Wyoming v. United States Dep't of Interior, s. 10–8088

• Decision Date: 05 April 2012
• Docket Number: 10–8089,Nos. 10–8088,10–8090.,s. 10–8088
• Citation: 674 F.3d 1220,74 ERC 1449
• Parties: State of WYOMING, Petitioner–Appellant,Park County Board of County Commissioners, Petitioner,andInternational Snowmobile Manufacturers Association, Inc., Plaintiff–Intervenor, v. UNITED STATES DEPARTMENT OF INTERIOR; Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior; Jon Jarvis, in his official capacity as National Park Service Director; Michael Snyder, in his official capacity as National Park Service Intermountain Regional Director, National Park Service, Respondents–Appellees,andNational Parks Conservation Association, Respondent–Intervenor–Appellee.State of Wyoming, Petitioner,Park County Board of County Commissioners, Petitioner–Appellant,International Snowmobile Manufacturers Association, Inc., Plaintiff–Intervenor, v. United States Department of Interior; National Park Service; Jon Jarvis, in his official capacity as National Park Service Director; Michael Snyder, in his official capacity as Intermountain Regional Director, National Park Service; Ken Salazar, Respondents–Appellees,andNational Parks Conservation Association, Respondent–Intervenor–Appellee.Park County Board of County Commissioners, Petitioner,International Snowmobile Manufacturers Association, Inc., Plaintiff–Intervenor–Appellant, v. Jon Jarvis, in his official capacity as Director of the National Park Service Director; Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior; Michael Snyder, in his official capacity as Intermountain Regional Director, National Park Service; United States Department of Interior, Respondents,andNational Parks Conservation Association, Respondent–Intervenor–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

674 F.3d 1220

74 ERC 1449

State of WYOMING, Petitioner–Appellant,Park County Board of County Commissioners, Petitioner,andInternational Snowmobile Manufacturers Association, Inc., Plaintiff–Intervenor,

v.UNITED STATES DEPARTMENT OF INTERIOR; Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior; Jon Jarvis, in his official capacity as National Park Service Director; Michael Snyder, in his official capacity as National Park Service Intermountain Regional Director, National Park Service, Respondents–Appellees,andNational Parks Conservation Association, Respondent–Intervenor–Appellee.State of Wyoming, Petitioner,Park County Board of County Commissioners, Petitioner–Appellant,International Snowmobile Manufacturers Association, Inc., Plaintiff–Intervenor,

v.United States Department of Interior; National Park Service; Jon Jarvis, in his official capacity as National Park Service Director; Michael Snyder, in his official capacity as Intermountain Regional Director, National Park Service; Ken Salazar, Respondents–Appellees,andNational Parks Conservation Association, Respondent–Intervenor–Appellee.Park County Board of County Commissioners, Petitioner,International Snowmobile Manufacturers Association, Inc., Plaintiff–Intervenor–Appellant,

v.Jon Jarvis, in his official capacity as Director of the National Park Service Director; Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior; Michael Snyder, in his official capacity as Intermountain Regional Director, National Park Service; United States Department of Interior, Respondents,andNational Parks Conservation Association, Respondent–Intervenor–Appellee.

Nos. 10–8088

10–8089

10–8090.

United States Court of Appeals, Tenth Circuit.

April 5, 2012.

James Kaste, Senior Assistant Attorney General, Cheyenne, WY, and James Davis, Deputy Park County Attorney, Cody, WY, (Jay Jerde, Deputy Attorney General, Cheyenne, WY, Bryan A. Skoric, Park County Attorney, Cody, WY, with them on the brief), for Petitioners–Appellants.

(William P. Horn, Birch Horton Bittner & Cherot, PC, Washington D.C., Harriet M. Hageman, Hageman & Brighton, Cheyenne, WY, on the brief for Petitioner–Intervenor–Appellant).

Andrew Mergen, United States Department of Justice (Ignacia S. Moreno, Assistant Attorney General, Aaron P. Avila and Justin R. Pidot, United States Department of Justice, with him on the brief), Washington, D.C., for Respondents–Appellees.Robert D. Rosenbaum (Brett E. Marston and Holly E. Sterrett, with him on the brief), Arnold & Porter LLP, Washington, D.C., for Respondent–Intervenor–Appellee.Before BRISCOE, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.

ORDER

This matter is before the court on the appellant's petition for rehearing. Upon consideration, the petition is granted. The court's original decision dated February 29, 2012, is withdrawn. An amended decision is attached to this order and shall be shown filed as of today's date. The mandate issued February 29, 2012, is hereby recalled.

BALDOCK, Circuit Judge.

In 1974, the National Park Service (NPS) adopted a default rule prohibiting the use of snowmobiles in all national parks except on designated routes. 36 C.F.R. § 2.18(c). Pursuant to the default rule, NPS must promulgate a special regulation designating specific routes open to snowmobile use in a particular national park. Absent such a rule, no snowmobiles are allowed. See id. (“Snowmobiles are prohibited except where designated.”). NPS originally regulated designated routes, choosing not to set a limit on the number of snowmobiles permitted in the parks. 36 C.F.R. § 7.13( l ) (2) (2000). In 1997, environmental and recreational groups began seeking to limit the daily number of snowmobiles permitted in Yellowstone National Park, Grand Teton National Park, and the John D. Rockefeller Jr. Memorial Parkway (collectively, the parks). And over the past fifteen years, groups have continued to litigate the fate of snowmobiles in the parks. In the present cases, Petitioners the State of Wyoming and Park County, Wyoming filed petitions for review of agency action, challenging the 2009 rules governing snowmobile use in the parks.¹ The district court dismissed the petitions for review, holding Petitioners lacked standing to pursue their claims. On appeal, Petitioners ask us again to weigh in on this ongoing saga. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, vacate in part, and remand.

