UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ BLUEWATER NETWORK, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 08-841 (GK) ) KENNETH SALAZAR,1 et al., ) ) Defendants, ) ) PERSONAL WATERCRAFT INDUSTRY ) ASSOCIATION, et al., ) ) Defendant-Intervenors. ) ______________________________)

MEMORANDUM OPINION

Plaintiffs Bluewater Network, The Wilderness Society, Enid

Sisskin, and Robert Goodman (collectively, “Plaintiffs”) brought

this action against Kenneth Salazar, Secretary of the Department of

the Interior, and Daniel Wenk, Deputy Director of the National Park

Service (“NPS”) (collectively, “Defendants”). Shortly after the

Complaint was filed, six parties--Personal Watercraft Industry

Association, American Watercraft Association, Carmen Perry, Richard

Chenoweth, Michael Soder, and William Manson--were added as

Defendant-Intervenors (collectively, “Intervenors”). Plaintiffs

seek to ban the re-introduction of personal watercraft (“PWCs” or

“jetskis”) in two national parks--Gulf Islands National Seashore

(“Gulf Islands” or “GUIS”) along the Gulf Coast of Florida and

1 Pursuant to Fed. R. Civ. P. 25(d), Secretary of the Interior Kenneth L. Salazar is automatically substituted as defendant for former Secretary Dirk Kempthorne. Mississipi and Pictured Rocks National Lakeshore (“Pictured Rocks”

or “PIRO”) in Michigan.

Plaintiffs challenge Defendants’ actions pursuant to the

Administrative Procedure Act (“APA”),

et seq.

Specifically, they argue that NPS’ decision to allow jetskis back

into these two parks after banning them under both a national rule

and park-specific decisions represents arbitrary and capricious

conduct under the APA. Further, Plaintiffs maintain that the

decisions run afoul of the National Park Service Organic Act

(“Organic Act”),

et seq., violate the procedural

requirements of the National Environmental Policy Act (“NEPA”),

et seq., and the terms of a settlement agreement

(“Settlement Agreement” or “Agreement”) entered into by parties

subsequent to an earlier round of litigation involving these two

parks. Bluewater Network v. Stanton, Civ. No. 00-02093 (“Bluewater

I”).

Bluewater contends that the Environmental Assessments (“EA”)

prepared by NPS to analyze the impacts of PWCs in each park

unreasonably concluded that jetski use is permissible. Further,

they take issue with the agency’s “findings of no significant

impact” (“FONSI”), the final Rule promulgated for each park, each

of which agreed with the EAs’ conclusions that PWC use would not

impair GUIS or PIRO, and the resulting lifting of the ban on

operating PWCs in the parks.

-2- Plaintiffs filed this case on May 15, 2008, challenging the

re-introduction of PWCs into PIRO and GUIS. Intervenors--six

individuals and organizations “with direct and substantial

organizational, financial, and personal interest in maintaining

existing authorized PWC use in these two park units,” Mot. to

Intervene at 1 [Dkt. No. 8]--were added as Defendants on August 19,

2008. Order (Aug. 19, 2008). Intervenors filed a Motion for

Partial Summary Judgment (“Standing Mot.”) on October 15, 2008,

which challenged Plaintiffs’ standing to object to the Rule at

Pictured Rocks. [Dkt. No. 18]. Those arguments were incorporated

into their Motion for Summary Judgment (“Intervenors’ Mot.”) [Dkt.

No. 27], filed February 2, 2009. Intervenors’ Motion became ripe

on March 20, 2009. Plaintiffs also filed a Motion for Summary

Judgment [Dkt. No. 24], on December 18, 2008, which became ripe

February 27, 2009. Finally, the original Defendants filed their

own Motion for Summary Judgment (“Defs.’ Mot.”) [Dkt. No. 29] on

February 6, 2009, which became ripe on March 20, 2009. Parties

presented oral arguments at a Motions Hearing on May 17, 2010.

Upon consideration of the Motions, Oppositions, Replies,

lengthy oral argument, and the entire record herein, and for the

reasons stated below, Intervenors’ Standing Motion for Partial

Summary Judgment is granted in part and denied in part, Plaintiffs’

Motion for Summary Judgment is granted in part and denied in part,

Defendants’ Motion for Summary Judgment is granted in part and

-3- denied in part, and Intervenors’ Motion for Summary Judgment is

granted in part and denied in part.

In reaching these conclusions, the Court has examined in

detail NPS’ reasoning and how it arrived at the conclusions it

reached, in light of the factual premises relied upon. In

particular, the Court has asked whether NPS examined the relevant

data and if it provided a rational and logical connection between

the facts found and the policy choices made. But even apart from

this probing, in-depth review, this case presents an additional

overarching question. Why has NPS issued Rules allowing jetski use

in two beautiful and pristine national parks, acknowledging that

such use will impact, to varying degrees, water quality, air

quality, wildlife, animal habitats, soundscapes, visitor use and

safety, etc., when the users of jetskis are perfectly free to enjoy

their vehicles in other, equally accessible areas, without

threatening the serenity, the tranquility--indeed, the majesty--of

these two national treasures?

I. BACKGROUND2

Jetskis are “high performance vessels designed for speed and

maneuverability and are often used to perform stunt-like

2 Unless otherwise noted, the facts set forth herein are drawn from the Administrative Record (“AR”). On October 14, 2008, parties submitted the bates-stamped AR in electronic form. [Dkt. No. 17.] The voluminous record spans two compact discs, one for each park. Citations to the AR for Pictured Rocks will appear as PIRO-#####; citations to the AR for Gulf Islands will appear as GUIS-#####.

-4- maneuvers.”

. Their “rapid maneuvering and

frequent speed changes” cause the engine speed to “rise[] and

fall[],” which creates a sound whose pitch varies. GUIS–00174; see

PIRO-00024. According to NPS, “this constantly changing sound is

often perceived as more disturbing than the constant sound from

motorboats.”

Plaintiffs cite studies showing that such noise

significantly mars visitors’ experience of the parks. Pls.’ Mot.

at 8. The EAs acknowledge that PWCs can “disrupt the ‘passive’

experience of park resources and values.” GUIS-00174; PIRO-00024.

Improvements to engine technology--including transition from two-

stroke engines to four-stroke and direct-injection two-stroke

engines--are expected to reduce PWCs’ impacts on noise and

pollution.

; PIRO-00023-24.

Historically, PWCs have been permitted in the National Park

System. In the 1990s, however, PWC use began to increase. In

response, NPS proposed a rule (“National Jetski Rule”) in 1998,

which became final on March 21, 2000, banning PWC use in all parks

except 21 parks with a history of prior jetski use.

-080;

. These 21 excepted parks, which

include the two parks at issue in this case, were given a two-year

grace period to develop and implement park-specific regulations

that would allow PWC use;3 if they decided not to take any action,

3 Initially, under the National Jetski Rule, PWC use in ten of the 21 excepted parks, including GUIS, could continue, (continued...)

-5- the ban would go into effect upon expiration of the grace period on

April 22, 2002. 65 Fed. Reg. at 15,078.

After the National Jetski Rule was issued, Bluewater Network

and other environmental groups became concerned that the Rule was

not sufficiently protective of the 21 excepted parks.4 Defs.’ Mot.

at 3. They brought suit against NPS, which resulted in the

Settlement Agreement approved by this Court on April 11, 2001.

Bluewater I, Order (Apr. 11, 2001). Under the terms of the

Settlement Agreement, if a park excepted from the national ban

wished to permit PWC use after expiration of the grace period, it

was required to promulgate a park-specific regulation on PWC use.

Defs.’ Mot. at 3-4. For such parks, the national ban would

continue to apply from expiration of the grace period on April 22,

2002, until issuance of a park-specific regulation allowing PWC use

if such Rule was issued. The Agreement also required parks

permitting PWC use to comply with NEPA.

3 (...continued) restricted only to the level authorized in each park’s Superintendent’s Compendium. However, as part of the Settlement Agreement in Bluewater I, NPS was required to engage in park- specific rulemaking on all parks not included under the national ban. Settlement Agreement at ¶¶ 3-4 (Ex. 6 to Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”)) [Dkt. No. 24-6]. 4 Plaintiff Robert Goodman was also a plaintiff in Bluewater I.

-6- A. Pictured Rocks National Lakeshore

Pictured Rocks is located along the southern shore of Lake

Superior in the north-central section of Michigan’s Upper

Peninsula. The surrounding region is a “sparsely populated area”

of the Peninsula. PIRO-00021. In the Pictured Rocks EA,

Defendants describe the park as a “year-round recreational

destination where hiking, camping, hunting, nature study, and

winter activities abound.” Id. at 00015. The park features

“multicolored sandstone cliffs, beaches, sand dunes, waterfalls,

inland lakes, wildlife and forested shoreline” as well as “a

lighthouse . . . former Coast Guard life-saving stations . . . old

farmsteads and orchards.” Id.

In NPS’ own words, the park is significant because in part its

“shoreline offers extraordinary and inspirational scenic vistas of

Lake Superior, the largest body of surface area of fresh water on

earth.” Id. at 00021. Additionally, PIRO boasts rock cliffs

“unmatched in their scenic value,” “[t]welve miles of unspoiled and

undeveloped . . . beach,” and “a spectrum of cultural resources,”

among other unique attractions. Id.

PWC use was first permitted in the park around 1990. In the

past, PWCs were permitted along the entire shoreline of the park,

but only within a quarter-mile boundary of the shore, and were

regulated in the same manner as other motorized watercraft. In

1998, Michigan passed the Michigan Personal Watercraft Safety Act.

-7- MICH . COMP. LAWS § 324.80209 (1998). That statute imposes wake,

location, and depth restrictions on PWC use throughout the state.

NPS incorporates the statute’s provisions into its policies

governing PWC use at Pictured Rocks. PIRO-00034. The Michigan

legislation requires PWCs to travel at slow, no-wake speeds within

200 feet of shoreline, and refrain from traveling within 100 feet

of “a dock, raft, or buoyed or occupied bathing or swimming area,

a person in the water or on the water in a personal flotation

device, or a vessel moored, anchored, drifting, or sitting in dead

water,” unless traveling at no-wake speed. Id. There are

additional restrictions regarding proximity to divers and diving

vessels.5 Id.

After the National Jetski Rule was promulgated in 2000, PIRO

was given a two-year grace period to develop a park-specific rule

governing PWC use. On February 7, 2002, Park Superintendent Karen

C. Gustin issued a Compendium (“Superintendent’s Compendium”)6

5 Further, the Environmental Assessment prepared for PIRO states that other state regulations apply, including: operation of PWCs only between 8:00 a.m. and one hour before sunset; age restrictions; prohibited use where water is less than two feet deep, unless traveling at a no-wake speed; a ban on operation within 150 feet of other watercraft; and regulation of “speed, wake jumping, and other action.” PIRO-00034. 6 The Superintendent’s Compendium has been described by NPS as a “local management guide authorized by” NPS regulations,

(Apr. 7, 2006), and is considered to be “terminology the NPS uses to describe the authority provided to the Superintendent under [applicable NPS regulations]. It allows for local, park-specific regulations for a variety of issues and under (continued...)

-8- closing the park to all PWC use. PIRO-03615 (Ex. 3 to Pls.’ Mot.).

Consequently, as provided for in the National Rule, when the grace

period expired in April 2002, PWCs were banned at PIRO.

That same year, 2002, NPS conducted an Environmental

Assessment (“EA”) to analyze the impact of PWCs on the park. The

EA considered three alternatives: Alternative A examined PWC use at

the same level that existed before the national ban; Alternative B

examined limited PWC use; and Alternative C, the no-action

alternative, examined the impact of prohibiting all PWC use at

PIRO.

Guided by Director’s Order #12: Conservation Planning,

Environmental Impact Analysis and Decision-making, NPS analyzed the

impacts of each alternative on park resources in terms of their

context, duration, and intensity. PIRO-00006. Impacts were

measured on a number of “impact topics,” including water quality,

air quality, soundscapes, wildlife and wildlife habitat, threatened

or endangered species or species of special concern, shoreline

vegetation, visitor experiences, visitor conflicts and safety,

cultural resources, socioeconomic effects, conflicts with state and

local regulations, and management operations.

.

For each topic, NPS described “guiding regulations and policies”

before setting forth its methodology for assessing the

6 (...continued) certain criteria.” 68 Fed. Red. 69,360 (Dec. 12, 2003).

-9- alternatives.

. Then, each alternative was

compared to a baseline.7 For PIRO, that baseline was represented

by Alternative A (i.e. the continuation of PWC use at pre-ban

levels); the EA projected impacts under this alternative, and each

of the others, over the next ten years.

.

When the EA was completed, NPS held a public review and

comment period. Based on the comments submitted, NPS issued an

errata to the EA, reducing the area that would be open for PWC use

under Alternative B. NPS concluded that Alternative B was the best

option for protecting the park’s resources and visitors, while

still permitting a range of recreational activities. NPS also

declined to prepare a full “environmental impact statement”

(“EIS”)--as required by NEPA in certain circumstances--and instead

issued a FONSI in September 2005, as required by Council of

Environmental Quality (“CEQ”) regulations.

NPS then began its rulemaking process, publishing a proposed

rule in the Federal Register for public comment from November 15,

2004, to January 14, 2005. In October 2005, NPS issued its Final

7 NPS and parties use “baseline,” “guideline,” and “threshold” almost interchangeably--which is most imprecise and unhelpful. In the Court’s view, this usage is inaccurate. A “guideline” is an “indication or outline of future policy or conduct (as of a government).” Webster’s Third New International Dictionary 1009 (2d ed. 1981). A baseline or threshold is a point or level that serves as a basis for comparison or measurement. See Sierra Club v. Mainella,

(D.D.C. 2006). Given the manner in which NPS and the parties use these terms, the Court must assume they are being used to provide an existing level from which certain impacts are measured.

-10- Rule (“Pictured Rocks Rule”),8 which re-authorized PWC use, as

described in Alternative B; however, the use was restricted to an

eight-mile segment of the park’s 42-mile shoreline.

