Voyageurs National Park Ass'n v. Norton

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2911
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Voyageurs National Park Association; *
Sierra Club; Help Our Wolves Live; *
Humane Society of the United States; *
Superior Wilderness Action Network; *
Minnesota Wolf Alliance; Minnesotans *
for Responsible Recreation; Defenders *
of Wildlife, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Gale A. Norton, Secretary of the *
Interior; Fran P. Mainella, Director, *
National Park Service; Steven A. *
Williams, Director, U.S. Fish and *
Wildlife Service; United States *
Department of the Interior, *
*
Appellees, *
*
Minnesota United Snowmobilers *
Association, *
*
Intervenor Below. *
___________

Submitted: May 14, 2004
Filed: August 25, 2004
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Before LOKEN, Chief Judge, SMITH, Circuit Judge, and DORR,1 District Judge.
___________

SMITH, Circuit Judge.

Voyageurs National Park Association ("the Association") appeals the grant of
summary judgment to the National Park Service ("Park Service") on the Association's
complaint seeking to enjoin the Park Service's decision to open eleven bays of the
Voyageurs National Park to recreational snowmobile use. The Association, utilizing
the Administrative Procedure Act, seeks review of the Park Service's decision
allowing expanded snowmobile use during the winter of 2000-2001. The Park
Service's decision was made pursuant to a Park Service regulation that opened certain
areas of the Park to snowmobiling (including the eleven frozen bays at issue in this
case), and which also gave the Park Service the authority to temporarily close trails
for various safety and environmental reasons. 36 C.F.R. §7.33(b). The Association
claims that the 2001 decision violated the Park Service's rule-making requirements,
the National Environmental Policy Act, and the Endangered Species Act. The
Association also argues that the district court2 committed reversible error in its refusal
to permit discovery in this case. We affirm.

I. Background
Voyageurs National Park, which lies in the southern part of the Canadian
Shield, was created by a 1971 act of Congress. The Park received its name from a
group of French-Canadian canoe-men, known as "voyageurs," who traveled its waters
in their birch-bark canoes from the Great Lakes to the interior of the western United

1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri, sitting by designation.
2
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

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States and Canada.3 A vast wilderness area, Voyageurs is home to some of
Minnesota's most endangered wildlife, including the gray wolf and the bald eagle.
The Park also provides a recreational resource for boaters, campers, hikers, anglers,
cross-country skiers, snowshoers, ice-fishermen, and snowmobilers.

Congress delegated certain regulatory authority to the Park Service by which
it can control visitor access and use of Voyageurs. Two of these Park Service
regulations–36 C.F.R. §§ 1.5 and 7.33–are implicated in this appeal. The first, § 1.5
is a general regulation applicable to all units of the National Park System while the
second, § 7.33, is a more narrow regulation that specifically governs snowmobiling
at Voyageurs.

Section 7.33, promulgated in 1991, designated certain areas of Voyageurs as
available for snowmobile use. Those areas include "[t]he frozen waters of Rainy,
Kabetogama, Namakan, Mukooda, Little Trout and Sand Point Lakes." 36 C.F.R. §
7.33(b)(1)(i). The regulation further provided that the park's superintendent "may
determine yearly opening and closing dates for snowmobile use, and temporarily
close trails or lake surfaces, taking into consideration public safety, wildlife
management, weather, and park management objectives . . . ." 36 C.F.R. § 7.33(b)(3).

3
Of Minnesota's famed "10,000 Lakes," more than thirty of them form the
freshwater base and boundaries of the Park. The Park contains all or part of four large
lakes (Rainy, Sand Point, Namakan, and Kabetogama), each of which contains many
bays and inlets.

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 Much litigation followed the passage of § 7.33.4 Indeed, the Association
immediately brought suit challenging the regulation and seeking to enjoin the Park
Service from opening the designated areas to snowmobiling. In resolving the dispute,
we held that neither the Park Service's regulations permitting snowmobiling nor the
ultimate decision to open areas of Voyageurs to snowmobiling were arbitrary or
capricious. Voyageurs Regional National Park Assoc. v. Lujan 966 F.2d 424 (8th Cir.
1992) (Voyageurs II).

However, in December of 1992, the Park Service–in an exercise of its authority
under § 7.33–temporarily closed seventeen of Voyageurs's bays to snowmobiling.
The Park Service renewed these closures for the 1993-1994 and 1994-1995
snowmobiling seasons. In 1994, the Park Service was again sued. This time the suit
was brought by a group of snowmobilers, including the Minnesota United
Snowmobiling Association. The suit alleged that the bay closures were improper and
legally defective. Once again, an appeal came to this court. We determined that the
Park Service's actions were neither arbitrary nor capricious. Mausolf v. Babbitt, 125
F.3d 661 (8th Cir. 1997) (Mausolf III). We also noted that the closures were only
temporary and, thus, annual renewal was required in order for the closure to remain
effective. Id.

