Alaska State Snowmobile Ass'n, Inc. v. Babbitt

• Decision Date: 08 November 1999
• Docket Number: No. A99-059 CV(JWS).,A99-059 CV(JWS).
• Citation: 79 F.Supp.2d 1116
• Parties: ALASKA STATE SNOWMOBILE ASSOCIATION, INC., et al., Plaintiffs, v. Bruce BABBITT, Secretary of the United States Department of Interior, et al., Defendants, v. The Wilderness Society, et al., Defendant-Intervenors and Cross-Claimants.
• Court: U.S. District Court — District of Alaska

Page 1116

79 F.Supp.2d 1116

ALASKA STATE SNOWMOBILE ASSOCIATION, INC., et al., Plaintiffs, v. Bruce BABBITT, Secretary of the United States Department of Interior, et al., Defendants, v. The Wilderness Society, et al., Defendant-Intervenors and Cross-Claimants.

No. A99-059 CV(JWS).

United States District Court, D. Alaska.

November 8, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

ORDER FROM CHAMBERS

[Re: Motions and Cross-Motions for Summary Judgment; Dockets 22, 23, and 31]

SEDWICK, District Judge.

I. PRELIMINARY NATURE OF ORDER

At docket 22, defendant-intervenors The Wilderness Society, et al. ("Wilderness Society") move for summary judgment. At docket 23, plaintiffs Alaska State Snowmobile Association, Inc., et al. ("ASSA") move for summary judgment. At docket 31, defendants Bruce Babbitt, et al. ("Babbitt") move for summary judgment. The motions are opposed. Oral argument is scheduled for November 12, 1999. The purpose of this preliminary order is to express the court's tentative views regarding how the motions should probably be resolved in the expectation that this will assist the parties prepare for and conduct oral argument. This preliminary order does not represent the court's final order. The court may or may not adopt this preliminary order as its final order depending upon oral argument.

II. BACKGROUND

A. The Litigation

Effective on or about February 4, 1999,¹ the United States National Park Service ("Park Service") closed a portion of the Denali National Park and Preserve ("Denali National Park") to the operation of snowmachines for traditional activities for a period of twelve months while leaving two corridors in the park open for such uses ("Decision"). ASSA filed suit alleging that the Decision unlawfully restricted snowmachine use in Denali National Park.. ASSA asks the court to declare that the Decision violates applicable provisions of the Alaska National Interest Lands Conservation Act, 16 U.S.C. §§ 3101 et seq. ("ANILCA"),² the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"), and the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. ("APA") Plaintiffs also seek an injunction prohibiting Babbitt from closing the park to snowmachine operations for traditional activities in violation of ANILCA, NEPA, APA and Park Service regulations.³

Wilderness Society intervened as a defendant to oppose ASSA and to assert cross-claims against Babbitt alleging that the Decision unlawfully opened a portion of the park to snowmachine use in violation of various provisions of federal law, including provisions of ANILCA, NEPA, APA and the Wilderness Act, 16 U.S.C. §§ 1131 et seq. ("WA").

B. History of Snowmachine Regulation in the Park

A brief review of certain legislative enactments and the Park Service's management of the park is necessary to place this tri-partite dispute in context. Mount McKinley National Park was established by Congress in 1917.⁴ It was to be used for public recreation and preservation purposes.⁵ In 1980, ANILCA added approximately 3.75 million acres and designated the original park with its new addition Denali National Park and Preserve.⁶ The original park is often referred to as the "Old Park" or the "core" of the park. ANILCA also classified the newly enlarged park as a "conservation system unit" ("CSU").⁷

ANILCA specifically addresses the use of snowmachines within CSUs:

Notwithstanding any other provision of this Act or other law, the Secretary shall permit, on conservation system units, national recreation areas, and national conservation areas, and those public lands designated as wilderness study, the use of snowmachines (during periods of adequate snow cover, or frozen river conditions in the case of wild and scenic rivers), motorboats, airplanes, and nonmotorized surface transportation methods for traditional activities (where such activities are permitted by this Act or other law) and for travel to and from villages and homesites. Such use shall be subject to reasonable regulations by the Secretary to protect the natural and other values of the conservation system units, national recreation areas, and national conservation areas, and shall not be prohibited unless, after notice and hearing in the vicinity of the affected unit or area, the Secretary finds that such use would be detrimental to the resource values of the unit or area. Nothing in this section shall be construed as prohibiting the use of other methods of transportation for such travel and activities on conservation system lands where such use is permitted by this Act or other law.⁸

