Ursack, Incorporated, et al v. Sierra Interagency Black Bear, et al
Filing
FILED OPINION (MARY M. SCHROEDER, SIDNEY R. THOMAS and LYNN S. ADELMAN) AFFIRMED. Judge: LSA Authoring. FILED AND ENTERED JUDGMENT. [7744144]
Case: 09-17152 05/09/2011 Page: 1 of 26
ID: 7744144 DktEntry: 29-1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
URSACK, INCORPORATED; JACQUELINE
FLORINE; GARY FISHER; PHOENIX
VAMVAKIAS,
Plaintiffs-Appellants,
v.
SIERRA INTERAGENCY BLACK BEAR
GROUP; NATIONAL PARK SERVICE;
UNITED STATES FOREST SERVICE;
Sequoia and Kings Canyon
National Parks; CRAIG AXTELL,
Superintendent, Yosemite National
Park; MICHAEL TOLLEFSON,
Superintendent, Inyo National
Forest; JIM CHURCH, Forest
Supervisor,
Defendants-Appellees.
No. 09-17152
D.C. No.
CV-08-1808-SC
OPINION
Appeal from the United States District Court
for the Northern District of California
Samuel Conti, District Judge, Presiding
Argued and Submitted
February 17, 2011—San Francisco, California
Filed May 9, 2011
6105
Case: 09-17152 05/09/2011 Page: 2 of 26
6106
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
Before: Mary M. Schroeder and Sidney R. Thomas,
Circuit Judges, and Lynn S. Adelman,* District Judge.
Opinion by Judge Adelman
*The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
Case: 09-17152 05/09/2011 Page: 3 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6109
COUNSEL
Thomas A. Cohen, Law Offices of Thomas A. Cohen, San
Francisco, California, for the plaintiffs-appellants.
Thekla Hansen-Young, Assistant Attorney General, U.S.
Department of Justice, Environmental & Natural Resources
Division, Washington, D.C., for the defendants-appellees.
OPINION
ADELMAN, District Judge:
The National Park Service and the United States Forest
Service require backpackers who visit certain areas in the
Sierras to store food in portable bear-resistant containers.
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 manufactures 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. Mostly it was
unsuccessful, but in 2007, SIBBG recommended 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. (We explain below
what “failure” means in this context.) The agencies accepted
Case: 09-17152 05/09/2011 Page: 4 of 26
6110
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
this 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 accepted this recommendation and withdrew
conditional approval, and to this day it refuses to permit backpackers to use the Ursack in the container-only areas of
Yosemite and SEKI. The Forest Service, on the other hand,
continues to allow backpackers to use the Ursack in Inyo
National Forest.
Ursack and three individual users of the Ursack brought
this action 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 to the agencies. Ursack and the three individuals
appeal. We affirm.
I.
Wild bears that routinely obtain access to human food are
known to cause problems in the wilderness. Among other
things, bears that have been habituated to human food tend to
associate humans with food and may become aggressive. To
prevent these problems, the Park and Forest Services require
visitors to securely store all food and trash. There are various
secure storage methods, but the Park and Forest Services
specify that in some areas of Yosemite, SEKI and Inyo —
areas in which bear activity is particularly problematic — visitors must use portable bear-resistant food-storage containers.
Almost all such containers consist of hard-sided, barrelshaped canisters that can be left on the ground. With a proper
container, a bear won’t be able to access or damage the stored
food, nor will the bear be able to fit the container into its
Case: 09-17152 05/09/2011 Page: 5 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6111
mouth and carry it off into the wilderness. However, canisters
are relatively heavy and bulky by backpacking standards.
Seeking to offer a light-weight alternative to hard-sided canisters, Ursack developed a portable bear-resistant container
made out of bullet-proof fabric. Ursack developed various
iterations of this product over the years, but the product at
issue in the present case is known as the Ursack S29.
The relevant national parks maintain lists of approved bearresistant containers and do not allow visitors to use unapproved containers. See, e.g., http://www.nps.gov/yose/
planyourvisit/containers.htm (approved container list for
Yosemite as of April 11, 2011). For most of the summer
backpacking seasons since 2001, the Ursack was not an
approved container. The inability to use the Ursack in these
parks — especially Yosemite — has substantially impacted
Ursack’s sales. Ursack tells us that the national retailer REI
refuses to stock the Ursack on account of Yosemite’s refusal
to approve it.
Until October 21, 2007, the Forest Service maintained a
similar list that likewise did not include the Ursack. On October 21, 2007, however, the Forest Service discontinued its
practice of keeping an approved-container list and began
allowing backpackers to use any bear-resistant container they
wanted, including the Ursack. The Park Service, meanwhile,
continues to withhold approval of Ursack’s products.
Ursack’s application for approval dates back to the spring
of 2001, when members of the Park and Forest Services
entered into a memorandum of understanding that created
SIBBG, a group of biologists and wilderness and recreation
managers from Yosemite, SEKI and Inyo. 2:ER:1-4. SIBBG’s
goal was to coordinate bear-management policies for the
lands under the control of its constituent agencies. To further
this goal, SIBBG tested bear-resistant containers and made
recommendations to the agencies. The group met on a regular
Case: 09-17152 05/09/2011 Page: 6 of 26
6112
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
basis until 2007, when it stopped accepting new products for
testing.
