Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir. 1996): interpreting Organic Act to give Park Service authority to close mountain bike trails; agency finding that trails would endanger park values was not arbitrary or capricious.
The legal decision that seems to define the impact of mountain bikes on the environment and the possible safety issues is Marin v. Babbitt. You probably already know this, but the result of this court decision is that mountain bikes generally are not allowed on narrow trails in the NPS system, and other agencies, such as the EBRPD in the East Bay, have usually followed this ruling in creating their own regulations. Attached is the opinion in ASCII text. If you search for "narrow" or "single" in the text you will quickly get to the interesting places.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BICYCLE TRAILS COUNCIL OF MARIN, a California Nonprofit
TRAILS COUNCIL OF THE EAST BAY, a California nonprofit
INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California
corporation; LEAGUE OF AMERICAN WHEELMEN, a Maryland nonprofit
corporation, et al., Plaintiffs-Appellants,
BRUCE BABBITT,*fn* Secretary of the Interior; JAMES M.
RIDENOUR, Director of the National Park Service; BRIAN O'NEILL,
of the Golden Gate National Recreation Area, Defendants-Appellees,
SIERRA CLUB; BAY AREA TRAILS PRESERVATION COUNCIL; THE NATIONAL
PARKS AND CONSERVATION ASSOCIATION, et al.
D.C. No. CV-93-00009-EFL
Appeal from the United States District Court for the Northern
District of California Eugene F.
Lynch, District Judge, Presiding
Argued and Submitted February 15, 1996--San Francisco, California
Filed May 6, 1996
Before: Stephen Reinhardt, David R. Thompson, and Diarmuid F.
O'Scannlain, Circuit Judges
Terry J. Houlihan, McCutchen, Doyle, Brown & Enersen, San
Francisco, California, for the
Robert L. Klarquist, United States Department of Justice,
Washington, D.C., for the
We affirm the district court's grant of summary judgment in favor
of defendants, authored by the
Honorable Eugene F. Lynch. We adopt the district court's thorough
and well-reasoned order
granting summary judgment, with the exception of the waiver
analysis in Parts III(A)(1)(a) and
III(A)(2)(a), as to which we express no opinion. The district
court's order is appended hereto, as amended to reflect the
omission of the waiver analysis.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
BICYCLE TRAILS COUNCIL OF MARIN, a California nonprofit
TRAILS COUNCIL OF THE EAST BAY, a California nonprofit
INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California
corporation, LEAGUE OF WHEELMEN, a Maryland nonprofit corporation,
CUNNINGHAM, ANGELA DIMEGLIO, LINDA ENIS, DAVID GAROUTTE, ALAN
GOLDMAN, STEPHEN HOXIE, JAMES E. JACOBSON, ABBY
MINOT, TODD OURSTEN, and ADRIENNE SHAPIRO, as individuals,
BRUCE BABBITT, Secretary of the Interior, JAMES M. RIDENOUR,
Director of the National
Park Service, BRIAN O'NEILL, General Superintendent of the Golden
Gate National Recreation
BAY AREA TRAILS PRESERVATION COUNCIL, et al.,
No. C-93-0009 EFL
ORDER GRANTING DEFENDANTS SUMMARY JUDGMENT
FILED SEPTEMBER 1, 1994
Plaintiffs challenge the National Park Service ("NPS") regulations
governing the use of bicycles within areas administered by it,
including the Golden Gate National Recreation Area ("GGNRA").
Specifically, plaintiffs seek review of both the regulations set
forth at 36 C.F.R. section 4.30 ("the 1987 regulation"), which
applies generally to NPS lands, and the Marin Trails Use
Designation Plan for GGNRA adopted as the final rule at 57 Fed.
Reg. 58711-16 (Dec. 11, 1992) (codified at 36 C.F.R. section 7.97)
("the 1992 trail plan").
In 1964, NPS at its own initiative implemented a management by
categories scheme by which units of the National Park System would
be classified "natural,""historical," or "recreational,"*fn1 and
by which management policies would be formed so as to regulate
these three types of units in conformity with their differing
classifications. The effect of this scheme would be, inter alia,
that recreational units would be managed in a less restrictive and
less resource-protective manner than units classified natural or
historical. Under this scheme, NPS in 1966 decided to alter its
longstanding policy regarding bicycle use in park units from one
wherein all trails were closed unless designated open to one in
which the old rule generally applied except in units classified as
recreational, in which trails would be presumed open to bicycle
use unless designated closed by the local park superintendent.
By a series of amendments to the National Park Service Organic
Act, 16 U.S.C. sections 1 et seq., Congress disapproved of this
management by categories scheme and directed that all units of the
national parks were to be treated consistently, with resource
protection the primary goal,*fn2 while retaining the flexibility
for individual park units to approve particular uses consistent
with their specific enabling legislation. Thus, NPS eliminated
these management categories from its internal administration in
1978 and ultimately began promulgating regulations in the 1980's
eliminating these categorical distinctions from the Code of
The elimination of the last regulatory reference to these
management categories was one of the
objectives articulated by NPS for the rulemaking effecting the
1987 regulation. See 52 Fed. Reg. 10670 (April 2, 1987).
The 1987 regulation, adopted pursuant to notice and comment,
established a uniform rule for national park units wherein all
bicycle use of off-road areas would be prohibited unless local
park superintendents designated particular trails to be open. (As
noted, this had previously been the rule in all but the recreation
units.) Local park officials determined that they would not
enforce this rule in the GGNRA until it was determined which
trails would be open and which closed to bicycle use. Thus,
because of NPS's and the GGNRA uperintendent's exercise of
prosecutorial discretion, the 1987 regulation was not enforced and
bicyclists in fact retained access to all trails in the GGNRA
pending the development of a trail use plan. Finally, after a long
and contentious trail designation process, the 1992 trail plan was
adopted (also pursuant to notice and comment) establishing which
trails were to be open to bicycles and which trails were to be
Plaintiffs applied to this Court for a preliminary injunction
against the enforcement of the 1992 trail plan. This application
was denied in February of 1993. Defendant-Intervenors' motion to
intervene was granted on February 18, 1993. Plaintiffs and
defendants have filed cross-motions for summary judgment, filed
oppositions to one anothers' motions, and replied to these
oppositions. Defendant-Intervenors have filed an opposition to
plaintiffs' motion for summary judgment and a reply brief in
support of defendants' motion. This motion has been submitted on
the 1987 and 1992 administrative records. Having considered all of
the briefs of the parties, and having also considered the oral
arguments presented at the hearing of November 12, 1993, this
Court stands ready to rule.
As described above, plaintiffs challenge two agency actions: the
adoption in 1987 of a revised 36 C.F.R. section 4.30 and the
development and promulgation in 1992 of a trail plan for the Marin
Headlands section of GGNRA.
A. THE 1987 REGULATION
The 1987 rule here challenged reads:
(a) The use of a bicycle is prohibited except on park roads, in
parking areas and on routes designated for bicycle use; provided,
however, the superintendent may close any park road or parking
area to bicycle use pursuant to the criteria and procedures of SS
1.5 and 1.7 of this chapter. Routes may only be designated for
bicycle use based on a written determination that such use is
consistent with the protection of the park area's natural, scenic
and aesthetic values, safety considerations and management
objectives and will not disturb wildlife or park resources.
(b) Except for routes designated in developed areas and special
use zones, routes designated for
bicycle use shall be promulgated as special regulations.
36 C.F.R. section 4.30.
The National Park Service Organic Act provides that the National
Park Service shall:
promote and regulate the use of the Federal areas known as
national parks, monuments, and reservations hereinafter specified,
. . . by such means and measures as conform to the fundamental
purpose of the said parks, monuments, and reservations, which
purpose is to conserve the scenery and the natural and historic
objects and the wild life therein 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.
16 U.S.C. section 1.
Additionally, the Organic Act provides:
The Secretary of the Interior shall make and publish such rules
and regulations as he may deem necessary or proper for the use and
management of the parks, monuments, and reservations under the
jurisdiction of the National Park Service.
16 U.S.C. section 3.
1. The Organic Act and Review Under Chevron
The National Park Service Organic Act expressly delegates
rulemaking authority to the Secretary of the Interior to
promulgate rules and regulations to implement the Act. 16 U.S.C.
Legislative regulations promulgated pursuant to such express
authority will be upheld "unless they are arbitrary, capricious,
or manifestly contrary to the statute." Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).
Plaintiffs challenge the 1987 regulation and seek to have it
vacated on the theory that it is arbitrary and not based upon a
permissible interpretation of the Organic Act. Defendants and
Intervenors argue that the 1987 regulation was based upon a
mandated or at least clearly permissible interpretation of the
Organic Act and its amendments.
a. Waiver [omitted]
b. Statutory Interpretation
Plaintiffs challenge the legality of the regulation on the theory
that it is not based upon a permissible interpretation of the
Organic Act. This challenge fails. A review of the Organic Act and
the history of its amendments shows that NPS based its decision to
eliminate the reference to management categories (and thus to
eliminate the special "recreation" unit rule) in the 1987
regulation on a mandated and certainly permissible construction of
the Organic Act and its amendments.
In response to congressional amendments to the Organic Act, NPS in
1978 began phasing out its usage of the "management categories"
that had been earlier developed to allow for the different
treatment of different classes of units in the National Park
System. In the 1980's, NPS began eliminating such distinctions in
its regulations. NPS interpreted Congress's amendments to the
Organic Act to be clear in the message that NPS was not to single
out a particular class of units of the park system (i.e.
recreational units) for less protective treatment, but that
instead NPS was to manage all units of the park system so as to
effect the purpose of the Organic Act--primarily resource
protection. See 48 Fed. Reg. 30252 (June 30, 1983); Michigan
United Conservation Clubs v. Lujan, 949 F.2d 202 (6th Cir. 1991);
National Rifle Assn. v. Potter, 628 F.Supp. 903 (D.D.C. 1986).
The 1987 amendment to section 4.30 was part of a rule-making whose
purposes included "to eliminate the remaining references to the
management categories formerly used to classify park areas." 52
Fed. Reg. 10670. Formerly, regulations promulgated in 1966 had
provided that in "historic" or "natural" park units, off-road
trails and areas were "closed-unless-designated-open" for bicycle
use, while in "recreational" units off-road trails and areas were
"open-unless-designated-closed" for bicycle use. 36 C.F.R. section
2.30 (1967 ed.), moved to 36 C.F.R. section 4.3 (July 1, 1977
ed.). The new section 4.30 results in a
"closed-unless-designated-open" status for off-road areas in all
Plaintiffs argue that even if NPS interpreted Congress's
amendments to the Organic Act as mandating consistency throughout
the park system, the NPS decision to achieve this consistency by
applying the closed-unless-designated-open" rather than
open-unless-designated-closed" standard was arbitrary and not
based upon a permissible interpretation of the Organic Act.
The Supreme Court has established a two-step process for reviewing
an agency's construction of a statute it administers:
First, always, is the question whether Congress has directly
spoken to the precise question at issue.
If the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.
If, however, the court determines Congress has not directly
addressed the precise question at issue, the court does not simply
impose its own construction on the statute, as would be necessary
in the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.
Chevron, 467 U.S. at 842-43 (1984).
At "step one," if a court "employing traditional tools of
statutory construction ascertains that Congress had an intention
on the precise question at issue, that intention is the law and
must be given effect." Id. at 843 n.9.
At "step two," "The Court need not conclude that the agency
construction was the only one it permissibly could have adopted to
uphold the construction, or even the reading the court would have
reached if the question initially had arisen in a judicial
proceeding." Id. at 843 n.10.
i. Chevron Step One
Intervenors argue persuasively that this is a Chevron "step one"
case in that Congress clearly intended by its 1970 and 1978
amendments to the Organic Act that NPS alter its practice of
governing recreational park units under less restrictive standards
and instead manage all areas of the park system uniformly with the
fundamental goal of resource protection in mind. In the 1970
amendments to the Organic Act, Congress recognized that "the
national park system has grown to include superlative natural,
historic, and recreation areas," 16 U.S.C. section 1a-1, that "the
purpose of this Act [is] to include all such areas in the system
and clarify the authorities applicable to the system," id., and
that "the various authorities relating to the administration and
protection of areas under the administration of the Secretary of
the Interior, through the National Park Service, . . . shall . . .
be applicable to all areas within the national park system." 16
U.S.C. section 1c(b). Further, the definition of "national park
system" was changed so as to include for the first time a
reference to recreational areas: "The `national park system' shall
include any area of land and water now or hereafter administered
by the Secretary of the Interior through the National Park Service
for park, monument, historic, recreational, or other purposes." 16
U.S.C. section 1c(a).
Intervenors also argue that the legislative history of the 1970
amendments makes clear the congressional intent that those
recreational park units not be given less protective treatment
than other units in the park system. For example, the House
Report, H.R. Rep. No. 91-1265, accompanying the bill amending the
Organic Act, Pub. L. No. 91-383, noted that because the Organic
Act "contains no reference to more recent concepts like national
recreation areas, national seashores, or national lakeshore," . .
. "the usual rules of construction . . . could result in
interpretations which would lead to the administration of the
system so that it would be almost devoid of uniformity." However,
the Organic Act (and some other statutes) "have desirable, useful,
and necessary provisions and they should be applicable uniformly
throughout the National Park System." Thus, the bill's "Section 1
. . . emphasizes the common purpose of all units of the national
park system and declares that its purpose is to include all such
areas in the system and to clarify the authorities applicable to
it." 1970 U.S. Code Cong. & Adm. News, Vol.2, 91st Cong., 2d
Sess., at 3785-87.
In the 1978 amendments to the Organic Act, Congress amended the
Organic Act to read: "the promotion and regulation of the various
areas of the National Park System . . . shall be consistent with
and founded in the purpose established by Section 1*fn4 of this
title, to the common benefit of all the people of the United
States." 16 U.S.C. section 1a-1. The purpose of this change was
described in the House Report as to add "a declaration by Congress
that the promulgation and regulation of the National Park System
is to be consistent with the Organic Act for the National Park
Service. The protection of the units of the system is to be
carried out in accordance with the maintenance of the integrity of
this system, and management of these areas shall not compromise
these resource values except as Congress may have specifically
provided. 1978 U.S. Code Cong. & Adm. News, 95th Cong., 1st sess.,
at 463. It was in response to the 1978 amendments that NPS
immediately began the process of eliminating from its regulations
and its management practices the management categories of
"natural," "historic," and "recreational" units. See 48 Fed. Reg.
This Court agrees with Intervenors that the statutory language and
the legislative intent of the 1970 and 1978 amendments mandated
that NPS discontinue the practice of managing recreation areas
under less protective rules than it was using in managing natural
and historic areas. The purpose of these amendments was to bring
recreational units (including recreation areas, seashores, and
lakeshores) into the fold and require that they be managed
consistently with the rest of the system. Congress clearly
intended and mandated that NPS eliminate the distinctions and
treat all units as it had been treating those parks that had been
expressly within the ambit of the Organic Act, the natural and
historic units, with resource protection the overarching concern.
In light of this mandate, NPS had no choice when amending section
4.30 as between making all parks' trails
"open-unless-designated-closed"--the prevailing practice only in
recreation units-- or closed-unless-designated-open"--the
prevailing practice in the natural and historic areas. NPS could
only effect the intent of Congress by amending 4.30 such that all
parks were to be treated uniformly in the manner that natural and
historical units had previously been managed and thus that all
trails were to be "closed-unless-designated-open."
NPS in amending section 4.30 (in accordance with its more general
policy of eliminating management categories and deleting the less
restrictive "recreation" unit rules) acted so as to "give effect
to the unambiguously expressed intent of congress." See Chevron,
467 U.S. at 843. The challenged regulation, therefore, is valid.
ii. Chevron Step Two
Even if the intent of Congress were not so clear on this issue,
the regulation would still be upheld as based on a permissible
interpretation of the Organic Act.
As noted above, legislative regulations promulgated pursuant to an
express grant of statutory rulemaking authority are valid "unless
they are arbitrary, capricious, or manifestly contrary to the
statute." Chevron, 467 U.S. at 844.
If an agency decision "`represents a reasonable accommodation of
conflicting policies that were committed to the agency's care by
the statute, we should not disturb it unless it appears from the
statute or its legislative history that the accommodation is not
one that Congress would have sanctioned.'" Chevron, 467 U.S. at
845 (quoting United States v. Shimer, 367 U.S. 374, 383, 383
As noted above, the Organic Act provides that NPS "shall promote
and regulate the use of the Federal areas known as national parks
. . . by such means and measures as conform to the fundamental
purpose of the said parks, . . . which purpose is to conserve the
scenery and the natural and historic objects and the wild life
therein 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," 16 U.S.C. section 1, and that
"The Secretary of the Interior shall make and publish such rules
and regulations as he may deem necessary or proper for the use and
management of the parks." 16 U.S.C. section 3.
Courts have noted that the Organic Act is silent as to the
specifics of park management and that "under such circumstances,
the Park Service has broad discretion in determining which avenues
best achieve the Organic Act's mandate. . . . Further, the Park
Service is empowered with the authority to determine what uses of
park resources are proper and what proportion of the park's
resources are available for each use." National Wildlife
Federation v. National Park Service, 669 F.Supp. 384, 390 (D.D.C.
Wyo. 1987), citing Organized Fisherman of Florida v. Hodel, 775
F.2d 1544, 1550 (11th Cir. 1985)[, cert. denied, 476 U.S. 1169
(1986)]; Sierra Club v. Andrus, 487 F.Supp. 443, 448 (D.D.C.
