# Friends of Yosemite Valley v. Norton

> District Court, E.D. California · March 22, 2002 · 194 F. Supp. 2d 1066

URL: https://www.frixlaw.com/law-library/cases/2577617

## Case

- **Full name:** FRIENDS OF YOSEMITE VALLEY, a Non-Profit Corporation; And Mariposans for Environmentally Responsible Growth, a Non-Profit Corporation, Plaintiffs, v. Gale NORTON, in Her Official Capacity as Secretary of the Interior; Department of the Interior; National Park Service; John Reynolds, in His Official Capacity as Western Regional Director of the National Park Service; David A. Milhalic, in His Official Capacity as Superintendent of Yosemite National Park; And Robert Stanton, in His Official Capacity as Director of the National Park Service, Defendants
- **Court:** District Court, E.D. California
- **Decided:** March 22, 2002
- **Citations:** 194 F. Supp. 2d 1066; 2002 U.S. Dist. LEXIS 6377; 2002 WL 538028
- **Precedential status:** Published
- **Opinion:** Opinion by Ishii
- **Judges:** Ishii
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2577617

## How later opinions describe it (automated extraction)

- discussing appellants’ “cooperation” claim without mentioning any objection based on lack of final agency action

## Opinion text

MEMORANDUM OPINION, CONCLUSIONS OF LAW AND ORDER FOLLOWING BENCH TRIAL
ISHII, District Judge.
In this action Friends of Yosemite Valley and Mariposans for Environmentally Responsible Growth (collectively “Plaintiffs”) challenge the June 2000 Merced Wild and Scenic River Comprehensive Management Plan (“MRP”) and Final Environmental Impact Statement (“FEIS”), and the August 9, 2000 Record of Decision (“ROD”) implementing the MRP and the FEIS. Plaintiffs contend that Defendants have failed to prepare a valid comprehensive management plan that protects and enhances the natural values of the Merced River in Yosemite National Park in compliance with the Wild and Scenic Rivers Act, 16 U.S.C. § 1271
et seq.,
(‘WSRA”), and have also violated the National Environmental Policy Act, 42 U.S.C. § 4321
et seq.,
(“NEPA”), and the Administrative Procedures Act, 5 U.S.C. § 701 ,
et seq.,
(“APA”). This court has federal question subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and venue is proper in this district.
PROCEDURAL HISTORY
On July 12, 1999, the court entered a Memorandum Opinion and Order in
Sierra Club, et al. v. Babbitt, et al.,
69 F.Supp.2d 1202 (E.D.Cal.1999). In that Memorandum Opinion and Order, the court found that the defendants had violated 16 U.S.C. § 1274 (d), a portion of WSRA, by failing to develop a comprehensive management plan for the Merced River. The court granted the plaintiffs declaratory judgment on their claim that the defendants had violated the APA by failing to adopt a comprehensive management plan for the Merced River, as required by WSRA. The court ordered the National Park Service (“NPS”) to prepare and adopt a valid comprehensive management plan for the Merced River as designated under WSRA no later than twelve months after the entry of the court’s decision. Based on a request from the NPS, the court subsequently extended the deadline for the NPS to complete a valid comprehensive management plan to August 14, 2000.
The NPS began public scoping pursuant to NEPA for the comprehensive management plan and environmental impact statement (“EIS”) in June of 1999. The Merced River Plan Draft EIS was released in January of 2000. The Draft EIS presented five alternatives, including a no action alternative, for consideration. Availability of the Merced River Plan Final EIS was announced in early July 2000. The record of decision on the MRP was signed on August 9, 2000, with a revised record of decision being signed on November 3, 2000. Following completion of the NEPA process for the MRP, the NPS published the Merced Wild and Scenic River Comprehensive Management Plan (“Merced River Plan” or “MRP”) in a reference volume specifically designed for park planners and managers.
1
On August 14, 2000, Plaintiffs filed their complaint in this action. A bench trial was held on November 6, 2001, and the entire case was submitted for decision.
STANDARD OF REVIEW
The review of final agency action is governed by the Administrative Procedure
*1072
Act under an “arbitrary or capricious” standard. 5 U.S.C. § 706 (2)(A). Absent a showing of arbitrary action, a court must assume that an agency has exercised its discretion appropriately.
Kleppe v. Sierra Club,
427 U.S. 390, 412 , 96 S.Ct. 2718 , 49 L.Ed.2d 576 (1976). Thus, the standard is “highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.”
Independent Acceptance Co. v. California,
204 F.3d 1247, 1251 (9th Cir.2000)(internal quotations omitted.). An agency’s decision should be overturned if it was “arbitrary, capricious, an abuse of discretion, other otherwise not in accordance with the law.” 5 U.S.C. § 706 (2)(A);
Idaho Farm Bureau Fed’n v. Babbitt,
58 F.3d 1392 , 1401 (9th Cir.1995). The Ninth Circuit has explained review of agency decisions as follows:
Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency.
Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 376 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989)
(Marsh).
We must determine whether the agency’s decision was made after considering the relevant factors and whether the agency made a clear error of judgment.
Id.
at 378 , 109 S.Ct. at 1861 . We may reverse the agency’s decision as arbitrary or capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Dioxin/Organochlorine Center v. Clarke,
57 F.3d 1517, 1521 (9th Cir.1995).
Western Radio Services Co., Inc. v. Espy,
79 F.3d 896, 900 (9th Cir.1996),
cert. denied,
519 U.S. 822 , 117 S.Ct. 80 , 136 L.Ed.2d 38 (1996).
Plaintiffs seek injunctive relief • against Defendants. The United States Supreme Court has explained as follows:
It goes without saying that an injunction is an equitable remedy. It “is not a remedy which issues as of course,”
Harrisonville v. W.S. Dickey Clay Mfg. Co.,
289 U.S. 334, 337-338 , 53 S.Ct. 602, 603 , 77 L.Ed. 1208 (1933), or “to restrain an act the injurious consequences of which are merely trifling.”
Consolidated Canal Co. v. Mesa Canal Co.,
177 U.S. 296, 302 , 20 S.Ct. 628, 630 , 44 L.Ed. 777 (1900). An injunction should issue only where the intervention of a court of equity “is essential in order effectually to protect property rights against injuries otherwise irremediable.”
Cavanaugh v. Looney,
248 U.S. 453, 456 , 39 S.Ct. 142, 143 , 63 L.Ed. 354 (1919). The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.
Rondeau v. Mosinee Paper Corp.,
422 U.S. 49, 61 , 95 S.Ct. 2069, 2077 , 45 L.Ed.2d 12 (1975);
Sampson v. Murray,
415 U.S. 61, 88 , 94 S.Ct. 937, 951 , 39 L.Ed.2d 166 (1974);
Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 506-507 , 79 S.Ct. 948, 954-955 , 3 L.Ed.2d 988 (1959);
Hecht Co. v. Bowles,
supra, at 329, 64 S.Ct., at 591.
Where plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive at a “nice adjustment and reconciliation” between the competing claims,
Hecht Co. v. Bowles, supra,
at 329, 64 S.Ct., at 592. In such cases, the court “balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.”
Yakus v.
*1073
United States,
321 U.S. 414, 440 , 64 S.Ct. 660, 675 , 88 L.Ed. 834 (1944). “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.”
Hecht Co. v. Bowles,
supra, 321 U.S., at 329 , 64 S.Ct., at 592 .
Weinberger v. Romero-Barcelo,
456 U.S. 305, 311-12 , 102 S.Ct. 1798 , 72 L.Ed.2d 91 (1982). The Court later summarized its holding in
Weinberger
as follows:
We reviewed the well-established principles governing the award of equitable relief in federal courts.
Id.,
at 311-313 , 102 S.Ct., at 1802-1804 . In brief, the bases for injunctive relief are irreparable injury and inadequacy of legal remedies. In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Although particular regard should be given to the public interest, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.”
Id.,
at 313 , 102 S.Ct., at 1803 .
Amoco Production Co. v. Village of Gambell, Alaska,
480 U.S. 531, 542 , 107 S.Ct. 1396 , 94 L.Ed.2d 542 (1987).
DISCUSSION
Both Plaintiffs and Defendants have filed objections to declarations submitted by the opposing party. It is undisputed that the focal point for judicial review is the administrative record before the agency at the time of the agency’s decision and “not some new record made initially in the reviewing court.”
Camp v. Pitts,
411 U.S. 138, 142 , 93 S.Ct. 1241 , 36 L.Ed.2d 106 (1973). There are, however, exceptions to this general rule. In
Animal Defense Council v. Hodel,
840 F.2d 1432, 1436 (9th Cir.1988), the Ninth Circuit explained:
However, certain circumstances may justify expanding review beyond the record or permitting discovery. See, e.g.,
Public Power Council v. Johnson,
674 F.2d 791, 793 (9th Cir.1982). The district court may inquire outside the administrative record when necessary to explain the agency’s action.
Id.
at 793-94 . When such a failure to explain agency action effectively frustrates judicial review, the court may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.”
Camp v. Pitts,
411 U.S. 138, 143 , 93 S.Ct. 1241, 1244 , 36 L.Ed.2d 106 (1973). The court’s inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision.
Hintz,
800 F.2d at 829.
The district court may also inquire outside of the administrative record “when it appears the agency has relied on documents or materials not included in the record.”
Id.
In addition, discovery may be permitted if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action.
Id.
In the present case, the court has considered the parties’ declarations for the purpose of determining whether the NPS considered all relevant factors and explained the grounds of its decision, and also to help explain the background facts and complex scientific matters upon which the case is based. The court is grateful for the assistance the declarations have given to the court in understanding many aspects of the case. The court has not,
*1074
however, relied on any of the declarations as a basis for reaching its decision on any issue. Accordingly, the objections of all parties to the declarations filed in this case will be overruled, and all motions to strike portions of declarations will be denied.
Plaintiffs also move to strike the extra-record exhibits attached to the amici brief filed by the Natural Resources Defense Council. Defendants have not opposed this motion. The court finds that the attachment of such exhibits goes beyond the proper purpose of an amicus brief.
See Metcalf v. Daley,
214 F.3d 1135 , 1141 n. 1 (9th Cir.2000)(striking extra-record documents attached to amicus brief);
Banerjee v. Board of Trustees of Smith College,
648 F.2d 61 , 65 n. 9 (1st Cir.1981)(purpose of amicus brief is not to assist a party with its evidentiary claims). Accordingly, the exhibits attached to the amicus brief, along with all portions of the amicus brief which rely on those exhibits will be stricken.
I. RIPENESS
Defendants contend that Plaintiffs’ claims are not ripe for judicial review and that Plaintiffs lack standing. Defendants base this contention on their claim that the MRP does not authorize site-specific development, but rather is a programmatic plan which provides a framework for reviewing specific future projects. Defendants argue that generally, in such situations, there are no justiciable issues ripe for review.
See Ohio Forestry Ass’n v. Sierra Club,
523 U.S. 726, 732-37 , 118 S.Ct. 1665 , 140 L.Ed.2d 921 (1998);
Wilderness Society v. Thomas,
188 F.3d 1130, 1132-33 (9th Cir. 1999);
Environmental Protection Information Center (EPIC) v. Tuttle,
2001 WL 114422 *4-8 (No. C 00-0713 SC, N.D. Cal. Jan. 22, 2001). Defendants rely primarily on
Ohio Forestry Ass’n v. Sierm Club,
in which the Court addressed the justiciability of a forest plan prepared pursuant to the National Forest Management Act (“NFMA”). The NFMA requires the Forest Service to develop and maintain a forest management plan for each unit of the National Forest System.
See
16 U.S.C. § 1604 (a). The forest plans must provide for multiple uses of forests, including “coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604 (e)(1). All permits and contracts for the use of the forests must be consistent with the forest plans.
See
16 U.S.C. § 1604 (i). In
Ohio Forestry Ass’n v. Sierra Club,
the Court explained as follows:
As this Court has previously pointed out, the ripeness requirement is designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.”
Abbott Laboratories v. Gardner,
387 U.S. 136, 148-149 , 87 S.Ct. 1507, 1515 , 18 L.Ed.2d 681 (1967).
In deciding whether an agency’s decision is, or is not, ripe for judicial review, the Court has examined both the “fitness of the issues for judicial decision” and the “hardship to the parties of withholding court consideration.”
