River Runners v. Alston ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIVER RUNNERS FOR WILDERNESS; 
ROCK THE EARTH; WILDERNESS
WATCH; LIVING RIVERS, nonprofit
corporations,
Plaintiffs-Appellants,
v.
STEPHEN P. MARTIN, in his official
capacity as Superintendent of
Grand Canyon National Park;
DIRECTOR OF THE NATIONAL PARK No. 08-15112
SERVICE; NATIONAL PARK SERVICE;
KENNETH L. SALAZAR, in his
official capacity as Secretary of
 D.C. No.
CV-06-00894-DGC
the U.S. Department of the OPINION
Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR;
DIANE J. HUMETEWA; ERIC H.
HOLDER JR.,
Defendants-Appellees,
GRAND CANYON RIVER OUTFITTERS
ASSOCIATION; GRAND CANYON
PRIVATE BOATERS ASSOCIATION,
Defendant-Intervenors-
Appellees.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
June 10, 2009—San Francisco, California
9277
9278 RIVER RUNNERS v. MARTIN
Filed July 21, 2009
Before: Procter Hug, Jr., Betty B. Fletcher and
Michael Daly Hawkins, Circuit Judges.
Per Curiam Opinion
COUNSEL
Julia A. Olson, Wild Earth Advocates, Eugene, Oregon and
Matthew K. Bishop, Western Environmental Law Center,
Helena, Montana, for the plaintiffs-appellants.
Charles R. Scott, Attorney, United States Department of Jus-
tice, Washington, D.C., for Federal appellees.
Sam Kalen, Van Ness Feldman, PC, Washington, D.C., for
defendant-intervenor-appellee Grand Canyon River Outfitters
Association.
Lori Potter, Kaplan Kirsch & Rockwell LLP, Denver, Colo-
rado, for defendant-intervenor-appellee Grand Canyon Private
Boaters Association.
RIVER RUNNERS v. MARTIN 9279
OPINION
PER CURIAM:
The National Park Service entered a decision adopting a
2006 Colorado River Management Plan that the Plaintiff-
Appellants contend is unlawful. They sought to have that
decision set aside by the district court as arbitrary and capri-
cious under the Administrative Procedure Act. The district
court granted summary judgment to all defendants. We
review the district court’s decision de novo. Pit River Tribe
v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006).
The district court wrote an extensive and well-reasoned
order, which is attached as an appendix. We agree with the
order and adopt it as the opinion of our court.
9280 RIVER RUNNERS v. MARTIN
APPENDIX
River Runners for Wilderness, et 
al.,
Plaintiffs,
v.
No. CV-06-894-
Stephen P. Martin, et al.,
Defendants,
 PCT-DGC
ORDER
Grand Canyon River Outfitters,
Association; and Grand Canyon
Private Boaters Association,
Defendant-Intervenors.

Filed November 11, 2007
This case concerns the National Parks Service’s decision to
permit the continued use of motorized rafts and support
equipment in Grand Canyon National Park. Plaintiffs contend
that such motorized activities impair the wilderness character
of the Canyon and that the Park Service’s decision violates its
management policies and various federal statutes. Plaintiffs
ask the Court to set aside the decision under the Administra-
tive Procedures Act (“APA”). For reasons explained in this
order, Plaintiffs have not satisfied the high threshold required
to set aside federal agency actions under the APA.
I. Background.
Grand Canyon National Park (“Park”) was established by
Congress in 1919 and expanded in 1975. The Park consists of
more than 1.2 million acres located on the southern end of the
Colorado Plateau in Arizona.
The Park includes a 277-mile stretch of the Colorado River
referred to in this order as the “Colorado River Corridor” or
RIVER RUNNERS v. MARTIN 9281
the “Corridor.” The Park Service regulates the Colorado River
Corridor through a periodically-revised Colorado River Man-
agement Plan (“CRMP”). In November of 2005, the Park Ser-
vice issued a Final Environmental Impact Statement (“FEIS”)
for the 2006 CRMP. On February 17, 2006, the Park Service
issued a Record of Decision (“ROD”) that adopted and
approved the 2006 CRMP. The 2006 CRMP permits the con-
tinued use of motorized rafts, generators, and helicopters in
the Colorado River Corridor.
Plaintiffs River Runners for Wilderness, Rock the Earth,
Wilderness Watch, and Living Rivers constitute “a coalition
of organizations committed to protecting and restoring the
Grand Canyon’s wilderness character and unique natural
resources and ensuring fair and equitable access to such
resources[.]” Dkt. #1 at 3. Plaintiffs filed this action against
the Park Service and various individual Defendants.1 The
Court subsequently permitted two private organizations to
intervene in the action—Grand Canyon River Outfitters Asso-
ciation (“GCROA”), which consists of commercial operators
of motorized and non-motorized rafts in the Colorado River
Corridor, and Grand Canyon Private Boaters Association
(“GCPBA”), which consists of private rafters and kayakers of
the Corridor (collectively, “Intervenors”).
Following exchanges of information and compilation of the
administrative record, Plaintiffs, Defendants, and Intervenors
all filed motions for summary judgment. Dkt. ##55, 62, 64,
and 67. The Court held oral argument on October, 26, 2007.
1
The named individual Defendants include Joseph F. Alston, superin-
tendent of the Park; Fran Mainella, director of the Park Service; Gale Nor-
ton, Secretary of the United States Department of the Interior; the
Department of the Interior; Paul K. Charlton, former United States Attor-
ney for Arizona; and Alberto R. Gonzales, former Attorney General.
9282 RIVER RUNNERS v. MARTIN
A. Park Service Management of the Colorado River
Corridor.
The waters of the Colorado River originate in the moun-
tains of Colorado, Wyoming, and Utah and run 1,450 miles
to the Gulf of California. The Colorado is the longest and
largest river in the Southwestern United States. Once in the
Grand Canyon, the river flows some 4,000 to 6,000 feet
below the rim of the Canyon through cliffs, spires, pyramids,
and successive escarpments of colored stone. Access to the
bottom of the Grand Canyon can be gained only by hiking,
riding mules, or floating the river. Those floating the river
typically do so in motor-powered rubber rafts, oar- or paddle-
powered rubber rafts, oar-powered dories, or kayaks. Floating
the river through the Grand Canyon is considered one of
America’s great outdoor adventures and includes some of the
largest white-water rapids in the United States.2
Use of the Colorado River Corridor increased substantially
after Glen Canyon Dam was completed in 1963 and produced
a relatively steady flow through the Canyon. Because of this
increased use, the Park Service initiated a series of river plan-
ning and management efforts, culminating in a December
1972 River Use Plan. SAR 000712.3 The plan concluded that
“motorized craft should be phased-out of use in the Grand
Canyon.” SAR 000721, 000705. The plan also concluded that
89,000 commercial user days and 7,600 noncommercial user
days would be allocated for the 1973 season (SAR 000706,
000707), but that commercial use would be scaled down to
55,000 user days by 1977 (SAR 000705).4 A 1973 Draft Envi-
2
When recently asked to identify the “adventure trip of a lifetime,” more
readers of Outside magazine chose rafting the Grand Canyon than any
other adventure. See Thanks for Sharing, Outside, Nov. 2007 at 124.
3
“AR” refers to the Administrative Record (Dkt.#41) and “SAR” to the
Supplemental Administrative Record (Dkt.#42). The Court will cite to
Bates numbers to identify pages.
4
“A ‘user day’ is calculated by multiplying the number of passengers by
the number of days. (A ‘day’ is defined as any portion of a 24-hour day.)
RIVER RUNNERS v. MARTIN 9283
ronmental Impact Statement concluded that “[t]he use of
motors . . . should be eliminated as soon as possible from the
river environment” and that “[t]he propose[d] elimination of
motorized trips will . . . hav[e] a positive environmental
impact.” SAR 000917, 000929.
The Park Service initiated a Colorado River Research Pro-
gram in 1974 to examine, among other things, the impact of
motorized activities on the river. SAR 003717, 003721. In
September of 1977, the Park Service issued a document sug-
gesting that “the use of motors is contrary to established
health and safety standards” and again opining that the “use
of motorized craft should be eliminated.” SAR 003728. The
document noted that “[n]on-motorized travel is more compati-
ble with wilderness experience” and that “[m]otor noise levels
may have adverse effects on pilot performance, resulting in
potential safety hazards.” SAR 003749. The Park Service was
unable, however, “to document [any] difference in numbers
and degree of injuries between the two types of craft.” Id.