1980), aff'd, Sierra Club v. Watt, 659 F.2d 203 (D.C. Cir. 1981);
see also Wilderness Public Rights Fund v. Kleppe, 608 F.2d 1250,
1253 (9th Cir. 1979)(noting that allocation of a limited use
between competing user groups "is well within the area of
administrative discretion granted to the NPS")[, cert. denied, 446
U.S. 982 (1980).
A decision to limit mountain bicycle use to trails affirmatively
designated as appropriate for such
use fails comfortably within this broad grant of discretion to the
Secretary under the Organic Act.
The Organic Act is unquestionably silent on the precise issue of
bicycle trail access. However, the Secretary is directed to
conserve the natural elements of the parks for the future, 16
U.S.C. section 1, to "provide for the enjoyment" of the parks, to
manage the parks "in light of the high public value and integrity
of the National Park System," 16 U.S.C. section 1a-1, and to make
such rules as "he may deem necessary or proper for the use and
management of the parks." 16 U.S.C. section 3. In light of this
language, an interpretation that the Organic Act allows for this
closed-unless-designated open approach for bicycle trail access
cannot be termed "manifestly contrary to the statute."
The legislative history and the statutory amendments discussed
above further reinforce this finding. This regulation is thus
based upon a permissible interpretation of the statute and is
valid on this alternate ground as well.
Plaintiffs argue at length in their briefs and almost exclusively
at oral argument that the 1987 regulation is invalid because it
reflects NPS reversing its own earlier position on mountain
bicycle use in recreation areas. Citing the Supreme Court in Motor
Vehicles Mfrs. Assn. v. State Farm, 463 U.S. 29, 57 (1983)("An
agency's view of what is in the public's interest may change,
either with or without a change in circumstances[,] but an agency
changing its course must supply a reasoned analysis."), plaintiffs
argue that NPS's latest interpretation of the Organic Act as
expressed in 36 C.F.R. section 4.30 is entitled to less deference
because NPS earlier interpreted the Organic Act to reach an
opposite conclusion regarding mountain bicycling in recreation
areas under its old 36 C.F.R. section 4.3. See, e.g., Immigration
and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 446
n.30 (1987). Plaintiffs further argue that NPS did not provide the
requisite "reasoned analysis" to justify its change in position.
Plaintiffs' argument relying upon State Farm fails for at least
First, unlike State Farm where the agency flip-flopped in its
interpretation of a single unamended standard, this case involves
a situation where the agency changed its position to accommodate
the amendments by Congress of the underlying Act. NPS did not
simply decide one day to reverse its position of the day before.
Rather, following amendments to the Organic Act and pursuant to a
longstanding policy by which NPS was eliminating its management
categories, NPS changed 36 C.F.R. section 4.30 so as to be
consistent with the newly worded statute.
Second, unlike State Farm, this is not a case where the agency can
be said to have changed its "policy." Rather, as in Northwest
Motorcycle Assn. v. USDA, 18 F.3d 1468, 1480 (9th Cir. 1994), the
agency modified its approach to further an existing policy, which
included not just the providing of recreational opportunities but
also the consideration of "public safety, resource protection and
the avoidance of visitor conflicts." 52 Fed. Reg. at 10681.
Third, even accepting plaintiffs' argument on its own terms, this
case is distinguishable from State Farm in that here the NPS did
provide a rational and principled analysis of its decision to
amend 36 C.F.R. section 4.30. See also Northwest Motorcycle Assn.,
18 F.3d at 1480 (change in policy by the agency is to be upheld
where the policy change is "based on a rational and principled
reason"). In its announcement of the final rule adopting section
4.30, NPS stated:
This section is a revision of the former section 4.3 and provides
that the use of bicycles is allowed in park areas under the same
basic conditions as are motor vehicles, i.e. on park roads, in
parking areas, and on routes designated for their use. These
provisions reflect the facts that the NPS generally considers
bicycle use a very appropriate, low impact method for visitors to
enjoy park areas, but that certain limitations on their use are
necessary and appropriate in the interest of public safety,
resource protection, and the avoidance of visitor conflicts.
. . . .
. . . . The NPS has determined that the designation of a bicycle
route outside of such developed areas, in areas whose primary
purpose and land uses are related more to the preservation of
natural resources and values, would have a much greater potential
to result in adverse resource impacts or visitor use conflicts.
This paragraph therefore provides for a much more stringent
decision making process for such a proposal by requiring a formal
rulemaking. Such a process will provide for a thorough review of
all environmental and visitor use considerations and assure the
superintendent of having had the benefit of public review and
comment before making a decision on any proposed designation.
52 Fed. Reg. at 10681.
NPS thus realized that it was imposing "certain limitations" on
bicycle use but supported that decision by reference to the
principles of "public safety, resource protection, and the
avoidance of visitor conflicts." Further, to the extent that its
decision was based upon the elimination of management categories,
NPS noted in its response to a comment that the elimination of
management categories had been agency policy since 1978 and
referred to a change in NPS's general regulations in 1983-84 in
which the reasons for this policy were set out at length. 52 Fed.
Reg. at 10671. In its "background" discussion, NPS noted that "The
evolution of the National Park System, new statutory authorities
and directions, . . . [and] modifications in recreation and
visitation patterns . . . have all contributed to rendering many
of the existing NPS regulations unnecessary, ineffective and/or
otherwise outdated. This rulemaking represents an effort on the
part of the NPS to strengthen its overall traffic safety program
and, in the process, to update and clarify certain of its traffic
regulations and delete others that are unnecessary." 52 Fed. Reg.
Therefore, even assuming arguendo that NPS's decision to revise
section 4.30 represents a reversal of policy, NPS has provided the
"reasoned analysis" necessary to support such a change. State
Farm, 467 U.S. at 57. This reasoned analysis by NPS, discussing
and balancing relevant conflicting policies, further forecloses
any argument that this regulation is "arbitrary" under Chevron.
Finally, even such a "changed" position still stems from a
permissible (if not mandated) interpretation of the Organic Act.
Therefore, this Court has no basis on which to find that 36 C.F.R.
section 4.30 as amended is invalid in light of the National Park
Service Organic Act.
Plaintiffs also challenge the 1987 rulemaking on the basis that
NPS did not prepare an Environmental Impact Statement (EIS) or
even an Environmental Assessment (EA) in the course of amending 36
C.F.R. section 4.30. Defendants argue that no EIS was needed
because this rulemaking was not a major federal action having a
significant impact on the quality of the human environment, and
that no EA was needed because this rulemaking fell within an
appropriate categorical exclusion.
The Court reviews an agency decision not to prepare an EIS under
an "arbitrary or capricious" standard. Inland Empire Public Lands
Council v. Schultz, 992 F.2d 977, 981 (9th Cir. 1993); Greenpeace
Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.)[, amended and
superseded on denial of reh'g, 14 F.3d 1324 (9th Cir. 1992)]. This
standard also applies to an agency's determination that a
particular action falls within one of its categorical
exclusions.*fn5 Citizens For the Scenic Svern River v. Skinner,
802 F.Supp. 1325, 1333 (D. Md. 1991)[, aff'd, 972 F.2d 338 (4th
Cir. 1992)]; see also Jones v. Gordon, 792 F.2d 821, 827-29 (9th
Cir. 1986) (applying the standard for reviewing a decision not to
prepare an EIS (at that time, for "unreasonableness") to a
decision that an agency action fell within one of its categorical
NPS determined that the 1987 rulemaking did not require the
preparation of an EA or an EIS because it was categorically
excluded by departmental regulations in 516 DM 6 (49 Fed. Reg.
21438), in that this rulemaking was "not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce noncompatible uses which might compromise the nature
and characteristics of the areas, or cause physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent owners or occupants."
52 Fed. Reg. at 10682.
Plaintiffs argue that the changes to section 4.30*fn7 result in
this rulemaking falling outside this
a. Waiver [omitted]
b. Arbitrary and Capricious
. . . [T]his Court cannot find that NPS's determination that this
rulemaking fell within a categorical exclusion was arbitrary or
capricious. Rather, the determination was eminently reasonable.
The closing of off-road areas to bicycle use (pending further
particularized determinations of whether it is appropriate in
particular cases) clearly falls within the categorical exclusion
relied upon by NPS. This rule could reasonably be expected not to
"increase public use to the extent of compromising the nature and
character of the area" nor to "introduce
noncompatible uses which might compromise the nature and
characteristics of the area" nor to affect in any way adjacent
land owners or land uses. Plaintiffs' arguments to the contrary
border on sheer speculation. Plaintiffs suggest that the closing
of trails might force bicyclists to ride in other areas, thereby
compromising the nature of those areas.*fn8 However, the
regulation makes clear that riding in any other nondeveloped area
is also forbidden; the suggestion that closing trails will force
bicyclists to break the law by riding on similarly closed
protected areas is not convincing. To the extent that closing all
off-road areas to bicycle use will force bicyclists onto paved
roads more, it would not be arbitrary (or unreasonable) for the
NPS to have concluded that this increased use of the paved roads
and developed areas would not "compromis[e] the nature and
character of the area or caus[e] physical damage to it," 52 Fed.
Reg. at 10682, particularly in light of NPS's finding that
"bicycle use [is] a very appropriate, low impact method for
visitors to enjoy park areas." 52 Fed. Reg. at 10681. The new
regulation in no way introduces any new use to the park system,
much less an incompatible use." Nor does it in any way affect
adjacent landowners. Plaintiffs' suggestion that the regulations
would somehow force off-road bicyclists to trespass*fn9 on the
property of adjoining landowners is unavailing; the agency should
no more assume that citizens will violate any other law than that
they will violate the regulation being promulgated.
NPS's determination that its amendment of section 4.30 fit within
a categorical exclusion and did not significantly impact the
environment was reasonable and was not arbitrary and capricious.
Therefore, NPS satisfied its obligations under NEPA when it
reasonably determined that the categorical exclusion applies. It
had no obligation to prepare an EA or an EIS.
Thus, all of plaintiffs' challenges to the 1987 promulgation of 36
C.F.R. section 4.30 fail.*fn10
B. THE 1992 GGNRA TRAIL PLAN
Plaintiffs also challenge the 1992 GGNRA trail plan promulgated by
NPS. After a series of hearings conducted by GGNRA officials, NPS
proposed a rule designating GGNRA trails for various uses and
published this proposed rule in the Federal Register on January
29, 1992. 57 Fed. Reg. 3392. The final rule was announced on
December 11, 1992. 57 Fed. Reg. 58711. The change was codified at
36 C.F.R. section 7.97(c). In stark contrast to plaintiffs' lack
of participation in the 1987 rulemaking process, plaintiffs were
intimately involved with every step of the development of the
GGNRA trail designation plan--a process that consumed
GGNRA is established by statute at 16 U.S.C. section 460bb. This
section also provides the purposes for which the Secretary of the
Interior, through NPS, should manage GGNRA:
In the management of the recreation area, the Secretary of the
Interior (hereinafter referred to as the "Secretary") shall
utilize the resources in a manner which will provide for
recreation and educational opportunities consistent with sound
principles of land use planning and management.
In carrying out the provisions of this subchapter, the Secretary
shall preserve the recreation area, as far as possible, in its
natural setting, and protect it from development and uses which
would destroy the scenic beauty and natural character of the area.
16 U.S.C. section 460bb. The GGNRA subchapter further provides:
The Secretary shall administer the lands, waters and interests
therein acquired for the recreation area in accordance with the
provisions of sections 1 and 2 to 4 of this title, as amended and
supplemented, and the Secretary may utilize such statutory
authority available to him for the conservation and management of
wild life and natural resources as he deems appropriate to carry
out the purposes of this subchapter.
16 U.S.C. section 460bb-3(a).
"Sections 1 and 2 to 4 of this title" of course refers to the
National Park Service Organic Act, 16 U.S.C. sections 1 and 2 to 4
(discussed at length above). Thus, in order to open unpaved trails
or other undeveloped areas for bicycle use, the Secretary had to
comply with 36 C.F.R. section 4.30 and therefore promulgate as a
special regulation the trail designation plan and reach "a written
determination that such use is consistent with the protection of a
park area's natural, scenic, and aesthetic values, safety
considerations and management objectives and will not disturb
wildlife or park resources." 36 C.F.R. section 4.30(a). In
announcing the final rule, the Secretary did make such a written
determination. 57 Fed. Reg. 58711.
Plaintiffs challenge the final trail plan. They allege that the
agency action was arbitrary and capricious in violation of the
APA. They also allege that NPS violated NEPA by failing to prepare
an EIS. In order to address these claims, a detailed discussion of
the process leading to this final trail designation plan is
On January 7, 1988, in response to the revised 36 C.F.R. section
4.30, GGNRA officials presented a draft bicycle use plan at a
GGNRA Advisory Commission meeting. People at the meeting expressed
concern both over the restriction of mountain bike access
resulting from this plan*fn11 and over potential further user
group conflicts resulting from any continued bicycle access within
the trail system. To address these concerns, an Ad Hoc Bicycle
Trail Subcommittee was established to review the trail system and
make a recommendation for designation of bicycle trails.
This Subcommittee consisted of two members each of the bicycling,
hiking, and equestrian constituencies. The Subcommittee presented
both a majority and a minority report to the Marin committee of
the Advisory Commission in May of 1988.
In March of 1990, NPS developed an EA considering each of four
alternate trail designation plans ranging from no trail access to
nearly total trail access for bicycles.*fn12 This EA considered
both the majority and the minority reports of the Subcommittee,
with some minor modifications, as two of the four alternatives.
In November of 1990, the GGNRA staff issued a report on the March
1990 EA. In developing its report, the staff held four public
hearings, held three individual user group workshops (one each for
bicyclists, hikers, and equestrians), considered hundreds of
letters from individuals and dozens of letters from organizations,
heard the testimony of dozens of individuals at both the public
hearings and the subsequent GGNRA Advisory Commission meetings,
and considered observations and views of experts and staff
The staff report discussed in detail the various constituent
positions and the staff recommendations regarding the purposes of
the park, safety and visitor enjoyment, environmental issues and
concerns, and the need for a useable trail system. The staff
report continued in great detail to spell out recommendations
regarding how each particular trail in the park should be
designated. The staff recommendations included significantly more
trails open to bicycle use than had been provided for in the
original 1988 plan. This staff report was itself circulated for
public review and comment.
Pursuant to the review and comment on the EA and the staff report
(which ultimately became the NPS proposed trail designation plan),
a "supplemental environmental assessment and finding of no
significant impact" ("SEA/FONSI") was completed in May of 1991.
It concluded that allowing bicycle use of trails as provided in
the staff report "is consistent with the protection of the
natural, scenic, aesthetic values, safety considerations and
management objectives of the GGNRA, and will not disturb wildlife
or park resources" and that "the proposed project is not a major
federal action significantly affecting the quality of the human
environment, nor is it one without precedent or similar to one
which normally requires an [EIS]."
The "SEA/FONSI" also discussed in detail the changes in trail
designations and the reasoning behind and the impacts of opening
and not opening some particular trails.
In January of 1992, the final trail plan was published in the
Federal Register as a proposed special regulation, and public
comment was solicited. Again, voluminous and spirited public
comment was received.
In December of 1992, NPS published a Federal Register notice
adopting as a special regulation the final Trail Use Designation
Plan. 57 Fed. Reg. 58711. This publication included detailed
responses to public comments that had been received.
1. Arbitrary and Capricious
Plaintiffs argue that the final plan as adopted is arbitrary and
capricious because it is based on inadequate data, that no
rational connection is established between the data found and the
results reached, that the NPS failed to consider relevant
criteria, and that the resulting plan is inconsistent with (and
therefore an impermissible construction of) the GGNRA Act.
Specifically, plaintiffs focus upon four arguments:*fn13
(1) NPS failed to give sufficient consideration to the recreation
criterion in reaching its decision,
(2) this failure results in the plan being inconsistent with the
GGNRA Act in that "recreation" is not recognized as the paramount
(3)NPS lacked data or a rational basis upon which to determine
that its goal of resource-protection would be served by
closing*fn14 particular trails to bicycle use, and
(4) NPS lacked data or a rational basis upon which to decide that
the goals of "visitor safety" and "reducing user conflict" would
be served by closing particular trails to bicycle use.
None of these arguments has merit. The Court will address them in
a. NPS Carefully Considered Recreation and All Other Relevant
Plaintiffs argue that by failing to address the recreational
interests of mountain bicyclists, NPS failed to consider a
relevant criterion for its decision. An agency decision can be
found arbitrary and capricious where the agency "entirely failed
to consider an important aspect of the problem." Motor Vehicles
Mfrs. Assn. v. State Farm, 463 U.S. at 43. The GGNRA Act clearly
envisions that the park will be operated in a manner which will
"provide for recreational and educational opportunities consistent
with sound principles of land use planning and management." 16
U.S.C. section 460bb. Therefore, a failure by the NPS to address
recreational concerns could be a basis for invalidating agency
The NPS in this case, however, addressed in tremendous detail the
recreational interests both of users vis-a-vis resource protection
and of users vis-a-vis competing users. Indeed, from the very
start NPS (and GGNRA) officials sought participation and comments
from at least three major recreational user groups: the
bicyclists, the hikers, and the equestrians. A special committee
consisting of members of each group was formed to prepare a
report, and both the majority and minority committee positions
were discussed in the EA and the staff report. Particular concerns
of each user group were repeatedly aired both at open hearings and
through letters and the comment process. Special user group
workshops were held such that each group could further express its
concerns to park officials. In short, once it became clear early
in the process that environmental concerns would be negligible,
recreational issues were by far the predominant concern of NPS and
GGNRA officials throughout the development of the Trail Use
The bicyclists' complaint is that their interests were not given
priority. They complain that park officials failed to give
adequate consideration to the quality of the mountain bicycling
experience in that several "single-track" and "loop" trails were
closed to bicycles and that no concern was given the need to
accommodate the most skilled bicyclists by providing them steep
and difficult trails.
