NPCA Complaint

Case 2:11-cv-00578-JES-SPC Document 1
Filed 10/12/11 Page 1 of 73 PageID 1
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
NATIONAL PARKS CONSERVATION ASSOCIATION 777 6th Street, NW Suite 700 Washington, DC 20001 (800) 628-7275 JOHN ADORNATO III 450 N. Park Road Suite 301 Hollywood, FL 33020 (954) 961-1280, ext. 207 Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR 1849 C Street, NW Washington, DC 20240 (202) 208-3100 NATIONAL PARK SERVICE 1849 C Street, NW Washington, DC 20240 (202) 208-6843 UNITED STATES FISH AND WILDLIFE SERVICE 1849 C Street, NW Washington, DC 20240 (202) 208-4646 Defendants.
No.
COMPLAINT FOR REVIEW OF AGENCY ACTIONS UNDER THE ADMINISTRATIVE PROCEDURE ACT AND FOR AN INJUNCTION
TABLE OF CONTENTS Page Introduction and Summary ................................................................................................. 1 Jurisdiction and Venue....................................................................................................... 9 The Parties and Standing ...................................................................................................10 Allegations Common to All Counts...................................................................................12 The Preserve...........................................................................................................12 Off-Road Vehicles .................................................................................................15 The 2000 ORV Plan for the Original Preserve ......................................................15 ORV Impacts on the Florida Panther.....................................................................17 The GMP and the Wilderness Eligibility Determination.......................................18 The FWSs Biological Opinion and Incidental Take Statement............................22 The NPSs ROD.....................................................................................................23 First Claim for Relief (Wilderness Act of 1964) ...............................................................24 Second Claim for Relief (The Laws Governing the National Park System and the Preserve)....................................................................................................30 Impairment.............................................................................................................31 Elevation of Recreational Use Over Conservation ................................................36 Administration of the Preserve Inconsistent with the Enabling Act......................39 Third Claim for Relief (National Park Service Rule 4.10) ................................................40 Fourth Claim for Relief (National Environmental Policy Act) .........................................43 Fifth Claim for Relief (Arbitrary and Capricious Agency Action and Abuse of Discretion) .......................................................................................56 Sixth Claim for Relief (Endangered Species Act 7(a))...................................................57 The FWS Biological Opinion at Issue Here ..........................................................59
Seventh Claim for Relief (Endangered Species Act 7(b)(4), 7(o) and 9).....................63 The FWSs Incidental Take Statement at Issue Here ............................................65 Eighth Claim for Relief (Federal Advisory Committee Act).............................................66 Prayer for Relief.................................................................................................................69
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INTRODUCTION AND SUMMARY 1. Plaintiff National Parks Conservation Association brings this action under
the Administrative Procedure Act, 5 U.S.C. 551-559, and the other Federal statutes relied on below to seek review of and to challenge the National Park Services (NPS) Final General Management Plan/Wilderness Study/Off-Road Vehicle Management Plan/Environmental Impact Statement dated October 20, 2010 (the GMP) relating to the Addition at Big Cypress National Preserve, a unit of the National Park System; the Record of Decision (ROD) thereon; and the Fish and Wildlife Services (FWS) biological opinion and incidental take statement relating thereto under the Endangered Species Act, 16 U.S.C. 1531 et seq. (the ESA). Plaintiffs NPCA and John Adornato III also bring this action under the Administrative Procedure Act and the Federal Advisory Committee Act, 5 U.S.C. App. 2 5 and the Department of the Interiors regulations thereunder, seeking review of the NPSs decisions concerning the composition of its ORV Advisory Committee which, among other things, is to participate in the implementation of the GMP, and to enjoin the further operation of that Committee unless and until it is reconfigured in such a manner as to comply with the Federal Advisory Committee Act. 2. Congress established Big Cypress National Preserve to assure the
preservation, conservation and protection of the natural, scenic, hydrologic, floral and faunal and recreational values of the Big Cypress watershed. 16 U.S.C. 698f(a). The Preserve as originally established consisted of approximately 582,000 acres (the Original Preserve). In 1988, Congress added an additional 147,000 acres (the
Addition). The Preserve, which now includes the Original Preserve and the Addition (together, the Preserve), is a mosaic of pinelands, prairies and cypress tree swamps. More than 20 animal species which are rare, endangered or otherwise in jeopardy also have their habitat in the Preserve. Migrating birds utilize the area as a critical resting place and as an area for feeding and nesting. 3. While NPS has previously opened portions of the Original Preserve to use
by off-road vehicles (ORVs), the Addition has been closed to ORV use since the land was acquired by NPS. State and local officials and ORV users, however, have pressured NPS to open the Addition to ORV use and to do so at an early date. Succumbing to that pressure, NPS prepared the GMP and obtained the legally required FWS biological opinion and incidental take statement at issue here. In February 2011, NPS issued its ROD, setting forth NPSs decisions based upon the GMP and those FWS documents. NPS decided to open 130 miles of primary ORV trails through the Addition, which will be available for recreational swamp buggies, all-terrain vehicles, and four-wheel-drive street legal vehicles such as SUVs. In addition, NPS proposed only about 47,000 acres of Additions 147,000 acres for protection under the Wilderness Act of 1964, 16 U.S.C. 1131-1136 (the Wilderness Act). Under that Act, designated wilderness is off-limits to ORV use. 16 U.S.C. 1133(c). 4. ORVs have long been recognized, however, to have significant adverse
impacts on natural areas. See, e.g., Exec. Order 11644, 37 FED. REG. 2877 (Feb. 8, 1972) (Exec. Order 11644). In 2000, NPS documented as to the Original Preserve that ORVs had created ruts as deep as two feet, affecting water flows; had altered plant species
composition and distribution and had otherwise damaged vegetation; and had had a dramatic adverse effect on wildlife, including by reducing their hunting and mating opportunities. 5. In the GMP, NPS purported to analyze the environmental impact of such
ORV use, as required under the National Environmental Policy Act, 42 U.S.C. 43214347 (NEPA). NPS there recognized the significant and unique natural resources of the Addition. NPS envisioned the Preserve, including the Addition, as a nationally significant ecological resource . Visitors will benefit from aesthetic gratification and relaxation in a natural setting, the challenge of exploring the landscape, the chance to test traditional backcountry skills, and the opportunity to learn more about the natural environment. GMP at 16. Among other things, the Florida National Scenic Trail goes through the Addition. 6. The Preserve is also critically important as a wildlife sanctuary, as the
GMP also recognized. The ESA mandates that all federal agencies insure that any action authorized, funded or carried out by such agency is not likely to jeopardize the continued existence of any endangered species. 16 U.S.C. 1536(a)(2). The Florida panther has been listed as an endangered species under the ESA. In 2006, moreover, the FWS found that there is a significant threat of extinction of the Florida panther, of which it is estimated that only 113 remain, concentrated heavily in the area of the Addition. Nevertheless, in its biological opinion, FWS arbitrarily and capriciously concluded that creating 130 miles of primary ORV trails through the panthers habitat in the Addition was not likely to jeopardize the continued existence of the Florida panther.
The NPS relied on that flawed opinion in taking the actions at issue here. As required by the ESA, FWS also issued an incidental take statement, purporting to impose terms and conditions on the NPSs actions. Id. 1536(b)(4). However, those terms and conditions fail to comply with the requirements of the ESA because they imposed no limitation on the extent of harm ORV use is permitted to cause the Florida panther. See Miccosukee Tribe Indians of Florida v. U.S., 566 F.3d 1257, 1275 (11th Cir. 2009) (incidental take statements must impost limitations on harm permitted, expressed in terms of specific population data unless that is impracticable, but in any event an incidental take statement must contain an adequate trigger to terminate the activity until further FWS review). By letter dated May 26, 2011, Plaintiff notified Defendants of their violations of the ESA and of Plaintiffs intent to sue for those violations in accordance with the requirements of 16 U.S.C. 1540(g). 7. More generally, the Addition is also a critical part of the south Florida
ecosystem. The Addition, which is covered with water much of each year, serves as a large reservoir and nutrient filter, permitting natural biological processes to nourish diverse ecological communities that are distinctive to southern Florida. The Addition is very flat and slopes very gradually, and water slowly flows through the Addition and into Everglades National Park. The GMP recognized that that water flow is vital for the health of parts of the Everglades. 8. NEPA is designed to prevent agencies from acting on incomplete
information about the environmental impacts of agency actions and to ensure that important environmental impacts will not be overlooked or underestimated. Sierra Club
v. U.S. Army Corps of Engrs, 295 F.3d 1209, 1214 (11th Cir. 2002). However, succumbing to the pressure to open the Addition to use by ORVs, NPS completed the GMPs environmental impact analysis and made the other decisions described in Paragraph 3 above despite the fact that NPS was still lacking information and studies which were essential to the decisions being made. For example: NPS had not sufficiently studied the impact of ORV use on the highly endangered Florida panther. NPS does not have an understanding of the impacts of ORV trails and ORV use on critical surface water flows through the Addition, including water flows into Everglades National Park. NPS had not evaluated the impact of ORV use on the natural soundscape of the Preserve, which is critical both to the enjoyment of non-motorized visitors and to the health and habitat of wildlife in the Addition. NPS found that adverse impacts of ORV use in the Addition would be mitigated by applying there the same ORV Management Plan adopted in 2000 for the Original Preserve, but NPS had never studied whether that Plan had been effective in mitigating adverse impacts in the Original Preserve.
