The Plan is Litigated and We Lose 2006-2010
The Colorado River Management Plan (CRMP) Went to Court...and We Lost.
Grand Canyon National Park released the long-awaited Colorado River Management Plan (CRMP) Record of Decision in February 2006. Unfortunately, the new CRMP preserved all the worst elements of its preferred alternative and adopted some even worse ones.
The first come-first serve Waiting List for do-it-yourself river runners, with its embarrassing mass of patiently-waiting future permittees, was replaced with a weighted lottery that river runners may never win. At the same time, entire river trips can still be immediately booked during the prime summer season through a river concessionaire at a steep price.
While the Park rejected an all-user reservation system as unfriendly to concessionaires and too complex, the NPS instituted a never-before-attempted and very complicated weighted lottery for noncommercial river permits. The “weight” gives maximum preference to potential trip leaders who have not rafted in the Canyon at all for over 5 years, instead of giving preference to people who played the lottery and lose year after year.
While there is a substantial increase in user days for noncommercial boaters, the user day increase came largely in the winter. Not only did this increase lead to the decline of resource protection, but the lack of summertime access to the river did very little to fulfill do-it-yourself demand. The bulk of new non-commercial river-running access (1,500 people) comes in the November to February "winter" season.
Meanwhile, for the motorized concessionaires, the new plan is essentially business as usual. They retained their huge share of summer use. The proposal to require 4 days to Phantom for motor tours was dropped, ensuring that quickie-trip profits continue unabated. Also, guide use is not counted against outfitter allocations.
While the Park made admirable mention of striving to make administrative, educational and scientific trips as wilderness-compliant as possible, there was no attempt to evaluate how motors could be removed to smooth the path to wilderness designation and comply with Park Service policies. NPS wilderness policies direct parks to treat proposed wildernesses such as the Grand Canyon backcountry and river as if they were already designated, pending a vote by Congress.
As for the helicopter shuttles, the park not only refused to restrict them in most months, but inserted language declaring that they have no ability to do so since the helicopters use tribal lands, conveniently ignoring the Park’s absolute ability to regulate exchanges by their concessionaire contractors.
The Park’s demand-measuring all-boater registration proposal was dropped. It would have begun to adjust commercial allocation according to true demand. This omission locks in the status quo split allocation for the life of the plan. The last plan took 17 years to replace, and the new plan dooms noncommercial boaters to continued discrimination and disenfranchisement. The Park also instituted a one-visit-per year policy for all river runners, commercial and noncommercial alike (excluding guides.) However, there is no instrument for monitoring repeat visitation by commercial customers.
One of the justifications the NPS used to proceed with the 2006 CRMP was that a small group of four stakeholders agreed that overall river use should increase, with the increase going to the do-it-yourself river runners in the off season. The four groups were the Grand Canyon River Outfitters Trade Association (GCROA), the Grand Canyon Private Boaters Association (GCPBA), American Whitewater (AW) and the Grand Canyon River Runners Association (GCRRA), a group representing commercial passengers’ rights to travel the Canyon in motorized tour boats.
In "behind the scenes" meetings, these four groups made a ten-year binding agreement to support removal of wilderness designation for the river corridor, support the river concessionaire’s motorized river tour boat allocation, and to not interfere with the award in 2006 of new ten year concessions contracts for the existing concessionaires. The agreement also stipulated that the groups will use their “best efforts” to dissuade their membership from engaging in any activities that would not be consistent with the terms of the above “gang-of-four” (g-4) agreement.
While the four groups said the new plan gave do-it-yourself boaters and commercial river runners an equal number of user days with parity in the number of launches, subsequent actual river use data does not support that claim. The actual use figures for 2008 show:
User Days
114,010 commercial passengers (does not count 25,000 commercial guide user days)
103,492 non-commercial people.
User Days In the Summer
90,908 user days commercial passengers (does not count commercial guide user days)
33,827 user days non-commercial.
Number of launches a year
610 river concessionaire launches
471 non-commercial launches.
Summer Season Launches
486 concessionaire launches of 32 folks
123 groups of 16 folks standard and 62 groups of 8 folks non-commercial trips.
Group Sizes
Concessions launches are 32 people
Non-commercial 16 or 8 folks
The four groups said the imbalance in the trip launches is ok because the trip lengths are different. What is not stated is that the river concessions "can" run longer trips, but they "choose" to run 75% of their trips as faster trips. Trip speed is the main contributor to increase the financial bottom line. This is, after all, an industry where the river is simply considered a water highway where the faster one goes, the more money one makes based on user days. The last time the NPS checked with the river running public, all river runners agreed in saying they wanted longer trips, not shorter. The Draft plan included longer commercial trips, but that was another casualty of the final plan with its gang-of-four (g-4) agreement.
The g-4 said the river concessionaires gave up a lot, including a reduction in the number of motorized trips launched. Yes, it’s true, 472 to 429, but the concessionaires just eliminated their single-boat motor trips and substituted two-boat motor trips, so the number of motorized watercraft actually increased. The river concessionaires also went from group size maximums of 42 to their average group size of 32, and while the length of the motor season decreased, the river concessions were not using and had no intention of ever running motors in the “new” motor-free months of January, February and March.
So it was no surprise that River Runners for Wilderness and three other groups, Living Rivers (LR), Rock the Earth (RtE) and Wilderness Watch (WW) sued the Park in March of 2006 to force the NPS to re-visit the issues of inequitable allocation and continued motorized use. The GCPBA and the river concessions trade association sought to join the case on the side of the Park.
