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where Congress has authorized the agencies to act.
light of facts in the administrative record and the reasoning of the FEIS. For reasons explained herein, the court finds
Park System. “To make visits to national parks more enjoyable for the public, Congress authorized [the Park Ser-
vice] to grant privileges, leases, and permits for the use of land for the accommodation of visitors. Such privileges,
leases, and permits have become embodied in national parks concession contracts.” Nat'l Park Hospitality Ass'n v.
Dep't of the Interior, 538 U.S. 803, 805-806, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). The specific provision of the
Act relied on by Plaintiffs articulates a Congressional “policy” for the granting of concessions:
16 U.S.C. § 5951(b).
Plaintiffs claim that the 2006 Management Plan is arbitrary and capricious because the Park Service never deter-
mined that the types and levels of motorized uses authorized by the Management Plan are necessary and appropriate
390 F.3d 630 (9th Cir.2004), a case in which we struck down the Forest Service's grant of permits to commercial
packstock operators in the Ansel Adams and John Muir Wilderness Areas of California. The court held that the For-
est Service must make a finding that “the number of permits granted was no more than was necessary to achieve the
goals of the Act.” Id. at 647. Plaintiffs argue that Blackwell requires a similar Park Service finding for the number of
motorized raft trips permitted in the 2006 Management Plan.
cial packstock permits “flows directly out of the agency's obligation under the Wilderness Act to protect and pre-
serve wilderness areas.” 390 F.3d at 647. It was this “ultimate interest” and “overarching purpose” of the Wilderness
Act-to protect the Ansel Adams and John Muir Wilderness Areas from degradation-that led the Ninth Circuit to hold
that the packstock permit decision violated “the Forest Service's statutory responsibility.” Id. at 647-48.
ally outfitted river trips[.]” Id. at 87. The Park Service explained that “continued authorization of motorized use for
recreational river trips in the [Park] is essential ... to meeting the ... management objectives” for the 2006 Manage-
sions Act. It is true that the FEIS and ROD do not contain a specific discussion of the amount of motorized traffic
found necessary and appropriate for public use and enjoyment of the Corridor. But the absence of such a specific
discussion does not necessarily require the agency's action to be overturned. “While [a court] may not supply a rea-
soned basis for the agency's action that the agency itself has not given, [the court] will uphold a decision of less than
ideal clarity if the agency's path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
tinue to allocate 113,083 user days to commercial operators (74,260 motorized and 38,823 non-motorized) and
58,048 user days to non-commercial users. FEIS Vol. I at 45. Alternative B would have eliminated all motorized
traffic on the river and allocated 97,694 user days to commercial operators and 74,523 to non-commercial. Id. at 47.
Alternative C also would have eliminated all motorized trips, but would have increased commercial user days to
166,814 and non-commercial to 115,783, presumably to accommodate sufficient numbers of visitors with the slower
bers of passengers, and helicopter exchanges at the Whitmore helipad. Id. at 61. The Park Service evaluated these
alternatives against environmental, social, and park-management factors including impacts on soils, water, air,
soundscape, caves, vegetation, terrestrial life, aquatic resources, special status species, cultural resources, visitor
experience, socio-economic resources, park management and operations, adjacent lands, and wilderness character.
Id. at 61-65.
after considering all factors and variables, selected Modified Alternative H. That Alternative included specific allo-
cations for motorized and non-motorized uses: a total of 115,500 commercial user days consisting of 76,913 motor-
ized and 38,587 non-motorized, and an estimated 113,486 non-commercial user days. FEIS Vol. I at 60.
Modified Alternative H reduced the amount of motorized traffic in the Colorado River Corridor and the months
Plaintiffs argue that non-commercial users are required to wait for permits to run the river-sometimes for 10 or more
boaters have floated the Colorado River Corridor before, while only 20% of commercial boaters were on repeat
trips. The existence of a waiting list therefore does not necessarily show that more private boaters than commercial
customers are awaiting their first river trip. Finally, experts advised the Park Service that a demand study would cost
more than $2 million and likely would be of limited value. FEIS Vol. III at 177.
undertake a public function to provide services that the [Park Service] deems desirable for those visiting the area.
The basic face-off is not between the commercial operators and the non-commercial users, but between those who
can make the run without professional assistance and those who cannot.
Kleppe, 608 F.2d at 1253-54 (internal citations omitted).
mined to be fair in the absence of a demand study, and that a lottery system that applies to all users would
be more fair. As noted above, however, a panel of experts advised the Park Service in January of 2003 that
a demand study was likely to cost $2 million and be of limited use. FEIS Vol. III at 177. Dr. Walls does not
address this advice and therefore does not provide a basis for concluding that the Park Service acted arbi-
trarily and capriciously when it decided not to conduct such a study. Moreover, although Dr. Walls opines
was unreasonable. Dr. Walls' opinion, although a legitimate point of view, does not persuade the court that
the Management Plan is arbitrary and capricious.
B. Impairment of the Natural Soundscape.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Act.
VI. Conclusion.
Plaintiffs have failed to establish that the Park Service acted arbitrarily and capriciously when it adopted the 2006
Management Plan. The court accordingly AFFIRMS the granting of the summary judgment motions of Defendants
and Intervenors and the denial of the summary judgment motion of Plaintiffs.
AFFIRMED.
