The Fund for Animals v. Norton, CIV.A. 02-2367(EGS).

294 F.Supp.2d 92

THE FUND FOR ANIMALS, et al Plaintiffs, v. Gale NORTON, et al, Defendants, Greater Yellowstone Coalition, et al Plaintiffs, v. Gale Norton, et al, Defendants,

No. CIV.A. 02-2367(EGS).

United States District Court, District of Columbia.

December 16, 2003.

Order Denying Stay December 23, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Eric Robert Glitzenstein, Howard M. Crystal, Meyer & Glitzenstein, Washington, DC, Donald L. Honnold, Bozeman, MT, for Plaintiffs.

Lauren Beth Fischer, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

SULLIVAN, District Judge.

I. Introduction

Plaintiffs the Fund for Animals ("Fund") and the Greater Yellowstone Coalition ("Yellowstone Coalition") challenge the National Park Service's ("Service" or "NPS") administrative decision, codified in a 2003 Supplemental Environmental Impact Statement ("SEIS") and Record of Decision ("2003 ROD"),¹ to allow continued snowmobiling and trail grooming² in Yellowstone National Park, Grand Teton National Park, and the John D. Rockefeller, Jr. Memorial Parkway (collectively "Yellowstone" or "Parks"). Plaintiffs allege that snowmobiling and trail grooming cause air and noise pollution, threaten wildlife and endangered species, and create health threats to visitors and park employees. Given these adverse effects, plaintiffs argue that NPS's decision to allow the continuation of these winter activities belies the evidence collected during the rule-making process, thus violating the Administrative Procedure Act's ("APA") prohibition against decision-making that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (2003). Specifically challenged are the Service's failure to act with regard to Plaintiff Bluewater Network's January 1999 Rulemaking Petition seeking a ban on snowmobiling and trail grooming throughout the National Park System, and the Service's issuance of the 2003 SEIS and March 2003 ROD, which allow snowmobiling and trail grooming to continue.³ Pending before the Court are cross motions for summary judgment filed by all parties to the case.

Upon careful consideration of the motions, the responses and replies thereto, the oral arguments of counsel, the entire record herein, as well as the governing statutory and case law, and for the following reasons, it is by the Court hereby ordered as follows:

a) The March 25, 2003, Record of Decision; February 2003 Supplemental Environmental Impact Statement; and December 11, 2003, Final Rule are vacated and remanded to the National Park Service, U.S. Department of the Interior, for further proceedings not inconsistent with this Opinion;

b) The prior January 22, 2001, Final Rule, as modified by the November 18, 2002, Final Rule, shall remain in effect until further Order of the Court; and

c) The National Park Service shall respond to Bluewater Network's Rulemaking Petition by no later than February 17, 2004.

A. Parties

1. Plaintiffs

Plaintiff The Fund for Animals is a national non-profit membership organization "committed to preserving animal and plant species in their natural habitats, and to preventing the abuse and exploitation of both wild and domestic animals." Am. Compl. ¶ 7. The Fund brings this action on behalf of its members, and submitted briefs on behalf of organizational co-plaintiffs Bluewater Network ("Bluewater") and the Ecology Center, as well as individual plaintiffs Walt Farmer, George Wuerthner, Phillip Knight, and Richard Meis.

Plaintiff Greater Yellowstone Coalition is a "conservation organization dedicated to protecting and restoring the Greater Yellowstone ecosystem and the unique quality of life it sustains." Am. Compl. ¶ 18. The Yellowstone Coalition brings this action on behalf of its members, and submitted briefs on behalf of five other co-plaintiff non-profit organizations: the National Parks Conservation Association, The Wilderness Society, the Natural Resources Defense Council, the Winter Wildlands Alliance, and the Sierra Club.

The two groups of plaintiffs, represented separately by the Fund and the Yellowstone Coalition, seek different relief, and consequently have somewhat conflicting interests. The Fund ultimately seeks a cessation of trail grooming in the Parks. Greater Yellowstone seeks a gradual phase-out of snowmobile use in favor of mass transport snowcoach use; in essence, the implementation of the 2001 Final Rule, which did not call for an end to trail grooming. Snowcoach Rule, 66 Fed.Reg. 7,260 (Jan. 22, 2001). Thus, if the 2001 Rule is implemented, the Fund Plaintiffs will not obtain their desired relief because grooming will continue. Conversely, if trail grooming is enjoined, neither snowmobiles nor snowcoaches will be able to travel over the unpacked snow, thus making actual implementation of the 2001 snowcoach plan impossible.

