GCNP: Settlement Agreement (Jan 17, 2002)(102KB)
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
GRAND CANYON PRIVATE BOATERS )
ASSOCIATION, an Arizona Non-Profit )
Corporation; AMERICAN WHITEWATER, a )
Missouri Non-Profit Corporation; NATIONAL ) CV-00-1277-PCT-PGR-TSZ
PARKS AND CONSERVATION
ASSOCIATION, )
a District of Columbia Non-Profit Corporation; )
AMERICAN CANOE ASSOCIATION, a New )
York Non-Profit Corporation; ELIZABETH )
BOUSSARD; KIM CRUMBO; JOHN )
BACHRACH; and MARTY WILSON; )
)
Plaintiffs, )
)
v.
)
)
JOSEPH ALSTON, in his official )
capacity as Superintendent, Grand Canyon )
National Park; FRAN P. MAINELLA, in her )
official capacity as Director, National Park Service; )
GALE NORTON, in her official capacity as )
Secretary of the Interior; and the NATIONAL )
PARK SERVICE, an
agency of the United States; )
)
Defendants, )
)
GRAND CANYON RIVER OUTFITTERS )
ASSOCIATION, )
)
Intervening
Defendant. )
________________________________________________)
SETTLEMENT AGREEMENT
It is hereby stipulated and agreed, by and between the parties herein,
that the lawsuit styled Grand Canyon Private Boaters Ass’n v. Alston,
Case No. CV-00-1277-PCT-PGR-TSZ, presently pending in the United States
District Court for the District of Arizona, shall be settled in accordance with
the terms of this Settlement Agreement (hereinafter “Agreement”):
WHEREAS, plaintiffs Grand Canyon Private Boaters Association, American
Whitewater, National Parks and Conservation Association, American Canoe
Association, Elizabeth Boussard, Kim Crumbo, John Bachrach, and Marty Wilson
(hereinafter “Plaintiffs”) have filed the action Grand Canyon Private
Boaters Ass’n v. Alston, Case No. CV-00-1277-PCT-PGR-TSZ (D. Ariz.), in
which the Plaintiffs claim that the defendants National Park Service, U.S.
Department of the Interior, Secretary of Interior Gale Norton, National Park
Service Director Fran P. Mainella, and Grand Canyon National Park
Superintendent Joseph Alston (hereinafter “Federal Defendants” or “Service”)
have violated the Wilderness Act, the Grand Canyon Enlargement Act, the
National Park Service Organic Act, the National Environmental Policy Act, the
National Park Service Concessions Policy Act, and other laws related to
management of activities on the Colorado River and in the backcountry in Grand
Canyon National Park (hereinafter “Park”); and
WHEREAS, the Plaintiffs, Federal
Defendants, and Intervening Defendant Grand Canyon River Outfitters Association
(hereinafter collectively “Parties”) agree that it is appropriate and in
the public interest to resolve amicably and without further litigation, on the
terms set forth below, the Plaintiffs’ claims in the above referenced case;
NOW, THEREFORE, without admitting or
conceding wrongdoing or liability, the Parties mutually agree as follows:
1.
Colorado River Management Plan.
A. Within 120 days after entry of an order
dismissing the above-referenced action, the Service will initiate planning
efforts to update the Park’s Colorado River Management Plan (hereinafter
“CRMP”) of 1989. In connection with
this planning process, the Service will prepare appropriate environmental
documentation consistent with the National Environmental Policy Act of 1969. The Service will host one public scoping
meeting and one public meeting to receive comments on the draft revised river
management plan in, at a minimum, each of the following four cities: Flagstaff, Phoenix, Salt Lake City, and
Denver.
B. The Parties acknowledge that during the CRMP
planning process, the Service will consult as appropriate with other
individuals and entities, including but not limited to federally recognized
Indian tribes.
C. Consistent with the National Environmental
Policy Act, during the CRMP planning process, the Service will consider, among
other things:
i. the appropriate level of visitor use on the
Colorado River consistent with resource protection and visitor experience
goals;
ii. the allocation of use of the Colorado River
between commercial and non-commercial users, the allocation of use between
different types of commercial users (e.g., between motorized and non-motorized
trips), and alternatives to the current system of commercial/non-commercial
allocation;
iii. in consultation with the Hualapai Indian
Tribe of Arizona and other appropriate parties, the continued use of
helicopters and alternatives to the use of helicopters to transport river
passengers in the vicinity of Whitmore Wash;
iv. the impacts of motorized water craft,
potential mitigation of those impacts (including technological improvements to
motors), and a reasonable range of alternatives with respect to the current
ratio of motorized craft to non-motorized craft, which alternatives may include
a no-motors alternative as well as one or more alternatives that contemplate
the continued use of motors; and
v. the range of services to be provided to the
public.
D. In connection with the CRMP planning
process, the Service will issue a final NEPA compliance document by December
31, 2004.
E. The Plaintiffs acknowledge that the Service
may extend the current river outfitters’ concession contracts for up to a total
of three years from the current expiration date of those contracts, which is
December 31, 2002. The Plaintiffs and
the Intervening Defendant will not challenge, obstruct, delay, or otherwise
seek to prevent such extension(s).
F. The Service will seek sufficient funds to
accomplish the CRMP planning process.
G. The Plaintiffs and Intervening Defendant
will cooperate with the Service in the CRMP planning process by, among other
things, making information requested by the Service available on a timely
basis. This information may include,
without limitation, demographic information regarding river use, demand for
river trips, and needs of river users.
In accordance with their existing privacy policies, Plaintiffs and
Intervening Defendant may protect the privacy of individual members or
customers. In updating the CRMP, the
Service will not rely on any information provided by Plaintiffs, Intervening
Defendant, or any other party that is not deemed public information by
all of the Parties.
H. Within five (5)
business days after the end of the 2001 primary season (or ten days after this
Agreement takes effect, whichever is later), the Intervening Defendant will
notify the Service of the number of unused user-days from the commercial,
primary-season user-day allocation, if any, for the 2001 primary season. The Service agrees to make such unused
user-days available for use for noncommercial access during the 2001-2002
secondary season, utilizing launch dates to be determined solely by the
Service. Consistent with the Service’s
discretion to achieve resource management objectives and the availability of
sufficient unused user-days from the commercial primary-season allocation, the
Service and Intervening Defendant will repeat the process identified in the
first two sentences of this paragraph, on a year-by-year basis, through the
2004 primary season and subsequent 2004-2005 secondary season. The Parties acknowledge that the small
number of commercial user-days that currently go unused result from practical
and logistical impediments to booking to one hundred percent of any fixed
allocation of use and therefore provide no indication as to the public's interest
in or demand for commercial river trips in Grand Canyon National Park.
2.
The Service will make available to Plaintiffs and Intervening Defendant
the following information at least once a quarter:
A. Logs or other documentation showing the
number, date, purpose, number of participants, and user days of administrative
launches (including science and research launches) by the Service;
B. Documentation of “minimum requirement”
analyses for those launches described in subparagraph A above for the year 2000
and for subsequent years through 2004.
3.
Backcountry Management Plan. The Service agrees
that it will publish a notice of intent to review and revise the Park’s
Backcountry Management Plan, which provides guidance for management of the
Park’s backcountry, including areas that have been proposed as wilderness. The process of reviewing and revising the
Backcountry Management Plan need not be linked to the CRMP planning process,
and may take place after completion of the CRMP planning process. The Service shall prepare appropriate
environmental documentation related to revisions of the Backcountry Management
Plan.
4.
Attorneys Fees and Costs.
Without in any way admitting that its position in the above-referenced
action was not substantially justified, the Federal Defendants will pay to the
Plaintiffs the sum of $3,063 in costs and $30,000 in attorneys fees in
full satisfaction of any claim for attorneys’ fees, costs, and other expenses
related to the above-referenced action.
The Plaintiffs will have no further recourse against the Federal
Defendants for any additional payment of attorneys’ fees, costs, or other
expenses related to the above-referenced action.
5.
Nothing in this Agreement shall be construed or offered in evidence in
any proceeding as an admission or concession of wrongdoing, liability, or any
issue of fact or law concerning the claims settled under this Agreement. Federal Defendants do not hereby waive any
defenses they may have concerning the claims settled under this Agreement. This Agreement is executed solely for the
purpose of compromising and settling this litigation and nothing herein shall
be construed as precedent in any other context. Nothing in this Agreement shall be construed to deprive a federal
official of authority to revise, amend or promulgate regulations. Nothing in this agreement shall be construed
to commit a federal official to obligate or expend funds in violation of the
Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable appropriations
law. Nothing in this Agreement is
intended to affect the Parties’ obligations to comply with the applicable laws
of the Hualapai Indian Tribe.
