Friends of Yosemite Valley; Mariposans for Environmentally Responsible Growth (“merg”) v. Dirk Kempthorne

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 FRIENDS OF YOSEMITE VALLEY;
MARIPOSANS FOR ENVIRONMENTALLY
RESPONSIBLE GROWTH (“MERG”),
Plaintiffs-Appellees,
v.
DIRK KEMPTHORNE, in his official
capacity as Secretary of the
Interior; THE NATIONAL PARK No. 07-15124
SERVICE; JONATHAN B. JARVIS, in  D.C. No. his official capacity as Regional CV-00-06191-AWI Director of the Pacific West
Region, National Park Service,
Department of the Interior;
MICHAEL J. TOLLEFSON, in his
official capacity as Superintendent,
Yosemite National Park, National
Park Service, Department of the
Interior,
Defendants-Appellants. 
3059

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 FRIENDS OF YOSEMITE VALLEY;
MARIPOSANS FOR ENVIRONMENTALLY
RESPONSIBLE GROWTH (“MERG”),
Plaintiffs-Appellees,
v.
DIRK KEMPTHORNE, in his official
capacity as Secretary of the No. 07-15791
Interior; THE NATIONAL PARK D.C. No.SERVICE; JONATHAN B. JARVIS, in CV-00-06191-  his official capacity as Regional AWI/DLBDirector of the Pacific West
Region, National Park Service, OPINION
Department of the Interior;
MICHAEL J. TOLLEFSON, in his
official capacity as Superintendent,
Yosemite National Park, National
Park Service, Department of the
Interior,
Defendants-Appellants. 
Appeals from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted
November 28, 2007—Pasadena, California
Filed March 27, 2008
Before: Alfred T. Goodwin, A. Wallace Tashima, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
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COUNSEL
Ronald J. Tenpas, Assistant Attorney General, Environment
& Natural Resources Division, U.S. Department of Justice,
Washington, D.C., David C. Shilton, Charles R. Shockey, and
Elizabeth A. Peterson, Attorneys, U.S. Department of Justice,
Washington, D.C., Barbara Goodyear, Of Counsel, Field
Solicitor, U.S. Department of the Interior, Oakland, Califor-
nia, for the defendants-appellants.
Julia A. Olson, Wild Earth Advocates, Eugene, Oregon,
Sharon E. Duggan, Law Offices of Sharon E. Duggan, Oak-
land, California, for the plaintiffs-appellees.
OPINION
WARDLAW, Circuit Judge:
Twenty years after the Merced River, which lies in the
heart of the Yosemite National Park, was designated a Wild
and Scenic River, and seventeen years after the National Park
Service (“NPS”) was statutorily required to prepare a Com-
prehensive Management Plan (“CMP”) for the Merced Wild
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and Scenic River, the question whether NPS has developed a
valid CMP is again before us. In 2003, we found certain defi-
ciencies in an earlier CMP—the 2000 CMP—and remanded
to the district court. See Friends of Yosemite Valley v. Norton,
348 F.3d 789 (9th Cir. 2003) (Yosemite I). We clarified our
opinion in Friends of Yosemite Valley v. Norton, 366 F.3d 731
(9th Cir. 2004) (Yosemite II). On July 19, 2006, the district
court ruled on cross-motions for summary judgment. It con-
cluded that NPS continues to violate certain provisions of the
Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. §§ 1271-
1287, and the National Environmental Policy Act (“NEPA”),
42 U.S.C. § 4321-4375, as well as our instructions in Yosem-
ite I and Yosemite II. Friends of Yosemite Valley v. Scarlett,
439 F. Supp. 2d 1074 (E.D. Cal. 2006).
Appellants Dirk Kempthorne, in his official capacity as
Secretary of the Interior; the National Park Service; Jonathan
Jarvis, in his official capacity as NPS Regional Director of the
Pacific West Region; and Michael Tollefson, in his official
capacity as Superintendent of Yosemite National Park (collec-
tively, “NPS”) argue that the district court erred in finding
that (1) the Merced Wild and Scenic River—Revised Com-
prehensive Management Plan and Supplemental Environmen-
tal Impact Statement (“2005 Revised Plan”) fails sufficiently
to “address . . . user capacities” as required by § 1274(d) of
the WSRA; (2) the 2005 Revised Plan is deficient because it
is not a wholly self-contained plan; and (3) the supplemental
environmental impact statement (“SEIS”) prepared for the
2005 Revised Plan violates NEPA.
We have jurisdiction under 28 U.S.C. § 1291 and affirm the
district court. We hold that the 2005 Revised Plan does not
describe an actual level of visitor use that will not adversely
impact the Merced’s Outstanding Remarkable Values
(“ORVs”) as required by Yosemite I and the WSRA, because
the Visitor Experience and Resource Protection (“VERP”)
framework is reactionary and requires a response only after
degradation has already occurred. Moreover, the interim lim-
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its are based on current capacity limits and NPS has not
shown that such limits protect and enhance the Merced’s
ORVs. And, as we made clear in Yosemite II, we again con-
clude that the WSRA requires that the CMP be in the form of
a single, comprehensive document, which addresses all the
required elements, including both the “kinds” and “amounts”
of use, and thus the 2005 Revised Plan is deficient because it
addressed only the two components struck down in Yosemite
I and was not a single, self-contained plan. Finally, we con-
clude that the SEIS violates NEPA because the “no-action”
alternative assumed the existence of the very plan being pro-
posed; the three action alternatives—which are each primarily
based on the VERP framework—are unreasonably narrow;
and for the first five years, the interim limits proposed by the
three alternatives are essentially identical.
I.
A. The Wild and Scenic Rivers Act
The Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C.
