Friends Of Yosemite Valley v. Gale NortonFriends Of Yosemite Valley v. Gale Norton
WARDLAW, Circuit Judge.
The Merced River flows through the glaciated Yosemite Valley and then cuts more steeply, westward, through the Merced River Gorge and some of the region‘s oldest rock formations. This appeal challenges the sufficiency of the remedy granted by the district court in Friends of Yosemite Valley v. Norton, 194 F.Supp.2d 1066, 1071 (E.D.Cal.2002). The district court granted only part of the declaratory and injunctive relief sought by Friends of Yosemite Valley and Mariposans for Environmentally Responsible Growth (collectively, “Friends“) against the National Park Service (“NPS“) for alleged deficiencies in the Merced Wild and Scenic River Comprehensive Management Plan (“CMP“). Friends contends that the NPS failed to prepare a valid CMP to protect and enhance the natural values of the Merced River, thereby violating the Wild and Scenic Rivers Act (“WSRA“),
We agree with Friends that the CMP (1) inadequately addresses user capacities by failing to set the “maximum quantity of use” for the river area and (2) too narrowly defines the boundaries for the El Portal segment of the Merced and, therefore, we reverse in part. We affirm in part, however, because the district court correctly determined that (1) the CMP‘s data and information satisfied the requirements of both the WSRA and NEPA, (2) it had jurisdiction over Friends’ water pollution claim under the WSRA, and (3) the NPS cooperated with the Environmental Protection Agency and the California Regional Water Quality Control Board.
I. PROCEDURAL BACKGROUND
In a prior action challenging the NPS‘s failure to comply with the WSRA by neglecting to develop a CMP for the Merced, the district court ordered the agency to “prepare and adopt a valid Comprehensive Management Plan pursuant to
In the present litigation, Friends challenges the validity of the CMP.1
On appeal, Friends argues that: (1) the CMP inadequately “address[es] ... user capacities,” in violation of the WSRA,
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal under
The determination whether the NPS acted in an arbitrary and capricious manner rests on whether it “articulated a rational connection between the facts found and the choice made.” Pub. Citizen v. DOT, 316 F.3d 1002, 1020 (9th Cir.2003). “[C]ourts must carefully review the record to ensure that agency decisions are founded on a reasoned evaluation of the relevant factors, and may not rubber-stamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute ....” Id. Nevertheless, we “may not substitute [our] judgment for that of the agency [but] must simply ensure that the agency has adequately considered and disclosed the environmental impact of its actions, bearing in mind that NEPA exists to ensure a process, not particular substantive results.” Hells Canyon, 227 F.3d at 1177.
III. THE MERCED RIVER
A. The Wild and Scenic Rivers Act
Congress enacted the WSRA in 1968 to identify and protect certain “rivers which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values.”
The WSRA protects designated WSRS segments and surrounding areas by implementing certain conservation measures. See
The location of a WSRS segment determines whether it is administered by the Secretary of the Interior, including the NPS, or the Secretary of Agriculture. See
The WSRA also requires the administering agency to “take such action respecting management policies, regulations, contracts, [and] plans ... as may be necessary to protect such rivers in accordance with” the WSRA, and “cooperate with the... Environmental Protection Agency and appropriate state water pollution control agencies for the purpose of eliminating or diminishing the pollution of waters of the river.”
The designation of a river as part of the WSRS triggers several statutory deadlines. First, within one year of the designation, the administering agency is required to establish “detailed boundaries” for the river that “shall include an average of not more than 320 acres of land per mile measured from the ordinary high water mark on both sides of the river.”
B. Designation of the Merced
In 1987, Congress designated segments of the Merced River to the WSRS, including sections flowing through Yosemite National Park (“Yosemite“) and Yosemite‘s administrative site, El Portal. See An Act to Amend the Wild and Scenic Rivers Act by Designating a Segment of the Merced River in California as a Component of the National Wild and Scenic Rivers System, Pub. L. No. 100-149, 101 Stat. 879 (Nov. 2, 1987) (codified at
In designating the Merced, Congress also provided that the establishment of WSRA boundaries for, and classification of, those parts of the Merced falling within Yosemite or El Portal would be accomplished through amendment of the 1980 General Management Plan for Yosemite. Congress mandated that any such amendment “shall assure that no development or use of park lands shall be undertaken that is inconsistent with the designation of such river segments.”
