Natural Resources Defense Council et al v. National Park Service et al
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
NATIONAL PARKS CONSERVATION
ASSOCIATION, CONSERVANCY OF
EARTHWORKS, and SOUTH FLORIDA
Case No: 2:16-cv-585-FtM-99CM
NATIONAL PARK SERVICE, RYAN
capacity as Secretary of the
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
BURNETT OIL CO., INC., BARRON
COLLIER COMPANY LTD, COLLIER
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
OPINION AND ORDER
Services’ (NPS) approval of defendant-intervenor Burnett Oil Co.,
Inc.’s (Burnett) Plan of Operations (the “Plan”) to conduct a
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.
(Doc. #94, p. 1.)
Preliminary Injunction (Doc. #36), requesting that the Court stay
NPS’s approval of operations pending a final adjudication on the
merits of this case. 2
The federal defendants responded on November
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.
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.
parties’ cross-motions for summary judgment on plaintiffs’ ESA
claims and available remedies with responses were filed on March
The preliminary injunction request is aimed solely at the
National Park Service.
The Complaint was amended on October 17, 2016 to add claims
under the ESA. (Doc. #40.)
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20, 2017, and April 3 and 10, 2017.
(Docs. ##94, 100, 102, and
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.
A. National Park System and the National Park Service Regulations
The national park system in the United States began with the
establishment of Yellowstone National Park in 1872.
16 U.S.C. §
In 1916, the National Park Service Organic Act created the
National Park Service within the Department of Interior.
U.S.C. § 1.
NPS was required to:
promote and regulate the use of the Federal areas known
as national parks, monuments, and reservations . . . as
provided by law, by such means and measures as conform
to the fundamental purpose of the said parks, monuments,
and reservations, which purpose is to conserve the
scenery and the natural and historic objects and the
wild life therein and to provide for the enjoyment of
the same in such manner and by such means as will leave
them unimpaired for the enjoyment of future generations.
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
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).
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).
“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.”
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
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.”
B. Big Cypress National Preserve
Establishment Act and Ownership of the Preserve’s Oil and
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
Pub. L. 93-440, § 1, 88 Stat. 1258 (Oct. 11, 1974),
codified at 16 U.S.C. § 698f(a).
AR 166959; 166989 (map). 4
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.”
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.
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(variously estimated at 574,440 acres, AR 166987).
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.
The Preserve is centrally located
between Miami and Naples, Florida, extending from the northern
boundary of Everglades National Park to seven miles north of
Today, with the Addition, the Preserve
covers approximately 729,000 acres.
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.
acquisition authority, when the United States acquired the surface
lands of the Preserve it did not acquire most oil and gas rights.
The surface and mineral estates were severed (a “split
Thus, the United States acquired most lands
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
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of the Preserve from the Collier family, without associated mineral
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).
Accordingly, the vast majority of the
Preserve’s mineral estate remains in private ownership, including
substantial mineral interests owned by the Collier Entities. 6
The Preserve’s History of Oil and Gas Activity
Oil and gas activities in the greater Big Cypress Swamp
predates creation of the Preserve.
Oil and gas
activity has occurred in south Florida since 1930, and by the early
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.
The Sunniland Trend is part of the hydrocarbon-bearing
South Florida Geologic Basin located beneath southwest Florida.
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.
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
16 U.S.C. § 698i(b)(2).
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).
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.
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NPS addressed its multifaceted management authority in a 1992
Statement (EIS) for the original Preserve, which contained a
Minerals Management Plan (MMP) and analyzed all phases of oil and
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.
generate an energy “wave” that bounces off underground oil and gas
deposits back up to small, strategically positioned sensors on the
surface called “geophones.”
AR 164284; 002351 (geophone).
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.
The area of influence for the Plan is 2.1%.
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dimensional, depending on the layout of the geophones and the
location of the energy source points, but 3-D seismic surveys
geological features . . . .”
The most common ways to
create the energy wave necessary for a seismic survey are dynamite
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
underground geological rock formations using sound waves, similar
to an ultrasound examination, but does not penetrate the surface.
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
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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
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 . . . .”
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
Both GMPs recognized that “recent
discoveries of oil and gas both within and adjacent to the preserve
have prompted interest in . . . geophysical exploration.”
