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Updated: Dueling Judges Push Yellowstone National Park Snowmobile Limit Back to 720 Per Day

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Yellowstone National Park officials seemingly got creative in deciding which judge's snowmobile ruling to follow for the coming winter. NPS photo.

In one of the most bizarre public lands dramas in recent history, Yellowstone National Park officials Monday afternoon said they would allow up to 720 snowmobiles into the park every day this winter.

That decision came as park officials, who earlier this fall had their preferred winter-use plan tossed out the window by a federal judge in Washington, D.C., viewed a ruling on another snowmobile lawsuit filed in Wyoming as providing them another window to revert to their 2004 winter rules.

Groups that have fought to see recreational snowmobiling in Yellowstone phased out in favor of more environmentally friendly snow coaches immediately criticized the park's decision, saying Superintendent Suzanne Lewis had misinterpreted U.S. District Judge Clarence Brimmer's ruling and was failing to protect Yellowstone's resources as best she could.

"We thought we had seen the limit of unprincipled leadership regarding decisions related to winter use in Yellowstone and Grand Teton, but obviously we hadn't," reacted Bill Wade, who chairs the executive council of the Coalition of National Park Service Retirees when he learned of the park's decision.

"NPS leaders had every opportunity to do what is 'right' for the resources and uphold the preferences of the American public as a result of the D.C. Court decision. Instead, they've chosen to cherry-pick some language in the Wyoming Court's decision that they've decided allows them to do exactly the contrary," added Mr. Wade. "We hope the incoming leaders of the Department of the Interior and the NPS see all this for what it is and turn this train-wreck around. The world's first national park deserves better."

At The Wilderness Society, which long has lobbied for cleaner snow coaches in the park, Kristen Brengel had two words of comment: "Pure politics."

Yellowstone officials, however, countered that they were, in effect, following the wishes of both judges as well as providing the snowmobiling public with certainty that Yellowstone would indeed be open for them beginning on December 15, the planned start of the winter season, snow-cover allowing.

Judge Brimmer's decision "provides for access for this winter that can be planned on, and that provides that information 20-some days in advance of the planned start of the winter season, as opposed to our process, which had the potential to come up with a decision perhaps the day of the planned start of the winter season," Yellowstone spokesman Al Nash said Monday evening.

"Both judges have told us to look forward and we’re now trying, we’re beginning the process to see how we can move forward and come up with a sustainable, long-term plan for winter use management of the parks,” he added.

It was back in mid-September when U.S. District Judge Emmet Sullivan rejected the park's winter-use plan, saying it flew in the face of logic, the environment, and the National Park Service's own Organic Act.

"According to NPS's own data," wrote Judge Sullivan, "the (winter-use plan) will increase air pollution, exceed the use levels recommended by NPS biologists to protect wildlife, and cause major adverse impacts to the natural soundscape in Yellowstone. Despite this, NPS found that the plan's impacts are wholly 'acceptable,' and utterly fails to explain this incongruous conclusion."

Now, Judge Sullivan often is the environment-friendly judge that environmentally inclined groups seek out. His counterpart in Wyoming, Judge Brimmer, is the one pro-industry groups seek out. And while Judge Sullivan was ruling on challenges to the park's winter-use plan, challenges that said the park should follow the science and phase-out recreational snowmobiling, Judge Brimmer was faced with a lawsuit filed by the state of Wyoming and Park County, Wyoming, that questioned Yellowstone's ability not only to reduce the daily number of snowmobiles in the park but also a requirement that snowmobilers be led by commercial guides.

Now, what's particularly interesting about this judicial Ping-Pong is that Yellowstone officials seemingly are being particularly selective in which decision to follow.

Here's the conclusion of Judge Brimmer's ruling, which is attached below:

III. CONCLUSION

Based upon the foregoing, and for reasons previously stated therein, IT IS HEREBY ORDERED that the D.C. District Court's invalidation of the final rule shall remain undisturbed by this Court.

