United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-1856

_____________ Jeffrey Mausolf; William Kullberg; * Arlys Strehlo; Minnesota United * Snowmobilers Association, * * Plaintiffs - Appellees, * * v. * * Bruce Babbitt, Secretary, Department * of the Interior; Roger Kennedy, * Director, National Park Service; Mollie * Beattie, Director, U.S. Fish and * Wildlife Service; Ben Clary, * Appeal from the United States Superintendent, Voyageurs National * District Court for the Park, * District of Minnesota. * Defendants; * * Voyageurs Region National Park * Association; Sierra Club, North Star * Chapter; Humane Society of the * United States; Friends of the Boundary * Waters Wilderness; National Park and * Conservation Association; Izaak Walton * League of America, * * Intervenor Defendants - * Appellants. *The Honorable Lyle E. Strom, United States District Judge for the District of 1 Nebraska, sitting by designation. -2- _____________ Submitted: December 12, 1996 Filed: September 23, 1997

_____________ Before BOWMAN and HEANEY, Circuit Judges, and STROM, District Judge. 1

_____________ BOWMAN, Circuit Judge. The Voyageurs Region National Park Association and other conservation groups (collectively, "the Association") appeal from the decision of the District Court granting
summar yjudgment to the Minnesota United Snowmobilers Association, Jeffre y Mauso lf, and other individual snowmobiling enthusiasts ("the Snowmobilers"), wh o sued the Secretary of the Interior a nd other governmental defendants seeking to enjoin the e nforcement of restrictions on snowmobiling in Voyageurs National Park ("th e Park" ). See Mausolf v. Babbitt , 913 F. Supp. 1334 (D. Minn. 1996). We postponed issuing our decision in this case based on counsels' representations at ora l argument that the parties hop ed to negotiate a settlement. It appears, however, that the parties have been un able to reach an agreement, necessitating our resolution of this matter. W e
reverse.

I.
Establishment of Voyageurs National Park was a uthorized in 1971. See Pub. L. 91-6 61, 84 Stat. 1970 (codified as amended at 16 U.S.C. §§ 160-160k (1994))

. Snow mobiling, which had been engaged in freely both prior to and after the Park' s establishment, continued pending the results of wildlife-impact studies conducted byAll citations refer to the Code of Federal Regulations revised as of October 1, 2 1996. The pertinent sections have not been amended since the time period relevant to this case. -3- the Nation al Park Service (NPS). See Mausolf, 913 F. Supp. at 1338. Althoug h snowmobiling generally is prohibited in national parks, see36 C.F.R. § 2 .18(c) (1996), 2 the Voyageurs Park enabling legislation authorized the Secretary of the Interior t o permit snowmobiling in th e Park. See 16 U.S.C. § 160h (1994) ("The Secretary may, when planning for development of the park, include appropriate provisions for (1 ) winter sports, including the use of snowmobiles . . . .") In 1991, the NPS issue d regulations, pursuant to statutory authority granted by Congress, see, e.g. , 16 U.S.C. § 3 (1994) , based on the results of a series of environmental- and wildlife-impac t reports, allowing snowmobiling on nearly all of the Park's lake surfaces and on certain overlan d trails and portage routes. See 36 C.F.R. § 7.33(b). These regulations als o specifically authorize the superi ntendent of Voyageurs National Park to close portions of the Park temporarily after "taking into consideration . . . wildlife management, . . . and p ark management objectives." Id. § 7.33(b)(3). The Association filed suit i n federal co urt claiming that, because the NPS failed to prepare a wilderness pla n outlining the effects of the proposed regulations, the regulations were illegal. In a n unpublished opinion, the District Court ord ered that a wilderness plan be prepared and submitted as required by applicable regulations, but refused to enjoin snowmobiling in the Park. Voyageurs Region Nat'l Park Ass'n v. Lujan , No. 4-90-434, 1991 W L 343370, at *11-14 (D. Minn. Apr. 15, 1991), aff'd , 966 F.2d 424 (8th Cir. 1992).
In August 1991, the NPS, in accordance with the District Court's order, p roposed
a draft wilderness plan which reduced the Park areas available for overlan d snowmobiling but permitted the activity on major lakes, some designated portag e routes, and the Chain of Lakes Trail. The NPS made this recommendation afte r concluding that snowmobilingon overland trails might adversely impact the gray wolfUnder 16 U.S.C. § 1536(a)(2) (1994), each federal agency must consult with 3 the Fish and Wildlife Service (FWS) prior to taking a ny action "likely to jeopardize the continued existence of any endangered species or threatened species or result in th e destructio n or adverse modification of [critical] habitat." After such consultation, the FWS provides "a written statement setting forth the [FWS's] opinion, and a summary of the information on which the opinion is based, detailing how the agency actio n affects the species or its critical habitat." Id. § 1536(b)(3)(A). The c losure order was issued through "The Compendium for Voyageur s 4 Natio nal Park," a document published annually and operating as the summary of th e rulemaking implemented under the discretionary authority of the Park Superintendent. This do cument "serves as public notice" and "contains only a few of the laws an d regulatio ns pertaining to the administration of the park." 1993 Compendium. Th e compendi um