§§ 1271-1287, was enacted in 1968 out of concern for the
preservation of United States rivers, many of which had been
subjected to overdevelopment and damming. See Kenny
Seale, Note, The Effect of the Wild and Scenic Rivers Act on
Proposed Bridge Construction, 7 Wis. Envtl. L.J. 225, 227-29
(2000). In its opening section, the WSRA explains that it is
intended to codify Congress’s policy determination
that certain selected rivers of the Nation which, with
their immediate environments, possess outstandingly
remarkable scenic, recreational, geologic, fish and
wildlife, historic, cultural, or other similar values,
shall be preserved in free-flowing condition, and that
they and their immediate environments shall be pro-
tected for the benefit and enjoyment of present and
future generations.
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16 U.S.C. § 1271. As originally enacted, the WSRA named
specific rivers or segments of rivers for inclusion in the Wild
and Scenic River System (“WSRS”). See id. § 1274(a)(1)-
(a)(8). The WSRA also sets forth a procedure for future desig-
nations to the WSRS. See id. § 1273(a). WSRS components
are administered by the Secretary of the Interior (including
any component administered by the Secretary of the Interior
through NPS or the Fish and Wildlife Service) or, if the river
falls within a national forest, the Secretary of Agriculture. See
id. § 1281(c)-(d).
The WSRA framework designates rivers based on specific
“outstandingly remarkable values” (“ORVs”) which both jus-
tify the initial designation of a river as a WSRS component,
see id. § 1271, and provide the benchmark for evaluating a
proposed project affecting a designated river. While, under
the WSRA, protecting and enhancing the designated ORVs is
paramount, this goal may be compatible with other uses:
[e]ach component of the [WSRS] shall be adminis-
tered in such manner as to protect and enhance
[those ORVs that] caused it to be included in [the
WSRS] without, insofar as is consistent therewith,
limiting other uses that do not substantially interfere
with public use and enjoyment of these values[,
with] primary emphasis . . . given to protecting its
esthetic, scenic, historic, archeologic, and scientific
features.
Id. § 1281(a). The WSRA further recognizes that
“[m]anagement plans for any such component may establish
varying degrees of intensity for its protection and develop-
ment, based on the special attributes of the area.” Id. To the
extent that the WSRA conflicts with the Wilderness Act, id.
§ 1131-1136, or statutes administering the national park sys-
tem and national wildlife system, the WSRA instructs that
“the more restrictive provisions shall apply.” Id. § 1281(b)-
(c). The WSRA requires the administering agency to “take
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such action respecting management policies, regulations, con-
tracts, [and] plans . . . as may be necessary to protect such riv-
ers in accordance with” the WSRA, and “cooperate with the
. . . Environmental Protection Agency and with the appropri-
ate State water pollution control agencies for the purpose of
eliminating or diminishing the pollution of waters of the
river.” Id. § 1283(a), (c).
Once a river is designated as part of the WSRS, the follow-
ing statutory timetable applies: (1) within one year, the
administering agency is required to “establish detailed bound-
aries” for the river and classify it (generally or by its various
segments) as “wild,” “scenic,” or “recreational,” see id.
§§ 1274(b); 1273(b); and (2) within three full fiscal years, the
administering agency must prepare a comprehensive manage-
ment plan (“CMP”) “to provide for the protection of the river
values,” id. § 1274(d)(1). “The [CMP] shall address resource
protection, development of lands and facilities, user capaci-
ties, and other management practices necessary or desirable to
achieve the [WSRA’s] purposes,” id. (emphasis added).
B. The Secretaries’ Joint Guidelines
Because of inconsistencies caused by the WSRA’s provi-
sion for administration by agencies under both the Depart-
ment of Agriculture and the Department of the Interior, the
President asked both Secretaries to jointly issue guidelines
interpreting the WSRA. See National Wild and Scenic Rivers
System; Final Revised Guidelines for Eligibility, Classifica-
tion and Management of River Areas, 47 Fed. Reg. 39,454
(Sept. 7, 1982) (the “Secretarial Guidelines”). The Secretarial
Guidelines interpret the management principles of § 1281(a)
“as stating a nondegradation and enhancement policy for all
designated river areas, regardless of classification.” Id. at
39,458. The Secretarial Guidelines further explain that the
WSRA requires the administering agency to manage each
component so as to protect and enhance its ORVs, “while pro-
viding for public recreation and resource uses which do not
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adversely impact or degrade those values.” Id. at 39,458-59.
The Secretarial Guidelines also envision the use of varying
strategies and implementations, depending on the segment’s
classification and ownership. Id. at 39,459.
Notably, the Secretarial Guidelines discuss “carrying
capacity,” a term that does not appear in the WSRA itself1 and
is defined as “[t]he quantity of recreation use which an area
can sustain without adverse impact on the [ORVs] and free-
flowing character of the river area, the quality of recreation
experience, and public health and safety.” Id. at 39,455. The
Secretarial Guidelines contemplate that
[s]tudies will be made during preparation of the
management plan and periodically thereafter to
determine the quantity and mixture of recreation and
other public use which can be permitted without
adverse impact on the resource values of the river
area. Management of the river area can then be
planned accordingly.
Id. at 39,459 (emphasis added). The Secretarial Guidelines
also require that a component’s management plan state
the kinds and amounts of public use which the river
area can sustain without impact to the values for
which it was designated[,] and specific management
measures which will be used to implement the man-
agement objectives for each of the various river seg-
ments and protect esthetic, scenic, historic,
archeologic and scientific features.
Id. at 39,458 (emphasis added).
1Congress added the current § 1274(d) to the WSRA in 1986. See Pub.
L. No. 99-590, § 501(b)(3), 110 Stat. 3330, 3335 (1986). Thus the Secre-
tarial Guidelines’s use of “carrying capacity” predated the enactment of
the “address . . . user capacities” language in § 1274(d).
