Friends of Yosemite Valley and Mariposans for Environmentally Responsible Growth (collectively Friends) sued the National Park Service (NPS) in the United States District Court for the Eastern District of California, alleging NPS management of the Merced River violated the Wild and Scenic Rivers Act (WSRA),[1] the National Environmental Policy Act (NEPA),[2] the Administrative Procedure Act (APA),[3] and previous Ninth Circuit decisions concerning management of the river.[4] The Ninth Circuit affirmed the district court’s order granting partial summary judgment in favor of the plaintiffs. The Ninth Circuit held that the 2005 Revised Comprehensive Management Plan (RCMP) violated the WSRA and previous court rulings because it was not a single, comprehensive document and because it failed to describe an actual level of visitor use that would not adversely impact the Merced River. The court also held that the supplemental environmental impact statement (SEIS) violated NEPA because it lacked a no-action alternative and because its range of action alternatives was unreasonably narrow. The court remanded the case for action consistent with its opinion.[5]

Congress designated sections of the Merced River for inclusion in the Wild Scenic River System in 1987, including parts flowing through Yosemite National Park and its administrative site, El Portal.[6] Congress enacted the WRSA in 1968 “out of concern for the preservation of United States rivers, many of which had been subjected to overdevelopment and damming.”[7] The WSRA framework uses specific “outstandingly remarkable values” (ORVs) to justify initial designations of rivers[8] and also provides standards for evaluating the compatibility of proposed projects with the protection and enhancement of the ORVs of designated rivers.[9] Following designation, administering agencies must establish river boundaries and classify the river or its segments within one year and prepare a comprehensive management plan (CMP) that addresses “resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the [WSRA's] purposes” within three years.[10] In pursuit of interdepartmental consistency, the Agriculture and Interior departments issued joint WSRA interpretative guidelines in 1982. The Final Revised Guidelines for Eligibility, Classification and Management of River Areas (Secretarial Guidelines) require the CMP to contemplate the kinds and amount of public use, including recreation, that each river can sustain without adverse affect on its ORVs.[11]

NPS was statutorily required to prepare and adopt a valid CMP within three years of the Merced’s wild and scenic designation in 1987, but the agency failed to meet this deadline and litigation ensued. After being ordered by the district court to issue a CMP for the Merced,[12] NPS complied in 2000, more than twelve years after the CMP was due. In 2003, the Ninth Circuit held the 2000 CMP failed to adequately address user capacities and improperly drew the boundaries of the Merced River at El Portal.[13] After clarifying its 2003 decision, the Ninth Circuit remanded the case to the district court, granted a temporary stay of proceedings, and enjoined NPS from implementing projects developed in reliance on the invalid CMP.[14] On remand, the district court ordered NPS to complete a new or revised CMP and an SEIS.[15]

After public scoping and review, NPS issued its 2005 revised plan (RCMP), which Friends challenged under the WRSA, NEPA, the APA, and as violating the Ninth Circuit’s earlier opinions. The Ninth Circuit reviewed NPS’s appeal from the district court’s grant of plaintiff’s motion for summary judgment de novo.[16] Thus, the court reviewed NPS’s action under the APA, allowing the court to set aside agency decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”[17] More specifically, the Ninth Circuit required NPS to demonstrate a “rational connection” between the data described and decisions made.[18] Applying this standard of review, the Ninth Circuit affirmed the district court’s holdings regarding the RCMP’s deficiencies in addressing user capacities and serving as a single, comprehensive plan, as well as the failure of the SEIS to provide a “no action” alternative and a reasonable range of action alternatives.