But this complaint is really just a disagreement with the outcome
of the process. Park officials clearly considered these factors,
and the bicyclists were given abundant opportunities to impress
upon park officials these concerns. For example, in the staff
report of October 1990, park officials noted:
Clearly the most controversial aspect of the National Park Service
deliberation over trail
designations has been the question of whether or not single track
trails should be designated for
bicycle use. Care has been taken to avoid making a blanket policy
decision on this issue by
evaluating each individual stretch of trail. Nevertheless, with
only one exception, . . . no single
track trails were found suitable for bicycle use.
Two considerations were key in this evaluation process--user
conflicts and resource protection.
Nearly all of the single track trails in the Headlands are narrow
treads located on extremely steep hillsides.
In summarizing public comments, the staff report noted letters
from bicyclist organizations
emphasizing the desirability of a "single-track" experience.
Finally, in the notice of the final rule
published in December 1992, NPS again addressed the bicyclists'
concern that "the variety and
quality of cyclists' experience will be diminished." NPS
Compared with the present unrestricted bicycle use of the park,
the proposed regulation will
certainly diminish the options of cyclists accustomed to this
freedom. However, with access to
over 64% of the park's designated trail system, experiences that
will remain available to cyclists
are numerous and varied. With the exception of the SCA/New Coastal
trail, few distinct "places" in the park will be rendered
inaccessible to bicyclists.
NPS considered the recreational interests of the bicyclists, just
as it considered the interests of the hikers and the equestrians.
NPS balanced these interests against what it viewed to be
competing interests in resource protection and visitor safety, as
well as the recreational desires of hikers and equestrians to have
access to some bicycle-free trails. Whether or not plaintiffs
agree with the result they cannot accurately contend that NPS
failed to even consider recreational interests when it promulgated
the 1992 trail plan.
b. The Final Trail Plan is Based Upon a Permissible Interpretation
of the Relevant Legislation
Plaintiffs argue that NPS, by compromising the recreational
interests of mountain bicyclists, based its trail plan on a
statutory interpretation inconsistent with the mandate of the
GGNRA Act that the park be operated for recreational purposes. As
noted above, an agency action based upon an impermissible
construction of a statute is invalid. Chevron, 467 U.S. at 843.
Plaintiffs argue that any construction of the GGNRA Act that does
not recognize recreation as the primary purpose of the Act is such
an impermissible construction.
This argument fails. The GGNRA Act does not require that
recreational opportunities be
provided in complete derogation of any other interests. Rather,
the Act specifically provides that recreational opportunities be
provided "consistent with sound principles of land use planning
and management" and that "In carrying out the provisions of this
subchapter, the Secretary shall preserve the recreation area, as
far as possible, in its natural setting, and protect it from
development and uses which would destroy the scenic beauty and
natural character of the area." 16 U.S.C. section 460bb. Further,
the Secretary is commanded to administer GGNRA "in accordance with
the provisions of sections 1 and 2 to 4 of this title," the NPS
Organic Act discussed above (which as noted above includes as an
overarching concern the goal of resource protection); and the
Secretary "may utilize such statutory authority available to him
for the conservation and management of wildlife and natural
resources as he deems appropriate to carry out the purposes of
this subchapter." 16 U.S.C. section 460bb-3. For NPS to consider
factors other than recreation and to temper recreational uses by
its concern for resource protection and visitor safety is not
indicative of an impermissible construction of the GGNRA and NPS
Further, the GGNRA Act in no way mandates that any particular type
of recreation be given primacy over other types. There is simply
nothing in the GGNRA Act or the NPS Organic Act requiring the NPS
to give bicyclists unfettered reign of the park without regard to
the recreational interests of those whose chosen mode of
recreation is inconsistent with such unfettered reign. These
statutes certainly do not mandate the interpretation that bicycles
must be allowed to roam free through the park. Since a contrary
interpretation--that NPS has the authority to regulate and
allocate recreational uses among user groups--is clearly
permissible, see Kleppe, 608 F.2d at 1253 ("Allocation of the
limited use between two groups . . . is well within the area of
administrative discretion granted to the NPS"), and since the 1992
trail plan is based upon such an interpretation of the statutory
scheme, this Court must uphold the validity of the Plan as based
upon a permissible statutory construction.
c. NPS Reasonably Relied Upon Evidence Showing That Restricting
Mountain Bicycle Access Would Serve the Goal of Resource
Plaintiffs argue that NPS lacked sufficient evidence upon which to
conclude that bicycle use of certain of the closed trails was
inconsistent with resource protection. Further, plaintiffs argue
that the NPS failed to articulate a reasoned connection between
any evidence of resource damage and the decision to close
particular trails. "In order for an agency decision to be upheld
under the arbitrary and capricious standard, a court must find
that evidence before the agency provided a rational and ample
basis for its decision." Northwest Motorcycle Assn., 18 F.3d at
1471. "After considering the relevant data, the [agency] must
`articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice made.'"
Id. (citations omitted).
As noted above, one rationale for the closing of particular trails
to bicycle use was that doing so served the goal of resource
protection (another rationale, to promote safety and avoid user
conflict, is discussed below).*fn15 Therefore, in order to uphold
this agency action of promulgating the trail plan on the basis of
resource protection, this Court must find that ample evidence
supported the agency's findings of resource damage and that the
agency articulated a reasoned connection between stemming this
resource damage and its decision to prevent bicycle use of some
The staff report and the environmental assessments addressed the
impact on natural resources from permitting bicycle use on park
trails. Two resource protection concerns were addressed by park
officials as supporting restricted bicycle use. First, park
officials noted serious erosion problems on certain steep narrow
trails and determined that restricting bicycle use would slow such
erosion. Second, park officials noted that on narrow trails
bicyclists passing other users would either leave the trail or
force the other users off the trail to the detriment of off-trail
vegetation and wildlife.*fn16
Regarding erosion, NPS conducted a "GGNRA Erosion Rehabilitation
Survey" in 1990 detailing significant erosion problems with
several of the GGNRA trails, particularly the steep and narrow
ones. This erosion problem was further documented by numerous
reports in letters and testimony of users and staff who had
observed this erosion. While bicyclists insisted that the erosion
was caused by poor trail maintenance and not by bicycle use, park
officials noted in the staff report that "A great deal of
conflicting opinion was received regarding the effects of bicycles
and/or horses on soil erosion and trail damage" but that most
agree, however, that trail maintenance needs are increased by both
of these activities." In the original EA, NPS found that "Downhill
bicycle travel on steep slopes is usually accompanied by braking
and often by skidding which tends to push dislodged surface
gravels into ditches, water bars, and drains. Heavy bicycle use on
steep trails usually requires that these ditches, water bars, and
drains be cleared more frequently than those used by hikers and
equestrians only." Detailed letters and reports in the
administrative record evidence user and staff experience
supporting this finding that bicycle use exacerbates steep trail
erosion. While many bicyclists seem to express disagreement with
this finding and argue that bicycle use does not cause erosion,
the NPS is not required to embrace the bicyclists' evidence and is
free in its exercise of expertise to give conflicting evidence
whatever weight it deems appropriate in light of the accuracy and
credibility of such evidence. As long as ample evidence supports
the NPS determination, this Court is not free to substitute its
judgment for that of the agency. There is ample evidence
throughout the administrative record of an erosion problem on
certain GGNRA trails and of bicycle use exacerbating this problem.
Therefore, plaintiffs' argument that this finding is unsupported
by the evidence must fail.
Regarding the damage to plant life, the administrative record is
again replete with letters and reports indicating that when
bicyclists pass hikers or equestrians on narrow trails at least
one of the users is forced off of the trail and onto surrounding
plant life. This is not surprising since the administrative record
also includes evidence that mountain bicycle handlebars are often
as wide as 24 inches across while some of the single track trails
are as narrow as 18 to 36 inches across.
Even on slightly wider paths, there is evidence that bicyclists
often occupy the center of the trail and travel in groups, thus
further limiting the space available for other users when the
bicyclists pass them. Further, there was evidence that many
bicyclists had difficulty staying on the trails where the
steepness of the trail caused high speeds and the narrowness of
the trails gave little margin for error and made sharp turns
difficult. Park staff and visitors reported that bicyclists on
these steep narrow trails often skidded to control their speed,
slid off of trails on sharp turns, or cut across offtrail areas at
Finally, there was abundant evidence that this trampling of
off-trail vegetation was damaging the plant life; this evidence
included not only numerous letters and reports by users and staff
but also a study commissioned by plaintiff Bicycle Trails Council
of Marin in which the evaluator found damage to certain Lupine
plant species along one narrow trail as a result of trampling by
park users.*fn17 Therefore, there was ample evidence in the
administrative record from which NPS could reasonably conclude
that bicycle use of certain trails resulted in trampling of and
damage to the park's natural plant life resources.
