NIOBRARA RIVER RANCH,
L.L.C., a Nebraska Limited Liability Company, and LEE M. SIMMONS, Plaintiffs,
vs. ROYCE HUBER, Refuge Manager, Ft. Niobrara Wildlife Refuge; RON COLE, Refuge
Supervisor; RALPH MORGENWECK, Regional Director for USF & W Region 6,
STEVEN A. WILLIAMS, Director of UNITED STATES FISH & WILDLIFE SERVICE; GALE
A. NORTON, Secretary of the UNITED STATES DEPARTMENT OF THE INTERIOR,
Defendants.
4:03CV3247
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
277 F. Supp. 2d 1020; 2003
DISPOSITION: [**1] Final judgment entered in favor of Defendants.
Plaintiffs' complaint dismissed with prejudice.
COUNSEL: For Plaintiffs: Kent C. Engdahl, Raynor, Rensch Law Firm, Omaha, NE.
For Plaintiffs: Victor E. Covalt, III, Ballew, Schneider Law Firm, Lincoln, NE.
For Defense Counsel: Paul D. Boeshart, Assistant United States Attorney,
Lincoln, NE.
JUDGES: Honorable Richard G. Kopf, Chief United States District Judge.
OPINIONBY: Richard G. Kopf
OPINION: [*1021] MEMORANDUM AND ORDER
This case presents the interesting question of whether the United States Fish
and Wildlife Service (the FWS or Service) wrongly denied a license to conduct a
commercial canoeing n1 enterprise on the [*1022] stretch of the
Niobrara river in Nebraska that runs through the Fort Niobrara National
Wildlife Refuge. The primary question is whether FWS denied the permit
arbitrarily, capriciously or contrary to the law.
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n1 The application refers to "vessels" which apparently include
canoes, tubes and kayaks. For the sake of convenience, and since the parties do
not point out any significance to the specific type of craft, I refer only to
"canoes" or "canoeing."
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- [**2]
After a bench trial, I find and conclude that the FWS was within the law when
it denied the permit. I, therefore, dismiss the plaintiffs' claims with
prejudice, and enter judgment on the merits for the defendants. My reasons,
including the required Fed. R. Civ. P. 52 findings of facts and conclusions of
law, are set forth below. n2
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n2 Any factual finding that should more properly be considered a conclusion of
law shall be so construed. In the same vein, any conclusion of law that should
more properly be considered a factual finding shall be so construed.
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I. BACKGROUND
Introduction
In order to understand the arguments of the parties, it is also necessary to
understand both the facts and the history of the law regarding the federal
government's interest in, and administration of, the Fort Niobrara National
Wildlife Refuge (the Refuge), and the beautiful Niobrara river (the river) that
runs through it. Presenting the "pure facts" and "historical
legal facts" together for purposes of clarity, I proceed [**3]
to that task next.
The Record
The administrative record subject to review is found at filing 24 (Ds.'s Index
of Evid. Regarding Designation of Admin. R., including exhibits A through M)
(hereinafter "Ex. ' ', Admin. R.) It was a made a part of
the evidentiary trial record without objection.
Without objection, the court also took judicial notice for the purposes of
evidence of filing 22 (Defendants' Index of Materials Submitted in Supp. of
Request to Take Judicial Notice, including exhibits 101 through 110). This
index contained various executive orders, extracts from FWS manuals, and
Federal Register notices. Without objection, the court also took judicial
notice of another executive order. (Trial Ex. 1 (Executive Order 12996).)
Filing 22 and Trial Ex. 1 comprise the Judicial Notice Materials. The pertinent
trial record thus consists of filing 22, filing 24 and exhibit one. n3
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n3 Because injunctive relief is not warranted, I do not discuss the evidence offered
solely for non-merit based arguments such as irreparable injury. (See filings
14 and 15).
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- [**4]
The facts described below are derived from the foregoing sources. Historical
legal facts described below are derived from the evidentiary trial record as
well as the legal decisions, notices, executive orders, statutes, regulations
and similar governmental materials regularly published by the
The Site
The Refuge is 19,131 acres in size and located along both sides of the river in
north-central
The
National Park & Conservation Ass'n v.
The Refuge is owned by the
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n4 Since it became a wildlife preserve in 1912, the Refuge has been expanded
several times. See Executive Order No. 1642, signed by President Taft on
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- [**6]
Federal Regulation of the Refuge and River
As a National Wildlife Refuge, the Refuge is managed in accordance with the
National Wildlife Refuge System Administration Act of 1966, Pub. L. No.89-669,
80 Stat. 927 (codified as amended in scattered sections of 16 U.S.C, largely at
16 U.S.C. §§ 668dd-668ee) (the "Refuge Act"). The mission of the
National Wildlife Refuge System is "to administer a network of lands and
waters for the conservation, management, and where appropriate, restoration of
the fish, wildlife, and plant resources and their habitats within the
The Refuge Act, at 16 U.S.C. § 668dd(c), provides, in part:
No person shall ... in any area of the [National Wildlife
Refuge] System ... enter, use, or otherwise occupy any [**7] such
area for any purpose; unless such activities are performed by persons
authorized to manage such area, or unless such activities are permitted either
under subsection (d) of this section or by express provision of the law,
proclamation, Executive order, or public land order establishing the area, or
amendment thereof ...
