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Old 02-12-2010   #1
Tom Martin's Avatar
Flagstaff, Arizona
Join Date: Dec 2004
Posts: 818
RRFW Riverwire – Court Issues Second Decision in Grand Canyon Appeal

RRFW Riverwire – Court Issues Second Decision in Grand Canyon Appeal
February 12, 2010

In an opinion released Monday, February 1, 2010 on the legality of the
2006 Colorado River Management plan (CRMP), the 9th District Court of
Appeals in San Francisco issued an original opinion and replaced their
previous opinion in support of the lower Arizona District Court.

In the case, attorneys for River Runners for Wilderness, Rock the Earth,
Living Rivers and Wilderness Watch argued that the Park is legally
compelled to follow its own policies and therefore the existence of
motorized boats and helicopters for recreation is illegal in the potential
wilderness of Grand Canyon National Park. The groups also argued the
allocation of use between river concessions and the general public is
arbitrary and inequitable.

The groups argued the 2006 Management Plan is "arbitrary and capricious"
under the Administrative Procedure Act (APA), because it violates the Park
Service's own policies, including the National Park Service’s obligation
to provide equitable river access and protect the river as potential

The 9th Circuit Court noted that the Park Service can "waive or modify"
its own policies and the National Park policies "are not enforceable
against the Park Service in this action".

The court ruled that National Park Service (NPS) “policies do not
prescribe substantive rules, nor were they promulgated in conformance with
the procedures of the APA," the panel wrote. "The court therefore may not
set aside the 2006 management plan because it fails to comply with
portions of the 2001 policies requiring the Park Service to treat the
Colorado River Corridor as wilderness or potential wilderness."

While the Court found that the NPS river plan did “not contain a specific
discussion of the amount of motorized traffic found necessary and
appropriate for public use and enjoyment of the Corridor” the Court “will
uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.”

Marc Ross, President of the non-profit Rock the Earth, notes “While we’re
grateful that the 9th Circuit took the time to further clarify their
decision and correct the overreaching by the District Court of Arizona,
we're disappointed with the ultimate decision to not provide greater
protection or provide more equitable access to the public to such a
special place as the Grand Canyon.”

“It is our intent to continue to fight for wilderness protection of the
Grand Canyon and Colorado River corridor” noted Ross, “including the total
elimination of motors in the canyon, as has been repeatedly recommended by
the National Park Service.”

The groups deeply appreciate the encouragement and financial support of
their members, and would like to thank the thirteen organizations who
weighed in with Amicus assistance for the case.

River Runners for Wilderness, Rock the Earth, Living Rivers and Wilderness
Watch would like to express their appreciation and thanks for the legal
work on this case by Julia Olson of Wild Earth Advocates, and Matt Bishop
of Western Environmental Law Center.

John Weisheit, Conservation Director for Living Rivers, noted “Even though
the courts chose not to intervene, it is still clear there is no
convincing reason to continue motorized tour boat activity and no reason
whatsoever to maintain the present imbalance in access to the river in
Grand Canyon National Park.”

The February 1, 2010 opinion can be seen at http://www.rrfw.org/documents

George Nickas, Director of the Montana based Wilderness Watch, stated “The
court's decision places the burden of protecting wilderness in the Grand
Canyon squarely on the shoulders of the National Park Service.
Unfortunately, the NPS has consistently shown that it isn't up to the

The plaintiff groups will not appeal the latest decision, according to
RRFW Co-Director, Tom Martin.

Intervening in the case in support of motorized use and the allocation
system favoring concessionaire summertime interests were the Grand Canyon
River Outfitters Trade Association and the Grand Canyon Private Boaters
Association. A joint agreement signed by the Trade and Private Boaters
Associations in 2005 compels them to defend present concessionaire
operations despite the inequitable access and wilderness resource-damaging
nature of the river management plan.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~~~
RIVERWIRE is a free service to the community of river lovers from River
Runners for Wilderness. To join, send an e-mail address to
riverwire@rrfw.org and we'll add it to the RRFW RIVERWIRE e-mail alerts

Join RRFW's listserver to stay abreast of and participate in the latest
river issues. It's as easy as sending a blank e-mail to

Check out RRFW's Rafting Grand Canyon Wiki for free information on
Do-It-Yourself Grand Canyon rafting info

Check out new items and donate at the RRFW Store! RRFW is a non-profit
project of Living Rivers.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ~~~

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Old 02-13-2010   #2
Join Date: Feb 2005
Posts: 883
Cliff Notes Version of RRFW Press Release

Hi Tom,

An interesting press release -- one that fully proves the old adage that the longer and more elaborate the spin, the worse the problem is you're trying to explain away.

