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Sabino Canyon Tours, Inc. v. USDA Forest Service

United States District Court, District of Columbia

February 8, 2018

SABINO CANYON TOURS, INC. et al., Plaintiffs,



         For over thirty years, Sabino Canyon Tours, Inc. (“SCT”) has held a permit to operate the shuttle system at Arizona's Sabino Canyon Recreation Area. In 2010, the U.S. Forest Service, which manages the Sabino Canyon Area, began planning to overhaul the shuttle service to respond to new public demands. This process culminated late last year with a finding that the proposed shuttle upgrades would have no significant impact on the environment and the issuance of a Prospectus seeking competitive bids for a new five-year permit to run the service. SCT- whose current permit expires in June 2018-brought suit against the Forest Service and has filed a motion for a preliminary injunction seeking to enjoin the bidding process. Because SCT has not shown either a likelihood of success on the merits of its claims or irreparable harm in the absence of an injunction, the Court will deny the motion.

         I. Factual Background

         The Sabino Canyon Recreation Area is a national park located in Tucson, Arizona in the foothills of the Santa Catalina Mountains. Def.'s Mem. Opp'n Pls.' Mot. Prelim. Inj. (“Def.'s Opp'n”) Ex. A (“Environmental Assessment”), at iii. It encompasses over 12 miles of trails as well as Sabino Creek, which serves as a habitat for several endangered species including the Gila chub and Western yellow-billed cuckoo. Id. The park has been hailed by the U.S. Forest Service (“Service”) as the “jewel of southeast Arizona” and attracts more than a million visitors annually. Id.

         In 1978, following vehicular congestion and safety concerns, the Service closed the roads within the Sabino Canyon Area to private motorized traffic and initiated a private shuttle system to allow visitors access into the canyon. Pls.' Mem. Supp. Mot. Prelim. Inj. (“Pls.' Mot.”) Ex. G (“2010 Volpe Study”), at 5. In 1982, Sabino Canyon Tours, Inc., which is owned by plaintiff Donn Ricketts (collectively “SCT”), received a permit to operate the shuttle service in the park. Def.'s Opp'n Ex. C. This would be the first in a series of permits that continues to the present. The 1985 permit, which lasted for a term of ten years, see id., was renewed until 2007. In 2007 and 2008, SCT received two successive one-year permits. See id. Ex. D, E. These were followed, in August 2009, with a permit lasting until December 31, 2013. See id. Ex. F.

         Around the time that it renewed SCT's permit in 2009, the Service began to analyze the existing transportation situation at Sabino Canyon Area and formulate a plan to revise and update it. See generally 2010 Volpe Study at i. This process culminated in a study issued in 2010 by the U.S. Department of Transportation's Volpe Center (the “2010 Volpe Study”). The study gathered data on visitor numbers and patterns, the environment of the Canyon Area, and the existing shuttle service. Id. at 7-25, 33-39. Guided by five “fundamental themes”-public safety; infrastructure preservation and management; mobility, accessibility, and connectivity; visitor experience; and environmental stewardship, id. at 54-the study proposed four possible actions: (1) parking management and capacity control, (2) expanded non-motorized use of park roads; (3) a fare-free shuttle service; and (4) infrastructure improvements. Id. at 65.

         The study also identified a variety of concerns with the ongoing shuttle service. For instance, it recounted “numerous” visitor complaints about the shuttle's exhaust fumes, noting that the tram vehicles SCT used at the time had been in operation since 1985. Id. at 55, 57, 68, 70, 106, 111. The study similarly noted numerous complaints about noise from the shuttle's narration service disturbing visitors not on the shuttle. Id. at 55, 57, 66, 70, 106. Visitors also complained about the fact that the shuttle service only accepted cash, particularly given the lack of an ATM in the park. Id. at 57. The study recommended several specific ways to improve the shuttle in response to these concerns, such as “[r]equir[ing] the tram vehicles to conform to specified noise and air quality requirements, ” id. at 130; replacing the existing vehicles, id. at 143-44; and upgrading the tram narration method and technology, id. at 146.

         In September 2012, about one year before its existing permit was set to expire, SCT wrote to the Service requesting a renewal. Pls.' Mot. Ex. H, at 3. This request was followed by a May 1, 2013 letter from SCT's counsel Kevin Garden. Id. at 4. The Service responded in a letter dated May 29, 2013, explaining that it had “embarked on substantial evaluation and future planning of the transportation needs in Sabino Canyon.” Id. at 1. In particular, the Service indicated that it was “working toward implementing recommendations made” in the 2010 Volpe Study, which “highlight[ed] opportunities for expanded routes and schedules, use of alternative energy vehicles, and a new service to accommodate [the] growing Children's Forest programs.” Id. at 1-2. The Service stated that it was declining to renew the permit because it intended to advertise a competitive prospectus in the summer of 2013. Id. As time passed, however, the Service realized that “[t]he concept planning process and environmental analysis” for any changes to the transportation system would “take additional time” and, on November 12, 2013, renewed SCT's permit for an additional 18 months. Id. Ex. F.

         By the time that permit was set to expire, the Service still had not completed the environmental analysis and planning process. See id. Ex. I, at 3. SCT, once again facing the end of its permit term, wrote to the Service in April 2015 requesting a long-term extension of ten to fifteen years. Id. at 1. Service employees subsequently met with SCT's owner Mr. Ricketts and counsel Mr. Garden on June 1, 2015 regarding the shuttle service situation. Id. Ex. L, at 1; id. Ex. M, at 1. During that meeting, the parties addressed the Service's ongoing environmental assessment process. Id. Ex. L, at 2; id. Ex. M, at 1. They also discussed concerns that visitors had raised about the shuttle service, including the vehicles' “engine noise and diesel fumes, ” that the narration “volume is loud and diminishes the experience of some visitors not on the shuttle, ” and how visitors are “limited to paying with cash” for tickets. Id. Ex. M, at 3. Mr. Ricketts agreed to “look into” ways to resolve these issues. Id. SCT's permit was renewed that month for another two-year period. Id. Ex. D.