In 1996, the Park Service reopened six of Voyageurs seventeen lake-bays to
snowmobile use, but eleven of the bays remained closed. However, in 2001, these
eleven bays were reopened to snowmobilers. Upon reopening, the Park Service
reserved the right to limit the use of motorized-winter sports in the bays for safety
reasons or to promote other interests of park management.

4
See, e.g., Voyageurs Regional National Park Assoc. v. Lujan, No. 4-9-434,
1991 WL 343370, slip op. (D. Minn. 1991) (Voyageurs I); aff'd by 966 F.2d 424 (8th
Cir. 1992) (Voyageurs II); Mausolf v. Babbitt, 913 F.Supp. 1334 (D. Minn. 1996)
(Mausolf I); Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996) (Mausolf II); Mausolf
v. Babbitt, 125 F.3d 661 (8th Cir. 1997) (Mausolf III).

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 Over a decade after the Park Service initially passed snowmobiling regulations,
the litigation over these regulations' meaning and implementation continues. In this
latest case, the Association argues that because snowmobiling may harm the bald-
eagle and the gray-wolf populations, the eleven bays that were closed between 1996
and 2001 should remain closed to snowmobiling. As to the relief the Association
seeks, it requests that we reverse the district court's grant of summary judgment in the
Park Service's favor and asks us to remand with direction to order these eleven bays
closed to winter recreational use. In the alternative, the Association asks that it be
granted limited discovery and the district court decision be vacated for further
proceedings.

II. Discussion
A. Standard of Review
We review de novo a grant of summary judgment, applying the same legal
standards used by the district court. Darst-Webbe Tenant Assoc. Bd. v. St. Louis
Housing Auth., 339 F.3d 702, 709 (8th Cir. 2003). Judicial review of administrative
decisions is governed by the Administrative Procedures Act ("APA"). 5 U.S.C. § 706.
Under the APA, our review of an agency decision is limited. We are only permitted
to set aside agency action that is "arbitrary, capricious, and an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Our review standard
requires that we give "agency decisions a high degree of deference." Sierra Club v.
Envtl. Prot. Agency, 252 F.3d 943, 947 (8th Cir. 2001).

We review whether the agency's decision was "based on consideration of the
relevant factors and whether there has been a clear error of judgment." Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). If an agency’s
determination is supportable on any rational basis, we must uphold it. Friends of
Richard-Gebaur Airport v. FAA, 251 F.3d 1178, 1184 (8th Cir. 2001). This is
especially true when an agency is acting within its own sphere of expertise. Friends
of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999)

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("[w]hen the resolution of the dispute involves primarily issues of fact and analysis
of the relevant information requires a high level of technical expertise, we must defer
to the informed discretion of the responsible federal agencies.") (citations omitted).

B. National Environmental Policy Act
The Association argues that the Park Service failed to conduct a proper
National Environmental Policy Act ("NEPA") review prior to its decision to reopen
the eleven bays that had been closed from 1996 until 2001. The NEPA requires all
federal agencies, including the Park Service, to prepare an environmental impact
study for all "major Federal actions significantly affecting the quality of the human
environment." 42 U.S.C. § 4332(2)(C). There is, however, no dispute that the Park
Service conducted a full NEPA review in conjunction with the enactment of § 7.33,
which governs snowmobile usage at Voyageurs. The question we consider is whether
the Park Service must conduct a full NEPA review before deciding that it will not
renew its annually-made decision to close some of Voyageurs' bays to motorized-
recreational activity.

Our court has twice reviewed the Park Service's decisions regarding the use of
snowmobiles at Voyageurs–first considering the Park Service's decision to allow
snowmobile use, then considering its decision to suspend their use. In each of these
decisions, we were satisfied that the Park Service could limit or expand the scope of
permissible snowmobile activity without a full-blown NEPA review. Now, after
reviewing the instant appeal we are satisfied that the Park Service has complied with
its obligations under the law. The opening and closing of the bays are temporary
measures, which must be renewed annually. It is impractical to require full NEPA
review each year. Rather, we conclude that the opening and closing of the bays is a
discretionary Park Service decision that is subject only to the Park Service's
obligation (as well-stated by the district court) to be a "faithful steward of national
resources" and its own procedural rules and regulations as set forth at 36 C.F.R. § 1.5.