ANILCA thus established an "open until closed" policy regarding snowmachine use for traditional activities within Denali National Park. Acting pursuant to the statutory grant of authority, the Secretary promulgated a regulation addressing snowmachine use in Denali National Park in 1986. The regulation in question, codified at 43 C.F.R. § 36.11, became effective on October 6, 1986. It provides:

The use of snowmachines (during periods of adequate snow cover and frozen river conditions) for traditional activities (where such activities are permitted by ANILCA or other law) and for travel to and from villages and homesites and other valid occupancies is permitted within such areas, except where such use is prohibited or otherwise restricted by the appropriate Federal agency in accordance with the procedures of paragraph (h) of this section.⁹

The regulation does not define "traditional activities." It does provide for closure of lands to snowmachine use:

(1) The appropriate Federal agency may close an area on a temporary or permanent basis to use of aircraft, snowmachines, motorboats or nonmotorized surface transportation only upon a finding by the agency that such use would be detrimental to the resource values of the area.

(2) Temporary closures. (i) Temporary closures shall not be effective prior to notice and hearing in the vicinity of the area(s) directly affected by such closures and other locations as appropriate. (ii) A temporary closure shall not exceed 12 months.¹⁰

Shortly after 43 C.F.R. Part 36 was promulgated, suit was filed in this court against the Secretary of the Interior challenging 43 C.F.R. Part 36.¹¹ No specific challenge was made to 43 C.F.R. § 36.11(c) or to snowmachine use in Denali National Park. Magistrate Judge Roberts issued a report and recommendation upholding the regulations.¹² District Judge Singleton adopted the report and recommendation with only slight modification.¹³ In April 1991, Judge Singleton remanded certain issues to the Department of the Interior for purposes of having the Department provide a more complete explanation of action taken by the Department in promulgating its regulations. The court retained jurisdiction for six months pending a status report from the Department. The case was finally dismissed and a final judgment entered in favor of the Department on March 16, 1993.¹⁴

Notwithstanding ANILCA and the regulation adopted in 1986, the Park Service never officially sanctioned snowmachine use in the Old Park until the Decision declared that certain areas were open.. Appendix B to the Park Service's Statement of Finding candidly admits that, "[the Park Service] has managed the [Old Park] as being closed to the use of snowmachines for the 10 years prior to enactment of [ANILCA] and for the 18 years since."¹⁵ The statement is consistent with many earlier pronouncements by the Park Service.

In 1979, a year before ANILCA's enactment, the Park Service emphasized that "[s]nowmobiling is prohibited in Mt. McKinley National Park."¹⁶ On June 28, 1988, the Park Superintendent issued an order governing Denali National Park which specified that "[t]he use of snowmachines in the [Old Park], and parts of the park additions and preserves is not traditional, and is not allowed."¹⁷ In November 1992, over six years after 43 C.F.R Part 36 was promulgated, the Park Superintendent issued an order defining "traditional activity" to be "an activity that was regularly practiced in the former Mt. McKinley National Park prior to the 1980 passage of ANILCA."¹⁸ The Superintendent concluded that "[t]he use of snowmachines does not fit this definition [regarding traditional activity in the Old Park]. Therefore, they are not allowed."¹⁹ However, the Superintendent decided that "[a]ll new areas included in the 1980 park additions are available to snow machine use during times of adequate snow cover."²⁰ In March 1993, the Park Service issued a news release which specified that snowmachines were "not permitted in the wilderness area that coincides with the old Mount McKinley National Park."²¹ On April 18, 1996, the Park Service updated its compendium of rules governing Denali National Park. As updated, the rules provided:

This applies to the new park and preserve areas added by the passage of ANILCA. Recreational snowmachine use has no historical basis for establishing a tradition of recreational use in the former Mt. McKinley National Park. Therefore, it remains a prohibited activity. No enforcement action other than education should be pursued dealing with snowmachines in the former Mt. McKinley National Park under this section. A draft special regulation has been written prohibiting this activity and forwarded to the Alaska Regional Office for review and refinement.²²

C. The Challenged Decision

Curiously, despite the fact that it had never officially sanctioned snowmachine use in Denali National Park, the Park Service announced on November 10, 1998 that it intended to temporarily close the Old Park to snowmachine use.²³ It appears that the Park Service may have taken this action because of concerns that it was not correctly interpreting ANILCA. Specifically, the Park Service may have reached the conclusion that snowmachine use, on its own, did not have to be a traditional activity so long as it was used for access to engage in traditional activities.²⁴...