Id.,
at 149 , 87 S.Ct., at 1515 . To do so in this case, we must consider: (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.
Id.
at 732-33, 118 S.Ct. 1665 .
In
Wilderness Society v. Thomas, 188
F.3d 1130, 1133-34 (9th Cir.1999), the
*1075
Ninth Circuit applied the holding in
Ohio Forestry v. Sierra Club
as follows:
Ohio Forestry
embraces the eminently sensible proposition that harm is best assessed when it is tangible, rather than theoretical. Thus, for a challenge to a forest plan to be justiciable under the Act, the plaintiffs must allege either (1) imminent concrete injuries that would be caused by the forest plan, such as “allowing motorcycles into a bird-watching area” or “dos [ing] a specific area to off-road vehicles,”
see
523 U.S. at 738 , 118 S.Ct. at 1673 , or (2) a site-specific injury causally related to an alleged defect in the forest plan. Generic challenges to the sufficiency of forest plans are no longer justiciable, nor are challenges that merely identify affected sites without alleging a harm causally related to the forest plan.
See id.; see also ONRC Action v. BLM,
150 F.3d 1132, 1136 (9th Cir.1998) (acknowledging that Ohio Forestry “calls into doubt a plaintiffs ability to challenge an agency’s adoption of a plan without site-specific actions as the focus of the challenge”).
Here, plaintiffs’ complaint alleges not only that the Forest Service violated the NFMA by failing to conduct a forest-wide grazing suitability study, but also that the Forest Service violated the NFMA at a site-specific level by approving allotment management plans for the Crooks Canyon/Maverick and the Brady Butte allotments without identifying the lands suitable for grazing on those allotments. In short, the plaintiffs allege that the Forest Service’s general methodology in determining grazing suitability in the Forest Plan was flawed, causing site-specific harm by allowing grazing in an area unsuitable for it. Thus, the claims alleged in count one (a general challenge to the Forest Plan) are not justiciable; however, the claims alleged in counts two and three (site specific injury relating to Crooks Canyon/Maverick and the Brady Butte allotments) are ripe for review. Because the site-specific injury to the two allotments is alleged to have been caused by a defect in the Forest Plan, we may consider whether the Forest Service complied with the Act in making its general grazing suitability determinations in the Forest Plan.
In sum, the
Ohio Forestry
ripeness factors do not weigh against judicial review of counts two and three at this juncture. An actual, site-specific injury causally related to a plan defect has been alleged. The question presented by the plaintiffs — whether the Forest Service is obliged under the NFMA to conduct a distinct grazing suitability analysis — is essentially a question of law. Therefore, the court would not benefit from further factual development of the issue presented. Because the action seeks to compel the agency to comply with an alleged NFMA requirement, judicial intervention would not interfere inappropriately with further administrative action. Finally, our review does invoke “the kind of ‘abstract disagreements over administrative policies’ that the ripeness doctrine seeks to avoid.”
Ohio Forestry,
523 U.S. at 735 , 118 S.Ct. at 1672 (quoting
Abbott Labs. v. Gardner
387 U.S. 136, 148 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967)). However, count one of plaintiffs’ complaint presents a generic challenge which
Ohio Forestry
cautions against adjudicating. Thus, counts two and three of plaintiffs’ complaint are ripe for adjudication; count one is not.
Defendants contend that these cases, which share the common characteristic of rejecting a challenge to a forest management plan where further governmental action would be necessary before something environmentally harmful could be approved or implemented, are analogous to
*1076
the present case. Defendants argue that before any project could take place which would harm the outstandingly remarkable values (“ORVs”) of the Merced River or affect its free flow, it would have to survive a review under the criteria set forth in the MRP. Defendants conclude, therefore, that Plaintiffs’ WSRA challenges to the MRP are not ripe for judicial review.
Initially, Plaintiffs assert that their WSRA and NEPA claims became ripe when the FEIS and ROD were issued, citing
Ohio Forestry Assoc. v. Sierra Club.,
523 U.S. at 737 , 118 S.Ct. 1665 ,
West v. Secretary of the Dept. of Transportation,
206 F.3d 920 , 930 fn. 14 (9th Cir.2000), and
Hells Canyon Alliance v. U.S. Forest Service,
227 F.3d 1170 (9th Cir.2000). Then, in their opposition brief, Plaintiffs contend that their WSRA claims became ripe when NPS made the decision to adopt Alternative 2 as the comprehensive management plan for the Merced River. Plaintiffs rely on
National Park and Conservation Ass’n v. Stanton,
54 F.Supp.2d 7, 17 (D.D.C.1999), in which environmental groups challenged the NPS’ plan for management of the Niobrara National Scenic River in Nebraska under WSRA. Under the challenged management plan, the NPS delegated all its responsibilities for managing the Niobrara to an independent local council over which the NPS had virtually no control. In response to the defendants’ argument that the issue of the legality of the delegation of the management of the river was not yet ripe, the District Court for the District of Columbia held as follows:
To prove ripeness, Plaintiffs must show that: (1) delayed review would cause hardship to them; (2) the agency action is final; and (3) the Court would not benefit from further factual development of the issues presented.
Ohio Forestry Ass’n Inc. v. Sierra Club,
523 U.S. 726 , 118 S.Ct. 1665, 1670 , 140 L.Ed.2d 921 (1998).
The second prong of the test is undisputed: the EIS, the decision to adopt Alternative B, and the delegation of authority to the Council are all final decisions. Additionally, it is clear that Plaintiffs would continue to suffer hardship from delayed review if NPS’ decision was found to be an unlawful delegation to the Council. Defendants argue that Plaintiffs’ current claims are merely abstract legal claims, and that further factual development will aid in determining whether NPS has sufficient oversight over the Council to defeat an unlawful delegation claim. Defendants argue that, at a minimum, the Council should be allowed to implement the GMP before the Court considers the issue.
One wonders how long Defendants would have the Court wait — until the River is hopelessly compromised? Allowing the Council to implement the GMP will not change NPS’ final delegation decision, and will thus not shed additional light on the legal issue presented by the Plaintiffs. The unlawful delegation claim is ripe and concrete: all agreements relating to the Council’s duties have been implemented, and the Court need look no further in deciding whether these duties comprise an unlawful delegation.
Id.
at 16-17. Plaintiffs also cite
Hells Canyon Alliance,
227 F.3d 1170 , 1176 (9th Cir.2000) as an example of a case in which the court reviewed a recreational management plan for consistency with WSRA after
Ohio Forestry.
The court notes, however, that this case does not address ripeness.
Plaintiffs argue generally that review of comprehensive management plans under the Wild and Scenic Rivers Act is “appropriate and common,” citing as examples
Oregon Desert Association v. Singleton,
47
*1077
F.Supp.2d 1182, 1190 (D.Or.1998) and
Oregon Natural Desert Association v. Green,
953 F.Supp. 1133 (D.Or.1997). Again, neither of these cases address the ripeness issue.
In response to Defendants’ argument that the MRP is a programmatic plan and does not authorize site-specific development, Plaintiffs argue that Defendants ignore fundamental flaws in the MRP which make review of it imperative now. Most generally, Plaintiffs argue that the MRP makes final determinations about what resources are ORVS and are therefore afforded protection. Plaintiffs claim that certain ORVs have been illegally eliminated or altered and that they will not be afforded WSRA protection until this court reviews the issue. Among the specific flaws in the MRP alleged by Plaintiffs, is that through its zoning, the MRP authorizes unlimited amounts of the types of use authorized in each zone. Relatedly, Plaintiffs argue that the MRP validates existing uses of the Merced River and its environment which are presently degrading OVRs. Plaintiffs list as this type of existing use the Camp 6 parking lot, which they claim affects scenic, riparian habitat, and free flow, and the unregulated commercial tour buses, which they claim impact the natural quiet.
Turning to the three factors to be considered under
Ohio Forestry Ass’n v. Sierra Club,
Plaintiffs address the first factor of “whether delayed review would cause hardship to the plaintiffs.”
Id.
at 732, 118 S.Ct. 1665 . Plaintiffs contend that the present situation is not analogous to that in
Ohio Forestry Ass’n v. Sierra Club,
in which the Court found that delayed review would not cause hardship based in part on its conclusion that the challenged provisions of the plan did not create adverse effects “that traditionally would have qualified as harm” such as commanding anyone to do anything or to refrain from doing anything.
Id.
at 733 , 118 S.Ct. 1665 . The Court stated that it did not find that the plan currently inflicted “significant practical harm upon the interests that the Sierra Club advances,” noting that this was “an important consideration in light of this Court’s modern ripeness cases.”
Id
at 733 — 34, 118 S.Ct. at 1670 .
Plaintiffs argue that the present case is distinguishable because a comprehensive management plan under WSRA is fundamentally different from a forest plan under the National Forest Management Act. Plaintiffs argue that while a comprehensive management plan may restrict ongoing activities and take preventive or corrective actions to protect and enhance ORVS, a forest plan simply sets forth allowable activities that may or may not take place in the National Forest. Regarding how delayed review would be harmful in the present case, Plaintiffs repeat their arguments that fundamental flaws in the MRP plan make review imperative now. These include determination of ORVs and boundaries which will not be reevaluated in future project-level decisions, and existing types of uses of the Merced River environment which are presently degrading ORVs, including Camp 6 parking and unregulated commercial tour buses. Finally, Plaintiffs argue that Defendants have agreed that it would cause a hardship if review of the MRP was delayed. Plaintiffs cite Exhibit A, page 19, lines 4 -22, of the Declaration of Sharon E. Duggan, which is an excerpt of the transcript of a hearing before Magistrate Judge Dennis L. Beck on April 6, 2001. The subject of the hearing was Plaintiffs’ motion to amend their complaint to include allegations regarding the Valley Plan. The court finds that in the pages provided in Exhibit A, counsel for Defendants argues against the amendment, claiming that it will delay judicial resolution of the validity of the
*1078
MRP, and will prejudice Defendants and the public.
Plaintiffs next address the second factor under
Ohio Forestry Ass’n v. Sierra Club
of “whether judicial intervention would inappropriately interfere with further administrative action.”
Id.
at 733, 1670 . The Court found that “from the agency’s perspective, immediate judicial review directed at the lawfulness of logging and clearcutting could hinder agency efforts to refine its policies,” and that there was a real possibility that further consideration would occur before the agency implemented the plan.
Id.
at 736 , 118 S.Ct. at 1671 . The Court concluded, therefore, that “[hjearing the Sierra Club’s challenge now could thus interfere with the system that Congress specified for the agency to reach forest logging decisions.”
Id.
Plaintiffs contend that in opposition to their motion to amend the complaint, Defendants argued that delay in judicial review would be prejudicial and interfere with further administrative action. Plaintiffs again cite Exhibit A to the Duggan Declaration and the transcript of the April 6, 2001 hearing before Magistrate Judge Dennis L. Beck.. Plaintiffs argue that at that hearing, Defendants did not claim that judicial review of the MRP at the present time would interfere with further administrative action, but rather argued the opposite. The court’s review of the transcript reveals that at the hearing, Defendants’ counsel argued that until the validity of the MRP is determined in this action, Defendants cannot proceed with such projects as the removal of Cascade Dam, the reconstruction of the last mile of the El Portal Road, and the replacing of the temporary bridge at Wawona. Counsel argued that it was very prejudicial to the public interest and the interests of the National Park Service to wait for a judicial determination as to the validity of the CMP until the validity of the Valley Plan can also be determined in the same action.
Finally, Plaintiffs address the third factor to be considered under
Ohio Forestry Ass’n v. Sierra Club
of “whether the courts would benefit from further factual development of the issues presented.”
Id.
at 733 , 118 S.Ct. at 1670 . Plaintiffs contend that their opening trial brief presents in detail the evidence necessary for the court to rule in this case. Plaintiffs argue that no further factual development is necessary, and that Defendants do not argue to the contrary.
Under the Supreme Court’s direction set forth in
Abbott Laboratories
and reaffirmed in
Ohio Forestry Ass’n v. Sierra Club,
in deciding whether the Defendants’ decision in adopting the MRP is ripe for review, this court must consider both the fitness of the issues for judicial review and the hardship to the parties of withholding court consideration.