For folks who can't take the time to read all the prime documents, I'll try for the Cliff Notes version:

* RRFW lost. Lost big. Then lost bigger.

* The facts RRFW presented weren't persuasive to any of the judges.

* The legal precedents RRFW cited didn't apply, and its tactics didn't work.

* When RRFW doubled down on its appeal, it managed to get an even more legally powerful refutation of its position.

Notwithstanding all the fine quotes from your allies, one might reasonably speculate that major segments of the environmental community are pretty upset over this outcome. They now will have to deal with an even more elaborate and forceful appellate court precedent supporting agency discretion. That can't be viewed positively, no matter how it's depicted.

Put directly, RRFW's short-term tactical pursuit of its anti-commercial, anti-motor goals, has made future strategic battles against legitimately objectionable policies far harder.

Which takes me back to where many folks have been all along. This was never the way to pursue the issues of wilderness and motors on the river in the Grand Canyon. It's always been a legislative matter. Unless and until RRFW (and others, presumably) successfully musters a full court press with Congress, the current status will not change.


Rich Phillips

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Old 02-13-2010   #3
Tom Martin's Avatar
Flagstaff, Arizona
Join Date: Dec 2004
Posts: 818
GCPBA sinks paddlers hope of access to Grand Canyon

Hi Rich, while I appreciate your views on this issue, others don't see it as you do at all. The litigation decission gives the Agency leniency in planning. That said, all paddlers should take note that the commercialization and motorization of the Colorado River in Grand Canyon National Park is 100% supported by the Grand Canyon Private Boaters Association. The failure of this litigation is in part a direct outcome of the GCPBA interviening in the litigation against wilderness resource protection and equitable sumertime access to the river. Thanks for your thoughts Rich, have a great day, yours, tom
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Old 02-13-2010   #4
Andy H.'s Avatar
Wheat Ridge, Colorado
Paddling Since: 1995
Join Date: Oct 2003
Posts: 2,911

Your statements about the Grand Canyon Private Boaters Association (GCPBA) are misleading. In saying "GCPBA sinks paddlers hope of access to Grand Canyon" and that "the commercialization and motorization of the Colorado River in Grand Canyon National Park is 100% supported by the Grand Canyon Private Boaters Association" you conveniently omit the following:

1) the GCPBA has greatly increased access and

2) as a signatory to the new Colorado River Management Plan (CRMP) the GCPBA cannot legally oppose the current plan or the allocations granted under it.

There were negotiations and neither side was perfectly happy with the outcome. They shook hands, walked away and now live with, and are required to support, the current CRMP.

Despite your life-long history dealing with Grand Canyon (GC) access issues you continue to ignore the fact that if the "no motors" stance had been adopted by GCPBA and AW, the outfitters never would have come to the table. If the outfitters had not come to the table, there would have likely been no new CRMP, and private boaters would be in the same place we were 10 years ago, if not in a diminished position due to the political clout of the outfitters and other GC concessionaires.

Here's the bottom line for me:

I finally got on the Grand last March. It seems a lot more folks that have been down the Canyon since the CRMP was implemented than were going before. I was invited by permit-holding friends to go on two different trips this spring, during non-motor season, and I could conceivably go again next fall if things work out for me.

From what I can see, the new CRMP is not perfect but it has significantly increased access to the GC for private boaters.

You write great guidebooks, are doubtless a skilled boatman, and I hope you are able to spend the rest of your days enjoying Western rivers.

Please don't insult the intelligence of the boating community with your forced congeniality and misleading statements.
Nothing in the world is more yielding and gentle than water. Yet it has no equal for conquering the resistant and tough. The flexible can overcome the unbending; the soft can overcome the hard. - Lao Tse
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Old 02-13-2010   #5
Tom Martin's Avatar
Flagstaff, Arizona
Join Date: Dec 2004
Posts: 818
Hi Andy, while I appreciate your thoughts and am glad you personally are getting invited to participate in Grand Canyon river trips, that is a far cry from getting your own permit. We will agree to disagree on what could have happened had the GCPBA not sold out.

