Full opinion text
MEMORANDUM OPINION AND ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT ISHII, District Judge. In 1987, Congress designated the Merced River in Yosemite National Park as a component of the National Wild and Scenic Rivers System. Pub.L. 101-49, 101 Stat. 879, 16 U.S.C. § 1274(a)(62). Under the Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. § 1271 et seq, the National Park Service (“NPS”) was obligated to prepare a comprehensive management plan (“CMP”) for the Merced River within three fiscal years of its designation under WSRA. 16 U.S.C. § 1274(d). It did not do so. In February of 1999, Mariposans for Environmentally Responsible Growth and the Sierra Club filed a lawsuit against NPS concerning a road widening project with the Merced River corridor. Sierra Club v. Babbitt, 69 F.Supp.2d 1202 (E.D.Cal.1999). In that lawsuit, the plaintiffs argued in part that the road project violated WSRA’s requirement that NPS protect and enhance the values and free-flowing character of the Merced River. On July 12, 1999, this court enjoined part of the project and ordered NPS to complete a valid CMP pursuant to WSRA by July 2000. NPS issued the Record of Decision adopting the 2000 Merced Wild and Scenic River Comprehensive Management Plan on August 9, 2000. In present action, Friends of Yosemite Valley and MERG (collectively “Plaintiffs”) initially challenged the 2000 Merced Wild and Scenic River Comprehensive Management Plan (“2000 MRP”) and Final Environmental Impact Statement (“2000 FEIS”), and the August 9, 2000 Record of Decision (“2000 ROD”) implementing the 2000 MRP and the 2000 FEIS. Plaintiffs contended that Defendants had failed to prepare a valid CMP that protects and enhances the natural values of the Merced River in Yosemite National Park in compliance with WSRA and had also violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., (“NEPA”), and the Administrative Procedures Act, 5 U.S.C. § 701, et seq., (“APA”). On March 22, 2002, this court issued its opinion generally upholding the 2000 MRP. See Friends of Yosemite Valley v. Norton, 194 F.Supp.2d 1066 (E.D.Cal.2002), reversed in part and remanded, 348 F.3d 789 (9th Cir.2003). This court did find that Plaintiffs were entitled to declaratory judgment and injunctive relief on their third cause of action for violation of the requirement pursuant to 16 U.S.C. Section 1274(a)(62)(A) to adopt appropriate revisions to the Yosemite General Management Plan. Friends of Yosemite, 194 F.Supp.2d. at 1071. Plaintiffs appealed portions of this court’s ruling and the United States Court of Appeals for the Ninth Circuit entered its opinion on October 27, 2003, reversing this court’s opinion in part by finding that the 2000 MRP violated WSRA by: 1) insufficiently addressing user capacities; and 2) improperly setting river area boundaries within the El Portal administrative site. Friends of Yosemite, 348 F.3d at 803. The court further found that the 2000 MRP and its EIS contained sufficient data for a programmatic plan under WSRA and NEPA, and that the NPS did not violate its duty to cooperate with water pollution agencies. The portion of the Ninth Circuit’s opinion which is now particularly relevant provides as follows: A. User Capacities The district court erred in determining that the CMP adequately “address[ed] ... user capacities” as required by § 1274(d)(1). The current CMP is deficient in its approach to user capacities because its principal method for addressing user capacities, the VERP framework, contains only sample standards and indicators. Thus, the CMP fails to yield any actual measure of user capacities, whether by setting limits on the specific number of visitors, by monitoring and maintaining environmental and experiential- criteria under the VERP framework, or through some other method. The WSRA explicitly requires administering agencies to “prepare a[CMP] ... [that] shall address ... user capacities” within three full -fiscal years of a WSRS segment’s designation. Id. § 1274(d)(1). However, § 1274(d)(1) does not define the phrase “address ... user capacities.” In the absence of a statutory definition of the phrase, we look to the plain meaning of its terms. See Hells Canyon Alliance, 227 F.3d at 1177. “Address” means to “deal with or ■discuss.”' Random House Webster’s College Dictionary 16 (1991). “User” is defined as “a person or thing that [avails oneself of something],” id. at 1468, and “capacity” is “the maximum number that can be received or contained.” Id. at 201. Thus, applied to this case, the plain meaning of the phrase “address ... user capacities,” is simply that the CMP must deal with or discuss the maximum number of people that can be received at a WSRS. Based on this plain meaning, we do not read § 1274(d)(1) to require that the administering agency advance one particular approach to visitor capacity in all circumstances (e.g., a head count of all entrants to Yosemite). This interpretation of § 1274(d)(1) is buttressed by the interpretive guidelines jointly published in 1982 by the Secretary of Agriculture and the Secretary of the Interior. These “Secretarial Guidelines” are crafted to facilitate greater consistency in the agencies’ interpretation of the WSRA. See National Wild and' Scenic Rivers System: Final Revised Guidelines for Eligibility, Classification and Management of River Areas, 47 Fed.Reg. 39,454 (Sept. 7, 1982) (the “Secretarial Guidelines”). We defer to the Secretarial Guidelines as an exercise of the administering agencies’ authority to resolve ambiguities in the statute they administer. See United States v. Mead, 533 U.S. 218, 227, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). The Secretarial Guidelines interpret the WSRA to require the preparation of river “[m]anagement plans [that] state ... the kinds and amounts of public use which the river area can sustain without impact to the [ORVs],” and to mandate ongoing studies to “determine the quantity and mixture of recreation and other public use which can be permitted without adverse impact on the resource values of the river area.” 47 Fed.Reg. at 39, 458-59. Although these references to setting limits on the amount or quantity of public use clarify that the WSRA obliges the administering agency to provide actual limits in its CMP, the Secretarial Guidelines do not specify that this obligation can be satisfied only by capping the number of visitors. Thus, we interpret § 1274(d)(l)’s instruction that a CMP must “address ... user capacities” to require only that the CMP contain specific measurable limits on use. See also id. at 39,459 (explaining that § 1281(a) states “a nondegradation and enhancement policy for all designated river areas, regardless of classification”). This does not mean that the NPS is precluded from using the VERP to fulfill the user capacities requirement. However, the WSRA