In August of 1976, the Park Service issued a Master Plan
for management of the Park. The Master Plan included an
objective of “[l]imit[ing] mechanized access below the rims
[of the Grand Canyon] to emergency and management use.”
SAR 002352. In February of 1977, the Park Service recom-
mended that Congress designate over one million acres within
the Park as wilderness. SAR 002680. The Park Service found
that motorized use of the river “is inconsistent with the wil-
derness criteria of providing outstanding opportunities for sol-
itude and for primitive and unconfined type of recreation.”
SAR 002711, 002723.
The Park Service released the first CRMP in December of
1979. SAR 005223-005285. Use of motorized watercraft
For example, if the [permit] holder has two clients on a two day trip, this
would equal four user days.” National Parks Service, How a Commercial
Use Authorization Works, https:// cms.imr.nps.gov/bibe/parkmgmt/cua -
operations.htm (last updated June 9, 2007).
9284 RIVER RUNNERS v. MARTIN
between Lees Ferry and Separation Canyon was to be phased
out over a five-year period. SAR 005244. The 1979 CRMP
stated that such a phaseout was consistent with “the objective
of the [1976] Master Plan[,] corresponded with the park wil-
derness proposal,” and was “based on the extensive Colorado
River Research project for the Grand Canyon[.]” Id. The
CRMP increased the allocated commercial user days from
89,000 per year to 115,500 and increased the allocated non-
commercial user days from 7,600 to 54,450. SAR 005246. In
September 1980, the Park Service proposed that the Colorado
River Corridor be designated as “potential wilderness” and,
once motorboat use was phased-out, as “wilderness.” SR
005770.
Congress countermanded the 1979 CRMP in a 1981 appro-
priations bill for the Department of the Interior. The bill pro-
hibited the use of appropriated funds “for the implementation
of any management plan for the Colorado River within the
[Park] which reduces the number of user days or passenger-
launches for commercial motorized watercraft excursions[.]”
SAR 005896. Members of Congress sent a letter to the Park
Service expressing their “wish that the [1979 CRMP] be
amended . . . to accommodate the 1978 level and pattern of
commercial, motorized watercraft access while at the same
time protecting . . . the increased non-commercial allocation
which the plan provides.” SAR 005901. The Park Service
subsequently revised the 1979 CRMP to “retain[ ] motorized
use and the increase in user-days that had been intended as
compensation for the phase-out of motors, resulting in more
motorized use of the river.” AR 104602.
The Park Service issued a second CRMP in 1989. The 1989
CRMP was similar to the revised 1979 CRMP. It included the
same allocation of user days for commercial and non-
commercial boaters, but increased the number of non-
commercial launches. AR 000863.
The Park Service’s 1995 General Management Plan
(“GMP”) for the Park identified an objective of “provid[ing]
RIVER RUNNERS v. MARTIN 9285
a wilderness river experience on the Colorado River,” but
explained that “this objective will not affect decisions regard-
ing the use of motorboats on the river.” SAR 010142. Rather,
the GMP stated that the 1989 CRMP would be revised and
that the revised plan would address the use of motors. SAR
010188.
B. The 2006 CRMP.
Planning for the 2006 CRMP began in 1997 with the solici-
tation of public comments and a series of public workshops
in Oregon, Utah, and Arizona. After this process was sus-
pended and restarted following the filing of two lawsuits, the
Park Service published in the Federal Register, on June 13,
2002, a notice of intent to prepare an environmental impact
statement for a revised CRMP. Seven additional public meet-
ings and stakeholder workshops were held in Colorado, Utah,
Arizona, Nevada, Maryland, and California. More than one
thousand people attended the meetings and the Park Service
received more than 13,000 written submissions.
In the Fall of 2004, the Park Service released for public
review a Draft Environmental Impact Statement (“DEIS”) for
the revised CRMP. The DEIS presented eight alternatives
(Alternatives A-H) for managing the river from Lees Ferry to
Diamond Creek, a stretch of 226 miles referred to in this order
as the “Lees Ferry Segment,” and five alternatives (Alterna-
tives 1-5) for managing the river from Diamond Creek to
Lake Mead, a stretch of 51 miles referred to in this order as
the “Lower Gorge.” The alternatives included motorized and
non-motorized options. Because of the complexity of the
DEIS and the level of public interest, the Park Service
extended the standard 90-day comment period for one addi-
tional month. The Park Service also hosted public meetings in
Colorado, Utah, Washington, D.C., Nevada, Arizona, and
California. The Park Service received some 10,000 written
submissions, including approximately 6,000 substantive and
30,000 non-substantive comments on the DEIS. The Park Ser-
9286 RIVER RUNNERS v. MARTIN
vice coded, organized, analyzed, and responded to the sub-
stantive comments, and modified the DEIS where it felt
modifications were warranted.
The Park Service received comments from a coalition of
groups representing both commercial and non-commercial
boaters of the Colorado River Corridor—groups often at odds
with each other on issues of river management. The coalition
included Intervenors, American Whitewater, and Grand Can-
yon River Runners Association. The coalition supported equal
allocation of river time between commercial and non-
commercial boaters and the continued authorization of appro-
priate levels of motorized use. AR 060444-51.
In November 2005, the Park Service issued the three-
volume Final Environmental Impact Statement. The FEIS
addressed the same alternatives discussed in the DEIS, with
some modifications to Alternatives H and 4, and expressed a
preference for Modified Alternative H for the Lees Ferry Seg-
ment and Modified Alternative 4 for the Lower Gorge. The
selected alternatives permitted the use of motorized rafts, gen-
erators for emergencies and inflating rafts, and helicopters to
make passenger exchanges at the Whitmore helipad. As noted
above, in February 2006, the Park Service issued a ROD that
formally adopted Modified Alternatives H and 4 for the 2006
CRMP.
II. The Court’s Task.
Plaintiffs argue that the 2006 CRMP is unlawful and should
be set aside. The Court’s task is not to make its own judgment
about whether motorized rafts should be allowed in the Colo-
rado River Corridor. Congress has delegated that responsibil-
ity to the Park Service. The Court’s responsibility is narrower:
to determine whether the Park Service’s 2006 CRMP com-
ports with the requirements of the APA, 5 U.S.C. § 701 et
seq.
RIVER RUNNERS v. MARTIN 9287
The APA does not allow the Court to overturn an agency
decision because it disagrees with the decision or with the
agency’s conclusions about environmental impacts. Vt. Yan-
kee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
435 U.S. 519, 555, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978) (cit-
ing Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S. Ct.
2718, 49 L. Ed. 2d 576 (1976)). An agency’s decision may be
set aside only if it is “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). The standard is deferential. The Court “may not
substitute its judgment for that of the agency concerning the
wisdom or prudence of [the agency’s] action.” Or. Envtl.
Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987).
In conducting an APA review, the Court must determine
whether the agency’s decision is “founded on a rational con-
nection between the facts found and the choices made . . . and
whether [the agency] has committed a clear error of judg-
ment.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife,
273 F.3d 1229, 1243 (9th Cir. 2001). “The [agency’s] action
. . . need only be a reasonable, not the best or most reasonable,
decision.” Nat’l Wildlife Fed. v. Burford, 871 F.2d 849, 855
(9th Cir. 1989).
Plaintiffs assert that the 2006 CRMP is arbitrary and capri-
cious under the APA because it violates the Park Service’s
own policies, the National Park Service Concessions Manage-
ment and Improvement Act (“Concessions Act”), the National
Park Service Organic Act (“Organic Act”), and the National
Environmental Policy Act (“NEPA”). The Court will address
each of these arguments separately.
III. Compliance with Park Service Policies.
A. Enforceability of the Policies.
Even though Congress has never acted on the Park Ser-
vice’s recommendation to designate a substantial portion of
9288 RIVER RUNNERS v. MARTIN
the Park as wilderness, Plaintiffs claim that the Park Service’s
own policies give rise to a legally binding obligation to main-
tain the wilderness character of the Park. Plaintiffs claim that
the Park Service has breached this legal duty by authorizing
the continued use of motorized activities in the 2006 CRMP.
Defendants and Intervenors argue that the Park Service poli-
cies do not have the force and effect of law and therefore may
not be enforced against the Park Service in this legal action.