is intended to be "used in conjunction with Title 36, Code of Federa l Regulations, sections 1 through 7." Id. -4- population. The NPS then requested a "biological opini on" from the Fish and Wildlife 3 Service (FWS) concerning the effects, if any, of the proposed action on gray wolf, bald eagl e, and other animal populations in the Park. In March 1992, the FWS concluded that the NPS's proposed

wilderness plan would not jeopardize the animals' survival or adversely affect their critical habitats. However, the FWS acknowledged tha t
sno wmobiler disruption of wolves while hunting prey, although likely insignificant in isolation, could lead to cumulatively significant negative effects if the disruptions were frequent. The FWS directed that the N PS close specific trails, lakeshores, and lakes to snowmobiles and other motorized vehicles, including areas that had been exempte d from closure under the NPS's originally submitted wilderness plan.
Thereafter, in December 1992, P ark officials issued an order closing sixteen of 4 the Park's lake bays and

certain shoreline areas to snowmobiling pursuant to authority granted under 36 C.F.R. § 7.33(b)(3) (authorizing temporary closure of lake surfaces for wildlife-management purposes). This order, which was renewed in 1993 and 1994,The rest ricted use areas account for seven percent of the Park's total wate r 5 acr eage and three percent of the Park's total acreage. See Mausolf, 913 F. Supp. a t 1340 n.9. The definition of "take" is "to harass, harm, pursue, hunt, shoot, wound, kill , 6 trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C

. § 15 32(19) (1994). "Harass" is further defined to include any act that "creates th e likeliho od of injury to wildlife by annoying it to such an extent as to significantl y disr upt normal behavioral patterns which include, but are not limited to, breeding , feeding or sheltering." 50 C.F.R. § 17.3. "Harm" is defined as an act "which actually kills or injures wildlife" and may include "significant habitat modification o r degradation where it actually kills or injures wildlife by signific antly impairing essential behavioral patterns, including breeding, feeding or sheltering." Id. If the FWS conclud es in its biological opinion that the proposed agency action 7 is not likely to jeopardize the continued existence of the species as a whole, but may result in the taking of individual members of the species, the FWS must prepare a n incidental take statement which permits an agency to "take" individual members of a protecte d species if the taking is not the purpose of the action and is therefor e "incidental" to the agency action. See 16 U.S.C. § 1536(b)(4); 50 C.F.R. §§ 17.3 , 402.14(i). This statement from the FWS authorizes the agency to take a li mited number of animals , determined by the FWS, if the agency complies with certain terms an d conditions. See 16 U.S.C. §§ 1536(o)(2), 1536(b)(4) (1994). -5- reduced the Park area s available for snowmobiling. In 1994, the FWS supplemented 5 its biological opinion, stating that the lakeshore closures were designed to minimize the harm, harassment, and taking of gray wolves. The FWS, expressin g its intent to reduce adverse human/wolf contact, explained that while snowmobiles themselves do no t adversely impact the gray wolf, the vehicles provide access to remote wolf-habita t
areas for i ndividuals who could intentionally or unwittingly harm the species or it s individual members. Five "incidents that constitute take by the harassment or harming of gray wolves," an d "numerous additional reports of harassment of gray wolves, . . . 6 most of which are anecdotal and not well documented," were cited by the FWS a s support f or the closures. 1996 Supplement to Biological Opinion at 6. The FW S revised its initial incidental take statement, reducing the permissible number of 7-6-