. The Pictured Rocks Rule also required that PWCs be

launched from only one designated site, and prohibited PWC use

within 200 feet of the shoreline unless traveling at a slow enough

speed so that no wake was created.

B. Gulf Islands National Seashore

GUIS is located in the northeastern section of the Gulf of

Mexico and consists of a 160-mile expanse of barrier islands and

waters from the eastern end of Santa Rosa Island in Florida to Cat

Island in Mississippi. Within the park are “snowy-white beaches,

sparkling blue waters, fertile coastal marshes, and dense maritime

forests” as well as “19th century forts . . . shaded picnic areas

. . . winding nature trails, and . . . comfortable campgrounds.”

GUIS-00150. Additionally, visitors can enjoy GUIS’ “regionally

important ecological sites,” the endangered species that are

present in several areas, and “[s]everal mostly undisturbed,

natural areas in close proximity to major population areas.”

.

8 The FONSIs and final rules at both parks relied on the analysis and conclusions set forth in the EAs. GUIS-00572;

-34 (Gulf Islands Rule); PIRO-193;

- 96 (Pictured Rocks Rule).

-11- GUIS was the most heavily visited seashore in the national

park system at the time that the EA was produced in 2004. It was

also one of the ten most visited areas in the entire national park

system, welcoming an average of 4.9 million people per year.

. According to enabling legislation, NPS must preserve

Gulf Islands “for public use and enjoyment [of] certain areas

possessing outstanding natural, historic, and recreational

values.”9 16 U.S.C. § 459h(a). Park visitors operate a variety of

watercraft, including “ski boats, personal watercraft, runabouts,

day cruisers, sailboats, houseboats, canoes, kayaks, and rowboats.”

Id. at 00306. In addition to the presence of these watercraft,

visitors can expect to encounter “military over flights, commercial

fishing boats, [and] large ships,” because of the military and

commercial areas which are nearby. Id.

The park is divided into two management districts, one in

Florida and one in Mississippi. In the past, PWC use was allowed

in the park, under the same regulations as other motorized

watercraft. Most PWC use, however, occurred in Pensacola Bay, in

the Florida district, because the waters there were more sheltered

and closer to residences with launching facilities than in the

Mississippi district.

9 As Intervenors observe, the legislative history of this Act indicates that the area’s recreational opportunities were a significant reason for including it in the national park system. See Intervenors’ Mot. at 11 (citing S. Rep. No. 91-1514 (1970)).

-12- Under the National Jetski Rule, the GUIS Superintendent

initially planned to permit PWC use, regulated through local rules

contained in the park’s Superintendent’s Compendium. The

Settlement Agreement, however, required GUIS to issue a special

regulation, and to conduct NEPA review, if PWC use was to continue.

In 2001, GUIS management conducted a study of the effects of

PWC use within the park. GUIS-00151. The findings of that study

were reported in October of 2001 in an Administrative Determination

(“2001 Determination”) issued by the Gulf Islands Superintendent.

The Determination supported a ban on PWC use in the park, id. at

00079, concluding that “PWC use is an inappropriate activity at

Gulf Islands National Seashore” Id. The Determination was

supported by findings that PWC use negatively impacted the water

quality, wildlife, and enjoyment of the park by other visitors at

GUIS. Id. at 00073-77.

After the PWC national ban went into effect in April 2002, NPS

conducted an EA to further consider the impact of PWCs in the park.

In January 2006, the agency issued a FONSI.

The EA considered three alternatives, which were similar to

those considered in the Pictured Rocks EA: a no-action alternative

which would continue the ban on PWCs and would not require

promulgation of any special regulation; Alternative A, which would

again allow PWC use in the park at the same level that existed

before the national ban; and Alternative B, which would also

-13- reinstate PWC use, but would further limit it through issuance of

certain restrictions. GUIS-00151.

NPS then evaluated the impacts of each alternative using a

framework nearly identical to the one used in the Pictured Rocks

EA.10 At GUIS, NPS considered the impacts on water quality; human

health and airborne pollutants related to PWC use; air quality

related values from PWC pollutants; soundscapes; shoreline and

submerged aquatic vegetation; wildlife and wildlife habitat;

aquatic fauna; threatened, endangered, and any other special status

species; visitor use and experience; visitor conflicts and safety;

cultural resources; socioeconomic effects; conflicts with state and

10 According to the GUIS EA, NPS used the following process “to determine whether the various PWC management alternatives had the potential to impair park resources and values”:

1. The park’s authorizing legislation, the 1978 General Management Plan (NPS 1978), the Strategic Plan (NPS 1997b), and other relevant background were reviewed with regard to the unit’s purpose and significance, resource values, and resource management goals or desired future conditions.

2. PWC management objectives specific to resource protection goals at the park were identified.

3. Thresholds were established for each resource of concern to determine the context, intensity and duration of impacts, as defined above.

4. An analysis was conducted to determine if the magnitude of impact reached the level of “impairment,” as defined by NPS Management Policies 2001 (NPS 2000d).

GUIS-00266-67.

-14- local ordinances and policies; and impact on park operations from

increased enforcement needs. GUIS-00155. After completing the

EA, NPS again altered course and concluded that PWC use should be

permitted in the park, pursuant to the restrictions contained in

Alternative B.

This conclusion of the EA restricted PWC use to operating the

watercrafts only at speeds that would not create any wake within

300 yards of the shoreline, or within one-half mile of islands with

designated wilderness. PWCs would also be completely prohibited

within 200 yards of non-motorized watercraft and people in the

water. The proposed rule was published for public comment from

March 17, 2005, to May 16, 2005. On May 4, 2006, NPS issued a

final rule (“Gulf Islands Rule”), once again permitting PWC use in

the park, subject to the limits described.

.

II. STANDARD OF REVIEW

“The arbitrary and capricious standard [of the APA] is a

narrow standard of review.” Citizens to Preserve Overton Park,

Inc. v. Volpe,

(1971). It is well established in

our Circuit that “[t]his court’s review is . . . highly

deferential” and “we are ‘not to substitute [our] judgment for that

of the agency’ but must ‘consider whether the decision was based on

a consideration of the relevant factors and whether there has been

a clear error of judgment.’” Bloch v. Powell,

(D.C. Cir. 2003) (citations and internal quotation marks omitted);

-15- see also United States v. Paddack,

(D.C. Cir.

1987). However, this deferential standard cannot be used to shield

the agency’s decision from undergoing a “thorough, probing, in-

depth review” by the Court. Midtec Paper Corp. v. United States,

(D.C. Cir. 1988) (internal citations and

quotations omitted). District courts must “determine whether or

not as a matter of law the evidence in the administrative record

permitted the agency to make the decision it did.” Mainella,

(quoting Occidental Eng’g Co. v. INS,

, 769-70 (9th Cir. 1985)).

An agency satisfies these standards if it “examine[s] the

relevant data and articulate[s] a satisfactory explanation for its

action,” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co.,

(1983), and if there is “a rational connection

between the facts found and the choice made.” Baltimore Gas & Elec.

Co. v. Natural Res. Def. Council,

(1983).

Summary judgment will be granted when there is no genuine

issue as to any material fact. See Fed. R. Civ. P. 56(c). Because

this case involves a challenge to a final administrative decision,

the Court’s review on summary judgment is limited to the

administrative record. Holy Land Found. for Relief and Dev. v.

Ashcroft,

(D.C. Cir. 2003) (citing Camp v. Pitts,

(1973)); Richards v. Immigration & Naturalization

Serv.,

(D.C. Cir. 1977) (“Summary judgment is

-16- an appropriate procedure for resolving a challenge to a federal

agency’s administrative decision when review is based upon the

administrative record.”).

III. ANALYSIS

The dispute in this case involves two distinct legal issues.

First, Intervenors advance the threshold argument that Plaintiffs

have no standing to challenge the Pictured Rocks Rule permitting

jetskis to be re-introduced to that park. Second, Plaintiffs

challenge the agency’s decisions to pass regulations allowing

limited jetski use in these two parks. In their three-count

Complaint, Plaintiffs allege that those decisions violated the NPS

Organic Act, NEPA, and the Settlement Agreement.

A. Standing

Plaintiffs “[invoke] federal jurisdiction” in this case, and

therefore bear the burden of establishing standing. Lujan v.

Defenders of Wildlife,

(1992). Because standing

is “not [a] mere pleading requirement[] but rather an indispensable

part of the plaintiff’s case, each element must be supported in the

same way as any other matter on which the plaintiff bears the

burden of proof.”

At the summary judgment stage, “the

plaintiff can no longer rest on . . . ‘mere allegations,’ but must

‘set forth’ . . . ‘specific facts,’ which for purposes of the

summary judgment motion will be taken to be true.”

(quoting

Fed. R. Civ. P. 56(e)).

-17- Plaintiffs claim standing to challenge the Pictured Rocks Rule

based on the visit of Plaintiff Robert Goodman to the park before

issuance of the Rule re-authorizing PWC use at Pictured Rocks.

Compl. ¶¶ 6-7. In his declaration, Goodman identifies himself as

a Michigan resident, living near Detroit, about 400 miles from

Pictured Rocks. Goodman Decl. at ¶¶ 1, 5 (Ex. 2 to Pls.’ Opp’n to

Standing Mot. (“Pls.’ Standing Opp’n”)) [Dkt. No. 19-3]. He is an

avid kayaker, who takes frequent kayaking trips. Id. at ¶¶ 2-4.

He has visited Pictured Rocks only once, in the mid-1990s. Id. at

¶ 5. While there, his enjoyment of the area was diminished by the

noise and wake created by PWC use. Id. at ¶ 6. He “decided that

[he] would not return to be faced with more Jetskis there.” Id.

If they are banned, however, he indicates he will be more likely to

return to Pictured Rocks, possibly during a sea kayaking symposium

at a site “immediately adjacent to Pictured Rocks,” or on his own,

but not for another two summer seasons because of plans he has

already made. Id. at ¶ 8.

Intervenors argue that Plaintiffs lack standing to challenge

PWC use at Pictured Rocks, based on Goodman’s single trip to the

park, before existence of the current Rule, with no concrete plans

to return. Standing Mot. at ¶¶ 5-10.11 They also dispute

11 Defendants take no position on Intervenors’ Standing Motion. See Def.’s Mot. at 17 n.4.

-18- Plaintiffs’ argument that Goodman has standing in this suit to

enforce the Bluewater I Settlement Agreement to which he is a

party. Intervenors’ Reply at 24.

It is well established that standing consists of three

elements: (1) “injury in fact,” or “an invasion of a legally

protected interest which is (a) concrete and particularized and (b)

actual or imminent;” (2) “a causal connection,” showing that the

injury is “fairly traceable to the challenged action of the

defendant;” and (3) “that it is likely as opposed to merely

speculative that the injury will be redressed by a favorable

decision.” Lujan,

(internal citations and

quotations omitted); see also Newdow v. Roberts,

(D.C. Cir. 2010).

Bluewater brings suit on behalf of its members. Compl. ¶ 4.

“[A]n association has standing to bring suit on behalf of its

members when: (a) its members would otherwise have standing to sue

in their own right; (b) the interests it seeks to protect are

germane to the organization’s purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of

individual members in the lawsuit.” Hunt v. Wash. State Apple

Advertising Comm’n,

(1977). Additionally, injury

to aesthetic and recreational enjoyment is “a cognizable interest

for purposes of standing.” Lujan,

. “Only one

[Plaintiff] needs to have standing to permit” the Court to resolve

-19- Plaintiffs’ claims. Massachusetts v. EPA,

(2007). In this case, the one Plaintiff offered is Robert Goodman.

1. Plaintiffs Cannot Establish “Injury in Fact” Under their Statutory Claims.

Intervenors dispute only the “injury in fact” element of the

standing test. Standing Mot. at ¶ 5. As already noted, that

injury must be concrete and particularized, and actual or imminent.

Goodman’s sole visit to the park in the mid-1990s provides the

basis for Plaintiffs’ assertion of standing. The Supreme Court has

found that, “[p]ast exposure to illegal conduct does not in itself

show a present case or controversy regarding injunctive relief

. . . if unaccompanied by any continuing, present adverse effects.”

O’Shea v. Littleton,

(1974). The Court

applied this principle in Lujan, and concluded that plaintiffs

could not establish that a change in an agency’s interpretation of

the Endangered Species Act would produce “imminent” injury because

even though the individuals had visited the affected area in the

past, they had no firm plans to return.

.

Similarly, in this case, Goodman visited Pictured Rocks in the

past, many years before filing the instant suit. His single visit

was allegedly marred by others’ PWC use. In his declaration, he

claims that he travels significant distances to kayak, and has done

so since the mid-1990s in order to enjoy parks near Pictured Rocks.

Goodman Decl. at ¶¶ 3-5. However, it is of great significance that

he has not re-visited PIRO, even though there was a PWC ban in

-20- place for more than three years before 2005. Id. at ¶ 7. He

states that if the ban were imposed again, he would “return to the

Lakeshore within two summer seasons.” Additionally, he has plans

to travel to the area as part of a kayaking symposium. Even if the

ban were in effect at that time, he can only say that he would “be

more likely” to participate in day trips to kayak at Pictured

Rocks. Id. at ¶ 8.

Goodman’s use of the park, and alleged injury, bears a strong

resemblance to the injury that the Supreme Court rejected in Lujan.

In both instances, a single earlier visit to a region was the

source of the injury. See Lujan,

(describing

that two plaintiffs each took single trip). Further, in each case,

those parties failed to return to the region. One Lujan plaintiff,

when asked of plans to return, stated that she planned to return,

but did not have any concrete plans to do so.

Likewise,

Goodman states an intention to return, and has claimed that he

would do so within two years, but does not indicate any concrete

plans. Goodman Decl. at ¶ 8. He has had ample opportunity to do

so, as he travels in the area to kayak. Even when a PWC ban was in

place for several years, he chose not to visit PIRO. Such facts

indicate that the injury is not, in this case, actual or imminent.

Standing does not exist where “‘some day’ intentions--without any

description of concrete plans, or indeed even any specification of

-21- when the some day will be” make up the basis of the “actual or

imminent” injury being alleged. Lujan,

.

Plaintiffs argue that Goodman’s situation is more analogous to

that of the plaintiffs in Friends of the Earth, Inc. v. Laidlaw

Envtl. Serv. (TOC), Inc.,

(2000), whose visits to a

polluted South Carolina river were found to be sufficient to

establish an injury in fact for standing purposes. See

.

That case, however, presented very different facts. There,

plaintiffs made frequent visits to the site. They lived near the

river, and came into contact with it regularly; as a result, they

continuously were exposed to its polluted waters and the spoiled

natural environment, thereby establishing an actual injury in fact.

. In Laidlaw, the challenged illegal activity

“directly affected affiants’ recreational, aesthetic, and economic

interests.”

.

In the instant case, Goodman’s one visit to Pictured Rocks is

a far cry from the frequent and ongoing contacts found to be

sufficient in Laidlaw. Of course, “standing does not depend on the

size or quantum of harm to the party.” Animal Welfare Inst. v.

Comm. for Humane Legislation, Inc.,

(D.C. Cir.

1977). Nevertheless, where, as here, an individual has made only

one visit, has no firms plans to return, has no ongoing connection

with the park, and has bypassed opportunities to visit when he was

-22- in the area, the claim of an “actual and imminent” injury must be

rejected.12

2. Plaintiffs Have Standing to Enforce the Terms of the Settlement Agreement Based on Goodman’s Status as a Plaintiff in Bluewater I.

Plaintiffs also argue that because Goodman was a plaintiff in

Bluewater I, and because he is a party to the Settlement Agreement

reached in that case, he has standing to enforce its provisions in

this case. Pls.’ Standing Opp’n at 14 n.6; Pls.’ Reply at 23; see

also Berger v. Heckler,

(2d Cir. 1985)

(permitting a plaintiff to sue to enforce a consent decree under

“basic contract principles”); City of New York v. Dep’t of

Commerce,

(E.D.N.Y. 1990).

12 A decision from the Ninth Circuit, invoked by both parties to support their arguments, does not alter the outcome in this case. In Ecological Rights Foundation v. Pacific Lumber Company,

(9th Cir. 2000), the Ninth Circuit held that members of an environmental organization had standing to challenge a lumber company’s conduct under the Clean Water Act. Pacific Lumber,

. Plaintiffs in that case had visited the site--a creek in California--with some regularity. One plaintiff, Christopher Hinderyckx, “continued to drive to [the area] often, sometimes stopping along the creek.”

. Hinderyckx said that he was less likely to swim and fish in the creek because of pollution, and maintained that “he aesthetically enjoy[ed] his recreational activities there less than he otherwise would.”

.

The Ninth Circuit’s analysis depends on facts that differ from the facts in this case. Goodman did not visit Pictured Rocks with any regularity. He did not return, even when PWC use was banned. He has no regular contact with the park. Based on these distinctions, the holding in Pacific Lumber does not dictate a different outcome in this case.

-23- Paragraph 9 of the Settlement Agreement requires all suits

challenging final rules promulgated under ¶¶ 1-4 of the Agreement

to be filed as new lawsuits. Settlement Agreement at ¶ 9.

Paragraphs 1-4 provide that all PWC use is to be banned, after a

grace period for certain parks including PIRO and GUIS, unless

special, site-specific regulations are promulgated for each park

where jetskis are to be allowed. Thus, challenges to the rules

permitting PWC use in those parks must be filed as new lawsuits,

not as continuations of Bluewater I. Plaintiffs are challenging

rules promulgated under ¶¶ 1-4, and so their claims must be

considered a new lawsuit.

In light of the terms of the Settlement Agreement, therefore,

the appropriate question is whether Goodman’s participation in

Bluewater I gives him standing to participate in an entirely new

suit to enforce settlement of the earlier litigation. Of course,

standing must be established in every new case whether it stems

from an earlier related case or not. Lujan,

;

Fla. Audobon Soc’y v. Bentsen,

(D.C. Cir. 1996)

(“[A] showing of standing is an essential and unchanging predicate

to any exercise of our jurisdiction.”) (citation and quotations

omitted).

The Settlement Agreement is unquestionably a contract. Makins

v. District of Columbia,

(D.C. Cir. 2002).

Goodman is a party to that contract. Individuals who are parties

-24- to a contract have standing to enforce the terms of that contract

in the event that breach is alleged. See Tenn. Elec. Power Co. V.

Tenn. Valley Auth.,

(1939) (standing exists

when “the right invaded is a legal right[]--one of property, one

arising out of contract, one protected against tortious invasion,

or one founded on a statute which confers a privilege”); T Street

Dev., LLC v. Dereje and Dereje,

(D.C. Cir. 2009).

Therefore, the Court concludes that Goodman has standing in this

lawsuit to enforce the terms of the Settlement Agreement in

Bluewater I.

The provisions of that Agreement require Defendants to, among

other things, base any regulatory changes on “appropriate analysis

under [NEPA].” Settlement Agreement at ¶ 5. Apart from describing

the nature of the dispute in Bluewater I, the Settlement Agreement

is completely silent as to any obligations of the Government under

the Organic Act. See id. at ¶ 9 (“Nothing in this agreement may be

construed to otherwise limit or modify the discretion accorded to

the defendants by the statutes they administer or by general

principles of administrative law.”). Because Goodman only has

standing to enforce the Settlement Agreement, and because that

Agreement does not speak to Defendants’ compliance with the Organic

Act, he does not have standing to raise challenges under that Act.

Therefore, Plaintiffs may only challenge the PIRO rule under the

terms of the Settlement Agreement, for a violation of NEPA.

-25- B. The Organic Act Governing NPS Actions

Plaintiffs contend that NPS’ decision to re-introduce PWCs was

arbitrary and capricious under the APA and the provisions of the

Organic Act. First, they argue that NPS failed to account for its

“reversal” of policy in re-introducing jetskis to the parks after

making specific pronouncements banning them. Pls.’ Mot. at 24-32.

Second, they maintain that, even assuming there was no policy

reversal, “the agency nonetheless failed to meaningfully explain

how reauthorizing Jetskis is consistent with the agency’s

obligations under the Organic Act.” Id. at 33.

1. Legal Analysis

The Act, passed by Congress in 1916, provides that the NPS

must:

promote and regulate the use of the . . . 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.

.

In 1978, Congress passed the 1978 Redwood Act, 16 U.S.C. § 1a-

1, which supplements the Organic Act and reaffirms its original

mandates that, “[t]he authorization of activities shall be

construed and the protection, management, and administration of

-26- these areas shall be conducted in light of the high public value

and integrity of the National Park System and shall not be

exercised in derogation of the values and purposes for which these

various areas have been established, except as may have been or

shall be directly and specifically provided by Congress.” Id.

NPS’ Management Policies, most recently updated in 2006,

interpret the provisions of these two key statutes. See NPS

Management Policies 2006, at 1.4.1, available at

www.nps.gov/policy/mp2006.pdf (“2006 NPS Policies”).13 According

to those Policies, “[t]he fundamental purpose of the national park

system . . . begins with a mandate to conserve park resources and

values.” Id. at 1.4.2. They continue by stating, “[t]he

fundamental purpose of all parks also includes providing for the

enjoyment of park resources and values by the people of the United

States”--this Policy applies to visitors who actually travel to the

13 While these Policies are not judicially enforceable, Wilderness Soc’y v. Norton,

(D.C. Cir. 2006), they are “relevant insofar as NPS puts forth the Policies as justification for the decision under review,” Greater Yellowstone Coalition v. Kempthorne,

(D.D.C. 2008); see also Mainella,

n.1. NPS cites in its EAs the 2001 version of the Policies. In terms of provisions discussed in this Opinion, the 2001 and 2006 NPS Policies contain virtually identical language. Compare 2006 NPS Policies with 2001 NPS M a n a g e m e n t P o l i c i e s , a v a i l a b l e a t http://www.nps.gov/refdesk/mp/index.html (“2001 NPS Policies”). Further, Defendants in their Motion for Summary Judgment refer to the most recent version of these Policies (2006), and agree that this “Service-wide policy document . . . informs and directs management of park resources under the Organic Act.” Defs.’ Mot. at 14. Because parties refer to the 2001 NPS Policies, the Court will use that version.

-27- parks, and to those who appreciate them from afar. Id. at 1.4.3.

While the agency recognizes that managers may in their discretion

allow impacts that do not represent an impairment, “NPS managers

must always seek ways to avoid, or to minimize to the greatest

degree practicable, adverse impacts on park resources and values.”

Id.

To reconcile values that may at times be in tension with one

another--conservation and recreation--NPS itself has consistently

interpreted the Organic Act to prioritize conservation, see PIRO-

00022; GUIS-00169, and recognized that the courts as well “have

consistently interpreted the Organic Act and its amendments to

elevate resource conservation above visitor recreation.” Id.

(citing cases); see also 2006 NPS Policies at 1.4.3 (“Congress,

recognizing that the enjoyment by future generations of the

national parks can be ensured only if the superb quality of park

resources and values is left unimpaired, has provided that when

there is a conflict between conserving resources and values and

providing for enjoyment of them, conservation is to be predominant.

This is how courts have consistently interpreted the Organic Act.”)

(emphasis added).

There can be no doubt, as NPS and the courts have concluded,

that the overriding aim of the Organic Act, as well as the purpose

of NPS’ oversight and management of the park system, is to conserve

the natural wonders of our nation’s parks for future generations.

-28- See Greater Yellowstone Coalition,

; Nat’l

Rifle Ass’n of Am. v. Potter,

(D.D.C. 1986)

(“In the Organic Act, Congress speaks but of a single purpose,

namely, conservation.”).

As Defendants have observed, NPS is granted broad discretion

to implement its mandate “to conserve the scenery and the natural

and historic objects and the wild life.”

. In doing

so, it must strike the appropriate balance between prioritizing

conservation and providing for use and recreation by the public.

See Defs.’ Mot. at 14; Daingerfield Island Protective Soc. v.

Babbitt,

(D.C. Cir. 1994) (adopting District Court

reasoning that terms of Organic Act endow NPS with “broad, but not

unlimited discretion in determining what actions are best

calculated to protect Park resources.”). Nevertheless, that

discretion is “bounded by the terms of the Organic Act itself.”

Greater Yellowstone Coalition,

. Those terms

require that NPS’ stewardship of the parks leave them “unimpaired

for the enjoyment of future generations.”

; see also

GUIS-00266 (stating in EA that NPS recognizes statutory limit to

discretion).

The NPS Policies guide the agency in determining what

constitutes an impairment. According to those Policies, an action

rises to the level of an impairment when the impacts of that action

“harm the integrity of park resources or values, including the

-29- opportunities that otherwise would be present for the enjoyment of

those resources or values.” 2001 NPS Policies at 1.4.5; PIRO-

00022; GUIS-00170. As NPS indicates in its EAs, the agency

determines if an impairment would occur by evaluating “particular

resources and values that would be affected; the severity,

duration, and timing of the impact; the direct and indirect effects

of the impact; and the cumulative effects of the impact in question

and other impacts.”

. Re-introduction of PWCs to Gulf Islands14

Plaintiffs maintain that NPS failed to explain what they

characterize as a reversal of policy from the agency’s earlier

decision to permit the National Jetski Rule banning PWC use in each

park to take effect in 2002. The EA and FONSI led to a re-

introduction of PWC use at Gulf Islands in 2006,

.

By issuing the Gulf Islands Rule, NPS, according to Plaintiffs,

“reversed course” from earlier PWC policies; in doing so, it failed

to provide a “reasoned analysis” for the reversal, and thus engaged

in arbitrary and capricious conduct under both the Organic Act and

the APA. Pls.’ Mot. at 24-26; see State Farm,

.

Plaintiffs suggest that such a reversal is subject to a heightened

standard of review. Pls.’ Mot. at 25.

14 As noted earlier, there can be no ruling on Plaintiffs’ challenge to the Pictured Rocks Rule under the Organic Act because of lack of standing.

-30- Intervenors and Defendants dispute Plaintiffs’ interpretation

of the facts. They insist that the 2006 Rule allowing PWC use is

not a reversal of long-standing NPS policy, but rather continuation

of a long-standing policy to allow PWC use, subject to various

state and local restrictions. Defs.’ Mot. at 35-38; Intervenors’

Mot. at 22-25. Further, they argue that regardless of whether or

not the Rule represented a change of course, NPS was permitted

under NEPA and the Settlement Agreement to re-visit the PWC ban and

issue a new rule based on updated information. Defs.’ Mot. at 37-

38.

Recent Supreme Court and Court of Appeals decisions bear

directly on this issue. In FCC v. Fox Television Stations, Inc.,

(2009), the Supreme Court decided that after a

change of policy, “the agency need not always provide a more

detailed justification than what would suffice for a new policy

created on a blank slate.”

. Adopting the reasoning in

Fox, our Court of Appeals has stated that, “[e]xplanation of a

change in policy is not subject to a heightened standard of

review.” Anna Jacques Hosp. v. Sebelius,

(D.C. Cir.

2009).

At oral argument, Plaintiffs’ counsel argued that Fox need not

be read to reject a heightened standard of review for policy

reversals, but failed to put forward convincing reasons to support

that interpretation. Tr. at 18-20 (May 17, 2010). In actuality,

-31- the meaning of Fox and Anna Jacques is quite clear: it is not

relevant under State Farm whether an agency is reversing existing

policy or simply creating a new one; instead, what is relevant is

whether the agency supplied a “rational connection between the

facts found and the choice made.” State Farm,

(quoting Burlington Truck Lines v. United States,

(1962)).

In sum, Fox and Anna Jacques make it clear that even though

there is no heightened standard of review when examining an

agency’s change of course, State Farm still guides the inquiry as

to whether the agency’s actions are arbitrary and capricious. In

this case, the earlier national rulemaking and administrative

determination banning PWCs at GUIS are relevant, because the Court

must compare those former decisions to the latter Gulf Islands Rule

in deciding whether the agency has adequately explained its change

in policy. See Nat’l Cable & Telecomm. Ass’n v. FCC,

(D.C. Cir. 2009) (“Of course, ‘it is axiomatic that agency

action must either be consistent with prior action or offer a

reasoned basis for its departure from precedent.’ . . . Yet it is

equally axiomatic that an agency is free to change its mind so long

as it supplies ‘a reasoned analysis. . . .’”) (citations and

quotations omitted).

