Proof That There's No Right to Mountain Bike

Discussion in 'Mountain Bikes' started by Mike Vandeman, May 26, 2003.

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  1. Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir. 1996): interpreting Organic
    Act to give Park Service authority to close mountain bike trails; agency finding that trails would
    endanger park values was not arbitrary or capricious.

    The legal decision that seems to define the impact of mountain bikes on the environment and the
    possible safety issues is Marin v. Babbitt. You probably already know this, but the result of this
    court decision is that mountain bikes generally are not allowed on narrow trails in the NPS system,
    and other agencies, such as the EBRPD in the East Bay, have usually followed this ruling in creating
    their own regulations. Attached is the opinion in ASCII text. If you search for "narrow" or "single"
    in the text you will quickly get to the interesting places.
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    UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BICYCLE TRAILS COUNCIL OF MARIN, a California
    Nonprofit corporation; BICYCLE TRAILS COUNCIL OF THE EAST BAY, a California nonprofit corporation;
    INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California nonprofit corporation; LEAGUE OF AMERICAN
    WHEELMEN, a Maryland nonprofit corporation, et al., Plaintiffs-Appellants,
    v.BRUCE BABBITT,*fn* Secretary of the Interior; JAMES M. RIDENOUR, Director of the National Park
    Service; BRIAN O'NEILL, General Superintendent of the Golden Gate National Recreation Area,
    Defendants-Appellees, SIERRA CLUB; BAY AREA TRAILS PRESERVATION COUNCIL; THE NATIONAL PARKS AND
    CONSERVATION ASSOCIATION, et al. Defendants-Intervenors-Appellants. No. 94-16920
    v.A. No. CV-93-00009-EFL ORDER Appeal from the United States District Court for the Northern
    District of California Eugene F. Lynch, District Judge, Presiding Argued and Submitted February
    15, 1996--San Francisco, California Filed May 6, 1996 Before: Stephen Reinhardt, David R.
    Thompson, and Diarmuid F. O'Scannlain, Circuit Judges COUNSEL Terry J. Houlihan, McCutchen,
    Doyle, Brown & Enersen, San Francisco, California, for the plaintiffs-appellants. Robert L.
    Klarquist, United States Department of Justice, Washington, D.C., for the defendants-appellees.
    ORDER We affirm the district court's grant of summary judgment in favor of defendants, authored
    by the Honorable Eugene F. Lynch. We adopt the district court's thorough and well-reasoned
    order granting summary judgment, with the exception of the waiver analysis in Parts
    III(A)(1)(a) and
    III(A)(2)(a), as to which we express no opinion. The district court's order is appended hereto, as
    amended to reflect the omission of the waiver analysis. AFFIRMED. UNITED STATES DISTRICT
    COURT NORTHERN DISTRICT OF CALIFORNIA BICYCLE TRAILS COUNCIL OF MARIN, a California
    nonprofit corporation, BICYCLE TRAILS COUNCIL OF THE EAST BAY, a California nonprofit
    corporation, INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California nonprofit
    corporation, LEAGUE OF WHEELMEN, a Maryland nonprofit corporation, CHARLES CUNNINGHAM,
    ANGELA DIMEGLIO, LINDA ENIS, DAVID GAROUTTE, ALAN GOLDMAN, STEPHEN HOXIE, JAMES E.
    JACOBSON, ABBY MINOT, TODD OURSTEN, and ADRIENNE SHAPIRO, as individuals, Plaintiffs,
    v.BRUCE BABBITT, Secretary of the Interior, JAMES M. RIDENOUR, Director of the National Park
    Service, BRIAN O'NEILL, General Superintendent of the Golden Gate National Recreation Area,
    Defendants; BAY AREA TRAILS PRESERVATION COUNCIL, et al., Defendant-Intervenors. No. C-93-0009
    EFL ORDER GRANTING DEFENDANTS SUMMARY JUDGMENT FILED SEPTEMBER 1, 1994
    w. INTRODUCTION Plaintiffs challenge the National Park Service ("NPS") regulations governing the
    use of bicycles within areas administered by it, including the Golden Gate National Recreation
    Area ("GGNRA"). Specifically, plaintiffs seek review of both the regulations set forth at 36
    C.F.R. section 4.30 ("the 1987 regulation"), which applies generally to NPS lands, and the Marin
    Trails Use Designation Plan for GGNRA adopted as the final rule at 57 Fed. Reg. 58711-16 (Dec.
    11, 1992) (codified at 36 C.F.R. section 7.97) ("the 1992 trail plan").
    x. BACKGROUND In 1964, NPS at its own initiative implemented a management by categories scheme by
    which units of the National Park System would be classified "natural,""historical," or
    "recreational,"*fn1 and by which management policies would be formed so as to regulate these
    three types of units in conformity with their differing classifications. The effect of this
    scheme would be, inter alia, that recreational units would be managed in a less restrictive and
    less resource-protective manner than units classified natural or historical. Under this scheme,
    NPS in 1966 decided to alter its longstanding policy regarding bicycle use in park units from
    one wherein all trails were closed unless designated open to one in which the old rule generally
    applied except in units classified as recreational, in which trails would be presumed open to
    bicycle use unless designated closed by the local park superintendent. By a series of amendments
    to the National Park Service Organic Act, 16 U.S.C. sections 1 et seq., Congress disapproved of
    this management by categories scheme and directed that all units of the national parks were to
    be treated consistently, with resource protection the primary goal,*fn2 while retaining the
    flexibility for individual park units to approve particular uses consistent with their specific
    enabling legislation. Thus, NPS eliminated these management categories from its internal
    administration in 1978 and ultimately began promulgating regulations in the 1980's eliminating
    these categorical distinctions from the Code of Federal Regulations.*fn3 The elimination of the
    last regulatory reference to these management categories was one of the objectives articulated
    by NPS for the rulemaking effecting the 1987 regulation. See 52 Fed. Reg. 10670 (April 2, 1987).
    The 1987 regulation, adopted pursuant to notice and comment, established a uniform rule for
    national park units wherein all bicycle use of off-road areas would be prohibited unless local
    park superintendents designated particular trails to be open. (As noted, this had previously
    been the rule in all but the recreation units.) Local park officials determined that they would
    not enforce this rule in the GGNRA until it was determined which trails would be open and which
    closed to bicycle use. Thus, because of NPS's and the GGNRA uperintendent's exercise of
    prosecutorial discretion, the 1987 regulation was not enforced and bicyclists in fact retained
    access to all trails in the GGNRA pending the development of a trail use plan. Finally, after a
    long and contentious trail designation process, the 1992 trail plan was adopted (also pursuant
    to notice and comment) establishing which trails were to be open to bicycles and which trails
    were to be closed. Plaintiffs applied to this Court for a preliminary injunction against the
    enforcement of the 1992 trail plan. This application was denied in February of 1993.
    Defendant-Intervenors' motion to intervene was granted on February 18, 1993. Plaintiffs and
    defendants have filed cross-motions for summary judgment, filed oppositions to one anothers'
    motions, and replied to these oppositions. Defendant-Intervenors have filed an opposition to
    plaintiffs' motion for summary judgment and a reply brief in support of defendants' motion. This
    motion has been submitted on the 1987 and 1992 administrative records. Having considered all of
    the briefs of the parties, and having also considered the oral arguments presented at the
    hearing of November 12, 1993, this Court stands ready to rule.
    y. DISCUSSION As described above, plaintiffs challenge two agency actions: the adoption in 1987 of
    a revised 36 C.F.R. section 4.30 and the development and promulgation in 1992 of a trail plan
    for the Marin Headlands section of GGNRA.
    z. THE 1987 REGULATION The 1987 rule here challenged reads:
    (z) The use of a bicycle is prohibited except on park roads, in parking areas and on routes
    designated for bicycle use; provided, however, the superintendent may close any park road or
    parking area to bicycle use pursuant to the criteria and procedures of SS
    1.5 and 1.7 of this chapter. Routes may only be designated for bicycle use based on a written
    determination that such use is consistent with the protection of the park area's natural, scenic
    and aesthetic values, safety considerations and management objectives and will not disturb
    wildlife or park resources.
    (b) Except for routes designated in developed areas and special use zones, routes designated for
    bicycle use shall be promulgated as special regulations. 36 C.F.R. section 4.30. The National
    Park Service Organic Act provides that the National Park Service shall: promote and regulate the
    use of the Federal areas known as national parks, monuments, and reservations hereinafter
    specified,
    . . . by such means and measures as conform to the fundamental purpose of the said parks,
    monuments, and reservations, which purpose is to conserve the scenery and the natural and
    historic objects and the wild life therein and to provide for the enjoyment of the same in such
    manner and by such means as will leave them unimpaired for the enjoyment of future generations.
    16 U.S.C. section 1. Additionally, the Organic Act provides: The Secretary of the Interior shall
    make and publish such rules and regulations as he may deem necessary or proper for the use and
    management of the parks, monuments, and reservations under the jurisdiction of the National Park
    Service. 16 U.S.C. section 3.
    1. The Organic Act and Review Under Chevron The National Park Service Organic Act expressly
    delegates rulemaking authority to the Secretary of the Interior to promulgate rules and
    regulations to implement the Act. 16 U.S.C. section 3. Legislative regulations promulgated
    pursuant to such express authority will be upheld "unless they are arbitrary, capricious, or
    manifestly contrary to the statute." Chevron U.S.A., Inc. v. Natural Resources Defense Council,
    Inc., 467 U.S. 837, 844 (1984). Plaintiffs challenge the 1987 regulation and seek to have it
    vacated on the theory that it is arbitrary and not based upon a permissible interpretation of the
    Organic Act. Defendants and Intervenors argue that the 1987 regulation was based upon a mandated
    or at least clearly permissible interpretation of the Organic Act and its amendments.
    a. Waiver [omitted]
    b. Statutory Interpretation Plaintiffs challenge the legality of the regulation on the theory that
    it is not based upon a permissible interpretation of the Organic Act. This challenge fails. A
    review of the Organic Act and the history of its amendments shows that NPS based its decision to
    eliminate the reference to management categories (and thus to eliminate the special "recreation"
    unit rule) in the 1987 regulation on a mandated and certainly permissible construction of the
    Organic Act and its amendments. In response to congressional amendments to the Organic Act, NPS
    in 1978 began phasing out its usage of the "management categories" that had been earlier
    developed to allow for the different treatment of different classes of units in the National
    Park System. In the 1980's, NPS began eliminating such distinctions in its regulations. NPS
    interpreted Congress's amendments to the Organic Act to be clear in the message that NPS was not
    to single out a particular class of units of the park system (i.e. recreational units) for less
    protective treatment, but that instead NPS was to manage all units of the park system so as to
    effect the purpose of the Organic Act--primarily resource protection. See 48 Fed. Reg. 30252
    (June 30, 1983); Michigan United Conservation Clubs v. Lujan, 949 F.2d 202 (6th Cir. 1991);
    National Rifle Assn. v. Potter, 628 F.Supp. 903 (D.D.C. 1986). The 1987 amendment to section
    4.30 was part of a rule-making whose purposes included "to eliminate the remaining references to
    the management categories formerly used to classify park areas." 52 Fed. Reg. 10670. Formerly,
    regulations promulgated in 1966 had provided that in "historic" or "natural" park units,
    off-road trails and areas were "closed-unless-designated-open" for bicycle use, while in
    "recreational" units off-road trails and areas were "open-unless-designated-closed" for bicycle
    use. 36 C.F.R. section
    2.30 (1967ed.), moved to 36 C.F.R. section 4.3 (July 1, 1977 ed.). The new section 4.30 results in
    a "closed-unless-designated-open" status for off-road areas in all park units. Plaintiffs
    argue that even if NPS interpreted Congress's amendments to the Organic Act as mandating
    consistency throughout the park system, the NPS decision to achieve this consistency by
    applying the closed-unless-designated-open" rather than open-unless-designated-closed"
    standard was arbitrary and not based upon a permissible interpretation of the Organic
    Act. The Supreme Court has established a two-step process for reviewing an agency's
    construction of a statute it administers: First, always, is the question whether Congress
    has directly spoken to the precise question at issue. If the intent of Congress is clear,
    that is the end of the matter; for the court, as well as the agency, must give effect to
    the unambiguously expressed intent of Congress. If, however, the court determines
    Congress has not directly addressed the precise question at issue, the court does not
    simply impose its own construction on the statute, as would be necessary in the absence
    of an administrative interpretation. Rather, if the statute is silent or ambiguous with
    respect to the specific issue, the question for the court is whether the agency's answer
    is based on a permissible construction of the statute. Chevron, 467 U.S. at 842-43
    (1984). At "step one," if a court "employing traditional tools of statutory construction
    ascertains that Congress had an intention on the precise question at issue, that
    intention is the law and must be given effect." Id. at 843 n.9. At "step two," "The Court
    need not conclude that the agency construction was the only one it permissibly could have
    adopted to uphold the construction, or even the reading the court would have reached if
    the question initially had arisen in a judicial proceeding." Id. at 843 n.10.
    i. Chevron Step One Intervenors argue persuasively that this is a Chevron "step one" case in that
    Congress clearly intended by its 1970 and 1978 amendments to the Organic Act that NPS alter its
    practice of governing recreational park units under less restrictive standards and instead
    manage all areas of the park system uniformly with the fundamental goal of resource protection
    in mind. In the 1970 amendments to the Organic Act, Congress recognized that "the national park
    system has grown to include superlative natural, historic, and recreation areas," 16 U.S.C.
    section 1a-1, that "the purpose of this Act [is] to include all such areas in the system and
    clarify the authorities applicable to the system," id., and that "the various authorities
    relating to the administration and protection of areas under the administration of the Secretary
    of the Interior, through the National Park Service, . . . shall . . . be applicable to all areas
    within the national park system." 16 U.S.C. section 1c(b). Further, the definition of "national
    park system" was changed so as to include for the first time a reference to recreational areas:
    "The `national park system' shall include any area of land and water now or hereafter
    administered by the Secretary of the Interior through the National Park Service for park,
    monument, historic, recreational, or other purposes." 16 U.S.C. section 1c(a). Intervenors also
    argue that the legislative history of the 1970 amendments makes clear the congressional intent
    that those recreational park units not be given less protective treatment than other units in
    the park system. For example, the House Report, H.R. Rep. No. 91-1265, accompanying the bill
    amending the Organic Act, Pub. L. No. 91-383, noted that because the Organic Act "contains no
    reference to more recent concepts like national recreation areas, national seashores, or
    national lakeshore," . .
    . "the usual rules of construction . . . could result in interpretations which would lead to the
    administration of the system so that it would be almost devoid of uniformity." However, the
    Organic Act (and some other statutes) "have desirable, useful, and necessary provisions and they
    should be applicable uniformly throughout the National Park System." Thus, the bill's "Section 1
    . . . emphasizes the common purpose of all units of the national park system and declares that its
    purpose is to include all such areas in the system and to clarify the authorities applicable to
    it." 1970 U.S. Code Cong. & Adm. News, Vol.2, 91st Cong., 2d Sess., at 3785-87. In the 1978
    amendments to the Organic Act, Congress amended the Organic Act to read: "the promotion and
    regulation of the various areas of the National Park System . . . shall be consistent with and
    founded in the purpose established by Section 1*fn4 of this title, to the common benefit of all
    the people of the United States." 16 U.S.C. section 1a-1. The purpose of this change was
    described in the House Report as to add "a declaration by Congress that the promulgation and
    regulation of the National Park System is to be consistent with the Organic Act for the
    National Park Service. The protection of the units of the system is to be carried out in
    accordance with the maintenance of the integrity of this system, and management of these areas
    shall not compromise these resource values except as Congress may have specifically provided.
    1978 U.S. Code Cong. & Adm. News, 95th Cong., 1st sess., at 463. It was in response to the 1978
    amendments that NPS immediately began the process of eliminating from its regulations and its
    management practices the management categories of "natural," "historic," and "recreational"
    units. See 48 Fed. Reg. 30252. This Court agrees with Intervenors that the statutory language
    and the legislative intent of the 1970 and 1978 amendments mandated that NPS discontinue the
    practice of managing recreation areas under less protective rules than it was using in managing
    natural and historic areas. The purpose of these amendments was to bring recreational units
    (including recreation areas, seashores, and lakeshores) into the fold and require that they be
    managed consistently with the rest of the system. Congress clearly intended and mandated that
    NPS eliminate the distinctions and treat all units as it had been treating those parks that had
    been expressly within the ambit of the Organic Act, the natural and historic units, with
    resource protection the overarching concern. In light of this mandate, NPS had no choice when
    amending section
    4.30 as between making all parks' trails "open-unless-designated-closed"--the prevailing practice
    only in recreation units-- or closed-unless-designated-open"--the prevailing practice in the
    natural and historic areas. NPS could only effect the intent of Congress by amending 4.30 such
    that all parks were to be treated uniformly in the manner that natural and historical units had
    previously been managed and thus that all trails were to be "closed-unless-designated-open." NPS
    in amending section 4.30 (in accordance with its more general policy of eliminating management
    categories and deleting the less restrictive "recreation" unit rules) acted so as to "give effect
    to the unambiguously expressed intent of congress." See Chevron, 467 U.S. at 843. The challenged
    regulation, therefore, is valid.
    ii. Chevron Step Two Even if the intent of Congress were not so clear on this issue, the regulation
    would still be upheld as based on a permissible interpretation of the Organic Act. As noted
    above, legislative regulations promulgated pursuant to an express grant of statutory rulemaking
    authority are valid "unless they are arbitrary, capricious, or manifestly contrary to the
    statute." Chevron, 467 U.S. at 844. If an agency decision "`represents a reasonable
    accommodation of conflicting policies that were committed to the agency's care by the statute,
    we should not disturb it unless it appears from the statute or its legislative history that the
    accommodation is not one that Congress would have sanctioned.'" Chevron, 467 U.S. at 845
    (quoting United States v. Shimer, 367 U.S. 374, 383, 383
    (1961)). As noted above, the Organic Act provides that NPS "shall promote and regulate the use of
    the Federal areas known as national parks
    . . . by such means and measures as conform to the fundamental purpose of the said parks, . . .
    which purpose is to conserve the scenery and the natural and historic objects and the wild life
    therein and to provide for the enjoyment of the same in such manner and by such means as will
    leave them unimpaired for the enjoyment of future generations," 16 U.S.C. section 1, and that "The
    Secretary of the Interior shall make and publish such rules and regulations as he may deem
    necessary or proper for the use and management of the parks." 16 U.S.C. section 3. Courts have
    noted that the Organic Act is silent as to the specifics of park management and that "under such
    circumstances, the Park Service has broad discretion in determining which avenues best achieve the
    Organic Act's mandate. . . . Further, the Park Service is empowered with the authority to
    determine what uses of park resources are proper and what proportion of the park's resources are
    available for each use." National Wildlife Federation v. National Park Service, 669 F.Supp. 384,
    390 (D.D.C. Wyo. 1987), citing Organized Fisherman of Florida v. Hodel, 775
    F.2d 1544, 1550 (11th Cir. 1985)[, cert. denied, 476 U.S. 1169
    (1986)]; Sierra Club v. Andrus, 487 F.Supp. 443, 448 (D.D.C.
    1987), aff'd, Sierra Club v. Watt, 659 F.2d 203 (D.C. Cir. 1981); see also Wilderness Public Rights
    Fund v. Kleppe, 608 F.2d 1250, 1253 (9th Cir. 1979)(noting that allocation of a limited use
    between competing user groups "is well within the area of administrative discretion granted to
    the NPS")[, cert. denied, 446 U.S. 982 (1980). A decision to limit mountain bicycle use to
    trails affirmatively designated as appropriate for such use fails comfortably within this
    broad grant of discretion to the Secretary under the Organic Act. The Organic Act is
    unquestionably silent on the precise issue of bicycle trail access. However, the Secretary is
    directed to conserve the natural elements of the parks for the future, 16 U.S.C. section 1, to
    "provide for the enjoyment" of the parks, to manage the parks "in light of the high public
    value and integrity of the National Park System," 16 U.S.C. section 1a-1, and to make such
    rules as "he may deem necessary or proper for the use and management of the parks." 16 U.S.C.
    section 3. In light of this language, an interpretation that the Organic Act allows for this
    closed-unless-designated open approach for bicycle trail access cannot be termed "manifestly
    contrary to the statute." The legislative history and the statutory amendments discussed above
    further reinforce this finding. This regulation is thus based upon a permissible
    interpretation of the statute and is valid on this alternate ground as well. Plaintiffs argue
    at length in their briefs and almost exclusively at oral argument that the 1987 regulation is
    invalid because it reflects NPS reversing its own earlier position on mountain bicycle use in
    recreation areas. Citing the Supreme Court in Motor Vehicles Mfrs. Assn. v. State Farm, 463
    U.S. 29, 57 (1983)("An agency's view of what is in the public's interest may change, either
    with or without a change in circumstances[,] but an agency changing its course must supply a
    reasoned analysis."), plaintiffs argue that NPS's latest interpretation of the Organic Act as
    expressed in 36 C.F.R. section 4.30 is entitled to less deference because NPS earlier
    interpreted the Organic Act to reach an opposite conclusion regarding mountain bicycling in
    recreation areas under its old 36 C.F.R. section 4.3. See, e.g., Immigration and
    Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 446
    n.30 (1987). Plaintiffs further argue that NPS did not provide the requisite "reasoned analysis" to
    justify its change in position. Plaintiffs' argument relying upon State Farm fails for at
    least three reasons. First, unlike State Farm where the agency flip-flopped in its
    interpretation of a single unamended standard, this case involves a situation where the
    agency changed its position to accommodate the amendments by Congress of the underlying
    Act. NPS did not simply decide one day to reverse its position of the day before. Rather,
    following amendments to the Organic Act and pursuant to a longstanding policy by which
    NPS was eliminating its management categories, NPS changed 36 C.F.R. section 4.30 so as
    to be consistent with the newly worded statute. Second, unlike State Farm, this is not a
    case where the agency can be said to have changed its "policy." Rather, as in Northwest
    Motorcycle Assn. v. USDA, 18 F.3d 1468, 1480 (9th Cir. 1994), the agency modified its
    approach to further an existing policy, which included not just the providing of
    recreational opportunities but also the consideration of "public safety, resource
    protection and the avoidance of visitor conflicts." 52 Fed. Reg. at 10681. Third, even
    accepting plaintiffs' argument on its own terms, this case is distinguishable from State
    Farm in that here the NPS did provide a rational and principled analysis of its decision
    to amend 36 C.F.R. section 4.30. See also Northwest Motorcycle Assn., 18 F.3d at 1480
    (change in policy by the agency is to be upheld where the policy change is "based on a
    rational and principled reason"). In its announcement of the final rule adopting section
    4.30, NPS stated: This section is a revision of the former section 4.3 and provides that the use of
    bicycles is allowed in park areas under the same basic conditions as are motor vehicles, i.e. on
    park roads, in parking areas, and on routes designated for their use. These provisions reflect the
    facts that the NPS generally considers bicycle use a very appropriate, low impact method for
    visitors to enjoy park areas, but that certain limitations on their use are necessary and
    appropriate in the interest of public safety, resource protection, and the avoidance of visitor
    conflicts.
    . . . .
    . . . . The NPS has determined that the designation of a bicycle route outside of such developed
    areas, in areas whose primary purpose and land uses are related more to the preservation of
    natural resources and values, would have a much greater potential to result in adverse resource
    impacts or visitor use conflicts. This paragraph therefore provides for a much more stringent
    decision making process for such a proposal by requiring a formal rulemaking. Such a process will
    provide for a thorough review of all environmental and visitor use considerations and assure the
    superintendent of having had the benefit of public review and comment before making a decision on
    any proposed designation. 52 Fed. Reg. at 10681. NPS thus realized that it was imposing "certain
    limitations" on bicycle use but supported that decision by reference to the principles of "public
    safety, resource protection, and the avoidance of visitor conflicts." Further, to the extent that
    its decision was based upon the elimination of management categories, NPS noted in its response to
    a comment that the elimination of management categories had been agency policy since 1978 and
    referred to a change in NPS's general regulations in 1983-84 in which the reasons for this policy
    were set out at length. 52 Fed. Reg. at 10671. In its "background" discussion, NPS noted that "The
    evolution of the National Park System, new statutory authorities and directions, . . . [and]
    modifications in recreation and visitation patterns . . . have all contributed to rendering many
    of the existing NPS regulations unnecessary, ineffective and/or otherwise outdated. This
    rulemaking represents an effort on the part of the NPS to strengthen its overall traffic safety
    program and, in the process, to update and clarify certain of its traffic regulations and delete
    others that are unnecessary." 52 Fed. Reg. at 10670. Therefore, even assuming arguendo that NPS's
    decision to revise section 4.30 represents a reversal of policy, NPS has provided the "reasoned
    analysis" necessary to support such a change. State Farm, 467 U.S. at 57. This reasoned analysis
    by NPS, discussing and balancing relevant conflicting policies, further forecloses any argument
    that this regulation is "arbitrary" under Chevron. Finally, even such a "changed" position still
    stems from a permissible (if not mandated) interpretation of the Organic Act. Therefore, this
    Court has no basis on which to find that 36 C.F.R. section 4.30 as amended is invalid in light of
    the National Park Service Organic Act.
    2. NEPA Plaintiffs also challenge the 1987 rulemaking on the basis that NPS did not prepare an
    Environmental Impact Statement (EIS) or even an Environmental Assessment (EA) in the course of
    amending 36
    C.F.R. section 4.30. Defendants argue that no EIS was needed because this rulemaking was not a major
    federal action having a significant impact on the quality of the human environment, and that
    no EA was needed because this rulemaking fell within an appropriate categorical exclusion.
    The Court reviews an agency decision not to prepare an EIS under an "arbitrary or capricious"
    standard. Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir. 1993);
    Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.)[, amended and superseded on
    denial of reh'g, 14 F.3d 1324 (9th Cir. 1992)]. This standard also applies to an agency's
    determination that a particular action falls within one of its categorical exclusions.*fn5
    Citizens For the Scenic Svern River v. Skinner, 802 F.Supp. 1325, 1333 (D. Md. 1991)[, aff'd,
    972 F.2d 338 (4th
    Cir. 1992)]; see also Jones v. Gordon, 792 F.2d 821, 827-29 (9th
    Cis. 1986) (applying the standard for reviewing a decision not to prepare an EIS (at that time,
    for "unreasonableness") to a decision that an agency action fell within one of its
    categorical exclusions).*fn6 NPS determined that the 1987 rulemaking did not require the
    preparation of an EA or an EIS because it was categorically excluded by departmental
    regulations in 516 DM 6 (49 Fed. Reg.
    21438), in that this rulemaking was "not expected to:
    (a) Increase public use to the extent of compromising the nature and character of the area or
    causing physical damage to it;
    (b) Introduce noncompatible uses which might compromise the nature and characteristics of the areas,
    or cause physical damage to it;
    (c) Conflict with adjacent ownerships or land uses; or
    (d) Cause a nuisance to adjacent owners or occupants." 52 Fed. Reg. at 10682. Plaintiffs argue that
    the changes to section 4.30*fn7 result in this rulemaking falling outside this categorical
    exclusion.
    e. Waiver [omitted]
    f. Arbitrary and Capricious
    . . . [T]his Court cannot find that NPS's determination that this rulemaking fell within a
    categorical exclusion was arbitrary or capricious. Rather, the determination was eminently
    reasonable. The closing of off-road areas to bicycle use (pending further particularized
    determinations of whether it is appropriate in particular cases) clearly falls within the
    categorical exclusion relied upon by NPS. This rule could reasonably be expected not to "increase
    public use to the extent of compromising the nature and character of the area" nor to "introduce
    noncompatible uses which might compromise the nature and characteristics of the area" nor to
    affect in any way adjacent land owners or land uses. Plaintiffs' arguments to the contrary border
    on sheer speculation. Plaintiffs suggest that the closing of trails might force bicyclists to ride
    in other areas, thereby compromising the nature of those areas.*fn8 However, the regulation makes
    clear that riding in any other nondeveloped area is also forbidden; the suggestion that closing
    trails will force bicyclists to break the law by riding on similarly closed protected areas is not