The Ninth Circuit had previously instructed NPS to adopt specific limits on user capacity that “describe an actual level of visitor use that will not adversely impact the Merced’s ORVs.”[19] In response to this order, the RCMP revised the 2000 Visitor Experience and Resource Protection (VERP) program to address this instruction. On appeal, NPS argued that the RCMP promulgated measurable limits on user capacities in 1) the Wilderness Trailhead Quota System and Superintendent’s Compendium limits, 2) the VERP indicators and standards, and 3) the User Capacity Management Program’s interim limits. The Ninth Circuit first dismissed NPS’s reliance on the Wilderness Trailhead Quota System limits on overnight users in the wilderness area and the Superintendent’s Compendium limits on time and location of specific activities because both methods predated the RCMP. Then, the court addressed NPS’s remaining arguments in greater detail.

The Ninth Circuit affirmed the district court’s finding that VERP failed to address user capacities, holding that it was reactive and not oriented toward preventing degradation. The VERP program’s description of indicators and standards to monitor and maintain was reactive because it did not “describe an actual level of visitor use that will not adversely impact the Merced’s ORVs.”[20] NPS argued that the VERP monitoring triggers could spur action prior to degradation. However, the Ninth Circuit criticized the permissive language of the RCMP regarding management action and stated that VERP standards must trigger management before degradation occurs, instead of allowing action when conditions approach the standard.

The Ninth Circuit also affirmed the district court’s conclusion that the RCMP’s interim limits restricting the kinds and amounts of visitor use for five years during VERP program testing failed to “describe an actual level of visitor use that will not adversely affect” the Merced River.[21] The court rejected NPS’s argument that holding facility levels to 1987 levels was reasonable, noting that such an argument lacked authority. Under WSRA’s “protect and enhance” command,[22] the court reasoned NPS had a responsibility to address past degradation, including the degradation that existed in 1987, as well as ongoing degradation. The court concluded that the multitude of recreational facilities and services at the Merced failed to be “river-related or river dependant” and “rare, unique, or exemplary in a regional or national context,” both of which were required elements of establishing recreation as an ORV.[23] The Ninth Circuit also reasoned that the interim limits violated the statutory command of WSRA by failing to demonstrate a “primary emphasis” on the protection of the Merced.[24] Finally, the court concluded that the origin of the interim limits in the current capacity limits lacked a rational connection with facts found.[25]

Next, the Ninth Circuit affirmed the district court’s finding that NPS failed to produce a single, comprehensive plan that covered all required elements, including the “kinds and amounts of public use which the river area can sustain.”[26] The Ninth Circuit affirmed the district court’s rejection of a December 2005 “Presentation Plan” that integrated the CMP and RCMP because it lacked public review and contradicted the RCMP’s status as the final revised plan. In stressing its single-plan requirement, the court rejected the issuance of the RCMP as a supplemental volume that cross-referenced the original CMP. Substantively, the court held the RCMP was not comprehensive because, although it addressed the “amounts” of use, it failed to also address the “kinds” of permissible use. Finally, the Ninth Circuit rejected NPS’s argument that both the district court and appellate court unlawfully assumed responsibility for revising the 2000 CMP.[27] Instead, the Ninth Circuit concluded that each court properly entered a judgment on the issues and remanded the revisions to NPS for reconsideration.

Finally, the Ninth Circuit affirmed the district court’s holding that NPS violated NEPA because the SEIS was invalid for lacking a no-action alternative and a reasonable range of action alternatives. The no-action alternative proposed managing the Merced River corridor under the CMP. Thus, the alternative referenced a “status quo” management that had already been rejected,[28] and the only basis for the no-action alternative rested in the RCMP’s incorporation of the CMP’s elements. The Ninth Circuit reasoned that approving a baseline alternative on the assumption of a proposed plan’s validity was “logically untenable.”[29]

The Ninth Circuit used the “rule of reason” standard in affirming the district court’s determination that the SEIS lacked a reasonable range of action alternatives. Each of the three action alternatives in the SEIS was based on the VERP program, which failed to adequately address user capacity, even though NPS, from its meeting notes, acknowledged the need for reasonable range of user capacity alternatives. Additionally, the Ninth Circuit reasoned that because each action alternative proposed five-year interim limits consistent with current use, the alternatives were essentially identical. Even though two alternatives included maximum use levels and annual visitation limits, the court held the SEIS violated NEPA because the similar alternatives were not sufficiently varied to provide for a genuine, informed choice.

