Standing Opp'n")) [Dkt. No. 19-3]. He is an avid kayaker, who takes frequent kayaking trips. Id. at ¶¶ 2-4. He has visited Pictured Rocks only once, in the mid-1990s. Id. at ¶ 5. While there, his enjoyment of the area was diminished by the noise and wake created by PWC use. Id. at ¶ 6. He "decided that [he] would not return to be faced with more Jetskis there." Id. If they are banned, however, he indicates he will be more likely to return to Pictured Rocks, possibly during a sea kayaking symposium at a site "immediately adjacent to Pictured Rocks," or on his own, but not for another two summer seasons because of plans he has already made. Id. at ¶ 8.
Intervenors argue that Plaintiffs lack standing to challenge PWC use at Pictured Rocks, based on Goodman's single trip to the park, before existence of the current Rule, with no concrete plans to return. Standing Mot. at ¶¶ 5-10.*fn11 They also dispute Plaintiffs' argument that Goodman has standing in this suit to enforce the Bluewater I Settlement Agreement to which he is a party. Intervenors' Reply at 24.
It is well established that standing consists of three elements: (1) "injury in fact," or "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent;" (2) "a causal connection," showing that the injury is "fairly traceable to the challenged action of the defendant;" and (3) "that it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-61 (internal citations and quotations omitted); see also Newdow v. Roberts, 603 F.3d 1002, 1009-10 (D.C. Cir. 2010).
Bluewater brings suit on behalf of its members. Compl. ¶ 4. "[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). Additionally, injury to aesthetic and recreational enjoyment is "a cognizable interest for purposes of standing." Lujan, 504 U.S. at 562-63. "Only one [Plaintiff] needs to have standing to permit" the Court to resolve Plaintiffs' claims. Massachusetts v. EPA, 549 U.S. 497, 518 (2007). In this case, the one Plaintiff offered is Robert Goodman.
1. Plaintiffs Cannot Establish "Injury in Fact" Under their Statutory Claims
Intervenors dispute only the "injury in fact" element of the standing test. Standing Mot. at ¶ 5. As already noted, that injury must be concrete and particularized, and actual or imminent. Goodman's sole visit to the park in the mid-1990s provides the basis for Plaintiffs' assertion of standing. The Supreme Court has found that, "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974). The Court applied this principle in Lujan, and concluded that plaintiffs could not establish that a change in an agency's interpretation of the Endangered Species Act would produce "imminent" injury because even though the individuals had visited the affected area in the past, they had no firm plans to return. 504 U.S. at 564.
Similarly, in this case, Goodman visited Pictured Rocks in the past, many years before filing the instant suit. His single visit was allegedly marred by others' PWC use. In his declaration, he claims that he travels significant distances to kayak, and has done so since the mid-1990s in order to enjoy parks near Pictured Rocks. Goodman Decl. at ¶¶ 3-5. However, it is of great significance that he has not re-visited PIRO, even though there was a PWC ban in place for more than three years before 2005. Id. at ¶ 7. He states that if the ban were imposed again, he would "return to the Lakeshore within two summer seasons." Additionally, he has plans to travel to the area as part of a kayaking symposium. Even if the ban were in effect at that time, he can only say that he would "be more likely" to participate in day trips to kayak at Pictured Rocks. Id. at ¶ 8.
Goodman's use of the park, and alleged injury, bears a strong resemblance to the injury that the Supreme Court rejected in Lujan. In both instances, a single earlier visit to a region was the source of the injury. See Lujan, 504 U.S. at 563-64 (describing that two plaintiffs each took single trip). Further, in each case, those parties failed to return to the region. One Lujan plaintiff, when asked of plans to return, stated that she planned to return, but did not have any concrete plans to do so. Id. Likewise, Goodman states an intention to return, and has claimed that he would do so within two years, but does not indicate any concrete plans. Goodman Decl. at ¶ 8. He has had ample opportunity to do so, as he travels in the area to kayak. Even when a PWC ban was in place for several years, he chose not to visit PIRO. Such facts indicate that the injury is not, in this case, actual or imminent. Standing does not exist where "'some day' intentions--without any description of concrete plans, or indeed even any specification of when the some day will be" make up the basis of the "actual or imminent" injury being alleged. Lujan, 504 U.S. at 564.
Plaintiffs argue that Goodman's situation is more analogous to that of the plaintiffs in Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167 (2000), whose visits to a polluted South Carolina river were found to be sufficient to establish an injury in fact for standing purposes. See id. at 183. That case, however, presented very different facts. There, plaintiffs made frequent visits to the site. They lived near the river, and came into contact with it regularly; as a result, they continuously were exposed to its polluted waters and the spoiled natural environment, thereby establishing an actual injury in fact. Id. at 181-83. In Laidlaw, the challenged illegal activity "directly affected affiants' recreational, aesthetic, and economic interests." Id. at 183-84.
