Nos. 14-15326-GG & 15-11599-GG (Consolidated Appeals) IN THE...

Nos. 14-15326-GG & 15-11599-GG (Consolidated Appeals)

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

NATIONAL PARKS CONSERVATION ASSOCIATION, et al.,

and,

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, et al., Plaintiffs-Appellants,

v.

SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR, et al. Defendants-Appellees.

Appeal from the U.S. District Court for the Middle District of Florida, Nos. 11-CV-578-FtM-29SPC & 11-CV-647-JES-CM (Steele, J.)

PROPOSED BRIEF OF AMICUS CURIAE COALITION TO PROTECT AMERICA’S NATIONAL PARKS, INC. IN SUPPORT OF PLAINTIFFS-

APPELLANTS AND REVERSAL

Tyler J. Sniff, Esq. Donald C. Baur, Esq. Georgia Bar No. 403125 Admitted pro hac vice Donald D.J. Stack, Esq. PERKINS COIE, LLP Georgia Bar No. 673735 700 13th Street, NE, Suite 600 STACK & ASSOCIATES, P.C. Washington, D.C. 20005 260 Peachtree Street, Suite 1200 Telephone: (202) 654-6234 Atlanta, Georgia 30303 Telephone: (404) 525-9205 Counsel for Amicus Curiae Coal. to Protect America’s National Parks, Inc.

Case: 14-15326 Date Filed: 08/10/2015 Page: 1 of 39

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... ii

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ............................................................................. viii

STATEMENT OF THE ISSUE ................................................................................ 1

IDENTITY AND INTEREST OF AMICUS CURIAE............................................. 1

SUMMARY OF THE ARGUMENT ........................................................................ 4

BACKGROUND ....................................................................................................... 5

I. THE DEBATE OVER ORV USE IN BIG CYPRESS AND THE COALITION’S COMMENTS ON THE ADDITION GENERAL MANAGEMENT PLAN ................................................................................ 5

II. THE DISTRICT COURT’S INTERPRETATION OF THE PRESERVE AND ADDITION ACTS AS “REQUIRING MULTIPLE USE MANAGEMENT,” AND ITS INCONSISTENT DECISIONS .......... 12

ARGUMENT ........................................................................................................... 14

I. THE DISTRICT COURT’S INTERPRETATION OF THE PRESERVE AND ADDITION ACTS IS ERRONEOUS BECAUSE “MULTIPLE USE MANAGEMENT” IS A TERM OF ART IN FEDERAL LAND MANAGEMENT AT ODDS WITH THE CONSERVATION MANDATE THAT APPLIES TO ALL UNITS OF THE NATIONAL PARK SYSTEM ............................................................. 14

II. THE DISTRICT COURT’S ERRONEOUS INTERPRETATION OF THE PRESERVE AND ADDITION ACTS AS MULTIPLE USE LAWS INVITES DEGRADATION OF MANY UNITS OF THE NATIONAL PARK SYSTEM ...................................................................... 22

CONCLUSION ....................................................................................................... 25


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TABLE OF AUTHORITIES

CASES PAGE(S) Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996)

.................................................................................................................................. 18 Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d

1 (D.D.C. 2009) ............................................................................................... 2 Cape Hatteras Access Preservation Alliance v. Jewell, 28 F. Supp. 3d 537 (E.D.N.C. 2014) ............................................................................................... 21 Conservation Law Foundation of New England, Inc. v. Clark, 590 F. Supp. 1467 (D. Mass. 1984) .................................................................................... 20 Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442 (D.C. Cir. 1994) ........................................................................................................................ 16 Defenders of Wildlife v. Salazar, 877 F. Supp. 2d 1271 (M.D. Fla. 2012)

........................................................................................................................ 6, 13, 14 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2013) (D.D.C.

1992) ................................................................................................................ 2 Greater Yellowstone Coal. v. Kempthorne, 577 F. Supp. 2d 183 (D.D.C.

2008) ................................................................................................................ 3 Mich. United Conservation Clubs v. Lujan, 949 F.2d 202 (6th Cir.

1991) ............................................................................................................. 16 Nat’l Parks Conservation Ass’n v. U.S. Dep’t of the Interior, 46 F.

Supp. 3d 1254 (M.D. Fla. 2014) ............................................................passim Nat’l Rifle Ass’n of Am. v. Potter, 628 F. Supp. 903 (D.D.C. 1986) ...................... 17 Norton v. So. Utah Wilderness Alliance, 542 U.S. 55 (2004) ............................. 6, 13 Or. Natural Desert Ass’n v. BLM, 531 F.3d 1114 (9th Cir. 2008) ................... 14, 15


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Perkins v. Bergland, 608 F.2d 803 (9th Cir. 1979) ................................................. 15 Sierra Club v. Mainella, 459 F. Supp. 2d 76 (D.D.C. 2006) .................................. 21 Sierra Club v. USDA, No. 96-2244, 1997 WL 295308 (7th Cir. May 28,

1997) ............................................................................................................. 15 STATUTES 16 U.S.C. § 1 (National Park Service Organic Act of 1916) ............................passim 16 U.S.C. § 1a-1 ....................................................................................................... 17 16 U.S.C. § 230e ...................................................................................................... 23 16 U.S.C. § 410aaa-46(a) ......................................................................................... 23 16 U.S.C. § 410hh(1) ............................................................................................... 22 16 U.S.C. § 410hh(2) .............................................................................................. 22 16 U.S.C. § 410hh(4)(a) .......................................................................................... 22 16 U.S.C. § 410hh(7)(a) ........................................................................................... 23 16 U.S.C. § 410hh(8)(a) ........................................................................................... 23 16 U.S.C. § 410hh(9) .............................................................................................. 23 16 U.S.C. § 410hh(10) ............................................................................................ 23 16 U.S.C. § 410hh-1(1) ........................................................................................... 22 16 U.S.C. § 410hh-1(2) ............................................................................................ 22 16 U.S.C. § 410hh-1(3)(a) ....................................................................................... 22 16 U.S.C. § 410hh-2 ................................................................................................ 23 16 U.S.C. § 410hhh-5(a)(1) ..................................................................................... 22


