BALDOCK, Circuit Judge.
In 1974, the National Park Service (NPS) adopted a default rule prohibiting the use of snowmobiles in all national parks except on designated routes. 36 C.F.R. § 2.18(c). Pursuant to the default rule, NPS must promulgate a special regulation designating specific routes open to snowmobile use in a particular national park. Absent such a rule, no snowmobiles are allowed.
Our story begins in 1997 when snowmobile opponents sought to limit the number of snowmobiles entering the parks. The opponents brought their challenge to NPS policy in a Washington, D.C. district court.
In 2004, NPS promulgated a temporary rule which contained a "sunset clause," providing its snowmobile authorization would expire at the conclusion of the 2006-07 winter season. The 2004 temporary rule authorized 720 snowmobiles per day in Yellowstone, 50 per day on the Continental Divide Snowmobile Trail, 50 per day on Grassy Lake Road, and 40 per day on Jackson Lake. 69 Fed. Reg. 65348 (Nov. 10, 2004). The 2004 temporary rule triggered litigation by the opponents in Washington D.C. and the proponents in Wyoming. The temporary rule survived both challenges.
The Wyoming court's ruling reinstating the 2004 rule became the first decision to reach an appellate court. The issue before us was whether the district court had the power to order the interim remedial order reinstating the 2004 rule. Before we issued a decision, NPS published the 2009 rules. Subsequently, we found the
The National Environmental Policy Act (NEPA), 42 U.S.C §§ 4331-71 requires that "major Federal actions significantly affecting the quality of the human environment . . . be preceded by an environmental impact statement or EIS."
In this case, NPS prepared an EA in 2008 with the stated purposes of ensuring (1) park visitors had a range of appropriate winter recreational opportunities for an interim period and (2) recreational activities in the parks did not impair or unacceptably impact park resources or values. In the EA, NPS formulated two alternatives for snowmobile use in response to monitoring and studies, prior litigation, past public comments, and past winter planning processes. Alternative 1 proposed elimination of snowmobiles in the parks. Despite the 2004 temporary rule allowing 720 snowmobiles per day into Yellowstone at the time NPS wrote the EA, NPS believed the 2004 temporary rule expired at the end of the 2007 winter season and, in the absence of agency action, snowmobiles were no longer authorized. Thus, the agency labeled Alternative 1 a "No Action" alternative. In contrast, Alternative 2 proposed allowing 318 snowmobiles per day in Yellowstone and 50 snowmobiles per day in Grand Teton. NPS asserted the numbers selected in Alternative 2 reflected the recent snowmobile use trends in the parks.
Concluding that neither alternative would pose any significant adverse impacts on the environment, NPS issued a FONSI for both Yellowstone and Grand Teton adopting Alternative 2. NPS promulgated a permanent rule for Grand Teton, but rather than issue a permanent rule for Yellowstone, NPS decided to promulgate a temporary rule for the 2009-10 and 2010-11 winter seasons to replace the reinstated 2004 rule while NPS determined "a long-term strategy for Yellowstone winter use." 74 Fed. Reg. 60159, 60160 (Nov. 20, 2009). As discussed above, the 2009 temporary rule provided for 318 snowmobiles per day in Yellowstone and imposed a commercial guide requirement for snowmobilers.
Petitioners Wyoming and Park County filed separate petitions for review of agency action in the District of Wyoming challenging both the substance of the 2009 rules and the sufficiency of Respondents' analysis during the rules' promulgation procedure.
Intervenor-Respondent National Parks Conservation Association ("NPCA") then filed a motion to dismiss the petition for a lack of standing. NPCA argued a state and a county do not have standing, as parens patriae on behalf of their citizens, to bring an action against the federal government and the petitions offered no hint of any basis for standing other than the protection of the state and county's citizens. Park County and Wyoming filed separate responses in opposition, each attaching affidavits in support of standing. Park County maintained standing exists because the NPS regulation impacts the amount of sales tax collected. The sales tax money flows to Park County's "general fund," which the county uses to provide public services and to subsidize its advertising budget. Moreover, Park County argued it not only suffers a loss to its sales tax revenues, but also gains the responsibility of caring for increased use and physical environmental impacts on roads and land from displaced Yellowstone snowmobilers. Park County also attached an affidavit declaring the commercial guide requirement reduces interest in snowmobiling in Yellowstone, which results in a further decrease in sales tax revenue. Additionally, Park County contends demand to enter Yellowstone through the East Gate is greater than the maximum daily limit of 20 per day the 2009 temporary rule mandates. Park County pointed the district court to 2001 statistics which show an average of 41 entries per day from the East Gate. Finally, as to NEPA, Park County claimed it has a geographical nexus to Yellowstone based on the park's location within Park County.
