Pub. Emps. for Envtl. Responsibility v. Nat'l Park Serv.
| Decision Date | 30 March 2021 |
| Docket Number | Civil Action No.: 19-3629 (RC) |
| Parties | PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, et al. Plaintiffs, v. NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR; MARGARET EVERSON, in her official capacity; and SCOTT DE LAVEGA, in his official capacity. Defendants. |
| Court | U.S. District Court — District of Columbia |
Re Document No.: 10, 11, 18, 20, 21, 25
Plaintiffs, a collection of non-profit environmental organizations and interested individuals, bring this action against the National Park Service, the United States Department of the Interior, the Director of the National Park Service, and the Secretary of the Interior, challenging the National Park Service's issuance of a policy memorandum concerning the use of electric-assisted bicycles in National Parks under the Administrative Procedure Act (the "APA"),5 U.S.C. §§ 701-06 (2012), and various other statutes. Plaintiffs seek declaratory and injunctive relief. While this case was pending, the National Park Service undertook a rulemaking and promulgated a Final Rule on the topic of electric bicycles, superseding the policy memorandum that was the focus of Plaintiffs' original complaint. Plaintiffs request leave to file a supplemental complaint to incorporate new facts and allegations pertaining to the Final Rule. In the meantime, Defendants have filed a motion to dismiss, contending that as a result of the promulgation of the Final Rule this action is now constitutionally and prudentially moot. The Court grants Plaintiffs leave to supplement their complaint, as it finds this request to be in the interest of judicial economy, with a limited risk of undue delay or prejudice to Defendants. Furthermore, because the Court retains the power to grant effective relief, it finds that Plaintiffs' claims are not moot and can proceed.
Plaintiffs, who include Public Employees for Environmental Responsibility, Wilderness Watch, the Environmental Action Committee of West Marin, the Marin Conservation League, Save Our Seashore, Amy Meyer, Phyllis Koenig, and David Perel (collectively, "Plaintiffs") have brought this action against the National Park Service ("NPS"), the United States Department of the Interior, and in their official capacities acting Director of the National Park Margaret Everson and acting Secretary of the Interior Scott de la Vega (collectively, "Defendants"), challenging the NPS's policy regarding the use of electric-assisted bicycles ("e-bikes") in the National Park system. Compl. ¶¶ 1, 9-18, ECF No. 1.
On August 29, 2019, the Secretary of the Interior signed Secretarial Order 3376 entitled "Increasing Recreational Opportunities through the Use of Electric Bikes" ("Secretarial Order")to address the use of e-bikes on lands managed by the United States Department of the Interior. Compl. ¶ 32; see also generally Secretarial Order, ECF No. 10-2. The order purportedly sought to clarify any public uncertainty as to whether e-bikes "should be treated in the same manner as other types of bicycles or alternatively, [be] considered to be motor vehicles." Secretarial Order at AR-0915. To that end, the Secretarial Order defined what constituted an "e-bike" and set out a policy that vehicles that fall within the definition "shall be allowed where other types of bicycles are allowed" and "shall not be allowed where other types of bicycles are prohibited." Compl. ¶ 32; see also Secretarial Order at AR-916. Essentially, e-bikes were to be treated in the same manner as traditional, non-electric bicycles.
The Secretarial Order also directed the NPS to develop a proposed rule in accord with the order, that revised current NPS regulations to add a definition for e-bikes and to "expressly exempt all e-bikes as defined under the Order from the definition of motor vehicles." Compl. ¶ 32; see also Secretarial Order at AR-916.
The very next day, Deputy NPS Director Daniel P. Smith issued a policy memorandum ("the Smith Directive"), under the authority of the Director of the NPS addressing the use of e-bikes on NPS lands. Compl. ¶ 34; see generally Smith Directive, ECF No. 10-3. Deputy Director Smith issued the policy while "exercising the authority of the [NPS] Director." Smith Directive at 1. The Smith Directive's stated intent was to "allow e-bikes to be used for transportation and recreation in a similar manner to traditional bicycles." Smith Directive at 3; see also Compl. ¶ 34. To this end, the directive parroted language from the Secretarial Order, stating that "e-bikes are allowed where traditional bicycles are allowed" but "are not allowed where traditional bicycles are prohibited, including wilderness areas." Smith Directive at 2. Park superintendents were "directed to manage e-bikes consistent with this Memorandum." Id.at 4. The directive also required park superintendents to update their park compendium to include a definition of e-bike and the statement that "E-bikes are allowed in [insert name of park] where traditional bicycles are allowed," among other updates. Id. The directive noted that these updates "must" be taken "as soon as possible" and no later than 30 days after either the issuance of the Smith Directive or the introduction of e-bikes to the park, whichever was later. Id.
