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.

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BICYCLE TRAILS COUNCIL OF MARIN, a California Nonprofit

corporation; BICYCLE

TRAILS COUNCIL OF THE EAST BAY, a California nonprofit

corporation;

INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California

nonprofit

corporation; LEAGUE OF AMERICAN WHEELMEN, a Maryland nonprofit

corporation, et al., Plaintiffs-Appellants,

v.

BRUCE BABBITT,*fn* Secretary of the Interior; JAMES M.

RIDENOUR, Director of the National Park Service; BRIAN O'NEILL,

General Superintendent

of the Golden Gate National Recreation Area, Defendants-Appellees,

SIERRA CLUB; BAY AREA TRAILS PRESERVATION COUNCIL; THE NATIONAL

PARKS AND CONSERVATION ASSOCIATION, et al.

Defendants-Intervenors-Appellants.

No. 94-16920

D.C. No. CV-93-00009-EFL

ORDER

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

COUNSEL

Terry J. Houlihan, McCutchen, Doyle, Brown & Enersen, San

Francisco, California, for the

plaintiffs-appellants.

Robert L. Klarquist, United States Department of Justice,

Washington, D.C., for the

defendants-appellees.

ORDER

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.

AFFIRMED.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

BICYCLE TRAILS COUNCIL OF MARIN, a California nonprofit

corporation, BICYCLE

TRAILS COUNCIL OF THE EAST BAY, a California nonprofit

corporation,

INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California

nonprofit

corporation, LEAGUE OF WHEELMEN, a Maryland nonprofit corporation,

CHARLES

CUNNINGHAM, ANGELA DIMEGLIO, LINDA ENIS, DAVID GAROUTTE, ALAN

GOLDMAN, STEPHEN HOXIE, JAMES E. JACOBSON, ABBY

MINOT, TODD OURSTEN, and ADRIENNE SHAPIRO, as individuals,

Plaintiffs,

v.

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

Area,

Defendants;

BAY AREA TRAILS PRESERVATION COUNCIL, et al.,

Defendant-Intervenors.

No. C-93-0009 EFL

ORDER GRANTING DEFENDANTS SUMMARY JUDGMENT

FILED SEPTEMBER 1, 1994

I. INTRODUCTION

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").

II. BACKGROUND

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

Federal Regulations.*fn3

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

closed.

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.

III. DISCUSSION

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.

section 3.

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

park units.

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.

30252.

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

(1961)).

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

three reasons.

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.

at 10670.

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.

2. NEPA

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

exclusions).*fn6

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

categorical exclusion.

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

approximately

five years.

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

appropriate.

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

members.

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

interest,

(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

turn.

a. NPS Carefully Considered Recreation and All Other Relevant

Criteria

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

action.

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

Designation Plan.

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

responded:

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

Organic Acts.

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

Protection

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

trails.

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

certain "switch-backs."

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

rationale.

Under these facts, NPS did not act in an arbitrary and capricious

manner.

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

against bicycles.

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

these concerns."

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

promulgation process.*fn18

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.

Cir. 1987)].

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

EIS.

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

congestion or

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.

IV. CONCLUSION

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

plan fail.

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

Interior.

*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

generations."

*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

guidelines. NPS

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

apply.

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

of review.

*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

other

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

uses,

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

(1980)].

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

bicycle use.

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

invalid.

*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,

plaintiffs

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

endangered status.

*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

other

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

considered.

*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

address."