Rejecting a National Park Service ban on recreational snowmobile use in the Yellowstone area as a “predetermined political decision,” a federal court in Wyoming found that the Clinton-era snowmobile ban violates the National Environmental Policy Act and the Administrative Procedure Act. With gaps in the reasoning large enough to drive a snowmobile through, the decision will most likely not be the last word on the appropriateness of the NPS decision in 2001 to ban snowmobiles. A Tale of Two Court Cases A Ban and a Rollback Although early news reports suggested that the new decision conflicts directly with a decision by the district court in Washington, D.C., that also addressed snowmobiles in the parks, the two decisions actually covered different rulemakings, and each focused on the propriety of the rulemaking processes rather than snowmobiles as such. In essence, the Wyoming litigation challenged a decision in 2001 to phase out snowmobiles and ultimately ban them entirely in favor of snowcoaches, and the D.C. litigation challenged a subsequent decision in 2003 to reverse the Clinton-era snowmobile ban. The NPS began to address snowmobile usage and its effects on the Yellowstone area parks after a 1997 lawsuit brought by the Fund for Animals, charging that the Yellowstone winter use plan violated both NEPA and the Endangered Species Act. In a 1997 settlement agreement, NPS promised to prepare an Environmental Impact Statement (EIS) addressing snowmobile use and trail grooming (the practice of packing snow along trails in order to facilitate winter use and specifically to make snowmobile use possible). The resulting 1999 EIS led to a final rule in 2001 that banned recreational snowmobile use in the parks. As later modified, the rule would have phased out snowmobiles in favor of snowcoaches over a couple of seasons. The 2001 snowmobile ban was challenged in a Wyoming federal court by snowmobile manufacturers. The Wyoming litigation was suspended when the NPS agreed in a partial settlement to prepare a supplemental EIS taking into account new snowmobile technology not considered in the 1999 EIS. A rule in 2002 delayed the phase-out, thus giving the NPS time to conduct the supplemental EIS and any subsequent rulemaking in light of the new EIS. The Bush administration, which in a variety of contexts has evinced a tendency to dismantle public protections in favor of corporate special interests, was prepared to concede to snowmobile manufacturers. In fact, in an altogether separate rulemaking effort, White House regulatory czar John Graham prompted the Environmental Protection Agency to weaken regulation of snowmobile emissions. Unsurprisingly, the NPS finally produced a rule that overturned the Clinton ban. Instead of phasing out snowmobiles in favor of snowcoaches, as under the old rule, the new rule allowed 950 snowmobilers to enter the parks every day, required best available technology (where possible) in snowmobiles, and required guided passage through the parks for most snowmobiles. After the reversal of the snowmobile ban, the Fund for Animals filed suit in the Washington, D.C. federal district court. Whereas the Wyoming litigation challenged the 2001 ban, this D.C. litigation challenged the 2003 rollback of the ban. When the D.C. litigants prevailed in their effort to overturn the ban, parties to the Wyoming litigation reactivated that case. Further details about the different sets of administrative actions and their relationships to the two court cases are available in this chart. Distinct Decisions Early news reports suggested that the final decision on the merits issued Oct. 14 by the Wyoming court conflicted with the December 2003 final decision of the D.C. court. Neither decision addressed the ultimate question of the appropriateness of snowmobiles in the parks; instead, each decision ruled on the appropriateness of the underlying administrative process that led to the two NPS snowmobile actions. Each court addressed distinct legal questions that did not, in fact, overlap. There was one technical overlap between the two courts, but it was actually resolved months before the final decision on the merits from the Wyoming court. When the D.C. court issued its final ruling vacating the Bush rollback of the snowmobile ban, the court ordered a series of steps to return to the pre-rollback status quo, among them a mandate that the NPS implement the Clinton snowmobile ban as it had been modified by the 2002 delay rule. The petitioners in the Wyoming litigation won a preliminary injunction from that court, which stopped the NPS from implementing the Clinton snowmobile ban. The D.C. parties returned to court in June 2004, and that court modified its order to relieve the NPS from the specific requirement of implementing the 2002 rule. The D.C. court insisted nonetheless that the thrust of its order remained in effect, regardless of the Wyoming ruling, and it reiterated its order that NPS promulgate a new rule governing the 2004-05 winter use season in accordance with its ruling. About the Wyoming Decision The court in the Wyoming litigation rejected the snowmobile ban as violating NEPA and the APA. The overlapping rationales converge on two purported problems with the administrative process leading to the ban: (1) inadequate analysis in the record to justify phasing out snowmobiles in favor of snowcoaches, and (2) improper truncation of the deliberative process. Analytical Breakdown The reasoning underlying the court’s conclusion that the NPS failed to take a “hard look” at the effects of a snowcoach-only policy, as required by NEPA, is weak. The basis for the agency’s decision to phase out snowmobiles in favor of snowcoaches, as it can be teased out from the court’s opinion, boils down to the following:

• The NPS studied the effects of present and estimated future snow and road vehicles on the parks’ soundscape.
• The NPS also compared the emissions levels of snowmobiles and snowcoaches in an extensive literature review.
• These studies confirm, with no legitimate dispute to the contrary, that snowcoaches are quieter and less polluting than snowmobiles.