In conclusion, the Ninth Circuit held that the RCMP violated WSRA and Ninth Circuit precedent because it was not a single, comprehensive document that described the actual level of use that would not adversely impact the Merced River. Furthermore, the court held that the agency’s SEIS violated NEPA because it lacked a genuine no-action alternative and its range of action alternatives were indistinguishable. The court remanded the case to the district court for proceedings consistent with its opinion.

^[1] 16 U.S.C. §§ 1271-1287 (2006).

^[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2006).

^[3] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[4] The Ninth Circuit reviewed a previous comprehensive management plan for the Merced River in 2003, Friends of Yosemite Valley v. Norton (Yosemite I), 348 F.3d 789 (9th Cir. 2003),and clarified the opinion in 2004 in Friends of Yosemite Valley v. Norton (Yosemite II), 366 F.3d 731 (9th Cir. 2004).

^[5] The Ninth Circuit dismissed NPS’s interlocutory appeal from the district court’s order enjoining nine projects in the Merced River Corridor because the agency failed to address the injunction issue in its appellate briefs, and thus its arguments were deemed waived. E.g., Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); Miller v. Fairchild Indus. Inc., 797 F.2d 727, 738 (9th Cir. 1986).

^[6] See Pub. L. No. 100-149, 101 Stat. 879 (Nov. 2, 1987) (codified at 16 U.S.C. § 1274(a)(62)(A) (2006)).

^[7] Friends of Yosemite Valley v. Kempthorne (Yosemite III), 520 F.3d 1024, 1027 (9th Cir. 2008).

^[8] Wild and Scenic Rivers Act, 16 U.S.C. § 1271 (2006).

^[9] Id. § 1281(a).

^[10] Id. § 1274(d)(1).

^[11] Final Revised Guidelines for Eligibility, Classification and Management of River Areas, 47 Fed. Reg. 39,454, 39,458-59 (Sept. 7, 1982) [hereinafter Secretarial Guidelines].

^[12] Sierra Club v. Babbitt, 69 F. Supp. 2d 1202, 1263 (E.D. Cal. 1999).

^[13] Yosemite II, 366 F.3d 731 (9th Cir. 2004)(clarifying 2003 Yosemite I decision).

^[14] Id.

^[15] Id.The district court also enjoined certain projects until completion of the new or revised CMP.

^[16] Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999) (citation omitted).

^[17] Yosemite III, 520 F.3d 1024, 1032 (9th Cir. 2008)(quoting Yosemite I, 348 F.3d 731, 793 (9th Cir. 2003)).

^[18] Id.(quoting Pub. Citizen v. Dep’t of Transp., 316 F.3d 1002, 1020 (9th Cir. 2003)). With regard to environmental impact statements (EISs), the Ninth Circuit applied a “rule of reason” standard that evaluates whether an EIS “contains a reasonably thorough discussion of the significant aspects of the environmental consequences.” Yosemite I, 348 F.3d 789, 800 (9th Cir. 2003).The court equated this standard with the “abuse of discretion” standard. Id.

^[19] Yosemite I, 348 F.3d at 797.This is the Ninth Circuit’s interpretation of 16 U.S.C. § 1281(a)and the Secretarial Guidelines, supra note 561, at 39, 458-59.

^[20] Yosemite III, 520 F.3d at 1034(quoting standard set forth in Yosemite I, 348 F.3d at 797).

^[21] Id.

^[22] Wild and Scenic Rivers Act, 16 U.S.C. § 1281(a) (2006).

^[23] Yosemite III, 520 F.3d at 1035 n.5.

^[24] See id. § 1281(a) (requiring that administration of rivers designated under WSRA place “primary emphasis” on a river’s “esthetic, scenic, historic, archeologic, and scientific features”).