The CMP provides seven management elements that govern all future actions affecting the designated portions of the Merced under the NPS‘s administration. In an effort to comply with specific provisions of the WSRA, the CMP: (1) delineates river area boundaries, see
1. River Protection Overlay
The RPO is a minimum buffer zone that extends outward from the river channel to a distance of 100 or 150 feet, depending on the elevation, from the Merced‘s ordinary high water mark. The CMP provides relatively stringent limits on actions to be taken within the RPO. For example, “nonessential facilities,” such as bridges, roads, buildings, and levees, can be located within the RPO only if they satisfy two conditions: (1) they must be required for access to or across the river, for health or safety, or for maintenance of historic properties; and (2) they could not perform their functions if they could not be located within the RPO. The CMP permits nonessential facilities already existing within the RPO to remain, however, and to be replaced, repaired, or relocated within the RPO only if such action does not directly and adversely affect ORVs. The CMP also allows for the construction, replacement, repair, and relocation of essential facilities (such as primary roads and electrical infrastructure) within the riverbed and banks if the project is designed to minimize impacts to the free-flowing condition of the river, its tributaries, and backwaters.
2. Management zoning
The CMP defines management zones as areas “for which management directions or prescriptions have been developed to determine what can and cannot occur in terms of resource management, visitor use, access, facilities or development, and park operations.” “The purpose of management zoning is to provide overall guidance for decision-making over the long term.” Category 1 “wilderness” zones describe areas having the lowest degree of visitor and facility use. Areas falling within Category 2 “diverse visitor experience” zones have at most a moderate range of facility development. Category 3 “developed” zones are characterized by intense visitor use or more developed facilities, or both. These general zoning categories are further subdivided by letter to reflect increasingly intense use within each category.
3. Visitor Experience and Resource Protection
The NPS describes the Visitor Experience and Resource Protection (“VERP“) element as the “primary mechanism for addressing user capacity” as required by
IV. ANALYSIS
A. User Capacities
The district court erred in determining that the CMP adequately “address[ed]... user capacities” as required by
The WSRA explicitly requires administering agencies to “prepare a [CMP] ... [that] shall address ... user capacities” within three full fiscal years of a WSRS segment‘s designation.
This interpretation of
The Secretarial Guidelines interpret the WSRA to require the preparation of river “[m]anagement plans [that] state ... the kinds and amounts of public use which the river area can sustain without impact to the [ORVs],” and to mandate ongoing studies to “determine the quantity and mixture of recreation and other public use which can be permitted without adverse impact on the resource values of the river area.” 47 Fed. Reg. at 39,458-59. Although these references to setting limits on the amount or quantity of public use clarify that the WSRA obliges the administering agency to provide actual limits in its CMP, the Secretarial Guidelines do not specify that this obligation can be satisfied only by capping the number of visitors. Thus, we interpret
This does not mean that the NPS is precluded from using the VERP to fulfill the user capacities requirement. However, the WSRA does require that the VERP be implemented through the adoption of quantitative measures sufficient to ensure its effectiveness as a current measure of user capacities. If the NPS is correct in projecting that it will need five years fully to implement the VERP, it may be able to comply with the user capacity mandate in the interim by implementing preliminary or temporary limits of some kind.
Because the present version of the CMP fails to provide any concrete measure of use, we conclude that it fails sufficiently to address user capacities. Indeed, we note that the NPS‘s proposed five-year timetable for the implementation of the VERP framework would not satisfy
B. WSRA Boundaries at El Portal
The NPS violated the WSRA by drawing the boundaries at the Merced‘s El Portal administrative site too narrowly. The WSRA requires a CMP to delineate river boundaries that “include an average of not more than 320 acres of land per mile measured from the ordinary high water mark on both sides of the river.”
We have not yet decided a case involving WSRA river boundaries, but one of our sister circuits has reasoned that the setting of boundaries is an “administrative act” that falls within the agency‘s statutory duty to administer the river area “in such manner as to protect and enhance the[ORVs] which caused it to be included in the [WSRS].” Sokol v. Kennedy, 210 F.3d 876, 878 (8th Cir.2000) (remanding for redetermination of boundaries consistent with
While the CMP associates specific ORVs with El Portal, the record does not reflect the precise location of these ORVs or how, in drawing the boundaries, the NPS sought to protect them. The CMP lists five categories of ORVs for El Portal, and provides the following descriptions:
Geologic Processes/Conditions — This segment contains a transition from igneous to metasedimentary rocks (metasedimentary rocks are among the oldest in the Sierra Nevada).
Recreation — This segment provides a range of river-related recreational opportunities, in particular white-water rafting and kayaking (class III to V) and fishing.
Biological — This segment contains riverine habitats such as riparian woodlands and associated federal and state special status species, including Tompkin‘s sedge and Valley elderberry longhorn beetle and its critical habitat (elderberry shrub). Expanses of north-facing habitat allow unlimited access to the riparian zone for wildlife species.
Cultural — This segment contains some of the oldest archeological sites in the Yosemite area, as well as many historic Indian villages and traditional gathering places. River-related historic resources include structures related to early tourism and industrial development.
