HenryB. Lacey, Arizona Bar No. 013921
LAWOFFICE OF HENRY B. LACEY
120North San Francisco Street
Flagstaff,Arizona 86001
(520)774-8830
RobertP. Lippman, Arizona Bar No. 006156
LAWOFFICE OF ROBERT P. LIPPMAN
103East Birch Street
Flagstaff,Arizona 86001
(520)774-0130
Attorneysfor Plaintiffs
IN THE UNITED STATES DISTRICTCOURT
FORTHE DISTRICT OF ARIZONA
GRANDCANYON PRIVATE BOATERS )
ASSOCIATION,an Arizona Non-Profit ) No. CIV 001277-PCT-PGR
Corporation;AMERICAN WHITEWATER, a )
MissouriNon-Profit Corporation; NATIONAL )
PARKSCONSERVATION ASSOCIATION, ) FIRST AMENDED COMPLAINT
aDistrict of Columbia Non-Profit Corporation; ) FOR DECLARATORY,
YorkNon-Profit Corporation; ELIZABETH ) RELIEF
BOUSSARD;KIM CRUMBO; JOHN )
BACHRACH; MARTY WILSON, )
)
Plaintiffs, )
)
v. )
)
ROBERTL. ARNBERGER, in his official )
capacityas Superintendent, Grand Canyon )
NationalPark; ROBERT STANTON, in his )
officialcapacity as Director, National Park )
Service;BRUCE BABBITT, in his official )
capacityas Secretary of the Interior; NATIONAL )
PARKSERVICE, an agency of the United States )
Government, )
)
Defendants. )
__________________________________________)
For its complaint, Plaintiff allegesas follows:
Introduction
1. This is anaction for declaratory, injunctive, and mandamus relief. Plaintiffs seek a declaration thatDefendants have violated Federal law by failing to perform non-discretionaryduties to properly manage and regulate Grand Canyon National Park (GCNP).
2. Specifically,Plaintiffs allege that Defendants have abused their discretion by: (a) haltingcertain required, ongoing planning activities at GCNP; (b) authorizing and/or engaging in certainactivities, including renewal of commercial motorized recreation concessionairecontracts, authorization of the use of motorized watercraft and helicopters totransport park visitors, engaging in administrative use of motorboats andhelicopters, and construction and installation of facilities to facilitate suchadministrative use of motorized watercraft and helicopters without preparationof environmental compliance documents required by the National EnvironmentalPolicy Act or adherence to procedures mandated by National Park Service (NPS)Management Policies, GCNP management plans, and other directives and ordersissued by the NPS Director; and (c) permitting commercial concessionaires toutilize motorized watercraft on the Colorado River, and helicopters within GCNPand adjacent to the Colorado River, at levels and frequencies that harmwilderness and other ecological, environmental, and scenic values at GCNP.
3. Defendantshave also abused their discretion and acted arbitrarily and capriciously and inviolation of applicable law by failing to re-allocate the number of permits,required for watercraft access to the Colorado River through GCNP, granted eachyear to commercial outfitters and private boaters. The effect of Defendants’ refusal to re-allocate the numbers ofriver access permits granted to commercial and non-commercial rafters of theColorado River through GCNP, despite ample data justifying the appropriatenessof such a re-allocation, has been to irrationally limit non-commercial,self-guided watercraft recreation on the Colorado River by the rapidly growingportion of the population interested in such self-guided, private riverrecreation. Defendants’ practice offavoring commercial, motorized watercraft use of the Colorado River hasresulted in the creation and maintenance of a “waiting list” requiring private,non-commercial rafters to wait an average of more than twenty (20) years foraccess to the Colorado River. Defendants’ practice violates several federal laws, including theNational Park Service Organic Act and the Redwoods Amendment thereto andAdministrative Procedure Act, and NPS Management Policies, applicable GCNPmanagement plans, and certain NPS Director’s Orders.
4. Defendants’failure to appropriately manage and limit commercial use, especially thatinvolving motorized watercraft, of the Colorado River through GCNP has causedand continues to cause significant and enduring damage to wildlife, aquatic andriparian ecosystems, aesthetic, scenic, and natural recreational qualities, andexperiential wilderness attributes of the river corridor and surroundingterrain. These adverse impacts includebut are not limited to motor noise, water and air pollution, damage to riparianhabitat, crowding and congestion, and impairment of the solitary and primitiverecreational experience required to be provided to non-commercial users of thelands and waters within GCNP, much of which have been proposed for designationas Wilderness.
5. Plaintiffs seek as relief an order compelling Defendants topromptly re-start the required Colorado River Management Plan (CRMP) revisionprocess; to comply with applicable federal law, including the National ParkService Organic Act, Wilderness Act, National Park System Concessions PolicyAct, and Administrative Procedures Act; and to implement all applicable NPSManagement Policies, existing applicable GCNP management plans, and NPSDirector’s Orders relating to the management of recommended, potential orproposed wilderness in the National Park System. Plaintiffs’ request for relief includes a plea for an orderspecifically requiring Defendants to reduce or eliminate uses of the ColoradoRiver corridor through GCNP that do not conform with applicable requirementsimposed upon lands and waters proposed for Wilderness designation, includingthe use of motorized watercraft by commercial concessionaires, private boatersand GCNP management and staff and the use of helicopters to transport rafters,crew, materials, and waste to and from the river corridor. Finally, Plaintiffs seek an order compellingDefendants to equitably re-allocate, on the basis of existing data regardingpublic demand and preferences, the number of permits available for recreationalboating access to the Colorado River through GCNP between the commercial andnon-commercial sectors and to re-evaluate and, if appropriate, alter themechanism employed for deciding how many permits the commercial andnon-commercial boating public may receive.
6. Should Plaintiffs prevail on the merits, Plaintiffs willseek an award of attorneys’ fees and costs pursuant to the Equal Access toJustice Act, 28 USC § 2412.
7. Jurisdictionis proper in this Court under 28 U.S.C. § 1331 and 28 U.S.C. § 1346 becausethis action involves the United States as a defendant and arises under the lawsof the United States, including the Administrative Procedures Act (APA), 5U.S.C. §§ 701 et seq.; the National Park Service Organic Act andRedwoods Amendment thereto, 16 U.S.C. §§ 1 et seq.; the NationalEnvironmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.; theWilderness Act, 16 U.S.C. §§ 1131 et seq.; the Grand Canyon EnlargementAct (GCEA), 16 U.S.C. §§ 228 et seq.; the National Park SystemConcessions Policy Act (CPA), 16 U.S.C. §§ 20 et seq. (repealed by Pub.L. No. 105-391, § 415(a), 112 Stat. 3503 (1998)); and certain Federalregulations, NPS Management Policies, NPS Director’s Orders, and applicableGCNP management plans as specified herein. Jurisdiction is also proper pursuant to 28 U.S.C. § 1361 and 28 U.S.C. §2201 because Plaintiffs seek mandamus relief and a declaratory judgment in thisaction. An actual, justiciablecontroversy exists between Plaintiffs and Defendants. The requested relief is proper under 28 U.S.C. § 2202 and 5U.S.C. §§ 705 & 706.
8. Plaintiffshave previously requested that Defendants correct their violations of federallaw. Defendants have taken no actionsto correct their violations of law and continue to illegally manage andregulate uses in GCNP.
9. Venue isproper in this Court pursuant to 28 U.S.C. § 1391(e). Plaintiff Grand Canyon Private Boaters Association isheadquartered in Flagstaff, Arizona, which is in this district. Many members ofall Plaintiff groups, and three of the individual Plaintiffs, reside in thisdistrict.
10. Anyavailable administrative remedies have been exhausted. 7 U.S.C. § 6914(e). Reviewable final agency action, which issubject to this Court’s review under 5 U.S.C. §§ 702 & 704, exists.