Furthermore, nothing in this Agreement is intended to affect the rights
of the Hualapai Indian Tribe or the Parties’ obligations with respect to any
permits that may be required on the Hualapai Indian Reservation. The Federal Defendants will respect the
intergovernmental agreements between the National Park Service and the Hualapai
Indian Tribe concerning the Area of Cooperation as defined in those
agreements. In the sound exercise of
their discretion, the Federal Defendants will exercise their best efforts to
incorporate into the CRMP planning process the ongoing negotiations and
consultations between the National Park Service and the Tribe concerning the
Area of Cooperation and to incorporate into the CRMP itself the results of
those negotiations and consultations.
This Agreement settles all claims brought by the Plaintiff against the
Federal Defendants in this case and represents the entirety of the parties’
commitments with regard to settlement.
6.
Plaintiffs agree to dismiss their claims pursuant to a joint stipulation
of dismissal under Federal Rule of Civil Procedure 41. This Agreement shall be attached to the
joint stipulation of dismissal filed with the Court. This Agreement shall not take effect until Plaintiffs’ claims
against the Federal Defendants have been dismissed by the Court. Plaintiffs’
dismissal shall be without prejudice, except that: 1) until December 31, 2004
Plaintiffs may refile their claims related to the Park’s management of the
River corridor only if the Federal Defendants breach this Agreement; and 2)
until December 31, 2005, Plaintiffs may refile their claims related to the
Park’s management of the backcountry outside of the River corridor only if the
Federal Defendants do not publish the notice of intent referred to in paragraph
3 of this Agreement. The filing
of this Agreement shall not be construed to constitute consent by the parties
to the entry of the Agreement as an order of the Court, or to constitute
consent by the parties to an action for specific performance of the terms of
this Agreement.
Dated: _______, 2002. ____________________________
LORI
POTTER, ESQ.
Kelly,
Haglund, Garnsey & Kahn, LLC
1441
Eighteenth Street, Suite 300
Denver,
Colorado 80202-1255
(303)
296-9412 (telephone)
(303)
293-8705 (fax)
Attorneys
for the Plaintiffs.
Dated: ________, 2002. THOMAS
L. SANSONETTI
Assistant
Attorney General
Environment
& Natural Resources Division
____________________________
T.
NEAL McALILEY, ESQ.
Trial
Attorney
General
Litigation Section
Environment
& Natural Resources Division
U.S.
Department of Justice
99
N.E. Fourth St., Room 415
Miami,
Florida 33132-2111
(305)
961-9415 (telephone)
(305)
536-4651 (fax)
Of Counsel: ROBERT
EATON, ESQ.
Office
of the Field Solicitor
U.S.
Department of the Interior
2968
Rodeo Park Dr. West
Paisano
Bldg. Rm. 2070
Santa
Fe, New Mexico 87505
(505)
988-6200 (telephone)
(505)
988-6217 (fax)
Attorneys
for the Federal Defendants.
Dated: _________, 2002. _____________________________
SAM
KALEN, ESQ.
JONATHAN
SIMON, ESQ.
Van
Ness Feldman, PC
1050
Thomas Jefferson, NW
Seventh
Floor
Washington,
DC 20007
(202)
298-1800 (telephone)
(202)
338-2416 (fax)
Attorneys
for the Intervening Defendant.
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
GRAND CANYON PRIVATE BOATERS )
ASSOCIATION, an Arizona Non-Profit )
Corporation; AMERICAN WHITEWATER, a )
Missouri Non-Profit Corporation; NATIONAL ) CV-00-1277-PCT-PGR-TSZ
PARKS AND CONSERVATION
ASSOCIATION, )
a District of Columbia Non-Profit Corporation; )
AMERICAN CANOE ASSOCIATION, a New )
York Non-Profit Corporation; ELIZABETH )
BOUSSARD; KIM CRUMBO; JOHN )
BACHRACH; and MARTY WILSON; )
)
Plaintiffs, )
)
v.
