Fitzgerald v. Harris

Dec 5: In the U.S. Court of Appeals, First Circuit, Case No. 08-1306. The case raises the issue of whether a Maine statute governing the management of a state administered river, the Allagash Wilderness Waterway (AWW) is preempted by certain sections of a Federal statute, the Wild and Scenic Rivers Act (WSRA). Plaintiffs Charles FitzGerald and Kenneth Cline (collectively FitzGerald) are avid canoeists who sued Willard R.Harris, Director of the Maine Bureau of Parks and Lands, seeking a declaration that the Maine statute is preempted by Federal law, as well as injunctive relief against the enforcement of the Maine statute.

According to the Appeals Court, the Plaintiffs essential complaint is that the provisions of Maine's statute maintaining certain bridges and public access points to the AWW destroy the "wild" character of the river. The Appeals Court said, "There have been, to our knowledge, no prior federal courts of appeals decisions squarely involving claims of preemption of state statutes by the WSRA, which was enacted in 1968." The district court granted Harris's motion to dismiss under Fed. R. Civ. P. 12(b)(6), adopting a magistrate judge's recommended decision holding that the Maine statute is not preempted by federal law. The Appeals Court affirmed the district court dismissal.

In part, the Appeals Court said, "Because both the NPS [National Park Service] and the ACE [Army Corps of Engineers] approved Maine's plans for the Henderson Brook Bridge, it cannot be said that the Maine statute authorizing the permanent bridges over the AWW is preempted by federal agency action."

Access the complete opinion (click here).

Friends of Yosemite Valley v. Kempthorne

Mar 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-15124. The Appeals Court explains that, "Twenty years after the Merced River, which lies in the heart of the Yosemite National Park, was designated a Wild and Scenic River, and seventeen years after the National Park Service (NPS) was statutorily required to prepare a Comprehensive Management Plan (CMP) for the Merced Wild and Scenic River, the question whether NPS has developed a valid CMP is again before us. In 2003, we found certain deficiencies in an earlier CMP -- the 2000 CMP -- and remanded it to the district court."

Interior Department Secretary Kempthorne and the NPS argue that the district court erred in finding that (1) the Merced Wild and Scenic River -- Revised Comprehensive Management Plan and Supplemental Environmental Impact Statement (2005 Revised Plan) fails sufficiently to “address . . . user capacities” as required; (2) the 2005 Revised Plan is deficient because it is not a wholly self-contained plan; and (3) the supplemental environmental impact statement (SEIS) prepared for the 2005 Revised Plan violates NEPA.

The Appeals Court affirmed the district court ruling and said, "We hold that the 2005 Revised Plan does not describe an actual level of visitor use that will not adversely impact the Merced’s Outstanding Remarkable Values (ORVs) as required by Yosemite I and the WSRA [Wild and Scenic River Act], because the Visitor Experience and Resource Protection (VERP) framework is reactionary and requires a response only after degradation has already occurred. Moreover, the interim limits are based on current capacity limits and NPS has not shown that such limits protect and enhance the Merced’s ORVs. And, as we made clear in Yosemite II, we again conclude that the WSRA requires that the CMP be in the form of a single, comprehensive document, which addresses all the required elements, including both the 'kinds' and 'amounts' of use, and thus the 2005 Revised Plan is deficient because it addressed only the two components struck down in Yosemite I and was not a single, self-contained plan. Finally, we conclude that the SEIS violates NEPA because the 'no-action' alternative assumed the existence of the very plan being proposed; the three action alternatives -- which are each primarily based on the VERP framework -- are unreasonably narrow; and for the first five years, the interim limits proposed by the three alternatives are essentially identical."

Access the complete 28-page opinion (click here).