Parties
11. Plaintiff Grand Canyon Private BoatersAssociation (GCPBA) is an Arizona non-profit corporation with more than 600members in 32 states. GCPBA acts as anadvocate for, and information resource to, the non-commercial (private) boatingpublic on the Colorado River in GCNP. GCPBA represents non-commercial boating and other private recreationalinterests in the process leading to the development of Colorado RiverManagement Plans, Wilderness Management Plans, and General Management Plans;monitors and responds to proposals for legislation affecting privaterecreational use of GCNP; participates in Colorado River-oriented conferences;produces and distributes newsletters, bulletins, and action alerts; andmaintains a website that provides information useful for GCNP visitors. Members of GCPBA regularly visit GCNP and/orfloat the Colorado River.
12. PlaintiffAmerican Whitewater (AW) is a Missouri non-profit corporation withapproximately 8,300 members nationwide. AW’s mission is to conserve and restore America’s whitewater resourcesand to enhance opportunities to enjoy them safely. AW has affiliations with approximately 160 canoe and paddlingclubs nationwide. Members of AWregularly visit GCNP and/or float the Colorado River.
13. PlaintiffNational Parks Conservation Association (NPCA) is a District of Columbianon-profit organization dedicated solely to preserving, protecting, andenhancing the National Park System. NPCA has more than 400,000 members nationwide. NPCA’s mission is to protect and enhance the natural and culturalresources of the National Park System through research, public education, andadvocacy. NPCA, along with its members,is active in a wide range of activities and issues related to Grand CanyonNational Park, including efforts to preserve wild lands in and around GCNP, toimprove the visitor experience along the Colorado River through GCNP from theadverse impacts of heavy recreational use, and to improve operations of thepark’s concessionaires in the public interest. Members of NPCA reside, work in, and/or regularly visit GCNP and/orfloat the Colorado River.
14. PlaintiffAmerican Canoe Association (ACA) is a New York non-profit corporation with itsprincipal place of business in Springfield, Virginia. Founded in 1880, ACA is a membershiporganization with approximately 40,000 members nationwide. ACA isdedicated to the preservation and protection of America’s natural areas,focusing primarily on rivers, streams, lakes, coastal waterways and their surroundingenvironments. Members of ACA regularlyvisit GCNP and/or float the Colorado River.
15. PlaintiffElizabeth Boussard is a resident of Flagstaff, Arizona. She has hiked in Grand Canyon National Parkon many occasions and plans to continue that activity in the future, both aloneand with her son. Ms. Boussard has alsorafted the Colorado River through Grand Canyon National Park on severaloccasions and plans to do so again in the future. She enjoys taking photographs in Grand Canyon National Park, has engagedin such hobby photography on numerous prior occasions, and plans to do so againin the future. Ms. Boussard is agraduate student, pursuing a degree in Rural Geography, and is currentlystudying the management of recreational use at Grand Canyon National Park. Ms. Boussard lacks the financial resourcesto hire a commercial concessionaire to provide her and her son the opportunityto raft the Colorado River through Grand Canyon National Park.
16. PlaintiffKim Crumbo resides at Grand Canyon Village, Arizona. He is a former river guide, river ranger, resource managementspecialist, and Wilderness Coordinator at Grand Canyon National Park. He has rowed approximately 150 river tripsthrough GCNP and has hiked thousands of miles of wilderness trails within thepark. Mr. Crumbo continues to act as aprivate river guide and plans to continue rafting the Colorado River throughGCNP and to hike the trails of the park.
17. PlaintiffJohn Bachrach resides in Flagstaff, Arizona. He is a private boater and a member and director of the Grand CanyonPrivate Boaters Association. Mr.Bachrach is on the GCNP waiting list for private river access permits. He has previously rafted the Colorado Riverthrough GCNP and plans to do so again.
18. PlaintiffMarty Wilson resides in Oregon City, Oregon. He is a private boater and member and director of Grand Canyon PrivateBoaters Association and a member of the Northwest Rafters Association. Mr. Wilson has previously rafted theColorado River through GCNP and plans to do so again in the future. He is on the GCNP waiting list for privateriver access permits.
19. The aesthetic, recreational, scientific, religious, and (insome cases) financial interests of the members of the Plaintiff organizationsand the individual Plaintiffs have been and will continue to be adverselyaffected and irreparably injured if Defendants continue to act and fail to actas alleged herein and to affirmatively implement the actions that Plaintiffschallenge herein. These are actual,concrete injuries caused by Defendants’ failure to comply with mandatory dutiesor discretionary duties imposed by the National Park Service Organic Act andRedwoods Amendment thereto, National Environmental Policy Act, Wilderness Act,Grand Canyon Enlargement Act, National Park System Concessions Policy Act,Administrative Procedures Act, and various Federal regulations, NPS ManagementPolicies, Director’s Orders, and GCNP-specific management plans. The relief sought would redress the injuriesalleged herein.
20. Defendant Robert L. Arnberger is the Superintendent of GrandCanyon National Park, a unit of the National Park System administered by theNational Park Service and the Department of Interior. Mr. Arnberger and his predecessors have acted and failed to actin ways alleged herein, including but not limited to ceasing required ongoingplanning activities at GCNP and instituting and approving management actions inviolation of the National Park Service Organic Act and Redwoods Amendmentthereto, National Environmental Policy Act, Wilderness Act, Grand CanyonEnlargement Act, National Park System Concessions Policy Act, AdministrativeProcedures Act, and various Federal regulations, NPS Management Policies,Director’s Orders, and GCNP-specific management plans. Mr. Arnberger is sued inhis official capacity.
21. Defendant Robert Stanton is the Director of the National ParkService, an agency of the Department of Interior. As Director of the National Park Service, Mr. Stanton isultimately responsible for the decisions affecting GCNP. Mr. Stanton is sued in his officialcapacity.
22. Defendant Bruce Babbitt is the Secretary of the Interior,responsible for the management and oversight of that department’s agencies,including the National Park Service. Mr. Babbitt is sued in his official capacity.
23. Defendant National Park Service is an agency of the U.S.Department of the Interior. It and itsofficers are responsible for the management of the National Park System,including GCNP.
Factual Background
24. In 1919, Congress established Grand Canyon National Park (GCNP), to be managed in accordance with theNational Park Service Organic Act of 1916. The National Park Service Organic Act, 16 U.S.C. §§ 1
25. GCNP contains within its boundaries the longest stretch ofnavigable, “free flowing” whitewater in the United States, providingworld-class river recreation and challenge, potential for the wildernessqualities of solitude and natural quiet, unique geological features andwildlife habitat for threatened and endangered species of fish, birds and otherwildlife.
26. A relative handful of explorers, scientists and adventurersnavigated the Colorado River within the present boundaries of GCNP between 1869and 1964, the year that Glen Canyon Dam was completed just upstream of thePark. Since 1964 recreational andcommercial use of the river, particularly the use of large, motorized rafts forcommercial tours, have dramatically increased. Such commercial, motorized watercraft operations on the ColoradoRiver through GCNP have become a substantial and growing threat to the ecologyand wilderness attributes of the river corridor and surrounding backcountry.
27. In 1964 Congress enacted the Wilderness Act, 16U.S.C. §§ 1131 et seq. The purpose of the Wilderness Act is to“secure for the American people of present and future generations the benefitsof an enduring resource of wilderness.” The Wilderness Act established theNational Wilderness Preservation System, to include “federally owned areas”designated as Wilderness Areas by Congress. Pursuant to 16 U.S.C. § 1132[c], Defendants are required to preserve thewilderness characteristics of lands at GCNP that have been proposed fordesignation as part of the National Wilderness Preservation System until suchtime as Congress acts on that recommendation.