Ohio Forestry v. Sierra Club,
523 U.S. at 732-33 , 118 S.Ct. at 1670 . Subsequently, in addressing the justiciability of a forest management plan, the court further defined the two issues identified in
Abbott
into the three factors cited and discussed by the parties in the present case. The court finds that the second and third factors are easily resolved in this case and will therefore address them first.
Essentially, Defendants do not dispute that the second and third factors weigh in favor of judicial intervention at this time. As to the second factor of whether judicial intervention would inappropriately interfere with further administrative action, the court’s review of the parties’ briefs reveals that Defendants do not argue that the court’s review of the MRP at this time would significantly interfere with further action on their part. For example, Defendants do not argue, as did the defendants in
Ohio Forestry Ass’n v. Sierra Club,
that
*1079
immediate judicial review of the plan at issue would interfere with their efforts to further refíne their policies. To the contrary, as Plaintiffs point out, Defendants argued in opposition to Plaintiffs’ motion to amend that until the validity of the MRP is determined judicially, it cannot proceed with specific, planned projects. As to the third factor of whether the court would benefit from further factual development of the issues presented, Defendants do not argue that such development is needed. As was the case in
Wilderness Society v. Thomas,
the questions before this court are essentially questions of law. The facts, as set forth in the administrative record, are undisputed.
A more complex issue in this case is presented by the first of the factors from
Ohio Forestry Ass’n v. Sierra Club:
whether delayed review would cause hardship to Plaintiffs. Defendants argue repeatedly that due to the nature of the MRP as having been designed only for guidance for future site-specific projects, rather than for currently implementing such projects, the MRP is not yet ripe for review. Defendants contend that after the Court’s ruling in
Ohio Forestry Ass’n v. Sierra Club,
the only thing that remains open to judicial review in a threshold, foundational challenge to a new plan would be a violation of a clear statutory duty. In support of that contention, Defendants rely on
ONRC Action v. Bureau of Land Management,
150 F.3d 1132, 1139-40 (9th Cir.1998), in which several environmental organizations alleged that the Bureau of Land Management (“BLM”) had violated NEPA and the Federal Land Policy Management Act (“FLPMA”) by failing to halt certain actions pending completion of an EIS. The Court of Appeals held in part that the FLPMA did not require the BLM to update and monitor land use plans in manner that would require BLM to cease challenged activities. The court explained:
ONRC also contends that BLM has failed to act in accordance with duties established under FLPMA. ONRC points to various provisions in FLPMA and to sections of the Federal Regulations promulgated pursuant to FLPMA to support its contention that “BLM is neglecting its duty under FLPMA to adequately monitor and update its management plans before relying on them in making land management decisions.” This relates to ONRC’s argument that there are no existing programmatic plans in existence under NEPA because several land use plans have not been revised or amended as required.' Specifically, ONRC points to 43 U.S.C. §§ 1701 (a)(8), 1712, and 1732(b).
BLM argues that nothing in these provisions provides a clear statutory duty with which a court can require BLM to comply. “The interpretation of a statute by the agency charged with its administration is generally entitled to ‘considerable weight.’ ”
Bolt v. United States,
944 F.2d 603, 606 (9th Cir.1991) (quoting
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
467 U.S. 837, 844 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984)). “If the agency’s • construction does not conflict with the clear language of the statute, [the court] will uphold the agency’s position if reasonable.”
Id.
at 606-07. We conclude that BLM’s interpretation is reasonable. See 43 U.S.C. § 1731 (b) (discussing BLM’s duty to administer FLPMA).
Section 1701 provides several policy statements which require due consideration, but do not provide a clear duty to update land management plans or cease actions during the updating process. [FN5] Section 1712 requires the revision of land use plans when “appropriate.” [FN6] Section 1712 also provides the proper procedure and criteria to follow during development or revision of a land
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use plan. The language in Section 1712 does not, however, establish a clear duty of when to revise the plans, nor does it create a duty to cease actions during such revisions. Section 1732 also lacks a statement of clear statutory duty. It provides general guidance during decisions on management actions such as granting easements and developing trade. [FN7]
The court finds that in contrast, Plaintiffs in the present case have alleged a violation of a clear statutory duty. Specifically, Plaintiffs have alleged a violation of the requirement under 16 U.S.C. section 1274 (d)(1) that NPS “prepare a comprehensive management plan ... to provide for the protection of the river values.” In addition to alleging a violation of this overall requirement, Plaintiffs have alleged violations of the statutory duty to address “user capacities, and other management practices necessary or desirable to achieve the purposes of’ WSRA, and the requirement to administer the Merced River to protect and enhance its values. 16 U.S.C. §§ 1274 (d)(1), 1281(a).
The court finds that Plaintiffs allege the MRP currently inflicts “significant practical harm” upon the interests they advance in regard to the determination of ORVs to be protected and boundaries delineating the river area, one of the factors supporting justiciability under
Ohio Forestry Ass’n v. Sierra Club.
The court further finds that forcing Plaintiffs to wait to raise these issues within a challenge to a site-specific project will in no way make these issues more ripe. It is the very terms of the Merced River Plan which Plaintiffs wish to challenge in regard to these issues, not their implementation. Finally, the court finds that Plaintiffs’ allegations are linked to a clear statutory duty of the NPS under 16 U.S.C. section 1274 to “prepare a comprehensive management plan for such river segment to provide for the protection of the river values.”
In light of the above, the court finds that Plaintiffs have demonstrated that delayed review of the MRP would cause them hardship. The court finds, therefore, that all three
Ohio Forestry Ass’n v. Sierra Club
factors weigh in favor of justiciability in this case. The court thus concludes that Defendants’ decision as set forth in the FEIS, ROD and MRP is now ripe for review.
II. THE WILD AND SCENIC RIVERS ACT
Plaintiffs contend that the MRP and ROD violate WSRA for the following five major reasons: 1) the MRP lacks baseline data; 2) the MRP illegally eliminates ORVs previously identified and adds new, inappropriate values; 3) the MRP fails to protect and enhance the Merced River’s ORVs and free flow; 4) the Yosemite Valley Plan illegally formed the basis of the MRP; 5) the MRP illegally changes part of the Yosemite Valley classification from scenic to recreational.
BASELINE DATA
Plaintiffs contend that the most fundamental flaw in the MRP is the lack of baseline date upon which the NPS could make proper, informed decisions about how the river should be managed, and what kind of use and development would be sufficiently protective of river values. Plaintiffs claim that the present situation is analogous to that in
ONDA v. Singleton,
47 F.Supp.2d 1182 (D. Oregon 1998), which involved a challenge to a BLM management plan for the Owyhee Rivers. One of the claims by the plaintiffs was that the BLM had violated NEPA by fading to prepare an environmental impact statement (“EIS”). Specifically, the plaintiffs claimed that because the plan included cat-
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tie grazing, which had a significant impact on the environment, the BLM should have prepared an EIS. The BLM argued that because the plan mitigated grazing to avoid significant impacts, and EIS was unnecessary and that its finding of no significant impact (“FONSI”) was correct. In finding that the BLM violated NEPA by failing to prepare an EIS, the court explained as follows:
The Plan/EA itself shows that when the BLM made the FONSI, it knew grazing had negatively affected specific sites. However, it had no baseline data on the quality or quantity of vegetation at the affected sites or elsewhere, either for the time of designation or for the drought after designation, which saw more concentrated grazing. The BLM’s awareness of its lack of data is demonstrated by the Plan’s prescription of an inventory “to determine riparian areas and potentials.”
The evidence also shows that at the time the FONSI was made, the BLM had no utilization studies for riparian areas. AR Tab 178, p. 31. So, although the Plan/EA proposed to mitigate grazing with utilization standards of 30, 40 and 50%, these standards were not correlated to existing conditions, because existing conditions were unknown at the time. The standards were not correlated to any utilization studies because the BLM had none. The utilization standards are generally applicable to all upland and riparian areas, rather than site-specific; thus, there is no indication that the utilization standards were intended to remedy negative effects in the degraded areas, rather than merely maintain the status quo. The evidence indicates that the utilization standards represented nothing more than the grazing levels in existence at the time the Plan was promulgated. See AR Tab 178, p. 13 (“Agricultural use is restricted to a limited amount of domestic livestock grazing ... to the extent currently being practiced.”) and AR Tab 223, p. 1878 (“The final plan ... recommends management actions ... [which] do not substantially change the existing direction for livestock management within the corridor.”). The utilization standards, then, are not only unsupported by data, but also cannot accurately be described as mitigation, since they apparently represent a continuation of current grazing practices — the same conditions identified in the Plan/EA as having produced negative impacts in some areas.
The only other specific mitigation measures set out in the Plan/EA to compensate for the identified negative impacts of cattle grazing are limits on trailing and seasonal restrictions. But these measures are also unsupported by analytical data, and there is no evidence that they represent a departure from practices in existence at the time the Plan was written. Otherwise, the Plan/EA merely sets out optimistic expectations, contingent plans, and anticipated outcomes.
The court concludes that the BLM’s “mitigated FONSI” is insufficient to avoid an EIS. The Plan/EA itself identifies specific areas in which cattle grazing is negatively affecting the rivers’ ORVs. The BLM’s “mitigated FONSI” is not supported by any analytical data; its mitigation measures are not specific to degraded areas and appear to be nothing more than a continuation of the status quo; and it does not reveal how mitigation measures would compensate for the adverse environmental impacts identified in the Plan/EA. There is no evidence in the record that if the utilization standards are something different from the status quo, they are anything more than guesswork, given the absence of an inventory and utilization studies.
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The court notes that the Plan/EA contains no statistical data and not a single scientific citation. It is replete with plans to monitor conditions and develop data in the future, but as plaintiffs point out, NEPA requires “that the agency develop the data first, and then make a decision, not make a decision and then develop the data.” Plaintiffs’ Memorandum in Support, p. 20.
See also Foundation for North American Wild Sheep v. U.S. Dep’t of Agriculture,
681 F.2d 1172 , 1179 (9th Cir.1982) (“the very purpose of NEPA’s requirement that an EIS be prepared for all actions that may significantly affect the environment is to obviate the need for ... speculation by insuring that available data is gathered and analyzed
prior to the implementation of
the proposed action.”) (Emphasis added).
The EA falls well short of “accurate scientific analysis” and of supplying a “convincing statement of reasons” why continued grazing on the river corridor — recognized in the Plan as having a negative effect on the rivers’ ORVs— could have an insignificant impact.
ONDA v. Singleton,
47 F.Supp.2d at 1193—94.
Plaintiffs contend that the same errors occurred in the present case. They argue first that the NPS used maps throughout the MRP to identify river boundaries, management zones and the river protection overlay, but did not have basic baseline maps of natural and cultural resources from which to overlay the other management-focused maps. Relying on various declarations, Plaintiffs claim that due to the lack of baseline date, the maps in the MRP are highly inaccurate in terms of boundaries, river protection overlay and size of natural features.
Relatedly, Plaintiffs contend that the administrative record does not contain current surveys specifically conducted for the MRP/EIS to document the status of rare, threatened or even common species, and claim that even where detailed information was available, it is not reflected in the MRP/FEIS. Plaintiffs cite
Oregon Natural Desert Association v. Green,
953 F.Supp. 1133 (D.Or. 1997), which involved a challenge pursuant to WSRA, NEPA and the APA to the management plan for the Donner and Blitzen River issued by the BLM. Monitoring data on instream conditions collected over two years was used in the development of the river plan.
Id.
at 1140 . Plaintiffs argue that in the present case, the NPS has completely failed to obtain that kind of detailed data for use in the MRP. The import of this argument is unclear, as Plaintiffs do not identify for this court any language in
Green
in which the sufficiency of the monitoring data is discussed.
In response, Defendants contend that the MRP is based on sufficient baseline data to sustain a general management plan action. First, Defendants discuss the standard for a general management plan level action. They argue that the MRP is such a general management plan, which was intended to provide guidance with respect to activities and future projects in and adjacent to the river corridor. Relying on the Director’s Order # 2: Park Planning, effective May 27, 1998, Defendants argue that as a general management plan, the MRP was not intended to be a detailed plan and therefore does not call for specific projects. AR19627-19639. In regard to general management plans, the Director’s Order # 2 provides as follows:
3.3.1.2 General Management planning will constitute the first phase of tiered planning and decision making. It will focus on why the park was established and what resource conditions and visitor experiences should be achieved and maintained over time. The general management plan will take the long
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view, which may be many years into the future when dealing with the time frames of natural and cultural processes. The plan will consider the park holistically (in its full ecological and cultural contexts) as a unit of the national park system and as part of the surrounding region. It will identify the importance of partnerships with others in protecting park resources and providing appropriate visitor services. The general management plan will also identify connections among the various park programs and park management districts. This will help avoid inadvertently creating new problems in one area, while attempting to solve problems in another. Decisions about site-specific actions will be deferred to implementation planning. More detailed, site-specific analyses of implementation plan alternatives will be required before any major federal action is undertaken.
