What it takes the attorneys hundreds of pages to explain to the court,
you and I get to try in a page or two....
I guess we (neither of us being lawyers) are destined to try to
provide two different Cliff Notes versions for folks who aren’t able
to wade through the lengthy set of legal documents found either at
your web site or at gcpba.org But that still would be the best way to
grapple with this case – look at both arguments in their full glory.
(When I say "cite omitted" that means I left out the legal citation
that followed in the document, not that I left out any content at that
spot in the quote.)
Your assertion: “The court challenge of the plan did not include an
injunction to stop the implementation of the present plan.”
Fact: Here are two quotes from your original complaint, in the request
for court action (relief):
“Issue an injunction ordering the Park Service to prepare a new CRMP
and FEIS that remedies the violations of law articulated in this
complaint” (That would make the current CRMP inoperable – that it,
“Issue an injunction prohibiting the Park Service from acting and/or
requiring the Park Service to act, in such a manner as Plaintiffs may
request in briefing on this action”
The plain reading of your own case filing says it all. Fortunately,
this outcome becomes less and less likely as time passes, and the CRMP
is working so well. If you say now that you will not ask for any
changes in the current CRMP during any new planning process that might
be ordered, that’s encouraging. Is that your position?
Your assertion: Generally, that the current allocation unfairly favors
Fact: The Park has page after page of responsive information on this
in its filings. But as I see it, if citing summer figures is your
whole argument, it’s pretty weak. There are an increased number of
launches in the summer. The Spring and Fall launches are of great
interest to private boaters (see the lottery results). And virtually
all winter launches are taken as well. You can argue that this is
“leftovers”, but it’s not. People actually like to go in weather that
doesn’t involve blistering heat. I’ll spare our gentle readers the
lengthy statistical summaries and citations of the legal precedents
that also support what the Park did in the CRMP on this score.
Your assertion: “In the briefings filed August 3, 2007, the National
Park Service defense attorney admits “During the planning process, NPS
determined that assessing relative demand was neither feasible nor
Fact: Sure, that nice catchy phrase is in the document -- but in a
context that isn't very supportive of your argument. Remember, the
attorneys are arguing on what the law requires, not what the Park,
RRFW, or GCPBA might like. Instead of “cherry-picking” language (which
we both are very good at), let’s look at a little more complete
version of that section of the Park response:
“Nothing in the Organic Act requires that an allocation of limited
access to a resource be based on relative demand to satisfy any
"standards of fairness." During the planning process, NPS determined
that assessing relative demand was neither feasible nor necessary: In
January 2003 two expert panels were held and covered some of the
important and controversial subjects included in the Colorado River
Management Plan. The purpose of the panels was to provide the park
with input from academics, researchers, practitioners, and the like.
One of the questions asked to this panel of experts concerned what
could be done to determine relative demand for commercial versus
noncommercial trips. In short, the expert panel's response was that a
survey would probably cost around $2 million and be of limited use.
Therefore, instead of attempting to develop an allocation based on
relative demand, NPS looked at different allocations scenarios for
commercial and noncommercial uses in the various alternatives analyzed
in the FEIS, and "[e]ach of these scenarios was analyzed for its
potential to have environmental consequences and for its potential to
balance use and resource preservation."”
“Plaintiffs complain that NPS's "split allocation" system favors "use
by commercial concessionaires at use levels that interfere with free
access to the river by the public." (cite omitted) The Ninth Circuit
has already rejected this premise. (cite omitted)”
Your assertion: You believe continuation of motorized tour boats and
helicopter use will cause, and continue to cause, adverse impacts and
impairment to the wilderness character of the Canyon.
Fact: If that’s the case – and this is a pretty fundamental problem
for you -- why did RRFW argue elsewhere in their case that the
"Colorado River qualifies as potential wilderness because transient
motorboat use can be phased out." (cite omitted) Can’t have it both ways...
I also have to comment briefly on your mentioning the "lightning"
clause as well. Ridiculing analogies -- rather than quoting facts and
regulatory/legal precedents for what you argue -- is an interesting
So it would seem that there are lots of different facts in this case.
Not all of them support your view, Tom.
Have a good one.