In fact, in part because of the enormous area of the Original Preserve and the lack of adequate enforcement and monitoring resources, that 2000 plan has not been effective in minimizing or eliminating the adverse impacts from authorized ORV use or in controlling unauthorized ORV use in the Original Preserve. See United States Environmental Protection Agency (EPA) Comment Letter, January 4, 2011 at 3 (commenting that [i]nsufficient enforcement of existing regulations has resulted in thousands of miles of unauthorized routes across the landscape.). 9. However, when NPS finalized the GMP and made the decisions described
in Paragraph 3 above, the information NPS did have made clear that ORV use in the
Addition would have serious negative impacts on the natural, scenic, hydrologic, floral and faunal and non-motorized recreational values of the Addition. NPSs decisions were therefore inconsistent with the Congressional mandate that NPS must manage the Preserve lands in a manner which will assure their natural and ecological integrity in perpetuity . 16 U.S.C. 698i(a). Well aware of the significant damage that ORVs cause, Congress also directed NPS to limit or control the use of ORVs in the Preserve to carry out the purposes for which Congress established it. 16 U.S.C. 698i(b). And Congress made clear that, while outdoor recreation was to be permitted, recreational uses must be limited to activities where, or periods when, such human visitation would not interfere with or disrupt the values which the area is created to preserve. See S. Rep. No. 93-1128, at 27; H.R. Rep. No. 93-502, at 80. NPS sought to circumvent Congress purposes in establishing the Preserve and adding the Addition, as clearly reflected in the language and legislative history, by mischaracterizing that purpose in the GMP. Similarly, the GMP failed to disclose that NPSs own system-wide ORV regulation has long prohibited authorization of ORVs in the National Park System, of which the Preserve is a part, unless NPS determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values. Exec. Order 11644 3(a)(4), incorporated into NPS Rule 4.10, 36 C.F.R. 4.10. ORV use in the Addition will clearly adversely affect those values, and NPS has made no determination to the contrary. 10. In an effort to justify its unjustifiable decisions, NPS also manipulated the
process by which it evaluated the adverse impacts of permitting ORVs in the Addition in
order to downplay those impacts and thereby avoid the legal mandates to which NPS is subject. For example, NPS downplayed the adverse impacts of permitting ORV use in the Addition by claiming that such impacts would be offset by, among other things, the benefits of the South Florida Ecosystem Restoration Plan. However, that Plan which contemplates changing the South Florida hydrology cannot properly be considered to mitigate the adverse impacts because NPSs decisions are not conditioned upon implementation of that Plan and because there is no reasonable possibility that that very long term Plan will be implemented in the foreseeable future in ways which would actually offset the adverse impacts of ORV use in the Addition. Indeed, the budget for that plan was only recently cut substantially. 11. To remove another barrier to permitting ORV use in the Addition, NPS
manipulated its analysis of portions which would be eligible for protection as wilderness under the Wilderness Act. Not only is land designated as wilderness under that Act barred to recreational ORVs, but NPS must manage and maintain as wilderness any area that is eligible for wilderness protection under that Act until Congress decides whether to designate it as such. NPS therefore faced a dilemma because it had conducted a wilderness study of the Addition in 2006, which had concluded that more than 111,000 acres in the Addition were eligible for wilderness protection. NPS therefore had to find a way to change that conclusion in order to open more of the Additions 147,000 acres to ORV use. In late 2009 and early 2010, NPS did so, reducing the area found to be wilderness-eligible by 40,000 acres. NPS achieved that result by the device of applying a novel, unprecedented and incorrect interpretation of the
statutory requirements for wilderness. NPS failed even to acknowledge in the GMP that it was applying such a new interpretation. 12. In a further effort to appease the supporters of more ORV use in the
Preserve, NPS also decided that its ORV Advisory Committee established in 2007 will participate in making decisions and/or recommendations concerning the implementation of the GMP and the ROD in the Addition. The make-up of that committee has been heavily weighted since its creation in favor of supporters of ORV use in the Preserve. Sportsmen and other users of ORVs and their supporters have constituted more than half of the membership of that Committee. NPS has violated the Federal Advisory committee Act, 5 U.S.C. App. 2 5 (FACA), by creating and relying on the decisions and/or recommendations of such a committee that is not fairly balanced in terms of the points of view represented and because special interests have inappropriately significant membership on that Committee. 13. Defendants have accordingly put at risk the unique and significant natural
resources of the Preserve, including the highly endangered Florida panther, have interfered with the ability of other visitors to enjoy the Preserve and have thwarted the intent of Congress in establishing the Preserve. NPSs actions have violated NEPA; the Wilderness Act; the National Park System Organic Act, as amended and supplemented, 16 U.S.C. 1-18f; the Acts establishing Big Cypress National Preserve and adding the Addition to it, 16 U.S.C. 698f-698m; the ESA; FACA; and regulations governing the use of ORVs in the National Park System, 36 C.F.R. 4.10, and Executive Order 11644
incorporated into that regulation. FWSs actions have violated the ESA. Defendants actions are also arbitrary and capricious and an abuse of discretion. 14. The NPCA therefore asks the Court to invalidate the NPSs GMP and
ROD and the FWSs biological opinion and incidental take statement and to remand to NPS and FWS for further proceedings to comply with their statutory and regulatory mandates. In addition, NPCA and Plaintiff Adornato ask the Court to enjoin (i) the continued operation of the Preserves ORV Advisory Committee unless and until its membership has been reconstituted so as to comply with FACA and (ii) NPSs taking any action which relies on or implements any decision and/or recommendation made by that Committee prior to the issuance of such an injunction. JURISDICTION AND VENUE 15. This action arises under the Administrative Procedure Act, 5 U.S.C.
551-559, and the statutes and regulations cited in Paragraphs 12 and 14 above, which are incorporated here by reference. This Court accordingly has jurisdiction over this action pursuant to 28 U.S.C. 1331. 16. Venue in this case is proper under 28 U.S.C. 1391(e). A significant
portion of the Preserve and the Addition are located in this judicial district. Defendant NPS has an office in this district. A substantial part of the events or omissions giving rise to the claims occurred in this district.
THE PARTIES AND STANDING 17. Plaintiff National Parks Conservation Association (NPCA) is a non-
profit membership organization headquartered in Washington, D.C., the Sun Coast Regional Office of which is located in Hollywood, Florida. Founded in 1919, the NPCA is the largest national organization in the United States dedicated to the protection and enhancement of the National Park System. NPCA has approximately 340,000 members, more than 18,000 of whom reside in the State of Florida. 18. NPCAs members have an aesthetic, educational, health and spiritual
interest that will be harmed by the environmental impacts that will result from the GMP and NPSs decisions thereunder, including impacts to the land, water, scenery and wildlife in the Addition. Many of the NPCAs members live near and regularly visit the Preserve, including the Addition, for wildlife observation, hiking, photography and other similar uses, and they will continue to do so. They are drawn to the unusual scenic beauty of the area and enjoy exploring the wilderness and trails of the Preserve and the Addition, as well as looking for, and the possibility of observing, rare, threatened or endangered species, or signs of such species, including the Florida panther. They have observed the damages caused by ORV use, such as deep-rutted soils, destroyed prairie and grasses and other vegetation, and those machines interference with wildlife. They have observed the interference with water flows caused by authorized and unauthorized ORV trails. By permitting such damage in the Addition, Defendants actions interfere with and will interfere in the future with NPCAs members ability to enjoy the Preserve, including the Addition.
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19.
One member of the NPCA is Christopher M. Gratz. Mr. Gratz has hiked
in the Addition multiple times, each time taking photos and enjoying the abundant plant and animal wildlife. In hikes just a month apart in 2011, Mr. Gratz witnessed the remarkable natural changes to the wilderness and landscape that occur in such an ecologically diverse and complex area, and he enjoyed seeing panther and other animal paw prints. Mr. Gratz eagerly anticipates his next trip to the Addition, which he plans to make as early as October or November 2011, so he can see what other natural changes have occurred, and so he can visit areas he has not yet experienced. During previous hikes in the Addition, Mr. Gratz has observed the significant negative impacts of ORV use. Some parts of the paths Mr. Gratz walked had been made impassable by ORV ruts. The ORV tracks negatively impacted Mr. Gratz enjoyment of the Addition. Permitting ORVs in the Addition will interfere with Mr. Gratz ability to enjoy the Addition in the future. 20. Another member of the NPCA is Plaintiff John Adornato III.
Mr. Adornato has hiked in the Original Preserve and in the Addition and plans to do so in the future, including in the coming dry season. In places where ORVs have traveled, legally and illegally, he has observed the significant impacts those machines cause on the natural environment. The ugly scars they leave and their other adverse impacts on the natural environment has adversely impacted his enjoyment of that environment. Permitting ORVs in the Addition will interfere with Mr. Adornatos ability to enjoy the Addition in the future. Mr. Adornato is also the Regional Director of the Sun Coast Regional Office of the NPCA, headquartered in Hollywood, Florida. As Regional
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Director, he is charged with leading NPCAs campaign to restore and protect the natural resources of Floridas national parks and preserves, including the Preserve. He has expertise in wetland management and wetland ecology. Since 2008, Mr. Adornato has served as a member of the NPSs ORV Advisory Committee for the Preserve (the Committee). See the Eighth Claim for Relief, below. During Mr. Adornatos service on the Committee, the decisions and recommendations of that Committee reflected the fact that its membership has been heavily weighted in favor of those supporting more ORV use in the Preserve, and his views were given little or no weight by that dominant group of members. 21. Defendants are a department and two agencies of the United States and are
charged by Congress with administering, conserving and protecting the National Park System, including the Preserve and its Addition, and the wildlife therein, in accordance with the laws at issue here. Defendants are the federal agencies that took the actions challenged here. ALLEGATIONS COMMON TO ALL COUNTS The Preserve 22. Congress established the Original Preserve in 1974, with 582,000 acres.
An Act to Establish the Big Cypress National Preserve in the State of Florida, and for Other Purposes, Pub. L. No. 93-440, 88 Stat. 1258 (1974). In 1988, Congress amended that law by adopting the Big Cypress National Preserve Addition Act, expanding the Preserve by an additional 147,000 acres. An Act to Establish the Big Cypress National Preserve Addition in the State of Florida, and for Other Purposes, Pub. L. No. 100-301,
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102 Stat. 443 (1988). The Addition consists of two separate areas. The Northeast Addition consists of approximately 128,000 acres and is adjacent to the Original Preserves northeast boundary. The Western Addition consists of approximately 19,000 acres and runs along the western boundary of the Original Preserve. 23. Congress established the Preserve, including the Addition, [i]n order 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 the enhancement and public enjoyment thereof . 16 U.S.C. 698f(a). The Addition, which is covered with water much of each year, serves as a large reservoir and nutrient filter, permitting natural biological processes to nourish diverse ecological communities that are distinctive to southern Florida. Because the Addition is very flat and slopes very gradually, water slowly flows through the Addition and into Everglades National Park. The ecology of the Addition is finely tuned to the seasonal flow of water, and any hydrologic changes can alter its sensitive subtropical habitat. 24. The Preserve, including the Addition, is largely comprised of dwarf
cypress tree communities and other forms of cypress forests, such as cypress strands, cypress domes, mixed-hardwood and cypress swamps. Hardwood hammocks and pinelands, prairies and marshes and mangrove forests also cover portions of the Addition. As Congress explained when it created the Original Preserve: It is difficult to imagine an area with more outstanding scientific values than Big Cypress-Everglades ecosystem. Students of the evolution of life and biologists will find the resources of this area almost unequaled. It is equally
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important as a wildlife sanctuary. In addition to the thousands of migrating birds which utilize the area as a feeding, nesting, and resting place, it provides the proper habitat for more than twenty animals whose status has been listed by the Secretary of Interior as rare, endangered, or otherwise in jeopardy. S. Rep. No. 93-1128, at 25; H.R. Rep. No. 93-502, at 78 (Committee reports recommending the establishment of the Original Preserve). 25. Wildlife is abundant in the Addition, including great blue herons,
kingfishers, alligators and other wildlife. The Addition also constitutes a significant portion of the scant remaining natural habitat for the highly endangered Florida panther (Puma concolor coryi), which has been federally listed as endangered since 1967. The NPS recognized in 1991 that [t]he Florida Panther is perhaps the most sensitive natural resource in south Florida any action that led to losses of individual panthers, their prey, or the quality of Panther habitat would contribute to the loss of the species as an ecological and genetic resource. NPS General Management Plan: Final Environmental Impact Statement, Vol. I, at 3 (1991) (the 1991 GMP). The area is habitat for other endangered species as well, including the threatened eastern indigo snake (Drymarchon corais couperi) and the red-cockaded woodpecker (Picoides borealis). 26. The Preserve, including the Addition, is envisioned by NPS as a
nationally significant ecological resource a primitive area where ecological processes are restored and maintained and cultural sites are protected from unlawful disturbance. Visitors will benefit from aesthetic gratification and relaxation in a natural setting, the challenge of exploring the landscape, the chance to test traditional backcountry skills, and the opportunity to learn more about the natural environment. GMP at 16.
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Off-Road Vehicles 27. Off-road vehicles are motorized vehicles designed for or capable of cross-
country travel on or immediately over land, water, marsh, swamp land or other natural terrain. NPSs decision at issue here authorizes three types of ORVs in the Addition: All-terrain cycles, which are commercially manufactured vehicles having a seat designed to be straddled by the operator and using handle bar steering control. In the Original Preserve, all-terrain cycles comprise about 50 percent of the permits issued for ORVs. Some of these vehicles can travel extremely fast and are so equipped that they can travel through stream beds, mud and deep water. GMP at 215-16. Swamp buggies, which include a wide variety of custom-designed and built vehicles having a wide range of configurations and capable of traveling into the backcounty. Swamp buggies comprise approximately 33 percent of the ORV permits in the Original Preserve. Id. at 216. Swamp buggies generally utilize large tractor tires, which raise the sitting platforms on the vehicles high above ground level, permitting the machines to travel through swamp water. Street legal four-wheel drive off-road vehicles and trucks, which are commercially manufactured and sold. These vehicles comprise approximately 12 percent of the ORV permits in the Original Preserve. These vehicles can weigh more than 4,000 pounds. Id. at 215.