In their motion for summary judgment, Plaintiffs identified
three policies that allegedly create binding obligations on the
Park Service: the 1976 Master Plan, the 1995 GMP, and the
2001 Park Service Management Policies (the “2001 Poli-
cies”). Two of these arguments—the 1976 Master Plan and
the 1995 GMP-are easily eliminated. Plaintiffs conceded at
oral argument that the 1976 Master Plan has been superceded
and cannot be viewed as binding; and Plaintiffs devoted little
time at argument or in their reply brief to their claim that the
1995 GMP creates legal obligations. The Court concludes that
is does not.5 Plaintiffs instead focus on the 2001 Policies,
arguing that they are binding because they are written in man-
datory language, were mentioned in the Federal Register, and
have been found binding in Southern Utah Wilderness Alli-
ance v. National Park Service, 387 F. Supp. 2d 1178 (D.Utah
2005) (“SUWA”). The Court will address this argument in
some detail.
In United States v. Fifty-Three (53) Eclectus Parrots, 685
F.2d 1131 (9th Cir. 1982), the Ninth Circuit established a
5
The text of the 1995 GMP states that it “guides the management of
resources, visitor use, and general development of the [P]ark over a 10-to
15-year period.” SAR 010132 (emphasis added). The GMP sets out “ob-
jectives” and “visions” for management of the Park. SAR 010138. The
GMP was not published in the Federal Register or the Code of Federal
Regulations. For reasons explained below with respect to the 2001 Poli-
cies, such general policy guidance does not have the force and effect of
law.
RIVER RUNNERS v. MARTIN 9289
two-part test for determining when agency pronouncements
have the force and effect of law:
To have the force and effect of law, enforceable
against an agency in federal court, the agency pro-
nouncement must (1) prescribe substantive
rules-—not interpretive rules, general statements of
policy or rules of agency organization, procedure or
practice—and (2) conform to certain procedural
requirements. To satisfy the first requirement the
rule must be legislative in nature, affecting individ-
ual rights and obligations; to satisfy the second, it
must have been promulgated pursuant to a specific
statutory grant of authority and in conformance with
the procedural requirements imposed by Congress.
Id. at 1136 (internal quotes and citations omitted).
The 2001 Policies fail the first part of the Eclectus Parrots
test because they do not purport to prescribe substantive rules.
As the United States Court of Appeals for the District of
Columbia Circuit recently held with respect to these very Pol-
icies: “While the text of the Policies on occasion uses manda-
tory language, such as ‘will’ and ‘must,’ the document as a
whole does not read as a set of rules. It lacks precision in its
directives, and there is no indication of how the enumerated
policies are to be prioritized.” The Wilderness Soc.’y v. Nor-
ton, 434 F.3d 584, 595 (D.C.Cir. 2006).
The text of the 2001 Policies makes clear that they are
intended only to provide guidance within the Park Service,
not to establish rights in the public generally. The Introduc-
tion describes the Policies as a “basic Service-wide policy
document,” as a “guidance document[ ],” and as a statement
of policy “designed to provide [Park Service] management
and staff with clear and continuously updated information . . .
that will help them manage parks and programs effectively.”
SAR 016079. That the 2001 Policies are not intended to have
9290 RIVER RUNNERS v. MARTIN
the same force as binding Park Service regulations is made
clear by the Introduction’s explanation that existing, formally-
promulgated Park Service regulations will trump inconsistent
provisions in the 2001 Policies until such time as the regula-
tions “are formally revised through the rulemaking procedure
[.]” SAR 016082.
Equally significant, the Introduction to the 2001 Policies
provides that Park Service management can choose to waive
or modify the Policies: “Adherence to policy is mandatory
unless specifically waived or modified in writing by the Sec-
retary, the Assistant Secretary, or the Director.” SAR 016078.
“Waivers and modifications will be considered on a case-
by-case basis,” the Policies explain. SAR 016079. Needless to
say, policy statements that may be waived or modified by an
agency can hardly be said to have the binding force of law.
As the D.C. Circuit noted, “this language does not evidence
an intent on the part of the agency to limit its discretion and
create enforceable rights. Rather, the agency’s top administra-
tors clearly reserved for themselves unlimited discretion to
order and reorder all management priorities.” Wilderness
Soc’y, 434 F.3d at 596.
Nor do the 2001 Policies purport to create substantive indi-
vidual rights or obligations for persons or entities outside the
Park Service. The Policies set forth priorities, practices, and
procedures to be followed by Park Service personnel in
administering the national park system. In the words of Eclec-
tus Parrots, they are “interpretive rules, general statements of
policy or rules of agency organization, procedure or prac-
tice[.]” 685 F.2d at 1136 (quotes and citations omitted). See
also United States v. Alameda Gateway Ltd., 213 F.3d 1161,
1168 (9th Cir. 2000) (agency rule did not have the force or
effect of law in part because “[i]t was not intended to create
substantive rights in third parties”); Moore v. Apfel, 216 F.3d
864, 868-69 (9th Cir. 2000) (agency provision did not satisfy
the Eclectus Parrots test, as it “creates no substantive rights”
and instead “provides [agency] staff with internal proce-
RIVER RUNNERS v. MARTIN 9291
dures”); Chrysler Corp. v. Brown, 441 U.S. 281, 302, 99 S. Ct.
1705, 60 L. Ed. 2d 208 (1979) (whether an agency pronounce-
ment affects individual rights and obligations “is an important
touchstone for distinguishing those rules that may be binding
or have the force of law”) (internal quotation marks and cita-
tion omitted).
The 2001 Policies also fail the second part of the Eclectus
Parrots test. The APA requires that “publication or service of
a substantive rule shall be made not less than 30 days before
its effective date.” 5 U.S.C. § 553(d). The 2001 Policies were
not published in the Federal Register. The Park Service did
publish a notice of the availability of a draft of the 2001 Poli-
cies and a notice of new policy, but never published the 2001
Policies themselves. See 65 Fed.Reg. 2984 (Jan. 19, 2000); 65
Fed.Reg. 56003 (Sept. 15, 2000). What is more important, the
Policies were never published in the Code of Federal Regula-
tions. This suggests that the Park Service did not intend to
announce substantive rules enforceable by third parties in fed-
eral court. See W. Radio Servs. Co., Inc. v. Espy, 79 F.3d 896,
901 (9th Cir. 1996) (stating, in its determination that two
agency documents did not satisfy the Eclectus Parrots test,
that “[n]either [document] is published in the Federal Register
or the Code of Federal Regulations”). The D.C. Circuit found
this lack of publication “particularly noteworthy” in conclud-
ing that the 2001 Policies are not substantive law. Wilderness
Soc’y, 434 F.3d at 595; see also Brock v. Cathedral Bluffs
Shale Oil Co., 796 F.2d 533, 539 (D.C.Cir.1986) (“The real
dividing point between regulations and general statements of
policy is publication in the Code of Federal Regulations[.]”).
This conclusion is bolstered by the Park Service’s own
characterization of the 2001 Policies. In its Federal Register
announcement that a draft of the 2001 Policies was available
for public comment, the Park Service explained that “park
superintendents, planners, and other [Park Service] employees
use management policies as a reference source when making
decisions that will affect units of the national park system.”
9292 RIVER RUNNERS v. MARTIN
65 Fed.Reg. 2984 (Jan. 19, 2000). A “reference source,” of
course, is not the same as binding substantive law.
In sum, the 2001 Policies are not enforceable against the
Park Service in this action. The Policies do not prescribe sub-
stantive rules, nor were they promulgated in conformance
with the procedures of the APA. Eclectus Parrots, 685 F.2d
at 1136. The Court therefore may not set aside the 2006
CRMP because it fails to comply with portions of the 2001
Policies requiring the Park Service to treat the Colorado River
Corridor as wilderness or potential wilderness, nor may the
Court conclude, as Plaintiffs argue, that provisions of the Wil-
derness Act are incorporated into the 2001 Policies and bind-
ing on the Park Service in this case.6
B. Plaintiffs’ Chevron Cases.
Plaintiffs argue that the lack of formal rulemaking does not
prevent the 2001 Policies from having the force and effect of
law. For support, Plaintiffs rely primarily on United States v.
Mead Corp., 533 U.S. 218, 121 S. Ct. 2164, 150 L. Ed. 2d 292
(2001), and SUWA, 387 F. Supp. 2d 1178. Plaintiffs in Mead
challenged a tariff ruling by the United States Customs Ser-
vice. Plaintiffs in SUWA challenged a decision by the Park
Service to ban motorized vehicles in a portion of Canyonlands
National Park. In both cases the courts were required to
decide whether the agency decisions were entitled to defer-
6
Much of Plaintiffs’ argument rests on the Wilderness Act, 16 U.S.C.
§§ 1131-1136. Plaintiffs argue, for example, that motorized uses are pro-
hibited by the Act, motorized rafting in the Colorado River Corridor is not
“established” under the Act, and such rafting is not “necessary and proper”
as required by the Act. These arguments are unavailing, however, because
the portions of the Act cited by Plaintiffs apply only to designated wilder-
ness and the Park has never been designated as wilderness by Congress.
