Since public interest in recreational river trips down the Colorado River through Grand Canyon National Park began to increase dramatically in the early 1970s, the National Park Service (NPS) has regulated the use of the river corridor in order to protect the Park’s resources from harm and to ensure the quality of the visitor experience.  Since 1972, the NPS has periodically developed and implemented river use management plans to limit and allocate use among different user groups, to ensure a high quality visitor experience, and to ensure that such use occurs in a manner that protects and conserves the Park’s natural and cultural resources.  Over the years, as the demand for Grand Canyon river trips continued to increase, these planning efforts generated substantial controversy, particularly over the allocation of use between professionally-guided and outfitted (i.e., commercial) and self-guided (i.e., noncommercial or “private”) user groups, as well as over the NPS’s continuing authorization of motorized watercraft and helicopter exchanges, particularly given the NPS’s proposal that the river corridor be designated by Congress as “potential wilderness” under the Wilderness Act of 1964 (which remains outstanding today). In February 2006, the NPS issued a new Colorado River Management Plan (CRMP) that revised and updated the previous river management plan developed in 1980 and revised in 1981 and 1989.  The new CRMP is based upon a comprehensive environmental impact statement (EIS) issued in November 2005, which evaluated a range of alternatives for the identified issues, including overall visitor use levels, allocation of use between professionally-guided and outfitted (i.e., commercial) and self-guided (i.e., noncommercial or “private”) user groups, levels of motorized use, and visitor use management options.  The EIS also evaluated impacts to natural and cultural resources, visitor experience and wilderness character, and social and economic effects.  Among other elements, the new plan: 

• achieves a 50/50 split between professionally-guided and outfitted and self-guided use, by increasing the self-guided use allocation primarily in the shoulder and winter months;
• adopts a mixed motor/no-motor alternative, with motorized use prohibited from September 16 through March 31;
• allows passenger exchanges at Whitmore from April 1 through September 15;
• reduces commercial group sizes;
• establishes use patterns based on daily, weekly, and seasonal launch limits to reduce crowding and bottlenecks; and
• limits all recreational users to one river trip per year from Lees Ferry to Diamond Creek.            

In the view of GCRRA and other leading groups representing recreational users of the Grand Canyon’s river corridor, the new plan, while not perfect, is an outstanding accomplishment.  The core elements of the new plan reflect a set of joint management recommendations that GCRRA submitted to the NPS as part of a coalition of four groups representing the river-running concessioners, private boaters, and members of the public who utilize the professional river services that the concessioners exist to provide.  These recommendations—submitted by GCRRA, the Grand Canyon River Outfitters Association, Grand Canyon Private Boaters Association, and American Whitewater—called for, among other things, an equal allocation of use between commercial and noncommercial use on an annual basis, the continued authorization of an appropriate level of motorized use, seasonal adjustments that would result in fewer river trips occurring at one time, and improvements to the noncommercial permit system.  That the final plan largely reflects this agreement among these diverse stakeholders on these historically divisive issues marks a huge step forward for the management of recreational use of the Grand Canyon’s river corridor.            

Despite this achievement, in March 2006, River Runners for Wilderness, Rock the Earth, Wilderness Watch, and Living Rivers filed a lawsuit in federal district court in Arizona challenging the new CRMP.  Subsequent to the filing of the lawsuit, and over the objections of the plaintiffs, the Grand Canyon River Outfitters Association and Grand Canyon Private Boaters Association each intervened in the case to represent the interests of their members (the concessioners and private boaters, respectively) and to help defend the new plan. The general premise of the lawsuit is that the new plan authorizes river running concessions services that are contrary to applicable law.  More specifically, according to the plaintiffs, the new plan violates the NPS’s “duty” to preserve the “wilderness character” of the river corridor because it—like the previous plan from 1989—continues to allow the use of motorized watercraft, helicopter passenger exchanges, and generators.  The plaintiffs also allege that the concessions services authorized under the new plan—with respect to motorized use and the overall amount of use set aside for use by members of the public who choose to use concessioners for their trips—are neither “necessary and appropriate for public use and enjoyment” of the Park nor “consistent to the highest practicable degree with the preservation and conservation” of the Park’s resources and values.  Moreover, they claim that the plan’s allocation of use between professionally-outfitted and guided boaters and self-guided boaters inequitably favors access by members of the public who choose to use concessioners for their trips and authorizes unnecessary amounts of such use at the expense of self-guided boaters.  Finally, the plaintiffs allege that the NPS failed to properly evaluate the potential environmental impacts of motorized use.            