The 2000 ORV Plan for the Original Preserve 28. In 1995, NPS entered into a settlement of a lawsuit which had charged that
NPSs unlawful management of ORVs in the Original Preserve was causing extensive damage to natural resources and had harmed, threatened and endangered species, particularly the Florida panther. Under the settlement, NPS agreed to prepare a management plan for ORVs in the Original Preserve. In 2000, NPS issued its Final Recreational Off-Road Vehicle Management Plan and Supplemental Environmental
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Impact Statement, addressing the management of recreational ORV use in the Original Preserve (the 2000 ORV Plan). 29. The environmental impact statement which was part of the 2000 ORV
Plan documented devastating impacts ORV use had caused in the Original Preserve. For example, NPS there documented that: ORVs had created ruts that were sometimes as deep as two feet. Those ruts affect water flows, which causes other damage. Aerial infra-red photographs had revealed a network of features caused by ORV use in Original Preserve totaling approximately 29,000 miles. ORV use can result in the loss of soil cover, and once disturbed, few natural mechanisms are capable of restoring soil cover and contour. These effects are therefore cumulative and worsen over time. ORV use had been shown to alter plant species composition and distribution and to damage juvenile trees. ORV use had a dramatic effect on wildlife, including by reducing their hunting and mating opportunities. ORV use had substantially impaired visitor enjoyment.
30.
In light of these adverse impacts, NPS limited ORV use in the Original
Preserve to designated trails from designated access points, closed portions of the Original Preserve to any ORV use and adopted other measures. NPS found that [i]mplementing the proposed action would result in long-term benefits to water resources, soils and vegetation. The plan may also benefit endangered and threatened species, including the Florida panther. 2000 ORV Plan at vii. 31. Nevertheless, the 2000 ORV Plan authorized ORV use on 400 miles of
primary trail. Notwithstanding a number of specific requirements on ORV users in the
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Original Preserve and limitations on areas where such use was permitted, illegal ORV use has been experienced in the Original Preserve even after adoption of the 2000 ORV Plan. ORV users have traveled in areas where ORV use was not authorized; continued to create unauthorized trails; engaged in mudding, a highly-damaging form of all-terrain vehicle recreation; used machines that had not been inspected by NPS; and otherwise flouted the 2000 ORV Plan. As EPA stated in one of its comment letters on the GMP at issue here, [i]nsufficient enforcement of existing regulations has resulted in thousands of miles of unauthorized routes across the landscape. Letter from Heinz J. Muller, Office of Policy and Management, EPA, to Pedro Ramos, Superintendent, Big Cypress National Preserve, at 3 (Jan. 4, 2011). ORV Impacts on the Florida Panther 32. The population of the Florida panther, isolated to southernmost Florida, is
estimated at approximately 113 adults and immature panthers. That population represents the last known members of a sub-species that once roamed much of the southeastern United States. In 1991, the NPS found that the decline of the Florida Panther has been attributed to the loss of habitat quality due to increased hunting [and] ORV use. 1991 GMP at 231. 33. The conservation of remaining panther habitat is crucial to the Florida
panthers survival. In 2000, the FWS concluded that [c]ontinued deterioration, fragmentation, loss of habitat, and further reductions in the current extent of the occupied range will likely reduce the south Florida population below the level necessary for demographic and genetic health. FWS, Biological Opinion on Impacts of ORV
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Management Plan to Endangered Species in Big Cypress National Preserve (July 14, 2000). And in 2008, FWS concluded that there is a significant threat of extinction of the Florida panther. FWS, Florida Panther Recovery Plan 4-5 (3rd rev. 2008). 34. The size, distribution, and abundance of available prey species in
particular are critical factors to the persistence of panthers in south Florida and often determine the extent of panther use of an area. Florida Panther Recovery Program, supra, at 56. Panthers traverse the Preserves diverse terrain in search of prey and to den. The Preserve is considered by panther experts as the species primary zone land that, if preserved, would contribute most to the long-term persistence of the species in the wild. 35. Increased ORV use in the Preserve has threatened and continues to
threaten Florida panthers by increasing human activity in remote panther habitat and displacing panthers, by fragmenting habitat, and by facilitating hunting that has already significantly reduced panther prey in the Preserve. The GMP and the Wilderness Eligibility Determination 36. The 2000 ORV Plan did not apply to the lands constituting the Addition,
which were not acquired by NPS until 1996. Since that time, the Addition has been closed to ORV use, although illegal ORV use there has occurred. On information and belief, ORV users and state and local officials have urged the management of the Preserve to open the Addition to ORV use and to permit extensive ORV use there. The Preserves management, succumbing to that pressure, therefore prepared and finalized the GMP despite the fact that NPS had not yet obtained studies critical to any such decision,
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had not evaluated critical studies obtained and had not obtained other information critical to any such decision. 37. In 2006, an interdisciplinary NPS team had conducted a study of the
Addition to determine the portions of the Addition which meet the statutory definition of wilderness under the Wilderness Act, i.e., areas eligible for treatment as wilderness. That study concluded that 111,601 acres in the Addition were wilderness-eligible. In late 2009 and early 2010, in order to permit the opening of a larger portion of the Addition to ORV use than would have been permitted under the 2006 studies conclusions, NPS revisited those conclusions. In March 2010, NPS completed its revised determination of wilderness eligibility. NPSs new finding was that only 71,263 acres meet the wilderness criteria of that Act. In order to reach that new finding, NPS applied a new, unprecedented and incorrect interpretation of wilderness as used in that Act. NPSs new finding cleared the way for more extensive ORV use in the Addition. 38. The GMP was finalized in October 2010. It consisted, in a single
document, of a general management plan for the Addition, an ORV management plan, a wilderness area assessment and a NEPA environmental impact statement. In order to accede to the pressure to open the Addition as soon as possible to ORV use, NPS finalized the GMP before NPS had obtained all of the studies and other information essential to the decisions presented by the GMP. 39. The GMP identified and analyzed four alternative plans for the
management and use of the Addition. Each of those alternatives considered the extent to which portions of the Addition would be made available for recreational ORV use and
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the extent to which, on the contrary, portions of the Addition would be preserved and protected, including by recommending areas to be designated as wilderness under the Wilderness Act. The GMP identified one of those alternatives as NPSs preferred alternative. As NPS stated, that alternative would provide, among other things, substantial ORV access, [and] provide a moderate amount of proposed wilderness . GMP at ii (emphasis added). Specifically, that alternative would establish approximately 130 miles of ORV trails as part of a primary ORV trail network. Additional secondary trails branching off from the primary trails would be designated at a later date. Six hundred fifty ORV permits would be issued annually for the use of those trails. Under the preferred alternative, only about 47,000 acres of the 71,263 acres found eligible were recommended to be protected as wilderness under the Wilderness Act. 40. The preferred alternative elevated ORV recreational opportunities above
NPSs mandate to preserve the resources and values of the Preserve. The GMP recognized that permitting ORVs in the Addition could have significant adverse impacts on surface water flow, water quality, wetlands, vegetation, endangered and threatened species such as the Florida panther, major prey and game species, archeological and other cultural resources, the natural soundscape, wilderness resources and values and other the experience of non-motorized visitors. 41. Nevertheless, the GMPs analysis of the preferred alternative reflected the
Preserves managements determination to accede to the pressure to open the Addition to extensive ORV use. Accordingly, the GMP mischaracterized the legal mandates governing such a plan, including the purpose of the legislation establishing the Preserve
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and adding the Addition; stated conclusions about the preferred alternatives adverse impacts that lacked factual support and that reflected a myopic view of the issues, rather than analyzing the cumulative impacts required to be analyzed; downplayed the adverse impacts of the preferred alternative, in part by asserting that those impacts would be offset by beneficial impacts of other projects despite the fact that the preferred alternative was not conditioned on implementation of those other projects and despite the fact that those other projects might not be implemented, if ever, for many years after implementation of the preferred alternative; and otherwise reached arbitrary and capricious conclusions. 42. Of the enormous number of comments received by NPS on its draft of the
GMP, 93 percent received from individuals opposed ORV use in the Addition. Among others commenting was EPA, which found that the preferred alternative may adversely impact surface water flow; the control of exotic/non-native plants; the Florida panthers food supply; the redcockaded woodpecker and localized impacts on major game species. EPA also has concerns for potential impacts to wetlands and other waters of the US. Among other things, EPA recommended that NPS provide a cumulative impact analysis for the entire Preserve, including the Addition. EPA also recommended consideration of a different alternative which would emphasize resource preservation, restoration, and research while providing recreational opportunities with limited facilities and support. GMP at 485. After publication of the GMP, EPA submitted a further comment. The EPA there catalogued the extensive research finding that ORVs pose a serious threat to wildlife, water, soil, plants, and the rest of the natural world. EPA stated that NPS
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should permit ORVs, if at all, only after NPS can demonstrate that the use of ORVs will not cause adverse environmental impacts to ecologically sensitive areas containing a vast array of animal life and its aquatic and terrestrial habitats. It is imperative the environmentally sensitive areas stay contiguous. EPA again recommended the alternative which would provide the maximum amount of wilderness, no ORV use and minimal new facilities for visitor contact along I-75. The FWSs Biological Opinion and Incidental Take Statement 43. Because the Addition is home to a number of species listed under the ESA
as endangered, including the Florida panther, NPS was required to obtain a biological opinion from the FWS as to whether or not the GMPs preferred alternative was likely to jeopardize the continued existence of those species. On November 17, 2010, the FWS rendered its opinion, concluding that implementation of the preferred alternative is not likely to jeopardize the continued existence of the Florida panther (2010 BiOp). The opinion addressed only in a cursory fashion the impact of the preferred alternative on other endangered species. 44. The ESA requires, when such an opinion is rendered, that the FWS also
issue an incidental take statement, specifying the extent of the impact on which the opinion is based, specifying reasonable and prudent measures necessary or appropriate to minimize such impact and imposing terms and conditions to be complied with to implement those measures. 16 U.S.C. 1536(b)(4). The FWS accordingly included an incidental take statement in its biological opinion, but that statement failed to comply with the requirements of the ESA. The terms and conditions imposed merely stated such
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broad, non-measureable and ineffective conditions as minimize human disturbance and habitat degradation, such as by providing educational materials to ORV users; and minimize take through a better understanding of the interactions of the Florida panther and its environment. 2010 BiOp at 45. The NPSs ROD 45. On February 4, 2011, NPS issued its ROD. NPS there adopted the
preferred alternative which had been described in the GMP; adopted so-called mitigation measures and so-called best management practices as identified in the GMP; and identified NPSs preferred alternative as the environmentally preferable alternative. In addition, misstating the laws governing such a decision, NPS stated that its selected alternative best balances NPSs need to provide high-quality visitor experiences and protect Addition resources. ROD at 20-21. Because NPS is prohibited by its governing legislation from taking any action that would impair the resources or values under its care, the ROD attached a Determination of Impairment for NPS Preferred Alternative, in which NPS concluded that the preferred alternative would not impair the Additions resources or values. That Determination of Impairment for NPS Preferred Alternative suffered from many of the same fundamental flaws as the GMP itself.
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FIRST CLAIM FOR RELIEF (As to Department of the Interior and NPS; Section 10(e)(B)(1) of the Administrative Procedure Act for Agency Action Not in Accordance with Law, Violation of Wilderness Act of 1964) 46. Section 10(e)(B)(1) of the Administrative Procedure Act, 5 U.S.C.
706(2)(A) authorizes a reviewing court to hold unlawful and set aside agency action, findings and conclusions found to be not in accordance with law. 47. The allegations in Paragraphs 1-14, 36-42 and 45 above are incorporated
in this First Claim for Relief by reference as fully as if repeated here. 48. The Wilderness Act implements Congressional policy that areas be
established as wilderness areas in order to preserve and protect them in their natural condition as an enduring resource of wilderness and for their enjoyment as such. 16 U.S.C. 1131. The Secretary of the Interior, among others, is directed to recommend areas under his jurisdiction, including those managed by NPS, that meet the Acts definition of wilderness, and the President is directed to advise Congress of his recommendation whether such areas should be designated by Congress thereunder as wilderness. 16 U.S.C. 1132(c). 49. characteristics: [A]n area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been The Wilderness Act defines wilderness as having the following
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affected primarily by the forces of nature, with the imprint of mans work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. 16 U.S.C. 1131(c). 50. In the words of NPSs own Wilderness Reference Manual: Wilderness
Preservation and Management (July 1999) (the Wilderness Reference Manual), the Wilderness Act provides a degree of protection to the resources of the National Park System that the National Park Service Organic Act does not. The Wilderness Act directs that wilderness areas, even within national parks, shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness. The effect of the Wilderness Act is to unambiguously place an additional layer of protection on wilderness areas within the National Park System. Wilderness Reference Manual at 9 (emphasis in original). 51. The legislation establishing the Preserve, and that later adding the
Addition, also expressly mandated that the Secretary of the Interior review areas therein and determine those portions that should be recommended to the President and the Congress for protection as wilderness under the Wilderness Act. 16 U.S.C. 698l. Shortly after having established the Preserve in 1974, Congress found in the Eastern Wilderness Areas Act that in the more populous eastern half of the United States there is an urgent need to identify, study, designate, and preserve areas for addition to the National Wilderness Preservation System. Congress further there declared and found
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that additional areas should be identified and protected as wilderness areas to perpetuate the wilderness character of the land and its specific values of solitude, physical and mental challenge, scientific study, inspiration, and primitive recreation. Eastern Wilderness Areas Act, Pub. L. No. 93-622, 88 Stat. 2096 (1975). According to the Wilderness Reference Manual, the Eastern Wilderness Areas Act resolved a longstanding debate concerning how pure an area must be before it can be considered for wilderness designation. By including lands that had previously been clearcut or had abandoned roads, Congress implied that wilderness did not have to consist solely of pristine old-growth forests, and that lands previously disturbed could be rehabilitated to meet wilderness standards and qualities. Wilderness Reference Manual at 11. 52. In 2006, an interdisciplinary NPS team conducted a study of the Addition
to determine areas eligible for treatment as wilderness. That study determined that 111,601 acres in the Addition, approximately 76%, were eligible as wilderness under the Wilderness Act. That area consisted of 93,959 acres in the Northeast Addition and 17,642 acres in the Western Addition. Draft GMP at 114-15, 398 (May 2009). 53. NPS Management Policies provide that [t]he National Park Service will
take no action that would diminish the wilderness eligibility of an area possessing wilderness characteristics until the legislative process of wilderness designation has been completed. Until that time, management decisions will be made in expectation of eventual wilderness designation. 2006 Management Policies 6.3.1. 54. Accordingly, if the 2006 wilderness study were accepted, the Preserves
management would be required to manage the 111,601 wilderness-eligible acres as if
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they were all designated as wilderness by Congress, whether or not NPS actually proposed that that whole area be so designated. Id. 55. However, by 2009 or early 2010, on information and belief, the
management of the Preserve was being urged by ORV users and by state and local officials to reduce the area to be found wilderness-eligible in order to increase the area that could be made accessible to ORV use. In order to accede to those urgings, the Preserves management decided to revise the 2006 studys wilderness-eligible findings. As NPSs Wilderness Reference Manual states, [f]or areas determined to be nonsuitable for wilderness designation, the wilderness preservation provisions of the National Park Service Management Policies are no longer applicable. Wilderness Reference Manual, at 14. 56. Accordingly, in February 2010, the management of the Preserve held a
meeting to reevaluate the 2006 wilderness studys eligibility determination. The agenda for the meeting stated that the meeting was called, among other things, to discuss the need to adjust the assumptions on which the 2006 wilderness study had been conducted. At that meeting, the participants agreed to adopt new assumptions for the wilderness assessment. Those assumptions were not assumptions at all, however, but were instead new tests and glosses on the legislative definition of wilderness, tests and glosses which were unjustified by the language or the purpose of the Wilderness Act or by any official NPS policy or interpretation. Those glosses and tests were instead designed to permit the Preserves management to reduce the portion of the Addition to be found wilderness-eligible.
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57.
Applying the unjustified assumptions referred to in the preceding
paragraph, NPS adopted a new eligibility determination in March 2010 which reduced the eligible wilderness from 111, 601 to 71,263 acres. GMP at 469. 58. NPS violated the Wilderness Act by improperly determining that more
than 40,000 acres of the Addition are not eligible for protection as wilderness under the Wilderness Act when in fact those areas are eligible for protection as wilderness under that Act. In particular, NPS wrongfully applied the requirements of the Wilderness Act to its 2010 eligibility assessment in the following respects, among others: (a) NPS wrongfully excluded portions of the Addition from wilderness
eligibility on the ground that those portions contained previously illegally-established ORV trails. The presence of a trail or road does not alone make an area legally ineligible for wilderness protection, however. Yet NPS used findings of such previouslyestablished trails as an excuse to determine that large areas otherwise wilderness-eligible were for that reason ineligible for wilderness protection. (b) NPS wrongfully excluded from a wilderness-eligibility determination
those previously illegally-established ORV trails which NPS wished to, and did, decide to reopen as ORV trails under its preferred alternative. NPS also wrongfully excluded the area one-quarter mile of either side of each such trail. These trails and other areas should not have been considered in isolation from the larger area in which each such trail is found. Such a segregation for eligibility purposes of the trails from the other parts of the areas through which the trails run is artificial and violates the language and purpose of the Wilderness Act. If such a practice were consistent with the Wilderness Act, which it
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is not, the statutory prohibition against roads through wilderness areas, see 16 U.S.C. 1133(c), would become a nullity, because agencies could simply exclude present or planned roads from their wilderness eligibility determinations. (c) Lacking any basis in the actual language of the Wilderness Act, NPS used
as a test of eligibility [w]hether the imprint of humans work is substantially unnoticeable was viewed from the perspective of a land manager and not a common visitor. Mans past work is, in many cases, substantially noticeable to a land manager, but may not be to the common visitor. GMP at 469. That test violates the language and the purpose of the Wilderness Act. If a common visitor cannot detect prior human activity on the land, the land generally appears to have been affected primarily by the forces of nature, 16 U.S.C. 1131(c), and is therefore not excluded from the Acts definition of wilderness for this reason alone. (d) NPS wrongfully applied the Wilderness Act to the Addition by artificially
segregating the Addition from adjacent lands in the Original Preserve in assessing wilderness eligibility. GMP at 469. The Addition is not a separate entity, but an integral part of the Preserve. On information and belief, some areas of the Original Preserve adjacent to the Addition qualify as wilderness for purposes of the Wilderness Act. Yet by artificially segregating the analysis of the lands in the Addition from adjacent lands in the Original Preserve, NPS justified excluding parts of the Addition from wilderness eligibility on the ground that they consisted of areas too small to manage as wilderness. (e) NPS wrongfully excluded some areas from eligibility as wilderness on the
ground that motorized use would continue. GMP at 473. If that reference is to use
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needed by owners of private lands in the Addition to access their land, that use does not disqualify the area from wilderness protection. (f) NPS wrongfully excluded some areas from wilderness eligibility on the
ground that trails are needed there for restoration efforts or for other administrative uses. But the need for such uses does not legally disqualify areas from treatment as wilderness. See, e.g., 16 U.S.C. 1133(c) (exception to prohibition of roads in wilderness when needed for administrative uses); Wilderness Reference Manual at 13 (An area will not be excluded from a determination of wilderness suitability solely because proposed management practices require the use of tools, equipment, or structures, if those practices are necessary to meet the minimum requirements for the administration of the area as wilderness.); NPS Directors Order No. 41: Wilderness Stewardship at 9 (instructing that fire management is permitted in wilderness areas to restore or maintain ecological function). SECOND CLAIM FOR RELIEF (As to Department of the Interior and NPS; Section 10(e)(B)(1) of the Administrative Procedure Act for Agency Action Not in Accordance with Law, Violation of the Laws Governing the National Park System and the Preserve) 59. Section 10(e)(B)(1) of the Administrative Procedure Act, 5 U.S.C.
706(2)(A) authorizes a reviewing court to hold unlawful and set aside agency action, findings and conclusions found to be not in accordance with law. NPSs actions violated the laws governing the National Park System of which the Preserve is a part. 60. Paragraphs 1-14 and 22-45 above and Paragraph 90 below are hereby
incorporated by reference in this Second Claim for Relief as if fully set forth herein.
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61.
The National Park System consists of areas singled out for their national
significance, justifying special recognition and protection in accordance with various acts of Congress. The Addition is part of the Preserve, and Congress provided that the Preserve shall be administered 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 [the Enabling Act] and with the provisions of sections 1, 2, 3 and 4 of this title, as amended and supplemented [the National Park Service Organic Act]. 16 U.S.C. 698i(a). 62. As discussed below, NPS is prohibited by the statutes governing its
administration of the National Park System and of the Preserve from taking any actions which either: (a) (b) would impair the resources or values of the Preserve; or would, even if not creating an impairment, elevate recreational uses above conservation and preservation of those resources and values, other than as necessary and appropriate to carry out the purposes for which the Preserve was created; or would not assure the natural and ecological integrity of the Preserve.
(c) Impairment 63.
The National Park Service Organic Act, as amended and supplemented, 16
U.S.C. 1-18f, created the National Park Service and directed it to promote and regulate the use of the [National Park System] by such means and measures as conform to the fundamental purpose of the [National Park System], which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for
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the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 16 U.S.C. 1. 64. NPS has defined a prohibited impairment to park resources as any
action that would harm the integrity of park resources or values, including the opportunities that otherwise would be present for the enjoyment of those resources or values. NPS 2006 Management Policies 1.4.5. Whether an impact meets this definition depends on the particular resources and values that would be affected; the severity, duration and timing of the impact; the direct and indirect effects of the impact; and the cumulative effects of the impact in question and on other impacts. Id. In addition, the 2006 Management Policies state that [a]n impact would be more likely to constitute an impairment to the extent that it affects a resource or value whose conservation is necessary to fulfill specific purposes indentified in the establishing legislation or proclamation of the park; or key to the natural or cultural integrity of the park or to opportunities for enjoyment of the park; or identified in the parks general management plan or other relevant NPS planning documents as being of significance. Id. 65. The Management Policies define the park resources and values subject
to the non-impairment requirement to include, inter alia, the following: the parks scenery, natural and historic objects, and wildlife, and the processes and conditions that sustain them, including, to the extent present in the park: the ecological, biological, and physical processes that created the park and continue to act upon it; scenic features; natural visibility, both in daytime and at night; natural landscapes; natural soundscapes
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and smells; water and air resources; soils; geological resources; paleontological resources; archeological resources; cultural landscapes; ethnographic resources; historic and prehistoric sites, structures, and objects; museum collections; and native plants and animals. Id. 1.4.6. 66. The actions adopted by the ROD will impair the Preserve and the Addition
because those actions will harm the integrity of many significant resources and values of the Addition that are necessary to the purposes for which the Preserve was established and which are key to its natural and cultural integrity. 67. Prior to approving any proposed action that could lead to an impairment of
park resources and values, an NPS decision maker must consider the impacts of the proposed action, and determine, in writing, that the activity will not lead to an impairment of park resources and values. Id. 1.4.7. Attachment 3 to the ROD contains NPS Determination of Impairment for NPS Preferred Alternative (the Impairment Determination), which evaluates the impacts of the preferred alternative upon a number of park resources and values, and determines that those impacts will not rise to levels that would constitute impairment. ROD at 126. However, this determination is deeply flawed, and fails to comply with the requirements set forth in the Organic Act in the following respects, among others: (a) In the Impairment Determination, NPS found, as to a number of resources
and values adversely impacted by the preferred alternative, that their conservation is necessary to fulfill specific purposes indentified in the Enabling Act and are key to the natural or cultural integrity of the Addition. Nevertheless, NPS stated that the adverse
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impacts of ORV use upon those resources and values will not result in impairment because those adverse impacts will supposedly be offset by beneficial impacts of other projects. Those other projects, as to each of those resources and values, are one or more of (i) the South Florida Ecosystem Restoration project, (ii) vegetation restoration projects, and (iii) the ORV management plan set forth in the GMP. However, NPS has failed to explain in what particular respects those plans or projects, other than the ORV management plan, would offset the adverse effects of ORV use in the Addition, and those plans or projects will not offset those adverse effects. For example, the ecosystem restoration plan is a very long term strategy for changing the hydrology of South Florida, but it will have little, if any, beneficial impact on the Addition if and when it is fully implemented. Moreover, the GMP is not contingent upon implementation of that plan, and there is accordingly no reason to believe that it will be implemented before the GMP is implemented. Moreover, NPS has, on information and belief, failed to evaluate the effectiveness of the ORV management plan in the Original Preserve more than 10 years after its adoption there, and NPS admits that it does not have the resources to implement that plan in the Addition. (b) In determining what impacts constitute impairment of park resources and
values, the responsible NPS manager must consider the cumulative effects of the impact in question and other impacts. 2006 Management Policies 1.4.5. However, the Impairment Determination only considers the impacts of ORV use on each particular resource or value of the park separately and fails to consider the cumulative effects of all those adverse impacts together upon the Addition. The Impairment Determination also
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fails to consider the cumulative impact of ORV use in the Addition and in the Original Preserve. And the Impairment Determination fails to consider the adverse impact of the GMP on Everglades National Park, despite the admitted impact of the preferred alternative on sheet water flows in the Addition and the importance of those flows on Everglades National Park. (c) In determining what impacts constitute impairment, NPS must consider
both the direct and indirect impacts of the proposed use. 2006 Management Policies 1.4.5. However, the Impairment Determination ignores many known indirect impacts of ORV use that must be considered to determine whether such use constitutes an impairment. For example, when NPS opens the Addition to ORV use, it is highly likely based on NPSs experience in the Original Preserve and elsewhere in the National Park System that there will be a significant amount of unauthorized ORV use in the Addition, including among other things by users without permits and by users taking their machines into areas where ORVs are not authorized to go. In addition, the GMP acknowledges that secondary trails will be permitted to branch off the primary trails evaluated in the GMP. However, NPS failed to include the likelihood of or the impacts that will result from such unauthorized use or such secondary trails. (d) The Impairment Determination conflicts in certain respects with the GMP.
