222 F.3d 819 (10th Cir. 2000), 98-4202, S. Utah Wilderness Alliance v Dabney

Docket Nº:98-4202
Citation:222 F.3d 819
Party Name:SOUTHERN UTAH WILDERNESS ALLIANCE, a non-profit corporation, Plaintiff-Appellee, v. WALT DABNEY, in his official capacity as superintendent for Canyonlands National Park; JOSEPH ALSTON, in his official capacity as superintendent of Glen National Recreation Area; JOHN E. COOK, in his official capacity as Regional Director, Defendants-Appellees, UTAH
Case Date:August 15, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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222 F.3d 819 (10th Cir. 2000)

SOUTHERN UTAH WILDERNESS ALLIANCE, a non-profit corporation, Plaintiff-Appellee,

v.

WALT DABNEY, in his official capacity as superintendent for Canyonlands National Park; JOSEPH ALSTON, in his official capacity as superintendent of Glen National Recreation Area; JOHN E. COOK, in his official capacity as Regional Director, Defendants-Appellees,

UTAH SHARED ACCESS ALLIANCE, formerly known as Utah Trail Machine Association; BLUE RIBBON COALITION; HIGHT DESERT MULTIPLE USE COALITION; UNITED FOUR WHEEL DRIVE ASSOCIATIONS OF U.S. & CANADA; HISTORIC ACCESS RECOVERY PROJECT, Defendants-Intervernors-Appellants,

and

NATIONAL PARKS AND CONSERVATION ASSOCIATION, Amicus Curiae.

No. 98-4202

United States Court of Appeals, Tenth Circuit

August 15, 2000

Appeal from the United States District Court for the District of Utah. D.C. No. 95-CV-559-K

Page 820

[Copyrighted Material Omitted]

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Heidi J. McIntosh (Stephen H.M. Bloch with her on the brief), of Southern Utah Wilderness Alliance, Salt Lake City, Utah, for Plaintiff-Appellee.

John T. Stahr, Attorney, Department of Justice (Lori J. Schiffer, Assistant Attorney General; Paul M. Warner, U.S. Attorney; Stephen L. Roth, Assistant U.S. Attorney; Evelyn S. Ying, Attorney, Department of Justice; and K.C. Becker, Attorney Advisor, Office of the Solicitor, Department of the Interior, with him on the brief), for Defendants-Appellees.

David Andrew Wight (William Perry Pendley with him on the brief), of Mountain States Legal Foundation, Denver, Colorado, for Defendants-Intervernors-Appellants.

William J. Lockhart, Salt Lake City, Utah, filed an amicus curiae brief for the National Parks and Conservation Association.

Before SEYMOUR, Chief Judge,BRORBY and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellee Southern Utah Wilderness Alliance ("Wilderness Alliance") challenged portions of a National Park Service ("NPS") backcountry management plan ("BMP") that affected access to areas

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of Canyonlands National Park in Utah.1 Wilderness Alliance alleged that the BMP violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370; the National Park Service Organic Act ("the Organic Act" or "the Act), 16 U.S.C. §§ 1-18(j); and the Canyonlands National Park Enabling Act, 16 U.S.C. § 271. Utah Shared Access Alliance ("Utah Shared Access"),2 a combination of groups supporting four-wheel drive vehicle recreation, intervened as defendants. On cross motions for summary judgment by Wilderness Alliance and the federal defendants, the district court upheld most of the BMP, but found in favor of Wilderness Alliance on its claim that the BMP's continued allowance of motorized vehicles on a ten-mile portion of the Salt Creek Jeep Road from Peekaboo Spring to Angel Arch was inconsistent with a clear legislative directive of Congress. See Southern Utah Wilderness Alliance v. Dabney, 7 F. Supp.2d 1205, 1211 (D. Utah 1998). On September 23, 1998, the district court entered a final judgment order granting judgment to Wilderness Alliance with respect to the ten-mile segment. The judgment remanded the case to the NPS for appropriate action in accordance with the judgment, and enjoined the NPS from allowing motorized vehicle travel in Salt Creek Canyon above Peekaboo Spring.

Utah Shared Access, the intervenor below, now appeals the district court's decision with respect to the ten-mile portion of the Salt Creek Road. Interestingly, the federal defendants did not appeal the district court's decision; however, they did submit a brief to this court "to advise the Court of the Department's views as to the proper legal construction of the [Organic] Act." In that brief, they take a position different from the position taken in the district court. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE and REMAND.

