                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 99-1804NE
                                  _____________

David L. Sokol,                           *
                                          *
             Appellant,                   *
                                          *
      v.                                  *   On Appeal from the United
                                          *   States District Court
Roger G. Kennedy, in his official         *   for the District of
capacity as Director of the National      *   Nebraska.
Park Service; Bruce Babbitt, in his       *
official capacity as Secretary of the     *
United States Department of the           *
Interior; and United States of America,   *
                                          *
             Appellees.                   *

                                   ___________

                             Submitted: December 16, 1999
                                 Filed: April 10, 2000
                                  ___________

Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and WEBB,1 District
      Judge.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.



      1
         The Hon. Rodney S. Webb, Chief Judge, United States District Court for the
District of North Dakota, sitting by designation.
       David Sokol, a landowner, appeals from a summary judgment upholding the
boundaries for the Niobrara Scenic River area set by the National Park Service under
the Wild and Scenic Rivers Act. The District Court held that the Park Service correctly
chose which land adjacent to the Niobrara would be included within the protections of
the Act. The Park Service, however, did not select the land on the basis of the
"outstandingly remarkable values" standard required by the Act. We therefore reverse
and remand.

                                           I.

       The Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271 - 1287, protects selected
free-flowing rivers that "with their immediate environments, possess outstandingly
remarkable . . . values." 16 U.S.C. § 1271. In 1991, Congress amended the Act to
designate a portion of Nebraska's Niobrara River as a protected Scenic River.2 The
amendment did not specify which or how much land in the immediate environment of
the Niobrara River was ultimately to be included within the Act's protections.3 Instead,
it directed the Secretary of the Interior, pursuant to 16 U.S.C. § 1274(b), to select
detailed boundaries for protected land in the Niobrara River area, totaling no more than
320 acres per river mile. The Secretary delegated this authority to the Park Service.

      In 1992, the Park Service began the decision-making process to establish
boundaries for the river area, and to generate the required General Management Plan
and Environmental Impact Statement. This process was thorough and lengthy, lasting
over four years. The Park Service formed a planning team, led by Natural Resource


      2
        The Niobrara Scenic River Designation Act of 1991, Pub. L. No. 102-50, 105
Stat. 254, codified at 16 U.S.C. § 1274(a)(117).
      3
        On designation, however, provisional boundaries were immediately set at one-
quarter mile from the sides of the river banks. 16 U.S.C. § 1275(d). Provisional
boundaries remain in place until amended by the action of the administering agency.

                                          -2-
Specialist William Conrod, to gather and analyze information on the Niobrara River
area from a wide variety of public and private sources. The planning team also
developed its own information from personal observations and field studies of
resources along the river. The planning team assembled a large amount of information
that was used to create "resource maps." The team used these maps to develop
boundary alternatives, seeking to maximize protection of various resources in the area.
The Park Service also organized the Niobrara Scenic River Advisory Commission, a
body of local residents, businessmen, environmental groups, and state officials, that
contributed to the process and received public comment on the planned boundaries.

       The Park Service did not evaluate the land adjacent to the Niobrara River in
terms of "outstandingly remarkable" values. Instead, from the beginning, the planning
team analyzed the Niobrara River area in terms of "significant" and "important" values.
Park Service officials were more comfortable with the significance and importance
standards because they were familiar with them from other regulatory contexts.
Additionally, the planning team felt that the term, "outstandingly remarkable," was not
clear and was relevant only to the selection of new rivers for inclusion in the Wild and
Scenic Rivers System. Nevertheless, the planning team purported to adopt the
outstandingly-remarkable-values standard retroactively after Mr. Sokol complained, at
the September 15, 1995, meeting of the Advisory Commission, that the significant-
values standard violated the Act. The planning team's documents and field notes before
Mr. Sokol's complaint spoke only in terms of significance or importance.
Subsequently, the draft and final boundary alternatives, published by the team in 1996,
explained that "significant" and "important" were being used merely as synonyms for
"outstandingly remarkable." By the end of the process, the Park Service claimed to
have dropped the significant/important-values standard altogether, and the Park
Service's final Record of Decision speaks only in terms of "outstandingly remarkable
values."




