Nat'l Parks Conservation Ass'n v. U.S. Dep't of Interior

• Decision Date: 19 September 2014
• Docket Number: 2:11–cv–647–FtM–29CM.,Case Nos. 2:11–cv–578–FtM–29CM
• Citation: 46 F.Supp.3d 1254
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION and John Adornato, III, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR, National Park Service, and United States Fish and Wildlife Service, Defendants. Safari Club International, Florida Wildlife Federation, and Florida Fish and Wildlife Conservation Commission, Defendants–Intervenors. Public Employees For Environmental Responsibility, Florida Biodiversity Project, Sierra Club, South Florida Wildlands Association, Wilderness Watch, and Brian Scherf, Plaintiffs, v. Kenneth Salazar, Secretary, U.S. Department of the Interior, Jonathan B. Jarvis, Director, National Park Service, and Daniel M. Ashe, Director, U.S. Fish & Wildlife Service, Defendants. Safari Club International, Florida Wildlife Federation, and Florida Fish and Wildlife Conservation Commission, Defendants–Intervenors.
• Court: U.S. District Court — Middle District of Florida

46 F.Supp.3d 1254

NATIONAL PARKS CONSERVATION ASSOCIATION and John Adornato, III, Plaintiffs
v.
UNITED STATES DEPARTMENT OF INTERIOR, National Park Service, and United States Fish and Wildlife Service, Defendants.

Safari Club International, Florida Wildlife Federation, and Florida Fish and Wildlife Conservation Commission, Defendants–Intervenors.

Public Employees For Environmental Responsibility, Florida Biodiversity Project, Sierra Club, South Florida Wildlands Association, Wilderness Watch, and Brian Scherf, Plaintiffs
v.
Kenneth Salazar, Secretary, U.S. Department of the Interior, Jonathan B. Jarvis, Director, National Park Service, and Daniel M. Ashe, Director, U.S. Fish & Wildlife Service, Defendants.

Safari Club International, Florida Wildlife Federation, and Florida Fish and Wildlife Conservation Commission, Defendants–Intervenors.

Case Nos. 2:11–cv–578–FtM–29CM
2:11–cv–647–FtM–29CM.

United States District Court, M.D. Florida, Fort Myers Division.

Signed Sept. 19, 2014.

46 F.Supp.3d 1263

Marcy Lahart, Marcy I. Lahart, PA, Gainesville, FL, Robert D. Rosenbaum, Eric R. Glitzenstein, William S. Eubanks, II, Meyer Glitzenstein & Crystal, Paula Dinerstein, Public Employees for Environmental Responsibility, Washington, DC,

46 F.Supp.3d 1264

Matthew P. Farmer, Farmer & Fitzgerald, PA, Tampa, FL, for Plaintiffs.

Mark Arthur Brown, U.S. Department of Justice, Sara Porsia, Natural Resources Section, U.S. Dept. of Justice, Washington, DC, Kyle Scott Cohen, U.S. Attorney's Office, Fort Myers, FL, for Defendants.

Anna M. Seidman, Douglas S. Burdin, Birch, Horton, Bittner and Cherot, P.C., Washington, DC, Eric M. Sodhi, Richman Greer, PA, Miami, FL, Thomas W. Reese, Law Office of Thomas W. Reese, St. Petersburg, FL, Jonathan Alan Glogau, Office of the Attorney General, Tallahassee, FL, for Intervenor–Defendant.

OPINION AND ORDER

JOHN E. STEELE, District Judge.

This matter comes before the Court on five cross motions for summary judgment in these consolidated cases. Then-magistrate judge Sheri Polster Chappell filed a seventy-nine page Report and Recommendation (Doc. # 123)¹ on January 31, 2013, recommending that Plaintiffs' motions be denied and Defendants' motions be granted. Plaintiffs filed Objections (Doc. # 126; Doc. # 127), to which Defendants filed Responses (Doc. # 130; Doc. # 131; Doc. # 132). Plaintiffs then filed Replies (Doc. # 137; Doc. # 138), to which a Surreply (Doc. # 141) was filed. On June 14, 2013, the undersigned heard extensive oral arguments on the objections. (Doc. # 153.)

During oral argument, the undersigned inquired whether any party felt there was a “ripeness” issue in the case. The Court ultimately directed that any party wishing to assert an issue challenging the subject matter jurisdiction of the court file a motion to dismiss by August 6, 2013. (Doc. # 163.)

In response, the Federal Defendants² and intervenor defendant Safari Club International (Safari Club) filed motions to dismiss for lack of subject matter jurisdiction. (Doc. # 164; Doc. # 165.) Plaintiffs filed Oppositions (Doc. # 168; Doc. # 169) to the motions to dismiss. Plaintiffs have filed supplemental authorities (Doc. # 171; Doc. # 172; Doc. # 174), prompting the Federal Defendants to file a Motion to Strike (Doc. # 175). Plaintiffs filed oppositions to the motion to strike (Doc. # 178; Doc. # 179), and additional notices of supplemental authority have been filed (Doc. # 181; Doc. # 183; Doc. # 184; Doc. # 185).