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.
C. History of Burnett Oil’s Oil and Gas Exploration Rights in the
Preserve, Proposed Plan for 3-D Seismic Survey, and NPS’s
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
Affidavit of Tom Jones, VP for Govt. Affairs of the Barron Collier
Companies, ¶ 17.)
On April 3, 2013, Collier Resources Company and
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.
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.
this process across the survey area, Burnett is able to develop
the three-dimensional imagery it needs to evaluate the potential
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.
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
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.
NPS staff cautioned
unrealistic” given the size of the survey area and their obligation
to formally establish a right of entry on all parcels inside the
AR 000005; see 36 C.F.R. § 9.36(a)(2).
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.
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.
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.
After reviewing that early-draft EA, NPS had concerns
with its completeness, objectivity, and qualitative analyses.
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.
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
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
Over the next
several months, NPS coordinated with the applicants and their
consultants to refine both the Plan and the draft EA.
88 (response to NPS comments); AR 002364-2991 (Oct. 2014 draft);
Phase I is the only phase that is the subject of this
Seventy-five percent of the revised survey area is the
Original Preserve, while 25% is the Addition Lands.
003668; 005728 (map).
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AR 003648-4490 (Dec. 2014 draft); AR 003012-13 (NPS comments, Nov.
Early in 2015, Burnett offered to show NPS how the vibroseis
buggies proposed in their Plan would operate in the Preserve’s
Burnett requested temporary access to an area of the
Preserve near Interstate 75 for this purpose.
demonstration on April 22, 2015.
AR 004644; 004647.
several hours of video during the demonstration, and later prepared
a summary report. 13
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 .
. . .”
NPS further stated that “there was no
appreciable effect on the ground” where the vibrator plate had
Although the vibroseis buggy became stuck
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
AR 164898; see also AR 057455 (showing offset vibration
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
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.
In the ensuing months, NPS made revisions to Passarella’s
draft EA to ensure it comported with NPS standards.
08; see, e.g., AR 054878-55071 (redlined EA); 055514-55708 (same);
provided by Burnett.
In addition, NPS reviewed before and after
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
The EA evaluated three alternatives: 1. a no-
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action alternative; 2. seismic survey using vibroseis buggies; and
3. seismic survey using explosives.
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
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.
on the comments received, Burnett proposed modifications to the
Plan and worked with NPS to make changes to the proposed action,
boundaries to an existing industrial site called Vulcan Mine.
Previously, staging areas were at five locations throughout the
093139; 093552-66 (staging area review PowerPoint prepared by
These changes necessitated preparation of a revised EA and
draft Wetlands Statement of Findings.
released a revised EA.
On March 25, 2016, NPS
Again, despite the fact
that NEPA does not mandate public comment periods for EAs, NPS
technical information that would aid in the agency reaching a
decision on a revised [EA],” through April 9, 2016.
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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.”
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.
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
allowed to plow paths across the landscape” to provide faster
access for shot-hole drilling.
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.
Importantly, NPS reinforced that
selected alternative,” to “prevent lasting impacts,” “minimize
The March 2016 revised EA is the final EA for purposes of
this Opinion and Order.
Any changes due to
responses to public comment after March 2016 are described in the
appendices to the March 2016 EA. AR 164180-81.
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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.
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.
Second, in 2010, NPS
GMP/EIS”), which addresses management of the Addition, including
ORV activities. 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.
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.
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D. ESA Consultation Regarding the Plan
biological assessment (BA) in February 2014 that had been prepared
In response to comments received from
assessing the effects of Burnett’s Plan on eleven federally-listed
or candidate species, including two plants.
AR 179693-94; 179720-
The revised BA concluded that the planned survey is “not
threatened American alligator, threatened eastern indigo snake,
threatened Audubon’s crested caracara, endangered Everglade snail
kite, endangered red-cockaded woodpecker, threatened wood stork,
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.
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
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.
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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.