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16 U.S.C. § 410vvv .................................................................................................. 23 16 U.S.C. § 459a-1 ................................................................................................... 23 16 U.S.C. § 459b-6(b)(1) ........................................................................................ 20 16 U.S.C. § 459c-6 ................................................................................................... 23 16 U.S.C. § 459d-3................................................................................................... 23 16 U.S.C. § 459d-4................................................................................................... 23 16 U.S.C. § 459e-5 ................................................................................................... 23 16 U.S.C. § 459e-6 ................................................................................................... 23 16 U.S.C. § 459f-4 ................................................................................................... 23 16 U.S.C. § 459f-5 ................................................................................................... 23 16 U.S.C. § 459g-3................................................................................................... 23 16 U.S.C. § 459g-4................................................................................................... 23 16 U.S.C. § 459h-2................................................................................................... 23 16 U.S.C. § 459h-4................................................................................................... 23 16 U.S.C. § 459i-4 ................................................................................................... 23 16 U.S.C. § 459i-5 ................................................................................................... 23 16 U.S.C. § 459j-3 ................................................................................................... 23 16 U.S.C. § 459j-4 ................................................................................................... 23 16 U.S.C. § 460s-4 ................................................................................................... 23 16 U.S.C. § 460s-5 ................................................................................................... 23


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16 U.S.C. § 460u-6................................................................................................... 23 16 U.S.C. § 460w-4 .................................................................................................. 23 16 U.S.C. § 460w-5 .................................................................................................. 23 16 U.S.C. § 460x-4................................................................................................... 23 16 U.S.C. § 460x-5................................................................................................... 23 16 U.S.C. § 531(a) (Multiple-Use, Sustained-Yield Act)........................................ 15 16 U.S.C. § 698c(b) ................................................................................................. 22

16 U.S.C. § 698i ................................................................................................ 18, 19 16 U.S.C. § 698m-1(a)(1) .................................................................................... 5, 19 16 U.S.C. § 698m-1(c) ......................................................................................... 5, 18 16 U.S.C. § 698m-2 ................................................................................................. 19 16 U.S.C. § 698n ...................................................................................................... 23 16 U.S.C. § 698u-3................................................................................................... 23 16 U.S.C. § 698r ....................................................................................................... 23 16 U.S.C. § 698w ..................................................................................................... 22 16 U.S.C. § 1131(c) (Wilderness Act) ............................................................ 2, 9, 10 43 U.S.C. § 1702(c) (Federal Land Policy and Management Act) ......................... 15 Pub. L. 113-291, § 3043(b), 128 Stat. 3292, 3793 (2014) ...................................... 24 Pub. L. 106-248, §§ 103(5), 105(b), 114 Stat. 598 (2000) ..................................... 23 Pub. L. No. 100-301 (1988) ................................................................................ 1, 13


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Pub. L. 95-250, § 101(b), 92 Stat. 166 (1978) ......................................................... 17 Pub. L. 93-440 (1974) ............................................................................................... 1 Pub. L. 91-383, § 1, 84 Stat. 825 (1970) ................................................................. 17 REGULATORY MATERIALS Letter on Nat’l Park Mgmt. from Franklin K. Lane, Sec’y of the

Interior, to Stephen T. Mather, NPS Director (May 13, 1918), available at www.nps.gov/parkhistory/online_books/anps/ anps_1j.htm ................................................................................................... 24

NPS Mgmt. Policies, at §§ 1.4.3, 8.1.1 (2006), available at

www.nps.gov/policy/mp2006.pdf ........................................................... 16, 20 Statement of Nat’l Park Policy, Hubert Work, Sec’y of the Interior

(Mar. 11, 1925), available at www.nps.gov/parkhistory/ online_books/anps/anps_2c.htm ................................................................... 24

OTHER AUTHORITIES Articles of Incorporation, Coalition (2006), available at

www.protectnps.org ........................................................................................ 2 Fred J. Fagergren, Big Cypress National Preserve: The Great

Compromise, in Stewardship Across Boundaries (Richard L. Knight & Peter B. Landres, eds. 1998) ................................................. 5, 6, 14

Hearing on Proposed Revisions to NPS Mgmt. Policies and Director’s

Order 21 Before the H. Subcomm. on National Parks, 109th Cong. (2006) (statement of Denis Galvin, NPS Deputy Dir., on Behalf of NPCA) ........................................................................................... 17

H.R. Rep. No. 100-30 (1987) .................................................................................. 19 Robert L. Glicksman & George C. Coggins, Modern Public Land Law

in a Nutshell (2006) .............................................................................. 7, 8, 15 S. Rep. No. 93-1128 (1974), reprinted in 1974 U.S.C.C.A.N. 5568 ................ 19, 21


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RULES Federal Rule of Appellate Procedure 29(b) .............................................................. 1


National Parks Conservation Association, et al. v. Secretary, United States Department of the Interior, et al., Case Nos. 14-15326-GG & 15-11599-GG

viii

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1, Coalition to Protect America’s

National Parks, Inc. (formerly, Coalition of National Park Service Retirees, Inc.)

(“Coalition”) discloses that it is an Arizona nonprofit corporation, does not issue

shares of stock, and has no parent corporation. In addition to the persons listed in

Plaintiffs-Appellants’ and Defendants-Appellees’ Certificates of Interested Persons,

the Coalition identifies the following persons as having an interest in the outcome of

this appeal:

1. Baur, Donald C., Esq. (Counsel for Coalition)

2. Coalition to Protect America’s National Parks, Inc.

3. Fagergren, Fred J. (Member of Coalition; Superintendent, Big Cypress

National Preserve (1981–1991))

4. Finnerty, Maureen (Chair of Coalition)

5. Galvin, Deny (Member of Coalition)

6. Murray, Michael (Executive Council Member of Coalition)

7. Perkins Coie, LLP

8. Ring, Richard (Executive Council Member of Coalition)

9. Sniff, Tyler J., Esq. (Counsel for Coalition)

10. Stack & Associates, P.C.


National Parks Conservation Association, et al. v. Secretary, United States Department of the Interior, et al., Case Nos. 14-15326-GG & 15-11599-GG

ix

11. Stack, Donald D.J., Esq. (Counsel for Coalition)

12. Turner Foundation, Inc. (contributed money that funded, in part, the

preparation and submission of this motion and the proposed brief).

Pursuant to Federal Rule of Appellate Procedure 29(c)(5), undersigned

certifies that no counsel for any party authored this proposed brief, in whole or in

part, and no party or party’s counsel contributed money that was intended to fund

the preparation or submission of this proposed brief. The Turner Foundation, Inc.,

contributed money that funded, in part, the preparation and submission of this

proposed brief.

Dated: August 10, 2015 /s/ Tyler J. Sniff, Esq. Tyler J. Sniff Georgia Bar No. 403125

STACK & ASSOCIATES, P.C. 260 Peachtree Street, Suite 1200 Atlanta, Georgia 30303 Telephone: (404) 525-9205 Facsimile: (404) 522-0275 E-mail: [email protected]

Counsel for Amicus Curiae Coalition to Protect America’s National Parks, Inc.


