On Friday, October 17, 2008, lawyers for River Runners for Wilderness (RRFW), Rock the Earth, Living Rivers and Wilderness Watch submitted the final brief in an appeal to the 9th Circuit Court. The court, made up of a three-judge panel, is expected to hear oral arguments in the spring of 2009.
This final brief opens with a review of the National Park Service’s (NPS) obligations to preserve park wilderness resources and values under the Organic Act and the Concessions Act “necessary and appropriate” standard. The brief points out that the Colorado River in Grand Canyon must be preserved for its wilderness values until Congress passes a Grand Canyon Wilderness Bill. Any commercial services allowed in a potential wilderness like the Colorado River in Grand Canyon must be wilderness oriented providing for visitor enjoyment of wilderness values.
The brief also says that:
* The NPS has never found that motorized commercial services are “necessary and appropriate”, given the Park’s previous findings from the 1970’s that motorized uses are unnecessary.
* The river plan used the status quo visitor experience with motors as the standard for comparison, so any non-motorized alternatives automatically failed to meet the visitor experience objective.
* RRFW seeks to hold NPS to the NPS’s own historical position that motorized commercial services are unnecessary. The NPS does not explain how authorizing motorized uses qualifies as an attempt to remove non-conforming uses.
* RRFW rejects the NPS claim that, “[m]otorized rafting is a temporary and transient use,” and its adverse impacts do not affect future generations, just current generations. RRFW’s brief insists that “current visitors also have the right to experience the resources and values in their preserved state.”
* The NPS did not base the commercial allocation on any actual determination of need, instead arguing that it attempted to provide the “greatest access to the greatest number of users” and “to provide diverse trip types and opportunities” even though it had no legal duty to provide either of these. Instead, RRFW points out that the wilderness resource itself and the public’s wilderness experience must be protected, even if that requires limiting types or amounts of activities. RRFW says on this point “Taken to its logical conclusion NPS’s goal could lead to gondola rides from the rim…”
* In regard to general demand for river access, the NPS’s Final Environmental Impact Statement (FEIS) for the CRMP, states “‘[c]oncessioners report that they turn away prospective users because their trips are full,’ but there is no real evidence of this as there is for the noncommercial side.” However, RRFW’s brief points out that “there is real evidence that at least a portion of commercial use comes from the noncommercial sector because people cannot gain access through the noncommercial permit system.”
* As for the NPS’s system of allocation, the brief notes that in an earlier 9th Circuit Court decision, the NPS was given the discretion to choose a system, but the NPS must, under whatever system it uses, allocate use fairly so that both commercial and noncommercial users have equitable access to the river. The method used for fairly allocating use under the system chosen must not be arbitrary. The brief clarifies the point that RRFW refers to the NPS’s analysis of other allocation systems as evidence of the unfairness and lack of standards in the NPS’s allocation under the split system. The NPS did not refute that the key criteria used to develop allocation alternatives had no standards for fairness or equity in use.
* The brief solidifies the argument that without using any appropriate standard of fairness, the NPS “arbitrarily plucked the “roughly equal” split of user days in an attempt to create perceptions of equity in the preferred alternative, which did not work.” The brief then notes that a “roughly equal” annual user-day allocation method is arbitrary and disregards demand, need and relative wait times to access the river. The new split continues to ignore the lack of even distribution between groups throughout the year, and disregards the differences in group size.
The brief finishes with a section on protecting Grand Canyon’s natural soundscape. The Park’s FEIS included aircraft noise as part of the baseline “natural ambient background level”, which enabled the NPS to dilute and mask impacts from helicopters and motorized tour boats to the Grand Canyon’s natural soundscapes. The brief cites earlier studies that contradict the NPS’s present position on natural quiet impacts due to motorized tour boats, and notes that helicopter noise at Whitmore Wash, when combined with existing aircraft overflight noise, impairs the Park’s natural soundscape with long term, major and significant cumulative impacts.
The brief can be found in its entirety here: