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Simmons v. Jarvis

United States District Court, D. Nebraska

September 12, 2016

LEE M. SIMMONS, Plaintiff,
v.
JONATHAN B. JARVIS, in his official capacity as Director of the National Park Service; SALLY JEWELL, in her official capacity as Secretary of the United States Department of the Interior; and the UNITED STATES OF AMERICA, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         The plaintiff, Lee M. Simmons (“Simmons”), owns land in Cherry County, Nebraska, a portion of which is included within the boundaries of the Niobrara National Scenic River. He brings this action to contest the boundary line that was drawn by the National Park Service (“NPS”) in March 2007. Defendants include Jonathan B. Jarvis, Director of the National Park Service, Sally Jewell, Secretary of the U.S. Department of Interior, and the United States of America.

         I. BACKGROUND

         A. The Wild and Scenic Rivers Act

         “The Wild and Scenic Rivers Act (‘WSRA'), 16 U.S.C. §§ 1271-1287, was enacted in 1968 out of concern for the preservation of United States rivers, many of which had been subjected to overdevelopment and damming.” Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1027 (9th Cir. 2008). The WSRA codifies Congress's policy determination “that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations.” 16 U.S.C. § 1271.

         “As originally enacted, the WSRA named specific rivers or segments of rivers for inclusion in the Wild and Scenic River System (‘WSRS').” Friends of Yosemite, 520 F.3d at 1027 (citing 16 U.S.C. § 1274(a)(1)-(a)(8)). “The WSRA also sets forth a procedure for future designations to the WSRS.” Id.(citing 16 U.S.C. § 1273(a)). “WSRS components are administered by the Secretary of the Interior (including any component administered by the Secretary of the Interior through the National Park Service or the Fish and Wildlife Service) or, if the river falls within a national forest, the Secretary of Agriculture.” Id.(citing 16 U.S.C. § 1281(c)-(d)).

         B. Designation of Nebraska's Niobrara River as a National Scenic River

         In 1991, Congress amended the WSRA to designate 76 miles of the Niobrara River in north-central Nebraska as a unit of the national Wild and Scenic Rivers System. See Niobrara Scenic River Designation Act of 1991, Pub. L. No. 102-50, §§ 2-3, 105 Stat 254, codified at 16 U.S.C. §§ 1274(a)(117), 1276(a)(111). “The amendment did not specify which or how much land in the immediate environment of the Niobrara River was ultimately to be included within the Act's protections.[1]Instead, it directed the Secretary of the Interior, pursuant to 16 U.S.C. § 1274(b), to select detailed boundaries for protected land in the Niobrara River area, totaling no more than 320 acres per river mile. The Secretary delegated this authority to the Park Service.” Sokol v. Kennedy, 210 F.3d 876, 877 (8th Cir. 2000) (footnote omitted).

In 1992, the Park Service began the decision-making process to establish boundaries for the river area, and to generate the required General Management Plan and Environmental Impact Statement. This process was thorough and lengthy, lasting over four years. The Park Service formed a planning team, led by Natural Resource Specialist William Conrod, to gather and analyze information on the Niobrara River area from a wide variety of public and private sources. The planning team also developed its own information from personal observations and field studies of resources along the river. The planning team assembled a large amount of information that was used to create “resource maps.” The team used these maps to develop boundary alternatives, seeking to maximize protection of various resources in the area. The Park Service also organized the Niobrara Scenic River Advisory Commission, a body of local residents, businessmen, environmental groups, and state officials, that contributed to the process and received public comment on the planned boundaries.
The Park Service did not evaluate the land adjacent to the Niobrara River in terms of “outstandingly remarkable” values. Instead, from the beginning, the planning team analyzed the Niobrara River area in terms of “significant” and “important” values. Park Service officials were more comfortable with the significance and importance standards because they were familiar with them from other regulatory contexts. Additionally, the planning team felt that the term, “outstandingly remarkable, ” was not clear and was relevant only to the selection of new rivers for inclusion in the Wild and Scenic Rivers System. Nevertheless, the planning team purported to adopt the outstandingly-remarkable-values standard retroactively after [an affected landowner, ] Mr. [David] Sokol[, ] complained, at the September 15, 1995, meeting of the Advisory Commission, that the significant-values standard violated the Act. The planning team's documents and field notes before Mr. Sokol's complaint spoke only in terms of significance or importance. Subsequently, the draft and final boundary alternatives, published by the team in 1996, explained that “significant” and “important” were being used merely as synonyms for “outstandingly remarkable.” By the end of the process, the Park Service claimed to have dropped the significant/important-values standard altogether, and the Park Service's final Record of Decision speaks only in terms of “outstandingly remarkable values.”

