FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RIVER RUNNERS FOR WILDERNESS; 

ROCK THE EARTH; WILDERNESS

WATCH; LIVING RIVERS, nonprofit

corporations,

Plaintiffs-Appellants,

v.

STEPHEN P. MARTIN, in his official

capacity as Superintendent of

Grand Canyon National Park;

DIRECTOR OF THE NATIONAL PARK No. 08-15112 SERVICE; NATIONAL PARK SERVICE;

KENNETH D.C. No. L. SALAZAR, in his 

official capacity as Secretary of CV-06-00894-DGC

the U.S. Department of the OPINION

Interior; UNITED STATES

DEPARTMENT OF THE INTERIOR;

DIANE J. HUMETEWA; ERIC H.

HOLDER JR.,

Defendants-Appellees,

GRAND CANYON RIVER OUTFITTERS

ASSOCIATION; GRAND CANYON

PRIVATE BOATERS ASSOCIATION,

Defendant-IntervenorsAppellees. 

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

June 10, 2009—San Francisco, California

9277
Filed July 21, 2009

Before: Procter Hug, Jr., Betty B. Fletcher and

Michael Daly Hawkins, Circuit Judges.

Per Curiam Opinion

COUNSEL

Julia A. Olson, Wild Earth Advocates, Eugene, Oregon and

Matthew K. Bishop, Western Environmental Law Center,

Helena, Montana, for the plaintiffs-appellants. 

Charles R. Scott, Attorney, United States Department of Justice, Washington, D.C., for Federal appellees.

Sam Kalen, Van Ness Feldman, PC, Washington, D.C., for

defendant-intervenor-appellee Grand Canyon River Outfitters

Association. 

Lori Potter, Kaplan Kirsch & Rockwell LLP, Denver, Colorado, for defendant-intervenor-appellee Grand Canyon Private

Boaters Association. 

9278 RIVER RUNNERS v. MARTIN
OPINION

PER CURIAM:

The National Park Service entered a decision adopting a

2006 Colorado River Management Plan that the PlaintiffAppellants contend is unlawful. They sought to have that

decision set aside by the district court as arbitrary and capricious under the Administrative Procedure Act. The district

court granted summary judgment to all defendants. We

review the district court’s decision de novo. Pit River Tribe

v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006). 

The district court wrote an extensive and well-reasoned

order, which is attached as an appendix. We agree with the

order and adopt it as the opinion of our court.

RIVER RUNNERS v. MARTIN 9279
APPENDIX

River Runners for Wilderness, et 

al.,

Plaintiffs,

v. No. CV-06-894-

Stephen P. Martin, et al.,  PCT-DGC

Defendants, ORDER

Grand Canyon River Outfitters,

Association; and Grand Canyon

Private Boaters Association,

Defendant-Intervenors. 

Filed November 11, 2007

This case concerns the National Parks Service’s decision to

permit the continued use of motorized rafts and support

equipment in Grand Canyon National Park. Plaintiffs contend

that such motorized activities impair the wilderness character

of the Canyon and that the Park Service’s decision violates its

management policies and various federal statutes. Plaintiffs

ask the Court to set aside the decision under the Administrative Procedures Act (“APA”). For reasons explained in this

order, Plaintiffs have not satisfied the high threshold required

to set aside federal agency actions under the APA.

I. Background.

Grand Canyon National Park (“Park”) was established by

Congress in 1919 and expanded in 1975. The Park consists of

more than 1.2 million acres located on the southern end of the

Colorado Plateau in Arizona.

The Park includes a 277-mile stretch of the Colorado River

referred to in this order as the “Colorado River Corridor” or

9280 RIVER RUNNERS v. MARTIN
the “Corridor.” The Park Service regulates the Colorado River

Corridor through a periodically-revised Colorado River Management Plan (“CRMP”). In November of 2005, the Park Service issued a Final Environmental Impact Statement (“FEIS”)

for the 2006 CRMP. On February 17, 2006, the Park Service

issued a Record of Decision (“ROD”) that adopted and

approved the 2006 CRMP. The 2006 CRMP permits the continued use of motorized rafts, generators, and helicopters in

the Colorado River Corridor.

Plaintiffs River Runners for Wilderness, Rock the Earth,

Wilderness Watch, and Living Rivers constitute “a coalition

of organizations committed to protecting and restoring the

Grand Canyon’s wilderness character and unique natural

resources and ensuring fair and equitable access to such

resources[.]” Dkt. #1 at 3. Plaintiffs filed this action against

the Park Service and various individual Defendants.1 The

Court subsequently permitted two private organizations to

intervene in the action—Grand Canyon River Outfitters Association (“GCROA”), which consists of commercial operators

of motorized and non-motorized rafts in the Colorado River

Corridor, and Grand Canyon Private Boaters Association

(“GCPBA”), which consists of private rafters and kayakers of

the Corridor (collectively, “Intervenors”). 

Following exchanges of information and compilation of the

administrative record, Plaintiffs, Defendants, and Intervenors

all filed motions for summary judgment. Dkt. ##55, 62, 64,

and 67. The Court held oral argument on October, 26, 2007.

1The named individual Defendants include Joseph F. Alston, superintendent of the Park; Fran Mainella, director of the Park Service; Gale Norton, Secretary of the United States Department of the Interior; the

Department of the Interior; Paul K. Charlton, former United States Attorney for Arizona; and Alberto R. Gonzales, former Attorney General. 

RIVER RUNNERS v. MARTIN 9281
A. Park Service Management of the Colorado River

Corridor. 

The waters of the Colorado River originate in the mountains of Colorado, Wyoming, and Utah and run 1,450 miles

to the Gulf of California. The Colorado is the longest and

largest river in the Southwestern United States. Once in the

Grand Canyon, the river flows some 4,000 to 6,000 feet

below the rim of the Canyon through cliffs, spires, pyramids,

and successive escarpments of colored stone. Access to the

bottom of the Grand Canyon can be gained only by hiking,

riding mules, or floating the river. Those floating the river

typically do so in motor-powered rubber rafts, oar- or paddlepowered rubber rafts, oar-powered dories, or kayaks. Floating

the river through the Grand Canyon is considered one of

America’s great outdoor adventures and includes some of the

largest white-water rapids in the United States.2

Use of the Colorado River Corridor increased substantially

after Glen Canyon Dam was completed in 1963 and produced

a relatively steady flow through the Canyon. Because of this

increased use, the Park Service initiated a series of river planning and management efforts, culminating in a December

1972 River Use Plan. SAR 000712.3 The plan concluded that

“motorized craft should be phased-out of use in the Grand

Canyon.” SAR 000721, 000705. The plan also concluded that

89,000 commercial user days and 7,600 noncommercial user

days would be allocated for the 1973 season (SAR 000706,

000707), but that commercial use would be scaled down to

55,000 user days by 1977 (SAR 000705).4 A 1973 Draft Envi2When recently asked to identify the “adventure trip of a lifetime,” more

readers of Outside magazine chose rafting the Grand Canyon than any

other adventure. See Thanks for Sharing, Outside, Nov. 2007 at 124. 

3

“AR” refers to the Administrative Record (Dkt.#41) and “SAR” to the

Supplemental Administrative Record (Dkt.#42). The Court will cite to

Bates numbers to identify pages. 

4

“A ‘user day’ is calculated by multiplying the number of passengers by

the number of days. (A ‘day’ is defined as any portion of a 24-hour day.)

9282 RIVER RUNNERS v. MARTIN
ronmental Impact Statement concluded that “[t]he use of

motors . . . should be eliminated as soon as possible from the

river environment” and that “[t]he propose[d] elimination of

motorized trips will . . . hav[e] a positive environmental

impact.” SAR 000917, 000929. 

The Park Service initiated a Colorado River Research Program in 1974 to examine, among other things, the impact of

motorized activities on the river. SAR 003717, 003721. In

September of 1977, the Park Service issued a document suggesting that “the use of motors is contrary to established

health and safety standards” and again opining that the “use

of motorized craft should be eliminated.” SAR 003728. The

document noted that “[n]on-motorized travel is more compatible with wilderness experience” and that “[m]otor noise levels

may have adverse effects on pilot performance, resulting in

potential safety hazards.” SAR 003749. The Park Service was

unable, however, “to document [any] difference in numbers

and degree of injuries between the two types of craft.” Id.