In Plaintiffs’ view, the 2001 Determination represents a

“specific determination[]” to ban jetskis at Gulf Islands. Pls.’

-32- Mot. at 26. They argue that the new Rule re-introducing PWCs in

2006 lacked “specific new data and information that had been

collected and analyzed since the earlier decisions had been made.”

Plaintiffs complain that the new Rule overturned the earlier

bans and impermissibly relied on “assumptions and extrapolations

from scientific literature,” data from other parks, and personal

observations from park staff, rather than collecting data and

making site-specific findings of impacts at the park.

(quoting

GUIS Final Rule,

). They also insist that

issuance of the Gulf Islands Rule, overturning the National Jetski

Rule, ignored the detailed findings about the general harms that

result from PWC use anywhere in the park system, which the National

Rule described.

. Under State Farm, Plaintiffs argue,

this change in position was arbitrary and capricious.

The National Jetski Rule, which eventually went into effect at

both parks in 2002 after being adopted in 2000, “prohibits PWC use

in areas of the National Park System unless [NPS] determines that

PWC use is appropriate for a specific area based on that area’s

enabling legislation, resources, values, other visitor uses, and

overall management objectives.”

. Certain

parks, including PIRO and GUIS, were permitted to re-introduce

jetskis after undertaking a Special Regulation rulemaking, which

required a nationwide notice-and-comment period.

.

-33- The 2001 Determination, concluding that PWC use would be “an

inappropriate activity at Gulf Islands,” found that “PWC use poses

considerable threats to estuarine flora and fauna, pollutes waters

essential to estuarine and marine health, poses unacceptable risk

of injury to operators and bystanders, and conflicts with the

majority of other longstanding uses of the Seashore.” GUIS-00079.

These findings were supported by a relatively brief analysis of PWC

impacts on noise, water quality, wildlife, and safety and visitor

use.

. While the analyses often invoked studies

undertaken at other parks, they also included data drawn from

direct observations of GUIS staff. See, e.g.,

at 00074 (citing

1995 study of noise impacts on colonially nesting birds, and citing

observations of GUIS park staff).

At the time of the 2001 Determination, PWC use was allowed

along much of the shoreline at Gulf Islands, an area that suffered

significant impacts according to NPS analysis in the 2001

Determination. See

(noting “significant threat” posed

to sea turtles that nest in shallow waters, and disturbance to

nesting bald eagles and osprey by human intrusion “along the

shoreline”);

(noting damage to “shallow

grassbeds”);

(concluding that PWC range and the

“standard procedure of operating close to the shoreline can easily

and quickly shatter [visitor] experience in even the most remote

sections of the park”). However, certain state regulations on PWC

-34- use did exist, restricting the time, manner, and location of PWC

use. See GUIS-00191-192. These regulations were incorporated into

Alternative B’s restrictions on PWC use. See

.

Two significant restrictions were added to Alternative B, the

NPS’ preferred alternative, before it was adopted by the agency:

(1) “[a] flat-wake zone would be established 300 yards from all

park shorelines at the low-water mark,” with certain exceptions;

(2) “[n]o PWC operation would be permitted within 200 feet of non-

motorized watercraft and people in the water.” GUIS-00193.

In its Gulf Islands EA, NPS relied heavily on these new

restrictions of PWC operation to justify its decision to again

allow their use. GUIS-00195 (“Alternative B would have limited

impacts on the national seashore’s natural resources through

protection of shoreline areas with flat-wake zoning

prescriptions.”); see also

(discussing reduced

noise impact to visitors due to flat-wake zone);

(“[H]owever, since alternative B includes increased mitigation such

as additional flat-wake zones, impacts would be fewer than

alternative A.”);

(finding that flat-wake zone would

minimize impacts of PWC use to threatened and endangered species).

Plaintiffs contend that such reliance on the mitigating

effects of the flat-wake zone is misplaced, as the restriction is

unenforceable as a practical matter. Pls.’ Mot. at 29-30. There

is evidence in the record that the 300-yard line is difficult for

-35- PWC users to identify, GUIS-05849, and that GUIS does not plan to

demarcate the line with buoys or other indicators,

.

However, there is a presumption that NPS will enforce its own

rules and policies. See Intervenors’ Mot. at 30 (collecting cases).

Further, NPS did announce its plan for enforcing the restrictions

contained in the preferred alternative, including increased

patrolling, training of officers, and an education campaign, as

well as a before-and-after photography study to determine if

additional areas should be closed to PWC use.

;

GUIS–00580 (describing plan in FONSI). Given the presumption that

NPS will enforce its rules, and the measures undertaken to

effectuate that enforcement, the Court will accept NPS’ assurances

in this case.

The flat-wake zone and other updated restrictions that make up

Alternative B distinguish the enforcement environment under the EA

from that in place when the 2001 Determination was issued. NPS

relied on these restrictions in conducting its extensive study of

jetski impacts at Gulf Islands. Additionally, it discussed a

greater number of impact topics in the EA, used more recent

studies, see, e.g., GUIS-00308, and a more clearly articulated

methodology to analyze impacts and impairments, see infra at

III.B.3.a.

-36- Initiating the EA process and re-visiting the ban on jetskis

was, of course, well within the authority granted to Gulf Islands

by the National Jetski Rule and the Settlement Agreement.

; Settlement Agreement at ¶ 4. NPS based its decision

to depart from the conclusions of the National Rule and the 2001

Determination, to a substantial extent, on updated facts and

enhanced restrictions on PWC use. For these reasons, it is clear

that NPS had a reasonable basis for reconsidering the validity of

its 2001 Determination.

This finding does not mean that the agency provided a clear,

reasoned, and adequately justified analysis in arriving at its

final decision to re-introduce jetskis to Gulf Islands. That

issue will now be directly addressed, infra, in examining

Plaintiffs’ second argument under the Organic Act that the

Defendants “failed to meaningfully explain” how re-introducing PWCs

is consistent with NPS’ obligations under the Organic Act. Pls.’

Mot. at 33. Plaintiffs contend that even if the EA and FONSI were

issued without the backdrop of earlier national rules or park-

specific administrative determinations, the analysis conducted by

NPS failed to explain how the facts found led to the conclusion

that each impact was not an “impairment” under the Organic Act in

violation of State Farm’s insistence that the agency provide a

“rational connection between the facts and the choice made.” State

Farm,

.

-37- C. NPS’Gulf Islands Rule

On April 20, 2000, the National Jetski Rule went into effect,

banning jetskis in all but 21 of the National Parks. As one of the

21 parks excepted from the Rule for two years, Gulf Islands could

continue to allow jetski use. If, after that two-year grace period

the park took no action, PWCs would be banned. If the park chose

to permit PWC use after the grace period, it had to undertake

Special Regulation rulemaking, which would include a notice and

comment period.15

-80. In October of 2001, Gulf

Islands’ Superintendent, Jerry A. Eubanks, issued the 2001

Determination, which concluded that PWC use “is an inappropriate

activity” at the park. GUIS-00079. In 2002, Gulf Islands then

allowed the grace period to expire, and the PWC ban went into

effect. PWCs were then re-introduced to the park in May of 2006,

after the passage of a park-specific Rule permitting restricted use

of the machines.

1. NPS’ Methodology16

The Gulf Islands EA, which embodies the agency’s methodology,

analysis, and conclusions, begins with a description of PWC use and

15 The Settlement Agreement further stipulated that “any Special Regulation . . . addressing the continued use of PWCs will be based on appropriate environmental analysis under [NEPA], which analysis will, inter alia, consider the impacts of PWC use in the particular unit.” Settlement Agreement at ¶ 5. 16 The methodology used at GUIS is virtually identical to that adopted at PIRO.

-38- NPS’ obligations under various statutes and internal directives.

GUIS-00164-177. It continues by describing several impact topics,

or subject matter, such as water quality, soundscapes, etc., that

may be affected by re-introducing PWCs into the park.

. In the “Alternatives” section, NPS identifies three

different approaches to PWC use in Gulf Islands, one of which will

be adopted by the EA.

. The EA then discusses the

environment at GUIS, providing detailed data and descriptions that

pertain to a range of natural and recreational activities within

Gulf Islands.

.

In the “Environmental Consequences” section of the EA NPS

analyzes what potential impacts can flow from the three

alternatives examined, and reports its conclusions. Before

describing the impact that PWC use would have on each item, NPS

sets forth the “guiding regulations and policies” that apply to

that item. Often, these regulations and policies contain objective

standards mandated by state or federal statutes or regulations,

see, e.g.,

; 00290; 00305. At times, the “guiding

regulations and policies” state how NPS’ internal policies govern

its approach to managing a certain subject matter, see, e.g.,

; 00353. For example, in stating its approach to “visitor

use and experience,” the agency summarizes relevant provisions of

the 2001 NPS Policies related to ensuring visitor enjoyment and

guarding against impairments, and also discusses certain visitor

-39- satisfaction and safety goals contained in its Strategic Plan.

.

After setting forth these governing standards, NPS articulates

the “methodology and assumptions” it will apply in assessing the

impacts on each topic. It describes the potential impacts

according to their type, context, duration, and intensity. The

type of impact can be adverse or beneficial. The context of an

impact can be site-specific, local, or regional. The impact’s

duration can be short-term or long-term. The intensity can be

negligible, minor, moderate, or major. For each impact topic

except for visitor use and experience, NPS also defines when PWC

use would rise to the level of an impairment. Because intensity

definitions vary according to impact topic, NPS sets forth a

separate intensity definition for each impact topic; these

definitions are referred to as impact thresholds.

.

In the analysis section of the EA, each alternative--no-action

(continued ban on PWCs), Alternative A (reinstate jetskis as

previously managed), and Alternative B (reinstate jetskis with

additional limitations on their use)--is compared to a baseline.

At GUIS, the baseline is the continuation of the ban under the no-

action alternative. NPS determines impacts for each by comparing

the expected effects of each alternative to thresholds established

by scientific literature, federal and state standards, experts, and

other agencies, and NPS resource management objectives.

At

-40- the conclusion of each analysis section, NPS reports its findings

as to the impacts expected under each alternative, as well as the

expected cumulative impacts that can result from PWC use and other

motorized watercraft use.

2. NPS’ Conclusions

After conducting an analysis using this methodology, NPS

concluded, for every impact topic, that Alternative B, which

permits jetski use with additional restrictions, is the preferred

alternative at GUIS. GUIS-00195. According to NPS, PWC use under

Alternative B’s limits would not result in any impairments to park

resources. GUIS-00153-155 (Table A, summarizing conclusions).

Specifically, NPS concluded that Alternative B would generate only

a “negligible adverse” impact on water quality,

; a

“negligible adverse” to “minor adverse” impact on air quality,

; a “negligible to minor adverse” impact on

soundscapes,

; “negligible adverse” impacts on

vegetation,

; “negligible” and “minor to moderate

impacts” on wildlife,

; and, in terms of visitor

experience and safety, a beneficial impact on PWC users and a

variety of adverse impacts on non-PWC users,

.

Significantly, NPS based its analysis on the assumption that

PWC users would be operating the older, noisier, and more polluting

two-stroke machines.

-37; GUIS-00171; 00313.

It acknowledged that this approach was more “conservative” than

-41- attempting to factor in the expected transition to cleaner and

quieter four-stroke or direct-injection two-stroke engines.

-37.

However, NPS did not consistently rely on this conservative

assumption. For example, at times it would claim that certain

impacts would be minimized in the future due to the eventual

transition to machines with improved engines. See, e.g., GUIS-

00287 (“[I]mpacts from PWC use are expected to remain negligible

due to reduced emission rates of newer technology engines.”); 00381

(describing likely reduction in pollutants “in the long term,”

because of “required improvements in engine emission technology”).

NPS fails to explain its seemingly inconsistent commitment to the

conservative approach of using older two-stroke engines for

measuring certain impacts, but relying on the transition to more

environmentally friendly four-stroke engines for measuring other

impacts.

Additionally, as Plaintiffs note, there is no certainty that

the superior four-stroke PWCs will, in fact, displace the two-

stroke machines by 2012, as NPS assumed.17 Intervenors argue that

the conversion is proceeding apace, as the industry has been driven

to produce cleaner machines by more strict environmental

regulations on PWC pollutants. Intervenors’ Reply at 5-7.

17 NPS “expects that by 2012, most boat owners will already be in compliance with the 2006 EPA Marine Engine Standards.” GUIS- 00170.

-42- However, as the Gulf Islands EA reports, the EPA “assumes that the

existing two-stroke engine models would not be completely replaced

by newer PWC technology until 2050”--38 years later than NPS

considered in its analysis for its assessments. GUIS-00170.

Significantly, neither park adopts the safest and most conservative

approach of all--an outright ban on two-stroke engines from the

waters of both.18

Plaintiffs’ main argument under the Organic Act is that, for

each topic, NPS failed to provide a reasoned analysis for its

conclusions, and instead relied on conclusory language that did

little more than recite its compliance with duties imposed by that

Act. Pls.’ Mot. at 33-36. Therefore, the Court will now turn to

examine each impact topic in turn,19 in order to determine whether

in fact NPS did “examine the relevant data and articulate a

18 As Plaintiffs observe, the record casts at least some doubt on the beneficial effects of conversion to newer engines. Pls.’ Mot. at 31 n.14. For instance, according to a study cited in the Gulf Islands Rule, newer engines produce increased NOx emissions,

; additionally, direct-injection two- stroke machines may result in elevated PAH levels. GUIS-00171-172. Further casting doubt on the anticipated beneficial effects of conversion, is NPS’ acknowledgment in its 2001 GUIS Determination that “aftermarket modifications” to PWCs are common. In other words, operators modify their jetskis to “increase horsepower and thrust.” Thus, the effect may be to undo manufacturers’ efforts to reduce noise levels.