For example, the Impairment Determination concludes that the natural soundscape will not be impaired by ORV use because noise from ORV use on trails will be only localized, mobile and temporary. ROD at 125. But the GMP recognizes that, while a noise from a vehicle driving on a road would be heard for a short time and intermittently,
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but because vehicles driving on a road would be driving the same road throughout the 20year life of the plan, the impact on the natural soundscape would be considered long term. GMP at 242. In any event, NPS says ORV noise can be heard up to two miles away, depending upon various factors. GMP at 220. The layout of the ORV trails in the Northeast Addition would therefore make ORV noise audible throughout virtually that entire area. Elevation of Recreational Use Over Conservation 68. The Organic Act imposes a separate mandate on NPS, independent of the
prohibition on impairment, which is to place preservation of the resources and values of the Preserve over recreational values when they conflict, to permit adverse impacts only when necessary and appropriate to fulfill the purpose of the Preserve and, even then, to minimize such adverse impacts to the extent possible. 69. The fundamental purpose of the National Park System the conservation
of our national heritage was reaffirmed by Congress in a 1978 amendment: Congress further reaffirms, declares, and directs that the promotion and regulation of the various areas of the National Park System shall be consistent with and founded in the purpose established by [16 U.S.C. 1] to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established. 16 U.S.C. 1a-1.
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70.
In 2005, NPS published for public comment a revision, among other
things, of its interpretation of the Organic Act, proposing that that interpretation should henceforth be that recreational opportunities and conservation stand on an equal footing and that NPS should balance those conflicting purposes supposedly found in the Organic Act. This is the same flawed interpretation adopted in the ROD at issue here. See ROD at 20-21. After a massive outcry from the American public against such a change, the Secretary of the Interior and the Director of NPS jointly announced that they were rejecting such a change in interpretation. Instead, on August 31, 2006, NPS adopted the 2006 Management Policies, to govern NPSs management of the National Park System, which included NPSs official agency interpretation of the Organic Act. The 2006 Policies contain NPSs official interpretation of the Organic Acts requirements. That interpretation stated unequivocally that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. 2006 Management Policies 1.4.3. Furthermore, the fundamental purpose of the national park system, established by the Organic Act and reaffirmed by the General Authorities Act, as amended, begins with a mandate to conserve park resources and values. This mandate is independent of the separate prohibition on impairment and applies all the time with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired. Id. 71. NPSs actions at issue here will, as it found, cause significant adverse
impacts on the resources and values of the Addition. However, those adverse impacts are not necessary or appropriate to fulfill the purpose of the Preserve, which is preservation,
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not recreation, and particularly not motorized recreation. Both the language and the legislative history of the Enabling Act make clear that the principal thrust of these areas should be the preservation of the natural values which they contain. S. Rep. No. 931128, at 26; H.R. Rep. No. 93-502, at 79 (emphasis added). Congress intended the Preserve to be managed in a manner which will assure its return to the true wilderness character which once prevailed. S. Rep. No. 93-1128, at 22; H.R. Rep. No. 93-502, at 74. While outdoor recreational opportunities for the visiting public were contemplated, such recreational uses were to be limited to activities where, or periods when, such human visitation would not interfere with or disrupt the values which the area is created to preserve. S. Rep. No. 93-1128, at 27; H.R. Rep. No. 93-502, at 80. Those reports also make clear that any ORVs permitted must be carefully regulated to protect the natural, wildlife and wilderness values of the Preserve. S. Rep. No. 93-1128, at 22; H.R. Rep. No. 93-502, at 74. 72. The GMP, however, elevates recreational uses above conservation and
preservation, fails to limit adverse impacts to those necessary and appropriate to fulfill the purpose of the Preserve and fails to minimize adverse impacts, in the following respects among others: (a) The authorization of 130 miles of primary ORV trails through sensitive
ecological areas, which will cause significant adverse impacts to the Additions resources and values, but such trails are not necessary or appropriate to fulfill the purpose of the Preserve.
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(b)
Even if permitting some ORV use were necessary and appropriate to carry
out the purpose of the Preserve, which it is not, it is not necessary or appropriate to add an additional 130 miles of ORV trails to the 400 miles of primary ORV trails already authorized in the Original Preserve. The GMP does not even discuss or explain whether, and if so why, the 440 miles of ORV trails in the Original Preserve is not sufficient to meet the needs of ORV users in the Preserve. Instead, NPS artificially separates its evaluation of the Addition from the Original Preserve as if they were somehow different units of the National Park System, instead of parts of one unit. (c) NPS has chosen an approach that, in its own words, allows substantial
ORV use and only a moderate amount of wilderness. This approach elevates recreational use over preservation, and does so to an extent and in a manner that will cause substantial adverse effects on key resources and values of the Preserve. (d) One of the most significant resources of the Preserve is the Florida
panther, yet the GMP acknowledges that [t]otal human use and disturbance within the panther habitat in the Addition would increase substantially relative to the no-action alternative. GMP at 350. Administration of the Preserve Inconsistent with the Enabling Act 73. In the Enabling Act, Congress provided that the purpose for which the
Preserve was established, including the Addition, was [i]n order 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 the enhancement and public enjoyment thereof . 16 U.S.C. 698f(a).
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74.
Congress provided that NPS shall administer the Preserve, including the
Addition, 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 [the Enabling Act] and with the provisions of the [Organic Act]. 16 U.S.C. 698i. See also Paragraph 71 above, incorporated here by reference. 75. Congress required NPS to adopt regulations necessary and appropriate to
limit or control the use of motorized vehicles, among other things, in order to carry out the purposes of the Enabling Act. 16 U.S.C. 698i(b). The purposes of the Enabling Act are to assure [the Preserves] natural and ecological integrity in perpetuity. Id. 698i(a). 76. NPS has decided, contrary to the Enabling Act, to administer the Preserve
in a manner as described in the GMPs preferred alternative and the ROD which will undermine the purpose of the Enabling Act and undermine the natural and ecological integrity of the Addition. THIRD CLAIM FOR RELIEF (As to Department of the Interior and NPS; Section 10(e)(B)(1) of the Administrative Procedure Act for Agency Action Not in Accordance with Law, Violation of NPS Rule 4.10) 77. Section 10(e)(B)(1) of the Administrative Procedure Act, 5 U.S.C.
706(2)(A) authorizes a reviewing court to hold unlawful and set aside agency action, findings and conclusions found to be not in accordance with law. The GMP violates 36 C.F.R. 4.10.
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78.
The allegations set forth in Paragraphs 1-14 and 22-45 above are
incorporated by this reference into this Third Claim for Relief as if fully set forth herein. 79. For almost forty years, the U.S. Government has recognized the threat
posed by ORV use on federally owned public lands. As part of the implementation of NEPA, President Nixon signed Executive Order 11644 on February 8, 1972. Executive Order 11644 establish[ed] policies and provide[d] for procedures [to] 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 11644 1, 37 FED. REG. 2877 (Feb. 8, 1972). In 1977, President Carter amended Executive Order 11644 to strengthen it. Exec. Order 11989, 42 FED. REG. 26959 (May 24, 1977). 80. Executive Order 11644 directs the head of each federal agency that
manages public lands (including the Secretary of the Interior) to promulgate regulations 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 offroad vehicles may not be permitted, and further directs that the designation of areas for ORV use be in accordance with three principles: (1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of the public lands. Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats. Areas and trails shall be located to minimize conflicts between off-road vehicle use and other
(2)
(3)
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existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors. Exec. Order 11644 3. 81. In addition, Executive Order 11644 prohibits the designation of ORV use
anywhere in the National Park System unless the Secretary of the Interior specifically determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values. Exec. Order 11644, 3(a)(4). 82. To fulfill the obligations imposed by Executive Order 11644, NPS
adopted Rule 4.10, which prohibits ORV use in the National Park System except on routes or in areas designated for such use by regulation and provides that [t]he designation of routes and areas shall comply with [Executive Order] 11644. 36 C.F.R. 4.10(b). Accordingly, Rule 4.10 prohibits the authorization of ORVs in the Preserve unless the Secretary of the Interior determines that ORV use in the authorized locations will not adversely affect their natural, aesthetic, or scenic values, and, even if such a determination can be made, that Rule requires that the areas in which ORV use is permitted are chosen so as to minimize damage to soil, watershed, vegetation and other resources; to minimize harassment of wildlife or significant disruption of wildlife habitats; and to minimize conflicts with other recreational users of the same or neighboring lands, taking into account noise and other factors.
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83.
NPS has violated Rule 4.10 by failing to make the required determination
under Rule 4.10 so as to comply with Executive Order 11644 when permitting ORVs in the Addition. 84. NPS has violated Rule 4.10 by permitting ORV use in areas in the
Addition, when such use will adversely affect the natural, aesthetic, and scenic values in the locations where such use is permitted. The GMP finds that there will be adverse impacts, some of which will be moderate or even major, but the GMP finds that at least some of those impacts will only be localized. Localized impacts are prohibited by Rule 4.10 as much as are impacts which are Preserve-wide. 85. NPS has violated Rule 4.10 by designating ORV use on routes which do
not minimize damage to soil, watershed, vegetation and other resources of the Addition; do not minimize harassment of wildlife or significant disruption of wildlife habitats; and do not minimize conflicts with other recreational users. FOURTH CLAIM FOR RELIEF (As to Department of the Interior and NPS; Section 10(e)(B)(1) of the Administrative Procedure Act for Agency Action that was Arbitrary and Capricious and Not in Accordance with Law Based on Violation of National Environmental Policy Act and the Regulations Thereunder) 86. Section 10(e)(B)(1) of the Administrative Procedure Act, 5 U.S.C.
