In the last several years, how the National Park Service ("NPS") allocates and distributes the available recreational use of the Colorado River corridor within Grand Canyon National Park has become increasingly controversial. Using the existence of a prolonged wait to receive a private river trip permit as a rallying cry, the private boater community now seeks to increase their level of use at the expense of those members of the public who would choose to take a professionally-outfitted trip.

It is important to first understand that the wait is to obtain a trip permit that enables control of an entire river trip, not to actually go on a private trip, which are usually last minute affairs for the majority of the participants. It is also important to note that thirty to forty percent of those who receive a private permit cancel their trip. Currently, professionally-outfitted use accounts for sixty-eight percent of the available recreational use allocation; self-outfitted use accounts for thirty-two percent. The average professionally-outfitted trip is seven days long and the average self-outfitted trip is eighteen days long. Roughly 19,000 people take a professionally-outfitted trip each year, while about 3,000 participate in a self-outfitted trip.

There are legitimate access issues regarding the way the NPS administers the self-outfitted use program that deserve attention, but a fundamental reality will continue for the foreseeable future: demand for Grand Canyon river trips of all types vastly exceeds the available supply. A central question at issue is, therefore, on what basis does the NPS allocate the available recreational use to the various competing user sectors? This article reviews the current situation and how it came about, and expresses the views of the Grand Canyon River Outfitters Association ("GCROA") as to how the current situation might be substantially improved. But first, to understand how things might change for the better, an understanding of the current situation and controversy is necessary.

In order to quantify and meter use of the Colorado River within the Park, since the early 1970's, the NPS has employed a regulatory system based on "user-days." A person on the river for one day is a user-day. There are presently 169,950 user-days available for recreational use along the Colorado River within Grand Canyon National Park. Of this number, 115,500 are allocated to that portion of the general public wishing to accompany a river trip organized and led by one of the Park's sixteen licensed river concessioners. These concessioners, who operate under contract with the NPS, are each assigned a fixed user-day allocation by contract, and are then required to make this use available on a non-discriminatory basis to the general public, in the form of professionally-outfitted river trip packages.

The balance of the recreational river use allocation, 54,450 user-days, is made available directly by the NPS to those wishing to do a "private" or non-commercial river trip, relying on their own skills and equipment in order to navigate the Colorado River's world-class whitewater.

A HISTORICAL LOOK AT THE ALLOCATION ISSUE

Until the late 1960s, rafting down the Colorado River through the Grand Canyon was an experience limited to only a very, very small percentage of the population. Then, in response to increasing visitation, in order to protect Park resources and ensure a quality visitor experience, the NPS developed a system of allocating recreational use of the river through the user-day system. The NPS allocated a certain number of user-days to members of the public choosing to use professional outfitters, and a certain number of user-days to individuals running the river on their own.

As an interim measure, the NPS first allotted 105,000 user-days for professionally-outfitted recreational use and 7,600 user-days for self-outfitted recreational use. In 1973, the NPS reduced the allocation for professionally-guided recreational use to 89,000 user-days, but maintained the 1972 interim allocation for private use. Although the NPS then recognized that it could set either a higher or lower carrying capacity, the NPS chose this user-day level because it had "observed its impact on the canyon, and no irreversible damage seem[ed] to have occurred."

In early 1976, following a three-year research program on visitor use and resource impacts, the NPS began to prepare a comprehensive management plan for the river, termed the Colorado River Management Plan ("CRMP"). In the summer of 1976 and the spring of 1977, however, the NPS's approach of allocating recreational use via the user-day system was challenged in two lawsuits brought by private boater interests. Among other relief, these parties sought to prevent the NPS from extending or issuing new concession permits, as well as an order directing the NPS to revise the allocation, providing for maximum utilization by private users. In both cases, the court upheld the NPS approach, and on appeal, in a case called Wilderness Public Rights Fund v. Kleppe, 608 F.2d 1250 (9th Cir. 1979), the United States Court of Appeals for the Ninth Circuit consolidated the two cases and affirmed the lower court judgments.

As is happening today, private boater advocates at the time attempted to frame the allocation dispute as a conflict between private citizens interested in running their own trip, and the Park's licensed river running concessioners.

In 1979, following an extensive public involvement program, the 1979 CRMP and its accompanying Environmental Impact Statement ("EIS"), prepared in accordance with the National Environmental Policy Act, were released for public comment. The 1979 CRMP provided for significant increases in the number of non-commercial participants, number of trips and user-days. The new total use and allocation was proposed to be based on the number of trip launches and group sizes, rather than on the number of user-days, as had been the case in the past. This transition was part of the controversial proposal to phase out motorized use that was also including in the draft plan. In addition, the new numbers reflected a lengthening of the summer season from about four to six months. Based upon an estimated average trip length of ten days for commercial trips and sixteen days in the summer season and eighteen days in the winter season for non-commercial trips, the 1979 CRMP suggested an allocation apportioning 115,500 user-days, or sixty-eight percent, for members of the public contracting with concessioners and 54,450 user-days, or thirty-two percent, for private boaters.

