Public Employees for Environmental Responsibility v. National Park ServicePublic Employees for Environmental Responsibility v. National Park Service
GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE A SURREPLY
I. INTRODUCTION
In mid-2019, the National Park Service (“NPS”) released a policy directive instructing park superintendents to allow e-bikes to be used in the same areas where traditional bicycles were used, which it followed up a year later with a notice-and-comment rulemaking amending the NPS regulations to address e-bikes. Plaintiffs Public Employees for Environmental Responsibility, Wilderness Watch, the Environmental Action Committee of West Marin, the Marin Conservation League, Save Our Seashore, Amy Meyer, Phyllis Koenig, and David Perel brought this action against NPS, the United States Department of the Interior, the acting Director of the National Park Service, and the Secretary of the Interior, challenging both the policy directive and the Final Rule on various fronts. Suppl. Compl. ¶¶ 9–18, ECF No. 34.
Plaintiffs assert claims under the
II. FACTUAL AND PROCEDURAL BACKGROUND
The National Park System is made up of 423 national parks across the United States and its territories, ranging from vast wilderness areas to urban historical monuments. Defs.’ Mot. at 1. The statutory responsibility of the NPS is to administer this diverse and priceless system in such a way that will “conserve . . . and . . . provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”
The very next day, NPS Deputy Director P. Daniel Smith issued a policy memorandum (“Smith Directive”), acknowledging that e-bikes were “appearing in national parks with greater frequency” and addressing the use of e-bikes on NPS lands. Suppl. Compl. ¶ 32; AR0918–21, Policy Mem. 19-01, Dep’t Interior (Aug. 30, 2019) (“Smith Directive”). Deputy Director Smith explicitly issued the policy while “[e]xercising the [a]uthority of the [NPS] Director.” Smith Directive at 1. The Smith Directive’s stated intent was “to allow e-bikes to be used for transportation and recreation in a similar manner to traditional bicycles.” Id. at 3. It also directed park superintendents to update their park compendium to include the definition of e-bike and the statement that “E-bikes are allowed in [insert name of park] where traditional bicycles are allowed” and “prohibited where traditional bicycles are prohibited,” among other updates, “as soon as possible, but no later than 30 days” from the issuance of the Directive or the introduction of e-bikes in the park. Id. at 4.
NPS also undertook a notice-and-comment period pursuant to thе APA in the following year, eventually publishing a final rule on e-bikes. See 85 Fed. Reg. 19,711 (Apr. 8, 2020) (proposed rule); 85 Fed. Reg. 69,175 (Nov. 2, 2020) (final rule) (codified at
The text of the Final Rule states that, “once effective, [the Final Rule] will supersede and replace [the Smith Directive].” Id. at 69,177. Despite this statement, as this Court pointed out in its prior opinion, the Smith Directive continued to have ongoing policy consequences because 380 park units had already implemented the Smith Directive’s e-bike policy and were specifically exempted from any requirement for further action to recertify the use of e-bikes in those parks. See Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., No. 19-cv-3629, 2021 WL 1198047, at *3 (D.D.C. Mar. 30, 2021) [hereinafter “PEER I”]. The Court therefore granted Plaintiffs leave to file a supplemental complaint and denied Defendants’ motion to dismiss, which had sought to dismiss the complaint as moot in light of the Final Rule. Id. at *4, *18.
After that opinion, the NPS Deputy Director of Operations Shawn Benge issued yet another memorandum on e-bike use on June 30, 2021. See Attach. 1 of Decl. John Calhoun Supp. Defs.’ Mot. Summ. J., Ex. A of Defs.’ Reply (“Benge Mem.”), ECF No. 49-1.2 That memorandum specifically required the superintendents of the parks that had updated their park compendiums to authorize e-bike use pursuant to the Smith Directive to “reconsider whether, where, and under what conditions e-bike use should be allowed on trails or administrative roads” consistent with the Final Rule and to either make appropriate changes or recertify their previous actions in the park compendium. Id. at 2. It required those actions to be taken “as soon as practicable” and no later than September 28, 2021. Id. at 3. The Benge Memorandum further specified that changes or recertification must comply with NEPA and must either document why a categorical exclusion is appropriate or conduct an environmental assessment if appropriate. Id. at 2–3. To assist with the superintendents’ decision-making process, NPS followed up with a literature review of relevant e-bike studies and key findings in August 2021. See Attachs. 2–3 of
Decl. John Calhoun Supp. Defs.’ Mot. Summ. J., Ex. A of Defs.’ Reply (“2021 Lit. Rev.”), ECF No. 49-1. The declaration from John Calhoun, submitted by NPS with its Reply, likewise testifies that all park units subject to the Benge Memorandum have completed that recertification, and that at least six of them in fact “made substantive changes” to their e-bike policy. Calhoun Decl. ¶¶ 10–12.
III. LEGAL STANDARD
In a typical case, a court may grant summary judgment to a movant who “shows that there is no genuine dispute as to any mаterial fact and the movant is entitled to judgment as a matter of law.”
Under the APA, a reviewing court may set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
IV. ANALYSIS
A. Mootness
Defendants first argue that any challenges to the Smith Directive are now moot because as of September 28, 2021, it no longer has any real-world impact. Defs.’ Mot. at 18; Defs.’ Reply at 4. Crucial to this Court’s prior holding was the fact that some number of parks continued to authorize e-bike use under the Smith Directive rather than the Final Rule, meaning that the Court retained the authority to grant meaningful relief if the Smith Directive was invalidated. See PEER I, 2021 WL 1198047, at *12. But the Benge Memorandum specifically directed that the remaining group of park units which had authorized e-bike use on trails and administrative roads in accordance with the mandatory language of the Smith Directive and had not already revised that decision under the discretionary standard of the Final Rule to consider the issue anew under the discretionary standard of the Final Rule and recertify or modify their decisions. Benge Mem. at 2. Thus, Defendants argue that each park unit has now made a case-by-case decision under the standards of the Final Rule, and an order from the Court invalidating the Smith Directive would have no real-world effect. Defs.’ Reply at 4–5.
