Greater Yellowstone Coalition v. Kempthorne, Civ. No. 07-2111(EGS).

CourtU.S. District Court — District of Columbia
Writing for the CourtEmmet G. Sullivan
Citation577 F.Supp.2d 183
PartiesGREATER YELLOWSTONE COALITION, et al., Plaintiffs, v. Dirk KEMPTHORNE, et al., Defendants. National Parks Conservation Association, Plaintiff, v. United States Department of Interior; National Park Service, Defendants.
Docket NumberCiv. 07-2112(EGS).,Civ. No. 07-2111(EGS).
Decision Date15 September 2008
577 F.Supp.2d 183
Dirk KEMPTHORNE, et al., Defendants.
National Parks Conservation Association, Plaintiff,
United States Department of Interior; National Park Service, Defendants.
Civ. No. 07-2111(EGS).
Civ. 07-2112(EGS).
United States District Court, District of Columbia.
September 15, 2008.

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David S. Baron, Earthjustice, Robert David Rosenbaum, Arnold & Porter LLP, Washington, DC, Douglas L. Honnold, Sean M. Helle, Earthjustice, Bozeman, MT, for Plaintiffs.

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Barry Alan Weiner, Guillermo A. Montero, Luther L. Hajek, U.S. Department of Justice, General Litigation Section, Washington, DC, for Defendants.


EMMET G. SULLIVAN, District Judge.

The instant case represents the latest in a series of challenges to the regulations promulgated by the National Park Service ("NPS") concerning snowmobile use in the National Parks. The regulations currently at issue propose new restrictions on recreational snowmobiling in Yellowstone and Grand Teton National Parks and the John D. Rockefeller Jr. Memorial Parkway (collectively "the parks"). There are two plaintiffs in this action. The first is the Greater Yellowstone Coalition, a group of conservation organizations that "take an active interest in maintaining the integrity of the National Park System." This group includes the Sierra Club, the Winter Wildlands Alliance, the Wilderness Society, and the Natural Resources Defense Council (collectively "GYC"). GYC Compl. ¶ 7. The second Plaintiff is the National Parks Conservation Association ("NPCA"), the largest national organization in the United States dedicated to the protection and enhancement of the National Park System. NPCA Compl. ¶ 8. Defendants are the National Park Service, Dirk Kempthorne, in his official capacity as the Secretary of the Interior, Mary Bomar in her official capacity as Director of the National Park Service, and Mike Snyder in his official capacity as Director of the Intermountain Region of the U.S. National Park Service (collectively "NPS").

The new Winter Use Plan ("WUP," "Rule," or "Plan") promulgated by Defendants allows 540 recreational snowmobiles and eighty-three snowcoaches to enter Yellowstone National Park every day. Plaintiffs allege that this number is so high as to render the plan arbitrary and capricious in violation of the Administrative Procedure Act ("APA") and procedurally flawed in violation of the National Environmental Policy Act ("NEPA"). Plaintiffs also claim that the plan violates the NPS Organic Act, the Yellowstone Enabling Act, NPS regulations, and two Executive Orders. Specifically, Plaintiffs' arguments focus on the WUP's substantive and procedural deficiencies as they relate to the plan's impacts on the parks' natural soundscapes, air quality, and wildlife. Agreeing that there are no facts in dispute, Plaintiffs and Defendants have filed cross-motions for summary judgment. The Court held a hearing on the motions on August 27, 2008, and the parties filed short post-hearing briefs. Upon consideration of the motions, the responses and replies thereto, oral argument at the hearing, the post-hearing briefs, the applicable law, and the entire administrative record in this case, the Court GRANTS Plaintiffs' Motion for Summary Judgment and DENIES Defendants' Motion. The 2007 Winter Use Plan, the 2007 Final Environmental Impact Statement ("FEIS"), and the 2007 Record of Decision ("ROD") are hereby vacated and remanded to the agency for proceedings consistent with this opinion.

I. Procedural History

This Court's involvement in the ongoing series of cases regarding Yellowstone's winter management began in 1997 and has continued nearly without pause to the present day. See Fund for Animals v. Norton, 323 F.Supp.2d 7 (D.D.C. 2004)("FFA II"); Fund for Animals v. Norton, 294 F.Supp.2d 92 (D.D.C. 2003)("FFA I"); Fund for Animals v. Babbitt, 97-cv-1126 (EGS) (filed May 20, 1997). Over the years, environmental and recreation groups have challenged the Park Service's restrictions on the use of

