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 CONSERVATIONASSOCIATION, )
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, anagency of the United States; )
)
Defendants, )
)
GRAND CANYON RIVER OUTFITTERS )
ASSOCIATION, )
)
InterveningDefendant. )
________________________________________________)
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 StatesDistrict Court for the District of Arizona, shall be settled in accordance withthe terms of this Settlement Agreement (hereinafter “Agreement”):
WHEREAS, plaintiffs Grand Canyon Private Boaters Association, AmericanWhitewater, National Parks and Conservation Association, American CanoeAssociation, Elizabeth Boussard, Kim Crumbo, John Bachrach, and Marty Wilson(hereinafter “Plaintiffs”) have filed the action Grand Canyon PrivateBoaters Ass’n v. Alston, Case No. CV-00-1277-PCT-PGR-TSZ (D. Ariz.), inwhich the Plaintiffs claim that the defendants National Park Service, U.S.Department of the Interior, Secretary of Interior Gale Norton, National ParkService Director Fran P. Mainella, and Grand Canyon National ParkSuperintendent Joseph Alston (hereinafter “Federal Defendants” or “Service”)have violated the Wilderness Act, the Grand Canyon Enlargement Act, theNational Park Service Organic Act, the National Environmental Policy Act, theNational Park Service Concessions Policy Act, and other laws related tomanagement of activities on the Colorado River and in the backcountry in GrandCanyon National Park (hereinafter “Park”); and
WHEREAS, the Plaintiffs, FederalDefendants, and Intervening Defendant Grand Canyon River Outfitters Association(hereinafter collectively “Parties”) agree that it is appropriate and inthe public interest to resolve amicably and without further litigation, on theterms set forth below, the Plaintiffs’ claims in the above referenced case;
NOW, THEREFORE, without admitting orconceding wrongdoing or liability, the Parties mutually agree as follows:
1. Colorado River Management Plan.
A. Within 120 days after entry of an orderdismissing the above-referenced action, the Service will initiate planningefforts to update the Park’s Colorado River Management Plan (hereinafter“CRMP”) of 1989. In connection withthis planning process, the Service will prepare appropriate environmentaldocumentation consistent with the National Environmental Policy Act of 1969. The Service will host one public scopingmeeting and one public meeting to receive comments on the draft revised rivermanagement plan in, at a minimum, each of the following four cities: Flagstaff, Phoenix, Salt Lake City, andDenver.
B. The Parties acknowledge that during the CRMPplanning process, the Service will consult as appropriate with otherindividuals and entities, including but not limited to federally recognizedIndian tribes.
C. Consistent with the National EnvironmentalPolicy Act, during the CRMP planning process, the Service will consider, amongother things:
i. the appropriate level of visitor use on theColorado River consistent with resource protection and visitor experiencegoals;
ii. the allocation of use of the Colorado Riverbetween commercial and non-commercial users, the allocation of use betweendifferent types of commercial users (e.g., between motorized and non-motorizedtrips), and alternatives to the current system of commercial/non-commercialallocation;
iii. in consultation with the Hualapai IndianTribe of Arizona and other appropriate parties, the continued use ofhelicopters and alternatives to the use of helicopters to transport riverpassengers in the vicinity of Whitmore Wash;
iv. the impacts of motorized water craft,potential mitigation of those impacts (including technological improvements tomotors), and a reasonable range of alternatives with respect to the currentratio of motorized craft to non-motorized craft, which alternatives may includea no-motors alternative as well as one or more alternatives that contemplatethe continued use of motors; and
v. the range of services to be provided to thepublic.
D. In connection with the CRMP planningprocess, the Service will issue a final NEPA compliance document by December31, 2004.
E. The Plaintiffs acknowledge that the Servicemay extend the current river outfitters’ concession contracts for up to a totalof three years from the current expiration date of those contracts, which isDecember 31, 2002. The Plaintiffs andthe Intervening Defendant will not challenge, obstruct, delay, or otherwiseseek to prevent such extension(s).
F. The Service will seek sufficient funds toaccomplish the CRMP planning process.
G. The Plaintiffs and Intervening Defendantwill cooperate with the Service in the CRMP planning process by, among otherthings, making information requested by the Service available on a timelybasis. This information may include,without limitation, demographic information regarding river use, demand forriver trips, and needs of river users. In accordance with their existing privacy policies, Plaintiffs andIntervening Defendant may protect the privacy of individual members orcustomers. In updating the CRMP, theService will not rely on any information provided by Plaintiffs, InterveningDefendant, or any other party that is not deemed public information byall of the Parties.