In August of 1976, the Park Service issued a Master Plan

for management of the Park. The Master Plan included an

objective of “[l]imit[ing] mechanized access below the rims

[of the Grand Canyon] to emergency and management use.”

SAR 002352. In February of 1977, the Park Service recommended that Congress designate over one million acres within

the Park as wilderness. SAR 002680. The Park Service found

that motorized use of the river “is inconsistent with the wilderness criteria of providing outstanding opportunities for solitude and for primitive and unconfined type of recreation.”

SAR 002711, 002723.

The Park Service released the first CRMP in December of

1979. SAR 005223-005285. Use of motorized watercraft

For example, if the [permit] holder has two clients on a two day trip, this

would equal four user days.” National Parks Service, How a Commercial

Use Authorization Works, https:// cms.imr.nps.gov/bibe/parkmgmt/cua -

operations.htm (last updated June 9, 2007). 

RIVER RUNNERS v. MARTIN 9283
between Lees Ferry and Separation Canyon was to be phased

out over a five-year period. SAR 005244. The 1979 CRMP

stated that such a phaseout was consistent with “the objective

of the [1976] Master Plan[,] corresponded with the park wilderness proposal,” and was “based on the extensive Colorado

River Research project for the Grand Canyon[.]” Id. The

CRMP increased the allocated commercial user days from

89,000 per year to 115,500 and increased the allocated noncommercial user days from 7,600 to 54,450. SAR 005246. In

September 1980, the Park Service proposed that the Colorado

River Corridor be designated as “potential wilderness” and,

once motorboat use was phased-out, as “wilderness.” SR

005770.

Congress countermanded the 1979 CRMP in a 1981 appropriations bill for the Department of the Interior. The bill prohibited the use of appropriated funds “for the implementation

of any management plan for the Colorado River within the

[Park] which reduces the number of user days or passengerlaunches for commercial motorized watercraft excursions[.]”

SAR 005896. Members of Congress sent a letter to the Park

Service expressing their “wish that the [1979 CRMP] be

amended . . . to accommodate the 1978 level and pattern of

commercial, motorized watercraft access while at the same

time protecting . . . the increased non-commercial allocation

which the plan provides.” SAR 005901. The Park Service

subsequently revised the 1979 CRMP to “retain[ ] motorized

use and the increase in user-days that had been intended as

compensation for the phase-out of motors, resulting in more

motorized use of the river.” AR 104602.

The Park Service issued a second CRMP in 1989. The 1989

CRMP was similar to the revised 1979 CRMP. It included the

same allocation of user days for commercial and noncommercial boaters, but increased the number of noncommercial launches. AR 000863.

The Park Service’s 1995 General Management Plan

(“GMP”) for the Park identified an objective of “provid[ing]

9284 RIVER RUNNERS v. MARTIN
a wilderness river experience on the Colorado River,” but

explained that “this objective will not affect decisions regarding the use of motorboats on the river.” SAR 010142. Rather,

the GMP stated that the 1989 CRMP would be revised and

that the revised plan would address the use of motors. SAR

010188.

B. The 2006 CRMP. 

Planning for the 2006 CRMP began in 1997 with the solicitation of public comments and a series of public workshops

in Oregon, Utah, and Arizona. After this process was suspended and restarted following the filing of two lawsuits, the

Park Service published in the Federal Register, on June 13,

2002, a notice of intent to prepare an environmental impact

statement for a revised CRMP. Seven additional public meetings and stakeholder workshops were held in Colorado, Utah,

Arizona, Nevada, Maryland, and California. More than one

thousand people attended the meetings and the Park Service

received more than 13,000 written submissions.

In the Fall of 2004, the Park Service released for public

review a Draft Environmental Impact Statement (“DEIS”) for

the revised CRMP. The DEIS presented eight alternatives

(Alternatives A-H) for managing the river from Lees Ferry to

Diamond Creek, a stretch of 226 miles referred to in this order

as the “Lees Ferry Segment,” and five alternatives (Alternatives 1-5) for managing the river from Diamond Creek to

Lake Mead, a stretch of 51 miles referred to in this order as

the “Lower Gorge.” The alternatives included motorized and

non-motorized options. Because of the complexity of the

DEIS and the level of public interest, the Park Service

extended the standard 90-day comment period for one additional month. The Park Service also hosted public meetings in

Colorado, Utah, Washington, D.C., Nevada, Arizona, and

California. The Park Service received some 10,000 written

submissions, including approximately 6,000 substantive and

30,000 non-substantive comments on the DEIS. The Park SerRIVER RUNNERS v. MARTIN 9285
vice coded, organized, analyzed, and responded to the substantive comments, and modified the DEIS where it felt

modifications were warranted.

The Park Service received comments from a coalition of

groups representing both commercial and non-commercial

boaters of the Colorado River Corridor—groups often at odds

with each other on issues of river management. The coalition

included Intervenors, American Whitewater, and Grand Canyon River Runners Association. The coalition supported equal

allocation of river time between commercial and noncommercial boaters and the continued authorization of appropriate levels of motorized use. AR 060444-51.

In November 2005, the Park Service issued the threevolume Final Environmental Impact Statement. The FEIS

addressed the same alternatives discussed in the DEIS, with

some modifications to Alternatives H and 4, and expressed a

preference for Modified Alternative H for the Lees Ferry Segment and Modified Alternative 4 for the Lower Gorge. The

selected alternatives permitted the use of motorized rafts, generators for emergencies and inflating rafts, and helicopters to

make passenger exchanges at the Whitmore helipad. As noted

above, in February 2006, the Park Service issued a ROD that

formally adopted Modified Alternatives H and 4 for the 2006

CRMP.

II. The Court’s Task. 

Plaintiffs argue that the 2006 CRMP is unlawful and should

be set aside. The Court’s task is not to make its own judgment

about whether motorized rafts should be allowed in the Colorado River Corridor. Congress has delegated that responsibility to the Park Service. The Court’s responsibility is narrower:

to determine whether the Park Service’s 2006 CRMP comports with the requirements of the APA, 5 U.S.C. § 701 et

seq.

9286 RIVER RUNNERS v. MARTIN
The APA does not allow the Court to overturn an agency

decision because it disagrees with the decision or with the

agency’s conclusions about environmental impacts. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,

435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct.

2718, 49 L.Ed.2d 576 (1976)). An agency’s decision may be

set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). The standard is deferential. The Court “may not

substitute its judgment for that of the agency concerning the

wisdom or prudence of [the agency’s] action.” Or. Envtl.

Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987).

In conducting an APA review, the Court must determine

whether the agency’s decision is “founded on a rational connection between the facts found and the choices made . . . and

whether [the agency] has committed a clear error of judgment.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife,

273 F.3d 1229, 1243 (9th Cir. 2001). “The [agency’s] action

. . . need only be a reasonable, not the best or most reasonable,

decision.” Nat’l Wildlife Fed. v. Burford, 871 F.2d 849, 855

(9th Cir. 1989).

Plaintiffs assert that the 2006 CRMP is arbitrary and capricious under the APA because it violates the Park Service’s

own policies, the National Park Service Concessions Management and Improvement Act (“Concessions Act”), the National

Park Service Organic Act (“Organic Act”), and the National

Environmental Policy Act (“NEPA”). The Court will address

each of these arguments separately.

III. Compliance with Park Service Policies.

A. Enforceability of the Policies. 

Even though Congress has never acted on the Park Service’s recommendation to designate a substantial portion of

RIVER RUNNERS v. MARTIN 9287
the Park as wilderness, Plaintiffs claim that the Park Service’s

own policies give rise to a legally binding obligation to maintain the wilderness character of the Park. Plaintiffs claim that

the Park Service has breached this legal duty by authorizing

the continued use of motorized activities in the 2006 CRMP.

Defendants and Intervenors argue that the Park Service policies do not have the force and effect of law and therefore may

not be enforced against the Park Service in this legal action.