In addition, as noted above, the 2001 Policies are not binding law that
incorporates the Wilderness Act. Indeed, Plaintiffs admit in their reply
memorandum that they are not making a claim under the Wilderness Act.
See Dkt.#71 at 4.
RIVER RUNNERS v. MARTIN 9293
ence under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694
(1984).
The Supreme Court explained Chevron deference in this
manner: when Congress has expressed an expectation that an
agency will speak with the force of law and resolve ambigui-
ties or fill gaps in statutory law, “a reviewing court has no
business rejecting an agency’s exercise of its generally con-
ferred authority . . . simply because the agency’s chosen reso-
lution seems unwise, but is obligated to accept the agency’s
position if Congress has not previously spoken to the point at
issue and the agency’s interpretation is reasonable [.]” Mead,
533 U.S. at 229 (citations omitted). In short, Courts are not to
interfere with reasonable agency decisions rendered within
areas where Congress has authorized the agencies to act.
Among other considerations, a court applying the Chevron
doctrine asks whether an agency decision is intended by Con-
gress to have the force of law. The Supreme Court noted in
Mead that the existence of formal notice-and-comment rule-
making is a strong indicator of such authority. The Supreme
Court went on to explain, however, that “as significant as
notice-and-comment rulemaking is in pointing to Chevron
authority, the want of that procedure here does not decide the
case, for we have sometimes found reasons for Chevron def-
erence even when no such administrative formality was
required and none was afforded[.]” Id. at 230-31. The District
Court in SUWA relied on this language and found that Chev-
ron deference was due the Park Service’s decision to ban
motorized vehicles in Canyonlands even though the decision
was based on the 2001 Policies that were not adopted through
formal notice-and-comment rulemaking. 387 F. Supp. 2d at
1187-88. Plaintiffs rely on this holding and the above-quoted
language from Mead to argue that the same 2001 Policies
should have the force and effect of law in this case.
There is a difference, however, between application of the
Chevron doctrine in SUWA and the question to be decided in
9294 RIVER RUNNERS v. MARTIN
this case. The plaintiffs in SUWA argued that the 2001 Poli-
cies were not entitled to deference and that a decision based
on them should be set aside. The District Court relied on the
Chevron doctrine to conclude that the 2001 Policies provided
a sound basis for deference to the Park Service—a shield for
the agency’s decision concerning the proper administration of
Canyonlands National Park. Plaintiffs in this case seek an
opposite result—to use the same 2001 Policies as a sword to
set aside Park Service decisions concerning the proper admin-
istration of Grand Canyon National Park.
Chevron analysis does not control this case. Whether an
agency’s decision falls within the scope of activity intended
by Congress to resolve ambiguities or fill gaps in the govern-
ing statutes and therefore is entitled to deference in the courts
is a different question than whether an agency’s decision
becomes binding law that gives outside parties the right to
enforce the decision against the agency in court. The first
question asks whether the agency has acted within the realm
and with the expertise Congress intended. The second focuses
on the substance and form of the agency’s action and asks
whether the agency intended to promulgate binding law for
itself and the outside world. This case presents the second
question—a question to be decided under Eclectus Parrots.
As explained above, the 2001 Policies are not enforceable
against the Park Service under Eclectus Parrots.7
7
The Court recognizes that the decision in SUWA contains language at
odds with this order. SUWA concludes, for example, that the 2001 Policies
“are not a general statement of policy, but prescribe substantive rules.”
387 F. Supp. 2d at 1189. The Court views the Chevron context of these
statements as a sufficient basis to distinguish them from this case, but to
the extent they are simply inconsistent with this order, the Court respect-
fully disagrees with them for the reasons explained in part III.A above.
RIVER RUNNERS v. MARTIN 9295
C. The Policies Do Not Render the 2006 CRMP Arbi-
trary and Capricious.
Citing Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th
Cir. 2005), and related cases, Plaintiffs alternatively argue
that the 2006 CRMP is arbitrary and capricious even if the
2001 Policies do not have the force and effect of law. The
Ninth Circuit held in Ecology Center that the Forest Service
could not disregard a non-binding soil standard when the For-
est Service’s own environmental impact statement purported
to comply with the standard. To disregard the standard, the
court held, would render the environmental impact statement
misleading and unlawful. Id. at 1069. Plaintiffs argue that
because the FEIS and ROD purport to follow the 2001 Poli-
cies and the 1995 GMP, but in fact fail to do so, they are arbi-
trary and capricious. The Court does not agree.
Plaintiffs base their argument on the fact that the Colorado
River Corridor has been classified by the Park Service as
potential wilderness. The 2001 Policies provide the following
guidance with respect to the management of potential wilder-
ness areas:
The National Park Service will take no action that
would diminish the wilderness suitability of an area
possessing wilderness characteristics until the legis-
lative process of wilderness designation has been
completed . . . . This policy also applies to potential
wilderness, requiring it to be managed as wilderness
to the extent that existing non-conforming conditions
allow. The National Park Service will seek to
remove from potential wilderness the temporary,
non-conforming conditions that preclude wilderness
designation.
2001 Policies § 6.3.1 (SAR 016136-37). The FEIS makes this
same commitment with respect to the Colorado River Corri-
dor. See FEIS Vol. I at 234.
9296 RIVER RUNNERS v. MARTIN
The language of § 6.3.1 makes clear that the Park Service
is required to manage potential wilderness areas as actual wil-
derness only “to the extent that existing nonconforming con-
ditions allow.” This language does not require the Park
Service immediately to remove existing non-conforming
uses—in this case, motorized rafts. It requires the Park Ser-
vice to manage the Colorado River Corridor as wilderness to
the extent possible given the existing use of motors. In light
of this clear provision, the Court cannot conclude that the
2006 CRMP is arbitrary and capricious for failing to remove
motorized uses in the Colorado River Corridor immediately.8
Section 6.3.1 further states that the Park Service “will seek
to remove from potential wilderness the temporary, non-
conforming conditions that preclude wilderness designation.”
2001 Policies § 6.3.1 (SAR 016137). Seasonal uses of motors
on the river do not preclude wilderness designation. Plaintiffs
do not contend that such uses work any permanent change on
the Corridor that would preclude later wilderness treatment.
Seasonal float trips are not like the construction of a road or
other physical improvements that might disqualify an area for
wilderness designation in the future. Motorized float trips can
readily be eliminated if Congress decides that the Corridor
should be designated as wilderness. The FEIS concludes that
the use of motors in the Corridor “is only a temporary or tran-
sient disturbance of wilderness values” and “does not perma-
nently impact wilderness resources or permanently denigrate
wilderness values.” FEIS, Vol. I at 17; see also AR 093108-
19 (discussion of limited effect of motorized uses on soils),
AR 093051 (same for water quality), AR 093083-84 (same
for air quality), AR 093132-33 (same for natural soundscape).9
8
Nor did Plaintiffs appear to believe that immediate removal was
required when they submitted written comments on the DEIS. Plaintiffs
did not assert that the 2001 Policies required the immediate removal of
motorized uses, but instead endorsed a plan to “phas[e] out motorized use
over a reasonable time period not to exceed 10 years.” AR 050222.
9
During oral argument, Plaintiffs asserted that § 6.4.3.3 of the 2001 Pol-
icies, which precludes motors in “wilderness” areas, trumps § 6.3.1. It
RIVER RUNNERS v. MARTIN 9297
Plaintiffs also argue that the 2006 CRMP is arbitrary and
capricious in light of the 1995 GMP, citing portions of the
GMP that require the Park Service to “protect the natural
quiet and solitude” of the Park and “manage areas meeting
criteria for wilderness designation as wilderness.” SAR
010126. While the 1995 GMP does contain these general
statements, it also contains specific exceptions for motorized
rafting. The GMP’s stated objective for management of the
river reads as follows: “Provide a wilderness river experience
on the Colorado River (this objective will not affect decisions
regarding the use of motorboats on the river).” SAR 010142.