AR 19631.
Defendants argue that WSRA neither mentions the term “baseline date,” nor purports to require certain levels of baseline date prior to the adopting of a comprehensive management plan. Repeating their arguments made in regard to ripeness, Defendants argue that the plan at issue is a general management plan, and that as such, review of the sufficiency of the baseline data used to support the MRP is precluded at this time under
Ohio Forestry Ass’n v. Sierra Club.
The court rejects the ripeness and standing argument as to this particular claim for the same reasons it rejected Defendants’ argument addressing Plaintiffs challenge to the MRP as a whole. The NPS further argues that Plaintiffs have not pointed to “any clear statutory duty” to conduct various surveys and studies prior to adopting a comprehensive management plan, and without such a duty, Plaintiffs lack statutory standing to pursue the baseline data issue at this time.
See ONRC Action,
150 F.3d at 1139—40. Again, the court rejects this argument for the same reasons stated above.
2
Defendants cite the court to the recent decision in
Isle Royale Boaters Association,
154 F.Supp.2d 1098 (W.D.Mich.2001), in which the court cited the following excerpt from the NPS Planner’s Sourcebook:
GMPs are now defined as conceptual plans that focus on what conditions should be achieved and maintained in parks — with little or no detail about specific actions. Decisions made through a GMP have the potential to affect a park’s resources and values on a broad scale, and they are even more likely than smaller-scale implementation plans to have significant long-term impacts and to qualify as major federal actions. These GMPs/EISs are ideal places to discuss ecosystem sustainability and management, biodiversity, community or regional land use planning, and other larger scale issues. These are the kinds of decisions CEQ believed would benefit from EISs and their comprehensive environmental planning and public involvement efforts. Furthermore, courts have been consistent in requiring EISs for large-scale agency decision making.
When a large-scale plan such as a GMP is prepared, the information can and should be less detailed than the site-specific information required in an implementation plan. In most GMPs it will be difficult to conduct the traditional impact analysis where the focus is on quantifiable impacts (the amount of acreage disturbed or the number of ar
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cheological sites affected) because of the conceptual nature of the plan. Subsequent implementation proposals are “tiered” (procedurally connected) to the broadscale GMP/EIS. Tiering allows the Park Service to “focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe.”
NPS Planner’s Sourcebook, Director’s Ord. # 2, at 9-2, http://www.nps. gov/planning/do2/pagel. htm. (quoting 40 C.F.R. § 1508.28 ).
Isle Royale Boaters Assn.,
154 Supp.2d at 1127-28.
3
Finally, Defendants argue that the cases relied upon by Plaintiffs are distinguishable. They argue that both
Oregon National Desert Ass’n v. Singleton
and
Oregon National Desert Ass’n v. Green,
are distinguishable in that both involve cattle grazing, an affirmative activity that negatively changes the status quo of the environment and can be stopped at any time. Defendants claim that because pre-existing structures along the Merced River such as bridges, dams and roads are already part of the status quo, the accumulation of baseline data does not assist in the analysis. Further, Defendants argue that while cattle grazing does not carry out any of the goals of WSRA, most of the preexisting Merced River structures are part of the cultural ORV and allow for visitor enjoyment of the Park, which is one of the goals of WSRA.
See
16 U.S.C. § 1281 (a). Finally, Defendants argue that both cases are also distinguishable in that they involve implementation plans which authorize specific activities, unlike the MRP, which is not an implementation plan.
Moving from its discussion as to the established overall requirements for general management plans, Defendants more specifically address the MRP. In response to Plaintiffs’ arguments regarding lack of baseline maps, of natural and cultural resources maps, Defendants provide citations to the record demonstrating that maps were used in the workshops it held on the creation of the MRP, and that a great variety of reference materials were utilized by the NPS planning team, including visitor-use data. AR 6092, 6094, 6124, 6130, 6140, 5429, 5508, 6115, 6117, 6168-70. They also argue that the “highly valued resources” (“HVR”) map used by the Yosemite Valley Plan to assist in land use decisions was used in the MRP to help delineate or adjust zone boundaries. AR 6343, 6349, 6355. Defendants assert that although many of the resources identified in the ORVs are HVRs, not all HVRs are ORVs, because they are not river-related or river-dependent.
In response to Plaintiffs’ contention that the lack of baseline data mapping resulted in highly inadequate maps in terms of boundaries, RPO and the size of the natural features included in the maps, Defendants opine that this accusation stems from a misunderstanding of the application of the river corridor boundaries. They argue correctly that the river corridor boundaries are defined in the MRP, which provides as follows at 35:
The Merced Wild and Scenic River boundaries are illustrated in figure 1. With the exception of the El Portal Administrative Site, the boundary is defined as one-quarter mile from ordinary high water (as defined by the U.S. Army Corps of Engineers in 33 CFR Section 328.3; see Glossary, Appendix C) for the length of the Merced River within Yo-
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Semite National Park. In El Portal, the boundary is defined by the 100-year floodplain of the extent of the River Protection Overlay, whichever is greater, plus adjacent wetlands and meadows.
In response to Plaintiffs’ argument that the record does not contain current surveys specifically conducted to document the status of rare, threatened or even common species, Defendants argue first that it intends to protect and enhance habitat for all river-related and river-dependant species, including special status species. They cite the portions of the MRP which set out the criteria and considerations which will be used to evaluate all proposed actions, and which define the outstandingly remarkable values for all segments of the Merced River. MRP 32, 45-47. Defendants correctly assert that the biological ORVs describe outstandingly remarkable biotic communities in each segment, and then list examples of special status species found in each segment. They claim that all river-related or river-dependent special status species are included as ORVs. MRP 45^47. In response to Plaintiffs’ contention that the wetland mapping was not adequate to identify all wetlands, Defendants arg-ue that by broadly establishing wetlands as an ORV, it recognized all wetlands are biological ORVs and are to be protected and enhanced.
In summary, Plaintiffs present the declarations of their experts, who opine that the NPS did not have sufficient data to address resource protection in a manner consistent with WSRA. Plaintiffs further argue at length that whatever resources the NPS had available in creating the MRP were not adequately utilized. The court finds, after an exhaustive review of the parties’ arguments, supporting declarations and citations to the administrative record, that Plaintiffs have not met their burden of demonstrating that the NPS acting arbitrarily or capriciously in regard to acquiring or using baseline data to support the MRP.
See
5 U.S.C. § 706 (2)(A). Plaintiffs essentially argue that the NPS should have used another format for the MRP, based on much more detailed data than was available to the NPS in this case. However, this court may not substitute its judgment for that of the NPS.
See Marsh v. Oregon Natural Resources Council,
490 U.S. at 376 . ■ Under the highly deferential standard which presumes an agency action to be valid, the court finds that there was a reasonable basis, in'the form of the Director’s Order # 2: Park Planning and the related NPS Planner’s Sourcebook, for the NPS’ decision to draft the MRP as a general management plan.
See Independent Acceptance Co.,
204 F.3d at 1251 . The court further finds that in light of the undisputed nature of general management plans as “conceptual plans that focus on what conditions should be achieved and maintained in parts—with little or no detail about specific actions,”
Isle Royale Boaters Association,
154 F.Supp.2d at 1128 , the NPS did not act arbitrarily or capriciously in creating the MRP using the baseline data that it did. The court notes in particular that the detailed baseline data which Plaintiffs insist the NPS should have gathered might well have become obsolete before any site specific project is proposed. The court therefore finds for Defendants on this issue.
OUTSTANDINGLY REMARKABLE VALUES
Plaintiffs contend that the NPS acted arbitrarily by eliminating previously identified ORVs and adding new, inappropriate ORVs in the Merced River Plan.
Defendants correctly state that although WSRA specifies that ORVs are central to both eligibility and management, it does not define the term “outstandingly remarkable value.” Defendants explain
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that guidance to the meaning of the term is provided in the December 1999 Technical Report “The Wild and Scenic River Study Process,” issued by the Interagency Council (“the Study Process Report”). The Study Process Report states:
In order to be assessed as outstandingly remarkable, a river-related value must be a unique, rare or exemplary feature that is significant at a comparative regional or national scale. Dictionary definitions of the words “unique” and “rare” indicate that such a value would be one that is a conspicuous example from among a number of similar values that are themselves uncommon or extraordinary. One possible procedure would be to list all of the river’s special values and then assess whether they are unique, rare or exemplary within the state, physiographic province, ecoregion, or the other area of comparison. Only one such value is needed for eligibility.
AR 11259P. The Study Process Report further provides:
While the spectrum of resources that may be considered is broad, all values should be directly river-related. That is, they should:
1) Be located in the river or on its immediate shorelands (generally within 1/4 mile on either side of the river);
2) Contribute substantially to the functioning of the river ecosystem; and/or
3) Owe their location or existence to the presence of the river.
AR 11259Q. The court finds that Plaintiffs fail to demonstrate anything arbitrary or capricious in the NPS decision to adopt these standards set forth in the Study Process Report.
The NPS included descriptions of the river segments, their classifications as wild, scenic or recreational, and the ORVs for each segment in the Draft EIS for the Yosemite Housing Plan which was released in 1996 as a supplement to Yosemite National Park’s General Management Plan (“GMP”). Plaintiffs assert that in the precursor case of
Sierra Club v. Babbitt,
69 F.Supp.2d at 1249 , “[t]his Court found that the Draft Yosemite Housing Plan sufficed as compliance with 16 U.S.C. 127(d)(1).” This is inaccurate. What the court found was that the defendants were in compliance with 16 U.S.C. 1274(b) and (c) because the elements required under those sections of the statute were incorporated into the Draft EIS for the Yosemite Housing Plan. The elements of these sections concern establishing boundaries and providing maps and descriptions of the classifications of designated river segments for public notice and inspection. They do not concern the identification of ORVs. Thus, the court’s finding that the defendants were in compliance with 16 U.S.C. 1274(b) and (c) had nothing to do with ORVs, and does not, contrary to Plaintiffs’ implication, amount to any type of judicial affirmation of the ORVs identified in the Draft Yosemite Housing Plan in 1996.
Scientific Resources
Plaintiffs contend that the NPS has eliminated the scientific resource ORV everywhere but in wilderness areas. Plaintiffs argue that in 1996, the NPS identified a scientific ORV for the entire Merced River, defining the scientific ORV of the main stem of the Merced River as,
“Scientific
(entire river) — The river, including the adjacent land area, is a significant scientific resource; it is a watershed entirely within wilderness or Yosemite National Park, invaluable for baseline scientific studies.” AR 05529. Now, in the MRP, the scientific ORV of the main stem of the Merced River is defined in Table 2 as, “Scientific — These segments of the river corridor constitute a highly significant scientific resource because the river water
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shed is largely designated Wilderness in Yosemite National Park.” MRP, 45. Plaintiffs argue that the Merced River Plan therefore restrict the scientific ORV to Yosemite wilderness.
This argument is meritless. The “segments” referred to in Table 2 of the Merced River Plan as possessing the scientific ORV are identified as: (1) wilderness; (2) valley; (3a) impoundment; (3b) gorge; and (4) El Portal. It is therefore clear from Table 2 that the scientific ORV applies to all portions of the main stem of the Merced River, not just the wilderness segment. The court concludes, therefore, that Plaintiffs have not shown arbitrary or capricious decision-making by the NPS in regard to the scientific ORV.
Air quality
Plaintiffs contend that the NPS acted arbitrarily and capriciously in eliminating air quality as an ORV throughout the Merced River corridor, correctly arguing that air quality was identified as an ORV in the 1996 Draft Yosemite Valley Housing Plan for every segment of the Merced River except El Portal.
Defendants contend generally that the NPS considered air quality in light of the standards and guidance for determining ORVs and made a well-reasoned decision to drop air quality as an ORV. Defendants make three supporting arguments, the first of which is that air quality is not listed among the categories of possible outstandingly remarkable values in Section 1271(b) or in any other provision of WSRA.