. 19 Water quality, air quality, soundscapes, vegetation, wildlife, and visitor experience will be discussed. It is not necessary to examine the other impact topics assessed in the GUIS EA: “cultural resources,” “socioeconomic effects,” and “national seashore management and operations.”

-43- satisfactory explanation for its action including a ‘rational

connection between the facts found and the choice made.’” State

Farm,

(citation omitted); see Mainella,

.

Two recent decisions have adopted this approach. In Sierra

Club v. Mainella, the court held that NPS “failed adequately to

explain its conclusion that impacts from nearby surface drilling

activities would not result in an impairment of park resources and

values.”

. In that case, the NPS described

the various impacts that directional drilling would have at Big

Thicket National Preserve by assigning modifiers to the degree of

disruption that the drilling would create. For instance, the

intensity of the particular impact--i.e., impact on soundscapes or

air quality--could be described as “negligible, minor, moderate, or

major;” the area affected was either “localized” or “widespread;”

and the duration of the impact was “short-term” or “long-term.”

. In its EAs and FONSIs, NPS found that drilling would

not impair park resources.

In Mainella, NPS failed to supply a reasoned analysis that

linked its findings for the degree of adverse impacts to the

ultimate decision that no impairment would result from such

impacts. The agency invoked only “conclusory” labels to describe

impacts, thereby depriving the court of any “basis to determine

first, whether NPS reasonably concluded that the impact is [of a

-44- certain intensity], and second, whether NPS reasonably concluded

that a [a certain intensity] impact should not, under the relevant

circumstances, be considered an impairment.”

.

Similarly, in Greater Yellowstone Coalition, challenging the

use of snowmobiles in three national parks, the court held that

NPS’ impairment determinations were arbitrary and capricious

because they failed to explain why certain impacts did not rise to

the level of an impairment.

(“Like the

Court in Mainella, this Court is equally perplexed as to why any

impact characterized as ‘major and adverse’ does not constitute an

unacceptable impact, let alone impairment. This is a distinction

NPS again fails to explain.”).

3. Water Quality

In assessing impacts to water quality, NPS began by announcing

in its EA which regulations and policies would guide its analysis.

The agency noted that the Environmental Protection Agency (“EPA”)

has developed recommended ambient water quality criteria for a

range of pollutants. GUIS-00270. The EPA standards set forth the

minimum volumes of water that would be needed to dilute each

expected pollutant emitted by PWCs to produce safe levels for human

health.

However, EPA did not issue “water quality criteria for the

protection of aquatic life for the PWC-related contaminants.”

. According to its Management Policies, NPS works to

-45- “obtain the highest possible standards available under the Clean

Water Act for the protection of park waters,” and to comport with

all applicable federal, state, and local laws and regulations.

Because neither GUIS nor EPA possess “quantifiable water quality

data” on the effects of PWC emissions, NPS used “water quality

standards,” because of the absence of park-specific data.

Moreover, it is never made entirely clear where these “standards”

were derived from.20 These standards take into account uses of the

water, and set minimum criteria to protect those uses and prevent

degradation of water quality.

According to the EA, NPS

regulations require that “PWC use could not be authorized to the

degree that it would lower” the standards announced in the

regulations or affect the use of the water as “fishable/swimmable.”

(referring to

(a)(2)).

NPS explained how site-specific data was calculated. After

considering the extent of PWC use at Gulf Islands (i.e. number of

jetskis and hours of operation) and applying ecotoxicological human

health benchmarks announced in EPA guidelines, NPS calculated the

minimum amount of water needed to dilute each pollutant to meet

those EPA benchmark levels.

. The agency then

20 NPS states that the “antidegradation policy” found in

(a)(2) “is only one portion of a water quality standard.” GUIS-00271. In the “methodology and assumptions” section of its analysis, NPS describes this regulation in some more detail. It then notes that “state water quality standards” and “various literature sources” were examined and provided benchmarks.

.

-46- explained that it would categorize the impacts that resulted by

using modifiers “negligible,” “minor,” “moderate,” “major,” and

“impairment.” See infra at p. 48 n. 23. For each modifier, NPS

described the expected corresponding impacts. For instance, a

“minor” impact “would be detectable but would be well below water

quality standards or criteria and within historical or desired

water quality conditions.”

.

For each of the three alternatives under consideration--no-

action (continued ban on PWCs), Alternative A (reinstate jetskis as

previously managed), and Alternative B (reinstate jetskis with

certain limitations on their use)--the agency analyzed the amount

of jetski use, and assessed the impacts quantitatively before

applying one of the impact modifiers.21 Tables 33 and 34 of the EA

report the findings for Alternative B. For each pollutant, the

threshold volume needed to dilute the pollutant to benchmark levels

is well below the volume of water available in each area of the

park. In short, according to NPS calculations, there is more than

enough water to reduce the polluting impact of jetski emissions to

acceptable levels.

21 For example, NPS calculated the threshold volume of water to dilute the pollutant benzo(a)pyrene to benchmark levels to be 730 acre-feet of water in a certain area of the park in 2002 under Alternative A. GUIS-00282 (Table 31). It presented tables of data that listed thresholds for each pollutant in several areas of the park for the years 2002 and 2012.

-47- The preferred alternative, Alternative B, resulted in water

quality impacts that were “negligible adverse for all pollutants in

all areas of the national seashore in 2002.”

. NPS

reported that it expected this impact to remain the same in 2012

even as PWC use increased, because of “reduced emission rates of

newer technology engines.”

NPS also looked at cumulative

impacts to water based on PWC and non-PWC motorized watercraft.

Although PWCs represented a small fraction of the motorized

watercraft operated at Gulf Islands,22 they contributed

approximately 30% of total emissions from all motorized watercraft

in 2002. That number was expected to rise to 50% in 2012.

. Despite an increase of more than 66% in expected emissions

from PWCs, NPS still concluded that no impairment would result,

without any explanation of how this result could logically follow.

According to Defendants and Intervenors, this analysis

satisfies NPS’ obligations under the Organic Act, and must be

upheld as reasonable under the APA’s arbitrary and capricious

standard. Plaintiffs argue that it fails because NPS did no more

than identify the impact, label it (in this case, “negligible”),

and conclude there was no impairment. As in Mainella, they argue,

22 “According to park staff, personal watercraft comprise approximately 4% of recreational boating vessels in the Mississippi District of the park. In the Florida District, it is estimated that personal watercraft comprise 0.5% of recreational boating in that district.” GUIS-00267. Obviously, PWCs produce a greatly disproportionate percentage of the total emissions from all motorized watercraft.

-48- the agency totally failed to explain why the announced impact did

not amount to an impairment. Pls.’ Opp’n at 13-14.

The connection between the quantitative data, impact labels,

and ultimate conclusion of non-impairment is hard to fathom.

First, NPS explains that for three of the modifiers (negligible,

minor, and moderate), the impact of PWC use would be below water

quality standards. The only differences amongst the three are

whether the impacts are “detectable,” the degree to which they are

below water quality standards (e.g. “below” or “well below”), and

whether emissions would approach “historical or desired water

quality conditions.”23 GUIS-00277.

23 These three impact thresholds are described as follows:

Negligible: Impacts are chemical, physical, or biological effects that would not be detectable, would be well below water quality standards or criteria, and could be within historical or desired water quality conditions.

Minor: Impacts (chemical, physical, or biological effects) would be detectable but would be well below water quality standards or criteria and within historical or desired water quality conditions.

Moderate: Impacts (chemical, physical, or biological effects) would be detectable but would be at or below water quality standards or criteria; however, historical baseline or desired water quality conditions would be altered on a short-term basis.

GUIS-00277.

-49- It is difficult to discern any meaningful or objective

difference between these three modifiers. Each pollutant was

measured, and therefore each one must be, at the very least,

“detectable.” That fact can hardly be used to distinguish between

a minor and a moderate impact. See GUIS-00276 (Tables 26 and 27)

(reporting amount of emissions “loaded” into water for each

pollutant). Furthermore, any of the three modifiers can

conceivably be applied to impacts where the water quality is below

the national standards. See GUIS-00277. Finally, those

“historical or desired water quality conditions” mentioned in these

impact thresholds are not defined, nor is it explained how or why

they differ from EPA water quality standards. As in Mainella,

[t]he Court can identify no principled basis for calling one

‘minor’ and one ‘moderate,’ . . . only the application of a

conclusory label.”

.

Nonetheless, NPS labeled the impact of PWC emissions on water

quality as “negligible.” There is no specific and detailed

explanation as to how it arrived at that conclusion; without such

an explanation, there is no rational connection between the facts

found (quantitative data) and the final conclusions reached

(negligible impact and non-impairment). Given that the threshold

volume of available water for dilution of each pollutant was

calculated to be within national standards, the impact of PWC use

could conceivably have been described as negligible, minor, or

-50- moderate. However, there is no discussion of why NPS chose to

conclude the impact was negligible, as contrasted with minor or

moderate.

A related defect in the agency’s analysis is the absence of

any logical link between the impact thresholds (e.g. negligible,

minor, moderate, or major), and the ultimate conclusion that PWC

use does not impair park resources under the Organic Act. Why, for

instance, would a “major” impact not qualify as an “impairment”

when a major impact means that chemical, physical, or biological

effects “would be detectable and would be frequently altered from

the historical baseline or desired water quality conditions”?

PIRO-00277. The standards used by NPS are related to the impact

thresholds crafted by the agency, but there is no indication as to

why emission levels that are “at or below” water quality standards

represent only a “moderate” impact rather than an impairment.

As in Mainella, the reasoning provided offers the Court, and the

public, little or no basis for understanding why an identified

impact fails to rise to the level of an impairment.

; see Greater Yellowstone Coalition,

(“NPS entirely fails to explain why a finding of minor,

moderate, and major adverse impacts on soundscapes does not

constitute impairment. . . .”).

Finally, there is no discussion in the EA of why national

water quality standards, which, by definition, apply to the whole

-51- country, provide the appropriate benchmarks for assessing impacts

to the Gulf Islands park. The EA’s reasoning is tethered to the

national standards at every turn, from the calculation of

acceptable volume thresholds to the definition of each impact

level, but there is no explanation of why those uniform national

standards should be applied to impacts within this park. See

Greater Yellowstone Coalition,

; GUIS-00170

(noting that to determine impairments, NPS must “evaluate ‘the

particular resources and values that would be affected’”) (citing

2001 NPS Policies). NPS must articulate why, in carrying out its

obligation to evaluate park-specific impacts, it relies on water

quality standards that apply to a range of locations across the

country. NPS offers no link between the national standards and

standards (if they exist) that would be appropriate to the national

park system as a whole, as well as those that would be appropriate

to the values and resources of a specific park. In short, to

reason that an impact is not an impairment in part because it does

not reach a certain standard without explaining why that standard

is the right one omits a critical step in the agency’s reasoning.

4. Air Quality

NPS’ air quality analysis followed much the same methodology

as its water quality analysis. After considering the national

ambient air quality standards (“NAAQS”) set forth in the Clean Air

Act, as well as additional protections required by the Organic Act

-52- and 2001 Management Policies, GUIS-00290, NPS estimated emissions

for several polluting compounds produced by jetskis.

at 00290-

91. As with its analysis of water quality, the agency then

identified impact thresholds for these pollutants, ranging from

“negligible” to “impairment.”

. NPS concluded that

adverse impacts to air quality under Alternative B would be

negligible for 2002 and 2012, the same conclusion that it reached

for Alternative A (reinstatement of jetskis as previously managed).

GUIS-00302-03.

Negligible adverse impacts, according to NPS, are those where

“[e]missions would be less than 50 tons/year for each pollutant”

and “[t]he first highest 3-year maximum for each pollutant is less

than NAAQS.”

. The EA does not explain how NPS

arrived at a standard of 50 tons/year. The agency stated that

NAAQS standards, as well as “additional protection” beyond the

Clean Air Act provided by NPS under Management Policies and the

Organic Act,24 would serve as benchmarks for air quality. GUIS-

00290. It provided the NAAQS values for a range of pollutants in

table form.

(Table 7). The table shows that the

standards for each pollutant vary markedly. For instance, the

NAAQS maximum is 100 micrograms per cubic meter for nitrogen

dioxide, 50 micrograms per cubic meter for particulate matter, and

15 micrograms per cubic meter for fine particulate matter.

In

24 This “additional protection” is never described.

-53- the face of those greatly varying values for each pollutant, the

impact baselines are uniform, requiring less than 50 tons/year for

each pollutant in order to support a conclusion of even negligible

impacts. As noted, there is no explanation of where that number,

50 tons/year, is derived from, or why it applies uniformly to

pollutants whose national standards differ so significantly.

Defendants and Intervenors do no more than simply assert that

NPS conducted the proper analysis of these impacts. See

Intervenors’ Mot. at 27 (“[T]his approach produced results that

still found only negligible impacts on air quality.”); Defs.’ Reply

at 7 (“Even under [a] more conservative approach, the data revealed

that PWC use will result in only negligible impacts on air

quality.”). Their arguments do little more than repeat the

conclusions of the EA, without addressing whether NPS used

conclusory terminology to justify its conclusions or otherwise

failed to explain how the facts found related to the conclusions

reached. In conducting an APA review, the Court must carefully

scrutinize the administrative record to ensure that its examination

is the sort of “thorough, probing, in-depth review” required by the

statute. Overton Park,

; Midtec,

.

As with its water quality decision, NPS failed to provide a

rational link between its objective factual data and its ultimate

conclusions regarding non-impairment. It is virtually impossible,

without further explanation, to discern how the same tonnage cutoff

-54- of 50 tons/year supports a non-impairment finding for all

pollutants even though the NAAQS for them vary greatly, as already

discussed. Without such information, NPS’ reasoning is opaque, at

best, and its final determinations are impermissibly conclusory.

See also Mainella,

.

