978-1285770178 Case Printout Case CPC-25-05 Part 1

C.A.9 (Ariz.),2010.

River Runners for Wilderness v. Martin

Regulations, and policies did not purport to prescribe substantive rules, as policies stated they were a guidance doc-

15AV(D) Scope of Review in General

15Ak751 k. Limitation of scope of review in general. Most Cited Cases

Courts are not to interfere with reasonable agency decisions rendered within areas where Congress has authorized

the agencies to act.

tial wilderness, did not render management plan approved by the Service, permitting continued use of motorized

rafts in Grand Canyon National Park, arbitrary and capricious; policies required Service to manage potential wilder–

ness areas as actual wilderness only to the extent nonconforming conditions allowed, and seasonal float trips were

not “temporary, nonconforming conditions that preclude wilderness designation” within meaning of policy provid-

ing for removal of such conditions.

15Ak412 Construction

15Ak413 k. Administrative construction. Most Cited Cases

Federal agencies are entitled to some leeway when interpreting their own policies and regulations.

[9] Administrative Law and Procedure 15A 502

an agency changing its course must supply a reasoned analysis.

[10] United States 393 57

393 United States

sists of more than 1.2 million acres located on the southern end of the Colorado Plateau in Arizona.

The Park includes a 277-mile stretch of the Colorado River referred to in this order as the “Colorado River Corridor”

or the “Corridor.” The Park Service regulates the Colorado River Corridor through a periodically-revised Colorado

River Management Plan (“Management Plan”). In November of 2005, the Park Service issued a Final Environmen-

resources and ensuring fair access to it. Plaintiffs filed this action against the Park Service and various individual

Defendants.FN2 The district court subsequently permitted two private organizations to intervene in the action-Grand

Canyon River Outfitters Association, which consists of commercial operators of motorized and non-motorized rafts

in the Colorado River Corridor, and Grand Canyon Private Boaters Association, which consists of private rafters and

kayakers of the Corridor (collectively, “Intervenors”).

venors all filed motions for summary judgment. The district court held oral argument on October 26, 2007.

A. Park Service Management of the Colorado River Corridor.

The waters of the Colorado River originate in the mountains of Colorado, Wyoming, and Utah and run 1,450 miles

United States.

Use of the Colorado River Corridor increased substantially after Glen Canyon Dam was completed in 1963 and pro–

duced a relatively steady flow through the Canyon. Because of this increased use, the Park Service initiated a series

of river planning and management efforts, culminating in a December 1972 River Use Plan. The plan concluded that

is defined as any portion of a 24-hour day.) For example, if the [permit] holder has two clients on a two day

trip, this would equal four user days.” National Park Service, How a Commercial Use Authorization

Works, https:// cms. imr. nps. gov/ bibe/ parkmgmt/ cuaoperations. htm (last updated June 9, 2007).

The Park Service initiated a Colorado River Research Program in 1974 to examine, among other things, the impact

of motorized activities on the river. In September of 1977, the Park Service issued a document suggesting that “the

use of motors is contrary to established health and safety standards” and again opining that the “use of motorized

craft should be eliminated.” The document noted that “[n]on-motorized travel is more compatible with wilderness

experience” and that “[m]otor noise levels may have adverse effects on pilot performance, resulting in potential

safety hazards.” The Park Service was unable, however, to document any difference in numbers and degree of inju-

ries between the two types of craft.

The Park Service released the first Management Plan in December of 1979. Use of motorized watercraft between

Lees Ferry and Separation Canyon was to be phased out over a five-year period. The 1979 Management Plan stated

Congress countermanded the 1979 Management Plan in a 1981 appropriations bill for the Department of the Interi-

or. The bill prohibited the use of appropriated funds “for the implementation of any management plan for the Colo-

rado River within the [Park] which reduces the number of user days or passenger-launches for commercial motor-

ized watercraft excursions[.]” Members of Congress sent a letter to the Park Service expressing their “wish that the

The Park Service issued a second Management Plan in 1989. The 1989 Management Plan was similar to the revised

1979 Management Plan. It included the same allocation of user days for commercial and non-commercial boaters,

but increased the number of non-commercial launches.

B. The 2006 Management Plan.

ple attended the meetings and the Park Service received more than 13,000 written submissions.

In the Fall of 2004, the Park Service released for public review a Draft Environmental Impact Statement (“DEIS”)

for the revised Management Plan. The DEIS presented eight alternatives (Alternatives A-H) for managing the river

from Lees Ferry to Diamond Creek, a stretch of 226 miles (referred to in this order as the “Lees Ferry Segment”)

coded, organized, analyzed, and responded to the substantive comments, and modified the DEIS where it felt modi-

fications were warranted.

In November 2005, the Park Service issued the three-volume Final Environmental Impact Statement. The FEIS ad–

dressed the same alternatives discussed in the DEIS, with some modifications to Alternatives H and 4, and expressed

a preference for Modified Alternative H for the Lees Ferry Segment and Modified Alternative 4 for the Lower

Gorge. The selected alternatives permitted the use of motorized rafts, generators for emergencies and inflating rafts,

and helicopters to make passenger exchanges at the Whitmore helipad. As noted above, in February 2006, the Park

delegated that responsibility to the Park Service. The court’s responsibility is narrower: to determine whether the

Park Service’s 2006 Management Plan comports with the requirements of the APA, 5 U.S.C. § 701 et seq.