In April 2001, SIBBG adopted a three-phase process for
approving commercially available bear-resistant containers.
2:SER:224-29. First, the container had to pass a visual inspection. Second, SIBBG tested the container on captive black
bears at California zoos. If the container passed both the
visual inspection and captive-bear tests, SIBBG granted the
container “conditional approval.” 2:SER:227. Once a container received conditional approval, members of the public
were allowed to use it in the container-only areas of the parks
and forests. During the first summer of conditional approval,
SIBBG members also subjected the container to the final
phase of the testing process — field tests to observe “ease of
container use, durability of the container under field conditions, and the level of security from bears.” 2:SER:227. If the
container passed the field tests, the container’s status was
upgraded to “approved.” If the container failed the field tests,
conditional approval was immediately revoked. SIBBG also
had the option of approving a container with stated conditions
(not to be confused with “conditional approval”) — that is,
approving a container with conditions designed to improve
the product’s reliability and durability and to lessen its impact
on wilderness resources. Finally, SIBBG reserved the right to
revoke even unconditional approval “due to persistent failures
in the field.” 2:SER:227.
On May 21, 2001, SIBBG granted conditional approval to
an early-model Ursack, the Ursack Ultra, which was designed
to be tied to trees. 2:ER:118. Backpackers and SIBBG members then began using the product in the field. By July 24,
2001, however, SIBBG had determined that the Ultra had
failed three times. Two of the three failures involved bears
ripping into the containers and receiving food. 2:SER:278-79.
In response to these failures, SIBBG revoked conditional
approval of the Ultra.
Case: 09-17152 05/09/2011 Page: 7 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6113
Although Ursack disagreed with SIBBG’s findings regarding the Ultra, it returned to the drawing board and developed
a new model, the Ursack TKO. SIBBG accepted the TKO for
testing in early 2002 but did not grant it conditional approval
because the bag failed the zoo test. Specifically, captive bears
were able to puncture small holes in the bag and access honey
that had been poured inside. 2:SER:286-92. Ursack again disagreed with SIBBG’s findings but decided to modify the TKO
and resubmit it for approval.
SIBBG did not accept any Ursack product for testing in
2003, but in 2004 it agreed to test a modified version of the
TKO. The modifications included, among other things, an
aluminum insert designed to prevent food from leaking out of
the bag. This time, SIBBG devised a detailed testing protocol
specifically for the Ursack. 1:SER:161-71. In devising the
protocol, SIBBG identified a list of issues to evaluate based
on its past experience with Ursack’s products. 1:SER:161-62.
SIBBG then designed a series of tests to determine whether
the modified TKO satisfactorily addressed those issues.
1:SER:163-71.
SIBBG tested the modified TKO over the summer of 2004
and prepared a detailed report explaining the results. 2:ER:4165. The report stated that the modified TKO performed well,
in that no bear was able to access a significant amount of food
from the bag. Nonetheless, the report listed two major concerns. First, unlike with hard-sided canisters, bears were able
to chew the bags, mutilating the food inside and rendering the
food inedible due to the presence of bear saliva. In some
instances, the aluminum insert was crushed and torn, resulting
in small fragments of metal mixed into the smashed food. The
ability of bears to destroy the food was problematic for three
reasons. First, backpackers might be inclined to dump their
spoiled food, allowing bears access to the food and also contributing to wilderness litter. Second, the presence of bear
saliva on the food posed a small risk of rabies infection, and
the possibility of a backpacker eating food containing shred-
Case: 09-17152 05/09/2011 Page: 8 of 26
6114
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
ded aluminum posed its own safety hazard. Third, a backpacker who saw a bear chewing the bag might attempt to
frighten the bear away in order to save the food from spoilage,
which would put the backpacker at risk of injury should the
bear decide to attack. The second major concern was that
when bags were tied to trees in accordance with the manufacturer’s directions and bears wrestled with the bags, testers
noticed damage to the tree’s bark and the substrate (soil)
around the trees.
On November 8, 2004, SIBBG informed Ursack that it had
decided not to grant conditional approval to the modified
TKO. 2:ER:130-31. The rejection letter cited damage to trees
and the issues associated with bears chewing the bags as reasons for disapproval. Ursack again disagreed with the results,
this time going so far as to retain a silviculture expert, who
opined that use of the TKO would not result in significant tree
damage. 2:ER:132-36. Nonetheless, Ursack elected to redesign its product to address SIBBG’s concerns.
Ursack’s redesign involved using a thicker aluminum
insert, which was intended to both prevent bears from mutilating the food and eliminate the need to tie the bag to a tree.
SIBBG was satisfied with the redesign and conditionally
approved the bag — now known as the Ursack TKO Hybrid
— for use in 2006. However, the bullet-proof material that
Ursack used to make the bag, Spectra, was unavailable during
the 2006 season. Ursack thus decided to use a different fabric,
Vectran, for the TKO Hybrid. This fabric proved to be inadequate, however, in that bears were able to tear into the bags
and access food. SIBBG thus revoked its conditional approval
of the TKO Hybrid.