Second, Defendants argue that it cannot be said that air quality in the area of the Merced River is rare, unique or exemplary or directly river-related within the meaning of those terms as used in the Study Process Report. They claim that the overall quality of the air in any river corridor is a product of conditions within a much larger area. The Merced River in the Yosemite area is located within two air basins, the Mountain Counties Air Basin and the San Joaquin Valley Air Basin. AR 1845, 4581. Defendants argue that Yosemite’s air quality is significantly affect by upwind sources, relying on the following statement by the California Environmental Protection Agency: “[T]he California Environment Protection Agency concluded that all of the ozone' exceedences in 1995 in the southern portion of the Mountain Counties air basin (i.e. Tuolomne and Mariposa Counties) were caused by transport of ozone and ozone precursors from San Joaquin Air Basin.” AR 1843. They argue that Yosemite is in non-attainment status for ozone and PM10 standards. AR 1847, 4583.
Third, Defendants argues that air quality was not listed as an ORV for any part of the Merced River in the Sierra National Forest Draft Forest Land and Resource Management Plan, the eligibility study issued in 1986. AR 7639-7642. They also argue that neither the United States Forest Service (“USFS”) or the BLM have identified air quality as an ORV for the portions of the Merced River or South Fork Merced River which they administer. Subsequent planning efforts by the USFS and BLM state that ORVs were previously identified in the 1986 eligibility study. AR 20802, 20918.
Finally, Defendants argue that the fact that Yosemite is designated a Class-I airshed has no bearing on whether it is appropriate for air .quality to be designated an ORV under WSRA. A. “class-I” designation is not a qualitative evaluation of air quality. Rather, all national parks of a certain size are designated class-I areas regardless of their actual status with respect to air quality standards. 42 U.S.C. § 7472 .
*1088
After reviewing the parties’ arguments in this area, the court concludes that Plaintiffs have not demonstrated that the NPS acted arbitrarily or capriciously in eliminating air quality as an ORV for the Merced River.
Biological ORVs
Plaintiffs contend that Defendants have arbitrarily or capriciously eliminated or generalized biologic values of the Merced River, presenting four main arguments. First, Plaintiffs argue that the NPS has eliminated an “extremely unusual canyon live oak woodland research area,” previously identified in 1996 as a biologic ORV of the Gorge segment. AR 05530. Plaintiffs claim that the NPS has provided no rational basis for this decision.
In response to Plaintiffs’ claim that the NPS has provided no rational basis for its decision to eliminate the “extremely unusual canyon live oak woodland research area” biological ORV, Defendants do not dispute that the woodland was included in the biological ORV description in the 1996 Housing Plan, and that this court referred to it in
Sierra Club v. Babbitt.
Defendants argue that under the Interagency Council’s guidelines for what constitutes an ORV, the woodland does not qualify because it is not directly river-related. Defendants cite to Appendix E of the CMP/ FEIS, where it is briefly stated under “Reasons for Amendment in the Final Plan” that live oak woodland was removed as an ORV because it is not river-related. Defendants further argue that the removal of the live oak woodland from the list of ORVs will not alter the management of the area under other park plans such as the GMP or the Vegetation Management Plan, nor will it alter the NPS’s responsibilities under other applicable federal laws. The court finds that, contrary to Plaintiffs’ contention, Defendants have offered a rational explanation for their decision to eliminate the live oak woodland from the ORVs and that Plaintiffs have not carried their burden of demonstrating that Defendants’ conclusion that the live oak woodland is not river related is arbitrary or capricious.
Second, Plaintiffs claim that in 1996, the Gorge’s biologic ORVs included “diverse riparian areas intact and almost entirely undisturbed,” but that the MRP altered this ORV to reflect
the damage to the
diverse riparian areas from the El Portal road widening project. Plaintiffs argue that it is a violation of WSRA for an agency to establish an ORV, then degrade it to the point that it no longer possesses the qualities it once had, and then eliminate it as an ORV. Plaintiffs argue, citing no authority, that if an identified ORV is degraded, it must be restored, not eliminated.
In response to Plaintiffs’ contention that Defendants have degraded the biological ORV and violated WSRA by altering the ORV of “diverse riparian areas intact and almost entirely undisturbed,” Defendants note that the language was changed to “diverse riparian areas and associated special-status species that are largely intact and almost entirely undisturbed by humans,” and argue that because this language is virtually identical to the 1996 language, any discussion regarding the rewording of the ORV is immaterial. Defendants argue that Plaintiffs have not identified any qualifying ORV element which would be excluded under the reworded version.
The court agrees with Defendants that contrary to Plaintiffs’ claim, the reworded language in the MRP does not eliminate any ORV. Rather, it appears to be an attempt on the part of Defendants to more accurately describe the area. The court concludes, therefore, that Plaintiffs have not demonstrated that Defendants
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acted arbitrarily or capriciously on this issue.
Third, Plaintiffs claim that Defendants have eliminated Wawona Meadow as a biological ORV for Wawona, although it was described in 1996 as, ‘Wawona Meadow a rare, relatively pristine, lower montane meadow — a threatened plant community in California.” AR 05530. Plaintiffs claim that the Wawona Meadow is the only known habitat for the endangered Willow Flycatcher in Yosemite and has some of the greatest diversity of bats in northern California. Plaintiffs rely on the declarations of their experts to argue that to eliminate Wawona Meadow as an ORV because the proposed boundaries do not include it or because it is not hydrologically connected is inaccurate, arbitrary, and inconsistent with other established ORVs. Plaintiffs contend that in light of these outstanding attributes, eliminating Wawo-na Meadow because it is not hydrologieally connected is inaccurate and arbitrary.
Defendants contend that they removed Wawona Meadow from the list of ORVs because the meadow is not directly hydro-logically connected to the Merced River. AR 5532. Citing a 1996 report issued by the U.S. Geological Survey prepared in cooperation with the NPS, Defendants argue that although the surface and shallow groundwater that flow through Wawona Meadow end up in the South Fork Merced River, Wawona Meadow is no more hydro-logically related to the South Fork than would be an area along a tributary stream. Defendants argue that although the South Fork derives some of its volume by way of the meadow, the meadow is in no way dependent upon the river for either surface flows or groundwater. AR 21987-88. Defendants conclude, therefore, that Wa-wona Meadow is not “river-related” under the criteria of the Study Process Report. In regard to the Willow Flycatcher, Defendants note that the biological ORVs for Segment 7, the Wawona segment, includes river-dependent special status species. AR 27428. Defendants argue, therefore, that as a riparian-dependent species listed under the California Endangered Species Act, the Willow Flycatcher would receive protection under the biological ORV for the Wawona river segment.
Having previously held that Defendants’ reliance on the definitions of ORVs set forth in the Study Process Report was neither arbitrary nor capricious, the court now finds that Defendants’ decision that Wawona Meadow does not qualify as “river related” under the definitions of ORVs set forth in the Study Process Report is also neither arbitrary nor capricious. Plaintiffs’ arguments to the contrary notwithstanding, the court finds that it is significant that it is undisputed that the meadow is in no way dependent upon the river for either surface flows or groundwater. This fact goes to the third criterium of “river-related” set forth above.
Fourth, Plaintiffs object to the NPS’s decision to eliminate peregrine falcons and spotted owls on the basis that they are not river-related species. Plaintiffs offer the following opinions of their experts:
[T]he peregrine falcon “Breeds near wetlands, lakes, rivers, or other water on high cliffs, banks, dunes, mounds” (page 148 Zeiner et al.1990). Terres (1980 page 272) note that the peregrine falcon “... usually lives in open country around rocky cliffs... overlooking rivers and lakes inland”. The productive meadows and the riverine forest of the Merced River canyon support many bird species that are the prey for peregrine falcons, and sustain their nesting population in Yosemite Valley.
If the Merced River, with its associated productive meadows and riverine habitat, were absent from Yosemite Valley, it is possible that peregrine falcons would not nest
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there at all.
To now exclude this species as an ORV because it has no obvious, direct connection to the river is to ignore the vital resources that the Merced River provides for peregrine falcons.
Beedy Dec., ¶ 20 (emphasis added).
According to information from the California Wildlife Habitat Relationships System, the California spotted owl ‘Probably requires a permanent water source. May reduce heat stress by bathing.... Requires blocks of 40-240 ha (100-600 ac) of mature forest with permanent water...’ (page 334 Zeiner et al.1990).
The Merced River and its tributaries are an important part of what makes El Portal and Yosemite Valley a suitable nesting area for California spotted owls.
This species should still be included as an ORV of the Merced River.
Beedy Dec., ¶ 24 (emphasis added).
Defendants contend that their decision to eliminate peregrine falcons and California spotted owls from the biologic ORV description is not arbitrary, because these species are not river-related under the definition set forth in the Study Process Report. The court finds that the opinions of Plaintiffs’ experts, which do not address the standards set forth in the Study Report and relied upon by Defendants, do not demonstrate that the NPS acted arbitrarily or capriciously in this area.
Geological ORVs
Plaintiffs contend that granite domes were eliminated as geologic ORVS of the river because they are located outside the river corridor. Plaintiffs cite a portion of the “April 2000 MRP Internal Comments Database,” in which it is stated that, “ ‘[gjranite domes’ are important evidence of glaciation, which is the basis for Geologic Processes and Conditions ORV.” AR 4054. Plaintiffs also complain that the geologic ORV in Wawona was eliminated, and offer their expert’s opinion as to the existence of “river smoothed granitic slabs with their remarkable exposures of veins and dikes of the El Capitan granite intruding into the Gateway tonalite.” Cehrs Dec., ¶ 34. Plaintiffs argue that this elimination of granite domes as an ORV was arbitrary and capricious.
Plaintiffs do not identify for what segments the granite domes were eliminated as geologic ORVs. However, the Administrative Record indicates that in the 1996 Draft Yosemite Valley Housing Plan, granite domes were listed as geologic processes/conditions ORVs for segment 1, the wilderness segment of the main stem of the Merced River. For segment 2 geologic processes ORVs, El Capitan is cited as “one of the world’s largest exposed granite monoliths.” AR 5529. Wawona Dome is identified as a geologic processes/conditions ORV for Wawona, although it is not stated whether this is a granite dome. AR 5531.
In response to Plaintiffs’ contentions, Defendants contend that they determined that while the granite domes are directly river-related from a scenic standpoint, to be directly river-related under the ORV category “geologic processes/conditions” the domes themselves would need to be within the river corridor, which they are not. AR 6953, 6265. Therefore, “granite domes” were added to the description of scenic ORVs for segments 1 and removed from the geologic process/conditions ORVs. El Capitan and Wawona Dome were treated similarly, being deleted as geologic process/conditions ORVs and being added as scenic ORVs. AR 5529, 5531, 5534, 5540.
After reviewing the arguments of the parties, the court concludes that the removal of the geologic ORV was well-reasoned under the criteria adopted by the
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NPS for the ORVs. The court finds that Plaintiffs have demonstrated nothing arbitrary in the NPS decision that the geologic ORVs must be located within the River boundaries, while scenic ORVs do not have the same limitation. To the contrary, this decision clearly enables the NPS to both comply with the guidelines set forth in the Study Process Report and to include more natural features as ORVs and thus to protect them under WSRA. The court notes that, as Defendants argue, Plaintiffs have in no way demonstrated that protection and management of the geologic process ORVs are lessened when these values are reidentified as scenic ORVs.
Scenic ORVs
Plaintiffs contend that the Merced River Plan illegally eliminates scenic resources and changes others, primarily to accommodate development. In support of this statement, Plaintiffs note that El Portal does not have any designated scenic ORVs and offer the memo written by Jeff Horn to Deane Swiekard, following Merced Wild and Scenic River Meetings held August 25-27, 1999. At the pertinent part, Mr. Horn states:
But when it came to the El Portal Admin. Site there was some disagreement on a scenic quality ORV for El Portal. Some of the planners were dead set against any ORV that would make development more difficult in El Portal. It seemed absurd to me' that there would be any debate over the fact that the El Portal area has scenic qualities, but there was! This ORV was in a NPS scoping document for the original WSRA designation, and now they wanted it removed.
