NPS CONSIDERATION IN ALLOCATING USE

Consistent with its broad authority to manage Park resources, the NPS considers a wide range of factors in allocating recreational use. Many who are critical of the current allocation erroneously assume that demand is the only relevant factor for NPS consideration. This assumption, however, ignores the relevant mandates for the NPS's management of the Park, and also fails to reflect the Park's long history of administration of recreational use. In fact, although the demand for professionally-outfitted trips far exceeds the demand for self-outfitted trips, GCROA must admit that demand is only one of many factors that the Park has considered in allocating use of the Grand Canyon's limited resources.

As required by its organic statute, the NPS regulates the type and amount of river recreation use "to assure that the degree and type of use is sustainable, and that resource impacts are within acceptable limits for long-term resource protection." The NPS also manages the Park in accordance with the purposes set forth in the 1919 statute that established the Park, which set apart the area as "a public park for the benefit and enjoyment of the people." The NPS has explained that "[s]cientific research, public input, historic considerations, and legislative mandates have placed the current levels of commercial and non-commercial user-days at an aggregate level of 169,950" and that it has the right "to add or subtract, allocate or reallocate user-days based on review of all relevant factors." Accordingly, in addition to demand, Park management has, in the past, based the allocation of use in part on other factors, including: the desired resource protection and visitor experience quality; the condition of the natural and social resources within the river corridor; and historic use levels and their impact on park resources.

Because the allocation is administered "in the interest of the greatest good to the general public," the allocation has reflected Park management's long-held belief that concessioners provide the best practical means of access to the river for the vast majority of Americans. Indeed, for thirty years, the NPS has recognized the importance of the commercial outfitters and their irreplaceable role in providing access to a Grand Canyon river experience for the majority of the public. This is, in fact, why the Park has river concessioners.

In 1975, the head of the NPS's Division of Visitor Services stated, on behalf of the Interior Secretary, that the NPS recognized that the river concessioners offered "the only means of access" for those "who do not wish to make a sizeable investment in equipment, have no desire to gain proficiency in boating skills or are not acquainted with a boat owner," and therefore that, "for the majority of Americans, a white water trip is more accessible through a commercial outfitter than by any other means." The NPS reiterated its position in a 1975 letter from NPS Director to a member of Congress:

[W]e believe that the commercial outfitters provide the only practical means of access . . . for the vast majority of Americans. The 50 to 50 ratio proposed by a few would be unfair to people . . . who could make a river trip only with an outfitter. No one has an accurate count of the number of private boaters in the country, but certainly it is negligible as compared to the balance of the populace.

And, in June 1994, the head of the NPS, Director Roger Kennedy, discussing the NPS's administration of the allocation, explained:

The present format authorizes private river runners, who are a very small percentage of the interested public, to utilize a fairly large percentage (32 percent) of the total allocation. It does not seem appropriate to make a change because of the requirement to endure a wait on the Private River Runner list. A significant alteration to the allocation would still result in a substantial wait while limiting the number of non skilled visitors who could experience such an activity.

Thus, he continued, "[t]he opportunities must be evaluated in respect of the recreational desires of all publics in relation to the need for resource protection." As the NPS Chief of Concessions has stated, then, the allocation decision is "really a question of what is best for the Park and the overall public."

THE "WAIT LIST" IS A POOR INDICATOR OF RELATIVE DEMAND

The "wait list" for private boaters, highlighted by many who are critical of the current allocation as justification for increasing the non-commercial allocation at the expense of the commercial sector, is neither a sound reflection of private demand nor an indication of relative demand for self-outfitted trips versus professionally-outfitted trips. Moreover, arguments in favor of increasing the non-commercial allocation at the expense of the commercial allocation ignore the fact that demand has no doubt increased for both those interested in professionally-outfitted trips under the auspices of a NPS concessioner and those who wish to acquire a permit and organize their own trip. As the NPS recognized during the CRMP revision process initiated in 1997, "the demand for access by all members of the public (those who desire self-outfitted trips, and those who desire commercially-outfitted river trips) has increased since the last Colorado River Management Plan revision."