By the end of 2006, Spectra was once again available, and
Ursack began production of the Ursack model at issue in this
litigation — the Ursack S29. In November 2006, Ursack
wrote to SIBBG and asked that it approve the S29 for the
2007 summer season. SIBBG then conferred and decided that
Case: 09-17152 05/09/2011 Page: 9 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6115
although it would field-test the S29 “in house” during the
2007 season, it would not conditionally approve the product
until the field test was over. This meant that the public
wouldn’t be able to use the S29 until the 2008 season, at the
earliest. Ursack discussed this decision with SIBBG members,
and eventually it wrote a letter to the National Park Service
stating that Ursack would commence litigation and seek a preliminary injunction unless SIBBG conditionally approved the
S29 for 2007 season.
In response to Ursack’s letter, SIBBG conferred and
decided to conditionally approve the S29 for 2007 rather than
test it in house. SIBBG informed Ursack that this conditional
approval would be revoked if the S29 failed three or more
times during the season. This decision was conveyed to
Ursack orally during a meeting on May 8, 2007. The administrative record does not contain written correspondence from
SIBBG or the Park Service formalizing this decision. However, the record contains a “briefing statement” drafted by a
member of SIBBG in anticipation of the May meeting stating
that the S29 had been conditionally approved but that such
approval would be withdrawn if the product failed three or
more times. 1:SER:96-97. The briefing statement defined
“failure” as follows: “a container that is lost or abandoned, if
the food inside is no longer edible after an encounter with an
animal, if an animal receives a food reward/the fabric is compromised, and/or the container presents a safety hazard to
humans or wildlife.” 1:SER:97. Ursack does not dispute that
this briefing statement accurately describes SIBBG’s decision
to conditionally approve the S29 and its definition of “failure.”
During the 2007 season, SIBBG received several reports of
possible S29 failures. Ursack heard about at least three of
these reports through the grapevine and wrote emails to
SIBBG members attempting to disprove them. 1:SER:42-43,
55-56, 127-29. SIBBG did not make any decisions about the
S29 during the 2007 backpacking season but waited until its
Case: 09-17152 05/09/2011 Page: 10 of 26
6116
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
fall meeting to discuss the summer’s events. During the fall
meeting, SIBBG concluded that the S29 had failed at least six
times and decided to recommend withdrawal of conditional
approval. 2:ER:27-28. The Park Service accepted this recommendation and notified Ursack of SIBBG’s decision in
November 2007. 2:ER:155-57. However, as previously mentioned, the Forest Service did not withdraw its approval of the
Ursack. In response to SIBBG’s decision, Ursack filed the
present action against SIBBG and the Park and Forest Services.1
II.
Before proceeding to the merits of the appeal, we clarify
several issues relating to the identity of the proper defendants.
First, although Ursack named SIBBG as an agency defendant,
it now concedes that SIBBG is not an “agency” within the
meaning of the APA. 5 U.S.C. § 701(b)(1). Moreover, SIBBG
did not make any final decisions that could be reviewed in an
action under the APA. The agency that made the final decision was the Park Service, and the relevant decision-makers
within that agency were the Superintendents of Yosemite and
SEKI. However, the Superintendents’ decisions were based
on SIBBG’s recommendations, and so, as a practical matter,
SIBBG’s decision is the decision under review. Nonetheless,
SIBBG itself is not a proper defendant.
Ursack also sued the Forest Service and the Supervisor of
Inyo National Forest. However, as noted, the Forest Service
and Inyo do not prohibit members of the public from using
the Ursack and currently do not maintain lists of “approved”
containers. The defendants contend that, for this reason, there
is no live case or controversy against the Forest Service or
1
Three individuals who desire to use the Ursack in the relevant national
parks and forests joined Ursack as plaintiffs. However, none of plaintiffs’
arguments depends on the presence of the individual plaintiffs. Therefore,
throughout the course of this opinion, we write as if Ursack were the only
plaintiff.
Case: 09-17152 05/09/2011 Page: 11 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6117
Inyo’s supervisor. See, e.g., Kittel v. Thomas, 620 F.3d 949,
951 (9th Cir. 2010) (“The Constitution limits the jurisdiction
of the federal courts to live cases and controversies, and as
such, federal courts may not issue advisory opinions.”).
Ursack concedes that Inyo currently allows use of its products
but points out that Inyo’s decisions regarding bear-resistant
containers are reviewed annually and that “[a] final judgment
in this case would influence any future decision by Inyo to
ban Ursack based on SIBBG’s 2007 recommendation.” Reply
Br. at 2. While that may be true, it does not create a live case
or controversy between Ursack and the Forest Service. Thus,
the Forest Service and the Supervisor of Inyo National Forest
are not proper defendants.
Accordingly, we limit our review to the decisions of the
Park Service and the Superintendents of Yosemite and SEKI.
III.
Turning to the merits, the central issue on appeal is whether
the Park Service’s decision to revoke conditional approval of
the S29 was arbitrary and capricious. See 5 U.S.C. § 706.