I.

The Court accepts and adopts Section I and Section II of the Report and Recommendation (Doc. # 123, pp. 1264–1312),³ captioned “Relevant Environmental Statutes and Executive Orders” and “Factual and Procedural Background” respectively. In summary, Congress established the Big Cypress National Preserve (the Original Preserve or the Preserve) in 1974 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

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State of Florida and to provide for enhancement and enjoyment thereof.” An Act to Establish the Big Cypress National Preserve in the State of Florida, Pub.L. No. 93–440, § 1, 88 Stat. 1258 (1974) (codified at 16 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), 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.

The National Park Service's (NPS) allowance of motorized recreational off-road vehicles (ORVs) in the Original Preserve has been a hotly contested and litigated subject since at least 1995. Ultimately, a 2000 General Management Plan and a Final Recreational Off–Road Vehicle Management Plan addressed ORV use in the Original Preserve. Resolution of the resulting litigation concerning that General Management Plan can be found at Defenders of Wildlife v. Salazar, 877 F.Supp.2d 1271 (M.D.Fla.2012).

In 1988, Congress authorized the acquisition of what is referred to as the Addition lands, consisting of approximately 147,000 acres adjacent to the Original Preserve. The NPS has acquired approximately 112,400 acres of the Addition lands, with the remaining acreage still being owned by private owners or various State of Florida entities. While there are approximately 244 miles of ORV trails on the Addition lands which pre-date the 1988 Congressional authorization, these trails were closed to public use when the NPS began administering the Addition lands in 1996.

Because the Addition lands were not covered by the 2000 General Management Plan for the Original Preserve, the NPS began drafting a separate general management plan for the Addition lands, which included an ORV use component. In due course, decisions were made by the Federal Defendants which are reflected in the following five documents: (1) an Addition Wilderness Eligibility Assessment of March 2010 approved by the NPS Director on May 12, 2010 (AR 7381–7394); (2) a Final General Management Plan/Wilderness Study/Off–Road Vehicle Management Plan/Environmental Impact Statement (the Addition GMP/EIS) authored by the NPS and dated October 20, 2010 (AR 12801–13418); (3) a Biological Opinion authored by the Fish and Wildlife Services (FWS) and dated November 18, 2010 (AR 8583–8670); (4) an Incidental Take Statement authored by the FWS and dated November 18, 2010 (AR 8631–8634); and (5) a Record of Decision authored by the NPS and dated February 4, 2011 (the 2011 ROD) (AR 13494–13616).

Among other things, the 2011 ROD selected the preferred alternative from the Addition GMP/EIS. The preferred alternative allows recreational ORV use in Addition lands on designated trails within 49,449 acres designated as “backcountry recreation;” provides for the future designation of approximately 130 miles of primary ORV trails in three phases; prohibits ORV use in 96,413 acres designated as “primitive backcountry;” and purposes 47,067 acres for “wilderness” designation.

II.

Complaints filed by the National Parks Conservation Association and John Adornato (the “NCPA Plaintiffs”) (Case No. 2:11–cv–578), and the Public Employees

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for Environmental Responsibility (PEER), the Florida Biodiversity Project, the Sierra Club, the South Florida Wildlands Association, Wilderness Watch, and Brian Scherf (the “PEER Plaintiffs,” and collectively with the NCPA Plaintiffs, “Plaintiffs”) (Case No. 2:11–cv–647), challenge the validity of these decisions for various reasons. Plaintiffs ask the Court to vacate and set aside those decisions and remand the matter of recreational ORV use in the Addition to the NPS for further consideration.

Approximately two years into the case, the Federal Defendants and the Safari Club asserted for the first time that the Court lacks subject matter jurisdiction. The Federal Defendants assert the lack of subject matter jurisdiction for three “separate but related reasons”: (1) most of the claims are not ripe for adjudication; (2) Plaintiffs lack standing to pursue the remaining claims; and (3) there has been no “final agency action,” as required for subject matter jurisdiction under the Administrative Procedure Act (APA). (Doc. # 164, pp. 3–4.) The Safari Club focuses on the lack of standing, but also refers to ripeness. (Doc. # 165.) Assuming subject matter jurisdiction exists, Defendants urge the Court to adopt the Report and Recommendation and enter judgment in their favor.

Plaintiffs in both cases assert that the Court does have subject matter jurisdiction, but object to various findings and conclusions in the Report and Recommendation. Plaintiffs seek judgment on the merits in their favor.

A. Subject Matter Jurisdiction Generally

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