Natural Resources Defense Council et al v. National Park Service et al

Filing 114

OPINION AND ORDER denying 36 Motion for Preliminary Injunction; denying Plaintiffs' 94 Motion for summary judgment; granting Federal Defendants' 100 Motion for summary judgment; granting Defendant-Intervenors' 102 Motion for summary judgment; affirming the National Park Services' Finding of No Significant Impact; denying as moot 106 Motion to Strike; denying as moot 112 Motion for injunction pending appeal. The Clerk shall enter judgment Judgment in favo r of defendants on all counts. Alternatively as to Count VIII, Count VIII is dismissed without prejudice for lack of constitutional standing. The Clerk is further directed to terminate all deadlines and to close the file. Signed by Judge John E. Steele on 4/24/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NATURAL
RESOURCES
DEFENSE
COUNCIL,
CENTER
FOR
BIOLOGICAL
DIVERSITY,
NATIONAL PARKS CONSERVATION
ASSOCIATION, CONSERVANCY OF
SOUTHWEST
FLORIDA,
EARTHWORKS, and SOUTH FLORIDA
WILDLANDS ASSOCIATION,
Plaintiffs,
v.

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

NATIONAL PARK SERVICE, RYAN
ZINKE,
in
his
official
capacity as Secretary of the
U.S.
Department
of
the
Interior,
MICHAEL
T.
REYNOLDS, in his official
capacity as Acting Director
of the National Park Service,
STAN AUSTIN, in his official
capacity as Regional Director
of the Southeast Region of
the National Park Service,
JIM KURTH, in his official
capacity as Acting Director
of the U.S. Fish and Wildlife
Service, and U.S. FISH AND
WILDLIFE SERVICE, 1
Defendants.
BURNETT OIL CO., INC., BARRON
COLLIER COMPANY LTD, COLLIER
1

Pursuant to Fed. R. Civ. P. 25(d), Ryan Zinke, the current
Secretary of the Interior, is automatically substituted for former
Secretary Sally Jewell.
Acting Director of the National Park
Service Michael T. Reynolds is automatically substituted for
former Director Johnathan B. Jarvis. Acting Director of the U.S.
Fish and Wildlife Service Jim Kurth is automatically substituted
for former Director Daniel M. Ashe.

ENTERPRISES MGMT, INC., and
COLLIER
RESOURCES
COMPANY
LLP,
Defendant-Intervenors.
OPINION AND ORDER
In

this

case,

plaintiffs

challenge

the

National

Park

Services’ (NPS) approval of defendant-intervenor Burnett Oil Co.,
Inc.’s (Burnett) Plan of Operations (the “Plan”) to conduct a
three-dimensional

seismic

geophysical

survey

using

vibroseis

technology to identify whether there are commercially feasible
deposits of oil and gas within the Big Cypress National Preserve
in South Florida.

Because plaintiffs believe that NPS approved

the survey without undertaking the complete environmental review
required by federal law, they filed a Complaint on July 27, 2016
(Doc. #1), and are currently proceeding on an eight-count Amended
Complaint (Doc. #40), seeking declaratory and injunctive relief
for violation of the Administrative Procedures Act (APA), the
National Environmental Policy Act (NEPA), the Endangered Species
Act (ESA), and Park Service Regulations governing oil and gas
activities found at 36 CFR Subpart 9B (the “9B Regulations”).
Plaintiffs request that the Court vacate and remand the NPS’s
finding of no significant impact, and its May 10, 2016 conditional
approval letter for Burnett’s Plan; vacate and remand the NPS’s
biological assessment and the Fish and Wildlife Service’s (FWS)

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concurrence letter for Burnett’s Plan; and declare and order that
the NPS and FWS are required to reinitiate consultation regarding
the effects of Burnett’s Plan and the three Preserve management
plans on threatened and endangered species.
On

September

30,

2016,

plaintiffs

(Doc. #94, p. 1.)
filed

a

Motion

for

Preliminary Injunction (Doc. #36), requesting that the Court stay
NPS’s approval of operations pending a final adjudication on the
merits of this case. 2
9, 2016.

The federal defendants responded on November

(Doc. #56.)

Defendant-intervenors Collier Enterprises

Management, Inc.; Baron Collier Company Ltd.; Collier Resources
Company, LLP (the “Collier Entities”); and Burnett responded on
November 4, 2017.

(Docs. ##52, 53.)

On March 3, 2017, the

undersigned heard oral argument on the preliminary injunction
motion and the merits of plaintiffs’ APA, NEPA, and 9B claims.
(Doc. #87.)

During oral argument, the parties informed the Court

that they would rely on oral argument in support of the APA, NEPA,
and 9B claims, without briefing, and requested to file briefs on
the ESA claim 3 and available remedies, which was granted.

The

parties’ cross-motions for summary judgment on plaintiffs’ ESA
claims and available remedies with responses were filed on March

2

The preliminary injunction request is aimed solely at the
National Park Service.
3

The Complaint was amended on October 17, 2016 to add claims
under the ESA. (Doc. #40.)

- 3 -

20, 2017, and April 3 and 10, 2017.

(Docs. ##94, 100, 102, and

105.)
For the reasons set forth below, judgment is entered in favor
of the federal defendants on all claims.

Because the Court has

found that defendants succeed on the merits, plaintiffs’ Motion
for Preliminary Injunction (Doc. #36) is denied.
I. Background
A. National Park System and the National Park Service Regulations
The national park system in the United States began with the
establishment of Yellowstone National Park in 1872.
1a-1.

16 U.S.C. §

In 1916, the National Park Service Organic Act created the

National Park Service within the Department of Interior.
U.S.C. § 1.

16

NPS was required to:

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

Thus, national parks are created with a conservation mandate,

i.e., to conserve and preserve the scenery, wildlife, and objects
(natural and historical) within their boundaries for present and
future enjoyment.
Pursuant to the rulemaking provisions of the Organic Act, the
Big Cypress Establishment Act, and the Addition Act, non-federal

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oil and gas activities in the Preserve are governed by regulations
codified at 36 C.F.R. Part 9, Subpart B (9B Regulations).

The 9B

Regulations govern “all activities within any unit of the National
Park System in the exercise of rights to oil and gas not owned by
the United States where access is on, across or through federally
owned or controlled lands or waters.”

36 C.F.R. § 9.30(a).

They

“are designed to insure that activities undertaken pursuant to
these rights are conducted in a manner consistent with the purposes
for which the National Park System and each unit thereof were
created, to prevent or minimize damage to the environment and other
resource values, and to insure to the extent feasible that all
units of the National Park System are left unimpaired for the
enjoyment of future generations.”

Id.

Park Service regulations require all proposed oil and gas
plans of operations to include, as appropriate, a description of
“[a]ll reasonable technologically feasible alternative methods of
operations, their costs, and their environmental effects.” 36
C.F.R. § 9.36(a)(16)(v).

The agency “shall not approve a plan of

operations” that “does not satisfy each of the requirements of §
9.36 applicable to the operations proposed.”

Id. § 9.37(a)(4).

Park Service regulations also specify that the agency “shall not
approve a plan of operations . . . [u]ntil the operator shows that
the

operations

will

be

conducted

in

a

manner

which

utilizes

technologically feasible methods least damaging to the federally-

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owned or controlled lands, waters and resources of the unit while
assuring the protection of public health and safety.”

36 C.F.R.

§ 9.37(a)-(a)(1).
B. Big Cypress National Preserve
(1)

In

Establishment Act and Ownership of the Preserve’s Oil and
Gas Resources
1974

Congress

established

the

Big

Cypress

National

Preserve (the Preserve) to “ensure the preservation, conservation,
and protection of the natural, scenic, hydrologic, floral and
faunal, and recreational values of the Big Cypress watershed in
the State of Florida and to provide for enhancement and enjoyment
thereof.”

Pub. L. 93-440, § 1, 88 Stat. 1258 (Oct. 11, 1974),

codified at 16 U.S.C. § 698f(a).

AR 166959; 166989 (map). 4

The

Secretary of the Interior (the Secretary) was authorized to acquire
property within the Preserve, 16 U.S.C. § 698f(c), and required to
administer the Preserve as a unit of the National Park System “in
a manner which will assure their natural and ecological integrity
in perpetuity in accordance with the provisions of sections 698f
to 698m-4 of this title and with the provisions of sections 1, 2,
3, and 4 of this title, as amended and supplemented.”

4

16 U.S.C.

Two Administrative Records were filed in this case. One
was submitted on a thumb drive by the National Park Service (Doc.
#46), the other by the U.S. Fish and Wildlife Service on a DVDROM (Doc. #68). The NPS Administrative Record will be referred
to as “AR” followed by the page number. The FWS Administrative
Record will be referred to as “FWS” followed by the page number.

- 6 -

§

698i(a).

The

original

Preserve

was

over

574,000

(variously estimated at 574,440 acres, AR 166987).

acres,

Approximately

147,000 acres were added in 1988 by the Big Cypress National
Preserve Addition 5 (the Addition), PL 100-301; 74 Fed. Reg. 34030;
16 U.S.C. § 698m-1.

AR 166989.

The Preserve is centrally located

between Miami and Naples, Florida, extending from the northern
boundary of Everglades National Park to seven miles north of
Interstate 75.

AR 166987.

Today, with the Addition, the Preserve

covers approximately 729,000 acres.
Congress

instructed

the

AR 176892.

Secretary

to

buy

lands

within

specified boundaries to establish the Preserve, except that
[n]o improved property . . . nor oil and gas rights,
shall be acquired without the consent of the owner,
unless the Secretary . . . determines that such property
is subject to, or threatened with, uses which are, or
would be, detrimental to the purposes of the preserve.
16

U.S.C.

§

698f(c).

Because

of

this

limitation

on

NPS’s

acquisition authority, when the United States acquired the surface
lands of the Preserve it did not acquire most oil and gas rights.
AR 176896.
estate”),
rights.

The surface and mineral estates were severed (a “split
and

private

AR 000061.

owners

typically

retained

the

mineral

Thus, the United States acquired most lands

5

For purposes of this Opinion and Order, the term “Preserve”
refers to Big Cypress National Preserve as a whole, including both
the original preserve and the subsequent Addition lands, unless
otherwise indicated.

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of the Preserve from the Collier family, without associated mineral
rights.

AR 176892.

Aware of this divided ownership of the surface estate and
mineral rights, the Department of Interior explored purchasing a
large portion of the Preserve’s mineral interests from the Colliers
in the early 2000s.

After substantial negotiations, the parties

tentatively agreed to terms for a sale, contingent on Congressional
appropriation of funds.

See Mathews Decl., Ex. 1 (Doc. #47-3).

However, questions were raised regarding valuation of the deal,
and the required funds were never appropriated.
Decl., Ex. 2 (Doc. #47-3).

See Mathews

Accordingly, the vast majority of the

Preserve’s mineral estate remains in private ownership, including
substantial mineral interests owned by the Collier Entities. 6
(2)

The Preserve’s History of Oil and Gas Activity

Oil and gas activities in the greater Big Cypress Swamp
predates creation of the Preserve.

AR 001093.

Oil and gas

activity has occurred in south Florida since 1930, and by the early

6

Regardless of who owns the mineral rights, “federal law
unambiguously displays congressional intent to empower the Park
Service to regulate the [Big Cypress National Preserve]” in order
to protect wildlife and visitors. High Point, LLLP v. Nat’l Park
Service, 850 F.3d 1185, 1198-99 (11th Cir. 2017). The Preserve
is part of the national park system, which the service promotes
and regulates the use of, without mention of federal ownership.
Id. (citing 16 U.S.C. § 3 (repealed 2014) (providing that the
Secretary of the Interior “shall make and publish such rules and
regulations as he may deem necessary or proper for the use and
management of the parks, monuments, and reservations under the
jurisdiction of the National Park Service”)).

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1970s, much of the area had seen drilling operations.
176892.

AR 166990;

The Sunniland Trend is part of the hydrocarbon-bearing

South Florida Geologic Basin located beneath southwest Florida.
AR 001093.

The Sunniland Trend has produced over 120 million

equivalent barrels of crude oil and non-commercial quantities of
natural gas continuously since 1943 from commercial oil fields.
Id.
Congress, aware of this oil and gas activity and the potential
of the area for future exploration and production, prohibited the
Secretary from condemning private oil and gas interests except in
limited circumstances, 16 U.S.C. § 698f(c), but Congress also
called for NPS to promulgate regulations governing “exploration
for

and

Preserve.

extraction

of

oil,

gas,

16 U.S.C. § 698i(b)(2).

and

other

minerals”

in

the

Years later, in the Addition

Act, Congress specified that the regulations should address
access on, across, or through all lands within the
boundaries of the Big Cypress National Preserve and the
Addition for the purpose of conducting such exploration
or development and production, as are necessary and
appropriate to provide reasonable use and enjoyment of
privately owned oil and gas interests, and consistent
with the purposes for which the Big Cypress Preserve and
the Addition were established.
Pub. L. No. 100–301 (S. 90), § 8, 102 Stat. 443 (1988).

Throughout

the Preserve’s enabling legislation, Congress envisioned continued
exploration and development of oil and gas, in a manner reasonably
regulated by NPS and balanced with resource protection goals.

- 9 -

NPS addressed its multifaceted management authority in a 1992
General

Management

Plan

(GMP)

and

final

Environmental

Impact

Statement (EIS) for the original Preserve, which contained a
Minerals Management Plan (MMP) and analyzed all phases of oil and
gas

activities,

Preserve. 7

including

seismic

AR 166949-167412.

surveys,

in

the

original

To protect resource values where

oil and gas activities occurred, the MMP established a ten percent
“area of influence” limit, “so that no more than 10 percent of the
preserve would be influenced by [oil and gas] activities at any
one time.” 8

AR 164184; 166970.

One form of such geophysical exploration is the seismic
survey, a technique which has been used on the Preserve’s lands
since the early 1970s.

AR 176892; 174758.

Seismic surveys

generate an energy “wave” that bounces off underground oil and gas
deposits back up to small, strategically positioned sensors on the
surface called “geophones.”
data

acquired

during

the

AR 164284; 002351 (geophone).
survey

may

be

either

two

or

The
three

7

With regard to oil and gas activity in the Addition Lands,
a 2011 Record of Decision only described how the Addition Lands
are to be managed with respect to visitor access, ORV use, and
wilderness. Thus, oil and gas activities in the Addition lands
are still managed in accordance with a separate 1988 agreement
between the Collier entities and the United States, pending
completion of a Preserve-wide oil and gas management plan. (Doc.
#40, ¶ 49.)
A Preserve-wide oil and gas management plan is
currently in preparation by the National Park Service. AR 172622.
8

The area of influence for the Plan is 2.1%.

- 10 -

AR 164184.

dimensional, depending on the layout of the geophones and the
location of the energy source points, but 3-D seismic surveys
produce

“better

image[s]

and

geological features . . . .”

successfully

AR 176907.

identify

subtle

The most common ways to

create the energy wave necessary for a seismic survey are dynamite
and vibration.

The dynamite method, called “shot-hole drilling,”

requires drilling a grid of deep holes, dropping explosives into
the holes, and detonating the charges.

AR 178215; see AR 057514-

18 (photographs of drilling equipment).

The vibration method

employs a specialized vehicle called a “vibroseis buggy,” 9 which
lowers a hydraulic plate mounted to its undercarriage, vibrates it
against the ground for 12-24 seconds, and moves to the next source
location.
buggies).

AR
A

176911;

seismic

176909-10

survey

maps

(photographs
the

structural

of

vibroseis

position

of

underground geological rock formations using sound waves, similar
to an ultrasound examination, but does not penetrate the surface.
AR 164284.

9

The vibroseis buggies, which are the largest vehicles in
the survey, have an articulation feature which allows them to
maneuver in tight spots. AR 174783. They also are equipped with
oversized balloon-type tires (“terra tires”) to spread out the
weight and minimize rutting, as recommended by the 2006 NPS
Operators’ Handbook. AR 171517; 176910 (pictures of terra tires).
Vibroseis buggies have been used before in the Preserve and other
parts of the National Park System, and were discussed in the 1992
GMP/EIS.

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In 1999, the NPS issued an EA and FONSI for a 3-D seismic
survey (the first in the Sunniland Oil Trend) conducted by Calumet
Florida, Inc. in a 14-square mile area of the Preserve known as
Raccoon Point.

AR 170754.

The seismic survey did not use

vibroseis, but instead the older method of “shothole drilling,”
“mobilizing over 100 people, 15 off-road vehicles (swamp buggies
and ATV’s), eight rubber-tracked drill rigs, two heliportable
drill rigs, and two helicopters . . . .”

AR 170761.

Follow-up

monitoring confirmed that the survey had no long-lasting effects.
See, e.g., AR 170752-67.
In 2000, NPS issued a second EIS and GMP for the lands of the
Addition.

AR 172579-173196.

Both GMPs recognized that “recent

discoveries of oil and gas both within and adjacent to the preserve
have prompted interest in . . . geophysical exploration.”
166990; 172610.