Although Ursack separately argues that the decision also violated equal protection principles,2 the equal protection argument can be folded into the APA argument, since no suspect
class is involved and the only question is whether the defendants’ treatment of Ursack was rational (i.e., not arbitrary and
capricious). See United States v. Weston, 255 F.3d 873, 880
(D.C. Cir. 2001) (describing the rational basis test and the
arbitrary and capricious standard as “analogues”). In addition
to its arbitrary and capricious arguments, Ursack argues that
the Park Service violated the “licensing” provisions of the
APA, 5 U.S.C. § 558. These provisions specify procedures
that an agency must follow before it revokes a license. Ursack
alleges that the conditional approval of the S29 was a license
2
This equal protection claim arises under the Fifth Amendment’s Due
Process Clause. See, e.g., Buckley v. Valeo, 424 U.S. 1, 93-94 (1976).
Case: 09-17152 05/09/2011 Page: 12 of 26
6118
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
and that, in withdrawing conditional approval, the Park Service failed to provide Ursack with the necessary process. We
address these issues below.
A.
Under the APA, a reviewing court may set aside agency
actions that are “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). Review under this standard is narrow, and the
court may not substitute its judgment for that of the agency.
Earth Island Inst. v. Carlton, 626 F.3d 462, 468-69 (9th Cir.
2010). Rather, a decision may be reversed as arbitrary and
capricious only if the agency relied on improper factors,
entirely failed to consider an important aspect of the problem,
or offered an explanation that runs counter to the evidence
before the agency or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise. Id. An agency action will not be reversed as arbitrary and capricious where the agency is able to demonstrate
a “rational connection between the facts found and the conclusions made.” Native Ecosystems Council v. U.S. Forest
Service, 418 F.3d 953, 960 (9th Cir. 2005) (internal quotation
marks omitted).
Ursack argues that SIBBG’s decision to revoke conditional
approval of the S29 was arbitrary and capricious for several
reasons: (1) in deciding to apply a three-strikes standard to the
S29, SIBBG failed to consider an important aspect of the
problem; (2) SIBBG’s decision to apply the three strikes standard to the S29 was arbitrary given SIBBG’s decision to not
revoke the approval of a competing bear canister, the BearVault, after it failed twelve times; and (3) SIBBG’s decision
to prohibit users from tying the S29 to trees was capricious.
1. Use of “three strikes” standard
Ursack contends that in deciding to revoke approval of the
S29 based on three failures, SIBBG failed to consider an
Case: 09-17152 05/09/2011 Page: 13 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6119
important aspect of the problem. See Motor Vehicle Mfrs.
Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (agency decision is arbitrary and capricious when the
agency “entirely fail[s] to consider an important aspect of the
problem”). In Ursack’s view, SIBBG failed to consider
whether use of the Ursack — which is lighter and easier to
carry than hard-sided canisters — might increase public compliance with park and forest food-storage requirements.
Ursack believes that it’s better to have a handful of Ursack
failures than to have a large number of incidents in which
bears obtain food because a backpacker decided to store his
or her food improperly. Thus, argues Ursack, SIBBG should
have considered the extent to which use of the Ursack might
increase visitor compliance before deciding that its approval
would be revoked after only three failures.
[1] However, the administrative record shows that SIBBG
did not entirely fail to consider this aspect of the problem. In
debating whether to conditionally approve the Ursack for the
2007 season, several members of SIBBG cited increased compliance as a reason favoring approval. During the debate, one
SIBBG member, Harold Werner, stated the following in an
email to other members of the group:
I suspect that this product improves compliance, and
I cannot help but wonder if the low number of incidents last summer [i.e., in 2006] was related to better
compliance. The only obvious difference in last year
compared to previous years was the authorization to
use Ursacks in canister-required areas.
1:SER:70-75 (quote appears on page 74). Similarly, when
Craig Axtell, the Superintendent of SEKI, suggested that
SIBBG reconsider its denial of Ursack’s conditional approval
for the 2007 season, he wrote:
[W]e recognize that most wilderness users carry
some form of portable bear-proof storage device;
Case: 09-17152 05/09/2011 Page: 14 of 26
6120
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
many of them dislike the weight of approved units.
A lighter approved unit should improve compliance[,] which is important to achieving our bear
management objectives.
2:SER:419-20. At least one other member of SIBBG, Peter
Rowland, acknowledged this point and countered with an
opposing viewpoint — specifically, that the compliance rate
was already at 91% and that “attaining an extra few percent
compliance” might not be “worth putting up with a product
that currently appears to have a relatively high rate of failure
compared to its competitors.” 2:SER:443-44.
[2] The above exchange indicates that SIBBG did not
entirely fail to consider the issue of increased compliance. To
the contrary, SIBBG balanced the benefit of increased compliance against the risk of container failure during the process
of deciding whether and on what terms the Ursack would be
conditionally approved. In its reply brief, Ursack acknowledges that SIBBG did not entirely fail to consider this issue,
but it argues that SIBBG approached the issue from the wrong
angle. Ursack points out that the 91% compliance rate cited
by Rowland refers to the percentage of visitors who carry canisters. Ursack’s position is that even though 91% of backpackers carry canisters, they often carry more food than they can
fit into a single canister, which results in them storing “overflow” food outside the canister. Thus, argues Ursack, SIBBG
shouldn’t have asked whether approving the Ursack would
have raised the compliance rate above 91%, it should have
asked whether approving the Ursack would have resulted in
better compliance even among the 91% of backpackers who
already carry canisters.
