There is a sprawling, humid expanse of subtropical landscape of more than 2.2 million acres in the country's third-most-populated state. Within this moist, marshy acreage embraced by Big Cypress National Preserve and Everglades National Park is an amazing, and unusual, assemblage of flora and fauna.
There are rare woodpeckers that live in family groups, with youngsters helping to raise their siblings. There's a subspecies of panther (listed as an endangered species nearly five decades ago) that has tenaciously survived despite the steady urbanization of Florida. More than 30 species of orchids grow in Big Cypress, perhaps most notable among them the Ghost orchid that snakes its roots around the trunk of its host tree, anchoring its beautiful flowers. And there is the Everglades Dwarf Siren, a curious salamander with bushy gills that can grow up to 10 inches long.
And underlying their collective habitats, beneath the Big Cypress Swamp that the national preserve was established in 1974 to protect and preserve for the rest of time, lies fractured rock, a porous honeycomb of limestone and, perhaps, oil.
While Everglades National Park is off-limits to oil and gas exploration due its "national park" status, Big Cypress is not. And a recently approved plan to search for oil on 110 square miles of Big Cypress will test the National Park Service's ability to balance the unimpairment of these resources while also permitting the "enjoyment of privately owned oil and gas interests."
It's a controversial matter. The Park Service could have avoided this if the government had acquired the subsurface mineral rights when Big Cypress was established (something that might actually have been done but which seems to have been lost to history; more on that in a bit). Congress could have bought these rights from Collier Resources Co. for $120 million in the early 2000s, but Congress balked and an investigation prompted by a whistleblower later indicated the price was made from whole cloth.
But neither of these purchases were triggered, so Big Cypress's managers have to consider the proposal by Burnett Oil Co. to seismically survey a portion of the preserve for Collier to determine if there are viable, recoverable oil reserves.
But instead of conducting an Environmental Impact Statement, an exhaustive document that would closely examine how wildlife and vegetation might be impacted by the surveying work, preserve staff wrote a less stringent Environmental Assessment. That decision could add to the preserve's recent litigious history, one that has focused mainly on off-road-vehicle access but which could soon count lawsuits over wilderness designation as well as whether the Park Service should have conducted an EIS on the seismic survey.
Jacki Lopez, who grew up in Florida and now works for the Center for Biological Diversity as an environmental attorney, said the preserve staff "seems to believe that they have no say in the matter, that the regulations to them are clear that as long as they follow the (National Environmental Policy Act) process that they can’t deny a permit for this type of activity."
She also points out that some of the lands where the surveying will be conducted could qualify for wilderness designation; preserve staff currently are conducting a wilderness assessment that could add to, or reduce, the acreage that exhibits wilderness qualities.
"They’re in the middle of the process of attempting to designate wilderness and some of these lands would be implicated there, and it’s not really clear what’s going on with that, how one might affect the other," said Ms. Lopez.
Listening For Oil
Big Cypress sprawls across more than 720,000 acres of Big Cypress Swamp in south Florida, protecting not only its flora and fauna and the steady flow of freshwater that nourishes the "river of grass" that is synonymous with the Everglades. Big Cypress and Big Thicket National Preserve in Texas were the first of the National Park System's "preserves," landscapes that, while within the system, are not as protected as "national parks." Hunting and oil development are both permitted within preserves, albeit under Park Service approval and oversight.
The Center for Biological Diversity, the National Parks Conservation Association, the South Florida Wildlands Association, and the Coalition to Protect America's National Parks don't flatly oppose all such activities. But they do question Burnett's use of vibroseis vehicles without a more rigorous EIS. These massive trucks weigh up to 22 tons. They create ground-penetrating seismic waves by exerting all their weight onto a vibrating steel pad. The shock waves are received by small instruments called "geophones," allowing the geologists to create a three-dimensional map of the underlying ground.
