Ursack Thumbs Down

[obx hiker]

I've been following the Ursack appeal and copied below is the Court's opinion from the Ursack website. Denies the appeal but seems inclined to force Yosemite and Seki to re-institute the testing process or that's how Ursack characterizes the opinion.

It's long and sorry if this was posted and I missed it during the crash

May 9, 2011

The federal court of appeals has upheld SIBBG's 2007 decision to ban Ursack's older model (green) S29. In a 26 page published opinion (opinions are only published if the Court thinks they are important), the three appellate justices deferred to the decision making authority of Yosemite and SEKI. A summary of the opinion follows. Notably, the Court did not rule on Yosemite and SEKI's 2010 decision not to test or approve any new products–including the Ursack S29 AllWhite. The Court seemed to suggest that it might be arbitrary and capricious (i.e. wrong) to refuse to evaluate any new or improved bear resistant products, and stated that the remedy for Ursack was to file a new lawsuit. We hope that is not necessary and await the new regulations, if any, coming out of Yosemite and SEKI.

Here is the official summary of the opinion. The full opinion can be read at http://www.ca9.uscourts.gov/datastore/opinions/2011/05/09/09-17152.pdf:

9th Cir.
09-17152

The court of appeals affirmed a district court judgment. The court held that the National Park Service did not act arbitrarily and capriciously in revoking its conditional approval of a particular manufacturer's portable bear-resistant food container for use in national parks where the agency rationally applied a "three strikes" failure standard and adequately considered associated policy issues.

The National Park Service and the U.S. Forest Service required backpackers in certain areas of the Sierras to store food in portable bear-resistant containers. In particular, between 2001 and 2007, both the Park Service and the Forest Service required visitors to Yosemite National Park, Sequoia and Kings Canyon National Parks (SEKI), and the Inyo National Forest to use containers that had been tested and approved by the agencies.

An informal body known as the Sierra Interagency Black Bear Group (SIBBG) tested privately manufactured bear-resistant containers and made recommendations to the Park and Forest Services regarding which containers to approve.

Plaintiff-appellant Ursack, Incorporated manufactured a bear-resistant container called the Ursack. Between 2001 and 2007, it urged SIBBG to recommend the Ursack for inclusion on the agencies’ lists of approved containers. In 2007, SIBBG did recommend that the agencies grant conditional approval to the Ursack for the 2007 summer season. SIBBG recommended that the agencies withdraw approval if they determined that the container failed three or more times during the season.

The agencies accepted the recommendation and granted conditional approval. At the end of the 2007 season, however, SIBBG determined that the Ursack had failed more than three times, and it recommended that the agencies withdraw conditional approval. The National Park Service withdrew conditional approval and refused to permit backpackers to use the Ursack in the container-only areas of Yosemite and SEKI. The Forest Service, however, continued to allow backpackers to use the Ursack in Inyo National Forest.

Ursack and three individual users of the Ursack (Ursack) brought suit pursuant to the Administrative Procedure Act (APA) against SIBBG, the Park Service, the Forest Service, and the superintendents of the relevant national parks and forests, alleging that the decision to withdraw conditional approval of the Ursack was arbitrary and capricious and otherwise not in accordance with law.

After reviewing the administrative record, the district court granted summary judgment in favor of the agencies.

The court of appeals affirmed, holding that Ursack failed to establish that it was entitled to any of the relief it sought.

The court of appeals characterized the central issue on appeal as whether the Park Service's decision to revoke conditional approval of the Ursack was arbitrary and capricious. Ursack also argued that the Park Service violated the "licensing" provisions of the APA, 5 U.S.C. §558.