To make that argument, Defendants rely on the factual declaration of John Calhoun,3 who attests that the NPS Environmental
whose compendiums allowed for e-bike use under the Smith Directive rather than the Final Rule. Calhoun Decl. ¶ 8. Calhoun avers that “for all 122 NPS management units, the superintendent, or their proxy, has either certified that the decision to allow or disallow e-bikes on administrative roads or trails under the discretionary standard in the Rule has been documented in the superintendent’s compendium, or [Calhoun has] independently verified that the decision has been so documented.” Id. ¶ 10. Of those, he declares that at least six superintendents made “substantive changes to their previous decisions regarding e-bikes,” including two who decided to disallow e-bikes on trails and administrative roads. Id. ¶ 11. Plaintiffs urge the Court not to consider these assertions in Calhoun’s declaration because, aside from his attestations of personal knowledge, it contains no documentary corroboration and Calhoun is not even assigned to the NPS Environmental Quality Division. Pls.’ Surreply to Defs.’ Reply Filings in Supp. Mot. Summ. J. (“Surreply”) at 2, ECF No. 50-1.
Although judicial review of an agency action at the summary judgment stage is generally limited to the administrative record, the Court may look beyond the administrative record to determine whether a case has become moot, an issue that implicates its jurisdiction to hear the case. See Nat’l Mining Ass’n v. U.S. Dep’t of Interior, 251 F.3d 1007, 1010 (D.C. Cir. 2001) (ordering supplemental briefing on mootness in light of a new rule that took effect after oral
taken, given that a surreply is appropriate where “the party making the motion would be unable to contest matters presented to the court for the first time in the opposing party’s reply.” Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001). Nor did Defendants oppose Plaintiffs’ motion to file a surreply. See Surreply Mot. at 3 n.1 (representing that “Federal Defendants do not object to Plaintiffs filing a sur-reply, provided it is 4 pages in length or less, and is limited to discussing facts articulated in paragraphs 8–12 of the Calhoun Declaration or responding to the argument . . . related to paragraphs 8–12 of the Calhoun Declaration.”). Although Plaintiffs’ proposed surreply exceeded four pages, it substantively addressed only the Calhoun Declaration. See Pls.’ Surreply to Defs.’ Reply Filings Supp. Mot. Summ. J. (“Pls.’ Surreply”), ECF No. 50-1. The Court therefore grants Plaintiffs’ motion for leave to file a surreply and will deem the proposed surreply attached to that motion filed.
argument); Relf v. Weinberger, 565 F.2d 722, 726–27 (D.C. Cir. 1977) (dismissing a case as moot on appeal when the agency abandoned a challenged rule and expressed its intent to initiate a new rulemaking through counsel and letters to the court); cf. Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (acknowledging that “it may sometimes be appropriate to resort to extra-record information”). Indeed, evidence demonstrating mootness will almost necessarily post-date the administrative record in any given case. Plaintiffs’ challenges to the declaration overlap with their substantive arguments, but they do not seriously suggest that the Benge Memoranda are not authentic. See generally Pls.’ Surreply. The Court therefore overrules Plaintiffs’ objection to the Calhoun Declaration and declines to strike it.
Because the Benge Memorandum required each of the park units where the Smith Directive still had an on-the-ground impact to reconsider the decision anew under the discretionary standard of the Final Rule, the Court agrees with Defendants that it no longer retains the authority “to grant ‘any effeсtual relief whatever’” on the freestanding claims challenging the Smith Directive. Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 79 (D.C. Cir. 2011) (quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992)). The Smith Directive has been superseded by intervening regulatory events, and the Court “can neither invalidate, nor require the [agency] to adhere to,” a policy “that has disappeared into the regulatory netherworld.” Id. (internal quotations omitted). The Smith Directive now constitutes the kind of “superseded,
Plaintiffs next attempt to salvage their challenges to the Smith Directive by arguing that the agency’s intervening action falls into one of the recognized exceptions to mootness doctrine: “voluntary cessation” or “capable of repetition yet evading review.” Pls.’ Reply at 8–9. Under the former exception, “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” if the defendant would be “free to return to his old ways.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (cleaned up). Under the latter exception, “the plaintiff must demonstrate that (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 322 (D.C. Cir. 2009) (cleaned up).
Neither applies here, and largely for the same reason—there is no reason to think that the same action will reoccur. “The ‘same action’ generally refers to ‘particular agency policies, regulations, guidelines, or recurrent identical agency actions.’” Theodore Roosevelt Conservation P’ship, 661 F.3d at 79 (quoting Pub. Utilities Comm’n v. FERC, 236 F.3d 708, 715 (D.C. Cir. 2001)). “An action is ‘capable of repetition’ only if there is a ‘reasonable expectation that the same complaining party would be subjected to the same action again.’” Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Because the Final Rule by its terms superseded the Smith Directive, see 85 Fed. Reg. at 69,177, the Final Rule will continue to govern e-bike use absent a new notice-and-comment rulemaking. See Friends of Earth, Inc. v. EPA, 446 F.3d 140, 148 (D.C. Cir. 2006) (“[W]e assume agencies follow their own regulations . . . .”); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. Cir. 2000) (“It is well-established that an agency may not escape the notice and comment requirements . . . by labeling a major substantive legal addition to a rule a mere interpretation.”). Plaintiffs’ generalized concern that NPS could reattempt a similar redefinition of its regulations without notice and comment is too speculative, and too disconnected from the facts of this case, to evade mootness.
Still, the fact that Plaintiffs’ freestanding challenges to the Smith Directive are moot does not dispose of most of the present claims. Plaintiffs have also challenged the Final Rule in its own right under both the APA and NEPA. See Pls.’ Reply at 5, 9. This Court has already expressed concern that the “interrelated nature” of the Smith Directive and the Final Rule allowed NPS to “bootstrap” its initial NEPA determination into the Final Rule, and that “a final rule does not moot claims brought challenging a procedurally defective interim rule, when the final rule was dependent in some way on the validity of the interim rule.” PEER I, 2021 WL 1198047, at *14
However, it will deny as moot the Organic Act claim because there are no remaining real-world effects of the Smith Directive.
B. Administrative Procedure Act (Count I)
The APA permits judicial review when “[a] person suffer[s] legal wrong because of agency action, or [is] adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
Although the Court determines that Plaintiffs’ APA claim against the Smith Directive is now moot,5 Plaintiffs have challenged the Final Rule under the APA as well. Suppl. Compl.
