*2 BREYER, Before BOWNES CAFFREY,* Judges, and Senior Circuit Judge. District CAFFREY, Judge. District Senior Foundation The Conservation Law (“CLF”) England, appeals from Inc. New ruling upholding the court’s the district validity of National Park Service’s Plan”). (“the 1985 Management Plan restricted use Plan allows for the * Massachusetts, desig- sitting by nation. Of the District of (“ORVs”)1 Cape volumes,
off-road vehicles
on the
and documented certain adverse
(“the Seashore”).
Cod National
resulting
effects
from ORV trav-
CLF contends that ORV use under the 1985 el on the Seashore.3
Plan violates the
Cod National Sea-
response
findings
Act,
seq.,
shore
16 U.S.C.
459b et
§§
U.Mass.Study, the National Park Service
Executive Order
which deals with
promulgated
(“the
regulations
new
*3
ORV use on
lands. We affirm the Plan”) restricting ORV use on the Seas
ruling.
district court’s
Plan,
hore.4 Under the 1981
all tidal flats
and salt marshes were closed to ORV trav
I. FACTS AND PRIOR PROCEED-
upland
el. All
areas and dune trails were
INGS
closed, except
also
for an access route to be
Congress
Cape
enacted the
Cod National
used
cottage
commercial dune taxis and
(“the
Act”)
Seashore Act
residents,
emergency bypass
and an
route.
establishing
part
the Seashore as
of the
significant
Other
restrictions were also cre
System.
National Park
The Seashore in-
ated. Following adoption
of the 1981
bayside
cludes 48 miles of ocean front and
ORV travel on the Seashore decreased cons
beaches, encompassing land and water
iderably.5
Chatham, Orleans,
within the towns of
CLF filed this
seeking
enjoin
suit
im-
Eastham, Wellfleet, Truro, and Province- plementation
Plan, naming
of the 1981
town. The National Park Service main-
Interior,
defendants
Secretary
of the
provides
tains six Seashore beaches and
the director of
Service,
the National Park
facilities for a number of other recreational
Acting Regional
Director of the Nation-
activities, including boating, fishing, bicy-
Service,
al Park
Superintendant
and the
cling,
riding.
and horseback
Cod National Seashore.6 CLF
At the time the Seashore Act was enact-
argued that
the 1981 Plan would cause
ed, limited ORV use existed on the Sea-
significant damage to the
ecosys-
coastal
began
shore. The National Park Service
tem
impermissible
and
conflicts between
regulate
such use in
as the Seashore ORV travel and other recreational activities
started to
major
become one of the
Seashore,
ORV on the
in violation of the Sea-
England.
recreational areas in
By
New
shore Act and Executive Order 11644. The
1974,many miles of ORV trails covered the
district
request
court denied CLF’s
for in-
In
year,
junctive relief,
the Park Service
but remanded the 1981 Plan
contracted
University
Secretary
Massa-
findings
for additional
re-
(“the
study
chusetts to conduct a
garding
U.Mass.
whether in
pro-
relation to other
Study”) on the effects of ORV use on the
tected uses of the Seashore ORV use meets
ecosystems.2
Seashore’s
The results of the
“appropriate
definition of
public use”
five-year study
published
were
in thirteen
as set forth in the Act.7 Conservation
1. The term "off-road vehicles” refers
permits
to vehicles
5. ORV use
issued
the National Park
capable
cross-country
that are
dropped
during
travel over
year
Service
26%
the first
under
jeeps,
bug-
natural terrain. These include
dune
dropped
the 1981
by
an additional 11%
gies,
and other four-wheel drive vehicles.
1984.
6. The
Society
Massachusetts Audobon
and the
2. Scientists with the National Park Service Co-
plaintiffs
Sierra Club were also
in the district
operative
University
Research Unit at the
CLF, however,
proceedings.
only
was the
Massachusetts at Amherst conducted the com-
plaintiff
timely
appeal
to file a
notice of
from
prehensive study.
the district
grant-
court’s June
1988 decision
ing
summary judgment.
defendants’ motion for
3.