The river outfitters trade association themselves admitted they would have to accept big changes on the river they would not like unless they could get get a small group of consituents together to agree to what the river concessionaires wanted. See


for supporting documentation.

We do not know what would have happened if the GCPBA had not entered into a ten year agreement with the river concessionaires. You and a lot more do it yourself river runners may have had even better access to the summertime river experience.

You can see the agreement here:

http://www.gcpba.org/index.php?option=com_content&task=view&id=50&Itemi d=28

Finally, we don't know what would have happened had the GCPBA not intervened in the recent litigation seeking better self guided access to a wilderness river in Grand Canyon National Park.

Finally, I saw a great quote today you might ponder...

"Great minds discuss ideas. Average minds discuss events. Small minds discuss people."

All the best, tom
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Old 02-14-2010   #6
Andy H.'s Avatar
Wheat Ridge, Colorado
Paddling Since: 1995
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Posts: 2,911
Nice zinger, Tom.

Here are some ideas for you:

The CRMP negotiated by GCPBA and AW increased annual GC private boater user day allocation from about 58,000 to about 113,400 user days, and private trips increased from about 250 to about 500 trips yearly. The commercial outfitters' allocation remained about constant. The idea here is that nearly twice as many user days and trips are available to private boaters now, thanks largely to the efforts of the GCPBA and AW.

For the private boating community to clearly understand the ideas and concepts about how the situation played out, they should know the truth about the situation. The idea here is that statements such as "GCPBA sinks paddlers hope of access to Grand Canyon" mislead the boating community by the sensationalist implication that private boaters' GC allocation is being diminished due to the failure of RRFW's lawsuit. Private boaters have exactly the same number of user days and launches in the Grand Canyon as we did before the RRFW lawsuit was decided.

The judges deciding RRFW's suit did not agree with a single charge made by RRFW. The idea here is that stating RRFW's failure in the case is due to the GCPBA's intervention seems a bit far-fetched.

A victory for RRFW could have caused the current CRMP to be thrown out and the process started all over again. The idea here is that in a renegotiation of the CRMP, there is no guarantee that the additional private boaters' allocation gained under the CRMP would have been preserved for private boaters, much less expanded into the outfitter's prime season. This is especially true considering that private boaters have not been using their full allocation of launches gained under the CRMP.

In the eyes of potential adversaries at the negotiating table when the CRMP comes up for its 10-year review, the RRFW lawsuit makes the entire private boating community appear fractured and incoherent at best. At worst, we appear incompetent and unwilling to abide by an agreement in which we are widely perceived as the big winners by nearly doubling our user day and launch allocation. The idea here is that RRFW's lawsuit and dogged antagonism of the GCPBA for "selling out" weakens the chances of success in future negotiations for private boaters.

When the CRMP comes up for its 10-year review, if the private boaters' allocation is challanged by the opposing parties the private boating community will likely need to be well organized and able to commit significant resources to the effort. The idea here is that RRFW's bitter contentiousness and misrepresentation of its minority constituency's chances for success distracts the community, drains our financial and energetic resources, and poisons goodwill among the boating community.

Nothing in the world is more yielding and gentle than water. Yet it has no equal for conquering the resistant and tough. The flexible can overcome the unbending; the soft can overcome the hard. - Lao Tse
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Old 02-14-2010   #7
Join Date: Feb 2005
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Hard to Improve on What Andy Has Been Saying


The subtitle says it all. But I would add a couple of things to clarify....

GCPBA is not a signator to the CRMP itself, which is a stand-alone government document. GCPBA was party to a four-way submission to the Park, which contained core elements of the compromise that allowed the CRMP to be finalized. In a separate agreement, it pledged -- along with the other submitting parties -- to support the CRMP and not squabble with each other about the CRMP's terms.

And also, nothing GCPBA ever signed on to required it to defend against the RRFW lawsuit. GCPBA did so because it thought the CRMP represented a reasonable advance of private boater interests, and provided a foundation for further, calibrated improvements over time.