2. Defendants

Secretary of the Interior Gale Norton, Director of the National Park Service Fran Mainella, Director of the Fish and Wildlife Service ("FWS") Steven Williams, and Director of the Intermountain Region of the National Park Service Karen Wade are sued in their official capacities, and are collectively referred to as the Federal Defendants.

The International Snowmobile Manufacturers Association, Inc. ("ISMA"), the BlueRibbon Coalition, Inc., and the State of Wyoming intervened as defendants pursuant to this Court's September 15, 2003, Order. The ISMA is an organization of snowmobile manufacturers whose purpose is promoting the growth of the snowmobiling industry and the snowmobiling sport, as well as providing information to its members, who are manufacturers of snowmobile parts. See ISMA and BlueRibbon Mot. to Intervene at 4-5. Blue Ribbon Coalition, Inc., is a non-profit organization representing over 1,000 businesses and organizations who have economic and commercial interests in snowmobile opportunities in the Parks; these members use snowmobiles to access the National Parks. Id. at 5-6.

B. Factual Background and Procedural History

In 1872, Congress established Yellowstone as the nation's first national park, setting aside over 2 million acres for the enjoyment of the public. The Grand Teton National Park was established in 1950, and the John D. Rockefeller Memorial Parkway established in 1972. The use of snowmobiles in the Parks was first permitted in 1963, and in 1968 park administrators, responding to growing concerns about the effects of snowmobiling on park resources, implemented the first official winter-use policy. In 1971, the NPS began grooming snow-covered roads to allow for safe passage by oversnow vehicles, and over the next three decades winter use, including snowmobile use, increased dramatically. Between 1983 and 1993, winter use doubled, increasing from 70,000 visitors per winter season to 140,000 visitors per season. National Park Service, Winter Use Plans Final Environmental Impact Statement at 15 (Oct.2000) ("2000 FEIS"), Administrative Record at 28,415 ("A.R."). Today, over 180 miles of Park roads are groomed at least every other night, and historical use demonstrates that as many as 1700 snowmobiles enter the Parks on peak days. Winter Use Proposed Rule, 68 Fed.Reg. 51,526, 51,533 (proposed August 27, 2003).

1. 1997 Litigation and Subsequent Rulemakings

Inevitably, a conflict arose between the NPS's mandate to protect Park resources and the accommodation of visitors' desires to view the parks via snowmobiles during the winter season. Of particular concern were the effects of trail grooming and snowmobiling on the Parks' wildlife, especially bison. During the winter of 1996-1997, Park officials documented that large numbers of bison left the Parks, some traveling along the manmade groomed trails created to facilitate oversnow vehicle use. As a consequence of this migration, over 1000 bison had to be killed to prevent the spread of brucellosis to livestock in areas outside of the Parks. 2000 FEIS at 16, A.R. 28416. In May of 1997, the Fund for Animals filed suit against the NPS, alleging that the Park's winter use plan, which permitted trail grooming and snowmobile use, violated the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA"). The Fund sought an injunction prohibiting snowmobiling and trail grooming until the Agency prepared an Environmental Impact Statement ("EIS") and consulted with the Fish and Wildlife Service ("FWS") about these activities' impacts on federally protected species.

A Settlement Agreement was reached and approved in 1997 ("1997 Settlement"). The 1997 Settlement provided that the Service would prepare an EIS "addressing a full range of all alternatives for all types of visitor winter use, including snowmobiling and trail grooming . . . and considering the effects of those alternatives on the Parks' environments," and then issue a ROD determining how the winter use policies would be changed. Id. ¶ 1. To obtain comparative data and information necessary for preparation of the EIS, the NPS agreed to prepare an environmental assessment ("EA"), and designate as the preferred alternative a proposal closing a trail segment during the 1997-98 winter and closing fourteen additional miles during the winters of 1998-99 and 1999-2000. Id. ¶ 6. The Park Service also agreed to prepare a Biological Assessment ("BA") detailing the impact of winter use on the grizzly bear and the gray wolf, and then request a "formal consultation" with the Fish and Wildlife Service.⁴ Id. ¶ 5. During the EIS preparation, activities under the existing winter use plan would continue. Id. ¶ 3. The Court approved the 1997 Settlement in October 1997.

Pursuant to the Settlement Agreement, in 1997 the NPS issued an EA proposing the closure of a groomed road segment, noting that experimental closures would provide more information about how trail grooming affects bison. See Environmental Assessment, Temporary...