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C. WSRA Designation of the Merced
In 1987, Congress designated segments of the Merced
River as WSRS components, including sections flowing
through the very popular Yosemite National Park, and its
administrative site, El Portal. See Pub. L. No. 100-149, 101
Stat. 879 (Nov. 2, 1987) (codified at 16 U.S.C. § 1274(a)
(62)(A)). In designating the Merced as wild and scenic, Con-
gress instructed that the establishment of WSRA boundaries
for and classification of those parts of the Merced falling
within Yosemite or El Portal would be accomplished through
amendment of the 1980 general management plan (“GMP”)
for Yosemite National Park, and that such amendment “shall
assure that no development or use of park lands shall be
undertaken that is inconsistent with the designation of such
river segments.” 16 U.S.C. § 1274(a)(62)(A).
Despite Congress’s directive, NPS failed to issue the
required CMP for the Merced in a timely manner, and was
ordered to do so in earlier litigation. See Sierra Club v. Bab-
bitt, 69 F. Supp. 2d 1202, 1263 (E.D. Cal. 1999) (ordering
NPS to “prepare and adopt a valid [CMP] pursuant to 16
U.S.C. § 1274(d) in regard to the Merced River as designated
under the [WSRA] no later than twelve months after the entry
of this decision”). The twelve-month timetable was based on
NPS’s representation that it could complete a CMP in that
amount of time. After obtaining a one-month extension, NPS
finally issued a CMP in mid-2000 (the “2000 CMP”), well
past the statutory deadline.
D. Yosemite I and II
We have twice previously addressed the issues presented
by this action. In 2003, we affirmed in part the Eastern Dis-
trict of California’s findings of specific deficiencies in the
2000 CMP, and remanded for a correction of those deficien-
cies. Yosemite I, 348 F.3d 789. We clarified our opinion in
2004, and remanded for reconsideration of the motion for
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injunctive relief filed by Friends of Yosemite Valley and
Mariposans for Environmentally Responsible Growth (collec-
tively, “Friends”) in light of the clarification. Yosemite II, 366
F.3d 731.
Looking to the WSRA requirement that the administering
agency “prepare a [CMP] . . . . [that] shall address . . . user
capacities” within three full fiscal years of a WSRS segment’s
designation, 16 U.S.C. § 1274(d)(1), we concluded, in Yosem-
ite I, that NPS’s method of addressing user capacities was
problematic. 348 F.3d at 797. The 2000 CMP’s primary
method of addressing user capacities was through a frame-
work called Visitor Experience and Resource Protection
(“VERP”). Id. at 796. “[T]he VERP framework focuses on the
prescription and maintenance of selected ‘desired condi-
tions.’ ” Id. To maintain these “desired conditions,” the VERP
framework provides for “selecting and monitoring indicators
and standards that reflect these desired conditions, and taking
management action when the desired conditions are not being
realized.” Id. (internal citations omitted).
Analyzing the plain meaning of the terms within the phrase
“address . . . user capacities” as well the Secretarial Guide-
lines, we interpreted the requirement to “address . . . user
capacities” to mean that the CMP must include “specific mea-
surable limits on use.” Id. at 797 (emphasis added). “[T]he
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.” Id. at 796
(emphasis added). However, the plain meaning does not man-
date “one particular approach to visitor capacity.” Id.
Furthermore, the Secretarial Guidelines “interpret[ed] the
WSRA to require the preparation of river ‘[m]anagement
plans [that] state . . . the kinds and amounts of public use
which the river area can sustain without impact to the
[ORVs],’ and to mandate ongoing studies to ‘determine the
quantity and mixture of recreation and other public use which
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can be permitted without adverse impact on the resource val-
ues of the river area.’ ” Id. at 797 (quoting 47 Fed. Reg.
39,454, 39,458-59). The Secretarial Guidelines, however, do
not require one particular method of limiting user capacity. Id.
They do not mandate, for example, a numerical cap on visi-
tors. Id. (“[T]he Secretarial Guidelines do not specify that this
obligation can be satisfied only by capping the number of vis-
itors.”).
We concluded that the VERP framework, as set out in the
2000 CMP, failed sufficiently to address user capacities
because it did not adopt “quantitative measures sufficient to
ensure its effectiveness as a current measure of user capaci-
ties.” Id. Rather than establish specific indicators or standards
to implement the VERP, the 2000 CMP provided “examples”
of indicators and standards. Id. at 796. By only providing
illustrative standards, “the [2000] CMP fail[ed] to yield any
actual measure of user capacities, whether by setting limits on
the specific number of visitors, by monitoring and maintain-
ing environmental and experiential criteria under the VERP
framework, or through some other method.” Id. This “fail-
[ure] to provide any concrete measure of use,” we found, was
inconsistent with our interpretation of the phrase “address . . .
user capacities.” Id. at 797.
We instructed that “[o]n remand, the NPS shall adopt spe-
cific limits on user capacity consistent with both the WSRA
and the instruction of the Secretarial Guidelines that such lim-
its describe an actual level of visitor use that will not
adversely impact the Merced’s ORVs.” Id. (emphasis added).
Given that “NPS was supposed to have completed a CMP for
the Merced River some twelve years ago,” we indicated that
we would expect temporary measures to be implemented as
soon as practicable in order “to avoid environmental degrada-
tion pending the completion of [the] task.” Id. at 803-04. In
particular, we recognized that “[i]f the NPS is correct in pro-
jecting that it will need five years fully to implement the
VERP, it may be able to comply with the user capacity man-
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date in the interim by implementing preliminary or temporary
limits of some kind.” Id. at 797.
As elucidated in Yosemite II, in Yosemite I, “we held that
the entire Merced Wild and Scenic River [CMP] is invalid
due to two deficiencies: (1) a failure to adequately address
user capacities; and (2) the improper drawing of the Merced
River’s boundaries at El Portal.” Yosemite II, 366 F.3d at 731.