¶ 52. Plaintiffs’ challenges to the Final Rule are twofold: first, that the Final Rule improperly “codified” the procedurally defective Smith Directive, and second, that it was arbitrary and capricious because it failed to address significant comments and reached an implausible result. Pls.’ Mot. at 17. Plaintiffs’ argument that the Final Rule should be vacated due to “its flawed procedural foundations” overlaps with the merits of its claims under the FVRA, FACA, NEPA, and NPS Organic Act, see id., and will be addressed in those sections. In this section, the Court will take up only Plaintiffs’ freestanding
“Agency action will be considered arbitrary or capricious unless an ‘agency adequately responds to relevant and significant public comments.’” Fla. Health Scis. Ctr., Inc. v. Becerra, No. 19-cv-3487, 2021 WL 2823104, at *14 (D.D.C. July 7, 2021) (quoting Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011)) (alterations omitted). An agency must do more than merely “[n]od[] to concerns raised by commenters only to dismiss them in a conclusory manner,” Gresham v. Azar, 950 F.3d 93, 103 (D.C. Cir. 2020), cert. granted sub nom. Arkansas v. Gresham, 141 S. Ct. 890 (2020), but it “need not ‘discuss every item of fact or opinion included in the submissions made to it,’” Carlson v. Postal Regul. Comm’n, 938 F.3d 337, 344 (D.C. Cir. 2019) (quoting Del. Dep’t of Nat. Res. & Envt’l Control v. EPA, 785 F.3d 1, 17 (D.C.
contrary to the controlling regulations, the Final Rule amended the regulatory definitions, and there is no remaining real-world effect of the Smith Directive.
Cir. 2015)). Instead, its response “must be sufficient to enable the courts ‘to see what major issues of policy were ventilated . . . and why the agency reacted to them as it did.’” Id. (quoting Del. Dep’t of Nat. Res., 785 F.3d at 17).
Plaintiffs argue that the agency failed to consider the sheer number of comments opposing the rule. Pls.’ Mot. at 17–19. Although an agency must respond to the substance of significant comments, its determination need not be swayed by volume alone. See Nat. Res. Def. Council, Inc. v. U.S. EPA, 822 F.2d 104, 122 n.17 (D.C. Cir. 1987) (“The substantial-evidence standard has never been taken to mean that an agency rulemaking is a democratic process by which the majority of commenters prevail by sheer weight of numbers . . . . The number and length of comments, without more, is not germane to a court’s substantial-evidence inquiry.”).
Nor is the substance of the comments quite as lopsided as Plaintiffs contend. Many of the comments were from individuals pointing out the importance of increased accessibility in the national parks, which was emphasized in the agency’s reasoning in the Final Rulе and quantified in various studies in the administrative record. See, e.g., AR1161–71 (academic study on the health benefits of e-biking); AR1810 (“As the parent of an adult child with significant stamina and physical limitations, the use of an e-bike is essential for her enjoyment of parks.”); AR1815 (“I have bad knees, an electric assisted bike allows me to once again enjoy cycling.”); AR1822 (“My father is older and not physically capable of biking with a regular bike, but can do so with an electric bicycle.”); AR1830 (“[T]hey just make it easier to enjoy riding for the rider, especially for someone like me who’s physically not able to ride a regular bicycle (I have cancer and chronic fatigue syndrome.)”); AR1850 (“I’m a senior citizen with MS and because of balance and stamina issues, I’m not able to ride a regular bike.”).
Other comments expressed mixed and nuanced views, such as opposing only one part of the rule or how it might apply in particular contexts. See, e.g., AR1813 (“I think that e-bikes should be allowed in parks, however there should be more strict rules applied to them than to regular
Plaintiffs do not point to a specific concern about e-bikes that was wholly ignored by NPS, and the Final Rule directly addrеssed the key concerns raised in the opposing comments. See, e.g., 85 Fed. Reg. at 69,180–81 (addressing concerns about potential overcrowding or conflict with existing uses of trails); id. (addressing the cumulative impact of increased e-bike use on wildlife and trails); id. at 69,181 (addressing concerns about safety due to the higher speeds e-bikes are capable of reaching); id. at 69,183 (addressing the suggestion that conflicting state laws on e-bikes should apply where the park rule is less restrictive). Plaintiffs’ argument is not that the agency failed to respond to the public comments, but rather that its responses were inadequate.
In particular, Plaintiffs take issue with the portion of the Final Rule that only prohibits “using the electric motor exclusively to move an electric bicycle for an extended period of time” on the grounds that numerous comments expressed concern with the enforceability of this provision. Pls.’ Mot. at 18–19. But NPS had specifically requested input on this issue, 85 Fed. Reg. at 19,714, and responded to those comments in detail, saying:
The NPS acknowledges that the aspects of the rule cited by the commenters may pose certain enforcement challenges. However, those challenges are not unique. They regularly arise in the context of enforcing laws that govern recreational use of park areas. For example, regulations governing use of off-road vehicles at
36 CFR 4.10 prohibit operation of an off-road vehicle in a manner that causes unreasonable damage to the surface of a park road or route. Determining when a violation of this regulation occurs can be fact-specific, requiring the exercise of specialized judgment on the part of law enforcement officers. Similarly, determining whether a violation of the prohibition on extended use of throttle power without pedaling occurs will involve the exercise of speciаlized skill, training, and judgment by law enforcement officers. Based on its experience enforcing other regulations that condition how the public recreates on public lands, the NPS believes that law enforcement officers have the expertise necessary to properly exercise their discretion to enforce the limitations on how Class 2 e-bikes may be used in a reasonable manner that ensures protection of public health, safety, and resources and users of the public lands. The NPS has also modified the regulatory text to make clear that using the throttle on a Class 2 e-bike without pedaling is only prohibited if it is done for an extended period of time. This will help law enforcement officials focus only on the more egregious cases of users using the throttle to move Class 2 e-bikes without pedaling.
With respect to differentiating among traditional bicycles and e-bikes, and among classes of e-bikes, the NPS notes that 28 states require e-bikes to have a label that displays the class, top assisted speed, and power outlet of the electric motor. Some e-bikes can be differentiated from traditional bicycles by simple observation. In other cases, the NPS expects that its law enforcement officers will use their specialized skill, training, and judgment to enforce this requirement even if the e-bike is not labeled through observation of riding behaviors, questioning, or other means of investigation. Identifying violations of NPS regulations that occur at speed is not a novel challenge for NPS law enforcement officers. These individuals are tasked on a daily basis with enforcing speed limits and equipment and operational requirements for the use of motor vehicles and vessels used within remote park areas.