incidental takings of gray wolves from six wolves to two wolves per year.
In January 1994, th e Snowmobilers sued the Secretary of the Interior and other governmental defendants claiming that the FWS's biological opinion did not support the closures ultimately ordered, and that the closures were therefore arbitrary, capricious,
an d in violation of the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (1994 ) (ESA), and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1994) (APA)

. The Snowmobilers argued that the Secretary, through the NPS and the FWS, ha d
en gagedin an unexplained and unwarranted "about face" on the snowmobiling issu e and had not considered the best available scie ntific and commercial information before issuing the new restrictions. The Association, hoping to defend the closures, move d to intervene, arguing that the NPS had historically permit ted unrestricted snowmobiling in the Park despite regulations prohibiting such activity and despite its advers e environmenta leffect, and that the NPS could not be counted on to protect th e Association's interests in wildlife conservation and enjoyment of the Park.
The District Court denied the Association's motion to intervene, noting tha t under the parens patriae doctrine, governmental entities are presumed to represent th e interests o f all their citizens. See Mausolf v. Babbitt , 158 F.R.D. 143, 147-4 8 (D. Minn. 1994). The Association appealed the District Court's decision denying its mot ionto intervene, and we reversed, holding that the Association possessed th e requisit e Article III standing to intervene and that the Association had rebutted an y presu mptionthat the governmental entities would adequately represent its interests

. See Mausolf v. Babbitt , 85 F.3d 1295, 1304 (8th Cir. 1996).
While the Association's appeal on the intervent ion issue was pending before this Court , the District Court issued its decision on the merits of the Snowmobilers ' challenge to the NPS's Park closure reg ulations. See Mausolf v. Babbitt , 913 F. Supp. 1334 (D. Minn. 1996). The District Court, relying solely on t he provisions of the ESA, enjoined enforcement of the Park closure regulations, noting that the government-7-

"fa iledto explain adequately the reasons for the closures" and that the "evidenc e pr esently in the record is inadequate to establish that curtailing snowmobiling wil l improve the c ondition" of the gray wolf population. Id. at 1343-44. Because i t appeared that the Association's intervention appeal would not be decided by this Court before the expiration of the time period for filing a notice of appeal from the District Court' s merits decision, and because the Association wished to preserve its right t o appeal th e District Court's decision on the merits should its motion to intervene b e grante d on appeal, the Association timely filed a notice of appeal from the Distric t Court's decision on the merits. The gov ernmental defendants likewise filed a notice of ap peal from this decision, but eventually dismissed their appeal. The Association , having bee n granted the right to intervene by this Court, now appeals the Distric t Court's judgment on the merits.

II.

We init ially address the Snowmobilers' contention that we lack jurisdiction t o entertain this ap peal. The Snowmobilers first argue that because the Association was not a party to the litigation when its notice o f appeal from the merits decision was filed and did not become a party until after the time period for filing had expired, th e Associati on's notice of appeal was ineffective and we therefore lack jurisdiction t o consider this appeal. We disagree. "I f final judgment is entered with or after the denial of intervention, . . . th e ap plicant should be permitted to file a protective notice of appeal as to the judgment, to become effective if the denial of intervention is reversed." 15A Charles Alan Wright et al., Federal Practice and Procedure § 3902.1, at 113 (2d ed. 1991). A contrary rule would pr event a prospective intervenor who successfully appeals the district court' s denial of h is intervention motion from securing the ultimate object of such motion-