So... Instead of a 3-page decision with the lower court ruling as an appendix, RRFW managed to inspire the Ninth Circuit to issue 35 pages of a ruling that strengthened land management agencies in their future discretion. Tom will go a long way to avoid letting people thinking about it in these terms. But RRFW’s persistence in twice pressing a bad set of facts and inapplicable law all the way to the Appeals Court, means that future challenges to government action are going to be more difficult.

It's not GCPBA's fault that he didn't properly anticipate the consequences of the Government prevailing, or that GCPBA would defend a plan it helped originate, or how dangerous it was to twice appeal a lower court decision that so clearly showed his lawsuit was baseless.

Sorry for not being able to adequately explain this more succinctly. And again, I'm writing as a former GCPBA board member, and my views expressed here are not intended to represent those of GCPBA or its Board.

Hope this helps a bit in understanding the background of this important case. Best to you all.

Rich Phillips

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Old 02-14-2010   #8
Westminster, Colorado
Paddling Since: 1999
Join Date: May 2006
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It would be great to have no motors, but that's what people have time for, and having more people see the canyon is what protects it. On my trip last summer, we got buzzed by a couple pontoon rigs but they motored past and were out of our hair shortly. Compare that with the political voice of thousands of people who had the trip of a lifetime on a J-rig or S-rig or whatever and I'll take the relative minimal impact of a 4-stroke outboard.

I would love to see RRFW put the same effort and intensity into getting the Green River through Deso designated wilderness - the relative impact would be far greater than a river that is already in a National Park.
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Old 02-14-2010   #9
Tom Martin's Avatar
Flagstaff, Arizona
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50-50? Please...

Hi Andy, while the GCPBA and river concessionaires trade association and AW all said it's 50-50, it's not any such thing...

The 2006 CRMP allows about 14,385 concessions passengers in the summer months and 2,270 do-it-yourselfers in the same summer months. That's not 50-50.

That's 476 commercial launches of up to 32 people compaired to 123 trips of 16 folks or less and 62 trips of 8 folks or less. That's not 50-50 either.

In the winter, when there are no concessions passengers, there are roughly 1,855 do-it-yourself river runners on 120 river trips.

Cites above 2006 ROD pg 3

This 50-50 is like saying we'll get the middle of the road and you get the shoulders. Or, we'll take the top of the cake with the icing, you get the bottom.

Yes, the river concessions knew full well they would fracture the boating community with the agreement. Did you read the agreement? I'll post the link again. Do you think going after your organizations members who do not support the plan helps the boating comminity?

To quote the agreement: "The Parties will use their best efforts to discourage their respective members from engaging in any activities that would, if undertaken by the Parties, be inconsistent with the Joint Recommendations and the terms of this Agreement."

Here's the link:

http://www.gcpba.org/index.php?optio...ew&id=50&Itemi d=28

Yes, this has split the boating community, just as we said it would when we first accidentally heard about it and let GCPBA memebrs know about it. Remember, the GCPBA never announced the agreement to thier members. To say this split in the river community is RRFW's fault is missing the point, like saying the numbers above are 50-50.

Rich seems to think the National Park would not have come up with a plan if the GCPBA had not made an agreement with the Trade Association. That's rediculous. Remember, the NPS wanted to start changing allocation based on real people wanting real launches, but that was dropped after the agrement came out.

Rich and I disagree on this as well. The 9th Circuit decission, while still unfortunate, was actually much better than the District Court's even worse decission.

We will have to move forward on this issue, but the GCPBA is in a ten year holding pattern now, while the rest of us try to move the issues inequitable access to and motorization of the Grand Canyon forward. THE Grand Canyon, of all places, deserves much better.

Yours, Tom
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Old 02-14-2010   #10
Chip's Avatar
SE, Wyoming
Paddling Since: 1986
Join Date: Apr 2007
Posts: 1,098
Originally Posted by asleep.at.the.oars View Post
It would be great to have no motors, but that's what people have time for, and having more people see the canyon is what protects it.
So the ugly bulldozed heliport and the noisy back-to-back flights hauling the commercial dudes out are protecting the Canyon?

Pretzel logic, at best.

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