Nat'l Parks & Conservation Assoc v. Babbitt

• Decision Date: 23 February 2001
• Docket Number: 99-36094,INC,LINE-WESTOUR,Nos. 99-36065,s. 99-36065
• Citation: 241 F.3d 722
• Parties: (9th Cir. 2001) NATIONAL PARKS & CONSERVATION ASSOCIATION, Plaintiff-Appellant-Cross-Appellee, v. BRUCE BABBITT, Secretary, United States Department of the Interior; ROBERT STANTON, Director, National Park Service, Defendants-Appellees, and HOLLAND AMERICA, Defendant-Intervenor Appellee-Cross-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 722

241 F.3d 722 (9th Cir. 2001)

NATIONAL PARKS & CONSERVATION ASSOCIATION, Plaintiff-Appellant-Cross-Appellee, v. BRUCE BABBITT, Secretary, United States Department of the Interior; ROBERT STANTON, Director, National Park Service, Defendants-Appellees and HOLLAND AMERICA LINE-WESTOURS, INC., Defendant-Intervenor Appellee-Cross-Appellant.

Nos. 99-36065, 99-36094

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 31, 2000

Filed February 23, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Catherine E. Stetson, Hogan & Hartson L.L.P., Washington, D.C., for the plaintiff-appellant.

Sean H. Donahue, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the defendants-appellees.

Cynthia Pickering Christianson, Anchorage, Alaska, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Alaska James K. Singleton, District Judge, Presiding. D.C. No.CV-97-00456-JKS

Before: Dorothy W. Nelson, Stephen Reinhardt, and Sidney R. Thomas, Circuit Judges.

REINHARDT, Circuit Judge:

Glacier Bay National Park and Preserve is a place of "unrivaled scenic and geological values associated with natural landscapes" and "wildlife species of inestimable value to the citizens." The Bay was proclaimed a national monument in 1925 and a national park in 1980. UNESCO designated Glacier Bay an international biosphere reserve in 1986 and a world heritage site in 1992.

Not surprisingly, many people wish to visit the park. As there are no roads to Glacier Bay, most tourists arrive by boat. To be more specific, most -approximately 80% of the park's visitors -arrive on large, thousand-passenger cruise ships. In 1996 the National Park Service (Parks Service) commenced implementation of a plan that increased the number of times cruise ships could enter Glacier Bay each summer season immediately by 30% and overall by 72% if certain conditions were met. In its environmental assessments, the Parks Service acknowledged that this plan would expose the park's wildlife to increased multiple vessel encounters, noise pollution, air pollution, and an increased risk of vessel collisions and oil spills. The Parks Service also acknowledged that it did not know how serious these dangers to the environment were, or whether other dangers existed at all. Nevertheless, declaring that its plan would have "no significant impact" on the environment, the Parks Service put it into effect without preparing an environmental impact statement (EIS).

The plaintiff National Park and Conservation Association (NPCA), a nonprofit citizen organization, alleges that the Parks Service's failure to prepare an EIS violated the National Environmental Policy Act (NEPA), 42 U.S.C. S 4321 et seq. It seeks an order requiring the Parks Service to prepare an EIS and enjoining implementation of the plan pending its completion. The district court ruled that an EIS was not required because the Parks Service had made its findings after adequately "canvassing the existing knowledge base. " We reverse the district court's ruling and remand with instructions to enjoin the plan's increases in vessel traffic, including any portion already put into effect, until the Parks Service has completed an EIS.

FACTUAL AND PROCEDURAL HISTORY

There may be no place on Earth more spectacular than the Glacier Bay. Located in the Alaskan panhandle, surrounded by snow-capped mountain ranges, Glacier Bay extends sixty miles inland and encompasses ten deep fjords, four of which contain actively calving tidewater glaciers, and approximately 940 square miles of "pristine" marine waters. The air quality, though fragile, is still unspoiled and permits those fortunate enough to be visitors a crisp, clear view of the Bay with its glacier faces as well as the opportunity to breathe the fresh and invigorating air. The park is the habitat for an extraordinary array of wildlife. On the land, pioneer plant communities grow in areas recently exposed by receding glaciers. Moose, wolves, and black and brown bears roam the park's spruce and hemlock rain forest. Bald eagles, kittiwakes, murrelets, and other seabirds nest along the shore; sea otters, harbor seals, Steller sea lions, harbor and Dall's porpoises, minke, killer, and humpback whales reside in the bay.