706(2)(A) authorizes a reviewing court to 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. NPS violated NEPA, 42 U.S.C. 4321-4335, and
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regulations thereunder and acted arbitrarily and capriciously by the manner in which it prepared the GMP. 87. The allegations set forth in Paragraphs 1-14 and 22-45 above are
incorporated in this Fourth Claim for Relief as if fully set forth herein. 88. NEPA and regulations thereunder mandate that federal agencies consider
the environmental impact and the potential alternatives for proposed major federal actions that might significantly affect the quality of the human environment, often requiring the preparation of environmental impact statements regarding such proposals. 42 U.S.C. 4332(2)(C). The GMP constitutes such an environmental impact statement. NEPA is designed to prevent agencies from acting on incomplete information and to ensure that important effects will not be overlooked or underestimated. Sierra Club v. U.S. Army Corps of Engrs, 295 F.3d 1209, 1214 (11th Cir. 2002). 89. When reviewing the adequacy of an environmental impact statement, the
reviewing court should consider whether the agency took a hard look at the environmental impact of the proposed action; i.e., whether it has examined the relevant data and has articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choices made. Id. at 1216. The court will overturn the decision as arbitrary and capricious if (1) the decision does not rely on the factors Congress intended the agency to consider; (2) the agency failed entirely to consider an important aspect of the problem; (3) the agency offers an explanation which runs counter to the evidence; or (4) the decision is so implausible that it cannot be the result of differing viewpoints or the result of agency expertise. Id.
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90.
In the following respects, among others, NPS failed to take a hard look at
the environmental consequences of its decision, NPSs decision was arbitrary and capricious, and the GMP failed to comply with NEPA and/or the regulations thereunder: (a) The GMP mischaracterized the laws governing the manner in which NPS
is required to manage the Preserve, and therefore the laws governing the decisions at issue here, by stating that, as a national preserve, the Preserve is different from a national park because the national preserve designation of Big Cypress presents unique opportunities to integrate multiple uses with conservation and preservation and that is what makes it so different from any other designation within the national park system. GMP at 16. See also id. at 445; ROD at 21-22. Those statements mischaracterize the Enabling Act, as set forth in Paragraph 71 and Paragraphs 73 through 75 above, which are incorporated here by this reference, because Congress established the Preserve to preserve it and only permitted recreation to the extent not inconsistent with that purpose. See, e.g., 16 U.S.C. 698i(a); S. Rep. No. 93-1128, at 26; H.R. Rep. No. 93-502, at 79 (The principal thrust of these areas should be the preservation of the natural values which they contain. [A] preserve refers more definitively to the keeping or safeguarding of something basically protected and perpetuated for an intended or stated purpose, as with the specific objectives for Big Cypress provided by this legislation.)(emphasis added); 2006 Management Policies 1.2 ([r]egardless of the many names and official designations of the park units that make up the national park system, they warrant the highest standard of protection.). In stating that a national preserve differs from a national park in the manners described above, the GMP also
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failed to disclose the significant statutory mandates governing NPSs management of all of the National Park System, including the Preserve, as set forth in Paragraphs 63 through 65 and 68 through 70 above, which are incorporated by reference here, and the significant restrictions imposed by Rule 4.10 on the authorization of the use of ORVs in the Preserve, as set forth in Paragraphs 79 through 82 above, which are incorporated by reference here. (b) NPS arbitrarily failed to obtain critical information about the impacts of
the decision on surface water flows in the Addition, which was essential to any reasoned decision, as required by 40 C.F.R. 1502.22. Studying that issue would not involve exorbitant costs. Yet NPS admits that the extent, occurrence and severity of the impact [on surface water flow] are largely unknown. GMP at 173. That information is essential to any reasoned decision, among other things, because ORV impacts on surface water flow could impair the principal hydrologic function of the Preserve; because such water flows provide a steady supply of life-giving nourishment to the Ten Thousand Islands, a vital estuary system in Everglades National Park, GMP at 17; and because interference with the Additions surface water flows will substantially impact its other resources, such as vegetation, wetlands and wildlife, as well as water quality, which will not be localized (as NPS concludes) if surface water flows are not localized. (c) The GMP reflects numerous other aspects as to which NPS lacked
information essential to a reasoned choice, or that NPS has information that it failed to disclose in the GMP. For example, the GMP states that the impact of ORV use on the endangered Florida panther has not been sufficiently studied; NPS relies on the ORV
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management plan to offset adverse impacts but, on information and belief, NPS has not studied how effective that same plan has been in the Original Preserve; and the GMP states that NPS had obtained a 2008 analysis of background sounds in the Preserve, but that NPS had still not evaluated the results of that study in late 2010, nor, on information and belief, has NPS obtained any study of the impact of ORV use on the Preserves natural soundscape. It is arbitrary and capricious and a fundamental violation of NEPA for NPS to make the critical decisions it has made in the absence of such essential information, to reach those decisions without having analyzed studies in its possession and to fail to disclose essential information in the GMP. (d) The GMP states that all or most of the adverse impacts caused by ORV
use would be localized, but fails to explain, much less provide any rational explanation for, that characterization of the adverse impacts. It is highly unlikely, for example, that the impact of 130 miles of primary ORV trails on surface water flows will in the aggregate be merely localized because those trails will lie directly across the path of the Additions water flows and will stretch from its northern border to its southern edge. Conclusory statements without reasoned explanations are insufficient to constitute the hard look that NEPA requires, and conclusions that are contrary to the evidence are arbitrary and capricious. (e) The NPS applied factors Congress did not intend NPS to consider in
making wilderness eligibility determinations under the Wilderness Act, as set forth in Paragraphs 48 through 58 above, which are incorporated by reference here, and the GMP failed to disclose that NPS was applying tests in determining wilderness eligibility that
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were unsupported by law and were inconsistent with the factors intended NPS to consider. See GMP at 469. (f) In the GMP, NPS failed to provide any rational explanation for the
reduction in the area recommended for designation as wilderness by almost one-half from the GMPs preferred alternative set forth in NPSs May 2009 Draft GMP. For example, significant acreage north of I-75 in the Northeast Addition was found to be wilderness-eligible because those areas are large expanses of remote territory with minimal human imprints, but none of that area is proposed to be protected as wilderness. The ROD purports to explain that mechanized equipment and prescribed fire would be needed to remove invasive plants in the wilderness-eligible area north of I-75, ROD at 6, but that explanation is arbitrary and capricious. This is so because NPSs 2006 South Florida and Caribbean Parks Exotic Plant Management Plan describes those means of addressing invasive species as active restoration but does not provide for any such active restoration in that wilderness-eligible area north of I-75, with very minor exceptions. To the contrary, that plan provides for the same methods of treatment for invasive species in the wilderness-eligible part of the Northeast Addition north of I-75 as are to be used in the part south of I-75, yet that area north of that road is not proposed for wilderness protection while the area south of that road is proposed for wilderness protection. Similarly, only an extremely small portion of the Western Addition areas found eligible as wilderness but not proposed as such is to be subject to active restoration under the South Florida and Caribbean Parks Exotic Plant Management Plan.
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(g)
NPS arbitrarily downplayed the adverse impacts of permitting ORVs in
the Addition, and NPS arbitrarily found that doing so would not impair the Additions resources, by stating that such adverse impacts would be offset by the benefits of an ecosystem restoration plan and a vegetation management plan. But those plans may not properly be considered to mitigate the adverse impacts of ORV use because NPSs decision is not conditioned on implementation of either such ecosystem restoration plan or such vegetation management plan. Moreover, the ecosystem restoration plan on which NPS relies may not properly be relied on to mitigate the adverse impacts of ORV use because there is no reasonable possibility that that very long term plan will be implemented in the foreseeable future in ways which would actually offset the adverse impacts of ORV use in the Addition. That plan is the South Florida Ecosystem Restoration Plan, GMP at 33, but that plan will take many years to implement, if the funds therefore are ever made available, and its focus is not on the Preserve. Nor does the GMP provide any evaluation of the likelihood that such a plan would be successful in mitigating the adverse impacts of ORV use in the Addition. See Paragraph 67(a) above, which is incorporated here by reference. In addition, NPS failed in its GMP or ROD to explain, much less provide a rational explanation of, what specific aspects of any such plans are reasonably expected to be implemented before the implementation of NPSs Addition plan, and what specific adverse impacts of ORV use would be offset by what specific elements of such plans. (h) NPS acted contrary to the evidence before it in stating in the GMP that
ORV use would have only a minor to moderate adverse impact on non-motorized
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visitors to the Preserve and that, taking into account the beneficial impact on ORV users, impacts on visitor use and experience collectively would be moderate and beneficial. NPS acknowledges facts undermining that statements credibility, including that visitation to the Original Preserve has increased by those seeking solitude and/or nonmotorized activities, GMP at 209; that natural sounds are important resource of the Preserve to be protected, id. at 218; that many non-ORV users seek natural soundscapes and solitude, id. at 220, 222; and that there is significant overlap between ORV trails and hiking trails, including the Florida National Scenic Trail, id. at 369, 442-43, 451-52. NPS also acted contrary to the evidence before it by stating that, while it expects user conflicts, they would be minimized by dispersing users across multiple access points when there is no requirement or current plan for any such dispersion. NPS fails to explain in the GMP how ORV use could have only a minor to moderate adverse impact on non-motorized visitors when, in the 2000 ORV Plan, NPS found that wildlife sounds would be more noticeable without ORVs and that visitors had complained that the rutted tracks and impacted vegetation caused by ORV use detract from the natural beauty of the Preserve. 2000 ORV Plan at 143. NPS also acted contrary to the evidence before it by stating that the benefits of ORV management and of wilderness designation offset the mobile, temporary and local adverse impacts of ORV use, ROD at 125, despite the fact that the extensive ORV trails overlap and/or intersect hiking trails and that ORV noise travels far beyond their immediate route. Moreover, the Original Preserve has ample ORV trails, 400 miles of such trails without counting secondary trails, for those who wish
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recreational ORV use, but the Addition would be an unique area of solitude if no ORVs were permitted there. (i) Because the GMP contained no evaluation of the effectiveness of the
mitigation provided in the Original Preserve by the same ORV management plan now adopted for the Addition, NPSs claims that that plan will mitigate adverse impacts in the Addition are arbitrary and capricious. NPS has adopted virtually the same ORV management plan for ORVs in the Addition as had been established by the 2000 ORV Plan in the Original Preserve, and NPS found in the GMP and ROD at issue here that that plan would mitigate adverse impacts of ORV use in the Addition. But, on information and belief, NPS has never conducted an analysis or study to assess whether and the extent to which the requirements and limitations imposed on ORV use by the 2000 ORV Plan in the Original Preserve have been effective in preventing or minimizing adverse impacts on the resources there or in preventing unauthorized or otherwise illegal ORV use there. On information and belief, the 2000 ORV Plan has not been effective in the Original Preserve in prohibiting unauthorized or otherwise illegal ORV use there or in minimizing adverse impacts on the resources there. See Paragraph 31 above, which is incorporated here. (j) NPS failed to provide a rational explanation why or how its ORV
management plan would, as claimed, offset the adverse effects of ORV use. NPS downplayed the adverse impacts of permitting ORVs in the Addition and found that permitting ORV use would not impair the Additions resources, because those adverse impacts would supposedly be offset by the benefits of NPSs plan to manage ORV use.
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But NPS failed to explain why or how its ORV management plan would offset or mitigate the adverse effects of ORV use such as rutting impacting surface water flows, pollution and leaks impacting water quality, noise impacting wildlife and other visitors, or the crushing or otherwise harming of vegetation. NPS also failed to explain, much less provide a rational explanation, why limiting the overall annual number of permits will avoid ORV users tending to use some trails more than others, exacerbating adverse impacts in those areas. NPS has failed even to analyze the likelihood or the impact of such bunching of users. Moreover, NPS failed to explain in the GMP or ROD how the ORV management plan could offset or mitigate ORV impacts such as noise or pollution when that plan contains no vehicle specifications designed to control noise or pollution (other than a standard-issue muffler). (k) NPS failed to state in the GMP or ROD what NPS will do if it cannot
obtain the substantial personnel resources and funding needed adequately to monitor and enforce its ORV use plan. NPS claims that it will be able to monitor adverse impacts of ORV use and to maintain a level grade on ORV trails impacted by rutting and similar adverse effects of ORV use, but NPS lacks the significant manpower and budgetary resources needed to do so. While NPS states it will need additional resources to carry out the plan, the plan is not conditioned on the gaining of such resources and there is no reasonable expectation of NPSs doing so in the foreseeable future in light of budget constraints. NPS has been operating for years on a sharply reduced operating budget, and recent Congressional decisions have reduced NPS operating budget even further.