    convincing. To the extent that closing all off-road areas to bicycle use will force bicyclists
    onto paved roads more, it would not be arbitrary (or unreasonable) for the NPS to have concluded
    that this increased use of the paved roads and developed areas would not "compromis[e] the nature
    and character of the area or caus[e] physical damage to it," 52 Fed. Reg. at 10682, particularly
    in light of NPS's finding that "bicycle use [is] a very appropriate, low impact method for
    visitors to enjoy park areas." 52 Fed. Reg. at 10681. The new regulation in no way introduces any
    new use to the park system, much less an incompatible use." Nor does it in any way affect adjacent
    landowners. Plaintiffs' suggestion that the regulations would somehow force off-road bicyclists to
    trespass*fn9 on the property of adjoining landowners is unavailing; the agency should no more
    assume that citizens will violate any other law than that they will violate the regulation being
    promulgated. NPS's determination that its amendment of section 4.30 fit within a categorical
    exclusion and did not significantly impact the environment was reasonable and was not arbitrary
    and capricious. Therefore, NPS satisfied its obligations under NEPA when it reasonably determined
    that the categorical exclusion applies. It had no obligation to prepare an EA or an EIS. Thus, all
    of plaintiffs' challenges to the 1987 promulgation of 36
    C.F.S. section 4.30 fail.*fn10
    D. THE 1992 GGNRA TRAIL PLAN Plaintiffs also challenge the 1992 GGNRA trail plan promulgated by
    NPS. After a series of hearings conducted by GGNRA officials, NPS proposed a rule designating
    GGNRA trails for various uses and published this proposed rule in the Federal Register on
    January 29, 1992. 57 Fed. Reg. 3392. The final rule was announced on December 11, 1992. 57 Fed.
    Reg. 58711. The change was codified at 36 C.F.R. section 7.97(c). In stark contrast to
    plaintiffs' lack of participation in the 1987 rulemaking process, plaintiffs were intimately
    involved with every step of the development of the GGNRA trail designation plan--a process that
    consumed approximately five years. GGNRA is established by statute at 16 U.S.C. section 460bb.
    This section also provides the purposes for which the Secretary of the Interior, through NPS,
    should manage GGNRA: In the management of the recreation area, the Secretary of the Interior
    (hereinafter referred to as the "Secretary") shall utilize the resources in a manner which will
    provide for recreation and educational opportunities consistent with sound principles of land
    use planning and management. In carrying out the provisions of this subchapter, the Secretary
    shall preserve the recreation area, as far as possible, in its natural setting, and protect it
    from development and uses which would destroy the scenic beauty and natural character of the
    area. 16 U.S.C. section 460bb. The GGNRA subchapter further provides: The Secretary shall
    administer the lands, waters and interests therein acquired for the recreation area in
    accordance with the provisions of sections 1 and 2 to 4 of this title, as amended and
    supplemented, and the Secretary may utilize such statutory authority available to him for the
    conservation and management of wild life and natural resources as he deems appropriate to carry
    out the purposes of this subchapter. 16 U.S.C. section 460bb-3(a). "Sections 1 and 2 to 4 of
    this title" of course refers to the National Park Service Organic Act, 16 U.S.C. sections 1 and
    2 to 4 (discussed at length above). Thus, in order to open unpaved trails or other undeveloped
    areas for bicycle use, the Secretary had to comply with 36 C.F.R. section 4.30 and therefore
    promulgate as a special regulation the trail designation plan and reach "a written determination
    that such use is consistent with the protection of a park area's natural, scenic, and aesthetic
    values, safety considerations and management objectives and will not disturb wildlife or park
    resources." 36 C.F.R. section 4.30(a). In announcing the final rule, the Secretary did make such
    a written determination. 57 Fed. Reg. 58711. Plaintiffs challenge the final trail plan. They
    allege that the agency action was arbitrary and capricious in violation of the APA. They also
    allege that NPS violated NEPA by failing to prepare an EIS. In order to address these claims, a
    detailed discussion of the process leading to this final trail designation plan is appropriate.
    On January 7, 1988, in response to the revised 36 C.F.R. section
    4.30, GGNRA officials presented a draft bicycle use plan at a GGNRA Advisory Commission meeting.
    People at the meeting expressed concern both over the restriction of mountain bike access
    resulting from this plan*fn11 and over potential further user group conflicts resulting from any
    continued bicycle access within the trail system. To address these concerns, an Ad Hoc Bicycle
    Trail Subcommittee was established to review the trail system and make a recommendation for
    designation of bicycle trails. This Subcommittee consisted of two members each of the bicycling,
    hiking, and equestrian constituencies. The Subcommittee presented both a majority and a minority
    report to the Marin committee of the Advisory Commission in May of 1988. In March of 1990, NPS
    developed an EA considering each of four alternate trail designation plans ranging from no trail
    access to nearly total trail access for bicycles.*fn12 This EA considered both the majority and
    the minority reports of the Subcommittee, with some minor modifications, as two of the four
    alternatives. In November of 1990, the GGNRA staff issued a report on the March 1990 EA. In
    developing its report, the staff held four public hearings, held three individual user group
    workshops (one each for bicyclists, hikers, and equestrians), considered hundreds of letters from
    individuals and dozens of letters from organizations, heard the testimony of dozens of individuals
    at both the public hearings and the subsequent GGNRA Advisory Commission meetings, and considered
    observations and views of experts and staff members. The staff report discussed in detail the
    various constituent positions and the staff recommendations regarding the purposes of the park,
    safety and visitor enjoyment, environmental issues and concerns, and the need for a useable trail
    system. The staff report continued in great detail to spell out recommendations regarding how each
    particular trail in the park should be designated. The staff recommendations included
    significantly more trails open to bicycle use than had been provided for in the original 1988
    plan. This staff report was itself circulated for public review and comment. Pursuant to the
    review and comment on the EA and the staff report (which ultimately became the NPS proposed trail
    designation plan), a "supplemental environmental assessment and finding of no significant impact"
    ("SEA/FONSI") was completed in May of 1991. It concluded that allowing bicycle use of trails as
    provided in the staff report "is consistent with the protection of the natural, scenic, aesthetic
    values, safety considerations and management objectives of the GGNRA, and will not disturb
    wildlife or park resources" and that "the proposed project is not a major federal action
    significantly affecting the quality of the human environment, nor is it one without precedent or
    similar to one which normally requires an [EIS]." The "SEA/FONSI" also discussed in detail the
    changes in trail designations and the reasoning behind and the impacts of opening and not opening
    some particular trails. In January of 1992, the final trail plan was published in the Federal
    Register as a proposed special regulation, and public comment was solicited. Again, voluminous and
    spirited public comment was received. In December of 1992, NPS published a Federal Register notice
    adopting as a special regulation the final Trail Use Designation Plan. 57 Fed. Reg. 58711. This
    publication included detailed responses to public comments that had been received.
    5. Arbitrary and Capricious Plaintiffs argue that the final plan as adopted is arbitrary and
    capricious because it is based on inadequate data, that no rational connection is established
    between the data found and the results reached, that the NPS failed to consider relevant
    criteria, and that the resulting plan is inconsistent with (and therefore an impermissible
    construction of) the GGNRA Act. Specifically, plaintiffs focus upon four arguments:*fn13
    (6) NPS failed to give sufficient consideration to the recreation criterion in reaching
    its decision,
    (7) this failure results in the plan being inconsistent with the GGNRA Act in that "recreation"
    is not recognized as the paramount interest,
    (8)NPS lacked data or a rational basis upon which to determine that its goal of
    resource-protection would be served by closing*fn14 particular trails to bicycle use, and
    (9) NPS lacked data or a rational basis upon which to decide that the goals of "visitor safety"
    and "reducing user conflict" would be served by closing particular trails to bicycle use.
    None of these arguments has merit. The Court will address them in turn.
    a. NPS Carefully Considered Recreation and All Other Relevant Criteria Plaintiffs argue that by
    failing to address the recreational interests of mountain bicyclists, NPS failed to consider a
    relevant criterion for its decision. An agency decision can be found arbitrary and capricious
    where the agency "entirely failed to consider an important aspect of the problem." Motor
    Vehicles Mfrs. Assn. v. State Farm, 463 U.S. at 43. The GGNRA Act clearly envisions that the
    park will be operated in a manner which will "provide for recreational and educational
    opportunities consistent with sound principles of land use planning and management." 16 U.S.C.
    section 460bb. Therefore, a failure by the NPS to address recreational concerns could be a basis
    for invalidating agency action. The NPS in this case, however, addressed in tremendous detail
    the recreational interests both of users vis-a-vis resource protection and of users vis-a-vis
    competing users. Indeed, from the very start NPS (and GGNRA) officials sought participation and
    comments from at least three major recreational user groups: the bicyclists, the hikers, and the
    equestrians. A special committee consisting of members of each group was formed to prepare a
    report, and both the majority and minority committee positions were discussed in the EA and the
    staff report. Particular concerns of each user group were repeatedly aired both at open hearings
    and through letters and the comment process. Special user group workshops were held such that
    each group could further express its concerns to park officials. In short, once it became clear
    early in the process that environmental concerns would be negligible, recreational issues were
    by far the predominant concern of NPS and GGNRA officials throughout the development of the
    Trail Use Designation Plan. The bicyclists' complaint is that their interests were not given
    priority. They complain that park officials failed to give adequate consideration to the quality
    of the mountain bicycling experience in that several "single-track" and "loop" trails were
    closed to bicycles and that no concern was given the need to accommodate the most skilled
    bicyclists by providing them steep and difficult trails. But this complaint is really just a
    disagreement with the outcome of the process. Park officials clearly considered these factors,
    and the bicyclists were given abundant opportunities to impress upon park officials these
    concerns. For example, in the staff report of October 1990, park officials noted: Clearly the
    most controversial aspect of the National Park Service deliberation over trail designations has
    been the question of whether or not single track trails should be designated for bicycle use.
    Care has been taken to avoid making a blanket policy decision on this issue by evaluating each
    individual stretch of trail. Nevertheless, with only one exception, . . . no single track trails
    were found suitable for bicycle use. Two considerations were key in this evaluation
    process--user conflicts and resource protection. Nearly all of the single track trails in the
    Headlands are narrow treads located on extremely steep hillsides. In summarizing public
    comments, the staff report noted letters from bicyclist organizations emphasizing the
    desirability of a "single-track" experience. Finally, in the notice of the final rule published
    in December 1992, NPS again addressed the bicyclists' concern that "the variety and quality of
    cyclists' experience will be diminished." NPS responded: Compared with the present unrestricted
    bicycle use of the park, the proposed regulation will certainly diminish the options of cyclists
    accustomed to this freedom. However, with access to over 64% of the park's designated trail
    system, experiences that will remain available to cyclists are numerous and varied. With the
    exception of the SCA/New Coastal trail, few distinct "places" in the park will be rendered
    inaccessible to bicyclists. NPS considered the recreational interests of the bicyclists, just as
    it considered the interests of the hikers and the equestrians. NPS balanced these interests
    against what it viewed to be competing interests in resource protection and visitor safety, as
    well as the recreational desires of hikers and equestrians to have access to some bicycle-free
    trails. Whether or not plaintiffs agree with the result they cannot accurately contend that NPS
    failed to even consider recreational interests when it promulgated the 1992 trail plan.
    b. The Final Trail Plan is Based Upon a Permissible Interpretation of the Relevant Legislation
    Plaintiffs argue that NPS, by compromising the recreational interests of mountain bicyclists,
    based its trail plan on a statutory interpretation inconsistent with the mandate of the GGNRA
    Act that the park be operated for recreational purposes. As noted above, an agency action based
    upon an impermissible construction of a statute is invalid. Chevron, 467 U.S. at 843. Plaintiffs
    argue that any construction of the GGNRA Act that does not recognize recreation as the primary
    purpose of the Act is such an impermissible construction. This argument fails. The GGNRA Act
    does not require that recreational opportunities be provided in complete derogation of any other
    interests. Rather, the Act specifically provides that recreational opportunities be provided
    "consistent with sound principles of land use planning and management" and that "In carrying out
    the provisions of this subchapter, the Secretary shall preserve the recreation area, as far as
    possible, in its natural setting, and protect it from development and uses which would destroy
    the scenic beauty and natural character of the area." 16 U.S.C. section 460bb. Further, the
    Secretary is commanded to administer GGNRA "in accordance with the provisions of sections 1 and
    2 to 4 of this title," the NPS Organic Act discussed above (which as noted above includes as an
    overarching concern the goal of resource protection); and the Secretary "may utilize such
    statutory authority available to him for the conservation and management of wildlife and natural
    resources as he deems appropriate to carry out the purposes of this subchapter." 16 U.S.C.
    section 460bb-3. For NPS to consider factors other than recreation and to temper recreational
    uses by its concern for resource protection and visitor safety is not indicative of an
    impermissible construction of the GGNRA and NPS Organic Acts. Further, the GGNRA Act in no way
    mandates that any particular type of recreation be given primacy over other types. There is
    simply nothing in the GGNRA Act or the NPS Organic Act requiring the NPS to give bicyclists
    unfettered reign of the park without regard to the recreational interests of those whose chosen
    mode of recreation is inconsistent with such unfettered reign. These statutes certainly do not
    mandate the interpretation that bicycles must be allowed to roam free through the park. Since a
    contrary interpretation--that NPS has the authority to regulate and allocate recreational uses
    among user groups--is clearly permissible, see Kleppe, 608 F.2d at 1253 ("Allocation of the
    limited use between two groups . . . is well within the area of administrative discretion
    granted to the NPS"), and since the 1992 trail plan is based upon such an interpretation of the
    statutory scheme, this Court must uphold the validity of the Plan as based upon a permissible
    statutory construction.
    c. NPS Reasonably Relied Upon Evidence Showing That Restricting Mountain Bicycle Access Would Serve
    the Goal of Resource Protection Plaintiffs argue that NPS lacked sufficient evidence upon which
    to conclude that bicycle use of certain of the closed trails was inconsistent with resource
    protection. Further, plaintiffs argue that the NPS failed to articulate a reasoned connection
    between any evidence of resource damage and the decision to close particular trails. "In order
    for an agency decision to be upheld under the arbitrary and capricious standard, a court must
    find that evidence before the agency provided a rational and ample basis for its decision."
    Northwest Motorcycle Assn., 18 F.3d at 1471. "After considering the relevant data, the [agency]
    must `articulate a satisfactory explanation for its action including a rational connection
    between the facts found and the choice made.'"
    Cit. (citations omitted). As noted above, one rationale for the closing of particular trails to
    bicycle use was that doing so served the goal of resource protection (another rationale, to
    promote safety and avoid user conflict, is discussed below).*fn15 Therefore, in order to uphold
    this agency action of promulgating the trail plan on the basis of resource protection, this
    Court must find that ample evidence supported the agency's findings of resource damage and that
    the agency articulated a reasoned connection between stemming this resource damage and its
    decision to prevent bicycle use of some trails. The staff report and the environmental
    assessments addressed the impact on natural resources from permitting bicycle use on park
    trails. Two resource protection concerns were addressed by park officials as supporting
    restricted bicycle use. First, park officials noted serious erosion problems on certain steep
    narrow trails and determined that restricting bicycle use would slow such erosion. Second, park
    officials noted that on narrow trails bicyclists passing other users would either leave the
    trail or force the other users off the trail to the detriment of off-trail vegetation and
    wildlife.*fn16 Regarding erosion, NPS conducted a "GGNRA Erosion Rehabilitation Survey" in 1990
    detailing significant erosion problems with several of the GGNRA trails, particularly the steep
    and narrow ones. This erosion problem was further documented by numerous reports in letters and
    testimony of users and staff who had observed this erosion. While bicyclists insisted that the
    erosion was caused by poor trail maintenance and not by bicycle use, park officials noted in
    the staff report that "A great deal of conflicting opinion was received regarding the effects
    of bicycles and/or horses on soil erosion and trail damage" but that most agree, however, that
    trail maintenance needs are increased by both of these activities." In the original EA, NPS
    found that "Downhill bicycle travel on steep slopes is usually accompanied by braking and often
    by skidding which tends to push dislodged surface gravels into ditches, water bars, and drains.
    Heavy bicycle use on steep trails usually requires that these ditches, water bars, and drains
    be cleared more frequently than those used by hikers and equestrians only." Detailed letters
    and reports in the administrative record evidence user and staff experience supporting this
    finding that bicycle use exacerbates steep trail erosion. While many bicyclists seem to express
    disagreement with this finding and argue that bicycle use does not cause erosion, the NPS is
    not required to embrace the bicyclists' evidence and is free in its exercise of expertise to
    give conflicting evidence whatever weight it deems appropriate in light of the accuracy and
    credibility of such evidence. As long as ample evidence supports the NPS determination, this
    Court is not free to substitute its judgment for that of the agency. There is ample evidence
    throughout the administrative record of an erosion problem on certain GGNRA trails and of
    bicycle use exacerbating this problem. Therefore, plaintiffs' argument that this finding is
    unsupported by the evidence must fail. Regarding the damage to plant life, the administrative
    record is again replete with letters and reports indicating that when bicyclists pass hikers or
    equestrians on narrow trails at least one of the users is forced off of the trail and onto
    surrounding plant life. This is not surprising since the administrative record also includes
    evidence that mountain bicycle handlebars are often as wide as 24 inches across while some of
    the single track trails are as narrow as 18 to 36 inches across. Even on slightly wider paths,
    there is evidence that bicyclists often occupy the center of the trail and travel in groups,
    thus further limiting the space available for other users when the bicyclists pass them.
    Further, there was evidence that many bicyclists had difficulty staying on the trails where the
    steepness of the trail caused high speeds and the narrowness of the trails gave little margin
    for error and made sharp turns difficult. Park staff and visitors reported that bicyclists on
    these steep narrow trails often skidded to control their speed, slid off of trails on sharp
    turns, or cut across offtrail areas at certain "switch-backs." Finally, there was abundant
    evidence that this trampling of off-trail vegetation was damaging the plant life; this evidence
    included not only numerous letters and reports by users and staff but also a study commissioned
    by plaintiff Bicycle Trails Council of Marin in which the evaluator found damage to certain
    Lupine plant species along one narrow trail as a result of trampling by park users.*fn17
    Therefore, there was ample evidence in the administrative record from which NPS could
    reasonably conclude that bicycle use of certain trails resulted in trampling of and damage to
    the park's natural plant life resources. After determining that NPS had ample evidence upon
    which to find that bicycle use contributed to resource damage (in the form of erosion and
    trampled vegetation), the next question is whether the agency articulated a reasoned connection
    between these facts found and the final agency action undertaken--closing (or not opening)
    certain trails to bicycle use. NPS did this. For example, in discussing why all single-track
    trails but one were closed to bicycle use, the staff report states: "Two considerations were
    key in this evaluation process--user conflict and resource preservation. Nearly all of the
    single track trails in the Headlands are narrow treads located on extremely steep hillsides. In
    most cases, when a bicycle needs to pass another user, one or the other is required to step or
    ride off the trail ahead. This obviously results in trampled vegetation and erosion at the
    trail margins. On the steepest trails, whose alignments run at right angles to these contours,
    . . . unavoidable skidding results from the need to curtail bicycle speed which therefore
    causes erosion of the trail tread itself." A staff report discussion of why two particular
    narrow trails were closed noted: "Staff recommendations for each of these trails would restrict
    their use to hikers only to avoid impacts to [neighboring] sensitive species." Further, in the
    publication of the final rule NPS cited concerns with erosion and plant life damage as a factor
    both in its decision to close most singletrack trails to bicyclists and in its discussion of 3
    of the 4 particular trails mentioned in its response to the comments requesting that certain
    trails be opened. Further, throughout the process of developing the EA, the staff report, the
    SEA/FONSI, the proposed rule, and the final rule, throughout the public hearings and meetings,
    and throughout the written manifestations of the NPS position as it developed during this five
    year process, NPS made clear and articulated repeatedly that one of its concerns in restricting
    bicycle use was that erosion and the trampling of vegetation was curtailed. The number of
    letters and comments addressing these issues (including letters and comments from plaintiffs
    and their constituents) make clear that everyone knew that this was a primary concern of NPS.
    This is not a case where the agency has thought up some rationale after the fact to justify its
    action. Rather, NPS provided a reasoned articulation of its concern for resource protection and
    the relationship of its proposed conduct to this issue throughout this rulemaking process. In
    summary, the NPS's resource-protection rationale was both supported by ample evidence in the
    record and reasonably related to the agency action undertaken. This rationale was not
    pretextual; rather, it was actually supportive of the agency action. The agency repeatedly and
    reasonably articulated that its action was being undertaken in service of this
    resource-protection rationale. Under these facts, NPS did not act in an arbitrary and
    capricious manner.
    d. NPS Reasonably Relied Upon Evidence Showing That Restricting Mountain Bicycle Use Plaintiffs
    also argue that NPS lacked sufficient evidence upon which it could find that prohibiting bicycle
    use of certain trails would reduce user conflict and enhance visitor safety. As above,
    plaintiffs again maintain that this rationale is pretextual and that NPS failed to articulate a
    reasonable connection between the facts found and the agency action undertaken. Ample evidence
    in the administrative record supports the finding by NPS that bicycle access to all trails
    increases incidents of user conflict and compromises visitor safety. The record includes
    hundreds of letters from park users recounting stories of collisions or near misses with
    speeding or reckless bicyclists on all kinds of trails but particularly on steep and narrow
    trails. Hikers and bird watchers repeatedly told how they have been forced off of trails by
    speeding bicycles and how they have had their peace and solitude on the trails interrupted by
    bicycles that--because they are quiet and fast--seemed to appear out of nowhere and be
    immediately upon the hikers and other users. Equestrians told how their horses have been
    startled by speeding or oncoming bicycles and have become restless, on several occasions even
    throwing and injuring experienced riders. Though most users admitted that the great majority of
    bicyclists were polite and safety-conscious, letters from hikers, equestrians, bird watchers,
    joggers, and other users also repeatedly recounted incidents of rudeness, threats, and
    altercations when they have complained to an offending bicyclist about dangerous conduct. Park
    staff also reported having received such complaints. Plaintiffs contend that the only credible
    evidence of user conflict would be a survey or study performed scientifically to determine how
    many conflicts occur and how and why they occur. Plaintiffs note that the staff report admits:
    "The number of formally reported accidents involving bicycles on GGNRA Marin trails is small (22
    from January 1987-September 1990) and in most cases involve only the cyclist," and that the
    publication of the final rule echoes this finding. Plaintiffs argue that only by counting
    accident reports or other objectively verifiable indicators of conflict and risk can NPS arrive
    at a reasonable conclusion that user conflict and danger exist. Plaintiffs argue that by relying
    on subjective individual reports of user conflict, NPS allowed its decision making process to be
    manipulated by non-bicyclists pursuing a political (not safety-based) agenda against bicycles.
    The Ninth Circuit recently rejected this identical argument in Northwest Motorcycle Assn. v.
    USDA, 18 F.3d 1468, 1475-77 (9th
    Ciu. 1994). As in Northwest Motorcycle, here "it appears that the public comments received by the
    Defendants were the primary basis for the Defendants' finding of `user conflict.'" Id. at
    1475. The Ninth Circuit in Northwest Motorcycle noted that the plaintiff in that case
    "strenuously contends that the comments made should be disregarded because the individuals are
    interested parties and their comments were unverifiable. The Plaintiff would have the
    Defendants attempt to somehow objectively quantify the extent of conflict. Id. at 1475. But
    the Ninth Circuit rejected this argument and held that subjective reports by park visitors of
    user conflict could support a reasonable agency determination that such conflict existed:
    Individual comment is a very persuasive indicator of "user conflict," for determining the
    existence of conflicts between humans cannot be numerically calculated or counted; rather, the
    existence of conflict must be evaluated. The court can envision no better way to determine the
    existence of actual past or likely future conflict between two user groups than to hear from
    members of those groups.
    Civ. at 1475. NPS in this case definitely "hear[d] from members of those groups." Along with the
    hundreds of letters received at all stages of the process, NPS received input from hikers,
    bicyclists, equestrians, and other users through four public hearings, three individual group
    workshops, the majority and minority reports of an ad hoc bicycle trails subcommittee
    consisting of representatives of various user groups, and numerous consultations and meetings
    by park officials with interested groups and individuals and the GGNRA Advisory Commission.
    NPS's finding that user conflict and visitor danger would be reduced by limiting bicycle trail
    access in GGNRA was supported by ample evidence. Further, NPS articulated a reasoned
    connection between this finding and the final agency decision to close (or not open) some
    trails to bicycle use. In the publication of the final rule, NPS states: "Notwithstanding the
    responsible user, bicycles are often perceived by other users as a disruptive influence on
    park trails. Although most of the few reported bicycle accidents in the park involve only
    single individuals, letters and reports from hikers and equestrians tell of many close calls
    and confrontational and unsettling experiences. The amount of bicycle free trails provided
    under the regulation seems a modest and reasonable response to these concerns." Further,
    throughout the review and comment period and the publication of the EA, the staff report, the
    SEA/FONSI, the proposed rule, and the final rule, NPS made clear its reasoning regarding the
    reduction in bicycle trail access and its relationship to easing user conflict and improving
    visitor safety. Again, as was the case regarding the resource protection rationale, the safety
    and conflict rationales have been carefully explained and defended throughout the entire trail
    plan promulgation process.*fn18 Since ample evidence supported the NPS finding that bicycle
    access to all trails increased user conflict and decreased visitor safety, and since NPS
    articulated a reasoned connection between these facts and the final agency action of closing
    some trails to bicycles, this Court cannot find such agency action to be arbitrary and
    capricious on this basis.
    2. NEPA And The 1992 Trail Plan Plaintiffs also challenge the 1992 trail plan on the basis that NPS
    failed to perform an Environmental Impact Statement (EIS) pursuant to NEPA. An EIS must be
    prepared whenever there is contemplated a major federal action having a significant impact on the
    human environment. 42 U.S.C. section 4332(2)(C). Where an Environmental Assessment (EA) is
    performed, an agency decision not to complete an EIS is reviewed under the arbitrary and
    capricious standard. Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 980 (9th Cir.
    1993). Under this standard, a reviewing court "still must ensure that an agency has taken a `hard
    look' at the environmental consequences of its proposed action, . . . carefully reviewing the
    record to ascertain whether the agency decision is founded on a reasoned evaluation
     
