Sokol v. Kennedy

• Decision Date: 22 February 1999
• Docket Number: No. 8:97CV51.,8:97CV51.
• Citation: 48 F.Supp.2d 911
• Parties: David L. SOKOL, Plaintiff, v. Roger G. KENNEDY, in his official capacity as Director of the National Park Service; Bruce Babbitt, in his official capacity as Secretary of the United States Department of the Interior; and the United States of America, Defendants.
• Court: U.S. District Court — District of Nebraska

48 F.Supp.2d 911

David L. SOKOL, Plaintiff, v. Roger G. KENNEDY, in his official capacity as Director of the National Park Service; Bruce Babbitt, in his official capacity as Secretary of the United States Department of the Interior; and the United States of America, Defendants.

No. 8:97CV51.

United States District Court, D. Nebraska.

February 22, 1999.

Bartholomew L. McLeay, Michael J. Mills, Kutak, Rock Law Firm, Omaha, NE, for plaintiffs.

Sally R. Johnson, Assistant United States Attorney, Omaha, NE, for defendants.

MEMORANDUM AND ORDER

BATAILLON, District Judge.

Before me are the parties' cross-motions for summary judgment (Filing Nos. 47 [defendants] and 49 [plaintiff]). The plaintiff claims jurisdiction for this action under 28 U.S.C. §§ 1331 and 1346(b). The plaintiff's amended complaint (Filing No. 52) seeks a declaratory judgment pursuant to 28 U.S.C. § 2201 that the National Park Service 1) failed adequately to consider a bank-to-bank boundary alternative for the Niobrara Scenic River, and 2) failed to use the "outstandingly remarkable" standard of review when determining whether land adjacent to or in the immediate environment of the Niobrara Scenic River is eligible for inclusion in the National Wild and Scenic River System. The plaintiff claims that these alleged failures represent violations of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d (NEPA), leading the plaintiff to seek declaratory and injunctive relief under the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 706(A) and (D)(APA). I have carefully reviewed the record, the parties' briefs and extensive indexes of evidence, and the applicable law. I find that the defendants' motion for summary judgment should be granted and the plaintiff's motion for summary judgment should be denied.

I. Summary Judgment

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter; rather, the court must determine whether a genuine issue exists for trial. The Eighth Circuit has recognized that primarily legal issues are amenable to summary disposition. See, e.g., Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir.1995). Therefore, because the issues presented for resolution are essentially legal in nature, summary disposition of this case is appropriate.

II. Background

The basic facts in this case can be found in a prior memorandum and order (Filing No. 46 at 2-6) in which I granted partial summary judgment to the plaintiff on the issues of subject matter jurisdiction and standing. In brief, the plaintiff bought a ranch in Cherry County, Nebraska, on the Niobrara River in 1991, five months after Congress designated the Niobrara River a component of the Wild and Scenic River System. In this action, he asks me to set aside the Record of Decision of the National Park Service (NPS) in which the NPS established the boundaries of the Niobrara River as a national scenic river under the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. §§ 1271-1287. The parties' briefs and evidence, particularly the Administrative Record submitted as part of the defendants' index of evidence, set out the following framework for the dispute.

With the WSRA, Congress protects designated "free-flowing" streams and the "related adjacent land area that possesses one or more of the values referred to in section 1271." 16 U.S.C. § 1273(b). Section 1271 provides that

certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values shall be preserved in free-flowing condition, and ... they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.

16 U.S.C. § 1271. In 1991, Congress amended the WSRA to designate portions of the Niobrara as a scenic river even though the prior report and study required by 16 U.S.C. § 1275 had not been conducted. Niobrara Scenic River Designation Act of 1991, Pub.L. 102-50, 105 Stat. 254 (May, 24, 1991), codified as 16 U.S.C. § 1274(a)(117) (hereafter, Niobrara Act). A "scenic" river is one "free from impediments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped, but accessible in places by roads." 16 U.S.C. § 1273(b)(2).