85 Fed. Reg. at 69,181–82.
An agency must “adequately explain” its reasoning, but courts will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (second quotation from Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). NPS’s response to enforcement concerns considered the important elements of the problem, explained why it chose to maintain the provision, and even added the “extended” language to assuage concerns about enforceability. The explanation may have sped through the agency’s reasoning faster than Plaintiffs desired and reached a different destination, but it sufficiently clarified the path the agency took. That is enough to withstand judicial scrutiny under the APA. Accordingly, the Court grants summary judgment to the Defendants on the freestanding APA claims in Count I.
C. Federal Vacancies Reform Act (Count III)
The Federal Vacancies Reform Act, or FVRA, is the current statutory framework that gives “the President limited authority to appoint acting officials to temporarily perform the functions of a vacant PAS [Presidential appointment and Senate confirmation] office without first obtaining Senate approval” as required by the Constitution. NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017); see also
Therefore, if the Smith Directive is an action taken in violation of the FVRA and the Final Rule ratified the Smith Directive, the Final Rule would be an impermissible FVRA ratification. Id. Although the Smith Directive was enacted in violation of the FVRA, with the benefit of the Administrative Record, the Court determines that the Final Rule was not an impermissible “ratification” of the Smith Directive and accordingly grants summary judgment to Defendants on the FVRA claim.
P. Daniel Smith, a long-time public servant, assumed the position оf Deputy Director of Congressional and External Relations of the National Park Service in early January 2018. AR0315–18. That position had consistently been one of either two or three Deputy Director positions within the National Park Service since at least 2016. See AR0131 (2016 NPS Organizational Chart); AR0213 (2017 NPS Organizational Chart); AR0277 (2018 NPS Organizational Chart); AR0335 (2019 NPS Organizational Chart). Because NPS has multiple Deputy Directors, none of the Deputy Directors is a “first assistant” who automatically assumes those duties in the vacancy of a Director as contemplated by the FVRA. See
Interior Secretary Zinke delegated authority to Smith to temporarily exercise the authority of the NPS Director on January 24, 2018, just two weeks after Smith had assumed the position of Deputy Director. AR1606–07. That redelegation was subsequently authorized multiple times. AR0911–14. Smith was exercising the authority of the NPS Director at the time he issued the Smith Directive, as did his successor and fellow Deputy Director David Vela and later successor Margaret Everson. See Smith Directive; Suppl. Compl. ¶ 46.6 In fact, the position of NPS Director remained vacant until the Senate confirmation and swearing in of Director Sams in December 2021. See News Release: Charles F. Sams III Sworn in as National Park Services Director, Dep’t Interior (Dec. 16, 2021), https://www.nps.gov/orgs/1207/director-chuck-sams-sworn-in.htm.
The purported authority for the redelegation in Secretarial Order 3345 was Reorganization Plan No. 3 of 1950, which “transferred to the Secretary of the Interior all functions of all other officers of the Department of the Interior” with limited exceptions, and authorized the Secretary to “make such provisions as he shall deem appropriate authorizing the
performance by any other officer, or by any
Defendants argue that Secretarial Order 3345 and its 32 amendments do not run afoul of the FVRA because the FVRA prohibits only the delegation of exclusive functions or duties of the vacant office position. Defs.’ Mot. at 55. They point to the recent guidance of the D.C. Circuit that “[t]he FVRA . . . establishes that a function or duty is exclusive when it is . . . ‘established by statute, and . . . required by statute to be performed by the applicable officer (and only that officer)’ . . . . If Congress wants to make clear that a function or duty is exclusive, it may do so through clear statutory mandates.” Stand Up for California! v. U.S. Dep’t of Interior, 994 F.3d 616, 622 (D.C. Cir. 2021) (quoting
Section 3348(d)(1) only voids action taken “in the performance of any function or duty of a vacant office.”
actions that were properly delegated to subordinate officials were not among the “functions and duties of a vacant office” that must be voided under
But Reorganization Plan No. 3 does not itself delegate, or even refer to, specific duties.7
This Court agrees with others that have considered the interplay between
Here too, Defendants’ argument would result in an end-run around the requirements of the FVRA, which provides “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency” that requires Presidential appointment with the advice and consent of the Senate.
In fact, the District of Montana reached the same conclusion when considering the use of the same Secretarial Order 3345 to temporarily appoint an acting director to the Bureau of Land Management. Bullock v. U.S. Bureau of Land Mgmt., 489 F. Supp. 3d 1112, 1125 (D. Mont. 2020). That court soundly rejected the same argument advanced by Defendants here, stating:
Federal Defendants’ argument attempting to distinguish an “Acting Director” from an “official performing the Director‘s duties under the Secretary‘s delegation” represents a distinction without a differenсe. Such arguments prove evasive and undermine the constitutional system of checks and balances. Federal Defendants’ theory flies in the face of the constitutional design, the clear text of the FVRA that provides the “exclusive” means for temporary appointment, and the history of Executive Branch evasion of the Appointments Clause that led Congress to pass the FVRA in the first place . . . . The President cannot shelter unconstitutional “temporary” appointments for the duration of his presidency through a matryoshka doll of delegated authorities.
Id. at 1125-26. The same is true in this case.
2. Whether the Final Rule Ratified the Smith Directive
Although Smith was improperly filling the role of NPS Director at the time he issued the Smith Directive, he did not sign the Final Rule—the Senate-confirmed Assistant Secretary for Fish and Wildlife Services, George Wallace, did. Defs.’ Mot. at 60 (citing AR21044). If the Final Rule violated the FVRA in its own right, that alone would render it invalid regardless of the question of ratification,
Prior to the current iteration of the FVRA, the D.C. Circuit had “deployed the ratification doctrine expansively to uphold an enforcement action initiated by an acting officer without first deciding whether the acting officer lawfully occupied his position.” Asylumworks, 2022 WL 355213, at *10 (discussing Doolin Sec. Sav. Bank, F.S.B. v. Off. of Thrift Supervision, 139 F.3d 203, 213-14 (D.C. Cir. 1998)). In Doolin, the Circuit noted that it had “no doubt” that the properly appointed officer “made a detached and considered judgment” in adopting the Notice of Charges, and that it had previously upheld a similar ratification “despite misgivings about whether the new FEC had engaged in a ‘real fresh deliberation.‘” Doolin, 139 F.3d at 213 (quoting Federal Election Commission v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996)). In enacting the FVRA, Congress was in part motivated to create a meaningful sanction for noncompliance “in reaction to Doolin.” Asylumworks, 2022 WL 355213, at *11; see also SW Gen., Inc., 796 F.3d at 70 (“Our decision in Doolin . . . prompted congressional action.“).
