Bluewater Network v. Kempthorne ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
BLUEWATER NETWORK, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-841 (GK)
)
KENNETH SALAZAR,1 et al., )
)
Defendants, )
)
PERSONAL WATERCRAFT INDUSTRY )
ASSOCIATION, et al., )
)
Defendant-Intervenors. )
______________________________)
MEMORANDUM OPINION
Plaintiffs Bluewater Network, The Wilderness Society, Enid
Sisskin, and Robert Goodman (collectively, “Plaintiffs”) brought
this action against Kenneth Salazar, Secretary of the Department of
the Interior, and Daniel Wenk, Deputy Director of the National Park
Service (“NPS”) (collectively, “Defendants”). Shortly after the
Complaint was filed, six parties--Personal Watercraft Industry
Association, American Watercraft Association, Carmen Perry, Richard
Chenoweth, Michael Soder, and William Manson--were added as
Defendant-Intervenors (collectively, “Intervenors”). Plaintiffs
seek to ban the re-introduction of personal watercraft (“PWCs” or
“jetskis”) in two national parks--Gulf Islands National Seashore
(“Gulf Islands” or “GUIS”) along the Gulf Coast of Florida and
1
Pursuant to Fed. R. Civ. P. 25(d), Secretary of the
Interior Kenneth L. Salazar is automatically substituted as
defendant for former Secretary Dirk Kempthorne.
Mississipi and Pictured Rocks National Lakeshore (“Pictured Rocks”
or “PIRO”) in Michigan.
Plaintiffs challenge Defendants’ actions pursuant to the
Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.
Specifically, they argue that NPS’ decision to allow jetskis back
into these two parks after banning them under both a national rule
and park-specific decisions represents arbitrary and capricious
conduct under the APA. Further, Plaintiffs maintain that the
decisions run afoul of the National Park Service Organic Act
(“Organic Act”), 16 U.S.C. § 1 et seq., violate the procedural
requirements of the National Environmental Policy Act (“NEPA”), 42
U.S.C. § 4321 et seq., and the terms of a settlement agreement
(“Settlement Agreement” or “Agreement”) entered into by parties
subsequent to an earlier round of litigation involving these two
parks. Bluewater Network v. Stanton, Civ. No. 00-02093 (“Bluewater
I”).
Bluewater contends that the Environmental Assessments (“EA”)
prepared by NPS to analyze the impacts of PWCs in each park
unreasonably concluded that jetski use is permissible. Further,
they take issue with the agency’s “findings of no significant
impact” (“FONSI”), the final Rule promulgated for each park, each
of which agreed with the EAs’ conclusions that PWC use would not
impair GUIS or PIRO, and the resulting lifting of the ban on
operating PWCs in the parks.
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Plaintiffs filed this case on May 15, 2008, challenging the
re-introduction of PWCs into PIRO and GUIS. Intervenors--six
individuals and organizations “with direct and substantial
organizational, financial, and personal interest in maintaining
existing authorized PWC use in these two park units,” Mot. to
Intervene at 1 [Dkt. No. 8]--were added as Defendants on August 19,
2008. Order (Aug. 19, 2008). Intervenors filed a Motion for
Partial Summary Judgment (“Standing Mot.”) on October 15, 2008,
which challenged Plaintiffs’ standing to object to the Rule at
Pictured Rocks. [Dkt. No. 18]. Those arguments were incorporated
into their Motion for Summary Judgment (“Intervenors’ Mot.”) [Dkt.
No. 27], filed February 2, 2009. Intervenors’ Motion became ripe
on March 20, 2009. Plaintiffs also filed a Motion for Summary
Judgment [Dkt. No. 24], on December 18, 2008, which became ripe
February 27, 2009. Finally, the original Defendants filed their
own Motion for Summary Judgment (“Defs.’ Mot.”) [Dkt. No. 29] on
February 6, 2009, which became ripe on March 20, 2009. Parties
presented oral arguments at a Motions Hearing on May 17, 2010.
Upon consideration of the Motions, Oppositions, Replies,
lengthy oral argument, and the entire record herein, and for the
reasons stated below, Intervenors’ Standing Motion for Partial
Summary Judgment is granted in part and denied in part, Plaintiffs’
Motion for Summary Judgment is granted in part and denied in part,
Defendants’ Motion for Summary Judgment is granted in part and
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denied in part, and Intervenors’ Motion for Summary Judgment is
granted in part and denied in part.
In reaching these conclusions, the Court has examined in
detail NPS’ reasoning and how it arrived at the conclusions it
reached, in light of the factual premises relied upon. In
particular, the Court has asked whether NPS examined the relevant
data and if it provided a rational and logical connection between
the facts found and the policy choices made. But even apart from
this probing, in-depth review, this case presents an additional
overarching question. Why has NPS issued Rules allowing jetski use
in two beautiful and pristine national parks, acknowledging that
such use will impact, to varying degrees, water quality, air
quality, wildlife, animal habitats, soundscapes, visitor use and
safety, etc., when the users of jetskis are perfectly free to enjoy
their vehicles in other, equally accessible areas, without
threatening the serenity, the tranquility--indeed, the majesty--of
these two national treasures?
I. BACKGROUND2
Jetskis are “high performance vessels designed for speed and
maneuverability and are often used to perform stunt-like
2
Unless otherwise noted, the facts set forth herein are
drawn from the Administrative Record (“AR”). On October 14, 2008,
parties submitted the bates-stamped AR in electronic form. [Dkt.
No. 17.] The voluminous record spans two compact discs, one for
each park. Citations to the AR for Pictured Rocks will appear as
PIRO-#####; citations to the AR for Gulf Islands will appear as
GUIS-#####.
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maneuvers.” 65 Fed. Reg. 15,078. Their “rapid maneuvering and
frequent speed changes” cause the engine speed to “rise[] and
fall[],” which creates a sound whose pitch varies. GUIS–00174; see
PIRO-00024. According to NPS, “this constantly changing sound is
often perceived as more disturbing than the constant sound from
motorboats.” Id. Plaintiffs cite studies showing that such noise
significantly mars visitors’ experience of the parks. Pls.’ Mot.
at 8. The EAs acknowledge that PWCs can “disrupt the ‘passive’
experience of park resources and values.” GUIS-00174; PIRO-00024.
Improvements to engine technology--including transition from two-
stroke engines to four-stroke and direct-injection two-stroke
engines--are expected to reduce PWCs’ impacts on noise and
pollution. Id. at 00172-74; PIRO-00023-24.
Historically, PWCs have been permitted in the National Park
System. In the 1990s, however, PWC use began to increase. In
response, NPS proposed a rule (“National Jetski Rule”) in 1998,
which became final on March 21, 2000, banning PWC use in all parks
except 21 parks with a history of prior jetski use. 65 Fed. Reg.
15,077-080; 36 C.F.R. § 3.9. These 21 excepted parks, which
include the two parks at issue in this case, were given a two-year
grace period to develop and implement park-specific regulations
that would allow PWC use;3 if they decided not to take any action,
3
Initially, under the National Jetski Rule, PWC use in ten
of the 21 excepted parks, including GUIS, could continue,
(continued...)
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the ban would go into effect upon expiration of the grace period on
April 22, 2002. 65 Fed. Reg. at 15,078.
After the National Jetski Rule was issued, Bluewater Network
and other environmental groups became concerned that the Rule was
not sufficiently protective of the 21 excepted parks.4 Defs.’ Mot.
at 3. They brought suit against NPS, which resulted in the
Settlement Agreement approved by this Court on April 11, 2001.
Bluewater I, Order (Apr. 11, 2001). Under the terms of the
Settlement Agreement, if a park excepted from the national ban
wished to permit PWC use after expiration of the grace period, it
was required to promulgate a park-specific regulation on PWC use.
Defs.’ Mot. at 3-4. For such parks, the national ban would
continue to apply from expiration of the grace period on April 22,
2002, until issuance of a park-specific regulation allowing PWC use
if such Rule was issued. The Agreement also required parks
permitting PWC use to comply with NEPA.
3
(...continued)
restricted only to the level authorized in each park’s
Superintendent’s Compendium. However, as part of the Settlement
Agreement in Bluewater I, NPS was required to engage in park-
specific rulemaking on all parks not included under the national
ban. Settlement Agreement at ¶¶ 3-4 (Ex. 6 to Pls.’ Mot. for Summ.
J. (“Pls.’ Mot.”)) [Dkt. No. 24-6].
4
Plaintiff Robert Goodman was also a plaintiff in
Bluewater I.
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A. Pictured Rocks National Lakeshore
Pictured Rocks is located along the southern shore of Lake
Superior in the north-central section of Michigan’s Upper
Peninsula. The surrounding region is a “sparsely populated area”
of the Peninsula. PIRO-00021. In the Pictured Rocks EA,
Defendants describe the park as a “year-round recreational
destination where hiking, camping, hunting, nature study, and
winter activities abound.” Id. at 00015. The park features
“multicolored sandstone cliffs, beaches, sand dunes, waterfalls,
inland lakes, wildlife and forested shoreline” as well as “a
lighthouse . . . former Coast Guard life-saving stations . . . old
farmsteads and orchards.” Id.
In NPS’ own words, the park is significant because in part its
“shoreline offers extraordinary and inspirational scenic vistas of
Lake Superior, the largest body of surface area of fresh water on
earth.” Id. at 00021. Additionally, PIRO boasts rock cliffs
“unmatched in their scenic value,” “[t]welve miles of unspoiled and
undeveloped . . . beach,” and “a spectrum of cultural resources,”
among other unique attractions. Id.
PWC use was first permitted in the park around 1990. In the
past, PWCs were permitted along the entire shoreline of the park,
but only within a quarter-mile boundary of the shore, and were
regulated in the same manner as other motorized watercraft. In
1998, Michigan passed the Michigan Personal Watercraft Safety Act.
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MICH . COMP. LAWS § 324.80209 (1998). That statute imposes wake,
location, and depth restrictions on PWC use throughout the state.
NPS incorporates the statute’s provisions into its policies
governing PWC use at Pictured Rocks. PIRO-00034. The Michigan
legislation requires PWCs to travel at slow, no-wake speeds within
200 feet of shoreline, and refrain from traveling within 100 feet
of “a dock, raft, or buoyed or occupied bathing or swimming area,
a person in the water or on the water in a personal flotation
device, or a vessel moored, anchored, drifting, or sitting in dead
water,” unless traveling at no-wake speed. Id. There are
additional restrictions regarding proximity to divers and diving
vessels.5 Id.
After the National Jetski Rule was promulgated in 2000, PIRO
was given a two-year grace period to develop a park-specific rule
governing PWC use. On February 7, 2002, Park Superintendent Karen
C. Gustin issued a Compendium (“Superintendent’s Compendium”)6
5
Further, the Environmental Assessment prepared for PIRO
states that other state regulations apply, including: operation of
PWCs only between 8:00 a.m. and one hour before sunset; age
restrictions; prohibited use where water is less than two feet
deep, unless traveling at a no-wake speed; a ban on operation
within 150 feet of other watercraft; and regulation of “speed, wake
jumping, and other action.” PIRO-00034.
6
The Superintendent’s Compendium has been described by NPS
as a “local management guide authorized by” NPS regulations, 71
Fed. Reg. 17,780 (Apr. 7, 2006), and is considered to be
“terminology the NPS uses to describe the authority provided to the
Superintendent under [applicable NPS regulations]. It allows for
local, park-specific regulations for a variety of issues and under
(continued...)
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closing the park to all PWC use. PIRO-03615 (Ex. 3 to Pls.’ Mot.).
Consequently, as provided for in the National Rule, when the grace
period expired in April 2002, PWCs were banned at PIRO.
That same year, 2002, NPS conducted an Environmental
Assessment (“EA”) to analyze the impact of PWCs on the park. The
EA considered three alternatives: Alternative A examined PWC use at
the same level that existed before the national ban; Alternative B
examined limited PWC use; and Alternative C, the no-action
alternative, examined the impact of prohibiting all PWC use at
PIRO.
Guided by Director’s Order #12: Conservation Planning,
Environmental Impact Analysis and Decision-making, NPS analyzed the
impacts of each alternative on park resources in terms of their
context, duration, and intensity. PIRO-00006. Impacts were
measured on a number of “impact topics,” including water quality,
air quality, soundscapes, wildlife and wildlife habitat, threatened
or endangered species or species of special concern, shoreline
vegetation, visitor experiences, visitor conflicts and safety,
cultural resources, socioeconomic effects, conflicts with state and
local regulations, and management operations. Id. at 00007-08.
For each topic, NPS described “guiding regulations and policies”
before setting forth its methodology for assessing the
6
(...continued)
certain criteria.” 68 Fed. Red. 69,360 (Dec. 12, 2003).
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alternatives. Id. at 00006-07. Then, each alternative was
compared to a baseline.7 For PIRO, that baseline was represented
by Alternative A (i.e. the continuation of PWC use at pre-ban
levels); the EA projected impacts under this alternative, and each
of the others, over the next ten years. Id. at 00007.
When the EA was completed, NPS held a public review and
comment period. Based on the comments submitted, NPS issued an
errata to the EA, reducing the area that would be open for PWC use
under Alternative B. NPS concluded that Alternative B was the best
option for protecting the park’s resources and visitors, while
still permitting a range of recreational activities. NPS also
declined to prepare a full “environmental impact statement”
(“EIS”)--as required by NEPA in certain circumstances--and instead
issued a FONSI in September 2005, as required by Council of
Environmental Quality (“CEQ”) regulations.
NPS then began its rulemaking process, publishing a proposed
rule in the Federal Register for public comment from November 15,
2004, to January 14, 2005. In October 2005, NPS issued its Final
7
NPS and parties use “baseline,” “guideline,” and
“threshold” almost interchangeably--which is most imprecise and
unhelpful. In the Court’s view, this usage is inaccurate. A
“guideline” is an “indication or outline of future policy or
conduct (as of a government).” Webster’s Third New International
Dictionary 1009 (2d ed. 1981). A baseline or threshold is a point
or level that serves as a basis for comparison or measurement. See
Sierra Club v. Mainella, 459 F. Supp. 2d 76, 83-84 (D.D.C. 2006).
Given the manner in which NPS and the parties use these terms, the
Court must assume they are being used to provide an existing level
from which certain impacts are measured.
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Rule (“Pictured Rocks Rule”),8 which re-authorized PWC use, as
described in Alternative B; however, the use was restricted to an
eight-mile segment of the park’s 42-mile shoreline. 70 Fed. Reg.
61,896. The Pictured Rocks Rule also required that PWCs be
launched from only one designated site, and prohibited PWC use
within 200 feet of the shoreline unless traveling at a slow enough
speed so that no wake was created.