The foregoing statutory prohibition has been implemented by the FWS through
regulation (50 C.F.R. §§ 27.11-97 (2002)), and boating is specifically
regulated by 50 C.F.R. § 27.32. "The use of boats in national wildlife
refuges is prohibited except [*1024] as may be authorized under and
subject to the requirements set forth below."
The Refuge Act at 16 U.S.C. § 668dd(d)(1) further provides, in part:
The Secretary is authorized, under such regulations as he
may prescribe, to--
(A) permit the use of any area within the [National Wildlife Refuge] System for
any purpose, including but not limited to hunting, fishing, public recreation
and accommodations, and access whenever he determines that such uses are
compatible with the major purposes for which such areas were
established [**8] ...
Public recreation was recognized by Congress as a legitimate use in the
National Wildlife Refuge System in 16 U.S.C. § 460k. The Secretary of Interior
was authorized therein to "administer such areas or parts thereof for
public recreation when in his judgment public recreation can be an appropriate
incidental or secondary use" and authorized him "to curtail public
recreation use generally or certain types of public recreation use within
individual areas or in portions thereof whenever he considers such action to be
necessary ...."
In 1997, Congress amended the Refuge Act by enacting the National Wildlife
Refuge System Improvement Act, Pub.L. No. 105-57, 111 Stat. 1252-1260 (codified
as amended at 16 U.S.C. §§ 668dd-668ee). Congress mandated within the amended
Refuge Act that the Secretary of the Interior, and thus the FWS, develop
comprehensive conservation plans for each national wildlife refuge. Congress
also directed the Service to "facilitate[]" subject to
"restrictions" and "regulations" certain compatible
recreational uses. 16 U.S.C. § 668dd(a)(1), (3)(D). The Service was also directed [**9]
by Congress in section 668dd(e)(1)(E) to "manage the refuge or planning
unit in a manner consistent with the plan ...."
Since 1976, the FWS has been responsible for managing a 4,635-acre portion of
the Refuge as a wilderness area pursuant to the Wilderness Act of 1964, 16 U.S.C.
§§ 1131-1136. (CCP, p. 38.) Virtually all of the river used by the public on
the Refuge is inside the wilderness area, as the wilderness boundary is a few
hundred yards downstream from the launch point below Cornell Dam, which is
owned by the FWS. A wilderness area is to be managed by the Service "to
preserve its natural conditions ...." 16 U.S.C. § 1131(c). River
recreation, such as canoeing, is clearly permissible as long as it is managed
by the FWS to preserve "outstanding opportunities for solitude or a
primitive and unconfined type of recreation" experience in each
wilderness. 16 U.S.C. § 1131 (c)(2).
In 1991, a 76-mile stretch of the
The regulation that governs the issuance of Special Use Permits for commercial
uses inside refuges, the type of permit at issue in this case, reads:
Soliciting business or conducting a commercial enterprise on
any national wildlife [*1025] refuge is prohibited except as may be
authorized by special permit.
50 C.F.R. § 27.97 (2002) (emphasis added).
The Conservation Plan and the Moratorium
Under the amendments to the Refuge Act, enacted in 1997, the Service was
required to develop comprehensive conservation plans (CCPs) for all refuges
within [**11] 15 years. Title 16 U.S.C. § 668dd(e)(1)(A) implemented
Congress's mandate for refuge comprehensive conservation plans:
The Secretary shall -
(i) propose a comprehensive conservation plan for each refuge ...;
(ii) publish a notice of opportunity for public comment in the Federal Register
on each proposed conservation plan; [and]
(iii) issue a final conservation plan for each planning unit consistent with
the provisions of this Act and, to the extent practicable, consistent with fish
and wildlife conservation plans of the State in which the refuge is located ...
Each CCP was to be proposed in the Federal Register for public comment. Upon
completion of a CCP, the Service was directed to manage the refuge in a manner
consistent with the CCP and was directed to revise the plan at any time
conditions that effect the Refuge are deemed to have changed significantly. 16
U.S.C. § 668dd(e)(1)(E).
The Service followed the Refuge Act's direction regarding the development of a
CCP for the Refuge. Although finalized in September of 1999, the Refuge CCP at
issue here was originally published in the Federal Register on
The public was involved in the process that led to the development of the draft
CCP and the final CCP through a various meetings, personal communications and
distribution of the draft plan. (CCP, p. 25). In addition, a period totaling
105 days was granted to interested parties to provide written comments to the
draft CCP, before the final plan was issued in September of 1999. (Id). The
Service made various changes to the draft CCP and included them in the final
CCP as a result of the comments and information received during the comment
period. (Id).
Since 1976, when the river was designated as wilderness pursuant to the
Wilderness Act, the number of people canoeing the river within the Refuge
appears to have steadily increased (at least until recently). In the CCP, the
Service found that between 1993 and 1997 the rate of increase [**13]
was steep (about 30%). It rose from about 23,000 visitations to about 30,000
visitations annually in just four years. (CCP, p. 8.)
In this regard, the CCP states:
Canoeing the
(CCP, [**14] p.8.)