does require that the VERP be implemented through the adoption of quantitative measures sufficient to ensure its effectiveness as a current measure of user capacities. If the NPS is correct in projecting that it will need five years fully to implement the VERP, it may be able to comply with the user capacity mandate in the interim by implementing preliminary or temporary limits of some kind. Because the present version of the CMP fails to provide any concrete measure of use, we conclude that it fails sufficiently to address user capacities. Indeed, we note that the NPS’s proposed five-year timetable for the implementation of the VERP framework would not satisfy § 1274(d)(l)’s three-full-fiscal-year timetable even if the NPS were to have begun implementation of the VERP immediately upon Congress’ designation of the Merced. On remand, the NPS shall adopt specific limits on user capacity consistent with both the WSRA and the instruction of the Secretarial Guidelines that such limits describe an actual level of visitor use that will not adversely impact the Merced’s ORVs. B. WSRA Boundaries at El Portal The NPS violated the WSRA by drawing the boundaries at the Merced’s El Portal administrative site too narrowly. The WSRA requires a CMP to delineate river boundaries that “include an average of not more than 320 acres of land per mile measured from the ordinary high water mark on both sides of the river.” § 16 U.S.C. 1274(b). The CMP sets the river boundaries for the seventy-seven miles of the Merced that do not flow through El Portal at a distance of one-quarter mile from the ordinary high water mark on either side of the river. These boundaries are consistent with the statutory acre-age maximum. However, for the approximately four miles flowing through El Portal, the CMP sets the river boundaries to include only the greater of the -RPO or the one-hundred-year floodplain, plus adjacent wetlands and meadows. We have not yet decided a case involving WSRA river boundaries, but one of our sister circuits has reasoned that the setting of boundaries is an “administrative act” that falls within the agency’s statutory duty to administer the river area “in such manner as to protect and enhance the [ORVs] which caused it to be included in the [WSRS].” Sokol v. Kennedy, 210 F.3d 876, 878 (8th Cir.2000) (remanding for redetermination of boundaries consistent with § 16 U.S.C. 1281(a)). Although Sokol involved boundaries that were potentially overin-clusive, because they were not drawn on the basis of the statutorily-required “outstandingly remarkable values” criterion, we agree with the Eighth Circuit’s analytic approach. Accordingly, we conclude that the boundaries at El Portal are deficient because they were not devised pursuant to § 1281(a)’s protection and enhancement mandate. While the CMP associates specific ORVs with El Portal, the record does not reflect the precise location of these ORVs or how, in drawing the boundaries, the NPS sought to protect them. The CMP lists five categories of ORVs for El Portal, and provides the following descriptions: ■ Geologic Processes/Conditions — This segment contains, a.transition from igneous to metasedimentary rocks (metased-imentary. rocks are among the oldest in the Sierra Nevada). Recreation — This segment provides a range of river-related recreational opportunities, in particular white-water rafting and kayaking (class III to V) and fishing. Biological — This segment contains riverine habitats such as riparian woodlands and associated federal and state special status species, including Tomp-kin’s sedge and Valley elderberry longhorn beetle and .its critical habitat (elderberry shrub). Expanses of north-facing habitat allow unlimited access to the riparian zone for wildlife species. Cultural — This segment contains some of the oldest archeological sites in the Yosemite area, as well as many historic Indian villages and traditional gathering places. River-related historic resources include structures related to early tourism and industrial development. Hydrological Processes — This segment is characterized by continuous rapids. The El Portal segment also falls under the general “scientific” ORV identified by the CMP for the river’s main stem “because the river watershed is largely within designated Wilderness in Yosemite National Park.” The record reflects that some of El Portal’s ORVs are not protected by the present boundaries and, indeed, that not all of El Portal’s ORVs have been fully located. For example, the CMP points out a significant deficiency with respect to El Portal’s cultural ORVs: A systematic inventory for ethnographic resources has not been undertaken for El Portal.... [S]everal individuals and families have traditional ties to this area. Redbud, willow, sourberry, and other plant materials are known to be gathered here. There are at least three known cemeteries, two of which were used in historic times and are the burial places for ancestors of some local Indian families. In addition, although the CMP notes that a “comprehensive evaluation of cultural landscapes and historic structures at the El Portal Administrative Site, based on National Register criteria, has been completed,” it does not discuss whether such landscapes and structures are located within the present boundaries or if their protection and enhancement were considered when the boundaries were drawn. Indeed, the record reflects that NPS employees expressed concern about the effect of the boundaries on cultural ORVs during the drafting stage of the CMP. For example, one employee noted that “there are river-related archeological sites, considered part of the cultural resource ORV in El Portal, that lie outside the 100-y[ea]r floodplain ... that would be directly and adversely affected by administrative purposes (e.g., construction of employee housing at Hillside West).” Such omissions demonstrate that the CMP’s boundaries at El Portal could not possibly have been promulgated to protect and enhance such ORVs. In concluding that the river boundaries at El Portal were improperly drawn, we do not, as the NPS fears, establish “a preference for ... in-clud[ing] the absolute maximum number of acres on every part of the designated river,” or place a “special burden of justification on an agency if it chooses less than the absolute maximum average.” Instead, we hold that there is one burden of justification that generally applies to an administering agency’s determination of river boundaries: Boundaries set within the WSRA’s acreage requirement, regardless where such boundaries fall within the statutory range, must be drawn so as to protect and enhance the ORVs causing that area to be included within the WSRS. See § 16 U.S.C. 1281(a); Sokol, 210 F.3d at 879; 47 Fed.Reg. at 39, 459. Because the NPS failed to apply this standard, the CMP’s present boundaries at El