Riverhawks v. Zepeda
| Decision Date | 14 May 2002 |
| Docket Number | No. CIV.01-3035-AA.,CIV.01-3035-AA. |
| Citation | 228 F.Supp.2d 1173 |
| Parties | RIVERHAWKS; Northwest Rafters Association; Klamath-Siskiyou Wildlands Center, Plaintiffs, v. Gilbert ZEPEDA, District Ranger, Ranger, Gold Beach Ranger District; Ann Veneman, Secretary, U.S. Department of Agriculture; U.S. Forest Service, Defendants. |
| Court | U.S. District Court — District of Oregon |
Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, Julia A. Olson, Wild Earth Advocates, San Francisco, CA, for plaintiffs.
Michael W. Mosman, United States Attorney, Thomas C. Lee, Assistant U.S. Attorney, Val McLam Black, Special Asst. U.S. Attorney, U.S. Dept of Agriculture, Portland, for defendants.
Paul Turcke, Moore Smith Buxton & Turcke, Boise, ID, for defendant-intervenor Rogue Alliance.
Plaintiffs filed suit seeking declaratory and injunctive relief, claiming that defendants' authorization of motorboat use within the wild segment of the Rogue River violates the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.C. §§ 1271 et seq, the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4331 et seq. Plaintiffs seek review of their claims under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-606, arguing that defendants' actions are arbitrary, capricious, and not in accordance with law. Plaintiffs and defendants now move for summary judgment on the issue of liability. Plaintiffs' motion is granted with respect to their NEPA claim, and defendants' motion is granted with respect to all other claims.
In 1968, the Rogue River was designated as a component of the national wild and scenic rivers system under the WSRA. 16 U.S.C. § 1274(a)(5). The Rogue Wild and Scenic River ("Rogue WSR") is 84 miles long and is divided into two segments, each managed by a different federal agency. The first segment, approximately 47 miles long, flows from the mouth of the Applegate River downstream to Marial and is administered by the United States Bureau of Land Management ("BLM"). The second segment, approximately 37 miles long, flows from Marial downstream to the Lobster Creek Bridge and is administered by defendant United States Forest Service ("Forest Service"). Within the second segment is a 33-mile stretch which flows from Grave Creek downstream to Watson Creek and is classified as "wild" under the WSRA. See 16 U.S.C. § 1273(b)(1). Within this wild segment, the Forest Service administers a 12-mile stretch of the river from Blossom Bar downstream to Watson Creek. It is this 12-mile segment of the Rogue WSR that is the subject of plaintiffs' suit.
In 1972, the Forest Service and the BLM adopted a joint River Management Plan for the Rogue WSR. See 37 Fed.Reg. 13408. At that time, the Oregon State Marine Board ("OSMB") regulated motorized uses of the Rogue WSR. Id. at 13410. In 1976, the OSMB began implementing a policy limiting certain motorized uses of the wild section. Administrative Record Compilation of Documents ("AR Comp."), 652-710. Commercial motorboat use was limited to six boat trips per day, and motorized use by commercial fishing guides and private landowners was limited annually to the highest number of trips completed in any one year prior to January 1, 1976. AR Comp. 377-78. Private noncommercial boaters were required to obtain a permit, but there was no limit on the number of permits issued. Id.; AR Comp. 699.
Beginning in 1979, the Forest Service acquired regulatory duties over the wild segment, and in 1986, the Forest Service required special use permits for commercial motorboat use pursuant to 36 C.F.R. § 261.58(z). AR Comp. 1173-77. When the Forest Service assumed full regulatory authority over motorized uses in 1986, the levels of permitted motorized uses were maintained under an agreement with OSMB. AR Comp.1929-41. Subsequently, the Forest Service phased in limits on non-commercial motorized uses.
Currently, the Forest Service issues six permits per day for non-commercial motorized use of the wild section between May 15 and November 15. AR Comp. 4145. The permits may be obtained from the Cougar Lane Store in Agness, Oregon. Id. No permit is required for non-commercial motorized use from November 15 to May 15. Private landowners are allowed unlimited motorized use to access their property, and Paradise Lodge has a permit which allows two boat trips per day with a seasonal limit of 180 trips to transport lodge guests. As was established in 1976, commercial tour boat uses of the wild section are authorized through special use permits and limited to six trips per day.
