Snowmobile Ban Denies Due Process

Snowmobile Ban Denies Due Process

Post by Viki Egge » Tue, 18 Jul 2000 04:00:00

DATE:       July 17, 2000

TO: Snowmobile Associations / Federations
Snowmobile Media - US and Canada

FROM:   Ed Klim

SUBJECT:    Fact Sheet on National Park Action pertaining to Announced
Snowmobile Ban

Here is an analysis of the action taken by the Department of Interior
in the
National Park System regarding their Announced Ban for snowmobile use
in
National Parks.  This analysis is being distributed throughout
Washington DC
and has been put together by our Attorney in Washington DC.  Please
distribute this analysis as you see fit in your publications, to your
elected officials and to any other interested parties.

We believe the analysis is concise and highlights the improper actions
of
the Department of Interior.

National Park Service's Unilateral Closure Of National Park System
Units To
Snowmobile Use Violates Due Process And Administrative Law (July 17,
2000)

Introduction:

On April 27, 2000, the national park Service announced that all units
of the
national Park System are closed to all snowmobile use, with a few
exceptions.  In taking this action, the Service violated fundamental
notions
of fairness and due process, along with basic legal principles
governing
administrative decision-making.  In short, the Service excluded the
public
from the decision-making process and unilaterally announced a
nationwide
closure without any specific consideration of conditions in the
particular
park units it was closing, as the Service's own regulations require.
The
Service vowed to make individual unit closure decisions through proper
administrative processes.  But because the Service has unequivocally
declared that all Park units are closed to snowmobile use (with a few
exceptions), it will not have an open mind when deciding whether to
keep
open or close a particular unit to snowmobile use, as required by the
law.

Legal and Regulatory Background

The National Park Service's mission includes "to provide for the
enjoyment
of the [units] in such manner and by such means as will leave them
unimpaired for the enjoyment of future generations." 16 U.S. C. 1.
As
part of that mission, it has long allowed snowmobile use in numerous
units
across the country.  In approximately 24 units, the Service has
enacted
special regulations allowing such use.  The Service presumably enacted
these
special regulations in accordance with two executive orders that the
Service
claims govern its management of snowmobiles (and off-road vehicles).
E.O.
11644, signed February 9, 1972, requires the agency to designate rails
and
areas where snowmobile use may occur.  It expressly requires the
federal
agency to "ensure adequate opportunity for public participation . . .
in the
designation of areas and trails under this section."  It also
instructs the
agencies to monitor effects of off-road vehicles (although it does not
specify what type of monitoring is required) and from time to tome
make
necessary changes to the designations.

E.O. 11989, signed May 24, 1977, gives the agency authority to close
areas
or trails if the off-road vehicle use is causing considerable adverse
effects on soil, vegetation, wildlife and other feature of the units.
It
also authorizes, but does not require, the agency to adopt the policy
that
areas and trails are closed until specifically open to off-road
vehicle
use.  As to snowmobiles, the Service has adopted the position that
areas and
trails are closed unless specifically designated as open by special
regulation.
36 C.F.R 2.19 (c).

In Alaska and in Voyageurs national Park in Minnesota, snowmobile use
is
allowed by statute (although the Service has begun efforts in Alaska
to
prohibit snowmobile use despite statutorily guaranteed access).  Thus,
the
Service exempts these units from its new closure policy.  Because of
the
ongoing EIS decision-making process underway in the Yellowstone/Grand
Teton
units, the Service also claimed to exempt these units, but has in fact
adopted the no snowmobile use option as its preferred alternative.

Presumably based on access laws, the Service also authorized the
individual
unit managers to allow extremely limited use of snowmobiles for access
to
inholdings or across the unit to reach other areas where
snowmobile use is allowed.  In each case, the Service limited this
exemption
to a few named units.  The Service has also indicated it would exempt
certain
limited areas in Wisconsin from the ban.

The Service's Closure Decision

Despite the fact that the snowmobile use designation process is
supposed to
involve the public and be made based on the factual situation at the
particular unit or area, the Service has unilaterally decided that
snowmobile use is bad no matter what and no matter where.  It has, in
one
fell swoop, banned all recreational snowmobiling (official use is
still
permitted).

The Service has announced, as a matter of universal applicability,
that
snowmobiles are an inappropriate and non-essential means of providing
winter
access to all Park units.  It has ordered the commencement of the
administrative process to repeal all current special regulations,
which
allow recreational snowmobiling use in particular units.  And it has
done
all this
without the benefit of public comment on the wisdom and necessity of
such an
action (other than a one-sided, biased, and inaccurate petition for
rulemaking filed by anti-use groups), much less on whether this action
is
warranted everywhere in every situation.

The Service is not authorized to make such a sweeping decision without
the
benefit of a notice and comment rulemaking, which would provide the
Service
with the information necessary to make such a decision.  Even the
groups who petitioned for a closure of Park units to snowmobile use
acknowledge that such a change in policy must follow a rulemaking.  In
Yellowstone, the Service is considering the snowmobiling issue in a
full-flown rulemaking, EIS process.  Yet, the service has decided to
close
all other units to snowmobile use without the benefit of the
rulemaking and
NEPA processes.

That the Service will presumably undertake some kind of process for
the
individual closures does not change the illegality of the Service's
action.
These individual processes will be empty gestures by the Service.  It
has
already made up its mind to close all units (with a few statutory
exceptions).  In response to the petition for rulemaking, the Service
committed to "immediately begin the administrative process to repeal
all
current special regulations promulgated pursuant to 35 C.F.R 2.18
which
allow general recreational snowmobile use in particular units of the
National park Service."  Memorandum from Don Barry to Director,
National
Park Service, dated April 26, 2000 (emphasis added).  Because the
nationwide
closure was done without rulemaking, the Service gave the anti-use
groups
more than they requested.

These individual processes can have only one result - repeal of the
special
regulation allowing snowmobile use regardless of the actual
on-the-ground
conditions related to that use.  Instead of evaluating whether
snowmobile use is actually having any adverse impact in the particular
unit,
the Service has decided as a matter of policy and philosophy that
snowmobiles, no matter how, where, when, and in what frequency used,
are
bad and must be banned.  In the Service's view, one rider in a massive
unit
is too many.  The law does not allow the agency to have a closed mind
when
making individual closure decision as required by the E.O.s and the
Service's own regulations.  See, e.g., McLough Steep Prods. Corp. v.
Thomas,
838 F.2d 1317, 1323 (D.C. Cir. 1988)(agency must keep mind open during
decision
making process).

The facts regarding snowmobile impacts do not support the ban on
snowmobiles.  In addition, the Service's closed-minded zeal to reverse
decades of practice and policy and close all National Park units to
snowmobile use has caused it to ignore principles of fairness and due
process.  The Service has shut the public out of its decision-making
and
adopted an ill-advised and overly broad policy.
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