Portal were not determined in accordance with law. Accordingly, on remand the NPS must redetermine the river area boundaries at El Portal under the proper standard. See § 5 U.S.C. 706(2)(A). Friends of Yosemite v. Norton, 348 F.3d at 796-799. The Ninth Circuit summarized its holding as follows: V. CONCLUSION For the reasons stated, we conclude that the CMP and its EIS contain sufficient data for a programmatic plan under the WSRA and NEPA, and that the NPS did not violate its duty to cooperate with water pollution agencies as required by § 16 U.S.C. 1283(a). We further conclude that the CMP violates the WSRA by insufficiently addressing user capacities and improperly setting river area boundaries within El Portal. We remand for the district court to enter an appropriate order requiring the NPS to remedy these deficiencies in the CMP in a timely manner. Inasmuch as the NPS was supposed to have completed a CMP for the Merced River some twelve years ago, we would also expect that the NPS would implement, as soon as is practicable, temporary or provisional measures designed to avoid environmental degradation pending the completion of its task. Id. at 803-04. On remand, NPS advised this court and Plaintiffs that it planned to proceed with several projects in the Yosemite Valley segment of the Merced River corridor in Yosemite National Park, which were tiered to the 2000 MRP and the Yosemite Valley Plan. Plaintiffs then moved for injunctive relief to prevent NPS from implementing those projects. On March 26, 2004, the court entered an order finding that the Ninth Circuit had not invalidated the 2000 MRP as a whole and denying Plaintiffs’ request for a broad injunction halting all projects tiered to the 2000 MRP. Plaintiffs appealed. On April 20, 2004, the Ninth Circuit issued an order clarifying its October 27, 2003 opinion and explaining that it had held the entire 2000 MRP to be invalid. It remanded the matter to this court for reconsideration of Plaintiffs’ motion in light of this clarification. Friends of Yosemite Valley v. Norton, 366 F.3d 731 (9th Cir.2004). On July 6, 2004, following a further round of briefing, this court vacated its March 26 order and directed NPS to comply with the Ninth Circuit’s April 20 order by “remedying in a timely manner the deficiencies found in the 2000 MRP, i.e., insufficient addressing of user capacities and improper setting of river area boundaries within El Portal.” It also ordered NPS to comply with NEPA by issuing a supplemental EIS. This court enjoined two projects: the Curry Village Campgrounds Project and the East Yosemite Valley Utilities Improvement Plan, pending completion of a new or revised CMP for the Merced River. With Defendants’ consent, the court enjoined NPS “from implementing projects and activities relating to Yosemite Lodge Development, the Yosemite Village Parking and Transit Area Improvements (Camp 6 Parking Lot), Curry Village Cabins, and the Camp Wawona Redevelopment and Proposed Land Exchange” until completion of a new or revised CMP. The court denied Plaintiffs’ motion for injunctive relief in other respects and allowed a number of projects to proceed, including the El Portal Office Building Annex, Curry Village Employee Dorms, the South Fork Bridge Replacement Project, tree stump removal, and data collection efforts. Finally, the court reiterated the finding that NPS would be required to provide specific references to the line or page numbers of the Park’s 1980 GMP, which would be amended by the new or revised river plan. The court directed that the injunction remain in place until “the NPS completes the new or revised CMP,” which this court ordered the agency to complete within one year. NPS published a notice of intent to prepare an environmental impact statement on the Revised Merced River Plan/SEIS in the Federal Register-on July 27, 2004. A series of public scoping meetings were held in mid-August in Oakland, Mariposa, Yosemite Valley, and El Portal, California. In response to public comment, the public scoping period was extended by two weeks and closed on September 10, 2004. The Draft Merced Wild and Scenic River Revised Comprehensive Management Plan and Supplemental Environmental Impact Statement was released for public review in January 2005. The Notice of Availability was published in the Federal Register on January 14, 2005, and the official review period continued through March 22, 2005. The Record of Decision for the Merced Wild and Scenic River Revised Comprehensive Management Plan was signed on July 25, 2005, adopting’ Alternative 2 from the SEIS. NPS issued a two-volume publication entitled, “Merced Wild and Scenic River Revised Comprehensive Management Plan and Supplemental Environmental Impact Statement” (“2005 Revised Plan”) in June 2005. With the completion of the 2005 Revised Plan, the court ruled on-October 27, 2005, that its July 6, 2004 injunction expired by its own terms and was no longer in effect. On November 11, 2005, Plaintiffs lodged their First Supplemental Complaint, alleging five causes of action against Defendants and challenging the 2005 Revised Plan under WSRA, NEPA and the APA. On December 2, 2005, Defendants filed an Answer to the Supplemental Complaint, and lodged the Administrative Record for the 2005 Revised Plan. Pursuant to a stipulation of the parties, the case now proceeds on cross motions for summary judgment. Oral argument was presented on May 1, 2006. LEGAL STANDARD Absent a separately-created right of action, the review of final agency action is governed by the Administrative Procedure Act under an “arbitrary or capricious” standard. 5 U.S.C. § 706(2)(A). Absent a showing of arbitrary action, a court must assume that an agency has exercised its discretion appropriately. Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Thus, the standard is “highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir.2000)(internal quotations omitted.). An agency’s decision should be overturned if it was “arbitrary, capricious, an abuse of discretion, other otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995). The Ninth Circuit has explained review of agency decisions as follows: Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (Marsh). We must determine whether the agency’s decision was made after considering the relevant factors and whether the agency made a clear error of judgment. Id. at 378, 109 S.Ct. at 1861. We may reverse the agency’s decision as arbitrary or capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1521 (9th Cir.1995). Western Radio Services Co., Inc. v. Espy, 79 F.3d 896, 900 (9th Cir.1996), cert. denied, 519 U.S. 822, 117 S.Ct. 80, 136 L.Ed.2d 38 (1996). In the present case, Plaintiffs contend that Defendants' are not' entitled to the presumption discussed in Kleppe that NPS has exercised its discretion appropriately. Rather, Plaintiffs