AR 09833, # 1630, Attachment B, p. 2. Mr. Horn ends his report on the meetings by expressing his opinion that, “[t]he El Portal Admin Site is part of the Merced WSR, it has ORVs, denying they exist for the convenience of development is wrong and in my opinion violates the WSRA.”
Id.
at 3 .
In response, Defendants suggestion that the scoping document referred to by Mr. Horn is presumably the 1986 eligibility study produced by the NPS, USFS and Mr. Horn’s agency, the BLM. Defendants correctly assert that this document identifies scenery as “common” in the El Portal segment, and as not qualifying for status as outstandingly remarkable for those river segments below El Portal. AR 7641. Defendants further correctly argue that scenery was not listed as an ORV for El Portal in the 1996 Draft Housing Plan. AR 05530. Defendants argue, therefore, that Plaintiffs are demanding that NPS adopt a completely new ORV for this section.
In response, Plaintiffs assert that it is pure speculation for Defendants to assert that Mr. Horn was referring to the 1986 eligibility study. Plaintiffs, however, do not identify another document to which Mr. Horn could have been referring. The court finds that the nonspecific statement by Mr. Horn relied upon by Plaintiffs, but unexplained by them, is insufficient to establish the existence of a scenic ORV for El Portal in a NPS scoping document for the original WSRA designation. More importantly, the court further finds that the evidence offered by Plaintiffs as to Mr. Horns’ comments and opinions are insufficient to establish what the motive of the NPS was in making its final decision not to adopt a scenic ORV for El Portal, or that the NPS acted arbitrarily or capriciously in making that decision.
Plaintiffs claim that black oak woodlands were identified in 1996 as a scenic ORV of the Valley segment of the River, but were marked for removal without any rationale. Plaintiffs cite to Merced River Plan Management Meeting Notes, March 15, 2000, 2:00 p.m., where, under the heading “ORV Discussion” there is the following unex
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plained reference:
“Valley
— Scenic—Remove reference to black oak woodlands. Add text regarding views of river and views from river.” Plaintiffs also cite Meeting Notes from a meeting regarding the Merced River Plan held on March 16, 2000, in which it is stated that, “[t]he team reviewed the ORV subgroup’s proposed changes to the Draft Plan ORVs (see table below; strikeout/underline text reflects team comments).” In the following table, in reference to the Valley segment, it is stated simply, “remove reference to black oak woodlands” with no explanation given.
In response, Defendants contend that Plaintiffs have misrepresented the status of the black oak woodlands as a scenic ORV, arguing that the administrative record reflects that the specific reference to these woodlands was deleted, but that their inclusion in the ORV was not. On page 05537 of the administrative record, under the broad category of “reasons for amendment in the final plan,” the NPS states under scenic ORVs for the Valley, “Remove California black oak woodlands as a specific example. The interface of river, rock, meadow, and forest includes California black oak woodlands.” The Merced River Plan provides at page 45 as one of the scenic ORVs of the Valley, “[t]here is a scenic interface of river, rock, meadow, and forest throughout this segment.” The court finds that Plaintiffs have not demonstrated that the NPS’ decision to delete the specific reference to California black oaks as a scenic ORV was arbitrary or capricious.
Finally, Plaintiffs challenge Defendants’ decision to limit the scenic ORVs in all sections to views from the river and its banks instead of views from other vantage points. Plaintiffs claim that it is contradictory for Defendants to recognize a view of something which is outside the river corridor, such as El Capitan, as an ORV, but not to recognize a view of the river itself as an ORV. The court is unconvinced by this argument. As Defendants argue, in light of WSRA’s focus on protection of the river corridor, it is reasonable to define scenic values as those viewed from a vantage point on the river or its banks.
Cultural ORVs
Plaintiffs contend that cultural resources have been eliminated and weakened in the Merced River Plan. Specifically, Plaintiffs claim that in comparison with the ORVs identified in 1996, the Merced River Plan significantly alters the focus of the cultural ORVs by diminishing the emphasis on the use of the area by “prehistoric” and “native peoples.” In 1996, the cultural ORV for the Valley segment identified, “[o]ver 100 archeological sites; identified as a primary habitation of prehistoric people; riparian areas containing traditionally used plants; Nevada Fall, a documented Native American spiritual area; significant prehistoric trail junction; first land area and river designated for preservation in U.S.; historical resources and landscapes.” AR 05529. The MRP now describes the cultural ORV for the Valley as, “this segment contains evidence of thousands of years of human occupation reflected in a large number of archeological sites and continuing traditional use today. Nationally significant historic resources are found here, such as designated landscapes and developed areas, historic buildings, and circulation systems (trails, roads, and bridges) that provide visitor access to the sublime views of natural features that are culturally valuable.” MRP, 45; AR 04347.
Plaintiffs further contend that designed landscapes, developed areas and circulation systems, including roads and bridges are not the kinds of resources Congress intended to be deemed ORVs under WSRA. Plaintiffs point out that WSRA
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states that in managing rivers, “[plartieu-lar attention shall be given to... road construction, and similar activities which might be contrary to the purposes of this chapter.” 16 U.S.C. § 1283 (a). Plaintiffs claim that the classification system set forth in WSRA show that development and infrastructure along rivers is not favored. The classification system is set forth in 16 U.S.C. § 1273 (b), which provides as follows:
b) Classification, designation, and administration of rivers
A wild, scenic or recreational river area eligible to be included in the system is a free-flowing stream and the related adjacent land area that possesses one or more of the values referred to in section 1271 of this title. Every wild, scenic or recreational river in its free-flowing condition, or upon restoration to this condition, shall be considered eligible for inclusion in the national wild and scenic rivers system and, if included, shall be classified, designated, and administered as one of the following:
(1) Wild river areas — Those rivers or sections of rivers that are free of im-poundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and waters unpolluted. These represent vestiges of primitive America.
(2) Scenic river areas — Those rivers or sections of rivers that are free of im-poundments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped, but accessible in places by roads.
(3) Recreational river areas — Those rivers or sections of rivers that are readily accessible by road or railroad, that may have some development along their shorelines, and that may have undergone some impoundment or diversion in the past.
Plaintiffs further contend that the National Rivers Inventory from 1982 disqualified river segments from inclusion in the wild and scenic system based upon numbers of development, bridges, residences, roads and other structures in the river area. AR 07111-07112. Plaintiffs claim that throughout the planning process, the NPS identified roads, parking and bridges as “Land Development and Facilities,” not as ORVs, and the delineation of infrastructure as ORV contradicts evidence in the record and contradicts WSRA. Plaintiffs also claim that language was included in regard to the High Sierra C.amp to accommodate use and development along the river. Plaintiffs conclude that under the NPS’ current approach to cultural resources, “virtually every structure, road and bridge requires protection and enhancement.”
In response, Defendants contend that the cultural ORV is far more limited in scope than portrayed by Plaintiffs. Quoting the FEIS for the Merced Wild and Scenic River Comprehensive Management Plan, Defendants argue that the cultural ORV includes only “river-related cultural resources that are not intended to divert the free flow of the river and that are either eligible for or listed on the National Register of Historic Places.” AR 4345. Defendants argue that resources either eligible for or listed on the National Register of Historic Places captures only resources that are important enough to warrant protection under the National Historic Preservation Act, 16 U.S.C. §§■ 470,
et seq.
The National Historic Preservation Act establishes the National Register of Historic Places, which includes “districts, sites, buildings, structures and objects” which meet specific criteria regarding “[t]he quality of significance in American history, architecture, archeology, engineering, and culture.” 36 C.F.R. § 60.4 . Defendants argue that the inclusion of historic resources
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within the cultural ORV is particularly appropriate considering that WSRA provides that in the administration of a wild and scenic river, “primary emphasis shall be given to protecting the esthetic, scenic,
historic,
archeologic, and scientific features.” 16 U.S.C. § 1281 (emphasis added). Defendants claim that contrary to Plaintiffs’ claim, many aspects of the built environment with the Park are not protected by the cultural ORVs, and cite as an example the existing buildings at Yosemite Lodge.
Defendants dispute Plaintiffs’ claim that they have diminished the protection afforded to Native American cultural resources in favor of modern tourist features, arguing that the Merced River Plan retains broad protection for ORVs relating to Native American sites and resources. For example, the Wilderness Segment of the Main Stem, Segment 1, includes as cultural ORVs, “portions of a prehistoric trans-Sierra route in use for thousands of years and many prehistoric sites;” Yosemite Valley, Segment 2, includes as cultural ORVs, “evidence of thousands of years of human occupation reflected in a large number of archeological sites and continuing traditional use today;” El Portal, Segment 4, lists as cultural ORVs “some of the oldest archeological sites in the Yosemite area, as well as many historic Indian villages and traditional gathering places.” MRP 45^46. Defendants argue that Plaintiffs have not pointed to any Native American cultural resource meeting the criteria of being river-related, not intended to divert free flow and listed on or eligible for the National Register that would not be encompassed by these broadly worded protections.
Defendants assert that based on the limiting criterium that cultural resources be listed on or eligible for the National Register, the NPS added selected historic resources to the description of the cultural ORVs. One of these additions was the Yosemite Valley Historic District (a.k.a., Yosemite Valley Cultural Landscape Historic District), which was determined to be eligible for the National Register after the publication of the 1996 ORVs. AR 19640-19709. Defendants assert that the Yosemite Valley Historic District includes significant cultural features such as designed landscapes, circulation systems, patterns of settlement and the types of structures that are built. The Merced Wild and Scenic River Comprehensive Management Plan/ FEIS provides as follows:
According to the DO-28
Cultural Resources Management Guidelines
(NPS 1991c), a cultural landscape is:
... A reflection of human adaptation and use of natural resources and is often expressed in the way land is organized and divided, patterns of settlement, land use, systems of circulation, and the types of structures that are built. The character of a cultural landscape is defined both by physical materials, such as roads, buildings, walls, and vegetation, and by use reflecting cultural values and traditions.
AR 04605. Defendants assert that it was therefore reasonable for them to revise the cultural ORV for Yosemite Valley to include, “Nationally significant ... designed landscapes and developed areas, historic buildings and circulation systems (trails, roads and bridges) that provide visitors access to the sublime views of natural features.”
In response to Plaintiffs’ implication that a controversy exists as to the status of Cascades Dam, Defendants stress that to qualify as a cultural ORV, a feature must both (1) be eligible for or listed on the National Register of Historic Places and (2) not intended to divert the free flow of the river. AR 4345. Defendants assert that Cascades Dam, which was intended to
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divert the free flow of the river, is not a cultural ORV.
In response to Plaintiffs claims regarding the Merced Lake High Sierra Camp, Defendants contend that instead of attempting to accommodate use and development, as Plaintiffs claim, they were actually doing the opposite. The 1996 Cultural ORVs for the Wilderness segment of the Main Stem Merced River (Segment 1) included, “28 structures at Merced Lake High Sierra Camp and the Merced Lake Ranger Station on the List of Classified Structures.” AR 5529. Plaintiffs rely on Meeting Notes from March 16, 2000, in which the following is stated in reference to the cultural ORVs of the main stem Wilderness segment:
Edit 2nd sentence: “There is evidence of historic high-country use of the river corridor, including homesteading, cavalry activity, and early tourism.
(This sentence made less explicit to allow for the Merced Lake High Sierra Camp to be managed with ‘benign neglect’. Change to ‘river-related sites on or eligible for the National Register of Historic Places.’”)
AR 6560. Plaintiffs claim that this language demonstrates that “the cultural ORV was altered over time in an effort to accommodate the kinds of use and development along the river that otherwise would be inconsistent with WSRA.” The cultural ORVs for the Wilderness segment set forth in the Merced River Plan include “[t]here are many historic resources such as homestead sites, trails, river crossings, High Sierra Camp sites, and structures.” CMP 45, AR 4347.
Defendants argue that by deleting text regarding specific numbers of structures, the NPS allowed itself latitude in the forthcoming Wilderness Management Plan to decide whether the Camp should be managed with benign neglect, thereby allowing it to deteriorate. In support of this argument, Defendants cite the Merced Wild and Scenic River Comprehensive Management Plan/FEIS in which is listed under activities typical for category 2 diverse visitor experience zones, “Use of High Sierra Camps as allowed in the
Wilderness Management Plan.”
AR 04350. Defendants also cite AR 05807, which contains positive comments from members of the public regarding the High Sierra Camps.