Because the district court had, on remand, misconstrued our
holding in Yosemite I, we explained that “[w]hile we
remanded to the district court to enter an appropriate order
requiring the [NPS] to remedy these deficiencies in the CMP
in a timely manner, we did not otherwise uphold the [2000
CMP].” Id. (internal citations and quotation marks omitted;
emphasis added). We concluded that, “[p]ursuant to our origi-
nal Opinion [in Yosemite I], the [NPS] must prepare a new or
revised CMP that adequately addresses user capacities and
properly draws the river boundaries at El Portal.” Id. In
Yosemite II, we also “grant[ed] a temporary stay of proceed-
ings and an injunction prohibiting NPS from implementing
any and all projects developed in reliance upon the invalid
CMP” pending the district court’s consideration of the matter.
Id.
E. District Court Decisions on Remand
On remand, on July 6, 2004, the district court ordered NPS
to develop a “new or revised CMP” and to “comply with
NEPA by issuing a supplemental EIS.” The district court also
enjoined certain projects pending completion of the new or
revised CMP. After a series of public scoping meetings, a
draft of a revised CMP and SEIS was released for public
review in January 2005. After approximately three months of
public review, in June 2005, NPS issued its 2005 Revised
Plan, a two-volume publication entitled, “Merced Wild and
Scenic River—Revised Comprehensive Management Plan
and Supplemental Environmental Impact Statement” (“2005
Revised Plan”). The Record of Decision (“ROD”) for the
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revised CMP was signed on July 25, 2005, adopting Alterna-
tive 2 from the SEIS. The 2005 Revised Plan states, as fol-
lows:
[t]his revised plan will amend the existing Merced
River Plan to address the two deficiencies identified
by the Court . . . . This Revised Merced River Plan
does not replace the Merced River Plan adopted in
2000, but corrects the deficiencies in its management
elements.
On November 11, 2005, Friends filed their complaint with
the Eastern District of California, alleging five causes of
actions against NPS. Friends challenged the 2005 Revised
Plan under WSRA, NEPA, the Administrative Procedure Act
(“APA”), and our prior orders. The district court, on July 19,
2006, granted in part and denied in part the parties’ cross-
motions for summary judgment. Friends of Yosemite Valley v.
Scarlett, 439 F. Supp. 2d 1074, 1108-09 (E.D. Cal. 2006).
The district court held that NPS failed to comply with our
order that “[o]n remand, the NPS shall adopt specific limits
on user capacity . . . [that] describe an actual level of visitor
use that will not adversely impact the Merced’s ORVs.” Id. at
1098 (internal quotation marks omitted). According to the dis-
trict court, “some sixteen years after [NPS] was required to
create a [CMP] for the Merced River, [it] decide[d] that for
approximately five years, it would like to experiment with
implementing the VERP program as its primary means of
addressing user capacity.” Id. NPS also failed to commit to
the use of the VERP program for the long run, stating that
“whether VERP will become permanent after five years is not
known at this time.” Id. (internal quotation marks omitted).
Rather, “[w]hat NPS has created in the VERP portion of the
user capacity program in the 2005 Revised Plan is a tentative
plan of uncertain duration which adopts temporary limits,
which will apply for an unknown length of time.” Id. at 1100.
As stated by the district court, the agency “has left itself the
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option of deciding in five years to abandon its currently pro-
posed method and proceed in an entirely different, as yet
unidentified, manner. Under this scenario, there is no indica-
tion when, if ever, NPS will finally adopt a permanent pri-
mary method for addressing user capacity . . . .” Id. at 1099.
Furthermore, despite providing for interim limits while NPS
conducts field testing of the VERP indicators and standards,
NPS’s interim limits, which are set to apply for a period of 5
years, “are simply the current physical capacity of the facili-
ties in Yosemite Valley.” Id. The court also criticized VERP
for being “reactive” in that it calls for management action
only after environmental degradation has already occurred. Id.
at 1100.
The district court further found that the 2005 Revised Plan
was deficient because “NPS has violated [the] WSRA by fail-
ing to adopt a single, self-contained [CMP] for the Merced
River.” Id. at 1094. It found that “language from the Ninth
Circuit indicates an intention that a single document be pro-
duced, covering everything.” Id. The court stated that
although NPS is free to “us[e] parts[,] even very large parts,”
of the 2000 CMP in developing “a whole new or revised
plan,” it has “proceeded from the [incorrect] assumption that
the 2000 [CMP] still exists.” Id. at 1093.
The district court also held that the SEIS prepared in con-
junction with the 2005 Revised Plan did not comply with the
NEPA, 42 U.S.C. § 4321-4375, because it provided no true
“no-action” alternative and because it lacked the required rea-
sonable range of alternatives. Friends of Yosemite Valley, 439
F. Supp. 2d at 1105-07; see 40 C.F.R. § 1502.14(d) (requiring
“the alternative of no action”); id. § 1502.14(a) (requiring that
the EIS “[r]igorously explore and objectively evaluate all rea-
sonable alternatives, and for alternatives which were elimi-
nated from detailed study, briefly discuss the reasons for their
having been eliminated”). According to the district court, the
SEIS improperly relied on elements of the 2000 CMP to
describe the environmental baseline. Friends of Yosemite Val-
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ley, 439 F. Supp. 2d at 1105. The range of action alternatives
was insufficient because each alternative is based on VERP,
which the court had found inadequate to constitute the pri-
mary feature of a user capacity program as required by
WSRA. Id. at 1106-07.
Next, on November 3, 2006, the district court issued an
opinion and order enjoining significant aspects of nine proj-
ects in the Merced River corridor until NPS develops a valid
CMP. Friends of Yosemite Valley v. Kempthorne, 464 F.