- party status to argue the merits of the litigation--if, as was the case here, the appellate court does not resolve the intervention issue prior to the district court's final decision-8-

on the meri ts. The Snowmobilers, in support of their argument against jurisdiction , direct our attention to Jenkins v. Mis souri , 967 F.2d 1245 (8th Cir.), cert. denied , 506 U.S. 1033 (1992), for the proposition that the Association's notice of appeal was not timely and therefore not effective. Contrary to the Snowmobilers' characterization of Jenkins , however, the case stands merely for the proposition that if no motion t o intervene is pending, a party cannot file a valid notice of appeal. See i d. at 1248. Here, however, the Association was awaiting a final decision from this Court on it s int erventionmotion when it timely filed a notice of appeal from the merits decision

. "The rule th at only parties to a lawsuit, or those that properly become parties , may appeal an adverse judgment, is well settled." Marino v. Ortiz , 484 U.S. 301, 30 4 (1988) (emphasis added). The Association properly became a party to this lawsuit and, as such, is entitled to appeal the judgment of the District Court.
The Snowmobilers next argue that bec ause the government dismissed its appeal from the District Court's merits decision, "[t]he present case is over" and th e Association may not appeal. Appellees' Br. at 25. The Snowmobilers, citing Diamond v. Charles , 476 U.S. 54 (19 86), maintain that the effect of the government's dismissal "is that [sic] same as if the Government had formally rescinded, repealed, an d abandonedits regulations." Appellees' Br. at 23. According to the Snowmobilers , "[t]hird parties," such as the Association, "do not have standing to force the government to reenact a legal code that the government has chosen to abandon." Id. Again, w e disagree. The Supreme Court noted in Diamond that "an intervenor's right to continue a suit in the absence of the party o n whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III. " Dia mond , 476 U.S. at 68. This Court summarized Diamond when we reversed th e Distri ctCourt's denial of the Association's motion to intervene, noting that Diamon d stands for the proposition that "an intervenor may not appeal, or continue a suit, without the party on whose side interventio n was permitted, unless [the] intervenor has Article-9-

III standing." Mausolf v. Babbitt , 85 F.3d at 1299. We determined in that appeal that "[t]he A ssociation has alleged concrete, imminent, and redressable injuries in fact , which are neither 'conjectural' nor 'hypothetical'," so that the Association ha s
es tablishedArticle III standing to intervene in this litigation. Id. at 1302 (citatio n omitted).

Because we h ave already determined that the Association possesses Article III standing, the only question remaining is whether an Article III case or controvers y remains after the NPS dismissed its appeal. We believe that it does. In holding that the lakeshore closures violate the ESA, and in neglecting to consider the NPS' s independent regulatory authority to order such closures, the District Court has directly impacted the Association's interests in observing and enjoying Park wildlife--including gray wo lves--without the potential interference of snowmobiles. The District Court's ruling, effectively limiting the NPS's discretion to or der such closures in the future, will likely continue to impair th e Association's interests. The NPS's decision not to appeal from the District Court's adverse ruling on the mer its emphasizes the disparity between its interests and those of the Association and confirms that the Association's "concrete, imminent, and redressable injuries in fact" are likely to recur. Id. at 1302.
Moreover, contrary to the Snowmobilers' assertions, the Association is no t
se eking to "enforce" the lakeshore closures. The Association is merely seeking t o prot ectits own interests in wildlife conservation and to ensure that the government' s discretion to promulgate regulations in furtherance of these obj ectives is not improperly restricted. In Nationa

l Wildlife Fed'n v. Lujan , 928 F.2d 453 (D.C. Cir. 1991), a case much like the one before us, an environmental group challenged the va lidity of a mining regulation, and two industry associations intervened to defend the regulation. Whe n the district court struck down the regulation, the industry groups, but not th e government, appealed. The appellate court de termined that the case was not moot and allowed the intervenors to act as sole appellants, reasoning that, "because th e [gover nment] has not promulgated a new regulation removing the [invalid portion of]-10-

the current regulation, [the intervenors] could benefit from an appellate decisio n reversing the district [court] . . . and upholding the current regulation." Id. at 456 n.2. Here, the government has not revoked the closure order enjoined by the District Court, and the Association would likely benefit fro m our decision reversing the District Court and uphol ding that closure order. We conclude that because the Association ha s standing to challe nge the District Court's decision and timely filed its notice of appeal and be cause a case and controversy still exists, we have jurisdiction to consider th e Association's appeal.