Elsewhere, the 1995 GMP states that “[t]he use of motorboats
will be addressed in the revised [CRMP], along with other
river management issues identified through the scoping pro-
cess.” SAR 010188. Because the 1995 GMP expressly
declines to require the elimination of motorized uses in the
Corridor, and in fact defers a decision on such uses to the
2006 CRMP, it plainly does not render the 2006 CRMP’s res-
olution of the issue arbitrary and capricious.10
The Court notes, additionally, that federal agencies are enti-
tled to some leeway when interpreting their own policies and
regulations. Stinson v. United States, 508 U.S. 36, 45, 113
S. Ct. 1913, 123 L. Ed. 2d 598 (1993) ( “provided an agency’s
interpretation of its own regulations does not violate the Con-
stitution or a federal statute, it must be given controlling
weight unless it is plainly erroneous or inconsistent with the
regulation.”). When that leeway is added to the CRMP’s gen-
eral consistency with the 2001 Policies and the 1995 GMP,
the Court cannot conclude that the policies, even if not
appears to the Court, however, that § 6.3.1 is the more relevant provision
because it applies specifically to areas “possessing wilderness characteris-
tics” that have not yet been designated as wilderness by Congress-
precisely the circumstance of the Colorado River Corridor.
10
Plaintiffs argue that the 2006 CRMP should be set aside because
motorized traffic on the river does not constitute an “established use”
under section 4(d)(1) of the Wilderness Act, 16 U.S.C. § 1133(d)(1). As
noted earlier, however, this is not a Wilderness Act case.
9298 RIVER RUNNERS v. MARTIN
enforceable in court, render the CRMP arbitrary and capri-
cious.
Finally, Plaintiffs argue that the 2006 CRMP is arbitrary
and capricious because it contradicts earlier Park Service
decisions to phase out motorized boating in the Colorado
River Corridor. As noted above, the 1979 CRMP called for
motorized watercraft between Lees Ferry and Separation Can-
yon to be phased out over a five-year period. SAR 005244.
The Court cannot conclude, however, that the 2006 CRMP is
arbitrary and capricious solely because it differs from earlier
Park Service decisions. Part of the discretion granted to fed-
eral agencies is the freedom to change positions. As the
Supreme Court has explained, “[a]n agency’s view of what is
in the public interest may change, either with or without a
change in circumstances. But an agency changing its course
must supply a reasoned analysis.” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S. Ct.
2856, 77 L. Ed. 2d 443 (1983) (quotation omitted). The ques-
tion posed by this lawsuit, therefore, is not whether the 2006
CRMP differs from past Park Service decisions, but whether
it is arbitrary and capricious in light of facts in the administra-
tive record and the reasoning of the FEIS. For reasons
explained in this order, the Court finds the 2006 CRMP suffi-
ciently reasonable to pass APA muster.
IV. The Concessions Act.
Plaintiffs contend that the 2006 CRMP is arbitrary and
capricious because it fails to comply with the requirements of
the Concessions Act. The Act governs the granting of com-
mercial concessions within the National Park System. “To
make visits to national parks more enjoyable for the public,
Congress authorized [the Park Service] to grant privileges,
leases, and permits for the use of land for the accommodation
of visitors. Such privileges, leases, and permits have become
embodied in national parks concession contracts.” Nat’l Park
Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 805-
RIVER RUNNERS v. MARTIN 9299
806, 123 S. Ct. 2026, 155 L. Ed. 2d 1017 (2003). The specific
provision of the Act relied on by Plaintiffs articulates a Con-
gressional “policy” for the granting of concessions:
It is the policy of the Congress that the develop-
ment of public accommodations, facilities, and ser-
vices in units of the National Park System shall be
limited to those accommodations, facilities, and ser-
vices that—
(1) are necessary and appropriate for public use
and enjoyment of the unit of the National Park Sys-
tem in which they are located; and
(2) are consistent to the highest practicable degree
with the preservation and conservation of the
resources and values of the unit.
16 U.S.C. § 5951(b).
Plaintiffs claim that the 2006 CRMP is arbitrary and capri-
cious because the Park Service never determined that the
types and levels of motorized uses authorized by the CRMP
are necessary and appropriate for public use and consistent
with the Park’s resources and values. Before addressing this
argument, the Court must address the legal standard that gov-
erns review of a Concessions Act claim.
A. Legal Standard Under the Concessions Act.
In support of their Concessions Act argument, Plaintiffs
rely heavily on High Sierra Hikers Ass’n v. Blackwell, 390
F.3d 630 (9th Cir. 2004), a case in which the Ninth Circuit
struck down the Forest Service’s grant of permits to commer-
cial packstock operators in the Ansel Adams and John Muir
Wilderness Areas of California. The Court held that the Forest
Service must make a finding that “the number of permits
granted was no more than was necessary to achieve the goals
9300 RIVER RUNNERS v. MARTIN
of the Act.” Id. at 647. Plaintiffs argue that Blackwell requires
a similar Park Service finding for the number of motorized
raft trips permitted in the 2006 CRMP.
It is significant, however, that the court in Blackwell was
applying the Wilderness Act, not the Concessions Act. The
Wilderness Act places strict limitations on the use of lands
formally designated by Congress as wilderness. With narrow
exceptions, the Wilderness Act prohibits commercial enter-
prises, permanent roads, and motorized vehicles in wilderness
areas. 16 U.S.C. § 1133(c). Federal agencies are obligated to
manage such areas to preserve their wilderness character. Id.
at § 1133(b). The Ninth Circuit explained in Blackwell that
the Forest Service’s obligation to limit commercial packstock
permits “flows directly out of the agency’s obligation under
the Wilderness Act to protect and preserve wilderness areas.”
390 F.3d at 647. It was this “ultimate interest” and “overarch-
ing purpose” of the Wilderness Act—to protect the Ansel
Adams and John Muir Wilderness Areas from degrada-
tion—that led the Ninth Circuit to hold that the packstock per-
mit decision violated “the Forest Service’s statutory
responsibility.” Id. at 647-48.
This case, by contrast, does not concern a wilderness area.
Congress has never acted on the Park Service’s recommenda-
tion that portions of the Park be formally designated as wil-
derness. The Park Service, therefore, is not under the same
“statutory responsibility” that applied to the Forest Service in
Blackwell. The Court must look to the Concessions Act, not
the Wilderness Act, for the governing legal standard.
In Wilderness Preservation Fund v. Kleppe, 608 F.2d 1250
(9th Cir. 1972), the Ninth Circuit decided a case under 16
U.S.C. § 20, the statutory predecessor to the Concessions Act.
See City of Sausalito v. O’Neill, 386 F.3d 1198, 1204 (9th Cir.
2004) (Kleppe decided under predecessor to Concessions
Act); Pub.L. 105-391, 1123 Stat. 3515 (16 U.S.C. § 20 super-
ceded by 16 U.S.C. § 5951). The predecessor statute, like the
RIVER RUNNERS v. MARTIN 9301
Concessions Act, stated a Congressional “policy” that com-
mercial concessions in national parks should be “limited to
those that are necessary and appropriate for public use and
enjoyment of the national park area in which they are locat-
ed.” Kleppe, 608 F.2d at 1253. In rejecting a challenge under
this policy to the Park Service’s allocation of rafting permits
in the Colorado River Corridor, Kleppe recognized the “ad-
ministrative discretion” granted the Park Service and invoked
“a judicial presumption favoring the validity of administrative
actions.” Id. at 1254.
This more deferential standard appears to be warranted.
The Park Service is charged with administering almost 400
national parks. See National Park Service, About Us, http://
www.nps.gov/aboutus/index.htm (last visited Nov. 20, 2007).
The Concessions Act does not impose strict wilderness
requirements on those parks, but instead articulates a policy
that calls for the Park Service to balance the interests of pub-
lic use and resource preservation. 16 U.S.C. § 5951(b). The
Park Service’s balancing of those interests over the broad
range and diverse circumstances of hundreds of national parks
is appropriately accorded the kind of deference recognized in
Kleppe. The Court concludes that the deferential approach of
Kleppe, rather than the statutory application of the Wilderness
Act in Blackwell, should govern this case.11
11
Defendants themselves state that the “necessary and appropriate” stan-
dard of the Concessions Act is “analogous” to the “necessary and proper”
standard in the Wilderness Act. Dkt. #69 at 25. Defendants make this
statement, however, in the context of arguing that the 2006 CRMP sur-
vives a challenge under the Concessions Act for the same reasons it would
survive a challenge under the Wilderness Act if that Act applied. Id. at 25-
26. The Court does not take this statement as a concession that the legal
requirements of the two acts are the same. For the reasons explained
above, the Court finds that the two Acts are appropriately treated differ-
ently in Blackwell and Kleppe.
9302 RIVER RUNNERS v. MARTIN
B. The 2006 CRMP and the Concessions Act.
Plaintiffs first contend that the Park Service failed entirely
to determine that the types and levels of commercial services
authorized by the 2006 CRMP are necessary and appropriate.
