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

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C.A.9 (Ariz.),2010.
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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
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© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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).
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© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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”)
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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
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© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
page-pfa
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
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
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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).
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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

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