III. An adm inistrative agency enjoys broad discretion in carrying out the mandates of its governing statutes, see Chevron, U.S.A., Inc. v. Natural Resources Defens e Council Inc. , 467 U.S. 837, 866 (1984), and we will set aside an agency's action only up ona showing that the action is "arbitrary, capricious, an abuse of discretion, o r otherwise not in accordance with law," 5 U.S.C. § 706(2)(A) (1994); see also Udall v. Tallman , 380 U.S. 1, 16 (1965) ("When the construction of an adminis trative regulation
ra ther than a statute is in issue, deference is even more clearly in order."). Th e appellate court "must make an independent decision based on the same administrative record that was before the factfinder." Sierra Club v. Davies , 955 F.2d 1188, 1192 (8th Cir. 1992). This standard of review requires that the reviewing court defer to th e agency 's decisions in matters within its area of expertise, see Bankruptcy Estate o f United Shipping Co. v. General Mills, Inc. , 34 F.3d 1383, 1390-91 (8th Cir. 1994), and this Court "is not permitted to substitute its judgment for that of the agency," Sierr a Club , 955 F.2d at 1192-93 (citing Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S . 402, 416 (1971)). Regulations promulgated by an agency will be upheld if they are "'reasonably related to the purposes of the enabling legislation. '" Voyageurs Region Nat'l Park Ass'n v. Lujan , 966 F.2d 424, 427 (8th Cir. 199 2) (citation omitted). "While
we may not supply a reasoned basis for the agency's action that the agency itself has not given, we will uphold a decision of less than ideal clarity if the agency's path mayThe Association concedes on appeal that permitting snowmobiling in the areas 8 pre viously subject to the NPS Park closure, as ordered by the District Court, will not jeopardize t he continued existence of the gray wolf. See , e.g. , 50 C.F.R. § 402.0 2 (definin g "jeopardize" to include any action that reasonably would be expected t o "reduce appreciably the likelihood of bo th the survival and recovery of a listed species -11- reasonably be discern ed." Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc. , 419 U.S. 281, 285-86 (1974) (citation omitted).

IV.

Sn owmobiling is a prohibited activity in national parks except where the NP S has promulgated special regulations designatingareas open to snowmobiling, and even the n it is allowed only where such "use is consistent with . . . park managemen t ob jectives, and will not disturb wildlife or damage park resources." 36 C.F.R

. § 2.18(c). Congress endowed the Secretary of the Interior with discretion to permi t
sn owmobiling in Voyageurs National Park when statutes establishing the Park wer e
enac ted: "The Secretary may, when planning for development of the park, includ e appropriate provisions for (1) winter sports, including the use of snowmobiles . . . . " 16 U.S. C. § 160h (1994). Consistent with the NPS's responsibility to manage an d regul ate Park resources, the NPS has been given wide latitude to make managemen t decisions regarding the type and scope of activities permitted on Park property.
The District Court analyzed the propriety of the NPS's Park closures sol ely under the authority granted to the agency by the ESA and concluded that the closures were inv alid. The ESA represents a congressional directive that all federal agencies "shall seek t o conserve endangered species and threatened species and shall utilize thei r authorities in furtherance of the purposes of [the Act]." 16 U.S.C. § 1531(c) (1994). In keeping with Congress's stated purpose to protect wildlife , the ESA prohibits federal agencies from taking any action t hat is "likely to jeopardize the continued existence of any endangered species or threatened species," 16 U.S.C. § 1536(a)(2) (1994), and 8. . . by reducing the reproduction, numbers, or distributio n of that species"). Therefore,

we do not consider the propriety of the Park closures under provisions of the ES A prohibiting agency action likely to jeopardize the gray wolves' continued existence. -12- pr ohibits any person, including a governmental agency, from "taking" any individua l member of a threatened or endangered species population, see 16 U.S.C

. § 1538(a)(1)(B) (1994) (endangered species); 50 C.F.R. § 17.31 (1995) (threatene d species). Under these two provisions, the E SA operates to protect both the survival of entire populations of endangered or threatened species and the survival of individual members of each such species.