The Court disagrees. The Park Service made the following
determinations:
Since many visitors who wish to raft on the Colo-
rado River through Grand Canyon possess neither
the equipment nor the skill to successfully navigate
the rapids and other hazards of the river, the [Park
Service] has determined that it is necessary and
appropriate for the public use and enjoyment of the
park to provide for experienced and professional
river guides who can provide such skills and equip-
ment.
***
[S]ervices provided by commercial outfitters, which
enable thousands of people to experience the river in
a relatively primitive and unconfined manner and
setting (when many of them otherwise would be
unable to do so), are necessary to realize the recre-
ational or other wilderness purposes of the park.
FEIS Vol. I at 19.
Plaintiffs argue that although the Park Service may have
found commercial outfitters to be necessary and appropriate
generally, it never made such a finding for motorized com-
mercial services. Again the Court disagrees. The ROD specif-
ically states that “[d]etermination of the types and levels of
commercial services that are necessary and appropriate for the
Colorado River through Grand Canyon National Park were
determined through [the FEIS].” ROD at 6 (AR 109596)
(emphasis added). Among the eight management alternatives
RIVER RUNNERS v. MARTIN 9303
considered by the Park Service in the DEIS and FEIS were
two that did not authorize any motorized uses in the Colorado
River Corridor (Alternatives B and C). After evaluating these
alternatives, the Park Service found that they “violated the
basic premise of this planning effort; that of reducing conges-
tion, crowding and impacts without reducing access of visi-
tors to the Colorado River[.]” FEIS Vol. III at 373. “As
demonstrated by the Park Service’s analysis of the no-motor
alternatives, a decision by the Park Service to eliminate the
motorized trip option would cause a dramatic reduction in the
public availability of professionally outfitted river trips[.]” Id.
at 87. The Park Service explained that “continued authoriza-
tion of motorized use for recreational river trips in the [Park]
is essential . . . to meeting the . . . management objectives” for
the 2006 CRMP. Id. Thus, the Park Service quite clearly con-
cluded that motorized commercial services were “necessary
and appropriate for public use and enjoyment” of the Corri-
dor. 16 U.S.C. § 5951(b).12
Plaintiffs contend that even if the Park Service found that
motorized services were necessary and appropriate, it made
no determination as to the amount of such services that are
necessary, and therefore failed to “limit” motorized uses to
those that are necessary and appropriate as required by the
Congressional policy statement of the Concessions Act. It is
true that the FEIS and ROD do not contain a specific discus-
sion of the amount of motorized traffic found necessary and
appropriate for public use and enjoyment of the Corridor. But
the absence of such a specific discussion does not necessarily
require the agency’s action to be overturned. “While [a court]
12
In Blackwell, the Ninth Circuit stated that an agency’s finding of
necessity “requires this court to defer to the agency’s decision under the
broad terms of the [Wilderness] Act.” 390 F.3d at 647. It was only when
the Forest Service’s decision ran afoul of the “overarching purpose” of the
Wilderness Act—wilderness preservation—that it was struck down. Id. at
648. If an agency’s finding of permit necessity under the Wilderness Act
is entitled to deference, a fortiori it is entitled to deference under the less
demanding requirements of the Concessions Act.
9304 RIVER RUNNERS v. MARTIN
may not supply a reasoned basis for the agency’s action that
the agency itself has not given, [the court] will uphold a deci-
sion of less than ideal clarity if the agency’s path may reason-
ably be discerned.” Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 285, 95 S. Ct. 438, 42
L. Ed. 2d 447 (1974) (citations omitted). The Park Service’s
consideration of the amount of motorized traffic required in
the Colorado River Corridor can reasonably be discerned
from the FEIS.
The 1989 CRMP established use levels that were still in
effect when the 2006 CRMP planning process began. Among
the alternatives considered in the DEIS and FEIS was a “no-
action alternative”—an alternative that would have left the
1989 levels in place. This alternative, designated in the FEIS
as Alternative A, would continue to allocate 113,083 user
days to commercial operators (74,260 motorized and 38,823
non-motorized) and 58,048 user days to non-commercial
users. FEIS Vol. I at 45. Alternative B would have eliminated
all motorized traffic on the river and allocated 97,694 user
days to commercial operators and 74,523 to non-commercial.
Id. at 47. Alternative C also would have eliminated all motor-
ized trips, but would have increased commercial user days to
166,814 and noncommercial to 115,783, presumably to
accommodate sufficient numbers of visitors with the slower
non-motorized trips. Id. at 49. Alternatives D, E, F, and G
would have permitted motorized uses, but varied the amounts
for commercial and non-commercial traffic. Id. at 51-57. The
levels of motorized user days for Alternatives D, E, F, and G
would have been 70,104, 76,913, 83,076, and 76,913, respec-
tively. Id.
User days were not the only variables evaluated by the Park
Service. The FEIS also considered months without motors on
the river, trip lengths, trip lengths during various parts of the
year, group sizes, numbers of launches, numbers of passen-
gers, and helicopter exchanges at the Whitmore helipad. Id. at
61. The Park Service evaluated these alternatives against
RIVER RUNNERS v. MARTIN 9305
environmental, social, and park-management factors includ-
ing impacts on soils, water, air, soundscape, caves, vegetation,
terrestrial life, aquatic resources, special status species, cul-
tural resources, visitor experience, socio-economic resources,
park management and operations, adjacent lands, and wilder-
ness character. Id. at 61-65.
The Park Service ultimately concluded that Alternatives B
and C—the non-motor alternatives—would not meet the
agency’s objective of providing “a diverse range of quality
recreational opportunities for visitors to experience and
understand the environmental interrelationships, resources,
and values of Grand Canyon National Park” because of the
significantly reduced number of visitors who could experi-
ence the Colorado River Corridor. Id. at 71; see FEIS Vol. II
at 626-27, 630-31. The Park Service evaluated a range of
motorized use times in the other alternatives and, after consid-
ering all factors and variables, selected Modified Alternative
H. That Alternative included specific allocations for motor-
ized and non-motorized uses: a total of 115,500 commercial
user days consisting of 76,913 motorized and 38,587 non-
motorized, and an estimated 113,486 non-commercial user
days. FEIS Vol. I at 60.
Modified Alternative H reduced the amount of motorized
traffic in the Colorado River Corridor and the months within
which it can occur, while significantly increasing the traffic
for non-commercial uses. The time period during which it
prohibited motorized uses in the Corridor each year is Sep-
tember 16 through March 31—3.5 months longer than under
the 1989 CRMP. FEIS Vol. I at 61. Modified Alternative H
also reduced motorized commercial launches from 473 per
year to 429 per year, and total motorized passengers from
14,487 to 13,177. Id. at 45, 60. Maximum group sizes for
commercial motor excursions were also reduced from 43 to
32. Id. at 61. Commercial user days were held essentially
9306 RIVER RUNNERS v. MARTIN
level at 115,500, while non-commercial user days were more
than doubled to an estimated 113,486. Id. at 60.13
In sum, the Park Service’s decision concerning the amount
of motorized trips on the river was made after considering
competing alternatives and a significant number of variables.
The Park Service chose an alternative that reduced motorized
uses from current levels. The Court is satisfied that the Park
Service, as stated in the ROD, determined the “type and level”
of traffic on the river that was “necessary and appropriate,”
including the type and level of motorized uses. ROD at 6.
Plaintiffs argue that even if the Park Service made such a
determination, the determination was arbitrary and capricious.
As noted above, however, the decision occurred only after an
extensive analysis of various alternatives. Defendants have
identified a number of factors in the Administrative Record
that support the Park Service’s decision to allow motorized
traffic to continue. First, because motorized trips take less
time to complete (10 days as opposed to 16 days for non-
motorized trips), substantially more people can see the Park
each year from the river if motorized trips continue. FEIS
Vol. I at 33-34; Vol. III at 87-88, 328-29; AR 066574-80;
SAR 015529, 016415. Second, motorized trips are frequently
chartered for special-needs groups, educational classes, family
reunions, or to support kayak or other paddle trips. AR
048368, 048920, 048972-73, 049081, 050205, 050290-92,
050710, 051222-27, 054067. Third, because of their increased
mobility, motorized trips help alleviate overcrowding at popu-
lar campsites and attractions in the Corridor. FEIS Vol. I at
13
The Park Service considered five alternatives for the Lower Gorge,
including a no-action alternative (Alternative 1), but the Lower Gorge
issues differed from those in the Lees Ferry Segment. Plaintiffs have spent
little time addressing Lower Gorge issues in this case. The Lower Gorge
management is complicated by the existence of Hualapai tribal lands and
Hualapai River Runner day trips. After undertaking an analysis of five
alternatives, the Park Service selected Alternative 4, which eliminated up-
river jet boat tours. FEIS Vol. I at xiii.
