Conservation Law Found. of New England v. Clark

• Decision Date: 27 June 1984
• Docket Number: Civ. A. No. 81-1004-N.
• Citation: 590 F. Supp. 1467
• Court: U.S. District Court — District of Massachusetts
• Parties: CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, v. William CLARK, as he is United States Secretary of the Interior, et al., Defendants.

590 F. Supp. 1467

CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, v. William CLARK, as he is United States Secretary of the Interior, et al., Defendants.

Civ. A. No. 81-1004-N.

United States District Court, D. Massachusetts.

June 27, 1984.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph McGovern, Asst. U.S. Atty., Boston, Mass., for defendants.

James R. Brown, Spencer & Stone, Boston, Mass., for intervenors.

David F. Cavers, Jr., Kathleen C. Farrell, Stephen D. Anderson, Palmer & Dodge, Arthur P. Kreiger, Boston, Mass., for Conservation Law Foundation of New England, et al.

MEMORANDUM DECISION

DAVID S. NELSON, District Judge.

This case involves a challenge to a Management Plan ("the Plan") adopted by the National Park Service to regulate the use of Off-Road Vehicles¹ (ORV's) at the Cape Cod National Seashore. Plaintiffs, three environmental organizations² and two users of the Seashore, contend that the Plan, by allowing extensive ORV use on the Seashore, will cause significant damage to the coastal ecosystem and will create impermissible conflicts between ORV's and other recreational uses of the Seashore, in violation of the Cape Cod National Seashore Act, the National Park Service Act, and two Executive Orders.

Background

The Cape Cod National Seashore was created by act of Congress in 1961. Pub.Law 87-126, 75 Stat. 284, codified at 16 U.S.C. §§ 459b to 459b-8 (1974). Its extensive beaches, dunes, sandflats and saltmarshes stretch down the Cape Cod peninsula on the eastern coast of Massachusetts. The approximately thirty-mile "Outer Beach" on the ocean side of the Seashore is noted for its high dunes, sand cliffs, and attractive beaches.

ORV's were not a major recreational use of the Seashore when it was first established. By 1964, the first year ORV permits were issued, interest had increased to the extent that 964 vehicles were registered. Thereafter, interest skyrocketed and by 1978 the number of permits had jumped to almost 6000. Between 1975 and 1978 ORV use doubled.

The drastic increase in ORV use prompted a five-year study, beginning in 1974, of the effects of ORV's on the Seashore ecology. The study was conducted by scientists from the National Park Service Cooperative Research Unit at the University of Massachusetts at Amherst ("U Mass Study"). The conclusions of this study were published in 1979 by Drs. Paul J. Godfrey and Stephen P. Leatherman in a report entitled "The Impact of Offroad Vehicles on Coastal Ecosystems in Cape Cod National Seashore: An Overview."

Based on the U Mass Study, the Park Service reviewed its ORV management policy for the Seashore. On October 31, 1980 the Park Service published an "Analysis of Management Alternatives (Including Environmental Assessment) For Off-Road Vehicle Use, Cape Cod National Seashore, Massachusetts," 45 Fed.Reg. 72299 (1980). The analysis, which was based primarily on the U Mass Study, discussed four alternatives for regulating ORV use at the Seashore. The alternatives differed in their designation of ORV routes, and overnight camping sites and the limits they placed on the number of ORV's at the Seashore. The Park Service held two public hearings on the alternatives on December 1 and 2, 1980, and also received written comments.

Defendants' Management Plan, dated February 27, 1981 and released March 27, 1981, went into effect April 15, 1981. The Plan, in capsule form, permits the following: use of ORV's in unlimited numbers along a thirty-mile stretch of the Outer Beach except when seasonal high tides or tern nesting seasons prevent continuous beach travel (under such conditions ORV's are allowed along a connecting six-mile inner dune trail); use of a half-mile cross-land trail by commercial dune taxis and dune cottage residents; and use by 100 self-contained ORV's of two overnight sites on the beach; no limits on the daily or annual number of ORV's.

Plaintiffs brought this suit on the day the Plan became effective, naming as defendants the Secretary of the Interior, the Director of the National Park Service, the Acting Regional Director of the National Park Service, and the Superintendent of the Cape Cod National Seashore.