[3] The problem with this argument is that nothing in the
administrative record indicates that the Ursack was such an
obvious solution to the overflow food issue that the agency’s
failure to consider the compliance issue from that angle was
a failure to consider an important aspect of the problem. The
Case: 09-17152 05/09/2011 Page: 15 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6121
record does not show that backpackers can fit more food into
a single Ursack than into a single hard-sided canister. Thus,
backpackers would still need to carry more than one Ursack
(or a combination of Ursacks and canisters) in order to properly store all food. Further, the record does not suggest that
backpackers would choose to carry multiple storage containers of any kind rather than store some overflow food improperly. Although Ursacks are lighter, they still take up pack
space, and the record indicates that the aluminum lining
would have to be removed from an Ursack before a backpacker would even consider carrying a second one. 2:ER:144,
148. Yet, as noted, SIBBG deemed the aluminum liner necessary to prevent food spoilage and tree damage.3 So Ursack is
not an obvious solution to the overflow food problem, and for
this reason the agencies did not entirely fail to consider an
important aspect of the problem by approaching the issue
from the standpoint of whether Ursack’s light weight would
increase the number of backpackers who carried at least one
food-storage container.
Moreover, the record does not show that SIBBG ignored
the overflow food problem entirely. Although Rowland’s
statement about compliance indicated that he was concerned
about whether backpackers would carry food-storage containers at all, this does not mean that SIBBG did not also consider
whether Ursacks might reduce the number of bear incidents
caused by overflow food. Both Werner and Axtell considered
whether Ursacks might increase “compliance,” and they did
not say anything indicating that they were excluding overflow
food from their definition of noncompliance. To the contrary,
Werner was well aware that many bear incidents were caused
by overflow food, 1:SER:62, as was SIBBG in general,
2:ER:144 (letter referring to SIBBG map informing backpackers that “most negative bear encounters occur due to
3
Although Ursack separately challenges SIBBG’s “tree damage” rationale, it does not challenge SIBBG’s conclusion that the aluminum liner
was needed to prevent food spoilage.
Case: 09-17152 05/09/2011 Page: 16 of 26
6122
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
overflow food”). Thus, although SIBBG members did not
explicitly mention overflow food in the course of their debate
over conditional approval of the Ursack, we cannot conclude
that they ignored this aspect of the problem altogether.
2.
Whether use of “three strikes” standard was violation of
equal protection
Ursack argues that SIBBG’s decision to revoke approval of
its product after three failures in 2007 amounted to a denial
of equal protection because a competing product, the BearVault, failed twelve times in 2005 but did not have its
approval revoked. Because SIBBG’s decision did not involve
a suspect classification, rational basis scrutiny applies, see,
e.g., >United States v. Flores-Villar, 536 F.3d 990, 998 (9th
Cir. 2008), and thus the standard of review is identical to arbitrary and capricious review under the APA. See Weston, 255
F.3d at 880.
[4] The record indicates that SIBBG had a rational basis
for revoking approval of the Ursack in 2007, even though it
declined to revoke the BearVault’s approval in 2005 after it
failed a dozen times — namely, SIBBG’s conclusion that
almost all of the BearVault failures were likely caused by the
same bear. As a SIBBG member explained to Ursack in an
email at the end of the 2005 season:
We did not pull the approval on the BearVault
because all of the problems were focused on a small
area suggesting that one bear figured out how to
break into them. If those same incidents were spread
over a large area indicating a fundamental problem
with the design or the way people use it, I suspect
that we would have pulled their approval. The protocol leaves SIBBG a lot of room for applying common sense.
2:ER:141. In contrast, SIBBG did not conclude that the six
Ursack failures in 2007 were caused by the same bear.
Case: 09-17152 05/09/2011 Page: 17 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6123
[5] In its reply brief, Ursack acknowledges this difference
but speculates that the BearVault failures were caused by
multiple bears and that most of the Ursack failures were
caused by a single bear. But we must defer to the agency’s
finding on these matters unless the record shows that the
agency’s findings were not supported by substantial evidence
— i.e., unless the evidence in the record “would compel a reasonable finder of fact to reach a contrary result.” Gebhart v.
SEC, 595 F.3d 1034, 1043 (9th Cir. 2009) (internal quotation
marks omitted, emphasis in original).4 In the present case,
Ursack tells us that, given the average home range of a black
bear and the locations of the various container failures, it is
“likely” that not all BearVault failures were caused by a single bear and that all but two of the Ursack failures in 2007
were caused by a single bear. Reply Br. at 6-8. However, the
agency is better equipped than the court to determine how
many bears were involved in the relevant incidents, and
Ursack’s statement about the home range of a black bear
(which is not supported by citations to the administrative
record or anything else) does not show that a reasonable
finder of fact would have been compelled to see things
Ursack’s way. Thus, we must accept the agency’s findings on
these matters and conclude that the distinctions SIBBG made
between the BearVault and the Ursack were rational.