[remainder of page intentionally left blank]
Figure 1, referred to in the foregoing quotation, and presented in the CCP, is
reproduced below:
(
In the CCP, the Service announced that it was instituting a temporary
moratorium on new outfitters. (CCP, p. 21). This temporary limit, coupled with
strict enforcement of the laws governing floating the river, was instituted to
stem the apparent overcrowding situation on the stretch of the river through
the Refuge. As stated in the CCP, until a study could be completed, the
temporary moratorium was, in the Service's judgment, the most logical way of
controlling apparent overcrowding without depriving all visitors of the
experience of canoeing the river. The Service said:
This temporary measure has been criticized as unfair,
inadequate, and without basis on hard evidence and science. However, the
Service believes that this interim management policy is better than complete
shutdown of River use on this stretch of the
(CCP, p. 21.)
The development of the CCP, which included a public NEPA process resulting in
an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI),
was deemed necessary by the Refuge Act and the Service to guide management of
the Refuge over the next 15 years. (CCP, pp. 1, 113-21.) Included in the CCP
was the call for the Service to institute a management plan to deal with the
recreational use of the river as it flows through the Refuge.
To be specific, in 1999 the CCP stated that the Service would prepare a River
Management Plan (RMP or Plan) within two years. (CCP, p. 21). Despite this
written assurance, the RMP has not yet been completed. The Plan, which is now
scheduled to be in place prior to the 2004 river season, will be based largely
on scientific research conducted during the past four years by researchers from
[*1027] These researchers are studying the impact river users have
on the riparian habitats supporting wildlife and vegetation along the river
within the Refuge. The results of this research, coupled with information
gained from talking to Refuge visitors, outfitters, Refuge [**16]
staff and others, will form the knowledge base for the RMP. The Plan will
define acceptable use levels for weekdays and weekends that meet the legal
mandate. (CCP, p.21.)
The defendants concede that some canoeing is a compatible use within the Refuge
and on the river. (CCP, p. 94 ("River recreation is compatible");
Filing 23, Br. in Supp. of Ds.'s Mot. to Dismiss at 9, 18.) However, that
concession is limited by express caveats, including the stipulation in the CCP
that "during the development of the River Recreation Plan, no additional
permits for outfitting on the Refuge will be issued and River use will be
capped at 1998 levels." (CCP, p. 94). n5
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n5 It appears that the River Recreation Plan referenced at page 94 of the CCP
is the same document as the River Management Plan referenced at page 21 of the
CCP.
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The Permit Application and the Denial
On about
The plaintiffs first observed that:
Applicant understands that river use on weekends in the summer was capped at
1998 levels. (See "Ft. Niobrara National Wildlife Refuge Comprehensive
Conservation Plan" "CCP") at page 51; see also "CCP"
appendix E, "Comparability Determinations", p. 100.) According to
annual river use surveys compiled by the Ft. Niobrara National Wildlife Refuge,
the total number of vessels launched in 1998 from both outfitters and privately
was 16,253; total number of people was 27,619. The years 1999 and 2000 show a
steady decline in usage and in the river use summary of 2001, the total number
of vessels was 10,173; the number of people was 15,741. The number of
outfitters were limited to eleven, as a "Moratorium" according to
Outfitter Usage Reports for 2002. Only eight outfitters applied for special use
permits for 2002.
Based on this data, it appears that the 1998 cap on river usage has never been
violated up to the year 2002 and the number of outfitters has also decreased.
In fact, granting this permit application will not and cannot result in any
violation of the caps as imposed by the CCP. Thus, the Applicant's
request [**18] for a special use permit will not violate these caps
on use levels or outfitter numbers over the 1998 standards.
(
Then, the plaintiffs framed and limited their request this way:
(
On
Due to the rapidly increasing commercial use of the Niobrara
River on the Refuge, the U.S. Fish and Wildlife Service (Service) became
concerned about the impacts on wildlife resources and the [*1028]
quality and safety of a wilderness experience by the public. In 1993, a
moratorium was issued allowing no new commercial operations, other than the 11
commercial outfitters that were in place at the time of the
moratorium. [**19] Since that time, there have been requests for
SUPs to provide these commercial privileges but none have been granted nor have
any permits been transferred to new owners through purchase of existing
businesses. In 1999, with public input and involvement, the Service completed
the Comprehensive Conservation Plan (CCP) which directs the management of Fort
Niobrara National Wildlife Refuge for the next 12 to 15 years. In that
document, the Service identified a need to develop a "River Management
Plan" which will address future commercial outfitting privileges on the
Refuge. The CCP also addressed a need for the Service to conduct an avian study
to determine what affect river recreation is having on avifauna. The Service
contracted with
(
Mr. Huber then stated that "the Service cannot issue [the permit] to you
or other interested individuals or entities until the Service has acquired the
information and completed the plans identified above." (
On
As we discussed, my client, Niobrara River Ranch, operates [an] upscale resort
with cabins near the river downstream from the Refuge. Mr. Lee M. Simmons,
owner of Niobrara River Ranch LLC and its general manager, owns the land on
both sides of the river from near
Recreational use of the river [**21] has a long standing history. It
pre-dates even the creation of the Refuge itself. Recreational use of the river
was expressly approved as a compatible use in the CCP. These two facts mean that
restricting access thus must be justified. Without such justification,
restrictions are arbitrary and capricious by definition.