In a statement to the Traveler about their interest in exploring Big Cypress for oil, Collier officials said:
"The Big Cypress National Preserve was established as a preserve and not a park, in part, for the purpose of maintaining certain existing rights – one of which was oil and gas exploration and development. In fact, Congress acknowledged that the mineral rights would continue to be privately held and that the environmental protection standard that they must uphold is to ‘...assure the natural and ecological integrity in perpetuity...’ while allowing ‘...reasonable use and enjoyment of privately owned oil and gas interests.' Additionally, Congress has had multiple opportunities to acquire oil and gas rights and declined each opportunity.
“There have been a number of oil and gas exploration operations in the Big Cypress National Preserve and proprietary geological studies, combined with new technology and a better understanding of the reserves available, indicate that there may be the potential to recover billions of dollars worth of oil on privately held minerals. To unlock this potential, while mitigating impacts to the environment, Collier Resources Company’s lessees must go through a rigorous state and federal permitting process to obtain permits to conduct 3-D seismic surveying operations. Seismic surveying is not new to the area and gives CRC’s lessees the ability to determine more precisely where potential new oil fields are located. There will also be a state-approved biologist and archaeologist on site at all time to instruct crew to avoid disturbing wildlife and cultural sites. And, finally, hundreds of miles of 2-D lines have been surveyed throughout the Big Cypress National Preserve and present day satellite imagery shows no detectable impacts to the preserve."
Whether there are "billions of dollars" worth of oil beneath Big Cypress is unknown. Florida is not among the nation's top oil-producing states. According to the U.S. Energy Information Administration, the state's total production this past March (the latest data available) was 6,000 barrels per day. North Dakota, meanwhile, reported 1.1 million barrels per day during that period, and Texas produced 3.3 million.
Currently, there are 16 production wells in Big Cypress, but not all are operational; combined they produce an estimated 30,000 barrels of oil a month, according to park staff. The parent company of one of the producers, Breitburn Florida, LLC, last month filed for reorganization under Chapter 11 bankruptcy laws, citing "(T)he prolonged decline in commodity prices that began in 2014..."
In an interview in August 2015 with WLRN Public Radio and Television, Edward Glab, director of the Global Energy Forum at Florida International University, didn't see value in drilling for oil in the state.
If you look at the risk-benefit again, look at the delicate ecology, keep in mind that since the arrival urbanization and agriculture in Florida, we've already lost to urban development and agriculture over 50 percent of the Everglades.
And then if you look at what the agricultural development has done to the Everglades in terms of fertilizer pollution and if you look at some of the things the Army Corps of Engineers did during the years that were not the wisest things in the world, the Everglades are at great risk.
What we're doing now is to restore this very valuable ecosystem in South Florida. And I don't think we need to be putting at risk the Everglades for a couple of barrels of oil that frankly we don't need.
If the Burnett Oil survey proceeds as intended, it would be "the only vibroseis survey identified exclusively for off-road ever attempted in the state," according to the Park Service.
National Park Service observers who watched a demonstration of the vehicles in April 2015 had reservations about their use. During that test -- which Burnett Oil started before the preserve observers arrived -- one of their vibroseis vehicles got mired in a ditch that it tried to cross. It took a call to a nearby oil and gas production site to find a piece of large machinery that could haul it out of the muck and mud. That incident, and concern that Big Cypress' wetlands could pose more problems for the survey, led the preserve's observers to question whether an EIS was merited.
"Extrapolating the impacts observed to multiple vehicles in a much larger area suggests that the potential wetland impacts could be significant," the unidentified Park Service staff wrote. "One purpose for this test was to inform what the unknown impacts for this new technology may be in the wetland environment. When the environmental impacts of an action are unknown, an EIS is usually required. If the test had shown that the impacts were not significant, an EA would be justified. Since the extrapolated impacts could be significant, an EIS may be warranted."
Big Cypress Superintendent Tammy Whittington declined several requests to discuss the matter by phone and explain why she supported an EA rather than an EIS.