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 According to the Park Service's own rule 36 C.F.R. § 1.5(b), "a closure . . . or
the termination or relaxation of such, which is of a nature, magnitude and duration
that will result in a significant alteration in the public use pattern of the park area,
adversely affect the park's natural, aesthetic, scenic or cultural values, require a long-
term or significant modification in the resource management objectives of the unit,
or is of a highly controversial nature, shall be published as rulemaking in the Federal
Register." However, closures or terminations of closures that do not rise to this level
are subject only to the procedural requirements of § 1.5(c) and 36 C.F.R. § 1.7. The
§ 1.5(c) procedures require the park superintendent to prepare a written determination
justifying the decision, and § 1.7 requires the park superintendent to publicize the
decision in a specified manner. Further, § 1.7 requires that the public be notified of
the change, after the fact, through signage, maps, publication in local newspapers,
and/or "[o]ther appropriate methods."

The Association suggests that § 1.5(b) of the Park Service's procedural
regulations more aptly describe the Park Service's obligations with regard to the bay
openings because the decision could cause significant alteration of the area. The Park
Service, on the other hand, believes that its legal obligations surrounding the bay
reopenings are set forth in § 1.5(c) and § 1.7. We agree. This position is consistent
with our prior holding in Mausolf III in which we concluded that no formal rule
making–as established in § 1.5(b)–was required of the Park Service prior to closing
bays that were otherwise designated for snowmobile use. We found that closing a few
bays in the enormous Voyageurs system would not amount to a "significant
alteration" of its use. Likewise, it also follows that opening these eleven areas does
not implicate the formal rulemaking required by § 1.5(b). In fact, the initial
regulations permitting snowmobiling in Voyageurs (which received full-blown NEPA
review) allowed snowmobiling in all of the bays where the activity is now permitted.

Therefore, we need only consider whether the Park Service's decision to open
the bays complied with the limited-notice requirements of § 1.7 (as set out above) and

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the Park Service's general stewardship obligations. Finding no notice violation–and
considering the substantial amount of scientific evidence, albeit at times
contradictory, contained in the record that thoroughly outlined the impact of
snowmobiling on the gray-wolf and bald-eagle habitats–we find the Park Service's
decision opening the bays to be neither arbitrary nor capricious.

C. Endangered Species Act
The Association also argues that the Park Service violated the Endangered
Species Act ("ESA")5 in its failure to formally consult with the Fish and Wildlife
Service ("FWS") before opening the eleven bays to snowmobiles. The ESA requires
federal agencies to consult with the appropriate federal fish and wildlife agency when
their actions "may affect" an endangered or threatened species.6 The Park Service
concedes that it was required to seek formal FWS consultation but that it failed to do
so until after the bays were reopened. However, the Park Service directs our attention
to the informal communication that occurred prior to the reopening of the bays–the
Park Service and FWS jointly evaluated data in 1996, had a joint meeting with
scientists and agency representatives in 1997, and exchanged scientific evidence on
the issues in 2001. Informal communication also occurred in December of 2001.
Although the formal consultation was delayed, it was eventually completed in January
of 2002.

Acknowledging the technical violation, we must consider whether it is
rendered moot by subsequent compliance of the Park Service. In its consideration of
a similar scenario–the effect of a post-hoc "formal" consultation–the Tenth Circuit
adopted the "prudential mootness" view. Southern Utah Wilderness Alliance v. Smith,

5
Codified at 16 U.S.C. § 1536.
6
Codified at 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.14(a).

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110 F.3d 724 (10th Cir. 1997).7 Our sister circuit found that a claim that seeks both
declaratory and injunctive relief was mooted when the required consultation was
completed, even if such consultation did not occur before the implementation of the
policy change. Id. We consider this view to be sound and adopt its reasoning.
Therefore, after the Park Service and the FWS completed their formal consultation
in January, the procedural defect identified by the Association was cured and the
Association's claim for relief–seeking the remedy of formal consultation–was
rendered moot.

The Association also alleges that the Park Service and FWS relied primarily
on a "Draft Study" to support the conclusion that the openings would not adversely
impact the bald eagle and gray wolf. This alleged reliance, according to the
Association, establishes that the agencies acted arbitrarily and capriciously (in
violation of the ESA). Specifically, the Association argues that the Park Service failed
to make an adequate assessment of whether the reopening of these eleven bays would
have a negative affect on these endangered species. We disagree. The Park Service
used studies produced over about a nine year period (some supporting the opening of
the bay, while others favored its closure) in its consideration of the effects the
reopening would have on the bald eagle and the gray wolf and their habitats. While
reasonable people may disagree with the Park Service's ultimate decision, the record
does not show it was arbitrary or capricious.

