National Park Service, Advocacy Groups Reach Settlement Over Merced Wild and Scenic River Litigation in Yosemite National Park

An out-of-court settlement has ended years of litigation over how the Yosemite Valley will be developed. NPS photo.

After years of at-times acrimonious ligation, a settlement was announced Wednesday between the National Park Service and advocacy groups over development in the Yosemite Valley and how it might impact the Merced River, a wild and scenic stream. It's an agreement that could substantially redefine the human impact on one of the most scenic valleys in the world.

On its face, the Park Service's settlement (attached below) with Friends of Yosemite Valley and Mariposans for the Environment and Responsible Government calls for Yosemite National Park officials to start anew on developing a Merced Wild and Scenic River Comprehensive Management Plan. A key aspect of that new plan, however, will be to identify a user capacity for the Yosemite Valley. While no number has yet been placed on exactly how many visitors the valley can handle on a regular basis, in the end that determination could result in a reduced human footprint on the valley.

“I think that the courts have been requiring for them to do that (institute a user capacity) for some time. That’s a requirement under the Wild and Scenic Rivers Act for the protection of the Merced...that’s been at issue for several years," Sharon Duggan, senior counsel for the two advocacy groups, said Wednesday from her Oakland, Calif., office. “The law requires user capacity. That’s what we’ve been up and back to the 9th Circuit a couple times now for.”

The 22-page settlement document, hashed out during negotiations the past dozen months, traces the plaintiff's victories over the National Park Service since this battle began a decade ago. It was spawned by the 1997 Merced River floods that scrubbed clean parts of the Yosemite Valley floor and got park officials thinking about a better layout for lodgings, campgrounds, and trails.

The gist of the litigation -- which claimed the Park Service was allowing inappropriate development to intrude upon the wild and scenic river corridor-- began shortly after Yosemite officials completed their first Merced Wild and Scenic River Comprehensive Management plan in August 2000. Years of litigation led to preparation in 2005 of a supplemental environmental impact statement, which led to more litigation that culminated in a 2006 U.S. District Court decision that invalidated the park’s plan and ordered the Park Service to start anew. While the Park Service appealed that lower court ruling, on March 26, 2008, the U.S. Court of Appeals for the Ninth Circuit issued an opinion affirming the judgment of the District Court and expanding the scope of what the NPS had previously understood must be included in a legally valid Merced Wild and Scenic River Comprehensive Management Plan.

In its ruling, the 9th Circuit also questioned how the Park Service had handled development in the Yosemite Valley, pointing out in a footnote how much "degradation" had been leveled on the valley.

To illustrate the level of degradation already experienced in the Merced and maintained under the regime of interim limits proposed by NPS, we need look no further than the dozens of facilities and services operating within the river corridor, including but not limited to, the many swimming pools, tennis courts, mountain sports shops, restaurants, cafeterias, bars, snack stands and other food and beverage services, gift shops, general merchandise stores, an ice-skating rink, an amphitheater, a specialty gift shop, a camp store, an art activity center, rental facilities for bicycles and rafts, skis and other equipment, a golf course and a dining hall accommodating 70 people. Although recreation is an ORV (Outstanding Remarkable Values) that must be protected and enhanced, see 16 U.S.C. § 1271, to be included as an ORV, according to NPS itself, a value must be (1) river-related or river dependant, and (2) rare, unique, or exemplary in a regional or national context. The multitude of facilities and services provided at the Merced certainly do not meet the mandatory criteria for inclusion as an ORV. NPS does not explain how maintaining such a status quo in the interim would protect or enhance the river’s unique values as required under the WRSA.

“This is what we've been troubled about for some time," Ms. Duggan said, referring to the valley's development. "This is why there’s a need for a management plan for the river, because it is the lifeblood, it is the vein through that valley.”

If the Merced River corridor is properly protected, she added, "then you’ll provide the kind of visitor service that is appropriate. We haven’t been happy with what we’ve seen.”

The settlement resolves litigation on Merced River planning begun in 2000, resolves the complaint challenging the Yosemite Valley Plan, and calls for a new comprehensive management plan to be adopted by December 2012. It also calls for the Park Service to pay the plaintiffs more than $1 million for their legal fees.

Outwardly, the various parties expressed thanks that the settlement had been reached.

"We are optimistic. We agreed to this settlement to establish a new process and focus, ideally leading to a positive and protective management plan for Yosemite's Merced River. We are hopeful that the new Merced plan will be focused on protection, putting the river and its values first" stated Julia Olson, who handled the case against the Park Service with Ms. Duggan. “The Yosemite Valley Plan is now rescinded and there is a three-year time frame hopefully free of legal disputes over projects in Yosemite.”

"We now have a new opportunity to bring people together, to finally discuss how to optimize a natural Yosemite experience for the most people possible, while recognizing that Yosemite is finite," added Greg Adair, director of Friends of Yosemite Valley. "This took a decade of hard work, really. We're grateful to the courts, and Magistrate Judge Snyder for making this possible.”

Yosemite officials, who in the past have complained about the litigation because of its impact on slowing construction projects, did not immediately return phone calls. However, in a prepared statement Acting Superintendent Dave Uberuaga said "the National Park Service is looking to the future and will move forward with preparing a new CMP that will continue to protect and enhance the Merced River for the enjoyment of future generations. The NPS is committed to completing the new CMP with the continued involvement from all of those who contributed to the previous plan, as well as with input from all who care about Yosemite."

Along with calling for a new management plan to be developed, the settlement also:

* Provides guidance on procedures, process, and content for a new Merced River Plan

* Rescinds the Yosemite Valley Plan

* Rescinds plans for Yosemite Lodge, Curry Village, Valley Campgrounds

* Encourages ongoing maintenance and safety activities.

While it was somewhat ironic that the settlement was announced this week, when Ken Burns's documentary on the national parks, with its message that these are incredibly wonderful and special places that need to be valued and preserved, is airing nationally on public television stations, Ms. Duggan said that was not planned. And yet, she said it was appropriate.

"I think think that there are resources (in the Yosemite Valley) by and large that are exponentially at risk," Ms. Duggan said. "There is that (preservation) message in the PBS series. These are resources that could be protected, and they could be valiantly protected. We are facing some very serious environmental issues, notably climate collapse. These kinds of places may very well become those islands that are critical.”

The Settlement Agreement can be viewed in its entirety at: http://www.nps.gov/yose/parkmgmt/litigation.htm.

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YOSE-Merced_Settlement.pdf1.62 MB

Comments

It is my hope that the Park Service will use modern technology such as computer or tele-conferencing to involve more of the supporters of the park in discussions and presentations during the planning process. Usually, meetings are held at the Park, 4 hours from the largest populaton base of visitors - the San Francisco Bay Area metropolis. Many cheap and effective tools exist to let us participate without driving up to the park.