On the water front: vital judicial ruling addresses visitor capacity

What is the visitor capacity on rivers, lakes, streams or other bodies of water? On Oct. 27, 2003, a significant judicial ruling was served on the National Park Service (NPS) that will become a clarion call to managers of public lands and waters throughout America.

Last October, the United States Court of Appeals for the Ninth Circuit ruled that the NPS did not adequately address user capacity and must prepare a new or revised comprehensive management plan for the Merced Wild and Scenic River in Yosemite National Park. While there has been other visitor capacity-related litigation in the past few years (e.g., personal watercraft, snowmobiles, cruise ships and off-highway vehicle use), the Merced River court opinion has greater consequence because it clarities that a visitor capacity is a number that should be included in a comprehensive management plan. This ruling sets precedent for other visitor-capacity litigation because the courts adhere to the judicial principle of "precedence" and will examine previous court rulings similar to the case in question.

Merced River Case Overview

In 1987, Congress designated the Merced River in Yosemite National Park as part of the National Wild and Scenic River System established by the Wild and Scenic River Act (WSRA) of 1968. In 1999, the Sierra Club challenged the NPS on the fact that it had not developed a comprehensive management plan within three years of the river designation as directed by the WSRA. The District Court ruled in favor of the Sierra Club and directed the NPS to complete a plan within 12 months.

The NPS published the Merced River plan in August 2000. In 2001, the Friends of Yosemite challenged the NPS on the sufficiency of the plan. The District Court ruled that the NPS had prepared ala adequate plan and did not violate any law, but in March 2000, the Friends of Yosemite Valley appealed.

The appeal led to the Oct. 27, 2003, ruling, "We agree with the Friends that the comprehensive management plan inadequately addresses user capacities by failing to set the maximum quantity of use," the Ninth Circuit stated. Figure 1 on page 112 contains the main summary paragraph from the court ruling.

In the Merced River Wild and Scenic Comprehensive Management Plan, the NPS had proposed an additional five-year effort beyond the plan to implement the Visitor Experience and Resource Protection (VERP) framework in order to address user capacity. The VERP framework focuses on monitoring indicators on capacity-related issues, and not the determination of any numeric visitor capacities.

As stated in the court opinion, in lieu of specific numerical limits on visitors, which the NPS claims would be insufficiently precise given the wide variety of resources and patterns of usage, the VERP framework solely focuses on the monitoring and maintenance of desired conditions. The Ninth Circuit did not agree with the NPS and ruled that VERP was not legally sufficient because it does/lot address numeric visitor capacities. The court directed the NPS to adopt specific numeric visitor capacities consistent with the direction of the WSRA.

On April 20, the Ninth Circuit restated its opinion that the NPS must prepare a flew or revised Merced River Comprehensive Management Plan that adequately addresses numeric user capacities. Upon remand of this ruling back to the District Court, it was further ruled in July that the five major construction development projects underway in Yosemite Valley must be halted because these projects are dependent upon an adequate plan.

The Merced River case does not preclude future judicial interpretation. It is apparent that for the next several decades the park and recreation profession will have its day in court on the question of visitor capacity. Thus, it would be instructive to examine the "evidence" a judge would consider (see sidebar on page 111).

Different Interpretations

Why is the National Park Service interpretation different from the Ninth Circuit's judicial interpretation of the law concerning visitor capacity? Three major factors have contributed to the dilemma facing the NPS, and also to some degree, facing other agencies managing public lands and waters.

First, in the early 1980s, the recreation science community rightly disclosed that a numerical visitor capacity was an administrative decision and not a scientific finding. In the absence of a scientifically determined visitor capacity, the recreation science community began to develop alternative monitoring frameworks purporting to address visitor capacity. Some 10 monitoring frameworks have been published (e.g., VERP, LAC, VAMP, VIM, QUALs) that, for all practical purposes, are the same.

Unfortunately, these monitoring frameworks have fostered a number of misunderstandings among managers and researchers. For example, (a) a numeric visitor capacity is no longer an important and fundamental tool for resource planning and management; (b) monitoring enables a manager to circumvent his responsibility of deciding upon a reasonable numeric visitor capacity; (c) monitoring allows us to dispatch a visitor capacity decision to a future time and another person; or (d) a numeric visitor capacity can be determined with enough monitoring and, thus, there is no need for a manager to make a decision now or later. This titanic myth is at the core of the NPS problem in the Merced River case. These monitoring frameworks may be good monitoring frameworks, but they do not replace the need for proactive numeric visitor capacity decisions. Monitoring and visitor capacity are two separate tools and decision points, they are not an either/or option, and both are important to good resource planning and management.

Second, the utility of the concept of capacity is significant in our everyday lives (e.g., oil production, military preparedness, restaurants, hotels, theme parks, golf courses and museums), and in many aspects of natural resource management (e.g., hunting licenses, outfitter and guide user days, marina concession operations, grazing animal unit months, timber harvests and fishery quotas). Business and resource managers need to know their capacity in order to make good decisions.

