Federal Court Tosses Out ORV Plan For Bear Island Unit Of Big Cypress National Preserve, Says Park Service Acted Without Reason

A federal judge has ruled that the National Park Service acted without sound reasoning in 2007 when it reopened more than 22 miles of off-road vehicle trails in Big Cypress National Preserve in Florida and ordered that the routes be closed before month's end.

"Simply stated, NPS’s decision to convert 1.58 miles of primary trail to secondary trail, to re-open 15.21 miles of primary trail, and 7.49 miles of secondary trails was arbitrary and capricious," U.S. District Judge John E. Steele said in his 80-page ruling (attached below) issued Tuesday.

The ruling, applauded by the National Parks Conservation Association and other environmental groups that challenged the Park Service decision in the preserve's Bear Island Unit, held that the preserve's superintendent in 2007, Karen Gustin, failed to adhere to the National Environmental Policy Act, the Endangered Species Act, the Administrative Procedures Act, violated past Executive Orders pertaining to off-road vehicles, the Big Cypress Establishment Act, the National Park Service Organic Act, and the preserve's 2000 ORV Management Plan adopted by then-superintendent John Donahue.

“This is a really important ruling because what this judge has said is that the preserve has been irresponsible in the stewardship of the preserve’s resources," John Adornato III, the Sun Coast regional director for the NPCA, said this morning during a telephone call.

"These very same areas were already identified as too sensitive for ORV vehicles by the 2000 ORV plan and the prior superintendent, and by a press release (from Superintendent Gustin) were reopened," he added.

When he approved the 2000 ORV plan, Superintendent Donahue based his decision on biological information and suitability studies indicating that ORVs were damaging ecosystems and disturbing the Florida panther, an endangered species. That plan aimed to cut 23,300 miles of dispersed ORV trails in the preserve down to just 400 miles of designated trails. In Big Cypress's so-called Bear Island Unit, that plan called for a reduction of 55 miles of primary trails to just about 30 miles of primary trails and an unspecified amount of secondary routes.

During a 2007 interview with the Traveler, Superintendent Gustin (who later moved on to Olympic National Park as superintendent before retiring earlier this year) maintained she was operating well within her authority to reopen the ORV trails. By developing travel plans for each of the preserve's various units, Big Cypress managers would establish a well-defined trail network, one that will be easier to regulate, the superintendent said at the time.

“Prior to this plan being written, there was dispersed use all over the place. Negative resource impacts. I think everybody agrees with that," said Superintendent Gustin. "And the plan was meant to No. 1, protect resources, and No. 2, to get rid of dispersed use. That’s a huge goal for us. To get rid of dispersed use completely, we have to have a trail system in place so that we can enforce the regulations to keep those people on the trails."

As to concerns that allowing 20 more miles of ORV trails in the Bear Island Unit would be detrimental to the survival of the Florida panther, the superintendent said the latest biological information on the panther says it can co-exist with ORVs at the proposed levels.

But in his ruling, Judge Steele said the superintendent had no evidence to support her conclusion and needed to conduct more environmental analysis under NEPA regulations before moving forward with her plan. Relying on studies made in connection with the 2000 ORV Management Plan was wrong, he said.
While Judge Steele agreed with the Park Service that the 2000 plan allowed for eventual changes in the miles of ORV trails in Bear Island, he noted that the plan specifically mentioned that those changes could come about "as better data become available."

"NPS, however, has not identified what 'better data' became available between 2000 and 2007," the judge wrote. "The Janis and Clark study which defendants heavily rely upon simply cannot be considered 'new' data. The study was performed in 1999. Defendants’ counsel admitted at oral argument that the research was the same and that the only way in which the study was 'new' was that it was published and peer-reviewed in 2002. Publication of data already relied upon does not make the data 'new.'"

Judge Steele also took strong exception to the preserve's position in 2007 that it could reopen the ORV trails first, and look for environmental consequences later.

"NEPA requires the agency to perform such studies before making a decision with environmental impacts," he wrote. "The Court finds that the administrative record does not reflect a rational basis for NPS’s 2007 decision to reopen trails in the (Bear Island Unit) and, as such, the decision was arbitrary and capricious and a violation of NEPA."

In concluding his ruling, Judge Steele gave the Park Service 14 days from July 10 to close the trails.

Going forward, courts currently are reviewing the decision by current preserve Superintendent Pedro Ramos to open much of the Addition Lands unit of Big Cypress to ORV use.

The Addition Lands had been closed to both ORV use and ORV-assisted hunting ever since they came to the preserve in 1996 while officials worked on developing a management plan for the area. Of the thousands of species of flora and fauna found in the Addition Lands, nearly 100 plants are listed by the State of Florida as endangered or threatened while 29 animal species have federally protected status.

When Superintendent Ramos released the final version of that plan in November 2010, it called for up to 130 miles of ORV trails, and as many as 650 ORV permits annually. Along the way to developing that plan, his critics allege that the superintendent and his staff went around Park Service Director Jon Jarvis' wishes and denied wilderness eligibility for 40,000 acres in the Addition section.

Back at the NPCA, Mr. Adornato said the current ruling should send a message to the Park Service about its decision for ORV use in the Addition Lands.

"I think the clear message is that the Park Service’s decisons were irresponsible," he said. "The stewardship of the preserve is ultimately for the primary purpose, which is to protect this unique wetlands, this incredible cypress swamp.

"Now, NPCA has defended the 400 miles of off-road vehicles (in the preserve), so we believe there is responsible stewardship that can happen with the use of off-road vehicles in the preserve," the NPCA official added. "But the decision to reopen the Bear Island trails, to maximize ORV trails in the Addition Lands, at the expense of wilderness, and minimizing wilderness designation in the Addition Lands, that’s irresponsibile stewardship.”

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BICY-Bear Island Ruling.pdf313.6 KB