After determining that NPS had ample evidence upon which to find
that bicycle use contributed to resource damage (in the form of
erosion and trampled vegetation), the next question is whether the
agency articulated a reasoned connection between these facts found
and the final agency action undertaken--closing (or not opening)
certain trails to bicycle use. NPS did this.
For example, in discussing why all single-track trails but one
were closed to bicycle use, the staff report states: "Two
considerations were key in this evaluation process--user conflict
and resource preservation. Nearly all of the single track trails
in the Headlands are narrow treads located on extremely steep
hillsides. In most cases, when a bicycle needs to pass another
user, one or the other is required to step or ride off the trail
ahead. This obviously results in trampled vegetation and erosion
at the trail margins. On the steepest trails, whose alignments run
at right angles to these contours, . . . unavoidable skidding
results from the need to curtail bicycle speed which therefore
causes erosion of the trail tread itself." A staff report
discussion of why two particular narrow trails were closed noted:
"Staff recommendations for each of these trails would restrict
their use to hikers only to avoid impacts to [neighboring]
sensitive species." Further, in the publication of the final rule
NPS cited concerns with erosion and plant life damage as a factor
both in its decision to close most singletrack trails to
bicyclists and in its discussion of 3 of the 4 particular trails
mentioned in its response to the comments requesting that certain
trails be opened.
Further, throughout the process of developing the EA, the staff
report, the SEA/FONSI, the proposed rule, and the final rule,
throughout the public hearings and meetings, and throughout the
written manifestations of the NPS position as it developed during
this five year process, NPS made clear and articulated repeatedly
that one of its concerns in restricting bicycle use was that
erosion and the trampling of vegetation was curtailed. The number
of letters and comments addressing these issues (including letters
and comments from plaintiffs and their constituents)
make clear that everyone knew that this was a primary concern of
NPS. This is not a case where the agency has thought up some
rationale after the fact to justify its action. Rather, NPS
provided a reasoned articulation of its concern for resource
protection and the relationship of its proposed conduct to this
issue throughout this rulemaking process.
In summary, the NPS's resource-protection rationale was both
supported by ample evidence in the record and reasonably related
to the agency action undertaken. This rationale was not
pretextual; rather, it was actually supportive of the agency
action. The agency repeatedly and reasonably articulated that its
action was being undertaken in service of this resource-protection
Under these facts, NPS did not act in an arbitrary and capricious
d. NPS Reasonably Relied Upon Evidence Showing That Restricting
Mountain Bicycle Use
Plaintiffs also argue that NPS lacked sufficient evidence upon
which it could find that prohibiting bicycle use of certain trails
would reduce user conflict and enhance visitor safety. As above,
plaintiffs again maintain that this rationale is pretextual and
that NPS failed to articulate a reasonable connection between the
facts found and the agency action undertaken.
Ample evidence in the administrative record supports the finding
by NPS that bicycle access to all trails increases incidents of
user conflict and compromises visitor safety. The record includes
hundreds of letters from park users recounting stories of
collisions or near misses with speeding or reckless bicyclists on
all kinds of trails but particularly on steep and narrow trails.
Hikers and bird watchers repeatedly told how they have been forced
off of trails by speeding bicycles and how they have had their
peace and solitude on the trails interrupted by bicycles
that--because they are quiet and fast--seemed to appear out of
nowhere and be immediately upon the hikers and other users.
Equestrians told how their horses have been startled by speeding
or oncoming bicycles and have become restless, on several
occasions even throwing and injuring experienced riders. Though
most users admitted that the great majority of bicyclists were
polite and safety-conscious, letters from hikers, equestrians,
bird watchers, joggers, and other users also repeatedly recounted
incidents of rudeness, threats, and altercations when they have
complained to an offending bicyclist about dangerous conduct. Park
staff also reported having received such complaints.
Plaintiffs contend that the only credible evidence of user
conflict would be a survey or study performed scientifically to
determine how many conflicts occur and how and why they occur.
Plaintiffs note that the staff report admits: "The number of
formally reported accidents involving bicycles on GGNRA Marin
trails is small (22 from January 1987-September 1990) and in most
cases involve only the cyclist," and that the publication of the
final rule echoes this finding. Plaintiffs argue that only by
counting accident reports or other objectively verifiable
indicators of conflict and risk can NPS arrive at a reasonable
conclusion that user conflict and danger exist. Plaintiffs argue
that by relying on subjective individual reports of user conflict,
NPS allowed its decision making process to be manipulated by
non-bicyclists pursuing a political (not safety-based) agenda
The Ninth Circuit recently rejected this identical argument in
Northwest Motorcycle Assn. v. USDA, 18 F.3d 1468, 1475-77 (9th
Cir. 1994). As in Northwest Motorcycle, here "it appears that the
public comments received by the Defendants were the primary basis
for the Defendants' finding of `user conflict.'" Id. at 1475. The
Ninth Circuit in Northwest Motorcycle noted that the plaintiff in
that case "strenuously contends that the comments made should be
disregarded because the individuals are interested parties and
their comments were unverifiable. The Plaintiff would have the
Defendants attempt to somehow objectively quantify the extent of
conflict. Id. at
1475. But the Ninth Circuit rejected this argument and held that
subjective reports by park visitors of user conflict could support
a reasonable agency determination that such conflict existed:
Individual comment is a very persuasive indicator of "user
conflict," for determining the existence of conflicts between
humans cannot be numerically calculated or counted; rather, the
existence of conflict must be evaluated. The court can envision no
better way to determine the existence of actual past or likely
future conflict between two user groups than to hear from members
of those groups.
Id. at 1475.
NPS in this case definitely "hear[d] from members of those
groups." Along with the hundreds of letters received at all stages
of the process, NPS received input from hikers, bicyclists,
equestrians, and other users through four public hearings, three
individual group workshops, the majority and minority reports of
an ad hoc bicycle trails subcommittee consisting of
representatives of various user groups, and numerous consultations
and meetings by park officials with interested groups and
individuals and the GGNRA Advisory Commission. NPS's finding that
user conflict and visitor danger would be reduced by limiting
bicycle trail access in GGNRA was supported by ample evidence.
Further, NPS articulated a reasoned connection between this
finding and the final agency decision to close (or not open) some
trails to bicycle use. In the publication of the final rule, NPS
states: "Notwithstanding the responsible user, bicycles are often
perceived by other users as a disruptive influence on park trails.
Although most of the few reported bicycle accidents in the park
involve only single individuals, letters and reports from hikers
and equestrians tell of many close calls and confrontational and
unsettling experiences. The amount of bicycle free trails provided
under the regulation seems a modest and reasonable response to
Further, throughout the review and comment period and the
publication of the EA, the staff report, the SEA/FONSI, the
proposed rule, and the final rule, NPS made clear its reasoning
regarding the reduction in bicycle trail access and its
relationship to easing user conflict and improving visitor safety.
Again, as was the case regarding the resource protection
rationale, the safety and conflict rationales have been carefully
explained and defended throughout the entire trail plan
Since ample evidence supported the NPS finding that bicycle access
to all trails increased user conflict and decreased visitor
safety, and since NPS articulated a reasoned connection between
these facts and the final agency action of closing some trails to
bicycles, this Court cannot find such agency action to be
arbitrary and capricious on this basis.
2. NEPA And The 1992 Trail Plan
Plaintiffs also challenge the 1992 trail plan on the basis that
NPS failed to perform an Environmental Impact Statement (EIS)
pursuant to NEPA. An EIS must be prepared whenever there is
contemplated a major federal action having a significant impact on
the human environment. 42 U.S.C. section 4332(2)(C). Where an
Environmental Assessment (EA) is performed, an agency decision not
to complete an EIS is reviewed under the arbitrary and capricious
standard. Inland Empire Public Lands Council v. Schultz, 992 F.2d
977, 980 (9th Cir. 1993). Under this standard, a reviewing court
"still must ensure that an agency has taken a `hard look' at the
environmental consequences of its proposed action, . . . carefully
reviewing the record to ascertain whether the agency decision is
founded on a reasoned evaluation of the relevant factors." Inland
Empire, 992 F.2d at 980. Plaintiffs allege that NPS's Supplemental
Environmental Assessment finding of no significant impact
(SEA/FONSI) was arbitrary and capricious because NPS failed to
consider the significant impact on traffic and safety of
crowding*fn19 bicycles that previously occupied 100% of GGNRA
trails onto 64% of these trails.*fn20 Further, plaintiffs allege
that the closing of trails will force bicyclists to travel more on
paved roads shared with motor vehicles.