Id. at 877-78.

         C. The Sokol Decision

         In 1997, Mr. Sokol brought suit in this court (Case No. 8:97CV51) to challenge the boundaries set by NPS.[2] “He alleged that the Park Service had violated the Act by failing to apply an outstandingly-remarkable-values standard when selecting boundaries for the Niobrara Scenic River area. Defendants replied, first, that this standard did not apply because the Park Service had complete discretion under the Act to establish the boundaries as it saw fit. Second, they maintained that even if the outstandingly-remarkable-values standard was required, the Park Service had in fact used it.” Id. at 878. This court granted summary judgment for the defendants, see Sokol v. Kennedy, 48 F.Supp.2d 911 (D.Neb. 1999) (Bataillon, J.), but the Court of Appeals reversed the decision and held that “the Park Service's boundary selection violated its statutory duty under the Act.” 210 F.3d at 881. In particular, the Court held “[t]he Park Service failed to apply the relevant statutory authority in making its decision. It selected land for inclusion in the Niobrara Scenic River area without identifying and seeking to protect outstandingly remarkable values, as required by the Wild and Scenic Rivers Act.” Id. at 878. The Court explained:

We reject the defendants' first argument that the Park Service was free to select land for the river area as it saw fit, without regard for the outstandingly remarkable values that Congress sought to protect in the Niobrara. The defendants rely on 16 U.S.C. § 1274(b), pursuant to which Congress charged the Park Service to establish detailed boundaries. They argue that Section 1274(b) allows them complete discretion in choosing land, within the Section's acreage limitation. While it is true that Section 1274(b) itself says nothing to the contrary, the defendants' argument completely ignores controlling language elsewhere in the Act.
Each river area in the Wild and Scenic River System must be “administered in such manner as to protect and enhance the values which caused it to be included” in the System. 16 U.S.C. § 1281(a). The values which cause a river area to be included in the System are the “outstandingly remarkable ... values” of the river and of the related land adjacent to it.[3] Selecting detailed boundaries is an administrative act; it is an alteration of the river area already established by Congress.[4] As an administrative act, Section 1281(a) applied to the Park Service's selection of boundaries. Far from exercising complete discretion under that Section, the Park Service was required to make the boundary selection to protect and enhance the outstandingly remarkable values that caused the Niobrara River area to be included in the System.
Accordingly, we reject the defendants' contention that the Wild and Scenic Rivers Act provided no meaningful standard for the selection of detailed boundaries; this interpretation conflicts with the administrative duty clearly set out in Section 1281(a).... The defendants argue correctly that the Park Service was not required to include only land with outstandingly remarkable values. The Park Service's statutory duty was to establish detailed boundaries, within the acreage limits of Section 1274(b), that would protect and enhance the outstandingly remarkable values that caused the river area to be included in the Wild and Scenic Rivers System. This duty does not always bar the administering agency from including unremarkable land; indeed, the Act could require such inclusion where necessary to protect outstandingly remarkable resources, e.g. because of the need for buffer zones around resources or because of discontinuities in a resource's locations. Equally, the Act does not require that the boundaries encompass all the outstandingly remarkable resources; this might be impossible given the acreage limitation. Neither categorical alternative is required by our decision. The Act allows the administering agency discretion to decide which boundaries would best protect and enhance the outstandingly remarkable values in the river area, but it must identify and seek to protect those values, and not some broader category.
We also reject the defendants second argument-that the Park Service did, in fact, identify and seek to protect the outstandingly remarkable values of the Niobrara River area. As the defendants admit, the planning team consistently analyzed resources in the Niobrara for their “significance” and “importance.” These terms are not synonymous with “outstandingly remarkable.” Significance and importance are much broader terms....
The Park Service did not choose the terms “significance” and “importance” because they were synonyms for “outstandingly remarkable.” These terms were derived from a separate legal standard used by Park Service officials to evaluate potential park lands, a standard with which they were more familiar than the Wild and Scenic River Act's outstandingly-remarkable-values standard....
The values identified by the Park Service for protection likewise demonstrate that the planning team confused the standards appropriate for choosing potential parks and for selecting boundaries under the Wild and Scenic Rivers Act.... The record provides no evidence that the planning team later corrected its confusion, or that it assigned a special meaning to the terms “significance” and “importance, ” equivalent to the statutory terms. Mr. Conrod, the team captain, admitted no such conscious decision had ever occurred. Indeed, Mr. Conrod went so far as to express what almost amounted to contempt for the terms of the statute....
The defendants argue that whatever errors may have been made in the initial process were corrected in the draft and final boundary alternatives and in the Record of Decision. It is true that, after Mr. Sokol complained that the wrong standard was being used, editorial changes were made to the draft and final boundary alternatives. Specifically, a few sentences were added noting that “significant” and “important” were to be understood to mean outstandingly remarkable. These post hoc re-definitions, however, were not sufficient to correct past errors upon which the boundary alternatives and Record of Decision were based....
... Even after the Record of Decision had been published, Mr. Conrod stated that the outstandingly-remarkable-values standard did not apply to the selection of boundaries, but applied only initially “in the context of consideration of new sites.” The Park Service analyzed the river area under the wrong standard, failing to use the outstandingly-remarkable-values standard required by the Act in selecting boundaries; it failed to correct its initial mistakes.