As you know, the Ft. Niobrara National Wildlife Refuge CCP instituted a
"temporary" cap for canoeing on the river through the Refuge at 1998
numbers which were approximately 27,619 visitors through eleven (11)
outfitters. It is my understanding that in year 2002 that there were only nine
(9) outfitters still operating through the Refuge. The number of people
accessing the river at the Cornell Dam site in 2001 was 15,741. We expect final
reports for 2002 to be around 15,000 visitors. Thus, if granted, my client's
utilization of access under [*1029] the Special Use Application
mathematically cannot cause usage to exceed the cap on total visitors or the
number of outfitters using the river. Our Special Use Permit also addresses
issues of overcrowding and actually proposes a better system of river
management than is presently in place. It exceeds the terms and condition
imposed [**22] in 2002 on the "grandfathered" outfitters.
The "two-year moratorium" was imposed under the CCP adopted in
September, 1999 to allow completion of the River Management Plan and their
Wilderness Stewardship Plan. These Plans are more than two years past due and
at least two more years of delay are projected. Thus, the
"moratorium" has become a permanent restriction on prior lawful use.
This is having a detrimental impact on the economy of
(
On
Thank you for your letter of
Denial of your request is consistent with similar SUP requests the Refuge has
received since the Comprehensive Conversation Plan (CCP) was completed in 1999.
The CCP places a cap on weekend outfitters and also prohibits the issuance of
SUP's to new outfitters. The purpose of this was to diminish impacts to the
resource by reducing the high peak use periods that occurred on weekends by
dispersing river traffic and spreading it out over the entire week. These and
other measures of the 1999 CCP ensure compliance with the 1997 National
Wildlife Refuge System Improvement Act, which states that wildlife conservation
is the priority of refuge [**24] lands and that the Secretary of
Interior shall ensure that the biological integrity, diversity, and
environmental health of refuge lands is maintained.
The crux of this issue is not your client's ability to perform or your client's
potential revenue losses. It is not about lost opportunity to the public, for
there are still thousands of river recreationists from all over
As directed by the CCP, we are developing a River Management Plan (RMP) and
associated Wilderness Stewardship Plan (WSP). You accurately point out in your
letter that neither of these is complete and both are significantly behind
schedule. To [**25] complete these plans, it was decided to conduct
a peer-reviewed study by a noted university to gather the information needed to
write effective step-down plans.
In the meantime, the
(
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n6 Although I attach no significance to the point, it appears that the
plaintiffs' supplemental letter of January 31, 2003 crossed in the mail with
Mr. Cole's denial letter of the same date.
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On February 3, 2003, the plaintiffs appealed Mr. Cole's denial decision to
Ralph Morgenweck, Regional Director of FWS in Denver. (Ex. G, Admin. R.) They
made essentially the same arguments that they had made to Mr. Huber and Mr.
Cole. In addition, they requested oral argument.
The request for oral argument was granted on
On
I am enclosing four pages produced by Mr. Huber showing a continued decline of
usage of the Ft. Niobrara NWR launch site [**27] in year 2002. He
reports that a total of 15,185 persons used the launch site in 2002. This is
slightly less than 55% of the number of people who used the launch in 1998, the
"base year" for the "moratorium." That is, you have had a
45% decline in the number of people observing the scenic river in the NWR since
the moratorium was put in place. As I emphasized in our meeting, the 1996 act
encourages and makes increased family oriented recreational use of wildlife
refuge system a priority. This stands as a stark contrast to the decreased use
of the Ft. Niobrara NWR caused by the CCP and Mr. Huber's management.
I also wish to emphasize that 13,999 people used outfitters in 2002 to go
through the Ft. Niobrara National Wildlife Refuge as compared to 1,186 who did
not use outfitters. This means that 92.19% of the persons viewing the scenic
river through the Ft. Niobrara National [*1031] Wildlife Refuge
depended on an outfitter.
(Ex. K, Admin. R. (emphasis in original).)
On
In 1999, the Fish and Wildlife Service (Service) completed
the [**28] Comprehensive Conservation Plan (CCP) for
The Service is committed through the CCP process that no new SUPs would be
issued; they made verbal agreement with the existing outfitters to limit
specific types of uses on the existing permits until a final River Management
Plan (RMP) is produced.
In your written and oral presentations, you raise several concerns. You state
that the Service does not have the authority to control activities on the
Refuge portion of the
You state [**29] you do not believe the Service has the authority to
require an SUP and that commercial outfitting is a compatible use, not a
special use, and thus requires only a recreational access fee. Under 50 CFR
27.97 "... Conducting a commercial enterprise on any NWR can only be
authorized by special permit." Therefore, the Service is required, by law,
to issue an SUP for commercial outfitting and guiding on Fort Niobrara NWR.
Refuge lands are public property and the government is directed by law on how
to administer this property. Use of refuge lands as granted by an SUP is a privilege,
not a right; otherwise all citizens could use refuge lands any way they see
fit, often jeopardizing the purposes for which the refuge was established.
You state that the moratorium on guiding, as established in 1993 and supported
in the 1999 CCP, is unlawful. The National Wildlife Refuge System (NWRS)
Administration Act (16 U.S.C. 668dd, et seq.) and rules found in 50 CFR Chapter
I, Subchapter C, close refuge land and water to all forms of public use,
including entry, until the Service takes affirmative action to permit use.