B. Gulf Islands National Seashore
GUIS is located in the northeastern section of the Gulf of
Mexico and consists of a 160-mile expanse of barrier islands and
waters from the eastern end of Santa Rosa Island in Florida to Cat
Island in Mississippi. Within the park are “snowy-white beaches,
sparkling blue waters, fertile coastal marshes, and dense maritime
forests” as well as “19th century forts . . . shaded picnic areas
. . . winding nature trails, and . . . comfortable campgrounds.”
GUIS-00150. Additionally, visitors can enjoy GUIS’ “regionally
important ecological sites,” the endangered species that are
present in several areas, and “[s]everal mostly undisturbed,
natural areas in close proximity to major population areas.” Id.
at 00169.
8
The FONSIs and final rules at both parks relied on the
analysis and conclusions set forth in the EAs. GUIS-00572; 71 Fed.
Reg. 26,233-34 (Gulf Islands Rule); PIRO-193; 70 Fed. Reg. 61,895-
96 (Pictured Rocks Rule).
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GUIS was the most heavily visited seashore in the national
park system at the time that the EA was produced in 2004. It was
also one of the ten most visited areas in the entire national park
system, welcoming an average of 4.9 million people per year. Id.
at 00252. According to enabling legislation, NPS must preserve
Gulf Islands “for public use and enjoyment [of] certain areas
possessing outstanding natural, historic, and recreational
values.”9 16 U.S.C. § 459h(a). Park visitors operate a variety of
watercraft, including “ski boats, personal watercraft, runabouts,
day cruisers, sailboats, houseboats, canoes, kayaks, and rowboats.”
Id. at 00306. In addition to the presence of these watercraft,
visitors can expect to encounter “military over flights, commercial
fishing boats, [and] large ships,” because of the military and
commercial areas which are nearby. Id.
The park is divided into two management districts, one in
Florida and one in Mississippi. In the past, PWC use was allowed
in the park, under the same regulations as other motorized
watercraft. Most PWC use, however, occurred in Pensacola Bay, in
the Florida district, because the waters there were more sheltered
and closer to residences with launching facilities than in the
Mississippi district.
9
As Intervenors observe, the legislative history of this
Act indicates that the area’s recreational opportunities were a
significant reason for including it in the national park system.
See Intervenors’ Mot. at 11 (citing S. Rep. No. 91-1514 (1970)).
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Under the National Jetski Rule, the GUIS Superintendent
initially planned to permit PWC use, regulated through local rules
contained in the park’s Superintendent’s Compendium. The
Settlement Agreement, however, required GUIS to issue a special
regulation, and to conduct NEPA review, if PWC use was to continue.
In 2001, GUIS management conducted a study of the effects of
PWC use within the park. GUIS-00151. The findings of that study
were reported in October of 2001 in an Administrative Determination
(“2001 Determination”) issued by the Gulf Islands Superintendent.
The Determination supported a ban on PWC use in the park, id. at
00079, concluding that “PWC use is an inappropriate activity at
Gulf Islands National Seashore” Id. The Determination was
supported by findings that PWC use negatively impacted the water
quality, wildlife, and enjoyment of the park by other visitors at
GUIS. Id. at 00073-77.
After the PWC national ban went into effect in April 2002, NPS
conducted an EA to further consider the impact of PWCs in the park.
In January 2006, the agency issued a FONSI.
The EA considered three alternatives, which were similar to
those considered in the Pictured Rocks EA: a no-action alternative
which would continue the ban on PWCs and would not require
promulgation of any special regulation; Alternative A, which would
again allow PWC use in the park at the same level that existed
before the national ban; and Alternative B, which would also
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reinstate PWC use, but would further limit it through issuance of
certain restrictions. GUIS-00151.
NPS then evaluated the impacts of each alternative using a
framework nearly identical to the one used in the Pictured Rocks
EA.10 At GUIS, NPS considered the impacts on water quality; human
health and airborne pollutants related to PWC use; air quality
related values from PWC pollutants; soundscapes; shoreline and
submerged aquatic vegetation; wildlife and wildlife habitat;
aquatic fauna; threatened, endangered, and any other special status
species; visitor use and experience; visitor conflicts and safety;
cultural resources; socioeconomic effects; conflicts with state and
10
According to the GUIS EA, NPS used the following process
“to determine whether the various PWC management alternatives had
the potential to impair park resources and values”:
1. The park’s authorizing legislation, the 1978
General Management Plan (NPS 1978), the Strategic
Plan (NPS 1997b), and other relevant background
were reviewed with regard to the unit’s purpose and
significance, resource values, and resource
management goals or desired future conditions.
2. PWC management objectives specific to resource
protection goals at the park were identified.
3. Thresholds were established for each resource of
concern to determine the context, intensity and
duration of impacts, as defined above.
4. An analysis was conducted to determine if the
magnitude of impact reached the level of
“impairment,” as defined by NPS Management Policies
2001 (NPS 2000d).
GUIS-00266-67.
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local ordinances and policies; and impact on park operations from
increased enforcement needs. GUIS-00155. After completing the
EA, NPS again altered course and concluded that PWC use should be
permitted in the park, pursuant to the restrictions contained in
Alternative B.
This conclusion of the EA restricted PWC use to operating the
watercrafts only at speeds that would not create any wake within
300 yards of the shoreline, or within one-half mile of islands with
designated wilderness. PWCs would also be completely prohibited
within 200 yards of non-motorized watercraft and people in the
water. The proposed rule was published for public comment from
March 17, 2005, to May 16, 2005. On May 4, 2006, NPS issued a
final rule (“Gulf Islands Rule”), once again permitting PWC use in
the park, subject to the limits described. 71 Fed. Reg. 26,232.
II. STANDARD OF REVIEW
“The arbitrary and capricious standard [of the APA] is a
narrow standard of review.” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 416 (1971). It is well established in
our Circuit that “[t]his court’s review is . . . highly
deferential” and “we are ‘not to substitute [our] judgment for that
of the agency’ but must ‘consider whether the decision was based on
a consideration of the relevant factors and whether there has been
a clear error of judgment.’” Bloch v. Powell, 348 F.3d 1060, 1070
(D.C. Cir. 2003) (citations and internal quotation marks omitted);
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see also United States v. Paddack, 825 F.2d 504, 514 (D.C. Cir.
1987). However, this deferential standard cannot be used to shield
the agency’s decision from undergoing a “thorough, probing, in-
depth review” by the Court. Midtec Paper Corp. v. United States,
857 F.2d 1487, 1499 (D.C. Cir. 1988) (internal citations and
quotations omitted). District courts must “determine whether or
not as a matter of law the evidence in the administrative record
permitted the agency to make the decision it did.” Mainella, 459
F. Supp. 2d at 90 (quoting Occidental Eng’g Co. v. INS, 753 F.2d
766, 769-70 (9th Cir. 1985)).
An agency satisfies these standards if it “examine[s] the
relevant data and articulate[s] a satisfactory explanation for its
action,” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983), and if there is “a rational connection
between the facts found and the choice made.” Baltimore Gas & Elec.
Co. v. Natural Res. Def. Council, 462 U.S. 87, 88 (1983).
Summary judgment will be granted when there is no genuine
issue as to any material fact. See Fed. R. Civ. P. 56(c). Because
this case involves a challenge to a final administrative decision,
the Court’s review on summary judgment is limited to the
administrative record. Holy Land Found. for Relief and Dev. v.
Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) (citing Camp v. Pitts, 411
U.S. 138, 142 (1973)); Richards v. Immigration & Naturalization
Serv., 554 F.2d 1173, 1177 (D.C. Cir. 1977) (“Summary judgment is
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an appropriate procedure for resolving a challenge to a federal
agency’s administrative decision when review is based upon the
administrative record.”).
III. ANALYSIS
The dispute in this case involves two distinct legal issues.
First, Intervenors advance the threshold argument that Plaintiffs
have no standing to challenge the Pictured Rocks Rule permitting
jetskis to be re-introduced to that park. Second, Plaintiffs
challenge the agency’s decisions to pass regulations allowing
limited jetski use in these two parks. In their three-count
Complaint, Plaintiffs allege that those decisions violated the NPS
Organic Act, NEPA, and the Settlement Agreement.
A. Standing
Plaintiffs “[invoke] federal jurisdiction” in this case, and
therefore bear the burden of establishing standing. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because standing
is “not [a] mere pleading requirement[] but rather an indispensable
part of the plaintiff’s case, each element must be supported in the
same way as any other matter on which the plaintiff bears the
burden of proof.” Id. At the summary judgment stage, “the
plaintiff can no longer rest on . . . ‘mere allegations,’ but must
‘set forth’ . . . ‘specific facts,’ which for purposes of the
summary judgment motion will be taken to be true.” Id. (quoting
Fed. R. Civ. P. 56(e)).
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Plaintiffs claim standing to challenge the Pictured Rocks Rule
based on the visit of Plaintiff Robert Goodman to the park before
issuance of the Rule re-authorizing PWC use at Pictured Rocks.
Compl. ¶¶ 6-7. In his declaration, Goodman identifies himself as
a Michigan resident, living near Detroit, about 400 miles from
Pictured Rocks. Goodman Decl. at ¶¶ 1, 5 (Ex. 2 to Pls.’ Opp’n to
Standing Mot. (“Pls.’ Standing Opp’n”)) [Dkt. No. 19-3]. He is an
avid kayaker, who takes frequent kayaking trips. Id. at ¶¶ 2-4.
He has visited Pictured Rocks only once, in the mid-1990s. Id. at
¶ 5. While there, his enjoyment of the area was diminished by the
noise and wake created by PWC use. Id. at ¶ 6. He “decided that
[he] would not return to be faced with more Jetskis there.” Id.
If they are banned, however, he indicates he will be more likely to
return to Pictured Rocks, possibly during a sea kayaking symposium
at a site “immediately adjacent to Pictured Rocks,” or on his own,
but not for another two summer seasons because of plans he has
already made. Id. at ¶ 8.
Intervenors argue that Plaintiffs lack standing to challenge
PWC use at Pictured Rocks, based on Goodman’s single trip to the
park, before existence of the current Rule, with no concrete plans
to return. Standing Mot. at ¶¶ 5-10.11 They also dispute
11
Defendants take no position on Intervenors’ Standing
Motion. See Def.’s Mot. at 17 n.4.
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Plaintiffs’ argument that Goodman has standing in this suit to
enforce the Bluewater I Settlement Agreement to which he is a
party. Intervenors’ Reply at 24.
It is well established that standing consists of three
elements: (1) “injury in fact,” or “an invasion of a legally
protected interest which is (a) concrete and particularized and (b)
actual or imminent;” (2) “a causal connection,” showing that the
injury is “fairly traceable to the challenged action of the
defendant;” and (3) “that it is likely as opposed to merely
speculative that the injury will be redressed by a favorable
decision.” Lujan, 504 U.S. at 560-61 (internal citations and
quotations omitted); see also Newdow v. Roberts, 603 F.3d 1002,
1009-10 (D.C. Cir. 2010).
Bluewater brings suit on behalf of its members. Compl. ¶ 4.
“[A]n association has standing to bring suit on behalf of its
members when: (a) its members would otherwise have standing to sue
in their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Wash. State Apple
Advertising Comm’n, 432 U.S. 333, 343 (1977). Additionally, injury
to aesthetic and recreational enjoyment is “a cognizable interest
for purposes of standing.” Lujan, 504 U.S. at 562-63. “Only one
[Plaintiff] needs to have standing to permit” the Court to resolve
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Plaintiffs’ claims. Massachusetts v. EPA, 549 U.S. 497, 518
(2007). In this case, the one Plaintiff offered is Robert Goodman.
1. Plaintiffs Cannot Establish “Injury in Fact” Under
their Statutory Claims.
Intervenors dispute only the “injury in fact” element of the
standing test. Standing Mot. at ¶ 5. As already noted, that
injury must be concrete and particularized, and actual or imminent.
Goodman’s sole visit to the park in the mid-1990s provides the
basis for Plaintiffs’ assertion of standing. The Supreme Court has
found that, “[p]ast exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief
. . . if unaccompanied by any continuing, present adverse effects.”
O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). The Court
applied this principle in Lujan, and concluded that plaintiffs
could not establish that a change in an agency’s interpretation of
the Endangered Species Act would produce “imminent” injury because
even though the individuals had visited the affected area in the
past, they had no firm plans to return. 504 U.S. at 564.
Similarly, in this case, Goodman visited Pictured Rocks in the
past, many years before filing the instant suit. His single visit
was allegedly marred by others’ PWC use. In his declaration, he
claims that he travels significant distances to kayak, and has done
so since the mid-1990s in order to enjoy parks near Pictured Rocks.
Goodman Decl. at ¶¶ 3-5. However, it is of great significance that
he has not re-visited PIRO, even though there was a PWC ban in
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place for more than three years before 2005. Id. at ¶ 7. He
states that if the ban were imposed again, he would “return to the
Lakeshore within two summer seasons.” Additionally, he has plans
to travel to the area as part of a kayaking symposium. Even if the
ban were in effect at that time, he can only say that he would “be
more likely” to participate in day trips to kayak at Pictured
Rocks. Id. at ¶ 8.
Goodman’s use of the park, and alleged injury, bears a strong
resemblance to the injury that the Supreme Court rejected in Lujan.
In both instances, a single earlier visit to a region was the
source of the injury. See Lujan, 504 U.S. at 563-64 (describing
that two plaintiffs each took single trip). Further, in each case,
those parties failed to return to the region. One Lujan plaintiff,
when asked of plans to return, stated that she planned to return,
but did not have any concrete plans to do so. Id. Likewise,
Goodman states an intention to return, and has claimed that he
would do so within two years, but does not indicate any concrete
plans. Goodman Decl. at ¶ 8. He has had ample opportunity to do
so, as he travels in the area to kayak. Even when a PWC ban was in
place for several years, he chose not to visit PIRO. Such facts
indicate that the injury is not, in this case, actual or imminent.
Standing does not exist where “‘some day’ intentions--without any
description of concrete plans, or indeed even any specification of
-21-
when the some day will be” make up the basis of the “actual or
imminent” injury being alleged. Lujan, 504 U.S. at 564.
Plaintiffs argue that Goodman’s situation is more analogous to
that of the plaintiffs in Friends of the Earth, Inc. v. Laidlaw
Envtl. Serv. (TOC), Inc., 528 U.S. 167 (2000), whose visits to a
polluted South Carolina river were found to be sufficient to
establish an injury in fact for standing purposes. See id. at 183.
That case, however, presented very different facts. There,
plaintiffs made frequent visits to the site. They lived near the
river, and came into contact with it regularly; as a result, they
continuously were exposed to its polluted waters and the spoiled
natural environment, thereby establishing an actual injury in fact.