    Tags:


  2. Danny

    Danny Guest

    I did the search for Narrow and single.. and it kept coming back to your thought process... sigh.

    Danny

    "Mike Vandeman" <[email protected]> wrote in message
    news:[email protected]...
    > Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir.
    1996):
    > interpreting Organic Act to give Park Service authority to close mountain
    bike
    > trails; agency finding that trails would endanger park values was not
    arbitrary
    > or capricious.
    >
    > The legal decision that seems to define the impact of mountain bikes on
    the
    > environment and the possible safety issues is Marin v. Babbitt. You
    probably
    > already know this, but the result of this court decision is that mountain
    bikes
    > generally are not allowed on narrow trails in the NPS system, and other agencies, such as the
    > EBRPD in the East Bay, have usually followed this
    ruling
    > in creating their own regulations. Attached is the opinion in ASCII text.
    If you
    > search for "narrow" or "single" in the text you will quickly get to the interesting places.
    > ---------------------------------------------------
    >
    > UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BICYCLE TRAILS COUNCIL OF MARIN, a California
    > Nonprofit corporation; BICYCLE TRAILS COUNCIL OF THE EAST BAY, a California nonprofit corporation;
    > INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California nonprofit corporation; LEAGUE OF
    > AMERICAN WHEELMEN, a Maryland nonprofit corporation, et al., Plaintiffs-Appellants,
    > v.BRUCE BABBITT,*fn* Secretary of the Interior; JAMES M. RIDENOUR, Director of the National Park
    > Service; BRIAN O'NEILL, General Superintendent of the Golden Gate National Recreation Area,
    > Defendants-Appellees, SIERRA CLUB; BAY AREA TRAILS PRESERVATION COUNCIL; THE NATIONAL PARKS
    > AND CONSERVATION ASSOCIATION, et al. Defendants-Intervenors-Appellants. No. 94-16920
    > D.C. No. CV-93-00009-EFL ORDER Appeal from the United States District Court for the Northern
    > District of California Eugene F. Lynch, District Judge, Presiding Argued and Submitted
    > February 15, 1996--San Francisco, California Filed May 6, 1996 Before: Stephen Reinhardt,
    > David R. Thompson, and Diarmuid F. O'Scannlain, Circuit Judges COUNSEL Terry J. Houlihan,
    > McCutchen, Doyle, Brown & Enersen, San Francisco, California, for the plaintiffs-appellants.
    > Robert L. Klarquist, United States Department of Justice, Washington, D.C., for the
    > defendants-appellees. ORDER We affirm the district court's grant of summary judgment in favor
    > of defendants, authored by the Honorable Eugene F. Lynch. We adopt the district court's
    > thorough and well-reasoned order granting summary judgment, with the exception of the waiver
    > analysis in Parts III(A)(1)(a) and
    > III(A)(2)(a), as to which we express no opinion. The district court's order is appended hereto, as
    > amended to reflect the omission of the waiver analysis. AFFIRMED. UNITED STATES
    > DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BICYCLE TRAILS COUNCIL OF MARIN, a
    > California nonprofit corporation, BICYCLE TRAILS COUNCIL OF THE EAST BAY, a California
    > nonprofit corporation, INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California
    > nonprofit corporation, LEAGUE OF WHEELMEN, a Maryland nonprofit corporation, CHARLES
    > CUNNINGHAM, ANGELA DIMEGLIO, LINDA ENIS, DAVID GAROUTTE, ALAN GOLDMAN, STEPHEN HOXIE,
    > JAMES E. JACOBSON, ABBY MINOT, TODD OURSTEN, and ADRIENNE SHAPIRO, as individuals,
    > Plaintiffs,
    > v.BRUCE BABBITT, Secretary of the Interior, JAMES M. RIDENOUR, Director of the National Park
    > Service, BRIAN O'NEILL, General Superintendent of the Golden Gate National Recreation Area,
    > Defendants; BAY AREA TRAILS PRESERVATION COUNCIL, et al., Defendant-Intervenors. No. C-93-0009
    > EFL ORDER GRANTING DEFENDANTS SUMMARY JUDGMENT FILED SEPTEMBER 1, 1994
    > I. INTRODUCTION Plaintiffs challenge the National Park Service ("NPS") regulations governing the
    > use of bicycles within areas administered by it, including the Golden Gate National
    > Recreation Area ("GGNRA"). Specifically, plaintiffs seek review of both the regulations set
    > forth at 36 C.F.R. section 4.30 ("the 1987 regulation"), which applies generally to NPS
    > lands, and the Marin Trails Use Designation Plan for GGNRA adopted as the final rule at 57
    > Fed. Reg. 58711-16 (Dec. 11, 1992) (codified at 36 C.F.R. section 7.97) ("the 1992 trail
    > plan").
    > II. BACKGROUND In 1964, NPS at its own initiative implemented a management by categories scheme
    > by which units of the National Park System would be classified "natural,""historical," or
    > "recreational,"*fn1 and by which management policies would be formed so as to regulate these
    > three types of units in conformity with their differing classifications. The effect of this
    > scheme would be, inter alia, that recreational units would be managed in a less restrictive
    > and less resource-protective manner than units classified natural or historical. Under this
    > scheme, NPS in 1966 decided to alter its longstanding policy regarding bicycle use in park
    > units from one wherein all trails were closed unless designated open to one in which the old
    > rule generally applied except in units classified as recreational, in which trails would be
    > presumed open to bicycle use unless designated closed by the local park superintendent. By a
    > series of amendments to the National Park Service Organic Act, 16 U.S.C. sections 1 et seq.,
    > Congress disapproved of this management by categories scheme and directed that all units of
    > the national parks were to be treated consistently, with resource protection the primary
    > goal,*fn2 while retaining the flexibility for individual park units to approve particular
    > uses consistent with their specific enabling legislation. Thus, NPS eliminated these
    > management categories from its internal administration in 1978 and ultimately began
    > promulgating regulations in the 1980's eliminating these categorical distinctions from the
    > Code of Federal Regulations.*fn3 The elimination of the last regulatory reference to these
    > management categories was one of the objectives articulated by NPS for the rulemaking
    > effecting the 1987 regulation. See 52 Fed. Reg. 10670 (April 2, 1987). The 1987 regulation,
    > adopted pursuant to notice and comment, established a uniform rule for national park units
    > wherein all bicycle use of off-road areas would be prohibited unless local park
    > superintendents designated particular trails to be open. (As noted, this had previously been
    > the rule in all but the recreation units.) Local park officials determined that they would
    > not enforce this rule in the GGNRA until it was determined which trails would be open and
    > which closed to bicycle use. Thus, because of NPS's and the GGNRA uperintendent's exercise of
    > prosecutorial discretion, the 1987 regulation was not enforced and bicyclists in fact
    > retained access to all trails in the GGNRA pending the development of a trail use plan.
    > Finally, after a long and contentious trail designation process, the 1992 trail plan was
    > adopted (also pursuant to notice and comment) establishing which trails were to be open to
    > bicycles and which trails were to be closed. Plaintiffs applied to this Court for a
    > preliminary injunction against the enforcement of the 1992 trail plan. This application was
    > denied in February of 1993. Defendant-Intervenors' motion to intervene was granted on
    > February 18, 1993. Plaintiffs and defendants have filed cross-motions for summary judgment,
    > filed oppositions to one anothers' motions, and replied to these oppositions.
    > Defendant-Intervenors have filed an opposition to plaintiffs' motion for summary judgment and
    > a reply brief in support of defendants' motion. This motion has been submitted on the 1987
    > and 1992 administrative records. Having considered all of the briefs of the parties, and
    > having also considered the oral arguments presented at the hearing of November 12, 1993, this
    > Court stands ready to rule.
    > III. DISCUSSION As described above, plaintiffs challenge two agency actions: the adoption in 1987
    > of a revised 36 C.F.R. section 4.30 and the development and promulgation in 1992 of a trail
    > plan for the Marin Headlands section of GGNRA.
    > A. THE 1987 REGULATION The 1987 rule here challenged reads:
    > (a) The use of a bicycle is prohibited except on park roads, in parking areas and on routes
    > designated for bicycle use; provided, however, the superintendent may close any park road or
    > parking area to bicycle use pursuant to the criteria and procedures of SS
    > 1.5 and 1.7 of this chapter. Routes may only be designated for bicycle use based on a written
    > determination that such use is consistent with the protection of the park area's natural, scenic
    > and aesthetic values, safety considerations and management objectives and will not disturb
    > wildlife or park resources.
    > (b) Except for routes designated in developed areas and special use zones, routes designated for
    > bicycle use shall be promulgated as special regulations. 36 C.F.R. section 4.30. The National
    > Park Service Organic Act provides that the National Park Service shall: promote and regulate
    > the use of the Federal areas known as national parks, monuments, and reservations hereinafter
    > specified,
    > . . . by such means and measures as conform to the fundamental purpose of the said parks,
    > monuments, and reservations, which purpose is to conserve the scenery and the natural and
    > historic objects and the wild life therein and to provide for the enjoyment of the same in such
    > manner and by such means as will leave them unimpaired for the enjoyment of future generations.
    > 16 U.S.C. section 1. Additionally, the Organic Act provides: The Secretary of the Interior shall
    > make and publish such rules and regulations as he may deem necessary or proper for the use and
    > management of the parks, monuments, and reservations under the jurisdiction of the National Park
    > Service. 16 U.S.C. section 3.
    > 1. The Organic Act and Review Under Chevron The National Park Service Organic Act expressly
    > delegates rulemaking authority to the Secretary of the Interior to promulgate rules and
    > regulations to implement the Act. 16 U.S.C. section 3. Legislative regulations promulgated
    > pursuant to such express authority will be upheld "unless they are arbitrary, capricious, or
    > manifestly contrary to the statute." Chevron U.S.A., Inc. v. Natural Resources Defense Council,
    > Inc., 467 U.S. 837, 844 (1984). Plaintiffs challenge the 1987 regulation and seek to have it
    > vacated on the theory that it is arbitrary and not based upon a permissible interpretation of
    > the Organic Act. Defendants and Intervenors argue that the 1987 regulation was based upon a
    > mandated or at least clearly permissible interpretation of the Organic Act and its amendments.
    > a. Waiver [omitted]
    > b. Statutory Interpretation Plaintiffs challenge the legality of the regulation on the theory
    > that it is not based upon a permissible interpretation of the Organic Act. This challenge
    > fails. A review of the Organic Act and the history of its amendments shows that NPS based its
    > decision to eliminate the reference to management categories (and thus to eliminate the
    > special "recreation" unit rule) in the 1987 regulation on a mandated and certainly
    > permissible construction of the Organic Act and its amendments. In response to congressional
    > amendments to the Organic Act, NPS in 1978 began phasing out its usage of the "management
    > categories" that had been earlier developed to allow for the different treatment of different
    > classes of units in the National Park System. In the 1980's, NPS began eliminating such
    > distinctions in its regulations. NPS interpreted Congress's amendments to the Organic Act to
    > be clear in the message that NPS was not to single out a particular class of units of the
    > park system (i.e. recreational units) for less protective treatment, but that instead NPS was
    > to manage all units of the park system so as to effect the purpose of the Organic
    > Act--primarily resource protection. See 48 Fed. Reg. 30252 (June 30, 1983); Michigan United
    > Conservation Clubs v. Lujan, 949 F.2d 202 (6th Cir. 1991); National Rifle Assn. v. Potter,
    > 628 F.Supp. 903 (D.D.C. 1986). The 1987 amendment to section 4.30 was part of a rule-making
    > whose purposes included "to eliminate the remaining references to the management categories
    > formerly used to classify park areas." 52 Fed. Reg. 10670. Formerly, regulations promulgated
    > in 1966 had provided that in "historic" or "natural" park units, off-road trails and areas
    > were "closed-unless-designated-open" for bicycle use, while in "recreational" units off-road
    > trails and areas were "open-unless-designated-closed" for bicycle use. 36 C.F.R. section
    > 2.30 (1967ed.), moved to 36 C.F.R. section 4.3 (July 1, 1977 ed.). The new section 4.30 results
    > in a "closed-unless-designated-open" status for off-road areas in all park units.
    > Plaintiffs argue that even if NPS interpreted Congress's amendments to the Organic Act
    > as mandating consistency throughout the park system, the NPS decision to achieve this
    > consistency by applying the closed-unless-designated-open" rather than
    > open-unless-designated-closed" standard was arbitrary and not based upon a permissible
    > interpretation of the Organic Act. The Supreme Court has established a two-step process
    > for reviewing an agency's construction of a statute it administers: First, always, is
    > the question whether Congress has directly spoken to the precise question at issue. If
    > the intent of Congress is clear, that is the end of the matter; for the court, as well
    > as the agency, must give effect to the unambiguously expressed intent of Congress. If,
    > however, the court determines Congress has not directly addressed the precise question
    > at issue, the court does not simply impose its own construction on the statute, as
    > would be necessary in the absence of an administrative interpretation. Rather, if the
    > statute is silent or ambiguous with respect to the specific issue, the question for the
    > court is whether the agency's answer is based on a permissible construction of the
    > statute. Chevron, 467 U.S. at 842-43 (1984). At "step one," if a court "employing
    > traditional tools of statutory construction ascertains that Congress had an intention
    > on the precise question at issue, that intention is the law and must be given effect."
    > Id. at 843 n.9. At "step two," "The Court need not conclude that the agency
    > construction was the only one it permissibly could have adopted to uphold the
    > construction, or even the reading the court would have reached if the question
    > initially had arisen in a judicial proceeding." Id. at 843 n.10.
    > i. Chevron Step One Intervenors argue persuasively that this is a Chevron "step one" case in
    > that Congress clearly intended by its 1970 and 1978 amendments to the Organic Act that NPS
    > alter its practice of governing recreational park units under less restrictive standards and
    > instead manage all areas of the park system uniformly with the fundamental goal of resource
    > protection in mind. In the 1970 amendments to the Organic Act, Congress recognized that "the
    > national park system has grown to include superlative natural, historic, and recreation
    > areas," 16 U.S.C. section 1a-1, that "the purpose of this Act [is] to include all such areas
    > in the system and clarify the authorities applicable to the system," id., and that "the
    > various authorities relating to the administration and protection of areas under the
    > administration of the Secretary of the Interior, through the National Park Service, . . .
    > shall . . . be applicable to all areas within the national park system." 16 U.S.C. section
    > 1c(b). Further, the definition of "national park system" was changed so as to include for the
    > first time a reference to recreational areas: "The `national park system' shall include any
    > area of land and water now or hereafter administered by the Secretary of the Interior through
    > the National Park Service for park, monument, historic, recreational, or other purposes." 16
    > U.S.C. section 1c(a). Intervenors also argue that the legislative history of the 1970
    > amendments makes clear the congressional intent that those recreational park units not be
    > given less protective treatment than other units in the park system. For example, the House
    > Report, H.R. Rep. No. 91-1265, accompanying the bill amending the Organic Act, Pub. L. No.
    > 91-383, noted that because the Organic Act "contains no reference to more recent concepts
    > like national recreation areas, national seashores, or national lakeshore," . .
    > . "the usual rules of construction . . . could result in interpretations which would lead to the
    > administration of the system so that it would be almost devoid of uniformity." However, the
    > Organic Act (and some other statutes) "have desirable, useful, and necessary provisions and they
    > should be applicable uniformly throughout the National Park System." Thus, the bill's "Section 1
    > . . . emphasizes the common purpose of all units of the national park system and declares that its
    > purpose is to include all such areas in the system and to clarify the authorities applicable to
    > it." 1970 U.S. Code Cong. & Adm. News, Vol.2, 91st Cong., 2d Sess., at 3785-87. In the 1978
    > amendments to the Organic Act, Congress amended the Organic Act to read: "the promotion and
    > regulation of the various areas of the National Park System . . . shall be consistent with and
    > founded in the purpose established by Section 1*fn4 of this title, to the common benefit of
    > all the people of the United States." 16 U.S.C. section 1a-1. The purpose of this change was
    > described in the House Report as to add "a declaration by Congress that the promulgation and
    > regulation of the National Park System is to be consistent with the Organic Act for the
    > National Park Service. The protection of the units of the system is to be carried out in
    > accordance with the maintenance of the integrity of this system, and management of these areas
    > shall not compromise these resource values except as Congress may have specifically provided.
    > 1978 U.S. Code Cong. & Adm. News, 95th Cong., 1st sess., at 463. It was in response to the
    > 1978 amendments that NPS immediately began the process of eliminating from its regulations and
    > its management practices the management categories of "natural," "historic," and
    > "recreational" units. See 48 Fed. Reg. 30252. This Court agrees with Intervenors that the
    > statutory language and the legislative intent of the 1970 and 1978 amendments mandated that
    > NPS discontinue the practice of managing recreation areas under less protective rules than it
    > was using in managing natural and historic areas. The purpose of these amendments was to bring
    > recreational units (including recreation areas, seashores, and lakeshores) into the fold and
    > require that they be managed consistently with the rest of the system. Congress clearly
    > intended and mandated that NPS eliminate the distinctions and treat all units as it had been
    > treating those parks that had been expressly within the ambit of the Organic Act, the natural
    > and historic units, with resource protection the overarching concern. In light of this
    > mandate, NPS had no choice when amending section
    > 4.30 as between making all parks' trails "open-unless-designated-closed"--the prevailing practice
    > only in recreation units-- or closed-unless-designated-open"--the prevailing practice in the
    > natural and historic areas. NPS could only effect the intent of Congress by amending 4.30 such
    > that all parks were to be treated uniformly in the manner that natural and historical units had
    > previously been managed and thus that all trails were to be "closed-unless-designated-open." NPS
    > in amending section 4.30 (in accordance with its more general policy of eliminating management
    > categories and deleting the less restrictive "recreation" unit rules) acted so as to "give
    > effect to the unambiguously expressed intent of congress." See Chevron, 467 U.S. at 843. The
    > challenged regulation, therefore, is valid.
    > ii. Chevron Step Two Even if the intent of Congress were not so clear on this issue, the
    > regulation would still be upheld as based on a permissible interpretation of the Organic Act.
    > As noted above, legislative regulations promulgated pursuant to an express grant of statutory
    > rulemaking authority are valid "unless they are arbitrary, capricious, or manifestly contrary
    > to the statute." Chevron, 467 U.S. at 844. If an agency decision "`represents a reasonable
    > accommodation of conflicting policies that were committed to the agency's care by the
    > statute, we should not disturb it unless it appears from the statute or its legislative
    > history that the accommodation is not one that Congress would have sanctioned.'" Chevron, 467
    > U.S. at 845 (quoting United States v. Shimer, 367 U.S. 374, 383, 383
    > (1961)). As noted above, the Organic Act provides that NPS "shall promote and regulate the use of
    > the Federal areas known as national parks
    > . . . by such means and measures as conform to the fundamental purpose of the said parks, . . .
    > which purpose is to conserve the scenery and the natural and historic objects and the wild life
    > therein and to provide for the enjoyment of the same in such manner and by such means as will
    > leave them unimpaired for the enjoyment of future generations," 16 U.S.C. section 1, and that
    > "The Secretary of the Interior shall make and publish such rules and regulations as he may deem
    > necessary or proper for the use and management of the parks." 16 U.S.C. section 3. Courts have
    > noted that the Organic Act is silent as to the specifics of park management and that "under such
    > circumstances, the Park Service has broad discretion in determining which avenues best achieve
    > the Organic Act's mandate. . . . Further, the Park Service is empowered with the authority to
    > determine what uses of park resources are proper and what proportion of the park's resources are
    > available for each use." National Wildlife Federation v. National Park Service, 669 F.Supp. 384,
    > 390 (D.D.C. Wyo. 1987), citing Organized Fisherman of Florida v. Hodel, 775
    > F.2d 1544, 1550 (11th Cir. 1985)[, cert. denied, 476 U.S. 1169
    > (1986)]; Sierra Club v. Andrus, 487 F.Supp. 443, 448 (D.D.C.
    > 1980), aff'd, Sierra Club v. Watt, 659 F.2d 203 (D.C. Cir. 1981); see also Wilderness Public
    > Rights Fund v. Kleppe, 608 F.2d 1250, 1253 (9th Cir. 1979)(noting that allocation of a
    > limited use between competing user groups "is well within the area of administrative
    > discretion granted to the NPS")[, cert. denied, 446 U.S. 982 (1980). A decision to limit
    > mountain bicycle use to trails affirmatively designated as appropriate for such use fails
    > comfortably within this broad grant of discretion to the Secretary under the Organic Act.
    > The Organic Act is unquestionably silent on the precise issue of bicycle trail access.
    > However, the Secretary is directed to conserve the natural elements of the parks for the
    > future, 16 U.S.C. section 1, to "provide for the enjoyment" of the parks, to manage the
    > parks "in light of the high public value and integrity of the National Park System," 16
    > U.S.C. section 1a-1, and to make such rules as "he may deem necessary or proper for the use
    > and management of the parks." 16 U.S.C. section 3. In light of this language, an
    > interpretation that the Organic Act allows for this closed-unless-designated open approach
    > for bicycle trail access cannot be termed "manifestly contrary to the statute." The
    > legislative history and the statutory amendments discussed above further reinforce this
    > finding. This regulation is thus based upon a permissible interpretation of the statute and
    > is valid on this alternate ground as well. Plaintiffs argue at length in their briefs and
    > almost exclusively at oral argument that the 1987 regulation is invalid because it reflects
    > NPS reversing its own earlier position on mountain bicycle use in recreation areas. Citing
    > the Supreme Court in Motor Vehicles Mfrs. Assn. v. State Farm, 463 U.S. 29, 57 (1983)("An
    > agency's view of what is in the public's interest may change, either with or without a
    > change in circumstances[,] but an agency changing its course must supply a reasoned
    > analysis."), plaintiffs argue that NPS's latest interpretation of the Organic Act as
    > expressed in 36 C.F.R. section 4.30 is entitled to less deference because NPS earlier
    > interpreted the Organic Act to reach an opposite conclusion regarding mountain bicycling in
    > recreation areas under its old 36 C.F.R. section 4.3. See, e.g., Immigration and
    > Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 446
    > n.30 (1987). Plaintiffs further argue that NPS did not provide the requisite "reasoned analysis"
    > to justify its change in position. Plaintiffs' argument relying upon State Farm fails
    > for at least three reasons. First, unlike State Farm where the agency flip-flopped in
    > its interpretation of a single unamended standard, this case involves a situation where
    > the agency changed its position to accommodate the amendments by Congress of the
    > underlying Act. NPS did not simply decide one day to reverse its position of the day
    > before. Rather, following amendments to the Organic Act and pursuant to a longstanding
    > policy by which NPS was eliminating its management categories, NPS changed 36 C.F.R.
    > section 4.30 so as to be consistent with the newly worded statute. Second, unlike State
    > Farm, this is not a case where the agency can be said to have changed its "policy."
    > Rather, as in Northwest Motorcycle Assn. v. USDA, 18 F.3d 1468, 1480 (9th Cir. 1994),
    > the agency modified its approach to further an existing policy, which included not just
    > the providing of recreational opportunities but also the consideration of "public
    > safety, resource protection and the avoidance of visitor conflicts." 52 Fed. Reg. at
    > 10681. Third, even accepting plaintiffs' argument on its own terms, this case is
    > distinguishable from State Farm in that here the NPS did provide a rational and
    > principled analysis of its decision to amend 36 C.F.R. section 4.30. See also Northwest
    > Motorcycle Assn., 18 F.3d at 1480 (change in policy by the agency is to be upheld where
    > the policy change is "based on a rational and principled reason"). In its announcement
    > of the final rule adopting section
    > 4.30, NPS stated: This section is a revision of the former section 4.3 and provides that the use
    > of bicycles is allowed in park areas under the same basic conditions as are motor vehicles, i.e.
    > on park roads, in parking areas, and on routes designated for their use. These provisions
    > reflect the facts that the NPS generally considers bicycle use a very appropriate, low impact
    > method for visitors to enjoy park areas, but that certain limitations on their use are necessary
    > and appropriate in the interest of public safety, resource protection, and the avoidance of
    > visitor conflicts.
    > . . . .
    > . . . . The NPS has determined that the designation of a bicycle route outside of such developed
    > areas, in areas whose primary purpose and land uses are related more to the preservation of
    > natural resources and values, would have a much greater potential to result in adverse resource
    > impacts or visitor use conflicts. This paragraph therefore provides for a much more stringent
    > decision making process for such a proposal by requiring a formal rulemaking. Such a process
    > will provide for a thorough review of all environmental and visitor use considerations and
    > assure the superintendent of having had the benefit of public review and comment before making a
    > decision on any proposed designation. 52 Fed. Reg. at 10681. NPS thus realized that it was
    > imposing "certain limitations" on bicycle use but supported that decision by reference to the
    > principles of "public safety, resource protection, and the avoidance of visitor conflicts."
    > Further, to the extent that its decision was based upon the elimination of management
    > categories, NPS noted in its response to a comment that the elimination of management categories
    > had been agency policy since 1978 and referred to a change in NPS's general regulations in
    > 1983-84 in which the reasons for this policy were set out at length. 52 Fed. Reg. at 10671. In
    > its "background" discussion, NPS noted that "The evolution of the National Park System, new
    > statutory authorities and directions, . . . [and] modifications in recreation and visitation
    > patterns . . . have all contributed to rendering many of the existing NPS regulations
    > unnecessary, ineffective and/or otherwise outdated. This rulemaking represents an effort on the
    > part of the NPS to strengthen its overall traffic safety program and, in the process, to update
    > and clarify certain of its traffic regulations and delete others that are unnecessary." 52 Fed.
    > Reg. at 10670. Therefore, even assuming arguendo that NPS's decision to revise section 4.30
    > represents a reversal of policy, NPS has provided the "reasoned analysis" necessary to support
    > such a change. State Farm, 467 U.S. at 57. This reasoned analysis by NPS, discussing and
    > balancing relevant conflicting policies, further forecloses any argument that this regulation is
    > "arbitrary" under Chevron. Finally, even such a "changed" position still stems from a
    > permissible (if not mandated) interpretation of the Organic Act. Therefore, this Court has no
    > basis on which to find that 36 C.F.R. section 4.30 as amended is invalid in light of the
    > National Park Service Organic Act.
    > 2. NEPA Plaintiffs also challenge the 1987 rulemaking on the basis that NPS did not prepare an
    > Environmental Impact Statement (EIS) or even an Environmental Assessment (EA) in the course of
    > amending 36
    > C.F.R. section 4.30. Defendants argue that no EIS was needed because this rulemaking was not a
    > major federal action having a significant impact on the quality of the human environment,
    > and that no EA was needed because this rulemaking fell within an appropriate categorical
    > exclusion. The Court reviews an agency decision not to prepare an EIS under an "arbitrary
    > or capricious" standard. Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 981
    > (9th Cir. 1993); Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.)[, amended
    > and superseded on denial of reh'g, 14 F.3d 1324 (9th Cir. 1992)]. This standard also
    > applies to an agency's determination that a particular action falls within one of its
    > categorical exclusions.*fn5 Citizens For the Scenic Svern River v. Skinner, 802 F.Supp.
    > 1325, 1333 (D. Md. 1991)[, aff'd, 972 F.2d 338 (4th
    > Cir. 1992)]; see also Jones v. Gordon, 792 F.2d 821, 827-29 (9th
    > Cir. 1986) (applying the standard for reviewing a decision not to prepare an EIS (at that time,
    > for "unreasonableness") to a decision that an agency action fell within one of its
    > categorical exclusions).*fn6 NPS determined that the 1987 rulemaking did not require the
    > preparation of an EA or an EIS because it was categorically excluded by departmental
    > regulations in 516 DM 6 (49 Fed. Reg.
    > 21438), in that this rulemaking was "not expected to:
    > (a) Increase public use to the extent of compromising the nature and character of the area or
    > causing physical damage to it;
    > (b) Introduce noncompatible uses which might compromise the nature and characteristics of the
    > areas, or cause physical damage to it;
    > (c) Conflict with adjacent ownerships or land uses; or
    > (d) Cause a nuisance to adjacent owners or occupants." 52 Fed. Reg. at 10682. Plaintiffs argue
    > that the changes to section 4.30*fn7 result in this rulemaking falling outside this
    > categorical exclusion.
    > a. Waiver [omitted]
    > b. Arbitrary and Capricious
    > . . . [T]his Court cannot find that NPS's determination that this rulemaking fell within a
    > categorical exclusion was arbitrary or capricious. Rather, the determination was eminently
    > reasonable. The closing of off-road areas to bicycle use (pending further particularized
    > determinations of whether it is appropriate in particular cases) clearly falls within the