Subpart C, 25.31 states whenever [**30] public access or use is
permitted, or that access or use is curtailed, the public may be notified by
the following methods:
(a) Official signs posted conspicuously at appropriate intervals and locations,
(b) Special regulations issued under the provisions of 26.33 of the Subchapter
C,
(c) Maps available in the office of the Refuge Manager, Regional Director, or
Area Director, or
(d) Other appropriate methods which will give the public actual or constructive
notice of the permitted or curtailed public access, use or recreational
activity, i.e., local newspaper, radio, and television.
In 1999, the Service committed in the CCP that no new SUPs would be issued.
This decision is directly supported by the Refuge Improvement Act of 1997, to
[*1032] "... ensure that the biological integrity, diversity,
and environmental health of the System are maintained for the benefit of
present and future generations of Americans."
You state that you believe that outfitter SUPs have been issued to
"favorites" and that the Service "subtly discourages"
outfitters from using their permits. It is refuge policy to issue SUP's using a
variety of procedures including lottery, chronological order, reservation [**31]
systems, and open bid process. Reissuing SUPs to existing users (providing
their past performance meets the conditions of the permit) year after year is
common practice among many government agencies.
You state that the RMP has yet to be completed. I am pleased to report that
this study by
Some draft results reported thus far:
Field Season 2000 -- Community Level Responses (Pilot Study)
Several bird species were found to be sensitive to
recreation disturbance along the river, including common yellowthroat, eastern
kingbird, belted kingfisher, great blue heron, spotted sandpiper,
[**32] and wood duck.
Field Season 2001 and 2002 - Population Level Responses
Ground nesting songbirds
Predators were shown to increase their presence in the river
corridor as the avian breeding season progressed for pairing, to nesting, to
fledgling stages. None of these results differed in recreated vs. non-recreated
zones of the Refuge.
Overall, birds with a nesting ecology similar to the common yellowthroat most
likely do not pull off many young during the breeding season due to high
depredation rates and a good chance of the presence of predators in their
nesting habitat. This is most likely due to the regional habitat
characteristics found along the
The researcher hopes to complete his thesis and defend it at the end of June,
followed by a report/presentation at Fort Niobrara NWR in July. However, the
avian behavior/river recreation use data (Chapter 4) is a critical component of
the project that must be completed before a final report is presented to the
Service.
The RMP, when complete, will reflect the results of this study, incorporating
all biological and river use data available through an open public process. It
will also include [**34] data referenced in your letter of May 22.
It will be critical that actual river use continue to be monitored. Special Use
Permits will be issued in a way that allows for optimum management of river
use. The RMP will allow for a thorough analysis of how permittees are selected.
We anticipate that a new SUP selection process will be implemented for the
upcoming 2004 season.
Our goal is to provide quality recreation for river enthusiasts and still
maintain the wildlife and wilderness values the river users come to expect. We
will diligently pursue the completion of the RMP and hope that you will be a
participant in the public review of this planning process.
(
These Proceedings
This suit followed on
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n7 Even if the plaintiffs had prevailed on the merits, and while I could order
other types of relief, it is doubtful that I could issue a mandatory injunction
requiring the issuance of the permit. But, since the plaintiffs have not
prevailed on the merits, I do not reach this question.
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- [**35]
II. ANALYSIS
Introduction
Ultimately, I conclude that the Service's denial of the permit was lawful even
though the Service has been late in the development of its promised river
management plan. See, e.g., United States v. Hells Canyon Guide Serv., 660 F.2d
735, 737 (9th Cir. 1981) (even though the Secretary of Agriculture had not
promulgated regulations regarding the use of a national recreation area and
instead had imposed a moratorium on commercial float permits, denial of a
license to conduct boating business by guide service was lawful and the
district court properly enjoined the operator from conducting his boating
operation on the Snake River in the Hells Canyon National Recreation Area.) My
explanation for this decision is set forth in the following portion of this
memorandum.
The plaintiffs argue that the license moratorium and the permit denial were
arbitrary and capricious and contrary to the law. They also make a Tenth
Amendment claim that I summarily deny along with any other claims that were not
briefed. n8
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n8 At oral argument, I asked one of the plaintiffs' able lawyers whether he had
any cases which supported the Tenth Amendment claim. Candidly, he said he did
not. I cannot find any either. Moreover, it is not apparent why the Tenth
Amendment has been violated. Because the claim has not been briefed, I deny it
without further comment. See, e.g., NELR 39.2(c)("The failure ... to
discuss an issue in the brief submitted may be treated as an abandonment of that
party's position on any issue not discussed.")
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- [**36]
[*1034] Jurisdiction and Scope of Review
As a preliminary matter, it is necessary to address the government's
jurisdictional argument. An introductory explanation of the law regarding the
"arbitrary, capricious and contrary to law" standard is also helpful.
In cases such as this, where jurisdiction is predicated upon 28 U.S.C. §§ 1331
and 2201, this court's standard of review is under the Administrative Procedure
Act (APA). See 5 U.S.C. §§ 701-706. Where judicial review is authorized, this
court must limit its review to a determination of whether the record of the
administrative proceedings reveals that the agency action was arbitrary,
capricious, an abuse of discretion, or otherwise contrary to the law. 5 U.S.C.