C.A.9 (Ariz.),2010.
light of facts in the administrative record and the reasoning of the FEIS. For reasons explained herein, the court finds
Park System. “To make visits to national parks more enjoyable for the public, Congress authorized [the Park Ser-
vice] to grant privileges, leases, and permits for the use of land for the accommodation of visitors. Such privileges,
leases, and permits have become embodied in national parks concession contracts.” Nat'l Park Hospitality Ass'n v.
Dep't of the Interior, 538 U.S. 803, 805-806, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). The specific provision of the
Act relied on by Plaintiffs articulates a Congressional “policy” for the granting of concessions:
16 U.S.C. § 5951(b).
Plaintiffs claim that the 2006 Management Plan is arbitrary and capricious because the Park Service never deter-
mined that the types and levels of motorized uses authorized by the Management Plan are necessary and appropriate
390 F.3d 630 (9th Cir.2004), a case in which we struck down the Forest Service's grant of permits to commercial
packstock operators in the Ansel Adams and John Muir Wilderness Areas of California. The court held that the For-
est Service must make a finding that “the number of permits granted was no more than was necessary to achieve the
goals of the Act.” Id. at 647. Plaintiffs argue that Blackwell requires a similar Park Service finding for the number of
motorized raft trips permitted in the 2006 Management Plan.
cial packstock permits “flows directly out of the agency's obligation under the Wilderness Act to protect and pre-
serve wilderness areas.” 390 F.3d at 647. It was this “ultimate interest” and “overarching purpose” of the Wilderness
Act-to protect the Ansel Adams and John Muir Wilderness Areas from degradation-that led the Ninth Circuit to hold
that the packstock permit decision violated “the Forest Service's statutory responsibility.” Id. at 647-48.
ally outfitted river trips[.]” Id. at 87. The Park Service explained that “continued authorization of motorized use for
recreational river trips in the [Park] is essential ... to meeting the ... management objectives” for the 2006 Manage-
sions Act. It is true that the FEIS and ROD do not contain a specific discussion of the amount of motorized traffic
found necessary and appropriate for public use and enjoyment of the Corridor. But the absence of such a specific
discussion does not necessarily require the agency's action to be overturned. “While [a court] may not supply a rea-
soned basis for the agency's action that the agency itself has not given, [the court] will uphold a decision of less than
ideal clarity if the agency's path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
tinue to allocate 113,083 user days to commercial operators (74,260 motorized and 38,823 non-motorized) and
58,048 user days to non-commercial users. FEIS Vol. I at 45. Alternative B would have eliminated all motorized
traffic on the river and allocated 97,694 user days to commercial operators and 74,523 to non-commercial. Id. at 47.
Alternative C also would have eliminated all motorized trips, but would have increased commercial user days to
166,814 and non-commercial to 115,783, presumably to accommodate sufficient numbers of visitors with the slower
bers of passengers, and helicopter exchanges at the Whitmore helipad. Id. at 61. The Park Service evaluated these
alternatives against environmental, social, and park-management factors including impacts on soils, water, air,
soundscape, caves, vegetation, terrestrial life, aquatic resources, special status species, cultural resources, visitor
experience, socio-economic resources, park management and operations, adjacent lands, and wilderness character.
Id. at 61-65.
after considering all factors and variables, selected Modified Alternative H. That Alternative included specific allo-
cations for motorized and non-motorized uses: a total of 115,500 commercial user days consisting of 76,913 motor-
ized and 38,587 non-motorized, and an estimated 113,486 non-commercial user days. FEIS Vol. I at 60.
Modified Alternative H reduced the amount of motorized traffic in the Colorado River Corridor and the months
Plaintiffs argue that non-commercial users are required to wait for permits to run the river-sometimes for 10 or more
boaters have floated the Colorado River Corridor before, while only 20% of commercial boaters were on repeat
trips. The existence of a waiting list therefore does not necessarily show that more private boaters than commercial
customers are awaiting their first river trip. Finally, experts advised the Park Service that a demand study would cost
more than $2 million and likely would be of limited value. FEIS Vol. III at 177.
undertake a public function to provide services that the [Park Service] deems desirable for those visiting the area.
The basic face-off is not between the commercial operators and the non-commercial users, but between those who
can make the run without professional assistance and those who cannot.
Kleppe, 608 F.2d at 1253-54 (internal citations omitted).
mined to be fair in the absence of a demand study, and that a lottery system that applies to all users would
be more fair. As noted above, however, a panel of experts advised the Park Service in January of 2003 that
a demand study was likely to cost $2 million and be of limited use. FEIS Vol. III at 177. Dr. Walls does not
address this advice and therefore does not provide a basis for concluding that the Park Service acted arbi-
trarily and capriciously when it decided not to conduct such a study. Moreover, although Dr. Walls opines
was unreasonable. Dr. Walls' opinion, although a legitimate point of view, does not persuade the court that
the Management Plan is arbitrary and capricious.
B. Impairment of the Natural Soundscape.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Act.
VI. Conclusion.
Plaintiffs have failed to establish that the Park Service acted arbitrarily and capriciously when it adopted the 2006
Management Plan. The court accordingly AFFIRMS the granting of the summary judgment motions of Defendants
and Intervenors and the denial of the summary judgment motion of Plaintiffs.
AFFIRMED.
C.A.9 (Ariz.),2010.