4
SIBBG’s decision to revoke conditional approval of the S29 is best
characterized as an informal agency adjudication, and the “substantial evidence” test normally applies only in formal agency proceedings. See 5
U.S.C. § 706(2)(E). However, courts recognize that, as a practical matter,
the arbitrary and capricious standard incorporates the substantial evidence
test, and they therefore review factual findings made during the course of
informal agency adjudications under the substantial evidence test. See
Bonnichsen v. United States, 367 F.3d 864, 879-80 & n.19 (9th Cir. 2004);
Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed.
Reserve Sys., 745 F.2d 677, 683-84 (D.C. Cir. 1984) (Scalia, J.).
Case: 09-17152 05/09/2011 Page: 18 of 26
6124
3.
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
Whether refusal to allow users to tie Ursacks to trees
was capricious
Ursack’s final arbitrary-and-capricious argument involves
SIBBG’s decision to approve Ursacks only if Ursack redesigned the product to eliminate the need to tie it to trees.
Ursacks were originally designed to be tied to trees, and tying
had three benefits: (1) the more a bear pulls on an Ursack, the
tighter the cord cinching the opening becomes; (2) a bear
can’t take the Ursack and abandon it in the woods; and (3) a
bear can’t use its weight to crush the bag’s contents. In 2001,
when SIBBG conditionally approved Ursack’s earliest model,
it allowed users to tie Ursacks to trees. In fact, it conditioned
its approval of the product on Ursack revising its instructions
to clarify that the product had to be tied to a tree or rock.
2:ER:118-19. However, after SIBBG conducted its extensive
reevaluation of the Ursack TKO in 2004, it discovered that
tying Ursacks to trees resulted in damage to the bark and substrate around the trees. 2:ER:130-31. In its letter explaining its
decision to deny approval of the Ursack for the 2005 season,
SIBBG cited tree damage as one of its reasons. 2:ER:130-31.
In response to this letter, Ursack retained a silviculture specialist, Kevin O’Hara, who wrote a letter to SIBBG in which
he opined that the tree damage caused by tying Ursacks to
trees would be no more extensive than the tree damage caused
by routine wild bear activity. 2:ER:132-34. Harold Werner, a
member of SIBBG, responded to this letter. 2:SER:298-99.
He explained that several of O’Hara’s assumptions were
incorrect, and that he believed that the tree damage would be
more extensive than damage caused by routine bear activity.
Werner also explained that SIBBG would have wanted to prevent the damage even if it were no more extensive that the
damage caused by routine bear activity, since the Park Service
was obliged to minimize human impact on the backcountry.
He explained that any tree damage caused by bears struggling
with Ursacks would be attributable to human activity — tying
Ursacks to trees — and thus even if the damage were no more
Case: 09-17152 05/09/2011 Page: 19 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6125
extensive than the damage bears could be expected to generate in the absence of human activity, the fact that the damage
was attributable to a human influence was reason enough to
prevent it.
Ursack did not further challenge SIBBG’s reasoning as to
tree damage and elected to redesign the product so that users
did not need to tie it to trees. As noted, this redesign resulted
in the thick aluminum insert, which was intended to both
address the issue of food spoilage due to bear saliva and eliminate the need to tie Ursacks to trees. When SIBBG conditionally approved the Ursack S29 for use in 2007, it did so on the
condition that backpackers would use it like any other bear
container — by placing it on the ground without securing it
to a tree. 2:SER:420. Ursack argues that this decision was
capricious because (1) SIBBG initially required that Ursacks
be tied to trees, and thus SIBBG acted capriciously (i.e.,
impulsively or unpredictably) by changing course, and (2)
SIBBG’s concerns about tree damage are inconsistent with
regulations allowing backpackers to hang food from trees in
certain areas of the park.
[6] Ursack’s first argument is easily disposed of. Although
SIBBG initially had no objection to tying Ursacks to trees and
asked Ursack to revise its instructions to make the need to tie
Ursacks to trees more explicit, that was before SIBBG conducted the extensive tests of the Ursack in 2004 and noticed
the tree-damage issue. Thus, SIBBG’s decision to change
course was reasoned rather than capricious.5
5
Ursack also directs our attention to the minutes of a SIBBG meeting
from October 2005 — a meeting that took place after the 2004 testing
revealed the tree-damage issue. 2:SER:268. The minutes state that Ursack
should revise its instructions to make clear that Ursacks had to be tied to
tree trunks rather than tree branches. Ursack suggests that this is evidence
of capricious decision-making, since by this time SIBBG had supposedly
decided that Ursacks could not be tied to trees at all. However, despite this
reference in the minutes, SIBBG did not ask Ursack to revise its instructions. Instead, SIBBG informed Ursack that its products could not be tied
to trees at all. 2:ER:301-02. Thus, SIBBG’s ultimate decision was consistent with the findings of its 2004 testing.
Case: 09-17152 05/09/2011 Page: 20 of 26
6126
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
Ursack’s second argument stems from regulations that permit park and forest managers to require visitors to hang their
food from tree branches. Pursuant to these regulations, food
is suspended several feet from the trunk of the tree so that a
bear can’t reach the food if it climbs the trunk. Although this
method of storing food is permitted (and sometimes required)
in certain areas of the parks and forests, it is not permitted in
areas where food must be stored in bear-resistant containers.
The reason for this is that in the container-only areas, bears
have learned how to reach food that has been stored in trees.