Over a year later, on November 2, 2020, after undergoing notice and comment pursuant to the APA, the NPS published in the Federal Register its final e-bikes rule. See Defs.' Mot. Dismiss Ex. 1 ("Final Rule"), ECF No. 24-1. The Final Rule was signed by the Assistant Secretary of Fish, Wildlife and Parks for the Department of the Interior, Rob Wallace, who had been confirmed by the Senate to this position on June 27, 2019.2 Id. at 69,188. The NPS published the proposed rule on April 8, 2020. See General Provisions, Electric Bicycles, 85 Reg. 19, 711 (Apr. 8, 2020). The Final Rule went into effect on December 2, 2020. Final Rule at 69,177.
There are differences between the Smith Directive and Final Rule. First, the Final Rule amended NPS Regulation 36 C.F.R. § 1.4 to add a new category of "electric bicycle" and exclude e-bikes from the definition of "motor vehicles." Final Rule at 69, 177 and 69,188. This differs from the Smith Directive, which simply changed its interpretation of NPS's existingregulations to conclude that e-bikes do not fall into the category of "motor vehicles." The Final Rule also uses more permissive language than the Smith Directive, providing that "electric bikes may be allowed on roads, parking areas, administrative roads and trails that are open to bicycles." Final Rule at 69,188 (emphasis added). In contrast, the Smith Directive indicated to park superintendents that "[e]-bikes are allowed where traditional bicycles are allowed." Smith Directive at 2.
The text of the Final Rule explicitly states that, "once effective, [the Final Rule] will supersede and replace [the Smith Directive]." Final Rule at 69,177. Despite this statement, Plaintiffs argue that the Smith Directive continues to have ongoing policy consequences despite the issuance of the Final Rule. They point to text in the Final Rule's Preamble which notes that as of the date of publication, "380 units of the National Park System have implemented the e-bike policy [pursuant to the Smith Directive] . . . this means that for each of these NPS units e-bikes are already allowed subject to the rules governing them that are set out in the compendium and no further action would be needed to reauthorize[] the continued use of e-bikes under this regulation." Id. at 69,176. Accordingly, these 380-park specific-approvals of e-bikes made under the Smith Directive regime would appear to continue to this day, without needing to be re-certified under the current Final Rule.
Plaintiffs filed the original complaint in this action on December 5, 2019, seeking declaratory and injunctive relief, inter alia, prohibiting Defendants from allowing e-bikes in the National Park system without completing a rulemaking. See Compl. ¶¶ A-L. The complaint included five claims brought pursuant to the APA and various other statutes. Id. ¶¶ 52-83. Plaintiffs' first claim alleges that the Smith Directive impermissibly amended long-existing NPSregulations on bicycle use in National Parks by putting e-bikes under general bicycle regulations through the "false guise" of a policy change. Compl. ¶¶ 52-61.3 They contend that this action violated the APA by circumventing the notice and comment procedures required by the APA for amending existing regulations, while also violating existing NPS regulations. Id. ¶¶ 32-40, 52-61 (Claim I). In their second claim, Plaintiffs assert that the Smith Directive violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(c), due to Defendants' alleged failure to prepare either an environmental assessment or an environmental impact statement to assess the environmental implications of the Smith Directive. Compl. ¶¶ 40, 62-66 (Claim II).
Plaintiffs also find fault with the method by which the Smith Directive was promulgated. They argue in their third claim that the Smith Directive was ultra vires because former Deputy NPS Director Smith, who issued the Smith Directive under the authority of an "acting Director" of the NPS, lacked proper authority to hold this position under the Federal Vacancies and Reform Act ("FVRA"), 5 U.S.C. §§ 3345-3349. Compl. ¶¶ 68-71 (Claim III). Similarly, in their fourth claim, Plaintiffs assert that because the NPS Organic Act, 54 U.S.C. § 100302,...
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