Sokol v. Kennedy

No. 99-1804NE (210 F.3d 876) (8th Cir. April 10, 2000)

ELR Digest

The court holds that the National Park Service violated the Wild and Scenic River Act's requirement to select land according to the outstandingly remarkable values standard when it established the Niobrara Scenic River area boundary. The court first holds that the Park Service's boundary selection for the Niobrara Scenic River violated its statutory duty under the Wild and Scenic River Act. Although 16 U.S.C. § 1274(b) allows the Park Service complete discretion in choosing land, 16 U.S.C. § 1281(a) requires the Wild and Scenic River System to be administered in such a manner as to protect and enhance the values that caused it to be included in the system. Here, the Park Service failed to identify and seek to protect the outstandingly remarkable values of the Niobrara Scenic River area. The Park Service consistently analyzed resources according to their significance and importance, which is the legal standard for selecting park land, but such terms are not synonymous with outstandingly remarkable. Thus, the Park Service used the wrong standard from the beginning. Moreover, the Park Service's post hoc redefinitions of "significance" and "importance" to mean "outstandingly remarkable" were not sufficient to correct past errors on which the Park Service's boundary alternatives and record of decision were based. These redefinitions did not affect earlier land evaluations, and the Park Service made no attempts to re-examine its prior work according to the outstandingly remarkable standard. The court, therefore, reverses and remands the decision of the district court with instructions to remand the case to the Park Service so that it can select boundaries that seek to protect and enhance the outstandingly remarkable values of the Niobrara Scenic River area. The court, however, upholds the district court's holding that the Park Service did not fail to establish sufficiently detailed boundaries. The Park Service was not required to mark or post the boundaries physically along the river.

The full text of this opinion is available from ELR (10 pp., ELR Order No. L-203).

Counsel for Appellant
Bartholomew L. McLeay
Law Offices of Bartholomew L. McLeay
The Omaha Bldg.
1650 Farnam St., Omaha NE 68102
(402) 346-6000

Counsel for Appellees
Sally R. Johnson, Ass't U.S. Attorney
U.S. Attorney's Office
487 Federal Bldg.
100 Centennial Mall N., Lincoln NE 69508
(402) 437-5241

[30 ELR 20469]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]