On January 31, 2000, the Forest Service issued a Decision Memo authorizing reissuance of the special use permits through the 2004 season. RogueJets AR, 554B-554D. No public notice or opportunity for comment was given prior to the reissuance of the permits. RogueJets AR, 554C. The Forest Service reissued the special use permits to Mailboat UpRiver Trips, Inc., RogueJets, Inc. (dba Jerry's Rogue Jets), Jack Hunt, Edison Davis, Bill McNair, and Ernie Rutledge. The majority of these permits have been held since the late 1970s or early 1980s. See RogueJets AR, 554A.
The Mailboat permit authorizes one commercial tour boat trip per day in the wild section. Mail Boats AR, 269. The RogueJets permit authorizes five commercial tour boat trips per day in the wild section during the permit season. RogueJets AR, 534. The Hunt permit authorizes 271 annual priority days, with 45 outfitter trips allowed annually into the wild section. Jack Hunt AR, 162. The Davis permit authorizes 190 annual priority days for commercial fishing tours, with 60 trips allowed annually into the wild section. Edison Davis AR, 284. The McNair permit authorizes 110 annual priority days for commercial fishing guide service, with 45 trips allowed annually into the wild section of the river. Bill McNair AR, 150. Rutledge is authorized 203 priority use days, with 76 outfitter priority trips allowed annually into the wild section. Ernie Rutledge AR, 284. In 1998, after negotiations with several of plaintiffs' representatives, the Forest Service issued a permit to Paradise Lodge for the purpose of transporting lodge guests.1 See AR Comp. 6196-6199.
Prior to the Decision Memo on January 31, 2000, effects of motorized boat use were analyzed in several studies. See, e.g., AR Comp. 3231, Rogue River User Study: Wild Rogue Planning and Policy Study (Dec.1992) (study by Forest Service and BLM to assess river uses); AR Comp. 3843, Rogue River Erosion/Deposition Study (Dec.1993) (BLM study of motorboat impacts on riverbank erosion and sedimentation); RogueJets AR, 463A-463BK, Effects of Boat Traffic on Juvenile Salmonids in the Rogue River (Dec.1995) (BLM study of motorboat effects on juvenile salmon in recreation section of river); RogueJets AR, 531C-531I, Outfitter Guides and Tour Boats on the Rogue River, Biological Evaluation (Nov.1999) (evaluation of commercial tour boats on sensitive species). In 2001, the Forest Service conducted a survey of the Western Pond Turtle and another erosion study. See AR Supp. Comp 7308-7383, Western Pond Turtle Survey (Oct.2001), and AR Supp. Comp. 7384-7504, Lower Rogue River Bank Erosion Between Blossom Bar and Foster Bar, and Comparison With Nearby Reaches (Oct.2001). Recently, the Forest Service gave public notice of its intent to revise the 1972 River Management Plan. See Second Declaration of Paul Turcke, Exhibit B.
Plaintiffs seek a declaration that the Forest Service authorized motorboat use within the wild segment of the Rogue River in violation of the WSRA, NFMA, and NEPA, and that the Forest Service's actions are arbitrary, capricious, and not in accordance with law under the APA. Specifically, plaintiffs allege that the Forest Service's authorization of motorboat use in excess of 1968 levels violates WSRA and the River Management Plan. Plaintiffs also contend that the Forest Service's actions violate NFMA by failing to ensure the viability of sensitive wildlife species. Finally, plaintiffs assert that the Forest Service unlawfully issued the special use permits by categorically excluding them from the environmental analyses required by NEPA. Plaintiffs request that the court issue an injunction enjoining motorboat use in the wild section of the Rogue WSR that exceeds 1968 levels and requiring defendants to prepare a recreation plan for the Rogue WSR.2
Neither the WSRA, NFMA, nor NEPA provide a private cause of action for the claims asserted by plaintiffs. See Hells Canyon Alliance v. United States Forest Service, 227 F.3d 1170, 1176 (9th Cir.2000) (WSRA and NEPA); Ecology Center, Inc. v. United States Forest Service, 192 F.3d 922, 924-25 (9th Cir.1999) (NFMA). Therefore, plaintiffs must seek review of their claims under the APA. 5 U.S.C. § 702 (). Judicial review of an agency action is limited to a "final agency action for which there is no other adequate remedy." 5 U.S.C. § 704; Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
Under the APA, an agency decision must be upheld unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (). Although Citizens to Preserve Overton Park,...
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