Hydrological Processes — This segment is characterized by continuous rapids.
The El Portal segment also falls under the general “scientific” ORV identified by the CMP for the river‘s main stem “because the river watershed is largely within designated Wilderness in Yosemite National Park.”
The record reflects that some of El Portal‘s ORVs are not protected by the present boundaries and, indeed, that not all of El Portal‘s ORVs have been fully located. For example, the CMP points out a significant deficiency with respect to El Portal‘s cultural ORVs:
A systematic inventory for ethnographic resources has not been undertaken for El Portal.... [S]everal individuals and families have traditional ties to this area. Redbud, willow, sourberry, and other plant materials are known to be gathered here. There are at least three known cemeteries, two of which were used in historic times and are the burial places for ancestors of some local Indian families.
In addition, although the CMP notes that a “comprehensive evaluation of cultural landscapes and historic structures at the El Portal Administrative Site, based on National Register criteria, has been completed,” it does not discuss whether such landscapes and structures are located within the present boundaries or if their protection and enhancement were considered when the boundaries were drawn. Indeed, the record reflects that NPS employees expressed concern about the effect of the boundaries on cultural ORVs during the drafting stage of the CMP. For example, one employee noted that “there are river-related archeological sites, considered part of the cultural resource ORV in El Portal, that lie outside the 100-y[ea]r floodplain... that would be directly and adversely affected by administrative purposes (e.g., construction of employee housing at Hillside West).” Such omissions demonstrate that the CMP‘s boundaries at El Portal could not possibly have been promulgated to protect and enhance such ORVs.
In concluding that the river boundaries at El Portal were improperly drawn, we do not, as the NPS fears, establish “a preference for ... includ[ing] the absolute maximum number of acres on every part of the designated river,” or place a “special burden of justification on an agency if it chooses less than the absolute maximum average.” Instead, we hold that there is one burden of justification that generally applies to an administering agency‘s determination of river boundaries: Boundaries set within the WSRA‘s acreage requirement, regardless where such boundaries fall within the statutory range, must be drawn so as to protect and enhance the ORVs causing that area to be included within the WSRS. See
C. Specificity of Data and Information in the CMP
With the exception of the user capacities and river boundaries discussed above, the CMP was prepared with sufficiently specific data and information to satisfy
1. The Wild and Scenic Rivers Act
The WSRA itself supplies little guidance as to the data and information requirements for a CMP. The WSRA‘s only qualitative instruction concerning a designated river‘s management plan is its use of the descriptive term “comprehensive,” which the statute does not define. Nonetheless, the three-volume CMP, purportedly based upon “the best data available at the time the plan was drafted, including nearly 100 years of study and observation of river processes,” falls well within the ordinary meaning of comprehensive. The statute‘s requirement that a CMP be completed within three full fiscal years of designation demonstrates that Congress envisioned a non-qualitative limit on the amount of additional data to be gathered. See
The WSRA also requires the CMP to “address resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the purposes of [the WSRA].”
Moreover, in contrast to the user capacity mandates, the Secretarial Guidelines for
[g]eneral principles for any land acquisition which may be necessary; the kinds and amounts of public use which the river area can sustain without impact to the values for which it was designated; and specific management measures which will be used to implement the management objectives for each of the various river segments and protect esthetic, scenic, historic, archeologic and scientific features.
47 Fed. Reg. at 39,458. There is no indication in the Secretarial Guidelines that a programmatic approach to a CMP necessarily circumvents the WSRA‘s “nondegradation and enhancement policy for all designated river areas, regardless of classification.” Id.
2. The National Environmental Policy Act
Nor is a programmatic approach per se invalid under NEPA.2 An agency‘s planning and management decisions may occur at two distinct administrative levels:
(1) the “programmatic level” at which the[agency] develops alternative management scenarios responsive to public concerns, analyzes the costs, benefits and consequences of each alternative in an [EIS], and adopts an amendable [management] plan to guide management of multiple use resources; and (2) the implementation stage during which individual site specific projects, consistent with the [management] plan, are proposed and assessed.
Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922, 923 n. 2 (9th Cir.1999). An EIS for a programmatic plan (such as the CMP) must provide “sufficient detail to foster informed decision-making,” but “site-specific impacts need not be fully evaluated until a critical decision has been made to act on site development.” N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 890-91 (9th Cir.1992); see also Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1306 (9th Cir.1993) (rejecting argument that EIS for forest land and resource management plan lacked sufficiently specific data to ensure compliance with water quality standards, and noting that “specific analysis is better done when a specific development action is to be taken, not at the programmatic level“).
NEPA requires that an EIS be prepared for all “major Federal actions significantly affecting the ... human environment.”