                                          -3-
       In 1997, Mr. Sokol brought this suit in the District Court. He alleged that the
Park Service had violated the Act by failing to apply an outstandingly-remarkable-
values standard when selecting boundaries for the Niobrara Scenic River area. The
defendants replied, first, that this standard did not apply because the Park Service had
complete discretion under the Act to establish the boundaries as it saw fit. Second,
they maintained that even if the outstandingly-remarkable-values standard was required,
the Park Service had in fact used it. The District Court granted summary judgment for
the defendants, upholding the decision of the Park Service. Mr. Sokol brought this
appeal. We reverse and remand.

                                           II.

       Under the Administrative Procedure Act, we limit our review of the Park
Service's administrative action to a determination of whether the action was "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.
§ 706(2)(A). The Park Service failed to apply the relevant statutory authority in
making its decision. It selected land for inclusion in the Niobrara Scenic River area
without identifying and seeking to protect outstandingly remarkable values, as required
by the Wild and Scenic Rivers Act.

       We reject the defendants' first argument that the Park Service was free to select
land for the river area as it saw fit, without regard for the outstandingly remarkable
values that Congress sought to protect in the Niobrara. The defendants rely on 16
U.S.C. § 1274(b), pursuant to which Congress charged the Park Service to establish
detailed boundaries. They argue that Section 1274(b) allows them complete discretion
in choosing land, within the Section's acreage limitation.4 While it is true that Section


      4
        "The agency charged with the administration of each component of the national
wild and scenic rivers system . . . shall . . . establish detailed boundaries therefor
(which boundaries shall include an average of not more than 320 acres of land per mile

                                          -4-
1274(b) itself says nothing to the contrary, the defendants' argument completely ignores
controlling language elsewhere in the Act.

       Each river area in the Wild and Scenic River System must be "administered in
such manner as to protect and enhance the values which caused it to be included" in the
System. 16 U.S.C. § 1281(a). The values which cause a river area to be included in
the System are the "outstandingly remarkable . . . values" of the river and of the related
land adjacent to it.5 Selecting detailed boundaries is an administrative act; it is an
alteration of the river area already established by Congress.6 As an administrative act,
Section 1281(a) applied to the Park Service's selection of boundaries. Far from
exercising complete discretion under that Section, the Park Service was required to
make the boundary selection to protect and enhance the oustandingly remarkable values
that caused the Niobrara River area to be included in the System.

      Accordingly, we reject the defendants' contention that the Wild and Scenic
Rivers Act provided no meaningful standard for the selection of detailed boundaries;


. . ..)" 16 U.S.C. § 1274(b).
      5
         A river area may be "caused to be included" in the System, for the purposes
of Section 1281(a), only if it contains "a free-flowing stream and related adjacent land
area that possesses one or more of the values referred to in Section 1271 of this title."
16 U.S.C. § 1273(b). Section 1271 provides in turn: ". . . certain selected rivers of the
Nation which, with their immediate environments, possess outstandingly remarkable
scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar
values, shall be preserved . . . [and] they and their immediate environments shall be
protected. . . ." Thus, the "values" referred to in Section 1281(a) are the "outstandingly
remarkable" values set out in Section 1271.
      6
        Once a river area is included by Congress in the System, river-area boundaries
are automatically established, on a provisional basis, one-quarter mile from the river's
banks. 16 U.S.C. § 1275(d). An agency's selection of detailed boundaries does not
bring the river area into existence; the river area exists before agency action.

