How federal agencies describe their authority, in the Code of Federal Regulations and the National Park Service administrative rules, is subordinate to how the U.S. Supreme Court describes it. Broad-sounding language written by the agencies themselves cannot lawfully extend their authority beyond what is allowed by Supreme Court decisions. Since the beginnings of our nation, the Supreme Court has confirmed that rivers are permanently held in trust for the public, and cannot be closed by the owners or managers of the surrounding land. The most recent Supreme Court decision on the subject confirmed public rights to navigate noncommercially on western rivers despite the objections of the agency managing the surrounding land, the Department of the Interior, of which the Park Service is a part. (Montana v. United States,
450 U.S. 544, 1981.)
Of course there can be exceptions to this principle. Federal courts have upheld agency closures or restrictions if they have a “rational basis.” However, they cannot be “arbitrary or capricious.” There has to be some rational, tangible, on-the-ground reason for the closure or restriction, and on rivers it has to be substantial enough to override
the long-standing public right to navigate, as confirmed by the Supreme Court. It can involve public health, safety, environmental damage, or some other rational, tangible reason (safety and environment are not the only two possibilities.) However, it can’t be an irrational, absurd, despotic decision. The Department of the Interior claimed that the recent closure of the Lee’s Ferry put-in was necessary due to funding cuts, which was absurd because it cost more to post armed rangers to barricade the put-in than it would have cost to furlough the rangers and let people go down the river normally (which was what the same Department of the Interior, through the B.L.M., did further upstream in Desolation Canyon.) The closure was “vindictive shutdown theater,” as the National Review
called such closures, so it was “arbitrary and capricious” and therefore unlawful. Our original “open letter” briefly explained this unlawfulness. We stand by that.
Now that the government shutdown is over, it makes sense to turn to the legality of the long-term “partial closure” to noncommercial navigation that the Park Service has enforced since 1973. Since the Grand Canyon is a long trip through a remote canyon with limited camping space along the way, it necessarily involves people making advance reservations for the limited space on the river. Congress has confirmed that the Park Service cannot make people pay concessionaires in order to gain access in a timely manner. (16 U.S.C. Chapter 1, Subchapter I, section 3, regarding limits on grants to concessionaires.) Likewise, Supreme Court decisions confirm that the government cannot make people pay businesses for the right to navigate down navigable rivers. (Numerous cases cited in Public Rights on Rivers.
) Consequently, public rights to gain timely access to the river through the Grand Canyon without paying businesses are doubly protected by federal law.
When competent noncommercial river runners apply to reserve space on the river, the Park Service cannot deny their request unless there is some rational and lawful reason for doing so. If the space is already filled up at that time, with confirmed reservations previously made by other specific people, that’s a rational and lawful reason. If there is still vacant space on the river (either vacant space allocated to commercial operators or vacant space on the river generally) there is no rational and lawful reason to deny their request.
Park Service officials may claim that their authority to withhold vacant space from noncommercial applicants was confirmed by federal courts in the Wilderness Public Rights Fund lawsuit in the late 1970s, or the more recent River Runners for Wilderness lawsuit. Both of those lawsuits claimed that the law requires the Park Service to do a demand study and adjust allocations accordingly. The law does not require a demand study, but it does require the Park Service to release vacant space to competent noncommercial applicants. Regarding how soon
the Park Service must release space, since the commercial rafts are stored away and the guides have other jobs from about November to April each year, there is no “rational basis” for refusing to release vacant space to noncommercial applicants annually during that time. It would be “arbitrary,” and therefore unlawful, to not do so.
The National Organization for Rivers (NOR) is preparing handouts and posters to educate noncommercial river runners accordingly, and advise them on how to actually reserve the vacant space that they are lawfully entitled to reserve.
The handouts and posters that are available so far talk about public rights on rivers generally. You can see them at nationalrivers.org.
Supreme Court decisions are written so that the public can understand them and apply them. However, the Supreme Court is wasting ink and paper if you and I only consider what the Department of the Interior says about its own authority, rather than looking at what the Supreme Court says about it. After reading the Acts of Congress and Supreme Court decisions cited in NOR materials, if you still think NOR is overreaching or overselling, please cite the specific passage in NOR materials that you think is overreaching or overselling, and send a message showing how you would re-word it to email@example.com
. Thank you. Best wishes. – Eric Leaper.