In their motion for summary judgment, Plaintiffs identified

three policies that allegedly create binding obligations on the

Park Service: the 1976 Master Plan, the 1995 GMP, and the

2001 Park Service Management Policies (the “2001 Policies”). Two of these arguments—the 1976 Master Plan and

the 1995 GMP-are easily eliminated. Plaintiffs conceded at

oral argument that the 1976 Master Plan has been superceded

and cannot be viewed as binding; and Plaintiffs devoted little

time at argument or in their reply brief to their claim that the

1995 GMP creates legal obligations. The Court concludes that

is does not.5 Plaintiffs instead focus on the 2001 Policies,

arguing that they are binding because they are written in mandatory language, were mentioned in the Federal Register, and

have been found binding in Southern Utah Wilderness Alliance v. National Park Service, 387 F.Supp.2d 1178 (D.Utah

2005) (“SUWA”). The Court will address this argument in

some detail. 

In United States v. Fifty-Three (53) Eclectus Parrots, 685

F.2d 1131 (9th Cir. 1982), the Ninth Circuit established a

5The text of the 1995 GMP states that it “guides the management of

resources, visitor use, and general development of the [P]ark over a 10-to

15-year period.” SAR 010132 (emphasis added). The GMP sets out “objectives” and “visions” for management of the Park. SAR 010138. The

GMP was not published in the Federal Register or the Code of Federal

Regulations. For reasons explained below with respect to the 2001 Policies, such general policy guidance does not have the force and effect of

law. 

9288 RIVER RUNNERS v. MARTIN
two-part test for determining when agency pronouncements

have the force and effect of law:

To have the force and effect of law, enforceable

against an agency in federal court, the agency pronouncement must (1) prescribe substantive

rules-—not interpretive rules, general statements of

policy or rules of agency organization, procedure or

practice—and (2) conform to certain procedural

requirements. To satisfy the first requirement the

rule must be legislative in nature, affecting individual rights and obligations; to satisfy the second, it

must have been promulgated pursuant to a specific

statutory grant of authority and in conformance with

the procedural requirements imposed by Congress.

Id. at 1136 (internal quotes and citations omitted).

The 2001 Policies fail the first part of the Eclectus Parrots

test because they do not purport to prescribe substantive rules.

As the United States Court of Appeals for the District of

Columbia Circuit recently held with respect to these very Policies: “While the text of the Policies on occasion uses mandatory language, such as ‘will’ and ‘must,’ the document as a

whole does not read as a set of rules. It lacks precision in its

directives, and there is no indication of how the enumerated

policies are to be prioritized.” The Wilderness Soc.’y v. Norton, 434 F.3d 584, 595 (D.C.Cir. 2006).

The text of the 2001 Policies makes clear that they are

intended only to provide guidance within the Park Service,

not to establish rights in the public generally. The Introduction describes the Policies as a “basic Service-wide policy

document,” as a “guidance document[ ],” and as a statement

of policy “designed to provide [Park Service] management

and staff with clear and continuously updated information . . .

that will help them manage parks and programs effectively.”

SAR 016079. That the 2001 Policies are not intended to have

RIVER RUNNERS v. MARTIN 9289
the same force as binding Park Service regulations is made

clear by the Introduction’s explanation that existing, formallypromulgated Park Service regulations will trump inconsistent

provisions in the 2001 Policies until such time as the regulations “are formally revised through the rulemaking procedure

[.]” SAR 016082.

Equally significant, the Introduction to the 2001 Policies

provides that Park Service management can choose to waive

or modify the Policies: “Adherence to policy is mandatory

unless specifically waived or modified in writing by the Secretary, the Assistant Secretary, or the Director.” SAR 016078.

“Waivers and modifications will be considered on a caseby-case basis,” the Policies explain. SAR 016079. Needless to

say, policy statements that may be waived or modified by an

agency can hardly be said to have the binding force of law.

As the D.C. Circuit noted, “this language does not evidence

an intent on the part of the agency to limit its discretion and

create enforceable rights. Rather, the agency’s top administrators clearly reserved for themselves unlimited discretion to

order and reorder all management priorities.” Wilderness

Soc’y, 434 F.3d at 596.

Nor do the 2001 Policies purport to create substantive individual rights or obligations for persons or entities outside the

Park Service. The Policies set forth priorities, practices, and

procedures to be followed by Park Service personnel in

administering the national park system. In the words of Eclectus Parrots, they are “interpretive rules, general statements of

policy or rules of agency organization, procedure or practice[.]” 685 F.2d at 1136 (quotes and citations omitted). See

also United States v. Alameda Gateway Ltd., 213 F.3d 1161,

1168 (9th Cir. 2000) (agency rule did not have the force or

effect of law in part because “[i]t was not intended to create

substantive rights in third parties”); Moore v. Apfel, 216 F.3d

864, 868-69 (9th Cir. 2000) (agency provision did not satisfy

the Eclectus Parrots test, as it “creates no substantive rights”

and instead “provides [agency] staff with internal proce9290 RIVER RUNNERS v. MARTIN
dures”); Chrysler Corp. v. Brown, 441 U.S. 281, 302, 99 S.Ct.

1705, 60 L.Ed.2d 208 (1979) (whether an agency pronouncement affects individual rights and obligations “is an important

touchstone for distinguishing those rules that may be binding

or have the force of law”) (internal quotation marks and citation omitted).

The 2001 Policies also fail the second part of the Eclectus

Parrots test. The APA requires that “publication or service of

a substantive rule shall be made not less than 30 days before

its effective date.” 5 U.S.C. § 553(d). The 2001 Policies were

not published in the Federal Register. The Park Service did

publish a notice of the availability of a draft of the 2001 Policies and a notice of new policy, but never published the 2001

Policies themselves. See 65 Fed.Reg. 2984 (Jan. 19, 2000); 65

Fed.Reg. 56003 (Sept. 15, 2000). What is more important, the

Policies were never published in the Code of Federal Regulations. This suggests that the Park Service did not intend to

announce substantive rules enforceable by third parties in federal court. See W. Radio Servs. Co., Inc. v. Espy, 79 F.3d 896,

901 (9th Cir. 1996) (stating, in its determination that two

agency documents did not satisfy the Eclectus Parrots test,

that “[n]either [document] is published in the Federal Register

or the Code of Federal Regulations”). The D.C. Circuit found

this lack of publication “particularly noteworthy” in concluding that the 2001 Policies are not substantive law. Wilderness

Soc’y, 434 F.3d at 595; see also Brock v. Cathedral Bluffs

Shale Oil Co., 796 F.2d 533, 539 (D.C.Cir.1986) (“The real

dividing point between regulations and general statements of

policy is publication in the Code of Federal Regulations[.]”).

This conclusion is bolstered by the Park Service’s own

characterization of the 2001 Policies. In its Federal Register

announcement that a draft of the 2001 Policies was available

for public comment, the Park Service explained that “park

superintendents, planners, and other [Park Service] employees

use management policies as a reference source when making

decisions that will affect units of the national park system.”

RIVER RUNNERS v. MARTIN 9291
65 Fed.Reg. 2984 (Jan. 19, 2000). A “reference source,” of

course, is not the same as binding substantive law.

In sum, the 2001 Policies are not enforceable against the

Park Service in this action. The Policies do not prescribe substantive rules, nor were they promulgated in conformance

with the procedures of the APA. Eclectus Parrots, 685 F.2d

at 1136. The Court therefore may not set aside the 2006

CRMP because it fails to comply with portions of the 2001

Policies requiring the Park Service to treat the Colorado River

Corridor as wilderness or potential wilderness, nor may the

Court conclude, as Plaintiffs argue, that provisions of the Wilderness Act are incorporated into the 2001 Policies and binding on the Park Service in this case.6

B. Plaintiffs’ Chevron Cases. 

Plaintiffs argue that the lack of formal rulemaking does not

prevent the 2001 Policies from having the force and effect of

law. For support, Plaintiffs rely primarily on United States v.

Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292

(2001), and SUWA, 387 F.Supp.2d 1178. Plaintiffs in Mead

challenged a tariff ruling by the United States Customs Service. Plaintiffs in SUWA challenged a decision by the Park

Service to ban motorized vehicles in a portion of Canyonlands

National Park. In both cases the courts were required to

decide whether the agency decisions were entitled to defer6Much of Plaintiffs’ argument rests on the Wilderness Act, 16 U.S.C.

§§ 1131-1136. Plaintiffs argue, for example, that motorized uses are prohibited by the Act, motorized rafting in the Colorado River Corridor is not

“established” under the Act, and such rafting is not “necessary and proper”

as required by the Act. These arguments are unavailing, however, because

the portions of the Act cited by Plaintiffs apply only to designated wilderness and the Park has never been designated as wilderness by Congress.

