## Facts

- Fort Niobrara National Wildlife Refuge is a federally owned, FWS-managed refuge of about 19,131 acres along the Niobrara River in Nebraska.
- A 76-mile segment of the Niobrara River, including the reach within the refuge, was designated a “scenic” river under the Wild and Scenic Rivers Act, requiring protection of the river’s free-flowing condition and surrounding values.
- Congress amended the National Wildlife Refuge System Administration Act to require FWS to develop comprehensive conservation plans (CCPs) for refuges.
- FWS completed a CCP for the refuge in 1999 that:
  - imposed a temporary moratorium on permits for new commercial outfitters launching canoes or tubes on the refuge; and
  - capped weekend summer river use at 1998 levels pending further study and a river management plan.
- Niobrara River Ranch, L.L.C. and an associated individual sought to operate a commercial canoeing, tubing, and kayaking outfitting business using the river segment within the refuge.
- Plaintiffs applied for an FWS special use permit to conduct the commercial operation.
- FWS denied the permit application, citing the CCP moratorium and management concerns including overcrowding and resource protection.

## Issues

1. Whether FWS’s denial of plaintiffs’ special use permit was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under the Administrative Procedure Act.
2. Whether the permit denial was consistent with FWS’s statutory duties under the Refuge Act and the Wild and Scenic Rivers Act to manage refuge resources and protect the scenic river segment.
3. Whether the denial violated the Tenth Amendment by improperly intruding on state authority.

## Decision

- The court entered judgment for the federal defendants after a bench trial and dismissed all claims with prejudice.
- The court held that FWS acted within its lawful authority when it denied the permit.
- The court concluded the denial was not arbitrary, capricious, or contrary to law under the APA.
- The court rejected the Tenth Amendment challenge, finding the federal government acted pursuant to valid authority over federal lands and the congressionally designated river segment.

## Legal Principles

- Under APA review of informal agency action, a court asks whether the agency considered relevant factors and articulated a rational connection between the record and its decision; the court does not substitute its policy judgment for the agency’s.
- The Refuge Act prioritizes conservation of wildlife and habitat within the National Wildlife Refuge System and authorizes planning and management measures (including permit decisions) consistent with refuge purposes.
- The Wild and Scenic Rivers Act requires protection of designated river segments in a free-flowing condition and supports management limits on uses that threaten protected values.
- An agency may rely on a comprehensive conservation plan and interim management measures (such as temporary moratoria and use caps) when deciding whether to authorize additional commercial use.
- Federal regulation of use on federally owned refuge lands pursuant to congressional statutes does not violate the Tenth Amendment merely because the regulated activity relates to a river within a state.

## Conclusion

The court upheld FWS’s denial of a special use permit for a new commercial outfitter on the Niobrara River within the Fort Niobrara National Wildlife Refuge, finding the decision rationally supported by the CCP’s moratorium and statutory conservation mandates, and rejecting plaintiffs’ APA and Tenth Amendment claims.


Niobrara River Ranch, L.L.C. v. Huber, 277 F. Supp. 2d 1020 (D. Neb. 2003)