argue that because the Ninth Circuit found that NPS violated WSRA in regard to user capacities and the El Portal boundaries, it has already been found to have acted arbitrarily in this case, and it is not entitled to the presumption that it has exercised its discretion appropriately. Plaintiffs also emphasize that courts have found that NPS violated the law in regard to Yosemite National Park on at least three different occasions in the last six years. See Sierra Chib v. United States, 23 F.Supp.2d 1132, 1134 (N.D.Cal.1998) (substantial likelihood NPS violated NEPA); Sierra Club v. Babbitt, 69 F.Supp.2d 1202, 1263 (E.D.Cal.1999) (NPS violated WSRA and NEPA); Friends of Yosemite, 348 F.3d at 797, 799, 803 (NPS violated WSRA). Plaintiffs conclude that under these circumstances, NPS is not entitled to any presumption of compliance with the law in this instance. In response, Defendants argue that the Ninth Circuit’s finding that it had violated WSRA in two respects was not based on the conclusion that it had acted arbitrarily and capriciously, but rather on the court’s legal interpretation of WSRA. In ruling on this case, the'Ninth Circuit repeated the well-known standard that an agency’s decision will be set aside “only if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Friends of Yosemite Valley, 348 F.3d at 793, quoting Hells Canyon Alliance v. United States Forest Serv., 227 F.3d 1170, 1176-77 (9th Cir.2000). The court found that “[t]he current CMP is deficient in its approach to user capacities because its principal method for addressing user capacities, the VERP framework, contains only sample standards and indicators,” and that “[t]he NPS violated WSRA by drawing the boundaries at the Merced’s El Portal administrative site too narrowly.” Friends of Yosemite Valley, 348 F.3d at 796, 797. Nowhere in its opinion does the court make a finding regarding the actual nature of the NPS decision, i.e., whether it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Because this standard contains the catch-all “otherwise not in accordance with the law,” this court cannot find that the Ninth Circuit necessarily determined that the NPS’s decision was arbitrary, capricious or an abuse of discretion. Significantly, Plaintiffs have not provided the court with any direct authority for the proposition that a reversal of an administrative agency’s decision by the appeals court results in the application of a different standard of review when the same issue comes before the district court on remand. Accordingly, this court concludes that the regular APA standard for the review of agency decisions applies in this case. ■ Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984). Under summary judgment practice, the moving party [Ajlways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) Summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. 2548. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323, 106 S.Ct. 2548. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law,■ Anderson v. Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.1987). In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank, 391 U.S. at 290, 88 S.Ct. 1575; T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e) advisory committee’s note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985). UNDISPUTED FACTS Both parties to this action have filed statements of undisputed facts, to which the other party has responded. The court finds, however, that Defendants’ Response to Plaintiffs’ Concise Statement of Facts fails to comply with the Local Rules for the Eastern District. Local Rule 56-260 provides in part as follows: (b) Opposition. Any party opposing a motion for summary judgment or summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts which are undisputed and deny those which are disputed, including with each denial a citation to the particular portions of any pleadings, affidavit, deposition, interrogatory answer, admission or other document relied upon in support of that denial. In this case, Defendants have reproduced each of the 38 itemized facts in Plaintiffs’ Concise Statement of Facts and have stated whether they dispute each fact. They fail, however, to provide any citation to any portion of the administrative record relied upon in support of that denial. This is particularly egregious as Defendants’ response to many of Plaintiffs’ facts is a claim that the fact mischaracterizes the administrative record. This court considered ordering Defendants to file a response to Plaintiffs’ Concise Statement of Facts that would comply with the Local Rules, but in an effort to expedite resolution of this case, will not to do so. Defendants are cautioned, however, that any future response to a statement of facts filed in connection with a motion for summary judgment in this or any other case filed before the undersigned must be in compliance with Local Rule 56-260(b). The undisputed facts regarding the procedural history of this case are set forth above. The facts regarding the contents of the administrative record are discussed below. DISCUSSION Subject Matter Jurisdiction Defendants contend that this court lacks subject matter jurisdiction to review Plaintiffs’ challenge to the 2005 Revised Plan. Previously, in response to Plaintiffs’ challenge to the 2000 MRP, Defendants raised two jurisdictional challenges: 1) Plaintiffs’ claims were not ripe for judicial review; and 2) Plaintiffs lacked standing. This court rejected those challenges in its decision issued March 22, 2002. Friends of Yosemite Valley v. Norton, 194 F.Supp.2d 1066, 1074-1080. Defendants did not appeal this court’s ruling on the jurisdictional issue and the Ninth Circuit did not address it. Defendants claim that a significant new development has occurred since this court’s March 22, 2002 ruling and the Ninth Circuit’s October 2003 ruling on appeal, which requires this court to dismiss Plaintiffs’ claims. This new development is the issuance of the opinion in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (“SUWA”). SUWA involved three claims, one of which was that the Bureau of Land Management (“BLM”) had failed to meet its statutory mandate under the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. Section 1782(c). The particular provision at issue directed the BLM “not to impair the suitability” of potential wilderness areas. Id. at 2377. The plaintiffs in SUWA alleged that off-highway vehicle use was damaging potential wilderness areas on BLM lands in Utah, and they brought suit under APA Section 706(1), alleging a failure to comply with FLPMA and seeking an order to compel the agency to fulfill its “nonimpairment obligation.” Id. at 2378. The Tenth Circuit held that the FLPMA nonimpairment mandate constituted a “mandatpry, nondiscretionary duty” of the BLM that could be compelled under Section 706(1) of