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(l)
The regulations under NEPA, 40 C.F.R. 1508.7, require NPS to analyze
the cumulative impacts of a proposal, and NPS claims its GMP includes such cumulative impact analyses, but in fact the GMP does not include such an analysis. Such an analysis would have studied, but the GMP does not contain, the impacts of NPSs decisions on the whole Preserve, including both the Original Preserve and the Addition, because the Addition is an integral part of the Preserve; the impacts of NPSs decisions on areas outside the boundaries of the Preserve, including Everglades National Park, to which the Additions water flows; and the impacts of NPSs decisions in the aggregate on all the resources and values of the Preserve rather than (as the GMP does) analyzing impacts on each resource separately and without regard for the cumulative impact of the decisions on all the resources together. (m) The GMP and ROD fail to provide a rational explanation for NPSs
reversal of position on permitting ORV use in Mullet Slough, and fail even to disclose that change in position. NPS determined in the 2000 ORV Plan to exclude ORV use from the portion of Mullet Slough lying in the Original Preserve because of that areas environmental and wildlife sensitivity to ORV use. Yet, without explanation of the change in position, NPS has now decided to permit ORV use in the portion of Mullet Slough that lies in the Addition, subjecting that environmentally and wildlife sensitive area to the adverse impacts of ORV use. (n) NPS acted contrary to the evidence before it by finding that ORV use
would have only a moderate adverse impact on water quality and that ORV uses adverse impact on water quality, among other resources, would not impair the resources
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of the Preserve. NPS acknowledges that water quality is a principal natural resource of the Addition, GMP at 4; that fresh water flowing through the swamp is a source of lifegiving nourishment to Everglades National Parks Ten Thousand Island, GMP at 17; that Big Cypress swamp is threatened from all sides, id.; that the extensive ORV impacts on vegetation may cause greater levels of nutrients to remain in the water, GMP ay 175; and that because of the currently high water quality in the Addition (designated as Outstanding Florida Waters), even small amounts of contaminants can result in relatively large adverse effects, GMP at 174. (o) NPS acted contrary to the evidence before it in finding that ORV use
would have only a moderate adverse impact on the Florida panther and that ORV uses adverse impact on the Florida panther, among other resources, would not impair the resources of the Preserve. The 2000 ORV Plan found that the decline in panther population was largely attributable to habitat loss and human disturbance. 2000 ORV Plan at 139. And NPS acknowledges in the GMP that the Preserve contains 63 percent of the Florida panthers essential habitat, GMP at 178; that regulating ORV use would improve panther health, GMP at 179; that NPSs decisions would result in permanent loss of habitat; that higher levels of human activity cause the panthers home range to shift; and that the plans impact on the panther would be long-term, moderate, adverse and could be Addition-wide, GMP at 349-50. Moreover, because of the distance ORV noise can travel and the fact that ORV trails snake throughout the Northeast Addition, ORV noise would likely be audible throughout virtually that entire area, creating disturbance to the Florida panther and to its prey animals. Yet the GMP fails even to discuss the impact
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of ORV noise on the panther or on its prey animals. See also Paragraphs 100-102 below, incorporated by reference here. (p) NPS acted contrary to the evidence before it by finding that ORV use
would have only a moderate adverse impact on cypress areas and that ORV uses adverse impact on cypress areas, among other resources, would not impair the resources of the Preserve. A substantial portion of NPSs ORV trails will go through cypress areas, particularly south of I-75 in the Northeast Addition, despite NPSs acknowledgement that these areas are important refuges and concentration points for water-dependent wildlife during the dry season and that these areas are among those most easily damaged by ORV use. Moreover, ORV trails in cypress areas will fragment wilderness areas and will adversely impact the natural soundscape in those adjacent wilderness areas. (q) NPS acted contrary to the evidence before it by finding that ORV use
would have only a minor adverse impact on prairies and marshes and by concluding that ORV uses adverse impact on prairies and marshes, among other resources, would not impair the resources of the Preserve. NPS acknowledges that these are the vegetation communities most impacted by ORV use. NPS says impacts to these areas would be only minor but gives no explanation for that finding. Nor does NPS explain how permitting ORVs in prairies could have only a minor adverse impact when NPS earlier determined that eliminating ORV use in prairies would have a long-term major beneficial effect. 2000 ORV Plan at 131. (r) NPSs determinations as to the adverse impacts likely to arise from the use
of ORVs in the Addition, including those described above, are so implausible that those
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determinations cannot have been merely a product of NPSs expertise or of reasonable differences of opinions. FIFTH CLAIM FOR RELIEF (As to Department of the Interior and NPS; Section 10(e)(1) of the Administrative Procedure Act for Arbitrary and Capricious Agency Action and Abuse of Discretion) 91. Section 10(e)(1) of the Administrative Procedure Act, 5 U.S.C. 706(1)
authorizes a reviewing court to hold unlawful and set aside agency action, findings and conclusions found to be arbitrary and capricious or an abuse of discretion. 92. The allegations set forth in Paragraphs 1-14, 22-45 and 90 above are
incorporated in this Fifth Claim for Relief as if fully set forth here. 93. NPSs actions and decisions as set forth in the GMP were arbitrary and
capricious in the respects set forth in Paragraph 90 above and in the following additional respects, among others: (a) NPS acted arbitrarily and capriciously and abused its discretion by
deciding that ORVs should be permitted in the Addition rather than maintaining its wilderness quality to the greatest extent possible. There are ample trails for ORVs in the Original Preserve, which total 400 miles without counting secondary trails, yet the Addition is a unique area free from the noise and other adverse impacts caused by such machines. Without ORVs, the Addition would be available for the growing number of visitors seeking natural sounds, solitude and natural beauty. (b) NPS acted arbitrarily and capriciously and abused its discretion by
deciding that ORVs should be permitted on trails through easily damaged cypress
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swamps, prairies, marshes and pineland, in light of the adverse impacts on those areas admittedly arising from ORV use there. (c) NPS acted arbitrarily and capriciously and abused its discretion by
deciding to permit ORV use in areas that will substantially impact wildlife, including rare, endangered and threatened species such as the Florida panther. (d) NPS acted arbitrarily and capriciously by deciding that ORV use should
be permitted in areas where such use will adversely impact use by non-ORV visitors, such as on or near the Florida National Scenic Trail. SIXTH CLAIM FOR RELIEF (As to FWS, Department of the Interior and NPS; Violation of Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), Section 10(e)(B)(1) of the Administrative Procedure Act for Agency Action Not in Accordance with Law and Arbitrary and Capricious Actions and Abuse of Discretion)) 94. Congress expressly provided for citizen suits claiming violation of the
ESA, 16 U.S.C. 1540(g). In addition, Section 10(e)(B)(1) of the Administrative Procedure Act, 5 U.S.C. 706(2)(A) authorizes a reviewing court to 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. Defendants violated the ESA and acted arbitrarily and capriciously in the manner by which they purported to comply with that Act. 95. The allegations set forth in Paragraphs 1-14, 22-45 and 90 above are
incorporated in this Sixth Claim for Relief as if fully set forth here.
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Endangered Species Act, Section 7(a) 96. Recognizing that certain species of plants and animals have been so
depleted in numbers that they are in danger of or threatened with extinction, Congress enacted the ESA to provide both a means whereby the ecosystems upon which endangered 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. The ESA reflects an explicit congressional decision to afford first priority to the declared national policy of saving endangered species. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978). 97. Section 7 of the ESA directs all federal agencies, in consultation with the
Secretary of Interior, to use their existing authorities to conserve threatened or endangered species. 16 U.S.C. 1536(a)(1). Conservation is defined to mean to use and the use of all methods and procedures which are necessary to bring any endangered species to the point at which the measures provided pursuant to this chapter are no longer necessary. Id. at 1532(3). All federal agencies are specifically mandated to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species. Id. at 1536(a)(2). 98. The ESA and the regulations thereunder provide a mechanism for other
federal agencies to obtain from the FWS under specified circumstances a biological opinion concerning the impact of the other agencys proposed actions on endangered species. The other federal agency and the FWS are both required to provide and rely on the best scientific and commercial data available or which can be obtained during the
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consultation. 50 C.F.R. 402.14. The opinion is to assess whether the effects of the action, taken together with cumulative effects," are likely to result in jeopardy to the species. 50 C.F.R. 402.14(g). Each biological opinion must contain, among other things, [a] detailed discussion of the effects of the action on listed species or critical habitat. Id. at 402.14(h)(2). An action jeopardizes the continued existence of a listed species if it would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. 50 C.F.R. 402.02. The FWS Biological Opinion at Issue Here 99. Because the NPS determined that implementation of the preferred
alternative in the GMP would impact several species in the Addition that had been listed as endangered under the ESA, including the Florida panther, NPS consulted with the FWS, which issued a biological opinion on November 17, 2010 (the 2010 BiOp). 100. The entire remaining population of the Florida panther, isolated to
southernmost Florida, is estimated at approximately 113 adults and immature panthers, heavily concentrated in the area of the Addition. In 1991, the NPS found that the decline of the Florida Panther has been attributed to the loss of habitat quality due to increased hunting [and] ORV use. 1991 GMP at 231 In 2000, FWS concluded that [c]ontinued deterioration, fragmentation, loss of habitat, and further reductions in the current extent of the occupied range will likely reduce the south Florida population below the level necessary for demographic and genetic health. FWS, Biological Opinion on Impacts of ORV Management Plan to Endangered Species in Big Cypress National
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Preserve (July 14, 2000). And in 2008, FWS concluded that there is a significant threat of extinction of the Florida panther. FWS, Florida Panther Recovery Plan 4-5 (3rd rev. 2008). 101. Nevertheless, the 2010 BiOp concluded that the NPSs plan to open the
Addition to ORV use was not likely to jeopardize the continued existence of the Florida panther. 2010 BiOp at 43 Based on that conclusion, the NPS authorized and adopted that plan. 102. In preparing the 2010 BiOp, the FWS acted arbitrarily and capriciously,
abused its discretion and violated the ESA and the regulations thereunder by failing properly to consider and evaluate all of the direct and indirect effects of the proposed agency action on the Florida panther and other endangered species and by failing to draw a rational connection between the facts and the conclusions drawn from them, including among other things the following: (a) While the 2010 BiOp found that NPSs plan to open 130 miles of primary
ORV trails would, during hunting season, deprive the Florida panther of 16,808 acres, 11% of the total suitable panther habitat in the Addition, the 2010 BiOp failed to explain or evaluate why such a loss of habitat would not likely affect the continued existence of the Florida panther. Moreover, the 2010 BiOp estimate of acreage rendered uninhabitable for the Florida panther understates the impact because it only includes primary ORV trails despite the fact that secondary trails are planned by NPS branching out from those primary trails and despite the fact that unauthorized and illegal trails will likely be created by ORV users once permitted into the Addition. FWS is required to
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evaluate not only the direct effects of the Preferred Alternative, but also those indirect effects that are reasonably certain to occur. 16 U.S.C. 1536(b)(3)(A); 50 C.F.R. 402.14(g)(3); 402.02. FWS requested that NPS provide information about expected secondary trails, but NPS never provided that information. FWS should not have issued the 2010 BiOp without that information and without taking into account the illegal and unauthorized trails that can be expected to created by ORV users (b) Despite explicitly acknowledging the importance of prey base to the
survival and recovery of the Florida panther, the 2010 BiOp neither evaluated nor otherwise addressed the impacts of ORV use and hunting on panther prey species within the Addition or the effects such impacts might have on the continued existence of the Florida panther. However, as recognized by NPS, the prey population in the Original Preserve has already experienced significant declines, GMP at 198-99, and opening the Addition to extensive ORV use and hunting is reasonably certain to have significant adverse effects on the prey base there. GMP at 50. The 2010 BiOp failed to consider the full breadth of ORV use reasonably likely to occur under the Preferred Alternative and the indirect effects of such use. (c) FWSs conclusion was based upon the assumption that no more than 650
