RRFW Riverwire – Grand Canyon Litigation Update

[Tom Martin]

RRFW Riverwire – Grand Canyon Litigation Update
August 19, 2007

The National Park Service has met the August 3, 2007 court ordered deadline to submit a response in a legal challenge of the Colorado River Management Plan in Grand Canyon National Park.

The groups challenging the park's river plan include the non-profit River Runners for Wilderness, Wilderness Watch, Rock the Earth and Living Rivers, who filed the lawsuitjust days after the Plan was finalized in March, 2006.

The litigation challenges the present inequitable allocation and lack of wilderness protection for the Colorado River in Grand Canyon.

The court challenge of the plan did not include an injunction to stop the implementation of the present plan.

Two groups, the Grand Canyon River Outfitters Trade Association and the Grand Canyon Private Boaters Association, intervened against the litigation.

The river plan was last updated eighteen years ago in 1989, with only incremental changes applied at that time.

In the initial challenge, the coalition’s lawsuit stated the Colorado River Plan inequitably allocates “use on the Colorado River between private commercial concessionaires and non-commercial users.”

The new Colorado River Management Plan allows 2,270 self guided passengers on 185 river trips to access the river in the primary summer season. During the same time period, the concessionaires are allowed 14,385 concessions passengers on 476 river trips.

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 necessary”.

The litigation also challenges the new plan’s continuation of motorized tour boats and helicopter use, “at levels that have caused, and continue to cause, adverse impacts and impairment to the wilderness character and natural resources of the Colorado River corridor.”

In the wilderness component of the briefings filed August 3, 2007, the National Park Service defense attorney equates motorized tour boats traveling through the Canyon to a temporary flash of lightning, noting that to argue motorized tour boats impact wilderness character “is akin to (and as illogical as) asserting that a lightning flash is a permanent disturbance of the darkness of the night sky for the moment it is visible.”

The coalition will have until September 3, 2007, to submit a reply to the just-released documents. The National Park Service will then be allowed to submit a counter reply by October 3, 2007, with the judge’s ruling to come this winter.

River Runners for wilderness legal representation is being provided by Julia Olson of Wild Earth Advocates and Matthew Bishop of the Western Environmental Law Center.

The documents filed August 3, 2007, along with all earlier court documents filed in this case, have been posted as PDF documents on the River Runners for Wilderness web site. You can read the documents at:

http://www.rrfw.org/crmp.php

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[richp]

Hi Tom,

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,
stop it.)

and,

“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
commercial operations.

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
necessary.””

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."”

Also.

“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
persuasive technique.

***

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.

Rich Phillips
VP, GCPBA
gcpba.org
http://groups.yahoo.com/group/gcpba/messages

[Tom Martin]

Hi Rich, thanks for your post.

As the litigation is in progress, all you and I have to go on is the Administrative record and the papers submitted to the court at this time.

Your arguments simply do not discount statements of fact.

It's clear that you think the new plan is working. The lottery losers, the folks who can't afford a concessions trip, the folks missing adequate trip lengths and loss of wilderness values, the folks noticing increased motorized watercraft on the river and increased crowding at attraction sites, the folks seeing increased campsite competition and increased on-river negative interactions, will judge for themselves if the new plan is working or not.

As to your final two questions, I would refer you to the www.rrfw.org web site for organizational goals and structure, and also mention that the Judge has agreed to look at the merits of the case first, and the remedy phase of the litigation second. To discuss remedies at this time without looking at the answers to the merits questions would be most premature.

Have a great day, Yours, Tom

Tom Martin, Co-Director
River Runners For Wilderness
Arizona Field Office
PO Box 30821, Flagstaff, AZ 86003
928-556-0742 FLG, 928-638-4053 Grand Canyon
tommartin@rrfw.org tomhazel@grand-canyon.az.us
www.RRFW.org

[richp]

Hi Tom,

You're right, the Court will sort it all out. But if you can't compete in the arena of ideas here, that says something to people. And you haven't explained a single thing about the points I raised in that last post.

Moreover, I can't believe -- and I don't believe others for a minute think -- you don't have some remedial options developed and ready to go. Just can't bring yourself to tell people what your real objectives are for fear it might lose you support?

Best to you.

Rich Phillips
VP, GCPBA
gcpba.org

[Tom Martin]

Hi Rich, thanks for your note. Sorry, but you continue to claim we have done things we clearly haven't.

As to remedies, with guidance from the court, we look forward to working with a broad range of stakeholders including you, the NPS and the river concessions to define what that range will look like. Again, to do so at this time would be premature.

Till then, it looks like you are out to do exactly what the memorandum with the Outfitters Trade Association requires you to do. What does it say? Oh, yeah:

"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."

Best to you too,

Tom Martin, GCPBA member and glad i don't pay dues anymore.

[caverdan]

Looks like you tied your own hands when you signed that deal, Rich. Some how we need to fair up the access with these ultra rich concessionaires. It will be interesting to see how this lawsuit plays out. I hope this agreement ends before you start your next round of talks with the parks service in....how many years??.

In the mean time we need to keep track of just how many people these outfitters are putting down the river each day in relation to how many they are allowed. Are they filling all their trips? Are they counting all the people they are putting in their boats.......including the guides?