                                           -5-
this interpretation conflicts with the administrative duty clearly set out in Section
1281(a).7 It also contradicts the Park Service's own prior interpretation of the Act.8
The defendants argue correctly that the Park Service was not required to include only
land with outstandingly remarkable values. The Park Service's statutory duty was to
establish detailed boundaries, within the acreage limits of Section 1274(b), that would
protect and enhance the outstandingly remarkable values that caused the river area to
be included in the Wild and Scenic Rivers System. This duty does not always bar the
administering agency from including unremarkable land; indeed, the Act could require
such inclusion where necessary to protect outstandingly remarkable resources, e.g.
because of the need for buffer zones around resources or because of discontinuities in
a resource's locations. Equally, the Act does not require that the boundaries encompass
all the outstandingly remarkable resources; this might be impossible given the acreage
limitation. Neither categorical alternative is required by our decision. The Act allows
the administering agency discretion to decide which boundaries would best protect and
enhance the outstandingly remarkable values in the river area, but it must identify and
seek to protect those values, and not some broader category.

        We also reject the defendants' second argument -- that the Park Service did, in
fact, identify and seek to protect the outstandingly remarkable values of the Niobrara
River area. As the defendants admit, the planning team consistently analyzed resources
in the Niobrara for their "significance" and "importance." These terms are not



      7
         Such an open-ended and standardless interpretation of the Act would also
leave defendants open to a claim of unconstitutional delegation of legislative power.
We choose to construe the Act in such a way as to avoid any such constitutional
question.
      8
         See Memorandum of National Park Service Associate Director, Denis Glavin,
J.A. at 1522. (Rejecting the bank-to-bank boundary alternative because it would be
inconsistent with the Park Service's duty under the Act to protect outstandingly
remarkable values in adjacent land.)

                                          -6-
synonymous with "outstandingly remarkable." Significance and importance are much
broader terms. They include far more than the "unique, rare, or exemplary" qualities
that the defendants themselves have recognized are denoted by the outstandingly-
remarkable-values standard. See Technical Report of the Interagency Wild and Scenic
Rivers Coordinating Council, J.A. at 79. In any given group, many things can be
significant or important. By definition, however, only a few things can be rare or
exemplary, and only one can be unique.

       The Park Service did not choose the terms "significance" and "importance"
because they were synonyms for "outstandingly remarkable." These terms were
derived from a separate legal standard used by Park Service officials to evaluate
potential park lands,9 a standard with which they were more familiar than the Wild and
Scenic River Act's outstandingly-remarkable-values standard. J.A. at 48. The
defendants now contend that while the terms of the park standard were used, the
planning team meant "outstandingly remarkable" when it used them. But the team
captain, who was responsible for interpreting the Act, stated that the team used
significance and importance in the same sense that these terms were used to evaluate
potential parks. J.A. at 61-62. Since no one suggests that the park standard is the same
as the Act's standard, it is hard to understand the defendants' contention that all these
terms have meant the same thing all along. Instead, we conclude that the Park Service
simply used the wrong standard from the beginning.




       9
          See, e.g., 16 U.S.C. § 1a-5(c)(3)(C) ("Each study . . . shall identify what
alternative . . . would in the professional judgment of the Director of the National Park
Service be most effective and efficient in protecting significant resources . . .."). It was
a standard also familiar to Park Service officials from the preparation of Environmental
Impact Statements. See 42 U.S.C. § 4332(C) (requiring a federal agency to prepare an
EIS for "major Federal actions . . . significantly affecting the quality of the human
environment . . ..") (emphasis added).

                                            -7-
       The values identified by the Park Service for protection likewise demonstrate
that the planning team confused the standards appropriate for choosing potential parks
and for selecting boundaries under the Wild and Scenic Rivers Act. In 1992, the
planning team set out in "significance statements" the values it would seek to protect
in selecting boundaries. In addition to using the significance standard to evaluate
resources along the Niobrara, the team noted that the same "significance statements"
should "be repeated again" when "included in the national park study." J.A. at 1342.
The record provides no evidence that the planning team later corrected its confusion,
or that it assigned a special meaning to the terms "significance" and "importance,"
equivalent to the statutory terms. Mr. Conrod, the team captain, admitted no such
conscious decision had ever occurred. Indeed, Mr. Conrod went so far as to express
what almost amounted to contempt for the terms of the statute.10 Officials of the
Executive Branch, like judges, are free to have their own private view of what
Congress has said and done. But they are not free to put these views into practice. A
statute is the command of the sovereign. The Park Service must follow it. Instead,
Park Service officials applied the standard with which they were more familiar from
other regulatory contexts, ignoring the outstandingly-remarkable-values standard
required under the Wild and Scenic Rivers Act.