To the extent that relative demand is a factor considered by the NPS in allocating use, the wait list, as the NPS and other stakeholders have long recognized, is a poor indicator of actual demand for self-outfitted river trips. One of the primary reasons for this is that only the trip leader, rather than the names of all trip participants, is placed on the waiting list. This encourages duplicate applications, where individuals interested in taking a trip together will all put their names on the waiting list, thereby enabling the participants to take multiple trips. In addition, the NPS has observed that a significant percentage of people on the waiting list put their names on the list (or are children whose names were placed on the list by their parents) not necessarily ever planning on taking the trip. All of these factors, according to the NPS, "artificially inflate the non-commercial waiting list and make it a poor indicator of actual demand." Indeed, in December 1997, the NPS observed exactly how widespread this situation had become: a full twenty-one percent of the names of the waiting list shared either a common address or phone number.

The problem with using the wait list as an indicator of demand for self-guided trips also has been observed by stakeholders in the Park management process. Some, including members of the private boating community, have recognized that people "don't really have to wait 8 [or ten or twenty] years to go on a non-commercial trip, they only have to wait to be the permit holder" and that a number of people "often go together every 2-3 years by making reverse invitations to each other depending on who gets a permit." Revealingly, according to a 1998 NPS study, "commercial boaters tend to 'plan' their trip in advance longer than private boaters (the majority for commercial boater planned between nine months and two years ahead for the trip while the majority of private boaters planned for one to six months ahead.") Others have observed that a number of private boaters know how to use the system and go every year, one stating that one of the consequences of the existing wait list system is that boaters not on the wait list "frequently run the river annually." A January 7, 2000 letter from a private boater to the River District Ranger exemplifies the problem with using the waiting list to infer the level of demand for self-outfitted trips:

I am the holder of a permit to run a private river trip in the Grand Canyon in May of 2000. . . . Imagine my dismay when I learned that my trip leader was also finally issued a permit . . . . Not only are our permits for the same summer, they're in the same month! As all of the boatmen of my acquaintance are the same as those he will invite on his trip, it becomes effectively impossible for me to organize my trip as I had planned.

Statistical analysis of the existing data further illustrates the point. An analysis of publicly-available non-commercial river trip participant lists shows that, between April 16, 1995 and September 6, 2000, more than one out of every ten boaters (11.5% or 1,893 out of 16,467) running the river on a self-outfitted trip went down the river more than once in that five-year period alone, some running the river as many as ten times.

The suggestion that the existence of the waiting list demonstrates that user-days should be taken from members of the public interested in professionally-outfitted river trips and instead allocated to those interested in self-outfitted trips also ignores the fact that demand for professionally-outfitted trips also has increased substantially. An oft-repeated refrain from some in the private boater community is that shifting part of the allocation for professionally-outfitted trips to private boaters must be warranted because, while non-commercial do-it-yourself rafters have to wait for years for a permit, someone interested in a professionally-outfitted trip can purchase one for the next season. The suggestion is that there must therefore be a surplus of professionally-outfitted trips.

The fact is, however, that the commercial allocation is as fully subscribed as practicable. Indeed, evidence shows that demand for professionally-guided trips exceeds availability, and that concessioners have turned away members of the public interested in taking a professionally-guided trip or established extensive waitlists (although very few people on those lists actually gain access due to low cancellation rates for professionally-outfitted trips). As Park management has found, however:

[T]here is no way of determining how long a person has waited to arrange their schedule or to save enough money to go on a commercially outfitted trip. There may be many people with the desire to go on a commercial river trip, however no list of such people exists, thus they are not being counted. There is also no way of telling how many commercial passengers have been turned away by one or more river concessioner [sic]. The fact that commercial companies turn prospective customers away every year due to allocation limitations would seem to indicate excess demand in that sector too.

For all of these reasons, it would be wrong to conclude that the mere existence and extent of the wait list for self-outfitted trips demonstrates that the current allocation is inappropriate and that use must be shifted from professionally-outfitted trips to self-outfitted trips. The issue of the proper allocation of the Colorado River resource through the Grand Canyon for boating use is not a simple matter of resolving a dispute between self-guided recreational users of the river on the one hand and "profit-seeking," commercial interests on the other. Rather, it is a decision that the NPS must make in accordance with its legislative mandates and one that is in the ultimate interest of the public-that is, all the people as well as future generations. As the federal appellate court stated in its decision in the lawsuits challenging the allocation in the 1970s:

Throughout these proceedings Wilderness Public Rights Fund has persisted in viewing the dispute as one between the recreational users of the river and the commercial operators, whose use is for profit. It asserts that by giving a firm allocation to the commercial operators to the disadvantage of those who wish to run the river on their own the Service is commercializing the park. The Fund ignores the fact that the commercial operators, as concessioners of the Service, undertake a public function to provide services that the NPS deems desirable for those visiting the area. The basic face-off is not between the commercial operators and the non-commercial users, but between those who can make the run without professional assistance and those who cannot.

