Guest Commentary Submitted by Wendy Brown –
Merced River Plan’s Legal History –
On June 30, 1864 the United States granted the Yosemite Valley and the Mariposa Big Tree Grove to the state of California, “to be held, for public use, resort, and recreation, inalienable for all time.”
This act signed by President Abraham Lincoln was the first federal authorization to preserve scenic and scientific values for public benefit. It was the basis for the later concept of State and National Park Systems. In 1906 the State of California returned the land considered the first state park in the country so that it could become part of Yosemite National Park.In 1916 the National Park Service NPS was created by the National Park Service Organic Act, which provides that National Parks be preserved for enjoyment of the public and left unimpaired for future generations.
Wild and Scenic Rivers Act, WSRA, Requirements
The segments of the Merced River covered by the MRP were part of YNP when they were designated as part of the Wild and Scenic River System in 1987.
Section 1: Congressional Declaration of Policy-The WSRA explains that designated rivers “shall be preserved in free-flowing condition, and…their immediate environments shall be protected for the benefit and enjoyment of present and future generations.”
Section 2: Classifications-Requires the river be classified and administered as “wild,” “scenic,” or “recreational.”
Wilderness Act established in 1964-Definition
“an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean…an area…retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1)generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable, and (2)has outstanding opportunities for solitude or a primitive and unconfined type of recreation.”
The Yosemite Wilderness was added to the National Wilderness Preservation System by the 1984 California Wilderness Act. Segments of the Merced Wild and Scenic River corridor within YNP are within the congressionally designated Wilderness.
The National Park Service NPS completed two previous Merced River Plans in 2000 and 2005, and both were challenged in court. The Ninth Circuit court of Appeals found the plan to be deficient in specific areas in both instances. The judgment was vacated in a settlement agreement which allowed the NPS to resume the business of managing Yosemite. Part of the settlement was payment of $1,000,000 of taxpayers’ money to the attorneys for the plaintiff from funds intended for the repair of flood damage from the 1997 flood.
The plaintiffs in the lawsuit were a tiny local group of environmentalists, (Friends of Yosemite Valley & Mariposans for the Environment and Responsible Government [Government used to be Growth] MERG), so extreme that they were not supported by mainstream environmental organizations such as the Sierra Club and the Wilderness Society.
The Ninth Circuit Court found that the 2000 MRP failed to adequately address user capacities, and in 2003 stated that they must include “specific measureable limits on use;” and that it must “deal with or discuss the maximum number of people that can be received” in the Wild and Scenic River corridor. Then in 2006 the district court found that the 2005 revised MRP failed to comply with NEPA (National Environmental Policy Act) because it did not have a true “No Action Alternative,” and because it had an inadequate range of alternatives. They also said that the 2005 Revised MRP’s “Visitor Experience and Resource Protection” framework did not trigger management action before degradation occurred.
A court-mediated settlement agreement was executed Sept. 29, 2009. The 2009 Settlement Agreement directs that the MRP be completed by July 2013.
OUR PERSONAL THOUGHTS ON THE HISTORY OF YOSEMITE VALLEY AND THE MERCED RIVER
On January 30th we attended the first public meeting of the year of the MRP in Yosemite Valley. They have created 6 Alternative Concepts. There were originally 5. They have now added a 6th Alternative Concept, and Alternative 1 is now the (No Action) Alternative which satisfies one of the NEPA’s requirements. Alternative 5 is the NPS’ preferred Alternative.
The plans appear to be premised on the assumption that the WSRA mandates certain management actions. Accordingly some items have been identified as “non negotiable.” Because of this the Park Service feels compelled to eliminate much of the recreation and infrastructure within the Park to satisfy the courts demands.
The public horseback day rides will disappear, along with commercial river rafting, the ice skating rink, and bicycle rentals. One or all of the historic bridges in the Valley will be removed. (Alternative 6 keeps all the bridges.) They are also planning on eliminating stock use on the trail to Merced Lake High Sierra Camp. This will cut off access from Yosemite Valley to at least two High Sierra Camps near Tuolumne Meadows.
