Public Employees for Environmental Responsibility v. Secretary, U.S. Department of the InteriorPublic Employees for Environmental Responsibility v. Secretary, U.S. Department of the Interior
Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc).
In light of the record and the
Additionally, the reasonableness of the sentence is supported by its position at the lowest end of the applicable guideline range. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (commenting that the imposition of a sentence within the advisory guidelines range is ordinarily expected to be reasonable). The sentence is also significantly less than the applicable statutory maximum of life in prison, which points strongly to reasonableness. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam) (noting that the reasonableness of a sеntence may be indicated where the sentence imposed is well below the statutory maximum sentence). Given these factors and the deference afforded district court decisions under abuse of discretion review, we find no error as to the substantive reasonableness of Nagel‘s sentence.
III. CONCLUSION
Having considered the record on appeal and the parties’ arguments contained in the briefs, we find no reversible error. Therefore, the district court is hereby AFFIRMED.
NATIONAL PARKS CONSERVATION ASSOCIATION, John Adornato, III, Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF THE INTERIOR, National Park Service, U.S. Fish and Wildlife Service, Defendants-Appellees,
Safari Club International, Florida Wildlife Federation, Intervenor-Defendants-Appellees.
Public Employees for Environmental Responsibility, Sierra Club, South Florida Wildlands Association, Wilderness Watch, Brian Scherf, Plaintiffs-Appellants,
v.
Secretary, U.S. Department of the Interior, Jonathan B. Jarvis, Director, National Park Service, Daniel
Robert D. Rosenbaum, Ron A. Ghatan, Arnold & Porter, LLP, Washington, DC, Marcy I. LaHart, Marcy I. LaHart, PA, Gainesville, FL, for Plaintiffs-Appellants (Case No. 14-15326).
John Emad Arbab, Mark A. Brown, Sara Porsia, U.S. Department of Justice, Appellate Section, Environment and Natural Resources Div., Douglas Scott Burdin, Anna M. Seidman, Safari Club International, Washington, DC, Kylе Scott Cohen, U.S. Attorney‘s Office, Fort Myers, FL,
William Stewart Eubanks, II, Meyer Glitzenstein & Eubanks LLP, Fort Collins, CO, Paula N. Dinerstein, Public Employees for Environmental Responsibility, Eric Robert Glitzenstein, Meyer Glitzenstein & Eubanks LLP, Washington, DC, Matthew P. Farmer, Farmer & Fitzgerald, PA, Tampa, FL, for Plaintiff-Appellants (Case No. 15-11599).
John Emad Arbab, Mark A. Brown, Sara Porsia, U.S. Department of Justice Appellate Section, Environment and Natural Resources Div., Douglas Scott Burdin, Safari Club International, Washington, DC, Arthur Lee Bentley, III, U.S. Attorney‘s Office, Tampa, FL, Thomas W. Reese, Attorney at Law, St. Petersburg, FL, for Defendants-Appellees (Case No. 15-11599).
Tyler Joseph Sniff, Donald DJ Stack, Stack & Associаtes, PC, Atlanta, GA, Donald C. Baur, Perkins Coie, LLP, Washington, DC, for Amicus Curiae Coalition to Protect America‘s National Parks, Inc.
Paula N. Dinerstein, Public Employees for Environmental Responsibility, Eric Robert Glitzenstein, Meyer Glitzenstein & Eubanks LLP, Washington, DC, William Stewart Eubanks, II, Meyer Glitzenstein & Eubanks LLP, Fort Collins, CO, Matthew P. Farmer, Farmer & Fitzgerald, PA, Tampa, FL, for Amicus Curiae Public Employees for Environmental Responsibility.
Thomas Neal McAliley, Leon Cosgrove, LLC, Coral Gables, FL, for Amici Curiae Collier Enterprises, Inc., Barron Collier Company, Ltd., Collier Resources Company LLP.
Mark A. Brown, Sara Porsia, U.S. Department of Justice, Appellate Section, Environment and Natural Resources Div., Washington, DC, for Amicus Curiae Seсretary, US Department of Interior.
