593 F.3d 1064 (9th Cir. 2010), 08-15112, River Runners for Wilderness v. Martin

Docket Nº:08-15112.
Citation:593 F.3d 1064
Opinion Judge:PER CURIAM
Party Name:RIVER RUNNERS FOR WILDERNESS; Rock the Earth; Wilderness Watch; Living Rivers, nonprofit corporations, Plaintiffs-Appellants, v. Stephen P. MARTIN, in his official capacity as Superintendent of Grand Canyon National Park; Director of the National Park Service; National Park Service; Kenneth L. Salazar, in his official capacity as Secretary of the U
Attorney:Julia A. Olson, Wild Earth Advocates, Eugene, OR, and Matthew K. Bishop, Western Environmental Law Center, Helena, MT, for the plaintiffs-appellants. Charles R. Scott, Attorney, United States Department of Justice, Washington, DC, for Federal appellees. Sam Kalen, Van Ness Feldman, PC, Washington...
Judge Panel:Before: PROCTER HUG, JR., B. FLETCHER and HAWKINS, Circuit Judges.
Case Date:February 01, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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593 F.3d 1064 (9th Cir. 2010)

RIVER RUNNERS FOR WILDERNESS; Rock the Earth; Wilderness Watch; Living Rivers, nonprofit corporations, Plaintiffs-Appellants,

v.

Stephen P. MARTIN, in his official capacity as Superintendent of Grand Canyon National Park; Director of the National Park Service; National Park Service; Kenneth L. Salazar, in his official capacity as Secretary of the U.S. Department of the Interior; United States Department of the Interior; Diane J. Humetewa; Eric H. Holder Jr., Defendants-Appellees,

Grand Canyon River Outfitters Association; Grand Canyon Private Boaters Association, Defendant-Intervenors-Appellees.

No. 08-15112.

United States Court of Appeals, Ninth Circuit.

February 1, 2010

Argued and Submitted June 10, 2009.

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[Copyrighted Material Omitted]

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Julia A. Olson, Wild Earth Advocates, Eugene, OR, and Matthew K. Bishop, Western Environmental Law Center, Helena, MT, for the plaintiffs-appellants.

Charles R. Scott, Attorney, United States Department of Justice, Washington, DC, for Federal appellees.

Sam Kalen, Van Ness Feldman, PC, Washington, DC, for defendant-intervenor-appellee Grand Canyon River Outfitters Association.

Lori Potter, Kaplan Kirsch & Rockwell LLP, Denver, CO, for defendant-intervenor-appellee Grand Canyon Private Boaters Association.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. No. CV-06-00894-DGC.

Before: PROCTER HUG, JR., B. FLETCHER and HAWKINS, Circuit Judges.

ORDER AND AMENDED OPINION

ORDER

The Opinion filed July 21, 2009, slip op. 9277, and appearing at

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574 F.3d 723 (9th Cir.2009), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

The panel has voted to deny the petition for panel rehearing. Judge Hawkins has voted to deny the petition for rehearing en banc and Judges Hug and Fletcher so recommend.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

OPINION

PER CURIAM

This case concerns the National Park Service's decision to permit the continued use of motorized rafts and support equipment in Grand Canyon National Park. Plaintiffs contend that such motorized activities impair the wilderness character of the Canyon and that the Park Service's decision violates its management policies and various federal statutes. Plaintiffs asked the District Court to set aside the decision under the Administrative Procedure Act (" APA" ). For reasons explained in this opinion, Plaintiffs have not satisfied the high threshold required to set aside federal agency actions under the APA.1

I. Background.

Grand Canyon National Park (" Park" ) was established by Congress in 1919 and expanded in 1975. The Park consists 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 Environmental Impact Statement (" FEIS" ) for the 2006 Management Plan. On February 17, 2006, the Park Service issued a Record of Decision (" ROD" ) that adopted and approved the 2006 Management Plan. The 2006 Management Plan permits the continued use of motorized rafts, generators, and helicopters in the Colorado River Corridor.

Plaintiffs River Runners for Wilderness, Rock the Earth, Wilderness Watch, and Living Rivers constitute a coalition of organizations committed to protecting and restoring the Grand Canyon's wilderness character and unique natural resources and ensuring fair access to it. Plaintiffs filed this action against the Park Service and various individual Defendants.2 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

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kayakers of the Corridor (collectively, " Intervenors" ).

Following exchanges of information and compilation of the administrative record, Plaintiffs, Defendants, and Intervenors 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 to the Gulf of California. The Colorado is the longest and largest river in the Southwestern United States. Once in the Grand Canyon, the river flows some 4,000 to 6,000 feet below the rim of the Canyon through cliffs, spires, pyramids, and successive escarpments of colored stone. Access to the bottom of the Grand Canyon can be gained only by hiking, riding mules, or floating the river. Those floating the river typically do so in motor-powered rubber rafts, oar-or paddle-powered rubber rafts, oar-powered dories, or kayaks. Floating the river through the Grand Canyon is considered one of America's great outdoor adventures and includes some of the largest white-water rapids in the United States.

Use of the Colorado River Corridor increased substantially after Glen Canyon Dam was completed in 1963 and produced 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 " motorized craft should be phased-out of use in the Grand Canyon." The plan also concluded that 89,000 commercial user days and 7,600 non-commercial user days would be allocated for the 1973 season, but that commercial use would be scaled down to 55,000 user days by 1977.3 A 1973 Draft Environmental Impact Statement concluded that " [t]he use of motors ... should be eliminated as soon as possible from the river environment" and that " [t]he propose[d] elimination of motorized trips will ... hav[e] a positive environmental impact."

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 injuries 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 that such a phase-out was consistent with the " objective of the [1976] Master Plan [,] corresponded with the park wilderness proposal," and was " based on the extensive

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Colorado River Research project for the Grand Canyon [.]" The Management Plan increased the allocated commercial user days from 89,000 per year to 115,500 and increased the allocated non-commercial user days from 7,600 to 54,450. In September 1980, the Park Service proposed that the Colorado River Corridor be designated as " potential wilderness" and, once motorboat use was phased-out, as " wilderness."

Congress countermanded the 1979 Management Plan in a 1981 appropriations bill for the Department of the Interior. The bill prohibited the use of appropriated funds " for the implementation of any management plan for the Colorado River within the [Park] which reduces the number of user days or passenger-launches for commercial motorized watercraft excursions[.]" Members of Congress sent a letter to the Park Service expressing their " wish that the [1979 Management Plan] be amended to accommodate the 1978 level and pattern of commercial, motorized watercraft access while at the same time protecting the increased non-commercial allocation which the plan provides." The Park Service subsequently revised the 1979 Management Plan to " retain[ ] motorized use and the increase in user-days that had been intended as compensation for the phase-out of motors, resulting in more motorized use of the river."

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.

Planning for the 2006 Management Plan began in 1997 with the solicitation of public comments and a series of public workshops in Oregon, Utah, and Arizona. After this process was suspended and restarted following the filing of two lawsuits, the Park Service published in the Federal Register, on June 13, 2002, a notice of intent to prepare an environmental impact statement for a revised Management Plan. Seven additional public meetings and stakeholder workshops were held in...

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