Bob DeGross, the preserve's chief of interpretation and public affairs, said necessary safeguards have been stipulated by staff to ensure no lasting impacts result from the surveying, which isn't expected to begin at least until the dry season arrives in the fall. Those safeguards call for observers -- including archaeologists and biologists -- to scout proposed routes for sensitive species and guide the vibroseis vehicles through the boggy landscape. Crews with shovels and rakes are to be on hand to restore "original contour conditions" if necessary. As a result, he said, there was no need for the more exhaustive EIS.
Despite the 46-item list of management strategies the Park Service came up with to protect the backcountry of Big Cypress, there remain concerns among some groups that the agency should have conducted an EIS.
"There’s some argument that if they’re going to allow potential oil and gas, there should be an EIS," said Mike Murray, a former park superintendent now retired and a member of the Coalition to Protect America's National Parks. "Generally, conservation group comments have advocated for an EIS, and we have too. My take on what the Park Service has said: 'Because this is only a survey, the impacts are not likely to be significant, so an EA is appropriate for the survey.'”
U.S. Sen. Bill Nelson, D-Florida, had asked Interior Secretary Sally Jewell to order an EIS before the survey work was allowed to go forward.
“If history is any indication, approval of Burnett's request for a massive seismic survey essentially signals a green light for future drilling and fracking,” the senator wrote early this year. “That's why I strongly urge you to complete an Environmental Impact Statement for Burnett Oil Company's proposed seismic survey.”
In February, Sen. Nelson took to the Senate floor to warn about the risks of oil and gas development in Big Cypress:
In April the Democrat again wrote Secretary Jewell, urging her to give the public more time to analyze and comment on a revised EA the Big Cypress staff issued in late March. He had no comment after the Park Service approved the survey work.
Ben West, chief of planning at the Park Service's regional office in Atlanta, is comfortable with the decision to utilize an EA.
"We believe that the EA and the Finding of No Significant Impact was appropriate based on the impacts that we were able to assess," he said, as well as with the experience the park staff has had over the years working with both off-road vehicle issues and oil development elsewhere in the preserve.
GIS maps and satellite imagery will help guide the survey, and care will be taken to consider on-the-ground conditions in the survey area to guide decision-making as to where the vibroseis trucks can go, said Mr. West.
Mr. West said there was a time when the Park Service was considering an EIS on the proposed survey, but that it became moot after the 46 mitigating steps were designed.
"The more we worked with the applicant, the more we started to overlay an understanding of their operations and, in particular, the suite of those mitigation measures, I think fundamentally that’s what allowed us to feel confident that at the end of the day we didn’t need to do an EIS, that an EA was appropriate," he said. “The range and the commitment of those measures we feel like strongly support the record and the ability of us to manage those impacts to below significance.”
If the survey is carried out and points to valuable oil reserves, the companies would have to submit a plan of operations for drilling. The Big Cypress staff would typically produce an EA on that plan, and it could point to the need for an EIS, explained Mr. DeGross.
Florida Panthers And Other 'T&E' Species
Since 1967, the Florida panther has been listed as endangered under the Endangered Species Act, the country's hallmark legislation designed to prevent species from becoming extinct. Though the U.S. Fish and Wildlife Service is required by the ESA to designate "critical habitat" for species proposed for listing as either endangered or threatened, that requirement arrived years after the panther was designated as endangered, and so critical habitat has never been defined.
In recent years members of Florida congressional delegation have asked President Obama to order Fish and Wildlife to designate critical habitat for the cats.
"As you know, the two greatest threats to the Florida panther are the loss of habitat and automobile-related deaths, both of which are caused by increased development in environmentally sensitive areas. The best available science suggests that current lands in conservation do not provide enough suitable habitat area to support even the limited number of existing panthers," nine members of Congress wrote the president this past December. "It is of great importance to designate a critical habitat not only because it would preserve and encourage the growth of the current population of Florida panthers, but also because it would help to protect other valuable environmental resources, such as wetlands, aquifer-recharge areas, drinking water supplies and the habitat of other endangered species."
