Petition for Writ of Certiorari — Holland America Line-Westours, Inc. v. National Parks & Conservation Ass'n

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No. OL 456 SEP 1 72001

IN THE

Supreme Court of the Anited States

HOLLAND AMERICA LINE-WESTOURS, INC.,

Petitioner,

Vv.

NATIONAL PARKS AND CONSERVATION ASSOCIATION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

CYNTHIA PICKERING CHRISTIANSON *

(Counsel of Record)

GARY SPRAKER Attorney at Law

BUNDY & CHRISTIANSON 911 West 8th Avenue,

911 West 8th Avenue Suite 302

Suite 302 Anchorage, Alaska 99501

Anchorage, Alaska 99501 (907) 276-7735

(907) 258-6016

Counsel for Petitioner

September 2001

WitSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the Ninth Circuit erred in relying on a

presumption of irreparable harm in determining whether to

award injunctive relief for a violation of the National

Environmental Policy Act, 42 U.S.C. §§ 4321 ef seq.,

(NEPA) in light of the Court’s opinion in Amoco Production

Company v. Village of Gambell, 480 U.S. 531 (1987), in

which the Court specifically rejected the Ninth Circuit’s

previous use of such a presumption.

2. Whether, upon reversing the district court’s decision on

the merits and holding that the Park Service had permitted

additional vessel entries into Glacier Bay in violation of

NEPA, the Ninth Circuit erred in enjoining the additional

entries, where the district court had not first considered the

issue of injunctive relief, and no hearing was held to

determine whether irreparable harm from the additional

vessel entries existed, or was likely.

3. Whether the Ninth Circuit erred in enjoining additional

vessel entries into Glacier Bay, more than five years after the

entries had been permitted and commenced, where the

movant never presented evidence of actual or imminent

physical irreparable harm to the environment or the wildlife

from the increase in vessel entry quotas, and the record before

the court of appeals contained no such evidence.

4. Whether the Ninth Circuit erred in enjoining additional

vessel entries without requiring movant to produce evidence

of actual or imminent harm to the environment from the

NEPA violation, i.e. the failure to prepare an EIS, and

whether respondent NPCA’s failure to move for injunctive

relief for nearly three years after the challenged activities

were authorized would vitiate such harm, and further whether

the extensive ongoing monitoring and control exercised by

the National Park Service over vessel traffic in Glacier Bay

would vitiate such harm.

(i)

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The petitioner is Holland America Line-Westours, Inc.

Pursuant to Supreme Court Rule 29.6, petitioner Holland

America Line-Westours, Inc. is a Washington state corpo-

ration, which is a 100% subsidiary of Holland America Line-

USA Inc., a Delaware corporation, which is a 100%

subsidiary of Holland America Overseas B.V., a Dutch

corporation, which is a 100% subsidiary of HAL Buitenland

B.V., a Dutch corporation, which is a 100% subsidiary of

HAL Antillen N.V., a Netherlands Antilles corporation,

which is a 100% subsidiary of Carnival Corporation, a

Panamanian Corporation located in Miami, Florida. Carnival

is a publicly owned corporation, traded on the New York

Stock Exchange, with a controlling interest (~47%) of the

stock owned by members or affiliates of the Arison family.

The Respondents are:

National Parks and Conservation Association

Gale Norton, Secretary of the Interior

Robert Stanton, Director, National Park Service

Reese ene ea

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.............ccssessceressensseenensesenees i

PARTIES TO THE PROCEEDING AND RULE 29.6

STATEMENT .........c0ccceccccccossvrsereccecsescesseesescesssssscoeoes ii

OPINIONS BELOW............c.ccsssssssrsersersersessessessensseresene l

JURISDICTION .......0.0scecreccersorcrserersceececssersessssseseseseess l

STATUTORY AND REGULATORY PROVISIONS

INVOLVED ....0.00000sccccosccccosceoscoccccenssessnsesccessssoesonssesee l

STATEMENT OF THE CASE ..........0scsesescesesseessesensenes 2

I. DEVELOPMENT OF THE MANAGEMENT

REGIME FOR VESSEL TRAFFIC IN

GIBNPP....0..ccccscorccsccsccsecssocsccecsoccoccsccscosecessossscnses 3

Il. FORMULATION OF THE 1996 VESSEL

MANAGEMENT PLAN ..........csceeseeseeseeesensenees 6

Ill. PROCEEDINGS IN’- THE DISTRICT

COURT oxccccorececceecscrescesccecrecescocccsccsccecsonsocssocsecoes 7

IV. THE DECISION OF THE COURT OF

APPEALS .....c.ccscccocsscssccecceccscccosecreoreessessssssssesees 9

REASONS FOR GRANTING THE PETITION ........... 14

I. THE NINTH CIRCUIT’S DECISION

IRRECONCILABLY CONFLICTS WITH

THE COURT’S HOLDINGS IN WEIN-

BERGER v. ROMERO-BARCELO AND

AMOCO PRODUCTION COMPANY v.

VILLAGE OF GAMBELL alnedons 16

(iii)

TABLE OF CONTENTS—Continued

IL THE NINTH CIRCUIT’S DECISION THAT

SPECULATIVE AND PROCEDURAL

HARM CONSTITUTES IRREPARABLE

HARM FOR PURPOSES OF OBTAINING

INJUNCTIVE RELIEF CONFLICTS WITH

OTHER CIRCUITS ........csecsessesssessereenneenssneensens

_ THE STANDARDS AND PROCEDURES

FOR INJUNCTIVE RELIEF IN NEPA

CASES PRESENTS AN EXTREMELY

IMPORTANT QUESTION .......ssscceesersereenereerees

CONCLUSION .........:s0ecseesseerssnrneenseersseressees Leaeneqageietintcte

Page

CASES

TABLE OF AUTHORITIES

Page

Amoco Production Company v. Village of Gam-

bell, 480 U.S. 531 (1987).........cccccccsrsccsssessscccsees passim

Alaska Wilderness Recreation & Tourism Ass'n

v. Morrison, 67 F.3d 723 (9th Cir. 1995).......12, 20, 24

Alpine Lakes Protection Soc. v. Schlapfer, 518

F.2d 1089 (9th Cir. 1975) .......scccccsssssssssssssssessees 21

American Motorcyclist Ass’n v. Watt, 714 F.2d

GG2 (OU. Cir. 9963) ca crincesscietsccsscccscccascusrcsisscevesce 18, 21

Bob Marshall Alliance v. Hodel, 852 F.2d 1223

(9th Cir. 1988) cert. denied, 489 U.S. 1066

CIF onssncs ie vivhocacsciadincsditostintvhcececscstitelesseesbackdetscen 20

Caribbean Marine Services Co. v. Baldridge,

844 F.2d 668 (9th Cir. 1988) ..........scccsecssseeserees 24

Conner v. Burford, 848 F.2d 1441 (9th Cir.

1988), cert. denied, 489 U.S. 1012 (1989)......... 20

Conservation Law Foundation, Inc. v. Busey, 79

F.3d 1250 (1st Cir. 1996)...........cccccsscsssevssssecseees 25

Forelaws on Board v. Johnson, 743 F.2d 677

(9th Cir. 1984), cert. denied, 478 U.S. 1004

CDG) vl iccsccsincsisnvenmnatinisadieitiainlasidsitiabiscsds 20

Forest Conservation Council v. United States

Forest Service, 66 F.3d 1489 (9th Cir. 1995).... 11, 21

Friends of Mt. Hood v. United States Forest

Service, No. CV 97-1787 KI (D. Or. 2001)....... 22

Fund for Animals, Inc. v. Lujan, 962 F.2d 1391

CDE Piva cicicciccisincisssaintisdiclescéniese 20

Greenpeace Action v. Franklin, 14 F.3d 1324

CD Gr, FI incase cadevscctlecsilanisciciehabccsvicnes 8

Hirt v. Richardson, 127 F. Supp. 2d 833 (W.D.

DARD, TOI ack cicsciorsasssviectdacecsscsvenccteséevcsivesmecenss 25

Knowles v. United States Coast Guard, 924 F.

Supp. 593 (S.D.N.Y. 1996).......scccsssssssesreseererees 23

TABLE OF AUTHORITIES—Continued

Natural Resources Defense Council v. Texaco

Refining & Marketing, Inc., 906 F.2d 934 (3d

Cir. 1990)..... otnaqnasecn

Northern Cheyenne Tribe v. Hodel, 851 F.2d

1152 (9th Cir. 1988)....

People of Village of Gambell v. Hodel, 774 F.2d

1414 (9th Cir. 1985), rev'd sub nom. Amoco

Production Company v. Village of Gamble,

480 U.S. 531 (1987)... 17,

Portland Audubon Society v. Lujan, 795 F. Supp.

1489 (D. Or. 1992), aff'd sub nom. Portland

Audubon Society v. Babbitt, 998 F.2d 705 (9th

Cir. 1993) ....00+» datavcbedianel

Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir.

1981), rev'd sub nom. Weinberger v. Romero

Barcelo, 456 U.S. 305 (1982). o

Ross v. Federal Highway Administration, 162

F.3d 1046 (10th Cir. 1998).

Save Our Ecosystems v. Clark, 747 F.2d 1240

. 19,20

18, 19

(9th Cir, 1984)... 18, 20, 22

Save the Yaak Committee v. Block, 840 F.2d 714

(9th Cir. 1988)..... a

Sierra Club v. Marsh, 872 F.2d 497 (ist Cir.

1989) revneees 11, 24, 25, 26

Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir.

1988).

Sierra Club v. United States Forest Service, 843

F.2d 1190 (9th Cir. 1988)

State of New York v. Nuclear Regulatory Com-

mission, 550 F.2d 745 (2nd Cir. 1977) ..s---se-se-

State of Wisconsin v. Weinberger, 745 F.2d 412

(7th Cir. 1984)

vii

TABLE OF AUTHORITIES—Continued

Page

Tennessee Valley Authority v. Hill, 437 U.S. 153

(1978) ees dee 17

Thomas v. Peterson, 753 ‘F.2d 754 (9th Cir. |

BORED ccncoqeessesceceens 18. 20. 21, 22

Town of Huntington v v. Marsh, 884 F.2d 648 (2nd

Cir. 1989), cert. denied, 494 U.S. -1004

CTI cxclhcocvnccescnacctassteccecccsvscsecnetessocnetsbiqnsoteasboses 23, 24

Weinberger v. Remero-Barcelo, 456 U. Ss. 305

(19B2).......-000 seéees . seseeee PASSIM

FEDERAL STATUTES AND REGULATIONS

Administrative Procedure Act, 5 U.S.C. §§ 701-

Alaska Native Claims Interest Lands Conser-

vation Act, 16 U.S.C. § 3120 17, 18, 19

“ Endangered Species Act, 16 U.S.C. § 1536......... 4, 17,20

Federal Water Pollution Control Act, 33 U.S.C.

§ 1251 16, 17

National Environmental Policy Act, 42 U.S.C.

$§ 4321 et seg. +. passim

42 U.S.C. § 4332(2X(C). ott 2

36 C.F.R.

Section 7.23(c)

Section 7.23(d).

36 C.F.R.

Section 13.65(b)

Section 13.65(b)(2)

Section 13.65(b)\(2)(v)

Section 13.65(b\(2)(v)(B)

Section 13.65(b)(2)(v)(D)

Section 13.65(b)(2){ix)

RRwwen

Viii :

TABLE OF AUTHORITIES—Contin

Page

40 C.F.R.

Section 1501.4......c.rescessssesersnessnsnsnnnnensnnenees 6

Section 1502.3........s-sscessersesensnsenensennenssrenenens 6

MISCELLANEOUS

45 Fed. Reg. 32,228 (1980) ......-vsv-ssersssersereeserenseres 5

49 Fed. Reg. (1984)

15,A4B2..ccscecssscosessssneseesesssoncssenensrsssssenensnsenenones 5

15,484. ..ccceccccecscsssnsseeecseensnsnsenencensnsensnennsnsnnenses 5

15,486 ...ccccscecocesssssonsesesesesesensenensnsenenensnenssssonses 5

15,493 ..cccccecocsscscsesesererssessssssncnssssncseenenenensossoes® 4

15,494 ...scscecoscscessesncsessessnsnssseensseesenennsnensssserees 4

60 Fed. Reg. 29,523 (1995) -.--s-sssvsssrerssrsersensesensers 7

61 Fed. Reg. (1996)

27 008-27 009 ....ssesesernsreresssnenensensnerersenensensne® 2,7

27,014 ..c.cssesosessscnsssserernensesssenensesensonsnsnensanenseees 3,7

National Park Service, Whale Report (1998) ........ 10

National Park Service, Whale Report (1999) .....0+- 10

Hermann, Injunctions for NEPA Violations:

Balancing the Equities, 59 U. Chicago L. Rev.

1263 (1992) ...ecsssosseseessesssnsresseensnssnsessnennsnssnsseseess 26

Rubenstein, Injunctions Under NEPA er

Weinberger v. Romero-Barcelo and Amoco

Production Co. v. Village of Gambell, 5 Wis.

Environmental L. J. (1988) .....---s-+sssseeesrerensereres 26

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari to

review the opinion and judgment of the United States Court

of Appeals for the Ninth Circuit in this case.

OPINIONS AND ORDERS BELOW

_ The opinion of the court of appeals is reported at 241 F.3d

722 (9th Cir. 2001). (App. 1a-31a). The order of the court of

appeals denying petitioner’s Petition for Rehearing and

Suggestion for Rehearing En Banc is unreported. (App. 34a).

The order of the district court granting summary judgment in

favor of defendants is unreported. (App. 35a-70a). The order

of the district court entering the injunction against defendants

on remand is unreported. (App. 73a).

JURISDICTION

On February 23, 2001, the court of appeals entered its

opinion and judgment reversing the district court’s order

granting summary judgment to defendants, and remanding the

case with instructions to the district court to enjoin

implementation of certain provisions of the 1996 Vessel

Management Plan for Glacier Bay National Park and Preserve

pending completion of an Environmental Impact Statement.

(App. la). On May 18, 2001, the court of appeals denied

petitioner’s Petition for Rehearing and Suggestion for

Rehearing En Banc. (App. 34a). On August 8, 2001, Justice

O’Connor extended the time for filing a petition for a writ of

certiorari until September 15, 2001. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Section 102(2)(C) of the National Environmental Policy

Act (NEPA), 42 U.S.C. §§ 4321 et seq., provides in rele-

vant part that federal agencies shall: “include in every

recommendation or report on proposals for legislation and

other major Federal actions significantly affecting the quality

of the human environment, a detailed statement by the

responsible official on . . . the environmental impact of the

proposed action . . . ” 42 U.S.C. § 4332(2)(C).

The vessel management regulations for Glacier Bay

National Park and Preserve, 36 C.F.R. § 13.65(b) (1996), are

set forth in the appendix to this petition at 74a-87a.

STATEMENT OF THE CASE

This case concerns the National Park Service's manage-

ment of marine traffic in Glacier Bay within Glacier Bay

National Park and Preserve (GBNPP), in southeast Alaska.

Watercraft—cruise ships, tour boats, charter boats, and

private boats—are the primary means of access to features of

interest in GBNPP. Most people visit Glacier Bay by cruise

ship. Vessel operators generally must obtain entry permits to

enter Glacier Bay from the National Park Service (Park

Service). 36 C.F.R. § 13.65(b)(2).- In 1996, the Park Service

adopted a new Vessel Management Plan (VMP) and imple-

menting regulations, 36 C.F.R. § 13.65(b), which permitted

increases in existing vessel entry quotas, and added additional

operating restrictions and special-use closures to protect the

marine resources of GBNPP. The VMP resulted from a five

year process under NEPA, during which the Park Service

consulted with the National Marine Fisheries Service

(NMFS), reviewed scores of scientific studies, promulgated

an environmental assessment in excess of 300 pages

analyzing six alternatives, and held six hearings in Alaska.

61 Fed. Reg. 27,008-27,009 (1996). The court of appeals

reversed the district court’s determination that the Park

Service complied with NEPA when it adopted the VMP, on

the ground that the Park Service’s failure to prepare an EIS

violated Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C)

(1994). (App. 32a). Although the district court had not

addressed the issue, the court of appeals ruled in favor of

NPCA on the issue of injunctive relief, and remanded the

case to the district court with instructions to enjoin additional

vessel entries authorized since 1996 by the VMP pending

preparation of an EIS. (App. 1a-31a).

The VMP provides for vessel entry quotas by vessel type,

one of which is “cruise ships.” 36 C.F.R. § 13.65(b)(2)(v).

Petitioner has operated cruise ships in Glacier Bay for

decades, and holds cruise ship entry permits issued under the

VMP regulations. The VMP limits daily cruise ship entries

into Glacier Bay to two per day year-round, and imposes an

additional limit on the total number of “seasonal” entries, i.e.

entries occurring during the summer season, from June 1 to

August 31. 61 Fed. Reg. 27,014. The VMP raised the maxi-

mum number of seasonal entries for cruise ships in 1996 from

107 to 139, an increase of 32 entries or 30%. Jd. Further

increases up to a total of 184 entries were authorized subject

to certain conditions beginning in 1998. /d. 36 C.F.R.

§ 13.65(b)(2)(v)(B).

Petitioner was awarded the majority of the 32 additional

entry permits issued by the Park Service in 1996.

Notwithstanding the authority to raise cruise ship entries for

the summer season from 139 to 184, the Park Service has not

raised the level of entries above 139. The quota has

remained at 139 from 1996 until August 3, 2001, when it was

reduced by the injunction entered in this case. (App. 73a).

