                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 03-3439
                                ___________

Niobrara River Ranch, L.L.C.,          *
a Nebraska Limited Liability           *
Company; Lee M. Simmons,               *
                                       *
              Appellants,              *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * District of Nebraska.
Royce Huber, Refuge Manager,           *
Fort Niobrara Wildlife Refuge;         *
Ron Cole, Refuge Supervisor;           *
Ralph Morganweck, Regional             *
Director for Region 6, U.S. Fish       *
and Wildlife Service; Steven A.        *
Williams, Director, U.S. Fish &        *
Wildlife Service; Gale A. Norton,      *
Secretary of the U.S. Department of    *
the Interior,                          *
                                       *
              Appellees.               *
                                  ___________

                           Submitted: April 15, 2004
                              Filed: July 8, 2004
                               ___________

Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
                         ___________

RILEY, Circuit Judge.
       Niobrara River Ranch, L.L.C. and Lee Simmons (collectively, River Ranch)
filed this lawsuit against four officials of the United States Fish and Wildlife Service
and its supervising agency, the United States Department of the Interior (collectively,
Service), under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (C), (D)
(2000) (APA). River Ranch alleged the Service’s denial of River Ranch’s
application for a Special Use Permit (SUP) to operate a commercial canoeing
operation running through the Fort Niobrara National Wildlife Refuge (Refuge) was
arbitrary, capricious, contrary to law, and violated the Tenth Amendment.1 The
district court2 granted judgment in favor of the Service. We affirm.

I.     BACKGROUND
       The Refuge comprises 19,131 acres located along both sides of the Niobrara
River in north central Nebraska. The federal government owns the Refuge, and the
Service manages the Refuge under the National Wildlife Refuge System
Administration Act of 1966, as amended, 16 U.S.C. §§ 668dd-668ee (2000) (Refuge
Act). In 1991, a 76-mile stretch of the Niobrara River, including the river flowing
within the Refuge boundaries, was designated “scenic” pursuant to the Wild and
Scenic Rivers Act of 1968, 16 U.S.C. §§ 1271-1287 (WSRA). Pursuant to the
WSRA, scenic rivers “shall be preserved in free-flowing condition, and . . . they and
their immediate environments shall be protected for the benefit and enjoyment of
present and future generations.” Id. § 1271.

      The Refuge Act was amended in 1997, requiring the Service to develop
comprehensive conservation plans (CCPs) for all refuges within fifteen years. In
1999, the Service developed a CCP for the Refuge, which announced the Service was


      1
       River Ranch did not brief the Tenth Amendment claim below, and the district
court deemed the claim abandoned.
      2
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.

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implementing a temporary moratorium providing “no new outfitters will be issued
permits to launch canoes or tubes on the Refuge.” The CCP further provided “[r]iver
use on weekends in the summer will be capped at 1998 levels.” The CCP explained
that until a formal biological study could be completed, a temporary moratorium was
the best means of controlling alleged overcrowding on the river. The CCP also stated
the Service would prepare a River Management Plan (Plan) within two years, but,
subsequently, the Service revised the Plan’s estimated implementation date to the
2004 river season. Once prepared, the Plan will define acceptable river use levels.

       In late November 2002, River Ranch filed a SUP application to provide canoe,
tube, and kayak outfitting, which the Service denied in January 2003. In the notice
of denial, the Refuge Manager explained the Service could not issue the SUP until the
biological study and Plan were completed. River Ranch appealed the initial denial
to the Refuge Supervisor, who also denied the application on the same bases. River
Ranch then appealed the second-level denial to the Regional Director in Denver and
requested oral argument. The Regional Director granted the request for oral
argument, but later denied the appeal, issuing a final agency order in May 2003
affirming the SUP denial and reiterating the need for a temporary moratorium until
the completion of the biological study and Plan.

       After exhausting its administrative remedies, River Ranch filed this lawsuit in
June 2003, seeking declaratory and injunctive relief. At the request of the parties, the
court expedited trial in the case. Following a bench trial and oral arguments, the
district court held “the Service’s denial of the permit was lawful even though the
Service ha[d] been late in the development of its promised river management plan.”
The district court properly recognized the “deference owed administrative agencies
in cases like this is ‘substantial,’” while recognizing “‘deference’ does not mean
‘rubber stamp.’” (citation omitted).