Before WILSON and JULIE CARNES, Circuit Judges, and MOORE,* District Judge.
MOORE, District Judge:
This case involves the addition of approximately 112,400 acres of land (“Addition Lands“) to the Big Cypress National Preserve in the State of Florida (“Original Preserve“). The Original Preserve was established by the
The Addition Lands contained approximately 244 miles of Off-Road Vehicle (“ORV“) trails that were open for public use prior to their acquisition by the NPS. In 1996, the NPS closed these trails for public use once it began official administration of the Addition Lands. Also, the NPS began the process of drafting a General Management Plan (“GMP“) for the Addition Lands, which included the possibility of ORV use on the existing trail network. As required by the
Prior to NPS management of either the Original Preserve or the Addition Lands, ORV use was permitted in these areas and not restricted to designated trails. In May 2009, the NPS completed a draft GMP and environmental impact statement (“EIS“) entitled “Draft Management Plan/Wilderness Study/Off-Road Vehicle Management Plan/Environmental Impact Statement.” The 2009 draft, which closely tracked the plan implemented for the Original Preserve, included an ORV management plan that restricted ORV use in the Addition Lands to a designated trail system. The 2009 draft also designated approximately 93,426 acres of Addition Lands as primitive backcountry, in which ORV access would be prohibited. The ORV trails were limited to a 52,431-acre parcel designated as a backcountry recreation management zone. ORV use would be allowed in this zone, but restricted to approximately 140 miles of trail.
During the public comment period, the NPS received almost 17,000 comments from agenсies, Indian tribes, Florida state agencies, organizations, and individuals. These comments ranged from support for to argument against any ORV usage in the Addition Lands, as well as varying disagreement with the NPS‘s assessment of those portions of the Addition Lands eligible for wilderness designation under the
The NPS convened a second wilderness workshop in November 2009 to address the various concerns raised during the public comment period. During this second workshop, the NPS considered what wilderness-eligible Addition Lands it should recommend to the President for final designation as wilderness. As a result of the second workshop, the NPS reduced its initial recommendation that 85,862 аcres of Addition Land receive the wilderness designation to only 48,130 acres.
According to NPS Management Policy, it must preserve all lands identified as wilderness-eligible until Congress decides whether to actually designate that land as wilderness. However, the NPS Director has authority to waive this policy on a case-by-case basis. The Superintendent of Big Cypress sought such a waiver for certain lands determined to be wilderness-eligible in 2006, but not recommended for wilderness designation in 2009. In his request, the Superintendent explained that the waiver was requested for lands that “will require [ ] indefinite and continued active intervention in order to аccomplish
Following the denial, the NPS convened a third workshop in February 2010 to assess the earlier public comments contending that certain portions of the Addition Lands, including those that formed the basis of the waiver request, were actually ineligible for wilderness designation. According to the workshop notes, the participants reviewed the previous criteria used to determine wilderness eligibility and revisited certain assumptions relied upon in the initial 2006 study. The participants agreed to use two assumptions as part of the 2010 workshop: first, the substantial imprint of human work would include roads, trails, or other areas created by man and requiring substantial human intervention for restoration; second, the viewpoint of a land manager, rather than a common visitor, would be used to determine whether the imprint of human work was substantially unnoticeable.
Using these new parameters, the рarticipants reviewed topographic maps, geographic information systems, and aerial photography, and relied on their own personal knowledge to reassess the earlier findings regarding wilderness eligibility. Based on the “lack of opportunities for solitude and the presence of human disturbance,” the ORV trails and a 1/2-mile buffer around the trails were determined to be ineligible for wilderness designation. The 2010 workshop resulted in a reduction in the amount of wilderness-eligible land from 111,601 acres to 71,260 acres.