Supp. 2d 993 (E.D. Cal. 2006). NPS appealed the district
court’s November 3 decision on December 28, 2006. A stay
pending the appeal of its injunction was granted on March 22,
2007 with respect to two of these projects. Friends of Yosem-
ite Valley v. Kempthorne, No. CV F 00-6191 AWI DLB, 2007
WL 896154 (E.D. Cal. 2007). On March 28, 2007, the district
court issued an order approving the parties’ stipulation regard-
ing a completion date for a new CMP and EIS—on or before
September 30, 2009. The district court also entered final judg-
ment, which NPS appealed on April 24, 2007. NPS’s appeals
from the district courts’ decisions are consolidated in the pres-
ent case.
II.
We review a district court’s grant of summary judgment de
novo. Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d
851, 857 (9th Cir. 1999) (citing Sierra Club v. Babbitt, 65
F.3d 1502, 1507 (9th Cir. 1995)).
We review NPS’s actions under the WSRA and NEPA pur-
suant to the APA, 5 U.S.C. §§ 701-706. Under the APA, we
may set aside a decision “ ‘only if it was arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
the law.’ ” Yosemite I, 348 F.3d at 793 (quoting Hells Canyon
Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1176-77 (9th
Cir. 2000)). As discussed in Yosemite I,
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[t]he determination whether the NPS acted in an
arbitrary and capricious manner rests on whether it
“articulated a rational connection between the facts
found and the choice made.” Pub. Citizen v. DOT,
316 F.3d 1002, 1020 (9th Cir. 2003). “[C]ourts must
carefully review the record to ensure that agency
decisions are founded on a reasoned evaluation of
the relevant factors, and may not rubber-stamp . . .
administrative decisions that they deem inconsistent
with a statutory mandate or that frustrate the con-
gressional policy underlying a statute . . . .” Id. Nev-
ertheless, we “may not substitute [our] judgment for
that of the agency [but] must simply ensure that the
agency has adequately considered and disclosed the
environmental impact of its actions, bearing in mind
that NEPA exists to ensure a process, not particular
substantive results.” Hells Canyon, 227 F.3d at 1177.
Yosemite I, 348 F.3d at 793. Also,
[w]e apply a “rule of reason” standard to review the
adequacy of an agency’s EIS, asking whether an EIS
contains a reasonably thorough discussion of the sig-
nificant aspects of the probable environmental con-
sequences. This standard involves a pragmatic
judgment whether the EISs form, content and prepa-
ration foster both informed decision-making and
informed public participation, and is essentially the
same as review for abuse of discretion.
Id. at 800 n.2 (internal citations and quotation marks omitted).
III.
Preliminarily, although NPS appealed the interlocutory
injunction, it did not address the issue of the injunction in
either its opening or reply brief. Arguments not raised by a
party in its opening brief are deemed waived. E.g., Smith v.
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Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); Miller v. Fair-
child Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986) (conclud-
ing that we “will not ordinarily consider matters on appeal
that are not specifically and distinctly argued in appellant’s
opening brief”). Thus, we do not consider the merits of the
interlocutory injunction, but only the district court’s rulings
on the cross-motions for summary judgment.
A. Addressing User Capacities2
The 2005 Revised Plan, pursuant to the ROD, adopts
VERP as its primary method of addressing user capacity. NPS
argues that the district court erred in finding that the 2005
Revised Plan did not remedy the deficiency we found in the
user capacity component of the 2000 CMP. According to
NPS, sufficiently specific measurable limits on use can be
found in (1) the Wilderness Trailhead Quota System; the
Superintendent’s Compendium limits; (2) the new VERP
indicators and standards; and (3) the interim limits imposed
by the User Capacity Management Program.
1. Wilderness Trailhead Quota System &
Superintendent’s Compendium
[1] The district court properly concluded that neither the
Wilderness Trailhead Quota System nor the Superintendent’s
2While we have not required that NPS set a numerical cap on visitors
but rather that it “deal with or discuss the maximum number of people that
can be received at” the Merced, Yosemite I, 348 F.3d at 796, as counsel
for Friends alluded to at oral argument, numerical limits on visitor use is
commonly used by agencies in order to protect our natural environment.
See, e.g., U.S. Air Tour Ass’n v. FAA, 298 F.3d 997, 1011-12 (D.C. Cir.
2002) (allowing numerical cap on the number of commercial air tours over
the Grand Canyon and noting that “[l]imiting the number of visitors at a
given time in a national park is a standard measure used to protect park
resources”); Friends of the Boundary Waters Wilderness v. Dombeck, 164
F.3d 1115, 1128-29 (8th Cir. 1999) (upholding the U.S. Forest Service’s
EIS where nine out of ten alternatives placed limits on visitor use at or
below current levels).
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Compendium3 are “persuasive as to whether the 2005 Revised
Plan adequately addresses user capacities.” Friends of Yosem-
ite, 439 F. Supp. 2d at 1096. Although they are steps in the
right direction, both these methods for addressing user capac-
ity “predate the 2000 [CMP] and were relied upon by [NPS]
in support of that plan” to no avail. Id.
2. VERP
[2] The district court correctly found that VERP does not
properly address user capacities because, by not requiring a
response to environmental degradation until after it already
occurs, it is reactive and thereby violates 16 U.S.C. § 1281(a)
and the Secretarial Guidelines, 47 Fed. Reg. at 39,458-59,
interpreting the management principles of § 1281(a).
NPS argues that the district court based its holding on a
legally incorrect view that the WSRA does not allow reliance
on a program that monitors particular indicators, such as
VERP, because such a program is, by definition, “reactive.”
