Opinion
Civil No. 02-580 (DWF/AJB)
November 26, 2002
Richard A. Duncan, Esq., Brian B. O'Neill, Esq., Anne E. Mahle, Esq., and Julie P. Close, Esq., Faegre Benson, Minneapolis, MN, for Plaintiffs.
Thomas B. Heffelfinger, United States Attorney, and Joan Humes, Assistant United States Attorney, Minneapolis, MN, for Defendants.
Douglas J. Franzen, Esq., and Patrick Robben, Esq., Rider Bennett Egan Arundel, Minneapolis, MN, for Intervenor.
MEMORANDUM OPINION AND ORDER
Introduction
The above-entitled matter came on for hearing before the undersigned United States District Judge on November 15, 2002, pursuant to Plaintiffs' Motion for Preliminary Injunction. Plaintiffs have brought this action challenging the opening of certain bays in Voyageurs National Park to recreational snowmobiling. For the reasons set forth below, Plaintiffs' motion is denied.
Background
Voyageurs National Park ("the Park"), created by Congress in 1971, is located in the northernmost reaches of Minnesota, just at the Canadian border. The Park is a vast wilderness area, containing more than 30 lakes, and home to some of Minnesota's most endangered wildlife, including the gray wolf and the bald eagle. The Park also provides a recreational resource for boaters, campers, hikers, anglers, cross-country skiers, snowshoers, ice-fishermen, and snowmobilers.
In 1991 the National Park Service ("NPS") promulgated regulations, codified at 36 C.F.R. § 7.33(b), that designated certain areas of the Park as available for snowmobile use. Those areas include "[t]he frozen waters of Rainy, Kabetogama, Namakan, Mukooda, Little Trout and Sand Point Lakes." 36 C.F.R. § 7.33(b)(1)(i). The regulation further provided that the Park's Superintendent "may determine yearly opening and closing dates for snowmobile use, and temporarily close trails or lake surfaces, taking into consideration public safety, wildlife management, weather, and park management objectives. . . ." 36 C.F.R. § 7.33(b)(3). Voyageurs Region National Park Association ("the Association") immediately brought suit challenging the regulation and seeking to enjoin the NPS from opening the areas to snowmobiling. The Eighth Circuit determined that the regulations themselves were not arbitrary or capricious and that NPS's decision to open the areas to snowmobiling was similarly neither arbitrary nor capricious. See Voyageurs Region National Park Association v. Lujan, 966 F.2d 424 (8th Cir. 1992).
In December of 1992, the NPS exercised its authority pursuant to 36 C.F.R. § 7.33(b)(3) to temporarily close seventeen lake bays in the Park to snowmobiling. NPS renewed those closures for the 1993-1994 and 1994-1995 snowmobiling seasons. In 1994, a number of snowmobilers, including Intervenor Minnesota United Snowmobilers Association, sued NPS alleging that the bay closures were inappropriate and legally defective. Again, the Eighth Circuit determined that NPS's actions were neither arbitrary nor capricious. See Mausolf v. Babbitt, 125 F.3d 661 (8th Cir. 1997). The Eighth Circuit further held that the closures were, pursuant to the regulation, only temporary and that they must be renewed each year to remain viable.
In 1996, NPS opened six of the seventeen lake bays to snowmobile use, but again renewed its decision to close eleven of the bays to motorized winter sports. In 2001, however, NPS declined to renew the eleven closures. The record before the Court indicates that NPS presently does not plan to close any of the bays, although it reserves the right to do so for safety reasons or to promote other interests of park management.
Plaintiffs brought this action seeking to close the eleven bays that were closed between 1996 and 2001. Plaintiffs assert that the opening of the bays undermines the viability of the resident bald eagle and gray wolf populations. Plaintiffs further allege that the Defendants have not abided by their statutory and regulatory obligations in opening the bays.
Specifically, for purposes of the instant motion, the Plaintiffs assert that NPS failed to undertake the environmental review required by the National Environmental Policy Act, 42 U.S.C. § 4321 — 4370f ("NEPA") and failed to conduct public notice and comment as provided by NPS's own rules, 36 C.F.R. § 1.5.
Defendant NPS alleges that Plaintiffs' claims are moot because the decision they are challenging-the decision not to renew closure of the bays in 2001-has essentially expired and no new decision for the 2001-2002 winter season has yet been made. NPS further asserts that it was not required to conduct a full environmental review pursuant to NEPA before opening the bays at issue. Finally, NPS asserts that it has abided by those provisions of 36 C.F.R. § 1.5 that apply under these circumstances.
Discussion 1. Mootness
As a preliminary matter, the Court addresses NPS's assertion that the Plaintiffs' claims are moot. NPS's claim of mootness is premised upon the Eighth Circuit's conclusion in Mausolf that the directives closing bays at issue in that case were "temporary, annual directives that must be reviewed . . . yearly. . . ." Mausolf, supra, 125 F.3d at 669. If the decision to "open" the bays is similarly temporary, then it has expired, and there is no longer a decision to challenge.
The Court does not agree.
First, the Mausolf court was considering the closure of bays, not, as here, the failure to renew those closures. The distinction may seem to be one of semantics, but it is actually quite significant. Pursuant to 36 C.F.R. § 7.33(b)(1)(i), all of the frozen surfaces of certain lakes-including the bays of those lakes at issue here-are designated as available to snowmobilers. Thus, absent any affirmative action by NPS pursuant to 36 C.F.R. § 7.33(b)(3) to close the bays, the "default" condition of these bays is that they are open. The language of the regulation would seem, then, to suggest that closing the bays is a temporary action, but letting a bay closure lapse has indefinite effects, effects which can be challenged until NPS affirmatively ends them.
However, assuming that NPS is correct about the limited duration of the challenged decision, the case is still not moot. If every NPS decision regarding the bays-either opening or closing-is of one year duration, then the issues raised by Plaintiffs are nevertheless justiciable pursuant to the exception to the mootness doctrine for issues that are "capable of repetition, yet evading review." See Roe v. Wade, 410 U.S. 113, 125 (1973); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).
2. Preliminary Injunction A. Standard of Review
Under Eighth Circuit precedent, a temporary restraining order or preliminary injunction may be granted only if the moving party can demonstrate: (1) a likelihood of success on the merits; (2) that the balance of harms favors the movant; (3) that the public interest favors the movant; and (4) that the movant will suffer irreparable harm absent the restraining order. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). "None of these factors by itself is determinative; rather, in each case the four factors must be balanced to determine whether they tilt toward or away from granting a preliminary injunction." West Publ'g Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987). The party requesting the injunctive relief bears the "complete burden" of proving all the factors listed above. Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987).
B. Likelihood of Success on the Merits
The Court finds that the Plaintiffs are unlikely to succeed on the merits of their claims. Specifically, the Court agrees with NPS that the law did not require NPS to engage in NEPA environmental review and that NPS did, in all probability, abide by the minimal requirements of 36 C.F.R. § 1.5.
First, with respect to NEPA, NPS asserts that the NEPA requirements were met during the promulgation of the rules codified at 36 C.F.R. § 7.33. Indeed, the Plaintiffs do not contest that NEPA review was conducted at that time, and Plaintiffs point to no sunset provision that mandates that NEPA review be redone at particular intervals. The Court finds that it is highly unlikely that the Plaintiffs will persuade this or any reviewing court that full NEPA review was mandated prior to allowing the bay closures to lapse.
The Court notes that the Eighth Circuit has reviewed Park action with respect to snowmobiling twice and has never suggested the need for NEPA review prior to a NPS determination to close or reopen bays in the Park. Rather, the Eighth Circuit has stated that the opening and closing of bays is committed to the NPS's discretion and subject only to NPS's obligation to be a faithful steward of natural resources and NPS's own procedural regulations as set forth at 36 C.F.R. § 1.5. What's more, the Eighth Circuit has indicated that the opening and closing of bays are temporary measures, that bay closures must be renewed annually; it defies reason to require NPS to conduct full NEPA review on an annual basis. In short, the Plaintiffs' arguments-that the NEPA evaluation done during the promulgation of 36 C.F.R. § 7.33 is inadequate and that NPS must undertake full NEPA evaluation prior to allowing a temporary closure to lapse-are unpersuasive.
Moving then to the issue of 36 C.F.R. § 1.5, the Court finds that the record before it indicates that NPS has abided by the minimal requirements of that rule. At the outset, the Court notes that NPS concedes that its closure decisions with respect to the Park bays are subject to the substantive and procedural requirements of 36 C.F.R. § 1.5. However, NPS asserts that its obligations under these circumstances are set forth in 36 C.F.R. § 1.5(c) and 36 C.F.R. § 1.7, not, as Plaintiffs assert, 36 C.F.R. § 1.5(b).
