ELR Citation: ELR 21606
No(s). 94-1094-LFO (D.C. Cir. Jun 8, 1994)

The court holds that the National Park Service's (NPS') method of allocating entry permits to Glacier Bay, Alaska, for the 1995 season does not violate the Administrative Procedure Act's (APA's) notice-and-comment requirement, and that the NPS' denial of entry permits to a cruise line operator is not arbitrary and capricious. The court first holds that the operator failed to demonstrate a likelihood of success on the merits that the NPS acted arbitrarily in denying it entry permits. The APA's notice-and-comment requirement does not apply to matters relating to public property. Because if Glacier Bay is clearly public property, the operator's only basis for relief is the NPS' duty not to take actions that are arbitrary and capricious. The court next holds that the allocation method is not obviously irrational even though it denied the operator any entry permits, because the method reasonably took into account a serious collision involving the operator's vessel that caused diesel fuel to be discharged into Glacier Bay and required the evacuation of passengers. The court next holds that the operator's alleged loss of profits and good will is wholly economic injury, and economic loss alone does not constitute irreparable harm. Further, the operator's concession permit makes it eligible to purchase entry permits from re-sellers, and there is no evidence that this secondary market will not be open to it for 1995 and subsequent seasons. The operator's injuries are thus insufficiently certain to justify a preliminary injunction against the NPS' permit allocation.

Counsel for Plaintiff
Michael Joseph, Alex Blanton
Dyer, Ellis, Joseph & Mills
600 New Hampshire Ave. NW, Ste. 1000, Washington DC 20037
(202) 944-3000

Counsel for Defendants
Marina U. Braswell, Ass't U.S. Attorney
U.S. Attorney's Office
555 4th St. NW, Washington DC 20001
(202) 514-7566