U.Mass.Study
The conclusions of the
were
appeal
July
CLF filed its notice of
1988.
published
report
Impact
entitled "The
Ecosystems Cape
Offroad Vehicles on Coastal
ordering
to consider more
Cod National Seashore: An
carefully
Overview."
of whether ORV travel is
Seashore,
appropriate public
an
use of the
explained:
district court
adopted by
4. The 1981 Plan was
the Park Ser-
27, 1981,
include,
vice on March
after a
Secretary's analysis
notice and
[T]he
must
but is
period
public hearings.
comment
1)
and two
gen-
not limited to a consideration of:
the 1985
use under
that ORV
court found
v.
Inc.
England,
New
Foundation
Law
public use
appropriate
an
(D.Mass.1984)
represents
1467, 1489
F.Supp.
Clark, 590
459b-6(b)(1).
with Section
in accordance
16 U.S.C.
(“CLFI”);
also
Act. The court
the Seashore
7 of
Service
remand, the National
On
implemented
Plan “as
found
visitors
survey of Seashore
conducted
protects]
enforced, effectively
to ORV use.8
reactions
their
document
does
ad-
the Seashore
ecology of
small
only a
suggested
The results
natural, sce-
versely
the Seashore’s
affect
oppose ORV
visitors
of such
number
Conservation
values.”
nic and aesthetic
displaced
claim to be
or
on the Seashore
England, Inc.
New
Law Foundation
also re
the vehicles.
(D.Mass.
81-1004,
slip op. at
Hodel, No.
from
opinion
an
obtained
quested and
II”).
appeals
(“CLF
28, 1988)
June
Depart
Regional Solicitor
Northeast
ruling on both
from the
statutory re
on the
the Interior
ment of
damage is-
“appropriateness.”
quirements
*4
sues.
defendants
the
advised
Regional Solicitor
is not an
the Seashore
use at
ORV
the
per
within
REVIEW
se
OF
II. STANDARD
inappropriate
459b-6(b)(1).
16 U.S.C.
meaning of
§
review
judicial
standard of
relevant
The
adopted an
governed
present
Park Service
is
National
in the
case
(“the 1985
Act
Procedure
Management
Administrative
the
10
Amended
of
restrict-
seq.
further
August
Act”),
of 1985
704 et
Plan”)
(“the
5
APA or
U.S.C. §§
then
APA,
CLF
this
10(e)(2)(A)
the Seashore.9
of the
ing
use at
ORV
Under Section
challenge the
complaint
any agency
to
ac
its
unlawful
amended
must hold
Court
summary judg-
for
find
and moved
that we
conclusions
tion, findings
1985
and
under
appropriateness
of
of
on the issue
an abuse
“arbitrary, capricious,
ment
to be
the
requested
CLF also
Act.
the Seashore
not
accordance
discretion,
otherwise
or
prior
its
order
reconsider
706(2)(A).
court to
If we
district
5 U.S.C. §
with law. . . .”
damage.
regarding
findings
to
and
exists
a rational basis
find instead that
summary
for
then moved
decision,
The defendants
can
then we
agency’s
the
support
validity of
uphold the
to
judgment
Trans
Bowman
decision.
disturb that
not
Freight
Plan.
v. Arkansas-Best
Inc.
portation,
281, 290, 95
Inc.,
S.Ct.
U.S.