Ken Warren, public affairs officer for the Fish and Wildlife Service's South Florida Ecological Services Office, said Friday that the Interior secretary has the discretion to have critical habitat for the Florida panther defined. However, he continued, "the Service does not believe that designating critical habitat for the Florida panther will, on balance, contribute substantially to the conservation of the species, and is focusing its limited resources on implementing collaborative approaches with private landowners to recover the panther."
"The most substantive consequence of critical habitat designation is to require federal agencies to consult with the USFWS to ensure that any actions they authorize, fund or carry out are not likely to result in the 'destruction or adverse modification' of designated critical habitat," he said. "Critical habitat designation would provide little conservation benefit on the private lands that are so important to panther recovery, and critical habitat designation may in fact be an impediment to the voluntary and collaborative partnerships with landowners that are needed to support future growth and expansion of the Florida panther population."
In its comments on the oil and gas survey, the Fish and Wildlife Service said that the oil survey area is within the panthers' "primary zone." At the Center for Biological Diversity, Ms. Lopez said that zonal designation more than likely would have been considered critical habitat for the cats if the Fish and Wildlife Service had ever defined that habitat.
"The Fish and Wildlife Service, based on a series of studies, a few years ago outlined what it considers primary, secondary, and dispersal habitat," she explained. “And so, Burnett is within primary panther habitat. And if you overlay that same area with telemetry data that’s collected on panthers, it’s an area that’s used very heavily by panthers.
“Big Cypress National Preserve is excellent habitat for Florida panthers because it has the prey species that the panthers need. It has white-tailed deer, it has raccoons, it has all those medium-sized animals that panthers need, and it has a ton of relatively undisturbed habitat, over 700,000 acres," Ms. Lopez continued. "And it butts right up against urban development, so it's basically the last stronghold for the panther.
“It’s where panthers are.”
And in recent years that southern Florida stronghold has been shaky, as in 2014, and again in 2015, record numbers of panthers died. Through the first five months of 2016, at least 25 more panthers were killed. Most of the deaths through those three years were due to vehicle collisions, but there were three instances in 2014, three in 2015, and two in 2016 in which intraspecific aggression -- lions killing lions in territorial fights -- was identified as the cause of death. Half of those cases arose in Big Cypress National Preserve, evidence of shrinking habitat for the cats.
Still, Mr. Warren said the current Florida panther population is estimated at 200 individuals.
The Florida panther is not the only threatened or endangered (T&E) species in Big Cypress in general or the survey area specifically. Others, according to the Fish and Wildlife Service, include:
* Florida bonnetted bat, an endangered species that possibly could be using the area for roosting and foraging;
* Wood stork, an endangered species;
* Red-cockaded woodpecker, an endangered species that uses colony areas ranging up to 10 acres in size and home ranges up to 400 acres;
* Everglade snail kite, an endangered species;
* Audubon's Crested Caracara, a threatened species that might having nesting sites within the survey area;
* Eastern Indigo snake, a threatened species that could be present within the survey area, and;
* American alligator, a threatened species that might be present within the survey area.
The Park Service wants ground observers to scout areas for these and other species before allowing the survey work to proceed, and establish buffer zones if need be.
Ms. Lopez questioned how thorough those scouting forays might be, especially in the case of the Eastern Indigo snake, which utilizes gopher tortoise burrows.
"You might not even know that they’re around unless you have somebody trained to identify gopher tortoise burrows. And you might not even know if they’re around you and out of their burrow because they’re snakes; they’re very cryptic," she said. "The effects of the type of surveying and the effect that it might have on (the snake's) senses, maybe even cause permanent damage to its body. None of that stuff has been evaluated.”
She also questioned the Fish and Wildlife Service's decision to say the surveying work "may affect, not likely to adversely affect" the panthers, rather than use the Park Service's "may affect" determination. The change in wording, she said, dismissed the need for the Fish and Wildlife Service to prepare a "biological opinion" on how the survey work might impact the panthers.
"So it circumvents the biological opinion, which would have produced all of that analysis that would have determined how much ‘take,’ how much harassment would have occurred. It just jumped straight to the conclusion that there’s not going to be any harassment, there’s going to be no take of the species, and doesn’t provide any kind of robust analysis of the effects of the project," said Ms. Lopez.
At South Florida Wildlands, Executive Director Matthew Schwartz is concerned about how the surveying work will impact the vegetation in general and Dwarf cypress trees specifically.
"The density of the source and receiver lines shocked me," he said. "Most of Burnett's target area consists of what's called cypress prairie, or cypress savannah. Burnett cannot cut down cypress domes and hammocks - but they can cut down trees that are 3 inches or less at 'breast height.' There are many dwarf cypress trees in the Big Cypress that are very old, but would be 3 inches or less at breast height. They may be planning on cutting some down to get into the more open prairies."
Deal For Subsurface Mineral Rights Derailed
There were concerted efforts, late in President Clinton's second term and again during the first term of President George W. Bush, to buy out the subsurface mineral rights from Collier Resources Co. In the end, Congress refused to fund the $120 million deal, which the Interior Department's Office of Inspector General later maintained was wrongly tilted in favor of the company.
"The attempted purchase of CRC's mineral interests in BCNP has a long history, spanning more than a decade and two administrations, much of which is chronicled in our Special Report," then-Inspector General Earl Devaney wrote in June 2005 after a two-year investigation. "The significant trends throughout this history are the 1) objections of career program staff who knew the rules were not being adhered to, and 2) the persistence of the lawyers who advanced the deal in disregard of the rules that career program staff were so concerned about.
"In my view, the Department is simply not well-served by senior, seasoned, career employees who dissemble an illicit process and present it to decision-maker -- in both the Department and in Congress -- as righteous. The conduct revealed in this Special Report cries out for accountability."
According to the OIG report, the negotiations were conducted even though "there was no known oil present." The talks also involved materials provided by Collier Resources but which the company would not warrant as accurate, the report stated, and there were notes indicating that Collier was more interested in being paid for the subsurface rights than in drilling for oil. There also were significant and substantial flaws in the appraisal processes used to try to come up with a value for the company's holdings, according to a third-party evaluation of the work.
Furthermore, a review of four appraisals -- three by the Interior Department and one by the State of Florida -- on the lands acquired for Big Cypress performed for the OIG by the not-for-profit Appraisal Foundation led to an opinion that the subsurface mineral values were taken into consideration when Collier Resources was paid for the surface acres, and so "there would be no basis for any further compensation."
"Yet, the agreement between the Department and CRC excepted oil and gas rights," the OIG said.
John Donahue, who was superintendent of Big Cypress at the time of the negotiations, shakes his head that the issue has resurfaced.
"This was a huge controversy, and it was so close to the Everglades Coalition meeting that it became sort of a public relations nightmare. I credit the administration at that time for turning around and coming up with a solution. They basically said what are (Collier's) options, legally, and I said, 'You have two options: they’re allowed to use their rights -- these are rights, they’re property rights -- so you either allow them to use their rights, with reasonable regulations, or you buy the oil and gas rights,'" he said.
“I must admit that it’s shocking to me to come back and see people talking about the same issue again when the resolution and the solution was in hand so long ago," said Mr. Donahue, now superintendent of Delaware Water Gap National Recreation Area.
Tilting Towards Development?
There seems to be a trend over the past decade for superintendents at Big Cypress to favor developing the preserve rather than preserving its landscape. Some actions appear to take a "multiple use" approach to managing the landscape, something that does not apply to the National Park System.
ORV use of the land now found within Big Cypress dates to the 1920s. Down through the decades, unregulated ORV use burgeoned, leading to the creation of more than 23,000 miles of dispersed trails. In 2000, then-Superintendent Donahue, acting on biological information and suitability studies indicating that ORVs were damaging ecosystems and disturbing the Florida panther, implemented an ORV plan that aimed to cut those 23,300 miles of dispersed trail 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, plus an unspecified amount of secondary routes. But in 2007, then-Superintendent Karen Gustin (now retired) determined that those 20 miles of closed trails could be reopened. That decision spawned a threat from environmental and conservation groups, including the National Parks Conservation Association, The Wilderness Society, the Sierra Club, and Defenders of Wildlife, that they would go to court to overturn Ms. Gustin's decision.