Based on the third workshop, the NPS completed its final wilderness eligibility assessment for the Addition Lands in April 2010. The final аssessment carried forward the assumptions used during the 2010 workshop and determined that only 71,260 acres were eligible to be designated as wilderness, which did not include the former ORV trails and the 1/2-mile buffer. With respect to the buffer, the final assessment concluded that a 1/2-mile buffer in either direction from the trail centerline was appropriate “to accommodate environmental protection and safety considerations, such as for fire management, exotic/invasive plant and animal control, hunting and retrieval of game, and traditional uses including the gathering of native materials.”
In October 2010, the NPS finalized its GMP and EIS for thе Addition Lands. The GMP included a management plan for ORV use in the Addition Lands, which restricted such use to designated trails, provided for nightly and seasonal closures, and required ORV inspection and permitting. The GMP limited the number of ORV permits to 650 per year.
Pursuant to the
The NPS also engaged in formal consultation with the FWS concerning the Florida panther. As a result, the FWS issued its Biological Opinion in November 2010. In this opinion, the FWS determined that the GMP is unlikely to jeopardize the con-
tinued
Unhappy with the GMP, Appellant National Park Conservation Association (“NPCA“) filed suit in the Middle District of Florida. In its complaint, the NPCA contended that the GMP‘s inclusion of ORV trails for the Addition Lands was arbitrary, capricious, and in violation of the
Following a de novo review of the Magistrate Judge‘s Report and Recommendation, the District Court concluded that the NPS did not violate the
The NPCA argues on appeal that the NPS‘s wilderness assessment for the Addition Lands in Big Cypress National Park is inconsistent with the
ANALYSIS
I. Standard of Review
Under the
However, the reviewing court must consider whether the record contains substantial evidence in support of an agency decision.
II. Wilderness Act
In this case, Appellants argue that the NPS‘s adoption of a heightened standard for determining whether, under the
The
- generally appears to have been affected primarily by the forces of nature, with the imprint of man‘s work substantially unnoticeable;
- has outstanding opportunities for solitude or a primitive and unconfined type of recreation;
- has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and
-
may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.
It is difficult to see how the NPS ran afoul of these statutory directives. While the factors are objective, there are a myriad of parameters that can be used to assess whether an area “generally appears to have been affected primarily by the forces of nature, with the imprint of man‘s work substantially unnoticeable.”
Appellants’ argument concerning the point of view from which to determine wilderness eligibility also lacks merit. Appellants assume that the 2006 workshop assessed the condition of an area from the viewpoint of the common visitor, while the 2010 workshop used the viewpoint of a land manager. First, it is not particularly clear what viewpoint participants utilized in the 2006 workshop. The record is silent in that regard. Appellants only assume a common visitor viewpoint because the 2010 workshop specifically expressed it as a land manager viewpoint and not that of common visitor. Second, the language of the
Contrary to Appellants’ argument, the NPS did not require that an area be pristine and untouched by humans to be found wilderness-eligible. The record shows that the NPS required the area to be free of any substantially noticeable human imprint, which is what is required under the
Finally, there is no indication in the record that the NPS conducted the reassessment simply to appeаse the State of Florida and special interest groups. Agency decisions are entitled to a presumption of regularity. Citizens for Smart Growth v. Sec‘y of Dep‘t of Transp., 669 F.3d 1203, 1216 (11th Cir. 2012) (quoting Druid Hills Civic Ass‘n, Inc. v. Fed. Highway Admin., 772 F.2d 700, 708 (11th Cir. 1985)). Absent
III. Organic Act
Appellants argue that the NPS violated the Organic Act by failing to account for the impairment of visitor experience by the ORV trail system. Also, Appellants contend that the NPS violated the Organic Act by elevating recreational use above preservation. In response, Appellees maintain that the Organic Act does not include visitor experience as a factor that must be considered when creating a GMP. In addition, Appellees deny that the GMP for the Addition Lands impermissibly elevated recreation over consеrvation.
In interpreting the Organic Act‘s non-impairment provision, NPS Management Policies provides that the fundamental purpose of the park system is to conserve park resources and values. The Management Policies further provide that “when there is a conflict between conserving resources and providing for enjoyment of them, conservation is to be predominant.” Agency decisions that fail to promote conservation over recreation run contrary to the express directives of Congress and cannot be upheld.
