Could Administrative Law Save the World’s Toughest Footrace?

Every year since 1987, Death Valley National Park has played host to an event that has become known by some as the world’s toughest footrace: the Badwater 135 Ultramarathon.  The race begins at Badwater, the lowest point in North America at 282 feet below sea level, and trudges its way 135 miles to Whitney Portal at an elevation of 8,360 feet, just a few miles short of the summit of Mt. Whitney in the Sierra Nevada range.  The climb itself would be challenging enough, but the moniker of “world’s toughest” also comes from the fact that the race is held in July when temperatures can reach 120 degrees or more, even in the shade.  The race’s website cautions entrants to keep foot care items in a cool place, lest they melt and become useless.  Badwater has been the subject of a feature-length documentary and 60 Minutes special report and is (to say the least) legendary in the ultrarunning community.



Who could possibly be discouraged by that landscape before setting off on a 135 mile run in blistering heat?


This year, however, Death Valley will not see runners line up at Badwater for one of the world’s ultimate tests of endurance.  Late last year, the National Park Service posted the following statement on its website:

Effective immediately Death Valley National Park will temporarily discontinue issuance of running and bicycling event permits. Future event permits will not be considered until a thorough safety evaluation of this type of activity has been completed.

The statement was unaccompanied by any explanation until some time later.  Currently on their website the NPS has the following statement:

Recently, Death Valley National Park placed a temporary moratorium on issuing special use permits for sporting events within the park while a safety assessment is conducted on these types of events. The outcomes of the safety assessment and recommendations are required before final sporting event applications can be processed. Based on the projected date for completion of the safety assessment (Summer 2014), applications can be submitted for events that are scheduled from October 1, 2014 and beyond. The park will begin processing those applications when the safety review is completed.

According to a statement posted by AdventureCORPS (Badwater’s organizers) in response to the NPS’s decision, the NPS gave no advance notice about their decision.  AdventureCORPS maintains that the ostensible purpose of the moratorium, a safety review, is unnecessary:  “There have been no deaths, no car crashes, no citations issued, and only a few evacuations by ambulance after literally millions of miles covered on foot or by bike by event participants.”  Though she declined to name the specific event, a spokesperson told the LA Times that “a support-vehicle driver fell asleep and veered across the narrow road into the gravel, said the spokeswoman.”  Speaking to, however, Christ Kostman clarified the incident: the vehicle was not a support vehicle and the person lost control of their vehicle due to an apparent medical issue.  Aside from that single incident, it seems that the NPS and DVNP Superintendent Kathy Billings have very little reason to suspend all sporting events in the park.

That brings us to the thrilling topic of administrative law!



Here’s a pile of binders so you can properly appreciate the transition in topics.


In the federal system, the Administrative Procedure Act is the primary statute in that field. For a summary of the APA there’s a pretty succinct page at the website for the Electronic Privacy Information Center. Very briefly, the APA sets out requirements for the procedures that government agencies must follow in carrying out their functions and making rules and regulations. To insure that agencies abide by the Act’s requirements, courts have jurisdiction to review agency actions (although that jurisdiction is limited). The National Park Service, as a government agency, is subject to the requirements of the APA. For that reason, it’s possible that there could be some redress for AdventureCORPS in the APA. To sum up a whole host of Supreme Court opinions in a way that I’m sure does very little justice to the topic of administrative law, just know that agencies generally are given broad leeway by the courts, but in order to get that deference, they will usually have to go through formal decision-making processes.

Administrative law is far from my specialty, so I’m going to compare the Badwater situation to another case from 2004, Randall v. Norton (pdf) (United States District Court for the District of New Mexico, 2004).  That case involved noncommercial boaters wanting to get out on the Colorado River in the Grand Canyon.  In 1979, in order to allocate user permits, the NPS “produced a Colorado River Management Plan (CRMP) that was accompanied by an Environmental Impact Statement (EIS), as required under the National Environmental Policy Act (NEPA).”  The plan was updated in 1989. A problem arose, however, when the plaintiffs wanted to use the river.  Because the allocation between commercial tour companies and noncommercial boaters was based on figures that dated back to 1979, the plaintiffs argued that “the rules and regulations governing the allocation of use between commercial and noncommercial boaters [were] arbitrary and capricious.”


I can only assume that river tours have upgraded their watercraft significantly since this photo was taken.

I can only assume that river tours have upgraded their watercraft significantly since this photo was taken.