28. In1970, NPS commenced a process leading to the inventory of land and waterseligible for designation as Wilderness. During late 1971 NPS conducted hearings on that inventory process.
29. By 1972 more than 16,000 visitors rafted the Colorado Riverthrough GCNP. That year the NPSinstituted interim limits on watercraft use of the Colorado River through GCNPpending completion of ecological and recreational studies. The interim use levels were established onthe basis of the levels of commercial and non-commercial watercraft use of theColorado River through GCNP existing at that time. Over 95% of persons traversing the Colorado River by watercraftin 1972 utilized the services of commercial concessionaires, and NPS froze thenumber of commercial “user days” at the 1972 level of actual use, being 89,000user-days. Non-commercial, or “private”use of the river was frozen at the 1972 level of 7,600 user-days. These figures translate to 11,000 commercialpassengers and 475 self-guided boaters. Additional use levels were set for commercial boat crews and NPS administrativeor research use.
30. In 1975, Congress enacted the Grand Canyon Enlargement Act,Pub. L. No. 93-620, 88 Stat. 2089 (codified at 16 U.S.C. §§ 228a
31. In order to facilitate management of thenewly enlarged national park as a natural area, retain its primitive qualities,protect the park’s environment, maintain the quality of the human experience,and include and properly manage eligible lands in and for the NationalWilderness Preservation System pursuant to the Wilderness Act, GCNP promulgatedthe Grand Canyon Master Plan in 1976. The Master Plan called for elimination of mechanized access below therims, to “perpetuate the wilderness river running experience,” and moreintensive recreational use management, pursuant to an updated and formalizedCRMP.
32. In 1976, NPS conducted several “river management workshops,”which included participation from 365 individuals and more than 100 specialinterest organizations. The inputreceived by NPS at the river management workshops facilitated the agency’sissuance of a draft Environmental Impact Statement (EIS) for a revised CRMP. The 1977 draft EIS proposed that NPSrecommend designation of the Colorado River through GCNP as a “PotentialWilderness,” with designation of certain portions of the Colorado Rivercorridor through the park as part of a Wilderness Area to await managementdecisions relating to the elimination of non-conforming, motorized watercraftuse.
33. In 1977 NPS issued a Wilderness Recommendation for GCNP. NPS decided to postpone presentation of therecommendation to the President until after an updated CRMP was completed. The 1977 Wilderness Recommendation for GCNPhas never been presented to the President.
34. In 1978 Congress enacted the Redwoods Amendment to theNational Park Service Organic Act. 16U.S.C.§1a-1. The Redwoods Amendmentdeclared that park management and administration must not be exercised inderogation of the values and purposes for which the park is established,thereby expanding and clarifying the purposes of each unit of the National ParkSystem, and reiterating a rigorous standard of protection in terms designed toimpose regulatory prohibitions.
35. NPS adopted the proposed Wilderness classification for GCNP inthe 1980 final Wilderness Recommendation. The 1980 Wilderness Recommendation, which was transmitted to theDepartment of the Interior, proposed that the Colorado River through GCNP bedesignated as “Potential Wilderness” until January 1, 1985, at which time thenon-conforming motor use would be phased out pursuant to the 1980 ColoradoRiver Management Plan (CRMP). This action was based upon findings thatmotorized watercraft use is not necessary for use and enjoyment of the ColoradoRiver and is inconsistent with the criteria for Wilderness specified by theWilderness Act and with other requirements imposed by applicable Federalregulations and NPS policies.
36. In late 1979, after nearly eight years of research and publicinvolvement, NPS issued a CRMP (1980 CRMP) accompanied by a final EIS (1979EIS), concluding that future management of the river corridor must be guided notonly by visitor demands (which are not static), environmental considerations,and public input, but also by the legislative purpose, policies and goalsapplicable to GCNP. Finding thatmotorized watercraft tours are inconsistent with such guidelines, policies andpurposes, especially wilderness management mandates, and further finding thatsuch activities cause unacceptable adverse environmental impacts to parkresources (i.e., crowds, noise, air and water pollution, beach erosion, loss ofand damage to wildlife and fish habitat), the 1980 CRMP required that allrecreational motorized watercraft use on the Colorado River through GCNP bephased out within five years. The 1980CRMP further established total use capacities for the Colorado River, mandatingthe “reasonable” and “equitable”allocation of such use between the competing commercial and non-commercialusers on the basis of available data and existing demand. Both sectors were given an increase over theinterim use ceilings established in 1972 in order to reflect the transition tolonger, oar-powered trips by commercial concessionaires. The 1980 CRMP granted to commercialconcessionaires an increase from 89,000 to 115,000 user days annually. The 1980 CRMP also increased the applicableriver use ceilings in order to accommodate growing demand for self-guidedaccess, which had increased from 7,600 to 54,500 potential user days. Thus the 1980 CRMP allocated approximately11,500 of the available annual user days, or approximately 78% of the total numberof user days available, to the commercial concessionaires and 3200 of theavailable annual user days, or approximately 22% of the total number of userdays available, to private river-runners. The 1980 CRMP also established a “waiting list” for persons seekingpermits required to access the Colorado River for non-commercial watercraftrecreation and monitoring programs to continually assess changes in resourceconditions and visitor congestion, public demand, visitor expectations, andother parameters.
37. The areas of GCNP that are the subject of NPS’ 1980 WildernessRecommendation and the 1993 Update to the Wilderness Recommendation are subjectto certain mandates contained within the Wilderness Act, 16 U.S.C. §§ 1131 etseq. In particular, Defendants arerequired by 16 U.S.C. § 1132(c) and 43 C.F.R. § 19.6 to maintain the wildernesscharacteristics of all areas within GCNP proposed for designation as Wildernessuntil such time as Congress has determined whether to designate such areas ofthe park as Wilderness.
38. In 1981, without preparing an Environmental Assessment/Findingof No Significant Environmental Impact or EIS, NPS modified the CRMP. The 1981 CRMP was a radical departure fromthe prior findings, policies, directives and mandates for wilderness planningand river management included in the 1980 CRMP. The management objectives specified by the1980 CRMP were drastically curtailed as NPS committed GCNP management only toprovide opportunities for a “diversity of river running experiences.” The 1981 CRMP also authorizedcontinued motorized watercraft use of the Colorado River for an indefiniteperiod of time, while retaining the substantial user-day increases granted tocommercial concessionaires in 1980. The1981 CRMP also increased the maximum allowable group and crew size oncommercial watercraft trips at GCNP, thereby contradicting the scientificresearch, data, and public input documented by the 1979 EIS and 1980 CRMP. Virtually all of the references towilderness management contained in the 1980 CRMP were deleted in the 1981CRMP. The 1981 CRMP required only thatongoing studies intended to assess public interest in and demand for commercialand non-commercial watercraft trips on the Colorado River continue. The 1981 CRMP provided for the revision andupdate of the Plan and its individual components and mandates, includingadjustments to the allocation of river access permits, “as necessary.”
39. In 1988 NPS issued a Backcountry Management Plan (BMP) forGCNP, in order to define policies for managing visitor use and resourceprotection in the undeveloped areas of the park, excluding the rivercorridor. The BMP again recognized andimposed the mandate that lands suitable for Wilderness designation be managedso that wilderness values are not adversely affected until Congress has made adecision regarding designation of the recommended lands as Wilderness.