IT IS FURTHER ORDERED
that the NPS shall reinstate the 2004 temporary rule until such time as it can promulgate an acceptable rule to take its place.

In other words, Judge Brimmer acknowledges that he can't overturn Judge Sullivan's ruling regarding Yellowstone's winter-use plan. At the same time, he directs the park to follow the 2004 regulations "until such time as (Yellowstone) can promulgate an acceptable rule to take its place."

Now, Yellowstone officials have had the wheels in motion to do just that. Indeed, earlier this month the park released a winter-use plan that would allow up to 318 snowmobiles and as many as 78 snow coaches per day into Yellowstone for each of the next three winters.

This is what park officials said when they released that proposal: "Park managers believe an approach including both snowmobile and snowcoach access reduces impacts of both to acceptable levels. This environmental assessment addresses the impact concerns raised by the recent ruling of the U.S. District Court for the District of Columbia."

In Monday's release, however, Yellowstone officials took another tack, saying they were putting off implementation of their latest rule-making effort so they could better review public comment.

Ranger Nash said that while Yellowstone and Grand Teton officials were putting their EA process on the back burner, they planned to use comments from that process to help formulate a long-term winter-use plan. Whether such a plan will be in place before the winter of 2009-10 he could not say.

"Our planning goal has been to provide something that people can count on," said the park spokesman. "It's been an elusive goal in light of the continued legal challenges over the years."

As for the coming winter season, Ranger Nash added that Yellowstone officials really don't expect to see snowmobile traffic levels much beyond what they've seen the last two years, when daily averages were just under 300 snowmobiles.

When asked whether the snowmobile issue has become more rooted in politics than what's best for park resources, he offered this:

“That’s hard for me to determine. What I am confident saying is that the debate that surrounds winter-use in Yellowstone certainly seems to be focused on values, and not as often on the objective signs. And values discussions carry a great deal of investment and emotion. And we certainly see that reflected in every debate that involves this issue and these parks.

"Certainly, people’s political interests and leanings are part of their values. It’s hard to separate those for some people. And we’re caught up in that ‘value’ discussion. But we don’t operate in a vacuum. And we don’t pretend that we operate in a vacuum.”

Here's Monday's release from Yellowstone and Grand Teton:

A recent court order removes uncertainty about snowmobile and snowcoach access in Yellowstone and Grand Teton National Parks this winter.

Back in September, a federal judge in Washington, D.C., rejected the park’s latest winter use plan, thereby prohibiting snowmobile and snowcoach access without a new regulation. In response, the National Park Service (NPS) began work on a new temporary plan to guide winter use management in the parks, in an effort to get the parks open on time this winter on December 15, 2008. The preferred alternative in the temporary plan calls for limited, managed snowmobile and snowcoach access in the parks.

A related challenge to winter use management in the parks has been before the U.S. District Court in Wyoming. On November 7, 2008, that court ordered the National Park Service to reinstate a 2004 rule, which will allow snowmobile and snowcoach access in Yellowstone and Grand Teton this winter.

The NPS will publish a rule in the Federal Register to reinstate the 2004 rule in accordance with the Wyoming court’s order. The parks will operate under this reinstated rule for this winter season, providing visitors, area businesses, and park employees with a plan they can count on for this year.

The reinstated 2004 rule will also allow the NPS time to analyze public comment received on the temporary plan and its supporting proposed rule, in order to guide a long-term planning process for winter use in the parks as directed in the orders issued by both federal courts. Public comment on the temporary plan ends at midnight tonight, and at midnight November 20, on the supporting proposed rule.

Under the reinstated 2004 rule, motorized over-snow access will be allowed this winter as it has for the past four winters. Up to 720 commercially guided, Best Available Technology (BAT) snowmobiles and up to 78 snowcoaches will be allowed per day in Yellowstone National Park. Yellowstone’s East Entrance and Sylvan Pass will be open for motorized and non-motorized over-snow travel, subject to weather and safety constraints. Trail and off-road use of snowmobiles and snowcoaches has always been, and will continue to be prohibited.