An additional difficulty with its analysis is NPS’ failure to

make clear, as discussed earlier, why NAAQS represents the

appropriate benchmarks for national parks. Those standards are

national air quality maximums, and those appropriate for national

parks, and particular national parks, may be very different and may

be much lower. What is more, NPS admits that “specific park air

quality related values can be adversely affected at levels below

the national standards or by pollutants for which no standard

exists,” and notes that this is why the Organic Act and 2001

Management Policies offer “additional protection beyond that

afforded” by NAAQS. GUIS-00290. However, those additional

protections are never identified or discussed. NPS analyzes

impairments only with reference to standards imposed by EPA.

Finally, as with its water quality analysis, one is left to wonder

how following the national air quality standards allows NPS to

comply with its own internal policy to “perpetuate the best

possible air quality.” 2001 Management Policies at 4.7.1 (emphasis

added); see Greater Yellowstone Coalition,

.

-55- 5. Soundscapes

The EA’s analysis of impacts to soundscapes fares no better.

In announcing the standards against which the impacts will be

evaluated, NPS cites to

(2006). GUIS-00305. As it

existed then, that regulation provided, “[o]perating a vessel in or

upon inland waters so as to exceed a noise level of 82 decibels

measured at a distance of 82 feet (25 meters) from the vessel is

prohibited.”

(2006). Although NPS noted that this

regulation was “developed for enforcement purposes, not impact

assessment purposes,” its acknowledgment that the regulation “sets

a limit for maximum allowable noise, but does not imply that there

are no noise impacts from vessels operating below that noise

level,” is very significant. GUIS-00305. Apart from this

regulation, the EA mentions only internal Management Policies and

Director’s Orders as guiding policies.25

. In

25 The 2001 Management Policies instruct NPS to “take action to prevent or minimize all noise that, through frequency, magnitude, or duration, adversely affects the natural soundscape or other park resources or values, or that exceeds levels that have been identified as being acceptable to, or appropriate for, visitor uses at the sites being monitored.”

.9 (emphasis added). According to Director’s Order 47: Soundscape Preservation and Noise Management, NPS must implement policies that require, “to the fullest extent practicable, the protection, maintenance, or restoration of the natural soundscape resource in a condition unimpaired by inappropriate or excessive noise sources.”

at “Purpose and Background” (quoted at GUIS-00304) (emphasis added). According to NPS, a “key concept [in both policies] is the purpose for which a park was established.” GUIS-00305.

-56- addition, certain state limitations dictate the time and usage area

of PWC use.26

.

The analysis centered on the context, time, and intensity of

PWC noise levels. Context included consideration of other noise-

producing activity at the park, such as non-PWC watercraft,

military planes, commercial fishing boats, and large ships.

. Temporal factors included the time that PWCs are used

during the day and throughout the year, and the duration and

frequency of noise impacts.

To measure intensity, NPS relied on a study of PWC noise in

Glen Canyon National Recreation Area, and used its results to reach

its conclusions in the Gulf Islands EA. GUIS-00308.27 That study

found that “maximum sound levels for [a single] personal watercraft

at 25 meters (82 feet) ranged from approximately 68 to 76

decibels.”

. According to the EA, these totals do not

“exceed existing noise standards,”

although NPS is not

specific as to whether this conclusion is based upon the standard

set in

, or some other measurement.

26 Florida restricts the time during which jetskis can be used: PWCs “cannot be operated from one-half hour after sunset to one-half hour before sunrise.” GUIS-00305. Mississippi imposes a restriction on usage areas: PWCs are “restricted to flat-wake speed within 100 feet of any small craft, marina, public boat launch ramp, or behind a water skier.”

27 The EA does not indicate whether Glen Canyon National Recreation Area is sufficiently similar to Gulf Islands that decibel data from the former park can be used to measure decibel levels at the latter park.

-57- All these considerations were incorporated into the creation

of impact thresholds that ranged from “negligible” to “impairment.”

. By way of illustration, NPS used the following

description of a moderate impact:

In areas where management objectives call for natural processes to predominate, natural sounds would predominate, but motorized noise could occasionally be present at low to moderate levels. In areas where motorized noise is consistent with park purpose and objectives, motorized noise would predominate during daylight hours and would not be overly disruptive to noise-sensitive visitor activities in the area; in such areas, national sounds could still be heard occasionally.

Assessing Alternative B, NPS determined that “[n]oise from

[PWC] would be short-term in duration but would be expected to

occur over the long-term. Impacts would be negligible to minor

adverse depending on the location, [sic] within the unit, the time

of day, and the time of year.”

.

As with water quality, there is no explanation as to why the

standards announced in

are appropriate, or if they

are the standards actually used by NPS--a point never made entirely

clear in the EA. NPS introduces the § 3.7 standards with caveats

as to their applicability, but then appears to proceed to use them

as benchmarks. See GUIS-00173; 00305 (“This regulation sets a

limit for maximum allowable noise, but does not imply that there

are no noise impacts from vessels operating below that noise

level.”). Without further explanation of how the regulations

-58- factor in to the creation of impact thresholds and the impairment

analysis, if at all, the reasoning is flawed under the APA.

Additionally, the impairment thresholds are not connected to

any objective standards that have been announced or evaluated. For

instance, PWC noise representing a minor impairment in areas where

noise is expected is that which “could be heard frequently

throughout the day at moderate levels, or infrequently at higher

levels, and natural sounds could be heard occasionally.” GUIS-

00311. There is no way of knowing the objective meaning of

“frequently,” “moderate levels,” or any other qualifiers. The EA

offers the same analysis in describing other impact thresholds. As

the Mainella Court reasoned, “[a]n unbounded term cannot suffice to

support an agency’s decision because it provides no objective

standard for determining what kind of differential makes one impact

more or less significant than another.”

.

The quantitative data presented also exposes difficulties with

NPS’ reasoning. Tables 50 and 51 of the EA report the decibel

levels for PWC use in the Florida and Mississippi areas of the

park. GUIS-00309. At the Perdido Key Area, the operation of 25

PWCs at a distance of 25 meters, which, according to the EA,

represents peak usage for that area, creates 90 decibels of noise,

far above the limit set in

.

, 00308-

09. Worse yet, NPS expects an increase to 63 PWCs, operating at 94

decibels, by 2012. GUIS-00309.

-59- On a “typical summer day,” visitors can expect to encounter

four to five jetskis at Perdido Bay.

. According to

the EA, one jetski produces 76 decibels of noise at a distance of

25 meters, and two produce 79 decibels at the same distance.28 The

tables do not indicate the anticipated noise level for a typical

summer day at each location where there will be four to five

jetskis. However, what is clear is that on the peak days, noise

levels will exceed the standard announced in

--82

decibels of noise at 25 meters (82 feet). See GUIS-00309 (Tables

50 and 51).

There is no explanation as to how these peak days, where the

standard for 25 meters is plainly exceeded in Florida and

Mississippi areas, see GUIS-00306, factor into the soundscape

impairment analysis. The EA acknowledges that under Alternative B

(reinstatement of jetskis with certain limitations on their use),

the types of adverse impacts “would be generally the same as

alternative A.” GUIS-00314. It states that the flat-wake zone

would minimize these impacts for shoreline users, but says nothing

about the impact on visitors who are far enough from shoreline but

still within 25 meters of PWCs on peak days, or the impact on days

28 The GUIS EA includes a table of commonly experienced sounds in order to provide a meaningful understanding of decibel levels. The sound level of two PWCs (79 decibels), which is below the number expected on a typical day, is roughly equivalent to the sound emitted by an “automatic dishwasher” or vacuum cleaner, and being “near [a] drilling rig.” GUIS-00232 (Table 8).

-60- where enough jetskis are aggregated so that permissible noise

levels are exceeded. Finally, there is no explanation as to why

decibel levels at greater distances are consistent with the non-

impairment finding; indeed, there are no announced numerical

standards such as those contained in § 3.7, other than for decibel

levels at 25 meters. Nor is it explained why noise that is “short-

term” in duration but occurs regularly over the long-term still

represents only a negligible to minor impact. See GUIS-00315.

According to Defendants and Intervenors, the EA conducted an

adequate analysis of the impacts on soundscapes at Gulf Islands.

The Government argues that “NPS initially described the impairment

standard for each resource studied, completed an extensive analysis

of that resource and reached an informed and rationally based

decision as to whether impacts from PWC use result in impairment.”

Defs.’ Mot. at 34. Describing the soundscapes analysis as it

relates to Plaintiffs’ NEPA challenge--which is the only context in

which Defendants devote any specific attention to the issue–-the

Government merely repeats the findings made for Pictured Rocks and

then asserts that there were similarly rational conclusions reached

at Gulf Islands. Id. at 22-23; Defs.’ Reply at 7-8.

Defendants and Intervenors argue that the EA analysis

rationally took into account PWC distribution and ambient noise

throughout the park in deciding that jetskis did not represent an

impairment to soundscapes. Intervenors’ Mot. at 4-5, 27-29.

-61- However, the mere cursory recitation of NPS findings falls far

short of the kind of explanation required to overcome an APA

challenge. Intervenors rely in large part on the future conversion

from two-stroke to quieter four-stroke engines, which, as noted

earlier, raises an additional set of questions. They attempt to

minimize the impacts to soundscapes by citing to the eventual

transition to quieter engines. However, any argument based on this

transition ignores the fact, noted earlier, that NPS properly

elected to take a “conservative” approach to the analysis,

, and relied only on data from the louder, older two-

stroke engines in making calculations for 2012. GUIS-00313. The

conversion to four-stroke engines was not a reason relied upon by

the agency in arriving at its non-impairment finding, and therefore

it cannot be relied upon by Intervenors as a post-hoc

rationalization. State Farm,

(“It is well-

established that an agency’s action must be upheld, if at all, on

the basis articulated by the agency itself.”).

6. Vegetation

The analysis of impacts to shoreline and sub-aquatic

vegetation suffers from many of the same infirmities already

discussed. NPS internal policies relied upon in the EA call for

natural shoreline processes to “continue without interference.”

GUIS-00315. The agency is to mitigate the effects of any

activities that alter these processes, and “restor[e] natural

-62- conditions.”

Under Executive Order 11,990, federal agencies

must “avoid short- and long-term adverse impacts associated with

the destruction or modification of wetlands whenever possible.”29

Id. at 00315-16.

NPS has relied solely on these standards for the crafting of

impact thresholds. NPS acknowledged in its vegetation analysis

that there would be increased PWC use by 2012 which would heighten

the impacts on vegetation. Nonetheless, the agency concluded that

no impairment would occur, and that effects on vegetation both on

the shoreline and in the water would be negligible to minor. Id.

at 00321. A negligible impact was defined as one where “[n]o

shoreline vegetation or submerged aquatic vegetation communities

are present in areas likely to be accessed by personal watercraft;

no impacts or impacts with only temporary effects are expected.”

A minor impact is one where “[o]ccasional impacts are expected, but

with no impacts or very limited impacts that are not expected to

threaten the continued existence of plant species or viable

functioning communities within the national seashore.” Id. at

00316-17.

In its analysis of Alternative B, NPS states that the flat-

wake restriction would minimize impacts, but that nearly half of

the potential seagrass habitat within the Florida portion of the

29 In addition to the requirement to preserve shoreline and aquatic flora, NPS recognizes that Gulf Islands’ vegetation serves as important habitat for a variety of animal species. See, e.g., GUIS-00240 (fish), 00244 (manatee), 00246 (terrestrial mammals).

-63- park “would be open to full-throttle PWC use.” Id. at 00320-21

(explaining that one-quarter of Mississippi seagrass would be

exposed). The effectiveness of the restrictions is immaterial if

there is no explanation of why certain PWC activity that has the

potential to cause such serious “direct impacts” as “collision,

uprooting, and sediment alteration” in nearly half of Florida’s

seagrass does not rise to the level of an impairment. Id. at

00320. There are no objective standards given by which the level

of impact can be gauged. The language in the impact thresholds is

impermissibly conclusory,30 and fails to provide any necessary

rational connection between the finding of non-impairment and the

data observed.

7. Wildlife

The EA’s wildlife analysis addresses impacts to habitats, the

effects that PWC noise has on aquatic fauna, and the impacts on

threatened, endangered, or other special status species. A central

difficulty with the analysis of impact to habitats resembles a flaw

30 Additionally, as Plaintiffs observed at oral argument, Tr. at 22, there is no explanation why, for an impact to rise to the level of an impairment, the damage to “the shoreline or shallow water environment” “must be so severe that the park’s shoreline or submerged vegetation would no longer function as a natural system,” GUIS-00323. The agency fails to explain why impacts should need to reach such a seemingly drastic point to trigger the protections of the Organic Act. See 2001 NPS Policies at 1.4.5 (defining impairment as “an impact that, in the professional judgment of the responsible NPS manager, would harm the integrity of park resources or values, including the opportunities that otherwise would be present for the enjoyment of those resources or values”). “Impairment” does not necessarily mean destruction.

-64- in the vegetation analysis: an impairment at Gulf Islands occurs

only when impacts are so intense or sustained that they result in

“the elimination of a native species or significant population

declines in a native species.” GUIS-00323. The fact that NPS

provides a definition for an impairment in this context implies

that all other possible impacts--from “negligible” to “major”--do

not qualify as an impairment of park resources. Conceivably,

therefore, under NPS’ reasoning, a finding that PWC use represents

a “major” impact, where “[m]ortality and other effects are expected

on a regular basis,” would be fully consistent with the Organic

Act, as it would not rise to the impairment level set forth in the

EA. How can such a draconian definition of impairment be

consistent with the agency’s obligation under the Organic Act 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”?

(emphasis added).

Additionally, NPS concedes that under Alternative B “PWC use

in areas providing essential fish habitat could disrupt normal

feeding and other critical life functions of fish and shellfish

species and could adversely affect suitability of these areas to

meet life cycle requirements.” GUIS-00328. Nor does NPS indicate

how such threats to wildlife are consistent with its management

goal to “maintain[] components and processes of naturally evolving

-65- national seashore ecosystems, including natural abundance,

diversity, and the ecological integrity of plans and animals.”

.

In assessing the impact of noise on aquatic fauna, NPS reports

that flat-wake restrictions are expected to reduce some of the

impacts on marine life. However, the EA recognizes that “[m]arine

mammals and sea turtles are likely to occur outside of [this zone],

and could still be exposed to significant levels of PWC noise.”

