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Re: Appellate Court Ruling

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avatar Appellate Court Ruling
March 27, 2008 03:44PM
Feds' plan for protecting Yosemite river falls short, court rules

Bob Egelko, Chronicle Staff Writer

Thursday, March 27, 2008

(03-27) 12:23 PDT SAN FRANCISCO -- The federal government has failed to prepare an adequate plan to manage and protect the Merced River in Yosemite National Park, a federal appeals court ruled today.

The Ninth U.S. Circuit Court of Appeals in San Francisco upheld a federal judge's decision in 2006 that the National Park Service had not adequately addressed limits on public use of the 81 miles of the river that wind through the park.

U.S. District Judge Anthony Ishii blocked several construction projects after he issued his ruling, including repaving the heavily used Valley Loop Road and rebuilding some of the hotel rooms and campsites that were lost when the Merced flooded in January 1997. The judge gave the park service until September 2009 to come up with a new management plan.

In today's ruling, the three-judge panel agreed with Ishii that the park service plan did not properly consider Yosemite's capacity to accommodate more visitors without damaging its environmental and scenic qualities.

The plan violated federal law "by not requiring a response to environmental degradation until it already occurs," Judge Kim Wardlaw said in the court's decision. She also said the plan did not consider a range of alternatives that would both repair damage and limit park use.

The plan was challenged by environmental groups led by a local organization called Friends of Yosemite Valley, which said the government's plans would lead to commercialization of the park and turn it into a playground mainly for wealthy lodgers, people driving recreational vehicles and visitors arriving in tour buses.

Other environmental groups, including Friends of the River and the Wilderness Society, sided with the park service, saying Ishii's ruling would hinder protection of the river by delaying implementation of a management plan.

E-mail Bob Egelko at begelko@sfchronicle.com.

avatar Re: Appellate Court Ruling
March 28, 2008 07:20PM
You can read the opinion here: http://bitsy.spinics.net/127

avatar Re: Appellate Court Ruling
March 29, 2008 03:21PM
Another article on the subject:

Court Halts Yosemite National Park Construction Plans

PASEDENA, California, March 28, 2008 (ENS) - The National Park Service cannot proceed with more than $100 million in construction projects now on the drawing board for Yosemite National Park because the developments could illegally ruin the park's sensitive ecosystem, the Ninth Circuit Court of Appeals has ruled.

Yosemite National Park covers nearly 1,200 square miles of mountainous terrain in the Sierra Nevada of central California.

In its decision Thursday, a three judge panel concludes that the park service's 2005 Revised Plan for Yosemite is illegal because it does not describe an actual level of visitor use that will not adversely impact the Merced River's Outstanding Remarkable Values as required by the Wild and Scenic Rivers Act and also required by a 2003 decision of the same court.

Judge Kim Wardlaw wrote that the Plan violates the Wild and Scenic Rivers Act because the Visitor Experience and Resource Protection framework is "reactionary and requires a response only after degradation has already occurred."

The appeals court has addressed the same issues twice before, all three decisions relating to lawsuits brought by the Friends of Yosemite Valley and Mariposans for the Environment and Responsible Government, MERG.

In this case, a lower court decision in favor of the environmental groups was appealed by Secretary of the Interior Dirk Kempthorne; National Park Service Regional Director of the Pacific West Region Jonathan Jarvis; and Michael Tollefson, Superintendent of Yosemite National Park. Their appeal was rejected.

The conflict stems from the Yosemite flood of 1997, which caused widespread damage to park infrastructure, including segments of Highway 140. Under the guise of emergency repairs, the park service decided to widen the canyon road to accommodate larger RVs and commercial buses.

Friends of Yosemite Valley's Bridget Kerr says, "The public was horrified by the blasting of 18,000 year old naturally formed rock walls, the cutting of oaks, and the filling in of the riparian river bank with rocks and concrete."

As a result, in 1999, the Sierra Club and Mariposans for the Environment and Responsible Government brought suit against the park service to stop the destruction in the canyon. "A portion of the canyon road remains untouched by this road-widening project only because it was stopped by the court," Kerr says.

In 2000, Friends of Yosemite Valley and MERG legally challenged the validity of the park service's Merced River Plan and the courts ruled in their favor twice. Today, a valid Merced River Plan is 18 years overdue and is now supposed to be completed next year.