Id. at 181-83. In Laidlaw, the challenged illegal activity
“directly affected affiants’ recreational, aesthetic, and economic
interests.” Id. at 183-84.
In the instant case, Goodman’s one visit to Pictured Rocks is
a far cry from the frequent and ongoing contacts found to be
sufficient in Laidlaw. Of course, “standing does not depend on the
size or quantum of harm to the party.” Animal Welfare Inst. v.
Comm. for Humane Legislation, Inc., 561 F.2d 1002, 1008 (D.C. Cir.
1977). Nevertheless, where, as here, an individual has made only
one visit, has no firms plans to return, has no ongoing connection
with the park, and has bypassed opportunities to visit when he was
-22-
in the area, the claim of an “actual and imminent” injury must be
rejected.12
2. Plaintiffs Have Standing to Enforce the Terms of
the Settlement Agreement Based on Goodman’s Status
as a Plaintiff in Bluewater I.
Plaintiffs also argue that because Goodman was a plaintiff in
Bluewater I, and because he is a party to the Settlement Agreement
reached in that case, he has standing to enforce its provisions in
this case. Pls.’ Standing Opp’n at 14 n.6; Pls.’ Reply at 23; see
also Berger v. Heckler, 771 F.2d 1556, 1564 (2d Cir. 1985)
(permitting a plaintiff to sue to enforce a consent decree under
“basic contract principles”); City of New York v. Dep’t of
Commerce, 739 F. Supp. 761, 766 (E.D.N.Y. 1990).
12
A decision from the Ninth Circuit, invoked by both
parties to support their arguments, does not alter the outcome in
this case. In Ecological Rights Foundation v. Pacific Lumber
Company, 230 F.3d 1141 (9th Cir. 2000), the Ninth Circuit held that
members of an environmental organization had standing to challenge
a lumber company’s conduct under the Clean Water Act. Pacific
Lumber, 230 F.3d at 1151. Plaintiffs in that case had visited the
site--a creek in California--with some regularity. One plaintiff,
Christopher Hinderyckx, “continued to drive to [the area] often,
sometimes stopping along the creek.” Id. at 1144. Hinderyckx said
that he was less likely to swim and fish in the creek because of
pollution, and maintained that “he aesthetically enjoy[ed] his
recreational activities there less than he otherwise would.” Id.
at 1144-45.
The Ninth Circuit’s analysis depends on facts that differ from
the facts in this case. Goodman did not visit Pictured Rocks with
any regularity. He did not return, even when PWC use was banned.
He has no regular contact with the park. Based on these
distinctions, the holding in Pacific Lumber does not dictate a
different outcome in this case.
-23-
Paragraph 9 of the Settlement Agreement requires all suits
challenging final rules promulgated under ¶¶ 1-4 of the Agreement
to be filed as new lawsuits. Settlement Agreement at ¶ 9.
Paragraphs 1-4 provide that all PWC use is to be banned, after a
grace period for certain parks including PIRO and GUIS, unless
special, site-specific regulations are promulgated for each park
where jetskis are to be allowed. Thus, challenges to the rules
permitting PWC use in those parks must be filed as new lawsuits,
not as continuations of Bluewater I. Plaintiffs are challenging
rules promulgated under ¶¶ 1-4, and so their claims must be
considered a new lawsuit.
In light of the terms of the Settlement Agreement, therefore,
the appropriate question is whether Goodman’s participation in
Bluewater I gives him standing to participate in an entirely new
suit to enforce settlement of the earlier litigation. Of course,
standing must be established in every new case whether it stems
from an earlier related case or not. Lujan, 504 U.S. at 560-61;
Fla. Audobon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)
(“[A] showing of standing is an essential and unchanging predicate
to any exercise of our jurisdiction.”) (citation and quotations
omitted).
The Settlement Agreement is unquestionably a contract. Makins
v. District of Columbia, 277 F.3d 544, 546-47 (D.C. Cir. 2002).
Goodman is a party to that contract. Individuals who are parties
-24-
to a contract have standing to enforce the terms of that contract
in the event that breach is alleged. See Tenn. Elec. Power Co. V.
Tenn. Valley Auth., 306 U.S. 118, 137-38 (1939) (standing exists
when “the right invaded is a legal right[]--one of property, one
arising out of contract, one protected against tortious invasion,
or one founded on a statute which confers a privilege”); T Street
Dev., LLC v. Dereje and Dereje, 586 F.3d 6 (D.C. Cir. 2009).
Therefore, the Court concludes that Goodman has standing in this
lawsuit to enforce the terms of the Settlement Agreement in
Bluewater I.
The provisions of that Agreement require Defendants to, among
other things, base any regulatory changes on “appropriate analysis
under [NEPA].” Settlement Agreement at ¶ 5. Apart from describing
the nature of the dispute in Bluewater I, the Settlement Agreement
is completely silent as to any obligations of the Government under
the Organic Act. See id. at ¶ 9 (“Nothing in this agreement may be
construed to otherwise limit or modify the discretion accorded to
the defendants by the statutes they administer or by general
principles of administrative law.”). Because Goodman only has
standing to enforce the Settlement Agreement, and because that
Agreement does not speak to Defendants’ compliance with the Organic
Act, he does not have standing to raise challenges under that Act.
Therefore, Plaintiffs may only challenge the PIRO rule under the
terms of the Settlement Agreement, for a violation of NEPA.
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B. The Organic Act Governing NPS Actions
Plaintiffs contend that NPS’ decision to re-introduce PWCs was
arbitrary and capricious under the APA and the provisions of the
Organic Act. First, they argue that NPS failed to account for its
“reversal” of policy in re-introducing jetskis to the parks after
making specific pronouncements banning them. Pls.’ Mot. at 24-32.
Second, they maintain that, even assuming there was no policy
reversal, “the agency nonetheless failed to meaningfully explain
how reauthorizing Jetskis is consistent with the agency’s
obligations under the Organic Act.” Id. at 33.
1. Legal Analysis
The Act, passed by Congress in 1916, provides that the NPS
must:
promote and regulate the use of the . . .
national parks, monuments, and reservations
hereinafter specified . . . by such means and
measures as conform to the fundamental purpose
of the said parks, monuments, and
reservations, which purpose is to conserve the
scenery and the natural and historic objects
and the wild life therein and to provide for
the enjoyment of the same in such manner and
by such means as will leave them unimpaired
for the enjoyment of future generations.
16 U.S.C. § 1.
In 1978, Congress passed the 1978 Redwood Act, 16 U.S.C. § 1a-
1, which supplements the Organic Act and reaffirms its original
mandates that, “[t]he authorization of activities shall be
construed and the protection, management, and administration of
-26-
these areas shall be conducted in light of the high public value
and integrity of the National Park System and shall not be
exercised in derogation of the values and purposes for which these
various areas have been established, except as may have been or
shall be directly and specifically provided by Congress.” Id.
NPS’ Management Policies, most recently updated in 2006,
interpret the provisions of these two key statutes. See NPS
Management Policies 2006, at 1.4.1, available at
www.nps.gov/policy/mp2006.pdf (“2006 NPS Policies”).13 According
to those Policies, “[t]he fundamental purpose of the national park
system . . . begins with a mandate to conserve park resources and
values.” Id. at 1.4.2. They continue by stating, “[t]he
fundamental purpose of all parks also includes providing for the
enjoyment of park resources and values by the people of the United
States”--this Policy applies to visitors who actually travel to the
13
While these Policies are not judicially enforceable,
Wilderness Soc’y v. Norton, 434 F.3d 584, 596-97 (D.C. Cir. 2006),
they are “relevant insofar as NPS puts forth the Policies as
justification for the decision under review,” Greater Yellowstone
Coalition v. Kempthorne, 577 F. Supp. 2d 183, 206 (D.D.C. 2008);
see also Mainella, 459 F. Supp. 2d at 79 n.1. NPS cites in its EAs
the 2001 version of the Policies. In terms of provisions discussed
in this Opinion, the 2001 and 2006 NPS Policies contain virtually
identical language. Compare 2006 NPS Policies with 2001 NPS
M a n a g e m e n t P o l i c i e s , a v a i l a b l e a t
http://www.nps.gov/refdesk/mp/index.html (“2001 NPS Policies”).
Further, Defendants in their Motion for Summary Judgment refer to
the most recent version of these Policies (2006), and agree that
this “Service-wide policy document . . . informs and directs
management of park resources under the Organic Act.” Defs.’ Mot.
at 14. Because parties refer to the 2001 NPS Policies, the Court
will use that version.
-27-
parks, and to those who appreciate them from afar. Id. at 1.4.3.
While the agency recognizes that managers may in their discretion
allow impacts that do not represent an impairment, “NPS managers
must always seek ways to avoid, or to minimize to the greatest
degree practicable, adverse impacts on park resources and values.”
Id.
To reconcile values that may at times be in tension with one
another--conservation and recreation--NPS itself has consistently
interpreted the Organic Act to prioritize conservation, see PIRO-
00022; GUIS-00169, and recognized that the courts as well “have
consistently interpreted the Organic Act and its amendments to
elevate resource conservation above visitor recreation.” Id.
(citing cases); see also 2006 NPS Policies at 1.4.3 (“Congress,
recognizing that the enjoyment by future generations of the
national parks can be ensured only if the superb quality of park
resources and values is left unimpaired, has provided that when
there is a conflict between conserving resources and values and
providing for enjoyment of them, conservation is to be predominant.
This is how courts have consistently interpreted the Organic Act.”)
(emphasis added).
There can be no doubt, as NPS and the courts have concluded,
that the overriding aim of the Organic Act, as well as the purpose
of NPS’ oversight and management of the park system, is to conserve
the natural wonders of our nation’s parks for future generations.
-28-
See Greater Yellowstone Coalition, 577 F. Supp. 2d at 191-93; Nat’l
Rifle Ass’n of Am. v. Potter, 628 F. Supp. 903, 909 (D.D.C. 1986)
(“In the Organic Act, Congress speaks but of a single purpose,
namely, conservation.”).
As Defendants have observed, NPS is granted broad discretion
to implement its mandate “to conserve the scenery and the natural
and historic objects and the wild life.” 16 U.S.C. § 1. In doing
so, it must strike the appropriate balance between prioritizing
conservation and providing for use and recreation by the public.
See Defs.’ Mot. at 14; Daingerfield Island Protective Soc. v.
Babbitt, 40 F.3d 442, 446 (D.C. Cir. 1994) (adopting District Court
reasoning that terms of Organic Act endow NPS with “broad, but not
unlimited discretion in determining what actions are best
calculated to protect Park resources.”). Nevertheless, that
discretion is “bounded by the terms of the Organic Act itself.”
Greater Yellowstone Coalition, 577 F. Supp. 2d at 193. Those terms
require that NPS’ stewardship of the parks leave them “unimpaired
for the enjoyment of future generations.” 16 U.S.C. § 1; see also
GUIS-00266 (stating in EA that NPS recognizes statutory limit to
discretion).
The NPS Policies guide the agency in determining what
constitutes an impairment. According to those Policies, an action
rises to the level of an impairment when the impacts of that action
“harm the integrity of park resources or values, including the
-29-
opportunities that otherwise would be present for the enjoyment of
those resources or values.” 2001 NPS Policies at 1.4.5; PIRO-
00022; GUIS-00170. As NPS indicates in its EAs, the agency
determines if an impairment would occur by evaluating “particular
resources and values that would be affected; the severity,
duration, and timing of the impact; the direct and indirect effects
of the impact; and the cumulative effects of the impact in question
and other impacts.” Id.
2. Re-introduction of PWCs to Gulf Islands14
Plaintiffs maintain that NPS failed to explain what they
characterize as a reversal of policy from the agency’s earlier
decision to permit the National Jetski Rule banning PWC use in each
park to take effect in 2002. The EA and FONSI led to a re-
introduction of PWC use at Gulf Islands in 2006, 36 C.F.R. § 7.12.
By issuing the Gulf Islands Rule, NPS, according to Plaintiffs,
“reversed course” from earlier PWC policies; in doing so, it failed
to provide a “reasoned analysis” for the reversal, and thus engaged
in arbitrary and capricious conduct under both the Organic Act and
the APA. Pls.’ Mot. at 24-26; see State Farm, 463 U.S. at 42, 57.
Plaintiffs suggest that such a reversal is subject to a heightened
standard of review. Pls.’ Mot. at 25.
14
As noted earlier, there can be no ruling on Plaintiffs’
challenge to the Pictured Rocks Rule under the Organic Act because
of lack of standing.
-30-
Intervenors and Defendants dispute Plaintiffs’ interpretation
of the facts. They insist that the 2006 Rule allowing PWC use is
not a reversal of long-standing NPS policy, but rather continuation
of a long-standing policy to allow PWC use, subject to various
state and local restrictions. Defs.’ Mot. at 35-38; Intervenors’
Mot. at 22-25. Further, they argue that regardless of whether or
not the Rule represented a change of course, NPS was permitted
under NEPA and the Settlement Agreement to re-visit the PWC ban and
issue a new rule based on updated information. Defs.’ Mot. at 37-
38.
Recent Supreme Court and Court of Appeals decisions bear
directly on this issue. In FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800 (2009), the Supreme Court decided that after a
change of policy, “the agency need not always provide a more
detailed justification than what would suffice for a new policy
created on a blank slate.” Id. at 1811. Adopting the reasoning in
Fox, our Court of Appeals has stated that, “[e]xplanation of a
change in policy is not subject to a heightened standard of
review.” Anna Jacques Hosp. v. Sebelius, 583 F.3d 1, 6 (D.C. Cir.
2009).
At oral argument, Plaintiffs’ counsel argued that Fox need not
be read to reject a heightened standard of review for policy
reversals, but failed to put forward convincing reasons to support
that interpretation. Tr. at 18-20 (May 17, 2010). In actuality,
-31-
the meaning of Fox and Anna Jacques is quite clear: it is not
relevant under State Farm whether an agency is reversing existing
policy or simply creating a new one; instead, what is relevant is
whether the agency supplied a “rational connection between the
facts found and the choice made.” State Farm, 463 U.S. at 43
(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)).
In sum, Fox and Anna Jacques make it clear that even though
there is no heightened standard of review when examining an
agency’s change of course, State Farm still guides the inquiry as
to whether the agency’s actions are arbitrary and capricious. In
this case, the earlier national rulemaking and administrative
determination banning PWCs at GUIS are relevant, because the Court
must compare those former decisions to the latter Gulf Islands Rule
in deciding whether the agency has adequately explained its change
in policy. See Nat’l Cable & Telecomm. Ass’n v. FCC, 567 F.3d 659,
667 (D.C. Cir. 2009) (“Of course, ‘it is axiomatic that agency
action must either be consistent with prior action or offer a
reasoned basis for its departure from precedent.’ . . . Yet it is
equally axiomatic that an agency is free to change its mind so long
as it supplies ‘a reasoned analysis. . . .’”) (citations and
quotations omitted).