. That noise, when created by 25 PWCs in one area, is

equivalent to 152 decibels underwater; when two PWCs are in one

area, the decibel level only drops to 141. See

(Table

52). When exposed to less than one hour of continuous PWC noise at

96 decibels, bottlenose dolphins experience “substantially reduced

echolocation and communication abilities.”

.

Therefore, when exposed to the noise from just two jetskis, which

is far less than the expected number on a typical summer day, the

bottlenose dolphins would experience “substantially reduced

echolocation and communication abilities.” As NPS reports,

bottlenose dolphins are “the most common marine mammal documented

in the waters of the national seashore, both in Florida and

Mississippi.”

.

Nevertheless, NPS concluded that Alternative B presented only

“long-term, minor to moderate, adverse impacts to aquatic fauna.”

. NPS uses the same definition of these terms as it

-66- used to analyze the impacts to habitat; no definitions have been

tailored to the impacts due to noise alone, despite the fact that

NPS is able to calculate underwater decibel levels caused by PWC

use and then assess the impact of varying underwater levels on

fauna. There is no mention of how the impact on bottlenose

dolphins, or any other species, is related to the non-impairment

determination for wildlife. No reasoning is offered to make clear

the connection between the data and the conclusion.

Finally, NPS reports the potential impacts to a range of

threatened, endangered, or other special status species. Gulf

Islands is “a permanent or seasonal home to 29 state or federal

threatened, endangered, or species of special concern animals and

plants.”

. NPS’ inquiry was guided by the Endangered

Species Act, whose language it adopted in creating impact

thresholds. The agency then discusses the expected impact that

each alternative would produce on the protected flora and fauna.

. The EA relies heavily on the flat-wake

restrictions in concluding that re-introducing PWCs to Gulf Islands

under Alternative B “would be unlikely to adversely . . . affect

any federally or state-listed species.” GUIS-00350. For these

reasons, the Court concludes that NPS’s explanation with respect to

this impact does not contain the same defects as other aspects of

the wildlife analysis.

-67- 8. Visitor Use and Safety

NPS examined PWCs’ effects on visitor use of the park, as well

as the impacts on visitor safety and conflicts. For each, NPS

largely followed the methodology described above, announcing

baselines, stating its assumptions, and describing impact

thresholds on a scale from “negligible” to “major.” (No definition

of impairment was provided.) See GUIS-00350-71.

The language used in the impairment thresholds again presents

a problem for NPS’ analysis. For instance, a “moderate” impact

means that “[c]hanges in visitor use and experience would be

readily apparent and likely long term.”

. The agency

explained that under its Management Policies, it recognizes a duty

to “provide opportunities for forms of enjoyment that are uniquely

suited and appropriate to the superlative natural and cultural

resources found in the particular unit.”

. There is

no explanation as to why moderate adverse impacts do not rise to

the level of an impairment, even though such impacts could lead to

a situation where “[s]ome visitors who desire to continue their use

and enjoyment of the activity . . . would be required to pursue

their choice in other available local or regional areas,” i.e.,

they would be driven out of the park.

.

While NPS does examine individual activities in the park, such

as PWC use, swimming, non-motorized boating, and fishing, it never

connects its obligations under the Organic Act and duties under its

-68- own policies to the language defining the impacts. As in Mainella,

the terms used to describe NPS final assessments are merely

“indeterminate and conclusory.”

.

The EA is similarly flawed in its analysis of impacts on

visitor safety and conflicts. The conclusory labeling of impacts

bears no identifiable relationship to NPS’ guiding policies, and

therefore the agency’s determination of impacts on various aspects

of visitor experience cannot be meaningfully reviewed. In

describing impact thresholds, NPS states that “[w]here impacts to

visitor experience or visitor safety become minor or moderate, it

is assumed that current visitor and safety levels would begin to

decline and the park would not be achieving some of its long-term

visitor goals.”31 Id. at 00364. This significant description of

“minor or moderate impacts” is never connected to the impairment

conclusions reached by NPS. Instead, adverse impacts that are

“long-term” and “minor” are simply declared with no discussion of

why they do not rise to the level of impairments. See id. at

00370.

For all the foregoing reasons, the Court concludes that the

impairment analysis and NPS conclusions of Alternative B’s impact

31 In setting forth its “guiding regulations and policies,” the agency reports that among the internal long-term goals included in NPS’ Strategic Plan is “reduc[ing] the visitor safety incident rate 10% from 1997 levels.” GUIS-00353. There is no discussion of how the anticipated decrease in visitor safety levels associated with minor adverse impacts is related to the goal of reducing the visitor safety incident rate.

-69- as to water quality (“negligible adverse”), air quality

(“negligible adverse” to “minor adverse”), soundscapes (“negligible

to minor adverse”), shoreline and submerged aquatic vegetation

(“negligible adverse”), wildlife (“negligible” and “minor to

moderate” adverse), and visitor use and experience (beneficial for

PWC users and adverse for non-users) are profoundly flawed. See

Mainella,

; see also Greater Yellowstone

Coalition,

(“While the Court will defer to

an agency’s exercise of expertise, the ‘Court will not defer to the

agency’s conclusory or unsupported assertions.’”) (quoting

McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force,

(D.C. Cir. 2004)).

In summary, the Court concludes that the GUIS Final Rule,

which relies upon the conclusory analysis in the EA, is arbitrary

and capricious because NPS’ conclusion that PWC use would result in

non-impairment under the Organic Act is not based on reasoned

explanations. The case will be remanded to NPS so that it may have

an opportunity to provide adequate reasoning for its conclusions.

See MCI Telecomm. Corp. v. FCC,

(D.C. Cir. 1998);

Mainella,

.

D. NEPA

Both the National Jetski Rule and the Settlement Agreement

provide that NPS must comply with NEPA’s specific procedural

requirements for exercising its rulemaking authority regarding re-

-70- introduction of PWCs into PIRO and/or GUIS. NEPA is a procedural

statute designed to ensure that decision-makers in federal agencies

are fully informed about the environmental impact of decisions they

are considering and that the deliberative process in environmental

matters is subject to public review and comment. See Robertson v.

Methow Valley Citizens Council,

(1989) (“The

sweeping policy goals announced in § 101 of NEPA are thus realized

through a set of ‘action-forcing’ procedures that require that

agencies take a ‘hard look’ at environmental consequences . . . and

that provide for broad dissemination of relevant environmental

information. Although these procedures are almost certain to affect

the agency’s substantive decision, it is now well settled that NEPA

itself does not mandate particular results, but simply prescribes

the necessary process.”) (citation and quotations omitted); see

also Greater Yellowstone Coalition,

.

The Council on Environmental Quality promulgates regulations

that provide guidance to federal agencies for their implementation

of NEPA. Agencies must prepare an EIS for “every recommendation or

report on proposals for legislation and other major Federal actions

significantly affecting the quality of the human environment.”

(2)(C). CEQ has issued regulations that govern the

format and content of an EIS. See

(listing

guidelines). In an EIS, the agency must “take a ‘hard look’ at the

environmental consequences before taking a major action.”

-71- Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,

(1983) (citations omitted).

An EIS is not prepared as a matter of course; the EA, which is

a less thorough report, may suffice in certain situations.

Monsanto Co. v. Geerston Seed Farms, __ S. Ct. __,

(June 21, 2010). The EA is a “concise public document” that

“[b]riefly provide[s] sufficient evidence and analysis for

determining whether to prepare an environmental impact statement or

a finding of no significant impact.”

(a). After

completion of an EA, an agency may conclude that no EIS is

necessary. If so, it must issue a FONSI, stating the reasons why

the proposed action will not have a significant impact on the

environment.

at § 1501.4(e).

Courts reviewing the decision not to produce an EIS apply the

same standard of review--arbitrary and capricious--as they do under

the APA. See Dep’t of Transp. v. Pub. Citizen,

(2004) (“An agency’s decision not to prepare an EIS can be set

aside only upon a showing that it was ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.’”);

Town of Cave Creek, Ariz. v. FAA,

(D.C. Cir.

2003).

1. “Hard Look”

Courts evaluating the agency’s decision under NEPA consider

whether the agency has met four requirements:

-72- First, the agency [has] accurately identified the relevant environmental concern. Second, once the agency has identified the problem it must have taken a “hard look” at the problem in preparing the EA. Third, if a finding of no significant impact is made, the agency must be able to make a convincing case for its finding. Last, if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that the changes or safeguards in the project sufficiently reduce the impact to a minimum.

Cave Creek,

(citations and quotations omitted).

Plaintiffs argue that the agency failed to meet the first

three requirements. Pls.’ Mot. at 40-42. Their chief contention

is that in the EAs for both parks, NPS failed to take the requisite

“hard look” at the “relevant environmental concern.” See id. at

40-41; Pls.’ Reply at 2, 18.

As an initial matter, the Court finds that, as in Mainella,

NPS’ “impairment analysis [under the Organic Act] served as its

NEPA analysis.”

. Two reasons support this

finding. First, the EAs made no attempt to distinguish their

impairment analysis from their NEPA analysis; they simply presented

the data and stated their conclusions as to impairments. Cf. GUIS-

00572 (stating in FONSI that “[t]he [EA] was prepared in accordance

with [NEPA].”) Second, Defendants rely on the same reasoning in

making arguments under the Organic Act as they do under NEPA. See

Defs.’ Mot. at 18-24; 29-34 (describing EAs’ impairment analysis

in making arguments under Organic Act and NEPA); Pls.’ Mot. at 40

-73- (advancing NEPA argument by referencing arguments made under

Organic Act).

For all the reasons stated supra in Section III.C, Defendants’

analysis in the GUIS EA was conclusory, internally inconsistent,

and failed to adequately explain the connection between objective

facts and conclusions reached. Thus, the agency failed to take the

“hard look” required by NEPA. Mainella,

.

Therefore, both the Final Rule and FONSI for GUIS, which relied on

the inadequate reasoning contained in the EA, were arbitrary and

capricious, and an abuse of discretion. Consequently, the

decisions are remanded to the agency so that NPS may provide

reasoning consistent with this Opinion.

NPS prepared an EA for Pictured Rocks,32 as it did for Gulf

Islands, and issued a FONSI and Final Rule concluding that

Alternative B is the preferred policy. Restricted PWC use is

therefore now allowed within the park.

. As

described above, the restrictions limited the time, location, and

manner of jetski operation. As with the Gulf Islands EA, NPS took

into account “guiding policies and regulations,” explained its

methodologies, set forth impact thresholds that categorized the

magnitude of impacts (e.g. negligible, minor, moderate, major, or

impairment), analyzed data, and announced its conclusion regarding

32 It will be remembered that Plaintiff Robert Goodman (as well as all other Plaintiffs) has standing, under the Settlement Agreement, to challenge on NEPA grounds, the Final Rule issued by NPS’ for PIRO.

-74- impairments. See, e.g., PIRO-00077-88 (analyzing impacts to water

quality).

Unfortunately, the Pictured Rocks EA suffers from the same

deficiencies as the EA prepared for Gulf Islands. For instance, in

analyzing water quality, NPS was guided by the same basic policies

and regulations as it was at GUIS--EPA national standards and

regulations, as well as state and local statutes.

.

An additional consideration for PIRO is Michigan’s declaration that

the the waters at PIRO are “outstanding state resource waters.”

. As a result, their quality cannot be lowered

(although short-term, temporary lowering of water quality may be

permitted on a case-by-case basis).

Nonetheless, the analysis at PIRO is nearly identical to that

conducted for GUIS, although NPS did not claim to be guided by any

similarly strict regulation prohibiting any lowering of water

quality. The impact thresholds contain language as repetitive as

that used for GUIS. See PIRO-00082. Of particular significance is

the fact that at PIRO, as at GUIS, there is no explanation of how

those impact thresholds relate to the impairment finding, nor why

the national water quality standards are appropriately applied to

Pictured Rocks, instead of site-specific ones. As already noted,

Michigan regulations require that water quality not be lowered.

The EA found that negligible to minor adverse impacts would occur

in the area of the park where PWC use is permitted under

-75- Alternative B, yet NPS concluded that no impairment would result.

Further, NPS conceded in the EA that there “would be a concern for

aquatic life” from the cumulative impact of all watercraft use at

certain areas of the park.

. Without a clearer link

between the national and state standards, the announced impact

thresholds, and the conclusions reached, the water quality analysis

does not hold together logically.

The air quality analysis in the Pictured Rocks EA repeats

nearly verbatim the background, methodology, and impact thresholds

that were used in the Gulf Islands EA. Compare PIRO-00088-96 to

GUIS-00288-299. For example, both EAs define a negligible impact

as one that results in less than 50 tons/year of each pollutant,

PIRO-00092; GUIS-00293, and both look to the NAAQS as a benchmark

for emissions, PIRO-00089; GUIS-00289.

NPS did calculate park-specific PWC emissions for PIRO, but

the specific calculations do not salvage the analysis. As with

GUIS, the problem lies in the connection of this data to the

conclusions reached. As with GUIS, there is no explanation of how

the tonnage cutoff for each impact threshold was determined--e.g.,

why was 50 tons/year chosen to reflect a “negligible” impact?

Similarly, the EA never states why a uniform cutoff value is used

for each impact threshold (e.g. 50 tons/year is negligible, 100

tons/year is minor), given the fact that the emissions benchmarks

for each pollutant vary under the NAAQS. The reasoning is

-76- inadequate, and therefore reflects NPS’ failure to take a “hard

look” at the problem and reach a reasoned, logical conclusion.

The soundscapes analysis for PIRO is even more problematic

than that conducted by Defendants for GUIS. The Pictured Rocks EA,

which was produced in 2002, did not use the most recent data

collected by NPS in its 2001 study of PWC noise levels. As a

result, there is little data presented that measures decibel levels

at PIRO.33 As in the GUIS EA, NPS announces that

is

one of the guiding regulations and policies undergirding its

analysis; that regulation prohibits operating watercraft on inland

waters where the noise level exceeds 82 decibels at 82 feet.