40. Citing a dramatic increase in recreational use of the ColoradoRiver and the physical and aesthetic impacts on park resources resulting fromit, NPS again revised the CRMP in 1989. The purpose of the 1989 CRMP was to “address and resolve major issuessurrounding management of recreational use activities” and to “supplementexisting management guidelines,” including the Master Plan, BMP, 1976Wilderness Proposal and 1980 Wilderness Recommendation, and applicable NPSmanagement policies. NPS specificallynoted that “review of the 1981 CRMP indicated a need to provide equal means forthe non-commercial sector to access their defined allocation,” in light of a77% increase in the non-commercial river access permit “waiting list” since1981. Despite references to GCNP’s1976 Wilderness proposal, and other regulations, policies, guidelines anddirectives addressing wilderness management, the 1989 CRMP sanctioned the levelof motorized watercraft use and permit allocation between commercial andnon-commercial watercraft users specified by the 1981 CRMP, while “reserving the right to re-allocateuser-days based on review of all relevant factors.” The 1989 CRMP required NPS to prepare a new CRMP within five toten years and to “fully examine evolving public concerns and be responsive onan annual basis to public input” regarding demand/allocation changes and othermanagement issues.
41. Althoughthe 1989 CRMP largely incorporated the terms of the 1981 CRMP, NPS did notissue a new EA/FONSI or EIS in connection with the issuance of the 1989 CRMP. Instead, NPS announced that the 1979 EIS wassufficient to document the environmental consequences of adopting the 1989CRMP, even though the 1979 EIS was issued in connection with a CRMP that wouldhave resulted in the elimination of motorized watercraft recreation on theColorado River through GCNP and the management of the river corridor pursuantto applicable statutes, NPS management policies and the Master Plan, whichrequire such management to preserve the wilderness characteristics of the landsand waters at GCNP proposed for Wilderness designation.
42. Despite the status quo management of the Colorado Riverthrough GCNP since 1981, the relative demand for commercial and private boatingaccess to the river corridor has continued to significantly change as thepublic has become more knowledgeable and adept at “self-guided” river recreationas a sport and has become increasingly aware of the opportunity for access tolands and waters that exhibit outstanding recreational opportunities. The demand for access to the Colorado Riverby private, non-commercial rafters, often interested in using oar-drivenwatercraft to navigate the river, has significantly increased. The most obvious indication of this changein the pattern of demand for access to the Colorado River is the fact thatthere are over 6,000 applicants presently on the non-commercial river access“waiting list,” resulting in an average wait of more than twenty (20) years fora permit for private boat access to the river, while expensive,commercially-guided access is often available within several days, and withoutthe need to participate in any “waiting list,” through the concessionairescontracted by NPS to provide watercraft recreation at GCNP.
43. The 1980 Wilderness Recommendation was updated in 1993 toreflect boundary adjustments and the ongoing lack of resolution of the motorizeduse issue. The proposal (1993 Wilderness Update)reiterated the “potential wilderness” status of the Colorado River, “pendingresolution of motorized river issues,” and explained that existing use of theColorado River by private rafters and commercial concessionaires employingmotorized watercraft “probably contradicts the intent of wildernessdesignation” and is “inconsistent with established wilderness criteria.” The document referenced the 1988 NPSManagement Policies, which establish guidelines and directives for interimwilderness management of National Park System lands and resources. The NPS Management Policies provide that “noaction may be taken that would diminish wilderness suitability until the legislativeprocess is completed.”
44. In 1995 NPS issued a General Management Plan (GMP) for GCNP,accompanied by an EIS, to address park management issues in the context of theNPS Organic Act and other applicable statutes, the Master Plan, 1980 WildernessRecommendation and 1993 Wilderness Update, NPS Management Policies, BMP, and1989 CRMP. The GMP requires Defendantsto protect the opportunities for natural quiet and solitude available at GCNPand to maintain the wilderness characteristics of the Colorado River throughGCNP and commits Defendants to a goal of mitigating or eliminating allactivities that cause unnecessary noise. The GMP also committed Defendants to the goal of providing access toGCNP that is appropriate and consistent with the character and nature of eachlandscape unit and the desired visitor experience. The GMP further directs that the 1989 CRMP “will be updated to beconsistent with wilderness management directives,” including the providing of a“wilderness river-running experience” and the addressing of the “non-conforminguses of motorboats and generators.”
45. NPS Management Policies require, among other things, that NPSadministrative actions be consistent with “minimum requirements,” and that NPSemploy “minimum tools or methods” before undertaking management actions thatmay adversely affect wilderness values and resources in areas recommended fordesignation as Wilderness. Since 1988,and continuing until the present time, Defendants have increased the use ofmotorized watercraft, helicopters, and other mechanized equipment on theColorado River and in the Grand Canyon backcountry, contrary to these and otherrequirements of the NPS Management Policies.
46. In 1998 Defendants issued a draft Wilderness Management Plan(WMP) for GCNP. The draft WMP has neverbeen finalized.
47. In 1999, the NPS Director issued Director’sOrder #41: Wildernes Preservation and Management (Director’s WildernessOrder) in order “to provide consistency and accountability” to NPS wildernessmanagement programs, “clarify policies and establish specific instructions andrequirements” regarding wilderness management, and “guide NPS efforts inmeeting the letter and spirit of the Wilderness Act.” The Director’s Wilderness Order provided that NPS’ ReferenceManual #41: Wilderness Preservation and Management (Wilderness ReferenceManual) was to be considered a supplement to the terms, conditions, andrequirements of the Director’s Wilderness Order.
48. TheProspectus for River Rafting Services, issued by NPS in 1995, requires NPS tocontract with concessionaires in a manner consistent with the requirements ofthe NPS Organic Act, National Park System Concessions Policy Act (CPA), 16U.S.C. §§ 20-20g (repealed by Pub. L.No. 105-391, 112 Stat. 3503 (1998)), applicable Federal regulations, NPS ManagementPolicies and applicable NPS Director’s Orders, and GCNP Management Plans.
49. NPS andDefendants Arnberger and Stanton renewed existing contracts with commercialconcessionaires providing watercraft transportation on the Colorado Riverthrough GCNP effective January 1, 1996. The next contract review and re-contracting with such commercialconcessionaires is scheduled to occur in 2001.
50. In 1998, NPS announced that the 1989 CRMP would be revised, asrequired by the provisions of the 1989 CRMP itself, the GMP, and otherapplicable NPS management policies and Director’s Orders. NPS also justified its decision to revisethe 1989 CRMP on the grounds of “dramatically” changing conditions relating topublic demand for river recreation at GCNP. The non-commercial boater permit “waiting list” had grown to over 5,500applicants by 1998. The statedobjective of the planned revision of the 1989 CRMP was to “develop acomprehensive plan that will insure resource protection while maximizing thebenefits the river can provide to society.” Specific goals of the revised CRMP were to include, among other things:(a) mitigation or elimination of noise; (b) management of areas meeting thecriteria for wilderness designation in a manner consistent with the methodsthat would be used to manage designated Wilderness; (c) active pursuit ofWilderness designation for lands and waters at GCNP recommended for suchdesignation; and (d) management of the Colorado River through GCNP in such amanner as to protect and preserve the resource in a wild and primitivecondition, provide primitive recreational activities consistent with WildernessAct requirements and NPS policies on accessibility, and provide a wildernessriver experience on the Colorado River.
51. After a scoping process applicable to the projected revisionof the 1989 CRMP was completed, NPS further articulated its objectives toinclude improvement of river access, evaluation of the impacts of current useof the Colorado River through GCNP, and evaluation of alternative accesssystems that would enable public use of the river regardless of whether theychoose the option of a commercially outfitted tour or self-guided trip.
52. On February 23, 2000 GCNP Superintendent and DefendantArnberger announced that GCNP and NPS would immediately cease all work on arevised CRMP and on a final WMP. Superintendent Arnberger also announced that GCNP would stop all workaimed at combining the CRMP and WMP into one, comprehensive managementplan. Furthermore, SuperintendentArnberger ordered a deferral of “majorriver decisions that lie outside the park’s discretion,” including “majorchanges in the river-use allocation system,” until GCNP and/or NPS “have thecapacity to properly engage necessary planning requirements.” A copy of Mr. Arnberger’s writtenannouncement of his decision is attached hereto as Exhibit A.