Wyoming agreed with NCPA that its standing could not be brought as parens patriae on behalf of its citizens. Instead, Wyoming claimed it asserted a sovereign and proprietary interest in the health of its tourism industry and further maintained the daily limit on snowmobiles, commercial guide requirements, and continued uncertainty for future seasons discouraged and reduced the number of snowmobilers to the parks to the economic detriment of the state. Wyoming also suggested "displacement impacts" from the parks onto the adjacent National Forests provide standing for Wyoming's NEPA claims because displacement of snowmobilers from the National Parks to the National Forests creates a significant increase in the management, grooming and trail upkeep responsibilities for the state-run Wyoming Trails Program. Wyoming further alleged displacement interferes with Wyoming's sovereign interest in the management of wildlife within its borders, including management of the fishery at Jackson Lake in Grand Teton. Wyoming also asserted a sovereign regulatory interest in the air quality of the parks, maintaining the 2009 rules conflicted and interfered with Wyoming's regulatory authority over air quality matters within its borders. In addition, Wyoming and Park County both alleged an interest in the litigation because of their heavy involvement in the NEPA processes that led to the 2009 rules.
NPCA, in reply, also presented the district court an affidavit and evidence to show a lack of standing. Specifically, NPCA argued Petitioners' tax and fees arguments were based on speculation and out-dated data. NPCA's evidence showed a negative correlation between tourism in Park County and the number of snowmobiles going into Yellowstone's East Entrance. Regardless of the data, NPCA urged the district court to find Petitioners lacked standing because the loss of tax receipts is not a valid basis for standing. NPCA also stated the district court should discredit the displacement argument because Petitioners irrationally desire to simply shift the environmental harm from the National Forests to the National Parks, which are both within the boundaries of the state.
The district court granted NPCA's motion, concluding Petitioners did not allege sufficient facts to establish it had a procedural NEPA injury.
On appeal, Petitioners first assert the district court failed to afford Wyoming "special solicitude" in its standing analysis. Particularly, Petitioners acknowledge that where, as here, petitioners are not themselves the object of the government action they challenge, standing is ordinarily substantially more difficult to establish. Petitioners suggest this creates a "heightened" burden of proof, which the "special solicitude" doctrine negates as to the states. Next, Petitioners maintain the district court erred by dismissing the petitions without considering whether Petitioners had standing pursuant to the Organic Acts. Petitioners assert their economic interests are significantly and directly injured by NPS's alleged violation of the Organic Acts because each snowmobile entry into the parks corresponds to tax revenues for Petitioners. Thus, Petitioners contend any new restrictions on access the 2009 rules impose cause them real harm. Petitioners also allege injury to their proprietary and sovereign interests from loss of revenue resulting from commercial guide requirements and continued uncertainty regarding future seasons; the health of their tourism industry; environmental effects from displacement of snowmobiles; and management of the fishery at Jackson Lake.
Moreover, Petitioners suggest the district court ignored this Court's precedent "that state and local governments have standing to assert claims that the unlawful conduct of a federal agency results in lost tax revenues." Finally, Petitioners argue the court erred in declaring Petitioners asserted no NEPA injuries. Petitioners state they have an obvious geographical nexus to the site of the agency action because the parks are within the boundaries of Wyoming and Park County.
In contrast, Respondents contend the federal government, not Petitioners, represent the citizens of Wyoming and Park County as parens patriae. Thus, Petitioners cannot base standing on allegations that a federal action incidentally results in a reduction in tax revenue. Respondents assert even if Petitioners could have standing for actions that incidentally reduce tax revenue, the district court properly found the alleged economic consequences of the 2009 rules too speculative to support standing. Respondents further contend Petitioners failed to establish a concrete interest sufficient to support standing pursuant to NEPA.
Notwithstanding the foregoing, in their briefs and at oral argument, Respondents contended this civil action is moot. As mentioned above, the 2009 temporary rule for Yellowstone expired by its own terms on March 15, 2011, prior to oral argument in this case. Although NPS intended to have a permanent rule in place for Yellowstone for the 2011-12 winter season, it did not meet its goal. Instead, NPS implemented a one-year rule for the 2011-12 winter season which, in substance, keeps in place the 2009 temporary rule at issue in this case. 76 Fed. Reg. 77131 (Dec. 12, 2011). After NPS decided to reinstate the 2009 temporary rule for the 2011-12 winter season, Respondents filed a Fed. R. App. P. 28(j) letter, in which they abandoned their mootness argument. Because this issue goes to our jurisdiction to hear the case, however, we must address mootness before we turn to standing.