Under the current version of the FVRA, a statement or directive that merely adopts an earlier action in identical form with no additional reasoning is clearly prohibited. See Asylumworks, 2022 WL 355213, at *11 (rejecting a ratification of this type by a subsequent Secretary); see Behring Reg‘l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 948 (N.D. Cal. 2021), appeal dismissed sub nom. Behring Reg‘l Ctr. LLC v. Mayorkas, No. 21-16421, 2022 WL 602883 (9th Cir. Jan. 7, 2022) (rejecting
First, it is not enough that the agency decisionmaker simply reconsidered the matter anew with an open mind.8 In contexts where the strict ratification bar of the FVRA does not apply, “ratification can remedy a defect . . . ‘when . . . a properly appointed offiсial has the power to conduct an independent evaluation of the merits and does so.‘” Wilkes-Barre Hosp. Co., LLC v. Nat‘l Lab. Rels. Bd., 857 F.3d 364, 371 (D.C. Cir. 2017) (quoting Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111, 117-21 (D.C. Cir. 2015)); see also Nat‘l Lab. Rels. Bd. v. Newark Elec. Corp., 14 F.4th 152, 162 (2d Cir. 2021) (“Valid ratification occurs, therefore, when the [officer], possessing the authority necessary to undertake the ratified act at the time of ratification, and with full knowledge of the material facts, manifests an intent to ratify the act in question.” (citations omitted)). Because, as these cases show, independent judgment in the later decision-making process is itself a requirement of ratification, a later action cannot avoid the ratification bar of the FVRA merely because it was independently reconsidered. Something more must be required.
The Court believes that the important distinction between a ratification prohibited by
That understanding is further consistent with the background principles of ratification in the context of agency law found in the Restatement of Agency, which courts have long used to inform ratifications of administrative actions in the executive branch. See Fed. Election Comm‘n v. NRA Pol. Victory Fund, 513 U.S. 88, 98 (1994) (“The question is at least presumptively governed by principles of agency law, and in рarticular the doctrine of ratification.“); Nat‘l Lab. Rels. Bd. v. Newark Elec. Corp., 14 F.4th at 161 (“[T]he Supreme Court reasoned that general principles of agency law . . . apply when dealing with ratification
In contrast, Plaintiffs’ argument focuses on the substantive policy position—something much broader. As Defendants point out, Congress used markedly different language to prohibit later adoption of the same or similar substantive policy elsewhere in the same title as a penalty for violations of the Congressional Review Act. Defs.’ Mot. at 61 (citing
Of course, the Court by no means forecloses the possibility that a ratification may occur where a technically distinct procedural “action” ratifies an earlier, impermissible one by rubberstаmping it. It was for precisely that reason that this Court previously held that further review of the record was necessary in order to determine whether the Final Rule ratified the Smith Directive within the meaning of the FVRA. PEER 1, 2021 WL 1198047, at *15. Now, however, after careful review of the administrative record, the Court believes the Final Rule was indeed a new deliberative action that reached a similar conclusion.
Of key importance, the procedural process that shaped the Final Rule was different from the one that shaped the Smith Directive. Unlike the Smith Directive, which was issued just a day after Secretarial Order 3376 and interpreted the existing regulations, the Final Rule amended the regulations to add a new category for e-bikes. See 85 Fed. Reg. at 69,175-77 (summarizing the sequence of events). It also considered new material not evaluated prior to the Smith Directive, most importantly the voluminous public input in the form of comments on the proposed rule. NPS requested—and received—input on the proposed rule in the form of public comments, such as specifically requesting comments on whether the restriction in the Smith Directive that “would prohibit an operator from using the electric motor to move an e-bike without pedaling” in areas where motor vehicles were not allowed was “appropriate or workable.” 85 Fed. Reg. 19,711, 19,714; see also AR001642-21030 (excerpted public comments). By the close of the comment period, the agency had “received more than 17,000 comments on the proposed rule.” 85 Fed. Reg. at 69,177. The scope of the record that informed the Final Rule was therefore much broader than the one that informed the Smith Directive.
The Court does not doubt that NPS independently and fairly considered this new evidence with an open mind. In addition to the “presumption of regularity” that attaches to agency actions, see Armstrong [as referenced via Gregory, 534 U.S. at 10], the Final Rule describes several places where the Rule was in fact revised in response to comments, see 85 Fed. Reg. at 69,179 (“In order to reduce the potential that this will create a perception that all three classes of e-bikes are allowed in all park areas, the NPS has revised the regulatory text in
The impact of the comments and additional review undertaken by NPS during the rulemaking process can also be observed in other substantive differences between the Smith Directive and the Final Rule, most importantly, the greater discretion provided to park superintendents in the Final Rule. See PEER 1, 2021 WL 1198047, at *2 (“The Final Rule also uses more permissive language than the Smith Directive, providing that ‘electric bikes may be allowed on roads, parking areas, administrative roads and trails that are open to bicycles.’ In contrast, the Smith Directive indicated to park superintendents that ‘[e]-bikes are allowed where traditional bicycles are allowed.‘” (emphasis in original) (citations omitted)). These substantive differences strongly suggest that the Final Rule is a new procedural action. Cf. Intercollegiate Broad. Sys., Inc., 796 F.3d at 121 (pointing out that “the new determination differs from the previous one on a number of points” not challenged by the parties). If the Final Rule had dramatically changed course from the Smith Directive, such as by disallowing e-bikes or defining them as motor vehicles, there would be no debate over whether a “ratification” had occurred. But a new “action” may also legitimately result in a similar, if not identical, policy.
Altogethеr, the Court believes that the Final Rule was an independently reached new decision on the same substantive topic, not an improper ratification of the Smith Directive. Accordingly, it grants summary judgment to the Defendants on Count III.