H. Within five (5)business days after the end of the 2001 primary season (or ten days after thisAgreement takes effect, whichever is later), the Intervening Defendant willnotify 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 unuseduser-days available for use for noncommercial access during the 2001-2002secondary season, utilizing launch dates to be determined solely by theService. Consistent with the Service’sdiscretion to achieve resource management objectives and the availability ofsufficient unused user-days from the commercial primary-season allocation, theService and Intervening Defendant will repeat the process identified in thefirst two sentences of this paragraph, on a year-by-year basis, through the2004 primary season and subsequent 2004-2005 secondary season. The Parties acknowledge that the smallnumber of commercial user-days that currently go unused result from practicaland logistical impediments to booking to one hundred percent of any fixedallocation of use and therefore provide no indication as to the public’s interestin or demand for commercial river trips in Grand Canyon National Park.
2. The Service will make available to Plaintiffs and Intervening Defendantthe following information at least once a quarter:
A. Logs or other documentation showing thenumber, date, purpose, number of participants, and user days of administrativelaunches (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 2000and for subsequent years through 2004.
3. Backcountry Management Plan. The Service agreesthat it will publish a notice of intent to review and revise the Park’sBackcountry Management Plan, which provides guidance for management of thePark’s backcountry, including areas that have been proposed as wilderness. The process of reviewing and revising theBackcountry 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 appropriateenvironmental documentation related to revisions of the Backcountry ManagementPlan.
4. Attorneys Fees and Costs. Without in any way admitting that its position in the above-referencedaction was not substantially justified, the Federal Defendants will pay to thePlaintiffs the sum of $3,063 in costs and $30,000 in attorneys fees infull satisfaction of any claim for attorneys’ fees, costs, and other expensesrelated to the above-referenced action. The Plaintiffs will have no further recourse against the FederalDefendants for any additional payment of attorneys’ fees, costs, or otherexpenses related to the above-referenced action.
5. Nothing in this Agreement shall be construed or offered in evidence inany proceeding as an admission or concession of wrongdoing, liability, or anyissue of fact or law concerning the claims settled under this Agreement. Federal Defendants do not hereby waive anydefenses they may have concerning the claims settled under this Agreement. This Agreement is executed solely for thepurpose of compromising and settling this litigation and nothing herein shallbe construed as precedent in any other context. Nothing in this Agreement shall be construed to deprive a federalofficial of authority to revise, amend or promulgate regulations. Nothing in this agreement shall be construedto commit a federal official to obligate or expend funds in violation of theAnti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable appropriationslaw. Nothing in this Agreement isintended to affect the Parties’ obligations to comply with the applicable lawsof the Hualapai Indian Tribe. Furthermore, nothing in this Agreement is intended to affect the rightsof the Hualapai Indian Tribe or the Parties’ obligations with respect to anypermits that may be required on the Hualapai Indian Reservation. The Federal Defendants will respect theintergovernmental agreements between the National Park Service and the HualapaiIndian Tribe concerning the Area of Cooperation as defined in thoseagreements. In the sound exercise oftheir discretion, the Federal Defendants will exercise their best efforts toincorporate into the CRMP planning process the ongoing negotiations andconsultations between the National Park Service and the Tribe concerning theArea of Cooperation and to incorporate into the CRMP itself the results ofthose negotiations and consultations. This Agreement settles all claims brought by the Plaintiff against theFederal 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 stipulationof dismissal under Federal Rule of Civil Procedure 41. This Agreement shall be attached to thejoint stipulation of dismissal filed with the Court. This Agreement shall not take effect until Plaintiffs’ claimsagainst the Federal Defendants have been dismissed by the Court. Plaintiffs’dismissal shall be without prejudice, except that: 1) until December 31, 2004Plaintiffs may refile their claims related to the Park’s management of theRiver corridor only if the Federal Defendants breach this Agreement; and 2)until December 31, 2005, Plaintiffs may refile their claims related to thePark’s management of the backcountry outside of the River corridor only if theFederal Defendants do not publish the notice of intent referred to in paragraph3 of this Agreement. The filingof this Agreement shall not be construed to constitute consent by the partiesto the entry of the Agreement as an order of the Court, or to constituteconsent by the parties to an action for specific performance of the terms ofthis Agreement.
Dated: _______, 2002. ____________________________
LORIPOTTER, ESQ.
Kelly,Haglund, Garnsey & Kahn, LLC
1441Eighteenth Street, Suite 300
Denver,Colorado 80202-1255
(303)296-9412 (telephone)
(303)293-8705 (fax)
Attorneysfor the Plaintiffs.
Dated: ________, 2002. THOMASL. SANSONETTI
AssistantAttorney General
Environment& Natural Resources Division
____________________________
T.NEAL McALILEY, ESQ.
