Two Access Lawsuits Decided: Yosemite National Park, CA

On February 21, 2008 the Ninth Circuit Court of Appeals ruled in favor of the National Park Service in the case of Terbush v. U.S.

Peter Terbush died from rock fall on Glacier Point Apron in 1999 and this lawsuit concerned whether the Park Service was negligent in failing to warn of the dangers present on the Apron. The government countered that they are immune from such lawsuits because Congress has given rangers discretion on when and where to warn the public of potential dangers. The case was further complicated by the fact that a wastewater treatment plant facility had allegedly been discharging large amounts of water from the top of the Apron prior to Terbushs death, potentially creating an unnatural hazardous condition.

As a policy matter, this case is of interest to climbers because if the Park Service had lost, climbing policies could have become much more restrictive in Yosemite and anywhere that the government allows public access to potentially hazardous locations. If the Park Service had been held responsible for the safety of park visitors, they would have likely reduced access opportunities, especially to potentially dangerous spots, such as climbing areas.

The Terbush lawsuit represents an unusual case, however, because the question remains whether the hazards on the Apron that killed Peter Terbush were natural or whether they were caused by a mismanaged wastewater treatment plant that sent a large volume of water down onto a popular climbing area. The record from the District Court did not have enough information for the Appeals Court to decide whether the Park Service was negligent in their wastewater treatment plant facility, and, accordingly, the Appeals Court has ordered the case back to the District Court to decide this issue. However, at this point it seems unlikely that the Terbush case will affect climbing management policy in Yosemite or elsewhere.

On March 27, 2008 in Friends of Yosemite Valley v. Kempthorne, another lawsuit potentially involving public access in Yosemite, the court ruled against the Park Service. In this case the Ninth Circuit Court of Appeals upheld a federal district judges decision in 2006 that Yosemite National Park failed to adequately address limits on public use near the Merced Wild and Scenic River.

In May of 2007, the Access Fund, American Alpine Club, and several other environmental organizations including the Yosemite Fund, Friends of the River, National Parks Conservation Association, California Trout and The Wilderness Society, filed briefs supporting the Park Services planning methodology for the Merced River. This broad coalition opposed the strict, numeric limits on visitors in Yosemite that were supported by plaintiffs and the district court. The Access Fund maintains that this approach is impractical and unfair and that adaptive carrying capacity management provisions are a better approach to protecting the environment and visitor access. See here for more background on this issue: www.accessfund.org/display/page/PR/64

The Ninth Circuit, however, sided with the district court and ordered Yosemite National Park to develop a new management plan that sets numeric limits for visitors in Yosemite by September 2009. This recent court decision also blocks several ongoing restoration and rehabilitation projects in the Valley. Unfortunately, the Ninth Circuits ruling could result in restricted access (camping, climbing, or even hiking) in all Wild and Scenic River management areas, including Yosemite Valley, Yosemites Tuolumne region, the New River Gorge in West Virginia, the Obed River in Tennessee, and other designated and proposed Wild and Scenic Rivers in California, Colorado, Idaho, Utah, Oregon, Washington, Kentucky, and elsewhere.