As the Merced River CMP itself states, it “does not specify detailed actions, but provides broad guidelines for future approved actions that affect the river corridor.” The CMP‘s land-use management tools, the RPO and management zoning, serve two functions. First, they determine what future uses will be considered in a particular area. Second, they guide the NPS in deciding whether to remove an existing non-conforming use from a particular area. Because a subsequent and full environmental review is contemplated for either type of decision, neither function constitutes “an irreversible and irretrievable commitment of the availability of resources.” Block, 690 F.2d at 761. Indeed, the CMP states that it does not “irreversibly or irretrievably commit[]” any natural resources, and that the only possible “permanent and irreversible” loss would occur if in the future the Park Service were to decide to remove a historic bridge (i.e., a cultural value) obstructing the river corridor and causing severe scouring of the river channel.
Applying the principles of the WSRA and NEPA, we conclude that the NPS did not abuse its discretion in preparing the CMP as a programmatic document, and that the CMP‘s EIS contains sufficiently specific data and information for such a purpose. We agree with the NPS that it must “prepare appropriate environmental review ([pursuant to the] National Environmental Policy Act, National Historic Preservation Act, and other relevant legislation) for ... future actions” guided by the CMP, and anticipate that such review will include, where appropriate, data-gathering and analysis of system-wide impacts.
D. Cooperation with water pollution control agencies
Lastly, we conclude that the NPS has adequately complied with WSRA‘s mandate to “cooperate with the Administrator, Environmental Protection Agency and with the appropriate State water pollution control agencies for the purpose of eliminating or diminishing the pollution of waters of the river.”
Friends asserts that the NPS‘s failure to prevent subsequent spills violates
1. Jurisdiction
The NPS raises a variety of challenges to the district court‘s jurisdiction over Friends’
The Clean Water Act explicitly permits a party to seek relief under other statutes: “Nothing in this section shall restrict any right which any person ... may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).”
We also reject the NPS‘s argument that we have previously construed the Clean Water Act to provide an exclusive remedy for claims concerning point-source pollution. See Or. Natural Res. Council, 834 F.2d at 850. Oregon Natural Resources Council dealt with non-point-source pollution, which does not fall under the Clean Water Act‘s citizen suit provision; hence we concluded that the Clean Water Act‘s notice requirement did not apply. Id. at 850. In allowing that claim to continue under the APA, we cautioned that
plaintiffs seeking relief under the [Clean Water Act] may [not] circumvent the notice requirement of the citizen suit provision by resorting to the APA. Where plaintiffs may otherwise proceed under the citizen suit provision, they should not be allowed to bypass the explicit requirements of the Act established by Congress through resort to [
42 U.S.C. § ]1983 or the APA.
Id. at 851. Unlike in Oregon Natural Resources Council, we deal here with a claim arising under a separate statute, the WSRA, and not the Clean Water Act. We have formerly recognized that a private party may bring a “failure to cooperate” claim for violation of
Nor can Friends’ WSRA claim be viewed as an improper attempt to circumvent the Clean Water Act, because the causes of action under the two statutes differ in a meaningful way. The Clean Water Act allows suit to enforce an effluent standard or limitation, and the WSRA requires the administering agency to cooperate with various agencies. This distinction allows a plaintiff to bring suit under the WSRA without thwarting the purpose of the notice requirement imposed by the Clean Water Act:
The notice requirement reflects the intent of Congress to allow the [agency] to react to citizen complaints before suit is filed and prevent unnecessary litigation. That aim is frustrated if a citizen complainant may bypass the notice requirement by resorting to the APA remedy for conduct already reviewable by the citizen-suit provision.
Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1005 (9th Cir.1998). Thus, by requiring notice, the Clean Water Act gives an agency the chance to remedy any violations of standards, limitations, or orders by bringing such failures to the agency‘s attention and affording it time to react prior to suit being filed.
Friends’ WSRA claim, on the other hand, asserts that the NPS has consistently failed to avoid violations, not that it was unaware of an existing violation. Accordingly, requiring notice under the WSRA would have little practical effect on whether the NPS has satisfied its obligation under
We also reject the NPS‘s argument that there existed no final agency action for the district court to review. The NPS has waived this objection, which “does not implicate subject matter jurisdiction,” by failing to raise it in the district court. Idaho Watersheds Project v. Hahn, 307 F.3d 815, 830 (9th Cir.2002) (noting that jurisdiction to review agency action was conferred by
2. Merits
Turning to the merits of Friends’
V. CONCLUSION
For the reasons stated, we conclude that the CMP and its EIS contain sufficient data for a programmatic plan under the WSRA and NEPA, and that the NPS did not violate its duty to cooperate with water pollution agencies as required by
AFFIRMED in part, REVERSED in part, and REMANDED.