D. Organic Act (Count IV)
Plaintiffs also argue that Smith‘s appointment as a Deputy Director violated the NPS Organic Act, which specifies only two Deputy Director positions, one for Operations and the other for Programs. Pls.’ Mot. at 32 (citing
The Court need not resolve this issue because even if Plaintiffs’ interpretation of the Organic Act is correct and Smith was acting ultra vires, there are no remaining effects of the Smith Directive alone that can now be remedied by the Court.9 Plaintiffs
E. Federal Advisory Committees Act (Count V)
The Federal Advisory Committees Act (“FACA“),
Plaintiffs assert that “from late 2017 through late 2019 the NPS violated FACA by convening meetings and teleconferences of the ‘E-bike Partner & Agency Group,‘” which was conducted by invite only and comprised of private industry groups and agency employees. Pls.’ Mot. 35-36. Defendants concede that the group failed to comply with the statutory notice requirements, see Defs.’ Answer to Pls.’ Am. Suppl. Compl. ¶ 41, and do not meaningfully advance any argument that the E-bike Group‘s membership was fairly balanced across the spectrum of industry and interest groups, see Defs.’ Mot. at 46-47. Instead, Defendants argue that the E-bike Group was not an advisory committee at all, and thus FACA did not apply.
1. Whether the E-Bike Group was an Advisory Committee
An “advisory committee” is “any committee, board, commission, council, conference, panel, task force, or other similar group . . . which is . . . established or utilized by one or more agencies, in the interest of obtaining advice or recommendations.”
One “important factor in determining the presence of an advisory committee [is] the formality and structure of the group.” Ass‘n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 914 (D.C. Cir. 1993). Courts therefore look to whether the group has “an organized structure, a fixed membership, and a specific purpose.” Id. For that reasоn, showing that “a particular group is a FACA advisory committee over the objection of the executive branch” is a steep hill to climb. Id.; see also Food & Water Watch, 357 F. Supp. 3d at 11 (noting that “although a de facto advisory committee may be a viable theory, at a minimum, it is difficult to prove“). Still, the E-bike Group had many of the hallmarks of a formal, organized advisory committee. It was coordinated and hosted by Interior officials for a specific purpose, primarily “promot[ing] interagency coordination on electric bicycle policies” and “[d]isscuss[ing] joint solutions and next steps to progress federal policy around electric bicycles.” AR0430 (stating objectives in agenda for the first meeting); see also AR23043 (“These calls have served a beneficial coordination purpose between agencies and our official partnering entities on the e-bike topic.“). Meetings were held quarterly, with in-person and dial-in options, agendas circulated in advance, and minutes and action items circulated afterwards. See, e.g., AR0452-53 (email from an NPS employee thanking attendees of the first meeting and stating that “we plan to host these interagency meetings on a quarterly basis, to allow for continued coordination“); AR00428 (providing a draft agenda); AR00436-39 (email attaching minutes from the first meeting and “highlighting next steps“).
Defendants emphasize that the E-bike group did not have a rigidly fixed membership, characterizing it as a “interagency group” of solely federal employees that occasionally invited private interest groups to participate in meetings. Defs.’ Mot. at 48-49. That characterization is dubious. The administrative record demonstrates that the membership of the group expanded over time but consistently represented a core group of entities from both agencies and private interests, and that at least one private interest group—People for Bikes—was continually involved with nearly every аspect of the E-bike Group. See, e.g., AR00447 (email between People for Bikes and NPS setting up a pre-meeting call and discussing the agenda); AR0466 (stating that “PeopleforBikes is willing to support us moving forward“). And while not strictly fixed, attendance and membership were closely monitored and managed by the agency. See AR00427 (discussing a Google doc of potential invitees); AR00429 (telling invitees to the first meeting that “if you have colleagues or peers in your agencies who work on . . . policies that pertain to electric bicycles, who would be interested in contributing to the conversation . . . . Please let me know who you have in mind and I will extend an invitation“); AR00475 (emailing about additional groups who “would like to be at the table” and asking “Would you like me to invite them to the call? Or should we discuss on the call the best way to proceed with these groups?“). On the other hand, the fluctuation in membership suggests that there may not have been a clear or consistent understanding of “a vote in or, if the committee acts by consensus, a veto over the committee‘s decisions.” In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005). Still, the membership of a group, like the other factors for identifying an advisory committee, will usually fall along “a continuum.” Ass‘n of Am. Physicians & Surgeons, Inc., 997 F.2d at 915. When considering the semi-stable membership of the E-bike Group along with its established purpose, regular meetings, and logistical coordination, the Court believes it falls closer to the end of the continuum where FACA applies.
Even more than the structure of the committee, the most important inquiry
Defendants nevertheless argue that the E-bike Group was not an advisory committee because no finalized group advice was ever formally produced. Defs.’ Mot. at 49. This is true—although multiple versions of a draft White Paper on e-bikes were circulated, see AR00464, 490-507, 545, 559-68, and 597-606, the paper appears to have been abandoned at some point in mid-July 2018.10 But a formalized group policy statement need not necessarily come to fruition before a committee is considered to be working as a group. See Ass‘n of Am. Physicians & Surgeons, Inc., 997 F.2d at 913 (noting that an advisory committee need not necessarily give “consensus” advice, because some “are established presumably with the full expectation that the positions to be taken and the advice to be offered may well be sharply divided“); Freedom Watch, Inc. v. Obama, 930 F. Supp. 2d 98, 102 (D.D.C. 2013), aff‘d, 559 F. App‘x 1 (D.C. Cir. 2014) (determining that a stakeholder group was not an advisory committee where “the individuals attending these meetings varied significantly and there is no evidence that the defendants had the goals of attaining collective advice or collaborative work product from the stakeholder meetings” (emphasis added)).
The lack of a finalized policy recommendation is also relevant to Defendants’ next argument: that Plaintiffs have not shown any direct link between the E-bike Group and the Smith Directive, let alone the Final Rule. Defs.’ Mot. at 3. FACA covers committees that are “established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for . . . one or more agencies or officers of the Federal Government.”
The case Defendants cite for support is distinguishable on this first ground. Defs.’ Mot. at 52 (citing Food & Water Watch, 357 F. Supp. 3d at 14). In Food & Water Watch, the “group decisions or recommendations” at issue “pertained to planning the anticipated committee” and never reached the point of developing policy recommendations on the proposed topic. Id. at 13. The Court held that “FACA permits initial meetings . . . to determine the scope and mission of an advisory council before
Not every group advising on policy will necessarily implicate FACA, however, if it does not provide policy advice and recommendations “for the President or one or more agencies or officers of the Federal Government.”
Considering all these elements together, the Court believes that the E-bike Group was an advisory committee within the meaning of FACA. That does not mean, however, that Plaintiffs are entitled to the relief that they seek.