Unfortunately, there is a belief in the park and recreation profession that one only needs to address visitor capacity when one wants to limit the number of visitors to an area. This perspective fosters the dispatching of a visitor capacity decision to the future when one has a problem and must react, and to a time when there is much more public visibility, contentiousness and a higher probability of political and judicial intervention. A numeric visitor capacity is the prescribed supply of available recreation opportunities in an area, and knowing the supply or number of opportunities is important information for managers, communities, visitors, concessionaires and other stakeholders for many reasons, not simply for managers when they want to limit public access.

Furthermore, in contrast to dispatching a capacity decision until when there is a problem, such fundamental decisions would benefit from the collegial deliberation of a proactive, transparent, principled and reasoned public planning process such as the NPS general management planning process or the WSRA comprehensive management plan.

Third, many people philosophically oppose, despise and even fear the notion of litigation. Yet, it is important to remember that the role of the judiciary is to interpret law, to judge an agency's interpretation and application of the law, and to help distribute and balance the power between the government and the people.

A general management plan, as with all public resource plans, distributes power between the people and the government. A good plan is developed through a collaborative public planning process for the purpose of securing and allocating the resources necessary to achieve the desired future conditions prescribed in the plan. A good plan has a set of clear and measurable management objectives, desired future conditions, quality standards, prioritized and scheduled management actions, visitor capacities and projected budget range and personnel requirements.

Ironically, it is important to realize that this level of clarity, detail, transparency, predictability and accountability in a plan gives power to the people, communities and stakeholders outside an agency, Conversely, this same plan removes power, authority, discretion and flexibility from a responsible official, and subjects that person to more accountability through public oversight. Therein lays a fundamental dilemma of public resource planning, and an issue that will occasionally need the help of judicial interpretation.

The clarion call of the Merced River court opinion is as much a challenge to the NPS, and other public agencies, to define what constitutes good planning, as it is to addressing visitor capacity. The NPS needs to reexamine, in consultation with the public, what constitutes a good plan, what level of detail and transparency is effective and efficient, and how it should distribute and balance the power between the agency and the people.

Responsible Stewardship

The court ruling of Oct. 27, 2003 directs the NPS to include numerical visitor capacities in its plans. The clarion call of the Merced River is that numeric visitor capacities are a legal and professional imperative to responsible planning and management.

Recreation use is a significant issue in virtually every park, wilderness, wild and scenic river, national forest, wildlife refuge, national recreation areas and trail, national seashore and all public lands and waters. It is vital that reasonable numeric visitor capacity decisions are made proactively in the agency planning process that is the most comprehensive, analytical, deliberate, transparent, collaborative and having the greatest legal standing.

In the absence of agency compliance, the people will continue to use the judicial system to check the power of the government, and to shift the balance of power to the people, who-at the end of the day-will be the ones to ultimately decide the future of our parks into the 22nd century.

Think Like a Judge

For the next few moments, imagine you are a federal judge. Your job is to rule whether the National Park Service should include numeric visitor capacities in their plans. This will require a few minutes to carefully examine the "evidence" in Figure 1 on the following page, which contains the verbatim legal direction to the NPS from the three laws that discuss visitor capacity.

Figure 1. Legislative and Judicial Direction
to the National Park Service on Visitor Capacity

Wild and Scenic Rivers Act of 1968 (PL 90-542)

Title 16 (Chapter 28) 1274(d)(i) ... the Federal agency charged with
the administration of each component of the National Wild and Scenic
Rivers System shall prepare a comprehensive management plan for
such river segment to provide for the protection of the river values.
The plan shall address resource protection, development of lands and
facilities, user capacities, and other management practices necessary
or desirable to achieve the purposes of this chapter. The plan shall be
coordinated with and may be incorporated into resource management
planning for affected adjacent Federal lands. The plan shall be
prepared, after consultation with State and local governments and the
interested public within 3 full fiscal years after the date of
designation.

General Authorities Act of 1970 (PL 91-383) Section 12 and National
Park and Recreation Act of 1978 (PL 99-625) Section 604

(b) General management plans for the preservation and use of each
unit of the National Park System, including areas within the national
capital area, shall be prepared and revised in a timely manner by the
director of the National Park Service. On Jan. 1 of each year, the
secretary shall submit to the Congress a list indicating the current
status of completion or revision of general management plans for each
unit of the National Park System. General management plans for each
unit shall include, but not be limited to:

(1) measures for preservation of the area's resources;

(2) indications of types and general intensities of development
(including visitor circulation and transportation patterns, systems and
modes) associated with public enjoyment and use of the area, including
general locations, timing of implementations and anticipated costs;

(3) Identification of and implementation commitments for visitor
carrying capacities for all areas of the unit; and

(4) Indications of potential modifications to the external boundaries
of the unit, and the reasons therefore.

Legislative History of the National Parks and Recreation Act of 1978

Section 607: (2) ... It is worthy of note that all plans are to
henceforth address the identification of visitor carrying capacities
for all parts of each park unit, and are further required to address
implementation commitments. Both elements of physical (biological) and
social (psychological) capacity are to be addressed and incorporated in
devising the overall capacity for each part of the park unit.