As a result of the injunction, five cruise ships operated by

petitioner which had been scheduled to call on Glacier Bay

between August 3, and August 31, 2001, had to be diverted to

avoid Glacier Bay, and the travel plans of thousands of

petitioner’s passengers were disrupted.

I. DEVELOPMENT OF THE MANAGEMENT

REGIME FOR VESSEL TRAFFIC IN GBNPP.

Until the 1970’s, vessel use of Glacier Bay was

unregulated, and vessel traffic in Glacier Bay consisted

primarily of fishing vessels. In the 1970’s, however, Glacier

Bay experienced a surge in vessel use from both small craft

and large ships. As vessel use of the marine areas of the

GBNPP increased, the Park Service’s concem for the

potential impacts to wildlife, and especially to the humpback

whales which frequent Glacier Bay in summer, also

increased. Glacier Bay is within the summer range of the

North Pacific humpback whale, an endangered species.

Systematic documentation of the whales began in the

1970’s, and research regarding the behavioral response of

whales to vessel activity began in 1976 pursuant to a Park

Service contract. From 1973 until 1982, the total number of

whales observed in Glacier Bay during the summer months

ranged from 10 to 24, In 1978, many of the whales departed

unusually early, and, in 1979, relatively few visited Glacier

Bay. The reduction in whale visits in 1978 and 1979 caused

concern that vessel traffic may have caused the reduction.

Heedful of this possibility, the Park Service imposed vessel

operating guidelines in 1979. The Park Service also

requested formal consultation with NMFS pursuant to Section

7(a)(2) of the Endangered Species Act of 1973 (ESA), 16

U.S.C. §1536, regarding management of marine traffic in

Glacier Bay.

NMFS issued its first biological opinion regarding vessel

traffic in Glacier Bay in 1979. 49 Fed. Reg. 15,493 (1984).

NMFS concluded that uncontrolled increases in vessel traffic,

particularly charter/pleasure craft (which travel erratically, as

opposed to cruise ships which travel at a constant speed and

course) were likely to jeopardize the humpback whales. /d. at

15,494. NMES also acknowledged that the whales may

depart due to changes in prey availability. Jd. In its opinion,

NMES recommended restriction of vessel use in Glacier Bay,

implementation of regulations governing routing and

maneuvering, monitoring of the humpback population, and

research into prey distribution, acoustic environment, and

whale behavior. /d.

As a result, in 1980, the Park Service adopted formal

regulations restricting vessel traffic in Glacier Bay through

quotas, with a seasonal maximum for cruise ships of 107

entries in 1980, and 89 emries in 1981 and 1982. 45 Fed.

Reg. 32,228 (1980) (codified at 36 C.F.R. § 7.23(c) (1980)).

The regulations also imposed restrictions on routing and

maneuvering of vessels to minimize whale-vessel interac-

tions. 36 C.F.R. § 7.23(d) (1980). The Park Service research

and monitoring which followed indicated that there was

considerable natural variation in prey availability, and that

although vessels could cause whales to alter their behavior on

a short-term basis, slow moving vessel traffic did not prevent

whales from using an area. In 1983, NMFS issued a second

biological opinion, and concluded that “some increase in the

amount of vessel use can occur without jeopardizing the

continued existence of the Southeast Alaska whale stock,

provided increases are implemented in a conservative manner

and with an appropriate monitoring program.” 49 Fed. Reg.

15,486 (1984). In 1984, the Park Service proposed

regulations establishing a permitting system for vessel entries,

including cruise ships, using 1976 entry figures as a base (89

seasonal entries for cruise ships) with incremental increases

allowed (up to 107 seasonal entries) for cruise ships so long

as the whale population remained at 1982 levels (22 whales).

Id. at 15,482. The regulations also provided for vessel

operating restrictions and a mechanism for designating

“whale waters” closures. /d. at 15,484. The regulations were

formally adopted in 1985, and remained in place until the

VMP which is the subject of this action was adopted in 1996.

The quota for cruise ships reached the authorized maximum

of 107 seasonal entries in 1988, with a maximum of two

entries per day, where it remained until the challenged VMP

authorized an increase to 139 seasonal entries in 1996.

II. FORMULATION OF THE 1996 VESSEL MAN-

AGEMENT PLAN.

Pursuant to its statutory mandate, the Park Service has

sought to balance environmental concerns with a growing

public demand to experience the spectacular wilderness

setting and abundant wildlife of Glacier Bay. In 1991, the

Park Service undertook a review of vessel entries into Glacier

Bay in light of increased demand for visitation. The -Park

Service re-initiated consultation with NMFS, and commenced

a draft environmental assessment (EA)! pursuant to NEPA, in

which it initially identified four possible alternatives. On

February 19, 1993, NMFS issued its third biological opinion

discussing the potential effect of additional vessel entries into

Glacier Bay on humpback whales.” Despite the continued

scientific research, NMFS concluded that the impact of any

increased vessel traffic remained inconclusive. Nonetheless,

it opined that even the highest entry increase proposed in the

draft EA (77 additional entries, for a total of 184 seasonal

cruise ship entries) would not likely jeopardize the existence

of the Northern Pacific humpback whale. In light of the

uncertainty, however, NMFS urged the Park Service to adopt

a conservative approach to the VMP. In response, the Park

Service added alternatives to its EA, included a number of

! Pursuant to NEPA, agencies must prepare an EA to assess the

environmental effects for each project that may be subject to NEPA’s EIS

requirements. From the EA, the agency determines whether the project

will “significantly affect” the environment, and thus whether an EIS is

necessary. 40 C.F.R. §§ 1501.4 and 1502.3.

2 NMFS identified three endangered or threatened species that might be

found within Glacier Bay; the Stellar Sea Lion, the Gray Whale, and the

Humpback Whale. NMFS concluded that there were no Stellar Sea Lion

rookeries in Glacier’ Bay, only haulouts, and that the Park Service's

proposed actions would not adversely affect the existence or recovery of

the Stellar Sea Lions which had been delisted from the endangered

species. NMBS also noted that Gray Whales rarely entered Glacier Bay

and were not affected by vessel traffic.

measures to mitigate potential adverse effects, and provided

for further research. In May, 1995, the Park Service

published the VMP and EA, a document in excess of 300

pages in length, which discussed the environmental effects of

each of the proposed six alternatives, as well as the proposed

rule. The Park Service designated Alternative Five, which

permitted an additional 77 seasonal cruise ship entries up to a

total of 184 entries, as its proposed action. 60 Fed. Reg.

29,523 (1995).

The Park Service held six hearings on its proposal, and

based upon responses received to the EA, it revised

Alternative Five to limit the number of immediate additional

seasonal cruise ship entries to 32 (for a total of 139), with

subsequent increases permitted up to a total of 184. 61 Fed.

Reg. 27,008-27,009 (1996). On March 20, 1996, the Park

Service published its revised Alternative Five and its Finding

of No Significant Impact. It concluded that the additional

vessel entries with the mitigation measures authorized in its

preferred alternative would not significantly affect the

environment and declined to prepare an environmental impact

statement. In May, 1996, the VMP regulations became final.

Id. at 27,008. The quotas for seasonal vessel entries were

increased, with seasonal cruise ship entries being raised by

30% to 139. Id. at 27,014.

Ill. PROCEEDINGS IN THE DISTRICT COURT.

NPCA brought this action on May 2, 1997, under the

Administrative Procedure Act, 5 U.S.C. §§ 701-706, for

judicial review of the Park Service’s decision to adopt the

1996 VMP without first preparing an EIS. Federal question

jurisdiction exists pursuant to 28 U.S.C. § 1331. NPCA

sought a declaratory judgment that the VMP was adopted in

violation of NEPA, and a permanent injunction prohibiting

all additional vessel entries authorized by the VMP until an

EIS was prepared. NPCA never sought temporary or

preliminary injunctive relief. On March 3, 1998, the district

Fe ee ee

court granted petitioner the right to intervene to protect its

rights as a cruise ship operator holding many of the additional

entries allowed under the 1996 VMP.

In October, 1998, two and a half years after publication of

the rule permitting additional entries, NPCA filed its motion

for summary judgment in the district court to establish that

the Park Service violated NEPA when it adopted the VMP

without first preparing an EIS. NPCA argued that an EIS

was required because of the uncertainty over the effects of the

VMP on wildlife, and because of public opposition to the

increase in entries. Petitioner and the Park Service filed cross

motions for summary judgment to establish that the Park

Service had complied with NEPA. Petitioner also sought to

dismiss NPCA’s claims for injunctive relief for lack of any

showing by NPCA of irreparable harm to the environment.

NPCA presented no evidence that the quota increases

presented an immediate, actual threat to the environment or

the whales, despite the passage of three cruise seasons (1996-

1998) in which the additional 32 entries had been permitted

and extensive monitoring had occurred. Petitioner introduced

National Park Service whale population studies from 1996

and 1997 showing that the number of whales in Glacier Bay

had increased, not decreased, since the additional entries had

been permitted.

Relying primarily upon Greenpeace Action v. Franklin, 14

F.3d 1324 (9th Cir. 1993), the district court granted the Park

Service’s motion for summary judgment that it had com-

plied with NEPA. (App. 52a-56a). The district court

denied NPCA’s motion for summary judgment, and denied

petitioner’s motion for summary judgment as moot. (App.

3 Petitioner and the federal defendants have different interests in this

litigation, as the district court observed. Petitioner’s lies primarily in the

issue of whether vessel activities authorized under the VMP should be

enjoined, as compared to federal defendants’ which are concerned with

the scope of the procedural obligations imposed by NEPA.

70a). The district court held that even if scientific uncertainty

remained after the “hard look” required by NEPA, where the

uncertainty results from a “genuine lack of scientific

consensus” and the agency’s conclusions are based on

substantial, though not dispositive, data, the agency was

entitled to resolve conflicting opinions by relying on its

experts. (App. 55a). It concluded that the Park Service had

reasonably interpreted the administrative record, and was not

required to prepare an EIS. (App. 68-69). The district court

never reached the issue of injunctive relief.

IV. THE DECISION OF THE COURT OF APPEALS.

NPCA appealed the entry of summary judgment, and

petitioner cross-appealed the district court’s denial of its

cross-motion on the remedies issue. NPCA barely mentioned

injunctive relief in its opening brief, and produced no

evidence of the effects of the additional 32 cruise ship entries,

despite the passage of four post-VMP cruise seasons by the

time it submitted its briefs. In its opposition, petitioner

opposed NPCA’s request for a permanent injunction on the

ground that NPCA had failed to meet its burden of

demonstrating the requisite irreparable harm. In _ the

alternative, petitioner asked the court of appeals to remand

the remedies issue to the district court for an evidentiary

hearing on the nature and likelihood of irreparable harm to

the environment, and to balance the countervailing equities,

including the public’s interest in access to Glacier Bay.

NPCA likewise asked the court of appeals to remand the

question of injunctive relief to the district court.

Petitioner appended Park Service reports summarizing the

results of the agency’s monitoring of humpback whales in

Glacier Bay for 1996-1999, the first four years since vessel

quotas were increased. The reports reflect that record

* The 1996 and 1997 reports appear in petitioner’s excerpt of record.

The 1998 and 1999 Park Service reports were included as part of

population increases have occurred in recent years. For

example, in 1999, 60 humpback whales were observed in

Glacier Bay, as compared to 15 in 1985. According to the

Park Service biologists, the record population increases of

1996-1999 contributed to an “increasing trend” from 1985 to

1999, and “reflect a real increase in whale abundance in the

study area.” 1999 Whale Report, pp. 22-23.° These reports

constitute empirical evidence of the status of the whale

populations in Glacier Bay since adoption of the VMP. In

contrast, NPCA never offered any evidence of harm to the

environment from the addition of the 32 additional cruise ship

entries, much less that such harm was imminent and

irreparable. Federal defendants limited their briefing in the

court of appeals solely to the merits.

The court of appeals reversed the district court’s summary

judgment. (App. la-3la). The court of appeals did not

disagree with the district court that the effects of the

additional cruise ship entries were uncertain. (App. 16a-18a).

Rather, it held that uncertainty required the Park Service to

conduct further scientific studies and to promulgate an EIS

before it could allow any additional entries. (App. 18a). _

Having found a NEPA violation, the court of appeals

turned to NPCA’s request for a permanent injunction and

announced: “NPCA has made the requisite showing for

injunctive relief.” (App. 26a). It explained the basis for its

holding: “Where an EIS is required, allowing a potentially

environmentally damaging project to proceed prior to its

preparation runs contrary to the very purpose of the statutory

requirement.” (App. 27a). It then noted:

Petitioner’s Appendix to its Opposition Brief submitted in the Ninth

Circui

5 In the 1998 report, Park Service biologists stated: “This increasing

trend is substantiated by the finding that mean whale counts for 1985-

1991 were significantly lower than mean whale counts for 1992-1998.

...” 1998 Whale Report, p. 9.

We have recognized, nevertheless, that in “unusual

circumstances” an injunction may be withheld, or more

likely, limited in scope. See Forest Conservation

Council, 66 F.3d at 1496. Amoco Production Co. is not

to the contrary. There, the Supreme Court rejected a

presumption of irreparable injury where an agency failed

adequately to investigate the consequences of its

proposed action, see Amoco Prod. Co., 480 U. S. at 544-

45, 107 S. Ct. 1396: it required courts to undertake the

traditional “balance of harms” analysis. /d. at 545, 107

S.Ct. 1396. We have fully weighed the competing

interests using our traditional equitable jurisdiction, and

conclude that injunctive relief is appropriate. Finally, in

Sierra Club v. Marsh, 872 F.2d 497 (ist Cir. 1989),

then-Circuit Judge Breyer held that, because NEPA is a

purely procedural statute, the requisite harm is the

failure to follow the appropriate procedures. See id. at

500 (because NEPA can do no more than require the

agency to produce and consider a proper EIS, the harm

that NEPA intends to prevent is imposed when a

decision to which NEPA obligations attach is made

without the informed environmental consideration that

NEPA requires). Marsh also justifies injunctive relief in

this case.

(App. 27a).

The court of appeals examined the evidence introduced by

petitioner, and concluded it was insufficient to dissuade it

from entering the injunction, placing the burden on petitioner

to convince the court not io enter the injunction. (App. 28a-

29a). The court dismissed the whale census evidence

introduced by petitioner as a mere “short term increase,” even

though the Park Service biologists stated it was a

“statistically significant” trend. (App. 29a). The court further

noted that petitioner did not address “other environmental

effects,” besides whales. Jd. The court of appeals did not

—_— —

discuss evidence submitted by NPCA on environmental

effects of the additional entries because it could not-NPCA

did not submit any. The court discounted the impact of the

injunction upon petitioner and its passengers because “n ither

Westours nor those of its passengers who may be unable to

view Glacier Bay at the time they originally planned have

cause to claim surprise as a result of any injunction.” (App.

28a). The court did not address why petitioner’s reliance on

the district court’s decision on the merits was not justified,

nor the fact that petitioner must “use or lose” its entry

permits.

In its decision the court of appeals focused upon the

possibility of harm, rather than actual evidence of physical

harm. (App. 27a-28a). The court of appeals stated “[w}hen

the ‘proposed project may significantly degrade some human

environmental factor,’ injunctive relief is appropriate,” citing

Alaska Wilderness Recreation & Tourism Ass'n v. Morrison,

67 F.3d 723, 732 (9th Cir. 1995). (App. 26a).°

The court of appeals acknowledged that the scope of an

injunction should be determined by the district court in the

first instance, where the question of injunctive relief “raises

intensely factual issues.” (App. 29a). Nonetheless, it found

that in this case there were no “intensely factual issues and

the scope of the injunction to which NPCA is entitled is quite

plain. It is appropriate, therefore, for us to decide the

injunction question on this appeal.” /d. Thus, after five

summer seasons under the 1996 VMP, the Ninth Circuit

to determine the appropriateness of injunctive

relief on the sole evidentiary basis of a five year old EA.

® However, Alaska Wilderness utilizes the standard of whether “the

proposed project may significantly degrade” some environmental factor to

determine whether an EIS is required, not to determine if injunctive relief

is appropriate. Thus, the court of appeals in this case relied on the test for

whether an should be required to determine whether an injunction

should be entered.

The court of appeals quoted the statement in Amoco

Production Co. v. Village of Gambell, Alaska, 480 U.S. 531,

545 (1987), that “[e]nvironmental injury, by its nature, can

seldom be adequately remedied by money damages and is

often permanent or at least of long duration, i.e. irreparable.”

(App. 26a). Though it thus acknowledged that environmental

harm is often irreparable, it did not explain why it considered

the harm at issue in this case irreparable.

Indeed, the court of appeals did not identify any specific

environmental harm it sought to avoid by entering the

injunction. It simply concluded that “Glacier Bay Park is too

precious an ecosystem for the Park Service to ignore

significant risks to its diverse inhabitants and its fragile

atmosphere.” (App. 31a). The court defined those risks as

increased vessel traffic and its “related disturbances” on the

resident wildlife. (App. 8a-9a). Yet, the most that could be

said was that the 32 additional entries could or might “affect”

the wildlife.’ Id.

The court of appeals held injunctive relief appropriate,

remanding the case to the district court with instructions to

enjoin all additional vessel entries pending preparation of an

EIs.* (App. 30a-31a). The court of appeals left it for the

district court to determine the effective date of the injunction.

(App. 31a). On August 3, 2001, the district court entered the

’ The predominant complaint was that the additional entries might

create intolerable noise levels for the humpback whales causing them to

expend too much energy to avoid the noise, thereby placing the whales

ert ee

* Though it concluded that the 1996 VMP was void, the Ninth Circuit

specifically saved the mitigation measures adopted to mitigate the impact

of the additional entries. (App. 29a). These included speed and course

restrictions, area limitations, pollution minimization plans, and discretion

to restrict entries. The court of appeals severed these parts of the 1996

VMP from the injunction so that those requirements would continue

despite having been allegedly enacted in violation of NEPA. /d.