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STATEMENT OF THE ISSUE

Whether the district court erred in concluding that the conservation mandate

of the National Park Service (“NPS”) Organic Act was “tweaked” by the Big

Cypress National Preserve Act and Addition Act1 to require “multiple use

management” of the Preserve and Addition.

IDENTITY AND INTEREST OF AMICUS CURIAE

The Coalition to Protect America’s National Parks, Inc. (formerly, Coalition

of National Park Service Retirees, Inc.), joins this case as amicus curiae because of

the significance of the issues presented to the National Park System on a nationwide

basis.2 With more than 1,000 members, the Coalition consists of retired NPS

officials from every level, including former: directors; associate and regional

directors; superintendents (including the first Superintendent of Big Cypress

National Preserve); rangers, and specialists with expertise in subject matter areas

such as wilderness management, National Environmental Policy Act (“NEPA”)

compliance, management planning, wildlife, and cultural resources. This

exceptional group of NPS experts, all of whom serve on a volunteer basis, formed

1 In 1974, Congress established and protected more than 574,000 acres in southwest Florida as Big Cypress National Preserve, a unit of the National Park System. Pub. L. 93-440 (1974) (“Preserve Act”). In 1998, Congress expanded Big Cypress National Preserve by about 146,000 acres by enacting the Big Cypress National Preserve Addition Act (“Addition Act”). Pub. L. No. 100-301 (1988). 2 The Coalition files this proposed brief pursuant to Fed. R. App. P. 29(b).


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the Coalition in 2003 to advance the “preservation and protection of America’s

national park areas” and “the central mission of the National Park Service.” Art. of

Inc., Coalition, arts. II & III (2006), available at www.protectnps.org. This mission

is directed by the “conservation mandate” of Section 1 of the NPS Organic Act, 16

U.S.C. § 1,3 the laws establishing individual units of the System, and the laws

governing management of specific elements of these units, e.g., the Wilderness Act,

16 U.S.C. §§ 1131–36.

The Coalition is a “partner” with NPS on several programs, and it collaborates

with NPS on a continuing basis. Since its establishment, the Coalition has found it

necessary to fulfill its mission through litigation on only two occasions.4 In each

3 Under the Service’s “conservation mandate,” the agency:

shall promote and regulate the use of the Federal areas [within the National Park System] by such means and measures as conform to the fundamental purpose of the said [areas] which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1 (emphases added). 4 See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2013) (amicus curiae in successful defense of NPS decision to terminate use of Point Reyes National Seashore and designated wilderness areas by a commercial shellfish farm); Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1 (D.D.C. 2009) (co-plaintiff in obtaining preliminary injunction against the repeal of regulations prohibiting concealed weapons in National Park System units). While not a party, the Coalition has also supported litigation opposing expanded snowmobile use in


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case, the issues that necessitated Coalition involvement threatened the integrity of

the National Park System. The lawsuits challenging the Service’s actions

concerning off-road vehicle (“ORV”) use in Big Cypress National Preserve and

Addition also present issues of System-wide importance.

The Coalition agrees with Plaintiffs-Appellants’ interpretation of the laws

governing management of the Addition, and the Coalition believes that remand is

appropriate for the reasons set forth in their briefs. The Coalition’s particular

concern in this brief, however, is with the district court’s interpretation of the laws

governing the Preserve and Addition, including the NPS Organic Act, as requiring

“multiple use management.” As discussed below, judicial precedent such as the

district court decision characterizing the laws applicable to the Preserve and

Addition as “multiple use” laws is likely to have serious negative consequences

throughout the National Park System, and invites degradation of many units that

have similar establishment legislation. Thus, the Coalition sees it as necessary to

participate in this case to explain why no laws governing any unit of the System,

including the Preserve and Addition, are “multiple use” laws or detract from the

overarching conservation mandate of the NPS Organic Act that NPS manage all

units for conservation purposes.

Yellowstone National Park. See generally Greater Yellowstone Coal. v. Kempthorne, 577 F. Supp. 2d 183 (D.D.C. 2008).


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SUMMARY OF THE ARGUMENT

The district court’s interpretation of the Preserve and Addition Acts as

requiring “multiple use management”—the foundation of the district court’s

deference to NPS’ authorization of an extensive network of ORV trails in the

Addition—is erroneous because: (1) “multiple use management” is a term of art in

federal land management that is directly at odds with the “conservation mandate” of

the NPS Organic Act, and (2) the conservation mandate applies to all units of the

National Park System, including the Preserve and Addition. “Multiple use” laws

provide agencies with discretion to favor resource use over conservation; the NPS

Organic Act requires the opposite. Accordingly, the district court’s erroneous

interpretation will harm the wilderness and natural resource values of the Preserve

by condoning excessive ORV use. The district court’s decision also invites

degradation of other units of the National Park System that have enabling legislation

that allows, but does not mandate, motorized recreation and consumptive uses such

as hunting, trapping, commercial fishing, and similar activities. These units include

20 other national preserves, 10 national seashores, and four national lakeshores.


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BACKGROUND

I. THE DEBATE OVER ORV USE IN BIG CYPRESS AND THE COALITION’S COMMENTS ON THE ADDITION GENERAL MANAGEMENT PLAN.

The debate over ORV use in Big Cypress has been underway for decades,

predating establishment of the Preserve. Fred J. Fagergren, Big Cypress National

Preserve: The Great Compromise, in Stewardship Across Boundaries 214 (Richard

L. Knight & Peter B. Landres, eds. 1998) (cited at App’x-720) (“The environmental

community wanted Big Cypress added to Everglades National Park or established

as a separate national park. Hunters and off-road enthusiasts wanted an area where

their uses would take priority.”).

Ultimately, the Preserve Act did not mandate any ORV use and “it also gave

a fundamental charge” that “Preserve managers must protect the resources while

allowing human activities to the extent compatible with that protection.” Id. at 219

(emphasis added). The Addition Act incorporates this same fundamental charge.

See 16 U.S.C. § 698m-1(a)(1), (c). In fact, as explained by Coalition member Fred

J. Fagergren, “the first superintendent to serve at Big Cypress (1981–1991) and the

superintendent serving when the Addition was first proposed and then authorized,”

App’x-718,5 the establishment legislation “clearly sets a strong[] standard: human

activities could occur to the extent they are shown to be compatible with the

5 References to the appendix of Plaintiffs-Appellants are denoted by “App’x.”


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protection of the resources,” App’x-720. Thus, “NPS can [and should] take a very

conservative approach until a level of compatibility is shown.” App’x-720.