)
)
JOSEPH ALSTON, in his official )
capacity as Superintendent, Grand Canyon )
National Park; FRAN P. MAINELLA, in her )
official capacity as Director, National Park Service; )
GALE NORTON, in her official capacity as )
Secretary of the Interior; and the NATIONAL )
PARK SERVICE, an
agency of the United States; )
)
Defendants, )
)
GRAND CANYON RIVER OUTFITTERS )
ASSOCIATION, )
)
Intervening
Defendant. )
________________________________________________)
JOINT STIPULATION OF DISMISSAL
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1)(ii)
Having reached a settlement of the
Plaintiffs’ claims in this case pursuant to the attached Settlement Agreement,
the parties hereby jointly stipulate to dismissal of Plaintiffs’ claims in this
action pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii). The parties stipulate that this dismissal
shall be without prejudice; except that, 1) until December 31, 2004 Plaintiffs
may refile their claims related to Grand Canyon National Park’s management of
the Colorado River corridor only if the Federal Defendants breach this
Agreement; and 2) until December 31, 2005, Plaintiffs may refile their claims
related to Grand Canyon National Park’s management of the backcountry outside
of the Colorado River corridor only if the Federal Defendants do not publish
the notice of intent referred to in paragraph 3 of this Agreement.
Dated: _______, 2002. ____________________________
LORI
POTTER, ESQ.
Kelly,
Haglund, Garnsey & Kahn, LLC
1441
Eighteenth Street, Suite 300
Denver,
Colorado 80202-1255
(303)
296-9412 (telephone)
(303)
293-8705 (fax)
Attorneys
for the Plaintiffs.
Dated: ________, 2002. THOMAS L. SANSONETTI
Assistant
Attorney General
Environment
& Natural Resources Division
____________________________
T.
NEAL McALILEY, ESQ.
Trial
Attorney
General
Litigation Section
Environment
& Natural Resources Division
U.S.
Department of Justice
99
N.E. Fourth St., Room 415
Miami,
Florida 33132-2111
(305)
961-9415 (telephone)
(305)
536-4651 (fax)
Of Counsel: ROBERT
EATON, ESQ.
Office
of the Field Solicitor
U.S.
Department of the Interior
2968
Rodeo Park Dr. West
Paisano
Bldg. Rm. 2070
Santa
Fe, New Mexico 87505
(505)
988-6200 (telephone)
(505)
988-6217 (fax)
Attorneys
for the Federal Defendants.
Dated: _________, 2002. _____________________________
SAM
KALEN, ESQ.
JONATHAN
SIMON, ESQ.
Van
Ness Feldman, PC
1050
Thomas Jefferson, NW
Seventh
Floor
Washington,
DC 20007
(202)
298-1800 (telephone)
(202)
338-2416 (fax)
Attorneys
for the Intervening Defendant.
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
GRAND CANYON PRIVATE BOATERS )
ASSOCIATION, an Arizona Non-Profit )
Corporation; AMERICAN WHITEWATER, a )
Missouri Non-Profit Corporation; NATIONAL ) CV-00-1277-PCT-PGR-TSZ
PARKS AND CONSERVATION
ASSOCIATION, )
a District of Columbia Non-Profit Corporation; )
AMERICAN CANOE ASSOCIATION, a New )
York Non-Profit Corporation; ELIZABETH )
BOUSSARD; KIM CRUMBO; JOHN )
BACHRACH; and MARTY WILSON; )
)
Plaintiffs, )
)
v.
)
)
JOSEPH ALSTON, in his official )
capacity as Superintendent, Grand Canyon )
National Park; FRAN P. MAINELLA, in her )
official capacity as Director, National Park Service; )
GALE NORTON, in her official capacity as )
Secretary of the Interior; and the NATIONAL )
PARK SERVICE, an
agency of the United States; )
)
Defendants, )
)
GRAND CANYON RIVER OUTFITTERS )
ASSOCIATION, )
)
Intervening
Defendant. )
________________________________________________)
[PROPOSED] ORDER OF DISMISSAL
Having considered the parties’ Joint
Stipulation of Dismissal pursuant to Federal Rule of Civil Procedure
41(a)(1)(ii), and having considered the Settlement Agreement filed by the
parties in this case, and good cause appearing therefor, the Court hereby
DISMISSES this action. This dismissal
shall be without prejudice, except that: 1) until December 31, 2004 Plaintiffs may refile their claims
related to Grand Canyon National Park’s management of the Colorado River
corridor only if the Federal Defendants breach this Agreement; and 2) until
December 31, 2005, Plaintiffs may refile their claims related to Grand Canyon
National Park’s management of the backcountry outside of the Colorado River
corridor only if the Federal Defendants do not publish the notice of intent
referred to in paragraph 3 of the Settlement Agreement filed in this case.
IT IS SO ORDERED.
Dated: ________________, 2002. _____________________________
PAUL
ROSENBLATT
United States District Judge