- -» “a

injunction, immediately enjoining all additional vessel entries

authorized by the VMP pending preparation of an EIS.

(App. 73a).

REASONS FOR GRANTING THE PETITION

The court of appeals’ decision significantly relaxes the

standards in the Ninth Circuit for obtaining injunctive relief

in environmental cases. The rule adopted by the court of

appeals provides that, absent “unusual circumstances,” courts

must enjoin governmentally authorized activity whenever a

NEPA violation likely exists.” The rule clearly conflicts with

the Court’s holdings in Amoco Production Co. v. Village of

Gambell, 480 U.S. 531, 541-44 (1987) and Weinberger v.

Romero-Barcelo, 456 U.S. 305 (1982), that an injunction

does not follow automatically from a finding that an

environmental statute has been violated, unless Congress has

expressly limited the courts’ traditional equitable discretion

with respect to remedial relief. Instead, according to the

rulings of this Court, the appropriateness of an injunction

depends upon a traditional balancing of equities, with

attention to the specific policies underlying the statutes in

question and the presence or absence of irreparable injury.

The court of appeals in this case has rewritten the rules for

issuing injunctions in NEPA cases to eliminate the traditional

requirement that a party must demonstrate irreparable injury

to obtain injunctive relief. Thus, the court of appeals has

adopted a rebuttable presumption of irreparable injury and

injunctive relief, whenever NEPA is violated.

® In this case, NPCA sought a permanent injunction, and thus the court

had to find that a NEPA violation had occurred in order to issue the

injunction. However, where a party seeks a preliminary injunction under

NEPA, prior to a final determination on the merits, all that party must

show is that a NEPA violation likely exists. Amoco Production Co. v.

Village of Gambell, 480 U.S. 531, 546 n.12 (1987).

The Court should review the decision of the court of

appeals for several reasons. First of all, the decision ignores

this Court’s explicit rejection of a presumption of irreparable

harm in Village of Gambell. The decision also conflicts with

the decisions of some Ninth Circuit panels and several other

circuits. The decision, in addition, misapplies First Circuit

precedent as support for its presumption of irreparable harm

based upon a violation of NEPA’s procedural requirements.

Several other circuits have similarly misread the First Circuit

decisions as support for a presumption of irreparable harm in

NEPA cases. Certiorari is required to resolve these

differences, and bring the circuit courts into conformity with

the Court’s decisions in Village of Gambell and Romero-

Barcelo.

In addition, the decision sets a dangerous precedent for

practical reasons. The effect of the presumption adopted by

the Ninth Circuit is to shift the burden of persuasion on the

question of injunctive relief from the party seeking the

injunction to the party opposing the injunction. Conse-

quently, the decision makes it much more difficult for a third

party permittee like petitioner, who relies on the govern-

ment’s permitting authority when it invests in and develops a

project, and whose interests and project are at stake, to defend

against a party seeking an injunction to halt the project. This

creates uncertainty for permittees who conduct their activities

under the authority of government permits subject to NEPA.

Moreover, the decision eliminates the ability of the gov-

ernment, and of third party permittees, to rely upon an

environmental assessment under NEPA where there is some

uncertainty as to the proposed action’s environmental effect.

Unless the government prepares an EIS, a single party will be

able to halt fishing and logging management, road con-

struction, and a host of other activities authorized by the

government, by filing a NEPA action and seeking an

injunction.

pe ee Oe

vation <HRes ® Or ee Bet 2

Finally, as this case demonstrates, the procedure for

obtaining injunctive relief in environmental litigation is

muddled at best, leaving those parties most affected by the

injunction, such as petitioner, to guess how to protect their

interests. In this action NPCA was never required to present

any evidence of harm, nor were petitioner or the government

ever given an opportunity to present the countervailing

equities in an evidentiary hearing prior to the Ninth Circuit’s

ruling granting the injunction. This Court should clarify the

procedure to be used by the lower courts when considering

injunctive relief in environmental litigation.

I. THE NINTH CIRCUIT’S DECISION IRRECON- |

CILABLY CONFLICTS WITH THE COURT’S

HOLDINGS IN WEINBERGER v. ROMERO-

BARCELO AND AMOCO PRODUCTION COM-

PANY v. VILLAGE OF GAMBELL.

In Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-19

(1982) and Amoco Production Company v. Village of Gam-

bell, 480 U.S. 531, 541-44 (1987), the Court addressed the

issue of injunctive relief in the context of federal envir-

onmental litigation. The Court held in each case that a

violation of an environmental statute by a federal agency does

not automatically warrant an injunction. In Romero-Barcelo,

the Navy had failed to obtain a discharge permit required by

the Federal Water Pollution Control Act (FWPCA), 33 ie. ¥ od

§ 1251. The First Circuit held there was an “absolute

statutory obligation” to stop discharges until the permit was

granted. Romero-Barcelo v. Brown, 643 F.2d 835, 861 (1st

Cir. 1981) rev’d sub nom. Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982). The Court reversed the First Circuit,

and explained that a court is not “mechanically obligated to

grant an injunction for every violation of law,” Romero-

Barcelo, 456 U.S. at 313. The Court construed the FWPCA ,

and held that the statute did not usurp judicial discretion to

deny injunctive relief. The Court contrasted the provisions of

the FWPCA with the Endangered Species Act (ESA), 16

U.S.C. §§ 1531 et seg., where it found that “[t]he purpose and

language of the statute . . . not the bare fact of a statutory

violation, compelled [entry of an injunction].” /d. at 314 (cit-

ing Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)).

The Court concluded, in Romero-Barcelo, that even in

environmental litigation, injunctions were “not a remedy

which issues as of course.” /d. at 311. Rather, the “basis for

injunctive relief in the federal courts has always been

irreparable injury and the 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.” Jd. at 312.

Thus, Romero-Barcelo establishes that a court must engage in

traditional equitable balancing before issuing an injunction

for violation of an environmental statute, absent statutory

language limiting equitable discretion. Moreover, part of the

equitable balancing involves determining whether not

granting the injunction would result in irreparable injury.

Five years later in Amoco Production Company v. Village

of Gambell, supra, the Court considered the availability of

injunctive relief for a violation of Section 810 of the Alaska

Native C!xims Interest Lands Conservation Act (ANILCA),

16 U.S.C. § 3120, which protects Alaska Natives’ subsistence

use of federal lands. The Secretary of the Interior had granted

Amoco oil and gas leases in the Bering Sea on the outer

continental shelf of Alaska. The Native villages of Gambell

and Stebbins sued to enjoin the leases as issued in violation of

ANILCA for failure by the Secretary to consider the impact

of the leases on subsistence. The district court denied the

Native villages’ request for an injunction.

The Ninth Circuit reversed, and announced that “injunctive

relief is the appropriate remedy for a violation of an

environmental statute absent rare or unusual circumstances.”

People of Village of Gambell v. Hodel, 774 F.2d 1414, 1423

(9th Cir. 1985), rev’d sub nom, Amoco Production Company

v. Village of Gambell, 480 U.S. 531 (1987). It phrased its

rule, in effect, as a rebuttable presumption. The court found

that no unusual circumstances existed in the case, and that

injunctive relief was therefore appropriate, notwithstanding a

lack of probable irreparable harm to subsistence resources

from exploration, and the ability of the Secretary to comply

with ANILCA in future review of development and

production plans. The court of appeals explained its

rationale’® for the injunction:

Notwithstanding its determination that the Secretary

violated the procedural requirements of section 810(a) of

the Conservation Act, the district court denied the

Villages’ request for a preliminary injunction. The

district court’s ruling is not consistent with the law of

this circuit. An injunction is the appropriate remedy for a

substantive procedural violation of an environmental

statute. See Thomas v. Peterson, 753 F.2d 754, 764 (9th

Cir.1985). “Irreparable damage is presumed when an

agency fails to evaluate thoroughly the environmental

impact of a proposed action.” Save Our Ecosystems v.

Clark, 747 F.2d 1240, 1250 (9th Cir. 1984), In Save Our

Ecosystems v. Clark, we also noted that “fojnly in a rare

circumstance may a court refuse to issue an injunction

when it finds NEPA violation.” /d. at 1250.

Id. at 1422-1423.

the nature of the presumption of irreparable harm in NEPA cases which

then-existed in the Ninth Circuit: “The presence of strong NEPA claims

gives rise to more liberal standards for granting an injunction. (citations

omitted) The premise for relaxing the equitable tests in NEPA cases is

that irreparable damage may be implied from the failure of responsible

authorities to evaluate thoroughly the environmental impact of a proposed

federal action.” American Motorcyclist Ass'n v. Watt, 714 F,2d 962, 965-

66 (9th Cir. 1983).

Relying on Romero-Barcelo, the Court, in Village of

Gambell, overturned the Ninth Circuit’s decision. It squarely

rejected the court of appeals’ reliance on a presumption of

irreparable harm:

The Court of Appeals did not dispute that the Secretary

could meaningfully comply with ANILCA Section 810

in conjunction with his review of production and

development plans. Instead, the court stated that

“{i]rreparable damage is presumed when an agency fails

to evaluate thoroughly the environmental impact of a

proposed action.” (citations omitted) This presumption

is contrary to traditional equitable principles and has no

basis in ANILCA.

480 U.S. at 544-45 (quoting People of Village of Gambell v.

Hodel, 774 F.2d at 1423).

As NEPA contains no indication that Congress intended to

deny the courts traditional equitable discretion with respect to

remedial relief for its violation, a presumption of irreparable

harm, such as the court of appeals applied in the instant case,

is impermissible under Village of Gambell. Reliance on such

a presumption forecloses the full balancing of the equities

which is required for issuance of an injunction.

Some panels of the Ninth Circuit Court of Appeals which

have addressed the question of injunctive relief in the context

of NEPA litigation have followed the teaching of Village of

Gambell, and rejected the use of a presumption of irreparable

harm. For example, in Northern Cheyenne Tribe v. Hodel,

851 F.2d 1152, 1158 (9th Cir. 1988), the court of appeals held

that even where the permitted activities (mining) were going

ahead on the basis of a fundamentally flawed EIS, an

injunction would not issue automatically because nothing in

NEPA mandated such a restriction of judicial discretion:

“[NEPA’s] high aim ‘to create and maintain conditions under

which man and nature can exist in productive harmony,’ 42

U.S.C. 4331, does not show a congressional intent to

foreclose equitable balancing by a court enforcing its require-

ments.” In Fund for Animals, Inc. v. Lujan, 962 F.2d 1391,

1400 (9th Cir. 1992), the court of appeals held that “[mJerely

establishing a procedural violation of NEPA does not compel

the issuance of a preliminary injunction.” (Citing Sierra Club

v. Penfold, 857 F.2d 1307, 1318 (9th Cir. 1988)). See Alaska

Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d

723, 732 (9th Cir. 1995); Save the Yaak Committee v.

Block, 840 F.2d 714, 722 (9th Cir. 1988). See also Natural

Resources Defense Council v. Texaco Refining & Marketing,

Inc., 906 F.2d 934, 939-40 (3d Cir. 1990) (citing cases from

_ other circuits).

However, decisions within the circuit are not uniform.

Renegade Ninth Circuit decisions (including the decision in

the case at bar) exist which embrace a presumption of

irreparable harm, notwithstanding the Court's rejection of

Save Our Ecosystems’ presumption of irreparable harm in

Village of Gambell. Less than a year and a half after the

Court’s decision in Village of Gambell, the presumption of

irreparable harm began its resurrection in the Ninth Circuit.

In Conner v. Burford, 848 F.2d 1441, 1461 (9th Cir. 1988)

cert. denied, 489, U.S. 1012 (1989), the court of appeals

enjoined surface disturbing activities on oil and gas leases

until NEPA and the ESA were complied with, citing “Thomas

v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985) (injunction

appropriate remedy for violation of NEPA)... .” In Bob

Marshall Alliance v. Hodel, 852 F.2d 1223, 1230 (9th Cir.

1988), cert. denied, 489 U.S. 1066 (1989), the court of

appeals wrote that “the proper remedy for substantial pro-

cedural violations of NEPA and the ESA is an injunction,”

Id. at 1230. Like the court of appeals in Connor, the court in

Bob Marshall relied on Thomas v. Peterson, which was

decided before Village of Gambell. Id.; see also Forelaws on

Board v. Johnson, 743 F.2d 677, 685 (9th Cir. 1984), cert.

denied, 478 U.S. 1004 (1986).

In 1995, in Forest Conservation Council v. United States

Forest Service, 66 F.3d 1489, 1496 (9th Cir. 1995), the Ninth

Circuit again cited Thomas for the rule that injunctions re-

main the appropriate remedy for a violation of NEPA’s pro-

cedural requirements, “absent ‘unusual circumstances.’ ” |!

Inexplicably, in Forest Conservation Council, the court of

appeals cites as good law this Court’s summary in Village of

Gambell of Ninth Circuit cases which espoused the

presumption of irreparable harm (which this Court then goes

on to repudiate). Jd. Apparently, the court of appeals took

the Court’s language in Village of Gambell out of context.

Thus, the court of appeals in Forest Conservation Council

erroneously resurrects the Ninth Circuit rule on presumption

of irreparable harm—the rule that was specifically disavowed

by the Court in Village of Gambell.

The Ninth Circuit, in the case at bar, relies upon Forest

Conservation Council for the rule that injunctions remain the

proper remedy for NEPA violations absent unusual

circumstances. (App. 27a ).'? Hence, the phoenix is reborn as

the Ninth Circuit in this case relies on the rule, presumes

irreparable harm from procedural error, and orders issuance

of an injunction.'? (App. 26a-31a).

'' Thus, Forest Conservation Council continues the Ninth Circuit’s pre-

Village of Gambell practice of placing the burden on the party resisting an

environmental injunction to present evidence of “unusual circumstances.”

See, e.g., Alpine Lakes Protection Soc. v. Schlapfer, 518 F.2d 1089 (9th

Cir. 1975); American Motorcyclist Assoc. v. Watt, 714 F.2d 962 (9th

Cir. 1983).

’ 3ased upon the administrative record, the Ninth Circuit specifically

' found that “there is a sufficient possibility of environmental harm... .”

(App. 28a).

'3 Notwithstanding its reliance in the instant case on the presumption

of irreparable harm, the Ninth Circuit indicated its awareness of the

balancing requirements imposed by Village of Gambeil. In a footnote it

notes that courts are required to “undertake the traditional ‘balance of

harms’ analysis.” (App. 27a). Having thus nodded in the direction of this

—

The resurrection of the presumption of irreparable harm

has not gone unnoticed. In Friends of Mt. Hood v. United

States Forest Service, No. CV 97-1787 KI (D. Or. 2001) the

district court considered a preliminary injunction for an

alleged NEPA violation. A copy of the unpublished decision

is provided together with this petition. That court relied upon

the instant case and Thomas v. Peterson to conclude that

“fa}n injunction may be withheld or limited in scope in the

event of ‘unusual circumstances,’ otherwise an injunction is

the appropriate remedy for a violation of NEPA’s procedural

requirements.”"* Id. at 3. The conflict created by the Ninth

Circuit’s presumption of irreparable harm in NEPA cases

warrants review to conform it with the decisions of this

Court. '°

Il. THE NINTH CIRCUIT’S DECISION THAT

SPECULATIVE AND PROCEDURAL HARMS

CONS-TITUTES IRREPARABLE HARM FOR

PUR-POSES OF OBTAINING INJUNC-

TIVE RELIEF CONFLICTS WITH OTHER

CIRCUITS.

The Ninth Circuit’s decision also irreconcilably conflicts

with a number of decisions from other circuits, and even

some Ninth Circuit precedent that injunctive relief is an

Court’s rulings, the court of appeals, with a negligible factual record,

summarily states: “[w]e have fully weighed the competing interests using

our traditional equitable jurisdiction, and conclude that injunctive relief is

appropriate.” /d. ;

'4 The Ninth Circuit’s rules prohibit citation of unpublished authority.

Petititioner does not cite the case for precedential value, but rather to

show the impact of the Ninth Circuit's decision in the case at bar.

'SThe Court has not addressed the issue of injunctive relief with

respect, specifically, to NEPA. However in Village of Gambell the Court

specifically repudiated Save Our Ecosystems’ rule requiring a pre-

sumption of irreparable harm for environmental violations. Save Our

Ecosystems was a NEPA case.

extraordinary equitable remedy available only to prevent

actual or imminent irreparable harm, and that speculative

allegations of harm will not suffice. Furthermore, the court of

appeals in this case misreads case law from the First Circuit

to hold that procedural harm to the NEPA process warrants an

injunction.

The Second Circuit authorizes injunctive relief in NEPA

cases only where threatened irreparable harm is actual and

imminent. Town of Huntington v. Marsh, 884 F.2d 648, 652

(2nd Cir. 1989), cert. denied, 494 U.S. 1004 (1990); see also

Knowles v. United States Coast Guard, 924 F. Supp. 593, 602

(S.D.N.Y. 1996). (“The Second Circuit has described

irreparable harm as injury that ‘is likely and imminent, not

remote or speculative, and that . . . is not capable of being

fully remedied by money damages.”) The Second Circuit

addressed the issue of irreparable injury under NEPA in State

of New York v. Nuclear Regulatory Commission, 550 F.2d

745 (2nd Cir. 1977) where it refused to enjoin air shipment of

nuclear materials for an alleged violation of NEPA. The

Second Circuit concluded that the alleged environmental

harm, the release of radioactive materials into the

environment as a result of an accident or terrorism, was not

an actual or imminent threat. In contrast to the case at hand,

the Second Circuit wrote: “[t]he status quo is destroyed when

trees are cut, forests are stripped, soil eroded, and natural

wildlife habitat destroyed. The status quo is not destroyed

when an aircraft transporting [nuclear materialsj rushes down

the runway and becomes airborne.” /d. at 755. See also

Sierra Club v. United States Forest Service, 843 F.2d 1190,

93-95 (9th Cir. 1988) (clear-cut logging of groves of giant

sequoias); Portland Audubon Society v. Lujan, 795 F. Supp.