         During the next two years, the Service made significant progress in the planning and environmental analysis process. In September 2015, the Service released the Sabino Canyon Sustainable Recreation Concept Plan. See id. Ex. N. A year later, in September 2016, the Service released a draft environmental assessment of its proposed changes to the park's transportation system. See id. Ex. O. But as SCT's permit once more neared its expiration date in June 2017, the process had still not been completed. On May 31, 2017, the Service's Regional Forester Calvin Joyner wrote to Mr. Ricketts notifying him that the Service ultimately planned to issue a competitive prospectus once the environmental planning process was completed and that it would like to renew SCT's permit another year until June 30, 2018 (and, if necessary, one more year after that until June 30, 2019) to ensure continuity in service until a new provider could be selected. Id. Ex. S.

         SCT strongly objected to the Service's decision to issue a competitive prospectus. In a June 19, 2017 letter from its counsel Mr. Garden, SCT complained that the Service had “broken an explicit commitment” to SCT to have the “opportunity to meet” changing public demand “under a new long term permit.” Id. Ex. W, at 21-22. SCT claimed that the Service made such a commitment in a September 27, 2013 letter from Service Deputy Chief Leslie Weldon to Marily Reese, the Executive Director of the National Forest Recreation Association. Id. at 22; see id. Ex. E. In its response to Mr. Garden, the Service denied making any commitment to grant a long-term permit to SCT and explained its decision to issue a Prospectus by noting that SCT had not demonstrated its ability to meet changing public demands and resolve the concerns laid out in the 2010 Volpe Study and related documents. Id. Ex. X, AA, FF.

         That summer and fall-while the Service and SCT exchanged letters-the Service completed the environmental analysis and planning process for the shuttle service. On June 27, 2017 the Service released its final Environmental Assessment for the shuttle service. On November 3, 2017, the Service issued its Notice of Decision and Finding of No Significant Impact. Id. Ex. Z. Finally, on November 28, 2017, the Service issued a prospectus accepting bids for the operation of the shuttle service in Sabino Canyon Area. Id. Ex. BB.

         One month later, SCT and its owner Donn Ricketts brought suit against the Forest Service under the Administrative Procedure Act (“APA”). They raised four claims under an assortment of statutes, including an allegation that the environmental assessment process violated the National Environmental Policy Act (“NEPA”). Just over a week after bringing suit, on December 31, 2017, SCT filed a motion seeking a preliminary injunction enjoining the prospectus bidding process. It requested a hearing and a ruling before January 26, 2018, when the bidding period closed. See Pls.' Mot. Prelim. Inj. at 2. The Court issued a briefing schedule and held a hearing on January 22.

         II. Legal Standard

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). The party seeking a preliminary injunction thus bears the burden of making a “clear showing that [he] is entitled to such relief.” Id. at 22. To make such a showing, the party must establish: “(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting id. at 20). Ultimately, the purpose of a preliminary injunction “is to preserve the object of the controversy in its then existing condition-to preserve the status quo.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (citation omitted).

         III. Analysis

         The Court will begin with the likelihood of success and irreparable harm requirements for a preliminary injunction. Finding that SCT has met neither, the Court need not consider the balance of equities or the public interest.

         A. SCT does not demonstrate a likelihood of success on its claims.

         SCT's complaint raises four claims. Counts One and Four “are based on the Forest Service having acted arbitrarily, capriciously and not in accordance with law . . . when it determined that SCT had shown it was unable to meet the public's demands.” Pls.' Mot. at 20; see Compl. ¶¶ 229, 285-87. Count Two alleges that the Service acted arbitrarily by issuing a Prospectus that “fails to provide a sufficiently lengthy term to allow private businesses to recoup the financial investment required to meet its terms.” Pls.' Mot. at 32; see Compl. ¶ 244. And Count Three alleges that the Service violated NEPA by failing to account for ground-disturbing effects from SCT's removal of structures that it has built on the park grounds, which SCT says will be necessary if it does not receive a new permit. Compl. ¶¶ 264-70.

         For the reasons that follow, the Court concludes that SCT has not established a likelihood of success on its APA claims[1] because (1) it has not shown it is challenging final agency action and (2) it has not shown that the Service has acted arbitrarily and capriciously or contrary to law. And SCT has not established a likelihood of success on its NEPA claim because (1) it has not demonstrated a particularized injury from the alleged NEPA violation and (2) its NEPA claim is not yet ripe.

         1. SCT has not demonstrated a likelihood of success on its APA claims.

         SCT raises three APA claims that invoke statutes other than NEPA; two of these relate to the purported determination by the Forest Service that SCT cannot meet changing and increasing public demands and the other relates to the Service's decision to set a five-year term for the permit in the Prospectus. SCT has failed to demonstrate a likelihood of success on these claims because (1) it has not clearly established that it is challenging final agency action and (2) it has not shown the Service acted arbitrarily and capriciously or contrary to law by not offering SCT a new long-term permit and instead issuing the Prospectus.

         a. SCT has not established that it is challenging final agency action.

         In order for a claim to lie under the APA, a plaintiff must challenge final agency action. See 5 U.S.C. § 704. While the lack of finality does not defeat the Court's subject matter jurisdiction, see Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006), it still results in the dismissal of a party's APA claims for lack of a valid cause of action, see, e.g., Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014). To be duly final-and thus to sustain a valid cause of action-the challenged agency action must meet two requirements: “First, the action must mark the consummation of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature. And second, the action must be one ...

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