RIVER RUNNERS v. MARTIN 9307
33-34; Vol. III at 302; AR 050205. Fourth, some individuals
feel safer when traveling in motorized rafts. FEIS Vol. III at
312-313. In addition, studies performed as part of the DEIS
found that visitors are able to experience the river as wilder-
ness in the presence of motorized uses and that those who
took motorized trips were significantly more likely to stress
safety and trip length as the most important factors in the
choosing the type of trip they took. SAR 015427-29.
Given the “judicial presumption favoring the validity of
administrative actions” and the “administrative discretion”
granted the Park Service under the Concessions Act, Kleppe,
608 F.2d at 1254, the Court cannot conclude that the agency
acted arbitrarily and capriciously when it found that the Modi-
fied Alternative H levels of motorized uses were “necessary
and appropriate for public use and enjoyment” of the Colo-
rado River Corridor. 16 U.S.C. § 5951(b). The question is not
whether this Court agrees with the Park Service’s decision,
but whether it is reasonably supported by the Administrative
Record. In light of the DEIS and FEIS analysis outlined
above, the Court finds that it is.
Plaintiffs spend little time addressing the other policy state-
ment of the Concessions Act—that the necessary and appro-
priate public uses should be “consistent to the highest
practicable degree with the preservation and conservation of
the resources and values of the unit.” 16 U.S.C. § 5951(b).
Read in isolation, this policy could eliminate all public uses
of the Colorado River Corridor, motorized and non-
motorized, because preservation of the natural resources of
the Corridor would be accomplished to the “highest practica-
ble degree” by eliminating all human interference. This is not
what Congress intended. The Concessions Act, after all,
authorizes the Park Service to permit commercial concessions
in national parks. Rather, this policy must be achieved in light
of the policy’s preceding requirement—that uses be limited to
those necessary and appropriate for public use of the parks.
Once those necessary uses are identified, they must be man-
9308 RIVER RUNNERS v. MARTIN
aged to the highest practicable degree to preserve the
resources and values of the Park.
The Court is satisfied that the Park Service did not act arbi-
trarily and capriciously when it concluded that Modified
Alternative H was consistent to the highest practicable degree
with preserving the resources and values of the Corridor. As
noted above, the DEIS and FEIS evaluated Modified Alterna-
tive H and other alternatives against a large number of envi-
ronmental factors. With the exception of the effects of motors
on the soundscape of the Park, Plaintiffs do not challenge this
evaluation. With respect to the effects on soundscape, the
Court finds below that the Park Service did not act arbitrarily
and capriciously.
V. The Organic Act.
The Organic Act provides that the Park Service “shall pro-
mote and regulate the use of . . . national parks . . . in such
manner and by such means as will leave them unimpaired for
the enjoyment of future generations.” 16 U.S.C. § 1. The Act
also provides that “[n]o natural curiosities, wonders, or
objects of interest shall be leased, rented, or granted to anyone
on such terms as to interfere with free access to them by the
public[.]” 16 U. S .C. § 3. Plaintiffs contend that the 2006
CRMP is arbitrary and capricious because it permits commer-
cial boaters to use the river at levels that interfere with free
access by the public, and because it concludes that motorized
uses do not impair the natural soundscape of the Park.
A. Free Access.
Plaintiffs argue that the allocation of river access between
commercial and noncommercial users is inequitable and thus
limits the free access of members of the public. As noted
above, however, the Park Service has significantly increased
the access of noncommercial users. The 2006 CRMP allocates
115,500 user days to commercial users and an estimated
RIVER RUNNERS v. MARTIN 9309
113,486 user days to non-commercial users. See FEIS Vol. I
at ix.14 This is essentially the same allocation commercial
users received under the 1989 CRMP, but a substantial
increase from the 58,048 user days that non-commercial
boaters received under the 1989 plan. Stated in different
terms, the allocation of river time between commercial and
non-commercial user days changed from 66.5% commercial
and 33.5% non-commercial under the 1989 CRMP, to 50.4%
commercial and 49.6% non-commercial under the 2006
CRMP. The 2006 CRMP also reduced the number of launches
and passengers for commercial users while nearly doubling
both categories for non-commercial users. FEIS Vol. I at 45,
60. It is noteworthy that neither GCROA, which consists of
commercial river users, nor GCPBA, which consists of non-
commercial users, agree with Plaintiffs. Both organizations
contend that the Park Service’s allocation of user days is reason-
able.15
14
Plaintiffs argue that user days are not a fair measure of use. While the
Park Service has stated that “[d]aily launches are probably the most
important use measure for measuring impacts to visitor use and experi-
ence,” it also has noted that “[t]he daily number of people launching
would probably provide similar information[.]” FEIS Vol. III at 55. The
Court finds that user days—a factor of the number of people that launch
and the number of days the trip lasts—is a reasonable basis for analysis.
The Ninth Circuit used the same measure in Kleppe. See 608 F.2d 1250.
15
Plaintiffs complain that a substantial portion of the additional non-
commercial days are in the winter, and that the Park Service acted without
evidence that boaters would use the river in the winter. Defendants note
that the 2006 CRMP increases non-commercial user days in all seasons of
the year. The FEIS also notes that “there is interest in trips during the win-
ter . . . . [W]inter trips offer greater opportunities for quiet and solitude
compared to other times of the year. The less crowded nature of winter
months enhances wildlife viewing and cooler daytime temperatures are
conducive to off-river hiking.” FEIS Vol. I at 34 (emphasis omitted).
Ninety percent of available winter dates were used between 1998 and
2002—100% when they were made available six months in advance. AR
107920, 109498. The Court concludes that the Park Service had a reason-
able basis for concluding that winter trips would be used by non-
commercial boaters.
9310 RIVER RUNNERS v. MARTIN
Plaintiffs argue that non-commercial users are required to
wait for permits to run the river—sometimes for 10 or more
years—while clients of commercial rafting companies usually
can book a trip within one year. They also assert that the cur-
rent allocation favors the wealthy who can afford commercial
trips, and they criticize the Park Service for not conducting a
demand study that would have revealed the most equitable
allocation. The Court cannot conclude on this basis, however,
that the CRMP is arbitrary and capricious. The 2006 CRMP
significantly revised the system for private boaters to obtain
permits by establishing a lottery system that is weighted to
favor those who have not received a permit in previous years.
ROD at 20 (AR 109610). Moreover, surveys show that 61 %
of private boaters have floated the Colorado River Corridor
before, while only 20% of commercial boaters were on repeat
trips. SAR 015505. The existence of a waiting list therefore
does not necessarily show that more private boaters than com-
mercial customers are awaiting their first river trip. Finally,
experts advised the Park Service that a demand study would
cost more than $2 million and likely would be of limited
value. FEIS Vol. III at 177.
More generally, Plaintiffs tend to characterize the dispute
as one between commercial companies and private citizens.
This is not the true nature of the issue:
Throughout these proceedings [plaintiff] has per-
sisted in viewing the dispute as one between the rec-
reational users of the river and the commercial
operators, whose use is for profit. It asserts that by
giving a firm allocation to the commercial operators
to the disadvantage of those who wish to run the
river on their own the Service is commercializing the
park. [Plaintiff] ignores the fact that the commercial
operators, as concessioners of the [Park] Service,
undertake a public function to provide services that
the [Park Service] deems desirable for those visiting
the area. The basic face-off is not between the com-
RIVER RUNNERS v. MARTIN 9311
mercial operators and the non-commercial users, but
between those who can make the run without profes-
sional assistance and those who cannot.
Kleppe, 608 F.2d at 1253-54 (internal citations omitted).
