82 F.3d 1445 (9th Cir. 1996), 94-16920, Bicycle Trails Council of Marin v. Babbitt

Docket Nº:94-16920.
Citation:82 F.3d 1445
Party Name:D.A.R. 6933 BICYCLE TRAILS COUNCIL OF MARIN, a California Nonprofit corporation; Bicycle Trails Council of the East Bay, a California nonprofit corporation; International Mountain Bicycling Association, a California nonprofit corporation; League of American Wheelmen, a Maryland nonprofit corporation, et al., Plaintiffs-Appellants, v. Bruce BABBITT,
Case Date:May 06, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1445

82 F.3d 1445 (9th Cir. 1996)

D.A.R. 6933


corporation; Bicycle Trails Council of the East Bay, a

California nonprofit corporation; International Mountain

Bicycling Association, a California nonprofit corporation;

League of American Wheelmen, a Maryland nonprofit

corporation, et al., Plaintiffs-Appellants,


Bruce BABBITT, [*] Secretary of the Interior;

James M. Ridenour, Director of the National Park Service;

Brian O'Neill, General Superintendent of the Golden Gate

National Recreation Area, Defendants-Appellees,

Bay Area Trails Preservation Council; Marin Horse Council;

Tamalpais Conservation Club; Sierra Club and National Parks

and Conservation Association, all nonprofit corporations,


No. 94-16920.

United States Court of Appeals, Ninth Circuit

May 6, 1996

Argued and Submitted Feb. 15, 1996.

As Amended June 17, 1996.

Page 1446

[Copyrighted Material Omitted]

Page 1447

[Copyrighted Material Omitted]

Page 1448

Terry J. Houlihan, McCutchen, Doyle, Brown & Enersen, San Francisco, California, for plaintiffs-appellants.

Robert L. Klarquist, United States Department of Justice, Washington, D.C., for defendants-appellees.

Deborah S. Reames, Sierra Club Legal Defense Fund, San Francisco, California, for defendant intervenors-appellees.

Appeal from the United States District Court for the Northern District of California; Eugene F. Lynch, District Judge, Presiding. No. CV-93-0009-EFL.

Before: REINHARDT, THOMPSON, and O'SCANNLAIN, Circuit Judges.


We affirm the district court's grant of summary judgment in favor of defendants, authored by the Honorable Eugene F. Lynch. We adopt the district court's thorough and well-reasoned order granting summary judgment, with the exception of the waiver analysis

Page 1449

in Parts III(A)(1)(a) and III(A)(2)(a), as to which we express no opinion. The district court's order is appended hereto, as amended to reflect the omission of the waiver analysis.




Bicycle Trails Council of Marin, a California nonprofit

corporation, Bicycle Trails Council of the East Bay, a

California nonprofit corporation, International Mountain

Bicycling Association, a California nonprofit corporation,

League of Wheelmen, a Maryland nonprofit corporation,

Charles Cunningham, Angela DiMeglio, Linda Enis, David

Garoutte, Alan Goldman, Stephen Hoxie, James E. Jacobson,

Abby Minot, Todd Oursten, and Adrienne Shapiro, as individuals,



Bruce Babbitt, Secretary of the Interior, James M. Ridenour,

Director of the National Park Service, Brian

O'Neill, General Superintendent of the

Golden Gate National Recreation Area,


Bay Area Trails Preservation Council, et al.,


No. C-93-0009 EFL


Filed September 1, 1994


Plaintiffs challenge the National Park Service ("NPS") regulations governing the use of bicycles within areas administered by it, including the Golden Gate National Recreation Area ("GGNRA"). Specifically, plaintiffs seek review of both the regulations set forth at 36 C.F.R. section 4.30 ("the 1987 regulation"), which applies generally to NPS lands, and the Marin Trails Use Designation Plan for GGNRA adopted as the final rule at 57 Fed.Reg. 58711-16 (Dec. 11, 1992)(codified at 36 C.F.R. section 7.97) ("the 1992 trail plan").