The record in this case does not establish that the GMP improperly advanced recreational use over conservation of resources in the Addition Lands. The NPS analyzed the impact of the proposed ORV use on numerous conservation issues, and adopted measures to minimize and mitigate environmental harm. In addition, the GMP provides for adaptive management of Addition Lands by restricting ORV capacity as necessary to avoid negative impacts on the environment. The record more than supports Appellees’ claim that, relying on the NPS‘s expertise in the field, the limited recreational use promoted by the GMP would not cause unacceptable environmental impairments or impacts. Moreover, the Addition Act permits the NPS to allow “traditional recreational opportunities,”
With respect to visitor experience, Appellees are correct in their argument that visitor experience is not a park resource or value that must be considered when assessing an activity‘s impact. In arriving at this conclusion, the NPS reasonably interpreted its Management Policies and Interim Guidance. The Interim Guidance does identify “appropriate opportunities to experience enjoyment of . . . resources, to the extent that can be done without impairing them.” Giving the NPS appropriate deference, it is a reasonable interpretation that the Interim Guidance only requires visitors to have the opportunity to enjoy park resources, but does not mandate any specific level of enjoyment. Therefore, Appellants’ argument that the GMP impermissibly failed to assess the impact of the ORV trails to visitor experience and non-ORV user safety lacks merit.
Appellant PEER argues that the NPS and FWS violated the ESA by failing to engage in formal consultation regarding the eastern indigo snake. Also, Appellant PEER contends that the FWS failed to properly analyze the impacts of ORV use on the endangered Florida panther. In response, Appellees maintain that the NPS and FWS were not required to engage in formal consultation regarding the eastern indigo snake because they concluded that ORV use was not likely to adversely affect that species. With respect to the Florida panther, Apрellees point to evidence in the record establishing that ORV use is unlikely to jeopardize the continued existence of the Florida panther, as well as the inclusion of a sufficient trigger in the Biological Opinion for the reinitiation of formal consultation based on incidental loss of habitat.
The ESA requires federal agencies to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species” or destroy critical habitat.
The record in this case supports the NPS‘s and FWS‘s determination that formal consultation with respect to thе eastern indigo snake was not required based on the lack of adverse effects posed by ORV use. Appellees correctly point to the NPS‘s and FWS‘s findings that while ORV use could alter eastern indigo snake behavior, any disruption would be negligible and not result in death or injury of any individual snakes. Because there is no likelihood of any measurable impact, formal consultation was not required. Affording the NPS‘s and FWS‘s conclusions due deference, their decision to forego formal consultation is not a violation of the ESA.
Similarly, the record supports the NPS and FWS‘s Biological Opinion that ORV use was unlikely to jeopardize the Flоrida panther‘s continued existence. The Biological Opinion did state that the ORV trails, along with their 1/2-mile buffer, would result in 16,808 acres of suitable habitat being seasonally affected. However, the NPS and FWS relied on several scientific studies suggesting that Florida panthers are likely to seasonally avoid this habitat due to other causes, such as movement of prey, habitat composition, or hydrology. In any event, the Biological Opinion concluded that any migration away from ORV trails would have minor to no biological consequences. Deferring to the NPS and FWS‘s judgment, those agencies appropriately analyzеd the effects of ORV use on the existing Florida panther population.
Finally, Appellant PEER incorrectly states that the Biological Opinion fails to include an appropriate trigger for reinitiation of formal consultation. This argument appears to rely on an amended version of
CONCLUSION
In the final analysis, Appellants’ arguments can be reduced to a disagreement regarding the NPS‘s and FWS‘s ultimate conclusions. It is unsurprising 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. However, it is clear to this Court that the record contains substantial evidence to support those conclusions. As a result, it is beyond the power of Appellants and this Court to second guess these agencies’ reasoned decision-making. Accordingly, the judgment of the district court is AFFIRMED.