Id. at 878-81 (footnotes and internal references omitted).

         The Court of Appeals also found “evidence in the record to suggest that the Park Service was not selecting land to protect the river area's resources but simply to maximize the number of acres included in the system.” Id. at 881 n. 11 (citing draft boundary alternative memorandum which stated that “preferred boundary alternative includes ‘maximum statutory acreage, ' compared with others which include only ‘critical resources.'”).”Particularly troubling, ” the Court stated, “was the decision to include more than 10, 000 acres of ‘hypothetical' viewshed, land that a canoeist on the river would see if one assumed that there were no trees or foliage along the banks. This was a massively counterfactual assumption; the Park Service knew that 60 to 70 per cent. of the Niobrara River is screened by dense trees and foliage. Much of the land included in this viewshed was ordinary, unstriking, and apparently unnecessary to protect the scenic values of the river. The Park Service may include only land which possesses outstandingly remarkable resources or which is actually necessary to protect such resources.” Id.(internal references omitted).

         Finding that the Park Service's boundary selection was not in accordance with law, the Eighth Circuit reversed and remanded to the district court with instructions to remand to the Park Service. The Court directed that “[o]n remand, the Park Service should select boundaries that seek to protect and enhance the outstandingly remarkable values of the Niobrara Scenic River Area.” Id. at 881.

         D. Post-Sokol Administrative Action

         The redrawing of boundary lines was completed in 2007. The Final General Management Plan (“GMP”) and Environmental Impact Statement (“EIS”) describe three alternative boundaries and three alternative management plans that were considered by NPS, along with a description of the process the agency conducted in developing these alternatives. On March 26, 2007, NPS Regional Director, Ernest Quintana, approved the Record of Decision choosing Management Alternative B and Boundary Alternative 3 on the recommendation of Paul Hedren, who at the time was NPS Superintendent of the Niobrara National Scenic River.