The 2004 rule also addresses snowmobile access in Grand Teton and the John D. Rockefeller, Jr. Memorial Parkway, including access along Grassy Lake Road, and on Jackson Lake for licensed anglers.

During the last two winters, an average of about 296 snowmobiles a day entered Yellowstone. The park’s peak day was during last December, when 557 snowmobiles entered the park. Given the uncertainty caused by lawsuits on winter use, park managers forecast use levels for this winter to remain near these levels.

Comments

I am skeptical of the claim that the National Park Service could meet the "promulgate an acceptable rule" alternative in Judge Brimmer's decision any time soon. Indeed, Judge Brimmer says the same thing on Page 14 of his decision: "The Court finds it unlikely that the NPS will have the ability to promulgate and put into effect a rule for the winter season in a timely manner." Thus, Judge Brimmer's order in the conclusion was clearly intended to impose the 2004 rule for the 2008-2009 winter season. Whatever your opinion on this issue, I think it is indisputable that whatever final rule the National Park Service attempts to promulgate in accordance with Judge Sullivan's decision will certainly be immediately challenged by either the snowmobile lobby or the conservation lobby, or both.

Indeed, it is amusing to note that we are in the current situation because the last time the National Park Service attempted to promulgate this rule, *both* the snowmobile lobby and the conservation lobby immediately challenged the ruling, the former in Judge Brimmer's Wyoming Court and the latter in Judge Sullivan's DC Court. The National Park Service actually simultaneously petitioned Judge Brimmer to consolidate the cases in DC, and Judge Sullivan to consolidate the cases in Wyoming. Both judges demurred on this petition - and thus we ended up dueling court cases.

Looking at the whole picture, I don't see how anyone could reasonably argue that the National Park Service had any discretion to do anything other than implement the 2004 rule for the 2008-2009 winter season in Yellowstone. There's just no way to reasonably believe that the processes of public notice-and-comment, protest, and appeal could be played out in time for the 2008-2009 winter season. Failing that, the order of Judge Brimmer's ruling seems clear - the 2004 rule will be in effect.


Sabbatis,

But, what's puzzling was that NPS was in fact trying to implement a temporary rule of 318, which they fully intended to have published in time. They only scrapped those temporary plans when Judge Brimmer's ruling came down. Whether they would have succeeded in getting a new rule published is another issue; that they stopped trying altogether suggests they are setting themselves up for another court failure. They could have continued to try on the 318, and then reverted to the 2004 when that process failed. But, they simply stopped trying, which suggests they are accepting a rule for snowmobile use that the courts have now ruled is worse than the rule that has been rejected.

I would be very surprised in light of that not to see Sullivan grant an injunction. Tactically, what NPS is doing is very puzzling - either, they don't want snowmobiles in the park at all and have taken the bait in order to make that reality; or, they do, and are simply hoping that the current ruling is upheld.

We'll see how this plays out, but I think the odds went up much higher than I ever expected when Sullivan's ruling originally came out that we might actually not see any motorized over snow use inside the park this winter.

And, since roads will continue to be groomed, would that then mean they'd let non-motorized users on those roads (winterized bicycles and cross-country skiing?) - that's getting ahead of ourselves, I know. But, that question may soon become relevant.

Jim Macdonald
The Magic of Yellowstone
Yellowstone Newspaper
Jim's Eclectic World


The NPS (and fed govt.) works for us taxpayers, not us for them. They need to be reminded of that, and allow as much recreation opportunities as feasible in OUR parks. They are ALL our parks, not parks for just for enviros.
I don't buy all this enviro nonsense, and neither do most of the American people, proven by "carbon" initiatives failing this past election all over the country. You enviros need to get a life...obviously you have way too much time on your hands worrying about a little bit of exhaust from a few sleds.
I for one am looking forward to riding my new Arctic Cat sled into the park this winter! Why? Because it is FUN!!!!