§ 706(2)(A).
However, where the underlying statute precludes judicial review or the agency
action in question "is committed to agency discretion by law"
judicial review is prohibited. 5 U.S.C. § 701(a)(1)-(2). Thus, "before any
review at all may be had [under the APA], a party must first clear the hurdle
of § 701(a)." Heckler v. Chaney, 470 U.S. 821, 828, 84 L. Ed. 2d 714, 105
S. Ct. 1649 (1985) [**37] (The Food and Drug Administration's
decision not to take enforcement action to prevent the use of drugs for the
purposes of implementing the death penalty by means of lethal injection was not
subject to review).
Here, the government contends, although not vigorously n9, that the discretion
afforded the Service under 16 U.S.C. § 668dd(e)(1)(A)--to issue the moratorium
as a part of the comprehensive conservation plan--is so broad as be beyond
review. In other words, the government argues that under 5 U.S.C. § 701(a)(2)
judicial review is unavailable. I disagree.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 During oral argument, the very capable Assistant United States Attorney
defending the case candidly told me that while he did not wish to abandon this
argument he did wish to argue it either.
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The statute, 16 U.S.C. § 668dd(e)(1)(A), requires the FWS to issue a
"comprehensive conservation plan." While the discretion afforded the
Service in the preparation and administration of the [**38] plan is
clearly broad, it is not without enforceable boundaries. For example, the
statute requires the FWS to manage a refuge "consistent with the
[comprehensive conservation] plan," 16 U.S.C. § 668dd(e)(1)(E), and the
FWS is specifically required to identify and describe "opportunities for
compatible wildlife-dependent recreational uses." 16 U.S.C. §
668dd(e)(2)(F). The statute also specifies that "compatible
wildlife-dependent recreational uses ... shall receive priority consideration
in refuge planning and management ...." 16 U.S.C. § 668dd(a)(3)(C).
Indeed, when the FWS determines that "a proposed wildlife dependent
recreational use is a compatible use within a refuge, that activity should be
facilitated, subject to such restrictions or regulations as may be necessary,
reasonable and appropriate." 16 U.S.C. § 668dd(a)(3)(D).
The Refuge Act describes "compatible use" to include such
"wildlife dependent recreational uses" as "will not materially
interfere with or detract from the fulfillment of ... the purposes of the
refuge." 16 U.S.C. § 668ee(1). This [**39] "compatible
use" determination must be made by "sound professional
judgment," id., and that term is defined, in part, to mean a conclusion
"that is consistent with principles of sound fish and wildlife management
and administration, [and] available science and resources ...." 16 U.S.C.
§ 668ee(3). The terms "wildlife-dependent recreation" and
"wildlife dependent recreational use" are defined to mean a "use
of a refuge involving hunting, fishing, wildlife observation
[*1035] and photography, or environmental interpretation." 16
U.S.C. 668ee(2).
In short, the law requires the Service to (a) to prepare a CCP; (b) manage the
refuge in accordance with the CCP; and (c) pursuant to the CPP, and among many
other values, identify, facilitate, give priority to and regulate compatible
wildlife-dependent recreational uses. The law sets a specific standard of care
for the FWS employees to meet when identifying, facilitating, planning for and
regulating those uses. Consequently, the discretion of the FWS is not absolute
or unfettered and judicial review is not precluded under 5 U.S.C. § 701(a)(2).
Thus, judicial review is available [**40] to determine whether Service's
actions were arbitrary, capricious, an abuse of discretion, or otherwise
contrary to the law. 5 U.S.C. § 706(2)(A).
There being no bar to judicial review, I turn then to the scope of my review
under the APA. As the word "comprehensive" suggests, 16 U.S.C. §
668dd(e), requiring the development and implementation of a "comprehensive
conservation plan," of necessity also requires the FWS to consider and
balance a wide variety of competing interests such as the overall purposes of
the refuge, biological and botanical assets, archaeological and cultural
values, and compatible wildlife-dependent recreational uses. 16 U.S.C. §
668dd(e)(2)(A)-(F). The statute cannot be read to provide an answer about how
these interests must ultimately be harmonized at a given refuge, and, indeed,
that is why the FWS was required by Congress to prepare a plan for each refuge
to determine how each refuge shall be used.
It is this inherent and intended statutory ambiguity--the proper use of the
refuge--that requires the Service be given very wide, or so-called Chevron,
deference when I review the CCP [**41] and its implementation,
including the related license denial. See Chevron U.S.A. Inc., v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 843-44, 81 L. Ed. 2d 694, 104 S. Ct. 2778
(1984) ("'The power of an administrative agency to administer a
congressionally created ... program necessarily requires the formulation of
policy and the making of rules to fill any gap left, implicitly or explicitly,
by Congress'" and administrative agencies will thus be afforded wide
discretion when filling those gaps) (citations omitted). Wide deference is
particularly appropriate here because the FWS must not only consider for itself
the statutory factors, but it must also, pursuant to 16 U.S.C. §
668dd(e)(1)(A)(ii), solicit and evaluate public comments regarding the
development of the comprehensive conservation plan. See, e.g., United States v.