The Coalition has a deep understanding that “the use of ORVs on federal land

has negative environmental consequences, including soil disruption and compaction,

harassment of animals, and annoyance of [visitors].” Norton v. So. Utah Wilderness

Alliance, 542 U.S. 55, 60 (2004). Indeed, the Coalition is keenly aware through its

members, including several former high-ranking NPS officials at Big Cypress, that

“[d]ue to soft soils and vegetation, the marshes and prairies [of Big Cypress] are

highly sensitive to ORV use, which can cause severe and irreparable damage to [its]

ecosystems.” Defenders of Wildlife v. Salazar, 877 F. Supp. 2d 1271, 1279 (M.D.

Fla. 2012). In fact, “a change of merely a centimeter of elevation or soil depth . . .

changes the vegetation.” Fagergren, supra p. 5, at 214. More than a decade ago,

NPS found that:

the persistence of disturbed soils suggests that ORV impacts are occurring at a faster rate than soils are naturally recovering, and that impacts are accumulating over time. There are no known processes that restore the soils once disturbed. Farm field furrows that existed prior to [Big Cypress’] establishment are still clearly visible from the air and on the ground decades later. Soil impacts from ORVs appear to be having similar persistence over time, with associated hydrological and biological impacts.

AR13633.6

6 References to the full Administrative Record are denoted by “AR.”


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The Coalition has, of course, been well aware of the longstanding debate over

ORV use. It was not until 2009, when NPS announced the release of a General

Management Plan for the Addition (“Addition GMP”), that the Service’s actions

concerning ORV use in the Preserve and Addition began to assume System-wide

significance, resulting in Coalition participation in NPS management actions at the

unit-specific level for the Preserve. The Coalition did so through a comment letter

of August 4, 2009, from Mr. Fagergren on the Draft Addition GMP, App’x-718, and

a comment letter of January 13, 2011, from the Coalition on the Final Addition GMP,

App’x-2057.

The Coalition objected to NPS’s characterization in the Addition GMP of the

Preserve and Addition as “multiple use” areas. As the Coalition noted in its 2011

comments, “nowhere in the [Big Cypress] enabling legislation or legislative history

is there a suggestion that [Big Cypress] is a ‘multiple use’ area, a term that the

Addition Plan inappropriately uses with reference to the Preserve.” App’x-2059.

The Coalition emphasized that “‘multiple use’ is a term that is appropriately used

with reference to most lands managed by the Bureau of Land Management [“BLM”]

and the U.S. Forest Service [“USFS”],7 reflecting those agencies’ multiple use

mandates.” App’x-2059.

7 BLM manages approximately 260 million acres of public land that “were not reserved, homesteaded, or otherwise claimed before they were withdrawn into grazing districts.” Robert L. Glicksman & George C. Coggins, Modern Public Land


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Likewise, the Coalition’s 2009 comments expressed “greatest concerns” with

the Addition GMP sections on the laws and policies governing management

decisions by NPS in the Addition. See App’x-719 (legislative history “convey[s] a

stronger mandate for resource protection than what is contained in these sections of

the Addition GMP”); infra pp. 19 n.18, 21 n.21 (discussing legislative history).

Specifically, the Coalition stated that these sections “can be read to place a high

priority on ‘multiple uses,’ a term used several times in the [Addition GMP] but

never used in the legislation [Addition Act] or in the 1991 [Preserve GMP].” App’x-

719. The Coalition observed that these sections “provide less priority for resource

protection and higher priority to visitor opportunities and uses.” App’x-719. As

such, the Coalition commented that these “sections that place a priority on ‘multiple

uses,’ are inconsistent with legislative mandates of the NPS and the Preserve,” which

“place the priority on resource protection.” App’x-721.

The Coalition expressed concern with the Service’s: (1) unprecedented

actions in excluding 40,000 acres within the Addition from eligibility for wilderness

Law in a Nutshell 33 (2006). BLM manages these lands under the multiple use mandate of the Federal Land Policy and Management Act (“FLPMA”). See infra p. 14–15. USFS manages more than 190 million acres of land within the National Forest System under the multiple use mandate of the Multiple-Use, Sustained Yield Act of 1960 (“MUSYA”) and the National Forest Management Act of 1976. Glicksman, supra, at 33. BLM and USFS also manage specially designated areas within these federal lands, including wilderness areas, wild and scenic river segments, and national trails. Id., at 3.


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designation by Congress, and (2) failure to adhere to the conservation mandate of

the NPS Organic Act. App’x-2057 (“We believe that the decision in the final [GMP]

to omit from wilderness eligibility [40,000 acres] that clearly meet the established

criteria, and the associated decision to open the affected acreage to ORV trail

construction and use, are not consistent with several laws”).

Specifically, it was a “particular concern” of the Coalition that NPS applied a

standard for wilderness eligibility that, in the experience of the Coalition’s members,

NPS had never before used for any unit of the National Park System and is at odds

with NPS management policies and practices,8 as well as the language of the

8 In 2007, the Addition management team determined that 111,601 acres of the Addition meet the statutory criteria for wilderness at 16 U.S.C. § 1131(c). App’x-935–36. Of these, NPS wanted to recommend 85,862 acres for congressional designation as wilderness, App’x-932, but, recognizing its management policies required it to maintain all eligible lands as wilderness without ORV use until action by Congress, App’x-751, the team sought and was denied a waiver of this policy from the Director, App’x-751; App’x-795–97. Unable to obtain the approval of the Director for a reduced-acreage eligibility finding based on a waiver, the Addition management team devised an unprecedented approach to achieve that result. The Addition management team purported to devise a new scheme under which it “reassessed” the number of acres eligible for wilderness protection from the perspective of a “land manager,” rather than measuring wilderness characteristics based on the perception of the common visitor. Based on this more rigorous test, the Addition management team determined that only 71,263 acres met the statutory criteria. App’x-811–12. The Coalition is not aware of NPS previously applying such a heightened standard, which would have the effect of precluding many currently designated areas within National Park System units from wilderness status. In any event, the Coalition would have expected NPS to subject the development of this new standard to public review and comment, which has never been done. At the very least, the adoption of the new wilderness eligibility test as to be applied at Big Cypress should have been vetted through a review and comment process within