According to NPS, that ruling is contrary to our holding in
Yosemite I, where we held that NPS could address user capac-
ities with a VERP framework that monitors and maintains
environmental and experiential criteria. See Yosemite I, 348
F.3d at 796-97. NPS further contends that the district court’s
ruling incorrectly requires NPS to set specific limits on the
number of visitors, even though we stated in Yosemite I that
a numerical cap is not required. NPS misreads the district
court’s analysis, and its argument is therefore flawed. The
3The Wilderness Trailhead Quota System imposes limits on the number
of overnight users allowed within the wilderness segments of the river,
which comprise 51 of the 81 miles of the Merced under NPS management.
It has been in place since the 1970s. The Superintendent’s Compendium
limits the time and location of specific activities, or imposes limits on the
number of people allowed to engage in specific activities. For example it
includes limits on overnight group size, day use group size, stock animals
per group, stock animal travel areas and areas of non-motorized water
craft use and fishing.
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reason the district court found that the revised VERP was
reactionary was not because a framework that monitors and
maintains is inherently reactive and thus can never be proac-
tive. Rather, the revised VERP at issue was found to be reac-
tionary, and thus responsive after-the-fact to already occurring
degradation, because it does not “ ‘describe an actual level of
visitor use that will not adversely impact the Merced’s
ORVs.’ ” See Friends of Yosemite, 439 F. Supp. 2d at 1098-
1100 (quoting Yosemite I, 348 F.3d at 797).
NPS next argues the district court incorrectly stated that the
VERP as set out in the 2005 Revised Plan “is not oriented
towards preventing degradation.” It contends that the indica-
tors and standards established in VERP trigger action prior to
degradation of ORVs. In support, NPS asserts that (1) the
indicators and standards are set conservatively so that,
although management may not act before the indicators and
standards are exceeded, action will be taken before there is
degradation; (2) the text of the 2005 Revised Plan provides
that “[i]ndicators, which are measurable variables, are deter-
mined first; standards quantifiably define the acceptable con-
ditions (i.e., measured values) for each indicator. . . . [which]
are set at a level that will protect and enhance the Merced
River’s [ORVs]” (emphasis added); (3) NPS does not choose
a particular indicator unless that indicator is “[a]ble to provide
an early warning for resource degradation”; (4) management
action may occur before a standard is exceeded because “[t]he
process of monitoring and its relationship to management
actions can be likened to a traffic signal . . . . A yellow-light
condition occurs when monitoring shows that conditions are
approaching the standard. This early warning sign may call
for implementing proactive management actions to protect
and enhance the [ORVs]”; and (5) the district court’s conclu-
sion is at odds with this panel’s decision in Yosemite I.
[3] That an indicator may be able to provide an early warn-
ing, does not mean that it does in practice. A standard must
be chosen that does in fact trigger management action before
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degradation occurs. Also, that an early warning sign may call
for the implementation of proactive management does not
provide much assurance that such implementation will occur.
Despite NPS’s statements to the contrary, in Yosemite I, we
did not foreclose a later finding by the district court that the
VERP system remains problematic even if VERP does not
rely on examples instead of actual indicators and standards.
Currently, VERP requires management action only when deg-
radation has already occurred, and it is therefore legally defi-
cient.4
3. Interim Limits
[4] The district court properly concluded that the interim
limits “do not describe an actual level of visitor use that will
not adversely impact the Merced’s ORVs.” Friends of Yosem-
ite, 439 F. Supp. 2d at 1099-1100. The 2005 Revised Plan
adopted interim limits for a five-year period to restrict the
kinds and amounts of visitor use in the Merced River corridor
while the VERP program is being tested. These interim limits
include caps on overnight lodging, campsites, day-visitor
parking, bus parking spaces and employee housing units.
Buses are limited to 92 per day in the Yosemite Valley seg-
4Although this does not alter our conclusion, NPS is correct that the dis-
trict court erred to the extent that it interpreted the WSRA to require that
a method adopted for addressing user capacity be permanent. An appropri-
ate method must be in place. But, just as NPS has discretion in choosing
a particular method of addressing user capacities, NPS has the discretion
to make improvements to its method, or switch to a new method, based
on new scientific evidence. See Yosemite I, 348 F.3d at 796-97. Further-
more, the very nature of VERP, which we concluded in Yosemite I could
be an acceptable method of addressing user capacities if implemented
properly, is fluid in that it is an iterative process that improves and adjusts
with time. See also Westlands Water Dist. v. U.S. Dep’t of Interior, 376
F.3d 853, 869-70 (9th Cir. 2004); Selkirk Conservation Alliance v. Fors-
gren, 336 F.3d 944, 965 (9th Cir. 2003). NPS admits, nevertheless, that
it has chosen VERP as its primary method of dealing with user capacity
issues for the foreseeable future and takes issue with the district court’s
proper characterization of VERP as “tentative.”
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ment, which according to NPS, is consistent with the number
of buses that entered the Yosemite Valley at peak periods
such as in the mid-1990s. Day-visitor parking spaces, bus
parking spaces, and overnight lodging facilities are set at
existing levels. The number of campsites in Yosemite Valley
would be allowed to increase slightly during the interim
period by 163 sites for an interim limit of 638 sites, a level
which, as NPS states, falls below both the number of camp-
sites in the Yosemite Valley prior to the 1997 flood and when
the Merced River was designated Wild and Scenic in 1987.
Some of the limits, while at existing capacity limits, are below
facility levels that existed in 1980, before the Merced River
was designated under the WSRA.
According to NPS, its choice of interim limits is not arbi-
trary or capricious. NPS argues that “[i]f the status of the
Merced River’s ORVs was sufficient for eligibility in 1987
when Yosemite Valley had more parking spaces, rooms and
campsites than at present, it would be improper to simply
assume that the lower facility levels permitted under the 2005
[Revised Plan] will ‘degrade’ the ORVs.” Furthermore, NPS
argues that its decision is consistent with § 1281(a) of the
WSRA because it does not “limit[ ] other uses that do not sub-
stantially interfere with public use and enjoyment of” the
Merced’s ORVs. 16 U.S.C. § 1281(a).