Defendants contend that the inclusion of the High Sierra Camps as an ORV is neither new nor arbitrary, arguing that the High Sierra Camp was identified as a recreational ORV in 1986. AR 07640. Defendants also argue that the High Sierra Camp was identified as a special attribute of the Merced River in the Congressional debates leading up to the designation of the Merced under WSRA. AR 06723.
In their reply, Plaintiffs complain that while Defendants define cultural ORVs as including “river-related cultural resources that are not intended to divert the free flow of the river and that are either eligible for or listed on the National Register of Historic Places,” this definition allows ORV designation of features which actually do impede the river’s free flow, even though they may not have been so intended. Plaintiffs cite roads and bridges, both of which indisputably may impede free flow. Thus, Plaintiffs conclude “while NPS purports to include only cultural resources that do not impede free flow, it in fact does the opposite.” Plaintiffs do not discuss why they feel that this would be significant.
The court has read Defendants’ opposition very closely and nowhere in the discussion of cultural ORVs do Defendants purport to include only cultural resources that do not impede free flow. The standard is, rather, “river-related cultural resources that are not intended to divert the free flow of the river and that are either
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eligible for or listed on the National Register of Historic Places.” AR 4345. Thus, not only do Plaintiffs fail to establish any legal significance to their argument, but the argument itself is based on a false premise.
In regard to the High Sierra Camp, Plaintiffs contend that the NPS’ decision to use general language which it claims give it flexibility not to maintain all 28 camp structures in perpetuity also allows it to arbitrarily and without public review add to the cultural ORV list any structure that meets its broad criteria. The court finds that this speculation regarding possible future action by the NPS is insufficient to support any claim against Defendants. Further, the court notes that because Plaintiffs have demonstrated nothing arbitrary or capricious in the NPS’ adoption of the current standard for cultural ORVs, it is unclear how the adoption of an additional ORV which complied with that standard would be improper.
Similarly Plaintiffs also contend that Defendants’ discussion of the High Sierra Camps validates their concern that the failure to specifically describe ORVs will lead to “benign neglect” because the particular feature was not specifically referenced and thus not specifically protected. In so arguing, Plaintiffs ignore the fact that the reference to benign neglect arose only in connection with the handling of the High Sierra Camp in the “forthcoming” Wilderness Management Plan. Again, Plaintiffs’ expansion of this concept to include ORVs in general is merely speculation and does not demonstrate arbitrariness or capriciousness on the part of Defendants.
In light of all of the above, the court finds in favor of Defendants on Plaintiffs’ contention that the National Park Service acted arbitrarily by eliminating previously identified ORVs and adding new, inappropriate ORVs in the Merced River Plan.
PROTECT AND ENHANCE MERCED RIVER’S ORVS AND FREE FLOW
Plaintiffs’ third main contention is that the MRP fails to protect and enhance the Merced River’s ORVs and free flow. In support of this contention, Plaintiffs present the following four arguments: (1) the boundaries are not tied to protection; (2) the MRP fails to address user capacities in manner that protects and enhances values; (3) the management zones are not protective of values; (4) the river protection overlay fails to protect free flow or ORVs.
Boundaries
Plaintiffs contend that the boundaries established in the MRP for the El Portal segment of the Merced River are not tied to protection of the river. Specifically, Plaintiffs claim that the boundary delineation for the El Portal segment violates WSRA for the following three reasons: (1) the NPS approached the planning for that segment under the misguided belief that the 1958 legislation regarding the El Portal Administrative Site overrides WSRA; (2) the NPS failed to tie river boundaries to the protection of river values; and (3) the 100-year floodplain does not protect ORVs.
The relevant portion of WSRA, 16 U.S.C. § 1274 (b), provides that the administrating agency shall establish detailed boundaries which “shall include an average of not more than 320 acres of land per mile measured from the ordinary high water mark on both sides of the river.”
4
It is
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undisputed that for the entire length of the Merced River within Yosemite National Park, the boundaries set by the NPS constitute the statutory maximum in acreage. Section 1271, which sets forth the policy of WSRA, states that selected rivers, “which, with their immediate environment, possess outstandingly remarkable ... values, shall be preserved in a free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.” Section 1273(b) of WSRA provides that, “[a] wild, scenic or recreational river area eligible to be included in the system is a free-flowing stream and the related adjacent land area that possess one or more of the values referred to in section 1271 of this title.” WSRA does not define the terms “immediate environments” or “related adjacent land area.” Neither Section 1274(b), Section 1273(b) nor Section 1271 mandate an exact procedure for determining the width of river corridor boundaries, nor do these sections require that boundaries be drawn so as to include the physical location of each and every ORV. The MRP specifically provides at page 35 that, “[boundaries ... do not limit the protection of Outstandingly Remarkable Values, which must be protected regardless of whether they are inside or outside the corridor boundaries.”
In regard to the El Portal segment, Defendants correctly state that the boundary established in the 1996 Housing Plan for El Portal included only the 100-year floodplain. AR 5528. Defendants argue, therefore, that by establishing the boundary as the extent of the 100-year floodplain or the River Protection Overlay, which ever is greater, the NPS has actually slightly expanded the boundary beyond what was established by the 1996 Housing Plan.
Defendants also argue that the boundaries established by the 1996 Housing Plan were challenged twice and were twice upheld. The court finds this second argument to be meritless. The issue of the validity of the boundaries determinations for the El Portal segment was not addressed in
Sierra Club v. United States,
23 F.Supp.2d at 1138 or in
Sierra Club, et al. v. Babbitt, et al.,
69 F.Supp.2d 1202 (E.D.Cal.1999). The issue in those cases was compliance with the requirement under 16 U.S.C. §§ 1274 (b) and (c) of notice and definition, not the validity of boundary determinations.
The El Portal Administrative Site is managed under specific statutory authority found at 16 U.S.C. §§ 47-1 through 47-6. The statute, originally enacted in 1958 and amended on October 27, 1986, provides in part as follows:
(a) Establishment of site
To enable the Secretary of the Interior to preserve the extraordinary natural qualities of Yosemite National Park, notwithstanding its increasing use by the public, the Secretary is hereby authorized to provide in the manner hereinafter set forth an administrative site in the El Portal area adjacent to Yosemite National Park, in order that utilities, facilities, and services required in the operation and administration of Yosemite National Park may be located on such site outside the park.
Based on this directive, the 1980 General Management Plan (“GMP”) for Yosemite National Park states that NPS headquarters, and the majority of NPS and conces-sioner administrative and maintenance support facilities will be relocated from Yosemite Valley to El Portal, and that only those facilities essential to the daily operations in the Valley will remain in the Valley. AR 12886,12909.
Section 1274(d)(1) provides that comprehensive management plans under WSRA “shall be coordinated with and may
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be incorporated into resource management planning for affected adjacent Federal lands.” Defendants argue that because the GMP is such a plan, it was appropriate and actually necessary for the NPS to consider the GMP’s plans for El Portal when preparing the MRP. Defendants claim that during the MRP planning process, it sought to harmonize the Congressional mandates of the El Portal legislation with those found in WSRA. The final environmental impact statement for the MRP expressly states, “The
Merced River Plan/ FEIS
is written within a complex legal framework. The plan must not only comply with the requirements of the Wild and Scenic Rivers Act, it must do so within the parameters of other legislation (see Appendix A) that governs land use within the river
corridor.” AR
4315. The FEIS then lists some of this other legislation, including the National Park Service Organic Act, the enabling legislation for Yosemite National Park, the Wilderness Act, the El Portal Administrative Site enabling legislation and the legislation relating to a land exchange in the El Portal area. Defendants argue indisputably that this principle of harmonizing statutory authorities is a bedrock principle of Supreme Court jurisprudence.
See Tennessee Valley Authority v. Hill,
437 U.S. 153, 190 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978);
Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104, 109 , 111 S.Ct. 2166 , 115 L.Ed.2d 96 (1991). The court finds that given the mandate to construe statutes in harmony and the directive in Section 1274(d)(1) to consider resource management plans for affected adjacent Federal lands, the NPS did not act arbitrarily or capriciously in considering the El Portal legislation and the goals of Yosemite National Park’s GMP when establishing the boundaries for the El Portal segment of the Merced River.
NPS explains its decision to use the narrow boundary for the El Portal segment as based on the following factors. First, NPS argues that the 100-year floodplain in El Portal is well-defined, and many areas outside the floodplain and the RPO have been disturbed in the past. Second, as stated above, NPS sought to harmonize the intent of WSRA with the legislation for the El Portal Administrative Site, which was transferred to the NPS so that “utilities, facilities, and services required in the operation and administration of Yosemite National Park may be located on such site outside the park.” 16 U.S.C. § 47-1 (a). Third, the NPS determined that areas outside the boundary could be used in accordance with the direction of the El Portal legislation without causing direct, adverse impacts to ORVs, and that by moving facilities out of Yosemite Valley, ORVs in that area would be further enhanced. AR 5644-45. The NPS argues therefore that the boundaries established for the El Portal segment represent a reasoned decision by the NPS that the floodplain and RPO-based boundaries, along with the other elements of the MRP, will achieve the purposes of WSRA in this segment of the Merced River.
Finally, in response to Plaintiffs’ arguments that the NPS has failed to adopt boundaries in the El Portal segment that comply with boundaries established by the Bureau of Land Management or the Forest Service for the portions of the Merced River they manage, the NPS correctly points out that Plaintiffs provide no authority for the concept that the NPS is required to establish boundaries within the El Portal segment equal to those established by those other agencies.
After reviewing the parties’ arguments, the court finds that Plaintiffs have not demonstrated that the NPS acted arbitrarily or capriciously in the creation of the boundaries for the El Portal Segment. Contrary to Plaintiffs’ arguments, there is
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no indication that the NPS believed that the 1958 legislation overrides WSRA. To the contrary, it appears that the NPS strove to comply with its duty to harmonize the legislation effecting the El Portal area. Further, the NPS’ decision regarding the boundaries for the El Portal segment is clearly tied to the protection of river values.
Plaintiffs separately claim the boundaries established in the MRP are inadequately mapped, relying on the language of Section 1274(c), which provides as follows:
Maps of all boundaries and descriptions of designated river segments and subsequent amendments to such boundaries, shall be available for public inspection in the offices of the administering agency in the District of Columbia and in locations convenient to the designated river.
Plaintiffs quote a portion of NPS Summary of Public Comments and Responses at which NPS stated, “[t]he boundaries of the
Merced River Plan
were created through a geographic information system (GIS) using the best available data.... While field surveys were not available for every area of the river, the
Merced River Plan
complies with the Wild and Scenic Rivers Act in providing river boundaries as precise as the best available data will allow.” AR 5642. Plaintiffs also quote a subsequent portion of the Summary of Public Comments and Responses at which NPS stated as follows:
The maps used in the
Merced River Plan/FEIS
are conceptual in nature and not intended for use in the planning or design of site-specific projects. In areas where the floodplain defines the corridor boundary, the best available date at the time of the project implementation should be used to determine whether floodplain management practices should be applied.
Plaintiffs argue that these statements indicate that the NPS did not have appropriate data on the ordinary high water mark of the river to map the segments of the Merced River within Yosemite National Park or on the 100-year floodplain to map the boundary in El Portal.
In response to Plaintiffs’ arguments regarding the mapping of the boundaries, Defendants claim that the MRP establishes detailed boundaries for the entire corridor. Defendants argue that in the final MRP/EIS, the NPS stated that the boundaries for the segments of the River in Yosemite National Park would begin at the Ordinary High Water Mark (“OHW”) and extend out to 1/4 mile and that the El Portal segment would be measured from the OHW to the floodplain or the River Protection Overlay, whichever is greater. AR 4408-4413. At that time, the NPS defined OHW to be the 2.33 year floodplain. AR 5642. However, in the Revised Record of Decision, the NPS clarified that it would use the definition of OHW promulgated by the U.S. Army Corps of Engineers in 33 C.F.R. § 328.3 . AR 6061. That definition is as follows:
(e) The term “ordinary high water mark” means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
The use of this regulatory definition is carried forward into the final plan. MRP, Appendix C, Glossary, C-~4.
The Interagency Wild and Scenic Rivers Coordinating Council issued a document in May of 1997 entitled, “Compendium of Questions & Answers Relating to
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Wild & Scenic Rivers.” AR 11260. In that report, the Interagency Council states in part as follows:
Corridor boundaries for federally designated and administered WSRs may vary based on a number
of
conditions, but are usually delineated by legally identifiable lines (survey or property lines) or some form of on-the-ground physical features (i.e., topography, natural or man-made features such as canyon rims, roads, etc.), which provide the basis for protecting the river’s identified values and practicality in managing those values.