AR

In 2006, the NPS issued an “Operators Handbook

for Nonfederal Oil and Gas Development in Units of the National
Park System,” which provides detailed discussions of the impacts
of oil and gas activities and ways to minimize them.

AR 171451-

814.
C. History of Burnett Oil’s Oil and Gas Exploration Rights in the
Preserve, Proposed Plan for 3-D Seismic Survey, and NPS’s
Consideration
Because South Florida’s Sunniland Trend is located hundreds
of miles from the traditional oil developments in the southwestern
United States, it took nearly a decade for the Collier Entities to

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identify an exploration and development company with which to
partner

to

explore

their

mineral

resources.

(Doc.

#52-1,

Affidavit of Tom Jones, VP for Govt. Affairs of the Barron Collier
Companies, ¶ 17.)

On April 3, 2013, Collier Resources Company and

Burnett

into

entered

a

Seismic

and

Exploration

Agreement

establishing the terms for leasing of certain exploration rights
for mineral interests owned by the Colliers within the Preserve. 10
Id. at ¶ 18.

Pursuant to this arrangement, Burnett controls the

exploration rights to certain Collier-owned oil and gas interests
within the Preserve, and Burnett is responsible for obtaining the
required permits and authorizations.

Id. at ¶ 19.

In November 2013, representatives from Collier and Burnett
informed NPS of their desire to conduct a seismic survey of
Collier’s private oil and gas resources in the Preserve.
000002.

AR

Burnett proposed to do this with vibroseis buggies to

create seismic waves from the “source point”, which bounce off
underground rock formations and return signals back to the surface.
The return signals are collected using small, portable receivers
(geophones), which are placed on the ground by hand.

By repeating

this process across the survey area, Burnett is able to develop
the three-dimensional imagery it needs to evaluate the potential

10

On March 8, 2016, the parties entered into a letter
agreement extending the Exploration Agreement due to prolonged
permitting delays. (Doc. #52-1, ¶ 18.)

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for oil and gas to have been trapped in structural formations two
miles below the ground.

See generally AR 176907-11.

Burnett

believes that the use of vibroseis buggies can generate better
data with fewer source points, which means that the survey can be
conducted with many fewer vehicles and in a fraction of the time
required by the explosives method.

AR 174782; 174830.

Initially, Burnett proposed a plan to NPS for a 3-D seismic
survey covering roughly 400 square miles, to “be completed in V or
VI phases.”

AR 000003.

Phase I of the survey would focus on a

110 square mile area near a former Exxon exploratory oil field in
the north-central part of the Preserve.
that

Burnett’s

“expectations

of

Id.

securing

NPS staff cautioned
permits

may

be

unrealistic” given the size of the survey area and their obligation
to formally establish a right of entry on all parcels inside the
survey area.

AR 000005; see 36 C.F.R. § 9.36(a)(2).

Nonetheless,

in January 2014, Burnett submitted a plan of operations, pursuant
to the NPS regulations for non-federal oil and gas activities on
NPS-managed lands (9B Regulations).

See 36 C.F.R. § 9.36.

They

sought approval for a 3-D seismic survey of 366 square miles
(approximately half of the Preserve), using vibroseis buggies,
stepped out in phases, the first phase encompassing approximately
110 square miles.

AR 000012.

initial plan of operations.

NPS staff began to review that

AR 000016-57; 261-69; 000313-30.

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In June 2014, environmental consulting firm Passarella &
Associates (Passarella) provided NPS a first draft EA, describing
the anticipated impacts of the initial multi-phase plan.
000465.

AR

After reviewing that early-draft EA, NPS had concerns

with its completeness, objectivity, and qualitative analyses.
001017; 001002-08.

AR

NPS provided Passarella comments, noting that

it was “difficult if not impossible” to adequately analyze the
impacts of later phases of the Plan, due to a lack of specific
information about how the activities would be conducted.

AR

001039-52; 001042.
In August 2014, Passarella informed NPS on behalf of Burnett
that the Plan would be revised to simplify the multi-phase concept,
reduce the total survey area by 75%, and seek approval for Phase
I only. 11

AR 001070.

A new Plan, covering only a 110-square mile

focal point (approximately 70,454 acres) of the original Plan, was
submitted in September 2014. 12

AR 001071-1908.

Over the next

several months, NPS coordinated with the applicants and their
consultants to refine both the Plan and the draft EA.

AR 002255-

88 (response to NPS comments); AR 002364-2991 (Oct. 2014 draft);

11

Phase I is the only phase that is the subject of this
lawsuit.
12

Seventy-five percent of the revised survey area is the
Original Preserve, while 25% is the Addition Lands.
See FWS
003668; 005728 (map).

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AR 003648-4490 (Dec. 2014 draft); AR 003012-13 (NPS comments, Nov.
2014).
Early in 2015, Burnett offered to show NPS how the vibroseis
buggies proposed in their Plan would operate in the Preserve’s
environment.

Burnett requested temporary access to an area of the

Preserve near Interstate 75 for this purpose.
approved

the

geophysical

request,

and

contractor,

AR 004559-60.

representatives

and

demonstration on April 22, 2015.

NPS

met

for

of

Burnett,
the

AR 004644; 004647.

NPS
its

vibroseis

NPS recorded

several hours of video during the demonstration, and later prepared
a summary report. 13

AR 164894-900.

Although the demonstration

had certain adverse impacts, like tire rutting, damage to several
cypress trees, and “mashed down” vegetation, AR 164896-97, NPS
expected that the vegetation “will likely recover in a few months,”
and found that the soil rutting was generally “not significant .
. . .”

AR 164897.

NPS further stated that “there was no

appreciable effect on the ground” where the vibrator plate had
been deployed.

Id.

Although the vibroseis buggy became stuck

13

Video from the demonstration is included in the “data”
folder of the Administrative Record and still images from the
demonstration were displayed at the hearing. Burnett demonstrated
the maneuverability of the buggy and full vibration “sweeps.”
Early in the day, the vibroseis buggy became stuck in a man-made
ditch, but Burnett explained that “under normal circumstances an
accompanying vibroseis buggy would have pulled the buggy free,”
since the approved plan calls for buggies to travel in groups of
three. AR 164896.

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once, the report noted that NPS could “work with the applicant to
identify various habitats in the project area that must be avoided
. . . and areas where the proposed equipment may be able to be
used.”

AR 164898; see also AR 057455 (showing offset vibration

points).
In June 2015, NPS informed Passarella and Burnett that the
Plan was complete, consistent with federal regulations, and that
NPS would begin its formal public review process to evaluate the
Plan.

AR 004720.

NPS requested public comments on Burnett’s

revised Plan, AR 004768, considered the comments received, and
provided Burnett additional input on the released Plan and inprogress EA.

AR 057208.

In the ensuing months, NPS made revisions to Passarella’s
draft EA to ensure it comported with NPS standards.

AR 057207-

08; see, e.g., AR 054878-55071 (redlined EA); 055514-55708 (same);
055911-56106 (same).
photographs

of

the

provided by Burnett.

In addition, NPS reviewed before and after
vibroseis

demonstration

site,

which

were

AR 054851-62 (photographic report); 054843-

48 (aerial photographs); AR 054807-16 (ground-level photographs).
Burnett argues that these images revealed that six months after
the demonstration, vegetation and soils impacted by the vibroseis
buggy had largely recovered.
On November 20, 2015, NPS released the first public EA for
Burnett’s Plan.

The EA evaluated three alternatives: 1. a no-

- 17 -

action alternative; 2. seismic survey using vibroseis buggies; and
3. seismic survey using explosives.

AR 176907-17.

Although NEPA

does not require an opportunity for public comment on an EA, see
40 C.F.R. 1501.4(b), NPS requested comments and held a public
information meeting.

AR 176654-863 (EA released Nov. 2015);

057198 (press release); 057493-501 (public meeting presentation
slides); AR 057624-26 (flyer).

NPS received over 65,000 public

comments, some expressing concerns with the seismic survey.

Based

on the comments received, Burnett proposed modifications to the
Plan and worked with NPS to make changes to the proposed action,
including

relocating

all

staging

activity

outside

Preserve

boundaries to an existing industrial site called Vulcan Mine.
Previously, staging areas were at five locations throughout the
Preserve,

covering

approximately

11.5

acres.

AR

057730-36;

093139; 093552-66 (staging area review PowerPoint prepared by
Burnett).
These changes necessitated preparation of a revised EA and
draft Wetlands Statement of Findings.
released a revised EA.

AR 176887-177089.

On March 25, 2016, NPS
Again, despite the fact

that NEPA does not mandate public comment periods for EAs, NPS
requested

further

public

comments

related

to

“scientific

or

technical information that would aid in the agency reaching a
decision on a revised [EA],” through April 9, 2016.
36.

- 18 -

AR 095035-

NPS responded to public comments on both drafts of the EA,
including those opposed to the survey. 14

AR 164214-24; 177075-87.

NPS noted that the vibroseis buggies would have “similar but lesser
impacts” than recreational ORVs due to their “wide, balloon-type
tires, spreading the ground pressure over a large area.”
164221.

AR

The survey vehicles would use existing trails where

possible and would seldom travel the same routes more than once,
due to the survey’s “one pass” design, whereby a vehicle group
would not normally travel the same route more than once.
164253.

AR

Although some commenters expressed concern that the

survey could have lasting impacts, citing survey lines from the
1970s which are still visible in places, NPS explained that seismic
exploration

was

unrestricted

in

those

days:

“bulldozers

were

allowed to plow paths across the landscape” to provide faster
access for shot-hole drilling.

AR 164220.

NPS also noted that

the total “footprint” of vegetation and soils affected by vibroseis
buggy travel would be less than 1.16 square miles of the 110 square
mile survey area.
“47

explicit

AR 164224.

mitigation

Importantly, NPS reinforced that

measures

are

incorporated

into

the

selected alternative,” to “prevent lasting impacts,” “minimize

14

The March 2016 revised EA is the final EA for purposes of
this Opinion and Order.
AR 176887-177089.
Any changes due to
responses to public comment after March 2016 are described in the
appendices to the March 2016 EA. AR 164180-81.

- 19 -

short-term

impacts,”

impacts occur.”

and

“ensure

that

no

significant

adverse

AR 164223.

The EA incorporates by reference three prior NPS NEPA analyses
that address management of oil and gas activities and the use of
ORVs within the Preserve, AR 164201-02, including a series of
environmentally-protective measures identified in the NPS’ 1992
GMP/EIS and the 2006 Operators Handbook.
174837; 174839.
ORV analyses.

AR 174759; 174764;

The EA also incorporates by reference two prior

First, in 2000, NPS adopted the Big Cypress National

Preserve Recreational ORV Management Plan/EIS, which governs the
use of ORVs in the Preserve.
finalized

the

GMP/Wilderness

Big

Cypress

Study/ORV

AR 169310-928.
National

Management

Second, in 2010, NPS

Preserve
Plan/EIS

Addition
(“2010

Final

Addition

GMP/EIS”), which addresses management of the Addition, including
ORV activities. 15

AR 172579-3196.

15

The National Park Service’s allowance of motorized
recreational ORVs in the original Preserve has been a contested
and litigated subject since at least 1995.
The history and
resolution of the resulting litigation concerning the 2000 General
Management Plan can be found at Defenders of Wildlife v. Salazar,
877 F. Supp. 2d 1271 (M.D. Fla. 2012). The history and resolution
of litigation concerning the 2010 Addition GMP/EIS can be found at
Nat’l Parks Conservation Ass’n v. U.S. Dep’t of Interior, 46 F.
Supp. 3d 1254 (M.D. Fla. 2014), aff’d, 835 F.3d 1377 (11th Cir.
2016).
Plaintiffs argue that the concerns pertaining to the
adverse effects of ORVs also apply to off-road seismic operations
that will occur in this case.
Such reliance on a previous EIS is specifically authorized.
See 40 C.F.R. § 1502.20.

- 20 -

D. ESA Consultation Regarding the Plan
For

purposes

of

ESA

consultation,

NPS

provided

FWS

a

biological assessment (BA) in February 2014 that had been prepared
by Passarella.
FWS,

NPS

FWS 003929.

issued

a

In response to comments received from

revised

BA

in

November

2014,

FWS

004928,

assessing the effects of Burnett’s Plan on eleven federally-listed
or candidate species, including two plants.

AR 179693-94; 179720-

50.
The revised BA concluded that the planned survey is “not
likely

to

adversely

affect”

ESA-listed

species

including

the

threatened American alligator, threatened eastern indigo snake,
threatened Audubon’s crested caracara, endangered Everglade snail
kite, endangered red-cockaded woodpecker, threatened wood stork,
endangered
panther.

Florida

bonneted

FWS 006623-27.

bat,

and

the

endangered

Florida

The revised BA also concluded that the

planned survey is “not likely to adversely affect” the gopher
tortoise, Florida prairie-clover, or Florida pineland crabgrass,
all of which are ESA “candidate” species.

FWS 006628.

Finally,

the revised BA concluded that the planned survey may affect the
Florida panther but that it would have “little, if any adverse
consequences on this species, and any such consequences would be
insignificant.”

FWS 005003-04.

In addition to the revised BA,

NPS provided FWS the December 2014 draft EA, FWS 005074, and the
December 2014 revised plan of operations, FWS 005706.

- 21 -

On February 25, 2015, FWS issued a letter concurring that the
survey is not likely to adversely affect any of the species
considered in the BA.

FWS 006622.

As to the Florida bonneted

bat, FWS reasoned that the survey lines would be scouted daily in
an attempt to identify and avoid potential nesting or roosting
sites.

FWS 006626-27.

In addition, FWS reasoned that temporary

loss of vegetation during the establishment of transect lines and
buggy

access

paths

opportunities.

will

Id.

not

significantly

Finally,

FWS

affect

concluded

foraging

that

potential

roosting sites will not be affected because trees with a diameter
greater than 10.2 centimeters will not be removed.
By

its

own

terms,

consultation

only

the
for

February
“the

25,

seismic

2015

FWS 006627.

letter

survey

as

completed

specifically

described in the project description” and stated that reinitiation
of consultation may be required “[i]f modifications are made to
the project.”

AR 004592-93.

FWS clarified and affirmed its “not likely to adversely
affect” determination with regard to the Florida bonneted bat and
other

species,

following

receipt

of

a

notice

concerning

plaintiffs’ intent to bring ESA claims, see FWS 007001, in a
memorandum to file dated September 6, 2016.

FWS 007017.

FWS

stated that because the planned survey is a short-term activity
(completed

in

18

weeks),

with

limited

spatial

extent

(approximately 70,000 acres with 2.5 square miles affected per

- 22 -

day), any action-caused avoidance behaviors by listed species
would be only an insignificant effect.
In

November

2015,

NPS

requested

Id. at 007019.
to

reinitiate

consultation on the draft EA for Burnett’s Plan.

informal

AR 057226.

The

FWS responded that “unless the project changes,” its concurrence
was valid, and that it could not assess an alternative to the Plan
without a BA for the alternative.

FWS 006741.

In March 2016, NPS

notified the FWS of the revised EA and stated that the five staging
areas in the Preserve were eliminated.

AR 095040.

The FWS found

that the elimination of the five staging areas did not affect its
concurrence.

FWS 006999.

The revised EA for Burnett’s Plan incorporated by reference
three Preserve management plans: (1) 1992 Big Cypress National
Preserve

General

Management

Plan/Final

Environmental

Impact

Statement for the Original Preserve, which included a Minerals
Management

Plan;

(2)

2000

Big

Cypress

National

Preserve

Recreational Off-Road Vehicle Management Plan/EIS for the Original
Preserve; and (3) 2010 Big Cypress National Preserve Recreational
Off-Road Vehicle Management Plan/EIS for the Addition.

With

regard to ESA consultation, in 1991, the FWS found that the
Preserve GMP may adversely affect Florida panthers and did not
permit any incidental take.

AR 167380-85.

In 2000, the FWS

evaluated effects of the ORV Plan on seven species, AR 169868-914,
and concluded that it was likely to adversely affect the Florida

- 23 -

panther because panthers will “move away from designated [ORV]
trails,”

which

“could

sheltering behavior.”

alter

normal

AR 169900.

breeding,

feeding,

and

The FWS authorized incidental

take of Florida panthers through harassment by ORVs and required
the NPS to restrict ORVs to designated trails.

AR 169904-05.

In 2010, the FWS evaluated effects of the Addition GMP on
seven species, AR 174088-174, and concluded that it was likely to
adversely affect the Florida panther, largely due to effects from
opening ORV trails.
incidental

take

AR 174099; 174126-33.

of

Florida

panthers

The FWS authorized
through

harassment,

principally due to panthers avoiding ORV trails.

AR 174136-37.