                                           3
       The district court rejected River Ranch’s argument that no empirical evidence
existed to substantiate limiting the number of permit holders or to “grandfather”
existing permit holders. Instead, the district court found that, considering the
“documented evidence of rapidly increasing canoe usage and its potential for
‘devastation’ of nesting birds, it was entirely reasonable for the Service to impose a
moratorium.” The district court also rejected River Ranch’s argument that, by 2003,
river usage had declined significantly, the Plan was long overdue, and consequently,
no legitimate basis existed for denying the SUP, because River Ranch’s river usage
would not cause total river usage to exceed the 1998 cap established by the CCP. The
district court ruled “nothing [was] improper about denying a license to a new user
even though river usage by former users had declined.” Moreover, the district court
noted that although the Plan was long overdue, the delay, while troubling, was not a
sufficient reason to invalidate the Service’s denial of the SUP. Concluding River
Ranch had not met its burden of proving the Service had violated the law in denying
the SUP, the district court granted judgment in favor of the defendants and dismissed
the case with prejudice.

       On appeal, River Ranch argues (1) the temporary moratorium suspending
issuance of SUPs to new outfitters is not supported by a determination of “necessity”;
(2) the record evidence fails to establish the “reasonableness, necessity and
appropriateness” of the temporary moratorium; and (3) the temporary moratorium is
a management practice inconsistent with the requirements of the Refuge Act, because
the temporary moratorium discourages wildlife-dependent recreation instead of
encouraging recreation. For these reasons, River Ranch argues the Service’s refusal
to issue a SUP is contrary to law and should be set aside. The Service contends the
recreational use issue is one of “compatible use,” and the Service’s interpretation of
the Refuge Act should be given deference by this court. Moreover, the Service
argues it did not rely upon the “emergency power” provision of the Refuge Act,
because the Service did not suspend existing activities in the Refuge, but rather
established a temporary moratorium on issuing SUPs to new outfitters.

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II.     DISCUSSION
       We review de novo a district court’s decision whether an agency action violates
the APA. St. Luke’s Methodist Hosp. v. Thompson, 315 F.3d 984, 987 (8th Cir.
2003). Under the APA, an agency action shall not be set aside, as relevant here,
unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” 5 U.S.C. § 706(2)(A); “in excess of statutory . . . authority,”
id. § 706(2)(C); or “without observance of procedure required by law,” id.
§ 706(2)(D). Our scope of review is narrow, and we may not substitute our judgment
for that of the Service. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983); Rauenhorst v. Dep’t of Transp., 95 F.3d 715, 718-19
(8th Cir. 1996). However, an agency must provide a satisfactory explanation for its
actions based on relevant data. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. Our
review is limited to determining whether a challenged agency decision considered
“the relevant factors” and whether an agency has committed “a clear error of
judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977).

       Mindful of our narrow standard of review and the deference we must afford to
agency decisions, we conclude River Ranch failed to prove the Service’s temporary
moratorium on issuing SUPs to new outfitters is “arbitrary, capricious, an abuse of
agency discretion,” or contrary to law; “in excess of statutory . . . authority”; or
“without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), (D).
In instituting a temporary moratorium until such time as the river study is completed
and a Plan defining acceptable river use is prepared and implemented, the Service
properly considered the relevant factors and exercised its broad discretionary
authority to manage the Refuge. Based on the record, we conclude the Service
committed no clear error of judgment. See id.

     We reject River Ranch’s argument that the Service violated the Refuge Act by
implementing a temporary moratorium and by capping weekend river use to 1998

                                          5
levels. The Refuge Act does not require the Service to issue SUPs to new outfitters
while the Service studies the need to reduce river use. We also reject River Ranch’s
argument that the temporary moratorium violates the “emergency power” provision
of the Refuge Act. The Service has ample statutory authority to restrict recreational
use during the pendency of the river study and Plan implementation, and does not
need to exercise emergency power while it evaluates river use. Although some
interested parties may disagree with the Service’s decision to deny River Ranch a
SUP, mere disagreement with an agency decision does not render the Service’s
decision arbitrary or capricious. While we acknowledge alternate means of limiting
river use exist, we cannot, on the record before us, conclude the Service’s decision
to implement a temporary moratorium on new outfitting operations is arbitrary,
capricious, an abuse of agency discretion, or contrary to law; nor is the Service’s
decision “in excess of statutory . . . authority” or “without observance of procedure
required by law.” Id.

III.   CONCLUSION
       We affirm the well-reasoned and thorough decision of the district court
dismissing the complaint with prejudice. We reiterate the district court’s comment
that unreasonable delay here by the Service may become arbitrary, capricious, and an
abuse of discretion.
                       ______________________________




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