The court first rejected Ursack's contention that the "three-strike" process failed to consider the larger picture for purposes of the Ursack. Specifically, Ursack argued that SIBBG failed to consider that backpackers might be more likely to use the easy-to-carry, soft-sided Ursack than hard-sided canisters. Ursack maintained that it was better to increase public compliance with food-storage requirements in this way, tolerating some failures each year, than to have a large number of incidents in which bears obtained food because someone decided to store food improperly. The record showed that SIBBG did not entirely fail to consider the benefit of increased compliance against the risk of container failure. It also did not show that SIBBG ignored specific aspects of the issue as framed by Ursack, such as the fact that even within the already-high compliance rate, many backpackers purportedly failed to put their extra, "overflow" food into proper containers.

Nor was there an equal protection violation in use of the "three strikes" standard in revoking approval of Ursack's product. To the extent SIBBG declined to revoke approval of a competing product in 2005 after it suffered a dozen failures, SIBBG concluded that almost all of those failures were caused by a single bear that figured out a means to break into the container. The six failures suffered by the Ursack in 2007, in contrast, did not appear to be caused by the same bear. Deferring to the agency's findings on such matters, the court concluded that the distinction was a rational basis to treat the Ursack differently than the competing product at issue.

It also was not capricious that SIBBG approved Ursacks only if the container were redesigned to eliminate the need to tie it to trees. An evaluation of the Ursack revealed that when it was hung in trees, it resulted in damage to the bark and substrate around the trees. Thus SIBBG's decision to "change course" on the product's eligibility for use in that way was a reasoned one.

Ursack also argued that if visitors could hang food from trees in certain areas of the parks and forests — thereby causing some tree damage — then SIBBG could not rationally prohibit visitors from tying Ursacks to trees in the parts of the parks and forests where tree storage was prohibited. Ursack’s position was that if the Park and Forest Services tolerated tree damage caused by food storage anywhere, they had to tolerate it everywhere.

That was wrong, the court said. A rational basis for SIBBG’s decision was readily apparent. Specifically, 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. 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.

Ursack’s other argument was that conditional approval of the Ursack was a “license” within the meaning of the APA, so that SIBBG was required to follow the procedures in §558(c) before revoking conditional approval. Under §558(c), a licensee must receive notice by the agency in writing of the facts or conduct which may warrant the revocation, and an opportunity to demonstrate or achieve compliance with all lawful requirements.

The court disagreed with the suggestion that the Park Service's "approval" necessarily amounted to a license. Ursack did not need the Park Service's approval to manufacture or sell its products. The only consequence to Ursack of SIBBG’s revocation of conditional approval was financial. Even without conditional approval, Ursack could manufacture and sell as many Ursacks as it wished, but the lack of conditional approval would have an impact on the market for its products. Thus, the real question was whether an agency decision that did not grant a form of permission to a member of the public nonetheless qualified as a license due to the decision’s financial consequences.

The court concluded though, that it need not decide whether an APA license existed only where an agency stood as a gate-keeper to a proposed private activity, or whether it also extended to forms of agency approval carrying only financial consequences. Even if Ursack had been granted a license, it was not seeking the kind of process available to licensees under §558(c). Ursack was not asking for notice and a chance to demonstrate or achieve compliance with all lawful requirements. Instead, Ursack wanted to argue with SIBBG over its decision to adopt the relevant lawful requirements in the first place.

To convince SIBBG not to revoke conditional approval, Ursack would have to convince SIBBG to change its licensing criteria. Yet, challenges to licensing criteria are adequately handled through review under the arbitrary and capricious standard, the court wrote.

[Bob Gross]

Very interesting. It will be more interesting to see how that is enforced this summer.

–B.G.–

[Greg Mihalik]

The SEKI Superitendent's Compendium contains the rules and regs that the Park chooses to follow, and as the cover page states, they are "Imposed Under Discretionary Authority". That is, "I have decided."

Here is the Link for SEKI. The last page shows the Allowable Containers. Even though this Compendium is dated 2010, the Allowable Containers page for the 2011 version is identical. The new Compendium will be out in June.

Yosemite also has a governing Compendium, with the same outcome.