In Plaintiffs’ view, the 2001 Determination represents a
“specific determination[]” to ban jetskis at Gulf Islands. Pls.’
-32-
Mot. at 26. They argue that the new Rule re-introducing PWCs in
2006 lacked “specific new data and information that had been
collected and analyzed since the earlier decisions had been made.”
Id. Plaintiffs complain that the new Rule overturned the earlier
bans and impermissibly relied on “assumptions and extrapolations
from scientific literature,” data from other parks, and personal
observations from park staff, rather than collecting data and
making site-specific findings of impacts at the park. Id. (quoting
GUIS Final Rule, 71 Fed. Reg. 26,234). They also insist that
issuance of the Gulf Islands Rule, overturning the National Jetski
Rule, ignored the detailed findings about the general harms that
result from PWC use anywhere in the park system, which the National
Rule described. Id. at 25. Under State Farm, Plaintiffs argue,
this change in position was arbitrary and capricious.
The National Jetski Rule, which eventually went into effect at
both parks in 2002 after being adopted in 2000, “prohibits PWC use
in areas of the National Park System unless [NPS] determines that
PWC use is appropriate for a specific area based on that area’s
enabling legislation, resources, values, other visitor uses, and
overall management objectives.” 65 Fed. Reg. 15,078. Certain
parks, including PIRO and GUIS, were permitted to re-introduce
jetskis after undertaking a Special Regulation rulemaking, which
required a nationwide notice-and-comment period. Id. at 15,079.
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The 2001 Determination, concluding that PWC use would be “an
inappropriate activity at Gulf Islands,” found that “PWC use poses
considerable threats to estuarine flora and fauna, pollutes waters
essential to estuarine and marine health, poses unacceptable risk
of injury to operators and bystanders, and conflicts with the
majority of other longstanding uses of the Seashore.” GUIS-00079.
These findings were supported by a relatively brief analysis of PWC
impacts on noise, water quality, wildlife, and safety and visitor
use. Id. at 00072-77. While the analyses often invoked studies
undertaken at other parks, they also included data drawn from
direct observations of GUIS staff. See, e.g., id. at 00074 (citing
1995 study of noise impacts on colonially nesting birds, and citing
observations of GUIS park staff).
At the time of the 2001 Determination, PWC use was allowed
along much of the shoreline at Gulf Islands, an area that suffered
significant impacts according to NPS analysis in the 2001
Determination. See id. at 00075 (noting “significant threat” posed
to sea turtles that nest in shallow waters, and disturbance to
nesting bald eagles and osprey by human intrusion “along the
shoreline”); id. at 00075-76 (noting damage to “shallow
grassbeds”); id. at 00077 (concluding that PWC range and the
“standard procedure of operating close to the shoreline can easily
and quickly shatter [visitor] experience in even the most remote
sections of the park”). However, certain state regulations on PWC
-34-
use did exist, restricting the time, manner, and location of PWC
use. See GUIS-00191-192. These regulations were incorporated into
Alternative B’s restrictions on PWC use. See id. at 00190-193.
Two significant restrictions were added to Alternative B, the
NPS’ preferred alternative, before it was adopted by the agency:
(1) “[a] flat-wake zone would be established 300 yards from all
park shorelines at the low-water mark,” with certain exceptions;
(2) “[n]o PWC operation would be permitted within 200 feet of non-
motorized watercraft and people in the water.” GUIS-00193.
In its Gulf Islands EA, NPS relied heavily on these new
restrictions of PWC operation to justify its decision to again
allow their use. GUIS-00195 (“Alternative B would have limited
impacts on the national seashore’s natural resources through
protection of shoreline areas with flat-wake zoning
prescriptions.”); see also id. at 00314-15 (discussing reduced
noise impact to visitors due to flat-wake zone); id. at 00321
(“[H]owever, since alternative B includes increased mitigation such
as additional flat-wake zones, impacts would be fewer than
alternative A.”); id. at 00349 (finding that flat-wake zone would
minimize impacts of PWC use to threatened and endangered species).
Plaintiffs contend that such reliance on the mitigating
effects of the flat-wake zone is misplaced, as the restriction is
unenforceable as a practical matter. Pls.’ Mot. at 29-30. There
is evidence in the record that the 300-yard line is difficult for
-35-
PWC users to identify, GUIS-05849, and that GUIS does not plan to
demarcate the line with buoys or other indicators, 71 Fed. Reg.
26,235.
However, there is a presumption that NPS will enforce its own
rules and policies. See Intervenors’ Mot. at 30 (collecting cases).
Further, NPS did announce its plan for enforcing the restrictions
contained in the preferred alternative, including increased
patrolling, training of officers, and an education campaign, as
well as a before-and-after photography study to determine if
additional areas should be closed to PWC use. 71 Fed. Reg. 26,242;
GUIS–00580 (describing plan in FONSI). Given the presumption that
NPS will enforce its rules, and the measures undertaken to
effectuate that enforcement, the Court will accept NPS’ assurances
in this case.
The flat-wake zone and other updated restrictions that make up
Alternative B distinguish the enforcement environment under the EA
from that in place when the 2001 Determination was issued. NPS
relied on these restrictions in conducting its extensive study of
jetski impacts at Gulf Islands. Additionally, it discussed a
greater number of impact topics in the EA, used more recent
studies, see, e.g., GUIS-00308, and a more clearly articulated
methodology to analyze impacts and impairments, see infra at
III.B.3.a.
-36-
Initiating the EA process and re-visiting the ban on jetskis
was, of course, well within the authority granted to Gulf Islands
by the National Jetski Rule and the Settlement Agreement. 65 Fed.
Reg. 15,079; Settlement Agreement at ¶ 4. NPS based its decision
to depart from the conclusions of the National Rule and the 2001
Determination, to a substantial extent, on updated facts and
enhanced restrictions on PWC use. For these reasons, it is clear
that NPS had a reasonable basis for reconsidering the validity of
its 2001 Determination.
This finding does not mean that the agency provided a clear,
reasoned, and adequately justified analysis in arriving at its
final decision to re-introduce jetskis to Gulf Islands. That
issue will now be directly addressed, infra, in examining
Plaintiffs’ second argument under the Organic Act that the
Defendants “failed to meaningfully explain” how re-introducing PWCs
is consistent with NPS’ obligations under the Organic Act. Pls.’
Mot. at 33. Plaintiffs contend that even if the EA and FONSI were
issued without the backdrop of earlier national rules or park-
specific administrative determinations, the analysis conducted by
NPS failed to explain how the facts found led to the conclusion
that each impact was not an “impairment” under the Organic Act in
violation of State Farm’s insistence that the agency provide a
“rational connection between the facts and the choice made.” State
Farm, 463 U.S. at 43.
-37-
C. NPS’Gulf Islands Rule
On April 20, 2000, the National Jetski Rule went into effect,
banning jetskis in all but 21 of the National Parks. As one of the
21 parks excepted from the Rule for two years, Gulf Islands could
continue to allow jetski use. If, after that two-year grace period
the park took no action, PWCs would be banned. If the park chose
to permit PWC use after the grace period, it had to undertake
Special Regulation rulemaking, which would include a notice and
comment period.15 65 Fed. Reg. 15,079-80. In October of 2001, Gulf
Islands’ Superintendent, Jerry A. Eubanks, issued the 2001
Determination, which concluded that PWC use “is an inappropriate
activity” at the park. GUIS-00079. In 2002, Gulf Islands then
allowed the grace period to expire, and the PWC ban went into
effect. PWCs were then re-introduced to the park in May of 2006,
after the passage of a park-specific Rule permitting restricted use
of the machines.
1. NPS’ Methodology16
The Gulf Islands EA, which embodies the agency’s methodology,
analysis, and conclusions, begins with a description of PWC use and
15
The Settlement Agreement further stipulated that “any
Special Regulation . . . addressing the continued use of PWCs will
be based on appropriate environmental analysis under [NEPA], which
analysis will, inter alia, consider the impacts of PWC use in the
particular unit.” Settlement Agreement at ¶ 5.
16
The methodology used at GUIS is virtually identical to
that adopted at PIRO.
-38-
NPS’ obligations under various statutes and internal directives.
GUIS-00164-177. It continues by describing several impact topics,
or subject matter, such as water quality, soundscapes, etc., that
may be affected by re-introducing PWCs into the park. Id. at
00178-190. In the “Alternatives” section, NPS identifies three
different approaches to PWC use in Gulf Islands, one of which will
be adopted by the EA. Id. at 00190-222. The EA then discusses the
environment at GUIS, providing detailed data and descriptions that
pertain to a range of natural and recreational activities within
Gulf Islands. Id. at 00223-263.
In the “Environmental Consequences” section of the EA NPS
analyzes what potential impacts can flow from the three
alternatives examined, and reports its conclusions. Before
describing the impact that PWC use would have on each item, NPS
sets forth the “guiding regulations and policies” that apply to
that item. Often, these regulations and policies contain objective
standards mandated by state or federal statutes or regulations,
see, e.g., id. at 00270; 00290; 00305. At times, the “guiding
regulations and policies” state how NPS’ internal policies govern
its approach to managing a certain subject matter, see, e.g., id.
at 00315; 00353. For example, in stating its approach to “visitor
use and experience,” the agency summarizes relevant provisions of
the 2001 NPS Policies related to ensuring visitor enjoyment and
guarding against impairments, and also discusses certain visitor
-39-
satisfaction and safety goals contained in its Strategic Plan. Id.
at 00353.
After setting forth these governing standards, NPS articulates
the “methodology and assumptions” it will apply in assessing the
impacts on each topic. It describes the potential impacts
according to their type, context, duration, and intensity. The
type of impact can be adverse or beneficial. The context of an
impact can be site-specific, local, or regional. The impact’s
duration can be short-term or long-term. The intensity can be
negligible, minor, moderate, or major. For each impact topic
except for visitor use and experience, NPS also defines when PWC
use would rise to the level of an impairment. Because intensity
definitions vary according to impact topic, NPS sets forth a
separate intensity definition for each impact topic; these
definitions are referred to as impact thresholds. Id. at 00265.
In the analysis section of the EA, each alternative--no-action
(continued ban on PWCs), Alternative A (reinstate jetskis as
previously managed), and Alternative B (reinstate jetskis with
additional limitations on their use)--is compared to a baseline.
At GUIS, the baseline is the continuation of the ban under the no-
action alternative. NPS determines impacts for each by comparing
the expected effects of each alternative to thresholds established
by scientific literature, federal and state standards, experts, and
other agencies, and NPS resource management objectives. Id. At
-40-
the conclusion of each analysis section, NPS reports its findings
as to the impacts expected under each alternative, as well as the
expected cumulative impacts that can result from PWC use and other
motorized watercraft use.
2. NPS’ Conclusions
After conducting an analysis using this methodology, NPS
concluded, for every impact topic, that Alternative B, which
permits jetski use with additional restrictions, is the preferred
alternative at GUIS. GUIS-00195. According to NPS, PWC use under
Alternative B’s limits would not result in any impairments to park
resources. GUIS-00153-155 (Table A, summarizing conclusions).
Specifically, NPS concluded that Alternative B would generate only
a “negligible adverse” impact on water quality, id. at 00287; a
“negligible adverse” to “minor adverse” impact on air quality, id.
at 00297-98, 00303; a “negligible to minor adverse” impact on
soundscapes, id. at 00315; “negligible adverse” impacts on
vegetation, id. at 00321; “negligible” and “minor to moderate
impacts” on wildlife, id. at 00329, 00334; and, in terms of visitor
experience and safety, a beneficial impact on PWC users and a
variety of adverse impacts on non-PWC users, id. at 00363, 00371.
Significantly, NPS based its analysis on the assumption that
PWC users would be operating the older, noisier, and more polluting
two-stroke machines. 71 Fed. Reg. 26,236-37; GUIS-00171; 00313.
It acknowledged that this approach was more “conservative” than
-41-
attempting to factor in the expected transition to cleaner and
quieter four-stroke or direct-injection two-stroke engines. 71
Fed. Reg. 26,236-37.
However, NPS did not consistently rely on this conservative
assumption. For example, at times it would claim that certain
impacts would be minimized in the future due to the eventual
transition to machines with improved engines. See, e.g., GUIS-
00287 (“[I]mpacts from PWC use are expected to remain negligible
due to reduced emission rates of newer technology engines.”); 00381
(describing likely reduction in pollutants “in the long term,”
because of “required improvements in engine emission technology”).
NPS fails to explain its seemingly inconsistent commitment to the
conservative approach of using older two-stroke engines for
measuring certain impacts, but relying on the transition to more
environmentally friendly four-stroke engines for measuring other
impacts.
Additionally, as Plaintiffs note, there is no certainty that
the superior four-stroke PWCs will, in fact, displace the two-
stroke machines by 2012, as NPS assumed.17 Intervenors argue that
the conversion is proceeding apace, as the industry has been driven
to produce cleaner machines by more strict environmental
regulations on PWC pollutants. Intervenors’ Reply at 5-7.
17
NPS “expects that by 2012, most boat owners will already
be in compliance with the 2006 EPA Marine Engine Standards.” GUIS-
00170.
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However, as the Gulf Islands EA reports, the EPA “assumes that the
existing two-stroke engine models would not be completely replaced
by newer PWC technology until 2050”--38 years later than NPS
considered in its analysis for its assessments. GUIS-00170.
Significantly, neither park adopts the safest and most conservative
approach of all--an outright ban on two-stroke engines from the
waters of both.18
Plaintiffs’ main argument under the Organic Act is that, for
each topic, NPS failed to provide a reasoned analysis for its
conclusions, and instead relied on conclusory language that did
little more than recite its compliance with duties imposed by that
Act. Pls.’ Mot. at 33-36. Therefore, the Court will now turn to
examine each impact topic in turn,19 in order to determine whether
in fact NPS did “examine the relevant data and articulate a
18
As Plaintiffs observe, the record casts at least some
doubt on the beneficial effects of conversion to newer engines.
Pls.’ Mot. at 31 n.14. For instance, according to a study cited in
the Gulf Islands Rule, newer engines produce increased NOx
emissions, 71 Fed. Reg. 26,237; additionally, direct-injection two-
stroke machines may result in elevated PAH levels. GUIS-00171-172.