In addition, as noted above, the 2001 Policies are not binding law that

incorporates the Wilderness Act. Indeed, Plaintiffs admit in their reply

memorandum that they are not making a claim under the Wilderness Act.

See Dkt.#71 at 4. 

9292 RIVER RUNNERS v. MARTIN
ence under Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984).

The Supreme Court explained Chevron deference in this

manner: when Congress has expressed an expectation that an

agency will speak with the force of law and resolve ambiguities or fill gaps in statutory law, “a reviewing court has no

business rejecting an agency’s exercise of its generally conferred authority . . . simply because the agency’s chosen resolution seems unwise, but is obligated to accept the agency’s

position if Congress has not previously spoken to the point at

issue and the agency’s interpretation is reasonable [.]” Mead,

533 U.S. at 229 (citations omitted). In short, Courts are not to

interfere with reasonable agency decisions rendered within

areas where Congress has authorized the agencies to act.

Among other considerations, a court applying the Chevron

doctrine asks whether an agency decision is intended by Congress to have the force of law. The Supreme Court noted in

Mead that the existence of formal notice-and-comment rulemaking is a strong indicator of such authority. The Supreme

Court went on to explain, however, that “as significant as

notice-and-comment rulemaking is in pointing to Chevron

authority, the want of that procedure here does not decide the

case, for we have sometimes found reasons for Chevron deference even when no such administrative formality was

required and none was afforded[.]” Id. at 230-31. The District

Court in SUWA relied on this language and found that Chevron deference was due the Park Service’s decision to ban

motorized vehicles in Canyonlands even though the decision

was based on the 2001 Policies that were not adopted through

formal notice-and-comment rulemaking. 387 F.Supp.2d at

1187-88. Plaintiffs rely on this holding and the above-quoted

language from Mead to argue that the same 2001 Policies

should have the force and effect of law in this case.

There is a difference, however, between application of the

Chevron doctrine in SUWA and the question to be decided in

RIVER RUNNERS v. MARTIN 9293
this case. The plaintiffs in SUWA argued that the 2001 Policies were not entitled to deference and that a decision based

on them should be set aside. The District Court relied on the

Chevron doctrine to conclude that the 2001 Policies provided

a sound basis for deference to the Park Service—a shield for

the agency’s decision concerning the proper administration of

Canyonlands National Park. Plaintiffs in this case seek an

opposite result—to use the same 2001 Policies as a sword to

set aside Park Service decisions concerning the proper administration of Grand Canyon National Park.

Chevron analysis does not control this case. Whether an

agency’s decision falls within the scope of activity intended

by Congress to resolve ambiguities or fill gaps in the governing statutes and therefore is entitled to deference in the courts

is a different question than whether an agency’s decision

becomes binding law that gives outside parties the right to

enforce the decision against the agency in court. The first

question asks whether the agency has acted within the realm

and with the expertise Congress intended. The second focuses

on the substance and form of the agency’s action and asks

whether the agency intended to promulgate binding law for

itself and the outside world. This case presents the second

question—a question to be decided under Eclectus Parrots.

As explained above, the 2001 Policies are not enforceable

against the Park Service under Eclectus Parrots.

7

7The Court recognizes that the decision in SUWA contains language at

odds with this order. SUWA concludes, for example, that the 2001 Policies

“are not a general statement of policy, but prescribe substantive rules.”

387 F.Supp.2d at 1189. The Court views the Chevron context of these

statements as a sufficient basis to distinguish them from this case, but to

the extent they are simply inconsistent with this order, the Court respectfully disagrees with them for the reasons explained in part III.A above. 

9294 RIVER RUNNERS v. MARTIN
C. The Policies Do Not Render the 2006 CRMP Arbitrary and Capricious. 

Citing Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th

Cir. 2005), and related cases, Plaintiffs alternatively argue

that the 2006 CRMP is arbitrary and capricious even if the

2001 Policies do not have the force and effect of law. The

Ninth Circuit held in Ecology Center that the Forest Service

could not disregard a non-binding soil standard when the Forest Service’s own environmental impact statement purported

to comply with the standard. To disregard the standard, the

court held, would render the environmental impact statement

misleading and unlawful. Id. at 1069. Plaintiffs argue that

because the FEIS and ROD purport to follow the 2001 Policies and the 1995 GMP, but in fact fail to do so, they are arbitrary and capricious. The Court does not agree.

Plaintiffs base their argument on the fact that the Colorado

River Corridor has been classified by the Park Service as

potential wilderness. The 2001 Policies provide the following

guidance with respect to the management of potential wilderness areas:

The National Park Service will take no action that

would diminish the wilderness suitability of an area

possessing wilderness characteristics until the legislative process of wilderness designation has been

completed . . . . This policy also applies to potential

wilderness, requiring it to be managed as wilderness

to the extent that existing non-conforming conditions

allow. The National Park Service will seek to

remove from potential wilderness the temporary,

non-conforming conditions that preclude wilderness

designation.

2001 Policies § 6.3.1 (SAR 016136-37). The FEIS makes this

same commitment with respect to the Colorado River Corridor. See FEIS Vol. I at 234.

RIVER RUNNERS v. MARTIN 9295
The language of § 6.3.1 makes clear that the Park Service

is required to manage potential wilderness areas as actual wilderness only “to the extent that existing nonconforming conditions allow.” This language does not require the Park

Service immediately to remove existing non-conforming

uses—in this case, motorized rafts. It requires the Park Service to manage the Colorado River Corridor as wilderness to

the extent possible given the existing use of motors. In light

of this clear provision, the Court cannot conclude that the

2006 CRMP is arbitrary and capricious for failing to remove

motorized uses in the Colorado River Corridor immediately.8

Section 6.3.1 further states that the Park Service “will seek

to remove from potential wilderness the temporary, nonconforming conditions that preclude wilderness designation.”

2001 Policies § 6.3.1 (SAR 016137). Seasonal uses of motors

on the river do not preclude wilderness designation. Plaintiffs

do not contend that such uses work any permanent change on

the Corridor that would preclude later wilderness treatment.

Seasonal float trips are not like the construction of a road or

other physical improvements that might disqualify an area for

wilderness designation in the future. Motorized float trips can

readily be eliminated if Congress decides that the Corridor

should be designated as wilderness. The FEIS concludes that

the use of motors in the Corridor “is only a temporary or transient disturbance of wilderness values” and “does not permanently impact wilderness resources or permanently denigrate

wilderness values.” FEIS, Vol. I at 17; see also AR 093108-

19 (discussion of limited effect of motorized uses on soils),

AR 093051 (same for water quality), AR 093083-84 (same

for air quality), AR 093132-33 (same for natural soundscape).9

8Nor did Plaintiffs appear to believe that immediate removal was

required when they submitted written comments on the DEIS. Plaintiffs

did not assert that the 2001 Policies required the immediate removal of

motorized uses, but instead endorsed a plan to “phas[e] out motorized use

over a reasonable time period not to exceed 10 years.” AR 050222. 

9During oral argument, Plaintiffs asserted that § 6.4.3.3 of the 2001 Policies, which precludes motors in “wilderness” areas, trumps § 6.3.1. It

9296 RIVER RUNNERS v. MARTIN
Plaintiffs also argue that the 2006 CRMP is arbitrary and

capricious in light of the 1995 GMP, citing portions of the

GMP that require the Park Service to “protect the natural

quiet and solitude” of the Park and “manage areas meeting

criteria for wilderness designation as wilderness.” SAR

010126. While the 1995 GMP does contain these general

statements, it also contains specific exceptions for motorized

rafting. The GMP’s stated objective for management of the

river reads as follows: “Provide a wilderness river experience

on the Colorado River (this objective will not affect decisions

regarding the use of motorboats on the river).” SAR 010142.