As noted above, a coalition of commercial and private
boater organizations submitted joint comments to the Park
Service that supported an equal allocation of river time
between commercial and non-commercial users on an annual
basis. AR 060444-51. These users of the river apparently did
not believe that such a system would interfere with free access.16
B. Impairment of the Natural Soundscape.
Plaintiffs make several arguments in support of their claim
that the Park Service acted arbitrarily and capriciously when
it concluded that motorized uses of the Corridor do not impair
16
In support of their argument, Plaintiffs submitted the affidavit of Don-
ald W. Walls. Dkt. #71-2. Dr. Walls opines that an equal allocation
between commercial and non-commercial boaters cannot be determined to
be fair in the absence of a demand study, and that a lottery system that
applies to all users would be more fair. As noted above, however, a panel
of experts advised the Park Service in January of 2003 that a demand
study was likely to cost $2 million and be of limited use. FEIS Vol. III at
177. Dr. Walls does not address this advice and therefore does not provide
a basis for concluding that the Park Service acted arbitrarily and capri-
ciously when it decided not to conduct such a study. Moreover, although
Dr. Walls opines that a lottery system would be more fair than the Park
Service’s equal allocation of days between commercial and non-
commercial users, he does not address whether such a system—which
would render the yearly demand for commercial services less predict-
able—would permit the continued operation of commercial river runners
that the Park Service has found to be necessary and appropriate. Nor does
Dr. Walls address the fact that a coalition of river users, including com-
mercial and private users, supported the equal allocation adopted by the
Park Service, or explain why the Park Service’s consideration of such rep-
resentative support was unreasonable. Dr. Walls’ opinion, although a legit-
imate point of view, does not persuade the Court that the CRMP is
arbitrary and capricious.
9312 RIVER RUNNERS v. MARTIN
the natural soundscape of the Park within the meaning of the
Organic Act. The Court finds these arguments unpersuasive.
First, Plaintiffs contend that the Park Service used the
wrong baseline—that it compared motor-generated sounds to
the noise of the Corridor with aircraft flying overhead, rather
than comparing motorized noises to the natural quiet of the
Park. This argument is incorrect. The Park Service compared
periods of noise from river traffic (motorized and non-
motorized) to periods when there was no noise. FEIS Vol. II
at 348-87. The Park Service also evaluated the length of
“noise-free intervals” when motorized traffic was in the Park.
See, e.g., id. at 386.
Plaintiffs next contend that the Park Service failed to con-
sider the cumulative effects of noise from river traffic. This
also is incorrect. After comparing river traffic noise to natural
background sounds, and evaluating noise-free intervals, the
Park Service considered the cumulative effect of such noise
when added to other sounds in the Park such as aircraft over-
flights. The Park Service then reached the following conclu-
sion:
Although Modified Alternative H would contribute
to the overall cumulative effects of noise on the
park’s natural soundscape, even if all noise from all
river recreation was eliminated from the park
(including river-related helicopter flights at Whit-
more), the cumulative effects of aircraft noise would
still be adverse, short- to long-term, and major.
There would still be ‘significant adverse effects’ on
the natural soundscape due to frequent, periodic and
noticeable noise from overflights, and ‘substantial
restoration of natural quiet’ would not be achieved as
required by Public Law 100-91 and other mandates.
Id. at 387 (emphasis omitted).
RIVER RUNNERS v. MARTIN 9313
Plaintiffs contend that this cumulative analysis should have
caused the Park Service to eliminate sounds from motorized
river traffic. But if a cumulative analysis were to result in the
elimination of all sounds that can be eliminated by the Park
Service—in this case, all sounds other than aircraft over-
flights, which are not within the jurisdiction of the Park Ser-
vice—then all human activity in the Park would be
eliminated. And still the aircraft overflights would create sub-
stantial and adverse sound effects in the Park. Plaintiffs have
articulated no principled basis upon which the Court can con-
clude that the Park Service should have eliminated motorized
noises on the basis of such cumulative analysis, but not other
human-caused noises such as hiking or non-motorized raft
trips. The Court cannot conclude that the Park Service acted
arbitrarily and capriciously when it concluded from a
cumulative-effects analysis that motorized river traffic noise
was not the source of serious sound problems in the Park and
that elimination of such noise would not significantly improve
the overall soundscape.
Finally, Plaintiffs argue that the Park Service failed to con-
sider earlier environmental impact statements and a number of
studies conducted in the 1970s, some of which found that
river use impacted the soundscape within the Park. The Park
Service relied primarily on studies conducted by noise experts
in 1993 and 2003. FEIS Vol. II at 352-53. These studies
included field acoustic measurements, including sounds from
motorized and non-motorized raft trips. The studies deter-
mined the distance at which motorized rafts could be heard
and the length of time they were audible while traveling
down-river, when measured from fixed points in the Park. Id.
The studies also evaluated the effects of other sounds such as
water flow, wind, wildlife, human voices, helicopters, and air-
craft overflights. Id. The studies provide a reasonable basis
for evaluating sound effects within the Park.
Plaintiffs argue that the Park Service failed to consider 28
previous studies, but they identify no specific studies for the
9314 RIVER RUNNERS v. MARTIN
Court to consider. Nor do Plaintiffs cite any recent studies
that call into question the findings of the 1993 and 2003
studies. Defendants also note that any studies conducted in the
1970s would have concerned louder two-stroke engines rather
than the quieter and cleaner four-stroke engines now used in
the Corridor. Finally, the 2003 study specifically considered
and summarized the earlier studies relied on by Plaintiffs.
Given all of these considerations, the Court cannot con-
clude that the Park Service acted arbitrarily and capriciously
when it concluded that motorized uses do not impair the
soundscape of the Park within the meaning of the Organic
Act.
VI. NEPA.
Plaintiffs claim that the 2006 CRMP is arbitrary and capri-
cious because it failed to comply with NEPA, 42 U.S.C.
§ 4321 et seq. Specifically, Plaintiffs contend that the Park
Service failed to take a “hard look” at cumulative sound
impacts and failed to use high quality information or accurate
scientific analysis.
Under NEPA, federal agencies must prepare detailed envi-
ronmental impact statements for “major federal actions signif-
icantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(c). “NEPA does not work by mandating that
agencies achieve particular substantive environmental
results.” Marsh v. ONRC, 490 U.S. 360, 371, 109 S. Ct. 1851,
104 L. Ed. 2d 377 (1989). “NEPA’s goal is satisfied once . . .
information is properly disclosed; thus, NEPA exists to ensure
a process, not to ensure any result.” Inland Empire Pub.
Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.
1996).
Judicial review of an environmental impact statement is
“extremely limited.” Nat’l Parks & Conservation Ass’n v.
U.S. Dept. of Transp., 222 F.3d 677, 680 (9th Cir. 2000). A
RIVER RUNNERS v. MARTIN 9315
court evaluates such a statement only to determine whether it
“contains a reasonably thorough discussion of the significant
aspects of the probable environmental consequences” of the
challenged action. Or. Envtl. Council v. Kunzman, 817 F.2d
484, 492 (9th Cir. 1987) (internal quotes and citation omit-
ted). A court “need not fly-speck the document and hold it
insufficient on the basis of inconsequential, technical difficul-
ties, but will instead employ a rule of reason.” Swanson v.
U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996) (internal
quotes and citation omitted).
Plaintiffs contend that the Park Service failed to take a
“hard look” at the cumulative impacts of noise on the Park as
required by 40 C.F.R. § § 1502, 1508.7. The Court disagrees.
As described in the preceding section, the Park Service specif-
ically considered the cumulative effects of noise on the river
environment, including noise from river traffic, helicopters,
and aircraft overflights. A cumulative noise analysis was per-
formed for each of the alternatives considered for the Lees
Ferry Segment. FEIS Vol. II at 348-86. A similar cumulative
impact analysis was presented for each of the Lower Gorge
alternatives. FEIS Vol. II at 387-404. Plaintiffs provide no
record citations or analysis for impacts they say should have
been considered cumulatively. The Court concludes that the
Park Service took a hard look at the cumulative impacts of
noise from river traffic, including motorized traffic.
Plaintiffs also contend that the Park Service failed to use
high quality information or accurate scientific analysis, but
Plaintiffs provide no factual basis for this argument. As
Defendants note, the bibliography for the FEIS includes more
than 500 technical and scientific references. The Court cannot
conclude that the Park Service acted arbitrarily and capri-
ciously by failing to consider high quality information or
appropriate scientific analyses.
VII. Conclusion.
Plaintiffs have failed to establish that the Park Service
acted arbitrarily and capriciously when it adopted the 2006
9316 RIVER RUNNERS v. MARTIN
CRMP. The Court accordingly will grant the summary judg-
ment motions of Defendants and Intervenors and deny the
summary judgment motion of Plaintiffs.
IT IS ORDERED:
1. Defendants’ motion for summary judgment (Dkt.#64)
is granted.
2. Intervenors’ cross-motions for summary judgment
(Dkt.##62, 67) are granted.
3. Plaintiffs’ motion for summary judgment (Dkt.#55) is
denied.
4. Defendants’ motion to strike (Dkt.#73) is denied.
5. The Court will enter judgment by separate order. The
Clerk is directed to terminate this action.
DATED this 26th day of November, 2007.
David G. Campbell
United States District Judge