1489, 1508 (D. Ore. 1992), aff'd sub nom. Portland Audubon

Society v. Babbitt, 998 F.2d 705 (9th Cir. 1993) (“Old growth

forests are lost for generations, and no amount of monetary

compensation can replace the environmental loss.”). Thus,

even in environmental litigation, “a threat of irreparable

injury must be proved, not assumed, and may not be

postulated eo ipso on the basis of the procedural violations of

NEPA.” Town of Huntington v. Marsh, 884 F.2d at 652.

The court of appeals’ decision in this case bypasses the

fundamental requirement that the harm to be enjoined must

be actual and imminent, rather than speculative. In doing so,

it has diverged from the other circuits, and some Ninth

Circuit precedent. That precedent holds that while it is not

necessary to establish irreparable harm with scientific

certainty, it is well settled that “a plaintiff must do more than

merely allege imminent harm sufficient to establish standing;

a plaintiff must demonstrate immediate threatened injury as a

prerequisite to preliminary injunctive relief.” Caribbean -

Marine Services Co. v. Baldridge, 844 F.2d 668, 674 (9th

Cir. 1988). In its opinion the court of appeals in this case

mischaracterized the test from Alaska Wilderness, 67 F.3d at

732, for whether an EIS is required, ic. “when some

proposed project may significantly degrade some human

environmental factor,” as the test for whether an injunction is

appropriate. (App. 26a). In so doing, the court of appeals

substituted a speculative standard for the requirement that

irreparable harm be actual and imminent.

In addition, the court of appeals mistakenly found support

for its ruling in the First Circuit's decision in Sierra Club v.

Marsh, 872 F.2d 497 (ist Cir. 1989), which it cited for the

proposition that “the requisite harm is the failure to follow the

appropriate procedures.” (App. 27a). However, in Sierra

Club, then-Judge Breyer made it clear that the concer in

NEPA violations was “harm to the environment,” not a

“purely legalistic” form of “procedural” harm, that arises

automatically when a NEPA violation occurs. Sierra Club v.

Marsh, 872 F.2d at 504. Thus, the First Circuit required that

courts examine whether the harm to the environment from the

NEPA violation is irreparable. Jd. at 503-04. Contrary to the

reading given it by the Ninth Circuit, Sierra Club rests on

harm to the environment that occurs because of what Judge

Breyer called the “bureaucratic steam roller effect,” i.e.

_increased risk that a project will not receive full scrutiny if

constructed without full NEPA compliance, owing to the

“deeply rooted human psychological instinct not to tear down

projects once they are built.” Jd. at 504.

Not only did the court of appeals misread Sierra Club to

hold that procedural harm suffices for a injunction, the court

ignored circumstances in the instant case, as well as limi-

tations to the First Circuit’s rule, that would have foreclosed

issuance of the injunction in this case in the First Circuit. The

First Circuit has recognized that attempting to avoid bureau-

cratic commitment and momentum by enjoining activities

authorized under a defective NEPA document does not make

sense where the injunction requested would not be granted for

years after those activities have been authorized, precisely the

circumstances of the instant case. Conservation Law Foun-

dation v. Busey, 79 F.3d 1250 (1st Cir. 1996). Moreover, the

VMP at issue here is not a physical structure that would

implicate bureaucratic commitment; it is a modifiable set of

legal restrictions on ongoing activities of private parties.

Indeed, under the VMP, the Park Service retains the authority

to alter restrictions at any time if vessel entries prove to

injure the environment. 36 C.F.R. § 13.65(b)(v)(D) and (ix).

Other circuits have also misinterpreted the First Circuit

decisions to presume irreparable harm from procedural

violations of NEPA regardless of the environmental conse-

quences. Ross v. Federal Highway Administration, 162 F.3d

1046, 1054 (10th Cir. 1998) (“Courts have routinely recog-

nized the appropriateness of injunctive relief requiring the

preparation or completion of an EIS or SEIS”); Hirt v.

Richardson, 127 F. Supp. 2d 833 (W.D. Mich. 1999); State of

Wisconsin v. Weinberger, 745 F.2d 412, 432-33 (7th Cir.

1984)(Cudahy, J. dissent) (NEPA does indeed presume that

an injunction should issue in an ordinary NEPA violation

case”). Commentators have also read the First Circuit’s

decisions as support for the proposition that proof of actual

harm to the environment is not required in NEPA cases. See

Rubenstein, /njunctions Under NEPA After Weinberger v.

Romero-Barcelo and Amoco Production Co. v. Village of

Gambell, 5 Wis. Environmental L. J. (1988); Hermann,

Injunctions for NEPA Violations: Balancing the Equities, 59

U. Chicago L. Rev. 1263 (1992).

The court of appeals’ decision in this case conflicts with

the traditional requirements for injunctive relief that the harm

to be prevented must be actual, imminent, and irreparable.

The decision is also an unwarranted expansion of the First

Circuit’s holding in Sierra Club v. Marsh.

Ill. THE STANDARDS AND PROCEDURES FOR

INJUNCTIVE RELIEF IN NEPA CASES

PRESENT AN EXTREMELY IMPORTANT

QUESTION.

Almost 20 years after Romero-Barcelo, private parties

affected by a NEPA challenge still face an ad hoc procedure

for litigating injunctive relief in environmental litigation.

This case well illustrates that point. NPCA, plaintiff below,

sought injunctive relief within its complaint, but never placed

the question of an injunction squarely at issue before the

district court, because it never asked the district court for a

temporary restraining order or preliminary injunction. The

district court focused on the merits of the NEPA claim, and

did not reach the question of injunctive relief. NPCA,

therefore, was never required by the district court to prove its

case for permanent injunctive relief.

On appeal, NPCA again focused upon the merits, i.e. the

Park Service’s decision to rely upon the environmental

assessment. NPCA was not required to produce any evidence

of irreparable harm to either the environment or the Park

Service’s decision-making process. In an abundance of

caution, petitioner did submit the Park Service’s annual

studies of humpback whale populations in Glacier Bay for

1996-1999, which showed a “statistically significant”

increasing trend in whale populations in recent years. In its

opinion, the court of appeals recognized that “where the

question of injunctive relief ‘raises intensely factual issues,’

the scope of the injunction should be determined in the first

instance by the district court.” (App. 29a). The court,

however, was wrong in concluding that this case did not raise

such factual issues. /d. Here, there was a five year history of

actual operations that should have been fully considered in

the balancing process. Yet, the totality of the “hearing” on

injunctive relief before the court of appeals boiled down to 10

minutes of appellate argument with no ability to present

evidence. The only evidence the court appeared to deem

relevant in deciding that injunctive relief was appropriate was

stale, documentary evidence from an administrative record

over five years old.’

NEPA litigation is usually contentious, expensive, and

often affects millions of dollars. Litigants should not be

made to guess as to the procedure to be used for injunctive

relief. Rather, injunctions should be issued only after an

'° This litigation demonstrates why a remand to the district court for a

full evidentiary hearing should be required. Petitioner submitted the

evidence concerning the humpback whales because NPCA had focused on

that species in its arguments, and because, historically, the Park Service

regulations had been developed largely due to the agency's concern over

the effects of vessels on that particular species. However, given the

application of the Ninth Circuit's presumption “absent unusual

circumstances”, which shifts the burden of proof to the party resisting

entry of an injunction in NEPA cases, when the Ninth Circuit reversed the

district court on the district court’s conclusion that there was no NEPA

violation, petitioner was penalized for not presenting factual evidence to

the court of appeals on the full effect of the entries, including their effect

on all wildlife species. As a result, whenever a litigant appeals a district

court's decision that no NEPA violation occurred, the affected party must

adduce all of its evidence to the court of appeals in the event that decision

is reversed.

evidentiary hearing and proper findings of fact are entered.

In this case, neither happened. The Court should grant

certiorari to establish the proper standards and procedure for

injunctions in NEPA cases.

CONCLUSION

Almost fifteen years has passed since the Court has

addressed the question of injunctive relief in the context of

environmental litigation. Since NEPA itself does not provide

remedies for its violation, the fashioning of such remedies is

exclusively left to the judiciary. The lower courts have

adopted a myriad of approaches to consideration of

injunctions in the face of a NEPA violation. There is a need

for consistency among the courts on this issue, which

potentially affects so many individuals and businesses, like

petitioner, whose activities are regulated by the federal

government and subject to NEPA. Clarification of the scope

and standards for remedial relief for a violation of NEPA is

required to ameliorate the uncertainty and confusion which

now exists. The petition for certiorari should be granted.

Respectfully submitted,

CYNTHIA PICKERING CHRISTIANSON *

(Counsel of Record)

GARY SPRAKER Attorney at Law

BUNDY & CHRISTIANSON 911 West 8th Avenue,

911 West 8th Avenue Suite 302

Suite 302 Anchorage, Alaska 99501

Anchorage, Alaska 99501 (907) 276-7735

(907) 258-6016

Counsel for Petitioner

September 2001

APPENDICES

aE Pints

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed February 23, 2001]

Nos. 99-36065

99-36094

D.C. No. CV-97-00456-JKS

NATIONAL PARKS & CONSERVATION ASSOCIATION,

Plaintiff-Appellant-Cross-Appellee,

Vv.

BRUCE BABBITT,

Secretary, United States Department of the Interior;

ROBERT STANTON, Director, National Park Service,

Defendants-Appellees,

and

HOLLAND AMERICA LINE-WESTOURS,

Defendant-Intervenor-Appellee-Cross-Appellant.

Appeal from the United States District Court for the District

of Alaska James K. Singleton, District Judge, Presiding

”

‘

sed

‘4

Argued and Submitted

July 31, 2000—-Anchorage, Alaska

OPINION

Before: Dorothy W. Nelson, Stephen Reinhardt, and Sidney

R. Thomas, Circuit Judges. Opinion by Judge Reinhardt

REINHARDT, Circuit Judge:

Glacier Bay National Park and Preserve is a place of

“unrivaled scenic and geological values associated with

natural landscapes” and “wildlife species of inestimable value

to the citizens.” The Bay was proclaimed a national

monument in 1925 and a national park in 1980. UNESCO

designated Glacier Bay an international biosphere reserve in

1986 and a world heritage site in 1992.

Not surprisingly, many people wish to visit the park. As

there are no roads to Glacier Bay, most tourists arrive by

boat. To be more specific, most—approximately 80% of the

parks visitors—arrive on large, thousand-passenger cruise

ships. In 1996 the National Park Service (Parks Service)

commenced implementation of a plan that increased the

number of times cruise ships could enter Glacier Bay each

summer season immediately by 30% and overall by 72% if

certain conditions were met. In its environmental assess-

ments, the Parks Service acknowledged that this plan would

expose the parks wildlife to increased multiple vessel

encounters, noise pollution, air pollution, and an increased

risk of vessel collisions and oil spills. The Parks Service also

acknowledged that it did not know how serious these dangers

to the environment were, or whether other dangers existed at

all. Nevertheless, declaring that its plan would have “no

significant impact” on the environment, the Parks Service put

it into effect with out preparing an environmental impact

statement (EIS).

The plaintiff National Park and Conservation Association

(NPCA), a nonprofit citizen organization, alleges that the

Parks Services failure to prepare an EIS violated the National

Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.

It seeks an order requiring the Parks Service to prepare an

EIS and enjoining implementation of the plan pending its

completion. The district court ruled that an EIS was not

required because the Parks Service had made its findings after

adequately “canvassing the existing knowledge base.” We

reverse the district court’s ruling and remand with

instructions to enjoin the plan’s increases in vessel traffic,

including any portion already put into effect, until the Parks

Service has completed an EIS.

FACTUAL AND PROCEDURAL HISTORY

There may be no place on Earth more spectacular than the

Glacier Bay. Located in the Alaskan panhandle, surrounded

by snow-capped mountain ranges, Glacier Bay extends sixty

miles inland and encompasses ten deep fjords, four of which

contain actively calving tidewater glaciers, and approximately

940 square miles of “pristine” marine waters. The air quality,

though fragile, is still unspoiled and permits those fortunate

enough to be visitors a crisp, clear view of the Bay with its

glacier faces as well as the opportunity to breathe the fresh

and invigorating air. The park is the habitat for an

extraordinary array of wildlife. On the land, pioneer plant

communities grow in areas recently exposed by receding

glaciers. Moose, wolves, and black and brown bears roam the

park’s spruce and hemlock rain forest. Bald eagles, kitti-

wakes, murrelets, and other seabirds nest along the shore; sea

otters, harbor seals, Steller sea lions, harbor and Dall’s por-

poises, minke, killer, and humpback whales reside in the bay.

The Steller sea lion and the humpback whale, two of the

marine mammal species that inhabit Glacier Bay, are

imperiled. The Steller sea lion was listed as a threatened

species under the Endangered Species Act (ESA), 16 U.S.C.

1531 et seqg., in 1990. The worldwide population of the

species declined by as much as 48% in the thirty years prior

to 1992.' Glacier Bay has several “haul-out” sites where

hundreds of Steller sea lions gather. The humpback whale,

“the most gamesome and lighthearted of all the whales,”

Herman Melville, Moby Dick, 123 (Harrison Hayford &

Hershel Parker, eds.. W.W. Norton & Co. 1967) (1851), has

been listed as an endangered species since the enactment of

the ESA in 1973. Until a moratorium was instituted in 1965,

-' In 1997 the Steller sea lion was reclassified, for the worse, as an

endangered species. Greenpeace v. Natl Marine Fisheries Serv., 80 F.

Supp. 2d 1137, 1139 (W.D. Wash. 2000).

commercial whaling decimated the worldwide population of

humpback whales. Today only 10,000 to 12,000 remain.” A

subpopulation of humpbacks spends the summer feeding

season in southeast Alaska, including the waters of Glacier

Bay; other humpbacks remain there throughout the year.

Watercraft—cruise ships, tour boats, charter boats, and

private boats—provide primary access to Glacier Bay’s

attractions. Approximately 80% of the park’s visitors are

cruise ship passengers. According to the Parks Service’s

environmental assessment, the “key attraction of the visit to

Glacier Bay . . . [is] [t]he glaciers at the head of the West

Arm [of the Bay.] [They] are larger, more active, and

considered by the [cruise-ship] companies to offer a more

spectacular experience.” > The ships linger at the glaciers

from between fifteen minutes to an hour and provide a large,

high viewing platform from which to witness the crack and

crash of the great ice masses as they cast off huge shards of

floating ice. Although the ships’ height permits an un-

obstructed view of the parks geologic features, it limits close

views of the wildlife and vegetation that form such a

significant feature of the park.

Between 1968 and 1978, vessel traffic in Glacier Bay

increased dramatically. In 1978 the U.S. National Marine

2 In 1991 the U.S. National Marine Fisheries Service (Fisheries

Service) established a Final Recovery Plan for the humpback. The plan

sets a long-term goal of restoring 60% of the species’s pre-whaling

population (about 125,000) and a more immediate goal of maintaining and

enhancing “current or historical habitats used by humpback whales by

reducing disturbance from human-produced underwater noise in important

habitats when humpback whales are present and [encouraging] govern-

ment entities at all levels to correct existing impacts on habitats of

humpback whales.”

3 To get there, cruise ships cross the entrance to the Bay and traverse its

western bank, both areas particularly frequented by humpback whales. See

Christine M. Gabriele, Population Characteristics of Humpback Whales in

Glacier Bay and Adjacent Waters 9 (1994).

Fisheries Service (Fisheries Service) produced a “biological

opinion” based on its studies of the humpback whale

population in Glacier Bay. The biological opinion expressed

concern over the “uncontrolled increase of vessel traffic” in

the whales’ departure from the Bay during 1978 and 1979,

and cautioned that a continued increase in the amount of

vessel traffic “would likely jeopardize the continued

existence of the humpback whale population frequenting

southeast Alaska.” The Fisheries Service recommended that

the Parks Service regulate the number of vessels entering

Glacier Bay; restrict vessels from approaching and pursuing

whales; and conduct studies on whale feeding behavior, the

effect of vessels on whale behavior, and the acoustic

environment.‘

The Parks Service soon thereafter promulgated regulations

governing the entry and activity of cruise ships and other

vessels in Glacier Bay. The regulations provided that only

two cruise ships could enter the bay each day, with a

maximum of 89 cruise ship entries between June 1 and

August 31. Smaller boats, designated “private/pleasure craft,”

were limited to twenty-one entries per day with a seasonal

maximum of 538 entries. Vessels were prohibited from

intentionally positioning themselves within a quarter of a

nautical mile of a whale or attempting to pursue a whale.

Within “designated whale waters,” vessels had to operate at a

constant speed of ten knots or less and follow a mid-channel

course.

* The acoustic environment appears to be very important to humpback

whales. As many a schoolchild is aware, humpbacks produce a variety of

sounds, including moans, grunts, screams, and long complex “songs.”

According to the Parks Service, “[pjostulated functions for whale

vocalizations include maintenance of distance among individuals, species

and individual recognition, maintenance of social organization,

localization of underwater topography, and contextual information about

feeding, court-ship, or alarm.”