Those groups did go to court, and Superintendent Gustin's decision was overturned by a judge who said her actions were "arbitrary and capricious" and that she 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 Donahue.
Another lawsuit was filed when then-Superintendent Pedro Ramos (now the Everglades superintendent) opted 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.
Groups such as Public Employees for Environmental Responsibility, NPCA, South Florida Wildlands Association, and the Sierra Club were shocked when the preserve staff, after announcing in their 2009 Draft General Management Plan for the Addition that approximately 109,000 acres were “wilderness eligible,” subsequently conducted a “re-assessment” completely outside of public view that concluded that only 71,000 acres were eligible and recommended just 47,000 acres be proposed to Congress as future wilderness. The effect of this quick re-assessment would allow much of the Addition to be fragmented by a network of off-road vehicle trails.
"One of the most egregious representations in the Addition Lands wilderness and management plan was the liberal use of the term 'multiple use' - this term does apply to any NPS unit," Kristen Brengel, vice president of government affairs for NPCA, said Friday. "One could argue that this was the beginning of twisting NEPA to make unsound legal arguments in order to allow damaging uses in the Preserve."
An ensuing lawsuit by the environmental organizations led to a federal judge's determination in 2014 that Superintendent Ramos was within his rights to open much of the Addition Lands to ORV use. That ruling stated that the Park Service was allowed to place an emphasis on recreation above preservation. It was a ruling seen by some as chipping away at the longstanding mandate that the agency put preservation first. The ruling has been appealed and, in a brief filed in the case, the Department of Justice said the judge possibly erred in conflating Bureau of Land Management land-use guidelines with Park Service guidelines.
"The court's citation to Norton v. S. Utah Wilderness Alliance suggests that the court used the term "multiple use management" in the (Federal Land Policy And Management Act) sense. If so, the court erred. FLPMA governs the management of public lands administered by the Secretary of the Interior through the Bureau of Land Management, not the Secretary's management of the National Park System through NPS. Id. §1702(e). Moreover, NPS generally does not interpret the enabling legislation for an individual unit of the National Park System to alter ("tweak") the Organic Act's conservation mandate in 16 U.S.C. §1. See 2006 Management Policies 1.4.1 (reproduced at Appx. 1809)," the Justice Department lawyers pointed out. Furthermore:
"... The district court's decision could be read as concluding that NPS is required to allow recreational ORV use in the Addition. Appx. 398. To the extent that the court so ruled, NPS disagrees. As discussed in the text above, in NPS' view, Congress authorized the Secretary of the Interior to permit recreational ORV use in the Addition, but did not mandate that the Secretary do so."
Most recently, the decision by Superintendent Whittington, who took over at Big Cypress last summer, to favor an EA over and EIS for the oil surveying work is viewed by some as a continuation of a pro-development attitude at the preserve.
"There’s been fluctuation over time with how the various current superintendents viewed the enabling legislation vis a vis the (National Park Service) Organic Act," said Mr. Murray, of the Coalition to Protect America's National Parks. "Yes, enabling legislations (of park system units) can allow activities that are not allowed in other units -- ORVs, oil and gas, hunting, you name it -- but it doesn’t lessen the applicability, or the full meaning, of the Organic Act.
"... Those of us in the Coalition who have worked in a variety of parks, national preserves, national seashores, national lakeshores, national recreation areas, many of which have some type of activities allowed that are not the norm in a national park -- hunting, commercial shellfishing, ORV use, oil and gas development -- the way I was trained throughout my career is the Organic Act is the underlying legal premise for managing a park," he explained. "And even if the enabling legislation allows some unusual activity, not the normal activity in most units, even if those are allowed, those are managed conceptually under the philosophy of the Organic Act."
The various conservation groups concerned over the survey work approved for Burnett Oil are considering what options they have to challenge the Park Service's Finding of No Significant Impact.