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Wilderness Act.9 App’x-2060 (“At a minimum, the standards used in applying the

eligibility criteria and the resultant omission of substantial acreage that should

qualify under the existing eligibility criteria suggest violations of law and policy and

invite degradation of the wilderness character of eligible lands.”). Second, the

Coalition was “concerned about compliance with the laws governing ORV use,”

including the conservation mandate of the NPS Organic Act, App’x-2059, given

NPS’ decision to allow “substantial ORV access,” App-x-950, which will have long-

term, moderate adverse impacts on several park resources and values, see Br. of

Appellant NPCA, at 18–22 (summarizing impacts), including visitor experiences—

a Preserve value and express purpose of the National Park System that NPS, to the

strong surprise and great concern of the Coalition, wholly ignored in its impairment

determination, see Br. of Appellant PEER, at 42; see also App’x-2059 (“We believe

that the Service will be hard-pressed to make [a] determination” that the ORV use

NPS; no such action was taken. In the Coalition’s view, it appears that the “reassessment” and purportedly heightened wilderness eligibility standard applied during the reassessment process were created for no other reason except to render certain parcels ineligible to allow for the immediate introduction of ORV use into those parcels once they were no longer deemed wilderness eligible. 9 Elevating the level of scrutiny for whether an area meets the statutory criteria for wilderness to the perception of a professional land manager is at odds with the Wilderness Act. The Act implies a more general test based on the qualified characteristics of the land, not filtered through any particular vision. See 16 U.S.C. § 1131(c) (defining “wilderness” as “[a]n area . . . which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable”) (emphases added).


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authorized by the GMP “will not adversely affect the[] natural, aesthetic, or scenic

values” of the Addition); App’x-2057 (“[t]he natural and ecological integrity and the

wilderness values of the Addition Lands are at stake.”).

The Coalition “trust[ed] that the [NPS], after careful reconsideration, w[ould]

see the importance of preserving these untrammeled, undeveloped, primeval lands

consistent with its legal authorities rather than undertaking the ‘improvements’ and

use contemplated by the [Addition GMP].” App’x-2057. The Service, however,

disregarded the comments of the Coalition and relied on its erroneous

characterization of the Addition as a “multiple use” area in approving a GMP that

allows for “substantial” ORV use that will have long-term, moderate, adverse

impacts on the resources and values of the Addition.10

10 The Final Addition GMP states that “allowed multiple uses make the Big Cypress National Preserve different from other national park system units. Integrating multiple uses with conservation and preservation presents unique opportunities for Preserve management.” App’x-984; accord App’x-982. It further states:

[NPS’] ability to preserve and restore natural resources in the Addition is highly dependent on the range of uses and the levels of motorized access and facility development that are approved. Many people were concerned about the [NPS’] ability to protect resources while meeting the allowed multiple uses in the Addition, including management of hunting, oil and gas operations, motorized vehicle use, and access for owners of private property.

App’x-1006–07. As discussed in this brief, the Addition GMP is incorrect on this point; there are many other National Park System units that allow for, but do not


12

II. THE DISTRICT COURT’S INTERPRETATION OF THE PRESERVE AND ADDITION ACTS AS “REQUIRING MULTIPLE USE MANAGEMENT,” AND ITS INCONSISTENT DECISIONS.

The Coalition’s concerns with the consequences of the Service’s actions

regarding the Preserve and Addition became greatly heightened because of the

district court’s decision. The foundation for the district court’s deference to NPS’

authorization of an extensive network of ORV trails in the Addition is its conclusion

that “the conservation mandate of the NPS [Organic] Act was tweaked by the

subsequent Preserve Act and Addition Act, both of which required multiple use

management.” Nat’l Parks Conservation Ass’n (“NPCA”) v. U.S. Dep’t of the

Interior, 46 F. Supp. 3d 1254, 1283 (M.D. Fla. 2014); id. at 1278 (“[U]nder the NPS

Organic Act ‘national parks are created with a conservation mandate. . . . The

Preserve and Addition, on the other hand, have both a conservation mandate and a

mandate to allow multiple uses, including recreational ORV use on designated

trails.”).

The district court determined that the Service’s authorization did not violate

the NPS Organic Act or Addition Act by applying case law on the level of deference

that BLM has under its multiple use mandate, not NPS under its conservation

mandate, stating in a conclusory manner that:

mandate, a variety of uses and activities that have the potential to conflict with the conservation mandate of the NPS Organic Act. See infra p. 22–24.


13

[M]ultiple use management is “a deceptively simple term that describes the enormously complicated task of striking a balance among many competing uses to which land can be put.” The Court rejects Plaintiffs’ argument that every NPS decision must favor preservation if there is a conflict with another goal. This would not be “striking a balance.” The Court finds that the substantive decisions by the NPS did not violate the Organic Act or the Establishment Acts.

NPCA, 46 F. Supp. 3d at 1283 (quoting Norton v. S. Utah Wilderness Alliance, 542

U.S. 55, 58 (2004) (interpreting the multiple use mandate of the Federal Land Policy

and Management Act (“FLPMA”), which applies to BLM’s management of public

lands); accord Salazar, 877 F. Supp. 2d at 1303 (concluding in a conclusory manner

that “[e]xpansion of ORV use in the Preserve does not inherently violate either the

Establishment Act or the Organic Act”).11

Further, the district court has issued inconsistent decisions, from a

management standpoint, on ORV use in the Preserve. In 2012, the district court

ruled against NPS opening substantial areas of the Preserve to ORV use closed under

a 2000 ORV management plan. Salazar, 877 F. Supp. 2d at 1301–04. In the present

case, however, the district court ruled in favor of NPS opening substantial areas of

the Addition to ORV use closed since at least 1996. NPCA, 46 F. Supp. 3d at 1302.

The district court’s 2012 decision found that Big Cypress is “highly sensitive to

11 The district court first adopted this interpretation and applied this case law in a 2012 decision on ORV use in the Preserve. Defenders of Wildlife v. Salazar, 877 F. Supp. 2d 1271, 1278 (M.D. Fla. 2012) (concluding that “since its creation the Preserve has required multiple use management”).


14

ORV use, which can cause severe and irreparable damages to [its] ecosystems,” and

“[t]he use of ORVs will necessarily affect the soil, vegetation, wildlife, wildlife

habitat and resources of a particular area.” 877 F. Supp. 2d at 1279, 1304.12 Despite

these previous findings of negative impacts to the very resources Congress

established and expanded the Preserve to protect, however, the district court upheld

the expansion of ORV use in the Addition GMP.

ARGUMENT

I. THE DISTRICT COURT’S INTERPRETATION OF THE PRESERVE AND ADDITION ACTS IS ERRONEOUS BECAUSE “MULTIPLE USE MANAGEMENT” IS A TERM OF ART IN FEDERAL LAND MANAGEMENT AT ODDS WITH THE CONSERVATION MANDATE THAT APPLIES TO ALL UNITS OF THE NATIONAL PARK SYSTEM.

