Mausolf v. Babbitt, 96-1856

• Decision Date: 23 September 1997
• Docket Number: No. 96-1856,96-1856
• Parties: 28 Envtl. L. Rep. 20,057 Jeffrey MAUSOLF; William Kullberg; Arlys Strehlo; Minnesota United Snowmobilers Association, Plaintiffs-Appellees, v. Bruce BABBITT, Secretary, Department of the Interior; Roger Kennedy, Director, National Park Service; Mollie Beattie, Director, U.S. Fish and Wildlife Service; Ben Clary, Superintendent, Voyageurs National Park, Defendants; Voyageurs Region National Park Association; Sierra Club, North Star Chapter; Humane Society of the United States; Friends of the Boundary Waters Wilderness; National Park and Conservation Association; Izaak Walton League of America, Intervenor Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 661

125 F.3d 661

28 Envtl. L. Rep. 20,057

Jeffrey MAUSOLF; William Kullberg; Arlys Strehlo;

Minnesota United Snowmobilers Association, Plaintiffs-Appellees, v. Bruce BABBITT, Secretary, Department of the Interior; Roger

Kennedy, Director, National Park Service; Mollie Beattie,

Director, U.S. Fish and Wildlife Service; Ben Clary,

Superintendent, Voyageurs National Park, Defendants;

Voyageurs Region National Park Association; Sierra Club,

North Star Chapter; Humane Society of the United States;

Friends of the Boundary Waters Wilderness; National Park

and Conservation Association; Izaak Walton League of

America, Intervenor Defendants-Appellants.

No. 96-1856.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 12, 1996.

Decided Sept. 23, 1997.

Brian B. O'Neill, Minneapolis, MN, argued (Richard A. Duncan, Michael A. Ponto, Elizabeth H. Schmiesing and Lisa A. Misher, on the brief), for Intervenor Defendants-Appellants.

Corey J. Ayling, Minneapolis, MN, argued, for Plaintiffs-Appellees.

Before BOWMAN and HEANEY, Circuit Judges, and STROM, ¹ District Judge.

BOWMAN, Circuit Judge.

The Voyageurs Region National Park Association and other conservation groups (collectively, "the Association") appeal from the decision of the District Court granting summary judgment to the Minnesota United Snowmobilers Association, Jeffrey Mausolf, and other individual snowmobiling enthusiasts ("the Snowmobilers"), who sued the Secretary of the Interior and other governmental defendants seeking to enjoin the enforcement of restrictions on snowmobiling in Voyageurs National Park ("the Park"). See Mausolf v. Babbitt, 913 F.Supp. 1334 (D.Minn.1996). We postponed issuing our decision in this case based on counsels' representations at oral argument that the parties hoped to negotiate a settlement. It appears, however, that the parties have been unable to reach an agreement, necessitating our resolution of this matter. We reverse.

I.

Establishment of Voyageurs National Park was authorized in 1971. See Pub.L. 91-661, 84 Stat. 1970 (codified as amended at 16 U.S.C. §§ 160-160k (1994)). Snowmobiling, which had been engaged in freely both prior to and after the Park's establishment, continued pending the results of wildlife-impact studies conducted by the National Park Service. See Mausolf, 913 F.Supp. at 1338. Although snowmobiling generally is prohibited in national parks, see 36 C.F.R. § 2.18(c) (1996), ² the Voyageurs Park enabling legislation authorized the Secretary of the Interior to permit snowmobiling in the Park. See 16 U.S.C. § 160h (1994) ("The Secretary may, when planning for development of the park, include appropriate provisions for (1) winter sports, including the use of snowmobiles....") In 1991, the NPS issued regulations, pursuant to statutory authority granted by Congress, see, e.g., 16 U.S.C. § 3 (1994), based on the results of a series of environmental and wildlife-impact reports, allowing snowmobiling on nearly all of the Park's lake surfaces and on certain overland trails and portage routes. See 36 C.F.R. § 7.33(b). These regulations also specifically authorize the superintendent of Voyageurs National Park to close portions of the Park temporarily after "taking into consideration ... wildlife management, ... and park management objectives." Id. § 7.33(b)(3). The Association filed suit in federal court claiming that, because the NPS failed to prepare a wilderness plan outlining the effects of the proposed regulations, the regulations were illegal. In an unpublished opinion, the District Court ordered that a wilderness plan be prepared and submitted as required by applicable regulations, but refused to enjoin snowmobiling in the Park. Voyageurs Regional Nat'l Park Ass'n v. Lujan, No. 4-90-434, 1991 WL 343370, at * 11-14 (D.Minn. Apr.15, 1991), aff'd, 966 F.2d 424 (8th Cir.1992).