I.

Our story begins in 1997 when snowmobile opponents sought to limit the number of snowmobiles entering the parks. The opponents brought their challenge to NPS policy in a Washington, D.C. district court. Fund for Animals, Inc. v. Babbitt, No. 1:97–CV–1126 (D.D.C. filed May 20, 1997). The civil action resulted in a settlement where NPS adopted the 2001 rule, which provided for a complete phase-out of snowmobiles in the parks after the 2003–04 winter season. 66 Fed. Reg. 7260 (Jan. 22, 2001). Snowmobile proponents subsequently filed suit in a Wyoming district court challenging the 2001 rule. Int'l Snowmobile Mfrs. Ass'n v. U.S. Dep't of Interior Sec'y, No. 2:00–CV–229 (D.Wyo. filed Dec. 6, 2000). This litigation again resulted in a settlement. But instead of a snowmobile phase-out, the settlement in the Wyoming action resulted in NPS promulgating the 2003 rule, allowing 950 snowmobiles per day into Yellowstone, 75 on the Continental Divide Snowmobile Trail and 75 on Grassy Lake Road in Grand Teton and the Parkway, and 40 on Jackson Lake in Grand Teton. 68 Fed. Reg. 69268 (Dec. 11, 2003). The 2003 rule led to a third round of litigation, again brought by the snowmobile opponents in a Washington, D.C. district court. The D.C. court invalidated the 2003 rule and reinstated the 2001 rule. The Fund for Animals v. Norton, 294 F.Supp.2d 92, 115 (D.D.C.2003). Thereafter, the proponents filed a fourth lawsuit in Wyoming. The Wyoming court invalidated the 2001 rule, concluding NPS violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 701–06, in promulgating the 2001 rule. Int'l Snowmobile Mfrs. Ass'n v. Norton, 340 F.Supp.2d 1249, 1266 (D.Wyo.2004).

In 2004, NPS promulgated a temporary rule which contained a “sunset clause,” providing its snowmobile authorization would expire at the conclusion of the 2006–07 winter season. The 2004 temporary rule authorized 720 snowmobiles per day in Yellowstone, 50 per day on the Continental Divide Snowmobile Trail, 50 per day on Grassy Lake Road, and 40 per day on Jackson Lake. 69 Fed. Reg. 65348 (Nov. 10, 2004). The 2004 temporary rule triggered litigation by the opponents in Washington D.C. and the proponents in Wyoming. The temporary rule survived both challenges. The Fund for Animals v. Norton, 390 F.Supp.2d 12 (D.D.C.2005); Wyo. Lodging and Rest. Ass'n v. U.S. Dep't of Interior, 398 F.Supp.2d 1197 (D.Wyo.2005). After the 2004 temporary rule expired under the sunset provision, NPS promulgated what it intended to be a permanent rule in 2007. The 2007 rule allowed 540 snowmobiles per day in Yellowstone, 0 per day on the Continental Divide Snowmobile Trail, 25 per day on Grassy Lake Road, and 40 per day on Jackson Lake. 72 Fed. Reg. 70781 (Dec. 13, 2007). Unsurprisingly, the proponents and opponents again filed simultaneous challenges in Wyoming and Washington, D.C., respectively. The Washington, D.C. court ruled first, holding the 2007 rule arbitrary and capricious. Greater Yellowstone Coal. v. Kempthorne, 577 F.Supp.2d 183, 210 (D.D.C.2008). Although the Washington, D.C. court believed the 2007 rule allowed too many snowmobiles in the parks, the court did not set forth a maximum number of snowmobiles that could enter the parks while NPS worked to promulgate a new rule. Thereafter, the Wyoming court issued an order stating its disagreement with the Washington, D.C. court's ruling, but declining to issue a ruling contrary to that of the D.C. court. Wyoming v. U.S. Dep't of Interior, No. 2:07–CV–319, Order Implementing Temporary Remedy and Granting Motion to Intervene (D. Wyo. Nov. 7, 2008). Because the Wyoming court believed the D.C. court's ruling did not address what should happen to snowmobiles in the parks while NPS formulated a new rule, the Wyoming court held the 2004 rule, as the last valid rule, should be reinstated until NPS could promulgate a new rule. Id. While the litigation regarding the 2007 rule was ongoing, NPS began work on a new rule.

The Wyoming court's ruling reinstating the 2004 rule became the first decision to reach an appellate court. The issue before us was whether the district court had the power to order the interim remedial order reinstating the 2004 rule. Before we issued a decision, NPS published the 2009 rules. Subsequently, we found the Wyoming case moot because, after NPS issued the 2009 rules, we could offer the parties no effective relief. Wyoming v. U.S. Dep't of Interior, 587 F.3d 1245, 1247 (10th Cir.2009). That brings us to the instant civil action—Petitioners' challenge to the 2009 rules.

II.

The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4331–71 requires that “major Federal actions significantly affecting the quality of the human environment ... be preceded by an environmental impact statement or EIS.” McKeen v. U.S. Forest Serv., 615 F.3d 1244, 1248 n. 3 (10th Cir.2010) (internal citation omitted). “Before creating an EIS, however, a government agency may prepare a document called an environmental assessment (EA).” Id. The agency may conclude after preparing the EA that a proposed action will not significantly affect the environment. In that case, “the agency may issue a finding of no significant impact (FONSI) and need not prepare a full EIS.” Id.

In this case, NPS prepared an EA in 2008 with the stated purposes of ensuring (1) park visitors had a range of appropriate winter recreational opportunities for an interim period and (2) recreational activities in the parks did not impair or...