In 1983 the Fisheries Service issued a second biological

opinion, which concluded in part:

[If the existing restrictions on the operation of vessels

within the Bay were removed, the associated disturbance

would be likely to jeopardize the continued existence of

the Southeast Alaska humpback whale stock... . [A]ny

increase in vessel traffic in Glacier Bay probably will

add to the level of traffic encountered by humpback

whales in southeast Alaska, and thereby add to

cumulative impacts to the humpback whale.

Nevertheless, the Fisheries Service opinion stated that a

slight in crease in vessel traffic was tolerable, provided that

the number of individual whales entering the bay did not fall

below the 1982 level and that appropriate corrective measures

were taken. Accordingly, in 1984 the Parks Service promul-

gated a Vessel Management Plan (VMP) and regulations that

pro-vided for a 20% increase, in increments, in the previously

authorized vessel entry quotas. This overall increase—

allowing for a total of 107 cruise ship entries per season—

was fully realized in 1988.

In September 1992 the Parks Service completed an internal

draft of anew VMP that proposed to increase the then current

level of cruise ship entries in Glacier Bay by an additional

72%. On February 19, 1993, the Fisheries Service issued a

third biological opinion expressing its concern “about the

decline in humpback whale use of Glacier Bay,” and stating

that there were “no studies to show that this decline is not due

to avoidance of vessel traffic.” Although the Fisheries Service

did not oppose the draft VMP, it urged the Parks Service “to

take a conservative approach in all management actions that

may affect humpback whales” and to implement particular

research and monitoring programs.” The Fisheries Service

5 “Because there has not been systematic monitoring of humpback

whale prey density, distribution and type, and noise produced by vessels,

did not find that the Parks Service’s proposed action was

“likely to jeopardize the continued existence and recovery “of

Steller sea lions.

As mandated by NEPA, the Parks Service investigated

whether a substantial cruise-ship increase would significantly

affect the environment in Glacier Bay. See 42 U.S.C.§

4332(2)(C); 40 C.F.R. § 1508.27. In May 1995 the Parks

Service issued a combined proposed VMP and environmental

assessment (EA). An EA is a document that, under NEPA, (1)

provides “sufficient evidence and analysis for determining

whether to prepare an environmental impact statement or a

finding of no significant impact;” (2) aids an agency’s

compliance with NEPA when no EIS is necessary; and (3)

facilitates preparation of an EIS when one is necessary.

40 C.F.R. § 1508.9(a). An EA is a “less formal and less

rigorous” document than an EIS. Conner v. Burford, 848

F.2d 1441, 1446 (9th Cir. 1998),

The combined VMP/EA reported the existence of environ-

mental questions that went far beyond the potential impact on

the humpback whales. It also described and assessed six

alternative approaches for managing vessels in Glacier Bay,

ranging from Alternative Four’s reduction in vessel traffic by

between 14% and 22%, to Alternative One’s maintenance of

the status quo, to Alternative Five’s increase of cruise ship

entries by 72%. Notwithstanding the environmental problems

it is impossible to ascribe whale distribution shifts to one cause or another.

However, it is [the Fisheries Service’s] opinion that for the next three sea-

sons (1993, 1994, and 1995), the levels of vessel use combined with

vessel operation requirements as described in the September 25, 1992,

Vessel Management Plan and environmental assessment are not likely to

jeopardize the continued existence of the North Pacific population of

humpback whales.” This opinion did not consider the localized effects of

the pro-posed action on the portion of the North Pacific whale population

that actually uses Glacier Bay, nor did it address possible effects that were

significant but less than likely to jeopardize the population’s continued

existence.

it recognized, the Parks Service expressed its preference for

Alternative Five. This alternative maintained the limit of two

cruise ship entries per day, but increased the total number of

seasonal entries from 107 to 184.° It did not increase seasonal

entries for other vessels.

The Parks Service conducted six public hearings on the

VMP. The Parks Service received approximately 450

comments, approximately 85% of which opposed Alternative

Five and favored Alternative Four. The Sierra Club, the

Alaska Wildlife Alliance, and the plaintiff NPCA spoke out

against Alternative Five at the hearings, and submitted expert

opinion and evidence in opposition to the Parks Services

findings. On March 20, 1996, the Parks Service announced its

decision to implement a modified version of Alternative Five

as its new VMP. Under this modified plan, the seasonal entry

quota for cruise ships would increase by 30% for 1996 and

1997, and by as much as 72% thereafter if certain conditions

were met. Also, the entry quotas for charter boats and

private/pleasure craft would increase by 8% and 15%,

respectively. An accompanying revised EA, titled “Impacts of

the Modified Alternative,” discussed the effects of the new

VMP on threatened and endangered marine mammals, other

marine mammals, birds, and the human environment,

including air quality.

The revised EA included the following observations:

increased vessel traffic and its related disturbance. Little

is known about the effects of the disturbance.”

seal, harbor porpoise, Dalls porpoise, humpback whale,

® The EA identifies the “season” as lasting from June 1 through

August 31. The proposed increase permits vessel entries every day of the

season. Accordingly, under Alternative Five, there will be thirty-eight

more days of vessel traffic each season. ,

killer whale, and minke whale to “increased levels of

disturbance,” causing the animals to expend energy

reserves and possibly compromising “the survival and

reproduction of individual animals.” In addition, “the

potential for daily and seasonal exposure of humpback

whaies to underwater noise would increase.” “The effect

of increased levels of disturbance” on these cetacean

populations, it concluded, was “unknown.”

e Marine mammals “using open-water habitats would be

subject to increased vessel traffic and its related

disturbance. However, little is known about the effects

of the disturbance.” The risk of vessels colliding with

marine mammals would increase, although “the degree

of increase is unknown.” Similarly, there would be an

increased risk of ship collisions, other accidents, and

associated fuel spills. “The rate of actual spills could

increase, but the degree of increase in unknown.”

e “The degree to which disturbance and displacement

would affect the humpback whale populations in Glacier

Bay is unknown. Several mitigation measures imple-

mented under this alternative would reduce the risk of

whale/vessel interactions and the level of potential

effects on individual whales. The implementation of oil-

spill response plans by the cruise ship industry could

reduce oil spill risks to individual whales.”

e It was “unknown” whether populations of Marbled

Murrelets and Kittlitz Murrelets would change under the

VMP.

e “The overall effect on bald eagle populations is

unknown.”

e “It is unknown if waterfowl populations would change

under this alternative.”

10a

Finally, the revised EA acknowledged that the increase in

cruise ship entries would “result in more violations of state air

quality standards,” but stated that the “biological effects of

these air pollutants from stack emissions are unknown.”

At the same time it released its revised VMP and BA,’ the

Parks Service also released a proposed Finding of No

Significant Impact (FONSI). As its title suggests, a FONSI

states the reasons why an agency’s proposed action will not

have a significant effect on the environment and, therefore, it

believes that the preparation of an EIS is unnecessary under

NEPA. See 40 C.F.R. § 1508.13. The Parks Services Glacier

Bay FONSI stated, in relevant part:

The [Parks Service] has determined that the modified

alternative [Five] . . . can be implemented with no

significant adverse effect to natural and cultural

resources as documented by the environmental

assessment. Key environmental issues associated with

the modified alternative include effects on marine

mammals and birds from vessel disturbance and air

quality degradation from cruise ship stack emissions.

Some disturbance to these resources would be expected.

However, the mitigation strategies included in this action

would significantly reduce environmental effects

resulting from vessel entries.

The NPCA submitted objections to the VMP/EA and the

FONSI on April 19, 1996. The Parks Service

adopted the VMP/EA and issued its FONSI and final

regulations on the plan on May 30. See 61 Fed. Reg. 27,008,

codified at 16 C.F.R. 13.65(b).

On May 2, 1997, the NPCA filed suit against Secretary

Babbitt and Dennis J. Galvin, Acting Director of the Parks

7 ‘The revised VMP and EA will hereinafter be referred to simply as the

VMP and BA. :

tla

Service. The NPCA requested declaratory and injunctive

relief requiring the Parks Service “to rescind the new VMP

and prohibiting any activities to be conducted pursuant to

these rules until such time as [the Parks Service has]

complied with NEPA by preparing an adequate EIS for use in

evaluating the new VMP before reimplementing it.” Holland

America Line-Westours, Inc. (““Westours”), one of the two

major cruise ship operators in Glacier Bay, intervened as a

defendant pursuant to Federal Rule of Civil Procedure 24(a).

The NPCA, the Parks Service, and Westours each filed

motions for summary judgment. On August 24, 1999, the

district court issued an order denying NPCAs motion,

granting the Parks Services motion, and denying Westours’s

motion as moot. The court observed that the EA made it

“fairly clear that interactions between whales and vessels

might be seriously disruptive to wildlife residing in the Park.”

It also acknowledged “that the effects cruise ship operations

have on Glacier Bay National Park and the animals that live

there are unknown, either before ship operations increased or

since,” and that the “Modified Alternative Description{[EA]

attached to the FONSI contains a long list of uncertainties

about the potential effects of increased vessel traffic.” While

it proposed that further studies be conducted, it determined

that the existence of the numerous uncertainties was not

sufficient to require an EIS. “The EA in this case,” the district

court wrote, “thoroughly canvasses all existing information

and recognizes that theoretical harms might occur, but

concludes that there is no evidence suggesting that a sig-

nificant risk exists that the harms will occur.” It concluded:

[A] modest increase in the number of visitors may be

allowed while the studies are commissioned and the

existing data base increased with care taken through

ameliorization [sic] to recognize and eliminate problems

as they arise.

12a

The district court granted the Parks Service’s cross-motion

for summary judgment and dismissed the case. The NPCA

appealed, and Westours cross-appealed.

ANALYSIS

I. THE PARKS SERVICE VIOLATED NEPAA.

A. Standard of Review

We review a district courts decision to grant or deny a

motion for summary judgment de novo. Metcalf v. Daley, 214

F.3d 1135, 1141 (9th Cir. 2000) (citation omitted). In

reviewing an agency’s decision not to prepare an EIS under

NEPA, we employ an arbitrary and capricious standard, Blue

Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208,

1211 (9th Cir. 1998), cert. denied, 527 U.S. 1003 (1999), that

requires us to determine whether the agency has taken a “hard

look” at the consequences of its actions, “based [its decision]

on a consideration of the relevant factors,” id., and provided a

“convincing statement of reasons to explain why a project’s

impacts are insignificant.” Metcalf, 214 F.3d at 1142.

B. Environmental Assessment

[1] NEPA requires that an Environmental Impact

Statement (EIS) be prepared for all “major Federal actions

significantly affecting the quality of the human environment.”

42 U.S.C.A. § 4332(2)(C). However, if, as here, an agency’s

regulations do not categorically require the preparation of an

EIS, then the agency must first prepare an Environmental

Assessment (EA) to determine whether the action will have a

significant effect on the environment. See 40 C.F.R. § 1501.4;

Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346,

1356 (9th Cir. 1994). If the EA establishes that the agency’s

action “may have a significant effect upon the. . .

environment, an EIS must be prepared.” Foundation for N.

Am. Wild Sheep v. United States Dep’t of Agric., 681 F.2d

1172, 1178 (9th Cir. 1982) (emphasis added); see also Blue

13a

Mountains, 161 F.3d at 1212. If not, the agency must issue a

Finding of No Significant Impact (FONSI, see Blue

Mountains, 161 F.3d at 1212; 40 C.F.R. §§ 1501.4, 1508.9,

acconipanied by “‘a convincing statement of reasons’ to

explain why a projects impacts are insignificant.” Blue

Mountains, 161 F.3d at 1212 (quoting Save the Yaak Comm.

v. Block, 840 F.2d 714, 717 (9th Cir. 1988).

[2] Whether there may be a significant effect on the

environment requires consideration of two broad factors:

“context and intensity.” See 40 C.F.R. § 1508.27; 42 U.S.C.

§ 4332(2)(C); see also Sierra Club v. United States Forest

Serv., 843 F.2d 1190, 1193 (9th Cir. 1988).° Context simply

* “Significantly” as used in NEPA requires considerations of both con-

text and intensity:

(a) Context. This means that the significance of an action must be

analyzed in several contexts such as society as a whole (human,

national), the affected region, the affected interests, and the locality.

Significance varies with the setting of the proposed action. For

instance, in the case of a site-specific action, significance would

usually depend upon the effects in the locale rather than in the world

as a whole. Both short- and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible

officials must bear in mind that more than one agency may make

decisions about partial aspects of a major action. The following

should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A

significant effect may exist even if the Federal agency believes

that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health

or safety.

(3) Unique characteristics of the geographic area such as

proximity to historic or cultural resources, park lands, prime

farmlands, wetlands, wild and scenic rivers, or ecologically

critical areas.

l4a

delimits the scope of the agency’s action, including the

interests affected. Intensity relates to the degree to which the

agency action affects the locale and interests identified in the

context part of the inquiry. Here, the context is Glacier Bay

National Park, its natural setting, its variegated non-human

inhabitants, and its pure but fragile air quality; intensity must

be established in this case by using three of the standards

enumerated in § 1508.27: (1) the unique characteristics of the

geographic area; (2) the degree to which VMP Alternative

Five’s possible effects on the human environment are highly

(4) The degree to which the effects on the quality of the human

environment are likely to be highly controversial.

(5) The degree to which the possible effects on the human

environment are highly uncertain or involve unique or unknown

risks.

(6) The degree to which the action may establish a precedent for

future actions with significant effects or represents a decision in

principle about a future consideration.

(7) Whether the action is related to other actions with

individually insignificant but cumulatively significant impacts.

Significance exists if it is reasonable to anticipate a cumulatively

significant impact on the environment. Significance cannot be

avoided by terming an action temporary or by breaking it down

into small component parts.

(8) The degree to which the action may adversely affect districts,

sites, highways, structures, or objects listed in or eligible for

listing in the National Register of Historic Places or may cause

loss or destruction of significant scientific, cultural, or historical

resources.

(9) The degree to which the action may adversely affect an

endangered or threatened species or its habitat that has been

determined to be critical under the Endangered Species Act of

1973.

(10) Whether the action threatens a violation of Federal, State, or

local law or requirements imposed for the protection of the

environment.

40 C.F.R. § 1508.27.

15a

uncertain; and (3) the degree of controversy surrounding

those possible effects. The unique characteristics of Glacier

Bay are undisputed and of overwhelming importance.

Accordingly, we next consider the agency’s determination in

light of the degree of uncertainty manifested, and the degree

of controversy generated. Either of these factors may be

sufficient to require preparation of an EIS in appropriate

circumstances. Sierra Club, 843 F.2d at 1193, 1194; Blue

Mountains, 161 F.3d at 1212-14. In the end, we conclude that

the Parks Service clearly erred and that the high degree of

uncertainty and the substantial controversy regarding the

effects on the quality of the environment each necessitates

preparation of an EIS.

C. Uncertainty

[3] An agency must generally prepare an EIS if the

environmental effects of a proposed agency action are highly

uncertain. See Blue Mountains, 161 F.3d at 1213 (“significant

environmental impact” mandating preparation of an EIS

where “effects are ‘highly uncertain or involve unique or

unknown risks’ ”).” Preparation of an EIS is mandated where

uncertainty may be resolved by further collection of data, see

id, at 1213-14 (lack of supporting data and cursory treatment

of environmental effects in EA does not support refusal to

produce EIS), or where the collection of such data may

prevent “speculation on potential . . . effects. The purpose of

an EIS is to obviate the need for speculation by insuring that

available data are gathered and analyzed prior to’ the

implementation of the proposed action.” Sierra Club, 843

F.2d at 1195.

* Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir. 1993), is not

to the contrary. There the court simply noted that the cases cited did “not

stand for the proposition that the existence of uncertainty mandates the

preparation of an impact statement.” 14 F.3d at 1334 nll. Blue

Mountains has since filled that gap. 161 F.3d at 1213-14.

16a

[4] Here, scientific evidence presented in the Parks Ser-

vice’s own studies revealed very definite environmental

effects. The uncertainty was over the intensity of those

effects. The FONSI reported increased daily and seasonal

exposure of humpback whales and other denizens of the Bay

to underwater noise (and predicted a range of adverse

behavioral responses), “traffic effects” (including increased

risk of collision, affecting whales, harbor seals, sea otters,

murrelets, and molting waterfowl), and increased risk of oil

pollution for all animal life in the Park. An increase in cruise

ships would also “result in more violations of state air quality

standards for cruise ship stack emissions.” " Among the

specific effects set forth in the VMP/EA upon which the

FONSI was based were that increased vessel entry into the

Bay would: subject stellar sea lions to additional disturbance;

increase the escape patterns of various types of whales;

potentially increase mortality rates and change the social

patterns of the harbor seal; preclude sea otters from

colonizing the upper Bay; and increase disturbance of feeding

murrelets, other seabird nesting colonies, and bald eagles.

[5] The EA describes the intensity or practical

consequences of these effects, individually and collectively,

as “unknown.” See pages 2425-2427, supra. The uncertainty

manifested through the EA stems from two sources: an

absence of information about the practical effect of increased

traffic on the Bay and its inhabitants; and a failure to present

adequate proposals to offset environmental damage through

mitigation measures. The lack of data regarding the practical

effect of increased traffic, like the failure to investigate

0 The initial EA reported that “[t]he airsheds of the steep-walled fjords

of Glacier Bay are susceptible to visible stack emissions becoming

trapped by temperature inversions and light winds. . . [T]he tolerance for

air pollution in Glacier Bay is extremely low.” In a study conducted in

1986 and 1987, 25 of 77 cruise ships’s emissions were over twice the

permitted duration.