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
In addition, FWS reasoned that temporary
loss of vegetation during the establishment of transect lines and
roosting sites will not be affected because trees with a diameter
greater than 10.2 centimeters will not be removed.
described in the project description” and stated that reinitiation
of consultation may be required “[i]f modifications are made to
FWS clarified and affirmed its “not likely to adversely
affect” determination with regard to the Florida bonneted bat and
plaintiffs’ intent to bring ESA claims, see FWS 007001, in a
memorandum to file dated September 6, 2016.
stated that because the planned survey is a short-term activity
(approximately 70,000 acres with 2.5 square miles affected per
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day), any action-caused avoidance behaviors by listed species
would be only an insignificant effect.
Id. at 007019.
consultation on the draft EA for Burnett’s Plan.
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.
In March 2016, NPS
notified the FWS of the revised EA and stated that the five staging
areas in the Preserve were eliminated.
The FWS found
that the elimination of the five staging areas did not affect its
The revised EA for Burnett’s Plan incorporated by reference
three Preserve management plans: (1) 1992 Big Cypress National
Statement for the Original Preserve, which included a Minerals
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.
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.
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]
The FWS authorized incidental
take of Florida panthers through harassment by ORVs and required
the NPS to restrict ORVs to designated trails.
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.
AR 174099; 174126-33.
The FWS authorized
principally due to panthers avoiding ORV trails.
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).
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,
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
procedures, best management practices, and mandatory minimization
significantly affect the quality of the human environment.”
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
“Based on the impact analysis in the EA, the
impacts described above would occur in only a small portion of the
approximately 0.001% of the Preserve.”
And “[d]ue to
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.”
demonstration, and noted that the field test had “demonstrated
minimal vegetation impacts and substantial recovery six months
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
rerouted the vehicle around the area such that it would not have
followed the original route and subsequently gotten stuck.”
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
protective measures that are not required for general recreational
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).
The first phase involves
scouting out the locations of the source and receiver points 17 and
placement of geophones (the “Preliminary Survey Phase”).
In this first phase, survey crews will enter the survey
identify routes for vibroseis buggies to follow and areas to avoid,
consistent with NPS mitigation measure 46 that “[n]o Vibroseis
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.
Vehicles in the initial phase
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.
that the Preliminary Survey Phase will take approximately six
(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.
of three buggies will be accompanied by two UTVs, which include a
archeologist (in a second UTV). 18
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.
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
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.
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
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
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
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.”
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
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)).
Preserve Endangered Areas of Cobb’s History v. United States Army
Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir. 1996).
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 -
Substantial evidence is “‘relevant evidence [that]
Stone & Webster Constr., Inc. v. U.S. Dep’t of
Labor, 684 F.3d 1127, 1133 (11th Cir. 2012) (quoting Richardson v.
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).
to find adequate support in the record for a contrary 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
- 31 -
A. NEPA General Principles
The National Environmental Policy Act of 1969, 42 U.S.C. §§
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
environmental impact of their proposals and actions.”
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
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 -
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).
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
discusses the environmental impacts of, and alternatives to, a
proposal for federal action.
40 C.F.R. § 1508.9.
“significantly affect the quality of the human environment.”
U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1501.3-1501.4.
If the proposed
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
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
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.”
Antwerp, 526 F.3d at 1361-62 (quoting Robertson, 490 U.S. at 35051 (footnote omitted)).
Agency decisions allegedly violating NEPA
Citizens for Smart Growth, 669 F.3d at 1203.
B. The Alleged NEPA Violations 20
“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
exploration, which all are “reasonably foreseeable,” see 40 C.F.R.
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.
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.
Because the details of such a multi-phase project were
quite unclear, Burnett’s Plan was revised to request approval for
only one phase.
Plaintiffs argue that Burnett has stated that approval for
the future phases will be requested under a separate plan for each
exploration rights for these future phases.
cumulative impact that would result from the four phases.
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
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
insignificant but that are significant when viewed as a whole.
C.F.R. § 1508.27(b)(7) (“Significance cannot be avoided by terming
an action temporary or breaking it down into small component
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.
contains an implicit “rule of reason,” “which ensures that agencies
determine whether and to what extent to prepare an EIS based on
Dep’t of Transp. v. Public Citizen, 541
U.S. 752, 767 (2004).
cumulative impact analysis is not required for hypothetical plans.