The

opinion

Addition

GMP

and

the

associated

biological

were

reviewed and upheld by this Court in National Parks Conservation
Ass’n v. U.S. Dep’t of Interior, 46 F. Supp. 3d 1254 (M.D. Fla.
2014), adhered to on reconsid. 2015 WL 476163 (M.D. Fla. Feb. 05,
2015), aff’d 835 F.3d 1377 (11th Cir. 2016).
Plaintiffs

commented

to

the

Agencies

on

the

effects

of

Burnett’s Plan on listed species in April 2014, FWS 004045-53;
December 2014, FWS 006549-85; August 2015, AR 4976, 4994-99;
December 2015, AR 084576, 084607-36; and April 2016, AR 095316,
095358-90.
E. NPS’s Final Decision (FONSI)
On May 6, 2016, NPS issued a Finding of No Significant Impact
(FONSI) for the EA, selecting Alternative 2 — Burnett’s revised

- 24 -

plan of operations using vibroseis technology, as modified by
forty-seven total minimization and mitigation measures 16 which
would apply as conditions of approval.

AR 164179-282 (FONSI); AR

164184-92 (list of 47 mitigation measures); AR 164123-24 (press
release).

The

FONSI

concluded

that

with

standard

operating

procedures, best management practices, and mandatory minimization
and

mitigation

measures,

the

selected

action

“will

significantly affect the quality of the human environment.”
164179.

not
AR

The agency concluded that the effects of the vibroseis

buggies and other off-road vehicles would be “similar to impacts
from past recreational ORV use,” but concluded that there were
important differences which would make the survey less impacting
such as the use of terra tires, operation during the dry season,
immediate restoration of any damage, and the use of existing
trails.

AR 164193.

“Based on the impact analysis in the EA, the

impacts described above would occur in only a small portion of the
survey

area

(0.01%

of

the

survey

area),

which

approximately 0.001% of the Preserve.”

AR 164207.

the

of

low

intensity,

short-term

nature

16

the

comprises

And “[d]ue to

impacts

and

the

Among those measures are provisions that the survey will
only be conducted in the dry season (when soils are more
resilient), AR 174754; crews will be accompanied by expert
ecologists and archeologists to identify and avoid sensitive
areas, AR 174753; and clean-up and restoration crews will work
concurrently with survey operations, AR 174764-67. Also, the “one
pass design” will be utilized to minimize soil and vegetative
impacts caused by repeated traffic. AR 174764.

- 25 -

required minimization and mitigation measures, affected resources
will return to a condition similar to those that currently exist
within three years or less, in most cases.”
The

NPS

also

addressed

the

April

Id.
2015

vibroseis

buggy

demonstration, and noted that the field test had “demonstrated
minimal vegetation impacts and substantial recovery six months
later.”

AR 164193-94.

The primary problem with the demonstration

was that the buggy got stuck in a man-made ditch, and the NPS
concluded that the “[i]f the field test had followed the same
minimization and mitigation measures (e.g., No. 46) that will be
in

place

for

the

selected

action,

Preserve

staff

would

have

rerouted the vehicle around the area such that it would not have
followed the original route and subsequently gotten stuck.”

AR

164197.
The FONSI discussed the three prior, incorporated Preserve
Management Plans, AR 164194-96, finding that the recreational ORV
use addressed in the management plans involved repeated passes
over the same locations (which causes greater impact), whereas
Burnett designed its survey to minimize the number of times that
vehicle cross the same location (the “one pass” survey design), AR
177032,

and

Burnett’s

survey

incorporates

environmentally-

protective measures that are not required for general recreational
ORV activities.
F. The Two Phases of Burnett’s Approved Seismic Survey

- 26 -

The approved seismic survey will be conducted in two main
phases, both of which plaintiffs take issue with.
of Charles E. Nagel III (Doc. #53-2).

See Declaration

The first phase involves

scouting out the locations of the source and receiver points 17 and
placement of geophones (the “Preliminary Survey Phase”).

AR

164183-84.

In this first phase, survey crews will enter the survey

area

NPS

with

personnel

and

other

qualified

specialists

and

identify routes for vibroseis buggies to follow and areas to avoid,
consistent with NPS mitigation measure 46 that “[n]o Vibroseis
operations
proposed

will

be

routes.”

mitigation

measures

undertaken
AR

164192;

(NPS

without
see

prior

also

involvement

NPS

approval

Condition

in

field

6

of

of
the

operations),

Conditions 15 and 30 (scouting team includes wetland scientist,
archeologist, and ecologist).

This work will be done by personnel

working on foot and using vehicles.
will

include

pickup

trucks

Vehicles in the initial phase

(on-road

only),

utility

transport

vehicles (“UTV’s”) (small off-road vehicles which are smaller than
recreational swamp buggies, photos at AR 174809), a trailer (to be
used on roads only), and a helicopter.

No vibroseis buggies will

be used during the Preliminary Survey Phase.

Burnett estimates

that the Preliminary Survey Phase will take approximately six
weeks.

17

(Doc. #53-2, ¶ 10.)

See AR 174990-94 (maps of source and receiver points).

- 27 -

The second phase (the “Seismic Acquisition”) involves the
actual data acquisition, which is when the vibroseis buggies will
be used for approximately six weeks.

During this phase, vibroseis

buggies will enter from mile marker 63 on Interstate 75, following
the routes identified in the Preliminary Survey Phase.

A group

of three buggies will be accompanied by two UTVs, which include a
scout

UTV

working

with

a

professional

archeologist (in a second UTV). 18

wetland

scientist

and

The buggies will stop for

approximately two minutes at each vibration source point and apply
approximately 12 to 24 seconds of vibration at each source point.
AR 164184.

Adding additional time to transition between the

different phases, mobilize, and clean up, Burnett believes it will
need approximately four months to complete the approved seismic
survey. 19

AR 164183.

18

Plaintiffs state in their brief that the vibroseis buggies
will be preceded and accompanied by ORVs in the second phase, yet
the record shows that they will be accompanied by UTVs in the
second phase. See AR 164253.
19

Condition 1 of the forty-seven minimization and mitigation
measures provides that the survey will be conducted during dry
season conditions to minimize potential environmental effects of
operating survey vehicles. AR 164184-85. Prior to oral argument,
NPS had not yet given notice to Burnett that conditions were
sufficiently dry for the survey to proceed. On March 10, 2017,
NPS informed Burnett that “conditions favorable for the
preliminary phase of your approved seismic survey to begin will be
met by March 22, 2017.” (Doc. #89-1.) Thus, Burnett has provided
notice that it intended to start the preliminary phrase of the
survey on March 27, 2017, and the second phase on April 19, 2017.
(Doc. #89, ¶ 3.)

- 28 -

II. The Administrative Procedures Act
Each of the eight counts in the Amended Complaint sets forth
claims under the Administrative Procedures Act (APA) and a federal
statute or regulation.

The Court begins by discussing the general

principles of the APA, and then discusses each of the individual
counts.
Under the APA, a court may set aside an agency’s actions,
findings, or conclusions only if they are found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law.

5 U.S.C. § 706(2).

This is an exceedingly deferential

standard in which “[t]he court’s role is to ensure that the agency
came to a rational conclusion, not to conduct its own investigation
and substitute its own judgment for the administrative agency’s
decision.”

Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th

Cir. 2008) (citation omitted).

An agency action may be found

arbitrary and capricious “where the agency has relied on factors
which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.”

Defenders

of Wildlife v. United States Dep’t of the Navy, 733 F.3d 1106,
1115 (11th Cir. 2013) (citation omitted).

- 29 -

This standard of review provides a court with the least
latitude in finding grounds for reversal, and allows setting aside
administrative

decisions

only

“for

substantial

procedural

or

substantive reasons as mandated by statute, not simply because the
court is unhappy with the result reached.”

Citizens for Smart

Growth v. Sec’y of the Dep’t of Transp., 669 F.3d 1203, 1210 (11th
Cir. 2012) (quoting Fund for Animals v. Rice, 85 F.3d 535, 541-42
(11th Cir. 1996)).

A court must “defer to the agency’s technical

expertise,” City of Oxford v. FAA, 428 F.3d 1346, 1352 (11th Cir.
2005) (citation omitted), because when it “is making predictions,
within its area of special expertise, at the frontiers of science
. . . as opposed to simple findings of fact, a reviewing court
must generally be at its most deferential.”

Defenders of Wildlife

v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1248-48 (11th Cir.
2012) (quoting Miccosukee Tribe of Indians of Fla. v. United
States, 566 F.3d 1257, 1264 (11th Cir. 2009)).
standard

applies

even

in

the

context

of

This deferential
summary

judgment.

Preserve Endangered Areas of Cobb’s History v. United States Army
Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir. 1996).

Plaintiffs

bear the burden to show agency action is arbitrary and capricious.
Druid Hills Civic Ass’n v. Fed. Highway Admin., 772 F.2d 700, 709
n.9 (11th Cir. 1985); Citizens for Smart Growth, 669 F.3d at 1211.
A reviewing court must consider whether the record contains
substantial evidence in support of an agency decision.

- 30 -

5 U.S.C.

§ 706(2)(E).
a

reasonable

Substantial evidence is “‘relevant evidence [that]
mind

conclusion.’”

might

accept

as

adequate

to

support

a

Stone & Webster Constr., Inc. v. U.S. Dep’t of

Labor, 684 F.3d 1127, 1133 (11th Cir. 2012) (quoting Richardson v.
Perales,

402

U.S.

389

(1971)).

This

standard

precludes

a

reviewing court from “deciding the facts anew, making credibility
determinations, or re-weighing the evidence.”

Moore v. Barnhart,

405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).

“The ability

to find adequate support in the record for a contrary conclusion
is

insufficient

to

overturn

an

agency’s

factual

conclusion.”

Natl. Parks Conservation Ass’n, 835 F.3d at 1384 (citing DeKalb
Cty. v. U.S. Dep’t of Labor, 812 F.3d 1015, 1020 (11th Cir. 2016)).
III. The Four APA and NEPA Claims (Counts I-IV)
Plaintiffs allege that NPS violated NEPA and the APA by
failing to: (1) prepare an Environmental Impact Statement for
Burnett Oil’s Plan of operations (Count I); (2) take a “hard look”
at the effectiveness of the mitigation measures required for
Burnett Oil’s Plan of Operations (Count II); (3) take a “hard look”
at the adverse impacts caused by implementation of all aspects of
Burnett’s Plan, including all direct, indirect, and cumulative
impacts on Preserve resources (Count III);

and (4) consider all

reasonable alternatives to Burnett Oil’s Plan of Operation (Count
IV).

- 31 -

A. NEPA General Principles
The National Environmental Policy Act of 1969, 42 U.S.C. §§
4321-4370,

established

a

“national

policy

[to]

encourage

productive and enjoyable harmony between man and his environment,”
and was intended to reduce or eliminate environmental damage and
to promote “the understanding of the ecological systems and natural
resources important to” the United States.

42 U.S.C. § 4321.

NEPA does not itself mandate particular results, but only imposes
“procedural requirements on federal agencies with a particular
focus

on

requiring

agencies

to

undertake

analyses

environmental impact of their proposals and actions.”

of

the

Dep’t of

Transp. v. Pub. Citizen, 541 U.S. 752, 757-58 (2004); see also
Citizens for Smart Growth, 669 F.3d at 1211; Van Antwerp, 526 F.3d
at 1360.

NEPA compliance must take place before decisions are

made in order to ensure that those decisions take environmental
consequences into account.

Wilderness Watch v. Mainella, 375 F.3d

1085, 1096 (11th Cir. 2004) (emphasis in original).
“NEPA essentially forces federal agencies to document the
potential environmental impacts of significant decisions before
they are made, thereby ensuring that environmental issues are
considered by the agency and that important information is made
available to the larger audience that may help to make the decision
or will be affected by it.”

Id. at 1094 (citing Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)).

- 32 -

“NEPA

ensures that the agency will not act on incomplete information,
only to regret its decision after it is too late to correct.”
Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989).

The

Council on Environmental Quality (CEQ), an agency created by NEPA
in the Executive Office of the President, has issued regulations
to guide agencies’ compliance.

40 C.F.R. §§ 1500.1-1508.28.

To comply with NEPA, agencies often prepare an Environmental
Assessment

(EA),

a

“concise”

public

document

which

“briefly”

discusses the environmental impacts of, and alternatives to, a
proposal for federal action.
use

the

EA

to

determine

40 C.F.R. § 1508.9.
whether

the

Agencies may

proposed

action

will

“significantly affect[] the quality of the human environment.”
U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1501.3-1501.4.
action

will

have

“significant”

42

If the proposed

environmental

impacts,

NEPA

instructs agencies to prepare an Environmental Impact Statement
(EIS), a detailed environmental review document which analyzes the
environmental impacts of the proposal, reasonable alternatives,
and other factors.

42 U.S.C. § 4332(2)(C).

If, however, the

agency prepares an EA and concludes that the proposed action is
not likely to have significant impacts, the agency may issue a
Finding of No Significant Impact (FONSI), and the NEPA process is
complete.

40

C.F.R.

§

1508.13.

A

FONSI

is

a

factual

determination which “implicates substantial agency expertise and
is entitled to deference.”

Marsh, 490 U.S. at 376.

- 33 -

Because NEPA imposes purely procedural requirements, rather
than

substantive

results,

and

does

not

mandate

any

specific

outcome, “agencies may make a decision that preferences other
factors over environmental concerns as long as they have first
adequately identified and analyzed the environmental impacts.”
Citizens for Smart Growth, 669 F.3d at 1211 (citing Van Antwerp,
526 F.3d at 1361).

If the agency follows the process required by

NEPA in deciding whether to take the action, even a capricious
substantive decision will not violate NEPA because “NEPA merely
prohibits uninformed - rather than unwise - agency action.”

Van

Antwerp, 526 F.3d at 1361-62 (quoting Robertson, 490 U.S. at 35051 (footnote omitted)).
are

reviewed

under

Agency decisions allegedly violating NEPA

the

APA’s

highly

deferential

standard.

Citizens for Smart Growth, 669 F.3d at 1203.
B. The Alleged NEPA Violations 20
(1)

“Hard Look” at Adverse Impacts (Count III)

Plaintiffs allege that NPS failed to take a “hard look” at
the adverse impacts of Burnett Oil’s Plan in three ways: (1) In
the revised EA and FONSI, NPS failed to evaluate the cumulative
impacts

of

all

four

phases

of

Burnett’s

planned

seismic

exploration, which all are “reasonably foreseeable,” see 40 C.F.R.

20

The Court will not consider the Counts in numeric order,
but rather will consider them in an order that makes the most sense
given the allegations.

- 34 -

§ 1508.7; (2) NPS failed to evaluate the cumulative impacts of
eleven other projects affecting wildlife and habitat in the same
region; and (3) NPS failed to consider numerous direct impacts
from the Plan.
(a)

The Court will consider each argument in turn.

Cumulative Impact of Four Phases

As discussed above, Burnett initially submitted a proposal
for a 3-D seismic survey covering roughly 400 square miles, to “be
completed in V or VI phases.”

Phase I of the survey would focus

on a 110 square mile area near a former Exxon exploratory oil
field, and the initial plan requested approval for all four phases.
AR 000003.

Because the details of such a multi-phase project were

quite unclear, Burnett’s Plan was revised to request approval for
only one phase.

AR 176893.

Plaintiffs argue that Burnett has stated that approval for
the future phases will be requested under a separate plan for each
subsequent

phase,

and

that

Burnett

has

acquired

mineral

exploration rights for these future phases.

Thus, plaintiffs

reason

are

that

foreseeable,”

because
NPS

the

should

future

have,

but

phases
failed

to,

“reasonably
consider

cumulative impact that would result from the four phases.

the

Burnett

responds with the Declaration of its President, Charles Nagel III,
who states that while Burnett reserves the right to submit future
plans of operation, it has no plan to file an application for any

- 35 -

future plans of the seismic survey.

See Doc. #53 at 11; Doc. #53-

2, ¶ 14.
In the NEPA context, the reviewing court must ensure that the
agency took a “hard look” at the environmental consequences of the
project.

Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209,

1216 (11th Cir. 2002).

A cumulative impact is “the impact on the

environment which results from the incremental impact of the action
when added to other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or non-Federal)
or person undertakes such other actions.”

40 C.F.R. § 1508.7.

This requirement prevents a proponent from breaking a proposal
into

small

pieces

that,

when

viewed

individually,

appear

insignificant but that are significant when viewed as a whole.

40

C.F.R. § 1508.27(b)(7) (“Significance cannot be avoided by terming
an action temporary or breaking it down into small component
parts.”).
CEQ regulations do not define “reasonably foreseeable,” but
cases interpreting that phrase have recognized that the impacts of
a future project cannot be meaningfully analyzed until there is
some degree of certainty about the scope of the project and
specific actions proposed.

City of Oxford v. FAA, 428 F.3d 1346,

1353 (11th Cir. 2005) (proposal must be “sufficiently concrete for
the agency to gather information useful to itself and the public”).
The inquiry into whether a future action is foreseeable should be

- 36 -

conducted with an eye toward the purposes underlying NEPA.

