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Lake Mohave Boat Owners Ass'n v. National Park Serv.

Citation: 28 ELR 21016
No. 97-55400, 138 F.3d 759/(9th Cir., 03/06/1998)

The court upholds the Secretary of the Interior's approval of increased dock fees charged by a private marina operator at the Lake Mead National Recreation Area. The court first holds that, in approving the operator's rate increase requests, the Secretary did not act arbitrarily or capriciously in violating four separate internal procedures. First, in changing the list of marinas against which the resort was compared, there was no clear error of judgment on the part of the Secretary in disregarding marinas deemed no longer comparable. Second, the index pricing system was not the only method available to the Secretary, and nothing in the National Park Service's manual indicates that the Secretary must use indexing in lieu of one of the other methods. Third, in converting the "per slip" fees into "per foot" fees, the Secretary took the scaled rate schedule into account and used a 15-foot hypothetical boat only for slips up to that size. Fourth, in abandoning the use of the averaging methodology, the Secretary found that averaging would not lead to an accurate comparison rate, because averaging assumed that each facility was equally similar to the operator's resort. None of the comparable facilities was exactly similar, and the resort's facilities were more comparable to the facilities at the high end of the range.

The court then holds that the Secretary did not act arbitrarily or capriciously in approving the rate increases without taking into account pollution levels at the lake. The National Park System Concessions Policy Act does not mention protection of the environment as a factor to be considered by the Secretary when determining a reasonable profit for the concessioner. In addition, the record reflects a paucity of evidence that any pollution problems were of such magnitude that the Secretary should have taken them into account in setting rates.

Counsel for Plaintiff
Roger N. Golden
Law Offices of Roger N. Golden
9300 Wilshire Blvd., Beverly Hills CA 90212
(310) 203-8810

Counsel for Defendants
John F. Daly
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Trott and Hawkins, JJ.