Defenders of Wildlife v. Salazar

• Decision Date: 10 July 2012
• Docket Number: Case No. 2:08–cv–237–FtM–29SPC.
• Citation: 877 F.Supp.2d 1271
• Parties: DEFENDERS OF WILDLIFE; Sierra Club; The Humane Society of the United States; National Parks Conservation Association; The Florida Biodiversity Project; The Wilderness Society; Wildlands CPR; and Brian Scherf, Plaintiffs, v. Ken SALAZAR, Secretary, U.S. Department of the Interior; Jonathan Jarvis, Director, National Park Service; Daniel M. Ashe , Director, U.S. Fish and Wildlife Service, Defendants.
• Court: U.S. District Court — Middle District of Florida

877 F.Supp.2d 1271

DEFENDERS OF WILDLIFE; Sierra Club; The Humane Society of the United States; National Parks Conservation Association; The Florida Biodiversity Project; The Wilderness Society; Wildlands CPR; and Brian Scherf, Plaintiffs,

v.Ken SALAZAR, Secretary, U.S. Department of the Interior; Jonathan Jarvis, Director, National Park Service; Daniel M. Ashe ¹, Director, U.S. Fish and Wildlife Service, Defendants.

Case No. 2:08–cv–237–FtM–29SPC.

United States District Court,

M.D. Florida,

Fort Myers Division.

July 10, 2012.

Eric R. Glitzenstein, William S. Eubanks, II, Meyer & Glitzenstein, Washington, DC, Matthew P. Farmer, Farmer & Fitzgerald, PA, Tampa, FL, for Plaintiffs.

Barry Weiner, Mark Arthur Brown, U.S. Department of Justice, Sara Porsia, Natural Resources Section, U.S. Dept. of Justice, Washington, DC, Michael P. Stevens, U.S. Dept. of Interior, Atlanta, GA, for Defendants.

OPINION AND ORDER

JOHN E. STEELE, District Judge.

For the third time since 1995, the issue of the use of motorized recreational off-road vehicles (ORVs) in the Big Cypress National Preserve is before the Court. The first case ², initiated by environmental interests, resulted in a Settlement Agreement, while the second ³, initiated by ORV interests, resulted in summary judgment in favor of the government agencies. In the current case, environmentally inclined plaintiffs challenge the February, 2007 decision of the National Park Service to reopen ORV trails in the Bear Island Unit of the Big Cypress National Preserve. Plaintiffs assert that the reopening of these trails violated: (1) the 1995 Settlement Agreement; (2) the National Park Service's 2000 ORV Management Plan; (3) the National Park Service Organic Act; (4) the Big Cypress Establishment Act; (5) Executive Order 11,644; (6)Executive Order 11,989; (7) the National Environmental Policy Act (NEPA); (8) the Endangered Species Act (ESA); and (9) the Administrative Procedure Act (APA). The case is now before the Court on cross motions for summary judgment (Docs. # 95, 103) and supporting and opposing memoranda and exhibits (Docs. # 104, 106, 109, 113, 127). The administrative record has been filed on two computer discs (Doc. # 63), which will be referred to as “AR” followed by the page number. The Court heard oral argument on January 9, 2012. With the Court's permission, the defendants filed a Post–Hearing Brief on Remedy (Doc. # 120) on January 17, 2012 and plaintiffs filed a Reply (Doc. # 121) on January 23, 2012. Plaintiffs filed two Notices of Supplemental Authority (Docs. # 127, 129) on February 27, 2012 and April 16, 2012, to which defendants filed Responses (Docs. # 128, 130).

I. Relevant Environmental Statutes and Executive OrdersA. National Park System and the National Park Service

The national park system in the United States began with the establishment of Yellowstone National Park in 1872. 16 U.S.C. § 1a–1. In 1916, the National Park Service Organic Act created the National Park Service (NPS) within the Department of Interior. 16 U.S.C. § 1. NPS was required to:

promote and regulate the use of the Federal areas known as national parks, monuments, and reservations ... as provided by law, by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

Id. Thus, national parks are created with a conservation mandate, i.e., to conserve and preserve the scenery, wildlife, and objects (natural and historical) within their boundaries for present and future enjoyment.