In 1964, NPS at its own initiative implemented a management by categories scheme by which units of the National Park System would be classified "natural," "historical," or "recreational," 1 and by which management policies would be formed so as to regulate these three types of units in conformity with their differing classifications. The effect of this scheme would be, inter alia, that recreational units would be managed in a less restrictive and less resource-protective manner than units classified natural or historical. Under this scheme, NPS in 1966 decided to alter its longstanding policy regarding bicycle use in park units from one wherein all trails were closed unless designated open to one in which the old rule generally applied except in units classified as recreational, in which trails would be presumed open to bicycle use unless designated closed by the local park superintendent.

By a series of amendments to the National Park Service Organic Act, 16 U.S.C. sections 1 et seq., Congress disapproved of this management by categories scheme and directed that all units of the national parks were to be treated consistently, with resource protection

Page 1450

the primary goal, 2 while retaining the flexibility for individual park units to approve particular uses consistent with their specific enabling legislation. Thus, NPS eliminated these management categories from its internal administration in 1978 and ultimately began promulgating regulations in the 1980's eliminating these categorical distinctions from the Code of Federal Regulations. 3 The elimination of the last regulatory reference to these management categories was one of the objectives articulated by NPS for the rulemaking effecting the 1987 regulation. See 52 Fed.Reg. 10670 (April 2, 1987).

The 1987 regulation, adopted pursuant to notice and comment, established a uniform rule for national park units wherein all bicycle use of off-road areas would be prohibited unless local park superintendents designated particular trails to be open. (As noted, this had previously been the rule in all but the recreation units.) Local park officials determined that they would not enforce this rule in the GGNRA until it was determined which trails would be open and which closed to bicycle use. Thus, because of NPS's and the GGNRA Superintendent's exercise of prosecutorial discretion, the 1987 regulation was not enforced and bicyclists in fact retained access to all trails in the GGNRA pending the development of a trail use plan. Finally, after a long and contentious trail designation process, the 1992 trail plan was adopted (also pursuant to notice and comment) establishing which trails were to be open to bicycles and which trails were to be closed.

Plaintiffs applied to this Court for a preliminary injunction against the enforcement of the 1992 trail plan. This application was denied in February of 1993. Defendant-Intervenors' motion to intervene was granted on February 18, 1993. Plaintiffs and defendants have filed cross-motions for summary judgment, filed oppositions to one anothers' motions, and replied to these oppositions. Defendant-Intervenors have filed an opposition to plaintiffs' motion for summary judgment and a reply brief in support of defendants' motion. This motion has been submitted on the 1987 and 1992 administrative records. Having considered all of the briefs of the parties, and having also considered the oral arguments presented at the hearing of November 12, 1993, this Court stands ready to rule.


As described above, plaintiffs challenge two agency actions: the adoption in 1987 of a

Page 1451

revised 36 C.F.R. section 4.30 and the development and promulgation in 1992 of a trail plan for the Marin Headlands section of GGNRA.


    The 1987 rule here challenged reads:

    (a) The use of a bicycle is prohibited except on park roads, in parking areas and on routes designated for bicycle use; provided, however, the superintendent may close any park road or parking area to bicycle use pursuant to the criteria and procedures of §§ 1.5 and 1.7 of this chapter. Routes may only be designated for bicycle use based on a written determination that such use is consistent with the protection of the park area's natural, scenic and aesthetic values, safety considerations and management objectives and will not disturb wildlife or park resources.

    (b) Except for routes designated in developed areas and special use zones, routes designated for bicycle use shall be promulgated as special regulations.

    36 C.F.R. section 4.30.

    The National Park Service Organic Act provides that the National Park Service shall:

    promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified, ... by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

    16 U.S.C. section 1.

    Additionally, the Organic Act provides:

    The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service.

    16 U.S.C. section 3.

    1. The Organic Act and Review Under Chevron

    The National Park Service Organic Act expressly delegates rulemaking authority to the Secretary of the Interior to promulgate rules and regulations to implement the Act. 16 U.S.C. section 3. Legislative regulations promulgated pursuant to such express authority will be upheld "unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).

    Plaintiffs challenge the 1987 regulation and seek to have it vacated on the theory that it is arbitrary and not based upon a permissible interpretation of the Organic Act. Defendants and Intervenors argue that the 1987 regulation was based upon a mandated or at least clearly permissible interpretation of the Organic Act and its amendments.

    a. Waiver...

To continue reading