Further casting doubt on the anticipated beneficial effects of
conversion, is NPS’ acknowledgment in its 2001 GUIS Determination
that “aftermarket modifications” to PWCs are common. In other
words, operators modify their jetskis to “increase horsepower and
thrust.” Thus, the effect may be to undo manufacturers’ efforts to
reduce noise levels. Id. at 00073.
19
Water quality, air quality, soundscapes, vegetation,
wildlife, and visitor experience will be discussed. It is not
necessary to examine the other impact topics assessed in the GUIS
EA: “cultural resources,” “socioeconomic effects,” and “national
seashore management and operations.”
-43-
satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’” State
Farm, 463 U.S. at 43 (citation omitted); see Mainella, 459 F. Supp.
2d at 100.
Two recent decisions have adopted this approach. In Sierra
Club v. Mainella, the court held that NPS “failed adequately to
explain its conclusion that impacts from nearby surface drilling
activities would not result in an impairment of park resources and
values.” 459 F. Supp. 2d at 103. In that case, the NPS described
the various impacts that directional drilling would have at Big
Thicket National Preserve by assigning modifiers to the degree of
disruption that the drilling would create. For instance, the
intensity of the particular impact--i.e., impact on soundscapes or
air quality--could be described as “negligible, minor, moderate, or
major;” the area affected was either “localized” or “widespread;”
and the duration of the impact was “short-term” or “long-term.”
Id. at 84. In its EAs and FONSIs, NPS found that drilling would
not impair park resources.
In Mainella, NPS failed to supply a reasoned analysis that
linked its findings for the degree of adverse impacts to the
ultimate decision that no impairment would result from such
impacts. The agency invoked only “conclusory” labels to describe
impacts, thereby depriving the court of any “basis to determine
first, whether NPS reasonably concluded that the impact is [of a
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certain intensity], and second, whether NPS reasonably concluded
that a [a certain intensity] impact should not, under the relevant
circumstances, be considered an impairment.” Id. at 101.
Similarly, in Greater Yellowstone Coalition, challenging the
use of snowmobiles in three national parks, the court held that
NPS’ impairment determinations were arbitrary and capricious
because they failed to explain why certain impacts did not rise to
the level of an impairment. 577 F. Supp. 2d at 201-202 (“Like the
Court in Mainella, this Court is equally perplexed as to why any
impact characterized as ‘major and adverse’ does not constitute an
unacceptable impact, let alone impairment. This is a distinction
NPS again fails to explain.”).
3. Water Quality
In assessing impacts to water quality, NPS began by announcing
in its EA which regulations and policies would guide its analysis.
The agency noted that the Environmental Protection Agency (“EPA”)
has developed recommended ambient water quality criteria for a
range of pollutants. GUIS-00270. The EPA standards set forth the
minimum volumes of water that would be needed to dilute each
expected pollutant emitted by PWCs to produce safe levels for human
health.
However, EPA did not issue “water quality criteria for the
protection of aquatic life for the PWC-related contaminants.” Id.
at 00271. According to its Management Policies, NPS works to
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“obtain the highest possible standards available under the Clean
Water Act for the protection of park waters,” and to comport with
all applicable federal, state, and local laws and regulations. Id.
Because neither GUIS nor EPA possess “quantifiable water quality
data” on the effects of PWC emissions, NPS used “water quality
standards,” because of the absence of park-specific data. Id.
Moreover, it is never made entirely clear where these “standards”
were derived from.20 These standards take into account uses of the
water, and set minimum criteria to protect those uses and prevent
degradation of water quality. Id. According to the EA, NPS
regulations require that “PWC use could not be authorized to the
degree that it would lower” the standards announced in the
regulations or affect the use of the water as “fishable/swimmable.”
Id. at 00271-72 (referring to 40 C.F.R. § 131.12(a)(2)).
NPS explained how site-specific data was calculated. After
considering the extent of PWC use at Gulf Islands (i.e. number of
jetskis and hours of operation) and applying ecotoxicological human
health benchmarks announced in EPA guidelines, NPS calculated the
minimum amount of water needed to dilute each pollutant to meet
those EPA benchmark levels. Id. at 00274. The agency then
20
NPS states that the “antidegradation policy” found in 40
C.F.R. § 131.12(a)(2) “is only one portion of a water quality
standard.” GUIS-00271. In the “methodology and assumptions”
section of its analysis, NPS describes this regulation in some more
detail. It then notes that “state water quality standards” and
“various literature sources” were examined and provided benchmarks.
Id. at 00272.
-46-
explained that it would categorize the impacts that resulted by
using modifiers “negligible,” “minor,” “moderate,” “major,” and
“impairment.” See infra at p. 48 n. 23. For each modifier, NPS
described the expected corresponding impacts. For instance, a
“minor” impact “would be detectable but would be well below water
quality standards or criteria and within historical or desired
water quality conditions.” Id. at 00277.
For each of the three alternatives under consideration--no-
action (continued ban on PWCs), Alternative A (reinstate jetskis as
previously managed), and Alternative B (reinstate jetskis with
certain limitations on their use)--the agency analyzed the amount
of jetski use, and assessed the impacts quantitatively before
applying one of the impact modifiers.21 Tables 33 and 34 of the EA
report the findings for Alternative B. For each pollutant, the
threshold volume needed to dilute the pollutant to benchmark levels
is well below the volume of water available in each area of the
park. In short, according to NPS calculations, there is more than
enough water to reduce the polluting impact of jetski emissions to
acceptable levels.
21
For example, NPS calculated the threshold volume of water
to dilute the pollutant benzo(a)pyrene to benchmark levels to be
730 acre-feet of water in a certain area of the park in 2002 under
Alternative A. GUIS-00282 (Table 31). It presented tables of data
that listed thresholds for each pollutant in several areas of the
park for the years 2002 and 2012.
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The preferred alternative, Alternative B, resulted in water
quality impacts that were “negligible adverse for all pollutants in
all areas of the national seashore in 2002.” Id. at 00287. NPS
reported that it expected this impact to remain the same in 2012
even as PWC use increased, because of “reduced emission rates of
newer technology engines.” Id. NPS also looked at cumulative
impacts to water based on PWC and non-PWC motorized watercraft.
Although PWCs represented a small fraction of the motorized
watercraft operated at Gulf Islands,22 they contributed
approximately 30% of total emissions from all motorized watercraft
in 2002. That number was expected to rise to 50% in 2012. Id. at
00288. Despite an increase of more than 66% in expected emissions
from PWCs, NPS still concluded that no impairment would result,
without any explanation of how this result could logically follow.
According to Defendants and Intervenors, this analysis
satisfies NPS’ obligations under the Organic Act, and must be
upheld as reasonable under the APA’s arbitrary and capricious
standard. Plaintiffs argue that it fails because NPS did no more
than identify the impact, label it (in this case, “negligible”),
and conclude there was no impairment. As in Mainella, they argue,
22
“According to park staff, personal watercraft comprise
approximately 4% of recreational boating vessels in the Mississippi
District of the park. In the Florida District, it is estimated
that personal watercraft comprise 0.5% of recreational boating in
that district.” GUIS-00267. Obviously, PWCs produce a greatly
disproportionate percentage of the total emissions from all
motorized watercraft.
-48-
the agency totally failed to explain why the announced impact did
not amount to an impairment. Pls.’ Opp’n at 13-14.
The connection between the quantitative data, impact labels,
and ultimate conclusion of non-impairment is hard to fathom.
First, NPS explains that for three of the modifiers (negligible,
minor, and moderate), the impact of PWC use would be below water
quality standards. The only differences amongst the three are
whether the impacts are “detectable,” the degree to which they are
below water quality standards (e.g. “below” or “well below”), and
whether emissions would approach “historical or desired water
quality conditions.”23 GUIS-00277.
23
These three impact thresholds are described as follows:
Negligible: Impacts are chemical, physical, or
biological effects that would not be
detectable, would be well below water quality
standards or criteria, and could be within
historical or desired water quality
conditions.
Minor: Impacts (chemical, physical, or
biological effects) would be detectable but
would be well below water quality standards or
criteria and within historical or desired
water quality conditions.
Moderate: Impacts (chemical, physical, or
biological effects) would be detectable but
would be at or below water quality standards
or criteria; however, historical baseline or
desired water quality conditions would be
altered on a short-term basis.
GUIS-00277.
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It is difficult to discern any meaningful or objective
difference between these three modifiers. Each pollutant was
measured, and therefore each one must be, at the very least,
“detectable.” That fact can hardly be used to distinguish between
a minor and a moderate impact. See GUIS-00276 (Tables 26 and 27)
(reporting amount of emissions “loaded” into water for each
pollutant). Furthermore, any of the three modifiers can
conceivably be applied to impacts where the water quality is below
the national standards. See GUIS-00277. Finally, those
“historical or desired water quality conditions” mentioned in these
impact thresholds are not defined, nor is it explained how or why
they differ from EPA water quality standards. As in Mainella,
[t]he Court can identify no principled basis for calling one
‘minor’ and one ‘moderate,’ . . . only the application of a
conclusory label.” 459 F. Supp. 2d at 102.
Nonetheless, NPS labeled the impact of PWC emissions on water
quality as “negligible.” There is no specific and detailed
explanation as to how it arrived at that conclusion; without such
an explanation, there is no rational connection between the facts
found (quantitative data) and the final conclusions reached
(negligible impact and non-impairment). Given that the threshold
volume of available water for dilution of each pollutant was
calculated to be within national standards, the impact of PWC use
could conceivably have been described as negligible, minor, or
-50-
moderate. However, there is no discussion of why NPS chose to
conclude the impact was negligible, as contrasted with minor or
moderate.
A related defect in the agency’s analysis is the absence of
any logical link between the impact thresholds (e.g. negligible,
minor, moderate, or major), and the ultimate conclusion that PWC
use does not impair park resources under the Organic Act. Why, for
instance, would a “major” impact not qualify as an “impairment”
when a major impact means that chemical, physical, or biological
effects “would be detectable and would be frequently altered from
the historical baseline or desired water quality conditions”?
PIRO-00277. The standards used by NPS are related to the impact
thresholds crafted by the agency, but there is no indication as to
why emission levels that are “at or below” water quality standards
represent only a “moderate” impact rather than an impairment. Id.
As in Mainella, the reasoning provided offers the Court, and the
public, little or no basis for understanding why an identified
impact fails to rise to the level of an impairment. 459 F. Supp.
2d at 101; see Greater Yellowstone Coalition, 577 F. Supp. 2d at
201 (“NPS entirely fails to explain why a finding of minor,
moderate, and major adverse impacts on soundscapes does not
constitute impairment. . . .”).
Finally, there is no discussion in the EA of why national
water quality standards, which, by definition, apply to the whole
-51-
country, provide the appropriate benchmarks for assessing impacts
to the Gulf Islands park. The EA’s reasoning is tethered to the
national standards at every turn, from the calculation of
acceptable volume thresholds to the definition of each impact
level, but there is no explanation of why those uniform national
standards should be applied to impacts within this park. See
Greater Yellowstone Coalition, 577 F. Supp. 2d at 207; GUIS-00170
(noting that to determine impairments, NPS must “evaluate ‘the
particular resources and values that would be affected’”) (citing
2001 NPS Policies). NPS must articulate why, in carrying out its
obligation to evaluate park-specific impacts, it relies on water
quality standards that apply to a range of locations across the
country. NPS offers no link between the national standards and
standards (if they exist) that would be appropriate to the national
park system as a whole, as well as those that would be appropriate
to the values and resources of a specific park. In short, to
reason that an impact is not an impairment in part because it does
not reach a certain standard without explaining why that standard
is the right one omits a critical step in the agency’s reasoning.
4. Air Quality
NPS’ air quality analysis followed much the same methodology
as its water quality analysis. After considering the national
ambient air quality standards (“NAAQS”) set forth in the Clean Air
Act, as well as additional protections required by the Organic Act
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and 2001 Management Policies, GUIS-00290, NPS estimated emissions
for several polluting compounds produced by jetskis. Id. at 00290-
91. As with its analysis of water quality, the agency then
identified impact thresholds for these pollutants, ranging from
“negligible” to “impairment.” Id. at 00293. NPS concluded that
adverse impacts to air quality under Alternative B would be
negligible for 2002 and 2012, the same conclusion that it reached
for Alternative A (reinstatement of jetskis as previously managed).
GUIS-00302-03.
Negligible adverse impacts, according to NPS, are those where
“[e]missions would be less than 50 tons/year for each pollutant”
and “[t]he first highest 3-year maximum for each pollutant is less
than NAAQS.” Id. at 00293. The EA does not explain how NPS
arrived at a standard of 50 tons/year. The agency stated that
NAAQS standards, as well as “additional protection” beyond the
Clean Air Act provided by NPS under Management Policies and the
Organic Act,24 would serve as benchmarks for air quality. GUIS-
00290. It provided the NAAQS values for a range of pollutants in
table form. Id. at 00230 (Table 7). The table shows that the
standards for each pollutant vary markedly. For instance, the
NAAQS maximum is 100 micrograms per cubic meter for nitrogen
dioxide, 50 micrograms per cubic meter for particulate matter, and
15 micrograms per cubic meter for fine particulate matter. Id. In
24
This “additional protection” is never described.
-53-
the face of those greatly varying values for each pollutant, the
impact baselines are uniform, requiring less than 50 tons/year for
each pollutant in order to support a conclusion of even negligible
impacts. As noted, there is no explanation of where that number,
50 tons/year, is derived from, or why it applies uniformly to
pollutants whose national standards differ so significantly.
Defendants and Intervenors do no more than simply assert that
NPS conducted the proper analysis of these impacts. See
Intervenors’ Mot. at 27 (“[T]his approach produced results that
still found only negligible impacts on air quality.”); Defs.’ Reply
at 7 (“Even under [a] more conservative approach, the data revealed
that PWC use will result in only negligible impacts on air
quality.”). Their arguments do little more than repeat the
conclusions of the EA, without addressing whether NPS used
conclusory terminology to justify its conclusions or otherwise
failed to explain how the facts found related to the conclusions
reached. In conducting an APA review, the Court must carefully
scrutinize the administrative record to ensure that its examination
is the sort of “thorough, probing, in-depth review” required by the
statute. Overton Park, 401 U.S. at 415; Midtec, 857 F.2d at 1499.
As with its water quality decision, NPS failed to provide a
rational link between its objective factual data and its ultimate
conclusions regarding non-impairment. It is virtually impossible,
without further explanation, to discern how the same tonnage cutoff
-54-
of 50 tons/year supports a non-impairment finding for all
pollutants even though the NAAQS for them vary greatly, as already
discussed. Without such information, NPS’ reasoning is opaque, at
best, and its final determinations are impermissibly conclusory.
See also Mainella, 459 F. Supp. 2d at 101.