2. Whether Plaintiffs are Entitled to any Relief
Defendants further argue that the notice-and-comment rulemaking process “cured” any technical FACA violation to the extent it occurred. Defs.’ Mot. at 52-54. The cases they cite do not necessarily hold that a FACA violation can be “cured” by the rulemaking process, rather they address the appropriate remedy for a FACA violation. In Ctr. for Auto Safety v. Tiemann, the court held that a violation had occurred and that the plaintiffs were entitled to summary judgment on their FACA claim but declined to invalidate a state plan approved under the allegedly tainted regulations because no prejudice had resulted and the plaintiff had even commented during the proposed rulemaking. 414 F. Supp. 215, 226 (D.D.C. 1976), rev‘d on other grounds sub nom. Ctr. for Auto Safety v. Cox, 580 F.2d 689 (D.C. Cir. 1978). Nat‘l Nutritional Foods Ass‘n v. Califano followed the same pattern. See 603 F.2d 327, 336 (2d Cir. 1979) (holding “this to be a situation wherein Congress meant FACA to apply” but that “no court has held that a violation of FACA would invalidate a regulation adopted under otherwise appropriate procedures, simply because it stemmed from the advisory committee‘s recommendations . . . . We perceive no sound basis for doing so“); see also Seattle Audubon Soc. v. Lyons, 871 F. Supp. 1291, 1309 (W.D. Wash. 1994), aff‘d sub nom. Seattle Audubon Soc. v. Moseley, 80 F.3d 1401 (9th Cir. 1996) (“[O]nce a committee has served its purpose, courts generally have
Here too, although a technical FACA violation occurred, it was harmless error as to the Final Rule. Plaintiffs point to circumstantial evidence suggesting that the E-bike Committee influenсed the Smith Directive, such as the timing of the meetings, which led up to the issuance of the Smith Directive and concluded shortly thereafter, and some of the draft language in the White Paper that directly foreshadows the Smith Directive. Pls.’ Reply at 30-31 (discussing AR0560-61, the draft White Paper that suggested issuing “new policy guidance to exclude certain e-bikes from the definition of ‘motor vehicle‘” at
F. National Environmental Policy Act (Count II)
The National Environmental Policy Act (“NEPA“),
Not every federal action requires the preparation of an EIS or EA. The Council on Environmental Quality regulations for NEPA also direct agencies to identify in their own regulations “categories of actions that normally do not have a significant effect on the human environment, and therefore do not require preparation of an environmental assessment or environmental impact statement.”
1. Whether the Smith Directive Complied with NEPA
The Smith Directive itself did not state whether NPS had conducted any NEPA analysis of any type—whether an EIS, EA, or Categorical Exclusion—before issuing the directive, AR0918-21, but NPS argues that the Smith Directive relied on
Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.
Defs.’ Mot. at 27 (quoting
Defendants argue that the lack of documentation explicitly invoking and explaining this Categorical Exclusion for the Smith Directive is not fatal, because it comes from the list in the Interior NEPA regulations that do not require documentation. Defs.’ Mot. at 28; AR1026. Defendants are correct that formal documentation for invoking a categorical exclusion is not per se required. See Back Country Horsemen of Am. v. Johanns, 424 F. Supp. 2d 89, 99 (D.D.C. 2006) (rejecting an argument that the Forest Service‘s assertion of a Categorical Exclusion was “a ‘post-hoc’ rationalization” because “the agency had no obligation to formally document its decision” under internal guidelines). But multiple courts have held that there must be at least some evidence that the Categorical Exclusion was in fact considered, because “[i]t is difficult . . . to determine if the application of an exclusion is arbitrary and capricious where there is no contemporaneous documentation to show that the agency considered the environmental consequences of its action and decided to apply a Categorical Exclusion to the facts of a particular decision.” California v. Norton, 311 F.3d 1162, 1176 (9th Cir. 2002); see also Wilderness Watch & Pub. Emps. for Env‘t Resp. v. Mainella, 375 F.3d 1085, 1095 (11th Cir. 2004) (same); Edmonds Inst. v. Babbitt, 42 F. Supp. 2d 1, 18 n.11 (D.D.C. 1999) (“[A] post hoc assertion of a CE during litigation, unsupported by any evidence in the administrative record or elsewhere that such a determination was made at the appropriate time, cannot justify a failure to prepare either an EA or an EIS.“). The Court also registers its deep concern that there is no way of knowing whether NPS considered the presence of any exceptional circumstances before enacting the Smith Directive, as it would have been required to do before invoking the Categorical Exclusion. See Humane Soc. of U.S. v. Johanns, 520 F. Supp. 2d 8, 34 (D.D.C. 2007) (holding that an agency may not “avoid NEPA review simply by failing even to consider”
whether a normally excluded action may have a significant environmental impact” (emphasis in original)). Nevertheless, the Court assumes that the agency did apply the Categorical Exclusion in
Beginning with the text of the Categorical Exclusion at issue, it encompasses two alternate types of policies: 1) those “that are of an administrative, financial, legal, technical, оr procedural nature;” and 2) those “whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.”
The second alternative comes closer, but the Court remains unpersuaded that it was properly invoked. For one thing, the environmental impacts of the Smith Directive were not too speculative “to lend themselves to meaningful analysis.” See
NPS emphаsizes the vast diversity and geography of the National Park System in support of its argument that analysis of the nation-wide impacts of the Smith Directive would not have been “meaningful,” and that diversity does mean that further evaluation would be required at the individual park level. But NPS‘s assertion in the Final Rule13 that “[a]ddressing potential environmental and social impacts are most meaningful at the park level” mistakenly treats park-level analysis and national-level analysis as an either/or proposition. See 85 Fed. Reg. at 69,187. The Categorical Exclusion does not excuse NEPA analysis where it would not be the “most” meaningful, only where it would not be meaningful at all. In fact, the entire purpose of tiering in NEPA analysis is to make both levels of review meaningful by “incorporat[ing] by reference the general discussions of prior, broader environmental impact statements” on “site-specific
action is taken and those effects fully known.” Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm‘n, 481 F.2d 1079, 1092 (D.C. Cir. 1973). In short, further analysis of these environmental effects would have been both possible and meaningful.