Elsewhere, the 1995 GMP states that “[t]he use of motorboats

will be addressed in the revised [CRMP], along with other

river management issues identified through the scoping process.” SAR 010188. Because the 1995 GMP expressly

declines to require the elimination of motorized uses in the

Corridor, and in fact defers a decision on such uses to the

2006 CRMP, it plainly does not render the 2006 CRMP’s resolution of the issue arbitrary and capricious.10

The Court notes, additionally, that federal agencies are entitled to some leeway when interpreting their own policies and

regulations. Stinson v. United States, 508 U.S. 36, 45, 113

S.Ct. 1913, 123 L.Ed.2d 598 (1993) ( “provided an agency’s

interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given controlling

weight unless it is plainly erroneous or inconsistent with the

regulation.”). When that leeway is added to the CRMP’s general consistency with the 2001 Policies and the 1995 GMP,

the Court cannot conclude that the policies, even if not

appears to the Court, however, that § 6.3.1 is the more relevant provision

because it applies specifically to areas “possessing wilderness characteristics” that have not yet been designated as wilderness by Congressprecisely the circumstance of the Colorado River Corridor. 

10Plaintiffs argue that the 2006 CRMP should be set aside because

motorized traffic on the river does not constitute an “established use”

under section 4(d)(1) of the Wilderness Act, 16 U.S.C. § 1133(d)(1). As

noted earlier, however, this is not a Wilderness Act case. 

RIVER RUNNERS v. MARTIN 9297
enforceable in court, render the CRMP arbitrary and capricious.

Finally, Plaintiffs argue that the 2006 CRMP is arbitrary

and capricious because it contradicts earlier Park Service

decisions to phase out motorized boating in the Colorado

River Corridor. As noted above, the 1979 CRMP called for

motorized watercraft between Lees Ferry and Separation Canyon to be phased out over a five-year period. SAR 005244.

The Court cannot conclude, however, that the 2006 CRMP is

arbitrary and capricious solely because it differs from earlier

Park Service decisions. Part of the discretion granted to federal agencies is the freedom to change positions. As the

Supreme Court has explained, “[a]n agency’s view of what is

in the public interest may change, either with or without a

change in circumstances. But an agency changing its course

must supply a reasoned analysis.” Motor Vehicle Mfrs. Ass’n

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct.

2856, 77 L.Ed.2d 443 (1983) (quotation omitted). The question posed by this lawsuit, therefore, is not whether the 2006

CRMP differs from past Park Service decisions, but whether

it is arbitrary and capricious in light of facts in the administrative record and the reasoning of the FEIS. For reasons

explained in this order, the Court finds the 2006 CRMP sufficiently reasonable to pass APA muster.

IV. The Concessions Act. 

Plaintiffs contend that the 2006 CRMP is arbitrary and

capricious because it fails to comply with the requirements of

the Concessions Act. The Act governs the granting of commercial concessions within the National Park System. “To

make visits to national parks more enjoyable for the public,

Congress authorized [the Park Service] to grant privileges,

leases, and permits for the use of land for the accommodation

of visitors. Such privileges, leases, and permits have become

embodied in national parks concession contracts.” Nat’l Park

Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 805-

9298 RIVER RUNNERS v. MARTIN
806, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). The specific

provision of the Act relied on by Plaintiffs articulates a Congressional “policy” for the granting of concessions:

It is the policy of the Congress that the development of public accommodations, facilities, and services in units of the National Park System shall be

limited to those accommodations, facilities, and services that—

(1) are necessary and appropriate for public use

and enjoyment of the unit of the National Park System in which they are located; and

(2) are consistent to the highest practicable degree

with the preservation and conservation of the

resources and values of the unit.

16 U.S.C. § 5951(b).

Plaintiffs claim that the 2006 CRMP is arbitrary and capricious because the Park Service never determined that the

types and levels of motorized uses authorized by the CRMP

are necessary and appropriate for public use and consistent

with the Park’s resources and values. Before addressing this

argument, the Court must address the legal standard that governs review of a Concessions Act claim.

A. Legal Standard Under the Concessions Act. 

In support of their Concessions Act argument, Plaintiffs

rely heavily on High Sierra Hikers Ass’n v. Blackwell, 390

F.3d 630 (9th Cir. 2004), a case in which the Ninth Circuit

struck down the Forest Service’s grant of permits to commercial packstock operators in the Ansel Adams and John Muir

Wilderness Areas of California. The Court held that the Forest

Service must make a finding that “the number of permits

granted was no more than was necessary to achieve the goals

RIVER RUNNERS v. MARTIN 9299
of the Act.” Id. at 647. Plaintiffs argue that Blackwell requires

a similar Park Service finding for the number of motorized

raft trips permitted in the 2006 CRMP.

It is significant, however, that the court in Blackwell was

applying the Wilderness Act, not the Concessions Act. The

Wilderness Act places strict limitations on the use of lands

formally designated by Congress as wilderness. With narrow

exceptions, the Wilderness Act prohibits commercial enterprises, permanent roads, and motorized vehicles in wilderness

areas. 16 U.S.C. § 1133(c). Federal agencies are obligated to

manage such areas to preserve their wilderness character. Id.

at § 1133(b). The Ninth Circuit explained in Blackwell that

the Forest Service’s obligation to limit commercial packstock

permits “flows directly out of the agency’s obligation under

the Wilderness Act to protect and preserve wilderness areas.”

390 F.3d at 647. It was this “ultimate interest” and “overarching purpose” of the Wilderness Act—to protect the Ansel

Adams and John Muir Wilderness Areas from degradation—that led the Ninth Circuit to hold that the packstock permit decision violated “the Forest Service’s statutory

responsibility.” Id. at 647-48.

This case, by contrast, does not concern a wilderness area.

Congress has never acted on the Park Service’s recommendation that portions of the Park be formally designated as wilderness. The Park Service, therefore, is not under the same

“statutory responsibility” that applied to the Forest Service in

Blackwell. The Court must look to the Concessions Act, not

the Wilderness Act, for the governing legal standard.

In Wilderness Preservation Fund v. Kleppe, 608 F.2d 1250

(9th Cir. 1972), the Ninth Circuit decided a case under 16

U.S.C. § 20, the statutory predecessor to the Concessions Act.

See City of Sausalito v. O’Neill, 386 F.3d 1198, 1204 (9th Cir.

2004) (Kleppe decided under predecessor to Concessions

Act); Pub.L. 105-391, 1123 Stat. 3515 (16 U.S.C. § 20 superceded by 16 U.S.C. § 5951). The predecessor statute, like the

9300 RIVER RUNNERS v. MARTIN
Concessions Act, stated a Congressional “policy” that commercial concessions in national parks should be “limited to

those that are necessary and appropriate for public use and

enjoyment of the national park area in which they are located.” Kleppe, 608 F.2d at 1253. In rejecting a challenge under

this policy to the Park Service’s allocation of rafting permits

in the Colorado River Corridor, Kleppe recognized the “administrative discretion” granted the Park Service and invoked

“a judicial presumption favoring the validity of administrative

actions.” Id. at 1254.

This more deferential standard appears to be warranted.

The Park Service is charged with administering almost 400

national parks. See National Park Service, About Us, http://

www.nps.gov/aboutus/index.htm (last visited Nov. 20, 2007).

The Concessions Act does not impose strict wilderness

requirements on those parks, but instead articulates a policy

that calls for the Park Service to balance the interests of public use and resource preservation. 16 U.S.C. § 5951(b). The

Park Service’s balancing of those interests over the broad

range and diverse circumstances of hundreds of national parks

is appropriately accorded the kind of deference recognized in

Kleppe. The Court concludes that the deferential approach of

Kleppe, rather than the statutory application of the Wilderness

Act in Blackwell, should govern this case.11

11Defendants themselves state that the “necessary and appropriate” standard of the Concessions Act is “analogous” to the “necessary and proper”

standard in the Wilderness Act. Dkt. #69 at 25. Defendants make this

statement, however, in the context of arguing that the 2006 CRMP survives a challenge under the Concessions Act for the same reasons it would

survive a challenge under the Wilderness Act if that Act applied. Id. at 25-

26. The Court does not take this statement as a concession that the legal

requirements of the two acts are the same. For the reasons explained

above, the Court finds that the two Acts are appropriately treated differently in Blackwell and Kleppe.

RIVER RUNNERS v. MARTIN 9301
B. The 2006 CRMP and the Concessions Act. 

Plaintiffs first contend that the Park Service failed entirely

to determine that the types and levels of commercial services

authorized by the 2006 CRMP are necessary and appropriate.

The Court disagrees. The Park Service made the following

determinations:

Since many visitors who wish to raft on the Colorado River through Grand Canyon possess neither

the equipment nor the skill to successfully navigate

the rapids and other hazards of the river, the [Park

Service] has determined that it is necessary and

appropriate for the public use and enjoyment of the

park to provide for experienced and professional

river guides who can provide such skills and equipment.

