ELECTRONIC SUBMISSION – NO HARD COPY TO FOLLOW
October 26, 2016
Tamara Whittington, Superintendent
Big Cypress National Preserve
33100 Tamiami Trail East
Ochopee, Florida 34141-1000
Subject: Eleventh Circuit Court of Appeals Ruling in Big Cypress Addition GMP Case
Dear Superintendent Whittington:
I am writing to you on behalf of over 1,100 members of the Coalition to Protect America’s National Parks (Coalition). Our membership is composed entirely of retired, former, or current salaried employees of the National Park Service (NPS). As a group, we collectively represent more than 30,000 years of national park management experience. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. We count among our membership former NPS employees of Big Cypress National Preserve (Preserve), who, like us, are quite concerned about a number of recent management decisions at the Preserve.
We are writing about the implications of the recent decision of the Eleventh Circuit Court of Appeals in the litigation that challenged the Addition General Management Plan (the “Plan”) and related actions relating to the Addition portion of the Preserve. That Court, of course, upheld that Plan, the wilderness eligibility assessment on which it was based, and the NPS’s and Fish and Wildlife Service’s compliance with the Endangered Species Act in that connection. The Coalition had submitted an Amicus Brief to that Court in support of National Parks Conservation Association’s position that the Addition Plan violated the Organic Act.
Because all of the events on which that litigation was based, and almost all of the litigation itself, occurred before you came to the Preserve, we want to advise you of some facts of which you might not be aware, facts having significant implications for the manner in which you manage the Preserve going forward.
The Organic Act’s mandate is, of course, that, when recreational uses conflict with the conservation of resources and values of a park, NPS must place conservation first. As you know, a foundational issue in the litigation was whether the Preserve and Addition Enabling Acts had changed that mandate as it relates to the Preserve. In defending the Plan, NPS had argued that the Enabling Acts had changed that mandate and that the Preserve was therefore a “multiple use” park where NPS has relatively unbridled discretion to “strike a balance” between recreation and conservation in its discretion. Judge Steele of the U.S. District Court had accepted that argument and concluded that “the conservation mandate of the NPS Establishment Act was tweaked by the subsequent Preserve Act and the Addition Act, both of which required multiple use management…” Requiring NPS to put conservation first “would not be ‘striking a balance,’” he found.
NPS’s argument to the district court and its acceptance of that argument alarmed and dismayed our members. Our members clearly recall, and were actively involved in resisting, the 2005-2006 efforts of some officials to rewrite NPS’s official interpretation of the Organic Act in what became the 2006 Management Policies. Thankfully, the opponents of that effort prevailed, and the official NPS interpretation remains that conservation must come first except to the extent Congress expressly directs otherwise.
The Coalition therefore considered filing an amicus brief in support of the legal challenge to the district court decision in this regard. But first, we met with Director Jarvis to give him the opportunity to tell us of his position and reasoning. We had such a meeting in April 2015. I was joined by Deny Galvin and Dick Ring. The Director was joined by three members of the Department’s Office of the Solicitor.
At the meeting, we expressed concern about two issues – the Organic Act issue and the wilderness eligibility determination for the Addition that was based, in part, on novel wilderness eligibility “assumptions.” As background, Director Jarvis had denied a previous policy waiver request in 2010 from Superintendent Ramos that would have allowed ORV use in areas of the Addition that had already been identified in 2006 as being wilderness “eligible.” That assessment was based largely on the application of the primary NPS wilderness eligibility criteria listed in NPS Management Policies 2006 (Section 18.104.22.168), which has been the conventional NPS approach for conducting such assessments for many years. After the policy waiver request was denied, the Preserve redid its wilderness eligibility assessment in 2010, this time using heretofore unseen (i.e., novel) wilderness eligibility “assumptions.” The use of the novel assumptions made it possible for the Superintendent to withdraw from the previous eligibility finding over 40,000 acres within the Addition where he wanted to allow ORV use and thus avoid the need for the policy waiver.
At the meeting, the Director indicated, in essence, that the above approach was taken in order to accede to the State’s wishes (regarding areas open to ORV use in the Addition) so that the State would follow through on its promised donation of 16,000 acres of State land to the Preserve. Director Jarvis strongly suggested to us that NPS would not apply the same approach (of conducting eligibility assessments using the novel assumptions) under other circumstances and it would not become the standard practice moving forward. (You may be aware that the State only agreed to transfer that land after then-Superintendent Ramos made a presentation to the Governor’s Cabinet about the Addition Plan on December 10, 2010.)
We were therefore dismayed when we later learned that, as part of the Preserve’s development of a Backcountry Access Plan, the June 2015 wilderness eligibility assessment for the Original Preserve used essentially the same interpretations of the statutory criteria (i.e., the novel wilderness eligibility assumptions) that had been used in Addition wilderness eligibility determination.
As you are aware, the Coalition did, in fact, file an Amicus Brief in the Court of Appeals on the Organic Act issue. We were pleased to see that the Department of Justice brief for NPS did not support the argument that the Preserve is a “multiple use” management area. National Parks Conservation and the Coalition argued strongly that NPS and the district court had applied the wrong standard to NPS’s Plan.
The Court of Appeals did not accept the flawed “multiple use” standard and did not find that the standard for managing the Preserve was “tweaked” by the Preserve Enabling Act. Instead, the Court relied on the 2006 Management Policies, quoting the proposition that “when there is a conflict between conserving resources and providing for enjoyment of them, conservation is to be predominant.” The Court then stated: “Agency decisions that fail to promote conservation over recreation run contrary to the express directives of Congress and cannot be upheld.” Decision at 15-16.
While the Court deferred to NPS and did not invalidate the Plan, the Court stated in conclusion that “[i]t is not surprising that reasonable minds can differ regarding the interpretation of the copious amount of data upon which the NPS and FWS relied when making their decisions.” Decision at 21.
We accept that the Addition wilderness eligibility determination and the Addition Plan stand. But there are many decisions yet to be made in that Plan’s implementation. Moreover, the Preserve now has before it a major planning effort relating to the Backcountry Access Plan and has indicated that the related wilderness eligibility assessment for the original Preserve could be reopened as that planning process proceeds.
We therefore write to urge that in pursuing these efforts the Preserve not seek to apply the same novel wilderness eligibility assumptions that are an exception to longstanding NPS policy and practice. The land at issue in 2010 has now been transferred, so there is no compelling basis for the NPS to make further exceptions in policy and practice going forward. The Court of Appeals has made clear that the NPS Management Policies provide the correct standard for managing the Preserve, so the 2010 Memorandum of Understanding signed by then-Superintendent Ramos with the State just before the land transfer cannot and does not supplant that standard. Conservation must predominate as the Preserve’s central mission, and recreation should be allowed only to the extent it does not create unacceptable adverse impacts on resources and values.
Chair, Coalition to Protect America’s National Parks
Mailing: 5625 North Wilmot Road, Tucson, AZ 85750-1216
Email: firstname.lastname@example.org; Web: www.protectnps.org
cc: NPS Director Jon Jarvis
NPS Southeast Regional Director Stan Austin