The Friends of Yosemite Valley saga: the challenge of addressing the Merced River's user capacities.

• Author: Cathcart-Rake, John

1. INTRODUCTION II. ADDRESSING CARRYING CAPACITY IN YOSEMITE VALLEY UNDER PARK SERVICE LEGISLATION A. Increasing Carrying Capacity Under the Organic Act of 1916 B. Carrying Capacity and Yosemite's 1980 General Management Plan III. THE WILD AND SCENIC RIVER ACT: REQUIREMENTS AND JUDICIAL REVIEW A. Protections and Procedures of the Wild and Scenic Rivers Act B. Agency Discretion and Judicial Review of the WSRA IV. ADDRESSING USER CAPACITY AND THE REDEVELOPMENT OF YOSEMITE VALLEY A. Defining the WSRA 's Mandate to "Address User Capacity" 1. The Merced River Plan 2. Friends of Yosemite v. Norton (Yosemite 1) B. Another Attempt at Addressing User Capacity: The 2005 Merced River Plan 1. 2005 Revised Merced River Plan 2. Friends of Yosemite v. Scarlett 3. Friends of Yosemite v. Kempthorne (Yosemite III) V. LESSONS AND IMPLICATIONS OF THE YOSEMITE OPINIONS A. Studying the Waters: Should the Park Service Cap Access to the Merced River Corridor? B. Protecting Wild and Scenic Rivers: Modifying VERP to Prevent Degradation C. Enhancing Wild and Scenic Rivers: Confronting the Status Quo D. Channeling the Yosemite Decisions to the WSRA VI. CONCLUSION I. INTRODUCTION

   The Merced River forms from snowmelt and glacier runoff on the western slopes of Mount Lyell in the Sierra Nevadas, cascading down Nevada and Vernal Falls before winding west through the seven-mile-long Yosemite Valley.' In the first days of January of 1997, the normally placid Merced, swollen with rain and Sierra Nevada snow melted by warm temperatures, roared out of its banks, submerging employee cabins and Yosemite Lodge, and washing out bridges, roads, utility lines, and campsites. (2) The floodwaters rushed over a century of overdevelopment in Yosemite Valley, (3) flushing facilities built within the floodplain and parking lots sited at the best scenic viewpoints. (4) The flood also funneled political attention and money (5) toward the Park Service's plans for the future of the "incomparable valley" (6) in America's first protected park. (7)

   In Yosemite Valley, where each natural feature and view has its own constituency, (8) both the Park Service's plans for a quick reconstruction and (9) the Service's vision for Yosemite Valley in the twenty-first century came under attack. In 2000, two local groups, Friends of Yosemite Valley and Mariposans for Environmentally Responsible Growth (collectively Friends), challenged the Merced River Plan (10) and the Yosemite Valley Plan." The Park Service promoted both plans' potential to reinvent Yosemite Valley by reducing traffic, reclaiming developed land, restoring ecosystems, (12) and improving park campgrounds and utilities. (13) Friends, however, alleged that the plans would authorize projects damaging to the unique geology and ecology of the Merced River (14) in violation of the Wild and Scenic Rivers Act (WSRA). (15)

   The WSRA requires river managers to "address ... user capacities" in comprehensive management plans. (16) For twelve years following Congress's designation of the Merced River as a wild and scenic river, (17) the Park Service neglected to prepare a plan, managing the river corridor as the agency had under the Park Service generic mandates. (18) After an eastern California district court ordered the Park Service to prepare a river plan in 1999, (19) the Park Service proposed a user capacity program establishing procedures for monitoring conditions of park resources and visitor experiences--the Visitor Experience and Resource Protection (VERP) framework. (20) This framework based visitation limits on facility capacities, instead of capping public access to Yosemite. (21) The district court upheld the Merced River Plan in Friends of Yosemite Valley v. Norton. (22) On appeal, the Ninth Circuit invalidated the plan, ruling that the Park Service failed to address user capacities as required by the WSRA because the plan did not provide any "concrete measure of use" in the Merced River corridor. (23) In Friends' follow-up challenge of the 2005 Revised Merced River Plan in 2008, (24) the Ninth Circuit affirmed the district court's ruling that the plan, which included a revised VERP and interim caps based on facility limits, still failed to describe an actual level of visitor use that would not degrade the Merced River. (25)