Despite the reliance on this standard, NPS admits that PWC

operators at PIRO, who commonly travel in pairs as a safety

measure, create 85 decibels of noise, thereby exceeding the

regulation’s limit.34 PIRO-00103 (describing Alternative A, which

NPS admits has the same impacts as Alternative B, except that

Alternative B affects a smaller area of the park).

33 The GUIS EA relied on scientific literature and NPS studies conducted in other parks, and then reported the decibel values in numerous tables, see GUIS-00305, 00309. PIRO’s EA merely states that PWCs “have been measured to emit 85 to 105 [decibels] per unit, which may disturb visitors,” then reports the regulatory guidelines (82 decibels at 82 feet), and sets forth findings on noise levels from a 1974 study conducted by the EPA. PIRO-00101. There is no attempt to conduct the type of quantitative analysis that was conducted for Gulf Islands. 34 NPS reports that at 200 feet, the noise is reduced to 77 decibels.

-77- In addition, there is no discussion as to how exceeding the

decibel limit in its own regulations can possibly be consistent

with a finding of “negligible adverse impacts.”

. Nor

does the EA explain how the impact levels relate to the standards

that guide NPS’ inquiry. As with GUIS, the analysis and conclusion

are impermissibly conclusory, and therefore do not satisfy NEPA’s

requirements.

The analysis of impacts to Pictured Rocks’ wildlife and

wildlife habitats closely resembles the analysis conducted for Gulf

Islands. As in the GUIS EA, the PIRO EA never explains why, for an

impact to rise to the level of an impairment, the impact’s

“severity, duration, and timing result[s] in the elimination of a

native species or significant population declines in a native

species, or [it] preclude[s] the park’s ability to meet recovery

objectives for listed species.”

. For instance, an

adverse “moderate impact” does not, according to NPS, rise to the

level of an impairment, even though a moderate impact is one where:

Breeding animals are present; animals are present during particularly vulnerable life stages such as migration or juvenile stages; mortality or interference with activities necessary for survival are expected on an occasional basis, but are not expected to threaten the continued existence of the species in the park.

PIRO-00107. As in Greater Yellowstone Coalition, NPS fails to

explain why lesser adverse impacts, like the moderate impact

described above, might not qualify as an impairment, 577 F. Supp.

-78- 2d at 201. Without such an explanation, the EA’s discussion of

impacts to wildlife does not represent a “hard look” at the

problem.

Additionally, although the EA claims that its impact

thresholds describe impacts of “PWC use and noise on wildlife and

habitat,”

no discussion of noise’s effect on wildlife actually

appears in its analysis.35

. Where NPS at least

attempted to assess such impacts at Gulf Islands, it merely

includes a cursory mention of the potential problem in the PIRO EA

without incorporating it into its analysis. See

Thus, the EA

again fails to satisfy NEPA’s requirements to fully analyze the

impact of noise on wildlife at PIRO.

The examination of shoreline vegetation in the PIRO EA shares

the same central defect that was present in the GUIS EA. NPS was

guided by the same regulations and policies at PIRO as it was at

Gulf Islands (in addition to Michigan state laws36)--i.e., NPS

internal policies and an executive order regarding protection of

35 NPS listed impact topics that it eliminated from further consideration. See PIRO-00031. The impact of noise on wildlife does not appear on that list. 36 One of the state laws is the Personal Watercraft Safety Act, described supra, which does not provide benchmarks or standards for the protection of vegetation; rather, it curbs PWC operation. The other Michigan law is a management plan implemented under the Coastal Zone Management Act of 1972,

. According to the EA, “[t]here are no coastal zone management regulations or policies that specifically relate to PWC use on Lake Superior.” PIRO-00115.

-79- wetlands. Those policies seek to ensure that “[n]atural shoreline

processes . . . continue without interference.”

.

According to NPS, a “moderate” impact would result in a

localized “change in the plant community (e.g. abundance,

distribution, quantity, or quality)”--such an impact, however, does

not qualify as an impairment.

. The impact thresholds

describe certain scenarios, but never make clear why, for instance,

a change in the quality of a certain plant community, does not run

afoul of NPS’ stated mandate to preserve natural shoreline

processes without interference. What constitutes a “change in

plant community”? The threshold is vague, and therefore the Court

has no basis for reviewing the relationship between that threshold

and a “moderate” impact.

Finally, with respect to the impacts on visitors’ experience,

NPS again fails to meet NEPA requirements. The flaws discussed

with regard to the GUIS EA apply to the PIRO EA. As at Gulf

Islands, the impact thresholds for visitor experience do not

sufficiently explain why certain impacts do not rise to the level

of an impairment. A moderate impact, for instance, does not

represent an impairment, yet would result in a scenario where

“[c]ritical characteristics of the desired experience (such as

natural quiet) would be changed. . . . [v]isitor satisfaction would

begin to decline or increase [depending on whether the impact is

adverse or beneficial.]” PIRO-00121. There is no discussion of why

-80- allowing a change in “critical characteristics” is consistent with

NPS’ duty to prevent impairments, nor why a reduction in visitor

satisfaction (in the case of an adverse impact) comports with NPS’

stated goal to reach a level of 91% visitor satisfaction.

; see

(noting that PWC use was a chief source

of visitor complaints.) Without understanding how impact

thresholds are connected to NPS’ non-impairment mandate, the Court

is unable to meaningfully assess the agency’s conclusion that PWC

has a negligible adverse impact on visitor experience.

Additionally, in analyzing impacts to visitor conflicts and

safety, NPS fails to explain the connection between its impact

thresholds and “the guiding regulations and policies” that it

purports to follow. NPS states that when impacts become minor or

moderate adverse, “it is assumed that current visitor satisfaction

and safety levels would begin to decline and the park would not be

achieving some of its long-term visitor goals.”

. NPS

then concludes that PWC use would indeed have a minor adverse

impact on safety and visitor conflicts. According to the

assumptions behind the impact thresholds, NPS can therefore expect

a decline in safety levels as well as some failure to meet its

long-term visitor satisfaction goals. NPS failed to explain how

this is consistent with its obligation to prevent impairments.

Finally, there is no attempt to square its conclusions with its

-81- policy of “striv[ing] to protect human life and provid[ing] for

injury-free visits.”

.

The EA’s analyses of impacts to water quality, air quality,

soundscapes, vegetation, wildlife, and visitor experience37 all

relied on conclusory reasoning. NPS’ FONSI and Final Rule for PIRO

adopted the reasoning set forth in the EAs. Therefore, the FONSI

and the Final Rule are arbitrary and capricious; NPS failed to meet

its obligation under NEPA to take a “hard look” at the

environmental problem. The matter is remanded so that NPS may

provide reasoning consistent with the Opinion.

2. CEQ Factors

Under NEPA, an agency must prepare an EIS for “major Federal

actions significantly affecting the quality of the human

environment.”

(C). CEQ regulations set forth what

“significantly” means in this context.

. The

regulations require consideration of both the context and the

intensity of the proposed action.

Parties dispute whether NPS

appropriately considered three of the ten intensity factors listed

in the regulations.

According to CEQ, among the factors that “should be considered

in evaluating intensity” are: (1) “[t]he degree to which the

proposed action affects public health or safety;” (2) “[u]nique

37 It is not necessary to examine the other impact topics assessed in the PIRO EA: “cultural resources,” “socioeconomic effects,” and “national lakeshore management and operations.”

-82- characteristics of the geographic area such as proximity to

historic or cultural resources, park lands, prime farmlands,

wetlands, wild and scenic rivers, or ecologically critical areas;”

and (3) “[t]he degree to which the effects on the quality of the

human environment are likely to be highly controversial.”

(b)(2)-(4).

In its FONSI for each park, NPS discusses each factor and

states its conclusion as to why the proposed re-introduction of

jetskis would not “significantly” affect the quality of the human

environment. See GUIS-00572-582; PIRO-00193-199.

NPS’ analysis of two of the factors--the parks’ unique

characteristics and the effects on public health and safety--relies

on the impact assessments described in its EAs. See GUIS-00577-78;

PIRO-00197. For instance, the FONSI for Gulf Islands states that

“[t]he preferred alternative would have negligible adverse impacts

to water quality for all human health and ecotoxicological

benchmarks analyzed.” GUIS-00577. Similarly, in the Pictured

Rocks FONSI, NPS relied on conclusions from its EA in assessing

uniqueness, reporting that “[c]ontinued PWC use in the area near

the [Sand Point] wetlands would have negligible adverse impacts.”

PIRO-00197.

As discussed at length above, there are fundamental problems

with the reasoning in each EA. To the extent that NPS relies on

impairment assessments from the EA that have been found to be

-83- conclusory, it may not rely on these assessments to support its

analysis of the challenged CEQ significance factors. To do so

would be irrational and arbitrary and capricious.

NPS does not base its analysis of the third challenged

factor--“the degree to which the effects on the quality of the

human environment are likely to be highly controversial”--on

conclusions from the EA. Rather, NPS identified the controversial

effects that motivated the preparation of an EA at each park, and

then declared that “[t]here were no other highly controversial

effects identified during either preparation of the EA or the

public comment period.” GUIS-00578; PIRO-00198.

According to Plaintiffs, there is in fact evidence in the

record that the decision to again permit PWCs was a highly

controversial one. They cite to the sizeable number of public

comments, as well as letters from two state agencies, that favor a

PWC ban. Pls.’ Mot. at 38. Defendants and Intervenors dispute

Plaintiffs’ interpretation of the regulation, and argue that mere

opposition to a proposed action does not mean that the effects of

that action are highly “controversial,” as that term is used in the

CEQ regulations.

Properly understood, this term “refers to cases where a

substantial dispute exists as to the size, nature, or effect of the

major federal action rather than to the existence of opposition to

a use.” Cave Creek,

(quotations and citations

-84- omitted). As our Court of Appeals has said, although the term is

not defined in the regulations, “certainly something more is

required besides the fact that some people may be highly agitated

and be willing to go to court over the matter.” Fund for Animals

v. Frizzell,

, 988 n.15 (D.C. Cir. 1975). Therefore,

the opposition contained in the public comments referred to by

Plaintiffs does not render the effects of the proposed action

“highly controversial.”

Further, Plaintiffs are simply wrong, in this case, that there

was significant disagreement by state agencies which would trigger

this CEQ factor. See Pls.’ Mot. at 39. As Defendants and

Intervenors detail in their submissions, and as the record

reflects, the state agencies did not take issue with the “size,

nature, or effect” of the proposed action. Rather, the one-page

letter from the Michigan Department of History, Arts and Libraries

merely states that the Department “favor[s] the no-action

alternative.” PIRO-00319 (emphasis in original). No mention is

made of any disagreement with the analysis in the study.

Similarly, with respect to the removal of the ban at GUIS, the

Florida Department of State (Division of Historical Resources)

submitted only a one-page letter which stated that the no-action

alternative “would best protect and preserve cultural resources.”

GUIS-05826. These brief and summary statements do not represent

-85- the type of disagreement that qualifies as “highly controversial”

under CEQ regulations.38

Thus, on this record, the FONSIs’ analyses are so weak that it

cannot be determined whether an EIS should have been prepared.

Consequently, the FONSIs are remanded to the agency for further

analysis of the uniqueness and safety factors. Cf. Grand Canyon

Trust v. FAA,

(D.C. Cir. 2002) (“We remand the

case because the record is insufficient for the court to determine

whether an EIS is required.”). Defendants’ and Intervenors’

Motions for Summary Judgment are granted with respect to the

“highly controversial” factor.

E. Settlement Agreement

Plaintiffs’ final contention is that NPS violated the

Settlement Agreement in issuing its EAs, FONSIs, and Rules. The

Agreement requires that, before the agency re-introduces PWCs in

each park, it must issue “special regulations” as described in the

National Jetski Rule. Further, the process of adopting those

regulations must be consistent with “appropriate environmental

analysis under [NEPA].” The analysis will, “inter alia, consider

the impacts of PWC use in the particular unit.” Settlement

38 Additionally, it should be noted that both state agencies later demonstrated at least some support for the alternatives adopted by each EA. GUIS-05827 (stating that if the no-action alternative were not selected, “Alternative B would be the next preferred alternative”); PIRO-002534 (letter dated August 10, 2005, stating that the Department has “reviewed and approve[s] the revised Environmental Assessment”).

-86- Agreement at ¶¶ 3-4. Plaintiffs charge that NPS’ failure to

undertake a “hard look” analysis in its EAs, and its refusal to

conduct site-specific studies in the particular units, violated the

Settlement Agreement. Pls.’ Mot. at 40-42.

Plaintiffs’ argument that the language of the Settlement

Agreement mandates a more detailed “site-specific” study than was

contained in the EAs cannot prevail. Tr. at 42. The Agreement

called for NPS to conduct “the appropriate analysis” under NEPA and

noted that this would include consideration of impacts in the

“particular unit.” Settlement Agreement at ¶ 5. This language

does not require that NPS undertake park-specific studies in order

to analyze park-specific impacts. Rather, it requires that NEPA be

followed, and that impacts in the particular unit be considered.

Further, NPS may, consistent with that Act, rely on studies

conducted at other locations in order to assess impacts particular

to a given park. Young v. Gen. Serv. Admin.,

(D.D.C. 2000).

The Settlement Agreement compels NPS to comply with the terms

of NEPA, but requires no more than that. Therefore, the resolution

of this dispute does not differ from the outcome of the NEPA

claims. Defendants violated the Settlement Agreement to the extent

that their analysis did not meet NEPA’s “hard look” requirement,

and relied on conclusory reasoning to support its decision not to

prepare an EIS.

-87- IV. CONCLUSION

For the foregoing reasons, Intervenors’ Standing Motion for

Partial Summary Judgment is granted in part and denied in part,

Plaintiffs’ Motion for Summary Judgment is granted in part and

denied in part, Defendants’ Motion for Summary Judgment is granted

in part and denied in part, and Intervenors’ Motion for Summary

Judgment is granted in part and denied in part. An Order shall

issue with this Memorandum Opinion.

/s/ July 8, 2010 Gladys Kessler United States District Judge

Copies to: attorneys on record via ECF

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