“Multiple use management” is a term of art in federal land management that,

as the Coalition stressed to NPS, “is appropriately used with reference to most lands

management by the [BLM] and the [USFS], reflecting those agencies’ multiple use

mandates” under FLMPA (BLM) and the Multiple-Use, Sustained-Yield Act of

1960 (“MUSYA”) (USFS).13 App’x-2059 n.3; Or. Natural Desert Ass’n v. BLM,

12 The areas of the Preserve closed under the 2000 ORV management plan (“Bear Island Unit”) and at issue in the 2012 decision are on the same side of Interstate 75 as the portion of the Addition at issue in the 2014 decision now on appeal. See 877 F. Supp. 2d at 1280; Br. of NPCA, at Add.-43 (AR012907) (map of selected alternative for Addition GMP). The Bear Island Unit “has one of the highest concentrations of important resource areas.” Fagergren, supra p. 5, at 225. 13 FLPMA defines “multiple use” to mean:


15

531 F.3d 1114, 1117 n.2 (9th Cir. 2008) (“‘multiple use and ‘sustained yield’ are

both technical terms” that govern BLM under FLPMA).

Unlike a conservation mandate, “[t]he concept of multiple use is so abstract

that its usefulness as a constraint on agency management discretion is questionable,”

and the “judicial interpretations afford broad discretion to the two multiple use

agencies.” Robert L. Glicksman & George C. Coggins, Modern Public Land Law

in a Nutshell 215 (2006). In fact, in Perkins v. Bergland, 608 F.2d 803 (9th Cir.

1979), the Ninth Circuit held that “only very narrow review is appropriate” for

multiple use management decisions given that the statutory language “breathes

discretion at every pore.” Accord Sierra Club v. USDA, No. 96-2244, 1997 WL

295308, at *6 (7th Cir. May 28, 1997) (“MUSYA empowers the Forest Service with

a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.

43 U.S.C. § 1702(c). MUSYA contains a nearly identical definition of “multiple use.” See 16 U.S.C. § 531(a).


16

wide discretion to give equal consideration, but not necessarily equal weight, to all

of the[] values [of the various resources]”).

In contrast, under the conservation mandate of the NPS Organic Act, resource

preservation must trump other park uses in the event of conflict because “promotion”

of park use must “conform to” the “fundamental purpose [of] conserv[ing] the

scenery and the natural and historic objects and the wild life therein.” 16 U.S.C. § 1;

see NPS Mgmt. Policies, at § 1.4.3 (2006) (App’x-1810) (“when there is a conflict

between conserving resources and values and providing for enjoyment of them,

conservation is to be predominant”);14 Mich. United Conservation Clubs v. Lujan,

949 F.2d 202, 206 (6th Cir. 1991) (“Congress did not regard the National Park

System to be compatible with consumptive uses”); Daingerfield Island Protective

Soc’y v. Babbitt, 40 F.3d 442, 446 (D.C. Cir. 1994) (NPS has “broad, but not

unlimited discretion in determining what actions are best calculated to protect Park

resources”). Thus, multiple use management provides BLM and USFS with

significantly greater discretion in favoring resource use such as ORV use over

14 Under NPS’s 2006 Management Policies that remain in effect, the “mandate to conserve park resources and values . . . is independent of the separate prohibition on impairment and applies all the time with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired.” App’x-1809.


17

conservation than NPS has under the conservation mandate of the NPS Organic

Act.15

A critical point for the Court to recognize is that the conservation mandate

applies to all units of the National Park System. In the NPS General Authorities Act

of 1970, Congress declared that all units, “are united . . . into one national park

system” and “derive increased . . . recognition of their superb environmental quality

through their inclusion jointly with each other in one national park system preserved

and managed for the benefit and inspiration of all the people of the United States.”

Pub. L. 91-383, § 1, 84 Stat. 825 (1970); 16 U.S.C. § 1a-1. In 1978, through the

“Redwood Amendment,” Congress “reaffirm[ed] . . . that the promotion . . . of the

various areas of the National Park System . . . shall be consistent with and founded

in the purpose established by section 1” and emphasized that “administration of these

areas . . . shall not be exercised in derogation of the values and purposes for which

15 As former NPS Deputy Director and Coalition member Denis Galvin explained in testimony to Congress:

[N]ational parks do not have to sustain all recreation. . . . The [NPS] Organic Act, emphasizing conservation for future generations, is substantially different from the organic laws of [BLM and USFS]. . . . Together, these agencies provide for many forms of public recreation but not all forms of recreation are appropriate in national parks.

Hearing on Proposed Revisions to NPS Mgmt. Policies and Director’s Order 21 Before the H. Subcomm. on National Parks, 109th Cong. (2006) (statement of Denis Galvin, NPS Deputy Dir., on Behalf of NPCA).


18

[they] have been established, except as may have been or shall be . . . specifically

provided by Congress.” Redwood Act, Pub. L. 95-250, § 101(b), 92 Stat. 166

(1978); 16 U.S.C. § 1a-1.16 Thus, the import of these three laws—the NPS Organic

Act of 1916, the NPS General Authorities Act of 1970, and the 1978 Redwood

Amendment—is clear: NPS must manage each and every unit of the National Park

System under the same conservation mandate, subject only to those exceptions for

specific activities expressly authorized by Congress. Bicycle Trails Council of

Marin v. Babbitt, 82 F.3d 1445, 1449 (9th Cir. 1996) (“By a series of amendments

to the [NPS] Organic Act . . . Congress . . . directed that all units of the national parks

were to be treated consistently, with resource protection the primary goal.”).

“Multiple use” is a concept used nowhere within the body of laws governing the

National Park System. By contrast, “multiple use” is the distinguishing legal lexicon

consistently used by Congress to define the management federal lands by BLM and

USFS.

The conservation mandate was not “tweaked” by the Preserve and Addition

Acts to “require[] multiple use management,” as the district court held. NPCA, 46

16 As the Coalition noted in its comments, NPS “responded to the [Redwood Amendment] by discarding the tripartite management scheme,” under which “parks areas were managed under three different sets of regulations and policies according to whether the area was deemed natural, recreational or historical.” App-x-2058 n.1; see also Nat’l Rifle Ass’n of Am. v. Potter, 628 F. Supp. 903, 906 (D.D.C. 1986) (NPS “perceiv[ed] in these amendments an implied reproof for having strayed from the true purpose of the Organic Act”).


