National Park and Conservation Ass'n v. Stanton, Civil Action No. 98-615(GK).

• Decision Date: 14 June 1999
• Docket Number: Civil Action No. 98-615(GK).
• Citation: 54 F.Supp.2d 7
• Parties: NATIONAL PARK AND CONSERVATION ASS'N, et al., Plaintiffs, v. Robert STANTON, Director, Nat'l Park Serv., et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 7

54 F.Supp.2d 7

NATIONAL PARK AND CONSERVATION ASS'N, et al., Plaintiffs, v. Robert STANTON, Director, Nat'l Park Serv., et al., Defendants.

Civil Action No. 98-615(GK).

United States District Court, District of Columbia.

June 14, 1999.

COPYRIGHT MATERIAL OMITTED

David Allen Kikel, Hogan & Hartson, L.L.P., Washington, DC, for plaintiffs.

Heidi Kukis, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Anthony P. Hoang, Geoffrey Garver, U.S. Dept. of Justice, Environment & natural Resources Division, Washington, DC, for defendants.

MEMORANDUM OPINION

KESSLER, District Judge.

Plaintiffs National Parks and Conservation Association ("NPCA"), Barry Harper, and the American Canoe Association ("ACA") bring this suit against Robert Stanton, Director of the National Park Service ("NPS"), and Bruce Babbitt, Secretary of the Department of the Interior ("Secretary"), challenging Defendants' plan for management of the Niobrara National Scenic River ("Niobrara"), located in Nebraska. The challenged management plan, under which NPS delegates all its responsibilities for managing the Niobrara to an independent local council over which NPS has virtually no control, is the first of its kind. Plaintiffs also challenge the adequacy of the Environmental Impact Statement created by Defendants pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA").

This matter is now before the Court on the parties' cross-motions for summary judgment. Upon consideration of the motions, oppositions, replies, and the entire record herein, for the reasons discussed below, Plaintiffs' Motion for Summary Judgment [# 18] is granted, and Defendants' Motion for Summary Judgment [# 19] is denied.

I. Background¹

The Niobrara, a unique river with abundant resources that runs through north-central Nebraska, is known for its historical, paleontological, archaeological, and ecological treasures. 137 Cong.Rec. H2299 (daily ed. May 14, 1991) (statement of Representative Hoagland). Its forests abound with ponderosa pine, American elm, but oak, green ash, basswood, hackberry, and black walnut trees. A.R. at 1028-29. There is striking bio-diversity among the vegetation, where 160 plant species from eastern, western, and northern forest ecosystems intermingle along the River valley. A.R. at 1028. The Niobrara provides shelter and homes for bald eagles, turkeys, grouse, quails, doves, pheasants, ducks, and geese. A.R. at 1030. It is also home to several threatened and endangered species, including the peregrine falcon, the interior least tern, the piping plover, and the whooping crane. Id. Palaeontologists find a wealth of artifacts on the fossil beds along the Niobrara, including deposits from eighty species of extinct vertebrates. A.R. at 1028. In one fossil excavation site, at least 146 vertebrate species were found. Id. of the 164 cataloged fossil excavation sites, 15 were rated as internationally significant, and 37 were rated nationally significant. Id. The River was named one of the 10 best canoeing rivers in the nation by Backpacker magazine, and one of the eight special camping areas in the nation by Outside magazine. 137 Cong.Rec. H2299 (daily ed. May 14, 1991) (statement of Representative Hoagland).

One of the Niobrara's unique features is that it runs largely through private land. In 1991, Congress, despite local opposition, designated portions of the Niobrara to become components in the pre-existing national Wild and Scenic Rivers system. Niobrara Scenic River Designation Act of 1991, Pub.L. 102-50, 105 Stat. 254 (1991) ("NSRDA"); 16 U.S.C. § 1274(a)(117). Recognizing that the area along the River was largely privately-held, Congress limited the amount of land the federal government could acquire, and encouraged state and local involvement in the administration and management of the River locale. NSRDA, 105 Stat. at 255. Congress also created the eleven member Niobrara Scenic River Advisory Commission ("Advisory Commission"), an advisory group representing local interests, for the purpose of aiding NPS in developing a management plan for the area. Id.

