In a ruling that could be viewed as another indictment of the Bush administration's management of federal lands in general and national parks specifically, a judge has thrown out rules governing personal watercraft use at Gulf Islands National Seashore and Pictured Rocks National Lakeshore.
The 88-page ruling (attached below) by U.S. District Judge Gladys Kessler carries findings reminiscent to those another judge cited in the ongoing debate over snowmobiles in Yellowstone National Park. Not only does Judge Kessler find that the National Park Service acted at times irrationally and without reason in approving PWC (aka Jet Skis) rules at Gulf Islands and Pictured Rocks, but she also reiterates past rulings that the Park Service's prime directive under the National Park Service Organic Act is to preserve resources unimpaired for future generations.
Back in September 2008 U.S. District Judge Emmet Sullivan berated the National Park Service when he axed its winter-use plan for Yellowstone and Grand Teton national parks, saying the 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."
In her ruling, handed down last Thursday, Judge Kessler echoed her colleague, asking "(W)hy has NPS issued rules allowing jet ski 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 jet skis 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?"
Motorized recreation in America's national parks long has been a controversial topic, with groups that back snowmobiles, personal watercraft, all-terrain and off-road vehicles maintaining they have a right to head to the parks with their machines to play. Many conservation groups, however, point to these uses as inappropriate because of their noise and pollution and the resource damage they can inflict.
In May 2008 the Park Service was sued by The Wilderness Society, Friends of the Earth, and the Bluewater Institute over its decision to allow PWCs at Gulf Islands and Pictured Rocks. In each instance, interestingly, the water toys had been banned from each park before they were permitted by the Bush administration's Interior Department.
It was in 2000 that the Park Service concluded that Jet ski use was a “controversial, recreational” activity and inappropriate in most areas of the National Park System. The agency deemed Jet skis “high performance vessels designed for speed and maneuverability and are often used to perform stunt-like maneuvers.” When the Park Service moved back then to ban PWCs from Gulf Islands, it said in part that “PWC use poses considerable threats to estuarine flora and fauna, pollutes waters essential to estuarine and marine health, poses unacceptable risks of injury to operators and bystanders, and conflicts with the majority of other longstanding uses of the Seashore.”
And yet, in 2006 the Park Service changed course and began finalizing regulations to allow PWCs back into these park units.
Judge Kessler, though, found that the environmental assessments those decisions were based upon were flawed in a number of areas, among them sections on impacts to wildlife, water, and visitors. More so, she ruled that the Park Service's "analyses are so weak that it cannot be determined whether (a much more detailed Environmental Impact Statement) should have been prepared."
Referring to the Yellowstone snowmobile litigation, the judge noted that in that case "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," and added, parenthetically, that “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."
For instance, regarding water quality impacts from PWC use at Gulf Islands, Judge Kessler wrote that "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, they contributed 22 approximately 30 percent of total emissions from all motorized watercraft in 2002. That number was expected to rise to 50 percent in 2012. Despite an increase of more than 66 percent in expected emissions from PWCs, NPS still concluded that no impairment would result, without any explanation of how this result could logically follow." (emphasis added.)
The issue of how the Park Service concludes an impact might lead to an impairment of a park's resources was one the judge returned to time and again.
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”? 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 Yellowstone snowmobile case), 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.
In its analysis of Alternative B, NPS states that the flatwake restriction would minimize impacts, but that nearly half of the potential seagrass habitat within the Florida portion of thepark “would be open to full-throttle PWC use.” 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. There are no objective standards given by which the level of impact can be gauged. The language in the impact thresholds is impermissibly conclusory, and fails to provide any necessary rational connection between the finding of non-impairment and the
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”?
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 own policies to the language defining the impacts. As in Mainella, the terms used to describe NPS final assessments are merely “indeterminate and conclusory.”
In reviewing the Park Service's approach to allowing PWCs at Gulf Islands and Pictured Rocks, the judge held that the final decisions were arbitrary and capricious because the underlying justifications for the management plans were "not based on reasoned explanations."
The agency, she ruled, must reevaluate its decisions and the science they were based on.