17a

environmental impacts in Blue Mountains, 161 F.3d at 1213,

undermines “[t}he [Parks Services] EA . . . [which] is where

the [agency’s] defense of its position must be found.” /d. That

document states that “[l]ittle is known about the effects of the

[cruise ship] disturbance” on steller sea lions; “[t]he effect of

increased levels of disturbance” on Glacier Bay’s cetacean

populations is “unknown”; and “the degree of increase [in oil

spills as a result of increased traffic] is unknown.” It also

states that the effect of noise and air pollution on murrelets,

bald eagles, and waterfowls remains “unknown” because

unstudied. Moreover, the extent to which air pollution will

diminish the beauty and quality of the natural environment is

also unknown.'' The Parks Services EA does, however,

establish both that such information may be obtainable and

that it would be of substantial assistance in the evaluation of

the environmental impact of the planned vessel increase. The

EA proposes a park research and monitoring program to “fill

information needs, and understand the effects of vessel traffic

on air quality, marine mammals [and] birds . . . to assist in the

prediction, assessment, and management of potential effects

on the human, marine, and coastal environments of Glacier

Bay resulting from human use of the environment with

particular emphasis on traffic.” That is precisely the

information and understanding that is required before a

decision that may have a significant adverse impact on the

environment is made, and precisely why an EIS must be

prepared in this case.

The Parks Service proposes to increase the risk of harm to

the environment and then perform its studies. It has in fact

already implemented the first part of its VMP. This approach

has the process exactly backwards. See Sierra Club, 843 F.2d

"! The initial EA acknowledged, however, that the proposed increase in

vessel traffic “could significantly impair the visual and photographic

scene at the glacier faces in Tarr Inlet, the high point of a Glacier Bay

cruise, and elsewhere in the park.”

18a

at 1195. Before one brings about a potentially significant and

irreversible change to the environment, an EIS must be pre-

pared that sufficiently explores the intensity of the environ-

mental effects it acknowledges. A part of the preparation

process here could well be to conduct the studies that the Park

Service recognizes are needed. That might be done here by

performing the studies of the current vessel traffic and

extrapolating or projecting the effects of the proposed

increase.'? Ultimately, the Park Service tay develop other

means for obtaining the information it currently lacks. The

point is, however, that the “hard look” must be taken before,

not after, the environmentally-threatening actions are put into

effect.

{6} The Parks Service’s lack of knowledge does not excuse

the preparation of an EIS; rather it requires the Parks Service

to do the necessary work to obtain it. In Blue Mountains, we

found that general statements about possible environmental

effects failed the “hard look” test required under NEPA. 161

F.3d at 1213. Here, the Parks Services repeated generic

statement that the effects are unknown does not constitute the

requisite “hard look” mandated by the statute if preparation of

an EIS is to be avoided. See id. (“‘general statements about

'? With respect to the cruise ships, the addition of thirty-eight extra

days of cruising may simply require the service to determine the current

effects of vessel traffic, and extrapolate or project from that data the

effects of increased traffic, taking into account all available relevant

information, including technological change affecting the cruise ship-

industry. It appears that the impact of the other increases in vessel traffic

may also be determined by studying the effects of the current traffic rates.

We do not decide here, however, how the EIS should be conducted. That

is for the Park Service to determine initially in the context of the

applicable statutes and regulations. We intend only to observe that in this

case, unlike some others, an actual study can probably be conducted on

the basis of existing conditions and that it is not necessary to consider the

intensity of the effect of vessel traffic entirely in the abstract. There are

practical consequences resulting from the current level of traffic that may

be studied and considered in the final report.

19a

“possible” effects and “some risk” do not constitute a “hard

look”. absent a justification regarding why more definitive

information could not be provided’”) (citing Neighbors of

Cuddy Mountain v. United States Forest Serv., 137 F.3d

1372, 1380 (9th Cir. 1998)). The Park Service’s statement of

reasons does not provide a convincing explanation as to why

the requisite information could not be obtained prior to

placing the VMP into effect. Jd. In short, the information

currently provided by the Parks Service in its EA leaves us

with the firm impression that, absent successful mitigation

measures, there is a substantial possibility that the VMP will

significantly affect Glacier Bay Park, including the air, the

water, and the various species that inhabit the Park.

[7] The second source of uncertainty is the Parks Service’s

ability to offset the environmental impact of the increase in

vessel traffic through its proposed mitigation measures. An

agency’s decision to forego issuing an EIS may be justified in

some circumstances by the adoption of such measures. Wet-

lands Action Network v. United States Army Corps of Eng’ rs,

222 F.3d 1105, 1121 (9th Cir. 2000); Friends of Payette v.

Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 993 (9th

Cir. 1993). “If significant measures are taken to ‘mitigate the

projects effects, they need not completely compensate for

adverse environmental impacts.’” Wetlands Action Network,

222 F.3d at 1121 (quoting Friends of Payette, 988 F.2d at

993). While the agency is not required to develop a complete

mitigation plan detailing the “precise nature of the mitigation

measures,” the proposed mitigation measures must be

“developed to a reasonable degree.” Id.'> A “‘perfunctory

description,” Okanogan Highlands Alliance v. Williams, 236

"3 In Laguna Greenbelt, Inc. v. United States Dept of Transp., 42 F.3d

517, 528 n.11 (9th Cir. 1994), the court held that “scientific uncertainties

in the mitigation measures” need not be discussed during the EIS

discussion period. Such uncertainties must be discussed, however, during

the EIS preparation period. 40 C.F.R. § 1502.22.

20a

F.3d 468, 473 (9th Cir. 2000) (quoting Neighbors of Cuddy

Mountain, 137 F.3d at 1380), or “‘mere listing’ of mitigation

measures, without supporting analytical data,” is insufficient

to support a finding of no significant impact. /d. (quoting

Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1151

(9th Cir. 1998)). In evaluating the sufficiency of mitigation

measures, we consider whether they constitute an adequate

buffer against the negative impacts that may result from the

authorized activity. Specifically, we examine whether the

mitigation measures will render such impacts so minor as to

not warrant an EIS. See Greenpeace Action, 14 F.3d at 1332.

[8] There is a paucity of analytic data to support the Parks

Service’s conclusion that the mitigation measures would be

adequate in light of the potential environmental harms. By

contrast, in Okanogan the Forest Service conducted computer

modeling to predict the quality and quantity of environmental

effects, discussed the monitoring measures to be put in place,

ranked the probable efficacy of the different measures,

detailed steps to achieve compliance should the measures

fail, and identified the environmental standards by which

mitigation success could be measured. /d. at 473-75.

Because the Forest Service “considered extensively the

potential effects and mitigation processes,” the court found

that discussion of the mitigation measures was adequate to

constitute the convincing statement of reasons to permit

preparation of a FONSI. Jd. at 477 (emphasis omitted). In

this case, however, the Parks Service did not conduct a study

of the anticipated effects of the mitigation measures nor did it

provide criteria for an ongoing examination of them or for

taking any needed corrective action (except for the plan to

conduct “studies”). As with the rest of its proposal, it apse

to act first and study later.

The Parks Service first described its scm mitigation

measures in the initial EA. That document reflects the

uncertainty that exists as to whether the mitigation measures

2la

would work: moreover, it is unclear from that document

whether the measures are sufficiently related to the effects

they are designed to cure. The Parks Service simply noted, for

example, that mitigation measures “could mitigate some

potential effects to humpbacks in concentrated whale-use

areas”; “could reduce whale/vessel collisions and reduce the

noise emanating from the ships”; “[s]pecial-use-area closures

and restrictions implemented under . . . alternative[five] may

off-set some of the expected disturbance.” Air pollution

measures “would be expected to contribute to a reduction in

cruise ship stack emissions over time.” Further, the service

stated that it:

intends to institute a comprehensive research and

monitoring program to fill informational needs and

quantity the effects of vessel traffic on air quality,

marine mammals, birds and visitor-use enjoyment. The

monitoring program, developed within one year of the

record of decision, will stipulate research and protection

actions [Parks Service] will undertake to ensure that

environmental effects do not exceed acceptable levels .. .

The final EA was similarly uncertain with respect to the

proposed measures effects. It recognized that a 10-knot speed

restriction to offset the increased vessel traffic might disturb

the creatures in the park, but that “very little is known about

the effects of the disturbance.” The EA also stated that the

increase in seasonal entries “could reduce whale/vessel

collisions and reduce the noise level emanating from the

ships. . . , [fJollow-up research and monitoring will be

essential to define humpback whale use patterns in Glacier

Bay resulting from this alternative”; and that “requiring cruise

ships to implement oil-spill response plans could mitigate the

effects of oil spills.” As for air pollution, “the magnitude of

increased violations would presumably be reduced over

time.” There is no indication, however, as to how long any

such reduction might take or how great a reduction might

= a, —_e ii

22a

ultimately be accomplished. In short, there is no evidence that

the mitigation measures would significantly combat the

mostly “unknown” or inadequately known effects of the

increase in vessel traffic. The EA’s speculative and conclu-

sory statements are insufficient to demonstrate that the

mitigation measures would render the environmental impact

so minor as to not warrant an EIS. See Greenpeace Action, 14

F.3d at 1332.

It is instructive to contrast this case with Wetlands Action

Network. In that case, the court made clear that, though the

mitigation measures were underdeveloped, the imposition of

special conditions, enforced through a permit, and reviewed

by various other agencies ensured that the measures would

been forced in a manner that properly reduced negative

environmental impact. See Wetlands Action Network, 222

F.3d at 1121. Here, there were no such special conditions

applied to the Parks Service or the tour boat operators in

connection with the measures designed to mitigate the effects

of the proposed increase in cruise ships. In fact, whether the

mitigation measures are fully enforced or not, the EA reflects

significant uncertainty as to whether they could provide an

adequate buffer against the harmful effects of the plan. This is

understandable in light of the fact that the extent of those

harmful effects is itself unknown, and that in such

circumstance it is particularly difficult to estimate the effects

of mitigation measures. That fact, however, does not help

make the measures adequate for purposes of avoiding the

preparation of an EIS—quite the contrary.

As with the question of the extent of the unremediated

injury that might otherwise occur, the question of the impact

of the proposed mitigation measures must be studied as part

of the preparation of an EIS rather than after the injury has

transpired. The fact that the agency plans to test the effect of

its mitigation measures does not relieve it of the obligation to

prepare an EIS prior to the time of the threatened environ-

23a

mental damage. Rather, the Parks Service’s testing proposal

shows that the information necessary to determine the impact

of any mitigation measures, like the information relating to

the extent of the injurious effects, may well be obtainable

before any environmental injury occurs. The proposed

mitigation studies thus argue in favor of preparing an EIS, not

against it.

The district court found that the agency’s decision not to

prepare an EIS was justified because the uncertainty reflected

the existing state of knowledge. The passage of cruise ships

through Glacier Bay is not a new development, however.

Both the vessels’ sailings and the dispute over the potential

environmental damage have existed for a substantial period of

time. No new scientific developments are required in order to

obtain the requisite information. The Parks Service itself pro-

poses to conduct studies which it anticipates may provide the

answers. We simply hold that, under these circumstances,

where significant environmental damage may occur to a

treasured natural resource, the studies must be conducted

first, not afterwards.

D. Controversy

The district court also found that NPCA had not made a

sufficient showing of controversy to require preparation of an

EIS. Again, we disagree.

[9] Agencies must prepare environmental impact

statements whenever a federal action is “controversial,” that

is, when “substantial questions are raised as to whether a

project. . . may cause significant degradation of some human

environmental factor,” Northwest Envtl. Def. Ctr. v.

Bonneville Power Admin., 117 F.3d 1520, 1539 (9th Cir.

1997) (quoting LaFlamme v. FERC, 852 F.2d 389, 397 (9th

Cir. 1988)) (Reinhardt, J., concurring in part and dissenting in

part), or there is “a substantial dispute [about] the size, nature,

or effect of the major Federal action.” Blue Mountains, 161

24a

F.3d at 1212 (citing Greenpeace Action, 14 F.3d at 1335;

Sierra Club, 843 F.2d at 1190). A substantial dispute exists

when evidence, raised prior to the preparation of an EIS or

FONSI, see Greenpeace Action, 14 F.3d at 1334 (holding that

party may not establish controversy post hoc, when at the

time of the agency’s action no controversy existed), casts

serious doubt upon the reasonableness of an agency’s

conclusions.'* See Idaho Sporting Congress, 137 F.3d at

1150; Blue Mountains, 161 F.3d at 1212. NEPA then places

the burden on the agency to come forward with a “well-

reasoned explanation” demonstrating why those responses

disputing the EAs conclusions “do not suffice to create a

public controversy based on potential environmental

consequences.” LaFlamme, 852 F.2d at Ol (citing Jones v.

Gordon, 792 F.2d 821, 829 (1986)).'° The term “well

reasoned explanation” is simply a less direct way of saying

that the explanation must be “convincing.” See Metcalf, 214

F.3d at 1142.

[10] After publication of the initial EA, and before

publication of the EA and FONSI, the Parks Service received

'4 Although a court should not take sides in a battle of the experts,

Greenpeace Action, 14 F.3d at 1333; see also Wetlands Action Network,

222 F.3d at 1120-21, it must decide whether the agency considered

conflicting expert testimony in preparing its FONSI, and whether the

agency’s methodology indicates that it took a hard look at the proposed

action by reasonably and fully informing itself of the appropriate facts.

See Idaho Sporting Congress, 137 F.3d at 1150 (precluding the agency

from relying on expert opinion in the absence of hard data).

'5 Consensus among the parties over the proposed measures is

ordinarily sufficient to satisfy the agency’s burden. See Greenpeace

Action, 14 F.3d 1334 (holding that consensus among objecting parties

before agency declined to prepare EIS sufficient to rebut showing of

controversy); Bonneville Power, 117 F.3d at 1536 (holding that where

agency cooperated with objecting parties, and alleviated most of those

parties concerns, agency need not prepare EIS). No such consensus

existed here.

25a

450 comments on the VMP, approximately 85% of which

opposed Alternative Five and favored Alternative Four. This

volume of negative comment is more than sufficient to meet

the “out-pouring of public protest” discussed in Greenpeace

Action.'® See 14 F.3d at 1334. More important, to the extent

the comments urged that the EAs analysis was incomplete,

and the mitigation uncertain, they cast substantial doubt on

the adequacy of the Parks Service’s methodology and data.

The dispute between NPCA and the Parks Service thus goes

beyond a disagreement of qualified experts over the

“reasoned conclusions” as to what the data reveal. See

Greenpeace Action, 14 F.3d at 1335.'’ Here, the agency’s

conclusions were not reached by reasoned extrapolation from

the data, rather the data were simply insufficient. The Parks

Service acknowledged that an increase in vessel traffic would

have an environmental impact. The data, however, did not

establish the intensity of that impact, nor the efficacy of the

mitigation measures designed to offset that unquantified

impact. NPCA asserted that the effects on the environment

would likely be substantial. The Parks Service responded that

the extent of the effects was unknown. Therein lay the

controversy. In its response, the agency proposed to

determine the extent of the effects by implementing the VMP

and studying its consequences. As we have stated in Section

I.C, the absence of currently available information does not

excuse the Parks Service from preparing an EIS when there is

a reasonable possibility that such information can be obtained

incases such as Wild Sheep, 681 F.2d at 1175 and n.10, by requiring that

any “outpouring of public protest” be contemporaneous with the period

for commentating on the EA, and holding that a post hoc dispute was

insufficient to establish the necessary type of controversy. Greenpeace

Action, 14 F.3d at 1334. That is not the case here.

'7 Where there is conflict in the data, or the evidence supports several

conflicting opinions, the agency may rely upon the opinion of its expert.

Wetlands Action Network, 222 F.3d at 1121.

26a

in connection with the preparatory process. The agency’s

response is therefore not sufficient to resolve the cor.troversy.

Accordingly, the case before us is controlled by Blue

Mountains, Idaho Sporting Congress, and Sierra Club; and

Greenpeace Action is not to the contrary. Here, preparation of

an EIS is mandated by the “controversy,” as well as by the

“uncertainty,” factor of the intensity provision. 40 C.F.R.

§ 1508.27(b).

II. INJUNCTIVE RELIEF

[11] NPCA asks this court to “reverse the District Court

and remand the case with instructions to enjoin further

implementation of the 1996 Vessel Management Plan until a

full Environmental Impact Statement is prepared.” To

determine whether injunctive relief is appropriate, “even in

the context of environmental litigation,’ we apply “the

traditional balance of harms analysis.” Forest Conservation

Council v. United States Forest Serv., 66 F.3d 1489, 1496

(9th Cir. 1995) (citations omitted); see also Amoco Prod. Co.

v. Village of Gambell, 480 U.S. 531, 541, 542 (1987) (holding

that unless Congress directed otherwise, “a court must

balance the competing claims of injury” in determining

whether injunctive relief is appropriate). “Environmental

injury, by its nature, can seldom be adequately remedied by

money damages and is often permanent or at least of long

duration, i.e., irreparable,” Amoco Prod. Co., 480 U.S. at 545.

When the “proposed project may significantly degrade some

human environmental factor,” injunctive relief is appropriate.

Alaska Wilderness Recreation & Tourism Assoc. v. Morrison,

67 F.3d 723, 732. See also Sierra Club, 843 F.2d at 1195;

Save the Yaak, 840 F.2d at 722.