D. Record on Review
The Association next argues that "[j]udicial review of the legality of [the Park
Service's] action to open the bays under NEPA and 26 C.F.R. § 1.5 was thwarted by
the district court's decision to prohibit limited discovery to fill in these gaps . . . ." The

7
The court in Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 82
F. Supp.2d 1070 (D. Ariz. 2000), similarly found that a Forest Service consultation
with FWS (after suit was filed) rendered the action moot because the plaintiffs' only
requested remedy was consultation.

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district court concluded that "[t]he administrative record contains sufficient
information about the basis for the agency decision . . . " and, as such, denied the
Association's motion for discovery to supplement that record. This decision is entitled
to deference "absent a gross abuse of discretion." Tenkku v. Normandy, 348 F.3d 737,
743 (8th Cir. 2003).

It is well-established that judicial review under the APA is limited to the
administrative record that was before the agency when it made its decision. Overton
Park, 401 U.S. at 420; Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743–44
(1985); Newton County Wildlife Assoc. v. Rogers, 141 F.3d 803, 807 (8th Cir. 1998)
("APA review of agency action is normally confined to the agency's administrative
record."). That record, "not some new record made initially in the reviewing court,"
becomes the "focal point" for judicial review. Camp v. Pitts, 411 U.S. 138, 142
(1973); Corning Savings & Loan Assoc. v. Fed. Home Loan Bank Bd., 736 F.2d 479,
480–81 (8th Cir. 1984). By confining judicial review to the administrative record, the
APA precludes the reviewing court from conducting a de novo trial and substituting
its opinion for that of the agency. United States v. Morgan, 313 U.S. 409, 422 (1941).

However, certain exceptions have been carved from the general rule limiting
APA review to the administrative record. These exceptions apply only under
extraordinary circumstances, and are not to be casually invoked unless the party
seeking to depart from the record can make a strong showing that the specific extra-
record material falls within one of the limited exceptions. Animal Defense Council
v. Hodel, 840 F.2d 1432, 1436–38 (9th Cir. 1988). When there is "a contemporaneous
administrative record and no need for additional explanation of the agency decision,
'there must be a strong showing of bad faith or improper behavior' before the
reviewing court may permit discovery and evidentiary supplementation of the
administrative record." Newton, 141 F.3d at 807–808 (quoting Overton Park, 401
U.S. at 420).

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 The Association's argument hinges on its assertion that the administrative
record is incomplete and thus will frustrate effective judicial review. However, the
exception allowing extra-record evidence to explain the administrative record and
agency decision is very narrow. Inquiry into the mental processes of administrative
decisionmakers is to be avoided unless it is "the only way there can be effective
judicial review." Overton Park, 401 U.S. at 420; Camp, 411 U.S. at 142–43.

The Association's claims notwithstanding, the administrative record in this
case–which consists of over ten-thousand pages of reports, correspondence, studies
and analyses–is fully sufficient to facilitate judicial review without discovery. We are
satisfied that the district court's denial of extra-record discovery was not an abuse of
discretion, and the decision is therefore affirmed.

III. Conclusion
In sum, we find that the Park Service, in electing not to close eleven bays to
snowmobiling, appropriately exercised its discretionary authority under federal law.
In 1991, when the snowmobiling regulation was promulgated, it was subject to full
rule-making requirements, including publication in the Federal Register, notice, and
comment. It was also subject to environmental review under NEPA. Further, the Park
Service and the FWS consulted regarding the impact of snowmobiling on endangered
species–the gray wolf and the bald eagle in particular–prior to the Park Service's 2001
decision.

The Park Service did not decide to "open" the eleven bays to snowmobiling in
2001. The bays were in fact opened to snowmobiling in 1991. 36 C.F.R. § 7.33(b).
Although, by regulation, the Park Service "may" temporarily close specific areas of
Voyageurs, the position that the Park Service "opened" bays to snowmobiling in 2001
is inaccurate. Nothing in the administrative record establishes that the Park Service
was arbitrary or capricious in carrying out its NEPA and ESA obligations in
conjunction with the 1991 opening of these bay areas to motorized-recreational use.

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Based upon our review of the present record, we hold the Park Service was not
arbitrary or capricious in its subsequent "reopening" of these eleven bays after
deciding not to renew the annually-decided closing.

We have carefully considered all other arguments made by the Association and
conclude they are without merit and require no discussion. For the foregoing reasons,
the judgment of the district court is affirmed in all respects.
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