Section 1.5(b) states that "a closure . . . or the termination or relaxation of such, which is of a nature, magnitude and duration that will result in a significant alteration in the public use pattern of the park area, adversely affect the park's natural, aesthetic, scenic or cultural values, require a long-term or significant modification in the resource management objectives of the unit, or is of a highly controversial nature, shall be published as rulemaking in the Federal Register." Closures or terminations of closures that do not rise to this level are subject only to the procedural requirements of § 1.5(c), which requires the park superintendent to prepare a written determination justifying the decision, and § 1.7, which requires the park superintendent to publicize her decision in a specified manner.
Although the facts underlying the Eighth Circuit's Mausolf decision were not exactly identical to those presented here, in that case the Eighth Circuit determined that formal rulemaking was not required before the Park Superintendent could exercise her authority under 36 C.F.R. § 7.33(b)(3) to close certain bays to snowmobiling. It would be a strange result indeed to determine that the Park Superintendent was not required to undertake rulemaking before taking a specific action-closing bays that were otherwise designated for snowmobile use-that would alter the existing, formally promulgated rule, but that she was required to undertake such rulemaking if she wished to refrain from such action and again enforce the formally promulgated rule as written. Moreover, following the logic of Mausolf, reopening these few small bays, part of an enormous system of snowmobile trails and areas, seems unlikely to amount to a "significant alteration" of the Park's use, particularly when the new status quo is that which is defined in the Park's establishing regulation.
To the extent that the Park was required only to abide by 36 C.F.R. § 1.5(c) and 36 C.F.R. § 1.7, the record indicates that the Park did abide by the very limited requirements of those regulations, and the Plaintiffs, who focused on the lack of formal rulemaking, have not argued that the Park did not prepare a written explanation and make the requisite public notice.
It should be noted that 36 C.F.R. § 1.7 requires little in the way of public notice. All the regulation requires is that the public be notified of the change, after the fact, through signage, maps, publication in local newspapers, and/or "[o]ther appropriate methods."
This is not to suggest that NPS is free to do whatever it wants in the Park. Obviously, NPS is constrained by the uses defined in the formally promulgated rules codified at 36 C.F.R. § 7.33. Moreover, NPS is obliged to exercise its discretion with an eye toward its general stewardship responsibilities. However, the Court's substantive review of the agency's decision is limited to whether such decision is arbitrary and capricious. The scientific evidence in the record is mixed in its conclusions about the impact of snowmobiling on the gray wolf and the bald eagle. Although the Court might have reached a different decision than NPS if presented with the evidence in the record, the Court cannot conclude at this juncture that NPS's decision is arbitrary and capricious.
C. Remaining Dataphase Factors
Although Plaintiffs' unlikelihood of success on the merits-at least with respect to those claims that form the basis for the Motion for Preliminary Injunction-renders consideration of the remaining Dataphase factors immaterial, the Court notes that it recognizes the important interests the Plaintiffs seek to preserve and the magnitude of the harm that may be done if NPS has misconstrued the evidence it has been presented. Both the bald eagle and the gray wolf are magnificent creatures, vital to the northwoods ecosystem, and priceless resources to the people of Minnesota and, indeed, the entire country.
The delay between the initial agency action challenged-failure to renew the bay closures in 2001-and both the inception of this lawsuit and the filing of the instant motion would seem to suggest that this case does not present the sort of urgency that typically justifies the extreme remedy of injunctive relief. However, the Court concedes that the particular Plaintiffs may not have been aware of the initial agency action until fairly late in the game and that the urgency of the situation mounts as the new snowmobiling season approaches.
While Congress clearly created the Park with the intent that it be a "sportsman's paradise," with abundant recreational opportunities, it is alarming to think that the desire of a few snowmobilers to obtain access to just a smidge more pristine wilderness should trump the survival interests of two species. The Court must trust that NPS takes its obligation to balance the interests of Park visitors against the need to preserve precious natural resources quite seriously and that the NPS will be vigilant in this regard, moving quickly to correct any error in judgment that it may have committed.
The Court's limited authority to review administrative agency decisions and the limited procedural requirements mandated by the law dictate the Court's decision today. All parties should be aware that the Court does not underestimate the magnitude of the interests at stake or the potential severity of the consequences of NPS's action.
For the reasons stated, IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Preliminary Injunction (Doc. No. 35) is DENIED.