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snowmobiles in the parks, with the more recent controversies growing out of a year 2000 Record of Decision ("2000 ROD") which found that the use of snowmobiles at present levels so harmed the integrity of the parks' resources and values that it violated the NPS Organic Act. See Record of Decision, Winter Use Plans for the Yellowstone and Grand Teton National Parks and John D. Rockefeller Jr. Memorial Parkway, 65 Fed.Reg. 80,908, 80,916 (Dec. 22, 2000). In light of this finding, in 2001, NPS published a Final Rule calling for the eventual phase-out of personal snowmobiles in the parks, and instead recommended continued winter access through the use of a snowcoach mass transit system. FFA I, 294 F.Supp.2d at 100. The "phase-out rule," promulgated by the Clinton administration, was published the day after President George W. Bush took office, and was immediately stayed pending a review of the Rule by the new administration. Id. In response to litigation brought by snowmobile manufacturers and enthusiasts, NPS prepared a Supplemental EIS ("SEIS") in 2003. The SEIS proposed a dramatic change of course. In place of the planned phase-out, NPS set a new limit of 950 snowmobiles per day in Yellowstone. Id. at 101. Following two lawsuits in this Court and one in the District of Wyoming, NPS put into effect a "Temporary Winter Use Plan" which allowed a daily limit of 720 snowmobiles. Under the temporary plan, all snowmobiles entering the parks were required to meet "best available technology" standards for noise and emissions, and were also required to be accompanied by a commercial guide. This temporary plan was to be in effect for three winter seasons, from 2004 through 2007, and then replaced with a long-term winter use plan in 2007/2008. It is the new long-term plan that is the subject of the instant case.

On September 24, 2007, NPS published its Winter Use Plan Final Environmental Impact Statement ("FEIS"). The complete plan was published in a November 20, 2007 Record of Decision ("2007 ROD"). The 2007 ROD claims to address this "Court's various concerns regarding the winter use 2003 Supplemental EIS" and allows 540 recreational snowmobiles per day, subject to "best available technology" standards, (hereinafter, "BAT"), 100% commercial guiding, and a requirement that all snowmobilers travel in groups of eleven or less. The Rule also requires that all snowcoaches and administrative snowmobiles implement BAT standards by 2011. 2007 ROD at 5. On November 20 and 21, 2007, two lawsuits were filed in this Court by GYC and NPCA, respectively. Both suits allege that the FEIS and 2007 ROD in this case failed to comply with the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA"). On December 18, 2007, NCPA amended its complaint to include a challenge to the 2007 Final Rule, which was published on December 13, 2007. In addition to NEPA and the APA, NPCA contends that the 2007 Final Rule violates the National Park Service Organic Act, and governing Executive Orders and NPS Regulations. The GYC Plaintiffs likewise amended their complaint on January 11, 2008 to also challenge the Final Rule bringing similar claims. The cases were consolidated by Order of this Court on March 19, 2008.

The Plan at issue was selected as one of seven alternatives analyzed in the 2007 FEIS. The alternatives ranged from a "no action" alternative which would have ended all oversnow vehicle ("OSV") use in the parks, to an "expanded recreational use" alternative which would have allowed up to 1025 snowmobiles per day. The details of the Winter Use Plan (also known as "Alternative 7" in the FEIS) are as follows. Recreational snowmobiles are limited to 540 per day in Yellowstone and snowcoaches

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are limited to eighty-three per day. All snowmobiles must meet Best Available Technology ("BAT") standards for emissions and noise. Snowcoaches and administrative snowmobiles (including park staff and concessionaires) must also meet BAT standards by the 2011-2012 winter season. All snowmobiles must be accompanied by commercial guides and must travel in groups of one to eleven. (Note that an individual snowmobiler and his/her paid guide constitute a "group" under this definition). The plan calls for continuing the "Adaptive Management Program" created under the Temporary Rule to determine if certain goals relating to soundscapes, air quality, and the protection of wildlife are being met. The original plan called for Sylvan Pass, which connects the East Entrance of the Park to Cody, Wyoming, to be closed. However, the ROD was amended July 10, 2008 and now allows for the pass to be open subject to "full avalanche forecasting." Amended 2008 ROD at 3.

On December 13, 2007, the state of Wyoming filed a petition for review of agency action in the U.S. District Court for the District of Wyoming. The petition challenged the 2007 FEIS, 2007 ROD, and 2007 Final Rule, alleging that those actions violate NEPA, the APA, the Organic Act, the Yellowstone National Park Act, and the United States Constitution insofar as they (1) impose daily limits on snowmobile access to Yellowstone (2) impose a commercial guide requirement; and (3) impose a new management scheme for Sylvan Pass. Defs.' Mot. at 9. On January 2, 2008, the Board of County Commissioners of the County of Park filed a nearly identical petition. Id. The two Wyoming cases were consolidated by Order dated February 19, 2008. Id. On February 22, 2008, the International Snowmobile Manufacturers Association, the American Council of Snowmobile Associations, the Blue Ribbon Coalition, and Terri Manning (collectively "ISMA") filed a motion to intervene as plaintiffs in the consolidated Wyoming cases, challenging the 2007 Final Rule's reduced limit of 540 snowmobiles per day in Yellowstone and the commercial guide...

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