Mead Corp., 533 U.S. 218, 230, 150 L. Ed. 2d 292, 121 S. Ct. 2164 (2001) (an
"overwhelming number" of Supreme Court cases apply Chevron deference
to the results of notice-and-comment rule making).
The deference owed administrative agencies in cases like this is
"substantial." Central S.D. Coop. Grazing Dist. v. Secretary of the
United States Dept. of Agric., 266 F.3d 889, 894-95 (8th Cir.
2001) [**42] (a decision by the Forest Service to reduce cattle
stocking levels pursuant to a management plan for use of the Fort Pierre
National Grasslands was accorded Chevron deference and affirmed). However,
"deference" does not mean "rubber stamp." Among other
things, even when Chevron deference is due, a court should ask whether the
agency: (1) has relied on factors which Congress has not intended it to
consider; (2) entirely failed to consider an important aspect of the problem;
(3) offered an explanation for its decision that runs counter to the evidence
before the agency; or (4) has rendered a decision that is so implausible that
it could not be ascribed to a difference in view or the product of agency
[*1036] expertise.
With these principles in mind, I turn to the two arguments of the plaintiffs
which merit discussion. That examination follows.
The Validity of the Moratorium
The plaintiffs first attack the moratorium, reasoning that if it fails, then
the denial of the license will fail as well because that decision was based
upon the moratorium. I conclude that the moratorium was lawful.
As earlier indicated, [**43] the Service found that river usage had
dramatically increased over a short period of time. In the CCP, the Service
found that between 1993 and 1997 the rate of increase was steep (about 30%). It
rose from about 23,000 visitations to about 30,000 visitations annually in just
four years. (CCP, p. 8.)
The moratorium challenged by the plaintiffs and the reasons for it are
described in detail in the CCP. (E.g., CCP, pp. 21, 45.) In particular, the
Service gave this long explanation:
Recreational Use and Resources of the
Many people, groups, and agencies were concerned, for
various reasons, about the Service's current and proposed policy on access to
and management of the
Limiting Access to the
Recreational canoeing and tubing use of the stretch of the Niobrara River
designated as scenic by Congress has increased dramatically
in [**44] the past few years. In response to this, the Service has
attempted to alleviate effects on Refuge resources (riparian habitats and the
wildlife that depends upon it, wilderness values, etc.) by placing a temporary
limit on the number of outfitter Special Use Permits issued by the Refuge and a
cap on use while the environmental effects of this use are assessed.
Furthermore, this temporary limit in use is expected to contain the
overcrowding situation that has developed on this stretch of the
Management Plan: The Service will prepare a Management Plan in the next two
years dealing exclusively with the recreational use of the scenic Niobrara
River as [**45] it flows through the Refuge. This Plan will be
prepared by the Service with the participation of all interested parties, such
as the National Park Service, the Niobrara Council, all River outfitters interested
in participating, and any city and county officials interested in being part of
this effort. The Plan will define acceptable use levels for weekdays and
weekends that meet legal mandates. Also, actions to be taken when uses exceed
threshold levels or negatively impact resources, and wilderness values will be
clearly defined.
[*1037] In the interim, River use will be capped at the 1998 levels
and the moratorium on new outfitters will continue. Weekend and weekday use
will be monitored along with habitat, wildlife, erosion, and social parameters
to determine threshold levels.
It is not the intention of the Service to obstruct the development of a
recreational and revenue-producing enterprise such as River use outfitting, but
rather to ensure that this use continues to be compatible with Refuge goals and
objectives and with the requirements of the Wild and Scenic River Act and the
Wilderness Act promulgated by Congress for the benefit of the American people.
The Service believes [**46] that the wise use of the River for
recreational purposes will, in the end, be beneficial, not only to wildlife,
but to the community as well. It is our belief that any decrease in use by
River floaters is caused more by a degrading "wilderness" and "wild
and scenic" experience caused by too many visitors at certain times of the
year, rather than by the Service's limits on Special Use Permits. Ensuring
visitors a wildlife-oriented as well as a wilderness experience when using the
River would also ensure a healthy tourist industry for the City of
While not presently documented on Fort Niobrara NWR riparian habitats along the
wild and scenic
(CCP, p.21 (emphasis in original).)
Despite this explanation by the Service, the plaintiffs make two related
arguments regarding the invalidity of the moratorium. First, they argue that
"there is no empirical evidence" to limit the [**48]
number of permit holders or to "grandfather" existing permit holders.
(Filing 17, Pls.'s
I, assume for the sake of argument, that 16 U.S.C. 668dd(k) applies to a CCP.
That [*1038] said, there are ample, although necessarily tentative,
facts found by the Service in the CCP to justify the moratorium. For example,
the CCP sets forth the following facts and factually based reason for the
temporary moratorium: (1) while canoeing is generally compatible with use of
the Refuge and the river, over a short period of time canoe usage increased
significantly (CCP, p. 8); (2) studies in other areas have shown that
"heavy recreation use of riparian areas" can have
"devastating" effects on nesting birds (CCP, p. 21); and (3) "as
a precautionary measure, [**49] " the Service decided to
"place limits on recreational use of [the river] until these effects can
be qualified and quantified." (
Given the documented evidence of rapidly increasing canoe usage and its
potential for "devastation" of nesting birds, it was entirely
reasonable for the Service to impose a moratorium. Answering the "how much
is too much" question is one of the most basic functions of the Service.