B. National Environmental Policy Act (NEPA)

The National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370 (“NEPA”), established a “national policy [to] encourage productive and enjoyable harmony between man and his environment,” and was intended to reduce or eliminate environmental damage and to promote “the understanding of the ecological systems and natural resources important to” the United States. 42 U.S.C. § 4321. NEPA does not itself mandate particular results, but only imposes “procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757–58, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); see also Citizens For Smart Growth v. Sec'y, Dept. of Transp., 669 F.3d 1203, 1211 (11th Cir.2012); Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.2008). NEPA compliance must take place before decisions are made in order to ensure that those decisions take environmental consequences into account. Wilderness Watch v. Mainella, 375 F.3d 1085, 1096 (11th Cir.2004) (emphasis in original).

C. Executive Order 11,644

In response to a general increase of ORV use on public lands ⁴, in 1972 President Richard M. Nixon issued an executive order for the purpose of “establish[ing] policies and provid[ing] procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands.” Exec. Order No. 11,644, 37 Fed.Reg. 2877 (Feb. 8, 1972), as amended by Exec. Order No. 12,608, 52 Fed.Reg. 34617, Sec. 21 (September 9, 1987). This Executive Order, intended to further the purpose and policy of NEPA, required the Secretaries of the Departments of Interior, Defense, and Agriculture (and the Tennessee Valley Authority) to “develop and issue regulations and administrative instructions ... to provide for administrative designation of the specific areas and trails on public lands on which the use of off-road vehicles may be permitted, and areas in which the use of off-road vehicles may not be permitted, and areas in which the use of off-road vehicles may not be permitted, ....” Id. at § 3. The Executive Order required that the regulations direct that the designation of such areas and trails: (1) “be based upon the protection of the resources of the public lands, promotion of the safety of all users of those lands, and minimization of conflicts among the various uses of those lands”; and (2) be located in such a way as to (a) “minimize damage to soil, watershed, vegetation, or other resources of the public lands”; (b) “minimize harassment of wildlife or significant disruption of wildlife habitats”; (c) “minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands”; and (d) “ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.” Id. at § 3(a). Further, such trails and areas were not to be located in designated Wilderness or Primitive Areas, and “shall be located in areas of the National Park system ... only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.” Id. Public participation in the promulgation of the regulations and designations of the areas and trails was required. Id. at § 3(b). The Executive Order also required the agencies to “monitor the effects” of ORV use on the public lands and “[o]n the basis of the information gathered, they shall from time to time amend or rescind designations of areas or other actions taken pursuant to this order as necessary to further the policy of this order.” Id. § 8.

D. Endangered Species Act (ESA)

Shortly after President Nixon issued this Executive Order, Congress enacted the Endangered Species Act of 1973, 16 U.S.C. § 1531–1544(ESA), described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The U.S. Fish and Wildlife Service (FWS) is the agency responsible for implementing the ESA. The purpose of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” and “to provide a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth., 437 U.S. at 184, 98 S.Ct. 2279.

The “negative environmental consequences” of ORV use, S. Utah Wilderness Alliance, 542 U.S. at 60, 124 S.Ct. 2373, potentially impacts endangered and threatened species of animals. Relevant provisions of the ESA will be discussed below.

E. Big Cypress Establishment Act

Against this background, in 1974 Congress established the Big Cypress National Preserve (Big Cypress NP or the Preserve) to “assure the preservation, conservation, and protection of the natural, scenic, hydrologic, floral and faunal, and recreational values of the Big Cypress watershed in the State of Florida and to provide for enhancement and enjoyment thereof.” Pub. L. 93–440, § 1, 88 Stat. 1258 (Oct. 11, 1974), codified at16 U.S.C. § 698f(a). The Secretary of the Interior (the Secretary) was authorized to acquire property within the Preserve, 16 U.S.C. § 698f(c)⁵, and required to administer the Preserve as a unit of the National Park System “in a manner which will assure their natural and ecological integrity in perpetuity in accordance with the provisions of sections 698f to 698m–4 of this title and with the provisions of sections 1, 2, 3, and 4 of this title, as amended and supplemented.” 16 U.S.C. § 698i(a). The original Preserve was over 574,000 acres, (variously estimated at 574,440 acres, AR 58, or 582,000 acres, AR 858)....