High Standard Is OK for Bear-Resistant Pouches

     (CN) – The National Park Service properly barred backpackers from using a California company’s bear-resistant food sack in Yosemite and other national parks, the 9th Circuit ruled Monday.




     Mill Valley-based Ursack Inc. has spent years lobbying for agency approval of its eponymous lightweight alternative to bear-resistant containers, which are typically bulky and heavy. Backpackers are required to carry these items in the wilderness of Yosemite, Sequoia and Kings Canyon National Parks.
     New devices must pass inspection by the Park Service’s Sierra Interagency Black Bear Group (SIBBG), which offers one field tests that include giving the sack to captive bears to play with. After Ursack’s product failed several field tests, the agency refused to add it to its list of approved bear-resistant food carriers from 2001 to 2006.
     Ursack finally obtained conditional approval for the 2007 summer backpacking season after a series of redesigns, but the Park Service promised to revoke that approval if the product failed three or more times.
     Ursack argued that the Park Service’s consistent refusal to allow backpackers to use its product hurt the company financially. REI, a popular backcountry outfitter, refused to stock the Ursack because it was not approved for use in Yosemite, according to the ruling.
     During the 2007 season, the interagency group received several reports of Ursack failures, and the park service eventually yanked its conditional approval. Attacking the agency’s decision as arbitrary and capricious, Ursack sued the National Park Service and other agencies in California District Court. U.S. District Judge Samuel Conti granted summary judgment to the agencies.
     On appeal, the three-judge panel in San Francisco affirmed, finding that the interagency group and the Park Service had considered all of the evidence and had properly addressed the company’s objections before revoking approval.
     Ursack claimed that the agency had failed to consider whether the lightweight alternative to traditional bear-resistant containers increased compliance with park rules, thus outweighing any of its alleged failures in the field – which the company questioned. Ursack also objected to the agency’s three-strikes rule, pointing out that the BearVault product remained available despite having failed “a dozen times” in 2005.
     The company also objected to an agency rule that prohibits backpackers from tying the Ursack to trees – an integral part of its original design. In its testing, the black-bear group had found that bears were likely to damage trees while reaching for the Ursack.
     A three-judge appellate panel found that Ursack had failed to offer any evidence that use of its product would increase compliance with bear-container rules in the parks, which is already approximately 90 percent, according to the ruling.
     Ursack’s other objections also failed to convince the San Francisco-based panel.
     “The record indicates that SIBBG had a rational basis for revoking approval of the Ursack in 2007, even though it declined to revoke the BearVault’s approval in 2005 after it failed a dozen times – namely, SIBBG’s conclusion that almost all of the BearVault failures were likely caused by the same bear,” wrote U.S. District Judge Lynn Adelman, sitting by designation from the Eastern District of Wisconsin.
     On the tree issue, the panel found that “although the primary reason for prohibiting tree storage in container-only areas was that bears had learned how to obtain food stored in trees, the prohibition also had the beneficial effect of eliminating tree damage caused by human influences in those areas,” the complaint states. “In evaluating the Ursack for use in container-only areas, then, SIBBG members were rationally concerned about approving a food-storage container that might reestablish anthropogenic tree damage in areas where it had been eradicated. Accordingly, SIBBG’s tree-damage rationale was not arbitrary or capricious.”
     Ursack also argued that the Park Service’s ban had failed to follow proper procedure, as the conditional approval amounted to a license under the Administrative Procedure Act.
     But the conditional approval was not a license, the panel found.
     “Ursack does not need the Park Service’s approval to manufacture or sell its products to the public (or to engage in any other activity),” Adelman wrote (parentheses in original). “For this reason, the present case is unlike others in which we have determined that an agency had granted a license.”

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