Natural Res. Def. Council v. Nat'l Park Serv.

• Decision Date: 24 April 2017
• Docket Number: Case No: 2:16-cv-585-FtM-99CM.
• Citation: 250 F.Supp.3d 1260
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, Center for Biological Diversity, National Parks Conservation Association, Conservancy of Southwest Florida, Earthworks, and South Florida Wildlands Association, Plaintiffs, v. NATIONAL PARK SERVICE, Ryan Zinke, in his official capacity as Secretary of the U.S. Department of the Interior, Michael T. Reynolds, in his official capacity as Acting Director of the National Park Service, Stan Austin, in his official capacity as Regional Director of the Southeast Region of the National Park Service, Jim Kurth, in his official capacity as Acting Director of the U.S. Fish and Wildlife Service, and U.S. Fish and Wildlife Service, Defendants. Burnett Oil Co., Inc., Barron Collier Company Ltd., Collier Enterprises Mgmt., Inc., and Collier Resources Company LLP, Defendant–Intervenors.
• Court: U.S. District Court — Middle District of Florida

250 F.Supp.3d 1260

NATURAL RESOURCES DEFENSE COUNCIL, Center for Biological Diversity, National Parks Conservation Association, Conservancy of Southwest Florida, Earthworks, and South Florida Wildlands Association, Plaintiffs,

v. NATIONAL PARK SERVICE, Ryan Zinke, in his official capacity as Secretary of the U.S. Department of the Interior, Michael T. Reynolds, in his official capacity as Acting Director of the National Park Service, Stan Austin, in his official capacity as Regional Director of the Southeast Region of the National Park Service, Jim Kurth, in his official capacity as Acting Director of the U.S. Fish and Wildlife Service, and U.S. Fish and Wildlife Service,¹ Defendants.Burnett Oil Co., Inc., Barron Collier Company Ltd., Collier Enterprises Mgmt., Inc., and Collier Resources Company LLP, Defendant–Intervenors.

Case No: 2:16-cv-585-FtM-99CM.

United States District Court, M.D. Florida, FORT MYERS DIVISION.

Signed April 24, 2017

Alison L Kelly, Jared J. Thompson, Washington, DC, Marcy LaHart, Gainesville, FL, Jaclyn Lopez, St Petersburg, FL, for Plaintiff.

Mark Arthur Brown, Joseph T. Mathews, U.S. Department of Justice—ENRD, Deidre G. Duncan, Karma B. Brown, Washington, DC, Thomas Neal McAliley, Stephanie S. Silk, White & Case, LLP, Jordi Martinez–Cid, Edrei G. Swanson, Hunton & Williams, LLP, Miami, FL, for Defendant.

OPINION AND ORDER

JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

In this case, plaintiffs challenge the National Park Services' (NPS) approval of defendant-intervenor Burnett Oil Co., Inc.'s (Burnett) Plan of Operations (the "Plan") to conduct a three-dimensional seismic geophysical survey using vibroseis technology to identify whether there are commercially feasible deposits of oil and gas within the Big Cypress National Preserve in South Florida. Because plaintiffs believe that NPS approved the survey without undertaking the complete environmental review required by federal law, they filed a Complaint on July 27, 2016 (Doc. # 1), and are currently proceeding on an eight-count Amended Complaint (Doc. # 40), seeking declaratory and injunctive relief for violation of the Administrative Procedures Act (APA), the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and Park Service Regulations governing oil and gas activities found at 36 CFR Subpart 9B (the "9B Regulations"). Plaintiffs request that the Court vacate and remand the NPS's finding of no significant impact, and its May 10, 2016 conditional approval letter for Burnett's Plan; vacate and remand the NPS's biological assessment and the Fish and Wildlife Service's (FWS) concurrence letter for Burnett's Plan; and declare and order that the NPS and FWS are required to reinitiate consultation regarding the effects of Burnett's Plan and the three Preserve management plans on threatened and endangered species. (Doc. # 94, p. 1.)