Interestingly enough, Inyo National Forest, which the parallels the PCT/JMT a few miles to the east, does allow the use of Ursacks.

[ziff house]

hike in Canada.

[Anonymous]

"Interestingly enough, Inyo National Forest, which the parallels the PCT/JMT a few miles to the east, does allow the use of Ursacks."

Yeah, but the vast majority of good hiking is in SEKI. :(

[Mary D]

Not everyone hikes in California! In most areas, bears have not been trained by careless hikers to realize that every bag is a pinata, so the Ursack (with OP sack inside) works just fine. It keeps out birds and rodents far better than hanging a nylon or cuben bag (hanging high actually improves access for ravens and squirrels). For me, with extremely poor throwing skills and shoulder arthritis that is aggravated by jerky motions, the Ursack is perfect. I have two, one for me and one for my dog. (The second one is needed for trips over 7 days.)

On the other hand, I was pretty sure that Ursack would lose the suit. A truly persistent bear can get into almost anything! Over many (too many) years, I've seen so-called "bear-proof" items (especially garbage containers) come and go as the bears (particularly national park bears) keep getting smarter. A few bears have already breached the Bear Vault, and undoubtedly there will be more getting into other containers currently considered inviolable.

[Bob Gross]

"I have two, one for me and one for my dog."

I'll bet that the dog's throwing skills aren't any better than yours.

–B.G.–

[drowning in spam]

I'm hoping they eventually win approval.

[billy goat]

I just don't get it. They have being lighter and less bulky going for them. But that's it. On the con side is that they're not bear-proof and not even animal-proof (reference the post from just the other day about mice chewing through one). They have to be anchored to a tree lest they disappear forever. Not to mention that even if everything else worked, any food inside an Ursack that a bear got near would be powdered.

I for one could never sleep soundly knowing that my food may or may not be there in the morning while using an Ursack. With a bear canister, it's just a non-issue.

Finally, they're illegal. It seems to me with good reason.

All this effort put into legalizing them… well, that only takes care of one of these (major) problems. It seems to me that a better investment of energy would be coming up with something new that works better. And perhaps a better investment of backpackers' energy might be getting out and hiking a little bit so you lose a pound of body fat and get that much stronger… then the weight of the existing canisters (which work), might be a little less noticeable.

[Greg Mihalik]

"Finally, they're illegal."

They are Not illegal.

They are not Approved in Yosemite NP and SEKI NP.
They are allowed in Inyo National Forest, and many other places with food/bear issues.

[Ken Helwig]

uhhhh Billy Goat, I have been using Ursacks since they came on the market. I have never had an issue with them. Maybe you should try one……………

[Joseph Ainsworth]

Agreed
I've had multiple attacks on mine, once when I didn't hear the bear and wake up and he must've been at it for hours. I've never had them get into my food, and only that last time did he poke through a couple bags, but we made due just fine. The food wasn't powder, in fact, apart from the one or two bags he got into the food was fine. And those were all without the aluminum liner. If I had felt like carrying that piece around, I doubt any of the bears would have been able to even breach that far.

[Ken Thompson]

The recent thread about one getting chewed through was an Ursack Minor. The owner also stated that some user error was partially to blame for the failure.
I am happy with mine, where allowed.

[BlackHatGuy]

"Maybe you should try one……………"

What! And then criticize from experience instead of ignorance! Heresy I tell you……

[Ken Helwig]

Nice Doug, that actually made me chuckle!!!

[Greg Mihalik]

Ken T.,
"The recent thread about one getting chewed through was an Ursack Minor. The owner …"

That was me.
The "Minor" completely different product for a completely different purpose.
And yes, in the future I will deploy with a lot more care.

However, according to the Ursack people, testing the "Major" with bears was fraught with "user incompetence". Unfortunately, "operator error" will always be a factor.