CONCLUSION

The majority of the public that depends upon the availability of professionally-outfitted trips under the auspices of a NPS concessioner could be affected adversely by any allocation decision. In addition, altering the allocation can affect the visitor experience by impacting the frequency of visitor contact, competition for campsites, or attraction site congestion. Consequently, it would be poor public policy, and contrary to law, if the NPS were to merely act as if the matter were simply adjudicating a dispute between only two identified groups.

The Settlement Agreement reached through a cooperative effort by the NPS, Grand Canyon Private Boaters Association, National Parks Conservation Association, GCROA, and others, provides for an open, public planning process that will involve input from a broad range of affected or otherwise interested entities. Pursuant to the agreement, the NPS will review the allocation of use between commercial and non-commercial users of the Colorado River within Grand Canyon National Park. In sum, the Settlement Agreement commits the NPS to update the CRMP and review the allocation of use between commercial and non-commercial users of the Colorado River within Grand Canyon National Park, in accordance with the agency's statutory mandates, in an open, public manner, and according to a reasonable, fixed timeframe.

GCROA supports non-commercial boating. Indeed, those who have been down the river realize the comradeship among the groups, often helping one another if need be. Yet, in addressing the allocation issue and the issue of access for private boaters, we all must appreciate that the NPS must manage Grand Canyon National Park in accordance with the purposes established by Congress and in the overall public interest, and not in the interest of any particular group of users. We also must appreciate that the Grand Canyon is a resource that is in very high demand by all types of users, and, as a result, the NPS must allocate and ration its use.

The question of providing increased access opportunities to self-guided river trips through the Grand Canyon involves three distinct issues: (1) establishing the overall size of the recreational use allocation; (2) establishing appropriate criteria upon which to base the apportionment of this use among the various user groups and then apportioning that use accordingly; and (3) designing and implementing a system for distributing and administering such use through the issuance of permits.

The use of any scarce public resource like recreational river use at the Grand Canyon must be allocated among the various user groups. As in any decision to allocate a public resource, it is incumbent upon the managing agency, in this case the NPS, first to identify the overall size of the resource to be distributed. Second, the agency must identify what criteria will govern the allocation of the resource among the various user groups. Third, the agency must develop sufficient information to make an informed, rational, and defendable decision. Finally, the agency must make its decision in accordance with its statutory authority and in consideration of the available information. GCROA believes that the NPS must, if it decides to explore the "allocation" and "demand" issues, pursue each of these tasks in due course.

GCROA's members support allowing self-outfitted boaters to use their full allocation. GCROA and its members would be supportive of efforts to develop a new private permit system that can more effectively provide reasonable access in the face of the demand pressures that will continue. GCROA, however, does not believe that it would be appropriate for the NPS to reduce the number of user-days currently allocated for professionally-outfitted public use in order improve access to the river for self-outfitted boaters. The vast majority of the American public interested in experiencing the Grand Canyon by river is either not interested or not capable of undertaking such a challenge without the assistance of an experienced professional outfitter. Such professional outfitters ensure that a greater part of the public can experience the excitement of a Grand Canyon river trip.

With respect to the Colorado River through the Grand Canyon, the commercial use distribution system has operated and continues to operate effectively under demand pressures. It provides good access despite heavy demand for trips through effective rationing. On the other hand, the private permit distribution system has proven itself unable to operate effectively under demand pressures. The waiting list system is exceedingly poor at rationing use in a manner that produces reasonable access to the river.

GCROA believes that the task of solving the access problem faced by private boaters should be to address the current failure of the private permit distribution system. This can only be done by examining alternatives to the existing system, with a view toward exploring whether other alternatives might provide better access to the river for private boaters even given the current high demand that exists for this type of experience. There are ways to provide reasonable access even under intense demand pressures. GCROA believes that a dramatically more effective private trip permit distribution process can and must be designed and implemented. A new private distribution system would vastly improve the situation self-outfitted boaters face today when they wish to obtain a Grand Canyon river use permit.

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