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Simmons v. Smith

United States Court of Appeals, Eighth Circuit

April 30, 2018

Lee M. Simmons Plaintiff- Appellant
Paul Daniel Smith, [1] in his official capacity as Acting Director of the National Park Service; Ryan Zinke, in his official capacity as Secretary of the United States Department of the Interior; United States of America Defendants - Appellees

          Submitted: November 14, 2017

          Appeal from United States District Court for the District of Nebraska - Omaha

          Before BENTON, SHEPHERD, and KELLY, Circuit Judges.


         Lee M. Simmons appeals the decision of the district court[2] granting summary judgment in favor of the National Park Service (NPS). Simmons argues that NPS violated § 706 of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in establishing the boundaries of the Niobrara Scenic River Area (NSRA), both generally and with respect to his property. Simmons further argues that NPS violated the APA by treating him differently than his neighbors and acting in bad faith.


         The Niobrara River runs through northern Nebraska before flowing into the Missouri River along the border between Nebraska and South Dakota. In 1991, Congress enacted the Niobrara Scenic River Designation Act, Pub. L. No. 102-50, 105 Stat. 254 (codified in relevant part at 16 U.S.C. § 1274(a)(117)), which amended the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. §§ 1271-87, to place certain portions of the Niobrara under the administration of the Secretary of the Interior. Congress further directed the Secretary, "[a]fter consultation with State and local governments and the interested public, " to "establish detailed boundaries" for the NSRA. 16 U.S.C. § 1274(a)(117), (b). The Secretary delegated this authority to NPS. By statute, "prior to the publication of boundaries" pursuant to § 1274(b), the preliminary boundaries were established at "one-quarter mile from the ordinary high water mark on each side of the river." Id. § 1275(d). These "[p]rovisional boundaries remain[ed] in place until amended by the action of the administering agency." Sokol v. Kennedy, 210 F.3d 876, 877 n.3 (8th Cir. 2000). However, that default does not "limit the possible scope of the study report to address areas which may lie more than one-quarter mile from the ordinary high water mark on each side of the river." 16 U.S.C. § 1275(d).

         Simmons owns land on the banks of the Niobrara. In the instant case, we are concerned particularly with his land on the north side of the river in what is called the Sparks Quadrant. Among other things, Simmons uses his land to operate a recreational outfitter business-called Niobrara River Ranch-which offers both canoeing and lodging. Simmons's land is situated directly downriver from the Berry Bridge, a major launch point for boats on the Niobrara, and includes both a large stand of ponderosa pines and substantial river "viewshed"-a term that refers to the area that is visible to a canoeist paddling down the river. Because Simmons's land is on the bank of the Niobrara, the preliminary boundary for the NSRA included a substantial portion of his property, namely all of the property within one-quarter mile of the river. Simmons has an interest in determining how much of his land falls within the final boundary determined by NPS, because the WSRA places limitations on certain projects and the use of land that falls within a designated area. See 16 U.S.C. §§ 1278, 1281(a), 1283.

         In 1992, NPS began the process of creating a General Management Plan (GMP) that articulated detailed, specifically-tailored boundaries for the NSRA. This process lasted over four years, and, in 1996, NPS promulgated its final boundary designation. This boundary was challenged by David Sokol, another landowner on the Niobrara (who is not a party in the instant litigation). After the district court granted summary judgment to NPS in that case, Sokol appealed to this court, and we reversed. We held that the standard used by NPS in its decision making did not satisfy the WSRA's declaration of policy. Sokol, 210 F.3d at 879. That provision of the statute explains:

It is hereby declared to be the policy of the United States 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 protected for the benefit and enjoyment of present and future generations.

16 U.S.C. § 1271. In light of that statutory language, we held that the boundaries of the NSRA had to be drawn in such a way as to "protect and enhance the outstandingly remarkable values that caused the Niobrara River area to be included in the [Wild and Scenic River] System." Sokol, 210 F.3d at 879. We found that NPS had acted in violation of its statutory mandate by focusing on protecting merely "significant" and "important" values, and we remanded the case with instructions that "the Park Service should select boundaries that seek to protect and enhance the outstandingly remarkable values of the Niobrara Scenic River Area." Id. at 879-81.

         NPS started over. They engaged in a second boundary-drawing process, led by Paul Hedren, the NPS Superintendent of the Niobrara. This process began in 2000 and involved public meetings, conversations with local landowners and other stakeholders, and the compilation of scientific evidence. Throughout the process, in accordance with our opinion in Sokol, NPS sought to identify those aspects of the Niobrara that qualified as outstandingly remarkable values (ORVs) and to draw boundaries accordingly. NPS made extensive ORV findings, noting the presence of five types of ORVs in the NSRA: scenic, recreational, geologic, fish and wildlife, and paleontological (in the "other" category). See 16 U.S.C. § 1271. NPS also concluded that the historic and cultural values of the river-while interesting and important-were not outstandingly remarkable. See id.

         NPS identified two of these ORVs-recreational and paleontological-only in specific locations. A number of recreational values were enumerated including canoeing, kayaking, and tubing. For paleontological values, NPS noted that the river had been called "the best bone hunter's river in the world" and identified 15 internationally significant fossil sites, 37 nationally significant sites, and 106 regionally significant ones. These values were found to exist in discrete locations throughout the region. But the other three ORVs-scenic, geologic, and fish and wildlife-were found to exist more broadly. For scenic values, NPS determined that the designated section of the Niobrara "retains a timeless natural character with a splendid and nationally recognized mixing of distinct ecosystems, some at their farthest continental range." Its finding on geologic values was based on the uniqueness and abundance of the Niobrara Valley's varied waterfalls and the "inextricable links to the river's flora, fauna, and paleontology" that its geological features foster and enhance. As to fish and wildlife, NPS noted that the Niobrara Valley possesses a "profusion of habitats and animal species" that are an "outstanding example of Great Plains biological diversity, " that this diversity fosters "hybridization and evolution, " and that portions of the river are "potential critical habitat[s] for several threatened or endangered species." Thus, NPS determined that these three values existed "rim to rim" across the designated section of the river, encompassing over 150, 000 acres of the Niobrara Valley.

         On the basis of these ORV determinations, the draft GMP laid out three "boundary alternatives." Boundary Alternative 1 represented the preliminary boundary created by the statute. It was not preferred by NPS, among other reasons, because it was "not tailored to provide maximum protection to the most outstandingly remarkable values." Boundary Alternative 2 was drawn to favor scenic and paleontological values specifically, with a diminished focus on the other values. This boundary was not preferred, but NPS noted that it did "meet congressional intent for Wild and Scenic river protection." Boundary Alternative 3-NPS's preferred boundary line-focused on protecting all five of the identified ORVs "as equitably as possible" and, therefore, also satisfied congressional intent.

         In the process of drafting and modifying these boundary alternatives, NPS consulted a wide range of organizations with interests in the Niobrara Valley. In 2001, NPS made presentations to many of these groups and revised the GMP (including the boundary alternatives) based on the suggestions received. In 2002, NPS made further revisions and alterations based on feedback after public review. This process stretched into January 2003. On January 9, 2003, the location of Boundary Alternative 3 on Simmons's land was altered to include approximately 25 additional acres on the North bank of the Niobrara in the Sparks Quadrant. Boundary Alternative 3-as relevant to this appeal-underwent no further changes, and NPS selected this Alternative as the final boundary for the NSRA. In 2005, NPS published ...

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