Pursuant to the agreement of the parties and the judge in the case, in late May 2007, the plaintiffs filed a motion for summary judgment, seeking a ruling in their favor based upon the administrative record compiled by NPS in support of its record of decision issuing the new plan.  In early August, the government and the intervenors each filed their responses to the plaintiffs’ motion, as well as their own cross-motions for summary judgment.  The government and the intervenors responded strongly to the plaintiffs’ claims, arguing that each of their claims lacks merit and should be rejected.  First, the government and intervenors explained that the plaintiffs had not shown that there was any duty that the NPS violated in continuing to permit motorized river trips and helicopter exchanges in the Park.  There is no statute or regulation that prohibits the NPS from continuing to authorize motorized river trips and helicopter exchanges in an area—such as the Park’s river corridor—that never has been designated by Congress as “wilderness” or “potential wilderness” under the Wilderness Act, and the NPS management policies on which the plaintiffs seek to rely do not prohibit motorized trips and are nevertheless not judicially enforceable against the Service in court.  Next, they explained that, under applicable law, the NPS has broad discretion to manage the use of Park resources and authorize concessions for the benefit of the public, and that the NPS’s decision record clearly shows that the Service properly considered the types and amount of concessions services that are necessary and appropriate.  For instance, they pointed out that the NPS had found in the EIS that “eliminating motorized use would force the NPS to significantly lower current levels of authorized use to minimize crowding and conflicts” and that “[r]educing or eliminating motorized recreational use would have the further effect of significantly limiting the wide spectrum of use and range of visitor services currently available to the general public, contrary to the NPS’s management objectives.”  They also explained that the EIS fully evaluated the impacts of the concessions services authorized under the new plan and does not support the plantiffs’ claim that such services (including, specifically, motorized trips and helicopter exchanges) will cause adverse impacts and impairment to the wilderness character and natural resources of the Colorado River corridor.

The government and intervenors further defended the new plan’s allocation of use between professionally-guided and outfitted boaters and self-guided boaters.  In addition to pointing out that one of the plaintiffs’ arguments already had been expressly rejected by the Ninth Circuit U.S. Court of Appeals in a prior case involving management of river use in the Grand Canyon, they explained that the plaintiffs’ singular focus on relative demand between professionally-guided and outfitted use and self-guided use as the determining factor for setting the allocation reflects an improperly myopic view of the NPS’s mandates for management of the Park, and, in any event, does not support the plaintiffs’ claim to a greater proportion of the allocation for self-guided use.  They further explained that the plaintiffs’ argument is belied by the fact that the new plan evenly distributes user-days between the two groups on an annual basis.  

Under the court-approved schedule in the lawsuit, the plaintiffs have until September 3, 2007 to submit their response to the government’s and intervenors’ cross-motions for summary judgment and their reply to the government’s and intervenors’ opposition to the plaintiffs’ motion.  The government and intervenors then have until October 3, 2007 to submit their reply to the plaintiffs’ response to their respective cross-motions.  After all of the papers have been filed, the judge may or may not hold an oral hearing prior to issuing his ruling on the merits of the case.  There is no timeline for when the judge might then issue a decision in the case. 

In the event that the judge rules in favor of the plaintiffs, the case will proceed to a second phase to determine the appropriate relief to be granted.  Although it is unclear what such relief might be, any remedy could have important consequences for the types and levels of Grand Canyon river trip opportunities available in the future to those members of the public who wish to run the river with a NPS-licensed outfitter and guide service, as well as for the quality of the visitor experience for all users of the river corridor.

Jonathan Simon is an attorney with Van Ness Feldman, PC, and represents Grand Canyon River Outfitters Association.