This whole user day thing needs to be revamped also. How can 32 commercial boaters impact a campsite the same as 16 private boaters? Sounds like twice the impact to me.

[richp]

Hi Tom,

It amazes me that you don't see what people must think when you consistently decline to respond crisply and clearly to questions about RRFW's activities.

You very clearly have a vision for the Canyon. You also must have an accompanying vision for what private boater access would look like in that context. Tell people what it is.

Vague generalities won't impress anyone -- and that's all you provide. Tell folks exactly what you would propose for an access system for the Grand Canyon.

One of your close adherents just posted on your list that, "the issue is
outfitter operations and they need to be severely curtailed". If that's so, don't you need to be a little more upfront about it?

Have a good day.

Rich Phillips
VP, GCPBA

Join Grand Canyon Private Boaters Association at Grand Canyon Private Boaters Association
Click on "Join", and support active, ongoing private boater
representation on Grand Canyon issues. And follow GC issues on
http://groups.yahoo.com/group/gcpba/messages

[richp]

Hi Caverdan,

Thanks for chiming in.

GCPBA didn't sign away its ability to advocate on behalf of private boaters. If this belief is based on a general view of what the "secret agreement" says, then it's wrong. In fact, since I don't believe most readers here have ever seen this much-maligned agreement, here is what GCPBA -- and the outfitters -- committed to do.

***

1. Jointly advocating changes now (RP Note - at the time it was released in 2005) widely available for review, which were considered by the NPS is compiling the FEIS.

2. Doing their best to support those joint recommendations in various ways, and to confer with each other on those efforts.

3. Making a joint public announcement regarding their cooperative efforts, on January 25, 2005.

4. Not advocating for the elimination of motorized GC boating or for wilderness status for the GC river corridor.

5. Not engaging in efforts to interfere with the NPS with respect to renewal of river concession contracts.

6. Discouraging members from engaging in activities inconsistent with the joint submission to the NPS or the agreement itself.

7. Agreeing that the agreement itself would become inoperative if the NPS did not adopt the joint submission in meaningful part, while in that event calling for a renewed collaborative approach to achieving the goals of the joint recommendations and the agreement.

8. Providing a ten-year term for the agreement, to offer the prospect of stability in relationships within the group and with the NPS.

***

The initial term of the agreement was 10 years. More than two and a half years have passed, and when the next CRMP planning process begins, the entire arrangement can be re-visited by the parties. But in the meantime, as it say, it provides stability among key players -- something the Park needed to break what historically had been an unbreakable logjam on river access.

This "discouraging members" thing sticks in some folks' craw. But if you think about it, any organization with integrity is going to do that when it signs an agreement like this. These were historically antagonistic parties who were agreeing to do things that involved compromises they weren't completely happy with. They had to be assured that the other side was not going to slide around behind their back and have members do things to torpedo the up-front agreement. Side-bar agreements like this are done all the time in negotiations of this type.

Note the outfitters are equally limited from attacking the gains private boaters obtained in the CRMP. And not a word in there about not advocating for constituent interests, other than motors, concession contracts, and wilderness for the river corridor.

Yes, if you want to work fervently against motors and concessions, or for wilderness on the river in GC for the next few years, GCPBA won't be the vehicle to do that. But we don't claim those as our primary goals in any case. Maybe some day. But that's not what our repeated surveys tell us the members want.

And the facts show that we advocate quite a bit. GCPBA continues to directly meet and correspond with Park officials to work on CRMP issues. Board members attend various planning and constituent meetings. The Board has met with representatives of the Hualapai tribe to discuss issues
of mutual concern. We widely correspond with others in the river community. All in behalf of GC access for private boaters.

Now on the other issues you raised.

The Park tracks launches and user-days for both commercial and private trips. I meet regularly with the personnel who do that at the management level, and we cover this ground in each meeting. Stay tuned for a report on my upcoming meeting in a couple of weeks.

The group size differential is something of a different matter. The science employed in monitoring the CRMP includes an ongoing inventory of beaches, and their size and condition. As they change, the Park has the option to do various things, which I suppose could include dropping commercial group size. But the CRMP already did that to some extent, by reducing total trip sizes and including guides in the totals, which was not the case before.

I actually have a somewhat different take on this. Unless Glen Canyon Dam operations change dramatically and silt loads are increased by a significant margin, there won't be enough big beaches left in another decade to ensure you can get a 30+ person trip a decent camp every night.

Here's the irony of Tom's position -- such as one can discern it. The CRMP reduced the length of the motor season, reduced the size of commercial trips, and reduced the number of commercial launches. All those things should be seen as positive developments in his arena. But instead, he's let pursuit of the perfect be the enemy of the good, and challenged the entire CRMP.

In any event, I hope this helps explain things a little more.

Have a good one.

Rich Phillips
VP, GCPBA

Join Grand Canyon Private Boaters Association at Grand Canyon Private Boaters Association
Click on "Join", and support active, ongoing private boater
representation on Grand Canyon issues. And follow GC issues on
http://groups.yahoo.com/group/gcpba/messages