[5] There is no authority for a presumption that holding
facility levels to those in existence in 1987, when the Merced
was designated under the WSRA, is protective of ORVs or
satisfies the user capacity component of the required CMP.
See Friends of Yosemite, 439 F. Supp. 2d at 1099-1100. NPS
has a responsibility under the “protect and enhance” require-
ment of the WSRA to address both past and ongoing degrada-
tion. Setting interim limits to current capacity limits does not
address the problem of past degradation.5 Moreover, nowhere
5To illustrate the level of degradation already experienced in the Merced
and maintained under the regime of interim limits proposed by NPS, we
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has NPS shown how its interim limits place “primary empha-
sis” on the protection of the Merced River’s “esthetic, scenic,
historic, archeologic, and scientific features” as required by
§ 1281(a). And although the WSRA does not preclude basing
user capacity limits on current capacity limits, NPS’s decision
to base many of its interim limits on current capacity limits
was not “founded on a reasoned evaluation of the relevant
factors.” See Yosemite I, 348 F.3d at 793 (internal quotation
marks omitted). Nor has NPS “articulated a rational connec-
tion between the facts found and the choice made.” See id.6
B. Requirement of a Single, Self-contained Plan
[6] The district court did not err by faulting NPS for assum-
ing that the 2000 CMP still existed and finding that the 2005
Revised Plan was deficient because, focusing only on the ele-
ments that were explicitly struck down in Yosemite I, it was
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 accommo-
dating 70 people. Although recreation is an ORV that must be protected
and enhanced, see 16 U.S.C. § 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.
6Our decision in High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630
(9th Cir. 2004), highlighted some of the problems with simply maintaining
use at current levels. In examining compliance with the Wilderness Act,
we stated that “[a]t best, when the Forest Service simply continued preex-
isting permit levels, it failed to balance the impact that that level of com-
mercial activity was having on the wilderness character of the land. At
worst, the Forest Service elevated recreational activity over the long-term
preservation of the wilderness character of the land.” Id. at 647.
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not a single, self-contained plan. See Friends of Yosemite, 439
F. Supp. 2d at 1093-94. The WSRA requires a single, compre-
hensive plan that collectively addresses all the elements of the
plan—both the “kinds” and “amounts” of permitted use—in
an integrated manner. As Friends argue, NPS has simply
tacked onto the 2000 CMP ten indicators and standards for the
purposes of limiting the “amounts” of use, but has failed
simultaneously to address the appropriate “kinds” of use.
Moreover, before the district court, NPS, in a futile effort to
correct this problem, attempted to rely on a December 2005
“Presentation Plan” which, according to NPS, combines all
elements from the 2000 CMP and the 2005 Revised Plan that
comprise the management plan for the Merced as adminis-
tered by NPS. The district court properly rejected any such
reliance because it was created after the approval of the 2005
Revised Plan, was not presented for public review as the
revised plan and contradicted the 2005 Revised Plan which
states that it is “the” final revised CMP. See id. at 1094 n.2.
[7] In Yosemite II, we clarified that in Yosemite I, “we held
. . . the entire Merced Wild and Scenic River [CMP] . . . inval-
id” and that “we did not otherwise uphold the [2000 CMP].”
Yosemite II, 366 F.3d at 731 (internal quotation marks omit-
ted). We thus concluded that, “[NPS] must prepare a new or
revised CMP.” Id. Contrary to NPS’s assertion, in Yosemite
II, we indicated that a single document covering all required
elements must be produced. This does not mean that NPS is
required to start from scratch with respect to each element of
the 2000 CMP that was not explicitly found deficient or that
it cannot incorporate parts of the 2000 CMP in preparing its
new or revised plan. But, it is required to prepare a single
plan, not issue supplemental volumes that simply cross-
reference thousands of pages of material from the 2000 CMP.
The Secretarial Guidelines mandate such an interpretation
of the WSRA, stating that the WSRA requires that a river’s
comprehensive management plan state both “the kinds and
amounts of public use which the river area can sustain without
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impact to the values for which it was designated.” 47 Fed.
Reg. at 39,458. NPS cannot, thus, address the “amounts” of
use without also addressing the “kinds” of use. The two are
inseparable. Further support comes from the plain meaning of
“comprehensive,” which, according to the Oxford English
Dictionary, is “having the attribute of comprising or including
much; of large content or scope.”
NPS cites to Federal Power Commission v. Idaho Power
Co., 344 U.S. 17, 20 (1952), for the proposition that the dis-
trict court’s holding conflicts with principles of judicial
review. In Idaho Power, the Supreme Court stated “that the
function of the reviewing court ends when an error of law is
laid bare. At that point the matter once more goes to the
[agency] for reconsideration.” Id. There, the D.C. Circuit had
entered a judgment and remanded the case to the agency for
entry of an order in accordance with its opinion. Id. at 19.
However, in response to a motion to clarify the judgment, the
appellate court entered a new judgment and itself undertook
to modify the agency’s order. Id. at 20 (“[T]he Court of
Appeals entered a new judgment, stating that the order of the
[agency] ‘be, and it is hereby, modified by striking therefrom
paragraph (F) thereof, and that the order of the [agency]
herein as thus modified be, and it is hereby, affirmed.’ ”).
When we required NPS to prepare a revised or new CMP, we
did not commit the same error as the D.C. Circuit—we did
not assume the responsibility of revising the 2000 CMP itself,
but rather remanded to the agency. The same holds true for
the district court with respect to its decision on the cross-
motions for summary judgment. Thus, NPS’s argument is
without merit.