Defendants argue that plaintiffs have failed to identify any
physical impacts to the environment caused by such crowding, and
that plaintiffs' concern with crowding is simply a concern with
their bicyclists' subjective trail experience and fear of an
increased risk of accidents. See Metropolitan Edison v. People
Against Nuclear Energy, 460 U.S. 766 (1982). Plaintiffs counter
that impacts on traffic and safety can qualify as impacts on the
environment. Coalition on Sensible Transportation, Inc. v. Dole,
642 F. Supp. 573, 586 n.3 (D.D.C. 1986)[, aff'd, 826 F.2d 60 (D.C.
As noted above, an EIS need only be prepared for a major federal
action having a significant impact on the human environment. The
Supreme Court has interpreted the human environment to mean the
"physical environment--the world around us, so to speak."
Metropolitan Edison, 460 U.S. at 772-73. Thus NEPA does not
require that an agency take into account every conceivable impact
of its actions, including impacts on citizens' subjective
experiences. Rather, it requires agencies to take into account
environmental impacts on the physical "world around us."
Plaintiffs' argument that bicyclists being crowded onto fewer
trails is such an environmental impact is incorrect. An increased
risk of accident is not an impact to the physical environment.
Metropolitan Edison, 460 U.S. at 775 ("A risk of an accident is
not an effect on the physical environment. A risk is, by
definition, unrealized in the physical world."). Thus, plaintiffs
here cannot show as a threshold matter that the 1992 trail plan
had any significant impact on the physical environment.
The closing of certain trails to bicyclists did not mandate an
However, even assuming that this crowding results in an
environmental impact governed by NEPA, it is clear that NPS did
consider and address plaintiffs' precise concerns within its
SEA/FONSI as well as its statement of the final rule. In the
SEA/FONSI, NPS noted as a "Traffic and Circulation Impact" the
"Potential increase in bicycle and equestrian traffic on routes
designated for such use." However, the agency found, "There is no
indication that these trails are near capacity at this time;
monitoring will determine whether use levels are creating
visitor conflicts, and recommend appropriate mitigation." In the
statement of final rule, NPS again noted that commentors had
identified that "restricting bicyclists to certain trails would
increase congestion on these routes," to which NPS responded: "We
agree that this will be a result of the proposed regulation.
However, compared to the bicycle traffic on trails that occurs as
a result of the increasing popularity of mountain bike riding,
this is not expected to be significant. According to statistics
compiled by the Bicycle Institute of America, mountain bike riders
have increased nationwide from 200,000 in 1983 to 20 million in
1991. A 25% increase in mountain bike riders was estimated between
1991 and 1992 alone. Although there is no evidence to suggest that
resulting bicycle traffic loads on park trails will have
unacceptable impacts, other management actions may be necessary in
the future to mitigate against multi-user conflicts."
NPS also noted in its SEA/FONSI that "Bicycle travel on park roads
could increase as an alternative to trails which are not
designated for bicycle use." NPS recognized in the SEA/FONSI
several possible options for mitigating this impact. In the
statement of final rule, NPS expanded upon this. Responding to the
comment that "closure of trails to bicycles would require bicycles
to use roads shared with other motor vehicles and create a
potential safety problem," NPS answered:
Most accidents involving bicycles result in injury to the cyclist
only, and do not generally affect other users. Since 1985 there
have been 46 reported bicycle accidents on Marin Headlands public
roads, and 52 on trails. Although most of the road accidents
occurred on Conzelman Road, a route which provides access to Marin
Headlands trails for bicycles, very few of these accidents were
identified on the segment of road that leads to the nearest
multiuse trail. This segment was recently widened to provide a
safer shoulder to accommodate bicycles in the uphill direction.
Many bicyclists on this segment of road have traveled over busy
city streets, the Golden Gate Bridge, or other public roads to
reach this point. An additional 1 mile of paved road travel is
required before entering the trail system, as a result of the
closure of the New Coastal Trail to bicycles. This narrow trail
has been closed to all users since January 1991 with no detectable
increase in bicycle accidents as a result.
Plaintiffs raised their concern over the effects of bicycle
traffic congestion on the opened trails and paved roads throughout
the trail designation process. NPS had at hand all of plaintiffs'
input as well as its own park officials' (and other users')
observations and expertise. NPS considered all of the congestion
impacts raised by plaintiffs. NPS discussed plaintiffs' concerns
as well as the park officials' findings that these impacts would
not be sufficiently significant as to justify the preparation of
an EIS. NPS articulated in its published positions its reasoned
consideration and analysis of plaintiffs' congestion concerns, as
well as possible options for mitigating these impacts.
Contrary to plaintiffs' argument, NPS carefully considered the
congestion issues raised by the bicyclists and reasonably
concluded that any resulting impacts on the environment would not
be so significant as to require an EIS. NEPA requires no more than
this careful reasoned consideration.*fn21 The NPS decision not to
prepare an EIS cannot be found arbitrary or capricious.
Both the 1987 regulation and the 1992 trail plan pass review. . .
. [P]laintiffs' challenges to the 1987 regulation fail. The 1987
change to 36 C.F.R. section 4.30 so as to eliminate the less
restrictive recreation unit rule was mandated by Congressional
amendments to the Organic Act. It was in any event at least based
upon a permissible construction of that statute; and the adoption
of the closed-unless-designated-open rule was not arbitrary but
was rather based upon a reasoned discussion of conflicting
policies. Plaintiffs' NEPA challenge to the 1987 regulation
likewise fails . . . on the merits.
The 1992 trail plan was promulgated through a careful and rigorous
rulemaking in which all of plaintiffs' concerns were voiced by
plaintiffs and other bicyclists, in which park officials gave
reasoned consideration to all of the concerns raised by plaintiffs
as well as those raised by other interested park users, and in
which NPS conscientiously performed all of the procedural
requirements imposed by the APA and NEPA. The agency struck a
reasoned balance among the sometimes competing goals of
recreation, safety, and resource protection as well as among the
sometimes competing recreational interests of bicyclists and other
park visitors. The authority of NPS to strike such balances in a
reasoned manner inheres in the Organic Act and the GGNRA Act. To
call such agency action arbitrary and capricious simply because
one disapproves of the outcome reached would be to distort the
purposes of APA and NEPA. Plaintiffs' challenges to the 1992 trail
For the reasons stated above, defendants' motion for summary
judgment is GRANTED. Plaintiffs' cross-motion for summary judgment
is accordingly DENIED. Plaintiffs' complaint is dismissed with
prejudice. The Clerk of the Court shall close this file.
IT IS SO ORDERED.
***** BEGIN FOOTNOTE(S) HERE *****
*fn* Bruce Babbitt succeeded Manuel Lujan, Jr. as Secretary of the
*fn1 The "recreational" management category was an internal
administrative construction and
was not necessarily coextensive with those units that Congress in
enabling legislation had named
"Recreation Areas." However, GGNRA was both named a "Recreation
Area" in its enabling
legislation, 16 U.S.C. section 460bb, and deemed a recreational
unit under NPS's taxonomy.
*fn2 The general history of NPS's management by categories scheme
and Congress's reaction to it is set forth in detail in National
Rifle Association v. Potter, 628 F.Supp. 903 (D.D.C. 1986).
Rather than recounting it here in detail, this Court adopts the
findings of the D.C. Circuit on this
issue. See also Michigan United Conservation Clubs v. Lujan, 949
F.2d 202 (6th Cir. 1991).
*fn3 For example, in 1982 NPS proposed regulations effecting
substantial changes to the general
Park Service regulations and noted:
A major effect of this rulemaking is the elimination of the
management categories from Parts 1
through 3 of the Code of Federal Regulations. Secretary of the
Interior Udall recognized, in a
letter to the Director, that the National Park System was
comprised of three broad
categories--natural, historical and recreational, and that certain
principles for guidance in resource management, resource use and
physical developments of each category should be developed. Based
upon these principles, the National Park Service developed a
series of Administrative Policies for each category which served
as guidelines for park management for a number of years.
One application of these guidelines was incorporation of the
management categories in regulations established to control
certain park uses. In general, these regulations reflected a
feeling that public use could, in some instances, be less
restricted in areas within the recreation category. . . . Since
1964, changes in the composition of the National Park System have
been extensive. Each unit must now be given more individual
attention in planning and management to ensure the legislative
mandates and policy requirements are met. As a consequence, broad
management categories are no longer effective tools to deal with
many of these issues, and the National Park Service has determined
that their use should be terminated.
47 Fed. Reg. 11598 (March 17, 1982).
When this change was adopted as a final rule, NPS repeated much of
the above language,
responded to comments regarding the elimination of these
categories, and further noted that it
was abolishing these categories in response to what it interpreted
as a specific directive from
Congress. 48 Fed. Reg. 30252, 30252-53 (June 30, 1983).
*fn4 16 U.S.C. section 1 provides that the "fundamental purpose"
of National Park Service Units "is to conserve the scenery and the
natural and historic objects and wildlife therein 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
*fn5 Plaintiffs also appear in their briefs to assail the validity
of NPS's categorical exclusions,
arguing that they are somehow inconsistent with NEPA and with CEQ
promulgated its regulations adopting these categorical exclusions
in 1984. See 49 Fed. Reg.