19

F. Supp. 3d at 1283. The Preserve and Addition Acts clearly state that the Preserve

and Addition “shall be administered . . . as a unit of the National Park System in a

manner which will assure their natural and ecological integrity in accordance with

. . . the provisions of sections 1, 2, 3, and 4 [of the NPS Organic Act].” 16 U.S.C.

§ 698i (Preserve Act); see id. at § 698m-1(c) (Addition “shall be managed in

accordance with section 698i”). In addition, Congress established the Addition “to

achieve the purposes of section 698f [Preserve Act],” which are “to assure the

preservation, conservation, and protection of the natural, scenic, hydrologic, floral

and faunal, and recreational values of the Big Cypress Watershed.” Id. at § 698m-

1(a)(1). Further, as the Coalition emphasized in its comments, the Addition Act

“does not mandate ORV recreational use nor does it authorize recreation that would

cause unacceptable impacts on other resources and values.” App’x-2058; see 16

U.S.C. § 698i(b) (requiring NPS to “limit or control the use of Federal lands [within

the Preserve and Addition] with respect to” ORVs, oil extraction, grazing,

agriculture, and hunting “in order to carry out the purposes of the [Acts]”); id. at

§ 698m-1(a)(1) (Addition Act).17

17 Section 698m-2 of the Addition Act requires NPS to simply “cooperate” with the State of Florida “to establish . . . traditional recreational opportunities in conjunction with the creation of the Addition.” This provision is procedural in nature and does not specifically mandate or authorize ORV use.


20

The term “multiple use” is found nowhere in any element of Congressional

enactments for, or deliberations over, the establishment or enlargement of the

Preserve.18 A number of different activities involving consumptive or extractive

uses are authorized, but not directed, by the Preserve and Addition Acts, i.e., there

are “multiple” different “uses” that NPS may allow in the Preserve and Addition, if

and when they are consistent with the conservation mandate.19 Authorization of

these resource-destructive activities, however, is not governed by a “multiple use”

mandate under which they are on equal footing from a management standpoint as

uses that are inherently consistent with an overarching conservation mission.

Moreover, courts have held that other establishment acts similar to the

Preserve and Addition Acts, which allow for uses at odds with a strong conservation

18 The legislative history of the Preserve and Addition Acts indicates that “Congress emphasized the priority of protecting the Preserve’s [and the Addition’s] natural and wilderness values.” App’x-2058 (citing S. Rep. No. 93-1128 (1974), reprinted in 1974 U.S.C.C.A.N. 5568, 5571); see S. Rep. No. 93-1128, at 25 (“the area included in the preserve is largely undeveloped at the present time and . . . it will be managed in a manner which will assure its return to the true wilderness character which once prevailed”); id. at 26 (“the use of all terrain vehicles must be carefully regulated . . . to protect the natural, wildlife, and wilderness values of the preserve”); H.R. Rep. No. 100-30, at 2 (1987) (“The Committee has taken no action to limit or expand the existing authority for [recreational] uses [within the Preserve and Addition].”). 19 In fact, NPS’ 2006 Management Policies distinguish between “mandated” and “authorized” uses. See App’x-1810; see also NPS Mgmt. Policies, at § 8.1.1 (2006), available at www.nps.gov/policy/mp2006.pdf (“When a use is authorized by law but not mandated, and when the use may cause unacceptable impacts on park resources or values, the Service will avoid or mitigate the impacts; or, if necessary, the Service will . . . eliminate an existing activity.”).


21

purpose, are not “multiple use” laws. For example, in Conservation Law Foundation

of New England, Inc. v. Clark, 590 F. Supp. 1467, 1478 (D. Mass. 1984), aff’d 864

F.2d 954 (1st Cir. 1989), the court interpreted the Cape Cod National Seashore Act,

which specifically provides for, but does not mandate, uses such as boating, hunting,

and fishing, 16 U.S.C. § 459b-6(b)(1), and held that the Act, “while countenancing

the development of areas of the [unit] for public recreational use, prescribes that such

development must respect the overriding preservation mandate of the statute.” See

also id. at 1479 n.7 (the Act “require[s] a level of protection greater than that

generally extended to National Forest lands under the “multiple use” concept”).20

Likewise, in Sierra Club v. Mainella, 459 F. Supp. 2d 76, 79 (D.D.C. 2006), the

court interpreted the Big Thicket National Preserve Act—which contains very

similar statutory language to the Preserve and Addition Acts and allows for but does

not mandate ORV use, oil extraction, grazing, and agriculture, see 16 U.S.C.

§ 698c(b)—as not requiring multiple use management. Id. (“This [conservation]

20 See also Cape Hatteras Access Preservation Alliance v. Jewell, 28 F. Supp. 3d 537, 545 (E.D.N.C. 2014) (“While the [Cape Hatteras National Seashore Act] does specifically mention recreational activities, Congress’ intent as to the priority of natural resource protection over recreational use on the Seashore is quite plain: no plan for the convenience of visitors should be implemented if it is incompatible with preservation of the flora and fauna of the Seashore.”).


22

mandate is . . . reflected in the legislation establishing individual parks, including

Big Thicket National Preserve.”).21

Thus, the district court erred in concluding that “the conservation mandate of

the NPS [Organic] Act was tweaked by the subsequent Preserve Act and Addition

Act” to “require[] multiple use management.” NPCA, 46 F. Supp. 3d at 1283. In

doing so, the district court perhaps relied on the incorrect usage of the term by NPS

in its Addition GMP. See supra p. 11 n.10. As the Coalition membership can attest,

NPS managers know very well that multiple use management principles apply

nowhere within the National Park System; they are limited to BLM and USFS-

managed areas. While the Addition GMP and Addition management team erred in

their characterization of the Preserve and Addition as a multiple use area, and the

district court compounded this error, on appeal, this Court should vacate the decision

below and, in doing so, eliminate this terminology from the discussion of the laws

that govern not only Big Cypress but any unit of the National Park System.

21 In fact, in the legislative history of the Preserve Act, Congress stated that:

The principal thrust of [national preserves] should be the preservation of the natural values which they contain. . . . National preserves may accommodate significant recreational uses without impairing the natural values, but such public use . . . would be limited to activities where, or periods when, such human visitation would not interfere with or disrupt the values which the area is created to preserve.

S. Rep. No. 93-1128, at 26.


23

II. THE DISTRICT COURT’S ERRONEOUS INTERPRETATION OF THE PRESERVE AND ADDITION ACTS AS MULTIPLE USE LAWS INVITES DEGRADATION OF MANY UNITS OF THE NATIONAL PARK SYSTEM.