NEPA

contains an implicit “rule of reason,” “which ensures that agencies
determine whether and to what extent to prepare an EIS based on
the

usefulness

of

any

decisionmaking process.”

new

potential

information

to

the

Dep’t of Transp. v. Public Citizen, 541

U.S. 752, 767 (2004).
In

City

of

Oxford,

the

Eleventh

Circuit

found

that

a

cumulative impact analysis is not required for hypothetical plans.
In that case, a highway widening was not in the planning stages.
“With

no

concrete

plan

to

consider . . . investigators

and

researchers would be forced to analyze the environmental impact of
a project, the parameters and specifics of which would be a mere
guess.”

428 F.3d at 1355.

See also Envtl. Prot. Info. Ctr. v.

U.S. Forest Serv., 451 F.3d 1005, 1014-15 (9th Cir. 2006) (Where
the “parameters of the . . . project were unknown at the time of
the EA, it was not arbitrary and capricious for [the agency] to
omit the project from its cumulative analysis.”)
Here, NPS noted that the revised plan
seeks approval only for what was identified as the first
phase (110± square mile survey area) of the originally
proposed NG3-D Seismic Survey (Figure 1-1). [Burnett]
is no longer seeking approval for Phases II, III, and IV
that were identified in the original [Plan of
Operations].
Those phases are no longer part of the
[Plan of Operations], and the NPS will only evaluate
what is requested in the [Plan of Operations].

- 37 -

AR 176893.

The NPS concluded that the “probability or extent of

any future surveys is speculative” and that any remaining phases
“are

not

reasonably

foreseeable

.

.

.

and

therefore

appropriately not included in the cumulative impact analysis.”
177076; see also AR 164214, 164219.

are
AR

In comments on the multi-

phase plan, NPS explained that
Approval of Phases II, III, and IV would be subject to
Burnett submitting additional information prior to
conduct of operations in the later phases . . . While
such an approach could provide checkpoints for Burnett
and the NPS to benefit from lessons learned in prior
phases, approving a plan of operations under this
scenario may be difficult if not impossible given that
impact analysis expectations . . . may not be met. . .
. Where information is lacking, an alternative may be
to scale back operations to include areas where
information is available and adequate cumulative impact
analysis can be conducted.
AR 001041-42.
The Court finds that there is insufficient evidence that the
next three phases of Burnett’s Plan will ever occur to justify a
requirement that NPS assess their cumulative impact.

When Burnett

reduced the size of the proposed survey area to only 25% of its
original size (AR 001069-70), it stated that it was “no longer
seeking approval for Phases II, III, and IV that were originally
identified in the original POP,” and that “[t]hose phases are no
longer part of the POP.”

AR 003668.

The data collected in the

approved survey may well affect if and/or where Burnett will seek
to conduct future survey activities in the Preserve, including

- 38 -

whether pursuing oil and gas in the Preserve is economically
feasible.
for

Even if Burnett intends to conduct more surveys, plans

those

phases

are

not

concrete

enough

to

allow

NPS

meaningfully analyze their cumulative environmental impacts.

to
See

City of Oxford, 428 F.3d at 1356 n.23 (if a new building is
proposed,

the

agency

“may

then

be

required

to

analyze

the

cumulative impacts of that project in conjunction with the project
currently at issue.”).
(b)

The Court finds no NEPA or APA violations.

Cumulative Impacts of Eleven Other Projects

Plaintiffs
cumulative

next

impacts

argue

of

that

other

NPS

projects

failed

to

evaluate

the

affecting

wildlife

and

habitat in the same region, including a seismic survey approved
for 161 square miles of private and state lands just north of the
Preserve

(the

development

“Tocala

projects

Survey”),

proposed

in

Florida panthers and other species.

and

at

least

the

habitat

eleven
for

major

endangered

Plaintiffs assert that these

projects will put increased pressure on the single population of
Florida panthers and on other wildlife that use the Preserve, and
should have been included in NPS’s cumulative impact analysis of
the Plan.
Defendants respond that plaintiffs have waived this argument
because they failed to mention these other projects in their
comments on the October 2015 EA (AR 057230-320).

The Court finds

this argument unpersuasive as plaintiffs did raise this argument

- 39 -

in the second comment period.
73.

But

defendants

even

if

argue

the

that

See AR 057348; 057366-67; 057370-

argument
NPS’s

was

not

decision

was

waived,
not

the

federal

arbitrary

and

capricious as the record reveals that NPS did consider and address
the other projects, and NPS was within its discretion to decline
to consider the cumulative impacts.
“Cumulative environmental impacts are, indeed, what require
a comprehensive impact statement.

But determination of the extent

and effect of these factors, and particularly identification of
the geographic area within which they may occur, is a task assigned
to the special competency of the appropriate agencies.”
v. Sierra Club, 427 U.S. 390, 413–14 (1976).

Kleppe

Here, regarding the

seismic survey on private and state lands north of the Preserve, NPS
explained that “[t]he Tocala survey is miles from the Preserve, is
on privately owned ranchland, has no effects on Preserve resources,
and thus should not be included in the cumulative impacts analysis.”
AR 094221.

The record also shows that NPS did address the other

projects, but NPS declined to consider their cumulative impact
because those projects would not affect the same resources as the
proposed action.

AR 164219.

In this regard, NPS stated that “many

projects listed by commenters were located one or more counties away
from the survey area, and these projects would not affect the same
resources

as

the

proposed

action

considered under cumulative impacts.”

- 40 -

and

therefore

AR 164219.

would

not

be

Plaintiffs have

not shown that NPS’s decision was arbitrary and capricious as it was
well within NPS’s expertise to determine that the other projects
would not have a cumulative impact.

The Court finds no NEPA or APA

violation.
(c)

Direct Impacts from the Plan

Plaintiffs complain that during the agency’s preparation of
the revised EA, Burnett decided to use an off-site staging area at
an existing industrial site (Vulcan Mine) outside the Preserve,
over eight miles from the seismic survey area, instead of five onsite staging areas. 21
site

staging

helicopter

area,

flight

Plaintiffs argue that in approving the offNPS
time

failed
would

to

consider

affect

how

wildlife

the
and

increased
visitor

experiences in the areas between the off-site staging area and the
seismic survey area, as well as off-road travel of survey vehicles
such as ORVs, besides the vibroseis buggies, to ferry supplies
back and forth.

Defendants respond that NPS did take a hard look

at each of these impact topics.

The Court agrees with defendants.

With regard to the off-site staging area being moved to the
Vulcan Mine site, it is worth noting that plaintiffs requested
that NPS move the staging area out of the wetlands in the Preserve.
AR 004977; 004987-88.

The initial EA described five “staging

21

The federal defendants again argue that plaintiffs have
waived the staging area argument because it was not raised until
the second comment period.
This argument again fails for the
above reasons.

- 41 -

areas” where crew would assemble and vibroseis equipment, support
trailers, helicopter landing zones, and other miscellaneous survey
infrastructure would be located.
photograph staging area).

AR 176680-81; AR 093533 (example

NPS noted the possibility that “a high-

density, interlocking, composite mat system” might be installed at
the staging areas, to protect the underlying soil and root system
of vegetation.

AR 176811.

NPS considered the effects of having

staging areas in Preserve wetlands, AR 176680-81, and determined
after public comment that moving staging areas out of the Preserve
to the Vulcan Mine site 22 would in fact “significantly reduce
environmental

impacts”

and

“reduce

environmental

impacts,

personnel, and vehicular traffic, as well as eliminate the use of
heavy equipment in the Preserve.”
176910-11 (final EA).

AR 094063; 094056-57 (map);

This modification eliminated the use of

composite mats.
With regard to the impact of off-road vehicles other than
vibroseis buggies, the EA did specifically consider the impacts of
these vehicles.
how

“survey

AR 002342 (photograph of UTV).

activities

would

generally

The EA describes

utilize

a

‘one

pass’

design,” which “means that the equipment group (which would include
a UTV and three Vibroseis buggies) would seek to traverse a given
area only once, and that area would not be driven upon repeatedly

22

See AR 093530 (aerial image of Vulcan Mine site).

- 42 -

again in the majority of cases.”
how

minimization

and

AR 176919.

mitigation

measures

NPS also explained
would

reduce

any

vehicular impacts to wetlands, habitat, soils, and vegetation to
minimal levels.

AR 176973.

Thus, NPS noted that the “one-pass”

design of the survey, the fact that operations would be limited
the dry season, and other minimization and mitigation measures
would reduce the impacts of all motorized vehicles used in the
survey.
NPS also took into account the impacts support vehicles would
have on wilderness.

AR 176987 (discussing effects “of Vibroseis

buggies, UTVs, helicopters, and other mechanized equipment”).

In

the Wetlands Statement of Findings, attached as Appendix B to the
EA, NPS explained how the equipment groups would work:
[e]ach group of buggies will have a scout UTV working
with a professional wetland scientist and archeologist
(in a second UTV), traveling in tandem across vibration
source point lines with the least environmental impacts.
. . . The “one pass” design eliminates the progressive
widening of trails which generally occurs as a result of
overuse and rutting from multiple passes. Virtually all
of the one pass lanes had restored in one year and
completely disappeared after seven years of recovery.
AR 177032.

NPS cited studies which concluded that “single passes

of ORVs (in most cases) did not result in long-term adverse impacts
to vegetation or soils” and “virtually all of the one pass lanes
had restored in one year and completely disappeared after seven
years of recovery.”

Id.

The NPS noted that vibroseis buggies

have similar but lesser impacts to recreational ORVs, and soil

- 43 -

impacts would be temporary or minimal because they would use
existing trails when possible, soil ruts would be immediately
restored, among other factors.

AR 177078.

Regarding visitor experience and recreation, NPS explained
that the original five staging areas “would have been located near
I-75 recreational access points,” but after moving the staging
location outside the Preserve, “[n]o survey activities would occur
within a half-mile of campgrounds, interpretive sites, research
sites, or other publicly funded facilities, as the five staging
areas would not be used.”

AR 094226.

A review of the record belies plaintiffs’ assertion that NPS
summarily concluded that the Vulcan Mine site would have lesser
impacts than the on-site staging areas.

See Van Antwerp, 526 F.3d

at 1360 (agency not required to redo environmental analysis for
minimization measure that are within the scope of studied impacts).
The Court finds no NEPA or APA violation.
(2)

Viable, Less-Damaging Alternatives to the Plan (Count IV)

Plaintiffs contend that NPS adopted an impermissibly narrow
purpose and need statement which led to its failure to consider
all reasonable, less damaging alternatives to the Plan.

The

federal defendants respond that the Court should defer to the
purpose and need statement that NPS properly formulated based on
Burnett’s interest as the survey applicant, as well as NPS’s
resource management interests.

- 44 -

(a)

Purpose and Need Statement

Here, NPS’s final definition of the project’s purpose was
consideration of Burnett’s “request to exercise its private oil
and

gas

exploration

resources.”
needed

to

rights

AR 176895.
determine

while

protecting

the

Preserve

“The proposed geophysical exploration is

whether

and

where

potentially

producing

geological structures might be located so that owners of those oil
and gas interests may exercise their private property rights.”
Id.

Plaintiffs believe that this purpose and need statement is

too narrow and was biased towards approval from the beginning.
An EA must include “brief discussions of the need for the
proposal [and] of alternatives as required by [NEPA].”
§ 1508.9(b); 42 U.S.C. § 4332(2)(E).

40 C.F.R.

“[A]gencies must look hard

at the factors relevant to the definition of purpose” and “should
take into account the needs and goals of the parties involved in
the application.”

Citizens for Smart Growth, 669 F.3d at 1212

(quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190,
196 (D.C. Cir. 1991)).

“[A]n agency may not define the objectives

of its action in terms so unreasonably narrow that only one
alternative from among the environmentally benign ones in the
agency’s power would accomplish the goals of the agency’s action,
and the EIS would become a foreordained formality.”

Id.

“Nor may

an agency frame its goals in terms so unreasonably broad that an
infinite number of alternatives would accomplish those goals and

- 45 -

the project would collapse under the weight of the possibilities.”
Id.

When responding to applications from private actors, agencies

“should take into account the needs and goals of the parties
involved in the application” when formulating a statement of
purpose and need.

Citizens for Smart Growth, 669 F.3d at 1212

(quoting Citizens Against Burlington, 938 F.2d at 199).
Over the course of nearly two years, NPS supplemented and
revised the EA, in consultation with Burnett and in response to
public comments.
as well.

The statement of purpose and need was revised

Compare AR 468 (first draft) with AR 176895 (final).

The statement properly considers NPS’s goals — to consider and act
on

Burnett’s

survey

proposal,

“while

protecting

the

Preserve

resources,” AR 176895, but it also identifies Burnett’s objective
as the applicant to investigate the nature and extent of private
mineral

rights,

precedent.

which

is

permissible

under

Eleventh

Circuit

The Court finds that the record establishes that NPS

complied with APA and NEPA in this regard.
(b)

Consideration of Less Damaging Alternatives

NEPA does not impose any minimum number of alternatives that
must be evaluated.

See N. Buckhead Civic Ass’n v. Skinner, 903

F.2d 1533, 1541–43 (11th Cir. 1990) (finding that an EIS with only
two

alternatives

studied

in

detail

was

sufficient);

Tongass

Conservation Soc’y v. Cheney, 924 F.2d 1137, 1140–42 (D.C. Cir.
1991) (finding that agency complied with NEPA when thirteen of

- 46 -

fourteen alternatives were eliminated as unreasonable and only one
alternative was discussed in detail in the EIS).

“Agencies only

have to consider reasonable alternatives, and we evaluate their
choices against a rule of reason.”
F.3d at 1212.

Citizens for Smart Growth, 669

The “obligation to consider alternatives under an

EA is a lesser one than under an EIS.”

Native Ecosystems Council

v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005); see
also Sierra Club v. U.S. Army Corps of Eng’rs, 464 F. Supp. 2d
1171, 1227 (M.D. Fla. 2006) (collecting cases).
Here, NPS considered ten alternatives in total, and three of
those alternatives in detail - 1. a no-action alternative 23; 2.
seismic survey using vibroseis buggies; and 3. seismic survey using
explosives.

See AR 176907-17 (describing alternatives 1, 2, and

3); AR 176917-18 (describing alternatives A-G that were considered
but dismissed).
First, NPS analyzed the “no action” alternative (Alternative
1), whereby NPS would not approve the plan of operations, “and
current activities and management would continue in the Preserve.”
AR 176907.

During scoping, NPS noted that this alternative would

not achieve Burnett’s need to survey its mineral resources, “and
likely would result in a taking of [Burnett] and Collier mineral
property rights.”

AR 002355.

Second, NPS considered the proposed

23

The “no action” alternative basically means that NPS would
consider leaving everything as-is, with no seismic survey.

- 47 -

action: a “Seismic Survey Using Vibroseis Buggies,” similar to the
Plan submitted by Burnett.

AR 176907-11.

Third, NPS analyzed the

alternative previously used for surveys in the Preserve: “Seismic
Survey Using Explosive Charges,” which employs dynamite buried in
drill holes as the energy source for a seismic survey.
17.

AR 176915-

NPS stated that from an environmental impact view, vibroseis

is better because additional impacts would occur from the act of
drilling the seismic shot holes.
three

alternatives

analyzed

AR 004662.

in

detail,

In addition to the
NPS

considered

and

dismissed seven alternatives which were infeasible, substantially
similar to alternatives already examined, or did not meet the
purpose and need for action.

AR 176917-18 (dismissed alternatives

A-G).
Plaintiffs specifically argue that NPS should have further
analyzed “the option of purchasing or trading to acquire the
private

mineral

alternative

G).

rights”
(Doc.

underlying
#36

at

28.)

the

Preserve

The

EA

(dismissed

describes

this

“purchase or trade” alternative, and NPS dismissed it from detailed
consideration “because it would not meet the project purpose and
need and is equivalent to the No Action alternative in terms of
impacts.”

AR 176918.

The Court finds that NPS reasonably concluded that pursuing
a purchase or trade for the mineral rights would not meet the
applicant’s need for action: surveying the private minerals that

- 48 -

are there.

See Citizens for Smart Growth, 669 F.3d at 1212.

Furthermore, as discussed above, the Department of Interior had
already explored at length the possibility of acquiring the Collier
mineral estate, which fell apart without Congressional approval.
Therefore, the Court finds that NPS’s failure to consider this
alternative in detail was not unreasonable.
Plaintiffs

other

arguments

regarding

NPS’s

failure

to

consider potentially less-damaging survey alternatives are also
unavailing.

These dismissed alternatives include the use of

smaller, more maneuverable vibroseis equipment; use of handheld
equipment;

conditionally

approving

partial

access;

and

alternatives that would reduce or avoid surface occupancy of the
Preserve altogether via use of aerial surveys.

(Doc. #36 at 18-

19.)
The
“Reduced

EA

specifically

Survey

Area”

mentions

alternative

these
was

alternatives.

dismissed

because

The
“the

required data would not be obtained” and the alternative would not
meet the project purpose and need — especially when “[t]he proposed
action already represents a scaled-down version of [Burnett’s]
original

survey

176918.

NPS

alternative,

area,”
also

which

by

roughly

considered

would

have

seventy-five

the

used

“No
“less

percent.