[12] NPCA has made the requisite showing for injunctive

relief. As we concluded in Section I, an EIS is required. We

so held because of the significant adverse impact on the

environment that might result from the implementation of the

VMP. See Blue Mountains, 161 F.3d at 1216 (an EIS is:

27a

required of an agency in order that it explore, more

thoroughly than an EA, the environmental consequences of a

proposed action whenever “substantial questions are raised as

to whether a project may cause significant [environmental]

degradation”). Where an EIS is required, allowing a

potentially environmentally damaging project to proceed

prior to its preparation runs contrary to the very purpose

of the statutory requirement.'® Here, the Parks Service has

already undertaken a 30% increase in cruise-ship traffic

preliminary to a seventy-two percent increase. The potential

effects of its action extend beyond the endangered marine

mammal population to the rest of the wildlife at Glacier Bay,

as well as the Park’s air quality. Kittiwakes, murrelet, eagles,

sea otters, seals, sea lions, porpoises, and killer and minke

whales, as well as the better known humpbacks, are affected.

Until an EIS is prepared and the effects of increased vessel

traffic on the inhabitants and air quality of Glacier Bay are

properly examined, there is a sufficient possibility of

environmental harm that the VMP may not be implemented.

'8 We have recognized, nevertheless, that in “unusual circumstances”

an injunction may be withheld, or, more/ likely, limited in scope. See

Forest Conservation Council, 66 F.3d at 1496. Amoco Production Co. is

not to the contrary. There, the Supreme Court rejected a presumption of

irreparable injury where an agency failed adequately to investigate the

consequences of its proposed action, see Amoco Prod. Co., 480 U.S. at

544-45: it required courts to undertake the traditional “balance of harms”

analysis. Id. at 545. We have fully weighed the competing interests using

our traditional equitable jurisdiction, and conclude that injunctive relief is

appropriate. Finally, in Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.

1989), then-Circuit Judge Breyer held that, because NEPA is a purely

procedural statute, the requisite harm is the failure to follow the

appropriate procedures. See id. at 500 (because NEPA can do no more

than require the agency to produce and consider a proper EIS, the harm

that NEPA intends to prevent is imposed when a decision to which NEPA

obligations attach is made without the informed environmental

consideration that NEPA requires). Marsh also justifies injunctive relief in

this case.

sarees DORSET a al eae

28a

Westours argues that the damage to its business should be

considered when addressing injunctive relief, that its financial

losses outweigh the potential damage to the environment, and

that NPCA “is not entitled to an injunction against the

32 seasonal cruise ship entries” that the Parks Service

authorized for the 2000-2004 seasons. As a general rule, only

the federal government may be a defendant in a NEPA action.

Wetlands Action Network, 222 F.3d at 1114. An exception

may be made in the remedial phase of a case where the

contractual rights of the applicant are affected by the

proposed remedy. See Forest Conservation Council, 66 F.3d

at 1495. Here, Westours was permitted to, intervene, and

appears before us as a party-defendant. Westours has

asserted financial damages premised upon its contracts of

carriage. Its loss of anticipated revenues, however, does not

outweigh the potential irreparable damage to the environ-

ment. Moreover, neither Westours nor those of its passengers

who may be unable to view Glacier Bay at the time they

originally planned have cause to claim surprise as a result of

any injunction. The plaintiffs filed their objections to the

plan approximately five years ago and just one year later

sought an injunction. If the passengers who booked cruises

on any “excess” tours were not warned by Westours of the

pending litigation, their interests were not well served by that

company. Thus, while Westours has standing to object to our

grant of injunctive relief, its evidence fails to tilt the balance

of harms in its favor.

For the purposes of injunctive relief, we may admit

evidence not before the district court to show that an agency

has rectified a NEPA violation after the onset of legal

proceedings. See Friends of the Clearwater v. Dombeck, 222

F.3d 552, 560 (9th Cir. 2000). Here, Westours asks us to

consider evidence addressing one aspect of NPCA’s com-

plaint, the humpback whale population. We will assume that

such evidence is admissible. Westours evidence shows a short

term increase in the humpback whale population, but

29a

completely fails to address the other environmental effects at

issue here. Nor does it address the deficiencies in the Parks

Services EA and FONSI. Accordingly, Westours’s evidence

is insufficient to dissuade us from granting injunctive relief.

Finally, we note that where the question of injunctive relief

“raise[s] intensely factual issues,” the scope of the injunction

should be determined in the first instance by the district court.

See Alaska Wilderness, 67 F.3d at 732. Here, however, there

are no such intensely factual issues and the scope of the

injunction to which NPCA is entitled is quite plain. It is

appropriate, therefore, for us to decide the injunction question

on this appeal.

We direct the district court to enjoin the further increases in

vessel traffic, and to return traffic levels to their pre-1996

levels. We agree, however, with the Parks Service’s

contention that “the current vessel regulations are in

important respects more environmentally protective than the

1984 regulations they replaced.” The NPCA does not contend

(and the record would not support a finding) that the 1996

-VMP’s establishment of protected “whale waters” in parts of

Glacier Bay or implementation of oil-spill response plans

pose an actual or potential threat to the environment.

Accordingly, there is no basis for enjoining that part of

Alternative Five. Our order is limited to the thirty to seventy-

two percent increase in the seasonal entry quota for cruise

ships, and the eight percent increase for charter boats and

fifteen percent increase for “private/pleasure” craft. All entry

quotas shall be returned to the levels preceding the

introduction of Alternative Five. The other measures adopted

by the Parks Service in its VMP shall remain in effect, and

will not be subject to the injunction.

Notwithstanding the above, we recognize that the issuance

of the mandate in this case may be delayed for some period of

time as a result of the en banc procedures that this court

follows, and that such delay may occu: even if we ultimately

30a

decide not to grant a rehearing en banc. We do not believe,

however, that a sufficient emergency exists to warrant our

ordering that the injunction become effective prior to the

completion of our customary process. Accordingly, we

cannot know in advance how close to the opening of this

year’s cruising season the mandate will issue, or even

whether issuance will be delayed until after the season has

already begun. Nor can we determine how great may be the

practical disruption that would occur were last minute

cancellation of a significant number of voyages required.

Accordingly, we leave it to the district court to decide upon

the effective date of the injunction it is ordered to issue, and,

specifically, to decide in its informed discretion, and on the

basis of any evidence that may be presented, whether the

injunction should take effect prior to the completion of this

year’s cruising season, sometime this September.

CONCLUSION

Much of the briefing and argument in this appeal has

focused on the impact of the VMP on the imperiled hump-

back whale population. However, a variety of other non-

human inhabitants of the Park—bald eagles, kittiwakes,

murrelets, sea otters, harbor seals, Steller sea lions, harbor

and Dall’s porpoises, minke, and killer whales—are, as the

EA reflects, affected, and the already fragile air quality is as

well. The existence of adverse effects is not uncertain. What

is uncertain is the extent of the likely environmental injury,

and the impact of the proposed mitigation measures. The

Parks Service’s own experts, whose integrity the government

commended at oral argument, admitted both the likelihood of

certain harms to the environment of Glacier Bay and their

uncertainty about the likelihood of other harms. In giving

insufficient respect to their experts’ evaluation of harm,

declaring that no significant environmental effects were

likely, and implementing the vessel traffic increase without

3la

complying with the requirements of NEPA, the Parks Ser-

vice’s decision-makers made a “clear error of judgment.”

Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989).

Glacier Bay Park is too precious an ecosystem for the

Parks Service to ignore significant risks to its diverse

inhabitants and its fragile atmosphere. We reverse the

decision below and remand with instructions that the district

court issue an injunction enjoining the granting of permits to

vessels pursuant to the 1996 increase in vessel entry quotas

pending the Parks Services completion of an EIS. Permits

shall be limited in number to those authorized prior to the

issuance of the EA, the VMP, and the FONSI. The district

court shall provide in its order for whatever specific actions it

deems necessary to ensure that the number of cruise ships and

other vessels authorized to enter Glacier Bay (pending

completion of an EIS) shall not exceed the number authorized

prior to the 1996 increase. It shall have the discretion,

however, to determine the effective date of its injunction,

including whether the order shall be made effective prior to

the completion of this years cruising season.

REVERSED AND REMANDED WITH INSTRUCTIONS

32a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed Jun. 13, 2001]

No. 99-36065

CT/AG#: CV-97-00456-JKS

NATIONAL PARKS & CONSERVATION ASSOCIATION,

Plaintiff-Appellant,

Vv.

BRUCE BABBITT, Secretary, United States Department of the

Interior; ROBERT STANTON, Director, National Park Service;

HOLLAND AMERICAN LINE-WESTOURS, INC.,

Defendants-Appellees.

JUDGMENT

APPEAL FROM the United States District Court for the

District of Alaska (Anchorage).

THIS CAUSE came on to be heard on the Transcript of the

Record from the United States District Court for the District

of Alaska (Anchorage) and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment of the

said District Court in this cause be, and hereby is

REVERSED AND REMANDED with instructions.

Filed and entered: 02/23/01

33a

A97-0456-CV (JKS)

Judge Singleton

B. Landon (AUSA)

C. Christianson

S. Reisch

by /s/ Illegible

A TRUE COPY

CATHY A. CATTERSON

Clerk of Court

ATTEST

Jun 6, 2001

34a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed May 18, 2001]

No. 99-36065 ;

D.C. No. CV-97-00456-JKS

NATIONAL PARKS & CONSERVATION ASSOCIATION,

Plaintiff-Appellant,

BRUCE BABBITT, Secretary, United States Department of the

Interior; ROBERT STANTON, Director, National Park Service,

: Defendants-Appellees, -

and

HOLLAND AMERICA LINE-WESTOURS, INC.,

Defendant-Intervenor/Appellee.

ORDER

Before: NELSON, D.W., REINHARDT, and THOMAS,

Circuit Judges:

The panel has voted to deny the petitions for rehearing.

Judges Reinhardt and Thomas have voted to deny the

petitions for rehearing en banc and Judge Nelson so

recommends.

The full court has been advised of the petitions for

| rehearing en banc and no active judge has requested a vote on

| whether to rehear the matter en banc. Fed. R. App. P. 35.

The petitions for rehearing and petitions for rehearing en

banc are denied.

35a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

[Filed Aug. 24, 1999]

Case No. A97-0456 CV (JKS)

NATIONAL PARKS & CONSERVATION ASSOCIATION,

Plaintiff,

VS.

BRUCE BABBITT, et al.,

Defendants,

and

HOLLAND-AMERICA LINE-WESTOURS,

Intervener-Defendant.

ORDER

I. INTRODUCTION

The National Parks and Conservation Association

(“NPCA”), a nonprofit organization that is interested in the

National Park System, filed suit under the National

Environmental Policy Act of 1969' (“NEPA”) and the

Administrative Procedure Act (“APA”), challenging the

National Park Service’s (“NPS” or “Park Service”) decision

not to prepare an environmental impact statement “EIS”)

when developing its Vessel Management Plan (“VMP”) for

cruise and other ship operations in Glacier Bay National Park

' 42 U.S.C. §§ 4321-4347 (1994). All statutory citations will be to the

1994 edition of the United States Code.

25 U.S.C. §§ 701-706.

36a

and Preserve (“Glacier Bay National Park” or “the Park”’).

NPCA specifically challenges conclusions reached in- the

NPS’s Environmental Assessment (“EA”) that lead the Park

Service to issue a Finding of No Significant Impact

(“FONSI”) rather than prepare an EIS. Holland-America

Line-Westours (“Westours”), which operates cruise ships that

enter Glacier Bay National Park, intervened in the suit to

oppose the injunction NPCA sought and to protect its interest

in receiving future permits to enter the Park. NPCA has now

moved for summary judgment and the NPS and Westours

each filed cross-motions for summary judgment. All motions

were opposed. Pursuant to Rule 12(f) of the Federal Rules of

Civil Procedure, the NPS also filed a motion to strike an

exhibit to NPCA’s motion for summary judgment, which the

NPCA also opposed. After extensive briefing, all motions are

now ripe.”

Il. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

Glacier Bay National Park was established in 1925.

Located approximately sixty miles northwest of Juneau,

Alaska, the Park as currently constituted covers approxi-

mately 3.28 million acres of shore, wilderness area and

saltwater bay. The Park contains the largest protected marine

ecosystem in the National Park system, is an international

biosphere reserve, and was designated a “World Heritage

Site” by the United Nations in 1992. The Congress has

designated much of the park wilderness area. Humpback

3 See Dockets No. 45 (NPCA’s motion for summary judgment),

49 (NPS’s cross-motion for summary judgment, opposition to NPCA’s

motion and motion to strike); 53 (Westours’ cross-motion for summary

judgment), 54 (NPCA’s opposition and reply to NPS’s motion),

55 (NPCA's opposition and reply to Westour’s motion); 56 (NPCA’s

opposition to NPS’s motion to strike); 57 (NPS’s reply to NPCA’s

opposition to summary judgment motion and motion to strike),

59 (Westours’ reply to NPCA’s opposition).

37a

whales, Steller sea lions and many other creatureslive within

the Park’s boundaries. The remoteness of the Park from

population centers and its status as wilderness assume that if

the public is to enjoy it and benefit from it, it must access the

Park by ship or other vessel.

The Park Service has long used vessel quotas to regulate

the number of cruise ships, tour boats, charters and private

boats that enter Glacier Bay National Park. The vessel

management regulations that proceeded the VMP were

promulgated in 1984 and provided for a twenty-percent

increase in vessel quotas, which was achieved in 1988. The

Park Service imposed other restrictions on vessel traffic as

well, such as maximum speed requirements and restrictions

on parts of the Park that vessels could enter.

The Park Service began preparing the current Glacier Bay

VMP and EA in 1991. In May, 1995, the Park Service

published a VMP and EA containing six alternative revisions

of the then current plan. See Docket No. 45, Exh. 1.* The

Park Service identified Alternative Five as its preferred plan.

Under Alternative Five, seasonal entry quotas for cruise ships

would increase by seventy-two percent, with two cruise ships,

three tour boats, six charter boats and twenty-five private

boats allowed to enter Glacier Bay National Park per day

between June 1 and August 31 each year. The other plans

ranged from suggesting no change to the Park Service's

actions, to a plan that decreased the number of vessels

permitted to enter the Park.

In the EA, the Park Service discussed potential environ-

mental consequences of each proposed alternative. For the

EA’s Alternative Five, the Park Service noted that the effects

of increased cruise ship traffic were in many ways uncertain.

Despite the fact that whales have been extensively studied, no

4 DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, GLACIER

BAY NATIONAL PARK AND PRESERVE, VESSEL MANAGEMENT PLAN AND

ENVIRONMENTAL ASSESSMENT (May 1995).

38a

direct evidence exists that any whale has even been indirectly

harmed by proximity to vessel. True, whales have been

harmed directly in collisions with vessels, but collisions are

extremely rare and it appears could be avoided through

reasonable precautions. Nevertheless, men and women

knowledgeable about whales and other marine life can

certainly speculate about ways in which indirect contact

between whales and other sea life on the one hand and ships

and vessels on the other hand could possibly harm sea life.

Existing research cannot conclusively rule out all of the

possible harms about which concerned scientists allied with

Plaintiffs have speculated. The EA described these potential

effects of cruise ship operations in conditional language. For

example, the EA concluded that whale responses to vessel

noise “could include decreased respiratory intervals,

increased dive times, and moving away from the sound

source, which could cause whales to be displaced from

important feeding areas.” See id. at 4.5-1. The BA addi-

tionally noted that avoidance behavior associated with noise

disturbances “causes an expenditure of energy reserves and

decreases feeding time, possibly compromising the survival

and reproduction of individual animals.” See id. “Although

short-term displacement of whales may occur, abandonment

of preferred habitats as a result of vessel traffic is not

anticipated.” /d. In summary, the EA noted that

[p]redictions about humpback whale use of Glacier Bay

and the contribution of this group of whales to total

humpback whale numbers in Southeast Alaska are.

highly speculative due to the degree of uncertainty

associated with factors such as prey availably. Given the

increase of vessel quotas and operation under this

alternative, there is no way to determine the effect of

whale use of the park.

Id. at 4.5-4. The EA’s analysis of Alternative Five’s impact

on humpback whale concluded that the “degree to which

disturbance and displacement would affect the humpback

39a

whale populations in Glacier Bay is unknown.” /d. Thus, the

issue presented to the National Park Service is whether these

uncertainties require preparation of an EIS.

The EA’s assessment of Alternative Five’s potential impact

on Glacier Bay’s Steller sea lion population used similarly

conditional language. According to the document, sea lions

“would probably not be exposed to increased disturbances” at

their haul-out sites, but also that “[l]ittle is known about the

effects” of disturbances related to open water encounters

between sea lions and cruise ships. See id. The EA addi-

tionally implied that the effects of increased cruise ship

operation in the Park was unclear: “[dJisturbed sea lions

could expend energy or be moved from feeding areas when

fleeing and/or be injured.” The EA’s analysis of Alternative

Five’s impact on Steller sea lions concluded that the

alternative “is unlikely to jeopardize the continued existence

and recovery of the Steller sea lion.” Jd. at 4.5-5.

The EA’s assessment of Alternative Five’s impact on other

marine creatures in Glacier Bay was similarly conditional.

For example, the EA noted that increased cruise ship activity

“could affect nonendangered cetaceans,” see id., and “little is

known about the effects of’ disturbances caused by cruise

ships on harbor seal in open water, see id. at 4.5-6.

The National Marine Fisheries Service prepared a bio-

logical opinion under section 7 of the Endangered Species

Act “concerning the effects of the National Park Service’s

proposed vessel management plan for Glacier Bay National

Park and Preserve on threatened and endangered species.”

See AR 4, 15 at 1.° The report focused on the threatened

* The voluminous Administrative Record in this case contains ten

exhibits set forth in approximately twenty-five volumes. Each volume of

the Administrative Record contains numbered subparts. Citation to “AR 4,

15 at 1” is therefore a citation to Exhibit 4, numbered subpart 15, page

one. Certain exhibits are set forth in multiple volumes, so a citation to

“AR 10, 1-11 at 15” refers to Exhibit 10, volume 1, document 11, page 15.