39233 (Oct. 4, 1984). Plaintiffs did not challenge them at that
time and plaintiffs are time-barred
in any event from challenging this promulgation now. 28 U.S.C.
section 2401(a). These
categorical exclusions are therefore indisputably valid
regulations under NEPA. An agency
satisfies NEPA if it applies its categorical exclusions and
determines that neither an EA nor an EIS is required, so long as
the application of the exclusions to the facts of the particular
action is not arbitrary and capricious.
*fn6 Plaintiffs assume in their briefing that the Jones v. Gordon
standard has survived Greenpeace Action and Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 371 (1989). Since the
same ultimate decision underlies both the decision not to prepare
an EIS and the decision that an action falls within a categorical
exclusion--that the underlying action is not a major federal
action having a significant impact on the environment --it seems
that the same standard of review--arbitrary and capricious--would
Under the facts of this case, the standard of review is not
determinative. As discussed below, the NPS decision that the 1987
regulation fell within a categorical exclusion was reasonable and
would thus survive under either the "unreasonableness" or the
"arbitrary and capricious" standard
*fn7 Plaintiffs do not argue that any other aspect of the 1987
rulemaking caused it to fall outside
the categorical exclusions.
*fn8 Plaintiffs argue in their opposition brief: "Furthermore,
closure will inevitably divert bicyclist
traffic to other areas which could `introduce noncompatible uses
which might compromise the
nature and characteristics'" of these areas.
*fn9 Plaintiffs in their opposition brief argue that the diversion
of bicycle traffic away from areas
closed by the 1987 regulation, "`may `conflict with adjacent
ownerships or land uses' or `cause a nuisance to adjacent owners
or occupants.'" It is difficult to read this argument as anything
than one that closing some trails might tempt bicyclists to ride
instead on the property of adjoining landowners.
*fn10 Plaintiffs raise numerous arguments (or hints at arguments)
throughout their papers that are
not explicitly addressed by this Order. Any arguments raised by
plaintiffs but not explicitly
addressed herein have been considered and analyzed and determined
to be without merit.
*fn11 As noted above, GGNRA officials had chosen to not enforce 36
C.F.R. section 4.30 (and to thus allow full access for mountain
bicycles) until there was completed a trail designation plan.
Thus, instead of posting signs on June 1, 1987 to the effect that
all unpaved trails were closed to
bicycles until designated open, GGNRA officials allowed unimpeded
access despite section 4.30's prohibition. Therefore, any trail
designation plan that did not grant total access to all trails for
bicycles would be perceived by the bicyclists as a restriction on
their trail access.
*fn12 Each of the four alternatives included identical degrees of
trail access for hikers and
equestrians. Therefore, the only real distinction among these
alternatives was the availability of
differing degrees of bicycle trail access.
*fn13 Again, as with the discussion of the 1987 regulation,
plaintiffs raise or suggest several
arguments regarding the 1992 plan that are not explicitly
addressed in this Order. Such arguments have been considered and
analyzed and deemed to be without merit.
*fn14 Of course, since the 1987 regulation is valid, the 1992
trail plan legally opens some trails to bicycle use. Whether
viewed as the opening or the closing of various trails to various
however, the decision to designate various trails for various uses
is nonetheless an agency action
reviewable under the "arbitrary and capricious" standard of the
APA, 5 U.S.C. section 706(2)(A). See Wilderness Public Rights Fund
v. Kleppe, 608 F.2d 1250, 1253-54 (9th Cir. 1979)(treating as
reviewable for arbitrariness an NPS action allocating a limited
use between competing user groups)[, cert. denied, 446 U.S. 982
Further if, as plaintiffs argue, the 1987 regulation were invalid,
then the 1992 trail plan would
have the effect of closing trails presumed open under the old
version of the pertinent regulations
(former 36 C.F.R. section 4.3). This closing would be done
pursuant to either the former section
4.3 or the independent section 1.5. This agency action of closing
particular trails would have to
satisfy the arbitrary and capricious standard.
Plaintiffs do not object that the opening of certain trails for
their use was arbitrary or inconsistent
with any law or regulation. Rather, they challenge only the
outcome that certain other trails either
remained or were deemed closed to bicycle use.
Therefore, for matters of convenience and to address plaintiffs'
arguments on their own terms, this Court will discuss the 1992
trail plan as if it were a decision to close particular trails to
Since nobody has challenged the opening of certain trails for
bicycles, a decision that the closing
of the other trails was a valid agency action would serve as a
full independent basis for upholding
the trail plan whether or not the 1987 regulation were found
*fn15 A third rationale--that other users desired some
bicycle-free areas--was also mentioned by NPS. In light of the
hundreds of letters and comments by such users to this effect,
cannot and do not challenge this finding by NPS.
*fn16 Plaintiffs argue repeatedly that the plant life NPS was
trying to protect--Coastal Rock Cress and certain lupine plants
supportive of Mission Blue Butterfly habitat--was not classified
as endangered or protected. Whether or not this is true, the goal
of resource protection can certainly support the protection of
natural plant life resources that have not yet descended to
*fn17 Since the damaged plant species served as habitat for the
endangered Mission Blue
Butterfly species, park officials closed this trail upon learning
of the damage. Upon consultation
with the Fish and Wildlife Service as required under the
Endangered Species Act, NPS agreed as a condition of reopening
this trail that its use be limited to hikers only and that certain
restrictions be imposed.
*fn18 Plaintiffs argued that crowding the same number of bicycles
onto fewer trails--all of which
were to be multiuser trails--would actually increase user conflict
and the risk of accident. NPS
rejected this argument, finding that the trails designated for
bicycle use were not near capacity and that future actions could
be taken if congestion became a problem. In any event, this
argument by plaintiffs does not affect the quantum of evidence
supporting the NPS finding.
*fn19 Plaintiffs argue in passing that this crowding could result
in more erosion or more damage
to off-trail vegetation--despite their earlier espoused position
that bicycle trail access is not
harmful to the environment. In any event, NPS considered these
impacts, found them
non-significant, and discussed methods to mitigate or prevent them
in its EA, staff report,
SEA/FONSI, and statement of final rule. NPS specifically found
that none of the multiuse trails
being opened for bicycle use was near capacity and that if future
increased use were to cause
problems on these trails further mitigation measures would be
*fn20 Plaintiffs do not allege that the opening of the 64% of
trails to bicycle use required the
preparation of an EIS. Rather, plaintiffs characterize the federal
action as closing the other 36% of trails and argue that NPS
needed to prepare an EIS regarding the effects of this closure.
Thus, plaintiffs argue that despite the 1987 regulations, the
status quo was that all bicycles could ride on all trails and any
departure from this would have to be justified. Plaintiffs note
that NPS in the
SEA/FONSI characterized the "no action" alternative as leaving all
trails closed. Plaintiffs argue
that this wrongly colored the NPS inquiry by resulting in an
analysis only of the impact of opening 64% of the trails and not
of the impact of closing 36% of the trails.
Plaintiffs' argument lacks merit. Whether NPS' action is
characterized as opening or closing
certain trails, the agency found that allowing bicycle use on 64%
of GGNRA trails would result in no significant impact to the
physical human environment. Any actual effects from allowing all
bicyclists to use these 64% of trails would be identical however
the action is characterized. For
example, the crowdedness of these 64% of trails would be identical
either way; the same number of bicyclists could be expected to
ride on the same number of trail miles. Whether these 64% of
trails are thus made crowded because they are opened to bicycle
use or because other trails are
closed to bicycle use is irrelevant--the environmental impact, if
any, from this crowdedness is the
same. If it is significant, an EIS must be prepared either way.
The same would be true of trail
erosion or any other effect.
Therefore, for matters of convenience and to address plaintiffs'
arguments on their own terms, this Court will discuss the action
as one of closing certain trails. This in no way indicates that
NPS erred in characterizing the "no action" alternative as leaving
all trails closed (in fact, in light of this Court's above holding
regarding the 1987 regulations, the NPS characterization was
correct). It does indicate, however, that the 1992 trail plan
could be upheld even were the 1987 regulation to be found invalid.
*fn21 NEPA imposes only procedural requirements and does not
dictate a substantive
environmental result. "The policy behind NEPA is to ensure that an
agency has at its disposal all relevant information about
environmental impacts of a project before the agency embarks on
the project." Salmon River Concerned Citizens v. Robertson, 32
F.3d 1346 (9th Cir. 1994).
Further, courts "defer to agency expertise on questions of
methodology unless the agency has completely failed to address
some factor, `consideration of which was essential to a truly
informed decision whether or not to prepare an EIS.'" Inland
Empire, 992 F.2d at 981. [citation omitted]. Here, plaintiffs can
point to no relevant factor that NPS "completely failed to