Th e District Court, after acknowledging that an agency's action is entitled t o great defe rence, concluded that the NPS and FWS "failed to explain adequately th e
reaso ns for the closures," and that, therefore, the action was arbitrary and capricious. Mausolf , 913 F. Supp. at 1343. The evidence, according to the District Court, wa s insufficient to support the agency's action under the ESA. The Distric t Court found that th e NPS's decision to effectuate these closures was "based on little more tha n speculation." Id. at 1344.

The Dis trict Court, however, neglected to consider the closures in light of th e NP S's authority arising from the organic act creating the NPS and the national par k system, see 16 U.S.C. §§ 1, 3 (1994), from the regulations promulgated under thes e statu tes that govern the management of all national parks, see 36 C.F.R. § 1.5(a), o r from regulations promulgated to manage snowmobiling in Voyageurs Park i n particular,
see 36 C.F.R. § 7.33(b)(3).
The regulations designating routes for snowmobiling within the Park specifically gr ant the Park Superintendent the discretion temporarily to close routes and lak e surfaces to snowmobiling after taking into consideration, among other factors, park36 C.F.R. § 7.33(b)(3) grants the Superintendent author ity to "temporarily close 9 trail s or lake surfaces, taking into consideration public safety, wildlife management , weather, and park management obj ectives." This Court has previously recognized the NPS' s authority to effectuate Park closures pursuant to 36 C.F.R. § 7.33(b). Se e Voya geurs Region Nat'l Park Ass'n v. Lujan , 966 F.2d at 428 ("We also observe that the final regulations provide for closure of given areas to snowmobile use 'taking into consideration . . . wildlife management.'") (citing 36 C.F.R. § 7.33(b)). -13- mana gement

objectives. The 1992 Park closure order, on its face, declares that th e

9 order was issued "[u]nder the authority of Title 36, Code of Federal Regulations , Chapter 1, Section 7.33(b)(3)." SeeAddendum to 1992 Compendium. This order was renewed in

1993, see 1993 Compendium, and in 1994, see 1994 Compendium, again und er the authority granted the Superintendent under § 7.33(b)(3) to mandat e temporary closures to effectuate park management objectives.

The Snowm obilers argue that the challenged Park closures are outside th e Superintendent's authority under § 7.33(b)(3) because there is no stated time limit on the closure order. However, these orders are issued as temporary, annual directives that must be reviewed and either renewed or repealed through yearly compendium s establishing the management goals for the Park. Nothing in the language of the closure order indicates that it is intended to operate as a permanent closure and, because the orders are issued annually, the closures will be reviewed and either renewed o r
mo dified on a yearly basis. Before the District Court enjoined enforcement of th e closure o rder, the NPS, in conjunction with the FWS, was conducting just such a review to determine the benefits, if any, the closures have had on the wolf population andto determine whether the closures should be maintained, modified, or rescinded. Consistent with it s past practice, we hold that, under 36 C.F.R. § 7.33(b)(3), the NPS must conduct, at minimum, an annual review if snowmobile trails are to be closedUnder § 1.5(b), except under emergency conditions, a closure "which is of a 10 nature, magnitude and duration that will result in a significant alteration in the public use pattern of the park area . . . shall be published as rulemaking" in the Federa l Register. 36 C.F.R. § 1.5(b). In this case, however, formal rulemaking was no t re quiredbefore the closure order was effective. As we have previously noted , snowm obiling in Voyageurs National Park is generally prohibited absent specia l regulations permitting the activity. See 36 C.F.R. § 2.18(c). Although the NP S ne glectedto enforce this provision and allowed snowmobiling to continue despit e regulations to the contrary, the subsequent closure order restricting snowmobiling does not amount to a "s ignificant alteration" in what was previously an unlawful public use of the park. -14- "temporarily" and such decisions must be suppor ted by the record. The annual closure order is not outside the Superintendent's authority for lack of a specific time limit. 10 As we ha ve previously noted, agency actions are entitled to a great deal o f deference an d a "reviewing court may not set aside an agency rule that is rational , based o n consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute." Motor Vehi cle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 42 (1983). A re viewing court "may not substitute its own const ructionof a statutory provision for a reasonable interpretation made by th e administrat or