From reading Judge Brimmer's opinion, it is clear that he was placing a higher value on providing certainty on short-term snowmobile policy to Park users and the surrounding Park communities, rather than on getting the right long-term policy in place for the immediate winter season. Furthermore, the opinion seems to be quite clear that the 2004 rule is to be implemented, and it seems to me that it would have been a major stretch for the Park Service to argue that they will not implement the 2004 rule at all, and would instead try and rush out the new Rule within the next 30 days - and somehow resolve the protests and appeals in that time as well. It seems to me that the National Park Service would be just asking for Judge Brimmer to slap them with a contempt of court ruling in that case.

And while it is possible that Judge Sullivan may vacate Judge Brimmer's order implementing the 2004 rule for the upcoming winter, it would be very unusual for a concurrent court to override an order of another. If Judge Sullivan did do so, such an issue would certainly be referred to the Court of Appeals - which of course could easily end up tying it up and delaying it even further.

About the only certainty in this process is that long-term resolution won't be occurring any time soon.


It has come to a point where common sense is no longer the rule. If we don't like a decesion, we sue. Come on folks it is time to start using some good old common sense. The parks were set aside as two folds: to enjoy and preserve not eliminate all activities in the name of nature. Stewardship means just that, oversee at all times in an active role not passive one time rule making that eliminates any and all activities. Stewardship is time consuming and not a one shot deal, so get used to doing some work and USE COMMON SENSE!!!


Sabbatis,

Like I said, I'm not surprised they re-instated the 720 rule; I'm surprised they used that as reason to stop on moving toward a temporary 318 rule. That move alone seems to violate the reasoning in the other court order, which they purportedly are also following. But, if the Sullivan order is simply on the merits of a permanent rule, and it's true that it provided no guidance on a temporary rule, then you may be right that Sullivan may not give an injunction. I guess we'll see.

Jim Macdonald
The Magic of Yellowstone
Yellowstone Newspaper
Jim's Eclectic World


"I don't buy all this enviro nonsense, and neither do most of the American people"...............Not true. Public opinion survey after survey, conducted by the Park Service themselves and through independent researchers, have shown that the majority of Americans feel that snowmobiles have no place in Yellowstone. I agree with Frank C. above. It is time to get politics out of our parks. Since the primary purpose of the Park Service is to provide enjoyment of the parks in such a manner as to leave them unimpaired for future generations, the Service should be run by conservationists not political appointees beholden to special interests. Environmentalism, despite what some would lead you to believe, is not a special interest; it is of interest to every single organism on this planet, including the Dick Chaney's and GW Bushes of the world, whether they choose to be ignorant of that fact or not.
"....it would be very unusual for a concurrent court to override an order of another....." Perhaps so, but in essence isn't that is exactly what Judge Brimmer did to Sullivan. Judge Sullivan said that the proposed number of snowmobiles to be allowed this winter was too many, unacceptable. Judge Brimmer comes back and says, "Well, I can't really overturn what Judge Sullivan ruled and allow that many sleds, so instead I am going to allow even more!" If that isn't "backdoor" overriding, I don't know what it is.


Jim -
My understanding is that the Park Service isn't stopping moving towards the 318 Rule - its just no longer scrambling to get that Rule in place before December. It was probably completely unrealistic to pull that off anyways, but I think that's what they were trying in light of not having any other options. I'm not sure if the Park Service has any legal provisions for instituting a temporary rule that couldn't be protested or appealed in the same way as a permanent rule, but even if they did, it would seem that Judge Brimmer's decision is essentially that the 2004 rule will be the temporary rule until such time as the full legal process regarding a permanent rule can be played out.
Sabattis


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