         E. Simmons' Lawsuit

         The present action was commenced on March 25, 2013, with the filing of a two-count complaint. It is stated that “Simmons is a property owner who has a working ranch and operates a recreational outfitter business, which includes canoeing and lodging, on land adjacent to the Niobrara Scenic River in Cherry County, Nebraska” (Filing No. 1 at CM/ECF p. 3). Simmons generally alleges that “NPS has acted improperly and contrary to law with respect to establishment of boundaries and management of the Niobrara Scenic River” (Filing No. 1 at CM/ECF p. 3).

         Count I of the complaint is brought under the Declaratory Judgment Act, and it is alleged that a case of actual controversy exists between Simmons and NPS pursuant to 28 U.S.C. § 2201 concerning NPS's failure:

(a) to exercise its statutory duty to administer the Niobrara Scenic River by establishing detailed boundaries for the Niobrara Scenic River “in such manner as to protect and enhance the [outstandingly remarkable values (“ORV's”)] which caused it to be included” in the WSR Act. Sokol, 210 F.3d at 878; Friends, 348 F.3d at 798 (hereinafter failure relating to “establishing detailed boundaries”);
(b) in adopting a Final CMP [comprehensive management plan] that, while associating specific ORV's with Niobrara Scenic River corridor in a general fashion, does not reflect the precise location of the ORV's or how, in drawing the boundaries for Simmons, NPS sought to protect them, including the fact the Record of Decision reflects some ORV's are not protected by the present boundaries and, indeed, that not all ORV's have been fully located. Friends, 348 F.3d at 798 (hereinafter failure to identify “precise location of ORV's on Simmons property”);
(c) to provide any “concrete measure of use” or otherwise “sufficiently address ‘user capacities'” pursuant to Section 1274(d)(1) of the WSR Act on the basis the VERP [Visitor Experience and Resource Protection] be “implemented through the adoption of quantitative measures sufficient to ensure its effectiveness as a current measure of user capacities” (and NPS'[s] further failure in the interim to “implement preliminary or temporary limits of some kind”) as opposed to merely creating a “VERP framework… contain[ing] only sample standards and indicators” as was done in the Final CMP [comprehensive management plan (also referred to as the Final General Management Plan and Environmental Impact Statement)] by NPS for the Niobrara Scenic River. Friends, 348 F.3d at 796-97 (hereinafter failure to “address user capacities”); and
(d) in creating insufficient procedures in a “comprehensive fire management plan” identified in the Final CMP in an effort to meet the requirements that it manage the Niobrara Scenic River corridor “in such manner as to protect” the ORV's (hereinafter failure relating to “comprehensive fire management plan”).

(Filing No. 1, ¶ 35.) The court is requested to enter an order “declaring the right of Simmons to require NPS (a) to exercise its statutory duty to administer the Niobrara Scenic River by properly establishing detailed boundaries; (b) to identify the precise location of ORV's on Simmons property; (c) to properly address user capacities; and (d) to create sufficient procedures in a comprehensive fire management plan.” (Filing No. 1, ¶ 36.)

         Count II of the complaint is brought under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et seq., and it is alleged that NPS violated the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq. The court is requested to enter an order:

(a) Declaring the right of Simmons to require NPS (a) to exercise its statutory duty to administer the Niobrara Scenic River by establishing new detailed boundaries for the Niobrara Scenic River “in such manner as to protect and enhance the [ORV's] which caused it to be included” in the WSR Act; (b) to adopt and implement a new comprehensive management plan that reflects the precise location of all ORV's on Simmons property on the Niobrara Scenic River and how, in drawing the boundaries, the NPS sought to protect them; and (c) to provide in a revised Final CMP a “concrete measure of use” or otherwise “sufficiently address ‘user capacities'” as required by Section 1274(d)(1) of the WSR Act (including implementation of reasonable interim “preliminary or temporary limits of some kind”) that would provide certainty to Simmons in his outfitter business while at the same time provide the “recreational enhancements … envisioned” by the WSR Act acknowledged by NPS (Final CMP at 229); and ...

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