the APA. Id. The Supreme Court granted certiorari and unanimously reversed the decision of the Tenth Circuit. The Court defined the issue in the case as whether “the authority of a federal court under the ... (APA) to ‘compel agency action unlawfully withheld or unreasonably delayed/ 5 U.S.C. § 706(1), extends to the review of the [BLM’s] stewardship of public lands under certain statutory provisions and its own planning documents.” Id. at 57-58, 124 S.Ct. 2373. The Court held that “a claim under Section 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Id. at 64, 124 S.Ct. 2373. The Court also explained the limits the APA places on judicial review as follows: Where no other statute provides a private right of action, the “agency action” complained of must be “final agency action.” § 704 (emphasis added). “Agency action” is defined in § 551(13) to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act. ” (Emphasis added.) The APA provides relief for a failure to act in § 706(1): “The reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed.” Sections 702, 704, and 706(1) all insist upon an “agency action,” either as the action complained of (in §§ 702 and 704) or as the action to be compelled (in § 706(1)). The definition of that term begins with a list of five categories of decisions made or outcomes implemented by an agency — “agency rule, order, license, sanction [or] relief.” § 551(13). All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: “an agency statement of ... future effect designed to implement, interpret, or prescribe law or policy” (rule); “a final disposition ... in a matter other than rule making” (order); a “permit ... or other form of permission” (license); a “prohibition ... or taking [of] other compulsory or restrictive action” (sanction); or a “grant of money, assistance, license, authority,” etc., or “recognition of a claim, right, immunity,” etc., or “taking of other action on the application or petition of, and beneficial to, a person” (relief). §§ 551(4), (6), (8), (10), (11). Id. at 61-62, 124 S.Ct. 2373. Based on these standards the Court held that the BLM’s alleged failure to act was not remediable under the APA, because the plaintiffs alleged general deficiencies in compliance which lacked the specificity requisite for agency action. Id. at 66-67, 124 S.Ct. 2373. An obvious distinction between the SUWA case and the case before this court is that SUWA involved a claim that a federal agency had failed to act, while Plaintiffs in the present case challenge, at least to some degree, an affirmative action by Defendants. Defendants claim, however, that SUWA’s holding is not limited to challenges to agency actions unreasonably delayed or unlawfully withheld pursuant to Section 706(1) of the APA. Rather, they argue, the holding applies equally to a final agency action under the remaining APA provisions, including Section 704 and Section 706(2)(A)-(D). The court agrees. See SUWA, 542 U.S. at 62, 124 S.Ct. 2373 (“[s]ections 702, 704, and 706(a) all insist upon an ‘agency action/ either as the action complained of (in §§ 702 and 704) or as the action to be compelled (in § 706(1)).”) Applying SUWA to the present case, Defendants argue that Plaintiffs, by seeking review of NPS’s general adoption of the 2005 Revised Plan, rather than challenging a discrete final agency action taken pursuant to that plan, have filed the same type of programmatic challenge to the overall management of the Merced River areas that the Supreme Court rejected in SUWA. Central to Defendant’s argument is their claim that Plaintiffs have not challenged any one of the five discrete “agency actions” listed in APA § 551(13). Defendants claim that to the contrary, Plaintiffs seek judicial intervention into the type of broader-scale planning effort, which, under SUWA, is outside the permissible scope of judicial review under the APA. Defendants also discuss a recent Ninth Circuit case which interprets SUWA. In Center for Biological Diversity v. Vene-man, 394 F.3d 1108 (9th Cir.2005), the plaintiffs alleged that the United States Forest Service had violated WSRA by failing to consider certain rivers as potential segments of the Wild and Scenic Rivers System while planning for the use and development of water and related land resources in Arizona national forests. On rehearing, the Ninth Circuit held that under SUWA, the Forest Service’s failure to consider the rivers when engaging in federal land planning was not a discrete agency action that would permit review under the APA. The court therefore affirmed the district court’s dismissal for lack of subject matter jurisdiction. Veneman, 394 F.3d at 1113. Defendants contend that Plaintiffs’ Supplemental Complaint similarly fails to challenge a discrete final “agency action” under WSRA. Defendants argue that Plaintiffs challenge the 2005 Revised Plan in the abstract, but that the 2005 Revised Plan does not constitute a “rule, order, license, sanction, or relief,” as required for judicial review under the APA. Defendants suggest that if and when NPS does take a reviewable final agency action regarding a specific implementation project to which Plaintiffs object, they could attempt to challenge that action under Sections 704 and 706(2)(A)-(D) of the APA, provided that the action in question qualifies as one of the five categories of “agency action” defined in the APA. In response, Plaintiffs contend, that they have standing to pursue this action and that the court has subject matter jurisdiction. In support of standing, Plaintiffs assert that the decisions made by NPS in the 2005 Revised Plan and ROD will cause them and their members injuries that are within the zone of interests of WSRA and NEPA. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (constitutional minimum of standing contains three elements of injury in fact, casual connection between the injury and the conduct complained of, and likelihood that the injury will be redressed by a favorable decision). Defendants clarify their position in their Memorandum Opposing Plaintiffs’ Motion for Summary Judgment and Reply Supporting Defendants’ Motion for Summary Judgment, explaining that they do not challenge Plaintiffs’ Article III standing. Rather, they state, the reference to standing arose in the context of their discussion of Veneman, in which the Ninth Circuit found that because the plaintiff failed to allege a discrete agency action that the Forest Service had failed to take, the plaintiff had no standing under Section 706(1). Veneman, 394 F.3d at 1113. In regard to subject matter jurisdiction, Plaintiffs first argue that Defendants are wrong in claiming that the requirements of the APA implicate a court’s jurisdiction. It is difficult to reconcile this argument with the decisions in SUWA (upholding trial court’s dismissal for lack of subject matter jurisdiction) and