An additional difficulty with its analysis is NPS’ failure to
make clear, as discussed earlier, why NAAQS represents the
appropriate benchmarks for national parks. Those standards are
national air quality maximums, and those appropriate for national
parks, and particular national parks, may be very different and may
be much lower. What is more, NPS admits that “specific park air
quality related values can be adversely affected at levels below
the national standards or by pollutants for which no standard
exists,” and notes that this is why the Organic Act and 2001
Management Policies offer “additional protection beyond that
afforded” by NAAQS. GUIS-00290. However, those additional
protections are never identified or discussed. NPS analyzes
impairments only with reference to standards imposed by EPA.
Finally, as with its water quality analysis, one is left to wonder
how following the national air quality standards allows NPS to
comply with its own internal policy to “perpetuate the best
possible air quality.” 2001 Management Policies at 4.7.1 (emphasis
added); see Greater Yellowstone Coalition, 577 F. Supp. 2d at 207,
209.
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5. Soundscapes
The EA’s analysis of impacts to soundscapes fares no better.
In announcing the standards against which the impacts will be
evaluated, NPS cites to 36 C.F.R. § 3.7 (2006). GUIS-00305. As it
existed then, that regulation provided, “[o]perating a vessel in or
upon inland waters so as to exceed a noise level of 82 decibels
measured at a distance of 82 feet (25 meters) from the vessel is
prohibited.” 36 C.F.R. § 3.7 (2006). Although NPS noted that this
regulation was “developed for enforcement purposes, not impact
assessment purposes,” its acknowledgment that the regulation “sets
a limit for maximum allowable noise, but does not imply that there
are no noise impacts from vessels operating below that noise
level,” is very significant. GUIS-00305. Apart from this
regulation, the EA mentions only internal Management Policies and
Director’s Orders as guiding policies.25 Id. at 00305-06. In
25
The 2001 Management Policies instruct NPS to “take action
to prevent or minimize all noise that, through frequency,
magnitude, or duration, adversely affects the natural soundscape or
other park resources or values, or that exceeds levels that have
been identified as being acceptable to, or appropriate for, visitor
uses at the sites being monitored.” Id. at 4.9 (emphasis added).
According to Director’s Order 47: Soundscape Preservation and Noise
Management, NPS must implement policies that require, “to the
fullest extent practicable, the protection, maintenance, or
restoration of the natural soundscape resource in a condition
unimpaired by inappropriate or excessive noise sources.” Id. at
“Purpose and Background” (quoted at GUIS-00304) (emphasis added).
According to NPS, a “key concept [in both policies] is the purpose
for which a park was established.” GUIS-00305.
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addition, certain state limitations dictate the time and usage area
of PWC use.26 Id. at 00305.
The analysis centered on the context, time, and intensity of
PWC noise levels. Context included consideration of other noise-
producing activity at the park, such as non-PWC watercraft,
military planes, commercial fishing boats, and large ships. Id. at
00306. Temporal factors included the time that PWCs are used
during the day and throughout the year, and the duration and
frequency of noise impacts. Id.
To measure intensity, NPS relied on a study of PWC noise in
Glen Canyon National Recreation Area, and used its results to reach
its conclusions in the Gulf Islands EA. GUIS-00308.27 That study
found that “maximum sound levels for [a single] personal watercraft
at 25 meters (82 feet) ranged from approximately 68 to 76
decibels.” Id. at 00307. According to the EA, these totals do not
“exceed existing noise standards,” id., although NPS is not
specific as to whether this conclusion is based upon the standard
set in 36 C.F.R. § 3.7, or some other measurement.
26
Florida restricts the time during which jetskis can be
used: PWCs “cannot be operated from one-half hour after sunset to
one-half hour before sunrise.” GUIS-00305. Mississippi imposes a
restriction on usage areas: PWCs are “restricted to flat-wake speed
within 100 feet of any small craft, marina, public boat launch
ramp, or behind a water skier.” Id.
27
The EA does not indicate whether Glen Canyon National
Recreation Area is sufficiently similar to Gulf Islands that
decibel data from the former park can be used to measure decibel
levels at the latter park.
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All these considerations were incorporated into the creation
of impact thresholds that ranged from “negligible” to “impairment.”
Id. at 00311. By way of illustration, NPS used the following
description of a moderate impact:
In areas where management objectives call for
natural processes to predominate, natural
sounds would predominate, but motorized noise
could occasionally be present at low to
moderate levels. In areas where motorized
noise is consistent with park purpose and
objectives, motorized noise would predominate
during daylight hours and would not be overly
disruptive to noise-sensitive visitor
activities in the area; in such areas,
national sounds could still be heard
occasionally.
Id. Assessing Alternative B, NPS determined that “[n]oise from
[PWC] would be short-term in duration but would be expected to
occur over the long-term. Impacts would be negligible to minor
adverse depending on the location, [sic] within the unit, the time
of day, and the time of year.” Id. at 00315.
As with water quality, there is no explanation as to why the
standards announced in 36 C.F.R. § 3.7 are appropriate, or if they
are the standards actually used by NPS--a point never made entirely
clear in the EA. NPS introduces the § 3.7 standards with caveats
as to their applicability, but then appears to proceed to use them
as benchmarks. See GUIS-00173; 00305 (“This regulation sets a
limit for maximum allowable noise, but does not imply that there
are no noise impacts from vessels operating below that noise
level.”). Without further explanation of how the regulations
-58-
factor in to the creation of impact thresholds and the impairment
analysis, if at all, the reasoning is flawed under the APA.
Additionally, the impairment thresholds are not connected to
any objective standards that have been announced or evaluated. For
instance, PWC noise representing a minor impairment in areas where
noise is expected is that which “could be heard frequently
throughout the day at moderate levels, or infrequently at higher
levels, and natural sounds could be heard occasionally.” GUIS-
00311. There is no way of knowing the objective meaning of
“frequently,” “moderate levels,” or any other qualifiers. The EA
offers the same analysis in describing other impact thresholds. As
the Mainella Court reasoned, “[a]n unbounded term cannot suffice to
support an agency’s decision because it provides no objective
standard for determining what kind of differential makes one impact
more or less significant than another.” 459 F. Supp. 2d at 76.
The quantitative data presented also exposes difficulties with
NPS’ reasoning. Tables 50 and 51 of the EA report the decibel
levels for PWC use in the Florida and Mississippi areas of the
park. GUIS-00309. At the Perdido Key Area, the operation of 25
PWCs at a distance of 25 meters, which, according to the EA,
represents peak usage for that area, creates 90 decibels of noise,
far above the limit set in 36 C.F.R. § 3.7. Id. at 00311, 00308-
09. Worse yet, NPS expects an increase to 63 PWCs, operating at 94
decibels, by 2012. GUIS-00309.
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On a “typical summer day,” visitors can expect to encounter
four to five jetskis at Perdido Bay. Id. at 00306. According to
the EA, one jetski produces 76 decibels of noise at a distance of
25 meters, and two produce 79 decibels at the same distance.28 The
tables do not indicate the anticipated noise level for a typical
summer day at each location where there will be four to five
jetskis. However, what is clear is that on the peak days, noise
levels will exceed the standard announced in 36 C.F.R. § 3.7--82
decibels of noise at 25 meters (82 feet). See GUIS-00309 (Tables
50 and 51).
There is no explanation as to how these peak days, where the
standard for 25 meters is plainly exceeded in Florida and
Mississippi areas, see GUIS-00306, factor into the soundscape
impairment analysis. The EA acknowledges that under Alternative B
(reinstatement of jetskis with certain limitations on their use),
the types of adverse impacts “would be generally the same as
alternative A.” GUIS-00314. It states that the flat-wake zone
would minimize these impacts for shoreline users, but says nothing
about the impact on visitors who are far enough from shoreline but
still within 25 meters of PWCs on peak days, or the impact on days
28
The GUIS EA includes a table of commonly experienced
sounds in order to provide a meaningful understanding of decibel
levels. The sound level of two PWCs (79 decibels), which is below
the number expected on a typical day, is roughly equivalent to the
sound emitted by an “automatic dishwasher” or vacuum cleaner, and
being “near [a] drilling rig.” GUIS-00232 (Table 8).
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where enough jetskis are aggregated so that permissible noise
levels are exceeded. Finally, there is no explanation as to why
decibel levels at greater distances are consistent with the non-
impairment finding; indeed, there are no announced numerical
standards such as those contained in § 3.7, other than for decibel
levels at 25 meters. Nor is it explained why noise that is “short-
term” in duration but occurs regularly over the long-term still
represents only a negligible to minor impact. See GUIS-00315.
According to Defendants and Intervenors, the EA conducted an
adequate analysis of the impacts on soundscapes at Gulf Islands.
The Government argues that “NPS initially described the impairment
standard for each resource studied, completed an extensive analysis
of that resource and reached an informed and rationally based
decision as to whether impacts from PWC use result in impairment.”
Defs.’ Mot. at 34. Describing the soundscapes analysis as it
relates to Plaintiffs’ NEPA challenge--which is the only context in
which Defendants devote any specific attention to the issue–-the
Government merely repeats the findings made for Pictured Rocks and
then asserts that there were similarly rational conclusions reached
at Gulf Islands. Id. at 22-23; Defs.’ Reply at 7-8.
Defendants and Intervenors argue that the EA analysis
rationally took into account PWC distribution and ambient noise
throughout the park in deciding that jetskis did not represent an
impairment to soundscapes. Intervenors’ Mot. at 4-5, 27-29.
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However, the mere cursory recitation of NPS findings falls far
short of the kind of explanation required to overcome an APA
challenge. Intervenors rely in large part on the future conversion
from two-stroke to quieter four-stroke engines, which, as noted
earlier, raises an additional set of questions. They attempt to
minimize the impacts to soundscapes by citing to the eventual
transition to quieter engines. However, any argument based on this
transition ignores the fact, noted earlier, that NPS properly
elected to take a “conservative” approach to the analysis, 71 Fed.
Reg. 26,237, and relied only on data from the louder, older two-
stroke engines in making calculations for 2012. GUIS-00313. The
conversion to four-stroke engines was not a reason relied upon by
the agency in arriving at its non-impairment finding, and therefore
it cannot be relied upon by Intervenors as a post-hoc
rationalization. State Farm, 463 U.S. at 50 (“It is well-
established that an agency’s action must be upheld, if at all, on
the basis articulated by the agency itself.”).
6. Vegetation
The analysis of impacts to shoreline and sub-aquatic
vegetation suffers from many of the same infirmities already
discussed. NPS internal policies relied upon in the EA call for
natural shoreline processes to “continue without interference.”
GUIS-00315. The agency is to mitigate the effects of any
activities that alter these processes, and “restor[e] natural
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conditions.” Id. Under Executive Order 11,990, federal agencies
must “avoid short- and long-term adverse impacts associated with
the destruction or modification of wetlands whenever possible.”29
Id. at 00315-16.
NPS has relied solely on these standards for the crafting of
impact thresholds. NPS acknowledged in its vegetation analysis
that there would be increased PWC use by 2012 which would heighten
the impacts on vegetation. Nonetheless, the agency concluded that
no impairment would occur, and that effects on vegetation both on
the shoreline and in the water would be negligible to minor. Id.
at 00321. A negligible impact was defined as one where “[n]o
shoreline vegetation or submerged aquatic vegetation communities
are present in areas likely to be accessed by personal watercraft;
no impacts or impacts with only temporary effects are expected.”
A minor impact is one where “[o]ccasional impacts are expected, but
with no impacts or very limited impacts that are not expected to
threaten the continued existence of plant species or viable
functioning communities within the national seashore.” Id. at
00316-17.
In its analysis of Alternative B, NPS states that the flat-
wake restriction would minimize impacts, but that nearly half of
the potential seagrass habitat within the Florida portion of the
29
In addition to the requirement to preserve shoreline and
aquatic flora, NPS recognizes that Gulf Islands’ vegetation serves
as important habitat for a variety of animal species. See, e.g.,
GUIS-00240 (fish), 00244 (manatee), 00246 (terrestrial mammals).
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park “would be open to full-throttle PWC use.” Id. at 00320-21
(explaining that one-quarter of Mississippi seagrass would be
exposed). The effectiveness of the restrictions is immaterial if
there is no explanation of why certain PWC activity that has the
potential to cause such serious “direct impacts” as “collision,
uprooting, and sediment alteration” in nearly half of Florida’s
seagrass does not rise to the level of an impairment. Id. at
00320. There are no objective standards given by which the level
of impact can be gauged. The language in the impact thresholds is
impermissibly conclusory,30 and fails to provide any necessary
rational connection between the finding of non-impairment and the
data observed.
7. Wildlife
The EA’s wildlife analysis addresses impacts to habitats, the
effects that PWC noise has on aquatic fauna, and the impacts on
threatened, endangered, or other special status species. A central
difficulty with the analysis of impact to habitats resembles a flaw
30
Additionally, as Plaintiffs observed at oral argument,
Tr. at 22, there is no explanation why, for an impact to rise to
the level of an impairment, the damage to “the shoreline or shallow
water environment” “must be so severe that the park’s shoreline or
submerged vegetation would no longer function as a natural system,”
GUIS-00323. The agency fails to explain why impacts should need to
reach such a seemingly drastic point to trigger the protections of
the Organic Act. See 2001 NPS Policies at 1.4.5 (defining
impairment as “an impact that, in the professional judgment of the
responsible NPS manager, would harm the integrity of park resources
or values, including the opportunities that otherwise would be
present for the enjoyment of those resources or values”).
“Impairment” does not necessarily mean destruction.
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in the vegetation analysis: an impairment at Gulf Islands occurs
only when impacts are so intense or sustained that they result in
“the elimination of a native species or significant population
declines in a native species.” GUIS-00323. The fact that NPS
provides a definition for an impairment in this context implies
that all other possible impacts--from “negligible” to “major”--do
not qualify as an impairment of park resources. Conceivably,
therefore, under NPS’ reasoning, a finding that PWC use represents
a “major” impact, where “[m]ortality and other effects are expected
on a regular basis,” would be fully consistent with the Organic
Act, as it would not rise to the impairment level set forth in the
EA. How can such a draconian definition of impairment be
consistent with the agency’s obligation under the Organic Act to
“conserve the scenery and the natural and historic objects and the
wild life therein and to provide for the enjoyment of the same in
such manner and by such means as will leave them unimpaired for the
enjoyment of future generations”? 16 U.S.C. § 1 (emphasis added).
Additionally, NPS concedes that under Alternative B “PWC use
in areas providing essential fish habitat could disrupt normal
feeding and other critical life functions of fish and shellfish
species and could adversely affect suitability of these areas to
meet life cycle requirements.” GUIS-00328. Nor does NPS indicate
how such threats to wildlife are consistent with its management
goal to “maintain[] components and processes of naturally evolving
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national seashore ecosystems, including natural abundance,
diversity, and the ecological integrity of plans and animals.” Id.
at 00322.
