NPCA Complaint

8/3/2019 NPCA Complaint

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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 WILDLIFESERVICE

1849 C Street, NWWashington, DC 20240

(202) 208-4646

Defendants.

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COMPLAINT FOR REVIEW OF AGENCY ACTIONS UNDER THE

ADMINISTRATIVE PROCEDURE ACT AND FOR AN INJUNCTION

Case 2:11-cv-00578-JES-SPC Document 1 Filed 10/12/11 Page 1 of 73 PageID 1


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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 Systemand 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



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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



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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



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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. 4321-

4347 (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.



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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



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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 highlyendangered Florida panther.

NPS does not have an understanding of the impacts of ORV trails andORV 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 soundscapeof 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 bemitigated by applying there the same ORV Management Plan adopted in

2000 for the Original Preserve, but NPS had never studied whether thatPlan had been effective in mitigating adverse impacts in the OriginalPreserve.

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



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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



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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



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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



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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.



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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 afeeding, nesting, and resting place, it provides the properhabitat 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 vehicleshaving 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-designedand 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 vehicleshigh above ground level, permitting the machines to travel through

swamp water.

Street legal four-wheel drive off-road vehicles and trucks, whichare commercially manufactured and sold. These vehicles compriseapproximately 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 byORV 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 overtime.

ORV use had been shown to alter plant species composition anddistribution and to damage juvenile trees.

ORV use had a dramatic effect on wildlife, including by reducingtheir 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. The Wilderness Act defines wilderness as having the following

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, withoutpermanent improvements or human habitation, which is

protected and managed so as to preserve its natural

conditions and which (1) generally appears to have been



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affected primarily by the forces of nature, with the imprint

of mans work substantially unnoticeable; (2) hasoutstanding opportunities for solitude or a primitive andunconfined 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 long-

standing 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 previously-

established 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



Violation of the Laws Governing the National Park System and the Preserve)



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) would impair the resources or values of the Preserve; or

(b) 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

(c) would not assure the natural and ecological integrity of the

Preserve.

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 20-

year 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 thecommon benefit of all the people of the United States. The

authorization of activities shall be construed and the

protection, management, and administration of these areasshall 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. 93-

1128, 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



Violation of NPS Rule 4.10)



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 off-

road 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 otherresources of the public lands.

(2) Areas and trails shall be located to minimizeharassment of wildlife or significant disruption of

wildlife habitats.

(3) Areas and trails shall be located to minimize

conflicts between off-road vehicle use and other



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existing or proposed recreational uses of the same

or neighboring public lands, and to ensure thecompatibility of such uses with existing conditionsin 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


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)



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


Documents

NPCA Complaint