Ursack argues that if visitors may hang food from trees in
certain areas of the parks and forests — thereby causing some
tree damage — then SIBBG cannot rationally prohibit visitors
from tying Ursacks to trees in the parts of the parks and forests where tree storage is prohibited. Ursack’s position is that
if the Park and Forest Services tolerate tree damage caused by
food storage anywhere, they must tolerate it everywhere. In
this regard, Ursack points to the fact that the prohibition on
storing food in trees in the container-only areas was imposed
because bears had learned how to reach food stored in trees,
not because the Park and Forest Services wanted to prevent
tree damage in those areas.
[7] As far as record reveals, Ursack never raised this issue
in its various communications with SIBBG members, and
thus we don’t know what the agency would have said about
it. However, a rational basis for SIBBG’s decision is readily
apparent: 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. Accordingly, SIBBG’s tree-damage
rationale was not arbitrary or capricious.
Case: 09-17152 05/09/2011 Page: 21 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6127
B.
[8] Ursack’s remaining argument is that conditional
approval of the Ursack was a “license” within the meaning of
the APA, 5 U.S.C. § 551(8), and that therefore SIBBG was
required to follow the procedures in 5 U.S.C. § 558(c) before
revoking conditional approval. Under § 558(c), a licensee
must receive the following process before an agency may
revoke a license: (1) notice by the agency in writing of the
facts or conduct which may warrant the revocation, and (2)
opportunity to demonstrate or achieve compliance with all
lawful requirements. The purpose of requiring this process is
to provide a licensee threatened with the termination of its
license an opportunity to correct its transgressions — i.e., to
give the licensee a “second chance.” Buckingham v. Sec’y
Dep’t of Agric., 603 F.3d 1073, 1085 (9th Cir. 2010); Gallagher & Ascher Co. v. Simon, 687 F.2d 1067, 1074 (7th Cir.
1982).
[9] Under the APA, “license” is defined as “the whole or
part of any agency permit, certificate, approval, registration,
charter, membership, statutory exemption or other form of
permission.” 5 U.S.C. § 551(8). Ursack contends that because
its products can be used in certain areas of the relevant parks
only if the Park Service approves them, the Park Service’s
“approval” amounts to a license. However, Ursack does not
need the Park Service’s approval to manufacture or sell its
products to the public (or to engage in any other activity). For
this reason, the present case is unlike others in which we have
determined that an agency had granted a license. In
Anchustegui v. Department of Agriculture, for example, we
found that a permit to graze sheep on federal land was an
APA license. 257 F.3d 1124, 1128-29 (9th Cir. 2001). And in
Air North America v. Department of Transportation, we
determined that an airline’s certificate of authority to provide
air transportation was a license. 937 F.2d 1427, 1437 (9th Cir.
1991). In both of these cases the absence of agency approval
prevented the purported licensee from engaging in a specific
Case: 09-17152 05/09/2011 Page: 22 of 26
6128
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
activity — grazing on federal land in Anchustegui and providing air transportation in Air North America. But in the present
case, the only consequence to Ursack of SIBBG’s revocation
of conditional approval is financial. Even without conditional
approval, Ursack can manufacture and sell as many Ursacks
as it pleases, but the lack of conditional approval will have an
impact on the market for its products. Thus, the question is
whether an agency decision that does not grant a form of permission to a member of the public nonetheless qualifies as a
license due to the decision’s financial consequences.
The Seventh Circuit has answered this question in the negative. In Horn Farms, Inc. v. Johanns, 397 F.3d 472 (7th Cir.
2005), the plaintiff argued that the Department of Agriculture’s decision to terminate his participation in a farm-subsidy
program was a decision to revoke a “license” within the
meaning of § 551(8). The decision did not prevent the plaintiff from farming anything; rather, it eliminated his eligibility
for subsidy payments in connection with his farming activities. The plaintiff argued that the Department of Agriculture
had to “approve” his participation in the subsidy program, and
that therefore the revocation of approval was a revocation of
a license within the meaning of § 558. In rejecting this argument, the court reasoned that an agency decision does not
involve a license simply because it has financial consequences. Id. at 478-79. Although the court recognized that the
APA’s definition of license is broad and “should be read so
that it encompasses all situations in which federal approval is
required to undertake some act,” the court concluded that the
definition is not broad enough to encompasses situations in
which “no agency stands as a gatekeeper to a proposed private
activity.” Id. The court reasoned that since the plaintiff could
farm as much or as little as he wanted with or without the
Department of Agriculture subsidy, termination of the subsidy
was not termination of a license.