System,
granted defendants’
court
district
(1974). It is
well-
438, 444, 42 L.Ed.2d
Secretary’s decision
motion, ruling that
is
of review
standard
this
established
arbitrary,
Plan was
adopt the 1985
to
reviewing
deferential,
whereby
highly
discretion, and
of
abuse
or an
capricious
action to be
agency
presumes
The district
upheld.
be
must
therefore
8. The
to
Secretary’s inquiry.
vey.
survey
Nearly
eral
relevant
nature
ments
ORV
beaches
zones
provided
cluding
erally
remain
more
I,
adequacy
National
zones established
during
1,300
of sufficient
of Seashore
and extent
systematic determination
a determination
between
F.Supp. at 1489. The
acts and executive
for under
visitors
full
regulated
the summer
of the allocation
force
users
size and
were included
of user
the Plan.
and non-ORV
under
regarding ORV’s
of whether
ORV
effect
quality
administered
conflicts within
orders; 2)
Plan, including
use under
1981 Plan
fall of
Plan;
of the senti-
pending the
in the
have
ORV-free
users
and
been
gen-
was
sur-
in-
3)
9. The
Inc.
June
Conservation
Harbor
Coast
longer open
its
passable.
the
urations,
may no
feet
dunes,
crest.
Under
v.
Memorandum
winter as well
boundaries
28, 1988).
ocean beach
Hodel,
seaward
Guard Beach.
the corridor
around
longer travel from
or bird
Law
No.
Finally,
[1985]
year-round,
Race
81-1004,
located
from
Foundation
nesting
as when
and
explained
itself has
drift
Point to
Also,
Order:
between
slip op.
but
ORVs are limited
make
protect
opening of Hatches
tides,
line
is
been
High
High
corridor
and the
New
closed
the route
beach
at 3
its June
embryonic
narrowed,
Head
point
England,
Head
(D.Mass.
config-
during
berm
is no
and
im-
ten
28,
to
valid. Citizens to Preserve Overton
standing
natural,
unique
historic,
402, 415,
Volpe,
814,
401 U.S.
91 S.Ct.
and scientific
Cape
features of
Cod with-
823,
(1971);
In order that the Service per- shall be after the district seashore remanded manently preserved this case present state, Secretary in its to con- no development plan sider more thoroughly or the conve- for nience whether visitors be ORV use is appropriate public shall an undertaken therein which incompatible would be the Seashore. The district court preservation with the unique instructed the Secretary to consider flo- ra and general or the physiographic appropriateness con- of ORV use in fauna prevailing light ditions now or pres- of the Seashore Act and Executive ervation of such historic sites and Order struc- nature extent of user tures as the Secretary may designate: ORVs, conflicts caused adequa- Provided, That the Secretary may pro- cy of allocation of the Seashore between for public vide enjoyment and under- ORV and non-ORV users. The defendants use on the aesthetic and impact of ORV on re- other factors these considered Management Plan values of the Seashore. Amended scenic amended the mand and Upon Based at 21-30.11 con- use.10 Decision restrict ORV Record to further Regional factors, guided relevant analysis, and sideration of all these this at the Sea- that ORV use opinion that ORV use Secretary Solicitor’s determined per public use inappropriate pub- is not an appropriate shore Plan is an under the 1985 limited ORV Secretary found that se, the Given the Secre- lic use of the Seashore. consistent with Plan is use under of the issue on tary’s careful treatment requirement imposed appropriateness and the restrictions remand considerable development of the any Plan, we placed use under the 1985 on ORV Secretary’s say that decision cannot represents no rational basis or an has applied defendants argues that the of discretion. abuse determining whether wrong standard public use appropriate is an ORV use Accordingly, the district court we affirm maintains 7. CLF under Section Seashore motion for summa- granting defendants’ agency must the crucial factor that issue ry judgment on contemplated use is whether the consider Act. 7 of under Section scenic value the traditional protect would argue, Plaintiff seems the Seashore. EXECUTIVE ORDER IV. moreover, “preserved in its No. 37 Fed. Executive Order 7 means language of Section present state” (1972) (“Use Reg. of Off-Road Ve any authorize cannot Lands”), amended hicles on Public that would development of the Seashore Fed.Reg. Executive Order No. its condition at scenery from alter the (1977), note reprinted both Ac- enacted. Seashore Act was fol time the (1981), provides lowing 42 U.S.C. § view, parts cording to this