National Park Service Draws Criticism for Winter-Use Plan for Yellowstone and Grand Teton National Parks

A National Park Service plan for winter-use in Yellowstone and Grand Teton drew criticism from environmental and conservation organizations. NPS photo.

National Park Service officials have finalized winter-use rules for Yellowstone and Grand Teton national parks, and quickly drew condemnation for ignoring what's best for the parks' natural resources.

The rule published Tuesday allows for as many as 720 snowmobiles to skim through Yellowstone on a daily basis this winter, beginning on December 15 when the season officially gets under way. Whether that number will be reached on any given day is questionable, though, as snowmobile ridership has been down in recent years, with some blaming a requirement for a commercial guide to lead snowmobilers through Yellowstone for driving some riders away, while others believe the comfort of riding in a snowcoach is becoming more attractive for winter visitors.

At the same time, the 720-per-day limit flies in the face of research by Yellowstone's own scientists, who have recommended about half as many snowmobiles should be the upper limit if the park's wildlife and other natural resources are not to be adversely impacted.

Indeed, in mid-September a federal judge in Washington, D.C., tossed a winter-use plan that called for an upper limit of 540 snowmobiles and 83 snowcoaches per day because the Park Service couldn't justify that many snowmobiles. But in early November another federal judge, this one in Wyoming, ruled that while he couldn't overrule his cross-country colleague, he could direct the Park Service to revert to 2004 winter-use regulations if it couldn't come up with a new rule before the winter season began.

Although Park Service officials were closing in on such a rule, they aborted that process when the second ruling was issued, explaining that by doing so they would have more time to develop a more thorough, scientifically sound, and effective winter-use plan.

Which brings us to Tuesday's announced by the NPS and the reaction from the environmental and conservation organizations.

“The action taken by the Bush Administration today is squarely at odds with the stronger stewardship of Yellowstone that the National Park Service recommended just last month in order to begin ensuring that winter visitors can enjoy cleaner, healthier and more natural conditions," the groups said. "The administration has chosen to allow levels of air pollution, noise and harassment of wildlife which its own scientists and park managers have clearly stated are readily avoidable in our country’s first national park.

"It is disheartening, but hardly surprising at this point, to see this administration, in its final six weeks in office, blatantly contradicting the scientific findings and public comment that it came into office saying should be paramount in managing Yellowstone. We hope this will be the last time that politics trumps public will, scientific findings, and the law in providing winter enjoyment and protection of Yellowstone National Park.”

Here, courtesy of those groups, is a chronology of the most recent back-and-forth with the winter-use plan:

* On September 15, 2008, the U.S. District Court for the District of Columbia ruled that the National Park Service’s winter-use plan authorizing up to 540 snowmobiles per day failed to protect Yellowstone National Park’s air quality, natural soundscapes and wildlife as required by law. The court ruled that the plan “clearly elevates use over conservation of park resources and values and fails to articulate why the Plan’s ‘major adverse impacts’ are ‘necessary and appropriate to fulfill the purposes of the park.’”

* On November 5, 2008, the National Park Service responded with a proposed plan to allow 318 snowmobiles per day as a temporary measure while the agency works to comply with the D.C. court’s order. Conservation groups expressed support for the plan as an interim measure.

* Today, the Bush Administration published a rule authorizing up to 720 snowmobiles per day, allowing even greater harm to Yellowstone’s air, quiet and wildlife than the plan invalidated by the D.C. court and permitting a level of snowmobile use that the National Park Service specifically rejected last month after concluding based on scientific studies that it would result in “major adverse impacts” to Yellowstone.

* The administration has asserted that the U.S. District Court in Wyoming required the National Park Service to reinstate the rule allowing 720 snowmobiles per day, but in actuality the Wyoming court left the National Park Service with discretion to promulgate a lawful rule protective of park resources.