The Secretary of the Interior administers the Niobrara Scenic River and its adjacent land area; the Secretary has delegated this authority to the director of the NPS. Defendant's Index of Evidence (Filing No. 41), Administrative Record of Boundary Decision at 916 (hereafter, AR). The delegation includes the responsibility for establishing the scenic river's boundaries "after consultation with State and local governments and the interested public," as well as for developing a general "comprehensive management plan." 16 U.S.C. § 1274(a)(117), 1274(b), 1274(d). The final boundaries are to include "an average of not more than 320 acres of land per mile measured from the ordinary high water mark on both sides of the river." 16 U.S.C. § 1274(b). Until final boundaries were published, however, a temporary boundary existed "one-quarter mile from the ordinary high water mark on each side of the river." 16 U.S.C. § 1275.

To carry out its delegated duties, the NPS launched a decision-making process that ultimately extended well beyond the one-year time limit found in 16 U.S.C. § 1274(b) for establishing "detailed boundaries" on designated rivers. The process the NPS devised incorporated boundary studies, the environmental impact statement (EIS) mandated by the NEPA (requiring an EIS for each "major Federal action[ ] significantly affecting the quality of the human environment,") 42 U.S.C. § 4332(2)(C), and the general management plan (GMP). The NPS formed a planning team which took in and analyzed extensive information from a broad array of public and private sources documented in the Administrative Record. The Secretary also appointed members to the Niobrara Scenic River Advisory Commission. Membership included landowners along the Niobrara; a canoe outfitter on the river; representatives from Brown, Cherry, Keya Paha, and Rock Counties, as well as from the Middle Niobrara Natural Resources District; a conservation group; and a representative from the governor's office. Niobrara Act, § 5. The Advisory Commission made significant contributions to the planning process and also received and discussed much of the public comment on the designation of the scenic river's boundaries. See AR 142, 180-86, 222, 241, 249-54, 280-84, 345-46, 363-68. The end result of the planning process was a draft GMP combined with a draft EIS dated August 1995. AR, Doc. 29.

The draft GMP/EIS identified three potential boundaries for the Niobrara Scenic River. The first alternative preserved the interim boundary described in the WSRA (a quarter of a mile from the ordinary high water mark on the river), and was drawn along section lines and public roads. AR, Doc. 29 at 38. The second alternative was drawn without regard to ownership of the land and included as many significant resources as possible along the river corridor within the acreage limits imposed by the WSRA. The "resources" were described as "unusual or excellent examples of plant ecosystems, areas visible from the river, fossil sites, prehistoric sites, historic sites, and areas near bridges." AR, Doc. 29 at 39. The third alternative took in the same resources except for scenic values, and contained a minimum setback of 200 feet above the ordinary high water mark. AR, Doc. 29 at 39. The issue in this case comes with a fourth boundary alternative discussed extensively throughout the planning process and in fact preferred by many members of the public living near the river and by local governments: the bank-to-bank alternative, discussed at length below in III(C). This alternative would have followed the ordinary high water mark and included no land owned by the farmers and ranchers along the river.

From March 1996 through May 1996, the NPS and the Advisory Council held numerous public meetings to discuss the draft GMP/EIS; they also received oral and written public comments. AR, Doc. 30 at 6. Pursuant to 16 U.S.C. § 1274(d), the NPS published notice of the completion and availability of the final GMP/EIS on September 5, 1996, at 61 Fed.Reg. 46821. AR 914. In the final GMP/EIS, the NPS designated boundary alternative two, the boundary providing protection for "as many significant resources as possible along the river," as the preferred alternative. AR, Doc. 30 at 39. This alternative pulls in over 20,205 acres. Id.

On December 20, 1996, the NPS regional director issued a Record of Decision in which he adopted boundary alternative two as the boundaries of the Niobrara Scenic River. AR 916-924. Notice of the completion and availability of official boundary maps was published on May 27, 1997, at 62 Fed.Reg. 28730. AR 927. The NPS forwarded official boundary maps to Congress on January 12, 1998. AR 929-930. The boundaries became effective ninety days after they were forwarded to the President of the Senate and the Speaker of the House of Representatives. 16 U.S.C. § 1274(b).

III. Discussion

A. Standard of Review

Review of final agency action under the NEPA is governed by the APA. Gregson v. United States Forestry Serv., 19 F.Supp.2d 925, 928 (E.D.Ark.1998). A reviewing court must grant " `substantial deference to the agency's interpretation of the statutes and regulations it administers.'" Vue v. INS, 92 F.3d 696, 699 (8th Cir.1996) (citing Chevron USA, Inc. v. Natural...