Kerr says the current plan, struck down by both district and appellate courts, would destroy the park's environment. "The plan states plainly that when completed, air quality in Yosemite would be worse, noise levels would increase, and the amount of asphalted surface in Yosemite Valley would be greater," she says.

The plan calls for developed areas to expand beyond their existing footprint with new restaurant, hotel, and employee housing construction. Outside the Valley, large new parking areas would be built.

More than 500 roundtrip diesel shuttle buses would arrive and depart from a new 22 bay transit depot in Yosemite Valley, one bus every 1.4 minutes. Nearly half of the Valley's roads would be realigned, widened and upgraded; and while the plan removes a road from one meadow, it constructs another road along yet another meadow and wetland, Kerr explains.

"Most troubling," she says, "is the plan's blatantly commercial priorities. Affordable family-friendly tent-cabins and camping are being displaced by upscale resort-style lodging and RV sites. Picnics alongside the Merced River will be 'off limits' in favor of expanded restaurant seating."

Park officials have painted the environmental groups' resistance to these plans as denial of public access to the park. Kerr calls that stance "fear-mongering."

"This is really more about preserving everyone's access to the park than it is about denying access," said Kerr. "This is not a matter of keeping people out; it is about preserving the crown jewel of our National Park system."

Source: http://www.ens-newswire.com/ens/mar2008/2008-03-28-091.asp
avatar Re: Appellate Court Ruling
March 30, 2008 02:35PM
Another ruling the Supreme Court will throw out if anyone pursues it that far. The Ninth Circuit is a joke.
avatar Re: Appellate Court Ruling
April 02, 2008 12:09PM
Letter to Fresno Bee Editor from Bridget Kerr, of the Friends of Yosemite Valley:

etter to the editor from Fresno Bee

Be honest in Yosemite
04/01/08 22:14:31
The appellate court ruling on Yosemite isn't about projects (story March 28), it is about the National Park Service failing for 17 years to adopt a plan protecting the Merced River. It cannot continue to develop the river corridor until it does so. The park service made no effort to convince the court that further disturbance and construction should be allowed.

The park continues to propagandize that "a few people with narrow views" hinder big-dollar projects when objections came from some 52 environmental and resource groups, including Madera and Tuolumne counties. And calling groups who supported the park in their costly appeal "conservationists" is quite a stretch.

There were 800-plus family-friendly campsites in Yosemite Valley before the flood, and the park service plans to reduce that to 500. By stopping the proposed Upper Pines expansion, the court stopped the closure of the existing North Pines campground.

Yosemite park spokesman Scott Gediman bemoans a failing utility system and Valley Loop Road. This type of work has been allowed to proceed; legitimate infrastructure repairs have never been contested. It's time for Yosemite management to be honest with the public.

Bridget McGinniss Kerr
avatar Re: Appellate Court Ruling
April 02, 2008 03:33PM
Comments from Scott Silver from wildwinderness.org regarding the recent San Francisco Appellate Court ruling, posted with permission from Mr. Silver:

Yesterday I offered my congratulations to those dedicated, public-spirited activists who insisted that the National Park Service comply with environmental laws and manage Yosemite Valley and the Merced River corridor appropriately.
http://www.wildwilderness.org/content/view/949/113/ .

For almost a decade, Friends of Yosemite Valley (FoYV) and Mariposans for Environmentally Responsible Growth (MERG) have defended the public's interests against repeated assaults by the NPS. The courts have confirmed and reaffirmed the correctness of their position. With the decision handed down by the 9th Circuit Court of Appeals on Thursday, there can be no lingering doubt who was right and who was wrong.

The ramifications of this case are enormous. The Court in effect ruled that the "Wild and Scenic Rivers Act" of 1968 (WSRA) has teeth and that the English language meaning of the words of this act can not be ignored. The law can not be ignored by the NPS in relation to the Merced River. The law can not be ignored by other land management agencies in relation to other designated Wild and Scenic rivers.

Amongst other things the WSRA requires that the river corridor must be adequate protected, that the outstandingly remarkable values (ORVs) must be preserved, that a Comprehensive Management Plan (CMP) be written and adhered to and that the kinds and amounts of public use that can be sustained without adversely impacting the resource be established, monitored and enforced.

