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I've been following the Ursack appeal and copied below is the Court's opinion from the Ursack website. Denies the appeal but seems inclined to force Yosemite and Seki to re-institute the testing process or that's how Ursack characterizes the opinion.
It's long and sorry if this was posted and I missed it during the crash
May 9, 2011
The federal court of appeals has upheld SIBBG's 2007 decision to ban Ursack's older model (green) S29. In a 26 page published opinion (opinions are only published if the Court thinks they are important), the three appellate justices deferred to the decision making authority of Yosemite and SEKI. A summary of the opinion follows. Notably, the Court did not rule on Yosemite and SEKI's 2010 decision not to test or approve any new products--including the Ursack S29 AllWhite. The Court seemed to suggest that it might be arbitrary and capricious (i.e. wrong) to refuse to evaluate any new or improved bear resistant products, and stated that the remedy for Ursack was to file a new lawsuit. We hope that is not necessary and await the new regulations, if any, coming out of Yosemite and SEKI.
Here is the official summary of the opinion. The full opinion can be read at http://www.ca9.uscourts.gov/datastore/opinions/2011/05/09/09-17152.pdf:
9th Cir.
09-17152
The court of appeals affirmed a district court judgment. The court held that the National Park Service did not act arbitrarily and capriciously in revoking its conditional approval of a particular manufacturer's portable bear-resistant food container for use in national parks where the agency rationally applied a "three strikes" failure standard and adequately considered associated policy issues.
The National Park Service and the U.S. Forest Service required backpackers in certain areas of the Sierras to store food in portable bear-resistant containers. In particular, between 2001 and 2007, both the Park Service and the Forest Service required visitors to Yosemite National Park, Sequoia and Kings Canyon National Parks (SEKI), and the Inyo National Forest to use containers that had been tested and approved by the agencies.
An informal body known as the Sierra Interagency Black Bear Group (SIBBG) tested privately manufactured bear-resistant containers and made recommendations to the Park and Forest Services regarding which containers to approve.
Plaintiff-appellant Ursack, Incorporated manufactured a bear-resistant container called the Ursack. Between 2001 and 2007, it urged SIBBG to recommend the Ursack for inclusion on the agencies’ lists of approved containers. In 2007, SIBBG did recommend that the agencies grant conditional approval to the Ursack for the 2007 summer season. SIBBG recommended that the agencies withdraw approval if they determined that the container failed three or more times during the season.
The agencies accepted the recommendation and granted conditional approval. At the end of the 2007 season, however, SIBBG determined that the Ursack had failed more than three times, and it recommended that the agencies withdraw conditional approval. The National Park Service withdrew conditional approval and refused to permit backpackers to use the Ursack in the container-only areas of Yosemite and SEKI. The Forest Service, however, continued to allow backpackers to use the Ursack in Inyo National Forest.
Ursack and three individual users of the Ursack (Ursack) brought suit pursuant to the Administrative Procedure Act (APA) against SIBBG, the Park Service, the Forest Service, and the superintendents of the relevant national parks and forests, alleging that the decision to withdraw conditional approval of the Ursack was arbitrary and capricious and otherwise not in accordance with law.
After reviewing the administrative record, the district court granted summary judgment in favor of the agencies.
The court of appeals affirmed, holding that Ursack failed to establish that it was entitled to any of the relief it sought.
The court of appeals characterized the central issue on appeal as whether the Park Service's decision to revoke conditional approval of the Ursack was arbitrary and capricious. Ursack also argued that the Park Service violated the "licensing" provisions of the APA, 5 U.S.C. §558.
The court first rejected Ursack's contention that the "three-strike" process failed to consider the larger picture for purposes of the Ursack. Specifically, Ursack argued that SIBBG failed to consider that backpackers might be more likely to use the easy-to-carry, soft-sided Ursack than hard-sided canisters. Ursack maintained that it was better to increase public compliance with food-storage requirements in this way, tolerating some failures each year, than to have a large number of incidents in which bears obtained food because someone decided to store food improperly. The record showed that SIBBG did not entirely fail to consider the benefit of increased compliance against the risk of container failure. It also did not show that SIBBG ignored specific aspects of the issue as framed by Ursack, such as the fact that even within the already-high compliance rate, many backpackers purportedly failed to put their extra, "overflow" food into proper containers.
Nor was there an equal protection violation in use of the "three strikes" standard in revoking approval of Ursack's product. To the extent SIBBG declined to revoke approval of a competing product in 2005 after it suffered a dozen failures, SIBBG concluded that almost all of those failures were caused by a single bear that figured out a means to break into the container. The six failures suffered by the Ursack in 2007, in contrast, did not appear to be caused by the same bear. Deferring to the agency's findings on such matters, the court concluded that the distinction was a rational basis to treat the Ursack differently than the competing product at issue.
It also was not capricious that SIBBG approved Ursacks only if the container were redesigned to eliminate the need to tie it to trees. An evaluation of the Ursack revealed that when it was hung in trees, it resulted in damage to the bark and substrate around the trees. Thus SIBBG's decision to "change course" on the product's eligibility for use in that way was a reasoned one.
Ursack also argued that if visitors could hang food from trees in certain areas of the parks and forests — thereby causing some tree damage — then SIBBG could not rationally prohibit visitors from tying Ursacks to trees in the parts of the parks and forests where tree storage was prohibited. Ursack’s position was that if the Park and Forest Services tolerated tree damage caused by food storage anywhere, they had to tolerate it everywhere.
That was wrong, the court said. A rational basis for SIBBG’s decision was readily apparent. Specifically, although the primary reason for prohibiting tree storage in container-only areas was that bears had learned how to obtain food stored in trees, the prohibition also had the beneficial effect of eliminating tree damage caused by human influences in those areas. In evaluating the Ursack for use in container-only areas, then, SIBBG members were rationally concerned about approving a food-storage container that might reestablish anthropogenic tree damage in areas where it had been eradicated.
Ursack’s other argument was that conditional approval of the Ursack was a “license” within the meaning of the APA, so that SIBBG was required to follow the procedures in §558(c) before revoking conditional approval. Under §558(c), a licensee must receive notice by the agency in writing of the facts or conduct which may warrant the revocation, and an opportunity to demonstrate or achieve compliance with all lawful requirements.
The court disagreed with the suggestion that the Park Service's "approval" necessarily amounted to a license. Ursack did not need the Park Service's approval to manufacture or sell its products. The only consequence to Ursack of SIBBG’s revocation of conditional approval was financial. Even without conditional approval, Ursack could manufacture and sell as many Ursacks as it wished, but the lack of conditional approval would have an impact on the market for its products. Thus, the real question was whether an agency decision that did not grant a form of permission to a member of the public nonetheless qualified as a license due to the decision’s financial consequences.
The court concluded though, that it need not decide whether an APA license existed only where an agency stood as a gate-keeper to a proposed private activity, or whether it also extended to forms of agency approval carrying only financial consequences. Even if Ursack had been granted a license, it was not seeking the kind of process available to licensees under §558(c). Ursack was not asking for notice and a chance to demonstrate or achieve compliance with all lawful requirements. Instead, Ursack wanted to argue with SIBBG over its decision to adopt the relevant lawful requirements in the first place.
To convince SIBBG not to revoke conditional approval, Ursack would have to convince SIBBG to change its licensing criteria. Yet, challenges to licensing criteria are adequately handled through review under the arbitrary and capricious standard, the court wrote.
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