^[25] The Ninth Circuit’s earlier decision in High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630 (9th Cir. 2004),emphasized some of the problems with maintaining use at existing levels. In that case, the court concluded continuance of existing use levels at best “failed to balance the impact that that level of commercial activity was having on the wilderness character of the land” and at worst “elected recreational activity over the long-term preservation of the wilderness character of the land.” Id. at 647.

^[26] Final Revised Guidelines for Eligibility, Classification and Management of River Areas, 47 Fed. Reg. 39,454, 39,458-59 (Sept. 7, 1982).

^[27] In support of its argument, NPS cited Federal Power Commission v. Idaho Power Co., 344 U.S. 17 (1952), which explains “the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the [agency] for reconsideration.” Id. at 20.

^[28] Yosemite II, 366 F.3d 731, 731 (9th Cir. 2004).

^[29] Yosemite III, 520 F.3d 1024, 1038 (9th Cir. 2008).

The Center for Biological Diversity and the Central Arizona Paddlers Club (collectively Center) sued the United States Forest Service (USFS) for violating the Wild and Scenic Rivers Act (WSRA).[1] The Center claimed USFS failed to consider 57 rivers in Arizona that qualify for inclusion in the Wild and Scenic River System (WSRS) when planning the development of federal land. The district court dismissed the Center’s suit for lack of subject matter jurisdiction. The Ninth Circuit had jurisdiction over the case pursuant to 28 U.S.C. section 1291. The Ninth Circuit reversed and remanded the case to the district court, holding USFS had a duty under the WSRA to consider the rivers and that the Center alleged facts evincing that USFS did not fulfill this requirement. As a result, the district court had the subject matter jurisdiction to hear the Center’s claim.

Congress passed the WSRA in 1968 to protect certain segments of rivers from damming and development for generating electrified power. To be eligible for protection under the WSRA, a river must 1) flow freely and 2) possess at least one outstandingly remarkable value.[2] The outstandingly remarkable values include “scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values.”[3] A river fulfilling these two characteristics may be designated scenic, recreational, or wild by either an act of Congress or by application from a state governor.[4]

In 1993, at the request of the Arizona congressional delegation, USFS conducted a study that identified 57 Arizona river segments that qualified as potential wild and scenic or recreational rivers and published its findings in a report (1993 Report). Under the WSRA, potentially wild and scenic rivers must be considered “[i]n all planning for the . . . development of water and related land resources . . . by all Federal agencies.”[5] The Center claimed that USFS failed to take these 57 rivers into account when making development plans in violation of the WSRA. Because the WSRA does not provide for an independent cause of action, the Center brought suit under the Administrative Procedure Act (APA).[6] The district court found that the Center did not prove final agency action necessary for APA review and dismissed for lack of subject matter jurisdiction. The Ninth Circuit reviewed this dismissal de novo.

First, the Ninth Circuit addressed the Center’s argument that the 1993 Report constituted “final agency action.” Under the APA, the court only intervenes when final agency action takes effect.[7] The court stated that an agency action must signify the completion of the agency’s decision-making process to be considered final. The Ninth Circuit determined that the 1993 Report represented only the first step in the process of designation under the WSRA and therefore was not final agency action.

The Ninth Circuit next turned to the Center’s alternative argument that the court has subject matter jurisdiction over the Center’s claim because USFS unlawfully withheld action by not considering the rivers in planning. The APA allows a claimant to ask a court to compel “agency action unlawfully withheld or unreasonably delayed.”[8] To prove its right to bring suit under this provision, the Center had to prove the WSRA required USFS to act. The three steps to designating a river under the WSRA are: 1) USFS determines whether the river flows freely and possesses at least one outstandingly remarkable value, 2) the applicable federal agency determines whether the river is suitable for designation when other factors are taken into account, and 3) Congress decides whether to designate the river. The WSRA requires federal agencies to consider potential wild, scenic, and recreational rivers in developing resources.[9]

USFS argued the 1993 Report did not officially identify potential wild and scenic rivers, so it had no mandatory duty under the WSRA to consider them. USFS also contended that the WSRA does not contain an express statutory duty to protect rivers until they are labeled wild and scenic, and the 57 rivers had not been labeled as such. To overcome these arguments and establish a right to review, the Center had to prove that USFS had a statutory mandate to consider the rivers, and that USFS did not comply with that agency mandate.