In the instant case, Goodman's one visit to Pictured Rocks is a far cry from the frequent and ongoing contacts found to be sufficient in Laidlaw. Of course, "standing does not depend on the size or quantum of harm to the party." Animal Welfare Inst. v. Comm. for Humane Legislation, Inc., 561 F.2d 1002, 1008 (D.C. Cir. 1977). Nevertheless, where, as here, an individual has made only one visit, has no firms plans to return, has no ongoing connection with the park, and has bypassed opportunities to visit when he was in the area, the claim of an "actual and imminent" injury must be rejected.*fn12
2. Plaintiffs Have Standing to Enforce the Terms of the Settlement Agreement Based on Goodman's Status as a Plaintiff in Bluewater I
Plaintiffs also argue that because Goodman was a plaintiff in Bluewater I, and because he is a party to the Settlement Agreement reached in that case, he has standing to enforce its provisions in this case. Pls.' Standing Opp'n at 14 n.6; Pls.' Reply at 23; see also Berger v. Heckler, 771 F.2d 1556, 1564 (2d Cir. 1985) (permitting a plaintiff to sue to enforce a consent decree under "basic contract principles"); City of New York v. Dep't of Commerce, 739 F. Supp. 761, 766 (E.D.N.Y. 1990).
Paragraph 9 of the Settlement Agreement requires all suits challenging final rules promulgated under ¶¶ 1-4 of the Agreement to be filed as new lawsuits. Settlement Agreement at ¶ 9. Paragraphs 1-4 provide that all PWC use is to be banned, after a grace period for certain parks including PIRO and GUIS, unless special, site-specific regulations are promulgated for each park where jetskis are to be allowed. Thus, challenges to the rules permitting PWC use in those parks must be filed as new lawsuits, not as continuations of Bluewater I. Plaintiffs are challenging rules promulgated under ¶¶ 1-4, and so their claims must be considered a new lawsuit.
In light of the terms of the Settlement Agreement, therefore, the appropriate question is whether Goodman's participation in Bluewater I gives him standing to participate in an entirely new suit to enforce settlement of the earlier litigation. Of course, standing must be established in every new case whether it stems from an earlier related case or not. Lujan, 504 U.S. at 560-61; Fla. Audobon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) ("[A] showing of standing is an essential and unchanging predicate to any exercise of our jurisdiction.") (citation and quotations omitted).
The Settlement Agreement is unquestionably a contract. Makins v. District of Columbia, 277 F.3d 544, 546-47 (D.C. Cir. 2002). Goodman is a party to that contract. Individuals who are parties to a contract have standing to enforce the terms of that contract in the event that breach is alleged. See Tenn. Elec. Power Co. V. Tenn. Valley Auth., 306 U.S. 118, 137-38 (1939) (standing exists when "the right invaded is a legal right--one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege"); T Street Dev., LLC v. Dereje and Dereje, 586 F.3d 6 (D.C. Cir. 2009). Therefore, the Court concludes that Goodman has standing in this lawsuit to enforce the terms of the Settlement Agreement in Bluewater I.
The provisions of that Agreement require Defendants to, among other things, base any regulatory changes on "appropriate analysis under [NEPA]." Settlement Agreement at ¶ 5. Apart from describing the nature of the dispute in Bluewater I, the Settlement Agreement is completely silent as to any obligations of the Government under the Organic Act. See id. at ¶ 9 ("Nothing in this agreement may be construed to otherwise limit or modify the discretion accorded to the defendants by the statutes they administer or by general principles of administrative law."). Because Goodman only has standing to enforce the Settlement Agreement, and because that Agreement does not speak to Defendants' compliance with the Organic Act, he does not have standing to raise challenges under that Act. Therefore, Plaintiffs may only challenge the PIRO rule under the terms of the Settlement Agreement, for a violation of NEPA.
B. The Organic Act Governing NPS Actions
Plaintiffs contend that NPS' decision to re-introduce PWCs was arbitrary and capricious under the APA and the provisions of the Organic Act. First, they argue that NPS failed to account for its "reversal" of policy in re-introducing jetskis to the parks after making specific pronouncements banning them. Pls.' Mot. at 24-32. Second, they maintain that, even assuming there was no policy reversal, "the agency nonetheless failed to meaningfully explain how reauthorizing Jetskis is consistent with the agency's obligations under the Organic Act." Id. at 33.
The Act, passed by Congress in 1916, provides that the NPS must: 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 ...