Since 1998:

* Four separate environmental studies by the National Park Service have determined that the most effective means of protecting Yellowstone’s air quality, quiet and wildlife – while also providing visitors motorized oversnow access to the park’s interior – combines expansion of snowcoach access with an end to park snowmobiling. The studies determined that allowing continued snowmobile use, even with additional restrictions, would result in significantly greater impacts to the park’s resources. The studies have cost taxpayers over $10 million.

* The National Park Service has analyzed well over half a million public comments in the course of the four studies, more than the agency has received on any issue since its establishment in 1916. Over 80 percent have favored expanding snowcoach access and ending park snowmobiling.

Comments

The timeline provided by the conservation groups seems pretty disingenuous. Normally in a timeline you place events in the order that they occurred - only makes sense, right? In this case, though, they put the "Bush Administration published a rule authorizing up to 720 snowmobiles a day", which occurred today on December 9th *before* the US District Court in Wyoming ruling that plainly mandated a 720 snowmobile rule that occurred on November 14th. Its quite some timeline that places December 9th before November 14th, eh?

Moreover, the timeline provided by the conservation groups completely mischaracterizes the ruling from Judge Sullivan when they imply that Judge Sullivan contemplated the possibility of the Park Service implementing a limit lower than 720 snowmobiles per day for the 2008-2009 Winter Season. The plain language of Judge Sullivan's opinion clearly contradicts this, as Judge Sullivan explicitly sets the 720 limit for the 2008-2009 Winter Season because of the inherent impossibility of going through all the necessary procedures to set a new limit in time for the 2008-2009 Winter Season. So Judge Sullivan made it clear that he was reverting to the 720 limit for 2008-2009 in order to give the rulemaking (and near-certain protests) time to play themselves out, while giving certainty for the short term in 2008-2009.

I know that the conservation groups want to see a bogey man behind every corner, but I don't think there's a single career official in the government that's familiar with the time needed for rulemakings and protests that would have made any different decision in this instance. As much as the conservation groups might wish that we lived in a world where the snowmobile interests could not protest the 318 rule, we live in a world where the snowmobile groups will get their day in court, just as the conservation groups got their day relative to the 540 rule. In the meantime, wishful thinking won't change the plain reading of Judge Sullivan's decision - and quite frankly they lose a little bit of credibility to me the longer they persist in it.

Sabattis,

Correct me if I'm wrong, but I think you're confusing Judge Brimmer with Judge Sullivan when you refer to who wanted the Park Service to revert to the 720 limit "because of the inherent impossibility of going through all the necessary procedures to set a new limit in time for the 2008-2009 Winter Season."

Indeed, as I read Judge Sullivan's ruling it's silent on directing the NPS on how to remedy the problems/flaws raised by the plaintiffs. Rather, it was Judge Brimmer who directed "that the NPS shall reinstate the 2004 temporary rule until such time as it can promulgate an acceptable rule to take its place."

As to whether the NPS had enough time between Judge Sullivan's ruling and the Dec. 15 winter opening day to develop a new rule, well, the agency has nearly a decade of studies, including two full-blown EISes as well as a Supplemental EIS. to turn to, and had come up with a plan in time for this winter when Judge Brimmer ruled.

Agencies seem to be able to move with incredible alacrity when it's politically expedient to do so.

Following this, what I keep noticing is the somewhat more timid stance on the issue that GYC has taken. First, when it appeared after Sullivan's ruling that they could have stopped the entire winter season, they suggested that 280 or so snowmobiles would be appropriate as a daily limit for this season. Before that, NPS was suggesting there might not be a winter season. That's when they came up with 318.

Then, when Brimmer's ruling comes down and NPS decides to go with 720 as a temporary rule, GYC decides to go back to Brimmer's court and makes a point of saying that they aren't going to worry about this winter season. I'd be curious why these tactical choices have been made.

Is it simply to fight the characterization that GYC is somehow a radical environmental organization? (wish they were, but they're not). Or, is their pressure from within to make sure that there remains some snowmobiling in Yellowstone?