The Constitution limits our jurisdiction to the adjudication of "Cases" or "Controversies." U.S. Const. art. III, § 2, cl. 1. A controversy "must exist during all stages of the appellate review," and if that controversy ceases to exist, "the action is moot and this court lacks jurisdiction to adjudicate the matter."
We first address Petitioners' substantive challenge. The capable of repetition, yet evading review exception is a "narrow" exception that should only be used in "exceptional situations."
Although in the present case NPS has reinstated the features of the 2009 temporary rule for the upcoming winter season, nothing inherent in winter use plans makes them necessarily of short duration. Indeed, NPS has indicated it plans to have a long-term, final winter use plan in place by the 2012-13 winter season. Therefore, Petitioners' objections to NPS's Yellowstone winter use plan likely would not escape review if we held them to be moot here, although such review would be delayed.
Instead of falling into the narrow class of actions capable of repetition, yet evading review, we believe the one-year rule for the 2011-12 season is, in substance, a continuation, or a "mirror image" of, the 2009 temporary rule.
Although we conclude the substance of the one-year rule is the same as the 2009 temporary rule, the new rule is procedurally distinct. The rationale of the mirror image rule in
In this case, NPS published a new EIS in November 2011, which supports the 2011-12 one-year rule. 77 Fed. Reg. 6581 (Feb. 8, 2012). The new rule is supported by new analysis and a rulemaking process independent of that underlying the 2009 temporary rule. Thus, any determination we might make as to the procedural foundations of the old rule "would be wholly without effect in the real word."
Having determined Petitioners' procedural challenge pursuant to the APA and NEPA as to Yellowstone is moot, we turn to the question of Petitioners' standing to challenge the entirety of the 2009 permanent rule and the substantive challenge under the Organic Acts as to the 2009 temporary rule. To have Article III standing, Petitioners must demonstrate: "(i) an injury in fact that is both concrete and particularized as well as actual or imminent; (ii) an injury that is traceable to the conduct complained of; and (iii) an injury that is redressable by a decision of the court."
Here, Petitioners agree they cannot bring an action parens patraie on behalf of their citizens. Rather, Petitioners contend the 2009 rules resulted in economic losses and adverse displacement effects that violated their sovereign and proprietary interests in violation of the Organic Acts. Petitioners also assert harm from NPS's alleged procedural APA and NEPA violations, which, as mentioned above, are live controversies with respect to Grand Teton only. Petitioners bear the burden of proving they have suffered an "injury in fact" that is "concrete and particularized" and "actual or imminent," not "conjectural" or "hypothetical."
Petitioners first argue Respondents harmed their sovereign and proprietary interests in violation of the Organic Acts because restrictions on snowmobile access to the parks correlate directly to lost revenues to the state and county. In support of this claim, Petitioners assert: (1) NPS "explicitly determined" in the EA Petitioners will suffer economic harm from the 2009 rules; (2) the parks are the centerpiece of Petitioners' tourism marketing expenditures, which generate jobs, payroll associated with those jobs, and tax revenues for local, county, and state governments; and (3) each snowmobile entry into the parks corresponds to tax revenues for Petitioners and evidence in the record shows snowmobilers will be turned away from the parks under the 2009 rules.
First, NPS made no determination in the EA that Petitioners will suffer economic harm. Rather, the EA states the economic impact of Alternative 2 is difficult to detect at the state, county, or community level. Aplt. App. vol. v, at 1187. Specifically, the EA states despite the negligible impact on the state and county level, local businesses and their employees will suffer adverse effects.
Next, as to Petitioners' contention the parks are the centerpiece of tourism marketing expenditures, we find nothing in the regulations to prevent Wyoming and Park County from promoting tourism and further see no evidence in the record the regulations have impacted the promotion of tourism. To support their claim, Petitioners once again turn to the EA. In addition to the EA, Petitioners rely on affidavits of various state and county officials. Jill Shockley Siggins, Chairman of the Board of County Commissioners of Park County, attested that when NPS "reduces public use in the parks . . . Park County is harmed by the resulting reduction in sales tax and the diminished aesthetic resources Park County has to advertise." Aplt. App. vol. i, at 256. The affidavit of Bradley Hill, Director of the Wyoming Trails Program cites a 1995 study in his affidavit which found out of state snowmobilers generated $4.7 million in sales tax revenue in Wyoming. Aplt. App. vol. ii, at 299.