of an agency." Id. at 43. This is not to say that the Superintendent' s discreti onto order Park closures is without limit. It must be exercised with an ey e toward promo ting specific regulatory objectives such as "protection of environmental
o r scenic values" or "protection of natural or cultural resources," 36 C.F.R. § 1.5(a), and it is subject to the arbitrary-and-capricious standard of review, see 5 U.S.C

. § 706(2)(A) (1994); Environmental Defense Fund, Inc. v. Costle , 657 F.2d 275, 283 (D.C. Cir. 1981) ("The [arbitrary-and-capricious] standard mandates judici al affirmance if a rational basis for the agency's decision is presented, even though we migh t otherwise disagree.") (citat ions omitted). Whether an agency's action is arbitrary and capric ious depends on whether "the agency has . . . offered an explanation for it s decision that runs counter to the evidence before the agency, or is so implausible thatThe NPS must consider "cumulative effects" of proposed actions withi n 11 national parks on endangered or threatened species. 50 C.F.R. § 402.14(g)(3). -15- itcould no t be ascribed to a difference in view or the product of agency expertise. " Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43.
Ap plying this standard to the Park closure order, we cannot say that the NPS's decision i s arbitrary and capricious. The evidence in the administrative record, while not overwhelming, is sufficient to provide a rational foundation on which th e NPS could base i ts closure order. The NPS issued its closure order under authority granted b y § 7.33(b)(3) to clo se portions of the Park temporarily in order to further management objectives--including preservation and protection of wildlife. This conclusion wa s reached aft er consultation with the FWS and was based on biological opinions an d incidental take statements issued by that agency. These reports are contained in th e admi nistrative record and establish that the closures may prevent some incidenta l takings of gray wolves.

In its 1992 biological opinion, the FWS noted that the use of snowmobiles i n
areas of concentrated gray wolf activity "has been observed to cause the temporary disruptionof gray wolf [feeding] activity." Biological Opinion at 7. While the FWS concluded t

hat this type of disruption was insignificant in isolation, it determined that continue d disruption of feeding activity by snowmobiles could have significant , negative cumulative effects on individual wolves, especially during severe winter s 11 when prey availability dwindles. In it s 1994 supplement to this biological opinion, the FWS noted that "[s]everal cases of harassment and harming of gray [wolves] have been reporte d within the Park in past years," and that "[i]n each documented case, acces s was gained to gray wolf habitat by motorized vehicle." 1994 Supplement to Biological Opinion. The FWS concluded that "[t]he prob lem lies with providing human access to gray wolf hab itat that would not be provided without motorized vehicles." Id. A number of specific incidents are recounted, along with anecdotal evidence thatBecause we conclude that the park closure is within the discretion granted to 12 the N PS under other statutory and regulatory authority, we decline to consider th e propriety of this closure under the ESA. -16- harassment of gray wolves is not "an unheard of event." Id. at 5. While this evidence is not d efinitive, it does provide a rational basis on which the NPS could hav e concluded that the Park closures were a reasonable solution to the proble m of gray wolf harassment.

The absence of definitive, irrefutable evidence in the record to establish th e adverse connection between snow mobiling and incidental taking of gray wolves is not fatal to the NPS's closure order, since a reviewing court "will uphold a decision of less than ideal clarity if the agency's path may reasona bly be discerned." Bowman Transp., Inc. , 419 U.S. at 286. We conclude that the evidence in the administrative record on which the NPS based its decision to order the Park closures was sufficient to justify the determination and that the action was not arbitrary or capricious. 12

Becaus e the administrative record supports the closures as measures taken t o protec t wildlife under 36 C.F.R. § 7.33(b)(3), and under other regulatory provisions,
see 36 C.F.R. §§ 1.5, 2.18, we reverse the judgment of the District Court and direc t that judgment be entered in favor of the federal defendants and the intervenors.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.