As I said, the ramifications are enormous.

The wording of Circuit Judge Wardlaw's decision could not be more straight-forward and logically presented. Simply stated, Wardlaw ruled that land managers are required to follow the law. Then she went on to carefully explain the requirements of the law. Judge Wardlaw's decision can be read at:


In addition to spelling out the need to adhere to correct procedure, Wardlaw spelled out with similar clarity the ongoing failure of the National Park Service to manage the Merced River / Yosemite Valley in keeping with the purposes and goals of the act.

FoYV and MERG had been making these claims for years. The judge confirmed them in these, her own, words:

[To illustrate the level of degradation already
experienced in the Merced and maintained under the regime
of interim limits proposed by NPS, we need look no further
than the dozens of facilities and services operating
within the river corridor, including but not limited to,
the many swimming pools, tennis courts, mountain sports
shops, restaurants, cafeterias, bars, snack stands and
other food and beverage services, gift shops, general
merchandise stores, an ice-skating rink, an amphitheater,
a specialty gift shop, a camp store, an art activity
center, rental facilities for bicycles and rafts, skis and
other equipment, a golf course and a dining hall
accommodating 70 people. Although recreation is an
[outstanding remarkable value]ORV that must be protected
and enhanced, see 16 U.S.C. ยง 1271, to be included as an
ORV, according to NPS itself, a value must be (1)
river-related or river dependant, and (2) rare, unique, or
exemplary in a regional or national context. The multitude
of facilities and services provided at the Merced
certainly do not meet the mandatory criteria for inclusion
as an ORV. NPS does not explain how maintaining such a
status quo in the interim would protect or enhance the
river's unique values as required under the WRSA.]

That was the good news.
Now for the bad.

Heads should be made to roll within the Department of Interior. The National Park Service wasted years and spent millions of dollars in their effort to circumvent the WSRA. The intensity with which they deliberately failed to adequately manage the resource while acting like thugs, bullies and liars in dealings with park defenders and the general public, is beyond forgiving. The NPS must put things right.

Then there's the matter of what is to become of the Wild and Scenic Rivers Act, now that land managers have been put on notice that the law can no longer be ignored or circumvented? This bedrock law has been made more powerful as a consequence of Judge Wardlaw's decision.
We should all be cheering -- and yet I am worried.

All too often, the Government's response to a good court ruling is to change the law. On Thursday the judicial system strengthened environmental protections for Wild and Scenic Rivers. Will the Executive Branch or the Legislative Branch now attempt to overturn or moot that decision?

Will the National Park Service and other land management agencies now demand that the WSRA be weakened.

Will The Wilderness Society or the National Parks and Conservation Association support the agencies in such an effort?

Will the Coalition of National Park Service Retirees come to the defense of Yosemite NP's supervisor, Michael Tollefson and of Regional Director Jonathan Jarvis --- or will we move on from here get down to the task of managing America's Wild and Scenic Rivers as they should have been managed all along?


Scott Silver
Wild Wilderness
248 NW Wilmington Ave.
Bend, OR 97701

phone: 541-385-5261
e-mail: ssilver@wildwilderness.org
Internet: http://www.wildwilderness.org

Post Edited (04-02-08 15:34)

avatar Re: Appellate Court Ruling
April 02, 2008 04:11PM
"Yosemite should be a nature center, not a profit."
-David Brower
(a staunch supporter of Friends of Yosemite Valley and of their efforts to protect the park.)

A new quote today from Scott Silver today with Wildwilderness.org:

Today's Park Service managers have come to see themselves as just another cog in the global tourism industry. They act as if charged with the task of facilitating ever-more commercialization, privatization and motorization of America's Crown Jewels.

The Park Service caters to the wants and whims of the travel industry, the recreation vehicle industry and commercial outfitters. They've done so for decades, and things have gone from bad to worse since Congress, in 1996, passed the Recreation Fee Demonstration Program and, by so doing, gave the Park Service financial incentive to harm the lands entrusted to their care.

The Department of Interior threw at this case every high powered lawyer at their disposal. Even so, a small group of magnificent grassroots activists and environmental lawyers prevailed. Their win is our win. They won this case for Yosemite, for you, for me and for future generations.

Scott Silver
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