The following Winter Use article(s) were reported on Oct. 18, 2004. For continuing up-to-date coverage of this important issue, go to www.YellowstonePark.com or check the National Park Service’s Yellowstone website, at: nps.gov/yell/technical/planning/winteruse/plan
If you thought last winter was perplexing to Yellowstone snowmobile proponents and opponents alike, things just keep getting more and more confusing.
On October 15, U.S. District Court Judge Clarence Brimmer, in Cheyenne, struck down a snowmobile ban enacted in the final days of the Clinton administration.
Whether that should cause celebration among snowmobile advocates is unclear, because there’s another, equally powerful federal judge in Washington, D.C., who is waiting to see what sort of winter use plan is proposed by the National Park Service – and whether it adequately protects the natural resources of Yellowstone National Park and the public health of employees and visitors alike.
As confusing as last winter was for Greater Yellowstone businesses and snowmobilers, no one can really tell how this upcoming winter season will shape up. Environmentalists are hoping Judge Emmet Sullivan in Washington, D.C. will ultimately rule to ban snowmobiles from Greater Yellowstone parks, while snowmobile interests are gratified that Wyoming’s Judge Brimmer has ruled to keep snowmobiles in the parks.
Meanwhile, everyone is keeping an eye on the upcoming presidential election. While the outgoing Clinton administration opted in 2000 to phase out snowmobiles from the parks, that plan was quickly reversed by the incoming Bush administration. Current Democratic candidate John Kerry has declared he would reinstate the Clinton ban on snowmobiles in Yellowstone.
Brimmer Ruling
Judge Brimmer said the ban – designed to prevent air and noise pollution and protect Yellowstone wildlife — was imposed without adequate participation from the public and the states of Montana and Wyoming.
He said the Clinton-era ban was “the product of a prejudged, political decision to ban snowmobiles from all the national parks.”
Wyoming State Attorney General Pat Crank declared victory and said, “I’m happy to see the 2000 ban gone. It was a fatally flawed and predetermined rule.” With the snowmobile ban erased, it will be hard for another federal judge to go back to the original ban by default, he said.
Abigail Dillen, the EarthJustice attorney who has opposed Crank in Cheyenne and District of Columbia courts, didn’t sound too worried.
She said Judge Brimmer’s ruling was focused on the process used by the Clinton-era Interior Department, to reach the decision to ban snowmobiles from Yellowstone and Grand Teton national parks.
“The substance of whether snowmobiles should be phased out, in order to protect natural resources and public health, is still very much on the table,” Dillen said. The State of Wyoming “can spin this all it wants,” claiming that snowmobiles can never be banned from Yellowstone and Grand Teton national parks and the John D. Rockefeller, Jr., Memorial Parkway in between, she said.
The issues of how to provide visitor access to the national parks, yet protect natural resources and public health have yet to be resolved, she added. Scientific data and Park Service research developed since the original ban all emphasize that the best way to protect natural resources and public health is to replace snowmobiles with snowcoaches, Dillen said.
That point is disputed by snowmobile advocates, who insist that natural resources and public health can be adequately protected by limiting park access to only the quietest and cleanest snowmobiles, limiting snowmobile numbers and requiring guided tours to forestall wildlife harassment or leaving groomed trails.
Judge Brimmer said it remains in the Park Service’s discretion to allow only snowcoaches in the parks — as long as the correct planning procedures are followed. Such a decision would be “wrong-headed,” he said. The Clinton-era decision to ban snowmobiles was akin to “banning all pickups in summer months … a pretty radical move in our eyes,” Brimmer wrote.
Brimmer chastised the federal government for a sudden reversal of a 40-year policy that encouraged snowmobiling in Yellowstone. He zeroed in on a statement by a top Interior Department official in April 2000 that made a “sweeping condemnation” of all recreational snowmobiling in national parks. Such comments showed a “prejudged political conclusion,” Brimmer said.
The judge also said the Park Service didn’t give the public enough say in the process, adding that the rule should be set aside and the matter remanded to the Park Service.
Ironically, in the years since the Clinton-era rule, the Park Service has received many thousands of public comments about the issue – the vast majority favoring the ban.
The Park Service reports, for example, that in the most recent public comment period, 13,093 of the total 14,553 public comments “stated a preference for an alternative that allows only snowcoaches and/or prohibits snowmobiles.”
Interior Secretary Gale Norton said she was pleased with Judge Brimmer’s ruling. In a press release statement, Norton said, “Having received this Court’s preliminary injunction last February, we anticipated this outcome. With that knowledge, and with the direction of a separate federal court, the National Park Service has been developing interim regulations that strike a common sense balance for the coming winter season.” Last Winter
Last winter, the snowmobile industry was caught in a judicial vortex, between two federal judges with conflicting points of view. As a result, snowmobile-oriented businesses had one of their worst years ever, as snowmobilers stayed away in droves.