I. BACKGROUND

In 1992, the NPS began developing a BMP for Canyonlands National Park and the Orange Cliffs Unit of Glen Canyon National Recreation Area in Utah. The goal of that plan as articulated by the NPS was "to develop backcountry management strategies to protect park resources, provide for high quality visitor experiences, and be flexible to deal with changing conditions." The plan was being developed in response to growing visitation to the areas, which had increased the impact on resources and diminished the quality of visitor experience.

One of the areas on which the plan was to focus was the area that is the subject of this appeal, a portion of Salt Creek Canyon. According to the NPS, the Salt Creek Road is a vehicle trail that runs in and out of Salt Creek, the only year-round, fresh water creek in Canyonlands National Park other than the Colorado and Green Rivers. There is no practical way to reroute the road to avoid the water course. To navigate this road safely, a high clearance four-wheel-drive vehicle and some experience in four-wheel driving, or the participation in a commercially guided tour, is necessary. The NPS found that it was receiving numerous requests every year for assistance in removing vehicles that broke down or became stuck on the Salt Creek Road. In addition, there were several instances every year of vehicles losing transmission, engine, or crankcase fluids in the water. The NPS became concerned with the adverse impacts inherent in the existence of a road and vehicle traffic in

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this narrow riparian corridor. A Notice of Intent to prepare a BMP was printed in the Federal Register. See Backcountry Management Plan, Environmental Assessment; Canyonlands National Park, UT, 57 Fed. Reg. 27,268 (1992) (notice of intent). The NPS solicited possible solutions to the problems in the area, and hosted public discussions in Utah and Colorado in late 1992 and early 1993.

On December 18, 1993, the NPS released a draft environmental assessment ("EA") that described NPS's current policies, alternatives for change, and the environmental consequences of the alternatives described, including the alternative of taking no action. The EA identified the NPS's preferred alternative for each of the various problems. With respect to the problems on the trail in Salt Creek Canyon, the preferred alternative was to close the Salt Creek Road to vehicles after a particular landmark, Peekaboo Spring, leaving ten miles to be traversed by foot before reaching Angel Arch, a well-known landmark and popular destination among four-wheel drivers. During the EA's review period, the NPS held numerous public meetings. At the close of the review period in March 1994, the NPS noted that the proposal sparking the most debate was the closure of the ten-mile portion of the Salt Creek Road.

The final BMP, released on January 6, 1995, adopted an alternative that did not close the ten-mile portion of the Salt Creek Road; instead, it closed a one-half mile segment of the road and left the rest open to vehicles on a limited permit system.3 Wilderness Alliance subsequently filed a complaint in federal district court challenging several of the NPS's decisions in the BMP, including the decision to permit continued vehicle access to Salt Creek Canyon above Peekaboo Spring. Wilderness Alliance argued that by approving the BMP and sanctioning continued vehicle-caused degradation in that area, the NPS violated the APA, NEPA, the Organic Act, and the Canyonlands National Park Enabling Act. Wilderness Alliance sought declaratory and injunctive relief. Utah Shared Access intervened as defendants, opposing the closure of Salt Creek Canyon to vehicle access.

The federal defendants and Wilderness Alliance each moved for summary judgment, and Utah Shared Access filed a response to Wilderness Alliance's motion for summary judgment.4 Although the district court ruled in favor of the federal defendants on most of the challenged portions

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of the BMP, it ruled in favor of Wilderness Alliance on its challenge to the portion of the BMP that left the ten-mile segment of the Salt Creek Road from Peekaboo Spring to Angel Arch open to vehicles. See Southern Utah Wilderness Alliance, 7 F. Supp.2d at 1211-12. The district court held that the Organic Act and the Canyonlands enabling legislation preclude the NPS from authorizing activities that permanently impair unique park resources. See id. It then determined, based on the administrative record, that such a permanent impairment would occur from the continued use by motorized vehicles of this ten-mile segment. See id. at 1212. In an order filed September 23, 1998, the district court vacated the BMP's decision to allow motorized vehicle use in the ten-mile segment, remanded to the NPS for appropriate action in accordance with the judgment, and enjoined the federal defendants from permitting or otherwise allowing motorized vehicle travel in Salt Creek Canyon above Peekaboo Spring.5

On appeal, Utah Shared Access argues that (1) the BMP does not violate the National Park Service Organic Act and the Canyonlands enabling...

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