In that case, a highway widening was not in the planning stages.
consider . . . investigators
researchers would be forced to analyze the environmental impact of
a project, the parameters and specifics of which would be a mere
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
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 -
The NPS concluded that the “probability or extent of
any future surveys is speculative” and that any remaining phases
appropriately not included in the cumulative impact analysis.”
177076; see also AR 164214, 164219.
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.
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.
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.”
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
Even if Burnett intends to conduct more surveys, plans
meaningfully analyze their cumulative environmental impacts.
City of Oxford, 428 F.3d at 1356 n.23 (if a new building is
cumulative impacts of that project in conjunction with the project
currently at issue.”).
The Court finds no NEPA or APA violations.
Cumulative Impacts of Eleven Other Projects
habitat in the same region, including a seismic survey approved
for 161 square miles of private and state lands just north of the
Florida panthers and other species.
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
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.
See AR 057348; 057366-67; 057370-
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).
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.”
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
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
considered under cumulative impacts.”
- 40 -
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
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
Plaintiffs argue that in approving the offNPS
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
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
- 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
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
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
With regard to the impact of off-road vehicles other than
vibroseis buggies, the EA did specifically consider the impacts of
AR 002342 (photograph of UTV).
The EA describes
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
See AR 093530 (aerial image of Vulcan Mine site).
- 42 -
again in the majority of cases.”
NPS also explained
vehicular impacts to wetlands, habitat, soils, and vegetation to
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
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”).
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.
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.”
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.
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.”
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.
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.
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 -
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
“The proposed geophysical exploration is
geological structures might be located so that owners of those oil
and gas interests may exercise their private property rights.”
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).
“[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
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.”
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.”
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
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
resources,” AR 176895, but it also identifies Burnett’s objective
as the applicant to investigate the nature and extent of private
The Court finds that the record establishes that NPS
complied with APA and NEPA in this regard.
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
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).
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
See AR 176907-17 (describing alternatives 1, 2, and
3); AR 176917-18 (describing alternatives A-G that were considered
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.”
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
Second, NPS considered the proposed
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.
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.
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.
In addition to the
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
Plaintiffs specifically argue that NPS should have further
analyzed “the option of purchasing or trading to acquire the
“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
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 -
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.
consider potentially less-damaging survey alternatives are also
These dismissed alternatives include the use of
smaller, more maneuverable vibroseis equipment; use of handheld
alternatives that would reduce or avoid surface occupancy of the
Preserve altogether via use of aerial surveys.
(Doc. #36 at 18-
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]
including aeromagnetic and gravity surveys,” but dismissed these
- 49 -
locations, except in areas of salt domes.”
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.
although plaintiffs make much of the fact that the gross vehicle
weight of the vibroseis buggies is in excess of 17,000 pounds, the
substantially reduce the weight on the surface to 26 pounds per
These terra tires will also result in
less potential impact to plant roots due to the lack of tread.
When alternatives are rejected from consideration in an EIS,
40 C.F.R. § 1502.14(a) (stating that agencies shall
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.
“Hard Look” at Minimization and Mitigation Measures (Count
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.
“that simply states mitigation measures without evaluating their
effectiveness is useless in assessing whether adverse impacts
would in fact likely be mitigated.”
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.”
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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).
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.
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.”
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.”
AR 164179-80; see
measures are incorporated as mandatory components of the selected
AR 164179 (all minimization and mitigation measures “will
apply as conditions of approval”).
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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
(Doc. #36 at 20-21.)
The Court will examine each
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
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
“Avoid[ing] hydrological impacts by re-routing seismic
survey activities around soft soils and standing water areas,
channelization.” AR 164185 (measure 7).
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).
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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).
See also AR 170347-67 (noting that after one year,
four of nine disturbed areas at Raccoon Point “had recovered
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
visited the site,” and “no acknowledgement of past successful NPS
restorations following oil and gas activities.”
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
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
(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.)
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
Therefore, pre- and post-impact topographic surveys are
Thus, NPS provided adequate support for the
effectiveness of such a mitigation measure, which satisfies the
“hard look” requirement of NEPA.
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.
The EA then explains that “NPS would be consulted to
determine access to off-trail source points in environmentally
And “[n]o Vibroseis operations will
be undertaken without prior NPS approval of proposed routes.”