Veneman (after finding Plaintiffs had no standing, and “given the Supreme Court’s holding in SUWA,” affirming the trial court’s dismissal for lack of jurisdiction). The court therefore rejects this argument. Plaintiffs next argue that if they must allege final agency action subject to review under the APA to establish subject matter jurisdiction, they have done so, because they challenge under Section 706(2)(A) of the APA the ROD adopting the Revised Plan and EIS that underlies it. Plaintiffs correctly state that there is a right of judicial review of “agency actions” under Section 702 of the APA. As set forth above, one of the things that qualifies under Section 551(13) as an agency action is a “rule.” A “rule,” in turn, is defined to include “the whole or' part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy....” 5 U.S.C. Section 551(4). Plaintiffs argue that the ROD is a rule under the APA, because it interprets and implements WSRA as applied particularly to the Merced River. Therefore, Plaintiffs argue, the ROD is an “agency action” under the APA. Plaintiffs further argue that the ROD is a “final” ágency action subject to review under Section 704 of the APA. Under Bennett v. Spear, 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), final agency action exists if: (1) the action marks the consummation of the agency’s decision-making process, meaning it is not “merely tentative or interlocutory in nature;” or (2) the action determines rights or obligations, and has legal consequences. Plaintiffs assert that the ROD satisfies the first Spear criterion because it consummates NPS’s decisionmaking related to its duty under WSRA and the Ninth Circuit’s order. They also assert that the EIS upon which the ROD is based consummates NPS’s decisionmaking under NEPA to perform its duties to publicly consider and evaluate the environmental consequences of its actions. Plaintiffs claim that the ROD also satisfies the second criterion in Spear, because it determines rights and obligations and has legal consequences. For example, the ROD addresses user capacities by determining the limits on the number of people who may use the Merced River corridor in the next five years, and also addresses river boundaries and management zoning in El Portal. Plaintiffs argue that the ROD has legal consequences, not only because of these two decisions, but also because it immediately authorizes continuing uses of the river corridor. In regard to SUWA, Plaintiffs contend that the present case is distinguishable because SUWA involved the issue of whether a party could bring a “failure to act” claim challenging an agency’s failure to comply with a broad statutory goal that did not require any particular discrete agency action. In contrast, argue Plaintiffs, they do not seek to compel NPS to perform any tasks for the first time. Rather NPS has already acted, in part because WSRA and the Ninth Circuit compelled it to do so, and Plaintiffs now seek review of the ROD that purports to comply with those mandates. Plaintiffs argue that their challenges are thus to a final agency action and are subject to review under section 706(2) of the APA. They also argue that the agency duty at issue in SUWA to “avoid impairment” is not analogous to NPS’s affirmative duty under WSRA to address user capacities, particularly as ordered by the Ninth Circuit. They conclude that NPS’s decisions taken in an attempt to comply with WSRA and the order of the Ninth Circuit are subject to judicial review as final agency actions. In regard to Veneman, the Ninth Circuit case decided after SUWA, Plaintiffs argue that this again involves a failure to act, which is dissimilar to the present case. Plaintiffs also argue that in another case decided after SUWA, the Ninth Circuit held that it did have jurisdiction over a forest plan adopted pursuant to the National Forest Management Act, which they claim is analogous to a wild and scenic river management plan. In Natural Resources Defense Council v. United States Forest Service, 421 F.3d 797, 804 (9th Cir.2005), Congress had placed a provision in an omnibus appropriations act stating that the ROD for the 2003 SEIS for the 1997 Tongass Land Management Plan was not subject to judicial review. The government argued that Congress had intended to insulate the entire 1997 plan from judicial scrutiny. The Ninth Circuit rejected this argument and found that it had jurisdiction under 28 U.S.C. Section 1291 to review the final decision and judgment of the district court dismissing the plaintiff’s claims. The decision contains no reference to SUWA or a lack of jurisdiction under the APA. Plaintiffs distinguish one final case. In Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the plaintiffs brought an action suing the Secretary of the Interior over what they characterized as his “land withdrawal review program,” which concerned at least 1250 actions across 11 western states and the classification of lands which might in the future allow entry for activities such as mining. The Supreme Court held that the program in question was “not an ‘agency action’ within the meaning of’ the APA. Id. at 890, 110 S.Ct. 3177. The Court noted that the plaintiffs’ complaint “does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations.” Id. Plaintiffs argue that by contrast, they challenge a specific CMP and EIS that together have immediate effects on a discrete wild and scenic river. They stress that in Lujan, the Court explained that, “we intervene in the administration of the laws only when, and to the extent that, a specific ‘final agency action’ ” has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S. 158, at 164-66, 87 S.Ct. 1520, 1524-1526, 18 L.Ed.2d 697 (1967). Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole ‘program’ to be revised by the agency in order to avoid the unlawful result that the court discerns.” In concluding, Plaintiffs note that the Ninth Circuit directed NPS to “adopt specific limits on user capacity consistent with both the WSRA and the instruction of the Secretarial Guidelines that such limits describe an actual level of use that will not adversely impact the Merced’s ORVs.” Friends of Yosemite Valley, 348 F.3d at 797. Plaintiffs claim that Defendants’ argument that the 2005 Revised Plan is not a final agency action implies that it does nothing to change the status quo. Plaintiffs argue that if this is true, NPS has not complied with the Ninth Circuit’s directive. The court agrees with Defendants that whether Plaintiffs rely on Section 706(1) or 706(2) is immaterial, because, as explained in SUWA, an agency action includes both action and inaction. See 5 U.S.C. Section 551(13). The court also agrees with Defendants that regardless of under what section a legal challenge is brought, it must concern final agency action. However, the court must agree with