Unfortunately for the hopes of the plaintiffs in the case, remember that the APA only gives courts a limited ability to review actions by administrative agencies.  A court can “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).  A further blow to the plaintiffs’ case came from a 1985 Supreme Court case:

If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (emphasis added).  The Randall Court rather easily dismissed the bulk of the lawsuit.  According to the Court, the lawsuit merely “posit[ed] a disagreement with the outcome of the administrative process.”  In those situations, courts won’t (or aren’t supposed to) substitute their own judgment for that of the agency.  Thus, as the Court put it “the agency need only demonstrate that it considered relevant factors and alternatives after a full ventilation of issues and that the choice it made was reasonable based on that consideration.”

So much for the bulk of that case.

The Court acknowledged, however, that the claim that the park superintendent “‘ignored evidence’ of the increase in demand for noncommercial use” was reviewable under the APA.  Finding that the adoption of the CRMP was “final agency action” and that the claim was ripe for review, the Court analyzed whether NPS’s actions were arbitrary and capricious.  Citing a 1983 Supreme Court case, the Court laid out the relevant standard for “arbitrary and capricious” review:

[T]he agency . . . relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (emphasis added by District Court).  Without going into all the particulars, the Court ultimately found that “[t]he administrative record presently before the Court demonstrates that the NPS . . . weighed a number of appropriate factors ” in making its decision.  Thus the decision was not “arbitrary and capricious” and there was “no clear error in the decision to terminate the review process or in the allocation itself.”

The Plaintiffs didn’t lose all of their claims, however.  In the 1989 CRMP, the NPS imposed upon itself a mandatory, non-discretionary duty to conduct a comprehensive plan review prior to the expiration of the then-current plan (i.e., by 1999).  Everyone agreed that that comprehensive review had not been completed.  The Court pointed out that  “compelling agency action is distinct from ordering a particular outcome” and ” directed [the Defendants] to complete a comprehensive review of the 1989 CRMP.”

I realize that’s an awful lot in the way of a windup, but I’m still learning about this area of the law myself.  I think that case gives a bit of a window into the situation with Badwater.  I’ll stop at this point to say that the following is only my best guess at how a case might go if the folks at AdventureCORPS took their situation to court.  I’m offering only my general take on how the legal issues might play out here.  See the disclaimer in the sidebar if there’s any confusion about that.

Now then . . .

The fact that the superintendent suspended all sporting events in the park with barely a shred of evidence that the events are unsafe–at least if she has some evidence, park officials haven’t been very forthcoming up to this point–almost screams “arbitrary and capricious” to me.  Perhaps NPS has some incidents they’re just not telling the public about.  It seems that that information would have to come out during the discovery phase of any lawsuit, but we can’t know for sure at this point.

But could AdventureCORPS even clear the substantial procedural hurdles in their way?  Courts can only review “final agency action,” not merely temporary measures.  Because park officials say they’re going to complete a safety assessment later this year, it’s possible their decision might not constitution final action on their part.  On the other hand, Randall v. Norton also involved a review process and the court found that there was final agency action there.  Of course, the only remedy was that NPS was ordered to complete its review, so AdventureCORPS might have to wait until later this year before they’d even have a case that was ripe for review.

If a court agreed to hear the merits of the argument now, however (and assuming Kostman’s events really do have the safety record he claims they do), it wouldn’t surprise me to learn that the NPS had lost this case.  All the publicly-availabe evidence suggests that the decision to suspend all permits for sporting events was a decision that was made almost on a whim and without any careful consideration of the actual safety record of sporting events in the park or whether an as-of-yet undefined safety assessment is either necessary or likely to measurably increase the safety of current and future events.

For the 2014 race, Badwater is plowing ahead with a different course that doesn’t include DVNP. AdventureCORPS continues to have great success with its other foot races: Badwater Salton Sea (a team event) and Badwater Cape Fear (new this year).  Still, for a race with such a storied history, it’s more than a little bit disappointing that the race is being forced out of its home of two decades.  Perhaps the NPS will think better of this decision, but given the broad discretion they are given by current administrative law, it doesn’t seem like they have much incentive do to so.


2 thoughts on “Could Administrative Law Save the World’s Toughest Footrace?

  1. Pingback: Rim to Rim to Rim to | Running Down the Law

  2. Pingback: Bad News for Badwater 135 in the Death Valley Sporting Event Safety Assessment | Running Down the Law

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