AR

Surface

Occupancy”

invasive

techniques

including aeromagnetic and gravity surveys,” but dismissed these
possibilities

because

they

are

“used

- 49 -

to

conceptualize

large

regions

but

are

not

suited

for

determining

locations, except in areas of salt domes.”

precise

drilling

AR 176917-18; 177084.

This alternative, too, would not meet the applicant’s need of
acquiring the relevant mineral data.

Finally, Burnett and NPS

discussed the possibility of using smaller vibroseis buggies, but
Burnett ultimately elected to use equipment it was more familiar
operating, which was accepted by the NPS.

AR 004665; 004870.

And

although plaintiffs make much of the fact that the gross vehicle
weight of the vibroseis buggies is in excess of 17,000 pounds, the
buggies

will

utilize

“balloon”

or

“flotation”-type

tires

to

substantially reduce the weight on the surface to 26 pounds per
square inch.

AR 164182.

These terra tires will also result in

less potential impact to plant roots due to the lack of tread.
Id.
When alternatives are rejected from consideration in an EIS,
there

is

no

duty

to

perform

in-depth

analyses

of

these

alternatives.

40 C.F.R. § 1502.14(a) (stating that agencies shall

“[r]igorously

explore

alternatives,”

but

and

when

objectively

alternatives

evaluate
have

been

all

reasonable

rejected

from

consideration, agencies need only “briefly discuss the reasons for
their having been eliminated” (emphasis added)).

Here, there is

nothing demonstrating that NPS’s choice to exclude an in-depth
analysis of the rejected alternatives was inappropriate, as a brief
discussion is all that NEPA requires.

- 50 -

NPS discussed in the EA the

various alternatives, fulfilling NEPA’S requirement to “briefly”
discuss the rejected alternatives.

The Court finds that the NPS’s

actions were not arbitrary or capricious, and did not violate the
APA or NEPA.
(3)

“Hard Look” at Minimization and Mitigation Measures (Count
II)

Plaintiffs argue that NPS violated NEPA and the APA by failing
to take a “hard look” at the forty-seven mitigation measures,
rendering the measures “useless.”

Plaintiffs argue that the

mitigation measures are not supported nor studied by NPS to see if
they will be effective, and there is no backstop in the event the
mitigation measures do not work as their effectiveness is based
upon subjective criteria at NPS personnel’s open-ended discretion.
When an agency “relies on mitigation measures to offset the
adverse impacts of an action,” its analysis “must reflect that a
‘hard look’ was taken . . . at the mitigation measures relied on.”
Nat’l Parks Conserv. Ass’n, 46 F. Supp. 3d at 1321.

An analysis

“that simply states mitigation measures without evaluating their
effectiveness is useless in assessing whether adverse impacts
would in fact likely be mitigated.”

Id.

A finding of no significant impact based upon mitigation
measures is permissible.

“When mitigation measures compensate for

otherwise adverse environmental impacts, the threshold level of
‘significant impacts’ is not reached so no EIS is required.”

- 51 -

C.A.R.E. Now, Inc. v. F.A.A., 844 F.2d 1569, 1575 (11th Cir. 1988)
(concluding that the utility of NEPA was apparent in that case as
without NEPA the agency would not likely have imposed mitigations
as conditions for completion of the project).

Mitigation measures

must be “more than a possibility” for an agency to rely upon them
in a FONSI.

Sierra Club, 464 F. Supp. 2d at 1224–25, aff’d, 508

F.3d 1332 (11th Cir. 2007) (quoting Wyo. Outdoor Council v. U.S.
Army Corps of Eng’rs, 351 F. Supp. 2d 1232, 1250 (D. Wyo. 2005)).
First, the measures must be a condition of approval or otherwise
integrated into the proposed action.

Id.

Second, there must be

support for the agency’s conclusion that the mitigation measures
will create “an adequate buffer so as to render such impacts so
minor as to not warrant an EIS.”

Id.

See also C.A.R.E. Now, 844

F.3d at 1575 (courts “must” consider mitigation measures where
“they were imposed as conditions of the agency action”).
Here, the EA sets forth 47 measures to mitigate the effect of
the survey which “will apply as conditions of approval” and “as an
additional assurance that the impacts of the selected action will
be lessened and will not be significant.”
generally

AR

164184-92.

The

47

AR 164179-80; see

minimization

and

mitigation

measures are incorporated as mandatory components of the selected
action.

AR 164179 (all minimization and mitigation measures “will

apply as conditions of approval”).

- 52 -

The mitigation measures at issue raised by plaintiffs in their
brief on the preliminary injunction (Doc. #36) and at oral argument
include the requirement that Burnett decompact soils and restore
ruts, depressions, and vehicle tracks with rakes “to original
contour conditions concurrent with daily operations using shovels
and rakes to prevent the creation of new trails” 24; avoid soft
soils

and

standing

conditions” 26.

waters

25

;

and

(Doc. #36 at 20-21.)

operating

in

“dry

season

The Court will examine each

in turn.
(a)

Soil Restoration

With regard to the use of shovels and rakes to restore rutted
soil, NPS explained in the Wetland Statement of Findings that “[a]
similar restoration protocol was followed with regard to the 1999
3-D seismic survey at Raccoon Point,” where mitigation included
restoration of ruts and vehicle tracks resulting from
seismic operations to original contour conditions.
Restoration and monitoring of nine locations showed
vegetation restoration “success” in all locations after
three years. “Success” in areas deemed to be disturbed
24

Restoring “[r]uts, depressions, and vehicle tracks
resulting from field operations . . . to original contour
conditions concurrent with daily operations using shovels and
rakes to prevent the creation of new trails.” AR 164187 (measure
18).
25

“Avoid[ing] hydrological impacts by re-routing seismic
survey activities around soft soils and standing water areas,
thereby
reducing
the
risk
for
rutting
and
subsequent
channelization.” AR 164185 (measure 7).
26

Conducting the survey only in dry season conditions, “to
avoid disturbance to wetland areas with visible standing water or
saturated soil conditions.” AR 164184-85 (measure 1).

- 53 -

by seismic survey activities was defined as when “the
achievement of recruited percent coverage meets or
exceed 80 percent of the undisturbed adjacent percent
coverage” (WilsonMiller, Inc. 2000).
AR 164258.

See also AR 170347-67 (noting that after one year,

four of nine disturbed areas at Raccoon Point “had recovered
sufficiently
field”).

[to]

where

they

could

not

be

identified

in

the

Although plaintiffs and their consultants expressed the

opinion that restoration of soil conditions would not work, see,
e.g., AR 163750, NPS considered these opposing views and found
them

unpersuasive.

plaintiffs’

In

consultant

this

provided

regard,
“no

NPS

staff

indication

noted

that

that

[he]

has

visited the site,” and “no acknowledgement of past successful NPS
restorations following oil and gas activities.”

AR 164122.

Based

on its own experience with this technique in the Preserve, NPS
reasonably concluded that restoration of soil conditions would be
an effective way to mitigate soil and hydrology impacts from survey
vehicles.

Defendants submitted the Declaration of Don Hargrove,

an Environmental Protection Specialist for NPS, who reiterated
that the use of hand tools to restore vehicle ruts to the original
contour conditions is a technique that has been used successfully
in

previous

geophysical

survey

projects

within

the

Preserve.

(Doc. #47-1, ¶ 18.)
Hargrove also states that mitigation measure number 22 in the
FONSI further requires that “soils will be decompacted and returned

- 54 -

to match the original grade.”

(Doc. #47-1, ¶ 18.)

Elevations

will be determined from adjacent, undisturbed seasonal wetlands.
This is how NPS routinely determines the proper elevation for trail
stabilization to ensure that vehicle tracks will not affect sheet
flow.

Therefore, pre- and post-impact topographic surveys are

unnecessary.

(Id.)

Thus, NPS provided adequate support for the

effectiveness of such a mitigation measure, which satisfies the
“hard look” requirement of NEPA.
(b)

Avoidance of Soft Soils

With regard to the measure that vehicles must avoid soft
soils, Appendix B to the EA provides that
[s]eismic survey vehicles will avoid operations in
standing water or soils saturated at or just below the
surface to significantly decrease the likelihood of soil
and plant disruption. In addition, if the vehicle tires
begin to break the soil surface, the Operator will
retreat and move around the soft soils.
AR 164253.

The EA then explains that “NPS would be consulted to

determine access to off-trail source points in environmentally
sensitive areas.”

AR 176918.

And “[n]o Vibroseis operations will

be undertaken without prior NPS approval of proposed routes.”
176923.

Indeed the EA contemplates that “NPS staff and inspectors

will be heavily involved throughout field operations.”
NPS

AR

personnel

will

help

identify

impacted

AR 164187.

areas,

restoration activities, and oversee monitoring efforts.
#47-1, ¶¶ 18, 22; AR 164192.

direct
(Doc.

NPS has provided adequate support

- 55 -

for its assertion that this mitigation measure will lessen the
environmental impacts based upon the agency’s experience.

NPS has

satisfied the “hard look” requirement of NEPA.
(c)

Dry Season Conditions

Finally,

plaintiffs

argue

that

the

mitigation

measure

limiting survey operations to “dry season conditions” when soils
and vegetation are more resilient to vehicular activity will be
ineffective because the EA does not explicitly define a measureable
threshold for when “dry season conditions” exist or otherwise
define

the

time

period

adequately.

In

this

regard,

the

EA

explains:
[t]he period from November through mid-May is considered
the dry season, although in any given year the dry season
could begin and/or end earlier or later than these dates.
In general, the water table across the site is at the
surface during the wet season and within a few feet below
the ground surface during the dry season. During the
dry season, there is typically standing water only in
the deepest portions of the wetlands.
AR

176958-59.

NPS

elaborated

in

responses

to

comments

that

“[m]itigation measure #1 further restricts the survey to dry season
conditions, so as not to allow the survey to occur during those
months even if conditions are wetter than normal.”

AR 164222.

See also AR 093679-80 (email from NPS staff explaining factors
relevant to the Preserve’s dry season).
Defendants argue that a specific date range for the dry season
is

not

required

as

NEPA

allows

- 56 -

for

adaptive

management

to

continually

review

and

evaluate

soil

conditions.

“NEPA

specifically allows agencies to utilize adaptive management plans
that . . . monitor the real environmental effects of a project and
allow the [agency] to adapt its mitigation measures in response to
trends observed” — i.e., the levels of precipitation and saturation
in the Preserve.

W. Watersheds Project v. Bureau of Land Mgmt.,

No. 3-11-cv53-HDM-VPC, 2011 WL 1630789, at *3 (D. Nev. Apr. 28,
2011); see Nat’l Park Conservation Ass’n, 46 F. Supp. 3d at 1279
(affirming

adaptive

management

planning

for

ORV

use

in

the

Preserve).
There is support in the record for NPS’s conclusion that the
operations will occur in the dry season and may rely on its own
expertise

in

making

technical

determinations

such

as

when

conditions in the Preserve will be ideal for operations.

See

Marsh, 490 U.S. at 377-78 (“Because analysis of the relevant
documents requires a high level of technical expertise, we must
defer

to

the

informed

discretion

of

the

responsible

federal

agencies” which may rely on the reasonable opinions of its own
qualified experts.); AR 093679 (NPS personnel responding to public
comment regarding the dry season, noting that there is variability
when the dry season occurs, generally occurring Nov. 1 to midMay).

NEPA

determinations
operations.

allows

NPS

regarding

the

when

flexibility
conditions

are

to

make

dry

on-site

enough

for

How wet the soil is on a day-to-day basis is something

- 57 -

that generally would not lend itself to precise definition, as
plaintiffs propose.

Thus, the Court cannot say that the agency

decision in this regard was arbitrary or capricious.

NPS took a

sufficient “hard look” under NEPA.
(4)

Failure to Prepare an EIS (Count I)

Plaintiffs argue that NPS’s FONSI and decision to forego an
EIS for the Burnett Plan failed to meet the four requirements set
forth in Hill v. Boy.

Hill v. Boy states that “in determining

whether an agency’s decision not to prepare an EIS is arbitrary
and capricious,” courts consider four criteria: (1) “‘the agency
must

have

accurately

identified

the

relevant

environmental

concern’”; (2) “‘once the agency has identified the problem it
must have taken a “hard look” at the problem in preparing the EA’”;
(3) “‘if a finding of no significant impact is made, the agency
must be able to make a convincing case for its finding’”; and (4)
“‘if

the

agency

does

find

an

impact

of

true

significance,

preparation of an EIS can be avoided only if the agency finds that
changes or safeguards in the project sufficiently reduce the impact
to a minimum.’”

Hill, 144 F.3d at 1450 (quoting Coal. on Sensible

Transp., Inc. v. Dole, 826 F.2d 60, 66-67 (D.C. Cir. 1987)).
An agency initially must determine whether the action to be
taken constitutes a “major federal action” - that is, an action
“significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(C); 40 C.F.R. § 1508.18.

- 58 -

If the agency determines

that a proposed activity is a “major federal action,” the agency
must prepare a detailed statement, the EIS.

Id.

When it is

unclear whether a proposed activity is a “major federal action”
requiring

an

EIS,

the

agency

preliminary statement - an EA.

typically

prepares

a

shorter,

Highway J. Citizens Grp. v. Mineta,

349 F.3d 938, 953 (7th Cir. 2003).

An EA is a “rough-cut, low-

budget EIS” which is mandated when a proposed action is neither
one normally requiring an EIS nor one categorically excluded from
the EIS process.
information,

Id.; 40 C.F.R. §§ 1501.4; 1508.9.

the

EA

“provide[s]

evidence

and

Among other

analysis

that

establish[es] whether or not an EIS or a Finding of No Significant
Impact

(‘FONSI’)

determines

that

should
a

be

proposed

prepared.”
activity

Id.

is

not

If
a

the

“major

agency
federal

action,” it must produce a FONSI, which is a document “briefly
presenting the reasons why an action . . . will not have a
significant
1508.13.
factual

effect

on

the

human

environment.”

40

C.F.R.

§

Whether an action will have significant impacts is a
determination

which

“implicates

expertise” and is entitled to deference.

substantial

agency

Marsh, 490 U.S. at 376.

The task for a reviewing court is to determine whether the agency
“examine[d] the relevant data and articulate[d] a satisfactory
explanation

for

its

action

including

a

‘rational

between the facts found and the choice made.’”

connection

Motor Vehicle

Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,

- 59 -

43 (1983) (quoting Burlington Truck Lines v. United States, 371
U.S. 156, 168 (1962)).

NEPA regulations describe ten factors that

agencies should consider in evaluating the intensity of impacts,
40 C.F.R. § 1508.27(b)(1)-(10), which are also set forth in the
CEQ regulations.
Here, plaintiffs argue that at least five of the intensity
factors

indicate

warranting

an

that

EIS:

the

(1)

Plan

there

is

a

will

“major
be

federal

impacts

to

action”,
“[u]nique

characteristics of the geographic area,” including “park lands,”
“wetlands,”

and

1508.27(b)(3);

“ecologically
(2)

the

sensitive

effects

of

areas,”

the

Plan

40

C.F.R.

are

§

“highly

controversial” (as shown by plaintiffs’ expert reports), Id. §
1508.27(b)(4); 43 C.F.R. § 46.30 (defining “[c]ontroversial”); (3)
as the first phase of a planned four-phase seismic survey, the
approval of the Plan “may establish a precedent for future actions
with significant effects,” 40 C.F.R. § 1508.27(b)(6); (4) the Plan
is

likely

to

“adversely

affect

an

endangered

or

threatened

species,” Id. § 1508.27(b)(9); and (5) the action “is related to
other actions with individually insignificant but cumulatively
significant impacts,” Id. § 1508.27(b)(7).

Plaintiffs further

argue that NPS improperly relied on vague, untested, and unlikelyto-succeed

mitigation

measures

to

avoid

preparing

an

EIS.

Defendants respond that an EIS is only required if the action will
cause significant impacts to these areas, which the NPS properly

- 60 -

concluded would not occur here. 27

The Court will consider each

argument in turn.
(a)

Parklands, Wetlands, and Ecologically Sensitive Areas

Plaintiffs first assert that an EIS was required due to the
“[u]nique

characteristics

of

the

geographic

area,”

such

as

“parklands,” “wetlands,” and “ecologically sensitive areas” within
the meaning of section 1508.27(b)(3).
anticipated

adverse

impacts

to

water

NPS concluded that the
quality,

hydrology,

and

subsurface geologic resources were expected to be localized and
short-term, likely within one growing season, similar to the
impacts from recreational ORV use analyzed in the 1992 GMP/EIS,
2000 ORV Plan, and the 2010 Addition GMP/EIS.

AR 164195.

“All

potential impacts to water quality, hydrology, and subsurface
geologic

resources

are

addressed

by

the

plan

design

and/or

mitigation measures (Minimization and Mitigation Measures Nos. 1,
7, 11, 18, 23, and 26) and would be avoided to a large extent by
conducting work during the dry season.”

AR 164196.

Additionally, vegetation; habitat; soils; protected plants;
hydrology;

subsurface

geological

resources;

and

impact topics selected for analysis in the EA.

27

wetlands

were

AR 176899-900.