During the 2003 summer, the Bush administration decided to allow 950 snowmobiles a day in the Yellowstone National Park and 1,140 total in Yellowstone, Grand Teton National Park and on the John D. Rockefeller Jr. Memorial Parkway connecting the two parks.
That number is above Yellowstone’s 10-year historical average of 750 snowmobiles per day. The Park Service also put the following limits on each Yellowstone gateway entrance: 50 for the North (Gardiner, Mont.), 550 for the West (West Yellowstone, Mont.), 250 for the South (the Jackson Valley, Wyo.) and 100 for the East (Cody, Wyo.).
What actually happened was much different.
Last December, just before the winter season started, U.S. District Judge Sullivan in Washington, D.C., scuttled a 2001 settlement between the Bush Department of the Interior and the state and snowmobile groups, which allowed fewer, cleaner and quieter snowmobiles to continue having access to the parks. Sullivan reinstated the 2000 Clinton-era plan and temporarily set the maximum number of snowmobiles allowed into Yellowstone at 493, with 50 allowed in Grand Teton and the parkway. Sullivan’s ruling called for a complete snowmobile ban for the upcoming, 2004-05 season. In his 49-page ruling, Sullivan said the Bush administration’s attempt to overturn the previous ban appeared to be “completely politically driven.”
In February 2004, U.S. District Judge Brimmer in Cheyenne, Wyoming, ordered the Park Service to devise a plan that would be “fair to all.” He ruled that restrictions on snowmobiles would cause lost business and therefore irreparable harm to companies that rely on snowmobiling in the parks. Brimmer ordered the Park Service to develop temporary rules for the remainder of the 2004 season, requiring cleaner and quieter four-stroke snowmobiles, rather than the two-stroke snowmobiles that had dominated the parks for years. That ruling brought the Yellowstone snowmobile cap back up to 780, with an additional 140 allowed in Grand Teton and the parkway.
By then, the snowmobile trade and public was so confused and disrupted that snowmobile traffic for the 2003-04 season averaged about 260 machines a day.
Indeed, West Yellowstone sales tax receipts for last January were 31 percent off from the year before.
Glen Loomis, a snowmobile outfitter based in West Yellowstone, Mont., said his business was down 45 percent, compared to the winter of 2001-2002, a time before the snowmobile controversy had gained full speed.
Loomis said a number of businesses in West Yellowstone have closed and/or declared bankruptcy in the last year, primarily because they couldn’t survive the winter. “The damage has already started,” he said.
He said one motel went bankrupt, and that a fabric store, a salon, the flower shop, and others have either gone out of business, or are considering it.
“What caused all that is when you don’t have enough income, you go down,” he said. “These are the kinds of fallout suffered. And they’re sure real to the folks who went out of business.”
What now?
As much as Judge Brimmer’s October ruling was designed to bring certainty to gateway communities and visitors to Greater Yellowstone, there is still much uncertainty in the weeks ahead.
In August of this year, the National Park Service presented a draft plan which would allow 720 guided snowmobiles per day, into Yellowstone National Park, for the next three winters. The draft plan also allows unguided 140 snowmobiles in Grand Teton National Park and on the John D. Rockefeller Jr. Memorial Parkway. That draft plan is supposed to become finalized in November, at which point it would become a temporary plan, good for three years only, before the Park Service develops a new winter use plan.
Park officials have emphasized that the temporary plan strikes a balance between protection of park resources and providing a range of winter activities for visitors.
Park officials also said the three-year, temporary plan gives the Park Service time to monitor and collect further data on snowmobiles’ impact on the parks, as well as time to develop a long-range plan for winter use.
Dropped from last year’s plan was the concept of “adaptive management,” or the ability to adjust the winter use plan as fresh data and scientific understanding warranted. The proposed three-year plan will not be adaptive, to the consternation of conservationists and snowmobile interests alike. Under “adaptive management,” environmentalists could hope that the National Park Service would tighten up even further on snowmobiles, while snowmobile-oriented businesses could hope for some relaxation of regulations or caps on numbers.
Cheryl Matthews, spokeswoman for Yellowstone National Park, said the new plan is in response to Judge Sullivan’s order.
While Judge Brimmer just struck down the Clinton-era ban on snowmobiles in the Greater Yellowstone parks, everyone is waiting to see what the National Park Service comes up with as a final rule in November, and what action will be taken by Judge Sullivan.
