Apropos of nothing we normally cover, the Ninth Circuit has ruled against Ursack Inc., which makes bear-resistant containers for use by backpackers (Ursack Inc. v. Sierra Interagency Black Bear Group (SIBBG), 09-17152).
Here are a couple of paragraphs from the beginning of the opinion released yesterday and penned by District Judge Lynn S. Adelman, sitting by designation from the Eastern District of Wisconsin. Circuit Judges Mary M. Schroeder and Sidney R. Thomas joined her in the ruling.
“Plaintiff-appellant Ursack [Inc.] 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 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.”
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6106 URSACK v. SIERRA INTERAGENCY BLACK BEAR
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
URSACK