Indeed the EA contemplates that “NPS staff and inspectors
will be heavily involved throughout field operations.”
restoration activities, and oversee monitoring efforts.
#47-1, ¶¶ 18, 22; AR 164192.
NPS has provided adequate support
- 55 -
for its assertion that this mitigation measure will lessen the
environmental impacts based upon the agency’s experience.
satisfied the “hard look” requirement of NEPA.
Dry Season Conditions
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
[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.
“[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.”
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
- 56 -
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
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
conditions in the Preserve will be ideal for operations.
Marsh, 490 U.S. at 377-78 (“Because analysis of the relevant
documents requires a high level of technical expertise, we must
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).
How wet the soil is on a day-to-day basis is something
- 57 -
that generally would not lend itself to precise definition, as
Thus, the Court cannot say that the agency
decision in this regard was arbitrary or capricious.
NPS took a
sufficient “hard look” under NEPA.
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
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)
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.
When it is
unclear whether a proposed activity is a “major federal action”
preliminary statement - an EA.
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.
Id.; 40 C.F.R. §§ 1501.4; 1508.9.
establish[es] whether or not an EIS or a Finding of No Significant
action,” it must produce a FONSI, which is a document “briefly
presenting the reasons why an action . . . will not have a
Whether an action will have significant impacts is a
expertise” and is entitled to deference.
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
between the facts found and the choice made.’”
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
Here, plaintiffs argue that at least five of the intensity
characteristics of the geographic area,” including “park lands,”
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
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).
argue that NPS improperly relied on vague, untested, and unlikelyto-succeed
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.
Parklands, Wetlands, and Ecologically Sensitive Areas
Plaintiffs first assert that an EIS was required due to the
“parklands,” “wetlands,” and “ecologically sensitive areas” within
the meaning of section 1508.27(b)(3).
NPS concluded that the
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.
potential impacts to water quality, hydrology, and subsurface
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.”
Additionally, vegetation; habitat; soils; protected plants;
impact topics selected for analysis in the EA.
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.
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With regard to wetlands, the FONSI for the EA included a Wetland
Statement of Findings (“Wetland Statement”).
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.
Statement determined that there would be no permanent loss or
degradation of wetland function, only temporary adverse impacts.
And any impacts would be substantially reduced by the
minimization and mitigation measures.
Statement also extensively discussed the minimization of potential
wetland impacts,” the project was in compliance with Director’s
Order 77-1 and Executive Order 11990, “Protection of Wetlands.”
As required by Hill v. Boy, once an environmental concern is
identified, the NPS is only required to take a “hard look” at the
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
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.
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
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
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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.
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).
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.”
“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
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 -
disagreement with the agencies’ conclusions).
Here, NPS reasonably found that “there is no substantial
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.
Precedent for Future Actions
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.
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.”
correspondence with Burnett months before the EA was complete, NPS
specifically declined to rely on past seismic-survey FONSIs to
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
Adverse Effects on Endangered or Threatened Species
Next, plaintiffs assert that the Plan is likely to “adversely
1508.27(b)(9), because the EA concluded that “[s]hort-term adverse
impacts to protected wildlife and other wildlife resources . . .
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
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
Cumulative Impacts & Mitigation Measures
asserting that significant impacts exist (and an EIS is required)
- 66 -
insignificant but cumulatively significant impacts.”
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
avoiding a finding of significant impacts.
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.
capricious, and did not violate the APA or NEPA.
9B Regulations Claim (Count V) 28
In 1978, pursuant to its Organic Act, the NPS promulgated
operations within national parks (the “9B Regulations”), 36 C.F.R.
These regulations apply to all mineral rights that
must be accessed through national parks, including the Collier’s
mineral estate under the Preserve.
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
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).
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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
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
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.”
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
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In Count V, plaintiffs allege that the Plan did not contain
any description of technologically feasible alternative methods of
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
methods that could be less damaging to Preserve resources, failed
to evaluate more effective mitigation measures (such as requiring
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.
Defendants assert that plaintiffs waived the 9B Regulations
argument by failing to raise it with any specificity during the
Yet a review of the record shows that
plaintiff raised the regulations during the administrative
process. AR 057334-35; 057352; 057399-400.