It is worth noting that the NPS has already prepared three
Environmental Impact Statements related to the impacts of oil and
gas and/or ORVs in the Preserve, which were incorporated by
reference into the EA here. AR 176891.

- 61 -

With regard to wetlands, the FONSI for the EA included a Wetland
Statement of Findings (“Wetland Statement”).

AR 164225-64.

After

discussions with the NPS, a review of existing soil surveys,
vegetation mapping, and aerial photographs, it was determined that
a significant majority of the seismic survey area consisted of
wetlands, thus, the report was prepared.

AR 164234.

The Wetland

Statement determined that there would be no permanent loss or
degradation of wetland function, only temporary adverse impacts.
AR 164250.

And any impacts would be substantially reduced by the

minimization and mitigation measures.

AR 164251.

The Wetland

Statement also extensively discussed the minimization of potential
vegetation,
because

hydrologic,

compensatory

and

geologic

mitigation

was

impacts,
proposed

concluding
for

that

“unavoidable

wetland impacts,” the project was in compliance with Director’s
Order 77-1 and Executive Order 11990, “Protection of Wetlands.”
AR 164264.
As required by Hill v. Boy, once an environmental concern is
identified, the NPS is only required to take a “hard look” at the
problem.

In this case, the survey design requires preliminary

scouting using GIS data and in-field scouts to help survey crews
avoid sensitive areas, all of which were examined and discussed in
the

Wetland

Statement.

AR

164186.

Furthermore,

“[u]se

of

motorized vehicles will be avoided in [Important Resource Areas]
and other sensitive resource areas within the Preserve identified

- 62 -

by NPS,” and NPS will review and approve all proposed routes before
vibroseis field operations occur.

AR 164183; 164187; 164192.

Based upon a review of the record, the impacts in these areas were
identified and reviewed by NPS which reasonably found that the
impacts on parklands and wetlands not to be significant enough to
warrant an EIS.

NPS did take the “hard look” in compliance with

the APA and NEPA.
(b)

Effects of the Plan are Highly Controversial

Plaintiffs next assert that an EIS was required because the
Plan is “highly controversial” as over 65,000 public comments were
submitted.

The FONSI did address these concerns, stating that

for NEPA controversial refers to circumstances where a
substantial dispute exists as to the environmental
consequences of the proposed action and does not refer
to the existence of opposition to a proposed action, the
effect of which is relatively undisputed (43 CFR 46.30).
While the NPS notes there is opposition to the proposed
action, there is no substantial dispute concerning the
effects of the proposed action.
AR 164216 (emphasis in original).

NPS further stated that it

understands that there is opposition, but
the NPS did not find any information in the comment
letters or attachments that would give rise to a
substantial controversy over the environmental impacts
of the selected action.
The NPS reviewed the two
reports that were submitted, one from Quest Ecology and
one from McVoy, and did not find that new information
was provided that would demonstrate a controversy over
impacts. It does not appear that the scientists who
prepared the reports visited the site or are familiar
with the site and history of the Preserve. Conclusions
in the Quest report claim severe impacts without any
basis provided in the report. The NPS disagrees with

- 63 -

the conclusions, which exaggerate the potential for
exotic plant introduction, erroneously asserts that
dredge and fill permits will be required, and makes
speculative predictions concerning impacts that have not
been observed with years of off-road vehicle (ORV) use
at the Preserve. The McVoy report fails to consider the
successful NPS restorations following oil and gas
activities and does not include information that would
give rise to a substantial controversy over impacts.
AR 164216.
The “highly controversial” significance factor is triggered
only when there is “a substantial dispute about the size, nature
or effect of a federal action” — not merely “the existence of
opposition to a use.”

Ga. River Network v. U.S. Army Corps of

Eng’rs, 334 F. Supp. 2d 1329, 1338 (N.D. Ga. 2003).

“Many courts

have found ‘something more’ to be scientific or other evidence
that reveals flaws in the methods or data relied upon by the agency
in reaching its conclusions.”

Id.

“These cases teach that even

the submission of declarations “from numerous experts who claim []
that [a project] will have significant adverse impacts on [an area]
... alone fail[s] to rise to the level of ‘controversy’ under
NEPA.”

Id. (quoting Sierra Club v. Van Antwerp, 719 F. Supp. 2d

58, 67–68 (D. D.C. 2010) aff’d in part, rev’d in part on other
grounds, 661 F.3d 1147 (D.C. Cir. 2011), as amended (Jan. 30,
2012); but cf. Humane Soc’y of U.S. v. Dep’t of Commerce, 432 F.
Supp. 2d 4, 19–20 (D. D.C. 2006) (finding agencies’ decision not
to prepare an EIS to be highly controversial based on comments

- 64 -

from

the

plaintiff

and

other

agencies

indicating

their

disagreement with the agencies’ conclusions).
Here, NPS reasonably found that “there is no substantial
dispute
164216.

concerning

the

effects

of

the

proposed

action.”

AR

Plaintiffs have not identified any underlying flaws in

NPS’s analysis of the impacts from the Plan, and opposition alone
is not enough to require that an EIS be performed.

Thus, the Plan

was not a highly controversial project that required preparation
of an EIS under NEPA.
(c)

Precedent for Future Actions

Third,

plaintiffs

argue

that

approval

of

the

Plan

“may

establish a precedent for future actions with significant effects”
because Burnett plans to seek approval for additional phases.
C.F.R. § 1508.27(b)(6).
for this assertion.

40

The Court finds no basis in the record

Responding to public comments, NPS explained

that it would independently “evaluate any requests for future
exploration, which at this point are speculative, and determine
the appropriate NEPA pathway at that time.”

AR 177076.

In

correspondence with Burnett months before the EA was complete, NPS
specifically declined to rely on past seismic-survey FONSIs to
prematurely

justify

a

FONSI

for

Burnett’s

proposal.

See

AR

048633-34.

Accordingly, there is no indication that this action

is precedential in a way that will bind NPS to preparing EAs rather

- 65 -

than EISs in the future, or to automatically approve future seismic
survey proposals.
(d)

Adverse Effects on Endangered or Threatened Species

Next, plaintiffs assert that the Plan is likely to “adversely
affect

an

endangered

or

threatened

species,”

40

C.F.R.

§

1508.27(b)(9), because the EA concluded that “[s]hort-term adverse
impacts to protected wildlife and other wildlife resources . . .
are expected.”

AR 164195.

Plaintiffs brief does not explain how

these impacts will rise to the level of significance which would
require an EIS, which is more fully discussed in the context of
the ESA claims, below.
The EA describes how Burnett’s survey could result in wildlife
“avoidance behaviors” and “short-term stress during their breeding
season,” but notes that mortality and injury to wildlife is “not
anticipated.”

AR 176975.

Further, the approved survey includes

a multitude of minimization and mitigation measures aimed at
protecting wildlife — for example, creating minimum buffers around
listed species and wading birds; imposing seasonal restrictions on
survey activities; and requiring wildlife training for survey
crews.
(e)

Cumulative Impacts & Mitigation Measures

Plaintiffs

again

raise

a

cumulative

impacts

argument,

asserting that significant impacts exist (and an EIS is required)
if

an

action

“is

related

to

other

- 66 -

actions

with

individually

insignificant but cumulatively significant impacts.”
1508.27(b)(7).

40 C.F.R. §

Plaintiffs reiterate that that NPS failed to take

a hard look at all four phases of the Plan and ignored other
activities

and

developments

in

the

region,

avoiding a finding of significant impacts.

thereby

illegally

Plaintiffs further

argue that NPS improperly relied on vague, untested, and unlikelyto-succeed mitigation measures to avoid preparing an EIS.
As discussed above, the Court has found that NPS took a “hard
look” at the cumulative impacts and mitigation measures and was
reasonable in finding no significant impacts from the survey.
Court

finds

that

the

NPS’s

actions

were

not

arbitrary

The
or

capricious, and did not violate the APA or NEPA.
IV.

9B Regulations Claim (Count V) 28

In 1978, pursuant to its Organic Act, the NPS promulgated
service-wide

regulations

covering

non-federal

oil

and

gas

operations within national parks (the “9B Regulations”), 36 C.F.R.
§§ 9.30-9.52.

These regulations apply to all mineral rights that

must be accessed through national parks, including the Collier’s
mineral estate under the Preserve.

28

Count V is brought under the version of 36 C.F.R. Part 9B
that was in effect in May 2016. See AR 164218 (explaining that
NPS approved Burnett’s Plan under the rules in effect at that
time).
The 9B Regulations were updated effective December 5,
2016. See 81 Fed. Reg. 77,972; 77,972 (Nov. 4, 2016), but retain
the requirements at the core of plaintiffs’ claim. See 36 C.F.R.
§§ 9.83(f), .85(c)(2), .105(a)(1), and .110(c).

- 67 -

Among other things, the 9B Regulations require operators to
submit an extensive plan of operations that must be approved by
NPS before extracting subsurface minerals.

Relevant here, the 9B

Regulations require all proposed oil and gas plans of operations
to include, as appropriate, a description of “[a]ll reasonable
technologically feasible alternative methods of operations, their
costs,

and

their

9.36(a)(16)(v).

environmental
The

agency

effects.”

“shall

not

36

approve

C.F.R.
a

plan

§
of

operations” that “does not satisfy each of the requirements of §
9.36 applicable to the operations proposed.” 29

Id. § 9.37(a)(4).

Park Service regulations also specify that the agency “shall not
approve a plan of operations . . . [u]ntil the operator shows that
the

operations

will

be

conducted

in

a

manner

which

utilizes

technologically feasible methods least damaging to the federallyowned or controlled lands, waters and resources of the unit while
assuring the protection of public health and safety.”

36 C.F.R.

§ 9.37(a)-(a)(1).

29

The Superintendent of the Big Cypress National Preserve
determines the information and materials which must be submitted
that are pertinent to the type of operations proposed. This is
the only information that is required to be submitted from Section
9.36(a)(1) through (18).
See 36 C.F.R. § 9.36(c); see also 43
Fed. Reg. 57,822, 57,824 (Dec. 8, 1978) (9B Regulations Final Rule)
(The 9B Regulations “are designed with flexibility so that not all
the information identified in § 9.36(a)(1)-(18) may be required by
the Superintendent to evaluate the impacts of the operations,” and
“[o]nly that information required for decisionmaking – information
that is appropriate to the proposed operations – will be
requested.”).

- 68 -

In Count V, plaintiffs allege that the Plan did not contain
any description of technologically feasible alternative methods of
operations,

their

Additionally,

none

costs,

or

of

NPS’s

the

their
NEPA

environmental
documents

effects.

contain

any

description of the costs associated with the Plan, or the costs of
technologically feasible alternatives.

Plaintiffs also believe

that the Plan violated the 9B Regulations because it failed to
evaluate

numerous

technologically

feasible

alternative

survey

methods that could be less damaging to Preserve resources, failed
to evaluate more effective mitigation measures (such as requiring
scientifically

tested

and

verified

techniques

to

more

fully

restore impacts to soils, vegetation, and hydrology, or requiring
comprehensive wildlife, vegetation, and topographic surveys in
advance of any of the activities). 30
Here, Burnett identified the alternative explosives method in
the Plan and other documents it provided (e.g., the draft EA), and
provided a comparative analysis of how a survey using explosives
would be conducted and its environmental effects.

See, e.g., AR

003680-82, 000515-17 (drafts); see also AR 176915-17 (final EA).
NPS found that the Plan satisfied 9B’s regulatory requirements.

30

Defendants assert that plaintiffs waived the 9B Regulations
argument by failing to raise it with any specificity during the
administrative process.
Yet a review of the record shows that
plaintiff raised the regulations during the administrative
process. AR 057334-35; 057352; 057399-400.

- 69 -

AR 164200.

Burnett’s Plan describes both of the reasonable and

technologically
Burnett’s
vibroseis.

feasible

private

methods

mineral

rights

for
—

adequately

shot-hole

surveying

drilling

and

And as discussed above, the Court has found that NPS

took a “hard look” at viable alternatives to the Plan.

The Plan

also describes the environmental effects of these methods, and
outlines why vibroseis technology has fewer impacts than dynamite.
The Plan discusses costs and benefits of the two survey methods,
explaining the efficiency of the vibroseis survey and comparative
difficulty of shot-hole drilling.

AR 003700; 177012 (with a

“greater amount of labor associated with drilling the holes, this
alternative would take approximately twice as long . . . .”).
With regard to cost of the Plan compared with other feasible
alternatives, while Burnett did not provide a dollar figure for
the expense of a survey using explosives or vibroseis, it did state
that explosives method would require more vehicles, surveyors, and
time, and would be more impacting.

AR 176915.

NPS personnel

determined that the explosives alternative would be more costly
than the proposed action.

See, e.g., AR 004671 (“From an economic

point of view I understand the applicant’s selection of vibroseis
equipment that cost less to operate. . . An explosives survey would
also contain added costs for the purchase of explosives, permits,
licenses,

explosives

storage,

explosive

helicopter, and overall safety issues.”).

- 70 -

distribution

by

Although plaintiffs argue that the approval of the Plan is
not in accordance with the law because none of NPS’s NEPA documents
contain a description of the costs associated with the Plan, or
the costs of the technologically feasible alternatives, the Court
finds

no

requirement

in

the

9B

Regulations

that

the

cost

information be contained in NEPA documents, must less specific
dollar figures.

See 30 C.F.R. § 9.36(a)(16)(v).

Rather, the

Regulations state that cost information may be requested by the
Superintendent if it is appropriate to the proposed operations.
Id.

Apparently NPS was satisfied with the information Burnett

provided because it stated in the FONSI that the Plan satisfied
the 9B Regulations.

AR 164200.

This discussion of cost at AR

004671, while brief, is a reasonable conclusion reached by NPS
based upon all of the information provided to NPS regarding the
alternatives, and plaintiffs have provided the Court no authority
for the proposition that cost figures are required by the 9B
Regulations.
clarity

if

“Courts ‘will uphold a decision of less than ideal
the

agency’s

path

may

reasonably

be

discerned.’”

Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993)
(quoting Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974)).
presume

that

regulations.”

an

agency

“Absent evidence to the contrary, we
has

acted

in

accordance

Sierra Club, 295 F.3d at 1223.

- 71 -

with

its

V.

The Three APA and ESA Claims (Counts VI-VIII)

In Counts VI through VIII, plaintiffs allege that NPS and FWS
(the “Agencies”) violated the ESA and the APA by obtaining an
arbitrary and capricious Biological Assessment from the FWS and
violating various independent duties under the ESA.
¶¶ 202-23.)

(Doc. #40,

Specifically, plaintiffs allege that the Agencies

violated the ESA and APA during their consultations regarding
Burnett’s Plan in various ways (Count VI); failed to reinitiate
consultation under the ESA regarding Burnett’s Plan (Count VII);
and failed to reinitiate consultation under the ESA regarding the
Preserve Management Plans (Count VIII).
A. Endangered Species Act and APA
The Endangered Species Act of 1973, 16 U.S.C. § 1531-44 (ESA),
is

described

as

“the

most

comprehensive

legislation

for

the

preservation of endangered species ever enacted by any nation.”
Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).

The U.S.

Fish and Wildlife Service (FWS) is the agency responsible for
implementing the ESA.

The purpose of the ESA is “to provide a

means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved” and “to provide a
program

for

the

conservation

threatened species.”

of

such

endangered

16 U.S.C. § 1531(b).

species

and

“The plain intent of

Congress in enacting this statute was to halt and reverse the trend

- 72 -

toward species extinction, whatever the cost.”

Tenn. Valley

Auth., 437 U.S. at 184.
Under certain circumstances, the ESA requires that a federal
agency consult with the appropriate expert agency.
its

implementing

regulations

set

out

detailed

Section 7 and
consultation

procedures designed to provide agencies with expert advice to
determine the biological impacts of their proposed activities.
U.S.C. § 1536(b); 50 C.F.R. Part 402.

16

In determining whether

formal consultation with the FWS is necessary, the federal agency
first prepares a Biological Assessment (done here) which evaluates
the potential effects of its proposed action on listed and proposed
species

and

determines

designated

whether

the

and

proposed

species

adversely affected by the action.

or

critical

habitat

are

habitat
likely

50 C.F.R. § 402.12(a).

to

and
be

If the

Biological Assessment determines that an action “may affect” a
listed

species

required.

or

critical

habitat,

formal

consultation

is

If formal consultation is necessary, the FWS is then

responsible for formulating a “biological opinion as to whether
the action, taken together with cumulative effects, is likely to
jeopardize the continued existence of listed species or result in
the destruction or adverse modification of critical habitat.”

50

C.F.R. § 402.14(g)(4).
The ESA prohibits the “taking” of any member of a listed
endangered or threatened species.

- 73 -

“Take” is defined broadly as

“to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct.”
U.S.C. § 1532(19).