    > categorical exclusion relied upon by NPS. This rule could reasonably be expected not to
    > "increase public use to the extent of compromising the nature and character of the area" nor to
    > "introduce noncompatible uses which might compromise the nature and characteristics of the area"
    > nor to affect in any way adjacent land owners or land uses. Plaintiffs' arguments to the
    > contrary border on sheer speculation. Plaintiffs suggest that the closing of trails might force
    > bicyclists to ride in other areas, thereby compromising the nature of those areas.*fn8 However,
    > the regulation makes clear that riding in any other nondeveloped area is also forbidden; the
    > suggestion that closing trails will force bicyclists to break the law by riding on similarly
    > closed protected areas is not convincing. To the extent that closing all off-road areas to
    > bicycle use will force bicyclists onto paved roads more, it would not be arbitrary (or
    > unreasonable) for the NPS to have concluded that this increased use of the paved roads and
    > developed areas would not "compromis[e] the nature and character of the area or caus[e] physical
    > damage to it," 52 Fed. Reg. at 10682, particularly in light of NPS's finding that "bicycle use
    > [is] a very appropriate, low impact method for visitors to enjoy park areas." 52 Fed. Reg. at
    > 10681. The new regulation in no way introduces any new use to the park system, much less an
    > incompatible use." Nor does it in any way affect adjacent landowners. Plaintiffs' suggestion
    > that the regulations would somehow force off-road bicyclists to trespass*fn9 on the property of
    > adjoining landowners is unavailing; the agency should no more assume that citizens will violate
    > any other law than that they will violate the regulation being promulgated. NPS's determination
    > that its amendment of section 4.30 fit within a categorical exclusion and did not significantly
    > impact the environment was reasonable and was not arbitrary and capricious. Therefore, NPS
    > satisfied its obligations under NEPA when it reasonably determined that the categorical
    > exclusion applies. It had no obligation to prepare an EA or an EIS. Thus, all of plaintiffs'
    > challenges to the 1987 promulgation of 36
    > C.F.R. section 4.30 fail.*fn10
    > B. THE 1992 GGNRA TRAIL PLAN Plaintiffs also challenge the 1992 GGNRA trail plan promulgated by
    > NPS. After a series of hearings conducted by GGNRA officials, NPS proposed a rule designating
    > GGNRA trails for various uses and published this proposed rule in the Federal Register on
    > January 29, 1992. 57 Fed. Reg. 3392. The final rule was announced on December 11, 1992. 57
    > Fed. Reg. 58711. The change was codified at 36 C.F.R. section 7.97(c). In stark contrast to
    > plaintiffs' lack of participation in the 1987 rulemaking process, plaintiffs were intimately
    > involved with every step of the development of the GGNRA trail designation plan--a process
    > that consumed approximately five years. GGNRA is established by statute at 16 U.S.C. section
    > 460bb. This section also provides the purposes for which the Secretary of the Interior,
    > through NPS, should manage GGNRA: In the management of the recreation area, the Secretary of
    > the Interior (hereinafter referred to as the "Secretary") shall utilize the resources in a
    > manner which will provide for recreation and educational opportunities consistent with sound
    > principles of land use planning and management. In carrying out the provisions of this
    > subchapter, the Secretary shall preserve the recreation area, as far as possible, in its
    > natural setting, and protect it from development and uses which would destroy the scenic
    > beauty and natural character of the area. 16 U.S.C. section 460bb. The GGNRA subchapter
    > further provides: The Secretary shall administer the lands, waters and interests therein
    > acquired for the recreation area in accordance with the provisions of sections 1 and 2 to 4
    > of this title, as amended and supplemented, and the Secretary may utilize such statutory
    > authority available to him for the conservation and management of wild life and natural
    > resources as he deems appropriate to carry out the purposes of this subchapter. 16 U.S.C.
    > section 460bb-3(a). "Sections 1 and 2 to 4 of this title" of course refers to the National
    > Park Service Organic Act, 16 U.S.C. sections 1 and 2 to 4 (discussed at length above). Thus,
    > in order to open unpaved trails or other undeveloped areas for bicycle use, the Secretary had
    > to comply with 36 C.F.R. section 4.30 and therefore promulgate as a special regulation the
    > trail designation plan and reach "a written determination that such use is consistent with
    > the protection of a park area's natural, scenic, and aesthetic values, safety considerations
    > and management objectives and will not disturb wildlife or park resources." 36 C.F.R. section
    > 4.30(a). In announcing the final rule, the Secretary did make such a written determination.
    > 57 Fed. Reg. 58711. Plaintiffs challenge the final trail plan. They allege that the agency
    > action was arbitrary and capricious in violation of the APA. They also allege that NPS
    > violated NEPA by failing to prepare an EIS. In order to address these claims, a detailed
    > discussion of the process leading to this final trail designation plan is appropriate. On
    > January 7, 1988, in response to the revised 36 C.F.R. section
    > 4.30, GGNRA officials presented a draft bicycle use plan at a GGNRA Advisory Commission meeting.
    > People at the meeting expressed concern both over the restriction of mountain bike access
    > resulting from this plan*fn11 and over potential further user group conflicts resulting from any
    > continued bicycle access within the trail system. To address these concerns, an Ad Hoc Bicycle
    > Trail Subcommittee was established to review the trail system and make a recommendation for
    > designation of bicycle trails. This Subcommittee consisted of two members each of the bicycling,
    > hiking, and equestrian constituencies. The Subcommittee presented both a majority and a minority
    > report to the Marin committee of the Advisory Commission in May of 1988. In March of 1990, NPS
    > developed an EA considering each of four alternate trail designation plans ranging from no trail
    > access to nearly total trail access for bicycles.*fn12 This EA considered both the majority and
    > the minority reports of the Subcommittee, with some minor modifications, as two of the four
    > alternatives. In November of 1990, the GGNRA staff issued a report on the March 1990 EA. In
    > developing its report, the staff held four public hearings, held three individual user group
    > workshops (one each for bicyclists, hikers, and equestrians), considered hundreds of letters
    > from individuals and dozens of letters from organizations, heard the testimony of dozens of
    > individuals at both the public hearings and the subsequent GGNRA Advisory Commission meetings,
    > and considered observations and views of experts and staff members. The staff report discussed
    > in detail the various constituent positions and the staff recommendations regarding the purposes
    > of the park, safety and visitor enjoyment, environmental issues and concerns, and the need for a
    > useable trail system. The staff report continued in great detail to spell out recommendations
    > regarding how each particular trail in the park should be designated. The staff recommendations
    > included significantly more trails open to bicycle use than had been provided for in the
    > original 1988 plan. This staff report was itself circulated for public review and comment.
    > Pursuant to the review and comment on the EA and the staff report (which ultimately became the
    > NPS proposed trail designation plan), a "supplemental environmental assessment and finding of no
    > significant impact" ("SEA/FONSI") was completed in May of 1991. It concluded that allowing
    > bicycle use of trails as provided in the staff report "is consistent with the protection of the
    > natural, scenic, aesthetic values, safety considerations and management objectives of the GGNRA,
    > and will not disturb wildlife or park resources" and that "the proposed project is not a major
    > federal action significantly affecting the quality of the human environment, nor is it one
    > without precedent or similar to one which normally requires an [EIS]." The "SEA/FONSI" also
    > discussed in detail the changes in trail designations and the reasoning behind and the impacts
    > of opening and not opening some particular trails. In January of 1992, the final trail plan was
    > published in the Federal Register as a proposed special regulation, and public comment was
    > solicited. Again, voluminous and spirited public comment was received. In December of 1992, NPS
    > published a Federal Register notice adopting as a special regulation the final Trail Use
    > Designation Plan. 57 Fed. Reg. 58711. This publication included detailed responses to public
    > comments that had been received.
    > 1. Arbitrary and Capricious Plaintiffs argue that the final plan as adopted is arbitrary and
    > capricious because it is based on inadequate data, that no rational connection is established
    > between the data found and the results reached, that the NPS failed to consider relevant
    > criteria, and that the resulting plan is inconsistent with (and therefore an impermissible
    > construction of) the GGNRA Act. Specifically, plaintiffs focus upon four arguments:*fn13
    > (1) NPS failed to give sufficient consideration to the recreation criterion in reaching its
    > decision,
    > (2) this failure results in the plan being inconsistent with the GGNRA Act in that "recreation"
    > is not recognized as the paramount interest,
    > (3)NPS lacked data or a rational basis upon which to determine that its goal of
    > resource-protection would be served by closing*fn14 particular trails to bicycle use, and
    > (4) NPS lacked data or a rational basis upon which to decide that the goals of "visitor safety"
    > and "reducing user conflict" would be served by closing particular trails to bicycle use.
    > None of these arguments has merit. The Court will address them in turn.
    > a. NPS Carefully Considered Recreation and All Other Relevant Criteria Plaintiffs argue that by
    > failing to address the recreational interests of mountain bicyclists, NPS failed to consider
    > a relevant criterion for its decision. An agency decision can be found arbitrary and
    > capricious where the agency "entirely failed to consider an important aspect of the problem."
    > Motor Vehicles Mfrs. Assn. v. State Farm, 463 U.S. at 43. The GGNRA Act clearly envisions
    > that the park will be operated in a manner which will "provide for recreational and
    > educational opportunities consistent with sound principles of land use planning and
    > management." 16 U.S.C. section 460bb. Therefore, a failure by the NPS to address recreational
    > concerns could be a basis for invalidating agency action. The NPS in this case, however,
    > addressed in tremendous detail the recreational interests both of users vis-a-vis resource
    > protection and of users vis-a-vis competing users. Indeed, from the very start NPS (and
    > GGNRA) officials sought participation and comments from at least three major recreational
    > user groups: the bicyclists, the hikers, and the equestrians. A special committee consisting
    > of members of each group was formed to prepare a report, and both the majority and minority
    > committee positions were discussed in the EA and the staff report. Particular concerns of
    > each user group were repeatedly aired both at open hearings and through letters and the
    > comment process. Special user group workshops were held such that each group could further
    > express its concerns to park officials. In short, once it became clear early in the process
    > that environmental concerns would be negligible, recreational issues were by far the
    > predominant concern of NPS and GGNRA officials throughout the development of the Trail Use
    > Designation Plan. The bicyclists' complaint is that their interests were not given priority.
    > They complain that park officials failed to give adequate consideration to the quality of the
    > mountain bicycling experience in that several "single-track" and "loop" trails were closed to
    > bicycles and that no concern was given the need to accommodate the most skilled bicyclists by
    > providing them steep and difficult trails. But this complaint is really just a disagreement
    > with the outcome of the process. Park officials clearly considered these factors, and the
    > bicyclists were given abundant opportunities to impress upon park officials these concerns.
    > For example, in the staff report of October 1990, park officials noted: Clearly the most
    > controversial aspect of the National Park Service deliberation over trail designations has
    > been the question of whether or not single track trails should be designated for bicycle use.
    > Care has been taken to avoid making a blanket policy decision on this issue by evaluating
    > each individual stretch of trail. Nevertheless, with only one exception, . . . no single
    > track trails were found suitable for bicycle use. Two considerations were key in this
    > evaluation process--user conflicts and resource protection. Nearly all of the single track
    > trails in the Headlands are narrow treads located on extremely steep hillsides. In
    > summarizing public comments, the staff report noted letters from bicyclist organizations
    > emphasizing the desirability of a "single-track" experience. Finally, in the notice of the
    > final rule published in December 1992, NPS again addressed the bicyclists' concern that "the
    > variety and quality of cyclists' experience will be diminished." NPS responded: Compared with
    > the present unrestricted bicycle use of the park, the proposed regulation will certainly
    > diminish the options of cyclists accustomed to this freedom. However, with access to over 64%
    > of the park's designated trail system, experiences that will remain available to cyclists are
    > numerous and varied. With the exception of the SCA/New Coastal trail, few distinct "places"
    > in the park will be rendered inaccessible to bicyclists. NPS considered the recreational
    > interests of the bicyclists, just as it considered the interests of the hikers and the
    > equestrians. NPS balanced these interests against what it viewed to be competing interests in
    > resource protection and visitor safety, as well as the recreational desires of hikers and
    > equestrians to have access to some bicycle-free trails. Whether or not plaintiffs agree with
    > the result they cannot accurately contend that NPS failed to even consider recreational
    > interests when it promulgated the 1992 trail plan.
    > b. The Final Trail Plan is Based Upon a Permissible Interpretation of the Relevant Legislation
    > Plaintiffs argue that NPS, by compromising the recreational interests of mountain bicyclists,
    > based its trail plan on a statutory interpretation inconsistent with the mandate of the GGNRA
    > Act that the park be operated for recreational purposes. As noted above, an agency action
    > based upon an impermissible construction of a statute is invalid. Chevron, 467 U.S. at 843.
    > Plaintiffs argue that any construction of the GGNRA Act that does not recognize recreation as
    > the primary purpose of the Act is such an impermissible construction. This argument fails.
    > The GGNRA Act does not require that recreational opportunities be provided in complete
    > derogation of any other interests. Rather, the Act specifically provides that recreational
    > opportunities be provided "consistent with sound principles of land use planning and
    > management" and that "In carrying out the provisions of this subchapter, the Secretary shall
    > preserve the recreation area, as far as possible, in its natural setting, and protect it from
    > development and uses which would destroy the scenic beauty and natural character of the
    > area." 16 U.S.C. section 460bb. Further, the Secretary is commanded to administer GGNRA "in
    > accordance with the provisions of sections 1 and 2 to 4 of this title," the NPS Organic Act
    > discussed above (which as noted above includes as an overarching concern the goal of resource
    > protection); and the Secretary "may utilize such statutory authority available to him for the
    > conservation and management of wildlife and natural resources as he deems appropriate to
    > carry out the purposes of this subchapter." 16 U.S.C. section 460bb-3. For NPS to consider
    > factors other than recreation and to temper recreational uses by its concern for resource
    > protection and visitor safety is not indicative of an impermissible construction of the GGNRA
    > and NPS Organic Acts. Further, the GGNRA Act in no way mandates that any particular type of
    > recreation be given primacy over other types. There is simply nothing in the GGNRA Act or the
    > NPS Organic Act requiring the NPS to give bicyclists unfettered reign of the park without
    > regard to the recreational interests of those whose chosen mode of recreation is inconsistent
    > with such unfettered reign. These statutes certainly do not mandate the interpretation that
    > bicycles must be allowed to roam free through the park. Since a contrary interpretation--that
    > NPS has the authority to regulate and allocate recreational uses among user groups--is
    > clearly permissible, see Kleppe, 608 F.2d at 1253 ("Allocation of the limited use between two
    > groups . . . is well within the area of administrative discretion granted to the NPS"), and
    > since the 1992 trail plan is based upon such an interpretation of the statutory scheme, this
    > Court must uphold the validity of the Plan as based upon a permissible statutory
    > construction.
    > c. NPS Reasonably Relied Upon Evidence Showing That Restricting Mountain Bicycle Access Would
    > Serve the Goal of Resource Protection Plaintiffs argue that NPS lacked sufficient evidence
    > upon which to conclude that bicycle use of certain of the closed trails was inconsistent with
    > resource protection. Further, plaintiffs argue that the NPS failed to articulate a reasoned
    > connection between any evidence of resource damage and the decision to close particular
    > trails. "In order for an agency decision to be upheld under the arbitrary and capricious
    > standard, a court must find that evidence before the agency provided a rational and ample
    > basis for its decision." Northwest Motorcycle Assn., 18 F.3d at 1471. "After considering the
    > relevant data, the [agency] must `articulate a satisfactory explanation for its action
    > including a rational connection between the facts found and the choice made.'"
    > Id. (citations omitted). As noted above, one rationale for the closing of particular trails to
    > bicycle use was that doing so served the goal of resource protection (another rationale, to
    > promote safety and avoid user conflict, is discussed below).*fn15 Therefore, in order to
    > uphold this agency action of promulgating the trail plan on the basis of resource protection,
    > this Court must find that ample evidence supported the agency's findings of resource damage
    > and that the agency articulated a reasoned connection between stemming this resource damage
    > and its decision to prevent bicycle use of some trails. The staff report and the
    > environmental assessments addressed the impact on natural resources from permitting bicycle
    > use on park trails. Two resource protection concerns were addressed by park officials as
    > supporting restricted bicycle use. First, park officials noted serious erosion problems on
    > certain steep narrow trails and determined that restricting bicycle use would slow such
    > erosion. Second, park officials noted that on narrow trails bicyclists passing other users
    > would either leave the trail or force the other users off the trail to the detriment of
    > off-trail vegetation and wildlife.*fn16 Regarding erosion, NPS conducted a "GGNRA Erosion
    > Rehabilitation Survey" in 1990 detailing significant erosion problems with several of the
    > GGNRA trails, particularly the steep and narrow ones. This erosion problem was further
    > documented by numerous reports in letters and testimony of users and staff who had observed
    > this erosion. While bicyclists insisted that the erosion was caused by poor trail maintenance
    > and not by bicycle use, park officials noted in the staff report that "A great deal of
    > conflicting opinion was received regarding the effects of bicycles and/or horses on soil
    > erosion and trail damage" but that most agree, however, that trail maintenance needs are
    > increased by both of these activities." In the original EA, NPS found that "Downhill bicycle
    > travel on steep slopes is usually accompanied by braking and often by skidding which tends to
    > push dislodged surface gravels into ditches, water bars, and drains. Heavy bicycle use on
    > steep trails usually requires that these ditches, water bars, and drains be cleared more
    > frequently than those used by hikers and equestrians only." Detailed letters and reports in
    > the administrative record evidence user and staff experience supporting this finding that
    > bicycle use exacerbates steep trail erosion. While many bicyclists seem to express
    > disagreement with this finding and argue that bicycle use does not cause erosion, the NPS is
    > not required to embrace the bicyclists' evidence and is free in its exercise of expertise to
    > give conflicting evidence whatever weight it deems appropriate in light of the accuracy and
    > credibility of such evidence. As long as ample evidence supports the NPS determination, this
    > Court is not free to substitute its judgment for that of the agency. There is ample evidence
    > throughout the administrative record of an erosion problem on certain GGNRA trails and of
    > bicycle use exacerbating this problem. Therefore, plaintiffs' argument that this finding is
    > unsupported by the evidence must fail. Regarding the damage to plant life, the administrative
    > record is again replete with letters and reports indicating that when bicyclists pass hikers
    > or equestrians on narrow trails at least one of the users is forced off of the trail and onto
    > surrounding plant life. This is not surprising since the administrative record also includes
    > evidence that mountain bicycle handlebars are often as wide as 24 inches across while some of
    > the single track trails are as narrow as 18 to 36 inches across. Even on slightly wider
    > paths, there is evidence that bicyclists often occupy the center of the trail and travel in
    > groups, thus further limiting the space available for other users when the bicyclists pass
    > them. Further, there was evidence that many bicyclists had difficulty staying on the trails
    > where the steepness of the trail caused high speeds and the narrowness of the trails gave
    > little margin for error and made sharp turns difficult. Park staff and visitors reported that
    > bicyclists on these steep narrow trails often skidded to control their speed, slid off of
    > trails on sharp turns, or cut across offtrail areas at certain "switch-backs." Finally, there
    > was abundant evidence that this trampling of off-trail vegetation was damaging the plant
    > life; this evidence included not only numerous letters and reports by users and staff but
    > also a study commissioned by plaintiff Bicycle Trails Council of Marin in which the evaluator
    > found damage to certain Lupine plant species along one narrow trail as a result of trampling
    > by park users.*fn17 Therefore, there was ample evidence in the administrative record from
    > which NPS could reasonably conclude that bicycle use of certain trails resulted in trampling
    > of and damage to the park's natural plant life resources. After determining that NPS had
    > ample evidence upon which to find that bicycle use contributed to resource damage (in the
    > form of erosion and trampled vegetation), the next question is whether the agency articulated
    > a reasoned connection between these facts found and the final agency action
    > undertaken--closing (or not opening) certain trails to bicycle use. NPS did this. For
    > example, in discussing why all single-track trails but one were closed to bicycle use, the
    > staff report states: "Two considerations were key in this evaluation process--user conflict
    > and resource preservation. Nearly all of the single track trails in the Headlands are narrow
    > treads located on extremely steep hillsides. In most cases, when a bicycle needs to pass
    > another user, one or the other is required to step or ride off the trail ahead. This
    > obviously results in trampled vegetation and erosion at the trail margins. On the steepest
    > trails, whose alignments run at right angles to these contours, . . . unavoidable skidding
    > results from the need to curtail bicycle speed which therefore causes erosion of the trail
    > tread itself." A staff report discussion of why two particular narrow trails were closed
    > noted: "Staff recommendations for each of these trails would restrict their use to hikers
    > only to avoid impacts to [neighboring] sensitive species." Further, in the publication of the
    > final rule NPS cited concerns with erosion and plant life damage as a factor both in its
    > decision to close most singletrack trails to bicyclists and in its discussion of 3 of the 4
    > particular trails mentioned in its response to the comments requesting that certain trails be
    > opened. Further, throughout the process of developing the EA, the staff report, the
    > SEA/FONSI, the proposed rule, and the final rule, throughout the public hearings and
    > meetings, and throughout the written manifestations of the NPS position as it developed
    > during this five year process, NPS made clear and articulated repeatedly that one of its
    > concerns in restricting bicycle use was that erosion and the trampling of vegetation was
    > curtailed. The number of letters and comments addressing these issues (including letters and
    > comments from plaintiffs and their constituents) make clear that everyone knew that this was
    > a primary concern of NPS. This is not a case where the agency has thought up some rationale
    > after the fact to justify its action. Rather, NPS provided a reasoned articulation of its
    > concern for resource protection and the relationship of its proposed conduct to this issue
    > throughout this rulemaking process. In summary, the NPS's resource-protection rationale was
    > both supported by ample evidence in the record and reasonably related to the agency action
    > undertaken. This rationale was not pretextual; rather, it was actually supportive of the
    > agency action. The agency repeatedly and reasonably articulated that its action was being
    > undertaken in service of this resource-protection rationale. Under these facts, NPS did not
    > act in an arbitrary and capricious manner.
    > d. NPS Reasonably Relied Upon Evidence Showing That Restricting Mountain Bicycle Use Plaintiffs
    > also argue that NPS lacked sufficient evidence upon which it could find that prohibiting
    > bicycle use of certain trails would reduce user conflict and enhance visitor safety. As
    > above, plaintiffs again maintain that this rationale is pretextual and that NPS failed to
    > articulate a reasonable connection between the facts found and the agency action undertaken.
    > Ample evidence in the administrative record supports the finding by NPS that bicycle access
    > to all trails increases incidents of user conflict and compromises visitor safety. The record
    > includes hundreds of letters from park users recounting stories of collisions or near misses
    > with speeding or reckless bicyclists on all kinds of trails but particularly on steep and
    > narrow trails. Hikers and bird watchers repeatedly told how they have been forced off of
    > trails by speeding bicycles and how they have had their peace and solitude on the trails
    > interrupted by bicycles that--because they are quiet and fast--seemed to appear out of
    > nowhere and be immediately upon the hikers and other users. Equestrians told how their horses
    > have been startled by speeding or oncoming bicycles and have become restless, on several
    > occasions even throwing and injuring experienced riders. Though most users admitted that the
    > great majority of bicyclists were polite and safety-conscious, letters from hikers,
    > equestrians, bird watchers, joggers, and other users also repeatedly recounted incidents of
    > rudeness, threats, and altercations when they have complained to an offending bicyclist about
    > dangerous conduct. Park staff also reported having received such complaints. Plaintiffs
    > contend that the only credible evidence of user conflict would be a survey or study performed
    > scientifically to determine how many conflicts occur and how and why they occur. Plaintiffs
    > note that the staff report admits: "The number of formally reported accidents involving
    > bicycles on GGNRA Marin trails is small (22 from January 1987-September 1990) and in most
    > cases involve only the cyclist," and that the publication of the final rule echoes this
    > finding. Plaintiffs argue that only by counting accident reports or other objectively
    > verifiable indicators of conflict and risk can NPS arrive at a reasonable conclusion that
    > user conflict and danger exist. Plaintiffs argue that by relying on subjective individual
    > reports of user conflict, NPS allowed its decision making process to be manipulated by
    > non-bicyclists pursuing a political (not safety-based) agenda against bicycles. The Ninth
    > Circuit recently rejected this identical argument in Northwest Motorcycle Assn. v. USDA, 18
    > F.3d 1468, 1475-77 (9th
    > Cir. 1994). As in Northwest Motorcycle, here "it appears that the public comments received by the
    > Defendants were the primary basis for the Defendants' finding of `user conflict.'" Id. at
    > 1475. The Ninth Circuit in Northwest Motorcycle noted that the plaintiff in that case
    > "strenuously contends that the comments made should be disregarded because the individuals
    > are interested parties and their comments were unverifiable. The Plaintiff would have the
    > Defendants attempt to somehow objectively quantify the extent of conflict. Id. at 1475. But
    > the Ninth Circuit rejected this argument and held that subjective reports by park visitors of
    > user conflict could support a reasonable agency determination that such conflict existed:
    > Individual comment is a very persuasive indicator of "user conflict," for determining the
    > existence of conflicts between humans cannot be numerically calculated or counted; rather,
    > the existence of conflict must be evaluated. The court can envision no better way to
    > determine the existence of actual past or likely future conflict between two user groups than
    > to hear from members of those groups.
    > Id. at 1475. NPS in this case definitely "hear[d] from members of those groups." Along with the
    > hundreds of letters received at all stages of the process, NPS received input from hikers,
    > bicyclists, equestrians, and other users through four public hearings, three individual group
    > workshops, the majority and minority reports of an ad hoc bicycle trails subcommittee
    > consisting of representatives of various user groups, and numerous consultations and meetings
    > by park officials with interested groups and individuals and the GGNRA Advisory Commission.
    > NPS's finding that user conflict and visitor danger would be reduced by limiting bicycle
    > trail access in GGNRA was supported by ample evidence. Further, NPS articulated a reasoned
    > connection between this finding and the final agency decision to close (or not open) some
    > trails to bicycle use. In the publication of the final rule, NPS states: "Notwithstanding the
    > responsible user, bicycles are often perceived by other users as a disruptive influence on
    > park trails. Although most of the few reported bicycle accidents in the park involve only
    > single individuals, letters and reports from hikers and equestrians tell of many close calls
    > and confrontational and unsettling experiences. The amount of bicycle free trails provided
    > under the regulation seems a modest and reasonable response to these concerns." Further,
    > throughout the review and comment period and the publication of the EA, the staff report, the
    > SEA/FONSI, the proposed rule, and the final rule, NPS made clear its reasoning regarding the
    > reduction in bicycle trail access and
     