40a

Steller sea lion and the endangered gray and humptack

whales. After concluding that the proposed alternative “will

not likely jeopardize the continued existence and recovery” of

the Steller sea lion and “will not likely jeopardize the

continued existence” of the gray whale, the biological opinion

addressed the potential impact of the proposed alternative

on the humpback whale. See id., Attach. at 12-13. The

biological opinion noted the effect of the dearth of

information on the EA’s conclusion:

The NPS [VMP] and [EA] document a declining trend in

whale usage of Park waters and a decline in crude birth

rate since 1988. However, given the small sample sizes

involved, and the high inherent variability of these type

of data, it is hard to assess whether or not these trends

are real. If the trends are real, there is no way to

determine whether they are due to changes in prey

distribution or increases in vessel traffic because there

have not been conclusive prey studies or vessel inter-

action studies. However, because these changes have

occurred coincidentally with increases in vessel traffic,

NMFS cannot rule out the hypothesis that some hump-

back whales may avoid the area due to vessel traffic.

See id. at 13. The opinion concluded

Because there has not been systematic monitoring of

humpback whale prey density, distribution and type, and

noise produced by vessels, it is impossible to ascribe

whale distribution shifts to one cause or another.

However, it is NMFs’ opinion that . . . the level of vessel

use combined with vessel operation requirements as

described in the [VMP and EA] are not likely to

jeopardize the continued existence of the North pacific

population of humpback whales.

See id. at 13-14. The opinion additionally noted the NMFS’s

concern “about the decline in humpback whale use of Glacier

4la

Bay. There are no studies to show that this decline is not due

to avoidance of vessel traffic. ...” See id. at 14. After noting

that the Endangered Species Act requires the Park Service to

use its authority to conserve endangered species, NMFS

urged the Park Service “to take a conservative approach in all

management actions that may affect humpback whales. . . .”

Id. The opinion recommended that the Park Service

implement a humpback whale feeding ecology research

program, conduct a study of how vessel presence in the Park

alters whale behavior, and continue monitoring programs to

identify and analyze whale use of the Park. /d.

On March 20, 1996, after the time for public comment had

expired, the Park Service published a FONSI and selected a

revised version of Alternative Five for the VMP. Under the

adopted VMP, the summer seasonal cruise ship quota was

increased by thirty percent over the 1995 level for 1996 and

1997, and could increase by up to seventy-two percent.

Specific areas of the Park would be closed to motorized

vessels and additional measures, such as oil-spill mitigation

measures and underwater noise reduction strategies, was also

included in the plan. The seasonal quotas for charter boats

and private vessels were increased by eight and fifteen

percent respectively. A research plan was also contemplated.

After discussing the substance of the VMP and briefly

describing the alternative plans, the FONSI provided that

The NPS has determined that the modified alternative

. can be implemented with no significant adverse

effect to the natural and cultural resources as docu-

mented by the environmental assessment. Key environ-

mental issues associated with the modified alternative

include effects of marine mammals and birds from

vessel disturbances and air quality degradation from

cruise ship stack emissions. Some disturbances to

resources would be expected. However, the mitigation

Strategies included in this action would significantly

42a

reduce environmental effects resulting from vessel

entries. In addition, the NPS intends to institute a

comprehensive research and monitoring program to fill

information needs and quantify the effects of vessel

traffic on air quality, marine mammals, birds and visitor-

use enjoyment. The monitoring program, developed

within one year of the record of decision, will stipulate

research and protection actions NPS will undertake to

ensure that environmental effects do not exceed accept-

able levels. An annual report, detailing efforts, funding

levels and personnel allocated to VMP actions will

be made available to the public. This program will

enhance the scientific basis for future adjustments in

vessel quotas.

See Docket No. 45, Exh. 2 at 2-3. In specifically addressing

the effect of the VMP on humpback whale populations, the

FONSI provided

In 1993 the National Marine Fisheries Service

(“NMFS”) issued a nonjeopardy opinion for the

humpback whale. The NMFS recommended that the

NPS implement a humpback whale feeding ecology

research program that would provide information on

movement, distribution, and abundance of humpback

whales in Glacier Bay and northern southeastern

Alaska. The Park Research and Monitoring Program

incorporates this recommendation. Based on the imple-

mentation of the recommendations by the NMFS,

previous consultation under the Endangered Species Act,

and subsequent consultations with NMFS, no further

action is require at this time by the National Park Service

under the Endangered Species Act in implementing the

modified alternative.

Id. at 2-3. The Park Service’s Alaska Field D'rector certified

that the modified alternative “does not constitute a major

federal action significantly affecting the quality of the human

43a

environment” and concluded that NEPA did not require

preparation of an EIS. See id. at 3.

B. Procedural background

NPCA filed suit pursuant to section 10 of the APA

challenging the Park Service’s decision not to prepare an EIS

analyzing the effects of the proposed VMP on Glacier Bay

National Park. The complaint seeks a declaration that the

VMP violates NEPA and the APA and is “therefore null and

void and of no legal force and effect” and an injunction

prohibiting the Park Service from giving effect to the VMP

until the Park Service completes an EIS. The Court allowed

Westours to intervene. See Docket No. 32. The parties have

filed cross-motions for summary judgment.

Ill. SUMMARY JUDGMENT STANDARD AND

STANDARD OF RENEW

A. Summary judgment standard

Summary judgment pursuant to Rule 56 of the Federal

Rule of Civil Procedure is appropriate if the Court finds that

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits . . . show that

there is no genuine issue as to any material fact and... the

moving party is entitled to judgment as a matter of law.” See

FED. R. Civ. P. 56(c). The Court will construe all evidence

and draw all evidentiary inferences in favor of the non-

moving party. See 1OA CHARLES ALAN WRIGHT, ARTHUR R.

MILLER & MARY KAY KANE, FEDERAL PRACTICE &

PROCEDURE § 2727, 458-59 & nn. 4, 5 (3d ed. 1998) (citing

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1979)). A dispute

over a material fact exists if the evidence would allow a

reasonable fact-finder to return a verdict for the non-moving

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). “[T]he mere existence of some alleged factual

dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the

44a

requirement is that there be no genuine issue of material

fact.” Id. at 247-48. The non-moving party may defeat the

summary judgment motion by producing sufficient specific

facts to establish that there is a genuine issue of material fact

for trial, see Celotex Corp. v. Catrett, 4717 U.S. 317, 322

(1986), but mere allegations of factual dispute, without more,

will not defeat an otherwise-proper motion. See Provenz v.

Miller, 102 F.3d 1478, 1489-90 (9th Cir. 1996), cert. denied,

118 S. Ct. 48 (1997).

Use of the summary judgment procedures set out in

Rule 56 of the Federal Rules of Civil Procedure has been

approved in this circuit as a means of bringing disputes under

NEPA before the Court. See, e.g., City of Angoon v. Hodel,

803 F.2d 1016, 1019-1022 (9th Cir. 1986); County of San

Diego v. Babbitt, 847 F. Supp. 768, 772 (S.D. Cal. 1994),

aff d, 61 F.3d 909 (9th Cir 1995). This Court will proceed on

that basis. It notes, however, that summary judgment is a

procedure for testing the legal sufficiency of claims and

defenses to determine whether a trial on the merits before a

court or jury is warranted. It seems inappropriate for the

performance of an essentially reviewing function, since under

no circumstances will a trial be held and evidence received

and evaluated. It seems more appropriate to consider actions

like this as administrative appeals in which the Court com-

missions briefing, evaluates the record in light of the briefs

and, if desirable, oral argument, and reaches a decision which

will then be reviewed de novo by the appellate court. On

appeal the court might reach many decisions either affirming

or overruling the agency decisions not to prepare an EIS, but

it will not conclude that there are disputed issues of material

fact requiring trial by court or jury. Reference to summary

judgment standards add nothing of significance and may even

be misleading if the Court confuses judicial review with

typical actions for damages of equal relief.

45a

B. Standard of review

Before it reaches the question of whether the Park Service

violated NEPA by preparing a FONSI rather than an EIS the

Court must establish the standard by which it will review

the agency’s decisions. NPCA argues that resolution of the

relevant issues requires none of the technical expertise which

warrants deference to the agency decision because its chall-

enge is based in the legal grounds by which the NPS

determined that the VMP would have “no significant impact”

on Glacier Bay National Park. See Docket No. 45 at 12.

Under NPCA’s argument, because the Court will apply a

legal standard to settled facts, the Court should analyze the

agency’s determinations under “reasonableness” standard,

which is arguably less deferential to the agency’s decision-

making than is the arbitrary and capricious standard advo-

cated for by the Park Service. See id. The Park Service

responds that its determination was made in light of

conflicting and uncertain scientific data particularly within

its sphere of expertise, and argues that the Court’s review

should be at its most deferent. See Docket No. 49 at 11

(citing Baltimore Gas & Elec. Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87, 103 (1983)).

It is entirely possible that the parties’ arguments about

whether the agency should be judged by a “reasonableness”

or “arbitrary and capricious” standard are about distinctions

without differences. Courts, including panels of the Ninth

Circuit, have suggested that differences between the reason-

ableness and arbitrary and capricious standards are merely

semantic. See, e.g., Marsh v. Oregon Natural Resources

Council, 490 U.S. 360, 377-378 n.23 (1989) (‘‘the difference

between the ‘arbitrary and capricious’ and ‘reasonableness’

standards in not of great pragmatic consequence”). However,

some panels of the Ninth Circuit have distinguished

the standards. See, e.g., Alaska Wilderness Recreation &

Tourism Assoc. v. Morrison, 67 F.3d 723, 727 (9th Cir.

46a

1995); Greenpeace Action v. Franklin, 14 F.3d 1324, 1333

n.10 (9th Cir. 1992).

Courts reviewing agency decisions under NEPA apply

two standards depending on the nature of the dispute under

consideration whether it involves a question of fact, a mixed

question of law and fact, or a pure question of law. See Price

Rd. Neighborhood Assoc. Vv. United States Dep't Transp.. | 13

F.3d 1505, 1508 (9th Cir. 1997). Factual disputes, which

implicate agency expertise, are reviewed under the arbitrary

and capricious standard and legal disputes are reviewed under

the reasonableness standard. See id. Under the arbitrary and

capricious standard, the Court must take a “hard look” at the

environmental consequences of the agency’s action to deter-

mine whether the agency's decision was “founded on a

reasoned evaluation ‘of the relevant factors.” See Marsh,

490 U.S., at 378 (quoting Citizens to Protect Overton Park,

Inc. v. Volpe, 401 U.S. 402, 416 (1971)); Greenpeace Action

y. Franklin, 14 F.3d 1324 (9th Cir. 1993). “(T]he reviewing

court must consider whether the decision was based on a

consideration of the relevant factors and whether there has

been a clear error of judgment. This inquiry must be

searching and careful, but the ultimate standard of review is a

narrow one.” See Marsh, 490 U.S. at 378 (quoting Overton

Park, 401 U.S. at 416) (internal quotation marks omitted).

Under the reasonableness standard, used to review mixed

question and questions of law, “a court should not substitute

its judgment for that of an agency if the agency's decision

was fully-informed and well considered.” See Sierra Club v.

United States Forest Serv., 843 F.2d 1190, 1192 (9th Cir.

1988) (internal quotation marks and alterations omitted).

See also Alaska Wilderness Recreation & Tourism Assoc.,

67 F.3d at 731 (setting aside Forest Service decision not to

prepare supplemental EIS as “not reasonable”).

The Court’s starting point for determining the appropriate

standard of review is the Supreme Court’s decision in Marsh

47a

and the Ninth Circuit’s subsequent analysis of the case. See

490 U.S. at 377; Greenpeace Action, 14 F.3d at 1330-1331.

In Marsh, an environmental organization argued, inter alia,

that the Army Corps of Engineers (“Corps”) violated NEPA

by not supplementing an EIS because information developed

after completion of the EIS undermined its conclusions, and

that the Corps’ expert review of the new information was

incomplete. See id at 376. The Supreme Count ruled that

information developed after an agency completed an EIS does

not necessarily require the agency to prepare a supplemental

EIS, noting that the dispute did not turn on interpretation of

statutory terms or on application of the statute to settled facts,

but rather on the facts of the case. See id. According to the

Court, an agency’s decision whether or not to supplement an

EIS “is a classic example of a factual dispute the resolution of

which implicates substantial agency expertise.” See id. at

376. “[A]nalysis of the relevant documents requires a high

level of technical expertise [so] we must defer to the informed

discretion of the responsible federal agencies.” Jd. (quoting

Kleppe v. Sierra Club, 427 [U.S. 390, 412 (1976) (internal

quotation marks omitted)). The Court ruled that, the “reason-

ableness” standard previously applied by the Ninth Circuit

and other federal courts of appeals was inapplicable and held

that “so long as the [agency’s] decision not to supplement the

[EIS] was not ‘arbitrary and capricious,’ it should not be set

aside.” See id. (triple negative in original).

Since the Supreme Court issued Marsh, the Ninth Circuit

has clarified the standard under which courts should review

administrative agencies’ interpretation of their duties under

NEPA. The Greenpeace Action court heard an environmental

organization’s challenge to the adequacy of an EA prepared

by the United States Fish and Wildlife Service and the

agency’s conclusion that it need not prepare an EIS. The

court concluded that the Marsh Court’s reasoning compelled

it to adopt the arbitrary and capricious standard to analyze the

fact-based inquiry. See 14 F.3d at 1330-1331. See also. e. g.,

48a

Northwest Envt’l Defense Ctr. v. Bonneville Power Admin.,

117 F.3d 1520, 1538 (9th Cir. 1997) (courts analyze whether

agency's decision not to prepare an EIS was arbitrary and

capricious by looking only to whether the agency engaged in

a reasoned evaluation of the relevant factors).

To the extent the Court will decide the issues as a matter of

law—but only to that extent—review of whether NEPA

compels an agency to conduct an EIS whenever scientific

uncertainty exists will be under the rule of reason. See, €.2.,

Alaska Wilderness Recreation & Tourism Assoc., 67 F.3d at

727. However, where the Court must analyze the Park

Service’s decisionmaking process, or consider the sufficiency

of the material reviewed by the agency, or in any other way

review the factual bases of the Park Service’s decision not to

prepare an EIS, the Court “must defer to the informed

discretion of the responsible federal agenc[y].” See Marsh,

490 U.S. at 377 (quoting Kleppe v. Sierra Club, 427 U.S. 390,

412 (1976)) (internal quotation marks omitted). Review that

implicates the Park Service’s expertise will be under the

arbitrary and capricious standard. See id.

V. DISCUSSION

A. NEPA

NEPA requires federal agencies to prepare an EIS for

“major Federal actions significantly affecting the quality

of the human environment.” See 42 U.S.C. § 4332(2)(C)

(1994). See also Northwest Envt'l. Defense Ctr. v. Bonneville

Power Admin., 117 F. 3d 1520, 1535-36 (9th Cir. 1997).

Rather than providing for a particular result, NEPA prescribes

the necessary process federal agencies must follow when

implementing major actions. See Methow Valley Citizens

Council, 490 U.S. at 350. See also Vermont Yankee, 435 US.

at 558. The statute’s goals are to ensure the agency will have

detailed information regarding significant environmental

impacts where it makes its decision and to guarantee that this

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information will be available to the interested public. See

Methow Valley Citizens Council, 490 U.S. at 349; Inland

Empire Pub. Lands Council v. United States Forest Serv.,

88 F.3d 754, 758 (9th Cir. 1996). “NEPA ensures that the

agency will not act on incomplete information, only to

regret its decision after it is too late to correct it.” Marsh, 490

USS. at 371.

A threshold question here is whether the VMP will

“significantly affect” the environment. See Blue Mountain

Biodiverisity Project, 161 F.3d 1208, 1212 (9th Cir. 1998),

cert. denied sub nom, Malheur Lumber Co. v. Blue Mountain

Biodiversity project, 199 S. Ct. 2337 (1999). Federal regula-

tions promulgated by the Council on Environmental Quality

(“CEQ”) ° permit an agency planning a major federal action

to prepare an EA’ in order to determine whether it must

prepare an EIS. See 40 C.F.R. §§1501.4 & 1508.9(a)(1). If

the EA shows that the proposed action will have no

significant impact, “the agency may issue a [FONSI] * and

then execute the action.” See Sierra Club v. Babbitt, 65 F.3d

1502, 1505 (9th Cir. 1995); California Trout v. Schaefer, 58

F.3d 469, 472 (9th Cir. 1995). The federal agency must

prepare an EIS before proceeding with the proposed activity

if the EA shows that the proposed activity will have a

significant impact. See 42 U.S.C. § 4332(2)C); Conner v.

Burford, 848 F.2d 1441, 1446 (9th Cir. 1988) (“Section

* NEPA regulations promulgated the CEQ are entitled to “substantial

deference.” See Blue Mountain Biodiversity Project, 161 F.3d at 1212

(citing Marsh, 490 U.S. at 372).

” An EA is a concise public document that “{bJriefly provide(s]

sufficient evidence and analysis for determining whether to prepare an

[EIS) or [issue} a [FONSI).’” See 40 C.F.R. 1508%a)(1).

* A FONSI is a document issued in conjunction with an EA that

“briefly present{[s} the reasons why an action . . . will not have a

significant effect on the human environment and for which an [EIS}

therefore will not be prepared.” See id. § 1508.13.

50a

102(2)(C) of NEPA requires Federal agencies to file an EIS

before undertaking ‘major Federal actions significantly

affecting the quality of the human environment.’”), cert.

denied sub nom, Sun Exploration & Prod. Co. v. Lujan, 489

U.S. 1012 (1989)

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