AR 1291. Defendants argue that by adopting the Army Corp of Engineer’s definition of ordinary high water mark, the NPS has adopted boundaries delineated by on-the-ground physical features, as approved by the Interagency Council. Defendants conclude that as a result, the NPS has established a definite beginning point and end point for the Merced River corridor’s boundaries and this satisfies the requirement in Section 1274(b) for the establishment of detailed boundaries. The court agrees. Further, the court rejects Plaintiffs’ contention that the NPS will not determine whether a particular site-specific project falls within the boundaries, because the MRP Criteria and Consideration has that very requirement. MRP 32, 33.
Based on its review of the parties’ arguments, the court concludes that Plaintiffs have not demonstrated that the NPS acted arbitrarily or capriciously in regard to the mapping of the river boundaries.
User Capacities
Plaintiffs contend that the MRP violates the requirement under 16 U.S.C. section 1274 (d)(1), that it “address ... user capacities ... to achieve the purposes of this chapter.” 16 U.S.C. section 1271 , entitled, “Congressional declaration of policy,” provides in its initial sentence that, “[i]t is hereby declared to the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.” The subsequent section, section 1272, is entitled, “Congressional declaration of purpose,” provides, “[t]he purpose of this chapter is to implement the policy set out in section 1271 of this title by instituting a national wild and scenic rivers system, by designating the initial components of that system, and by prescribing the methods by which and standards according to which additional components may be added to the system from time to time.”
The MRP addresses user capacities in a section entitled, “Visitor Experience and Resource Protection,” which provides in part as follows:
The Visitor Experience and Resource Protection (VERP) framework is a tool developed by the National Park Service to address user capacities and is adopted by the
Merced River Plan to
meet the requirements of the Wild and Scenic Rivers Act. It protects both park resources and visitor experience from impacts associated with visitor use, and helps managers address visitor use issues. The VERP framework is an ongoing, iterative process of determining desired conditions (including desired cultural resource conditions, desired natural resource conditions, and desired visitor experiences), selecting and monitoring indicators and standards that reflect these desired conditions, and taking management action when the desired conditions are not being realized. VERP is a decision-making framework, but does not diminish
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management’s role in decision-making; in fact, management would have to make crucial decisions in determining desired conditions, choosing appropriate management action, and assessing occasional overlap between protecting park resources and providing for visitor experiences.
For the purposes of this plan, the VERP framework will be used as a form of adaptive management. Adaptive management requires a continual learning process, a reiterative evaluation of goals and approaches, and redirection based on an increased information base and changing public expectations. (Basker-ville 1985). Knowledge and understanding of visitor use issues will improve and evolve over time, and management actions will adapt accordingly. Continual hypothesis testing, data collection, and data analysis will likely result in refinement of desired conditions and, accordingly, refinement of indications and standards. The implementation of the VERP framework for the Merced Wild and Scenic River corridor will focus on protecting the Outstandingly Remarkable Values and would dovetail with future implementation of the VERP framework outside the river corridor.
MRP, 103.
Plaintiffs contend that the MRP fails to comply with the requirement of section 1274(d)(1) because it fails to address user capacities in a manner which protects and enhances ORVs of the Merced River. Specifically, Plaintiffs claim that the VERP framework is inadequate because it postpones addressing user capacity for at least five years. In regard to this claim, the court notes that the MRP provides as follows:
Yosemite National Park began development of the parkwide VERP framework in 1998 and continues to develop desired conditions, indicators, standards, and monitoring protocols. The VERP framework outlined herein for the Merced River corridor will be developed and implemented within five years after the final Record of Decision on the
Merced River Plan
and will dovetail with the larger, parkwide VERP program.
In the interim, Yosemite National Park will implement existing management activities (described above) and direction contained in this
Merced River Plan
(e.g., Wild and Scenic Rivers Act Section 7 determination, River Protection Overlay, management zoning prescriptions) to address user capacity, protection and enhancement of Outstandingly Remarkable Values, and management of park resources, visitor use, and facilities. In addition, the National Park Service will initiate increased resource monitoring to ensure that conditions do not deteriorate. Appropriate management actions, consistent with existing management activities, will be implemented to prevent further degradation of resources.
MRP, 110. Under this express language, the court finds that while the VERP process will not be completed for five years, the Plaintiffs are incorrect in claiming that the National Park Service has postponed addressing user capacities for five years.
Plaintiffs also claim that the “essential failing” of the MRP in using VERP to address user capacity is that the MRP describes only how the VERP “would be implemented” and gives only “examples of desired conditions, indicators, standards and the type of management actions that could result from implementation of the VERP framework.” Plaintiffs correctly state that the Merced River Plan sets forth as the four key elements of the VERP framework “(1) determination of desired conditions, which are part of the management zoning prescriptions; (2) se
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lection of indicators and standards that reflect the desired conditions; (3) monitoring of the indicators and standards; and (4) implementation of management action when the desired conditions are violated or when conditions are deteriorating and preventative measures are available.” MRP, 105. Plaintiffs then argue that the MRP “fails in each regard,” because it does not provide final determinations as to these factors for any portion of the Merced River.
The court finds that in so arguing, Plaintiffs ignore the fact, repeatedly stated in the MRP itself, that the VERP is “an iterative process of monitoring, evaluation and adjustment,” not a static plan.
Plaintiffs repeatedly object to the fact that VERP does not prescribe maximum visitor use, and assert it that focuses on visitor preference or experience, not ORVs. This assertion ignores the four key elements of the VERP process which are quoted above. It also ignores the following discussion of desired conditions and management zones found within the Merced River Plan:
The VERP framework relies on the concept of desired conditions, which are contained in the management zoning prescriptions and identify how different areas in the river corridor would be managed. Each management zone prescribes a set of desired resource conditions, desired visitor experiences, and types and levels of uses. The
Merced River Plan
management zoning is designed to protect and enhance the Outstandingly Remarkable Values and free-flowing condition of the Merced River. Desired conditions focus on the Outstandingly Remarkable Values and guide the protection and enhancement of those values, and can be refined over time as knowledge and understanding of conditions and issues improve.
MRP, 106. Thus, under the above language from the MRP, the VERP relies on the concept of desired conditions, which in turn focuses on the outstandingly remarkable values, not upon visitor preferences.
Finally, Plaintiffs claim that other recommendations for addressing user capacity were ignored. The court, however, finds this claim unconvincing, as Plaintiffs point to no distinct alternative, but only discuss general principles which they do not demonstrate are not included within the VERP process.
After reviewing all of Plaintiffs’ arguments regarding their views of VERP process as applied to the Merced River Plan, it is clear to the court that Plaintiffs would have greatly preferred that the NPS take a completely different approach to the issue of user capacity, specifically one that would have resulted in distinct rules, numerical and otherwise, in the MRP. The court finds, however, that despite Plaintiffs’ apparent assumption to the contrary, the requirement under section 1274(d)(1) that comprehensive management plans “address” user capacities does not mandate that a plan place specific numerical limits on usage. The court further finds that, fundamentally, Plaintiffs object to the fact that VERP is a framework for a process, rather than a completed product. Yet Plaintiffs provide no authority that such a process cannot comply with the requirement of addressing user capacities set forth in section 1274(d)(1).
As has been held repeatedly, review of a final agency action under the arbitrary or capricious standard is a narrow one and the court may not substitute its judgment for that of the agency.
See Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 376 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989). In this case, the court cannot find that the NPS acted arbitrarily or capriciously in creating the
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VERP framework as a means by which to comply with the requirement of section 1274(d), although this is clearly not the only means by which the NPS could have done so.
Management Zones
Plaintiffs contend that none of the management zones established in the MRP are tied to protection or enhancement of the ORVs or the free flow of the Merced River. Rather, Plaintiffs contend, the management zones show a clear bias in favor of development and visitor use and allow for unlimited use of the type specified for each zone, with the exception of areas within the wilderness. Plaintiffs argue that the management zoning fails to address activities that have degraded river values, but it zones the continuation of existing uses, increased facilities and development throughout the river corridor, which Plaintiffs claim are the very uses causing degradation. Plaintiffs argue that the MRP/E IS is flawed from the outset because it proceeds under the incorrect assumption that WSRA allows the agency to balance the recreational ORVs with the other ORVs.
In response to Plaintiffs’ basic contention that the management zones are not tied to protection or enhancement of the ORVs or the free flow of the Merced River, Defendants argue that the management zoning adopted does not exist in a vacuum, but exists as one of seven elements adopted for managing the Merced River, each of which must be satisfied before any new project can be developed or any existing facility can be substantially reconstructed. AR 27414-16. The steps on the ladder of project approval are set forth on pages 32 — 33 of the MRP and may be summarized as follows. If a project is not within the river corridor, it still must be redesigned or abandoned if there would be an adverse impact to OVRs. MRP 33. If the project is within the river corridor, it must be consistent with the classifications of wild, scenic, or recreational. MRP 32, 33,39. Even if the project is consistent with the river classification, it still cannot go forward unless it protects and enhances ORVs. MRP 39. If the project is within the bed or banks of the Merced River, it must then survive the WSRA Section 7 process. MRP 33, 48-50.
If the project is in the river channel or a width of 150' on each side of the river above 3800' elevation or 100' on each side below 3800', it must also comply with the river protection overlay. MRP 33, 51-55. Any project within the RPO must satisfy strict criteria that supercedes the management zoning. MRP 53-54. If there is an actual conflict between a management zoning prescription and the RPO, “the prescription that provides the greater protection and enhancement of the Outstandingly Remarkable Values takes precedence.” MRP 58. If the project has successfully crossed all hurdles to this point, it must also be determined to be compatible with VERP conditions. MRP 109.
Finally, if the project has overcome all obstacles, it is subject to all of the requirements for project implementation. MRP, Appendix B, pp. B-l through B-12. For example, environmental review will be conducted under NEPA, and “projects shall avoid or minimize adverse impacts to natural and cultural resources.”
Id.,
at B-l. Best management practices would be required during construction and resource protection such as soils investigations, wetlands surveys, vegetation surveys, wild life surveys, and special status surveys will be conducted.
Id.,
at B-2 — B6.
Defendants contend, in light of this process, that there is no merit to Plaintiffs’ claims that management zoning is not linked to protection of ORVs, because the MRP prohibits any new projects within the river corridor that do not protect and
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enhance ORVs and prohibits any new projects outside the river corridor that would have an adverse impact to ORVs. Defendants also contend that there is no merit to Plaintiffs’ claim of unlimited possible degradation to the free-flow of the river, when the MRP requires any such project to undergo the Section 7 process and project redesign or abandonment if the project would have a direct, adverse impact on river values. The Section 7 process must be done even on emergency projects as soon as possible after the project is completed and changes or mitigation measures taken if the Section 7 analysis deems it necessary. MRP 49-50.
Defendants next respond to Plaintiffs’ contention that the management zoning reflects the incorrect assumption that WSRA allows the agency to balance recreational ORVs with other ORVs. Plaintiffs base this contention on the language in 28 U.S.C. § 1281 (a) that in administering rivers under WSRA, “primary emphasis shall be given to protecting its esthetic, scenic, historic, archeologic, and scientific features.” Defendants note that section 1281(a) also provides that, “[e]ach component of the national wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, hmiting other uses that do not substantially interfere with public use and enjoyment of these values.” In response to Plaintiffs’ complaint about the zoning of Happy Isles, Defendants argue that it was zoned 2D in recognition of the fact that it is the only portal in Yosemite Valley to major attractions that are special attributes of the area: the John Muir Trail, Vernal Fall, Nevada Fall, Little Yosemite Valley, and Half Dome. MRP 86. Defendants argue that zoning such an area such that it allows for a high level of visitor use does not mean that ORVs will not be protected. Defendants also argue that Plaintiffs ignore the fact that the recreational ORV must be protected, and that a critical component of this ORV is the diversity of recreation experience.
In response to Plaintiffs’ contention that all of the zoning prescriptions improperly authorize unlimited use in the protected corridor that is known to degrade ORVS and/or free flow, Defenda

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2577617. Public record. Not legal advice.