16

The ESA also directs federal agencies to

“insure that any action authorized, funded, or carried out by such
agency . . . is not likely to jeopardize the continued existence
of

any

endangered

critical habitat.

species

or

threatened

16 U.S.C. § 1536(a)(2).

species”

or

destroy

When a federal agency

has been advised that the proposed action will not jeopardize the
continued existence of listed species but will result in the taking
of some species incidental to that action, the FWS’s biological
opinion must include an incidental take statement specifying the
amount or extent of anticipated take.

If the FWS decides that no

take is likely from the implementation of a proposed federal
action, no incidental take statement is required in the biological
opinion.

See generally Defenders of Wildlife, 733 F.3d at 1111-

13.
An agency’s compliance with the ESA is reviewed under the
deferential APA standard.

Defenders of Wildlife v. Bureau of

Ocean Energy Mgmt., 684 F.3d at 1248.
B. Plaintiffs’ Challenge on the Adequacy of the NPS’s Consultation
with FWS Regarding Burnett’s Plan (Count VI)
(1)

Unlawfully Narrow Action Area

- 74 -

Plaintiffs allege that the Agencies analyzed an unlawfully
narrow “action area,” 31 ignoring areas affected by the use of the
off-site staging area and omitting a necessary buffer to account
for Florida panther movements.
206.)

(Doc. #94, p. 6-7; Doc. #40, ¶

Plaintiffs assert that the Agencies did not explicitly

define the action area for Burnett’s Plan, and their implicit
definition of the action area omitted the off-site staging area
and the areas of the Preserve impacted by travel to/from the
staging area, which was arbitrary and capricious in violation of
Section 7.

In support, plaintiffs point to the 25-mile buffer

zone used when NPS authorized primary ORV trails in the Addition
GMP to reflect “the wide ranging movements of [panther] juveniles
and the large home territories of adults” and include all lands
that “may experience direct and indirect effects.”
174170.
mile

AR 174095-96;

Plaintiffs argue that the Agencies’ failure to use a 25-

buffer

for

Burnett’s

Plan

arbitrarily

and

capriciously

ignored habitats that will be affected directly and indirectly by
Burnett’s activities, including ORV use.
In response, NPS points out that although the overall survey
area

encompasses

approximately

110

square

miles,

the

data

acquisition operations will be limited to an approximately 2.5

31

The “action area” for Section 7 consultations includes “all
areas to be affected directly or indirectly by the Federal action
and not merely the immediate area involved in the action.” 50
C.F.R. § 402.02.

- 75 -

square mile area per day, which is very different from the Addition
GMP.

FWS 004938.

Daily scouting of the survey lines will be

conducted by a qualified ecologist to avoid potential impacts to
wildlife.

FWS 004973 (biological assessment) FWS 006624-29 (FWS

concurrence letter).
FWS

established

For purposes of this survey, NPS argues that

species-specific

buffer

zones

limiting

daily

survey activities, where appropriate, and nothing more is needed.
See FWS 006625 (500-foot buffer for helicopter activity above
active caracara nests and 500-foot buffer for helicopter activity
around active Everglade snail kite nest); FWS 006626 (200-foot
buffer

for

helicopter

activity

above

red-cockaded

woodpecker

cavities; 200-foot buffer for foot or ORV traffic around redcockaded

woodpecker

clusters;

500-foot

buffer

for

helicopter

activity above wood stork nests; and 328-foot buffer for foot or
ORV traffic around wood stork nests); FWS 006626-27 (avoidance of
Florida bonneted bat roost sites and buffer of 328-656 feet around
Florida panther den sites).
Plaintiffs previously questioned the scope of the action area
used by FWS for purposes of its ESA analysis, FWS 007011, and in
response FWS reaffirmed it’s “not likely to adversely affect”
determination concerning potential effects of the Burnett survey.
FWS

007019.

FWS

explained

that

“[b]ased

on

the

proposed

conservation measures and the temporary nature of the seismic
survey and associated impacts (i.e., one-pass design, 18-week

- 76 -

project duration), the Service agreed with the NPS determination
that any adverse effects to listed species were insignificant or
discountable.”

FWS 007018.

Deference to an agency’s decision regarding the determination
of an appropriate action area is recognized and in order for the
Court

to

find

that

the

Agencies’

decision

was

arbitrary

and

capricious, the Court must find that “a clear error in judgment”
was committed.

See North Buckhead Civil Ass’n v. Skinner, 903

F.2d 1533, 1538 (11th Cir. 1990).

In challenging a decision by

other agencies, plaintiff “bears a difficult burden in providing
[NPS] was arbitrary and capricious in relying on these decisions,
which were entirely within those agencies’ areas of expertise.”
Sierra Club, 295 F.3d at 1222.
As noted above, an “action area” for purposes of the ESA is
defined as “all areas to be affected directly or indirectly by the
Federal action and not merely the immediate area involved in the
action.”

50 C.F.R. § 402.02.

Here, the Agencies considered the

wildlife effects of the survey without regard to where wildlife is
located.

Neither the NPS nor the FWS limited its analysis to any

defined action area.

The BA discussed the effects of vehicle and

helicopter traffic in general, not just effects in a specific
location.

See FWS 000470 (“[I]mpact to wildlife in and around the

survey area resulting from helicopter operations is anticipated to
be minimal and limited to temporary avoidance behavior.”); FWS

- 77 -

004970

(avoidance

is

“expected

to

be

no

different

than

that

resulting from other ongoing helicopter and fixed-wing aviation
operations in and around the survey area”); FWS 006833 (monitoring
of radio-instrumented panthers in and around the survey area); see
also FWS 004972 (considering impact of vibroseis buggy “in and
around” the area); FWS 004991 (monitoring of panthers “in and
around” the area).

In addition, the off-site staging area was

moved out of the Preserve at plaintiffs’ request, and once Burnett
moved the staging areas out of the Preserve to the Vulcan Mine
site, the Agencies assessed the potential effects associated with
using the limestone mine to store equipment.

See, e.g., AR 000030-

32, 176910-11; FWS 005237-38 (considering impact of helicopter
usage “between the staging area outside of the park to the site”).
NPS concluded, and FWS concurred, that moving the staging areas
offsite would result in “lesser environmental impact” and “lesser
impacts to listed species.”

FWS 006946; 006999.

This was not

arbitrary or capricious.
With regard to plaintiffs’ argument that the failure to
include a 25-mile buffer zone as applied in the Addition GMP was
arbitrary and capricious, the Agencies did consider the Addition
GMP.

Although the FONSI did state that the anticipated adverse

impacts would be similar to impacts from recreational ORVS analyzed
in

the

2010

Addition

GMP/EIS,

the

Agencies

considered

the

mitigation measures present in the EA here and noted that impacts

- 78 -

would be minimized and limited.

AR 164195.

The recreational ORV

use addressed in the management plans involved repeated passes
over the same locations (which causes greater impact), whereas
Burnett designed its survey to minimize the number of times that
vehicle cross the same location (the “one pass” survey design), AR
177032,

and

Burnett’s

survey

incorporates

environmentally-

protective measures that are not required for general recreational
ORV activities.
The

record

establishes

that

the

Agencies

examined

the

environmental impact to the eleven federally-listed or candidate
species within the survey area and designated appropriate “action
areas” and buffer zones based upon the FWS’s specialized knowledge
of the species’ activities and responses to any activity within
the area.

AR 176975-80.

The Court finds no violation of the APA

or the ESA.
(2)

Direct and Indirect Impacts to Listed Species

Plaintiffs next argue that the BA failed to fully “evaluate
the

potential

effects

of

the

action

on

listed

and

proposed

species,” 50 C.F.R. § 402.12(a), including all “direct and indirect
effects,” id. § 402.02 (definition of “[e]ffects of the action”),
outside the Phase I survey area.

Specifically, plaintiffs point

to effects of helicopter flights on wildlife, arguing that the FWS
ignored

helicopter

effects

assumed

that

storks

wood

on

Florida

would

be

- 79 -

panthers

buffered

entirely,

from

and

helicopter

activities, even though scouting to establish wildlife buffers
will not occur outside of the Phase I survey area.

AR 004588-89.

Plaintiffs also point to the effects from traffic on State Road 29
between the off-site staging area and the Phase I survey area that
FWS ignored, citing the risk of vehicle collisions for the Florida
panther when fleeing from Burnett’s activities.
Addition

GMP

Biological

Opinion);

174153-56;

AR 174103 (2010
174172;

176912.

Plaintiffs also believe that the Agencies ignored and failed to
consider

indirect

effects

of

interspecies

aggression

on

the

Florida panther that may be triggered if Burnett’s activities drive
a

panther

into

another

panther’s

territory.

All

of

these

arguments assert that the Agencies overlooked indirect effects
that may result from the relocation of the staging area to the
Vulcan Mine site.
FWS and NPS were aware that Burnett relocated and consolidated
the

five

staging

areas

to

Vulcan

Mine

property

outside

the

Preserve, as described in the revised EA dated March, 2016.

FWS

006766 (revised EA); FWS 006946 (request for concurrence).

By

email dated April 12, 2016, FWS affirmed that this change does not
affect FWS’s prior concurrence that the planned operations are not
likely to adversely affect threatened or endangered species.
006999.

FWS

FWS agreed with the NPS’s conclusion in its March 25,

2016 letter that using offsite staging areas would result in
effects to listed species “less severe than the effects of vehicles

- 80 -

traveling within the Preserve to and/or between the five previously
proposed staging areas.”

FWS 006946.

The Court finds that the Agencies’ decision was not arbitrary
or capricious.

NPS considered a literature survey on the effects

of noise on wildlife, AR 171957, to support its conclusion in the
BA that “the direct impact to wildlife in and around the Survey
Area resulting from helicopter operations is anticipated to be
minimal and limited to temporary avoidance behavior.”

AR 179714.

NPS reasoned that the environmental and operational benefits of
helicopter use would “more than offset any wildlife avoidance
behavior that may result from their use when operated in compliance
with

applicable

recommendations.”

USDO-NPS
Id.

regulations,

And

FWS

stipulations,

concurred

that

the

and

planned

operations are “not likely to adversely affect” any of the ESAlisted species based in part on species-specific helicopter buffer
areas

for

certain

species.

Such

choice

of

studies

and

determination lie in the Agencies’ area of expertise, which is
entitled to deference.

Sierra Club, 295 F.3d at 1222.

And the Court agrees with Burnett’s point that cars and trucks
traveling to Vulcan Mine will drive on existing highways (I-75 and
State Road 29), and will present no impacts different than the
thousands of cars passing over those roads every day.

Plaintiff

has failed to persuade the Court that any additional studies are
needed to assess this impact.

- 81 -

(3)

Cumulative Impacts on Listed Species

Plaintiffs next argue that the NPS’s BA for Burnett’s Plan
purported
activities

to

consider

outside

the

cumulative

effects

Preserve,

which

but
was

ignored

all

arbitrary

and

capricious and an unexplained departure from past FWS evaluations,
citing AR 179721-40; 095340-42; 169901-03; 174133-35.

Plaintiffs

cite a 161-square-mile seismic survey by Tocala, LLC located 3.7
miles north of the Burnett survey area, which plaintiffs believe
is reasonably certain to occur because Tocala, LLC has a state
permit and approval from the FWS.

AR 004984; 004995; 005008-10;

084593; 095342; 095342; FWS 004054-58.
Tocala

survey

will

be

within

the

Plaintiffs state that the

25-mile

buffer

for

Florida

panthers that should be part of the action area for Burnett’s Plan.
Defendants inform the Court that the Tocala survey, which
will use explosives as the seismic vibration source, is outside
the Preserve on private lands in Collier and Hendry Counties,
Florida, which is outside any of the action areas for the Plan.
They argue that the Tocala survey was not analyzed as part of
“cumulative effects” because it involved a past Federal activity
by the Corps of Engineers, rather than a future State or private
activity.
For purposes of the ESA, “cumulative effects” is defined as
“those effects of future State or private activities, not involving
Federal activities that are reasonably certain to occur within the

- 82 -

action area of the Federal action subject to consultation.”
C.F.R. § 402.02.

50

The record shows that FWS was aware of this

survey because it consulted with the U.S. Army Corps of Engineers
in 2014 and concluded that the Tocala survey was not likely to
adversely affect several threatened and endangered species.
004055-57.

FWS

See Miccosukee Tribe, 566 F.3d at 1269 (state and

private projects fell “within the jurisdiction of the Army Corps
of Engineers” and were exempt from cumulative impacts analysis
because they are subject to their own consultation process).

In

any event, failure to consider the Tocala survey which was outside
any of the actions areas determined to be proper by the Agencies
was not arbitrary or capricious, as discussed supra, Sec. V.B(1). 32
(4)

Use of the
Available

Best

Scientific

and

Commercial

Data

Plaintiffs assert that the Agencies failed to “use the best
scientific and commercial data available” for wood storks and redcockaded woodpeckers, in violation of 16 U.S.C. § 1536(a)(2).
Specifically, plaintiffs argue that the Agencies the BA did not
include the latest bird maps showing the locations of wood storks

32

Although not argued in their motion for summary judgment,
plaintiffs assert in their Amended Complaint (Doc. #40) that the
Agencies also failed to consider all cumulative effects of future
phases of Burnett’s exploration on listed species. (Doc. #40, ¶
206.) As previously discussed with regard to the NEPA claims, the
Court finds that there is not enough evidence that the next three
phases will occur to justify the further assessment of their
environmental impact. In any event, any future seismic surveys
would be subject to its own federal review.

- 83 -

and red-cockaded woodpeckers in the survey area, thereby ignoring
better available data concerning the birds. “The general view is
that the agency decides which data and studies are the ‘best
available’

because

that

decision

determination deserving deference.”

is

itself

a

scientific

Miccosukee Tribe, 566 F.3d

at 1265 (citing Marsh, 490 U.S. at 377–78).
Although

Burnett

did

not

have

the

sufficient

geographic

information system (“GIS”) data for purposes of including certain
known

wood

stork

rookeries

in

the

BA,

the

BA

and

the

FWS

concurrence letter both assumed that wood storks and red-cockaded
woodpeckers are present in the survey area and expressly considered
the survey’s potential effects on them and included buffer zones
for their protection.

FWS 004984-88; 006625-26; AR 005012; FWS

006672 (maps showing red-cockaded woodpeckers in the survey area).
The Agencies considered the whole record, not just the BA, when
finding no significant impact.
Therefore, contrary to plaintiffs’ assertions, the Agencies
did not ignore available biological information about the wood
storks and red-cockaded woodpeckers, but did consider them and
incorporated measures for their protection in the BA.
27.

Moreover,

FWS’s

“not

likely

to

FWS 006625-

adversely

affect”

determination assumes the presence of these species in the project
area and requires further surveys by trained ecologists prior to
daily seismic operations so that the species can be avoided. FWS

- 84 -

AR 006626.

Plaintiffs have not demonstrated that this violates

Section 7 of the ESA.
(5)

Mitigation Measures

As argued earlier in the NEPA context, plaintiffs assert that
the

mitigation

reasonably

measures

certain

to

considered
occur

or

by

to

the
be

Agencies

are

not

effective,

and

are

unenforceable, vague, or discretionary because they apply only if
“practicable” or “feasible,” or specify that impacts will be
“avoided,” but not prohibited in violation of the ESA.

See AR

004591; 164184-89.
Burnett’s
establishment

Plan
of

includes

species

daily

specific

scouting
buffer

of

survey

zones,

and

lines,
other

procedures to avoid and mitigate for potential disturbance to ESAlisted species.

Based on the planned implementation of these

procedures, FWS agreed that any adverse effects on listed species
would be minimized.

FWS 006629-30.

See also AR 179740 (BA).

All

of the stipulations identified in the minimization and mitigation
measures described in the FONSI, AR 164179-282, are incorporated
as mandatory components of NPS’s conditional approval letter dated
May 10, 2016, which approved the Plan pursuant to 36 C.F.R. §
9.37(b)(2).

AR 179894.

An agency’s expert determinations such as the appropriate
mitigation

measures

exceeding deference.

to

protect

endangered

species

are

owed

See Nat’l Parks Conservation Ass’n, 835 F.3d

- 85 -

at 1384.

Here, many of the mitigation measures were developed by

NPS during the development of the 1992 GMP/EIS for the original
Preserve, and the Mineral Management Plan attached to the GMP/EIS,
and thus have already been subject to analysis.

E.g., AR 176897

(incorporating mitigation measures identified in 1992 GMP/EIS).
See 40 C.F.R. § 1502.20 (“Whenever a broad environmental impact
statement has been prepared ... and a subsequent ... environmental
assessment is then prepared on an action included within the entire
program ... the subsequent ... environmental assessment need only
summarize

the

incorporate

issues

discussed

discussions

reference....).

in

from

the

the

broader
broader

statement

and

statement

by

Likewise, NPS had the experience from many of the

mitigation measures used during and after the 1999 Raccoon Point
Seismic

Survey.

See

AR

174937

(describing

the

successful

“restoration of ruts and vehicle tracks resulting from seismic
operations

to

original

contour

conditions”).

Thus,

the

effectiveness of the mitigation measures has been assessed in other
contexts allowing NPS to make an informed judgment about the proper
mitigation measures to implement.

The Court affords this decision

deference

it

and

does

not

find

arbitrary

or

capricious.