  3. Nelson Binch

    Nelson Binch Guest

    Back in the *PLONK* box with ya, bandwidth boy

    ---
    __o _`\(,_ Cycling is life, (_)/ (_) all the rest, just details. Nelson Binch =^o.o^=
    http://intergalax.com

    Checked by AVG anti-virus system (http://www.grisoft.com). Version: 6.0.483 / Virus Database: 279 -
    Release Date: 5/19/2003
     
  4. Xtc

    Xtc Guest

    *PLONK* What a idiot that Vederman is. "Nelson Binch" <[email protected]> wrote in message
    news:[email protected]...
    > Back in the *PLONK* box with ya, bandwidth boy
    >
    >
    > ---
    > __o _`\(,_ Cycling is life, (_)/ (_) all the rest, just details. Nelson Binch =^o.o^=
    > http://intergalax.com
    >
    > Checked by AVG anti-virus system (http://www.grisoft.com). Version: 6.0.483 / Virus Database: 279
    > - Release Date: 5/19/2003
     
  5. P.

    P. Guest

    <yawn>

    "Mike Vandeman" <[email protected]> wrote in message
    news:[email protected]...
    > Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir.
    1996):
    > interpreting Organic Act to give Park Service authority to close mountain
    bike
    > trails; agency finding that trails would endanger park values was not
    arbitrary
    > or capricious.
    >
    > The legal decision that seems to define the impact of mountain bikes on
    the
    > environment and the possible safety issues is Marin v. Babbitt. You
    probably
    > already know this, but the result of this court decision is that mountain
    bikes
    > generally are not allowed on narrow trails in the NPS system, and other agencies, such as the
    > EBRPD in the East Bay, have usually followed this
    ruling
    > in creating their own regulations. Attached is the opinion in ASCII text.
    If you
    > search for "narrow" or "single" in the text you will quickly get to the interesting places.
    > ---------------------------------------------------
    >
    > UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BICYCLE TRAILS COUNCIL OF MARIN, a California
    > Nonprofit corporation; BICYCLE TRAILS COUNCIL OF THE EAST BAY, a California nonprofit corporation;
    > INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California nonprofit corporation; LEAGUE OF
    > AMERICAN WHEELMEN, a Maryland nonprofit corporation, et al., Plaintiffs-Appellants,
    > v.BRUCE BABBITT,*fn* Secretary of the Interior; JAMES M. RIDENOUR, Director of the National Park
    > Service; BRIAN O'NEILL, General Superintendent of the Golden Gate National Recreation Area,
    > Defendants-Appellees, SIERRA CLUB; BAY AREA TRAILS PRESERVATION COUNCIL; THE NATIONAL PARKS
    > AND CONSERVATION ASSOCIATION, et al. Defendants-Intervenors-Appellants. No. 94-16920
    > D.C. No. CV-93-00009-EFL ORDER Appeal from the United States District Court for the Northern
    > District of California Eugene F. Lynch, District Judge, Presiding Argued and Submitted
    > February 15, 1996--San Francisco, California Filed May 6, 1996 Before: Stephen Reinhardt,
    > David R. Thompson, and Diarmuid F. O'Scannlain, Circuit Judges COUNSEL Terry J. Houlihan,
    > McCutchen, Doyle, Brown & Enersen, San Francisco, California, for the plaintiffs-appellants.
    > Robert L. Klarquist, United States Department of Justice, Washington, D.C., for the
    > defendants-appellees. ORDER We affirm the district court's grant of summary judgment in favor
    > of defendants, authored by the Honorable Eugene F. Lynch. We adopt the district court's
    > thorough and well-reasoned order granting summary judgment, with the exception of the waiver
    > analysis in Parts III(A)(1)(a) and
    > III(A)(2)(a), as to which we express no opinion. The district court's order is appended hereto, as
    > amended to reflect the omission of the waiver analysis. AFFIRMED. UNITED STATES
    > DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BICYCLE TRAILS COUNCIL OF MARIN, a
    > California nonprofit corporation, BICYCLE TRAILS COUNCIL OF THE EAST BAY, a California
    > nonprofit corporation, INTERNATIONAL MOUNTAIN BICYCLING ASSOCIATION, a California
    > nonprofit corporation, LEAGUE OF WHEELMEN, a Maryland nonprofit corporation, CHARLES
    > CUNNINGHAM, ANGELA DIMEGLIO, LINDA ENIS, DAVID GAROUTTE, ALAN GOLDMAN, STEPHEN HOXIE,
    > JAMES E. JACOBSON, ABBY MINOT, TODD OURSTEN, and ADRIENNE SHAPIRO, as individuals,
    > Plaintiffs,
    > v.BRUCE BABBITT, Secretary of the Interior, JAMES M. RIDENOUR, Director of the National Park
    > Service, BRIAN O'NEILL, General Superintendent of the Golden Gate National Recreation Area,
    > Defendants; BAY AREA TRAILS PRESERVATION COUNCIL, et al., Defendant-Intervenors. No. C-93-0009
    > EFL ORDER GRANTING DEFENDANTS SUMMARY JUDGMENT FILED SEPTEMBER 1, 1994
    > I. INTRODUCTION Plaintiffs challenge the National Park Service ("NPS") regulations governing the
    > use of bicycles within areas administered by it, including the Golden Gate National
    > Recreation Area ("GGNRA"). Specifically, plaintiffs seek review of both the regulations set
    > forth at 36 C.F.R. section 4.30 ("the 1987 regulation"), which applies generally to NPS
    > lands, and the Marin Trails Use Designation Plan for GGNRA adopted as the final rule at 57
    > Fed. Reg. 58711-16 (Dec. 11, 1992) (codified at 36 C.F.R. section 7.97) ("the 1992 trail
    > plan").
    > II. BACKGROUND In 1964, NPS at its own initiative implemented a management by categories scheme
    > by which units of the National Park System would be classified "natural,""historical," or
    > "recreational,"*fn1 and by which management policies would be formed so as to regulate these
    > three types of units in conformity with their differing classifications. The effect of this
    > scheme would be, inter alia, that recreational units would be managed in a less restrictive
    > and less resource-protective manner than units classified natural or historical. Under this
    > scheme, NPS in 1966 decided to alter its longstanding policy regarding bicycle use in park
    > units from one wherein all trails were closed unless designated open to one in which the old
    > rule generally applied except in units classified as recreational, in which trails would be
    > presumed open to bicycle use unless designated closed by the local park superintendent. By a
    > series of amendments to the National Park Service Organic Act, 16 U.S.C. sections 1 et seq.,
    > Congress disapproved of this management by categories scheme and directed that all units of
    > the national parks were to be treated consistently, with resource protection the primary
    > goal,*fn2 while retaining the flexibility for individual park units to approve particular
    > uses consistent with their specific enabling legislation. Thus, NPS eliminated these
    > management categories from its internal administration in 1978 and ultimately began
    > promulgating regulations in the 1980's eliminating these categorical distinctions from the
    > Code of Federal Regulations.*fn3 The elimination of the last regulatory reference to these
    > management categories was one of the objectives articulated by NPS for the rulemaking
    > effecting the 1987 regulation. See 52 Fed. Reg. 10670 (April 2, 1987). The 1987 regulation,
    > adopted pursuant to notice and comment, established a uniform rule for national park units
    > wherein all bicycle use of off-road areas would be prohibited unless local park
    > superintendents designated particular trails to be open. (As noted, this had previously been
    > the rule in all but the recreation units.) Local park officials determined that they would
    > not enforce this rule in the GGNRA until it was determined which trails would be open and
    > which closed to bicycle use. Thus, because of NPS's and the GGNRA uperintendent's exercise of
    > prosecutorial discretion, the 1987 regulation was not enforced and bicyclists in fact
    > retained access to all trails in the GGNRA pending the development of a trail use plan.
    > Finally, after a long and contentious trail designation process, the 1992 trail plan was
    > adopted (also pursuant to notice and comment) establishing which trails were to be open to
    > bicycles and which trails were to be closed. Plaintiffs applied to this Court for a
    > preliminary injunction against the enforcement of the 1992 trail plan. This application was
    > denied in February of 1993. Defendant-Intervenors' motion to intervene was granted on
    > February 18, 1993. Plaintiffs and defendants have filed cross-motions for summary judgment,
    > filed oppositions to one anothers' motions, and replied to these oppositions.
    > Defendant-Intervenors have filed an opposition to plaintiffs' motion for summary judgment and
    > a reply brief in support of defendants' motion. This motion has been submitted on the 1987
    > and 1992 administrative records. Having considered all of the briefs of the parties, and
    > having also considered the oral arguments presented at the hearing of November 12, 1993, this
    > Court stands ready to rule.
    > III. DISCUSSION As described above, plaintiffs challenge two agency actions: the adoption in 1987
    > of a revised 36 C.F.R. section 4.30 and the development and promulgation in 1992 of a trail
    > plan for the Marin Headlands section of GGNRA.
    > A. THE 1987 REGULATION The 1987 rule here challenged reads:
    > (a) The use of a bicycle is prohibited except on park roads, in parking areas and on routes
    > designated for bicycle use; provided, however, the superintendent may close any park road or
    > parking area to bicycle use pursuant to the criteria and procedures of SS
    > 1.5 and 1.7 of this chapter. Routes may only be designated for bicycle use based on a written
    > determination that such use is consistent with the protection of the park area's natural, scenic
    > and aesthetic values, safety considerations and management objectives and will not disturb
    > wildlife or park resources.
    > (b) Except for routes designated in developed areas and special use zones, routes designated for
    > bicycle use shall be promulgated as special regulations. 36 C.F.R. section 4.30. The National
    > Park Service Organic Act provides that the National Park Service shall: promote and regulate
    > the use of the Federal areas known as national parks, monuments, and reservations hereinafter
    > specified,
    > . . . by such means and measures as conform to the fundamental purpose of the said parks,
    > monuments, and reservations, which purpose is to conserve the scenery and the natural and
    > historic objects and the wild life therein and to provide for the enjoyment of the same in such
    > manner and by such means as will leave them unimpaired for the enjoyment of future generations.
    > 16 U.S.C. section 1. Additionally, the Organic Act provides: The Secretary of the Interior shall
    > make and publish such rules and regulations as he may deem necessary or proper for the use and
    > management of the parks, monuments, and reservations under the jurisdiction of the National Park
    > Service. 16 U.S.C. section 3.
    > 1. The Organic Act and Review Under Chevron The National Park Service Organic Act expressly
    > delegates rulemaking authority to the Secretary of the Interior to promulgate rules and
    > regulations to implement the Act. 16 U.S.C. section 3. Legislative regulations promulgated
    > pursuant to such express authority will be upheld "unless they are arbitrary, capricious, or
    > manifestly contrary to the statute." Chevron U.S.A., Inc. v. Natural Resources Defense Council,
    > Inc., 467 U.S. 837, 844 (1984). Plaintiffs challenge the 1987 regulation and seek to have it
    > vacated on the theory that it is arbitrary and not based upon a permissible interpretation of
    > the Organic Act. Defendants and Intervenors argue that the 1987 regulation was based upon a
    > mandated or at least clearly permissible interpretation of the Organic Act and its amendments.
    > a. Waiver [omitted]
    > b. Statutory Interpretation Plaintiffs challenge the legality of the regulation on the theory
    > that it is not based upon a permissible interpretation of the Organic Act. This challenge
    > fails. A review of the Organic Act and the history of its amendments shows that NPS based its
    > decision to eliminate the reference to management categories (and thus to eliminate the
    > special "recreation" unit rule) in the 1987 regulation on a mandated and certainly
    > permissible construction of the Organic Act and its amendments. In response to congressional
    > amendments to the Organic Act, NPS in 1978 began phasing out its usage of the "management
    > categories" that had been earlier developed to allow for the different treatment of different
    > classes of units in the National Park System. In the 1980's, NPS began eliminating such
    > distinctions in its regulations. NPS interpreted Congress's amendments to the Organic Act to
    > be clear in the message that NPS was not to single out a particular class of units of the
    > park system (i.e. recreational units) for less protective treatment, but that instead NPS was
    > to manage all units of the park system so as to effect the purpose of the Organic
    > Act--primarily resource protection. See 48 Fed. Reg. 30252 (June 30, 1983); Michigan United
    > Conservation Clubs v. Lujan, 949 F.2d 202 (6th Cir. 1991); National Rifle Assn. v. Potter,
    > 628 F.Supp. 903 (D.D.C. 1986). The 1987 amendment to section 4.30 was part of a rule-making
    > whose purposes included "to eliminate the remaining references to the management categories
    > formerly used to classify park areas." 52 Fed. Reg. 10670. Formerly, regulations promulgated
    > in 1966 had provided that in "historic" or "natural" park units, off-road trails and areas
    > were "closed-unless-designated-open" for bicycle use, while in "recreational" units off-road
    > trails and areas were "open-unless-designated-closed" for bicycle use. 36 C.F.R. section
    > 2.30 (1967ed.), moved to 36 C.F.R. section 4.3 (July 1, 1977 ed.). The new section 4.30 results
    > in a "closed-unless-designated-open" status for off-road areas in all park units.
    > Plaintiffs argue that even if NPS interpreted Congress's amendments to the Organic Act
    > as mandating consistency throughout the park system, the NPS decision to achieve this
    > consistency by applying the closed-unless-designated-open" rather than
    > open-unless-designated-closed" standard was arbitrary and not based upon a permissible
    > interpretation of the Organic Act. The Supreme Court has established a two-step process
    > for reviewing an agency's construction of a statute it administers: First, always, is
    > the question whether Congress has directly spoken to the precise question at issue. If
    > the intent of Congress is clear, that is the end of the matter; for the court, as well
    > as the agency, must give effect to the unambiguously expressed intent of Congress. If,
    > however, the court determines Congress has not directly addressed the precise question
    > at issue, the court does not simply impose its own construction on the statute, as
    > would be necessary in the absence of an administrative interpretation. Rather, if the
    > statute is silent or ambiguous with respect to the specific issue, the question for the
    > court is whether the agency's answer is based on a permissible construction of the
    > statute. Chevron, 467 U.S. at 842-43 (1984). At "step one," if a court "employing
    > traditional tools of statutory construction ascertains that Congress had an intention
    > on the precise question at issue, that intention is the law and must be given effect."
    > Id. at 843 n.9. At "step two," "The Court need not conclude that the agency
    > construction was the only one it permissibly could have adopted to uphold the
    > construction, or even the reading the court would have reached if the question
    > initially had arisen in a judicial proceeding." Id. at 843 n.10.
    > i. Chevron Step One Intervenors argue persuasively that this is a Chevron "step one" case in
    > that Congress clearly intended by its 1970 and 1978 amendments to the Organic Act that NPS
    > alter its practice of governing recreational park units under less restrictive standards and
    > instead manage all areas of the park system uniformly with the fundamental goal of resource
    > protection in mind. In the 1970 amendments to the Organic Act, Congress recognized that "the
    > national park system has grown to include superlative natural, historic, and recreation
    > areas," 16 U.S.C. section 1a-1, that "the purpose of this Act [is] to include all such areas
    > in the system and clarify the authorities applicable to the system," id., and that "the
    > various authorities relating to the administration and protection of areas under the
    > administration of the Secretary of the Interior, through the National Park Service, . . .
    > shall . . . be applicable to all areas within the national park system." 16 U.S.C. section
    > 1c(b). Further, the definition of "national park system" was changed so as to include for the
    > first time a reference to recreational areas: "The `national park system' shall include any
    > area of land and water now or hereafter administered by the Secretary of the Interior through
    > the National Park Service for park, monument, historic, recreational, or other purposes." 16
    > U.S.C. section 1c(a). Intervenors also argue that the legislative history of the 1970
    > amendments makes clear the congressional intent that those recreational park units not be
    > given less protective treatment than other units in the park system. For example, the House
    > Report, H.R. Rep. No. 91-1265, accompanying the bill amending the Organic Act, Pub. L. No.
    > 91-383, noted that because the Organic Act "contains no reference to more recent concepts
    > like national recreation areas, national seashores, or national lakeshore," . .
    > . "the usual rules of construction . . . could result in interpretations which would lead to the
    > administration of the system so that it would be almost devoid of uniformity." However, the
    > Organic Act (and some other statutes) "have desirable, useful, and necessary provisions and they
    > should be applicable uniformly throughout the National Park System." Thus, the bill's "Section 1
    > . . . emphasizes the common purpose of all units of the national park system and declares that its
    > purpose is to include all such areas in the system and to clarify the authorities applicable to
    > it." 1970 U.S. Code Cong. & Adm. News, Vol.2, 91st Cong., 2d Sess., at 3785-87. In the 1978
    > amendments to the Organic Act, Congress amended the Organic Act to read: "the promotion and
    > regulation of the various areas of the National Park System . . . shall be consistent with and
    > founded in the purpose established by Section 1*fn4 of this title, to the common benefit of
    > all the people of the United States." 16 U.S.C. section 1a-1. The purpose of this change was
    > described in the House Report as to add "a declaration by Congress that the promulgation and
    > regulation of the National Park System is to be consistent with the Organic Act for the
    > National Park Service. The protection of the units of the system is to be carried out in
    > accordance with the maintenance of the integrity of this system, and management of these areas
    > shall not compromise these resource values except as Congress may have specifically provided.
    > 1978 U.S. Code Cong. & Adm. News, 95th Cong., 1st sess., at 463. It was in response to the
    > 1978 amendments that NPS immediately began the process of eliminating from its regulations and
    > its management practices the management categories of "natural," "historic," and
    > "recreational" units. See 48 Fed. Reg. 30252. This Court agrees with Intervenors that the
    > statutory language and the legislative intent of the 1970 and 1978 amendments mandated that
    > NPS discontinue the practice of managing recreation areas under less protective rules than it
    > was using in managing natural and historic areas. The purpose of these amendments was to bring
    > recreational units (including recreation areas, seashores, and lakeshores) into the fold and
    > require that they be managed consistently with the rest of the system. Congress clearly
    > intended and mandated that NPS eliminate the distinctions and treat all units as it had been
    > treating those parks that had been expressly within the ambit of the Organic Act, the natural
    > and historic units, with resource protection the overarching concern. In light of this
    > mandate, NPS had no choice when amending section
    > 4.30 as between making all parks' trails "open-unless-designated-closed"--the prevailing practice
    > only in recreation units-- or closed-unless-designated-open"--the prevailing practice in the
    > natural and historic areas. NPS could only effect the intent of Congress by amending 4.30 such
    > that all parks were to be treated uniformly in the manner that natural and historical units had
    > previously been managed and thus that all trails were to be "closed-unless-designated-open." NPS
    > in amending section 4.30 (in accordance with its more general policy of eliminating management
    > categories and deleting the less restrictive "recreation" unit rules) acted so as to "give
    > effect to the unambiguously expressed intent of congress." See Chevron, 467 U.S. at 843. The
    > challenged regulation, therefore, is valid.
    > ii. Chevron Step Two Even if the intent of Congress were not so clear on this issue, the
    > regulation would still be upheld as based on a permissible interpretation of the Organic Act.
    > As noted above, legislative regulations promulgated pursuant to an express grant of statutory
    > rulemaking authority are valid "unless they are arbitrary, capricious, or manifestly contrary
    > to the statute." Chevron, 467 U.S. at 844. If an agency decision "`represents a reasonable
    > accommodation of conflicting policies that were committed to the agency's care by the
    > statute, we should not disturb it unless it appears from the statute or its legislative
    > history that the accommodation is not one that Congress would have sanctioned.'" Chevron, 467
    > U.S. at 845 (quoting United States v. Shimer, 367 U.S. 374, 383, 383
    > (1961)). As noted above, the Organic Act provides that NPS "shall promote and regulate the use of