Allowing the status quo to be maintained but not expanded, while taking time to
get good science to answer this critical use question, was certainly not
arbitrary, capricious, an abuse of discretion or contrary to any law.
The Validity of the License Denial
The plaintiffs next attack the license denial. Condensed, their argument is
this: Even if the moratorium was valid, by 2003 river usage had significantly
declined and the river management plan (RMP) was long overdue; therefore, there
was no legitimate basis for denying a license to the plaintiffs since the plaintiffs'
usage would not have caused total river usage to exceed the usage cap set by
the CCP. I reject this challenge as well.
First, the fact that river usage may have declined by 2003 does
not [**50] demonstrate that the moratorium on new permits must be
disregarded by the Service. A plain reading of the CCP shows that the Service
allowed the status quo to be maintained until the science could be developed to
determine what usage levels were appropriate, but it clearly and reasonably did
not promote maintenance of the status quo. Bluntly put, the fact that 1998
usage levels could be tolerated did not mean that 1998 usage levels should be
promoted. The desire not to promote 1998 usage levels until the science was
completed was the obvious and justifiable reason for a moratorium on new
permits. Therefore, at least until the studies were done, there was nothing
improper about denying a license to a new user even though river usage by
former users had declined.
Second, the fact the RMP was long overdue at the time of the license denial is
troubling, but not reason enough to invalidate the decision. The undisputed
evidence reveals that the Service was pursing a peer-reviewed study before
deciding how to set river usage guidelines, and the undisputed evidence reveals
that the study is very near to being completed. Even though the Service imposed
a deadline on itself in this case, [**51] n10 courts typically do
not strictly enforce deadlines against administrative agencies like the Service
unless Congress requires strict enforcement. See, e.g., Newton County Wildlife
Ass'n v. United States Forest Serv., 113 F.3d 110, 112 (8th Cir. 1997) (the
failure of the Forest Service to meet a 3-year statutory deadline for a
comprehensive management plan in the Ozark National Forest did not entitle
environmental group to relief; "Absent specific statutory direction, an
agency's [*1039] failure to meet a mandatory time limit does not
void subsequent agency action.") (citations omitted). Congress has not mandated
strict enforcement of deadlines in circumstances like this. Since the Service
has provided sufficient and record-based reasons for the delay, at this point,
I cannot conclude that the delay has been unreasonable.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 And, the Service should be complimented for doing so. It should also strive
mightily to live up to its commitments.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The need for a good study, however, is not an open-ended
excuse [**52] for delay. That scientists and academics are
notoriously slow is well-known and the Service must necessarily do its work in
that real world, but at some point delay becomes actionable. That is, when
unreasonable, delay becomes arbitrary, capricious and an abuse of discretion.
This court's patience is not infinite.
Finally, I agree with the plaintiffs that Congress has specifically told the
Service that when it "determines that a proposed wildlife-dependent
recreational use is a compatible use within a refuge, that activity should be
facilitated ...." 16 U.S.C. § 668dd(a)(3)(D). When compatibility has been
established, this means canoeing must be facilitated. On the other hand, and in
the same statute, Congress has given the Service the power to control such
compatible uses by "restrictions or regulations" to the extent
"necessary, reasonable and appropriate."
There are stray references in the record which might indicate that the Service
is less than enthusiastic about recreational uses. For example, the CCP states
that "recreational use of Refuge lands must come second to wildlife
...." (CCP, p. [**53] 21.) I do not know what these words
mean. Taken literally, they could be read to ignore, or at least evidence an
important misunderstanding of, the first portion of the statutory directive of
16 U.S.C. § 668dd(a)(3)(D) regarding facilitating compatible recreational uses.
To be clear, when Congress tells the Service to facilitate compatible
recreational uses like canoeing, those activities must become an important
priority for the Service. n11
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 In this regard, the Service must read 16 U.S.C. § 460k in harmony with the
more recently enacted provisions of 16 U.S.C. § 668dd(a)(3)(D).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In summary, when the record is reviewed as a whole, I am satisfied, at least
for now, that the Service has properly understood and applied the statutory
language including its power to restrict and regulate compatible uses like
commercial canoeing. Although the delay in promulgation of a river management
plan is problematic, the license denial was not improper. [**54]
III. CONCLUSION
Although I have great empathy for the plaintiffs and their plight as they wait
for the government to do its duty, they have not proven that the Service
violated the law when it denied them a license to conduct their canoeing
business. Therefore,
IT IS ORDERED that judgment will be entered by separate document providing the
plaintiffs shall take nothing against the defendants, and this case is
dismissed with prejudice.
DATED this 19th day of August, 2003.
BY THE COURT:
s/ Richard G. Kopf
United States District Judge
JUDGMENT
Pursuant to the court's Memorandum and Order previously filed in this matter,
final judgment is entered in favor of the defendants and against the
plaintiffs, providing that the plaintiffs shall take nothing as against the
defendants and the plaintiffs' complaint is dismissed with prejudice.
DATED this 19th day of August, 2003.
BY THE COURT:
s/Richard G. Kopf
United States District Judge