In any event, we're still smarting over the Royal Teton Ranch deal over buffalo -where GYC and other groups have raised money in support of a deal that spends a lot of money to the Church Universal and Triumphant for not much (perhaps less than not much) for bison. And, others on the wolf issue have noted that GYC has supported de-listing the wolf, one of their people even blasted the feds recently in a very conservative newspaper in Cody, Wyo.

So, what is the deal here?

Jim Macdonald
The Magic of Yellowstone
Yellowstone Newspaper
Jim's Eclectic World

I have been following this issue for some time now from a completely legal perspective. As Judge Sullivan's most recent opinion reads, he struck down the NPS' new permanent plan as being "arbitrary and capricious," which is a legal term of art which basically means there is no rational connection between the facts found and the choice made.

While the Organic Act creates two obligations for the NPS ("conserve the scenery and the natural and historic objects and wild life and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations"), the history around the passing of the Act, the Amendments to the Act (in 1970 and 1978), the NPS Management Policies, and judicial interpretation (from cases not involving Judge Sullivan, Brimmer, nor the issue of snowmobiles in Yellowstone) all support a legal reading and interpretation of the Act that favors conservation over use and enjoyment when the two are in conflict. Notice that nowhere in the Organic Act, nor anywhere in other Acts that the NPS must follow (NEPA, EDA, etc.), nor in the NPS Management Policies, is there anything about the economic integrity of a surrounding community being protected over preserving the National Park.

Now, the Organic Act has been interpreted to allow for use and enjoyment that causes impairment - as long as that impairment is of great value and necessary to fulfill the purposes of the Park, and the impact is minimized to the greatest extent possible.

Snowmobiles may be a great way to see the Park, and it is fact the machines and guidelines in use now are incredibly cleaner and minimize impact more compared to practices and machines of the past. The fact remains that there is still some impact, according to NPS' own science. The fact that impact is better than it was before is great, but really of no importance; same with the fact the impact may be less than that caused in summer by motor homes and other motorized vehicles.

Judge Sullivan stated NPS gave insufficient reason for why the impacts are necessary to fulfill the purposes of the park, and as a result, use and enjoyment are elevated as a goal over conservation. Therefore, what his ruling says is that even 540 is too many in light of the explanation given for that number, and he required the NPS to try again. He gave no other guidelines as to what they should do going forward. Theoretically, the NPS could come back to Judge Sullivan with the same number, along with a better explanation for why that number works in connection with the minimal impact, and Judge Sullivan would then have to allow such a plan.

However after Sullivan's ruling, the NPS stated they would not have time to come up with a new temporary plan for this season as they continued to work on a new permanent plan for the future. Yet, in early November, I think on the 3rd, they came out with a new temporary plan (the 318 limit), and opened up the public comment period. Then, 4 days later, Judge Brimmer makes his ruling. His express words say he cannot and is not overstepping his bounds with respect to Judge Sullivan's ruling, but in effect he has done just that since Sullivan stated the 540 number coupled with NPS' explanation of coming to that number was "arbitrary and capricious".

If Brimmer had ruled before the NPS came up with their new temporary plan of 318, then the NPS' decision to follow Judge Brimmer's order as opposed to Sullivan would be more understandable. But by coming up with a new temporary plan, then getting the new order from Judge Brimmer, and subsequently trashing the new temporary plan shows the NPS' is in fact ignoring Sullivan.

So where does that leave us? If you follow the actual law of this issue, the GYC has the better LEGAL argument on their side, as no where in any Act pertaining to National Parks and specifically Yellowstone is there any mention of the interests of the local economy. Unfortunately for Brimmer, the local economy is the main influence on the rationale he has used in his rulings throughout this entire issue. It seems the GYC was content with the 318 plan, which shows they are not some radical environmentalist group since they were not calling for the complete phaseouts of the Clinton era. And Judge Sullivan seems to state he would allow a certain amount in the park as long as the NPS could adequately support why that amount is necessary and the impacts are lessened to best extent possible.