What’s happening with the MRP is in direct conflict with our “inalienable rights” as we see the use and enjoyment of our “Public Lands” continue to erode. If the MRP and the WSRA are allowed to trump the 1864 Act signed by Lincoln and the Organic Act of 1916 then the visitor to Yosemite will become the intruder or “the enemy.” We think that both of these acts should take precedence over the MRP and the WSRA.
The MRP appears to be attempting to turn Yosemite Valley into a “Wilderness” (see definition) which it is not, and never has been. The Native Americans settled in Yosemite Valley 1,000 years before the White man saw it. Yosemite Valley was a “developed area devoted to recreation for over 100 years after being designated public property, and 50 years after becoming a National Park.”
The WSRA also designates a river corridor of 100-150 ft. where all man made infrastructure must be removed. We feel it is possible to protect the river corridor in Yosemite Valley from degradations and adverse impacts without removal of recreational activities, infrastructures or historic bridges.
And lastly the current MRP satisfies the demands of the Ninth Circuit Court highlighted and underlined on pg. 2 above. End of story!
THE RIVER VALUES OF THE MERCED WILD AND SCENIC RIVER
The WSRA stipulates that the river’s free-flowing condition and water quality must be protected. It also describes Outstandingly Remarkable Values (ORV’s) to be protected. YNP has identified 20 ORV’s. They cover Biological, Geologic/Hydrologic, Cultural, Scenic, and Recreational, and can be found on pg 6 of the Summery Guide and in Chapter 5, pg 3 of the Comprehensive Management Plan and Environmental Impact Statement. Fortunately the water quality of the Merced River is “exceptionally high, and far superior to federal and state standards.”
The free-flowing condition is another matter, thus the management objective of bridge, rip rap, and infrastructure removal within the river corridor. This is where incorporating the WSRA into a General Management Plan for Yosemite becomes very difficult. Because of the Merced River’s tendency to meander and change its banks, rip rap was successfully used in the past to prevent the destruction of timber and meadowland in the valley. Since the 1870’s, large wood, such as downed trees and logjams, were removed from the river to reduce flood risk near bridges and to facilitate road construction and river recreation. The MRP states that these practices inhibit the free-flowing condition of the river by preventing natural stream processes, such as lateral migration and point bar formation.
They also state that the bridges are restrictive to the free flowing condition of the river, because they anchor channel migration, preventing channel evolution. So in order to return the river to it’s free-flowing condition the NPS plans to replace the rip rap with biotechnical bank stabilization (plants) to create a riparian buffer, remove the Sugar Pine bridge Alternative 5 (Preferred), the reintroduction of large wood into the river channel. They say the primary justifications for employing a riparian buffer along the Merced river are to protect water quality, trap pollution, stabilize riverbanks, reduce erosion, and allow surface water to infiltrate the soil.
OUR PERSONAL THOUGHTS ON THE MERCED RIVER VALUES
We think that the NPS is taking the free-flowing condition way too far. Segment 2 is the most complex stretch of the Merced River because it includes Yosemite Valley. If it is allowed to return to a primitive state, which it never has been, recreation and enjoyment of the river will be severely impaired, not to mention the loss of jobs for many park employees. If recreation is reduced, there will be fewer visitors to the park, which will affect the economy of the surrounding communities as well. We also discovered some discrepancies in the text that seems to contradict some of their statements.
“So much alteration of the meadows has occurred that they can no longer be restored to their primitive state.” (Heady and Zinke 1978:20)
Management Standard (Chapter 5 pg 21) – “The management standard for free-flowing condition shall be preservation of the river in its current state, with no additional structures or impediments to free-flow within the bed and banks of the river. The Wild and Scenic Rivers Act provides for existing structures, as of designation, to remain.”
Conclusion: Protecting and Enhancing Free-flowing Condition
(Chapter 5 pg 23)
“The free-flowing condition of the Merced River is determined to be absent of adverse effects, degradation, and management concerns, although management considerations are present.”
***This makes it sound like everything’s OK.***
However, they then propose actions to address the “specific considerations including removing riprap and removing unnecessary infrastructure in the river channel under Alternatives 2-6. Alternatives 2-6 consider a range of options to address bridge-related impacts in Segment 2, Yosemite Valley.”