In assessing the impact of noise on aquatic fauna, NPS reports
that flat-wake restrictions are expected to reduce some of the
impacts on marine life. However, the EA recognizes that “[m]arine
mammals and sea turtles are likely to occur outside of [this zone],
and could still be exposed to significant levels of PWC noise.”
Id. at 00333. That noise, when created by 25 PWCs in one area, is
equivalent to 152 decibels underwater; when two PWCs are in one
area, the decibel level only drops to 141. See id. at 00331 (Table
52). When exposed to less than one hour of continuous PWC noise at
96 decibels, bottlenose dolphins experience “substantially reduced
echolocation and communication abilities.” Id. at 00330.
Therefore, when exposed to the noise from just two jetskis, which
is far less than the expected number on a typical summer day, the
bottlenose dolphins would experience “substantially reduced
echolocation and communication abilities.” As NPS reports,
bottlenose dolphins are “the most common marine mammal documented
in the waters of the national seashore, both in Florida and
Mississippi.” Id. at 00238.
Nevertheless, NPS concluded that Alternative B presented only
“long-term, minor to moderate, adverse impacts to aquatic fauna.”
Id. at 00333. NPS uses the same definition of these terms as it
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used to analyze the impacts to habitat; no definitions have been
tailored to the impacts due to noise alone, despite the fact that
NPS is able to calculate underwater decibel levels caused by PWC
use and then assess the impact of varying underwater levels on
fauna. There is no mention of how the impact on bottlenose
dolphins, or any other species, is related to the non-impairment
determination for wildlife. No reasoning is offered to make clear
the connection between the data and the conclusion.
Finally, NPS reports the potential impacts to a range of
threatened, endangered, or other special status species. Gulf
Islands is “a permanent or seasonal home to 29 state or federal
threatened, endangered, or species of special concern animals and
plants.” Id. at 00181. NPS’ inquiry was guided by the Endangered
Species Act, whose language it adopted in creating impact
thresholds. The agency then discusses the expected impact that
each alternative would produce on the protected flora and fauna.
Id. at 00337-350. The EA relies heavily on the flat-wake
restrictions in concluding that re-introducing PWCs to Gulf Islands
under Alternative B “would be unlikely to adversely . . . affect
any federally or state-listed species.” GUIS-00350. For these
reasons, the Court concludes that NPS’s explanation with respect to
this impact does not contain the same defects as other aspects of
the wildlife analysis.
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8. Visitor Use and Safety
NPS examined PWCs’ effects on visitor use of the park, as well
as the impacts on visitor safety and conflicts. For each, NPS
largely followed the methodology described above, announcing
baselines, stating its assumptions, and describing impact
thresholds on a scale from “negligible” to “major.” (No definition
of impairment was provided.) See GUIS-00350-71.
The language used in the impairment thresholds again presents
a problem for NPS’ analysis. For instance, a “moderate” impact
means that “[c]hanges in visitor use and experience would be
readily apparent and likely long term.” Id. at 00354. The agency
explained that under its Management Policies, it recognizes a duty
to “provide opportunities for forms of enjoyment that are uniquely
suited and appropriate to the superlative natural and cultural
resources found in the particular unit.” Id. at 00353. There is
no explanation as to why moderate adverse impacts do not rise to
the level of an impairment, even though such impacts could lead to
a situation where “[s]ome visitors who desire to continue their use
and enjoyment of the activity . . . would be required to pursue
their choice in other available local or regional areas,” i.e.,
they would be driven out of the park. Id. at 00354.
While NPS does examine individual activities in the park, such
as PWC use, swimming, non-motorized boating, and fishing, it never
connects its obligations under the Organic Act and duties under its
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own policies to the language defining the impacts. As in Mainella,
the terms used to describe NPS final assessments are merely
“indeterminate and conclusory.” 459 F. Supp. 2d at 102.
The EA is similarly flawed in its analysis of impacts on
visitor safety and conflicts. The conclusory labeling of impacts
bears no identifiable relationship to NPS’ guiding policies, and
therefore the agency’s determination of impacts on various aspects
of visitor experience cannot be meaningfully reviewed. In
describing impact thresholds, NPS states that “[w]here impacts to
visitor experience or visitor safety become minor or moderate, it
is assumed that current visitor and safety levels would begin to
decline and the park would not be achieving some of its long-term
visitor goals.”31 Id. at 00364. This significant description of
“minor or moderate impacts” is never connected to the impairment
conclusions reached by NPS. Instead, adverse impacts that are
“long-term” and “minor” are simply declared with no discussion of
why they do not rise to the level of impairments. See id. at
00370.
For all the foregoing reasons, the Court concludes that the
impairment analysis and NPS conclusions of Alternative B’s impact
31
In setting forth its “guiding regulations and policies,”
the agency reports that among the internal long-term goals included
in NPS’ Strategic Plan is “reduc[ing] the visitor safety incident
rate 10% from 1997 levels.” GUIS-00353. There is no discussion of
how the anticipated decrease in visitor safety levels associated
with minor adverse impacts is related to the goal of reducing the
visitor safety incident rate.
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as to water quality (“negligible adverse”), air quality
(“negligible adverse” to “minor adverse”), soundscapes (“negligible
to minor adverse”), shoreline and submerged aquatic vegetation
(“negligible adverse”), wildlife (“negligible” and “minor to
moderate” adverse), and visitor use and experience (beneficial for
PWC users and adverse for non-users) are profoundly flawed. See
Mainella, 459 F. Supp. 2d at 103, 108; see also Greater Yellowstone
Coalition, 577 F. Supp. 2d at 210 (“While the Court will defer to
an agency’s exercise of expertise, the ‘Court will not defer to the
agency’s conclusory or unsupported assertions.’”) (quoting
McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d
1182, 1187 (D.C. Cir. 2004)).
In summary, the Court concludes that the GUIS Final Rule,
which relies upon the conclusory analysis in the EA, is arbitrary
and capricious because NPS’ conclusion that PWC use would result in
non-impairment under the Organic Act is not based on reasoned
explanations. The case will be remanded to NPS so that it may have
an opportunity to provide adequate reasoning for its conclusions.
See MCI Telecomm. Corp. v. FCC, 143 F.3d 606, 609 (D.C. Cir. 1998);
Mainella, 459 F. Supp. 2d at 103.
D. NEPA
Both the National Jetski Rule and the Settlement Agreement
provide that NPS must comply with NEPA’s specific procedural
requirements for exercising its rulemaking authority regarding re-
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introduction of PWCs into PIRO and/or GUIS. NEPA is a procedural
statute designed to ensure that decision-makers in federal agencies
are fully informed about the environmental impact of decisions they
are considering and that the deliberative process in environmental
matters is subject to public review and comment. See Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (“The
sweeping policy goals announced in § 101 of NEPA are thus realized
through a set of ‘action-forcing’ procedures that require that
agencies take a ‘hard look’ at environmental consequences . . . and
that provide for broad dissemination of relevant environmental
information. Although these procedures are almost certain to affect
the agency’s substantive decision, it is now well settled that NEPA
itself does not mandate particular results, but simply prescribes
the necessary process.”) (citation and quotations omitted); see
also Greater Yellowstone Coalition, 577 F. Supp. 2d at 189.
The Council on Environmental Quality promulgates regulations
that provide guidance to federal agencies for their implementation
of NEPA. Agencies must prepare an EIS for “every recommendation or
report on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(C). CEQ has issued regulations that govern the
format and content of an EIS. See 40 C.F.R. § 1500.4 (listing
guidelines). In an EIS, the agency must “take a ‘hard look’ at the
environmental consequences before taking a major action.”
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Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S.
87, 97 (1983) (citations omitted).
An EIS is not prepared as a matter of course; the EA, which is
a less thorough report, may suffice in certain situations.
Monsanto Co. v. Geerston Seed Farms, __ S. Ct. __, 2010 WL 2471057
(June 21, 2010). The EA is a “concise public document” that
“[b]riefly provide[s] sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or
a finding of no significant impact.” 40 C.F.R. § 1508.9(a). After
completion of an EA, an agency may conclude that no EIS is
necessary. If so, it must issue a FONSI, stating the reasons why
the proposed action will not have a significant impact on the
environment. Id. at § 1501.4(e).
Courts reviewing the decision not to produce an EIS apply the
same standard of review--arbitrary and capricious--as they do under
the APA. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763
(2004) (“An agency’s decision not to prepare an EIS can be set
aside only upon a showing that it was ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’”);
Town of Cave Creek, Ariz. v. FAA, 325 F.3d 320, 327 (D.C. Cir.
2003).
1. “Hard Look”
Courts evaluating the agency’s decision under NEPA consider
whether the agency has met four requirements:
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First, the agency [has] accurately identified
the relevant environmental concern. Second,
once the agency has identified the problem it
must have taken a “hard look” at the problem
in preparing the EA. Third, if a finding of no
significant impact is made, the agency must be
able to make a convincing case for its
finding. Last, if the agency does find an
impact of true significance, preparation of an
EIS can be avoided only if the agency finds
that the changes or safeguards in the project
sufficiently reduce the impact to a minimum.
Cave Creek, 325 F.3d at 327 (citations and quotations omitted).
Plaintiffs argue that the agency failed to meet the first
three requirements. Pls.’ Mot. at 40-42. Their chief contention
is that in the EAs for both parks, NPS failed to take the requisite
“hard look” at the “relevant environmental concern.” See id. at
40-41; Pls.’ Reply at 2, 18.
As an initial matter, the Court finds that, as in Mainella,
NPS’ “impairment analysis [under the Organic Act] served as its
NEPA analysis.” 459 F. Supp. 2d at 106. Two reasons support this
finding. First, the EAs made no attempt to distinguish their
impairment analysis from their NEPA analysis; they simply presented
the data and stated their conclusions as to impairments. Cf. GUIS-
00572 (stating in FONSI that “[t]he [EA] was prepared in accordance
with [NEPA].”) Second, Defendants rely on the same reasoning in
making arguments under the Organic Act as they do under NEPA. See
Defs.’ Mot. at 18-24; 29-34 (describing EAs’ impairment analysis
in making arguments under Organic Act and NEPA); Pls.’ Mot. at 40
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(advancing NEPA argument by referencing arguments made under
Organic Act).
For all the reasons stated supra in Section III.C, Defendants’
analysis in the GUIS EA was conclusory, internally inconsistent,
and failed to adequately explain the connection between objective
facts and conclusions reached. Thus, the agency failed to take the
“hard look” required by NEPA. Mainella, 459 F. Supp. 2d at 106.
Therefore, both the Final Rule and FONSI for GUIS, which relied on
the inadequate reasoning contained in the EA, were arbitrary and
capricious, and an abuse of discretion. Consequently, the
decisions are remanded to the agency so that NPS may provide
reasoning consistent with this Opinion.
NPS prepared an EA for Pictured Rocks,32 as it did for Gulf
Islands, and issued a FONSI and Final Rule concluding that
Alternative B is the preferred policy. Restricted PWC use is
therefore now allowed within the park. 70 Fed. Reg. 61,896. As
described above, the restrictions limited the time, location, and
manner of jetski operation. As with the Gulf Islands EA, NPS took
into account “guiding policies and regulations,” explained its
methodologies, set forth impact thresholds that categorized the
magnitude of impacts (e.g. negligible, minor, moderate, major, or
impairment), analyzed data, and announced its conclusion regarding
32
It will be remembered that Plaintiff Robert Goodman (as
well as all other Plaintiffs) has standing, under the Settlement
Agreement, to challenge on NEPA grounds, the Final Rule issued by
NPS’ for PIRO.
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impairments. See, e.g., PIRO-00077-88 (analyzing impacts to water
quality).
Unfortunately, the Pictured Rocks EA suffers from the same
deficiencies as the EA prepared for Gulf Islands. For instance, in
analyzing water quality, NPS was guided by the same basic policies
and regulations as it was at GUIS--EPA national standards and
regulations, as well as state and local statutes. Id. at 00077-78.
An additional consideration for PIRO is Michigan’s declaration that
the the waters at PIRO are “outstanding state resource waters.”
Id. at 00077. As a result, their quality cannot be lowered
(although short-term, temporary lowering of water quality may be
permitted on a case-by-case basis). Id.
Nonetheless, the analysis at PIRO is nearly identical to that
conducted for GUIS, although NPS did not claim to be guided by any
similarly strict regulation prohibiting any lowering of water
quality. The impact thresholds contain language as repetitive as
that used for GUIS. See PIRO-00082. Of particular significance is
the fact that at PIRO, as at GUIS, there is no explanation of how
those impact thresholds relate to the impairment finding, nor why
the national water quality standards are appropriately applied to
Pictured Rocks, instead of site-specific ones. As already noted,
Michigan regulations require that water quality not be lowered.
The EA found that negligible to minor adverse impacts would occur
in the area of the park where PWC use is permitted under
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Alternative B, yet NPS concluded that no impairment would result.
Further, NPS conceded in the EA that there “would be a concern for
aquatic life” from the cumulative impact of all watercraft use at
certain areas of the park. Id. at 00087. Without a clearer link
between the national and state standards, the announced impact
thresholds, and the conclusions reached, the water quality analysis
does not hold together logically.
The air quality analysis in the Pictured Rocks EA repeats
nearly verbatim the background, methodology, and impact thresholds
that were used in the Gulf Islands EA. Compare PIRO-00088-96 to
GUIS-00288-299. For example, both EAs define a negligible impact
as one that results in less than 50 tons/year of each pollutant,
PIRO-00092; GUIS-00293, and both look to the NAAQS as a benchmark
for emissions, PIRO-00089; GUIS-00289.
NPS did calculate park-specific PWC emissions for PIRO, but
the specific calculations do not salvage the analysis. As with
GUIS, the problem lies in the connection of this data to the
conclusions reached. As with GUIS, there is no explanation of how
the tonnage cutoff for each impact threshold was determined--e.g.,
why was 50 tons/year chosen to reflect a “negligible” impact?
Similarly, the EA never states why a uniform cutoff value is used
for each impact threshold (e.g. 50 tons/year is negligible, 100
tons/year is minor), given the fact that the emissions benchmarks
for each pollutant vary under the NAAQS. The reasoning is
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inadequate, and therefore reflects NPS’ failure to take a “hard
look” at the problem and reach a reasoned, logical conclusion.