Siggins' affidavit is conclusory. Although she attests the county is harmed by a reduction in sales revenue, she provides no underlying evidence to support her claim that a reduction in revenue even exists. Likewise, Hill's affidavit is not helpful to establish standing. Citation to a study conducted over 15 years ago does not establish Petitioners are suffering a loss resulting from the 2009 rules. Petitioners additionally cite to yet another conclusory statement in Siggins' affidavit that the general fund can be used to fund advertising for the county. Aplt. App. vol. i, at 255. This statement, however, does not demonstrate Petitioners have standing because Petitioners provide no evidence of the general fund actually decreasing, nor have they shown the general fund revenues will decrease in the future. Petitioners also suggest we look to Wyoming Travel and Tourism's comments to the 2009 rules. Specifically, comment 2 states Wyoming outfitters will lose revenues because of lost permits. The comment also states outfitters will be forced to cancel reservations already made and will be forced to lay off staff. Petitioners' asserted interest in the jobs of their citizens implicates standing pursuant to parens patriae, which, as the parties agree, is not available when a state sues the federal government because the federal government is presumed to represent the citizens' interests.
Importantly, Petitioners have not shown the 2009 rules have or will result in lost revenue. Petitioners do provide evidence demonstrating more than 318 snowmobilers entered Yellowstone on six so-called "peak days" during the 2008-09 winter season. Aplt. App. vol. vi, at 1313. Petitioners suggest "lopping off" these peak days will significantly reduce the number of snowmobile entries, thus reducing the amount of tax revenue collected. But rather than examining data from the East Entrance, Petitioners compiled data for every entrance into the park. The East Entrance, however, is the only entrance at issue in this appeal. The North, Northeast, and West Entrances all border Montana and the South Entrance borders Grand Teton. NPCA, on the other hand, provided evidence detailing the average daily entry of snowmobiles entering Yellowstone's East Entrance. From the 2004-05 winter season through the 2008-09 winter season, on average, only four snowmobiles entered the park per day—far below the 2009 temporary rule's maximum of 20 per day and Petitioners' January 2001 figure of 41 per day. Aplt. App. vol. ii, at 401.
Petitioners blame the reduction in part on the commercial guide requirement. But Petitioners have no evidence to support their position. They present the affidavit of Bert Miller, president of the Cody County Snowmobile Association and vice president of the Wyoming State Snowmobile Association. Aplt. App. vol. i, at 260. Miller's conclusory statement that commercial guide requirements are reducing interest in snowmobiling in Yellowstone cannot explain away a decade-long trend of declining snowmobile entries from the East Entrance. As discussed above, data presented to the district court showed that in none of the five seasons prior to the adoption of the 2009 rules did the average daily number of snowmobiles entering Yellowstone's East Entrance reach the 2009 rule's 20 snowmobile limit. Petitioners fail to provide support for their conclusory proposition other than one statement in an affidavit stating "expensive" commercial guides hinder snowmobile use in the parks.
Petitioners also rely on the EA, but, once again, their reliance is misplaced. The EA did find that each snowmobile entry into the West Entrance of Yellowstone corresponds to tax revenues. Aplt. App. vol. v, at 1185. But the EA made no such finding for the East Entrance. NPCA's evidence actually shows the opposite result for the East Entrance. As snowmobile use decreased from the East Entrance into Yellowstone, winter tourism and lodging tax revenue increased in Park County. Aplt. App. vol. ii, at 404-07; vol. v, at 1115. NPS states in the EA, "[o]f the five regional economic areas examined in this analysis, only for the gateway community of West Yellowstone is there a detectable impact on the relevant area's economy from winter use in Yellowstone (and that on the surrounding national forests)." Aplt. App. vol. v, at 1121. Petitioners have failed to meet their burden of showing an injury in fact. Record facts consisting of conclusory statements and speculative economic data are insufficient to lead us to any other conclusion. Accordingly, we hold Petitioners lack standing to bring this civil action.
Petitioners contend our holding conflicts with our decision in
In contrast to
We do not foreclose the argument that reduced tax revenues can provide a state with Article III standing.