   The Yosemite decisions reinvigorated longstanding arguments about rationing use in protected areas, but the Ninth Circuit did not ultimately resolve whether the WSRA requires caps on the number of people entering park units. (26) However, because of the Park Service's delay in preparing a valid plan, the court requested interim caps for the Merced River, and suggested how the Service must estimate visitor caps, if it uses them. (27) The court also indicated that if the Park Service prefers the VERP, the agency must require a management action that prevents degradation. (28) As the Yosemite opinions represent the judiciary's first interpretation of the WSRA's user capacity mandate, the courts' analyses are relevant to managing agencies tasked with creating management plans for a large number of wild and scenic rivers. (29) However, the Ninth Circuit's decision does not threaten the Park Service's widespread application of VERP outside of the wild and scenic river realm. (30)

   To provide context for the Yosemite cases and the challenge of addressing the Merced River's user capacity, Part II of this paper chronicles the Service's traditional approach to carrying capacity in Yosemite Valley under Park Service statutes, prior to the Merced River Plan. Part III examines the WSRA's directive to "protect and enhance" designated rivers and to address user capacities in comprehensive plans, as well as judicial review of the WSRA under the Administrative Procedure Act (APA). (31) Part IV describes Friends' challenges to the Park Service's post-flood planning and the Ninth Circuit's interpretation of the WSRA's requirement to address user capacities. Finally, Part V discusses the ramifications of the Yosemite decisions, including the lessons for the Park Service in Yosemite Valley and implications for other wild and scenic river managers nationwide.

2. ADDRESSING CARRYING CAPACITY IN YOSEMITE VALLEY UNDER PARK SERVICE LEGISLATION

   Under the Park Service Organic Act of 1916 (Organic Act), (32) the Park Service s traditional approach to "carrying capacity" (33) in Yosemite Valley was to increase capacity by adding accommodations, attractions, and infrastructure to lure visitors. (34) The Park Service's success in promoting the valley's scenery to people, without restricting the types of use and development, led to conflicts between park visitors and increased degradation of park resources. (35) In the 1960s, to prevent these conflicts and lessen environmental degradation occurring in Yosemite's wilderness areas, the Park Service applied carrying capacity concepts to backcountry plans, by tailoring the number of campers and the distance between campsites to the area's natural limitations. (36) Thereafter, the Service accepted carrying capacity as a possible means of protecting resources and the visitor experience in the front country. (37) Congress eventually added a carrying capacity consideration into the Park Service's comprehensive planning requirements. (38) However, in Yosemite Valley, attempts to limit public access based on removing facilities and parking spaces, under the broad goals of the 1980 General Management Plan, failed to yield real reductions in the valley's facilities and day use. (39) As annual visitation to the valley peaked prior to the Merced River flood in 1997, preserving Yosemite Valley by tailoring the number of visitors to the valley's natural capacity remained, in large part, a theoretical exercise. (40)

   1. Increasing Carrying Capacity Under the Organic Act of 1916

      The Organic Act established preservation as a fundamental purpose of the Park Service, empowering the Park Service to promote public use and enjoyment of parks that was compatible with preservation. (41) Legal scholars have described the Organic Act's mandate as ambiguous as a result of the contradiction between promoting both preservation and use. (42) However, the statute's plain language implies that the two purposes are not mutually exclusive, but intertwined, (43) with enjoyment being subservient to preservation, because the statute limits use and enjoyment to 1) the parks' particular scenery, objects, and wildlife, and 2) that which will leave the parks unimpaired for future generations. (44) Although section 3 of the Organic Act authorized the Secretary of the Interior to grant restricted leases, permits, and privileges to accommodate the public, (45) read in context with the conservation purpose and "non-impairment" requirement of section 1, section 3 does not promote development at the expense of preservation. (46) Thus, even though the Organic Act contemplated public enjoyment and accommodations within parks, the statute requires the Park Service to regulate uses to prevent the impairment of future generations' enjoyment of the parks. (47)

      In Yosemite Valley, under the traditional interpretation of the Organic Act as a dual-purpose mandate, the Park Service promoted public use by adding accommodations, attractions, and infrastructure to invite visitors. (48) The Service, originally led by Stephen Mather, viewed popularity and profitability as the key to congressional appropriations, (49) and thus focused on tourism, (50) with little consideration of limits on visitation or development. (51) Inside the park, as visitor numbers increased, park facilities expanded and concessioners (52) built and promoted more attractions, including golf courses, tennis courts, ice rinks, and ski resorts, which extended the tourist season year round. (53) Automobiles, which became the primary transportation mode into Yosemite Valley by 1916, (54) fueled the symbiotic relationship between the park's popularity...