53. Superintendent Arnberger justified his decision of February23, 2000 on the basis of “limitations of funding and personnel, federalrequirements for strategic planning, and consideration of the park’s otherpriorities.” Superintendent Arnbergeralso indicated that the decision to cease planning activities was the result of“unresolved differences among user groups,” the “difficulties of wildernessmanagement without a decision from Congress on the park’s wildernessdesignation,” “fragmentation of the issues,” and a lack of improvement in the“possibilities for collaboration where serious division exists among thevarious interests.”
54. Despite the dramatic increase in demand for non-commercial,“self-guided” river use, the NPS has made no revision or adjustment inallocations between commercial and non-commercial use since 1981; nor have anysignificant or meaningful refinements in the method of allocating and grantingnon-commercial permits been instituted in order to ensure full use of even thepresent non-commercial allocation. Motorized uses, both commercially and administratively, continue todominate river activities, despite mandates, policies and directives requiringimplementation of wilderness management and standards.
55. On April 7, 2000 Plaintiff GCPBA wrote to Defendant Arnberger,demanding that GCNP re-commence required planning activities and requestingthat NPS reconsider historic patterns of favoring commercial over privatenon-commercial access to the Colorado River through GCNP. GCPBA’s letter also requested that NPSre-evaluate and adjust river access permit allocations on the basis of datamade available since the last time such a re-adjustment occurred. A copy of GCPBA’s demand letter is attachedhereto as Exhibit B.
56. DefendantArnberger responded to GCPBA’s demand letter on May 9, 2000. Mr. Arnberger summarily rejected GCPBA’scomplaints and concerns and stated that he would not reverse his decision tosuspend planning efforts at GCNP. Acopy of Mr. Arnberger’s letter is attached hereto as Exhibit C.
Claims for Relief
Claim I:
National ParkService Organic Act/Redwoods Amendment and APA
57. Theallegations contained in paragraphs 1-56 are incorporated by reference.
58. TheNational Park Service Organic Act, 16 U.S.C § 1, and the Redwoods Amendment, 16U.S.C. § 1a-1, establish high standards for national park preservation andmanagement. The purpose of the NationalPark System, including GCNP, is “to conserve the scenery and the natural andhistoric objects and the wildlife therein and to provide for the enjoyment ofthe same in such manner and by such means as will leave them unimpaired for theenjoyment of future generations.” Furthermore,Defendants must limit authorization of activities in the National Park System,including GCNP, and protect, manage, and administer those areas, “in light ofthe high public value and integrity of the National Park System.” Suchauthorization of activities and the protection, management, and administrationof National Park System units, including GCNP, “shall not be exercised inderogation of the values and purposes for which these various areas have beenestablished, except as may have been or shall be directly and specificallyprovided by Congress.” Defendants arerequired to fulfill a paramount legal duty, pursuant to both a general publictrust obligation imposed by the National Park Service Organic Act, as amendedby the Redwoods Amendment, and the specific mandates of that Act, as amended,to protect GCNP.
59. Defendantshave failed to abide by these standards and requirements at GCNP. Specifically, Defendants have unlawfullyauthorized ongoing activities that degrade park resources, violate NPS’obligation to protect GCNP and that are inconsistent with the articulatedpurposes of the National Park System, including GCNP. Defendants have also issued concessions contracts for commercialmotorized watercraft tours of, and issued permits for private motorizedwatercraft trips on, the Colorado River through GCNP at levels and in numbersthat are inconsistent with the mandate to preserve the scenery, naturalobjects, and wildlife of GCNP and to leave those qualities unimpaired forfuture generations.
60. Defendantshave also failed to reduce or eliminate the environmental and ecologicalimpacts of such motorized watercraft trips; failed to reduce or eliminate theuse of helicopters to transport watercraft passengers and crew and to removesewage waste in areas within and adjacent to GCNP; (c) failed to revise the1989 CRMP or issue a new Colorado River Management Plan to mitigate oreliminate the impacts of crowding and congestion and other adverseenvironmental consequences caused by high levels of motorized watercraft use ofthe Colorado River through GCNP; and (d) failed to revise the current system ofallocating river access permits to better serve the demands of park visitorsand resource protection, despite data now available to Defendants which demonstratesthe need for such changes to the permit allocation system.
61. Theseactions and failures to perform required, non-discretionary duties arearbitrary and capricious and in violation of the NPS Organic Act and RedwoodsAmendment thereto and therefore violate the Administrative Procedures Act, 5U.S.C. § 706(1), (2).
Claim II:
Wilderness Actand APA
62. Paragraphs1-61 are incorporated by reference.
63. The Wilderness Act, 16 U.S.C. § 1132[c],provides in relevant part as follows:
Within ten years after theeffective date of this Act the Secretary of the Interior shall review everyroadless area of five thousand contiguous acres or more in national parks . . .under his jurisdiction on the effective date of this Act and shall report to thePresident his recommendation as to the suitability or nonsuitability of eachsuch area or island for preservation as wilderness. The President shall advisethe President of the Senate and the Speaker of the House of Representatives ofhis recommendation with respect to the designation as wilderness of each sucharea or island upon which review has been completed . . . Such advice shall begiven with respect to not less than one-third of the areas and islands to bereviewed under this subsection within three years after enactment of this Act,not less than two-thirds within seven years after enactment of this Act, andthe remainder within ten years of enactment of this Act.
64. Pursuant to 43 C.F.R. § 19.6, Defendants are required tomanage lands proposed for Wilderness designation as if they were designatedWilderness pending Congressional determination as to whether such designationis appropriate.
65. Defendants have authorized and/or permitted commercialactivities, including motorized watercraft and helicopter use, at GCNP andprivate motorized watercraft use of the Colorado River through GCNP at levels,frequencies, and numbers that have caused, and continue to cause, substantialadverse impacts to the wilderness qualities of lands proposed by NPS forWilderness designation. Accordingly,Defendants’ actions in this regard are arbitrary and capricious and inviolation of the Wilderness Act and 43 C.F.R. § 19.6 and therefore violate theAPA, 5 U.S.C. § 706(1), (2).
Claim III:
Wilderness Act/Grand Canyon Enlargement Act and APA
66. Paragraphs 1-65 are incorporated by reference.
67. 16 U.S.C. § 1132[c] required the Secretary of the Interior totransmit all National Park System wilderness proposals to the President within10 years of the date on which the Secretary receives such a proposal from aNational Park System unit or NPS itself.
68. GCEA, 16 U.S.C. § 228i-1, modified the deadlines specified inthe Wilderness Act to require the Secretary of the Interior to report NationalPark System proposals for designated Wilderness to the President within twoyears of their issuance.
69. NPS finalized the 1980 Wilderness Recommendation for GCNPapproximately twenty years ago, and issued the 1993 Wilderness Updateapproximately seven years ago. Defendant Babbitt has not transmitted the 1980 Wilderness Recommendationor 1993 Wilderness Update to the President of the United States.
70. Accordingly, Defendants’ actions are arbitrary and capricious,an abuse of discretion, and otherwise not in accordance with law, in violationof APA, 5 U.S.C. § 706(1), (2).
Claim IV:
National Park System Concessions Policy Act and APA
71. Paragraphs 1-70 are incorporated byreference.
72. The National Park System ConcessionsPolicy Act, 16 U.S.C. §§ 20 et seq. (repealed by Pub. L. No. 105-391,112 Stat. 3503 (Nov. 13, 1998)), requires that commercial concession activitiesin national parks be limited to those that are necessary and appropriate forpublic use and enjoyment of the park, which are consistent to the highestpracticable degree possible with the preservation and conservation of the area,and which do not impair park values.