For the above stated reasons, we agree with the district court Petitioners' evidence regarding economic loss is speculative.
Petitioners additionally assert they have standing under the Organic Acts because of adverse displacement effects from snowmobilers choosing not to snowmobile in Yellowstone. Petitioners state some displaced snowmobilers will choose to snowmobile in Montana, taking their money with them, while other snowmobilers will snowmobile in the adjacent national forests in Wyoming. Hill, in his affidavit, declares "The daily displacement of hundreds of snowmobiles into the adjacent National Forests causes significant increase in the management, grooming and trail upkeep responsibilities of the Trails Program." Aplt. App. vol. ii, at 298. Petitioners assert this displacement will impose additional burdens on the remaining trails and facilities in Wyoming and further impose environmental, regulatory, and economic costs on Wyoming and Park County. Petitioners state they bear these burdens and costs because Wyoming, not the United States Forest Service, operates the Trails Program which pays to maintain, groom, sign, and map the snowmobile trails on the national forest lands in Wyoming. Wyoming additionally argues the national forests are at or near carrying capacity for snowmobile use and that the Forest Service is likely to impose additional restrictions on the forests, which, in turn would interfere with the mission of the Trails program.
We agree with the district court that Hill's statement that "hundreds" of snowmobilers will be displaced because of the 2009 rules is "rhetorical exaggeration."
Park County further claims standing based on increased maintenance of roads and parking lots. We fail to see how these interests provide Park County standing. Regardless of the number of snowmobilers displaced from the parks to the forests, Park County would still plow the snow off of the Beartooth Highway. As to the additional burden of clearing a parking lot, we have no concrete evidence additional snowmobilers would even be displaced, let alone choose to snowmobile in the adjacent national forests. Once again, Park County provides us only speculative evidence consisting of conclusory statements.
As to Jackson Lake, Stone, in his affidavit, states specific fish management activities include "fish stock and spawning assessments, enforcement on an annual basis, and a creel survey about every 5 years." Aplt. App. vol. ii, at 302-03. Stone also asserts it has taken several decades to achieve the current quality and reputation of winter fishing opportunity available on Jackson Lake, which "would be almost completely lost without adequate snowmobile access to the surface of the lake."
Even though we determined Petitioners' procedural challenge to the 2009 temporary rule for Yellowstone is moot, we still must address Petitioners' procedural challenge to the 2009 permanent rule for Grand Teton. NEPA's purpose is to protect and promote environmental quality. 42 U.S.C. § 4331(a-c). "To ensure this protection, [NEPA] establishes `action forcing' procedures the agencies must follow."
In their petitions, Petitioners allege Respondents violated NEPA in a myriad of ways. They first maintain NPS failed to consider a reasonable range of alternatives, including alternatives that would have authorized more snowmobile entries per day into Grand Teton, and alternatives that would have allocated entries on other bases besides a strict per day limit. Next, Petitioners contend NPS failed to analyze the correct "no action" alternative and purposefully constructed a fictitious "no action" alternative which preordained the outcome of the NEPA process. Additionally, Petitioners believe NPS did not provide a reasoned explanation for their determination to restrict snowmobile access in spite of the scientific evidence which demonstrates that more snowmobiles could be permitted without causing unacceptable impacts or impairment to Grand Teton's resources. Finally, Petitioners assert NPS neglected to take a "hard look" at the environmental consequences of the following actions: (1) allowing snowmobiles on the Continental Divide Snowmobile Trail; and (2) allowing more than 25 snowmobiles per day at Jackson Lake.
As mentioned above, in order to show an injury in fact for a procedural violation of NEPA, Petitioners must show the agency's violation "created an increased risk of actual, threatened, or imminent environmental harm."
Petitioners further alleged Respondents did not critically review and give meaningful consideration to all of the comments submitted by Petitioners and ignored evidence, resulting in a rule that arbitrarily and capriciously excluded snowmobilers from Grand Teton in violation of the APA. We disagree. In this case, NPS followed procedures. It issued an EA and a FONSI. The record shows NPS considered the quality of the air and the effects on wildlife.
Finally, Petitioners contend the district court erred by not providing Wyoming "special solicitude" in its standing analysis. In
Because we hold Petitioners' procedural challenge to the 2009 temporary rule as to Yellowstone is moot, that portion of the district court's order must be vacated and remanded to the district court to dismiss that portion of the case for lack of jurisdiction.
THE MANDATE SHALL ISSUE FORTHWITH.