Here are some aspects of the MRP under Alternative 5
Camping-The Preferred Alternative shows a significant increase in campsite inventory over present levels. If pre-97 Flood conditions were to be used as the baseline the numbers are quite different. After the flood 335 of the 900 campsites were not rebuilt leaving 565. They then tell us that they will be increasing campsites to 726 an increase of 210. If you do the math it is a net loss of 174 campsites. Smoke and mirrors?
Parking and Infrastructure– Again they use present levels vs. historical (pre-flood) to show increases. This seems deliberately deceptive to give the impression that they are expanding capabilities while actually limiting them. Congress gave the park 17 million dollars to replace flood damage which has not been done.
Since 1980 and especially after the flood there have been approximately 6,000 parking spaces removed which is causing the congestion. Now that they have created the problem they want to fix it by limiting access. Truly an example of a government fix.
Traffic Congestion and Circulation-One underpass and a vehicle roundabout would be added to decrease traffic congestion. Some of this plan has merit but needs further investigation. Traffic flow patterns are the answer to the congestion problems not reduction in visitors. A lot of the congestion issues have been created by the removal of parking and lack of a good traffic plan. The baseline needs to be pre-97 flood to accurately gauge what is added and what is being taken away.
We highly recommend a book titled “BORN IN YOSEMITE” By Peter T. Hoss. He is a retired attorney who was born and raised in Yosemite. He has dedicated two chapters in his book to the legal issues surrounding YNP. He is also submitting a letter to the editor to numerous newspapers offering suggestions for public comment, which we include here for your consideration. Keep in mind that public comment is not a popularity contest. Its purpose is to acquaint planners with facts they may not have considered, or to point out errors in their reasoning. With this in mind he offers the following observations:
1. “The NPS has said that some items have been identified as non negotiable. “No court has ruled anything is non negotiable, nor does any law so provide. If you hear this statement made by the NPS in a public hearing, demand the source. Do they have an opinion by a qualified attorney supporting this statement?”
2. “Another misstatement is that the WSRA supersedes and takes precedence over the 1864 grant and the Organic Act of 1916. No law or court decision has said so. In one part of the documents the NPS has acknowledged that tradeoffs may be required when these laws are in conflict.”
3. “Another misstatement that you may hear is that an activity provided by a concessioner for the enjoyment or comfort of visitors or permanent residents is “commercial” because a fee is charged for it. Traditionally activities which do not belong in Yosemite described a “commercial” have meant mining, logging, sheep and cattle raising or any other activity which adversely impacts the environment.
“Accordingly, here is my public comment:
“Unless the NPS can produce a credible legal opinion to the contrary, no provision in the Draft Management Plan and Environmental Impact Statement
are mandated. All recommendations are discretionary and subject to change as conditions change.
“There is no justification for eliminating any activities or services for visitors or relocating any infrastructure out of the defined Merced River corridor unless it can be demonstrated that it is necessary to prevent damage to the environment or to insure continuation of the enjoyment of the public. This has been the traditional approach, with decisions as to what is appropriate in Yosemite made by local NPS staff under the direction of the Superintendant, subject to changing conditions. By this standard no justification has been shown for eliminating bicycle rentals, raft trips, the ice skating rink, horseback rides, swimming pools or anything else intended for the continuing enjoyment of the public. These restrictions should be stricken.
“I believe a majority of the millions of visitors to Yosemite would overwhelmingly support these comments. If you agree you can send along a copy of this letter adding your own comments. The voice of the silent majority of Yosemite visitors needs to be heard.” Peter T. Hoss
To comment on the draft environmental impact statement go to yosemitemrp on the internet. If you don’t have a computer you can send your comments by U.S. mail at the following address:
Yosemite National Park
Attn: Merced River Plan
P.O. Box 577
Yosemite, CA 95389
AND, PLEASE ATTEND THE PUBLIC MEETING AT THE GOVERNMENT CENTER IN MARIPOSA ON April 2, FROM 6:00-8:00 PM!
Yosemite National Park belongs to you, and you are paying for it. Let your voices be heard!
Wendy Brown-Barry & Kevin D. Barry