The justification in the Final Rule relied heavily on the discretion of park superintendents who may choose to implement the Rule in a variety of ways. 85 Fed. Reg. 69,187 (“This rule does not require that e-bikes be allowed anywhere in the National Park System.“). As this Court already pointed out in its prior opinion, that argument does not apply to the plain terms of the Smith Directive, which required that e-bikes be allowed where traditional bicycles were allowed. PEER 1, 2021 WL 1198047, at *13 (“The language of the Smith Directive does not just authorize e-bike use, it makes it compulsory for those NPS parks . . . that already allowed other types of bicycles.“). Any reliance on this reasoning for the Smith Directive, to the extent it occurred, was unreasonable for that reason alone. In addition, this reasoning in both the Smith Directive and the Final Rule commits the classic NEPA error of considering only the effects of what a policy actually, directly authorizes rather than the reasonably foreseeable impacts of a policy. See Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 17 (D.D.C. 2009) (“Defendants’ failure to apply the correct standard by which to consider environmental impacts—by examining what the Final Rule authorized as opposed to the foreseeable consequences that would occur as a result of the Final Rule—is sufficient by itself to render the DOI‘s decision to invoke a categorical exclusion arbitrary and capricious.“). Like the agency in Brady Campaign, “[r]ather than performing an evaluation to ascertain the extent of any foreseeable environmental impacts,” NPS appears to have “simply assumed there were none because the Final Rule did not authorize any impacts.” Id.
Furthermore, the Categorical Exemption in
The vast majority of the park units whose decisions are documented in the record14 took the Smith Directive‘s invitation
Basically, the Smith Directive attempted to avoid conducting any environmental analysis because the park units would do so, and the park units in turn largely declined to conduct additional analysis because the Smith Directive had already suggested that the change was minimal. “The purpose and function of NEPA is satisfied if Federal agencies have considered relevant environmental information, and the public has been informed regarding the decision-making process.”
NPS also entirely bypassed the opportunity to consider the cumulative impacts of the Smith Directive or consider whether the sum of the e-bike policy implementation might be greater than its parts. This approach is at odds with the principle of anti-segmentation,15 which “ensures agencies cannot evade their responsibilities under NEPA by artificially dividing a major federal action into smaller components, each without a significant impact.” Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 301 F. Supp. 3d 50, 66 (D.D.C. 2018) (quotations and alterations omitted). At most, the superintendents considered only the impacts of e-bike use on their individual park units, not any collective impact. See Fund for Animals v. Hall, 448 F. Supp. 2d 127, 130, 132-3 (D.D.C. 2006) (finding a NEPA violation where the Fish and Wildlife Service did not prepare an EA or EIS prior to publishing final rules that expanded recreational hunting in wildlife refuges nation-wide even though the individual refuges prepared EAs).
As the NPS NEPA Handbook admonishes, “[t]he proposed action . . . should easily fit into the category of actions described by the CE.” AR1024. Assuming that NPS did contemporaneously invoke
In contrast, the Final Rule did explicitly invoke
The Final Rule also relied in part on the Smith Directive when disagreeing with commenters who suggested that extraordinary impacts might apply. See id. at 69187-88 (“This rule would not have highly uncertain, and potentially significant environmental effects . . . [because] e-bikes are generally similar to impacts from bicycle use . . . . This is reinforced by the fact that most NPS units that havе allowed e-bikes and have completed a site-specific NEPA review have applied a categorical exclusion.“). The Final Rule also stated in conclusory fashion that it “does not establish a precedent for future action,” another extraordinary circumstance that could preclude application of a Categorical Exclusion. Id. The Court disagrees—the Rule established a framework that could and foreseeably would be relied on for future action. And regardless, even if the Rule did not set a past precedent for expanded e-bike use, the Smith Directive surely did.
By relying on the fact that NEPA analysis that had already been “required” by the Smith Directive, and those
3. Remedy
The final question of remedy remains. “The ordinary practice . . . is to vacate unlawful agency action, and district courts in this circuit routinely vacate agency actions taken in violation of NEPA.” Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 985 F.3d 1032, 1050 (D.C. Cir. 2021) (citations and quotations omitted). But Courts also have discretion “to leave agency action in place while the decision is remanded for further explanation.” Id. at 1051. “The decision whether to vacate depends on the seriousness of the order‘s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.” Allied-Signal Inc. v. U.S. Nuclear Regul. Comm‘n, 988 F.2d 146, 150-51 (D.C. Cir. 1993) (quotations omitted). “Put otherwise, this Court must determine whether there is ‘at least a serious possibility that the [agency] will be able to substantiate its decision on remand,’ and whether vacatur will lead to impermissibly disruptive consequences in the interim.” WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 84 (D.D.C. 2019) (quoting Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 282 F. Supp. 3d 91, 97 (D.D.C. 2017)).
Although the use of a Categorical Exclusion in the Smith Directive was an error, intervening steps taken by the agency have mitigated the seriousness of the initial error. The Court can no longer vacate the Smith Directive, where the error actually occurred, and the only vacatur that would have any real-world consequence at this point would be of the Final Rule. The Final Rule, in contrast to the Smith Directive, now contains a discretionary standard for permitting e-bikes in each park, and the requirement that the parks which had authorized e-bikes under the Smith Directive recertify their decisions under the discretionary standard ensures that this discretionary standard universally governs park policies on e-bikes.
The record already suggests that there will likely be both positive and negative impacts of e-bikes. The agency is required to take a hard look at them, and that analysis could potentially alter the outcome of the Final Rule, but there is “at least a serious possibility that [NPS] will be able to substantiate its decision on remand.” See Standing Rock Sioux Tribe, 282 F. Supp. 3d at 97. Nor does NPS‘s error necessarily require that NPS prepare a full EIS as opposed to some other form of NEPA compliance. On remand, the agency will need to determine the proper level of NEPA compliance for the Final Rule, adequately document its reasoning, and provide opportunity for public input as appropriate.
The potential disruptive consequences of vacatur, while not particularly catastrophic, are therefore not warranted by the severity оf the violation. Park administrators
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment (ECF No. 42) is GRANTED IN PART with respect to the NEPA claim in Count 2 and DENIED IN PART in all other respects, and Defendants’ Cross-Motion for Summary Judgment (ECF No. 45) is GRANTED IN PART with respect to Counts 1, 3, 4, and 5, and DENIED IN PART with respect to Count 2, and the Final Rule will be remanded without vacatur to the agency to conduct additional NEPA analysis. Plaintiffs’ Motion for Leave to File a Surreply (ECF No. 50) is GRANTED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: May 24, 2022
RUDOLPH CONTRERAS
United States District Judge