    > the Federal areas known as national parks
    > . . . by such means and measures as conform to the fundamental purpose of the said parks, . . .
    > which purpose is to conserve the scenery and the natural and historic objects and the wild life
    > therein and to provide for the enjoyment of the same in such manner and by such means as will
    > leave them unimpaired for the enjoyment of future generations," 16 U.S.C. section 1, and that
    > "The Secretary of the Interior shall make and publish such rules and regulations as he may deem
    > necessary or proper for the use and management of the parks." 16 U.S.C. section 3. Courts have
    > noted that the Organic Act is silent as to the specifics of park management and that "under such
    > circumstances, the Park Service has broad discretion in determining which avenues best achieve
    > the Organic Act's mandate. . . . Further, the Park Service is empowered with the authority to
    > determine what uses of park resources are proper and what proportion of the park's resources are
    > available for each use." National Wildlife Federation v. National Park Service, 669 F.Supp. 384,
    > 390 (D.D.C. Wyo. 1987), citing Organized Fisherman of Florida v. Hodel, 775
    > F.2d 1544, 1550 (11th Cir. 1985)[, cert. denied, 476 U.S. 1169
    > (1986)]; Sierra Club v. Andrus, 487 F.Supp. 443, 448 (D.D.C.
    > 1980), aff'd, Sierra Club v. Watt, 659 F.2d 203 (D.C. Cir. 1981); see also Wilderness Public
    > Rights Fund v. Kleppe, 608 F.2d 1250, 1253 (9th Cir. 1979)(noting that allocation of a
    > limited use between competing user groups "is well within the area of administrative
    > discretion granted to the NPS")[, cert. denied, 446 U.S. 982 (1980). A decision to limit
    > mountain bicycle use to trails affirmatively designated as appropriate for such use fails
    > comfortably within this broad grant of discretion to the Secretary under the Organic Act.
    > The Organic Act is unquestionably silent on the precise issue of bicycle trail access.
    > However, the Secretary is directed to conserve the natural elements of the parks for the
    > future, 16 U.S.C. section 1, to "provide for the enjoyment" of the parks, to manage the
    > parks "in light of the high public value and integrity of the National Park System," 16
    > U.S.C. section 1a-1, and to make such rules as "he may deem necessary or proper for the use
    > and management of the parks." 16 U.S.C. section 3. In light of this language, an
    > interpretation that the Organic Act allows for this closed-unless-designated open approach
    > for bicycle trail access cannot be termed "manifestly contrary to the statute." The
    > legislative history and the statutory amendments discussed above further reinforce this
    > finding. This regulation is thus based upon a permissible interpretation of the statute and
    > is valid on this alternate ground as well. Plaintiffs argue at length in their briefs and
    > almost exclusively at oral argument that the 1987 regulation is invalid because it reflects
    > NPS reversing its own earlier position on mountain bicycle use in recreation areas. Citing
    > the Supreme Court in Motor Vehicles Mfrs. Assn. v. State Farm, 463 U.S. 29, 57 (1983)("An
    > agency's view of what is in the public's interest may change, either with or without a
    > change in circumstances[,] but an agency changing its course must supply a reasoned
    > analysis."), plaintiffs argue that NPS's latest interpretation of the Organic Act as
    > expressed in 36 C.F.R. section 4.30 is entitled to less deference because NPS earlier
    > interpreted the Organic Act to reach an opposite conclusion regarding mountain bicycling in
    > recreation areas under its old 36 C.F.R. section 4.3. See, e.g., Immigration and
    > Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 446
    > n.30 (1987). Plaintiffs further argue that NPS did not provide the requisite "reasoned analysis"
    > to justify its change in position. Plaintiffs' argument relying upon State Farm fails
    > for at least three reasons. First, unlike State Farm where the agency flip-flopped in
    > its interpretation of a single unamended standard, this case involves a situation where
    > the agency changed its position to accommodate the amendments by Congress of the
    > underlying Act. NPS did not simply decide one day to reverse its position of the day
    > before. Rather, following amendments to the Organic Act and pursuant to a longstanding
    > policy by which NPS was eliminating its management categories, NPS changed 36 C.F.R.
    > section 4.30 so as to be consistent with the newly worded statute. Second, unlike State
    > Farm, this is not a case where the agency can be said to have changed its "policy."
    > Rather, as in Northwest Motorcycle Assn. v. USDA, 18 F.3d 1468, 1480 (9th Cir. 1994),
    > the agency modified its approach to further an existing policy, which included not just
    > the providing of recreational opportunities but also the consideration of "public
    > safety, resource protection and the avoidance of visitor conflicts." 52 Fed. Reg. at
    > 10681. Third, even accepting plaintiffs' argument on its own terms, this case is
    > distinguishable from State Farm in that here the NPS did provide a rational and
    > principled analysis of its decision to amend 36 C.F.R. section 4.30. See also Northwest
    > Motorcycle Assn., 18 F.3d at 1480 (change in policy by the agency is to be upheld where
    > the policy change is "based on a rational and principled reason"). In its announcement
    > of the final rule adopting section
    > 4.30, NPS stated: This section is a revision of the former section 4.3 and provides that the use
    > of bicycles is allowed in park areas under the same basic conditions as are motor vehicles, i.e.
    > on park roads, in parking areas, and on routes designated for their use. These provisions
    > reflect the facts that the NPS generally considers bicycle use a very appropriate, low impact
    > method for visitors to enjoy park areas, but that certain limitations on their use are necessary
    > and appropriate in the interest of public safety, resource protection, and the avoidance of
    > visitor conflicts.
    > . . . .
    > . . . . The NPS has determined that the designation of a bicycle route outside of such developed
    > areas, in areas whose primary purpose and land uses are related more to the preservation of
    > natural resources and values, would have a much greater potential to result in adverse resource
    > impacts or visitor use conflicts. This paragraph therefore provides for a much more stringent
    > decision making process for such a proposal by requiring a formal rulemaking. Such a process
    > will provide for a thorough review of all environmental and visitor use considerations and
    > assure the superintendent of having had the benefit of public review and comment before making a
    > decision on any proposed designation. 52 Fed. Reg. at 10681. NPS thus realized that it was
    > imposing "certain limitations" on bicycle use but supported that decision by reference to the
    > principles of "public safety, resource protection, and the avoidance of visitor conflicts."
    > Further, to the extent that its decision was based upon the elimination of management
    > categories, NPS noted in its response to a comment that the elimination of management categories
    > had been agency policy since 1978 and referred to a change in NPS's general regulations in
    > 1983-84 in which the reasons for this policy were set out at length. 52 Fed. Reg. at 10671. In
    > its "background" discussion, NPS noted that "The evolution of the National Park System, new
    > statutory authorities and directions, . . . [and] modifications in recreation and visitation
    > patterns . . . have all contributed to rendering many of the existing NPS regulations
    > unnecessary, ineffective and/or otherwise outdated. This rulemaking represents an effort on the
    > part of the NPS to strengthen its overall traffic safety program and, in the process, to update
    > and clarify certain of its traffic regulations and delete others that are unnecessary." 52 Fed.
    > Reg. at 10670. Therefore, even assuming arguendo that NPS's decision to revise section 4.30
    > represents a reversal of policy, NPS has provided the "reasoned analysis" necessary to support
    > such a change. State Farm, 467 U.S. at 57. This reasoned analysis by NPS, discussing and
    > balancing relevant conflicting policies, further forecloses any argument that this regulation is
    > "arbitrary" under Chevron. Finally, even such a "changed" position still stems from a
    > permissible (if not mandated) interpretation of the Organic Act. Therefore, this Court has no
    > basis on which to find that 36 C.F.R. section 4.30 as amended is invalid in light of the
    > National Park Service Organic Act.
    > 2. NEPA Plaintiffs also challenge the 1987 rulemaking on the basis that NPS did not prepare an
    > Environmental Impact Statement (EIS) or even an Environmental Assessment (EA) in the course of
    > amending 36
    > C.F.R. section 4.30. Defendants argue that no EIS was needed because this rulemaking was not a
    > major federal action having a significant impact on the quality of the human environment,
    > and that no EA was needed because this rulemaking fell within an appropriate categorical
    > exclusion. The Court reviews an agency decision not to prepare an EIS under an "arbitrary
    > or capricious" standard. Inland Empire Public Lands Council v. Schultz, 992 F.2d 977, 981
    > (9th Cir. 1993); Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.)[, amended
    > and superseded on denial of reh'g, 14 F.3d 1324 (9th Cir. 1992)]. This standard also
    > applies to an agency's determination that a particular action falls within one of its
    > categorical exclusions.*fn5 Citizens For the Scenic Svern River v. Skinner, 802 F.Supp.
    > 1325, 1333 (D. Md. 1991)[, aff'd, 972 F.2d 338 (4th
    > Cir. 1992)]; see also Jones v. Gordon, 792 F.2d 821, 827-29 (9th
    > Cir. 1986) (applying the standard for reviewing a decision not to prepare an EIS (at that time,
    > for "unreasonableness") to a decision that an agency action fell within one of its
    > categorical exclusions).*fn6 NPS determined that the 1987 rulemaking did not require the
    > preparation of an EA or an EIS because it was categorically excluded by departmental
    > regulations in 516 DM 6 (49 Fed. Reg.
    > 21438), in that this rulemaking was "not expected to:
    > (a) Increase public use to the extent of compromising the nature and character of the area or
    > causing physical damage to it;
    > (b) Introduce noncompatible uses which might compromise the nature and characteristics of the
    > areas, or cause physical damage to it;
    > (c) Conflict with adjacent ownerships or land uses; or
    > (d) Cause a nuisance to adjacent owners or occupants." 52 Fed. Reg. at 10682. Plaintiffs argue
    > that the changes to section 4.30*fn7 result in this rulemaking falling outside this
    > categorical exclusion.
    > a. Waiver [omitted]
    > b. Arbitrary and Capricious
    > . . . [T]his Court cannot find that NPS's determination that this rulemaking fell within a
    > categorical exclusion was arbitrary or capricious. Rather, the determination was eminently
    > reasonable. The closing of off-road areas to bicycle use (pending further particularized
    > determinations of whether it is appropriate in particular cases) clearly falls within the
    > categorical exclusion relied upon by NPS. This rule could reasonably be expected not to
    > "increase public use to the extent of compromising the nature and character of the area" nor to
    > "introduce noncompatible uses which might compromise the nature and characteristics of the area"
    > nor to affect in any way adjacent land owners or land uses. Plaintiffs' arguments to the
    > contrary border on sheer speculation. Plaintiffs suggest that the closing of trails might force
    > bicyclists to ride in other areas, thereby compromising the nature of those areas.*fn8 However,
    > the regulation makes clear that riding in any other nondeveloped area is also forbidden; the
    > suggestion that closing trails will force bicyclists to break the law by riding on similarly
    > closed protected areas is not convincing. To the extent that closing all off-road areas to
    > bicycle use will force bicyclists onto paved roads more, it would not be arbitrary (or
    > unreasonable) for the NPS to have concluded that this increased use of the paved roads and
    > developed areas would not "compromis[e] the nature and character of the area or caus[e] physical
    > damage to it," 52 Fed. Reg. at 10682, particularly in light of NPS's finding that "bicycle use
    > [is] a very appropriate, low impact method for visitors to enjoy park areas." 52 Fed. Reg. at
    > 10681. The new regulation in no way introduces any new use to the park system, much less an
    > incompatible use." Nor does it in any way affect adjacent landowners. Plaintiffs' suggestion
    > that the regulations would somehow force off-road bicyclists to trespass*fn9 on the property of
    > adjoining landowners is unavailing; the agency should no more assume that citizens will violate
    > any other law than that they will violate the regulation being promulgated. NPS's determination
    > that its amendment of section 4.30 fit within a categorical exclusion and did not significantly
    > impact the environment was reasonable and was not arbitrary and capricious. Therefore, NPS
    > satisfied its obligations under NEPA when it reasonably determined that the categorical
    > exclusion applies. It had no obligation to prepare an EA or an EIS. Thus, all of plaintiffs'
    > challenges to the 1987 promulgation of 36
    > C.F.R. section 4.30 fail.*fn10
    > B. THE 1992 GGNRA TRAIL PLAN Plaintiffs also challenge the 1992 GGNRA trail plan promulgated by
    > NPS. After a series of hearings conducted by GGNRA officials, NPS proposed a rule designating
    > GGNRA trails for various uses and published this proposed rule in the Federal Register on
    > January 29, 1992. 57 Fed. Reg. 3392. The final rule was announced on December 11, 1992. 57
    > Fed. Reg. 58711. The change was codified at 36 C.F.R. section 7.97(c). In stark contrast to
    > plaintiffs' lack of participation in the 1987 rulemaking process, plaintiffs were intimately
    > involved with every step of the development of the GGNRA trail designation plan--a process
    > that consumed approximately five years. GGNRA is established by statute at 16 U.S.C. section
    > 460bb. This section also provides the purposes for which the Secretary of the Interior,
    > through NPS, should manage GGNRA: In the management of the recreation area, the Secretary of
    > the Interior (hereinafter referred to as the "Secretary") shall utilize the resources in a
    > manner which will provide for recreation and educational opportunities consistent with sound
    > principles of land use planning and management. In carrying out the provisions of this
    > subchapter, the Secretary shall preserve the recreation area, as far as possible, in its
    > natural setting, and protect it from development and uses which would destroy the scenic
    > beauty and natural character of the area. 16 U.S.C. section 460bb. The GGNRA subchapter
    > further provides: The Secretary shall administer the lands, waters and interests therein
    > acquired for the recreation area in accordance with the provisions of sections 1 and 2 to 4
    > of this title, as amended and supplemented, and the Secretary may utilize such statutory
    > authority available to him for the conservation and management of wild life and natural
    > resources as he deems appropriate to carry out the purposes of this subchapter. 16 U.S.C.
    > section 460bb-3(a). "Sections 1 and 2 to 4 of this title" of course refers to the National
    > Park Service Organic Act, 16 U.S.C. sections 1 and 2 to 4 (discussed at length above). Thus,
    > in order to open unpaved trails or other undeveloped areas for bicycle use, the Secretary had
    > to comply with 36 C.F.R. section 4.30 and therefore promulgate as a special regulation the
    > trail designation plan and reach "a written determination that such use is consistent with
    > the protection of a park area's natural, scenic, and aesthetic values, safety considerations
    > and management objectives and will not disturb wildlife or park resources." 36 C.F.R. section
    > 4.30(a). In announcing the final rule, the Secretary did make such a written determination.
    > 57 Fed. Reg. 58711. Plaintiffs challenge the final trail plan. They allege that the agency
    > action was arbitrary and capricious in violation of the APA. They also allege that NPS
    > violated NEPA by failing to prepare an EIS. In order to address these claims, a detailed
    > discussion of the process leading to this final trail designation plan is appropriate. On
    > January 7, 1988, in response to the revised 36 C.F.R. section
    > 4.30, GGNRA officials presented a draft bicycle use plan at a GGNRA Advisory Commission meeting.
    > People at the meeting expressed concern both over the restriction of mountain bike access
    > resulting from this plan*fn11 and over potential further user group conflicts resulting from any
    > continued bicycle access within the trail system. To address these concerns, an Ad Hoc Bicycle
    > Trail Subcommittee was established to review the trail system and make a recommendation for
    > designation of bicycle trails. This Subcommittee consisted of two members each of the bicycling,
    > hiking, and equestrian constituencies. The Subcommittee presented both a majority and a minority
    > report to the Marin committee of the Advisory Commission in May of 1988. In March of 1990, NPS
    > developed an EA considering each of four alternate trail designation plans ranging from no trail
    > access to nearly total trail access for bicycles.*fn12 This EA considered both the majority and
    > the minority reports of the Subcommittee, with some minor modifications, as two of the four
    > alternatives. In November of 1990, the GGNRA staff issued a report on the March 1990 EA. In
    > developing its report, the staff held four public hearings, held three individual user group
    > workshops (one each for bicyclists, hikers, and equestrians), considered hundreds of letters
    > from individuals and dozens of letters from organizations, heard the testimony of dozens of
    > individuals at both the public hearings and the subsequent GGNRA Advisory Commission meetings,
    > and considered observations and views of experts and staff members. The staff report discussed
    > in detail the various constituent positions and the staff recommendations regarding the purposes
    > of the park, safety and visitor enjoyment, environmental issues and concerns, and the need for a
    > useable trail system. The staff report continued in great detail to spell out recommendations
    > regarding how each particular trail in the park should be designated. The staff recommendations
    > included significantly more trails open to bicycle use than had been provided for in the
    > original 1988 plan. This staff report was itself circulated for public review and comment.
    > Pursuant to the review and comment on the EA and the staff report (which ultimately became the
    > NPS proposed trail designation plan), a "supplemental environmental assessment and finding of no
    > significant impact" ("SEA/FONSI") was completed in May of 1991. It concluded that allowing
    > bicycle use of trails as provided in the staff report "is consistent with the protection of the
    > natural, scenic, aesthetic values, safety considerations and management objectives of the GGNRA,
    > and will not disturb wildlife or park resources" and that "the proposed project is not a major
    > federal action significantly affecting the quality of the human environment, nor is it one
    > without precedent or similar to one which normally requires an [EIS]." The "SEA/FONSI" also
    > discussed in detail the changes in trail designations and the reasoning behind and the impacts
    > of opening and not opening some particular trails. In January of 1992, the final trail plan was
    > published in the Federal Register as a proposed special regulation, and public comment was
    > solicited. Again, voluminous and spirited public comment was received. In December of 1992, NPS
    > published a Federal Register notice adopting as a special regulation the final Trail Use
    > Designation Plan. 57 Fed. Reg. 58711. This publication included detailed responses to public
    > comments that had been received.
    > 1. Arbitrary and Capricious Plaintiffs argue that the final plan as adopted is arbitrary and
    > capricious because it is based on inadequate data, that no rational connection is established
    > between the data found and the results reached, that the NPS failed to consider relevant
    > criteria, and that the resulting plan is inconsistent with (and therefore an impermissible
    > construction of) the GGNRA Act. Specifically, plaintiffs focus upon four arguments:*fn13
    > (1) NPS failed to give sufficient consideration to the recreation criterion in reaching its
    > decision,
    > (2) this failure results in the plan being inconsistent with the GGNRA Act in that "recreation"
    > is not recognized as the paramount interest,
    > (3)NPS lacked data or a rational basis upon which to determine that its goal of
    > resource-protection would be served by closing*fn14 particular trails to bicycle use, and
    > (4) NPS lacked data or a rational basis upon which to decide that the goals of "visitor safety"
    > and "reducing user conflict" would be served by closing particular trails to bicycle use.
    > None of these arguments has merit. The Court will address them in turn.
    > a. NPS Carefully Considered Recreation and All Other Relevant Criteria Plaintiffs argue that by
    > failing to address the recreational interests of mountain bicyclists, NPS failed to consider
    > a relevant criterion for its decision. An agency decision can be found arbitrary and
    > capricious where the agency "entirely failed to consider an important aspect of the problem."
    > Motor Vehicles Mfrs. Assn. v. State Farm, 463 U.S. at 43. The GGNRA Act clearly envisions