* * *

[S]ervices provided by commercial outfitters, which

enable thousands of people to experience the river in

a relatively primitive and unconfined manner and

setting (when many of them otherwise would be

unable to do so), are necessary to realize the recreational or other wilderness purposes of the park.

FEIS Vol. I at 19.

Plaintiffs argue that although the Park Service may have

found commercial outfitters to be necessary and appropriate

generally, it never made such a finding for motorized commercial services. Again the Court disagrees. The ROD specifically states that “[d]etermination of the types and levels of

commercial services that are necessary and appropriate for the

Colorado River through Grand Canyon National Park were

determined through [the FEIS].” ROD at 6 (AR 109596)

(emphasis added). Among the eight management alternatives

9302 RIVER RUNNERS v. MARTIN
considered by the Park Service in the DEIS and FEIS were

two that did not authorize any motorized uses in the Colorado

River Corridor (Alternatives B and C). After evaluating these

alternatives, the Park Service found that they “violated the

basic premise of this planning effort; that of reducing congestion, crowding and impacts without reducing access of visitors to the Colorado River[.]” FEIS Vol. III at 373. “As

demonstrated by the Park Service’s analysis of the no-motor

alternatives, a decision by the Park Service to eliminate the

motorized trip option would cause a dramatic reduction in the

public availability of professionally outfitted river trips[.]” Id.

at 87. The Park Service explained that “continued authorization of motorized use for recreational river trips in the [Park]

is essential . . . to meeting the . . . management objectives” for

the 2006 CRMP. Id. Thus, the Park Service quite clearly concluded that motorized commercial services were “necessary

and appropriate for public use and enjoyment” of the Corridor. 16 U.S.C. § 5951(b).

12

Plaintiffs contend that even if the Park Service found that

motorized services were necessary and appropriate, it made

no determination as to the amount of such services that are

necessary, and therefore failed to “limit” motorized uses to

those that are necessary and appropriate as required by the

Congressional policy statement of the Concessions Act. It is

true that the FEIS and ROD do not contain a specific discussion of the amount of motorized traffic found necessary and

appropriate for public use and enjoyment of the Corridor. But

the absence of such a specific discussion does not necessarily

require the agency’s action to be overturned. “While [a court]

12In Blackwell, the Ninth Circuit stated that an agency’s finding of

necessity “requires this court to defer to the agency’s decision under the

broad terms of the [Wilderness] Act.” 390 F.3d at 647. It was only when

the Forest Service’s decision ran afoul of the “overarching purpose” of the

Wilderness Act—wilderness preservation—that it was struck down. Id. at

648. If an agency’s finding of permit necessity under the Wilderness Act

is entitled to deference, a fortiori it is entitled to deference under the less

demanding requirements of the Concessions Act. 

RIVER RUNNERS v. MARTIN 9303
may not supply a reasoned basis for the agency’s action that

the agency itself has not given, [the court] will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best

Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42

L.Ed.2d 447 (1974) (citations omitted). The Park Service’s

consideration of the amount of motorized traffic required in

the Colorado River Corridor can reasonably be discerned

from the FEIS.

The 1989 CRMP established use levels that were still in

effect when the 2006 CRMP planning process began. Among

the alternatives considered in the DEIS and FEIS was a “noaction alternative”—an alternative that would have left the

1989 levels in place. This alternative, designated in the FEIS

as Alternative A, would continue to allocate 113,083 user

days to commercial operators (74,260 motorized and 38,823

non-motorized) and 58,048 user days to non-commercial

users. FEIS Vol. I at 45. Alternative B would have eliminated

all motorized traffic on the river and allocated 97,694 user

days to commercial operators and 74,523 to non-commercial.

Id. at 47. Alternative C also would have eliminated all motorized trips, but would have increased commercial user days to

166,814 and noncommercial to 115,783, presumably to

accommodate sufficient numbers of visitors with the slower

non-motorized trips. Id. at 49. Alternatives D, E, F, and G

would have permitted motorized uses, but varied the amounts

for commercial and non-commercial traffic. Id. at 51-57. The

levels of motorized user days for Alternatives D, E, F, and G

would have been 70,104, 76,913, 83,076, and 76,913, respectively. Id.

User days were not the only variables evaluated by the Park

Service. The FEIS also considered months without motors on

the river, trip lengths, trip lengths during various parts of the

year, group sizes, numbers of launches, numbers of passengers, and helicopter exchanges at the Whitmore helipad. Id. at

61. The Park Service evaluated these alternatives against

9304 RIVER RUNNERS v. MARTIN
environmental, social, and park-management factors including impacts on soils, water, air, soundscape, caves, vegetation,

terrestrial life, aquatic resources, special status species, cultural resources, visitor experience, socio-economic resources,

park management and operations, adjacent lands, and wilderness character. Id. at 61-65.

The Park Service ultimately concluded that Alternatives B

and C—the non-motor alternatives—would not meet the

agency’s objective of providing “a diverse range of quality

recreational opportunities for visitors to experience and

understand the environmental interrelationships, resources,

and values of Grand Canyon National Park” because of the

significantly reduced number of visitors who could experience the Colorado River Corridor. Id. at 71; see FEIS Vol. II

at 626-27, 630-31. The Park Service evaluated a range of

motorized use times in the other alternatives and, after considering all factors and variables, selected Modified Alternative

H. That Alternative included specific allocations for motorized and non-motorized uses: a total of 115,500 commercial

user days consisting of 76,913 motorized and 38,587 nonmotorized, and an estimated 113,486 non-commercial user

days. FEIS Vol. I at 60.

Modified Alternative H reduced the amount of motorized

traffic in the Colorado River Corridor and the months within

which it can occur, while significantly increasing the traffic

for non-commercial uses. The time period during which it

prohibited motorized uses in the Corridor each year is September 16 through March 31—3.5 months longer than under

the 1989 CRMP. FEIS Vol. I at 61. Modified Alternative H

also reduced motorized commercial launches from 473 per

year to 429 per year, and total motorized passengers from

14,487 to 13,177. Id. at 45, 60. Maximum group sizes for

commercial motor excursions were also reduced from 43 to

32. Id. at 61. Commercial user days were held essentially

RIVER RUNNERS v. MARTIN 9305
level at 115,500, while non-commercial user days were more

than doubled to an estimated 113,486. Id. at 60.13

In sum, the Park Service’s decision concerning the amount

of motorized trips on the river was made after considering

competing alternatives and a significant number of variables.

The Park Service chose an alternative that reduced motorized

uses from current levels. The Court is satisfied that the Park

Service, as stated in the ROD, determined the “type and level”

of traffic on the river that was “necessary and appropriate,”

including the type and level of motorized uses. ROD at 6.

Plaintiffs argue that even if the Park Service made such a

determination, the determination was arbitrary and capricious.

As noted above, however, the decision occurred only after an

extensive analysis of various alternatives. Defendants have

identified a number of factors in the Administrative Record

that support the Park Service’s decision to allow motorized

traffic to continue. First, because motorized trips take less

time to complete (10 days as opposed to 16 days for nonmotorized trips), substantially more people can see the Park

each year from the river if motorized trips continue. FEIS

Vol. I at 33-34; Vol. III at 87-88, 328-29; AR 066574-80;

SAR 015529, 016415. Second, motorized trips are frequently

chartered for special-needs groups, educational classes, family

reunions, or to support kayak or other paddle trips. AR

048368, 048920, 048972-73, 049081, 050205, 050290-92,

050710, 051222-27, 054067. Third, because of their increased

mobility, motorized trips help alleviate overcrowding at popular campsites and attractions in the Corridor. FEIS Vol. I at

13The Park Service considered five alternatives for the Lower Gorge,

including a no-action alternative (Alternative 1), but the Lower Gorge

issues differed from those in the Lees Ferry Segment. Plaintiffs have spent

little time addressing Lower Gorge issues in this case. The Lower Gorge

management is complicated by the existence of Hualapai tribal lands and

Hualapai River Runner day trips. After undertaking an analysis of five

alternatives, the Park Service selected Alternative 4, which eliminated upriver jet boat tours. FEIS Vol. I at xiii. 