[1][2] The APA does not allow the court to overturn an agency decision because it disagrees with the decision or

with the agency’s conclusions about environmental impacts. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.

[3][4] In conducting an APA review, the court must determine whether the agency’s decision is “founded on a ra-

tional connection between the facts found and the choices made … and whether [the agency] has committed a clear

error of judgment.” Ariz. Cattle Growers’ Ass‘n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1243 (9th Cir.2001). “The

[agency’s] action … need only be a reasonable, not the best or most reasonable, decision.” Nat’l Wildlife Fed. v. Bur–

ford, 871 F.2d 849, 855 (9th Cir.1989).

III. Compliance with Park Service Policies.

A. Enforceability of the Policies.

[5] Even though Congress has never acted on the Park Service’s recommendation to designate a substantial portion

against the Park Service in this action.

In their motion for summary judgment, Plaintiffs identified three policies that allegedly create binding obligations

on the Park Service: the 1976 Master Plan, the 1995 General Management Plan, and the 2001 Park Service Man-

agement Policies (the “2001 Policies”). Two of these arguments-the 1976 Master Plan and the 1995 General Man-

To have the force and effect of law, enforceable against an agency in federal court, the agency pronouncement

must (1) prescribe substantive rules-not interpretive rules, general statements of policy or rules of agency organi-

zation, procedure or practice-and (2) conform to certain procedural requirements. To satisfy the first requirement

the rule must be legislative in nature, affecting individual rights and obligations; to satisfy the second, it must have

been promulgated pursuant to a specific statutory grant of authority and in conformance with the procedural re-

very Policies: “While the text of the Policies on occasion uses mandatory language, such as ‘will’ and ‘must,’ the

document as a whole does not read as a set of rules. It lacks precision in its directives, and there is no indication of

how the enumerated policies are to be prioritized.” The Wilderness Soc‘y v. Norton, 434 F.3d 584, 595

(D.C.Cir.2006).

inconsistent provisions in the 2001 Policies until such time as the regulations “are formally revised through the

rulemaking procedure[.]”

Equally significant, the Introduction to the 2001 Policies provides that Park Service management can choose to

waive or modify the Policies: “Adherence to policy is mandatory unless specifically waived or modified in writing

Nor do the 2001 Policies purport to create substantive individual rights or obligations for persons or entities outside

the Park Service. The Policies set forth priorities, practices, and procedures to be followed by Park Service person-

nel in administering the national park system. In the words of Eclectus Parrots, they are “interpretive rules, general

statements of policy or rules of agency organization, procedure or practice[.]” 685 F.2d at 1136 (quotes and citations

omitted). See also United States v. Alameda Gateway Ltd., 213 F.3d 1161, 1168 (9th Cir.2000) (agency rule did not

have the force or effect of law in part because “[i]t was not intended to create substantive rights in third parties”);

Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir.2000) (agency provision did not satisfy the Eclectus Parrots test, as it

“creates no substantive rights” and instead “provides [agency] staff with internal procedures”); Chrysler Corp. v.

Brown, 441 U.S. 281, 302, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) (whether an agency pronouncement affects indi-

vidual rights and obligations “is an important touchstone for distinguishing those rules that may be binding or have

the force of law”) (internal quotation marks and citation omitted).

The 2001 Policies also fail the second part of the Eclectus Parrots test. The APA requires that “publication or ser–

(9th Cir.1996) (stating, in its determination that two agency documents did not satisfy the Eclectus Parrots test, that

“[n]either [document] is published in the Federal Register or the Code of Federal Regulations”). The D.C. Circuit

found this lack of publication “particularly noteworthy” in concluding that the 2001 Policies are not substantive law.

Wilderness Soc’y, 434 F.3d at 595; see also Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 539

(D.C.Cir.1986) (“The real dividing point between regulations and general statements of policy is publication in the

erence source,” of course, is not the same as binding substantive law.

In sum, the 2001 Policies are not enforceable against the Park Service in this action. The Policies do not prescribe

substantive rules, nor were they promulgated in conformance with the procedures of the APA. Eclectus Parrots,

685 F.2d at 1136. The Court therefore may not set aside the 2006 Management Plan because it fails to comply with

fect of law. For support, Plaintiffs rely primarily on United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150

L.Ed.2d 292 (2001), and S. Utah Wilderness Alliance, 387 F.Supp.2d 1178. Plaintiffs in Mead challenged a tariff

ruling by the United States Customs Service. Plaintiffs in S. Utah Wilderness Alliance challenged a decision by the

Park Service to ban motorized vehicles in a portion of Canyonlands National Park. In both cases the courts were

required to decide whether the agency decisions were entitled to deference under Chevron U.S.A. Inc. v. Natural

spoken to the point at issue and the agency’s interpretation is reasonable [.]” Mead, 533 U.S. at 229, 121 S.Ct. 2164

(citations omitted). In short, Courts are not to interfere with reasonable agency decisions rendered within areas