To answer a question of Sabattis from earlier, the reason the GYC timeline seems wrong is that Tuesday the 2004 temporary plan, minus the sunset provision which originally terminated the use of the plan at the end of 2007, was made into law by the Bush Administration. It is true that Brimmer's order was on Nov. 7, but the NPS decision to follow it was signed into law on Tuesday, and no matter when Brimmer ordered that, the timeline is stating that it simply was made law on Tuesday.

The GYC waited to file their petition in Sullivan's court until the published decision by the NPS to follow Brimmer was made into law. I am not really sure why they did this, as they could have gone back to Sullivan seemingly as soon as the NPS published their decision in November to go back to the 2004 temporary plan and follow Brimmer's order.

As for this winter, it seems as though the 2004 temporary use plan will be in effect, unless Sullivan does something about it in the next couple days. I guess technically, he could do something about it in the middle of the winter season, but that just seems ridiculous to me. My guess is the new administration will come up with a new permanent plan that allows some snowmobiles but puts more of an emphasis on snowcoaches. I don't see the complete phaseout happening, but that is just my opinion.

Strictly legally speaking, Sullivan has followed the law throughout this issue more faithfully than Brimmer. That doesn't mean the law couldn't change. If this issue continues, its possible it could get to the Supreme Court, and they could decide that economic issues do play a role in the interpretation of the Organic Act. That of course is simply pure conjecture.

Sorry for the length of this comment, but I felt this needed to be said.

Kurt - Yes, I did confuse Judges Sullivan and Brimmer in my original post - I of course meant Judge Brimmer when I referred to Judge Sullivan. I blame it on too many judges and posting too late at night!

As to the point about the agency's ability to move with alacrity when it is political expedient to do so , and while there is some argument that perhaps the NPS could have resorted to a sort of unilateral "interim rule" as was done last year, Judge Brimmer seems to have precluded that possibility. His order specifies to reinstate the temporary rule until "an acceptable rule to take its place is promulgated." I think it would be very hard to interpret an interim rule as meeting the standard of "an acceptable rule to take its place" - particularly since Judge Brimmer reverted to the 2004 rule, and not to the 2007-2008 Winter Season interim rule.

Anonymous - The reason the GYC timeline is fishy is not for placing the 720 plan on Tuesday December 9th, its that it is only in the bullet *following* the December 9th decision that they refer to the November 7th decision by Judge Brimmer. A normal timeline would place the events of November before the events of December, not after.

Sabattis -

The timeline actually leaves out Brimmer's ruling altogether, and only mentions it in reference to the Bush Administration's referencing of it in publishing their rule in the Federal Register on Dec. 9th. The GYC is obviously picking what they want to put in their timeline and not being as thorough as they could be.

Whats even fishier to me though are the NPS actions along with Brimmer's, in November. The NPS complained after Sullivan's ruling that they wouldn't have time to come up with an interim rule for this winter. However, they did actually come up with an interim rule, publicly announcing it on Nov. 4. They opened up the comment period and started the wheels in motion on all the procedural requirements so that the rule could be published in December in the Federal Register in time for this season. After actually starting that whole process, they get Brimmer's ruling 4 days later and stop the whole process.

I don't think Brimmer expected the NPS to actually come up with a new plan, or he would not have waited so long to issue his order. Once Brimmer sees the NPS' new temp plan, he has 2 choices: 1) issue his order and stop the NPS from promulgating the new temp plan; or 2) not issue his order and let the NPS continue with their process of instituting the new temp plan as Sullivan ordered. The wheels were in motion, the temp plan was on its way to being properly implemented. But Brimmer decides to put an end to it after the process had begun.

That is what is fishy in this whole situation, and that is why Brimmer's ruling, while expressly claiming not to overrule Sullivan's, does in fact completely supplant what Sullivan ordered as to a temporary rule for this season. Obviously Brimmer's ruling does nothing to change Sullivan's decision as to the permanent plan. And obviously, this season will have the 2007 temp plan in place, unless somehow Sullivan does something drastic and shuts everything down (which I don't see happening).