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The National Park Service’s decision to re-open 22.7 miles of trails to off-road vehicle use in Big Cypress National Preserve was illegal, a federal judge in Florida decided today (Defenders of Wildlife v. Salazar, 08-cv-237-FtM-29SPC, M.D. Fla.). He ordered the trails to be closed by July 24.
The ruling may not have any immediate impact, as Big Cypress already closed all units to ORV use for 60 days, starting June 4.
In his 80-page ruling, U.S. District Judge John E. Steele found for the environmental plaintiffs in virtually every respect. NPS violated the National Environmental Policy Act, Endangered Species Act, Big Cypress Establishment Act, National Park Service Organic Act, 2000 ORV Management Plan, and two Executive Orders dealing with off-road vehicle use.
Steele also found that NPS had breached a 1995 settlement agreement that required the service to prepare an off-road vehicle management plan and a Supplemental Environmental Impact Statement examining the effects of a “no action” alternative.
At issue was NPS’s 2007 decision to convert 1.58 miles of primary trail to secondary trail and to re-open 15.21 miles of primary trail and 7.49 miles of secondary trails — a total of about 24 miles.
Here’s a quick rundown of the judge’s decision, by count. Excerpts are from the opinion.
Counts One and Two: Breach of Settlement Agreement and Breach of NEPA
“NPS’s 2007 decision first reopened the trails and then committed to performing a study of ORV impacts in the Preserve. NPS obtained funding for a proposed interagency scope of work (SOW) to be performed jointly with FWS in 2008. AR 6840-6844.
“NEPA requires the agency to perform such studies before making a decision with environmental impacts. See Mainella, 375 F.3d at 1096 (“NEPA imposes procedural requirements before decisions are made in order to ensure that those decisions take environmental consequences into account.”)
“The Court finds that the administrative record does not reflect a rational basis for NPS’s 2007 decision to reopen trails in the BIU and, as such, the decision was arbitrary and capricious and a violation of NEPA. Summary judgment is granted in favor of plaintiffs as to Counts One and Two.”
Count Three: Big Cypress Establishment Act, National Park Service Organic Act, and the 2000 ORV Management Plan
“Because the Court finds that the administrative record does not reflect a rational basis for NPS’s 2007 decision to reopen trails in the BIU, plaintiffs will be granted summary judgment on Count Three.”
Count Four: Violation of Executive Orders 11,644 and 11,989
“NPS has failed to cite to substantive evidence in the record which demonstrates that the decision to reopen trails was made with the objective of minimizing impacts. The Court finds the decision to reopen the trails was therefore arbitrary and capricious.”
Counts Five, Six: ESA and the Amended Biological Opinion
“FWS’s 2007 Amended Opinion appears to be simply a post hoc justification rather than a reasoned scientific judgment. Just days before issuing its decision to reopen the trails, NPS consulted with FWS and asked the agency to concur in its assessment that reopening the trails was consistent with the 2000 Biological Opinion. The following day, FWS concurred with NPS’s conclusions. FWS simply stated that NPS’s commitment to perform studies in the
future was sufficient to demonstrate that NPS intended to implement the ITS and the terms and conditions of the 2000 Biological Opinion. FWS then waited several months before issuing its Amended Opinion.”
“In 2000, FWS concluded that an approximate limit of 30 miles of primary trails and short secondary trails in the BIU would cause some incidental take of the Florida panther. This ‘take’ was allowed only if NPS completed several studies related to ORV use and its impacts. In 2007, FWS concurred with NPS’s decision to designate approximately 20 additional miles in the BIU without any ‘new’ information. Although FWS notes that ‘no clear schedule was set for particular studies,’ AR 2044, not a single study was completed between 2000 and 2007. Thus, in 2000, one set of scientific data caused FWS to reach a certain conclusion, and in 2007 essentially the same set of data caused FWS to reach a significantly different conclusion. Such action is the very definition of “arbitrary and capricious” unless explained by FWS. No reasonable explanation is contained in the record.”
“Although FWS states that the biological opinion was amended because of ‘continuing discussions and new information presented,’ AR 2045, defendants do not cite to any “new” data. The initial opinion relied upon the 1999 Janis and Clark study (published in 2002), among other research, to conclude that the ORV effects on panthers would be ‘minor.’ FWS relies on this same study in its amended 2007 opinion. Additionally, defendants characterize an increase in panther numbers between 2000 and 2006 (from 62 to 97 panthers, AR 2049 and 2072) as ‘new’ data, but the fact that panther numbers would increase was known in 2000. The cause of the increase was the 1994 introduction of eight female Texas panthers into the population. Finally, to the extent FWS cites the [Scope of Work] as ‘new’ data, that information was obtained after FWS concurred in NPS’s decision to reopen the trails.”
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