The NPS stated at the time that this the new allocation ratio represented the agency's "best estimate based on experience and on interpretation of the available data." These factors included: the absence of a means to count the number of potential passengers turned away by concessioners because certain dates are full, duplicate applications for private trips, and false applications for private trips. The 1979 CRMP, however, was never implemented. Instead, Congress responded to the agency's proposal by passing an amendment offered by Senator Orrin Hatch (R-Utah) to the 1981 Department of the Interior appropriations bill that prevented the National Park Service from moving forward with its proposed phase-out of motorized river trips. In response, the NPS released a revised CRMP in 1981, which adopted the 1979 recommended user-day numbers, a seventy-five percent increase in total annual use over the 1973 level. The NPS's decision to raise the use level was based on its conclusion that the 1973 use level was not having a significant long-term impact on the river environment.

The 1981 CRMP sought to address private boater concerns by sticking with the earlier recommended 616% increase in user-days for self-outfitted trips (to 54,450 user-days). Professionally-outfitted boaters were granted a 29% increase in user-days (to 115,500 user-days). The NPS stated that these numbers reflected historic use levels, trip length requirements, increases in demand for the private, non-commercial allotment, and a increase for the professionally-outfitted user sector. The NPS further believed at the time that the new commercial to non-commercial ratio of about 2:1 would more appropriately accommodate the demand of river runners for non-commercial trips. In the process of reaching its final decision, the NPS considered various alternatives, including maintaining use at 89,000 professionally-outfitted user-days and 7,600 self-outfitted days, increasing use levels more dramatically, and decreasing use levels.

In March of 1987, the NPS began a review and revision of the 1981 CRMP. During the planning process, the NPS identified and considered a number of possible alternatives for adjusting allocations, including reallocating user-days between "the commercial sector" and "the private sector." In reviewing and considering the access/allocation issue, however, the NPS found that, while the allocation for professionally-outfitted boaters was being fully utilized, the available allocation for self-outfitted boaters exceeded actual self-outfitted boater use by twenty-five percent. The NPS determined that this under-utilization of the private allocation was due to deficiencies in the private permit system and to the fact that self-outfitted boaters were taking smaller and shorter trips than actually permitted under NPS policy at the time.

Consequently, when the NPS issued a final revised CRMP in September 1989, it decided to maintain the levels of use and the professionally-outfitted/self-outfitted allocation from the 1981 CRMP and to improve access for the self-outfitted boating community by addressing the underutilization of the private allocation. It did so by changing aspects of the private permitting system and by modifying certain operational requirements, rather than by reallocating use.

In 1991, as recommended in the Environmental Assessment ("EA") accompanying the 1989 CRMP, the NPS established the Colorado River Constituency Panel, an advisory panel comprised of representatives of the NPS, other federal resource agencies, the private boating community, concessioners, environmental groups, the scientific community, river guides, and fishermen. The role of the panel was to "[r]epresent the full range of constituent groups in the review of annual monitoring results; [a]ssure that information flows back to constituent groups through the various representatives; [p]rovide park management a means of direct communication with the various constituents and the means of responding to their needs; [and] [p]rovide recommendations to management that will be considered during management's decision making process." The panel held its first meeting on January 10, 1991, with meetings held about twice a year thereafter. Although not raised at every meeting, the allocation issue was a frequent topic of discussion.

By the end of 1994, the private waiting list, started in 1980, had grown to 4,964, and the wait for new applicants was estimated at eight years. An internal NPS memorandum noted that "[c]ontinuation of [the] current application/waiting list system will indemnify the status quo and remove any possibility of changing the system for 10 years following the completion of the CRMP review process." The memorandum concluded that "[t]he current waiting list/permit system has not and is not meeting the requirements of a rapidly growing recreational public and will not improve over time. This system . . . is increasingly the target of complaints due to the unrealistic waiting period." Unfortunately, little was done at the time to improve the private permit distribution system, despite its growing failure at meeting the needs of the self-outfitted boating community.

In September 1997, the NPS formally initiated the process for revising the 1989 CRMP and began to revisit the allocation issue and the overall growth in demand for river trips. As part of this process, the NPS identified several objectives regarding access and allocation of use: improving access for all who seek a Grand Canyon river trip; evaluating the impacts of current use levels and seasonal distribution of use; and evaluating alternative access systems. Early in this process, Park management observed that, while it would closely evaluate the user-day method of allocating use and explore alternative methods of launch scheduling that might improve public access and protect resources, "[u]se levels and distribution between groups [would] not be arbitrarily adjusted based on perceptions." The NPS also declared that the allocation of use issue could not and would not be addressed in isolation, but rather determined in the context of other inter-related issues, such as the distribution and volume of use, the non-commercial permit system, the appropriate spectrum of outfitter trips and services, and wilderness management. Park management established workgroups to focus on access and on the distribution and volume of use, and implemented a research program, consisting of a visitor use study, observation, and a computerized trip simulator designed to develop information relevant to making decisions regarding access and allocation of use.