On September 30, 2016, plaintiffs filed a Motion for Preliminary Injunction (Doc. # 36), requesting that the Court stay NPS's approval of operations pending a final adjudication on the merits of this case.² The federal defendants responded on November 9, 2016. (Doc. # 56.) Defendant-intervenors Collier Enterprises Management, Inc.; Baron Collier Company Ltd.; Collier Resources Company, LLP (the "Collier Entities"); and Burnett responded on November 4, 2017. (Docs. ## 52, 53.) On March 3, 2017, the undersigned heard oral argument on the preliminary injunction motion and the merits of plaintiffs' APA, NEPA, and 9B claims. (Doc. # 87.) During oral argument, the parties informed the Court that they would rely on oral argument in support of the APA, NEPA, and 9B claims, without briefing, and requested to file briefs on the ESA claim³ and available remedies, which was granted. The parties' cross-motions for summary judgment on plaintiffs' ESA claims and available remedies with responses were filed on March 20, 2017, and April 3 and 10, 2017. (Docs. ## 94, 100, 102, and 105.)

For the reasons set forth below, judgment is entered in favor of the federal defendants on all claims. Because the Court has found that defendants succeed on the merits, plaintiffs' Motion for Preliminary Injunction (Doc. # 36) is denied.

I. Background

A. National Park System and the National Park Service Regulations

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 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.

Pursuant to the rulemaking provisions of the Organic Act, the Big Cypress Establishment Act, and the Addition Act, non-federal oil and gas activities in the Preserve are governed by regulations codified at 36 C.F.R. Part 9, Subpart B (9B Regulations). The 9B Regulations govern "all activities within any unit of the National Park System in the exercise of rights to oil and gas not owned by the United States where access is on, across or through federally owned or controlled lands or waters." 36 C.F.R. § 9.30(a). They "are designed to insure that activities undertaken pursuant to these rights are conducted in a manner consistent with the purposes for which the National Park System and each unit thereof were created, to prevent or minimize damage to the environment and other resource values, and to insure to the extent feasible that all units of the National Park System are left unimpaired for the enjoyment of future generations." Id.

Park Service regulations require all proposed oil and gas plans of operations to include, as appropriate, a description of "[a]ll reasonable technologically feasible alternative methods of operations, their costs, and their environmental effects." 36 C.F.R. § 9.36(a)(16)(v). The agency "shall not approve a plan of operations" that "does not satisfy each of the requirements of § 9.36 applicable to the operations proposed." Id.§ 9.37(a)(4). Park Service regulations also specify that the agency "shall not approve a plan of operations...[u]ntil the operator shows that the operations will be conducted in a manner which utilizes technologically feasible methods least damaging to the federally-owned or controlled lands, waters and resources of the unit while assuring the protection of public health and safety." 36 C.F.R. § 9.37(a)–(a)(1).

B. Big Cypress National Preserve(1) Establishment Act and Ownership of the Preserve's Oil and Gas Resources

In 1974 Congress established the Big Cypress National Preserve (the Preserve) to "ensure 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 at 16 U.S.C. § 698f(a). AR 166959; 166989 (map).⁴ 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, (variously estimated at 574,440 acres, AR 166987). Approximately 147,000 acres were added in 1988 by the Big Cypress National Preserve Addition⁵ (the Addition), PL 100–301 ; 74 Fed. Reg. 34030 ; 16 U.S.C. § 698m–1. AR 166989. The Preserve is centrally located between Miami and Naples, Florida, extending from the northern boundary of Everglades National Park to seven miles north of Interstate 75. AR 166987. Today, with the Addition, the Preserve covers approximately 729,000 acres. AR 176892.

Congress instructed the Secretary to buy lands within specified boundaries to establish the Preserve, except that

[n]o improved property...nor oil and gas rights, shall be acquired without the consent of the owner, unless the Secretary...determines that such property is subject to, or threatened with, uses which are, or would be, detrimental to the purposes of the preserve.

16 U.S.C. § 698f(c). Because of this limitation on NPS's acquisition authority, when the United States acquired the surface lands of the Preserve it did not acquire most oil and gas rights. AR 176896. The surface and mineral estates were severed (a "split estate"), and private owners typically retained the mineral rights. AR 000061. Thus, the United States acquired most lands of the Preserve from the Collier family, without associated mineral rights. AR 176892.

Aware of this divided ownership of the surface estate and mineral rights, the Department of Interior explored purchasing a large portion of the Preserve's mineral interests from the Colliers in the early 2000s. After substantial negotiations, the parties tentatively agreed to terms for a sale, contingent on Congressional appropriation of funds. See Mathews Decl., Ex. 1 (Doc. # 47–3). However, questions were raised regarding valuation of the deal, and the required funds were never appropriated. See Mathews Decl., Ex. 2 (Doc. # 47–3)....