9306 RIVER RUNNERS v. MARTIN
33-34; Vol. III at 302; AR 050205. Fourth, some individuals

feel safer when traveling in motorized rafts. FEIS Vol. III at

312-313. In addition, studies performed as part of the DEIS

found that visitors are able to experience the river as wilderness in the presence of motorized uses and that those who

took motorized trips were significantly more likely to stress

safety and trip length as the most important factors in the

choosing the type of trip they took. SAR 015427-29.

Given the “judicial presumption favoring the validity of

administrative actions” and the “administrative discretion”

granted the Park Service under the Concessions Act, Kleppe,

608 F.2d at 1254, the Court cannot conclude that the agency

acted arbitrarily and capriciously when it found that the Modified Alternative H levels of motorized uses were “necessary

and appropriate for public use and enjoyment” of the Colorado River Corridor. 16 U.S.C. § 5951(b). The question is not

whether this Court agrees with the Park Service’s decision,

but whether it is reasonably supported by the Administrative

Record. In light of the DEIS and FEIS analysis outlined

above, the Court finds that it is.

Plaintiffs spend little time addressing the other policy statement of the Concessions Act—that the necessary and appropriate public uses should be “consistent to the highest

practicable degree with the preservation and conservation of

the resources and values of the unit.” 16 U.S.C. § 5951(b).

Read in isolation, this policy could eliminate all public uses

of the Colorado River Corridor, motorized and nonmotorized, because preservation of the natural resources of

the Corridor would be accomplished to the “highest practicable degree” by eliminating all human interference. This is not

what Congress intended. The Concessions Act, after all,

authorizes the Park Service to permit commercial concessions

in national parks. Rather, this policy must be achieved in light

of the policy’s preceding requirement—that uses be limited to

those necessary and appropriate for public use of the parks.

Once those necessary uses are identified, they must be manRIVER RUNNERS v. MARTIN 9307
aged to the highest practicable degree to preserve the

resources and values of the Park.

The Court is satisfied that the Park Service did not act arbitrarily and capriciously when it concluded that Modified

Alternative H was consistent to the highest practicable degree

with preserving the resources and values of the Corridor. As

noted above, the DEIS and FEIS evaluated Modified Alternative H and other alternatives against a large number of environmental factors. With the exception of the effects of motors

on the soundscape of the Park, Plaintiffs do not challenge this

evaluation. With respect to the effects on soundscape, the

Court finds below that the Park Service did not act arbitrarily

and capriciously.

V. The Organic Act. 

The Organic Act provides that the Park Service “shall promote and regulate the use of . . . national parks . . . in such

manner and by such means as will leave them unimpaired for

the enjoyment of future generations.” 16 U.S.C. § 1. The Act

also provides that “[n]o natural curiosities, wonders, or

objects of interest shall be leased, rented, or granted to anyone

on such terms as to interfere with free access to them by the

public[.]” 16 U. S .C. § 3. Plaintiffs contend that the 2006

CRMP is arbitrary and capricious because it permits commercial boaters to use the river at levels that interfere with free

access by the public, and because it concludes that motorized

uses do not impair the natural soundscape of the Park.

A. Free Access. 

Plaintiffs argue that the allocation of river access between

commercial and noncommercial users is inequitable and thus

limits the free access of members of the public. As noted

above, however, the Park Service has significantly increased

the access of noncommercial users. The 2006 CRMP allocates

115,500 user days to commercial users and an estimated

9308 RIVER RUNNERS v. MARTIN
113,486 user days to non-commercial users. See FEIS Vol. I

at ix.14 This is essentially the same allocation commercial

users received under the 1989 CRMP, but a substantial

increase from the 58,048 user days that non-commercial

boaters received under the 1989 plan. Stated in different

terms, the allocation of river time between commercial and

non-commercial user days changed from 66.5% commercial

and 33.5% non-commercial under the 1989 CRMP, to 50.4%

commercial and 49.6% non-commercial under the 2006

CRMP. The 2006 CRMP also reduced the number of launches

and passengers for commercial users while nearly doubling

both categories for non-commercial users. FEIS Vol. I at 45,

60. It is noteworthy that neither GCROA, which consists of

commercial river users, nor GCPBA, which consists of noncommercial users, agree with Plaintiffs. Both organizations

contend that the Park Service’s allocation of user days is reasonable.15

14Plaintiffs argue that user days are not a fair measure of use. While the

Park Service has stated that “[d]aily launches are probably the most

important use measure for measuring impacts to visitor use and experience,” it also has noted that “[t]he daily number of people launching

would probably provide similar information[.]” FEIS Vol. III at 55. The

Court finds that user days—a factor of the number of people that launch

and the number of days the trip lasts—is a reasonable basis for analysis.

The Ninth Circuit used the same measure in Kleppe. See 608 F.2d 1250.

15Plaintiffs complain that a substantial portion of the additional noncommercial days are in the winter, and that the Park Service acted without

evidence that boaters would use the river in the winter. Defendants note

that the 2006 CRMP increases non-commercial user days in all seasons of

the year. The FEIS also notes that “there is interest in trips during the winter . . . . [W]inter trips offer greater opportunities for quiet and solitude

compared to other times of the year. The less crowded nature of winter

months enhances wildlife viewing and cooler daytime temperatures are

conducive to off-river hiking.” FEIS Vol. I at 34 (emphasis omitted).

Ninety percent of available winter dates were used between 1998 and

2002—100% when they were made available six months in advance. AR

107920, 109498. The Court concludes that the Park Service had a reasonable basis for concluding that winter trips would be used by noncommercial boaters. 

RIVER RUNNERS v. MARTIN 9309
Plaintiffs argue that non-commercial users are required to

wait for permits to run the river—sometimes for 10 or more

years—while clients of commercial rafting companies usually

can book a trip within one year. They also assert that the current allocation favors the wealthy who can afford commercial

trips, and they criticize the Park Service for not conducting a

demand study that would have revealed the most equitable

allocation. The Court cannot conclude on this basis, however,

that the CRMP is arbitrary and capricious. The 2006 CRMP

significantly revised the system for private boaters to obtain

permits by establishing a lottery system that is weighted to

favor those who have not received a permit in previous years.

ROD at 20 (AR 109610). Moreover, surveys show that 61 %

of private boaters have floated the Colorado River Corridor

before, while only 20% of commercial boaters were on repeat

trips. SAR 015505. The existence of a waiting list therefore

does not necessarily show that more private boaters than commercial customers are awaiting their first river trip. Finally,

experts advised the Park Service that a demand study would

cost more than $2 million and likely would be of limited

value. FEIS Vol. III at 177.

More generally, Plaintiffs tend to characterize the dispute

as one between commercial companies and private citizens.

This is not the true nature of the issue:

Throughout these proceedings [plaintiff] has persisted in viewing the dispute as one between the recreational users of the river and the commercial

operators, whose use is for profit. It asserts that by

giving a firm allocation to the commercial operators

to the disadvantage of those who wish to run the

river on their own the Service is commercializing the

park. [Plaintiff] ignores the fact that the commercial

operators, as concessioners of the [Park] Service,

undertake a public function to provide services that

the [Park Service] deems desirable for those visiting

the area. The basic face-off is not between the com9310 RIVER RUNNERS v. MARTIN
mercial operators and the non-commercial users, but

between those who can make the run without professional assistance and those who cannot.

Kleppe, 608 F.2d at 1253-54 (internal citations omitted).

As noted above, a coalition of commercial and private

boater organizations submitted joint comments to the Park

Service that supported an equal allocation of river time

between commercial and non-commercial users on an annual

basis. AR 060444-51. These users of the river apparently did

not believe that such a system would interfere with free access.16

B. Impairment of the Natural Soundscape. 

Plaintiffs make several arguments in support of their claim

that the Park Service acted arbitrarily and capriciously when

it concluded that motorized uses of the Corridor do not impair

16In support of their argument, Plaintiffs submitted the affidavit of Donald W. Walls. Dkt. #71-2. Dr. Walls opines that an equal allocation

between commercial and non-commercial boaters cannot be determined to

be fair in the absence of a demand study, and that a lottery system that

applies to all users would be more fair. As noted above, however, a panel

of experts advised the Park Service in January of 2003 that a demand

study was likely to cost $2 million and be of limited use. FEIS Vol. III at

177. Dr. Walls does not address this advice and therefore does not provide

a basis for concluding that the Park Service acted arbitrarily and capriciously when it decided not to conduct such a study. Moreover, although

Dr. Walls opines that a lottery system would be more fair than the Park

Service’s equal allocation of days between commercial and noncommercial users, he does not address whether such a system—which

would render the yearly demand for commercial services less predictable—would permit the continued operation of commercial river runners

that the Park Service has found to be necessary and appropriate. Nor does

Dr. Walls address the fact that a coalition of river users, including commercial and private users, supported the equal allocation adopted by the

Park Service, or explain why the Park Service’s consideration of such representative support was unreasonable. Dr. Walls’ opinion, although a legitimate point of view, does not persuade the Court that the CRMP is

arbitrary and capricious. 