73. Pursuant to 36 CFR § 51.2:
It is thepolicy of the Secretary of the Interior, as mandated by law, to permitconcessions in park areas only under carefully controlled safeguards againstunregulated and indiscriminate use so that heavy visitation will not undulyimpair park values and resources. Concession activities in park areas shall be limited to those that arenecessary and appropriate for public use and enjoyment of the park areas inwhich they are located and that are consistent to the highest practicabledegree with the preservation and conservation of the park areas.
74. Defendants have authorized commercialconcessionaire services that use large, motorized watercraft and helicopterpassenger exchanges that are not necessary and appropriate for public use andenjoyment or for realizing park and wilderness values. Such authorization of commercial use of motorizedwatercraft and helicopters at GCNP have degraded and impaired the resources andwilderness, environmental, ecological, and scenic values of GCNP in violationof the National Park System Concessions Policy Act and 36 CFR § 51.2.
75. Accordingly, Defendants actions arearbitrary and capricious, an abuse of discretion, and otherwise not inaccordance with law, in violation of APA, 5 U.S.C. § 706(1), (2).
Claim V:
National Environmental PolicyAct and APA
76. Paragraphs 1-75 are incorporated byreference.
77. TheNational Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., requiresDefendants to prepare environmental impact review and planning documentspursuant to a public planning process. An environmental impact statement (EIS) must be drafted, and publiccomment solicited, on all major Federal actions having a significant impact onthe human environment. An environmentalassessment (EA) with a finding of no significant impact (FONSI) must beprepared in the event of a finding that the proposed federal action will haveno significant environmental impact.
78. Defendantshave unlawfully failed to prepare an EIS in connection with their renewal ofexisting contracts with commercial concessionaires engaged in the provision ofwatercraft tours of the Colorado River through GCNP in 1996. Such renewals of concessionaire contractsare major federal actions having a significant effect on the humanenvironment. Defendants’ decision torenew such concessionaire contracts is likely to result in severe short-termand long-term direct, indirect, and secondary impacts to the resources ofGCNP. Some of those environmentalimpacts are uncertain or unknown, and such impacts, considered cumulatively,will be significant. Defendants’renewal of the concessionaire contracts will have an adverse environmental impacton the unique characteristics of GCNP, especially the Colorado River corridor,and is highly controversial.
79. Even ifsuch contract renewals do not have a significant impact on the humanenvironment, Defendants were obligated to prepare an EA/FONSI in connectionwith them. Upon information and belief,Defendants failed to do so.
80. Defendantshave also unlawfully failed to prepare or update an EIS in connection withother new or ongoing management activities at GCNP, including issuance ofannual operating permits to commercial concessionaires offering motorizedwatercraft tours of the Colorado River and authorization of such commercialconcessionaire use of helicopters to ferry passengers in and out of GCNP; useof motorized watercraft and helicopters by GCNP management and staff toaccomplish administrative and maintenance tasks at the park; and constructionof infrastructure and purchase and installation of machinery intended tofacilitate such use of motorized watercraft and helicopters by GCNP managementand staff. Such actions by Defendantsare major federal actions having a significant effect on the humanenvironment. They are likely to resultin substantial short-term and long-term direct, indirect, and secondary impactsto the resources of GCNP. Some of thoseenvironmental impacts are uncertain or unknown, and such impacts, consideredcumulatively, will likely be significant. Defendants’ actions will have an adverse environmental impact on theunique characteristics of GCNP, especially the Colorado River corridor, and arehighly controversial.
81. Even ifsuch new or ongoing management activities at GCNP, including issuance of annualoperating permits to commercial concessionaires offering motorized watercrafttours of the Colorado River and authorization of such commercial concessionaireuse of helicopters to ferry passengers in and out of GCNP; use of motorizedwatercraft and helicopters by GCNP management and staff to accomplishadministrative and maintenance tasks at the park; and construction ofinfrastructure and purchase and installation of machinery intended tofacilitate such use of motorized watercraft and helicopters by GCNP managementand staff do not have a significant impact on the human environment, Defendantswere obligated to prepare an EA/FONSI in connection with them. Upon information and belief, Defendantsfailed to do so.
82. Pursuant to40 C.F.R. § 1508.18, Defendants’ inaction in failing to update, revise, orreplace the 1989 CRMP; failing to reduce existing levels of motorized watercraftuse of the Colorado River through GCNP; and failing to modify the existingallocation of river access permits between commercial and non-commercialrafters requires preparation of an EIS. Defendants have failed to prepare an EIS in connection with thesefailures to act.
83. Even ifDefendants’ inaction in failing to update, revise, or replace the 1989 CRMP;failing to reduce existing levels of motorized watercraft use of the ColoradoRiver through GCNP; and failing to modify the existing allocation of riveraccess permits between commercial and non-commercial rafters has no significantenvironmental impact, Defendants were obligated to prepare an EA/FONSI inconnection with such inaction. Uponinformation and belief, Defendants failed to do so.
84. Accordingly, Defendants actions arearbitrary and capricious, an abuse of discretion, and otherwise not inaccordance with law, in violation of APA, 5 U.S.C. § 706(1), (2).
Claim VI:
NPS Management Policies/Director’sWilderness Order and APA
85. Paragraphs1-84 are incorporated by reference.
86. NPShas issued Management Policies to provide direction to administrators ofNational Park System units, including GCNP, as to the management of lands andwaters proposed for Wilderness designation. The NPS Management Policies have the force of law.
87. Pursuantto NPS Management Policies § 6.3.1, “the term “wilderness” includes thecategories of suitable, study, proposed, recommended and designated wilderness.NPS wilderness policies apply regardless of category . . . In addition tomanaging these classified areas for the preservation of their wildernessvalues, planning for these areas must ensure that the wilderness character islikewise preserved.”
88. Pursuantto NPS Management Policies § 6.3.5, “[a]ll management decisions affectingwilderness must be consistent with a minimum requirement concept . . . Whendetermining minimum requirement, the potential disruption of wildernesscharacter and resources will be considered before, and given significantly moreweight than, economic efficiency and convenience. If a compromise of wilderness resource or character isunavoidable, only those actions that preserve wilderness character and/or havelocalized, short-term adverse impacts will be acceptable.” The Minimum Requirement mandate applies torenewal of commercial concessionaire contracts and to issuance of annualoperating permits to such concessionaires. The Minimum Requirement mandate also applies to NPS management use ofequipment, including motorized watercraft and helicopters and infrastructureand other items installed and/or used to facilitate such motorized watercraftand helicopter use, in areas of GCNP proposed for Wilderness designation.
89. Pursuantto NPS Management Policies § 6.4.4, “Wilderness-oriented commercial servicesthat contribute to achieving public enjoyment of wilderness values or provideopportunities for primitive and unconfined types of recreation may beauthorized if they meet the necessary and appropriate tests of the ConcessionsPolicy and Wilderness Acts and if they are consistent with the wildernessmanagement objectives contained in the park’s Wilderness Management Plan.”
90. TheDirector’s Wilderness Order is intended to clarify, where necessary, specificprovisions of the NPS Management Policies and to establish specificinstructions and requirements concerning the management of all NPS wildernessareas. The Director’s Wilderness Orderis also intended to “provide accountability, consistency, and continuity to[NPS’] wilderness management program and to otherwise guide Service-wideefforts in meeting the letter and spirit” of the Wilderness Act. The Director’s Wilderness Order incorporatesand applies the definition of “wilderness” adopted by NPS Management Policies §6.3.1 and incorporates Reference Manual #41: Wilderness Preservation andManagement (Wilderness Reference Manual) as a supplement. The Director’s Wilderness Order has theforce of law.