Claims

The plaintiffs claim that the Plan, as adopted and implemented, violates the Cape Cod National Seashore Act, 16 U.S.C. §§ 459b to 459b-8 (1974) ("Seashore Act"); the National Park Service Act, 16 U.S.C. §§ 1-18j (1974) ("Park Service Act"); Executive Order No. 11644, 38 Fed.Reg. 2877 (1972), reprinted in note following 42 U.S.C. § 4321 (1977), as amended by Executive Order No. 11989, 42 Fed.Reg. 26959 (1977), reprinted in note following 42 U.S.C. § 4321 (1977); and the Secretary of the Interior's general public trust obligations. In addition, plaintiffs claim that the Secretary implemented the Plan without adequate public notice in violation of the Administrative Procedure Act, 5 U.S.C. § 553 (1977) ("APA"). Finally, they allege that defendants' decision not to prepare an Environmental Impact Statement violated the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) (1977) ("NEPA").

This Court denied preliminary injunctive relief in 1981. Plaintiffs now seek a permanent injunction barring all ORV use on the Seashore until the adoption of an ORV Management Plan that adequately prevents both damage to the Seashore and interference with other recreational uses and that otherwise conforms to the relevant statutes and executive orders. They also request preparation of an adequate Environmental Impact Statement. Finally, plaintiffs seek their costs in bringing this action.

Jurisdiction

Plaintiffs assert five bases for subject matter jurisdiction, three of which are plainly inadequate.³ Of the remaining two — federal question and mandamus — the court finds that subject matter jurisdiction exists under the former. Plaintiffs have alleged that defendants, in regulating ORV use at the Seashore, have violated, inter alia, the APA, the Seashore Act and the Park Service Act. The matter in controversy, therefore, "arises under the ... laws ... of the United States," 28 U.S.C. § 1331, and federal question jurisdiction is appropriate. See, e.g., Davis Associates, Inc. v. Secretary of HUD, 498 F.2d 385, 389 (1st Cir.1974).

In view of the court's determination that federal question jurisdiction exists, plaintiffs' assertion of mandamus jurisdiction becomes important only because of the allegedly different scope of relief and/or standard of review which might obtain under mandamus as opposed to the APA. The mandamus statute provides that district courts "shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361.

Traditionally, mandamus would issue only upon a finding that there existed a ministerial, clearly defined, and peremptory duty on the part of the defendant to do the act in question, and that no other adequate remedy was available. See, e.g., Cervoni v. Secretary of HEW, 581 F.2d 1010, 1019 (1st Cir.1978). However, there has been a recent judicial trend toward expanding the scope of mandamus relief to include review of discretionary agency action. Davis Assocs., Inc., 498 F.2d at 389 n. 5. But in the instant case it is apparent that any remedy available under mandamus would be coextensive with that available under APA § 706(1). Section 706(1) provides that a reviewing court may "compel agency action unlawfully withheld or unreasonably delayed." Courts and commentators have found the scope of relief provided by this section to be the equivalent of that available under mandamus. See, e.g., K.C. Davis, Administrative Law Treatise, § 23:10 at 165 (1983) ("under ... § 706(1) ... a court may grant mandatory relief, whether the plaintiff seeks mandamus or mandatory injunction or uses some other language to designate mandatory relief"); Carpet, Linoleum and Resilient Tile Layers v. Brown, 656 F.2d 564, 567 (10th Cir.1981) (the mandatory injunction being sought was "essentially in the nature of mandamus" and therefore its issuance could be based on mandamus or the APA, or both). The court finds this view of the scope of relief under mandamus and the APA applicable to the instant case.

Plaintiffs also suggest that the availability of mandamus jurisdiction would empower the court to engage in independent fact finding rather than simply to review the agency's findings under the APA's arbitrary and capricious standard.⁴ Courts have indicated that independent fact finding under mandamus is appropriate in some circumstances, even where agency action is under review. See, e.g., Carpet, Linoleum and Resilient Tile Layers, 656 F.2d at 567-68, (allegations that government agencies were not adequately enforcing provisions of the Davis-Bacon Act, if proved at trial on merits, would warrant mandamus relief); Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 26-27 (3rd Cir.1975) (claim that Secretary of HUD failed to perform duties to publicize availability of flood insurance, if "proved" on remand to district court, would warrant mandamus.)

However, even if appropriate in some situations, independent fact finding is not so in the instant case. The court finds in the pertinent statutes and executive orders no language or legislative intent indicating that the fact-finding process was meant to be entrusted in the final instance to the courts rather than the agency. See, e.g., Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C.Cir.1982). In fact, the statutes and executive orders grant the Secretary significant discretion in his management of the Seashore. And plaintiffs' suggestion is further belied by the fact that here, unlike in some cases where independent fact finding has occurred under mandamus, the relevant issues are particularly within the agency's competence and expertise. See, e.g., ...