    > that the park will be operated in a manner which will "provide for recreational and
    > educational opportunities consistent with sound principles of land use planning and
    > management." 16 U.S.C. section 460bb. Therefore, a failure by the NPS to address recreational
    > concerns could be a basis for invalidating agency action. The NPS in this case, however,
    > addressed in tremendous detail the recreational interests both of users vis-a-vis resource
    > protection and of users vis-a-vis competing users. Indeed, from the very start NPS (and
    > GGNRA) officials sought participation and comments from at least three major recreational
    > user groups: the bicyclists, the hikers, and the equestrians. A special committee consisting
    > of members of each group was formed to prepare a report, and both the majority and minority
    > committee positions were discussed in the EA and the staff report. Particular concerns of
    > each user group were repeatedly aired both at open hearings and through letters and the
    > comment process. Special user group workshops were held such that each group could further
    > express its concerns to park officials. In short, once it became clear early in the process
    > that environmental concerns would be negligible, recreational issues were by far the
    > predominant concern of NPS and GGNRA officials throughout the development of the Trail Use
    > Designation Plan. The bicyclists' complaint is that their interests were not given priority.
    > They complain that park officials failed to give adequate consideration to the quality of the
    > mountain bicycling experience in that several "single-track" and "loop" trails were closed to
    > bicycles and that no concern was given the need to accommodate the most skilled bicyclists by
    > providing them steep and difficult trails. But this complaint is really just a disagreement
    > with the outcome of the process. Park officials clearly considered these factors, and the
    > bicyclists were given abundant opportunities to impress upon park officials these concerns.
    > For example, in the staff report of October 1990, park officials noted: Clearly the most
    > controversial aspect of the National Park Service deliberation over trail designations has
    > been the question of whether or not single track trails should be designated for bicycle use.
    > Care has been taken to avoid making a blanket policy decision on this issue by evaluating
    > each individual stretch of trail. Nevertheless, with only one exception, . . . no single
    > track trails were found suitable for bicycle use. Two considerations were key in this
    > evaluation process--user conflicts and resource protection. Nearly all of the single track
    > trails in the Headlands are narrow treads located on extremely steep hillsides. In
    > summarizing public comments, the staff report noted letters from bicyclist organizations
    > emphasizing the desirability of a "single-track" experience. Finally, in the notice of the
    > final rule published in December 1992, NPS again addressed the bicyclists' concern that "the
    > variety and quality of cyclists' experience will be diminished." NPS responded: Compared with
    > the present unrestricted bicycle use of the park, the proposed regulation will certainly
    > diminish the options of cyclists accustomed to this freedom. However, with access to over 64%
    > of the park's designated trail system, experiences that will remain available to cyclists are
    > numerous and varied. With the exception of the SCA/New Coastal trail, few distinct "places"
    > in the park will be rendered inaccessible to bicyclists. NPS considered the recreational
    > interests of the bicyclists, just as it considered the interests of the hikers and the
    > equestrians. NPS balanced these interests against what it viewed to be competing interests in
    > resource protection and visitor safety, as well as the recreational desires of hikers and
    > equestrians to have access to some bicycle-free trails. Whether or not plaintiffs agree with
    > the result they cannot accurately contend that NPS failed to even consider recreational
    > interests when it promulgated the 1992 trail plan.
    > b. The Final Trail Plan is Based Upon a Permissible Interpretation of the Relevant Legislation
    > Plaintiffs argue that NPS, by compromising the recreational interests of mountain bicyclists,
    > based its trail plan on a statutory interpretation inconsistent with the mandate of the GGNRA
    > Act that the park be operated for recreational purposes. As noted above, an agency action
    > based upon an impermissible construction of a statute is invalid. Chevron, 467 U.S. at 843.
    > Plaintiffs argue that any construction of the GGNRA Act that does not recognize recreation as
    > the primary purpose of the Act is such an impermissible construction. This argument fails.
    > The GGNRA Act does not require that recreational opportunities be provided in complete
    > derogation of any other interests. Rather, the Act specifically provides that recreational
    > opportunities be provided "consistent with sound principles of land use planning and
    > management" and that "In carrying out the provisions of this subchapter, the Secretary shall
    > preserve the recreation area, as far as possible, in its natural setting, and protect it from
    > development and uses which would destroy the scenic beauty and natural character of the
    > area." 16 U.S.C. section 460bb. Further, the Secretary is commanded to administer GGNRA "in
    > accordance with the provisions of sections 1 and 2 to 4 of this title," the NPS Organic Act
    > discussed above (which as noted above includes as an overarching concern the goal of resource
    > protection); and the Secretary "may utilize such statutory authority available to him for the
    > conservation and management of wildlife and natural resources as he deems appropriate to
    > carry out the purposes of this subchapter." 16 U.S.C. section 460bb-3. For NPS to consider
    > factors other than recreation and to temper recreational uses by its concern for resource
    > protection and visitor safety is not indicative of an impermissible construction of the GGNRA
    > and NPS Organic Acts. Further, the GGNRA Act in no way mandates that any particular type of
    > recreation be given primacy over other types. There is simply nothing in the GGNRA Act or the
    > NPS Organic Act requiring the NPS to give bicyclists unfettered reign of the park without
    > regard to the recreational interests of those whose chosen mode of recreation is inconsistent
    > with such unfettered reign. These statutes certainly do not mandate the interpretation that
    > bicycles must be allowed to roam free through the park. Since a contrary interpretation--that
    > NPS has the authority to regulate and allocate recreational uses among user groups--is
    > clearly permissible, see Kleppe, 608 F.2d at 1253 ("Allocation of the limited use between two
    > groups . . . is well within the area of administrative discretion granted to the NPS"), and
    > since the 1992 trail plan is based upon such an interpretation of the statutory scheme, this
    > Court must uphold the validity of the Plan as based upon a permissible statutory
    > construction.
    > c. NPS Reasonably Relied Upon Evidence Showing That Restricting Mountain Bicycle Access Would
    > Serve the Goal of Resource Protection Plaintiffs argue that NPS lacked sufficient evidence
    > upon which to conclude that bicycle use of certain of the closed trails was inconsistent with
    > resource protection. Further, plaintiffs argue that the NPS failed to articulate a reasoned
    > connection between any evidence of resource damage and the decision to close particular
    > trails. "In order for an agency decision to be upheld under the arbitrary and capricious
    > standard, a court must find that evidence before the agency provided a rational and ample
    > basis for its decision." Northwest Motorcycle Assn., 18 F.3d at 1471. "After considering the
    > relevant data, the [agency] must `articulate a satisfactory explanation for its action
    > including a rational connection between the facts found and the choice made.'"
    > Id. (citations omitted). As noted above, one rationale for the closing of particular trails to
    > bicycle use was that doing so served the goal of resource protection (another rationale, to
    > promote safety and avoid user conflict, is discussed below).*fn15 Therefore, in order to
    > uphold this agency action of promulgating the trail plan on the basis of resource protection,
    > this Court must find that ample evidence supported the agency's findings of resource damage
    > and that the agency articulated a reasoned connection between stemming this resource damage
    > and its decision to prevent bicycle use of some trails. The staff report and the
    > environmental assessments addressed the impact on natural resources from permitting bicycle
    > use on park trails. Two resource protection concerns were addressed by park officials as
    > supporting restricted bicycle use. First, park officials noted serious erosion problems on
    > certain steep narrow trails and determined that restricting bicycle use would slow such
    > erosion. Second, park officials noted that on narrow trails bicyclists passing other users
    > would either leave the trail or force the other users off the trail to the detriment of
    > off-trail vegetation and wildlife.*fn16 Regarding erosion, NPS conducted a "GGNRA Erosion
    > Rehabilitation Survey" in 1990 detailing significant erosion problems with several of the
    > GGNRA trails, particularly the steep and narrow ones. This erosion problem was further
    > documented by numerous reports in letters and testimony of users and staff who had observed
    > this erosion. While bicyclists insisted that the erosion was caused by poor trail maintenance
    > and not by bicycle use, park officials noted in the staff report that "A great deal of
    > conflicting opinion was received regarding the effects of bicycles and/or horses on soil
    > erosion and trail damage" but that most agree, however, that trail maintenance needs are
    > increased by both of these activities." In the original EA, NPS found that "Downhill bicycle
    > travel on steep slopes is usually accompanied by braking and often by skidding which tends to
    > push dislodged surface gravels into ditches, water bars, and drains. Heavy bicycle use on
    > steep trails usually requires that these ditches, water bars, and drains be cleared more
    > frequently than those used by hikers and equestrians only." Detailed letters and reports in
    > the administrative record evidence user and staff experience supporting this finding that
    > bicycle use exacerbates steep trail erosion. While many bicyclists seem to express
    > disagreement with this finding and argue that bicycle use does not cause erosion, the NPS is
    > not required to embrace the bicyclists' evidence and is free in its exercise of expertise to
    > give conflicting evidence whatever weight it deems appropriate in light of the accuracy and
    > credibility of such evidence. As long as ample evidence supports the NPS determination, this
    > Court is not free to substitute its judgment for that of the agency. There is ample evidence
    > throughout the administrative record of an erosion problem on certain GGNRA trails and of
    > bicycle use exacerbating this problem. Therefore, plaintiffs' argument that this finding is
    > unsupported by the evidence must fail. Regarding the damage to plant life, the administrative
    > record is again replete with letters and reports indicating that when bicyclists pass hikers
    > or equestrians on narrow trails at least one of the users is forced off of the trail and onto
    > surrounding plant life. This is not surprising since the administrative record also includes
    > evidence that mountain bicycle handlebars are often as wide as 24 inches across while some of
    > the single track trails are as narrow as 18 to 36 inches across. Even on slightly wider
    > paths, there is evidence that bicyclists often occupy the center of the trail and travel in
    > groups, thus further limiting the space available for other users when the bicyclists pass
    > them. Further, there was evidence that many bicyclists had difficulty staying on the trails
    > where the steepness of the trail caused high speeds and the narrowness of the trails gave
    > little margin for error and made sharp turns difficult. Park staff and visitors reported that
    > bicyclists on these steep narrow trails often skidded to control their speed, slid off of
    > trails on sharp turns, or cut across offtrail areas at certain "switch-backs." Finally, there
    > was abundant evidence that this trampling of off-trail vegetation was damaging the plant
    > life; this evidence included not only numerous letters and reports by users and staff but
    > also a study commissioned by plaintiff Bicycle Trails Council of Marin in which the evaluator
    > found damage to certain Lupine plant species along one narrow trail as a result of trampling
    > by park users.*fn17 Therefore, there was ample evidence in the administrative record from
    > which NPS could reasonably conclude that bicycle use of certain trails resulted in trampling
    > of and damage to the park's natural plant life resources. After determining that NPS had
    > ample evidence upon which to find that bicycle use contributed to resource damage (in the
    > form of erosion and trampled vegetation), the next question is whether the agency articulated
    > a reasoned connection between these facts found and the final agency action
    > undertaken--closing (or not opening) certain trails to bicycle use. NPS did this. For
    > example, in discussing why all single-track trails but one were closed to bicycle use, the
    > staff report states: "Two considerations were key in this evaluation process--user conflict
    > and resource preservation. Nearly all of the single track trails in the Headlands are narrow
    > treads located on extremely steep hillsides. In most cases, when a bicycle needs to pass
    > another user, one or the other is required to step or ride off the trail ahead. This
    > obviously results in trampled vegetation and erosion at the trail margins. On the steepest
    > trails, whose alignments run at right angles to these contours, . . . unavoidable skidding
    > results from the need to curtail bicycle speed which therefore causes erosion of the trail
    > tread itself." A staff report discussion of why two particular narrow trails were closed
    > noted: "Staff recommendations for each of these trails would restrict their use to hikers
    > only to avoid impacts to [neighboring] sensitive species." Further, in the publication of the
    > final rule NPS cited concerns with erosion and plant life damage as a factor both in its
    > decision to close most singletrack trails to bicyclists and in its discussion of 3 of the 4
    > particular trails mentioned in its response to the comments requesting that certain trails be
    > opened. Further, throughout the process of developing the EA, the staff report, the
    > SEA/FONSI, the proposed rule, and the final rule, throughout the public hearings and
    > meetings, and throughout the written manifestations of the NPS position as it developed
    > during this five year process, NPS made clear and articulated repeatedly that one of its
    > concerns in restricting bicycle use was that erosion and the trampling of vegetation was
    > curtailed. The number of letters and comments addressing these issues (including letters and
    > comments from plaintiffs and their constituents) make clear that everyone knew that this was
    > a primary concern of NPS. This is not a case where the agency has thought up some rationale
    > after the fact to justify its action. Rather, NPS provided a reasoned articulation of its
    > concern for resource protection and the relationship of its proposed conduct to this issue
    > throughout this rulemaking process. In summary, the NPS's resource-protection rationale was
    > both supported by ample evidence in the record and reasonably related to the agency action
    > undertaken. This rationale was not pretextual; rather, it was actually supportive of the
    > agency action. The agency repeatedly and reasonably articulated that its action was being
    > undertaken in service of this resource-protection rationale. Under these facts, NPS did not
    > act in an arbitrary and capricious manner.
    > d. NPS Reasonably Relied Upon Evidence Showing That Restricting Mountain Bicycle Use Plaintiffs
    > also argue that NPS lacked sufficient evidence upon which it could find that prohibiting
    > bicycle use of certain trails would reduce user conflict and enhance visitor safety. As
    > above, plaintiffs again maintain that this rationale is pretextual and that NPS failed to
    > articulate a reasonable connection between the facts found and the agency action undertaken.
    > Ample evidence in the administrative record supports the finding by NPS that bicycle access
    > to all trails increases incidents of user conflict and compromises visitor safety. The record
    > includes hundreds of letters from park users recounting stories of collisions or near misses
    > with speeding or reckless bicyclists on all kinds of trails but particularly on steep and
    > narrow trails. Hikers and bird watchers repeatedly told how they have been forced off of
    > trails by speeding bicycles and how they have had their peace and solitude on the trails
    > interrupted by bicycles that--because they are quiet and fast--seemed to appear out of
    > nowhere and be immediately upon the hikers and other users. Equestrians told how their horses
    > have been startled by speeding or oncoming bicycles and have become restless, on several
    > occasions even throwing and injuring experienced riders. Though most users admitted that the
    > great majority of bicyclists were polite and safety-conscious, letters from hikers,
    > equestrians, bird watchers, joggers, and other users also repeatedly recounted incidents of
    > rudeness, threats, and altercations when they have complained to an offending bicyclist about
    > dangerous conduct. Park staff also reported having received such complaints. Plaintiffs
    > contend that the only credible evidence of user conflict would be a survey or study performed
    > scientifically to determine how many conflicts occur and how and why they occur. Plaintiffs
    > note that the staff report admits: "The number of formally reported accidents involving
    > bicycles on GGNRA Marin trails is small (22 from January 1987-September 1990) and in most
    > cases involve only the cyclist," and that the publication of the final rule echoes this
    > finding. Plaintiffs argue that only by counting accident reports or other objectively
    > verifiable indicators of conflict and risk can NPS arrive at a reasonable conclusion that
    > user conflict and danger exist. Plaintiffs argue that by relying on subjective individual
    > reports of user conflict, NPS allowed its decision making process to be manipulated by
    > non-bicyclists pursuing a political (not safety-based) agenda against bicycles. The Ninth
    > Circuit recently rejected this identical argument in Northwest Motorcycle Assn. v. USDA, 18
    > F.3d 1468, 1475-77 (9th
    > Cir. 1994). As in Northwest Motorcycle, here "it appears that the public comments received by the
    > Defendants were the primary basis for the Defendants' finding of `user conflict.'" Id. at
    > 1475. The Ninth Circuit in Northwest Motorcycle noted that the plaintiff in that case
    > "strenuously contends that the comments made should be disregarded because the individuals
    > are interested parties and their comments were unverifiable. The Plaintiff would have the
    > Defendants attempt to somehow objectively quantify the extent of conflict. Id. at 1475. But
    > the Ninth Circuit rejected this argument and held that subjective reports by park visitors of
    > user conflict could support a reasonable agency determination that such conflict existed:
    > Individual comment is a very persuasive indicator of "user conflict," for determining the
    > existence of conflicts between humans cannot be numerically calculated or counted; rather,
    > the existence of conflict must be evaluated. The court can envision no better way to
    > determine the existence of actual past or likely future conflict between two user groups than
    > to hear from members of those groups.
    > Id. at 1475. NPS in this case definitely "hear[d] from members of those groups." Along with the
    > hundreds of letters received at all stages of the process, NPS received input from hikers,
    > bicyclists, equestrians, and other users through four public hearings, three individual group
    > workshops, the majority and minority reports of an ad hoc bicycle trails subcommittee
    > consisting of representatives of various user groups, and numerous consultations and meetings
    > by park officials with interested groups and individuals and the GGNRA Advisory Commission.
    > NPS's finding that user conflict and visitor danger would be reduced by limiting bicycle
    > trail access in GGNRA was supported by ample evidence. Further, NPS articulated a reasoned
    > connection between this finding and the final agency decision to close (or not open) some
    > trails to bicycle use. In the publication of the final rule, NPS states: "Notwithstanding the
    > responsible user, bicycles are often perceived by other users as a disruptive influence on
    > park trails. Although most of the few reported bicycle accidents in the park involve only
    > single individuals, letters and reports from hikers and equestrians tell of many close calls
    > and confrontational and unsettling experiences. The amount of bicycle free trails provided
    > under the regulation seems a modest and reasonable response to these concerns." Further,
    > throughout the review and comment period and the publication of the EA, the staff report, the
    > SEA/FONSI, the proposed rule, and the final rule, NPS made clear its reasoning regarding the
    > reduction in bicycle trail access and its relationship to easing user conflict and improving
    > visitor safety. Again, as was the case re
     