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Burnett’s Plan describes both of the reasonable and
And as discussed above, the Court has found that NPS
took a “hard look” at viable alternatives to 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.
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,
helicopter, and overall safety issues.”).
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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
information be contained in NEPA documents, must less specific
See 30 C.F.R. § 9.36(a)(16)(v).
Regulations state that cost information may be requested by the
Superintendent if it is appropriate to the proposed operations.
Apparently NPS was satisfied with the information Burnett
provided because it stated in the FONSI that the Plan satisfied
the 9B Regulations.
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
“Courts ‘will uphold a decision of less than ideal
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)).
“Absent evidence to the contrary, we
Sierra Club, 295 F.3d at 1223.
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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.
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),
preservation of endangered species ever enacted by any nation.”
Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).
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
16 U.S.C. § 1531(b).
“The plain intent of
Congress in enacting this statute was to halt and reverse the trend
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toward species extinction, whatever the cost.”
Auth., 437 U.S. at 184.
Under certain circumstances, the ESA requires that a federal
agency consult with the appropriate expert agency.
Section 7 and
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.
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
adversely affected by the action.
50 C.F.R. § 402.12(a).
Biological Assessment determines that an action “may affect” a
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.”
C.F.R. § 402.14(g)(4).
The ESA prohibits the “taking” of any member of a listed
endangered or threatened species.
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“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).
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
16 U.S.C. § 1536(a)(2).
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
See generally Defenders of Wildlife, 733 F.3d at 1111-
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)
Unlawfully Narrow Action Area
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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.
(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
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.”
Plaintiffs argue that the Agencies’ failure to use a 25-
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
acquisition operations will be limited to an approximately 2.5
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.
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square mile area per day, which is very different from the Addition
Daily scouting of the survey lines will be
conducted by a qualified ecologist to avoid potential impacts to
FWS 004973 (biological assessment) FWS 006624-29 (FWS
For purposes of this survey, NPS argues that
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
cavities; 200-foot buffer for foot or ORV traffic around redcockaded
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.
conservation measures and the temporary nature of the seismic
survey and associated impacts (i.e., one-pass design, 18-week
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project duration), the Service agreed with the NPS determination
that any adverse effects to listed species were insignificant or
Deference to an agency’s decision regarding the determination
of an appropriate action area is recognized and in order for the
capricious, the Court must find that “a clear error in judgment”
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
50 C.F.R. § 402.02.
Here, the Agencies considered the
wildlife effects of the survey without regard to where wildlife is
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
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
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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
Although the FONSI did state that the anticipated adverse
impacts would be similar to impacts from recreational ORVS analyzed
mitigation measures present in the EA here and noted that impacts
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would be minimized and limited.
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
protective measures that are not required for general recreational
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 Court finds no violation of the APA
or the ESA.
Direct and Indirect Impacts to Listed Species
Plaintiffs next argue that the BA failed to fully “evaluate
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
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activities, even though scouting to establish wildlife buffers
will not occur outside of the Phase I survey area.
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.
AR 174103 (2010
Plaintiffs also believe that the Agencies ignored and failed to
Florida panther that may be triggered if Burnett’s activities drive
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
Preserve, as described in the revised EA dated March, 2016.
006766 (revised EA); FWS 006946 (request for concurrence).
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.
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
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traveling within the Preserve to and/or between the five previously
proposed staging areas.”
The Court finds that the Agencies’ decision was not arbitrary
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.”
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
operations are “not likely to adversely affect” any of the ESAlisted species based in part on species-specific helicopter buffer
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.
has failed to persuade the Court that any additional studies are
needed to assess this impact.
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Cumulative Impacts on Listed Species
Plaintiffs next argue that the NPS’s BA for Burnett’s Plan
capricious and an unexplained departure from past FWS evaluations,
citing AR 179721-40; 095340-42; 169901-03; 174133-35.
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.
Plaintiffs state that the
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
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
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action area of the Federal action subject to consultation.”
C.F.R. § 402.02.
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.
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).
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
Use of the
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
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.
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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
determination deserving deference.”
Miccosukee Tribe, 566 F.3d
at 1265 (citing Marsh, 490 U.S. at 377–78).
information system (“GIS”) data for purposes of including certain
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.
