Wilderness Public Rights Fund v. Kleppe, s. 77-1606
| Decision Date | 01 November 1979 |
| Docket Number | Nos. 77-1606,77-3693,s. 77-1606 |
| Parties | , 9 Envtl. L. Rep. 20,769 WILDERNESS PUBLIC RIGHTS FUND, a nonprofit California Corporation, Plaintiff-Appellant, v. Thomas F. KLEPPE, Secretary of Interior, Department of the Interior, Gary Everhardt, Director of the National Park Service, Howard H. Chapman, Regional Director of the Western Region of the National Park Service, and Merle Stitt, Superintendent of Grand Canyon National Park, Defendants-Appellees. Frederick B. EISEMAN, Jr., and Margaret H. Eiseman, husband and wife, J. R. Hertzler, Michael St. Clair, Plaintiffs-Appellants, v. Thomas F. KLEPPE, in his capacity as Secretary of the U. S. Department of Interior, Gary Everhardt, in his capacity as Director of the National Park Service, and Merle Stitt, in his capacity as Superintendent of Grand Canyon National Park, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donald P. Nemir, Inc., San Francisco, Cal., Bruce E. Meyerson, Phoenix, Ariz., argued, for plaintiff-appellant.
Carl Strass, Washington, D.C., argued, for defendants-appellees; Richard S. Allemann, Asst. U. S. Atty., Phoenix, Ariz., on brief.
Appeal from the United States District Court for the Northern District of California; and the District of Arizona.
Before MERRILL and ANDERSON, Circuit Judges, and SKOPIL, * District Judge.
These cases involve the manner in which use of the Colorado River for rafting and boating is apportioned between concessioners approved by the National Park Service and noncommercial users. Permits from the National Park Service are required for river use and the dispute here concerns the apportionment made in granting permits.
In December, 1972, the Secretary of the Interior found that the boating and rafting use of the Colorado River in the Grand Canyon National Park had experienced such an increase that it posed a threat to the ecology of the river. A study was initiated for the purpose of ascertaining river capacity and it was decided that until completion of the study use of the river should be frozen at the 1972 level. Accordingly, river use was limited to 96,600 user days per year (a user day being one day spent on the river by one person). This total use was apportioned between two user groups in the ratio of actual 1972 use by each group: 89,000 user days or 92 percent of the total use was allotted to commercial concessioners of the Park Service who, for a fee, make guided trips through the canyon; 7,600 user days or 8 percent of the total was allotted to noncommercial users who apply for permits as private groups. Noncommercial users for the most part are experienced in river running and furnish their own equipment and supplies. Expenses are shared, as is the performance of the necessary duties involved. Permits for river use and the apportionment thereof have remained frozen at the 1972 level.
Appellants are, or represent, noncommercial river runners who, on various grounds, challenge the apportionment between commercial and noncommercial users. They assert that they, or those they represent, have applied for permits from the Park Service which were denied, the Service instead having granted permits to persons who used them for commercial purposes. In January, 1975, a member of Wilderness Public Rights Fund petitioned the Secretary for a change in the allocation system for the issuance of permits. The request was denied.
Both actions before us assert jurisdiction under the judicial review portions of the Administrative Procedure Act, 5 U.S.C. § 701, Et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201, Et seq. The Wilderness Public Rights Fund action was brought in the Northern District of California in June, 1976. As relief it sought an injunction staying the issuance of permits for river use to commercial permittees and concessioners "until such time as it can be determined to what extent commercial services are necessary and appropriate." It sought a declaration that noncommercial users are entitled to priority over commercial users.
The Eiseman action was brought in the District of Arizona in March, 1977. It was more modest in its claims and in the relief sought. It did not seek priority for the noncommercial users over the commercial users. It sought equal access to the river and an order directing the Secretary and the Service to implement a plan providing equal access.
In both cases summary judgment in favor of appellees was granted and these appeals followed.
A number of statutes and regulations bear on the issues of these actions. 16 U.S.C. § 1 creates the National Park Service (hereinafter NPS) in the Department of the Interior and directs it to "promote and regulate the use of the Federal areas known as national parks, monuments and reservations * * * by such means and measures as conform to the fundamental purpose of said parks, monuments and reservations * * *." That purpose is stated to be "to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."
16 U.S.C. § 3 provides in part:
Pursuant to this authority the Secretary has promulgated 36 C.F.R. § 7.4(h)(3) as follows:
The Concessions Policy Act, 16 U.S.C. § 20 provides in part:
"It is the policy of the Congress that such development (concessions) shall be limited to those that are necessary and appropriate for public use and enjoyment of the national park area in which they are located * * *."
Appellants first attack the failure of the NPS to follow the dictates of the Administrative Procedure Act. They contend that the allocation of user days between commercial and noncommercial users amounted to rule making and that no hearings were held where the noncommercial users could present their views, contrary to the requirements of the Administrative Procedure Act.
That Act, 5 U.S.C. § 553(a)(2), excepts from the rule-making procedures "a matter relating * * * to public property, loans, grants, benefits or contracts." The government contends that this exempts the action of the Secretary in freezing the 1972 river use and apportioning that use between the commercial and noncommercial users. We agree. Cf. Duke City Lumber Co. v. Butz, 382 F.Supp. 362, 378 (D.D.C.1974), Aff'd in part, 176 U.S.App.D.C. 218, 539 F.2d 220 (D.C.Cir. 1976), Cert....
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Case summaries.
...values of the unit." National Park Service Concessions Management and Improvement Act of 1998, 16 U.S.C. [section] 5951(b) (2006). (234) 608 F.2d 1250 (9th Cir. (235) Id. at 1254. (236) River Runners for Wilderness v. Martin, 574 F.3d 723, 739 (9th Cir. 2009). (237) National Park Service Or......