TrialAttorney
GeneralLitigation Section
Environment& Natural Resources Division
U.S.Department of Justice
99N.E. Fourth St., Room 415
Miami,Florida 33132-2111
(305)961-9415 (telephone)
(305)536-4651 (fax)
Of Counsel: ROBERTEATON, ESQ.
Officeof the Field Solicitor
U.S.Department of the Interior
2968Rodeo Park Dr. West
PaisanoBldg. Rm. 2070
SantaFe, New Mexico 87505
(505)988-6200 (telephone)
(505)988-6217 (fax)
Attorneysfor the Federal Defendants.
Dated: _________, 2002. _____________________________
SAMKALEN, ESQ.
JONATHANSIMON, ESQ.
VanNess Feldman, PC
1050Thomas Jefferson, NW
SeventhFloor
Washington,DC 20007
(202)298-1800 (telephone)
(202)338-2416 (fax)
Attorneysfor 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 CONSERVATIONASSOCIATION, )
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, anagency of the United States; )
)
Defendants, )
)
GRAND CANYON RIVER OUTFITTERS )
ASSOCIATION, )
)
InterveningDefendant. )
________________________________________________)
JOINT STIPULATION OF DISMISSAL
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1)(ii)
Having reached a settlement of thePlaintiffs’ claims in this case pursuant to the attached Settlement Agreement,the parties hereby jointly stipulate to dismissal of Plaintiffs’ claims in thisaction pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii). The parties stipulate that this dismissalshall be without prejudice; except that, 1) until December 31, 2004 Plaintiffsmay refile their claims related to Grand Canyon National Park’s management ofthe Colorado River corridor only if the Federal Defendants breach thisAgreement; and 2) until December 31, 2005, Plaintiffs may refile their claimsrelated to Grand Canyon National Park’s management of the backcountry outsideof the Colorado River corridor only if the Federal Defendants do not publishthe notice of intent referred to in paragraph 3 of this Agreement.
Dated: _______, 2002. ____________________________
LORIPOTTER, ESQ.
Kelly,Haglund, Garnsey & Kahn, LLC
1441Eighteenth Street, Suite 300
Denver,Colorado 80202-1255
(303)296-9412 (telephone)
(303)293-8705 (fax)
Attorneysfor the Plaintiffs.
Dated: ________, 2002.
AssistantAttorney General
Environment& Natural Resources Division
____________________________
T.NEAL McALILEY, ESQ.
TrialAttorney
GeneralLitigation Section
Environment& Natural Resources Division
U.S.Department of Justice
99N.E. Fourth St., Room 415
Miami,Florida 33132-2111
(305)961-9415 (telephone)
(305)536-4651 (fax)
Of Counsel: ROBERTEATON, ESQ.
Officeof the Field Solicitor
U.S.Department of the Interior
2968Rodeo Park Dr. West
PaisanoBldg. Rm. 2070
SantaFe, New Mexico 87505
(505)988-6200 (telephone)
(505)988-6217 (fax)
Attorneysfor the Federal Defendants.
Dated: _________, 2002. _____________________________
SAMKALEN, ESQ.
JONATHANSIMON, ESQ.
VanNess Feldman, PC
1050Thomas Jefferson, NW
SeventhFloor
Washington,DC 20007
(202)298-1800 (telephone)
(202)338-2416 (fax)
Attorneysfor 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 CONSERVATIONASSOCIATION, )
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, anagency of the United States; )
)
Defendants, )
)
GRAND CANYON RIVER OUTFITTERS )
ASSOCIATION, )
)
InterveningDefendant. )
________________________________________________)
[PROPOSED] ORDER OF DISMISSAL
Having considered the parties’ JointStipulation of Dismissal pursuant to Federal Rule of Civil Procedure41(a)(1)(ii), and having considered the Settlement Agreement filed by theparties in this case, and good cause appearing therefor, the Court herebyDISMISSES this action. This dismissalshall be without prejudice, except that: 1) until December 31, 2004 Plaintiffs may refile their claimsrelated to Grand Canyon National Park’s management of the Colorado Rivercorridor only if the Federal Defendants breach this Agreement; and 2) untilDecember 31, 2005, Plaintiffs may refile their claims related to Grand CanyonNational Park’s management of the backcountry outside of the Colorado Rivercorridor only if the Federal Defendants do not publish the notice of intentreferred to in paragraph 3 of the Settlement Agreement filed in this case.
IT IS SO ORDERED.
Dated: ________________, 2002. _____________________________
PAULROSENBLATT
UnitedStates District Judge