  6. Gary S .

    Gary S . Guest

    On Mon, 26 May 2003 23:31:27 GMT, "Xtc" <[email protected]> wrote:

    >*PLONK* What a idiot that Vederman is.

    The sky (on a clear day) is blue.

    The sun rises in the east (except for Arctic areas).

    Happy trails, Gary (net.yogi.bear)
    ------------------------------------------------
    at the 51st percentile of ursine intelligence

    Gary D. Schwartz, Needham, MA, USA Please reply to: garyDOTschwartzATpoboxDOTcom
     
  7. MTBScottie

    MTBScottie Guest

    Mike Vandeman <[email protected]bell.net> wrote in message
    news:<[email protected]>...

    <Snip the most unbelievable waste of space>

    Mike, there are some things that really puzzle me in life. For instance, why do political parties
    such as the Libertarians and any other independant party bother running for government? They can't
    honestly believe they will win, can they? Why do you bother fighting for your cause? Do you really
    think we are all going to just lay down our bikes, and quit? Do you expect to find everyone throwing
    away their keys to their automobiles? You are the essence of the belief that some of the most book
    smart people in the world are actually some of the dumbest people in the world.
     
  8. > Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir. 1996):

    Ah yes, The famous 9th circuit. Jesus Mike, I read your web site for two hours last night. First
    off, let me congratulate you on your excellent propaganda skills. I missed what your Ph. D is in,
    but I suspect mass media manipulation.

    The 9th circuit is the most overturned court in the USA, and I am not a lawyer, but it appears that
    this law was argued on technicality, not some god (whoops, you don't believe in God, I assume)
    -given right to have parks free from MTBs.

    First you start off saying that MTB'ers are the scurge, insinuate that they endanger harmless park
    visitors - and wrote letters stating same. They you get really extreme and rant about how humans
    simply being (no pun intended) are dangerous. I read where you even quoted how human beings need to
    be segregated from other species.

    You have to realize that nobody ouside the extremist population centers, and California give a shit
    what you think, and even if they did, would disagree.

    I do NOT own a mountain bike, but I do own boots with tread on them - which you hate. How long until
    the jack booted thugs (no lugs) kick in my door to confiscate them?

    BTW, I'm a newbie, not having bikes in some years. I'm an American residing in Germany (I'm not a
    soldier, I'm sure you hate them too - guns ... ooh, scairy) but I'm shopping for a bike. Germany,
    where the 'Greens' are a part of the governing coalition, with elected extremist/officials and
    everything.

    Even the governing coalition isn't as extreme as you.

    Sorry if I misspelled anything, or misquoted you. I'm angry and I don't like you.

    No hard feelings. -Tim "You can say you to me"
     
  9. The issue here is "open unless designated colsed" or "closed unless designated open". The Park
    Service prefers to use the former, but are not allowed to. The result is that trails that had
    been open were now closed with no apparent reason given beyond the cookie-cutter response of,
    it's the rules.

    The ruling here merely affirms the idea that closed unless designated open is valid. It is a bad
    ruling. It makes much more sense to post off limits areas as off limits, for whatever reason, than
    to take a position that the entire country is closed to public access unless there is a sign telling
    us it is open.

    The ruling specifically states that overcrowding from bicycles is the same as overcrowding from
    other sources, so the environmental impact is the same.

    The undercurrent of this case is that the NPS had different management rules for different areas, an
    idea that I support, by the way. Somebody with half a brain came along and said the NPS had to
    manage all areas to the same level, this took away the ability to manage some areas as recreational.
    The resulting loss in recreational areas is the basis of the lawsuit here. But, you are so stupid
    that you would never be able to understand this.
     
  10. On 26 May 2003 19:29:54 -0700, [email protected] wrote:

    .Mike Vandeman <[email protected]> wrote in message
    news:<[email protected]>... . .<Snip the most unbelievable waste of
    space> . .Mike, there are some things that really puzzle me in life. For .instance, why do
    political parties such as the Libertarians and any .other independant party bother running for
    government? They can't .honestly believe they will win, can they? Why do you bother fighting .for
    your cause? Do you really think we are all going to just lay down .our bikes, and quit? Do you
    expect to find everyone throwing away .their keys to their automobiles? You are the essence of the
    belief .that some of the most book smart people in the world are actually some .of the dumbest
    people in the world.

    I am writing for the people who can read and think. Why did you think you were included?
    ===
    I am working on creating wildlife habitat that is off-limits to humans ("pure habitat"). Want to
    help? (I spent the previous 8 years fighting auto dependence and road construction.)

    http://home.pacbell.net/mjvande
     
  11. On 27 May 2003 13:07:02 -0700, [email protected] ([email protected]) wrote:

    .> Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir. 1996): . .Ah yes, The
    famous 9th circuit. Jesus Mike, I read your web site for .two hours last night. First off, let me
    congratulate you on your .excellent propaganda skills. I missed what your Ph. D is in, but I
    .suspect mass media manipulation. . .The 9th circuit is the most overturned court in the USA,

    Then why wasn't this case overturned? Why did the Appeals Court reject the mountain bikers'
    case? Idiot.

    and I am not .a lawyer, but it appears that this law was argued on technicality, not .some god
    (whoops, you don't believe in God, I assume) -given right to .have parks free from MTBs.

    BS. If you had a right to mountain bike, the park wouldn't be allowed to ban bikes. QED

    .First you start off saying that MTB'ers are the scurge, insinuate that .they endanger harmless park
    visitors - and wrote letters stating same.
    . They you get really extreme and rant about how humans simply being .(no pun intended) are
    dangerous. I read where you even quoted how .human beings need to be segregated from other
    species. . .You have to realize that nobody ouside the extremist population .centers, and
    California give a shit what you think, and even if they .did, would disagree. . .I do NOT own a
    mountain bike, but I do own boots with tread on them - .which you hate. How long until the jack
    booted thugs (no lugs) kick in .my door to confiscate them? . .BTW, I'm a newbie, not having bikes
    in some years. I'm an American .residing in Germany (I'm not a soldier, I'm sure you hate them too
    - .guns ... ooh, scairy) but I'm shopping for a bike. Germany, where the .'Greens' are a part of
    the governing coalition, with elected .extremist/officials and everything. . .Even the governing
    coalition isn't as extreme as you.

    If I am "extreme", then why does Yosemite National Park have the same policy that I do about
    mountain biking?

    .Sorry if I misspelled anything, or misquoted you. I'm angry and I .don't like you. . .No hard
    feelings. .-Tim ."You can say you to me"

    ===
    I am working on creating wildlife habitat that is off-limits to humans ("pure habitat"). Want to
    help? (I spent the previous 8 years fighting auto dependence and road construction.)

    http://home.pacbell.net/mjvande
     
  12. On Tue, 27 May 2003 17:54:33 -0700, "Jeff Strickland" <[email protected]> wrote:

    .The issue here is "open unless designated colsed" or "closed unless .designated open". The Park
    Service prefers to use the former, but are not .allowed to. The result is that trails that had been
    open were now closed .with no apparent reason given beyond the cookie-cutter response of, it's the
    .rules. . .The ruling here merely affirms the idea that closed unless designated open .is valid. It
    is a bad ruling. It makes much more sense to post off limits .areas as off limits, for whatever
    reason, than to take a position that the .entire country is closed to public access unless there is
    a sign telling us .it is open. . .The ruling specifically states that overcrowding from bicycles is
    the same .as overcrowding from other sources, so the environmental impact is the same. . .The
    undercurrent of this case is that the NPS had different management rules .for different areas, an
    idea that I support, by the way. Somebody with half .a brain came along and said the NPS had to
    manage all areas to the same .level, this took away the ability to manage some areas as
    recreational. The .resulting loss in recreational areas is the basis of the lawsuit here. But, .you
    are so stupid that you would never be able to understand this.

    Obviously, you didn't READ the case. You are thinking of Arizona! It proves that the park has the
    right to ban bikes. Period. Therefore, there is no right to mountain bike.
    ===
    I am working on creating wildlife habitat that is off-limits to humans ("pure habitat"). Want to
    help? (I spent the previous 8 years fighting auto dependence and road construction.)

    http://home.pacbell.net/mjvande
     
  13. MTBScottie

    MTBScottie Guest

    Mike Vandeman <[email protected]> wrote in message
    news:<[email protected]>...
    > On 26 May 2003 19:29:54 -0700, [email protected] wrote:
    >
    > .Mike Vandeman <[email protected]> wrote in message
    > news:<[email protected]>... . .<Snip the most unbelievable waste of
    > space> . .Mike, there are some things that really puzzle me in life. For .instance, why do
    > political parties such as the Libertarians and any .other independant party bother running for
    > government? They can't .honestly believe they will win, can they? Why do you bother fighting .for
    > your cause? Do you really think we are all going to just lay down .our bikes, and quit? Do you
    > expect to find everyone throwing away .their keys to their automobiles? You are the essence of the
    > belief .that some of the most book smart people in the world are actually some .of the dumbest
    > people in the world.
    >
    > I am writing for the people who can read and think. Why did you think you were included?
    > ===
    > I am working on creating wildlife habitat that is off-limits to humans ("pure habitat"). Want to
    > help? (I spent the previous 8 years fighting auto dependence and road construction.)
    >
    > http://home.pacbell.net/mjvande

    You are writing to people who are miserable and have no life, just like you :)
     
  14. Gary S .

    Gary S . Guest

    On Sun, 01 Jun 2003 16:06:48 GMT, Mike Vandeman <[email protected]> wrote:

    >I am writing for the people who can read and think. Why did you think you were included?
    >===
    The people who read only your writings, and think the way you do. You do not behave in a way that is
    inclusive of anyone who disagrees even slightly from your version of "truth".

    You are trying the "Game" on people too smart for it.

    Happy trails, Gary (net.yogi.bear)
    ------------------------------------------------
    at the 51st percentile of ursine intelligence

    Gary D. Schwartz, Needham, MA, USA Please reply to: garyDOTschwartzATpoboxDOTcom
     
  15. Lou W

    Lou W Guest

    "Gary S." <[email protected]> wrote in message news:[email protected]...
    > On Sun, 01 Jun 2003 16:06:48 GMT, Mike Vandeman <[email protected]> wrote:
    >
    > >I am writing for the people who can read and think. Why did you think you
    were
    > >included?
    > >===
    > The people who read only your writings, and think the way you do. You do not behave in a way that
    > is inclusive of anyone who disagrees even slightly from your version of "truth".
    >
    > You are trying the "Game" on people too smart for it.
    >
    > Happy trails, Gary (net.yogi.bear)

    Well.......he could try a "picture" book. Think Dr Seuss style. Care will need to be taken to
    not plagiarize the "Lorax" though.

    Lou net.burro
     
  16. "Mike Vandeman" <[email protected]> wrote in message
    news:[email protected]...
    > On Tue, 27 May 2003 17:54:33 -0700, "Jeff Strickland" <[email protected]>
    wrote:
    >
    > .The issue here is "open unless designated colsed" or "closed unless .designated open". The
    > Park Service prefers to use the former, but are not .allowed to. The result is that trails that
    > had been open were now closed .with no apparent reason given beyond the cookie-cutter response
    > of, it's
    the
    > .rules. . .The ruling here merely affirms the idea that closed unless designated
    open
    > .is valid. It is a bad ruling. It makes much more sense to post off limits .areas as off limits,
    > for whatever reason, than to take a position that
    the
    > .entire country is closed to public access unless there is a sign telling
    us
    > .it is open. . .The ruling specifically states that overcrowding from bicycles is the
    same
    > .as overcrowding from other sources, so the environmental impact is the
    same.
    > . .The undercurrent of this case is that the NPS had different management
    rules
    > .for different areas, an idea that I support, by the way. Somebody with
    half
    > .a brain came along and said the NPS had to manage all areas to the same .level, this took away
    > the ability to manage some areas as recreational.
    The
    > .resulting loss in recreational areas is the basis of the lawsuit here.
    But,
    > .you are so stupid that you would never be able to understand this.
    >
    > Obviously, you didn't READ the case. You are thinking of Arizona! It
    proves that
    > the park has the right to ban bikes. Period. Therefore, there is no right
    to
    > mountain bike.

    I did read the case, I was thinking it was obvious that you had not.
     
  17. On 1 Jun 2003 13:34:26 -0700, [email protected] wrote:

    .Mike Vandeman <[email protected]> wrote in message
    news:<[email protected]>... .> On 26 May 2003 19:29:54 -0700,
    [email protected] wrote: .> .> .Mike Vandeman <[email protected]> wrote in message
    news:<[email protected]>... .> . .> .<Snip the most unbelievable waste of
    space> .> . .> .Mike, there are some things that really puzzle me in life. For .> .instance, why do
    political parties such as the Libertarians and any .> .other independant party bother running for
    government? They can't .> .honestly believe they will win, can they? Why do you bother fighting .>
    .for your cause? Do you really think we are all going to just lay down .> .our bikes, and quit? Do
    you expect to find everyone throwing away .> .their keys to their automobiles? You are the essence
    of the belief .> .that some of the most book smart people in the world are actually some .> .of the
    dumbest people in the world. .> .> I am writing for the people who can read and think. Why did you
    think you were .> included? .> === .> I am working on creating wildlife habitat that is off-limits
    to .> humans ("pure habitat"). Want to help? (I spent the previous 8 .> years fighting auto
    dependence and road construction.) .> .> http://home.pacbell.net/mjvande . .You are writing to
    people who are miserable and have no life, just like you :)

    Oh, right! Everyone who doesn't mountain bike is miserable and doesn't have a life! Sure. Idiot.
    ===
    I am working on creating wildlife habitat that is off-limits to humans ("pure habitat"). Want to
    help? (I spent the previous 8 years fighting auto dependence and road construction.)

    http://home.pacbell.net/mjvande
     
  18. On Mon, 02 Jun 2003 02:15:54 GMT, Gary S. <[email protected]> wrote:

    .On Sun, 01 Jun 2003 16:06:48 GMT, Mike Vandeman <[email protected]> .wrote: . .>I am writing for
    the people who can read and think. Why did you think you were .>included? .>=== .The people who read
    only your writings, and think the way you do. You .do not behave in a way that is inclusive of
    anyone who disagrees even .slightly from your version of "truth".

    You want me to lie, just to please you? Idiot.

    .You are trying the "Game" on people too smart for it. . .Happy trails, .Gary (net.yogi.bear)
    .------------------------------------------------ .at the 51st percentile of ursine intelligence .
    .Gary D. Schwartz, Needham, MA, USA .Please reply to: garyDOTschwartzATpoboxDOTcom

    ===
    I am working on creating wildlife habitat that is off-limits to humans ("pure habitat"). Want to
    help? (I spent the previous 8 years fighting auto dependence and road construction.)

    http://home.pacbell.net/mjvande
     
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