Testimonial of Clay Peters, professional staff member of the
Subcommittee on National Parks and Recreation of the U.S. House of
Representatives, and author of the General Management Plan and Carrying
Capacity provisions of the National Parks and Recreation Act of 1978.
(Testimonial submitted by Peters on May 5)

The language of Public Law 95-625, Section 604, mandating the
identification and implementation of visitor carrying capacities for
the national parks, was devised to specifically further the purposes of
the core directive of the 1916 National Park Service Organic Act which
is ... to conserve the scenery and the natural and historic objects and
the wild life therein and to provide for the enjoyment of the same in
such a manner and by such a means as will leave them unimpaired for the
enjoyment of future generations.

The identification and implementation of carrying capacities for all
parts of all parks was viewed as a most critical decision toward
ensuring the achievement of permanent sustainability of the parks
resources and high quality visitor experiences. Furthermore, it was
believed that deciding upon a reasonable and appropriate number of
people (or groups, campsites, launches, spaces, rooms, etc) could be
best achieved as part of the parks comprehensive general management
plan.

Select Definitions of Carrying Capacity from the 1976 Wildland
Planning Glossary (USDA PSW Forest and Range Experiment Station)

Wildlife carrying capacity

The number of animals that a habitat can maintain in a healthy,
vigorous condition (Dasmann, 1945).

Range carrying capacity

The maximum number of individual animals that can survive the greatest
period of stress each year on a given land area.

Recreation carrying capacity

The number of persons for which an area can provide recreation while
maintaining the conditions that originally made it desirable for that
purpose (NPS, Sudia and Simpson, 1972).

The character of use than can be supported by an area over a specified
time interval and which is developed a certain level without causing
excessive damage to the physical environment or experience for
the visitor (USFS, Lime and Stankey, 1971).

The level of use an area can withstand while providing a sustained
quality of recreation (USFS, Wagar, 1964).

9th Circuit Federal Court of Appeals Definition of User Capacity
(Fresno, California, October 27, 2003)

[1] the WSRA explicitly requires administering agencies to prepare a
[CMP]& [that] shall address ... user capacities within three full
fiscal years of a WSRS segment's designation. Id. [beta]1274(d)(1).
However, [beta] 1274(d)(1) does not define the phrase address ... user
capacities. In the absence of a statutory definition of the phrase, we
look to the plain meaning of its terms. See Hells Canyon Alliance, 227
F.3d at 1177. Address means to deal with or discuss. Random House
Webster's College Dictionary 16 (1991). User is defined as a person or
thing that ]avails oneself of something], id. At 1468, and capacity is
the maximum number than can be received or contained. Id. At 201. Thus
applied to this case, the plain meaning of the phrase address ... user
capacities, is simply that the CMP must deal with or discuss the
maximum number of people that can be received at a WSRS.

There is a tricky part to this assignment. At this moment, you are likely predisposed to support or oppose the concept of numeric visitor capacities, and thus you will, at least subconsciously, search Figure 1 for evidence to support your predisposition. This human tendency and mental bias is natural, and thus the judiciary has developed principles for decision making in order to increase its objectivity and minimize arbitrary and capricious decision making.

Relevant in this case is the "plain meaning rule." The plain meaning rule is defined in Black's Law Dictionary as a rule used to interpret statutes and tells the court to interpret the words in the statute according to their usual or plain meaning as understood by the general public. Your job is to apply the plain meaning rule to Figure 1 and judge if the NPS should include numeric visitor capacities in its plans.

Figure 1 contains legal direction to the NPS from a variety of sources. The Wild and Scenic Act of 1968 provides direction for those units in the National Park System that are part of the National Wild and Scenic River System, such as the Merced River in Yosemite National Park. The General Authorities Act of 1970 and the National Park and Recreation Act of 1978 provide direction to every unit in the National Park System.

Often times the court will try to get a better understanding of a law by examining its legislative history, testimonials of key committee staff who drafted the legislation, or will examine the meaning of key words at the period of time when the law was deliberated. Thus, Figure 1 includes the relevant sections from the legislative history of the National Parks and Recreation Act; a testimonial from Clay Peters, who was a senior professional staff person and author of the visitor capacity section in the National Parks and Recreation Act; and a sampling of capacity definitions from the 1976 USFS Wildland Planning Glossary. Lastly, Figure 1 contains the Oct. 27, 2003, opinion of the United States Court of Appeals of the Ninth Circuit.

My Summary Judgment

In my review of the evidence, the plain meaning direction to the NPS is very clear:

* General management plans should include visitor capacities.

* The legislative intent, historic professional definition and the current judicial definition clarify that a "visitor capacity" is a specific number or numeric range.

* General management plans should be revised in a timely manner and adapted given new information and circumstances. That is, visitor capacities can change.

* Visitor capacities should be devised for each part of each park unit; that is, a single numeric capacity for the whole park may not be managerially practical or effective as compared a numeric capacity for each area or zone within the park (e.g., watershed, river segment, trailhead, vista, developed site).

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