      The defendants argue that whatever errors may have been made in the initial
process were corrected in the draft and final boundary alternatives and in the Record
of Decision. It is true that, after Mr. Sokol complained that the wrong standard was
being used, editorial changes were made to the draft and final boundary alternatives.
Specifically, a few sentences were added noting that "significant" and "important" were
to be understood to mean outstandingly remarkable. These post hoc re-definitions,


      10
           "We don't walk around speaking in the terms Congress writes laws and that
outstandingly remarkable . . . .There's nothing special or magic about those two words.
It's just something that got put in an act of Congress, and probably by kind of a
committee process, it's terrible prose, it obscures communication." J.A. at 50.

                                          -8-
however, were not sufficient to correct past errors upon which the boundary
alternatives and Record of Decision were based. Not surprisingly, the record shows
that the re-definitions in the final year of the process did not affect the field resource
evaluations made, years earlier, by the planning team under the wrong standard, or
resource evaluations provided, years earlier, by third parties who were also given the
wrong standard.

       No attempts at re-analysis of information or judgments accompanied these re-
definitions. After Mr. Sokol's complaints, the team changed a few sentences in the
boundary alternatives but never reexamined its prior work in light of the new standard.
Apparently, the planning team was never convinced that the outstandingly-remarkable-
values standard was correct. Even after the Record of Decision had been published,
Mr. Conrod stated that the outstandingly-remarkable-values standard did not apply to
the selection of boundaries, but applied only initially "in the context of consideration
of new sites." J.A. at 48. The Park Service analyzed the river area under the wrong
standard, failing to use the outstandingly-remarkable-values standard required by the
Act in selecting boundaries; it failed to correct its initial mistakes.11 Therefore, we


      11
           In addition to using the wrong standard, there is evidence in the record to
suggest that the Park Service was not selecting land to protect the river area's resources
but simply to maximize the number of acres included in the system. See, e.g., Draft
Boundary Alternative Memorandum, Sept. 13, 1993, J.A. at 1387 (preferred boundary
alternative includes "maximum statutory acreage," compared with others which include
only "critical resources.") Particularly troubling was the decision to include more than
10,000 acres of "hypothetical" viewshed, land that a canoeist on the river would see if
one assumed that there were no trees or foliage along the banks. This was a massively
counterfactual assumption; the Park Service knew that 60 to 70 per cent. of the
Niobrara River is screened by dense trees and foliage. J.A. at 2232. Much of the land
included in this viewshed was ordinary, unstriking, and apparently unnecessary to
protect the scenic values of the river. J.A. at 2231. The Park Service may include only
land which possesses outstandingly remarkable resources or which is actually
necessary to protect such resources.

                                           -9-
reverse the decision of the District Court on this issue, and hold that the Park Service's
boundary selection violated its statutory duty under the Act.

       Mr. Sokol also argues that the Park Service failed to establish sufficiently
detailed boundaries. Mr. Sokol argues that the Park Service was required, under 16
U.S.C. § 1274(b), to mark or post the boundaries physically along the river. This
argument fails. The Act expressly provides that information concerning the location
of the boundaries will be made available for public inspection on maps in the offices
of the administering agency. 16 U.S.C. § 1274(c). Section 1274(b) makes no mention
of physical posting, and its language is completely satisfied by the detailing of
boundaries on maps, made available to the public. On this point, we agree with the
District Court.

                                           III.

       Accordingly, we reverse and remand to the District Court with instructions to
remand to the Park Service. On remand, the Park Service should select boundaries that
seek to protect and enhance the outstandingly remarkable values of the Niobrara Scenic
River Area.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -10-