because federal lands must be that ORV use on they now than may look different of the re protection “the consistent with travel, activity in 1961 due to did lands, promotion of public sources of the as a inappropriate per se must be *6 lands, of those and safety of all users language of the Nothing plain Sec- the use. among the various of conflicts legislative history minimization or in the relevant tion 11644, 3(a). E.O. Secretary be of those lands.” § should uses us that the persuades 3(a) requires that of the Order interpretation by this constrained Na in areas of the trails located ORV be statute. respective only “if the System tional explained in its June court The district ve that off-road agency head determines granting 28, and Order Memorandum not adverse will hicle use such locations summary judgment motion for defendants’ aesthetic, natural, or scenic ly affect their engaged in a Secretary on the remand that 3(a)(4). Executive Order Id. values.” § meaningful analysis of the to Executive the amendment agree, II, slip op. at 7-15. We issue. CLF provides that the further Order thorough discus- repeat need not the and must, agency head Before court. provided sion use that the he determines whenever Management the Secre- amending the causing is cause or off-road vehicles will court that the tary considered factors soil, effects on adverse considerable In addi- order. forth in its remand had set or cultural or vegetation, habitat wildlife plaintiff would contrary to tion and what areas or particular resources of historic believe, Secretary considered have us This influence is imposed scenic values of Seashore. un- description limitations For a 10. Aesthetic Values" supra and note 9. evidenced the "Scenic the 1985 see der Decision, Record discussion in the Amended regarding Secretary's what ar- The decision trails and areas of ORV the actual location open ORV use under be left to eas would Plan. under the 1985 agency’s at- Plan was influenced of ORV use on tempt the effects to minimize lands, trails of the immediately threaten the natural or scenic values of the close such areas or trails to the type Seashore, the restrictions imposed under causing off-road vehicle such un- effects the 1985 Plan are substantial and were til such time as he determines that such designed specifically protect to those val- adverse effects have been eliminated ues that would otherwise be at risk. that implemented measures have been prevent future recurrence. Secretary The also determined that ORV use has significant caused no ecologi 9(a). E.O. 11644 provisions, then, These damage cal at the Seashore adop since the restrict Secretary’s discretion regard- tion of the 1981 Plan. ing The ORV district court Seashore, use on the along with correctly explained in its Section 7 of June Seashore Act.12 that an agency’s decision technical conclu CLF maintains that Executive Or sions upheld are to be reviewing requires der 11644 the defendants to close where they are “founded on supportable Seashore ORV use because al data and methodology, and meet minimum leged ecological damage and deg aesthetic standards of rationality.” I, CLF radation at the challenges Seashore. CLF F.Supp. at (quoting South Terminal Secretary’s finding that current regula Corp. v. Environmental Agen Protection tions on effectively protect ORV use cy, (1st 504 F.2d Cir.1974)). & 665 ecology of the Seashore and that limited agree We with the district ORV use adversely does not affect natural defendants’ conclusion regarding effective or scenic at values Seashore. protection of the Seashore ecology under plaintiff argues particular that numer Management is based support ous violations of the National Park Service able data and methodology, and meets min regulations cause damage considerable imum standards of rationality. According ecology aesthetics, ly, the defendants’ finding adequate as to require that a imposed ban be on ORV ecological protection should not be dis travel, prevent unless can violations be turbed. ed. true, It be points out, determined that limited ORVs caused under the certain adverse 1985 Plan does effects at the prior adversely natural, adoption affect aesthetic or scenic values at the Plan. Those effects were Amended Record addressed U.Mass.Study. at 80. agree issue, Decision We however, What at district court that is whether adequate any significant there is sup- ecological dam- port age this