The Steller sea lion and the humpback whale, two of the marine mammal species that inhabit Glacier Bay, are imperiled. The Steller sea lion was listed as a threatened species under the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., in 1990. The worldwide population of the species declined by as much as 48% in the thirty years prior to 1992.¹ Glacier Bay has several "haul-out" sites where hundreds of Steller sea lions gather. The humpback whale, "the most gamesome and lighthearted of all the whales," Herman Melville, Moby Dick, 123 (Harrison Hayford & Hershel Parker, eds., W.W. Norton & Co. 1967) (1851), has been listed as an endangered species since the enactment of the ESA in 1973. Until a moratorium was instituted in 1965, commercial whaling decimated the worldwide population of humpback whales. Today only 10,000 to 12,000 remain.² A subpopulation of humpbacks spends the summer feeding season in southeast Alaska, including the waters of Glacier Bay; other humpbacks remain there throughout the year.

Watercraft -cruise ships, tour boats, charter boats, and private boats -provide primary access to Glacier Bay's attractions. Approximately 80% of the park's visitors are cruise ship passengers. According to the Parks Service's environmental assessment, the "key attraction of the visit to Glacier Bay . . . [is] [t]he glaciers at the head of the West Arm [of the Bay.] [They] are larger, more active, and considered by the [cruise-ship] companies to offer a more spectacular experience."³ The ships linger at the glaciers from between fifteen minutes to an hour and provide a large, high viewing platform from which to witness the crack and crash of the great ice masses as they cast off huge shards of floating ice. Although the ships' height permits an unobstructed view of the park's geologic features, it limits close views of the wildlife and vegetation that form such a significant feature of the park.

Between 1968 and 1978, vessel traffic in Glacier Bay increased dramatically. In 1978 the U.S. National Marine Fisheries Service (Fisheries Service) produced a "biological opinion" based on its studies of the humpback whale population in Glacier Bay. The biological opinion expressed concern over the "uncontrolled increase of vessel traffic " in the whales' departure from the Bay during 1978 and 1979, and cautioned that a continued increase in the amount of vessel traffic "would likely jeopardize the continued existence of the humpback whale population frequenting southeast Alaska." The Fisheries Service recommended that the Parks Service regulate the number of vessels entering Glacier Bay; restrict vessels from approaching and pursuing whales; and conduct studies on whale feeding behavior, the effect of vessels on whale behavior, and the acoustic environment.⁴

The Parks Service soon thereafter promulgated regulations governing the entry and activity of cruise ships and other vessels in Glacier Bay. The regulations provided that only two cruise ships could enter the bay each day, with a maximum of 89 cruise ship entries between June 1 and August 31. Smaller boats, designated "private/pleasure craft," were limited to twenty-one entries per day with a seasonal maximum of 538 entries. Vessels were prohibited from intentionally positioning themselves within a quarter of a nautical mile of a whale or attempting to pursue a whale. Within "designated whale waters," vessels had to operate at a constant speed of ten knots or less and follow a mid-channel course.

In 1983 the Fisheries Service issued a second biological opinion, which concluded in part:

[I]f the existing restrictions on the operation of vessels within the Bay were removed, the associated disturbance would be likely to jeopardize the continued existence of the Southeast Alaska humpback whale stock. . . . [A]ny increase in vessel traffic in Glacier Bay probably will add to the level of traffic encountered by humpback whales in southeast Alaska, and thereby add to cumulative impacts to the humpback whale.

Nevertheless, the Fisheries Service opinion stated that a slight increase in vessel traffic was tolerable, provided that the number of individual whales entering the bay did not fall below the 1982 level and that appropriate corrective measures were taken. Accordingly, in 1984 the Parks Service promulgated a Vessel Management Plan (VMP) and regulations that provided for a 20% increase, in increments, in the previously authorized vessel entry quotas. This overall increase -allowing for a total of 107 cruise ship entries per season -was fully realized in 1988.

In September 1992 the Parks Service completed an internal draft of a new VMP that proposed to increase the then current level of cruise ship entries in Glacier Bay by an additional 72%. On February 19, 1993, the Fisheries Service issued a third biological opinion expressing its concern "about the decline in humpback whale use of Glacier Bay," and stating that there were "no studies to show that this decline is not due to avoidance of vessel traffic." Although the Fisheries Service did not oppose the draft VMP, it urged the Parks Service "to take a conservative approach in all management actions that may affect humpback whales" and to implement particular research and monitoring programs.⁵ The Fisheries Service did not find that the Parks Service's proposed action was "likely to jeopardize the continued existence and recovery " of Steller sea lions.

As mandated by NEPA, the Parks Service investigated whether a substantial cruise-ship increase would significantly affect the environment in Glacier Bay. Se...