To prove that USFS had a statutory mandate, the Center pointed to the language of the WSRA which states that USFS “shall” consider the effect use and development plans for land and water would have on “potential” wild and scenic rivers.[10] The Ninth Circuit first determined that the 1993 Report identified potential rivers as required by the WSRA. The court rejected USFS’s argument that it does not typically identify wild and scenic rivers by this method because the WSRA does not require particular methods for identifying potential rivers. In addition, USFS could not identify any substantive flaws with the 1993 Report, the Report identified statutory requirements for river eligibility, and the rivers in the report were listed on the Nationwide Rivers Inventory.

Second, the court found that USFS’s duty to consider those potential rivers was a mandatory requirement. To do so, it relied on its reasoning outlined in Montana Wilderness Ass’n v. United States Forest Service,[11] where the Ninth Circuit held that the Montana Wilderness Study Act,[12] which required USFS to maintain possible wilderness study areas in their existing condition, imposed a duty of USFS action. USFS had a “nondiscretionary, mandatory duty” to “‘maintain’ wilderness character and potential,” enforceable via the APA.[13] The court distinguished this mandatory duty from the general policy statements analyzed in ONRC Action v. Bureau of Land Management.[14] The requirement to consider rivers was not a general instruction to USFS or a statement of policy, but a mandatory requirement analogous to that in Montana Wilderness Ass’n. The court determined that this duty to consider “potential” rivers did not preclude USFS from taking action with federal land, but did require the agency to consider the impact of the action prior to taking it. Therefore, the court held that USFS had a mandatory duty to consider the 57 rivers in planning decisions.

Finally, the court discussed whether the Center alleged facts in its complaint that established USFS’s failure to satisfy its duty to consider the rivers. The court found that the Center alleged the requisite facts in this case. Although USFS claimed it has a policy of addressing potential wild and scenic rivers, the court “rejected this type of generalized defense” as it had in Montana Wilderness Ass’n.[15] In addition, the court held that USFS’s intention to act the next time it revises its forest plans could not substitute for the agency actually considering the rivers. The Ninth Circuit concluded that USFS had a mandatory duty to consider the rivers in the 1993 Report, pursuant to the WSRA, and that USFS did not perform this duty. Therefore, the Center satisfied the standard of review under the APA and proved that the court had subject matter jurisdiction over the claim. The Ninth Circuit reversed the dismissal of the action for lack of subject matter jurisdiction and remanded to the district court.

[1] 16 U.S.C. §§ 1271-1287 (2000).

[2] Id. § 1273(b).

[3] Id. § 1271.

[4] Id. § 1273(a).

[5] Id. § 1276(d)(1).

[6] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000). The suit was brought under id. § 706.

[7] Ctr. for Biological Diversity v. Veneman, 335 F.3d 849, 853 (9th Cir. 2003).

[8] 5 U.S.C. § 706(1) (2000).

[9] 16 U.S.C. § 1276(d)(1) (2000).

[10] Id.

[11] 314 F.3d 1146 (9th Cir. 2003).

[12] Montana Wilderness Study Act of 1977, Pub. L. No. 95-150, 91 Stat. 1243 (repealed).

[13] Ctr. for Biological Diversity v. Veneman, 335 F.3d 849, 856 (9th Cir. 2003) (quoting Mont. Wilderness Ass’n, Inc. v. United States Forest Serv., 314 F.3d 1146, 1151 (9th Cir. 2003)).

[14] 150 F.3d 1132 (9th Cir. 1998).

[15] Ctr. for Biological Diversity, 335 F.3d at 857.