The Park Superintendent put this process on hold in February 2000, however. According to the Superintendent, this suspension of the planning effort was necessitated by a "lack of available fiscal and human resources to complete a comprehensive planning effort," an "inability to resolve many of the issues prior to resolution of the park's wilderness recommendation," polarization among backcountry and river user groups and interests that had intensified to the point of affecting the park's ability to reach an acceptable resolution, and the existence of other projects of "higher importance" that needed to be accomplished and were competing for the Park's limited resources. The NPS concluded that it could not accomplish the comprehensive EIS with the available resources and that, given the limited resources, there were higher priority items concerning management of the Park that warranted attention.

The decision to halt the Colorado River Management Plan revision process was controversial, and quickly prompted two lawsuits brought by private boaters and environmental groups challenging the NPS's management of the river corridor. In short, these lawsuits sought a resumption of the planning process, an immediate reallocation of use involving a shift of use from professionally-outfitted trips to privately-outfitted trips, an injunction prohibiting renewal or extension of the existing river-running concessions contracts (which expire at the end of 2002) until such time as a new plan could be completed, and the termination of all motorized use on the river. While the parties are still awaiting a decision in one of the cases, the parties negotiated a settlement agreement in the other case. GCROA was an active participant in both lawsuits, and supported the settlement among the parties. (For more on this litigation and the settlement, go here.)

Under the terms of the settlement agreement, the NPS agreed to restart work on the CRMP revision process and implement a revised plan by December 31, 2004. During the planning process, the agreement requires the NPS to consider, among other things: (i) the appropriate level of visitor use on the Colorado River consistent with resource protection and visitor experience goals; (ii) the allocation of use of the Colorado River between commercial and non-commercial users, the allocation of use between different types of commercial users (e.g., between motorized and non-motorized trips), and alternatives to the current system of commercial/non-commercial allocation; (iii) the impacts of motorized watercraft, potential mitigation of those impacts (including technological improvements to motors), and a reasonable range of alternatives with respect to the current ratio of motorized craft to non-motorized craft; and (iv) the range of services to be provided to the public. This process is now ongoing.

ACCESS AND ALLOCATION -- QUESTIONS TO BE ADDRESSED

Questions regarding access to the Colorado River within the Park and the allocation of its recreational use that the NPS must address in the course of the upcoming river management planning process include:

· How can the resource best be protected and what is the appropriate level of visitor use for the Colorado River corridor within Grand Canyon National Park, given paramount resource protection requirements and very high visitor experience quality goals?

· How should the recreational river use made available be apportioned among competing user groups, including those who seek the services of a licensed river outfitter and those who wish to self-outfit, or conduct their own private Grand Canyon river trip?

· How should private river running permits be distributed? The current "waiting list" system has resulted in excessive and highly unpopular wait times for trip leaders seeking to obtain a permit for their private party. Should forced waits continue as the primary means used by the NPS to ration such permits, or is there a better way? (The waiting list system and its attendant controversy are unique to the Grand Canyon. All other permitted rivers that support multi-day trips in the western United States use some form of a lottery system to distribute private river running permits.)

· What is the appropriate spectrum and mix for the various river trip types or styles to be made available? To what extent should motorized river trips continue to be offered? Motorized trips have been publicly available in the canyon for over the past five decades. Three out of four of today's professionally outfitted river trip participants utilize the motorized trip option.

· How should river trips be scheduled and otherwise directly managed to protect the resource and to produce the best possible on-river experience for the visiting public?

NPS LEGAL MANDATES

How the NPS answers these questions will primarily be a matter of agency discretion. In fact, the NPS has no mandatory duty under any law to allocate recreational use of the Colorado River through the Park. Rather, the NPS must administer the park in accordance with the NPS organic legislation (which created the NPS), the Grand Canyon National Park enabling legislation (which established the Park), and the NPS concession laws. It is the combination of these and other public laws, such as the National Environmental Policy Act, that informs whether and how the river will be allocated among various user groups, such as those seeking professionally-guided tours, those undertaking a scientific inquiry, those who are disabled, and those who wish to participate in their own self-guided trips.

The most significant legislative mandate with respect to management of recreational boating on the Colorado River in Grand Canyon National Park is the NPS Organic Act of 1916. This statute charges the NPS with a dual mandate to promote and regulate the use of the national parks "by such means and measures as conform to the fundamental purpose of parks, monuments and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment for the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."

The Grand Canyon became part of the National Park System in 1919, when Congress expanded and upgraded the Grand Canyon National Monument established in 1908 by President Theodore Roosevelt, thereby creating Grand Canyon National Park. The Act of February 26, 1919 "reserved and withdr[ew] from settlement, occupancy, or disposal under the laws of the United States and set apart as a public park for the benefit and enjoyment of the people" land in the State of Arizona under the name of Grand Canyon National Park. The Act further directed that the NPS assume the responsibility for the administration, protection, and promotion of the Park, and required the NPS to grant commercial concessions "for hotels, camps, transportation, and other privileges of every kind and nature for the accommodation or entertainment of visitors." Act to Establish the Grand Canyon National Park, 40 Stat. 1175, 1177, section 2 (codified at 16 U.S.C. §§ 221 et seq.).

Within the confines of the Organic Act's dual mandate, the NPS has been given broad authority by Congress to manage parks and to determine what resource use opportunities and levels of use are appropriate.

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