91. Pursuantto the Director’s Wilderness Order, Defendants must refrain from taking any action“that would diminish the wilderness suitability of an area possessingwilderness characteristics until the legislative process of wildernessdesignation has been completed. Until that time, management decisionspertaining to lands qualifying as wilderness will be made in expectation ofeventual wilderness designation. This policy also applies to potentialwilderness, requiring it to be managed as wilderness to the extent thatexisting non-conforming uses allow. The [NPS] will seek to remove the temporary,non-conforming conditions that preclude wilderness designation.”
92. The Director’s Wilderness Orderspecifically prohibits the use of motorized watercraft or helicopters by NPSmanagers to facilitate administration of areas recommended for Wildernessdesignation “except as necessary to meet minimum requirements ofadministration” and, in any event, such use of motorized watercraft orhelicopters is permissible only when such actions preserve the wildernessvalues and character of areas recommended for Wilderness designation and/orcause adverse impacts that are only localized and short-term in nature. Motorized watercraft or helicopter use bypark management within areas recommended for Wilderness designation isspecifically prohibited “when other reasonable alternatives are available.”
93. The Director’s Wilderness Order directsGCNP managers to “ensure that wilderness resources [are] afforded maximumprotection” through the implementation of certain actions, including completionof planning processes and the use of such processes to protect wildernessresources. Accordingly, the Director’sWilderness Order requires Defendants to make annual progress toward processesfor (a) identifying Minimum Requirements for administrative actions in areasproposed for Wilderness designation; (b) evaluating the appropriateness ofrecreational activities in context of their compatibility with preservation ofresources eligible for and/or proposed for Wilderness designation; and (c) themanagement of lands and waters, including the Colorado River through GCNP, topreserve wilderness character and values undiminished until Congress acts onthe pending proposals and/or recommendations to designate such lands and watersas Wilderness.
94. The Director’s Wilderness Order requiresthe NPS Director to submit, “in a timely fashion,” the GCNP WildernessRecommendation and 1993 Update to the appropriate Assistant Secretary of theInterior and Secretary of Interior for approval.
95. The Director’s Wilderness Order requiresGCNP managers to follow a specified two-step process when considering whetherplanned or proposed management actions as appropriate or necessary. First, GCNP managers must determine whetherthe planned or proposed action may result in significant adverse impacts to thewilderness resources and character of areas proposed for Wildernessdesignation. Second, GCNP managers mustevaluate and employ the tool or method of accomplishing their objective thatcauses the least amount of adverse impact to physical resources and theexperiential qualities and character of areas proposed for Wildernessdesignation. Defendants may not makeany exceptions to this requirement unless such exceptions are consistent withan approved Wilderness Management Plan, and such exceptions must bedocumented in a manner consistent with GCNP’s officially promulgated MinimumRequirements process and accompanied by appropriate environmental impact reviewanalysis. These requirements also applyto Defendants’ authorization of scientific studies and activities in GCNP areasthat have been proposed for designation as Wilderness.
96. Additionally, the Director’s WildernessOrder requires Defendants to ensure that commercial services providersoperating at GCNP, including commercial river recreation concessionaires,adhere to Minimum Requirement concepts in all aspects of their businessoperations (including helicopter transport of river passengers). Defendants may authorize such commercialservices to operate at GCNP only if they are “necessary and appropriate” forachieving public enjoyment of wilderness values or result in the provision ofopportunities for primitive and unconfined types of recreation, consistent withwilderness management objectives contained in GCNP’s WMP (if in effect), theWilderness Act, and the National Park System Concessions Policy Act.
97. The Director’s Wilderness Order alsorequires Defendants to address, “within the park’s WMP and associatedenvironmental compliance document,” and with full public involvement afforded,the “appropriate and fair ratio between commercial and private use allocation.”
98. TheDirector’s Wilderness Order requires GCNP managers “contemplating the use ofaircraft or other motorized equipment within wilderness [to] consider impactsto the aesthetics and traditions of wilderness, as well as the costs andefficiency of the equipment.”
99. TheDirector’s Wilderness Order requires Defendants to ensure that administrationof all areas proposed for Wilderness designation is conducted in a mannerconsistent with provisions specifying Minimum Requirements analyses. The Director’s Wilderness Order furtherrequires, as part of the Minimum Requirements process, management to use theleast intrusive method, or Minimum Tool, required to achieve administrative ormanagement objectives. The Director’sWilderness Order also requires GCNP managers to evaluate the “appropriateness”of recreational activities on the Colorado River “when changes in the nature andsignificance of the activities affect their compatibility with wildernesspreservation and the statutory purpose of wilderness.”
100. TheDirector’s Wilderness Order provides that “the minimum requirements processwill be conducted through appropriate environmental analysis (e.g., categoricalexclusions, environmental assessment/FONSI, or an environmental impactstatement/Record of Decision).”
101. TheNPS Management Policies and Director’s Wilderness Order have the force of law.
102. Defendantshave violated NPS Management Policies and/or the Director’s Wilderness Order byfailing to evaluate the appropriateness of ongoing high levels of commercialand private motorized watercraft use of the Colorado River through GCNP; byissuing or renewing contracts with and granting and/or renewing annualoperating permits for commercial concessionaires operating motorized watercrafttours of the Colorado River; and by allowing some or all of such commercialconcessionaires to utilize helicopters within the boundaries of lands at GCNPproposed for Wilderness designation, without compliance with the specifiedMinimum Requirements process and without assuring that such authorization isconsistent with the requirement to maintain opportunities for a primitive,unconfined type of recreation at GCNP.
103. Defendantshave violated NPS Management Policies and/or the Director’s Wilderness Order byauthorizing use of motorized watercraft and helicopter use at levels,frequencies, and numbers that are not appropriate and necessary, as those termsare defined in the CPA and Wilderness Act.
104. Defendantshave further violated NPS Management Policies and/or the Director’s WildernessOrder by authorizing the use of helicopters by park employees, contractors,and/or commercial concessionaires to transport watercraft passengers and crew,materials, and waste; by purchasing, authorizing, and engaging in the use ofmotorized watercraft and helicopters by park management and staff foradministrative and management purposes, and for scientific and researchpurposes; and by installing and using infrastructure and other equipmentintended to facilitate motorized watercraft and helicopter use at GCNP withoutthe prior completion of an EA/FONSI or EIS or final WMP.
105. Defendantshave violated NPS Management Policies and the Director’s Wilderness Order byfailing to continue efforts to finalize a Wilderness Management Plan and byfailing to continue efforts to revise the 1989 CRMP or prepare and issue a newCRMP and by failing to revise and adjust existing allocations of river access permitsbetween commercial concessionaires and private rafters on the basis of dataobtained since the allocation was last reconsidered.
106. Defendants’refusal to take steps to remove motorized watercraft and helicopters from GCNP,which are non-conforming uses, violates NPS Management Policies and/or theDirector’s Wilderness Order.
107. Defendants’authorization of and/or engagement in the above-specified activities violatesthe NPS Management Policies and Director’s Wilderness Order because such actionsdiminish the wilderness suitability of the areas of GCNP proposed forWilderness designation, are inconsistent with the requirement to afford maximumprotection to wilderness resources, and do not preserve the wildernesscharacter and values of lands and waters at GCNP proposed for Wildernessdesignation; are not necessary to achieve the minimum requirements ofadministration of park resources; result in long-term and non-localizedenvironmental, aesthetic, and scenic impacts; and are unnecessary in light ofthe availability of other alternatives.
108. Defendantshave violated the NPS Management Policies and/or the Director’s WildernessOrder by failing to transmit the 1980 Wilderness Recommendation and/or 1993Wilderness Update to the Secretary of Interior and/or President of the UnitedStates.
109. Accordingly,Defendants’ actions are arbitrary and capricious, an abuse of discretion, andotherwise not in accordance with law, in violation of APA, 5 U.S.C. § 706(1),(2).
