November 2012 - Parks & Recreation - 28

LAW REVIEW

TITLE
S
TATE PARK MINER AL EXPLOR ATION IN LWCF PROJEC T

National Environmental Policy

this court cannot substitute its

Act (42 U.S.C. §§ 4321 to 4370a).

judgment for that of the agency,

The agency's approval, if granted,

unless the court ﬁnds the agency's

will be reviewable at that point.

construction inconsistent with the
statutory mandate or that it frus-

APA REVIEW

trates the purpose of Congress.

Pursuant to the Administrative Procedure Act (APA), the federal appeals
court would " determine whether
NPS's decision was arbitrary and capricious. " In so doing, the court's review would determine whether the
decision was " based on the relevant
factors " and " whether there has been
a clear error of judgment. " In so doing,
the court would conduct an exhaustive inquiry into the facts, but it would
not " substitute its judgment for that of
the agency. " Further, federal appeals
court noted that " [t]he LWCF does not
deﬁne conversion. " Moreover, in deﬁning a " conversion " within the context
of this particular case, the court would
" not impose its own construction of
the [LWCF] statute. " Instead, the federal
appeals court would limit its analysis
to whether NPS's " construction of the
statute was permissible. "
Since the agency was vested

The federal appeals court would,
therefore, determine " whether the
agency's determination that Phase I
testing would not constitute a conversion was a reasonable construction
of the Act. " In the absence of a statutory deﬁnition of " conversion " in the
LWCF, the court found the NPS had determined that " conversions generally
occur in four situations " :
(1) Property interests are conveyed for nonpublic outdoor recreation uses.
(2) Nonrecreation uses (public or

noted " [t]he acting regional director did
not articulate the basis for his decision
that the Phase I testing was permissible as a temporary nonconforming use
and, therefore, not a conversion under
the LWCF. " In the absence of an articulated basis for the NPS's decision, the
federal appeals court would " uphold
a decision of less than ideal clarity if
the agency's path may reasonably be
discerned. " In this particular instance,
the court found the only relevant situation considered a conversion by the
NPS was the second above-cited scenario, i.e., " where a non-recreational
use is made of a project area. " Accordingly, in the opinion of the court, Phase
I testing " plausibly could constitute a
conversion " if it constituted a " nonrecreational use. "

private) are made of the project
area, or a portion thereof.
(3) Noneligible indoor recreation
facilities are developed within the
project area without (National Park
Service) approval.
(4) Public outdoor recreation use
of property acquired or developed
with LWCF assistance is terminated

Temporary Intrusion
Under the circumstances of this case,
the federal appeals court found there
was " use of the park only in the strictest
sense. " Speciﬁcally, the court found the
" park's purpose is by no means turned
non-recreational " through Phase I
testing:

with policymaking power, it is au-

(LWCF Grants Manual, Chapter

thorized to ﬁll in the gaps that may

675.9.3(A)).

limit public use of the park, except

have been left by Congress, and

In this case, the federal appeals court

for the 10- to-12-week period when

The exploratory drilling does not

a 5,000-square-foot region will be
cordoned off. No permanent damage will come to the land and the
available supply of minerals available to public visitors will not be
depleted.

In the opinion of the federal appeals
court, " [a]n interpretation of the regulations holding such [Phase I testing]
activity a nonrecreational 'use' would
render virtually any temporary, de
minimis [i.e., lacking signiﬁcance or
importance; so minor as to merit disregard], nondestructive activity a conversion. " As characterized by the court,
the NPS " certainly does not read its own
26

Parks & Recreation

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November 2012 - Parks & Recreation

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