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.
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