In August 1991, the NPS, in accordance with the District Court's order, proposed a draft wilderness plan which reduced the Park areas available for overland snowmobiling but permitted the activity on major lakes, some designated portage routes, and the Chain of Lakes Trail. The NPS made this recommendation after concluding that snowmobiling on overland trails might adversely impact the gray wolf population. The NPS then requested a "biological opinion" ³ from the Fish and Wildlife Service (FWS) concerning the effects, if any, of the proposed action on gray wolf, bald eagle, and other animal populations in the Park. In March 1992, the FWS concluded that the NPS's proposed wilderness plan would not jeopardize the animals' survival or adversely affect their critical habitats. However, the FWS acknowledged that snowmobiler disruption of wolves while hunting prey, although likely insignificant in isolation, could lead to cumulatively significant negative effects if the disruptions were frequent. The FWS directed that the NPS close specific trails, lakeshores, and lakes to snowmobiles and other motorized vehicles, including areas that had been exempted from closure under the NPS's originally submitted wilderness plan.

Thereafter, in December 1992, Park officials issued an order ⁴ closing sixteen of the Park's lake bays and certain shoreline areas to snowmobiling pursuant to authority granted under 36 C.F.R. § 7.33(b)(3) (authorizing temporary closure of lake surfaces for wildlife-management purposes). This order, which was renewed in 1993 and 1994, reduced the Park areas available for snowmobiling. ⁵ In 1994, the FWS supplemented its biological opinion, stating that the lakeshore closures were designed to minimize the harm, harassment, and taking of gray wolves. The FWS, expressing its intent to reduce adverse human/wolf contact, explained that while snowmobiles themselves do not adversely impact the gray wolf, the vehicles provide access to remote wolf-habitat areas for individuals who could intentionally or unwittingly harm the species or its individual members. Five "incidents that constitute take by the harassment or harming of gray wolves," ⁶ and "numerous additional reports of harassment of gray wolves, ... most of which are anecdotal and not well documented," were cited by the FWS as support for the closures. 1996 Supplement to Biological Opinion at 6. The FWS revised its initial incidental take statement, ⁷ reducing the permissible number of incidental takings of gray wolves from six wolves to two wolves per year.

In January 1994, the Snowmobilers sued the Secretary of the Interior and other governmental defendants claiming that the FWS's biological opinion did not support the closures ultimately ordered, and that the closures were therefore arbitrary, capricious, and in violation of the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (1994)(ESA), and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1994) (APA). The Snowmobilers argued that the Secretary, through the NPS and the FWS, had engaged in an unexplained and unwarranted "about face" on the snowmobiling issue and had not considered the best available scientific and commercial information before issuing the new restrictions. The Association, hoping to defend the closures, moved to intervene, arguing that the NPS had historically permitted unrestricted snowmobiling in the Park despite regulations prohibiting such activity and despite its adverse environmental effect, and that the NPS could not be counted on to protect the Association's interests in wildlife conservation and enjoyment of the Park.

The District Court denied the Association's motion to intervene, noting that under the parens patriae doctrine, governmental entities are presumed to represent the interests of all their citizens. See Mausolf v. Babbitt, 158 F.R.D. 143, 147-48 (D.Minn.1994). The Association appealed the District Court's decision denying its motion to intervene, and we reversed, holding that the Association possessed the requisite Article III standing to intervene and that the Association had rebutted any presumption that the governmental entities would adequately represent its interests. See Mausolf v. Babbitt, 85 F.3d 1295, 1304 (8th Cir.1996).

While the Association's appeal on the intervention issue was pending before this Court, the District Court issued its decision on the merits of the Snowmobilers' challenge to the NPS's Park closure regulations. See Mausolf v. Babbitt, 913 F.Supp. 1334 (D.Minn.1996). The District Court, relying solely on the provisions of the ESA, enjoined enforcement of the Park closure regulations, noting that the government "failed to explain adequately the reasons for the closures" and that the "evidence presently in the record is inadequate to establish that curtailing snowmobiling will improve the condition" of the gray wolf population. Id. at 1343-44. Because it appeared that the Association's intervention appeal would not be decided by this Court before the expiration of the time period for filing a notice of appeal from the District Court's merits decision, and because the Association wished to preserve its right to appeal the District Court's decision on the merits should its motion to intervene be granted on appeal, the Association timely filed a notice of appeal from the District Court's decision on the merits. The governmental defendants likewise filed a notice of appeal from this decision, but eventually dismissed their appeal. The Association, having been granted the right to intervene by this Court, now appeals the District Court's judgment on the merits.

II.

We initially address the Snowmobilers' contention that we lack jurisdiction to entertain this appeal. The Snowmobilers first argue that because the Association was not a party to the litigation when its notice of appeal from the merits decision was filed and did not become a party until after the time period for filing had expired, the Association's notice of appeal was ineffective and we therefore lack jurisdiction to consider this appeal. We disagree.

"If final judgment is entered...