The soundscapes analysis for PIRO is even more problematic
than that conducted by Defendants for GUIS. The Pictured Rocks EA,
which was produced in 2002, did not use the most recent data
collected by NPS in its 2001 study of PWC noise levels. As a
result, there is little data presented that measures decibel levels
at PIRO.33 As in the GUIS EA, NPS announces that 36 C.F.R. § 7 is
one of the guiding regulations and policies undergirding its
analysis; that regulation prohibits operating watercraft on inland
waters where the noise level exceeds 82 decibels at 82 feet.
Despite the reliance on this standard, NPS admits that PWC
operators at PIRO, who commonly travel in pairs as a safety
measure, create 85 decibels of noise, thereby exceeding the
regulation’s limit.34 PIRO-00103 (describing Alternative A, which
NPS admits has the same impacts as Alternative B, except that
Alternative B affects a smaller area of the park).
33
The GUIS EA relied on scientific literature and NPS
studies conducted in other parks, and then reported the decibel
values in numerous tables, see GUIS-00305, 00309. PIRO’s EA merely
states that PWCs “have been measured to emit 85 to 105 [decibels]
per unit, which may disturb visitors,” then reports the regulatory
guidelines (82 decibels at 82 feet), and sets forth findings on
noise levels from a 1974 study conducted by the EPA. PIRO-00101.
There is no attempt to conduct the type of quantitative analysis
that was conducted for Gulf Islands.
34
NPS reports that at 200 feet, the noise is reduced to 77
decibels.
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In addition, there is no discussion as to how exceeding the
decibel limit in its own regulations can possibly be consistent
with a finding of “negligible adverse impacts.” Id. at 00105. Nor
does the EA explain how the impact levels relate to the standards
that guide NPS’ inquiry. As with GUIS, the analysis and conclusion
are impermissibly conclusory, and therefore do not satisfy NEPA’s
requirements.
The analysis of impacts to Pictured Rocks’ wildlife and
wildlife habitats closely resembles the analysis conducted for Gulf
Islands. As in the GUIS EA, the PIRO EA never explains why, for an
impact to rise to the level of an impairment, the impact’s
“severity, duration, and timing result[s] in the elimination of a
native species or significant population declines in a native
species, or [it] preclude[s] the park’s ability to meet recovery
objectives for listed species.” Id. at 00107. For instance, an
adverse “moderate impact” does not, according to NPS, rise to the
level of an impairment, even though a moderate impact is one where:
Breeding animals are present; animals are
present during particularly vulnerable life
stages such as migration or juvenile stages;
mortality or interference with activities
necessary for survival are expected on an
occasional basis, but are not expected to
threaten the continued existence of the
species in the park.
PIRO-00107. As in Greater Yellowstone Coalition, NPS fails to
explain why lesser adverse impacts, like the moderate impact
described above, might not qualify as an impairment, 577 F. Supp.
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2d at 201. Without such an explanation, the EA’s discussion of
impacts to wildlife does not represent a “hard look” at the
problem.
Additionally, although the EA claims that its impact
thresholds describe impacts of “PWC use and noise on wildlife and
habitat,” id., no discussion of noise’s effect on wildlife actually
appears in its analysis.35 Id. at 00108-09. Where NPS at least
attempted to assess such impacts at Gulf Islands, it merely
includes a cursory mention of the potential problem in the PIRO EA
without incorporating it into its analysis. See id. Thus, the EA
again fails to satisfy NEPA’s requirements to fully analyze the
impact of noise on wildlife at PIRO.
The examination of shoreline vegetation in the PIRO EA shares
the same central defect that was present in the GUIS EA. NPS was
guided by the same regulations and policies at PIRO as it was at
Gulf Islands (in addition to Michigan state laws36)--i.e., NPS
internal policies and an executive order regarding protection of
35
NPS listed impact topics that it eliminated from further
consideration. See PIRO-00031. The impact of noise on wildlife
does not appear on that list.
36
One of the state laws is the Personal Watercraft Safety
Act, described supra, which does not provide benchmarks or
standards for the protection of vegetation; rather, it curbs PWC
operation. The other Michigan law is a management plan
implemented under the Coastal Zone Management Act of 1972, 16
U.S.C. § 1456. According to the EA, “[t]here are no coastal zone
management regulations or policies that specifically relate to PWC
use on Lake Superior.” PIRO-00115.
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wetlands. Those policies seek to ensure that “[n]atural shoreline
processes . . . continue without interference.” Id. at 00115.
According to NPS, a “moderate” impact would result in a
localized “change in the plant community (e.g. abundance,
distribution, quantity, or quality)”--such an impact, however, does
not qualify as an impairment. Id. at 00116. The impact thresholds
describe certain scenarios, but never make clear why, for instance,
a change in the quality of a certain plant community, does not run
afoul of NPS’ stated mandate to preserve natural shoreline
processes without interference. What constitutes a “change in
plant community”? The threshold is vague, and therefore the Court
has no basis for reviewing the relationship between that threshold
and a “moderate” impact.
Finally, with respect to the impacts on visitors’ experience,
NPS again fails to meet NEPA requirements. The flaws discussed
with regard to the GUIS EA apply to the PIRO EA. As at Gulf
Islands, the impact thresholds for visitor experience do not
sufficiently explain why certain impacts do not rise to the level
of an impairment. A moderate impact, for instance, does not
represent an impairment, yet would result in a scenario where
“[c]ritical characteristics of the desired experience (such as
natural quiet) would be changed. . . . [v]isitor satisfaction would
begin to decline or increase [depending on whether the impact is
adverse or beneficial.]” PIRO-00121. There is no discussion of why
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allowing a change in “critical characteristics” is consistent with
NPS’ duty to prevent impairments, nor why a reduction in visitor
satisfaction (in the case of an adverse impact) comports with NPS’
stated goal to reach a level of 91% visitor satisfaction. Id. at
00106-107; see id. at 00067 (noting that PWC use was a chief source
of visitor complaints.) Without understanding how impact
thresholds are connected to NPS’ non-impairment mandate, the Court
is unable to meaningfully assess the agency’s conclusion that PWC
has a negligible adverse impact on visitor experience.
Additionally, in analyzing impacts to visitor conflicts and
safety, NPS fails to explain the connection between its impact
thresholds and “the guiding regulations and policies” that it
purports to follow. NPS states that when impacts become minor or
moderate adverse, “it is assumed that current visitor satisfaction
and safety levels would begin to decline and the park would not be
achieving some of its long-term visitor goals.” Id. at 00127. NPS
then concludes that PWC use would indeed have a minor adverse
impact on safety and visitor conflicts. According to the
assumptions behind the impact thresholds, NPS can therefore expect
a decline in safety levels as well as some failure to meet its
long-term visitor satisfaction goals. NPS failed to explain how
this is consistent with its obligation to prevent impairments.
Finally, there is no attempt to square its conclusions with its
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policy of “striv[ing] to protect human life and provid[ing] for
injury-free visits.” Id. at 00126.
The EA’s analyses of impacts to water quality, air quality,
soundscapes, vegetation, wildlife, and visitor experience37 all
relied on conclusory reasoning. NPS’ FONSI and Final Rule for PIRO
adopted the reasoning set forth in the EAs. Therefore, the FONSI
and the Final Rule are arbitrary and capricious; NPS failed to meet
its obligation under NEPA to take a “hard look” at the
environmental problem. The matter is remanded so that NPS may
provide reasoning consistent with the Opinion.
2. CEQ Factors
Under NEPA, an agency must prepare an EIS for “major Federal
actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). CEQ regulations set forth what
“significantly” means in this context. 40 C.F.R. § 1508.27. The
regulations require consideration of both the context and the
intensity of the proposed action. Id. Parties dispute whether NPS
appropriately considered three of the ten intensity factors listed
in the regulations.
According to CEQ, among the factors that “should be considered
in evaluating intensity” are: (1) “[t]he degree to which the
proposed action affects public health or safety;” (2) “[u]nique
37
It is not necessary to examine the other impact topics
assessed in the PIRO EA: “cultural resources,” “socioeconomic
effects,” and “national lakeshore management and operations.”
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characteristics of the geographic area such as proximity to
historic or cultural resources, park lands, prime farmlands,
wetlands, wild and scenic rivers, or ecologically critical areas;”
and (3) “[t]he degree to which the effects on the quality of the
human environment are likely to be highly controversial.” 40
C.F.R. § 1508.27(b)(2)-(4).
In its FONSI for each park, NPS discusses each factor and
states its conclusion as to why the proposed re-introduction of
jetskis would not “significantly” affect the quality of the human
environment. See GUIS-00572-582; PIRO-00193-199.
NPS’ analysis of two of the factors--the parks’ unique
characteristics and the effects on public health and safety--relies
on the impact assessments described in its EAs. See GUIS-00577-78;
PIRO-00197. For instance, the FONSI for Gulf Islands states that
“[t]he preferred alternative would have negligible adverse impacts
to water quality for all human health and ecotoxicological
benchmarks analyzed.” GUIS-00577. Similarly, in the Pictured
Rocks FONSI, NPS relied on conclusions from its EA in assessing
uniqueness, reporting that “[c]ontinued PWC use in the area near
the [Sand Point] wetlands would have negligible adverse impacts.”
PIRO-00197.
As discussed at length above, there are fundamental problems
with the reasoning in each EA. To the extent that NPS relies on
impairment assessments from the EA that have been found to be
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conclusory, it may not rely on these assessments to support its
analysis of the challenged CEQ significance factors. To do so
would be irrational and arbitrary and capricious.
NPS does not base its analysis of the third challenged
factor--“the degree to which the effects on the quality of the
human environment are likely to be highly controversial”--on
conclusions from the EA. Rather, NPS identified the controversial
effects that motivated the preparation of an EA at each park, and
then declared that “[t]here were no other highly controversial
effects identified during either preparation of the EA or the
public comment period.” GUIS-00578; PIRO-00198.
According to Plaintiffs, there is in fact evidence in the
record that the decision to again permit PWCs was a highly
controversial one. They cite to the sizeable number of public
comments, as well as letters from two state agencies, that favor a
PWC ban. Pls.’ Mot. at 38. Defendants and Intervenors dispute
Plaintiffs’ interpretation of the regulation, and argue that mere
opposition to a proposed action does not mean that the effects of
that action are highly “controversial,” as that term is used in the
CEQ regulations.
Properly understood, this term “refers to cases where a
substantial dispute exists as to the size, nature, or effect of the
major federal action rather than to the existence of opposition to
a use.” Cave Creek, 325 F.3d at 331 (quotations and citations
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omitted). As our Court of Appeals has said, although the term is
not defined in the regulations, “certainly something more is
required besides the fact that some people may be highly agitated
and be willing to go to court over the matter.” Fund for Animals
v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975). Therefore,
the opposition contained in the public comments referred to by
Plaintiffs does not render the effects of the proposed action
“highly controversial.”
Further, Plaintiffs are simply wrong, in this case, that there
was significant disagreement by state agencies which would trigger
this CEQ factor. See Pls.’ Mot. at 39. As Defendants and
Intervenors detail in their submissions, and as the record
reflects, the state agencies did not take issue with the “size,
nature, or effect” of the proposed action. Rather, the one-page
letter from the Michigan Department of History, Arts and Libraries
merely states that the Department “favor[s] the no-action
alternative.” PIRO-00319 (emphasis in original). No mention is
made of any disagreement with the analysis in the study.
Similarly, with respect to the removal of the ban at GUIS, the
Florida Department of State (Division of Historical Resources)
submitted only a one-page letter which stated that the no-action
alternative “would best protect and preserve cultural resources.”
GUIS-05826. These brief and summary statements do not represent
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the type of disagreement that qualifies as “highly controversial”
under CEQ regulations.38
Thus, on this record, the FONSIs’ analyses are so weak that it
cannot be determined whether an EIS should have been prepared.
Consequently, the FONSIs are remanded to the agency for further
analysis of the uniqueness and safety factors. Cf. Grand Canyon
Trust v. FAA, 290 F.3d 339, 347 (D.C. Cir. 2002) (“We remand the
case because the record is insufficient for the court to determine
whether an EIS is required.”). Defendants’ and Intervenors’
Motions for Summary Judgment are granted with respect to the
“highly controversial” factor.
E. Settlement Agreement
Plaintiffs’ final contention is that NPS violated the
Settlement Agreement in issuing its EAs, FONSIs, and Rules. The
Agreement requires that, before the agency re-introduces PWCs in
each park, it must issue “special regulations” as described in the
National Jetski Rule. Further, the process of adopting those
regulations must be consistent with “appropriate environmental
analysis under [NEPA].” The analysis will, “inter alia, consider
the impacts of PWC use in the particular unit.” Settlement
38
Additionally, it should be noted that both state agencies
later demonstrated at least some support for the alternatives
adopted by each EA. GUIS-05827 (stating that if the no-action
alternative were not selected, “Alternative B would be the next
preferred alternative”); PIRO-002534 (letter dated August 10, 2005,
stating that the Department has “reviewed and approve[s] the
revised Environmental Assessment”).
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Agreement at ¶¶ 3-4. Plaintiffs charge that NPS’ failure to
undertake a “hard look” analysis in its EAs, and its refusal to
conduct site-specific studies in the particular units, violated the
Settlement Agreement. Pls.’ Mot. at 40-42.
Plaintiffs’ argument that the language of the Settlement
Agreement mandates a more detailed “site-specific” study than was
contained in the EAs cannot prevail. Tr. at 42. The Agreement
called for NPS to conduct “the appropriate analysis” under NEPA and
noted that this would include consideration of impacts in the
“particular unit.” Settlement Agreement at ¶ 5. This language
does not require that NPS undertake park-specific studies in order
to analyze park-specific impacts. Rather, it requires that NEPA be
followed, and that impacts in the particular unit be considered.
Further, NPS may, consistent with that Act, rely on studies
conducted at other locations in order to assess impacts particular
to a given park. Young v. Gen. Serv. Admin., 99 F. Supp. 2d 59, 79
(D.D.C. 2000).
The Settlement Agreement compels NPS to comply with the terms
of NEPA, but requires no more than that. Therefore, the resolution
of this dispute does not differ from the outcome of the NEPA
claims. Defendants violated the Settlement Agreement to the extent
that their analysis did not meet NEPA’s “hard look” requirement,
and relied on conclusory reasoning to support its decision not to
prepare an EIS.
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IV. CONCLUSION
For the foregoing reasons, Intervenors’ Standing Motion for
Partial Summary Judgment is granted in part and denied in part,
Plaintiffs’ Motion for Summary Judgment is granted in part and
denied in part, Defendants’ Motion for Summary Judgment is granted
in part and denied in part, and Intervenors’ Motion for Summary
Judgment is granted in part and denied in part. An Order shall
issue with this Memorandum Opinion.
/s/
July 8, 2010 Gladys Kessler
United States District Judge
Copies to: attorneys on record via ECF
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