ORV users the total number of permits proposed in the Preferred Alternative will use the Addition. 2010 BiOp at 38. However, this assumption fails to consider or recognize that a significant number of unpermitted users will also likely use the trails, and that, if a connection is constructed between the Original Preserve and the Addition, permitted users from other portions of the Preserve are reasonably likely to travel into the
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Addition. Furthermore, despite FWSs acknowledgment in 1990 that additional access points and related public facilities will generate significant human activity in the Addition and increase the potential for associated impacts on the Florida panther, 1990 BiOp at 6, the 2010 BiOp deferred evaluation of the potential impact of several new access points to the Addition along I-75 and trail connections between the Northeast Addition and the Bear Island unit of the Original Preserve. 2010 BiOp at 39-40. As a result, the 2010 BiOps conclusion is based on upon a significant underestimate of total users and thus underestimates any potential effects of that use. (d) Although NPS concluded in the GMP that the Preferred Alternative
would be likely to adversely affect three endangered species in addition to the Florida panther the eastern indigo snake, the Everglade snail kite and the red-cockaded woodpecker, GMP at 353, 357, 361 the ROD states that the NPS reversed those conclusions after the GMP was completed, ROD at 26. The 2010 BiOp stated that FWS concurred that the plan was not likely to adversely affect any of those species. 2010 BiOp at 5-6. However, neither NPS nor FWS found any facts or provided any analysis explaining that 180 degree reversal of position. The NPS and FWS accordingly acted arbitrarily and capriciously and in violation of the ESA. 103. NPS has an independent duty under Section 7 of the ESA not to authorize,
fund or carry out any action that would be likely to jeopardize the continued existence of the Florida panther or any other endangered species and to use the NPSs resources to carry out programs for the conservation of those species, meaning it is to use all methods and procedures which are necessary to bring any endangered species to the
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point at which the measures provided pursuant to this chapter are no longer necessary. 16 U.S.C. 1532(3), 1536(a)(1), 1536(a)(2). By authorizing and adopting its Preferred Alternative, NPS violated those duties. And by relying on the FWSs legally flawed 2010 BiOp, NPS further acted in an arbitrary and capricious manner. SEVENTH CLAIM FOR RELIEF (As to the Department of the Interior, NPS and FWS; Violation of Sections 7(b)(4) and 9 of the Endangered Species Act, 16 U.S.C. 1536(b)(4) and 1538, Section 10(e)(B)(1) of the Administrative Procedure Act for Action Not in Accordance with Law and Arbitrary and Capricious Actions and Abuse of Discretion) 104. Congress provided for citizen suits claiming violation of the ESA, 16
U.S.C. 1540(g). In addition, Section 10(e)(B)(1) of the Administrative Procedure Act, 5 U.S.C. 706(2)(A) authorizes a reviewing court to 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. Defendants violated the ESA and acted arbitrarily and capriciously in the manner by which they purported to comply with that Act. 105. The allegations set forth in Paragraphs 1-14, 22-45, 90 and 94-103 above
are incorporated in this Seventh Claim for Relief as if fully set forth here. Endangered Species Act, Sections 7(b)(4), 7(o) and 9 106. Section 9 of the ESA prohibits any person from taking a member of an
endangered species. That term is defined to include, among other things, to harass such an animal, which is defined as any intentional or negligent action that creates the likelihood of injury by annoyance such as to significantly disrupt normal patterns of
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behavior, including breeding, feeding or sheltering. An incidental taking is defined as a take that is incidental to and not the purpose of, carrying out an otherwise lawful activity. 16 U.S.C. 1536(b)(4); 50 C.F.R. 17.3, 402.14(i). The actions adopted by the NPS in its ROD will constitute an incidental take. However, if the FWS issues an incidental take statement, setting limits on, and terms and conditions for, such an incidental take, Section 7(o) exempts a taking that complies with those terms and conditions from Section 9s prohibition. 16 U.S.C. 1536(c)(2), 1536(b)(4), 1536(o). 107. The ESA requires FWS to issue such an incidental take statement if the
FWS has concluded that an agency action would not likely jeopardize the continued existence of a species. Such a statement must specify the impact of the action on the species in question, must specify those reasonable and prudent measures considered necessary or appropriate to minimize such impact and must set forth terms and conditions to be complied with to implement those measures. 16 U.S.C. 1536(b)(4). In other words, [a]n incidental take statement may lawfully authorize harm to an endangered species as long as the statement sets a trigger for further consultation at the point where the allowed incidental take is exceeded, a point at which there is a risk of jeopardizing the species. Miccosukee Tribe of Indians of Florida v. U.S., 566 F.3d 1257, 1271-72 (11th Cir. 2009). 108. The ESA requires that the limitations adopted in an incidental take
statement must be stated in terms of number of animals whenever that is practicable. Miccosukee, 566 F.3d at 1274. In any event, the trigger used in an incidental take statement must be rationally related to the objective of providing reasonable and prudent
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measures to protect members of the species in question from takings to a greater extent than that contemplated in FWSs no jeopardy opinion. The FWSs Incidental Take Statement at Issue Here 109. The FWS included an incidental take statement in the 2010 BiOp, but
that statement fails to specify the extent of the incidental taking that is permitted and fails to adopt any meaningful terms or conditions, much less reasonable and prudent measures, that would serve the purposes or meet the requirements of the ESA and the regulations thereunder. FWS also acted arbitrarily and capriciously and in an abuse of discretion by issuing such an incidental take statement. 110. The incidental take statement at issue here does not establish any
numerical limitation on permitted takings. FWS failed to justify, in terms drawing rational conclusions from the facts, the absence of such a limitation. FWS merely states that counting the exact number of panthers can be problematic. 2010 BiOp at 44. Because numerous studies have documented reasonable estimates of the Florida panther population, FWS could have and should have specified a numerical limitation on such takings. Moreover, FWS adopted no alternative means of triggering a further review of the risk of jeopardizing the continued existence of the panther. 111. Moreover, the only terms and conditions adopted cannot perform the
function of such a trigger. They include requirements such as that the NPS must minimize human disturbance and habitat degradation through such means as providing educational materials to ORV users; minimize take through a better understanding of the interactions of the Florida panther and its environment; and notify FWS whenever dead
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or injured animals of the species are found. 2010 BiOp at 45-46. None of these terms and conditions provide any limitation on actions that would harass Florida panthers or that would limit the adverse impact of those actions on those species. These terms and conditions cannot serve as a trigger for further FWS review at a point when there is a risk of jeopardizing the Florida panthers continued existence. 112. Accordingly, FWS has violated the ESA and the regulations thereunder
and has acted in a manner that is arbitrary and capricious by failing to specify any measureable or effective limitations on the incidental taking of members of endangered species to be caused by the NPSs actions. NPS therefore violated the ESA and acted arbitrarily and capriciously by relying on the exemption purportedly granted by the incidental take statement from the prohibition against the taking of endangered species. EIGHTH CLAIM FOR RELIEF (As to Department of the Interior and NPS; Section 10(e)(B)(1) of the Administrative Procedure Act for Agency Action Not in Accordance with Law, Violation of Section 5 of the Federal Advisory Committee Act, 5 U.S.C. App. 2 5) 113. Section 10(e)(B)(1) of the Administrative Procedure Act, 5 U.S.C.
706(2)(A) authorizes a reviewing court to 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. 114. The allegations in Paragraphs 1-14, 20 and 22-45 above are incorporated
in this Eighth Claim for Relief by reference as fully as if repeated here. 115. The Federal Advisory Committee Act (FACA) requires that any
advisory committee be fairly balanced in terms of the points of view represented and the
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functions to be performed, 5 U.S.C. App. 2 5(b), and not be inappropriately influenced by the appointing authority or by any special interest. Id. 5(c). 116. Department of the Interior regulations provide further guidance for the
implementation of FACA. All Department of the Interior advisory committees must meet the following criteria: [B]e structured to provide fair membership balance, both geographic and interest-specific, in terms of the functions to be performed and the points of view to be represented. 43 C.F.R. 1784.2-1(a). [B]e formed with the objective of providing representative counsel and advice about public land and resource planning, retention, management and disposal. Id. Be comprised of individuals qualified to serve because their education, training, or experience enables them to give informed and objective advice regarding an industry, discipline, or interest specified in the committees charter; they have demonstrated experience or knowledge of the geographical area under the purview of the advisory committee; and they have demonstrated a commitment to collaborate in seeking solutions to resource management issues. Id. 1784.2-1(b).
The ORV Advisory Committee 117. On August 1, 2007, the Secretary of the Interior gave notice of the
establishment of the Big Cypress National Preserve Off-Road Vehicle Advisory Committee (the ORV Advisory Committee). 72 FED. REG. 42108-02 (Aug. 1, 2007). 118. The purpose of the ORV Advisory Committee was to offer
recommendations, alternatives and possible solutions to management of off-road vehicles at Big Cypress National Preserve. Id. NPS purportedly established the ORV Advisory
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Committee as a forum in which disputes between those supporting ORV use in the Preserve and those opposing ORV use in the Preserve could be discussed and resolved. 119. When the ORV Advisory Committee was initially established, it had 14
members. The membership of the Committee, however, lacked the fair balance between competing interests required by FACA and the Department of the Interior regulations implementing FACA. That is so because hunters, sportsmen and other users of ORVs constituted a majority of the members of the Committee. In addition, most of those supporters of ORV use were associated with organizations through which they coordinated their support for ORV use and their opposition to restrictions on such use. For that reason, contrary to FACA and the Department of the Interior regulations implementing FACA, the interests of ORV users had inappropriately significant influence on the Committee. These violations of FACA have continued from the establishment of the Committee to the present, despite the fact that some members have left the Committee and new members have joined the Committee. 120. The ORV Advisory Committee has made decisions and/or
recommendations to NPS regarding the management of ORVs in the Original Preserve over the past four years. Those recommendations include the establishment of secondary trails and other significant issues. Those decisions and/or recommendations have reflected the heavily pro-ORV interests of the dominant group on the Committee, ORV users and their supporters. 121. The ROD provides that the ORV Advisory Committee will also be an
integral part of the implementation of the GMP in the Addition. ROD at 9.
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122.
NPS violated both FACA and the Department of the Interior regulations
implementing FACA, and acted in an arbitrary and capricious manner, by appointing an ORV Advisory Committee that was and is not fairly balanced because a majority of members are ORV users and their supporters, and by establishing and operating a Committee that is inappropriately influenced by a special interest, ORV users. 123. Unless enjoined, NPS will continue to violate FACA and the Department
of the Interior regulations by continuing to hold meetings of the ORV Advisory Committee and continuing to rely on decisions, recommendations or studies made by that Committee concerning the Original Preserve and/or the Addition. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: (1) Find that the GMP, the ROD, the NPSs March 2010 wilderness eligibility
finding, and the 2010 BiOp and the incidental take statement contained therein are unlawful and therefore vacate them and set them aside, remanding to the NPS and FWS for further proceedings consistent with the Courts decision; (2) Enjoin and prohibit NPS from continuing to operate the ORV Advisory
Committee unless or until its membership is brought into compliance with the Federal Advisory Committee Act and the regulations thereunder; and enjoin and prohibit NPS from taking any action in reliance on any recommendation, decision or study of that Committee rendered prior to the recomposition of its membership to comply with that Act; (3) Award Plaintiffs their reasonable attorneys fees; and
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(4) proper.
Grant Plaintiffs such other and further relief as the Court may deem
Respectfully submitted,
Marcy I. LaHart, PA Fla. Bar no. 0967009 Trial Counsel 4804 SW 45th Street Gainesville, FL 32608 (352) 224-5699 fax (888) 400-1464 marcy@floridaanimallawyer.com Robert D. Rosenbaum ARNOLD & PORTER LLP 555 Twelfth Street, NW Washington, DC 20004 (202) 942-5862 fax (202) 942-5999 robert.rosenbaum@aporter.com (pro hac vice application pending) Dated: October 12, 2011
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primary trail. Notwithstanding a number of specific requirements on ORV users in the

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management would be required to manage the 111,601 wilderness-eligible acres as if

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