Plaintiffs’ “belief” that these mitigation measures will not work
is not supported by any evidence in the record.
C. Reinitiate Consultation re: Vulcan Mine Site (Count VII)

- 86 -

Plaintiffs

assert

that

NPS

was

required

to

reinitiate

consultation with FWS to evaluate the effects of relocating the
staging area to Vulcan Mine, arguing that the change expanded the
action area and affects listed species in ways the Agencies did
not consider.

And plaintiffs believe that even if the Agencies

speculate that the change is “more protective,” the Agencies must
reinitiate

consultation

because

the

revised

Plan

has

“the

potential for different effects on species” than the original,
citing Nat’l Parks Cons. Ass’n v. Jewell, 62 F. Supp. 3d 7, 17 (D.
D.C. 2014).

Plaintiffs argue that the FWS’s concurrence letter

did not indicate that it considered the new, additional effects of
the off-site staging area on listed species.

See AR 095040; FWS

006999.
Reinitiation of consultation is required if new information
reveals, or a project modification causes, effects that were not
considered.
fails.

50 C.F.R. § 402.16(b)(c).

Plaintiffs’ argument

Moving the staging area to the Vulcan Mine site was done

specifically in response to plaintiffs’ concerns about the five
staging area locations in the Preserve and altered the Plan in
such a way to minimize the environmental impact.
In

any

event,

the

reinitiate consultation.

record

shows

that

the

Agencies

did

After Burnett identified the Vulcan Mine

as a new location for staging equipment, the NPS prepared a revised
EA pursuant to NEPA that addressed the effect of that change.

- 87 -

NPS

transmitted

its

revised

EA

to

FWS

and

requested

concurrence

confirmation concerning FWS’s previous ESA-related determinations.
FWS 007000; 006743-945.

By email dated April 12, 2016, FWS

confirmed that the change in staging area did not affect the
previous concurrence.

FWS 006999.

And to the extent plaintiffs

argue that the change to an off-site staging area altered the
“action area” for the Plan that were not considered, the Court has
already addressed that argument, supra V.B(1).

The Court finds

no violation of the ESA or NEPA.
D. Reinitiate Consultation re: the
Florida Bonneted Bat (Count VIII)

Preserve

Management

Plans,

In Count VIII, plaintiffs assert that the Agencies failure to
reinitiate consultation on the 1992 Preserve GMP, the 2000 ORV
Management Plan, and the 2010 Addition GMP/EIS (the “Preserve
Management Plans”) after the Florida bonneted bat was listed as
endangered in 2013 violates the ESA.

The Agencies must reinitiate

formal consultation “where discretionary Federal involvement or
control over the action has been retained or is authorized by law
and . . . [i]f a new species is listed . . . that may be affected.”
50 C.F.R. § 402.16(d).

The NPS retains “discretionary involvement

or control” over the Preserve Management Plans and the FWS’s bat
consultation
177011.

area

includes

the

entire

Preserve.

AR

179781;

The NPS prepares and revises general management plans for

all NPS units, and may do so at any time.

- 88 -

54 U.S.C. § 100502; AR

178335.

By failing to reinitiate consultation, plaintiffs argue,

the Agencies imperil their interests in the Florida bonneted bat
because

the

Agencies

have

not

considered

how

the

activities

authorized by the Preserve Management Plans may affect the bat.
Defendants respond that plaintiffs have not shown standing to
pursue this claim, nor have they shown that the claim is ripe for
review.

In addition, defendants argue that plaintiffs’ claim

fails on the merits.
(1)

Standing

The federal defendants argue that plaintiffs lack standing to
challenge the Preserve Management Plans because plaintiffs fail to
demonstrate that their purported interests in the Florida bonneted
bat will be injured due to any of the agency actions at issue in
this case under the revised EA for the Burnett survey.
argue

that

they

have

standing

because

the

Plaintiffs

Agencies

caused

plaintiffs a “procedural injury” by violating their ESA duty to
reinitiate formal consultation on the Preserve Management Plans.
“In order to invoke federal-court jurisdiction, a plaintiff
must demonstrate that he possesses a legally cognizable interest,
or

‘personal

stake,’

in

the

outcome

of

the

action.

This

requirement ensures that the Federal Judiciary confines itself to
its

constitutionally

concrete

disputes,

limited
the

role

of

resolutions

consequences on the parties involved.”

- 89 -

adjudicating
of

which

actual

have

and

direct

Genesis Healthcare v.

Symczyk, 133 S. Ct. 1523, 1528 (2013) (internal citations omitted).
For constitutional standing, “plaintiff must have suffered or be
imminently threatened with a concrete and particularized ‘injury
in fact’ that is fairly traceable to the challenged action of the
defendant and likely to be redressed by a favorable judicial
decision.”

Lexmark Int’l, Inc. v. Static Control Components,

Inc., 134 S. Ct. 1377, 1386 (2014) (citing Lujan, 504 U.S. at 560).
The

party

invoking

federal

jurisdiction

establishing these three elements.

bears

the

burden

of

Spokeo, Inc. v. Robins, 136

S. Ct. 1540, 1547 (2016).
“To establish injury in fact, a plaintiff must show that he
or she suffered ‘an invasion of a legally protected interest’ that
is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’”

Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992)).
Most recently, the Supreme Court addressed the injury in fact
element in Spokeo v. Robins.

In Spokeo, the plaintiff filed a

class-action complaint, alleging certain procedural violations of
the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., against
an online “people search engine” operator accused of creating
inaccurate consumer reports.

136 S. Ct. at 1544.

The Supreme

Court noted that a “concrete injury” “must be ‘de facto’; that is,
it must actually exist.”

Id. at 1548.

- 90 -

But the Supreme Court

recognized that “concrete” does not necessarily mean “tangible,”
and “intangible injuries can nevertheless be concrete.”

Id.

“In

determining whether an intangible harm constitutes injury in fact,
both history and the judgment of Congress play important roles.”
Id.

The Supreme Court further recognized that a plaintiff does

not automatically satisfy the injury-in-fact requirement “whenever
a statute grants a person a statutory right and purports to
authorize that person to sue to vindicate that right.”
1549.

Id. at

For example, a plaintiff could not allege a “bare procedural

violation”

absent

requirement. 33

Id.

harm

and

satisfy

the

injury-in-fact

Yet this does not mean that the risk of real

harm cannot satisfy the requirement of concreteness.

Id. at 1549.

“[T]he violation of a procedural right granted by statute can be
sufficient in some circumstances to constitute injury in fact.

In

other words, a plaintiff in such a case need not allege any
additional harm beyond the one Congress has identified.”

Id.

As a general matter, “[r]edressability is established when a
favorable decision would amount to a significant increase in the
likelihood that the plaintiff would obtain relief that directly
redresses the injury suffered.”

Fla. Wildlife Fed’n, Inc. v.

South Fla. Water Mgmt. Dist., 647 F.3d 1296, 1303-04 (11th Cir.

33

The Spokeo
consumer zip code
the FCRA purports
too “abstract” to

court cited an agency’s dissemination of a wrong
as an example of a statutory violation for which
to provide redress, but which likely causes harm
confer standing. 136 S. Ct. at 1550.

- 91 -

2011) (quoting Mulhall v. Unite Here Local 355, 618 F.3d 1279,
1290 (11th Cir. 2010)).

“The fairly traceable element explores

the causal connection between the challenged conduct and the
alleged harm.” Loggerhead Turtle v. County Council of Volusia
County, Fla., 148 F.3d 1231, 1247 (11th Cir. 1998) (citation
omitted).
In

support

of

standing,

plaintiffs

filed

the

Second

Declarations of John Adornato III (Doc. #94-1) and Matthew Schwartz
(Doc.

#94-2)

(“Declarants”),

both

members

of

plaintiff-

environmental organizations who are concerned about the Plan’s
impact on the Florida bonneted bat because it could harm or deter
bats from roosting or feeding nearby.

34

With regard to injury in

fact, the federal defendants argue that the declarations do not
specify a specific, imminent injury.

In particular, defendants

argue that plaintiffs only challenge the failure to reinitiate
consultation rather than any particular action that would directly
injure the Declarants, and any alleged injuries are based purely
on conjecture as to potential adverse effects of the planned survey

34

The federal defendants suggest that the Court can consider
the declarations filed by plaintiffs concerning standing at the
summary judgment stage. (Doc. #100, p. 21.) Although the Court
agrees it can consider the declarations, subject matter
jurisdiction is not a decision on the merits, and is resolved as
a motion to dismiss, not summary judgment. Aqua Log, Inc. v. Lost
and Abandoned Pre-Cut Logs and Raft of Logs, 709 F.3d 1055, 1058
(11th Cir. 2013); Goodman v. Sipos, 259 F.3d 1327, 1331 n.6 (11th
Cir. 2001).

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on the bat.

Defendants believe that because plaintiffs have not

demonstrated an injury in fact, the corresponding elements of
causation and redressability are also not satisfied.
Both of plaintiffs’ Declarations state that the Declarants
are interested in the Florida bonneted bats and visit the Preserve
in hopes of seeing one.

The Schwartz declaration further states

that he would like to go with researchers to observe Florida
bonneted bat roosting sites in the Preserve.

(Doc. #94-2, ¶ 6.)

Yet these Declarations do not demonstrate (and plaintiffs have not
otherwise shown) that the Declarants’ purported interest in the
Florida bonneted bat will be imminently injured due to any of the
agency’s actions in this case.

See Lujan, 504 U.S. at 565 (“And

the affiants’ profession of an ‘inten[t]’ to return to the places
they had visited before — where they will presumably, this time,
be deprived of the opportunity to observe animals of the endangered
species — is simply not enough.

Such ‘some day’ intentions —

without any description of concrete plans, or indeed even any
specification of when the some day will be — do not support a
finding

of

the

“actual

or

imminent”

injury

that

our

cases

require.”); cf Black Warrior Riverkeeper v. U.S. Army Corps of
Engineers, 781 F.3d 1271, 1280 (11th Cir. 2015) (finding that
“[v]oluminous record evidence indicates that Riverkeeper’s members
have

suffered

interests”).

harm
Here,

to
the

their

aesthetic

alleged

- 93 -

injuries,

and

recreational

while

arguably

“particularized”,

fall

short

of

establishing

that

they

are

concrete.
The standing principles announced in Spokeo do not compel a
different results.

In Lujan, the Supreme Court addressed the

argument as to whether an individual has standing because they
suffered a “procedural injury.”

504 U.S. at 572.

The so-called

“citizen-suit” provision of the ESA provides, in pertinent part,
that “any person may commence a civil suit on his own behalf (A)
to enjoin any person, including the United States and any other
governmental instrumentality or agency ... who is alleged to be in
violation of any provision of this chapter.”
The

Lujan

abstract,

court

rejected

self-contained,

the

view

that

16 U.S.C. § 1540(g).
all

noninstrumental

persons

“right

to

Executive observe the procedures required by the ESA.

have
have

an
the

Id. at 573.

This is in line with Spokeo, wherein the court there found that a
plaintiff

does

not

automatically

satisfy

the

injury-in-fact

requirement “whenever a statute grants a person a statutory right
and purports to authorize that person to sue to vindicate that
right.”

136 S. Ct. at 1549.

There must be some concrete harm

separate from their statutorily-granted right to sue.

The Court

finds that a concrete harm has not been established in this case
within the meaning of Lujan.

The ESA’s procedural requirements

affording a right to sue were not designed to protect any concrete

- 94 -

interest afforded to a specific class of persons sufficient to
confer standing.
(2)

Ripeness

The federal defendants also assert that the Court lacks
jurisdiction over plaintiffs’ claims because the claims are not
ripe because plaintiffs have not demonstrated that they will be
injured

by

regarding

NPS’s

the

alleged

Preserve

constitutional

failure

Management

considerations

to

reinitiate

Plans.

that

consultation

“Ripeness

implicate

reflects

Article

III

limitations on judicial power, as well as prudential reasons for
refusing

to

exercise

jurisdiction.”

Stolt–Nielsen

S.A.

v.

AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n. 2 (2010) (citation
omitted); Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538
U.S. 803, 808 (2003).

To determine whether a claim is ripe for

judicial review, courts consider both “the fitness of the issues
for judicial decision” and “the hardship of withholding court
consideration.”
National

Park

Stolt–Nielsen
Hospitality

S.A.,

Ass’n,

559

538

U.S.

U.S.

at

at

670

808.

n.

2;

Courts

consider: “(1) whether delayed review would cause hardship to the
plaintiffs;

(2)

whether

judicial

intervention

would

inappropriately interfere with further administrative action; and
(3)

whether

the

courts

would

benefit

development of the issues presented.”
Sierra Club, 523 U.S. 726, 733 (1998).

- 95 -

from

further

factual

Ohio Forestry Ass’n v.
In the administrative

context, ripeness is a justiciability doctrine designed to prevent
the courts from entangling themselves in abstract disagreements
over administrative policies and to shield agencies from judicial
interaction until an administrative decision has been formalized
and its effects felt in a concrete way by the challenging parties.
Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, 727 F.3d
1349, 1356 (11th Cir. 2013) (citations omitted).

Generally, “[a]

claim is not ripe for adjudication if it rests upon contingent
future events that may not occur as anticipated, or indeed may not
occur at all.”

Texas v. United States, 523 U.S. 296, 300 (1998)

(internal citation omitted).
Here, the claim is undoubtedly ripe.

The NPS has issued a

final decision which plaintiffs alleges runs afoul of federal law.
Indeed, work has already begun to implement Burnett’s Plan.
(3)

Obligation to Reinitiate Consultation

Even if the Court assumes that plaintiffs have standing to
pursue Count VIII, the federal defendants argue that plaintiffs
nevertheless fail to demonstrate that NPS had a legal obligation
to reinitiate consultation on the Preserve Management Plans.

The

Court agrees.
Resource management plans generally do not constitute “agency
action” requiring ESA consultation under Section 7.

See Forest

Guardians v. Forsgren, 478 F.3d 1149, 1158 (10th Cir. 2007).
Forsgren reasoned that “[s]pecific activities, programs, and/or

- 96 -

projects are necessary to implement the plan.” Id. at 1158.

Under

the ESA, there is an obligation to consult over agency “action.”
16 U.S.C. § 1536(a)(2).

The term “action” is defined by regulation

as “all activities or programs of any kind authorized, funded, or
carried out, in whole or in part, by Federal agencies in the United
States or upon the high seas.”

50 C.F.R. § 402.02.

Consultation

is reinitiated only where “discretionary Federal involvement or
control over the action has been retained or is authorized by law.”
50 C.F.R. § 402.16.
The

management

consultation.

The

plans
bats

are

are

not

protected

“actions”
from

subject

future

to

potential

threats by the application of ESA to any future actions.

There

is no pending agency action related to the Preserve Management
Plans that would trigger a duty to reinitiate ESA consultation.
Here, the Minerals Management Plan and the NPS’s regulations
provide

that

future

oil

and

gas

exploration

projects must be subject to site-specific reviews.
36 C.F.R. § 9B.

and

development

AR 1167332 and

As required, NPS’s decision was informed by a

site-specific ESA consultation that addressed potential effects on
ESA-listed

species,

including

the

Florida

bonneted

bat.

FWS

established species-specific buffer zones limiting daily survey
activities, where appropriate.

See FWS 006627 (avoidance of

Florida bonneted bat roost sites).
to reinitiate consultation.

- 97 -

The Court finds no obligation

The Court has found that defendants complied with NEPA, the
APA, and the ESA.

The Court denies the request for a preliminary

(Doc. #36) and a permanent injunction.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Plaintiffs’ Motion for Preliminary Injunction (Doc. #36)

is DENIED.
2.

Plaintiffs’ Motion for Summary Judgment (Doc. #94) is

DENIED.
3.

Federal Defendants’ Combined Memorandum in Opposition to

Plaintiffs’ Motion for Summary Judgment and in Support of CrossMotion for Summary Judgment (Doc. #100) is GRANTED.
granted in favor of defendants on all counts.

Judgment is

Alternatively as

to Count VIII, Count VIII is dismissed without prejudice for lack
of constitutional standing.
4.

Defendant-Intervenors’

Cross-Motion

for

Summary

Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment
(Doc. #102) is GRANTED.
5.

The National Park Services’ Finding of No Significant

Impact is AFFIRMED.
6.

The Clerk shall enter judgment accordingly, terminate

any pending deadlines and close the file.

- 98 -

7.

The Federal Defendants’ Motion to Strike (Doc. #106) 35

is DENIED AS MOOT.
8.

Plaintiffs’ Motion for Injunction Pending Appeal (Doc.

#112) is DENIED AS MOOT in light of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this

24th

day

of April, 2017.

Copies:
Counsel of Record

35

The motion to strike requests that the Court strike
plaintiffs’ argument that FWS 007017-21 is not properly in the
administrative record. This document is a clarification of FWS’s
decision and was drafted after the Agencies received plaintiffs’
60-day notice of intent to sue. Because the Court did not rely
on this document in support of its decision, it does not reach the
issue of whether it should be stricken.

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