The court insisted that the NPS nonetheless did not adequately address the effects of a snowcoach-only rule. With obvious strain, the court found a number of factors that it believed should have been addressed in the snowcoach analysis: “[N]o where [sic] was there a study of the small windows of snowcoaches usually fogged by passengers’ exhalation, the cramped, uncomfortable seating, and the slowness of the coaches, all of which are to the detriment of Park’ visitors’ enjoyment of their trip.” Reasoning that the snowcoach rule would result in increased snowcoach use in the parks, the court further held that the underlying administrative record should therefore have included studies of the emissions and noise effects of increased snowcoach use. Here, the court overlooked the obvious: the increase in snowcoach use would be accompanied by the phase-out and eventual elimination of the noisier and dirtier snowmobile. Because, as the NPS specifically found, snowcoaches produce fewer emissions and less noise than snowmobiles, the snowcoach rule would logically entail decreased air and noise pollution in the parks. The NPS thus had in the administrative record all the studies it needed to justify the snowcoach rule. Analytical break-down is also a basis for the court’s APA rationale, but it is stated so incoherently in the court’s opinion that it is difficult to gloss as a legal argument. The sequence of the argument is apparently the following:

• The NPS shifted its position between the draft environmental impact statement (DEIS) and the final environmental impact statement (FEIS).
• The DEIS, as characterized by the court, announced a preferred alternative that would have allowed a set number of snowmobiles in the parks.
• In the FEIS, the NPS announced that the snowcoach-only alternative would be the preferred alternative. Although this alternative had, in the DEIS, contemplated a future return of snowmobiles, in the FEIS it was configured as a permanent snowmobile ban.
• The NPS “did not consider the impacts of increased snowcoach use in the Parks, the effectiveness of snowcoach transportation in the Parks’ interior, or the real economic impacts to the surrounding areas.”
• The lack of a stated explanation for the shift in positions between the DEIS and the FEIS and the failure to consider the listed consequences of snowcoach use compel the conclusion that the NPS violated the APA in issuing the snowcoach rule.

One of the opacities of this line of reasoning is that it apparently presumes that the APA substantively demands the consideration of factors beyond what is required by the organic statute under which an agency acts. Although the court’s list of unanalyzed factors in its NEPA rationale is laughable, that list notably does not include “the real economic impacts to the surrounding areas” of a snowcoach-only policy. If the APA somehow requires consideration of that factor when NEPA does not, the court has transformed the APA’s procedural law into a substantive law not supported by the text of the APA itself. Another problem is a textual instability. The court’s conclusion that the shifting preference of alternatives between the DEIS and FEIS requires a stated explanation may be arguable, but it is illogically intercut with the court’s repeated emphasis of the dramatic turn-around between the laissez-faire position of accepting snowmobile use and the new snowmobile ban. Calling the snowmobile ban a “radical departure from the policy used by the NPS in the park for almost forty years,” the court added, “It was a lot like banning all pickups in summer months would have been -- a pretty radical move in our eyes.” Here, the court evinces an interest not in the procedural proprieties of the decision but instead in the wisdom of the agency’s exercise of the discretion given to it by NEPA and the NPS’ own authorizing statutes. This kind of second-guessing the merits of agency decisions is expressly forbidden by a plethora of binding precedents, and the repeated interjection of that inapposite observation in a thinly-reasoned line of argument calls that part of the court’s decision into question. Political Prejudgment The second set of overlapping rationales is the court’s conviction that the NPS decided to ban snowmobiles arbitrarily, without allowing for full participation by cooperating state agencies and the public. The strongest line of argument in this part of the court’s opinion is its review of the notice-and-comment timeline. Although the NPS posted the FEIS on its website on October 10, 2000, it did not publish the FEIS in the Federal Register until October 31, 2000, the same day that the comment period was scheduled to close. Further, although the agency allowed a full 30-day comment period for the proposed rule, the court stressed that the final rule was signed exactly one day after the comment period closed, even though “many” (the exact number is unspecified) of the 5,000 comments the agency received were filed on the last day of the comment period. The latter part of this argument cries out for more detail: How many of those 5,000 comments were filed on the last day of the comment period? Of those, how many were form letters repeating the same positions? How many new concerns were actually filed in those comments, and how many of those were actually relevant to the NPS decision under NEPA? Were any relevant concerns not addressed in the final rule? The court did not address these questions. Instead, it added the irrelevant observation that 45 percent of the comments expressed a preference for a different alternative. The APA notice-and-comment provisions create many meaningful opportunities for public participation in the administrative process, but they do not make the comments phase a plebiscite. Once again, the court appears ready to distort both NEPA and the APA in order to reach an outcome in favor of the snowmobile industry. Also distorted in this opinion is a commonsense approach to reading. The linchpin of the court’s conclusion that the NPS arbitrarily decided on a snowmobile ban before giving cooperating state agencies a chance to weigh in is this excerpt from a speech by Donald Barry, the assistant secretary for fish, wildlife, and parks: Imagine yourself [in one of the national parks]. And imagine yourself trying to absorb the serenity and the meaning of the place with the taunting roar of snowmobiles bombarding your peace of mind. According to recent visitor use surveys, this is not the type of experience that visitors to our national parks want. The statement makes perfect sense as a comment on the mere fact that snowmobiles affect the soundscape of the parks (an issue that the court would have to admit must be taken into consideration) and as an objective recounting of visitor use surveys (also relevant, given the court’s emphasis on the snowcoach rule’s consequences for visitor enjoyment of the parks). What does not make sense is the court’s abrupt conclusion that the statement somehow “indicate[s] a prejudged political conclusion to ban snowmobiles from the Parks.” The statement is in fact neutral on the question of a complete ban -- it could just as readily support a conclusion to reduce snowmobile use, limit snowmobile use to specific areas of the parks in order to create more quiet zones, or even require quieter snowmobiles. Whose Prejudged Outcome? The many fissures and lacunae in this decision are particularly worth noting in light of recent evidence that the partisan affiliation of the president who appointed a judge correlates with a judge’s tendency to rule in NEPA cases. True to form, this NEPA ruling against the environmentalists’ position was made by Judge Clarence Brimmer, appointed by Republican president Gerald Ford. The same judge rejected the Clinton administration’s roadless rule in a NEPA challenge.