determination. The defend- has occurred under the regulations ants protection considered the adopted of natural have been and enforced since *7 values in arriving at that the current time.14 regula- expert Persuasive testimony tions restricting ORV on use by government submitted Sea- supports its shore.13 The extent and position location of ORV that imposed restrictions originally trails were under set the 1985 Plan consist- under the 1981 Plan and then supplement- ent with Though these values. unregulat- ed the 1985 Plan have created effective ed ORV on travel might Seashore protection well of the Seashore ecology.15 The 12. The district court determined that example, Executive 15. For the Affidavit of Dr. James R. Order as amended Executive Order provides: Allen 11989, has the force and of effect law is During my visits to the I Seashore have I, enforceable CLF under APA review. CLF majority observed that the vast of ORV users F.Supp. at 1478. comply management with the plan. More- over, my opinion it is geo- that ORV induced supra 13. See note 11. morphic impact superficial on the beach is 14. The (by district concluded and is that the restric- overwhelmed several orders of tions on use magnitude) by ORV under the 1981 Plan demon- variability natural of the strated U.Mass.Study highly dynamic careful attention to at beaches Race Point. and that generally the Plan was faithful to that Allen’s Affidavit at points testimony 11. Dr. Allen’s ¶ I, study. F.Supp. CLF 590 at 1480-81. out serious deficiencies with the conclu- government, the Seashore tors to trails under dune of the
closure miles, has set aside 8 that it says its decline significant moreover, a caused Seashore beach- National addition, Cod of the Seashore. use in ORV beach, for miles, percent of the or 16 front added has the National fairly obvi- Although it seems use. the ORV patrol of improve rangers to number need who use ORVs those ous that adoption of Finally, with Seashore.16 them, it to use which length of great- coastline placed government Plan the often their use is fairly obvious that is also Seashore. use of the on ORV restrictions er quiet enjoyment of incompatible with the Sea- damage to ecological Though some Cape Cod National that the the seashore adoption prior to have occurred shore majori- contemplated the vast Act Seashore evi- sufficient believe we the 1981 geo- At seek. some visitors would ty of conclu- support defendants’ exists dence reserving miles of point, coastline graphical signifi- no caused use has ORV sion taking too amount would for ORVs damage at the Seashore ecological cant enjoyment many for from too the much affirm therefore time. We since that, giving only here hold few. too We issue of on judg- weight to the appropriate full and Plans. under protection administrators, say, we cannot ment of the us, that record before the basis CONCLUSION on V. line actually crosses the marked percent support exists A basis rational “arbitrary.” statutory word under use that ORV conclusion defendants’ appropriate an represents cannot We public use use therefore, present
say, 7 of the Seashore violates finding Furthermore, defendants’
Act. restricting ORV regulations
that current ecology of the effectively protect Plaintiff, supportable CASTRO, Appellant, data on based Jude V. determination, there- methodology. That v. fore, disturbed. cannot be WORKS, The STANLEY AFFIRMED. Defendant, Appellee. (concurring). Judge BREYER, Circuit Plaintiff, CASTRO, Appellee, Jude V. that, given panel agree I with reasonably cannot proviso, one statute’s WORKS, The STANLEY ban an absolute imposing it as read Defendant, Appellant. many fishermen since ORVs, particularly 87-2143, 87-2144. Nos. agree I also them. campers like to use now opinion; we cannot panel’s Appeals, Court States United regula- Department’s the Interior say that First Circuit. or an capricious” “arbitrary, are tions 4, 1988. Heard Oct. U.S.C. discretion.” “abuse *8 latter only this 706(2)(A). I add Jan. Decided one. Conser- quite a close Foundation, notes in its Law vation by less are used “vehicles recreational visi- summertime percent than 2.5 in its brief government mentions 16. regarding extent sions reached 23 to its staff from has increased regulations at the violations of current Plan. of the 1981 rangers adoption since the damage allegedly caused Defendants-Appellees at 43. Brief 5-11. at ¶¶ Affidavit Allen’s those violations.