The plaintiff groups asked the judge to stop the GCPBA and GCROA intervention in the first half of the case called the “merits” phase, which only looked at the law guiding NPS planning and management. The four groups including RRFW invited the GCPBA and trade group to participate in the subsequent remedy phase of the litigation. The court decided to allow GCPBA and the trade group status as interveners in the merits portion of the litigation.
When the case went to the 9th Circuit, an impressive array of groups joined in on the side of RRFW, RtE, WW and LR. They were the Sierra Club, Southern Utah Wilderness Alliance, Center for Biological Diversity, Friends of the Earth, Great Old Broads for Wilderness, Grand Canyon Hikers and Backpackers Association, Californians for Western Wilderness, Friends of Yosemite Valley, Mariposans for the Environment and Responsible Government, North West Rafters Association, Olympic Park Associates, the Western Lands Project, and one individual, the wilderness and river recreation author Roderick Nash.
This is compared with three groups and one individual supporting the NPS. They are the Grand Canyon River Runners Association (one of the original group of four along with AW, the GCPBA, and the Outfitters Trade association), the Grand Canyon River Guides, the Chicago Whitewater Association and an individual named Elizabeth Brubaker.
The litigation challenged the Park Service's lack of justification for a need of, and appropriate levels for, Grand Canyon National Park's concessions use of motorized tour boats and helicopter exchanges. The Park Service "failed to ever find that motorized commercial services are necessary to allow visitors who otherwise did not have the skill or equipment to raft the river."
The litigation also contended that the Park Service's "Authorizing motorboats and helicopters in the river corridor fails to preserve wilderness values."
The case also challenged the Park Service's commercialization of the river. At present, 15,644 concessions passengers travel along the river with 2,372 self guided river runners during the same summer season, a ratio of over 7 commercial guests to each do-it-yourself river runner.
The appeal noted the "NPS's allocation of river permits unfairly favors concessioners at the public's expense." Here, the brief argued the NPS used no identifiable or appropriate standards to measure demand, as required by a 9th Circuit case on Grand Canyon river permit distribution from the 1970's.
The brief noted that the district court never identified any place in the Final Environmental Impact Statement or the Record of Decision where a rational basis for the Park Service's allocation decisions can be found.
The appeal points out that while park planners determined they needed information on the relative demand for motor trips vs. oar trips and the relative demand for different types of use over different seasons within the year, the river plan never made any such determinations.
The case also noted the "NPS violated the Organic Act by authorizing motorized uses that, combined with other uses of the river impair the Grand Canyon's natural soundscape."
And we lost.
In an opinion released Monday, February 1, 2010, almost four years after challenging the case on the legality of the 2006 Colorado River Management plan (CRMP), the 9th District Court of Appeals in San Francisco issued an original opinion and replaced their previous opinion in support of the lower Arizona District Court.
While the litigation argued that the Park is legally compelled to follow its own policies and therefore the existence of motorized boats and helicopters for recreation is illegal in the potential wilderness of Grand Canyon National Park, the 9th Circuit Court noted that the Park Service can "waive or modify" its own policies and the National Park policies "are not enforceable against the Park Service in this action".
The court ruled that National Park Service (NPS) “policies do not prescribe substantive rules, nor were they promulgated in conformance with the procedures of the APA," the panel wrote. "The court therefore may not set aside the 2006 management plan 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."
While the Court found that the NPS river plan did “not contain a specific discussion of the amount of motorized traffic found necessary and appropriate for public use and enjoyment of the Corridor” the Court “will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”
Marc Ross, President of the non-profit Rock the Earth, notes “While we’re grateful that the 9th Circuit took the time to further clarify their decision and correct the overreaching by the District Court of Arizona, we're disappointed with the ultimate decision to not provide greater protection or provide more equitable access to the public to such a special place as the Grand Canyon.”
“It is our intent to continue to fight for wilderness protection of the Grand Canyon and Colorado River corridor” noted Ross, “including the total elimination of motors in the canyon, as has been repeatedly recommended by the National Park Service.”
River Runners for Wilderness, Rock the Earth, Living Rivers and Wilderness Watch would like to express their appreciation and thanks for the legal work on this case by Julia Olson of Wild Earth Advocates, and Matt Bishop of Western Environmental Law Center.
John Weisheit, Conservation Director for Living Rivers, noted “Even though the courts chose not to intervene, it is still clear there is no convincing reason to continue motorized tour boat activity and no reason whatsoever to maintain the present imbalance in access to the river in Grand Canyon National Park.”
The February 1, 2010 opinion can be seen at http://www.rrfw.org/documents
George Nickas, Director of the Montana based Wilderness Watch, stated “The court's decision places the burden of protecting wilderness in the Grand Canyon squarely on the shoulders of the National Park Service. Unfortunately, the NPS has consistently shown that it isn't up to the task.”
While the plaintiff groups will not appeal the latest decision according to RRFW Co-Director Tom Martin, “The issues that brought us to the courts have not been resolved and we will continue to seek equitable allocation and wilderness protection for the Colorado River in Grand Canyon.
River Runners for Wilderness deeply appreciates the encouragement and financial support of our members in this long journey toward wilderness protection of the Colorado River in Grand canyon and equitable access in obtaining a permit to run the river.
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