In reaching its conclusion, however, the Seventh Circuit did
not acknowledge contrary authority from the Second Circuit,
Case: 09-17152 05/09/2011 Page: 23 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6129
New York Pathological & X-Ray Laboratories, Inc. v. INS,
523 F.2d 79 (2d Cir. 1975). In that case, the INS adopted a
regulation requiring aliens seeking permanent resident status
to obtain a medical examination from a “selected civil surgeon” — i.e., a medical facility that had been approved by the
INS. See 8 C.F.R. § 234.2 (1973). Even before it adopted this
regulation, the INS required aliens to obtain medical examinations, but aliens were permitted to use a physician of their
choice. The plaintiff was a medical facility that, prior to the
adoption of the new regulation, had provided the needed medical examinations to aliens. When the INS adopted the new
regulation, it refused to designate the plaintiff as a selected
civil surgeon, and so aliens could not use the results of the
plaintiff’s examinations to satisfy the examination requirement. The plaintiff challenged the INS’s refusal, arguing that
the designation of a medical facility as a selected civil surgeon was a “license” within the meaning of § 558. The Second Circuit agreed. New York Pathological, 523 F.2d at 82;
see also Blackwell College of Business v. Attorney General,
454 F.2d 928, 932 (D.C. Cir. 1971) (INS’s revocation of status as an approved school for attendance by nonimmigrant
alien students was revocation of an APA license).
New York Pathological implies that agency approval can
constitute a license within the meaning of the APA even if the
lack of approval does not prohibit the purported licensee from
engaging in any private activity. The lack of the “selected
civil surgeon” designation did not prevent the plaintiff medical facility from treating or examining any particular patient,
but because the lack of the designation prevented aliens from
using the results of the plaintiff’s exams as part of their applications for permanent residency, the agency’s decision had a
substantial financial impact on the plaintiff, since no alien
would pay for a medical exam if the results of the exam could
not be used as part of an application. Similarly, although
Ursack can manufacture and sell Ursacks with or without the
Park Service’s approval, the decision to revoke Ursack’s con-
Case: 09-17152 05/09/2011 Page: 24 of 26
6130
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
ditional approval had a substantial impact on the market for
Ursack’s products.
[10] We conclude that we need not decide whether an
APA license exists only where the agency stands as a gatekeeper to a proposed private activity, or whether it also
extends to forms of agency approval carrying only financial
consequences. This is because even if Ursack had been
granted a license, it is not seeking the kind of process available to licensees under § 558(c). Ursack is not asking for
notice and a chance “to demonstrate or achieve compliance
with all lawful requirements.” 5 U.S.C. § 558(c). Instead,
Ursack wants to argue with SIBBG over its decision to adopt
the relevant lawful requirements in the first place. Recall that
SIBBG decided to revoke conditional approval on the ground
that the Ursack had failed six times during the 2007 season.
Ursack does not dispute that its products were involved in six
incidents during the season. But Ursack believes that most of
these incidents shouldn’t count as failures for various reasons,
such as that the incident did not involve a bear obtaining food
or that a bear obtained food but the failure was caused by user
error. Br. at 28-29. However, in granting conditional
approval, SIBBG defined “failure” in a way that makes all six
incidents failures even under Ursack’s view of the physical
evidence — i.e., even if no bear obtained food or the failure
was caused by user error. 1:SER:97. Thus, to have convinced
SIBBG not to revoke conditional approval, Ursack would
have had to have convinced SIBBG to change its licensing
criteria. Yet, challenges to licensing criteria are adequately
handled through review under the arbitrary and capricious
standard. 5 U.S.C. § 706. As discussed, the process afforded
by the APA’s licensing provisions is limited to providing the
licensee with notice and a chance to either demonstrate compliance or cure its transgressions, and Ursack does not claim
that it was injured by the Park Service’s failure to provide this
process. Accordingly, we reject Ursack’s argument on the
ground that § 558(c) does not entitle Ursack to the relief it
requests, even if Ursack had been granted a license.
Case: 09-17152 05/09/2011 Page: 25 of 26
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
6131
C.
Before concluding, we note that Ursack raised a new argument for the first time in its reply brief: that Yosemite and
SEKI have arbitrarily and capriciously refused to consider
granting conditional approval to Ursack’s latest product, the
S29 “All White.” Reply Br. at 10-11. On April 7, 2010,
Ursack wrote to the Superintendents of Yosemite and SEKI
and asked them to approve the All White for use in the
container-only areas of the parks. See Further Excerpts of
Record (“FER”) at 3-6. The Assistant Field Solicitor for the
Park Service responded on behalf of the Park Service as follows:
At present, the National Park Service is not reviewing or testing any bear-resistant containers for potential use by visitors in Sequoia and Kings Canyon
National Parks or Yosemite National Park. In addition, the National Park Service is not requesting the
submittal of bear-resistant containers for review.
FER at 1. Ursack contends that the Park Service’s refusal to
consider the All White or any other hard- or soft-sided container is arbitrary and capricious.
Although this argument was raised for the first time in
Ursack’s reply brief, at the time Ursack filed its opening brief
the events that gave rise to this argument had not yet
occurred. Nonetheless, the final agency action under review
in this lawsuit is the decision to revoke conditional approval
of the S29 at the end of the 2007 season. The agencies’ decision to stop accepting food-storage containers for evaluation
is a separate agency action. Moreover, the agencies have not
yet had a chance to compile an administrative record for this
decision or otherwise explain why their decision is not arbitrary and capricious. We are therefore in no position to review
the decision. Should Ursack wish to challenge this decision,
Case: 09-17152 05/09/2011 Page: 26 of 26
6132
ID: 7744144 DktEntry: 29-1
URSACK v. SIERRA INTERAGENCY BLACK BEAR
the proper procedure would be to file a fresh lawsuit under the
APA.
IV.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?