[Ken Helwig]

Like Ken, I have used it where it has been allowed and enjoy the relatively low weight and the ability to protect my food. I have used it wherever it has been allowed in the Sierras and have never had an issue. In fact, some of my trips that I have done I have tailored it around using an Ursack versus a cannister.

[drowning in spam]

On the con side is that they're not bear-proof and not even animal-proof (reference the post from just the other day about mice chewing through one).

Does any container claim to be bear PROOF? BearVault's and Bearikade make to claim to that.

Again, that was an Ursack Minor. I hope you realize that that is an entirely different product.

Not to mention that even if everything else worked, any food inside an Ursack that a bear got near would be powdered.

My food is already powdered.

I for one could never sleep soundly knowing that my food may or may not be there in the morning while using an Ursack. With a bear canister, it's just a non-issue.

Why is that? Bear canisters are only bear-resistant and animal-resistant, and unlike the Ursack, can be swatted and batted any distance from your campsite by the time you wake up. Better not sleep on or near a steep slope or cliff or you may never get your bear canister back. Sorry I just messed up your sleep on all of your overnighters in the future.

[billy goat]

So far we've heard from people who haven't yet experienced a failure (and are reiterating what I already said which was they are lightweight and flexible). But there has to be a reason why the decision was made to not allow them and that decision was upheld in the courts…

If bear canisters are so unreliable then why are they approved? Look, I'm not out here attacking the Ursack or you guys who are using it. I don't like carrying a canister any more than I like vacuuming and cleaning out my car before I spend time in Yosemite Valley (but the alternatives, namely hefty tickets from rangers or damage to property/loss of food) don't seem worth the risk. I'm just pointing out that there is seemingly unanimous support of Ursacks here and yet the SIBBG has deemed them unfit (but does approve canisters). That decision is clearly not arbitrary.

Those of you who haven't had problems with your Ursack… Is it possible that that could be because of where you're using them and not how effective they actually are?

[j lan]

billy goat, if you think that having a bear canister is going to keep your food around no matter what you are sorely mistaken, went camping in a car camping area staging for a bigger hike the next night in washington here and raccoons rolled both our canisters off a cliff. Bye bye.

There is always a risk, it's about reducing risk.

[Joseph Ainsworth]

They weren't allowed in because they were not given a fair chance to get approved. That was the whole point of the lawsuit to begin with. SiBBG tested the ursack, it passed according to their standards, and they still failed it. That's about as arbitrary as they come as far as I'm concerned.

[Ken Ross]

"But there has to be a reason why the decision was made to not allow them and that decision was upheld in the courts…there is seemingly unanimous support of Ursacks here and yet the SIBBG has deemed them unfit (but does approve canisters). That decision is clearly not arbitrary."

Yes, and everybody knows that government agencies are always rational, open-minded, and reasonable and that court decisions are always wise, impartial, and appropriate.

[drowning in spam]

If bear canisters are so unreliable then why are they approved?

I can't remember where I read it, but it suggested that a big part of the reason is that the canisters are idiot proof. That is, you simply turn something until it clicks. If it clicks, it'll work as designed. With the Ursack it's highly dependent on how much effort and skill you apply when closing and securing it.

[Mary D]

People being what they are, the authorities do have to factor in the ease with which careless or non-directions-reading humans can foul up something, such as the Ursack closure. Even if most of the Ursack failures (as Ursack contends) are due to human error, they still result in bears being rewarded and quickly learning that an Ursack is a goody bag! That's what happened with hanging food in the Sierra. I suspect that within a few years, we'll see bears getting into some of the canisters. Unfortunately a food container needs not only to be bear-resistant, but idiot human resistant!

Fortunately, the bears up here in the PNW haven't gotten that smart-yet. It may be due to less territory in national parks where bears completely lose their fear of humans. There is something to be said for hunting!

Bob, you're right; my dog can't throw either!

[Ken Thompson]

So the real question is, why have they not been approved for use everywhere. Yes?

[Author]

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