The question before Judge Sullivan is broader and more comprehensive: Can the Park Service legally continue to allow snowmobile use in light of all the agency’s studies, including analysis undertaken by both the Bush and Clinton administration, which state that snowmobile access impairs the parks’ resources and values? Judge Sullivan has ordered the National Park Service to publish new rules for this winter season that comply with his ruling last December. Judge Sullivan ruled that the National Park Service is bound by its overarching mandate to conserve the national parks and cannot arbitrarily allow snowmobile use in the face of its own studies showing that snowcoaches, not snowmobiles, provide the best available protection for Yellowstone’s environment and wildlife. These new rules are expected to be finalized and submitted to Judge Sullivan by mid-November.
Crystal Ball Gazing
It is highly unusual for two, widely separate U.S. district courts to both be hearing different aspects of essentially the same issue.
“I’ve never seen anything like this, nor have veteran lawyers with 30 years of practice or more,” said Dillen, the EarthJustice attorney charged with representing environmental interests before the two courts.
To have two federal judges involved in one, broad case is unique in Dillen’s experience. She represents the Greater Yellowstone Coalition, Natural Resource Defense Council, National Parks Conservation Association, Sierra Club, Winter Wildlands Alliance and the Wilderness Society – all intent on replacing snowmobiles in the national parks with snowcoaches.
Her opponents include lawyers representing the International Snowmobile Manufacturers Association, the states of Montana and Wyoming, and the U.S. Department of Justice, representing the Bush Administration and Interior Secretary Gale Norton.
“It’s a cast of thousands,” Dillen laughed ruefully.
Wyoming Attorney General Crank said, “I think everyone recognizes that we can’t go back to unlimited access by noisy, polluting two-stroke snowmobiles because that will degrade the park’s resources.” Wyoming takes the position that cleaner, quieter four-stroke snowmobiles are compatible with protection of natural resources and public health, he said.
Crank acknowledged that “Judge Brimmer can’t preempt Judge Sullivan,” but feels that a Wyoming issue is best decided in a Wyoming court. He accused the environmental groups of “shopping for a forum” and a friendly judge by filing their lawsuits in Washington, D.C. Yet Crank emphatically denies he did essentially the same thing by filing in a Wyoming federal court.
As to whether the issue of snowmobiles in the Greater Yellowstone parks might wind up before the U.S. Supreme Court, Dillen and Crank both declined to speculate.
Which judge will prevail?
The two judges are considered peers of each other within the federal district court system – neither one having authority over the other. Regarding the Yellowstone snowmobile controversy as having national importance, the environmentalists filed their lawsuit in the nation’s capital, where it wound up before Judge Sullivan. Conversely, the snowmobile industry and the State of Wyoming regarded the controversy as of special interest to Wyomingites and westerners, and therefore filed suit in Wyoming, where it wound up before Judge Brimmer.
Compounding the difficulty of having the issue in two district courts, said Dillen, is that the two federal courts lie within different courts of appeal. Conceivably, Dillen and legal counsel for Wyoming and snowmobile proponents could wind up arguing their cases in four different courts: Brimmer’s and Sullivan’s district courts, and their respective courts of appeal – the 10th Circuit Court for anything emerging from Brimmer’s court and the District of Columbia Circuit Court for anything emerging from Sullivan’s court.
“It could get pretty busy,” Dillen said. Eventually, Yellowstone snowmobile cases will consolidate in one court or another, she added. Both Dillen and Crank seem to believe that which court ultimately decides can have much to do with what decision finally emerges.
Another lawsuit?
In the Fund For Animals’ 1997 lawsuit over winter use, the group contended that trails groomed for snowmobiles and snowcoaches provided easy migration corridors that unnaturally boost bison populations. That upsets the balance of wildlife and leads to habitat degradation as well as more bison movement out of the park. Bison that leave the park and enter Montana are subject to hazing and roundups for execution, to prevent the transmission of the disease brucellosis from bison to Montana cattle.
DJ Schubert, a staff wildlife biologist for the Fund for Animals, said a 35-year study of bison by former Park Service biologist Mary Meagher “has compelling evidence” that grooming has dramatically changed bison behavior and migration.
This past summer, Judge Sullivan denied without prejudice, a lawsuit by Fund for Animals, asking that snow grooming be halted entirely in Yellowstone. On June 30, Sullivan ruled the lawsuit could be refiled once the National Park Service announces a final rule for the 2004-2005 winter season.
A halt to snow grooming, it is generally conceded, would halt both snowmobile and snowcoach travel within the park. Trial proceedings can be found under Fund for Animals v. Norton, 294 F. Supp.2d 92 (DDC 2003).