As the agency responsible for overseeing the administration of the Niobrara, NPS developed, with the help of the Advisory Commission, a General Management Plan and Environmental Impact Statement ("GMP/EIS"). The GMP/EIS outlined four management alternatives for administering the Niobrara: Alternative A, which called for no action, was the baseline against which to compare the other plans; Alternative B provided for management by a local council, which would include members from various county and state agencies, as well as local landowners and business people; Alternative C provided for partnership management between NPS and local entities, where any necessary services needed in managing the River would be provided by local entities; and Alternative D provided for NPS management with involvement of local entities. In its EIS, NPS considered Alternatives B, C, and D together, without evaluating possible environmental impacts that might occur under one alternative but not others. NPS explained that it created the EIS in this manner because it did not believe the impacts of the three alternatives would be different, since they shared a common goal.

NPS chose Alternative B as the preferred strategy for managing the Niobrara, and that decision was memorialized in the Record of Decision ("ROD"), as was the general management plan and final EIS for the Niobrara. In July of 1997, NPS entered into the Interlocal Cooperative Agreement ("Interlocal Agreement") with local Nebraska governmental entities. The Interlocal Agreement established the Niobrara Council ("Council"), and outlined the Council's duties, which included: enter into agreements with NPS or the U.S. Fish and Wildlife Service ("FWS"); obtain and use funds from any source to perform its functions; coordinate management of the Niobrara with the responsible agencies; assist the four cooperating counties in developing zoning and other land protection methods; review county zoning ordinances and actions for consistency with the GMP; provide a forum for landowner/government conflict; work with landowners and provide technical assistance where there is no zoning; manage law enforcement, public access sites, visitor use levels, and other operational functions; retain the services of professionals as necessary to perform its duties; retain staff members to perform its functions; and acquire and manage real and personal property for staff office purposes only. Interlocal Agreement, at ¶ 5. The Interlocal Agreement also noted that the Council should attempt to find outside sources of money, to avoid having NPS "dictate the decisions of the council." Id.

The Council may only be dissolved by act of the four cooperating counties, or by termination of the Interlocal Agreement by NPS. By-Laws of Niobrara Council, art. IV, ¶ 1 ("By-Laws"). Any of the four counties may withdraw from the Interlocal Agreement upon 60 days' notice, but the withdrawal of any county does not terminate the agreement. Interlocal Agreement, at ¶ 11.

The Council consists of fifteen members: four county commissioners (one from each participating county); four landowners (one from each participating county) two representatives of local Natural Resource Districts; one timber industry representative; one recreational business representative; one representative of the Nebraska Game and Parks Commission; one FWS representative; and one NPS representative. By-Laws, art. I, ¶ 4. Decisions are reached through simple majority vote. Id. at art. I, ¶ 10(k)(1).

On August 6, 1997, the Council entered into a Cooperative Agreement with NPS, as called for in the ROD. The Cooperative Agreement can be terminated by either party upon sixty days' notice, and can be modified by mutual written agreement. By-Laws, art. VII, ¶ A. If the Council fails to manage and protect the Niobrara as set forth in the GMP/EIS, NPS has the authority to terminate the Agreement and implement one of the other Alternatives for managing the Niobrara. Under the GMP/EIS, the Council must carry out its activities to meet standards acceptable to NPS. A.R. at 965-1175. Under the Cooperative Agreement, NPS must "consider for consistency with the GMP the advice and recommendations of the Council during and upon completion of its activities identified above." Cooperative Agreement, Art. II.B.

Plaintiffs allege that although it has been over one and a half years since the Council was established, nothing has been done to protect or manage the Niobrara's resources. Plaintiffs challenge the decision to adopt Alternative B, the duties that have been delegated to the Council, and NPS' compliance with NEPA. Plaintiffs seek an injunction requiring NPS to administer the Niobrara itself, and requiring NPS to complete a more thorough EIS under NEPA.

II. Standard of Review

All parties recognize that the Court is bound by a highly deferential standard of review for agency action. Under the Administrative Procedure Act ("APA"), an agency's action may be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In exercising its narrowly defined duty under the APA, the Court must consider whether the agency acted within the scope of its legal authority, adequately explained its decision, based its decision on facts in the record, and considered the relevant factors. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

III. Analysis

The three issues presented in this case are whether Plaintiffs have standing to bring either of their claims, whether NPS has unlawfully delegated its responsibilities to the Council, and whether NPS' EIS is...