Plaintiffs that the ROD adopting the 2005 Revised Plan is a final agency action. That is, the court finds, that the ROD is an “agency statement of .general or particular applicability and future effect designed to implement [and] interpret ... law or policy” as to the application of WSRA to the Merced River, and is therefore a “rule” under Section 551(13). Thus, the ROD is an agency action. Further, the court finds that the ROD marks the “consummation of the [NPS’] decisionmaking process” under WSRA and the Ninth Circuit’s order and determines rights or obligations, and has legal consequences in that it establishes limits on visitor capacity for the next five years and addresses river boundaries and management zoning in El Portal. Thus, the 2005 ROD is a final agency action subject to judicial review under the APA. 5 U.S.C. Section 702. Accordingly, the court finds that it continues to have subject matter jurisdiction over this action. Defendants’ Motion to Strike Plaintiffs filed four declarations and several exhibits in conjunction with their motion for summary judgment. Defendants have moved to strike these declarations and their supporting exhibits, contending that they lie outside the scope of the administrative record in this case. Defendants qualify this contention somewhat, stating that they do not seek to strike the portions of the declarations of Bart Brown and Greg Adair to the extent that they are offered solely for the purpose of establishing standing. Because Defendants clarify in their opposition and reply that they do not challenge Plaintiffs’ Article III standing, the court has disregarded Mr. Brown’s declaration in its entirety and Mr. Adair’s declaration to the extent it is offered to establish standing. It is undisputed that the focal point for judicial review is the administrative record before the agency at the time of the agency’s decision and “not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). There are, however, exceptions to this general rule. In Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988), the Ninth Circuit explained: However, certain circumstances may justify expanding review beyond the record or permitting discovery. See, e.g., Public Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). The district court may inquire outside the administrative record when necessary to explain the agency’s action. Id. at 793-94. When such a failure to explain agency action effectively frustrates judicial review, the court may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The court’s inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision. Hintz, 800 F.2d at 829. The district court may also inquire outside of the administrative record “when it appears the agency has relied on documents or materials not included in the record.” Id. In addition, discovery may be permitted if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action. Id. Defendants claim that the declarations and supporting exhibits at issue here do not fall within one of these exceptions. Plaintiffs oppose Defendants’ motion, claiming that the extra-record evidence does qualify for the exceptions. Plaintiffs explain that they submit the declaration of Greg Adair and the accompanying photographs for authority in addition to the administrative record concerning the adverse impacts and degradation to specific areas of the Park due to the 200 MRP. They state that the declaration offers only what Defendants have already been alerted to through the comments of Plaintiffs and others, as set forth in the administrative record. They stress that the photographs provide a visual illustration of actual conditions in the Park. Plaintiffs submit the declaration of Bridget McGinniss Kerr to show that the SEIS fails to give the decisionmaker or public an accurate portrayal of the existing resources and their location in relation to what may occur during the zoning design. Plaintiffs claim that Defendants have not revealed the relationship between zoning and cultural and biological resources, and have therefore failed to provide necessary and relevant data. Finally, Plaintiffs present the declaration of Patrick Rhoan, offering him as an expert competent to testify regarding Native American experiences and cultural resources relied upon in Yosemite Valley and along the Merced River corridor. Plaintiffs rely upon Mr. Rhoan’s testimony to show the damage caused to traditional cultural resources by development, and along with the testimony of Ms. Kerr, to show that NPS failed to consider a reasonable alternative. They also argue that the testimony of Mr. Rhoan and Ms. Kerr reveals the extent to which NPS in the SEIS has “swept problems or criticisms under the rug.” National Audubon Soc., 46 F.3d at 1447. The court has reviewed the extra-record evidence submitted by Plaintiffs and concludes that this evidence is unnecessary for the court’s understanding of the issues currently before it. Therefore, the court has disregarded this evidence for the purposes of the issues resolved in the present opinion. However, this opinion does not address the injunctive relief sought by Plaintiffs, and the court has not yet determined whether the evidence should be considered by the court in resolving the issue of that relief. Accordingly, the court declines to strike the evidence at this time. New or Revised Plan Plaintiffs contend that the 2005 Revised Plan fails to comply with the express requirements of WSRA, as confirmed by the Ninth Circuit’s decision, to have one CMP for the Merced River. Plaintiffs rely on the language from the Ninth Circuit’s April 20, 2004 order noting that it had previously “held that the entire Merced Wild and Scenic River Comprehensive Management Plan (“CMP”) is invalid” and requiring the NPS to prepare “a new or revised CMP.” Plaintiffs present two related arguments. First, Plaintiffs argue that although NPS captions the new document “Revised Comprehensive Management Plan,” it is not comprehensive. Rather, by its own terms, the 2005 Revised Plan “is intended to supplement and amend the Merced River Plan/FEIS that was completed in June 2000.” Revised Plan, 1-25. Plaintiffs complain that, “[t]he Park Service has merely issued supplemental volumes as amendments to the invalid 2000 CMP, expecting this court and the public to probe some thousands of pages in six volumes of material, with cross-referencing and incorporation, to try and glean what NPS claims is a comprehensive plan.” Plaintiffs further claim that the 2005 Revised Plan focuses on user capacity, river area boundaries, and revision of the 1980 General Management Plan, Revised Plan, 1-6, and makes only cursory mention of such elements as outstandingly remarkable values, management zones and river protection overlay, referring the reader instead to the 2000 MRP. Revised Plan, I-13, 1-17 (“refer to the Merced