C. The SEIS
The supplemental environmental impact statement
(“SEIS”) published as part of the 2005 Revised Plan exam-
ined four alternatives. Alternative 1 is the “no-action” alterna-
tive. It would have managed the river corridor under the 2000
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CMP, but without the 2000 version of VERP. The three action
alternatives each includes the revised version of VERP. Alter-
native 2, which the ROD adopted, includes the interim limits
of the User Capacity Management Program which are based
on the most part on current facility limits. Alternative 3 would
have included all components of Alternative 2, but would
have added a maximum daily visitor limit for each river seg-
ment, a maximum annual visitation limit of 5.32 million for
the entire river corridor and a daily limit on the number of day
hikers to Half Dome. The 5.32 million limit is higher than the
highest level of visitation ever in Yosemite, which was 4.19
million in 1996. Alternative 4 would have again included all
components of Alternative 2, but would have also established
maximum use levels within each management zone, based on
capacity factors for the average number of people per unit
area, and would have imposed a maximum annual visitation
limit of 3.27 million, which equals the parkwide visitation
level in 1987.
1. “No-action” Alternative
[8] The district court correctly ruled that the SEIS did not
set forth a true “no-action” alternative because the SEIS
assumes, as the baseline, the existence of the 2000 CMP,
which we previously found invalid. Such an assumption is
logically untenable. The baseline alternative should not have
“assume[d] the existence of the very plan being proposed.”
Friends of Yosemite Valley, 439 F. Supp. 2d at 1105. This is
so even given the deference owed to the agency’s choice of
a “no-action” alternative and the ongoing nature of agency
management.
[9] The “no-action” alternative should have included the
elements from the 1980 GMP, the Wilderness Plan and other
instruments such as the Superintendent’s Compendium. How-
ever, including the 2000 CMP—even those elements of the
CMP that we did not explicitly strike down—in the baseline
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predetermines user capacity based on a plan that was held
invalid. As the district court stated:
[B]ecause the Ninth Circuit held the 2000 [CMP] to
be illegal, NPS cannot properly include elements
from that plan in the no action alternative as the sta-
tus quo. . . . [A]t the time NPS was creating the no
action alternative for the 2005 Revised Plan, the
Ninth Circuit had explicitly held the entire 2000
[CMP] to be invalid, and no comprehensive manage-
ment plan for the Merced River existed. The ele-
ments from the 2000 [CMP] which NPS includes as
the status quo had to be implemented, if at all, in the
2005 Revised Plan. It was thus improper for NPS to
refer to those elements as part of the status quo at the
time the no action alternative was presented to the
public. A no action alternative in an EIS is meaning-
less if it assumes the existence of the very plan being
proposed.
Id. Thus, NPS’s “no-action” alternative is invalid under
NEPA.
2. Range of Action Alternatives
[10] The district court correctly found that the SEIS lacked
a reasonable range of action alternatives, and was thus unrea-
sonably narrow, in violation of NEPA. The three action alter-
natives each included the revised version of VERP as the
primary mechanism for dealing with user capacity, with a five
year interim period while VERP is tested. Because the district
court based its decision on the fact that each alternative relied
on the revised VERP and because it is incorrect in its assess-
ment of VERP, NPS argues that the court had no legitimate
basis for finding that the SEIS lacked a reasonable range of
action alternatives.
The action alternatives are the “heart” of an EIS. 40 C.F.R.
§ 1502.14. “The existence of a viable but unexamined alterna-
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tive renders an environmental impact statement inadequate.
An agency must look at every reasonable alternative, with the
range dictated by the nature and scope of the proposed action,
and sufficient to permit a reasoned choice.” Alaska Wilder-
ness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723,
729 (9th Cir. 1995) (internal citations and quotation marks
omitted). Applying the “rule of reason” standard, we find that
the range of action alternatives is unreasonably narrow
because the alternatives are virtually indistinguishable from
each other.
[11] First, each of the three action alternatives is primarily
based on the VERP program which does not adequately
address user capacity. Moreover, despite the supposed alter-
natives it proposed, NPS itself was aware that compliance
with NEPA would require consideration of different means
for addressing user capacity other than just VERP. For exam-
ple, an NPS attorney advised that “VERP not be the only User
Capacity framework analyzed in the Plan.” As indicated in
meeting notes, NPS recognized that “VERP is just a set of
words . . . and [the public is] expecting us to look at other
[user capacity] systems and they care about transparency.”
Perhaps most critically, NPS realized the “need for a reason-
able range of user capacity alternatives because the original
EIS did not look at alternatives for implementing carrying
capacity.” (emphasis added).
[12] Second, for the first five years, the interim limits pro-
posed by the three alternatives are essentially identical. As
indicated in NPS’s meeting notes, “[a]ll alternatives start with
levels of use consistent with current use levels.” see also
Friends of Yosemite, 439 F. Supp. 2d at 1099 (“These ‘limits,’
however, are simply the current physical capacity of the facil-
ities in Yosemite Valley . . . .”). Although alternatives 3 and
4 also include maximum use levels and annual visitation lim-
its, the action alternatives were not varied enough to allow for
a real, informed choice. See Yosemite I, 348 F.3d at 800 n.2.
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IV.
For the reasons stated, we conclude that the 2005 Revised
Plan does not describe an actual level of visitor use that will
not adversely impact the Merced’s ORVs as required by
Yosemite I and the WSRA. We further conclude that the
WSRA requires that the CMP be in the form of a single com-
prehensive document, dealing with all the required elements,
including both the “kinds” and “amounts” of use, and that,
therefore, the 2005 Revised Plan is deficient because it only
dealt with the two components that were struck down in
Yosemite I and was not a single, self-contained plan. Finally,
we conclude that the SEIS violates NEPA in both its “no-
action” and action alternatives. We remand to the district
court for further action consistent with this opinion.
In No. 07-15124, the government’s appeal from the inter-
locutory injunction is DISMISSED. In No. 07-15791, the
judgment of the district court is AFFIRMED.
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