Claim VII:
GCNP MasterPlan/General Management Plan and APA
110. Paragraphs1-109 are incorporated by reference.
111. NPSissued the GCNP Master Plan in 1976 and the GCNP GMP in 1995. The GCNP Master Plan and GMP have the forceof law.
112. Boththe GCNP Master Plan and the GCNP GMP require Defendants to adhere to certainspecified management objectives at GCNP, including but not limited tomanagement of the Colorado River in such a manner as to ensure the availabilityof a wilderness river-running experience.
113. TheGCNP Master Plan states that
preservation ofthe Grand Canyon natural environment is the fundamental requirement for itscontinued use and enjoyment as an unimpaired natural area. Park management therefore looks first to thepreservation and management of the natural resources of the park. The management concept is the preservationof the total environments, as contracted with the protection of only a singlefeature or species.
114. TheGCNP GMP specifies that GCNP management must: (a) “protect and preserve theresource in a wild and primitive condition;” (b) reduce or eliminate noisecaused by watercraft and helicopter motors and large numbers of people on theriver; (c) result in a timely and regular revision of applicable GCNP resourcemanagement plans, including the CRMP and the Backcountry Management Plan (BMP);and (d) assure the reconsideration and, if appropriate, re-allocation of riveraccess permits between commercial and non-commercial recreational users of theColorado River. The GMP also requires Defendants to “address” the use ofmotorized watercraft on the Colorado River.
115. TheGCNP GMP also requires Defendants to “actively pursue designation of eligiblesegments of the Colorado River as part of the Wild and Scenic Rivers System.”
116. Defendantshave failed to comply with these requirements of the GCNP Master Plan and GMP,and in fact have affirmatively announced their intention not to comply withthese requirements by halting all efforts to revise the 1989 CRMP and/or 1988BMP.
117. Defendantsare also in violation of the GCNP Master Plan and BMP because they have failed,despite knowing of recent reliable data justifying changes in the existingallocation of river access permits to private rafters, to begin or engage in aprocess that may lead to such an equitable re-allocation of river accesspermits.
118. Accordingly,Defendants’ actions are arbitrary and capricious, an abuse of discretion, andotherwise not in accordance with law, in violation of APA, 5 U.S.C. § 706(1),(2).
ClaimVIII:
Colorado RiverManagement Plan and APA
119. Paragraphs1-118 are incorporated by reference.
120. The1989 CRMP has the force of law.
121. The1989 CRMP lists several goals and a number of management objectives that mustguide administrative and management decisions at GCNP. The goals and management objectives include:(1) preservation of the natural resources and environmental processes of theColorado River corridor and the associated riparian and river environments; (2)provision to Colorado River users of the opportunity to participate in andappreciate a variety of the unique experiences offered by Grand Canyon NationalPark as a whole and by the riverine environment in particular; (3) provision ofa quality Colorado River experience through Grand Canyon National Park (a) bydetermining the impact of crowding and use levels on visitor experience throughsocial science research, (b) by then establishing a human use capacity and alimitation on use based on the results of the above research and relatedmanagement considerations, and (c) by managing visitor use to provideopportunities and settings for certain experiences and critical attributes asdefined in the Limits of Acceptable Chang guidelines found in Appendix B of the1989 CRMP; (4) reduction of social conflicts and activities which result inresource degradation involving backcountry and river users; and (4) provisionof opportunities for people of most ages, abilities, and physical disabilitiesto participate in river trips.
122. The1989 CRMP included a commitment by GCNP management to reconsider, on a regularbasis and in response to public concern and input, the allocation of riveraccess permits between commercial concessionaires and private rafters.
123. The1989 CRMP, by its own language and terms, required Defendants to engage in acomprehensive review of its terms, conditions, requirements and objectiveswithin five to ten years of its issuance. The 1989 CRMP, pursuant to specific language contained therein, had amaximum lifespan and effective period of five to ten years.
124. The1989 CRMP included, as a device intended to guide management decisions at GCNPpursuant to its terms, an Appendix that set forth “Limits of Acceptable Change”(LAC). The purpose of the LAC includedthe provision, to the extent possible, of a “primitive river experience.”Defendants are required to modify management actions at GCNP when the specifiedLAC is reached.
125. Defendantshave failed to revise or replace the 1989 CRMP and have authorized continueduse of motorized watercraft and helicopters by commercial concessionaires,private rafters, and GCNP management and staff at levels, numbers, andfrequencies that are inconsistent with the goals and management objectivesspecified by the 1989 CRMP and with the LAC specified in the 1989 CRMP. Defendants have also failed to revise theallocation of river use permits between commercial concessionaires and privaterafters despite their awareness of substantial data that amply justifies suchan equitable re-allocation, thus resulting in the perpetuation of a lengthy,unnecessary, and unfair waiting list for private rafters.
126. Accordingly,Defendants’ actions are arbitrary and capricious, an abuse of discretion, andotherwise not in accordance with law, in violation of APA, 5 U.S.C. § 706(1),(2).
Claim IX:
Backcountry Management Plan and APA
127. Paragraphs1-126 are incorporated by reference.
128. Accordingto the terms of the 1988 BMP, it had a lifespan and effective period of threeyears. The 1988 BMP also requiredDefendants to review the plan at the end of each three-year period in the eventof renewal.
129. The BMPrequired such a review in order to assure that GCNP management takes account ofpublic concerns and to increase the likelihood that park visitors will have aquality backcountry experience.
130. The BMP hasthe force of law.
131. Defendantsare in violation of the BMP by continuing to fail to renew, update or replaceit, despite its life span having expired in 1991, and by their continuingfailure to engage in a required plan review at the end of each three-yearperiod since the BMP was adopted.
132. Accordingly,Defendants’ actions are arbitrary and capricious, an abuse of discretion, andotherwise not in accordance with law, in violation of APA, 5 U.S.C. § 706(1),(2).
Requests for Relief
1. Plaintiffs respectfully request thatthis Court declare that Defendants have violated the National Park ServiceOrganic Act and Redwoods Amendment thereto, Wilderness Act, NationalEnvironmental Policy Act, Grand Canyon Enlargement Act, National Park SystemConcessions Policy Act, as well as various Federal regulations, NPS ManagementPolicies and Director’s Orders, and GCNP management plans, including the 1976Grand Canyon National Park Master Plan, 1995 General Management Plan, 1989 ColoradoRiver Management Plan, and 1988 Backcountry Management Plan, and accordinglythat Defendants have violated the Administrative Procedures Act, for thereasons and in the manner alleged above;
2. Plaintiffs further respectfully request that this Court issue a writ ofmandamus preventing Defendants from, and/or enjoin Defendants from, acting inthe unlawful manner detailed in this Complaint and requiring Defendants to actin such a manner as Plaintiffs will request during pendency of this action;
3. Plaintiffs further respectfully request that this Court,pursuant to a writ of mandamus and/or declaratory judgment and injunction,order and compel Defendants to re-initiate the Wilderness and Colorado River planningprocesses, as a comprehensive and coordinated process, with a specificrequirement that Defendants assure that such planning processes achievecomplete compliance with the requirements, mandates, goals, objectives, andpolicies imposed upon Defendants pursuant to statutory and regulatory authorityas alleged above;
4. Award to Plaintiffs their costs, expenses, expert witness fees, andreasonable attorney fees; and
5. Grant Plaintiff such further relief asthis Court deems just, proper, and equitable.
DATEDthis 28th day of July 2000.
LAWOFFICE OF HENRY B. LACEY
___________________________________
HenryB. Lacey
LAWOFFICE OF ROBERT P. LIPPMAN
___________________________________
RobertP. Lippman
Attorneysfor Plaintiffs