River Plan/ FEIS for a more detailed description of the River Protection Overlay and its specific prescriptions”); 11-16 (explaining that “[m]anagement zoning for the Merced River corridor was ‘adopted by the 2000 Merced River Plan’ ” and referring the reader to pages 57-101 of the summary document completed in February 2001); 11-30 (“[a] detailed discussion of the relationship between specific management zones and the river’s Outstanding Remarkable Values can be found in the Merced River Plan (NPS 2001a)”). Plaintiffs conclude that because the 2005 Revised Plan relies on the 2000 MRP, it must be rejected as “not in compliance with WSRA as interpreted by judicial orders in this case.” While Plaintiffs do not dispute NPS’s ability to use information and appropriate anal-yses from the 2000 MRP in a new or revised plan, they argue that NPS is required to issue a single CMP that contains all management decisions and environmental analyses. Second, Plaintiffs contend that reliance on the 2000 MRP is improper not only because the 2005 Revised Plan is therefore not comprehensive, but also because the 2000 MRP has been held to be invalid. Thus, Plaintiffs argue, while the ROD for the 2005 Revised Plan expressly states that it “will amend the existing 2000 Merced River Plan,” there is no “existing” 2000 Merced River Plan. Essentially, Plaintiffs argue that any reference to, or reliance on, the 2000 MRP as a separate, free-standing entity apart from the 2005 Revised Plan is improper, because that plan has been held to be invalid by the Ninth Circuit. In response, Defendants contend that the 2005 Revised Plan constitutes a properly approved revised CMP. They restate Plaintiffs’ argument as follows: “plaintiffs claim that it was improper for the defendants to reincorporate management elements and data from the 2000 Plan into the Revised Plan.” Defendants then argue that Plaintiffs’ counsel disavowed this position at the October 24, 2005 hearing and conclude that Plaintiffs therefore cannot now claim that it was improper for NPS to reuse data and management elements from the 2000 Plan. After review of the papers and after hearing the oral arguments of the parties, the court finds that Defendants’ argument does not accurately reflect Plaintiffs’ position. Plaintiffs do not contend that it was improper for Defendants to reincorporate management elements and data from the 2000 MRP into the 2005 Revised Plan. They do not contend that the NPS must come upon with a new plan that reexamines all of the elements of WSRA, without using any elements of the 2000 MRP. What Plaintiffs contend is that Defendants may not rely on the 2000 MRP as a separate, existing plan in addition to the 2005 Revised Plan. They argue that the 2005 Revised Plan must be wholly self-contained and that because the 2000 MRP has been declared invalid, the 2005 Revised Plan cannot refer the reader to it as an ongoing plan. Plaintiffs contend that NPS is required to issue a single CMP that contains all management decisions and environmental analyses. The court and the parties find themselves at the present juncture because of the need to interpret the Ninth Circuit’s opinion issued October 27, 2003, and the clarifying order issued April 20, 2004. On remand from the appeal, this court stated in part as follows: As explained above, the Ninth Circuit reversed this court’s March 22, 2002 opinion on two issues only, finding that the MRP violated WSRA by insufficiently addressing user capacity and by improperly drawing the river boundaries within El Portal. The Ninth Circuit otherwise upheld the MRP and EIS on the points on which Plaintiffs challenged it. After reviewing Plaintiffs’ arguments in depth, this court finds that Plaintiffs have failed to establish that the Ninth Circuit’s opinion invalidates the existing MRP. Although not determinative, the court finds evidence to support this finding in the express language of the Ninth Circuit that “[w]e remand for the district court to enter an appropriate order requiring the NPS to remedy these deficiencies in the CMP in a timely manner.” Friends of Yosemite, 348 F.3d at 803 [emphasis added.] Thus, the court rejects Plaintiffs’ argument that the Ninth Circuit’s opinion requires this court to enjoin all pending projects which are dependent upon the Valley Plan, which is in turn dependant upon the MRP. Memorandum Opinion and Order Following Remand, 28. On April 20, 2004, the Ninth Circuit issued an order stating as follows: We write to clarify our Opinion of October 27, 2003, Friends of Yosemite Valley v. Norton, 348 F.3d 789, 796-99 (9th Cir.2003). There we held that the entire Merced Wild and Scenic River Comprehensive Management Plan (“CMP”) is invalid due to two deficiencies: (1) a failure to adequately address user capacities; and (2) the improper drawing of the Merced River’s boundaries at El Portal. While we remanded to “the district court to enter an appropriate order requiring the [National Park Service] to remedy these deficiencies in the CMP in a timely manner,” id. at 803, we did not “otherwise uphold the [CMP].” District Court’s Memorandum Opinion and Order Following Remand at 28. Rather, our Opinion merely stated that the additional challenges to the CMP brought by Friends of Yosemite Valley and Maripo-sans for Environmentally Responsible Growth (collectively, “Friends”) lacked merit. Pursuant to our original Opinion, the National Park Service (“NPS”) must prepare a new or revised CMP that adequately addresses user capacities and properly draws the river boundaries at El Portal. Because the district court based its denial of Friends’ motion for injunctive relief on a misconstruction of our Opinion, we remand this matter to it for reconsideration of Friends’ motion in light of this clarification of our prior holding. Pending the district court’s reconsideration of this matter, we grant a temporary stay of proceedings and an injunction prohibiting NPS from implementing any and all projects developed in reliance upon the invalid CMP. IT IS SO ORDERED. Friends of Yosemite Valley v. Norton, 366 F.3d 731 (9th Cir.2004). Thus, in its clarifying order, the Ninth Circuit stated that its opinion found the “entire” 2000 MRP was “invalid” due to the two deficiencies and that its opinion did not “otherwise uphold the [CMP].” This court finds that Plaintiffs are correct in arguing that because the Ninth Circuit found the 2000 MRP to be invalid, the 2005 Revised Plan cannot logically refer to it and rely on it, as a separate, existing entity, to create a “new or revised” plan. As Plaintiffs’ counsel stated, there is nothing wrong with Defendants using parts (even very large parts) from the 2000 MRP to create a whole new or revised plan. But that is not what Defendants have done. Defendants have proceeded from the assumption that the 2000 MRP still exists. For example, the ROD