United States District Court, District of Columbia
SABINO CANYON TOURS, INC. et al., Plaintiffs,
USDA FOREST SERVICE, Defendant.
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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).
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.
SCT does not demonstrate a likelihood of success on its
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.
reasons that follow, the Court concludes that SCT has not
established a likelihood of success on its APA
claims 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.
SCT has not demonstrated a likelihood of success on its APA
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.
SCT has not established that it is challenging final
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 ...