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
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Plaintiffs have not demonstrated that this violates
Section 7 of the ESA.
As argued earlier in the NEPA context, plaintiffs assert that
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.
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.
See also AR 179740 (BA).
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. §
An agency’s expert determinations such as the appropriate
See Nat’l Parks Conservation Ass’n, 835 F.3d
- 85 -
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
Likewise, NPS had the experience from many of the
mitigation measures used during and after the 1999 Raccoon Point
“restoration of ruts and vehicle tracks resulting from seismic
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
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)
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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
And plaintiffs believe that even if the Agencies
speculate that the change is “more protective,” the Agencies must
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.
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
Reinitiation of consultation is required if new information
reveals, or a project modification causes, effects that were not
50 C.F.R. § 402.16(b)(c).
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.
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.
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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
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)
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
The NPS prepares and revises general management plans for
all NPS units, and may do so at any time.
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54 U.S.C. § 100502; AR
By failing to reinitiate consultation, plaintiffs argue,
the Agencies imperil their interests in the Florida bonneted bat
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
In addition, defendants argue that plaintiffs’ claim
fails on the merits.
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.
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,
requirement ensures that the Federal Judiciary confines itself to
consequences on the parties involved.”
- 89 -
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
Lexmark Int’l, Inc. v. Static Control Components,
Inc., 134 S. Ct. 1377, 1386 (2014) (citing Lujan, 504 U.S. at 560).
establishing these three elements.
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.
Court noted that a “concrete injury” “must be ‘de facto’; that is,
it must actually exist.”
Id. at 1548.
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But the Supreme Court
recognized that “concrete” does not necessarily mean “tangible,”
and “intangible injuries can nevertheless be concrete.”
determining whether an intangible harm constitutes injury in fact,
both history and the judgment of Congress play important roles.”
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.”
For example, a plaintiff could not allege a “bare procedural
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.
other words, a plaintiff in such a case need not allege any
additional harm beyond the one Congress has identified.”
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.
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
Declarations of John Adornato III (Doc. #94-1) and Matthew Schwartz
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.
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
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
- 92 -
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
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
- 93 -
The standing principles announced in Spokeo do not compel a
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.
“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.”
16 U.S.C. § 1540(g).
Executive observe the procedures required by the ESA.
Id. at 573.
This is in line with Spokeo, wherein the court there found that a
requirement “whenever a statute grants a person a statutory right
and purports to authorize that person to sue to vindicate that
136 S. Ct. at 1549.
There must be some concrete harm
separate from their statutorily-granted right to sue.
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
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
limitations on judicial power, as well as prudential reasons for
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
consider: “(1) whether delayed review would cause hardship to the
inappropriately interfere with further administrative action; and
development of the issues presented.”
Sierra Club, 523 U.S. 726, 733 (1998).
- 95 -
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).
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.
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.
Resource management plans generally do not constitute “agency
action” requiring ESA consultation under Section 7.
Guardians v. Forsgren, 478 F.3d 1149, 1158 (10th Cir. 2007).
Forsgren reasoned that “[s]pecific activities, programs, and/or
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projects are necessary to implement the plan.” Id. at 1158.
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.
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.
threats by the application of ESA to any future actions.
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
projects must be subject to site-specific reviews.
36 C.F.R. § 9B.
AR 1167332 and
As required, NPS’s decision was informed by a
site-specific ESA consultation that addressed potential effects on
established species-specific buffer zones limiting daily survey
activities, where appropriate.
See FWS 006627 (avoidance of
Florida bonneted bat roost sites).
to reinitiate consultation.
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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:
Plaintiffs’ Motion for Preliminary Injunction (Doc. #36)
Plaintiffs’ Motion for Summary Judgment (Doc. #94) is
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.
to Count VIII, Count VIII is dismissed without prejudice for lack
of constitutional standing.
Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment
(Doc. #102) is GRANTED.
The National Park Services’ Finding of No Significant
Impact is AFFIRMED.
The Clerk shall enter judgment accordingly, terminate
any pending deadlines and close the file.
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The Federal Defendants’ Motion to Strike (Doc. #106) 35
is DENIED AS MOOT.
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
of April, 2017.
Counsel of Record
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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