RIVER RUNNERS v. MARTIN 9311
the natural soundscape of the Park within the meaning of the

Organic Act. The Court finds these arguments unpersuasive.

First, Plaintiffs contend that the Park Service used the

wrong baseline—that it compared motor-generated sounds to

the noise of the Corridor with aircraft flying overhead, rather

than comparing motorized noises to the natural quiet of the

Park. This argument is incorrect. The Park Service compared

periods of noise from river traffic (motorized and nonmotorized) to periods when there was no noise. FEIS Vol. II

at 348-87. The Park Service also evaluated the length of

“noise-free intervals” when motorized traffic was in the Park.

See, e.g., id. at 386.

Plaintiffs next contend that the Park Service failed to consider the cumulative effects of noise from river traffic. This

also is incorrect. After comparing river traffic noise to natural

background sounds, and evaluating noise-free intervals, the

Park Service considered the cumulative effect of such noise

when added to other sounds in the Park such as aircraft overflights. The Park Service then reached the following conclusion:

Although Modified Alternative H would contribute

to the overall cumulative effects of noise on the

park’s natural soundscape, even if all noise from all

river recreation was eliminated from the park

(including river-related helicopter flights at Whitmore), the cumulative effects of aircraft noise would

still be adverse, short- to long-term, and major.

There would still be ‘significant adverse effects’ on

the natural soundscape due to frequent, periodic and

noticeable noise from overflights, and ‘substantial

restoration of natural quiet’ would not be achieved as

required by Public Law 100-91 and other mandates.

Id. at 387 (emphasis omitted).

9312 RIVER RUNNERS v. MARTIN
Plaintiffs contend that this cumulative analysis should have

caused the Park Service to eliminate sounds from motorized

river traffic. But if a cumulative analysis were to result in the

elimination of all sounds that can be eliminated by the Park

Service—in this case, all sounds other than aircraft overflights, which are not within the jurisdiction of the Park Service—then all human activity in the Park would be

eliminated. And still the aircraft overflights would create substantial and adverse sound effects in the Park. Plaintiffs have

articulated no principled basis upon which the Court can conclude that the Park Service should have eliminated motorized

noises on the basis of such cumulative analysis, but not other

human-caused noises such as hiking or non-motorized raft

trips. The Court cannot conclude that the Park Service acted

arbitrarily and capriciously when it concluded from a

cumulative-effects analysis that motorized river traffic noise

was not the source of serious sound problems in the Park and

that elimination of such noise would not significantly improve

the overall soundscape.

Finally, Plaintiffs argue that the Park Service failed to consider earlier environmental impact statements and a number of

studies conducted in the 1970s, some of which found that

river use impacted the soundscape within the Park. The Park

Service relied primarily on studies conducted by noise experts

in 1993 and 2003. FEIS Vol. II at 352-53. These studies

included field acoustic measurements, including sounds from

motorized and non-motorized raft trips. The studies determined the distance at which motorized rafts could be heard

and the length of time they were audible while traveling

down-river, when measured from fixed points in the Park. Id.

The studies also evaluated the effects of other sounds such as

water flow, wind, wildlife, human voices, helicopters, and aircraft overflights. Id. The studies provide a reasonable basis

for evaluating sound effects within the Park.

Plaintiffs argue that the Park Service failed to consider 28

previous studies, but they identify no specific studies for the

RIVER RUNNERS v. MARTIN 9313
Court to consider. Nor do Plaintiffs cite any recent studies

that call into question the findings of the 1993 and 2003

studies. Defendants also note that any studies conducted in the

1970s would have concerned louder two-stroke engines rather

than the quieter and cleaner four-stroke engines now used in

the Corridor. Finally, the 2003 study specifically considered

and summarized the earlier studies relied on by Plaintiffs.

Given all of these considerations, the Court cannot conclude that the Park Service acted arbitrarily and capriciously

when it concluded that motorized uses do not impair the

soundscape of the Park within the meaning of the Organic

Act.

VI. NEPA. 

Plaintiffs claim that the 2006 CRMP is arbitrary and capricious because it failed to comply with NEPA, 42 U.S.C.

§ 4321 et seq. Specifically, Plaintiffs contend that the Park

Service failed to take a “hard look” at cumulative sound

impacts and failed to use high quality information or accurate

scientific analysis.

Under NEPA, federal agencies must prepare detailed environmental impact statements for “major federal actions significantly affecting the quality of the human environment.” 42

U.S.C. § 4332(2)(c). “NEPA does not work by mandating that

agencies achieve particular substantive environmental

results.” Marsh v. ONRC, 490 U.S. 360, 371, 109 S.Ct. 1851,

104 L.Ed.2d 377 (1989). “NEPA’s goal is satisfied once . . .

information is properly disclosed; thus, NEPA exists to ensure

a process, not to ensure any result.” Inland Empire Pub.

Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.

1996).

Judicial review of an environmental impact statement is

“extremely limited.” Nat’l Parks & Conservation Ass’n v.

U.S. Dept. of Transp., 222 F.3d 677, 680 (9th Cir. 2000). A

9314 RIVER RUNNERS v. MARTIN
court evaluates such a statement only to determine whether it

“contains a reasonably thorough discussion of the significant

aspects of the probable environmental consequences” of the

challenged action. Or. Envtl. Council v. Kunzman, 817 F.2d

484, 492 (9th Cir. 1987) (internal quotes and citation omitted). A court “need not fly-speck the document and hold it

insufficient on the basis of inconsequential, technical difficulties, but will instead employ a rule of reason.” Swanson v.

U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996) (internal

quotes and citation omitted).

Plaintiffs contend that the Park Service failed to take a

“hard look” at the cumulative impacts of noise on the Park as

required by 40 C.F.R. § § 1502, 1508.7. The Court disagrees.

As described in the preceding section, the Park Service specifically considered the cumulative effects of noise on the river

environment, including noise from river traffic, helicopters,

and aircraft overflights. A cumulative noise analysis was performed for each of the alternatives considered for the Lees

Ferry Segment. FEIS Vol. II at 348-86. A similar cumulative

impact analysis was presented for each of the Lower Gorge

alternatives. FEIS Vol. II at 387-404. Plaintiffs provide no

record citations or analysis for impacts they say should have

been considered cumulatively. The Court concludes that the

Park Service took a hard look at the cumulative impacts of

noise from river traffic, including motorized traffic.

Plaintiffs also contend that the Park Service failed to use

high quality information or accurate scientific analysis, but

Plaintiffs provide no factual basis for this argument. As

Defendants note, the bibliography for the FEIS includes more

than 500 technical and scientific references. The Court cannot

conclude that the Park Service acted arbitrarily and capriciously by failing to consider high quality information or

appropriate scientific analyses.

VII. Conclusion. 

Plaintiffs have failed to establish that the Park Service

acted arbitrarily and capriciously when it adopted the 2006

RIVER RUNNERS v. MARTIN 9315
CRMP. The Court accordingly will grant the summary judgment motions of Defendants and Intervenors and deny the

summary judgment motion of Plaintiffs.

IT IS ORDERED:

1. Defendants’ motion for summary judgment (Dkt.#64)

is granted.

2. Intervenors’ cross-motions for summary judgment

(Dkt.##62, 67) are granted.

3. Plaintiffs’ motion for summary judgment (Dkt.#55) is

denied.

4. Defendants’ motion to strike (Dkt.#73) is denied.

5. The Court will enter judgment by separate order. The

Clerk is directed to terminate this action.

DATED this 26th day of November, 2007.

David G. Campbell

United States District Judge

9316 RIVER RUNNERS v. MARTIN