The district court’s erroneous interpretation of the Preserve and Addition Acts

as requiring “multiple use management” invites degradation of many units of the

National Park System with similar enabling legislation. Specifically, the

establishment acts for the 20 other national preserves,22 the 10 national seashores,23

and the four national lakeshores,24 contain very similar to identical provisions as the

Preserve and Addition Acts allowing for uses that generally involve negative

impacts to resources, while also specifically incorporating the conservation mandate

22 See 16 U.S.C. § 410hh(1) (Aniakchak); id. at § 410hh(2) (Bering Land Bridge); id. at § 698c (Big Thicket); id. at § 698w (Craters of the Moon); id. at § 410hh-1(3)(a) (Denali); id. at § 410hh(4)(a) (Gates of the Arctic); id. at § 410hh-1(1) (Glacier Bay); id. at § 410hhh-5(a)(1) (Great Sand Dunes); id. at § 410hh-1(2) (Katmai); id. at § 230e (Jean Lafitte); id. at § 410hh(7)(a) (Lake Clark); id. at § 698r (Little River Canyon); id. at § 410aaa-46(a) (Mojave); id. at § 410hh(8)(a) (Noatak); id. at § 410vvv (Oregon Caves); id. at § 698u-3 (Tallgrass); id. at § 698n (Timucuan); id. at § 410hh(10) (Yukon-Charley Rivers); id. at § 410hh(9) (Wrangell-Saint Elias). 23 See 16 U.S.C. §§ 459f-4, 459f-5 (Assateague Island); id. at §§ 459j-3, 459j-4 (Canaveral); id. at § 459b-6 (Cape Cod); id. at § 459a-1 (Cape Hatteras); id. at §§ 459g-3, 459g-4 (Cape Lookout); id. at §§ 459i-4, 459i-5 (Cumberland Island); id. at §§ 459e-5, 459e-6 (Fire Island); id. at §§ 459h-2, 459h-4 (Gulf Islands); id. at §§ 459d-3, 459d-4 (Padre Island); id. at § 459c-6 (Point Reyes). 24 16 U.S.C. §§ 460w-4, 460w-5 (Apostle Islands); id. at § 460u-6 (Indiana Dunes); id. at §§ 460s-4, 460s-5 (Pictured Rocks); id. at §§ 460x-4, 460x-5 (Sleeping Bear Dunes).


24

of the NPS Organic Act.25 In fact, the only establishment legislation for a national

preserve that incorporates the multiple use and sustained yield concepts of MUSYA

was managed by USFS, not by NPS. See Pub. L. 106-248, §§ 103(5), 105(b), 114

Stat. 598 (2000) (Valles Caldera National Preserve).26 A decision by this Court that

the Preserve and Addition Acts require multiple use management means that the

establishment acts for these units contain the same requirement, which, as discussed

above, would give NPS the same discretion in favoring resource use over

conservation as the BLM and USFS apply to lands under their management, inviting

degradation of these National Park System units. Such a result would abandon

nearly 100 years of precedent under the NPS Organic Act of 1916 and threaten the

25 For example, although the Alaska National Interest Lands Conservation Act, which established and expanded the 10 national preserves in Alaska, allows for a variety of uses at odds with a strong conservation purpose, including hunting, commercial fishing, trapping, subsistence uses, grazing, motorized vehicle use, aircraft landing, and mountain climbing, Congress clearly stated that NPS “shall administer the lands, waters, and interests therein added to existing areas or established by the foregoing sections . . . as new areas of the National Park System, pursuant to the provisions of sections 1 and 2 to 4 [of the NPS Organic Act].” 16 U.S.C. § 410hh-2. 26 In 2014, Congress transferred management authority for Valles Caldera National Preserve from USFS to NPS, specifically required NPS to administer the Preserve in accordance with the NPS Organic Act, see Pub. L. 113-291, § 3043(b), 128 Stat. 3292, 3793 (2014), and repealed references to multiple use management, see id. at § 3043(d), 128 Stat. at 3798.


25

conservation directive that distinguishes the National Park System from all other

federal land use classifications.27

CONCLUSION

NPS erroneously applied a multiple use standard to management of the

Preserve and Addition. In doing so, NPS failed to comply with its own Management

Policies, which state that:

The fundamental purpose of the national park system, established by the Organic Act and reaffirmed by the General Authorities Act, as amended, begins with a mandate to conserve park resources and values. This mandate is independent of the separate prohibition on impairment and applies all the time with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired.

27 The Coalition is well aware of numerous policies and directives issued by the Secretaries of the Interior and NPS officials over the decades that confirm this principle. For example, the foundation of the conservation mandate is Secretary Lane’s 1918 letter to NPS Director Stephen Mather, stating that “the national parks must be maintained in absolutely unimpaired form for the use of Future generations as well as those of our time . . . . Every activity of the Service is subordinate to the duties imposed upon it to faithfully preserve the parks for posterity in essentially their natural state.” Letter on Nat’l Park Mgmt. from Franklin K. Lane, Sec’y of the Interior, to Stephen T. Mather, NPS Director (May 13, 1918), available at www.nps.gov/parkhistory/online_books/anps/anps_1j.htm. Again, in 1925, Secretary Work distinguished national parks from the multiple use lands of the national forests: “In short, national parks unlike national forests, are not properties in a commercial sense, but natural preserves for the rest, recreation and education of the people. They remain under Nature’s own chosen conditions.” Statement of Nat’l Park Policy, Hubert Work, Sec’y of the Interior (Mar. 11, 1925), available at www.nps.gov/parkhistory/online_books/anps/anps_2c.htm.


26

App’x-1809 (emphasis added). As provided in these statutes and the Redwood

Amendment, NPS must manage the Preserve and Addition as any other unit of the

National Park System—when there is a conflict between conserving resources and

values and providing for enjoyment of them, conservation is to be predominant.

Under no circumstances does this legal framework invoke multiple use management

principles. Given the numerous adverse impacts of ORV use at the Preserve, see,

e.g., AR13632–33 (2000 ORV Management Plan), a prudent application of NPS’s

conservation mandate should have resulted in a decision to much more carefully

limit ORV use in the Addition. The district court sustained NPS’s application of

multiple use management principles through its erroneous conclusion that “the

conservation mandate of the NPS [Organic] Act was tweaked by the subsequent

Preserve Act and Addition Act, both of which required multiple use management.”

NPCA, 46 F. Supp. 3d at 1283. Because of the erroneous application of the multiple

use standard by NPS and the district court, as well as the reasons in Plaintiffs-

Appellants’ briefs, the Court should reverse the decision of the district court and

remand the agency actions at issue to NPS. In doing so, this Court should eliminate

multiple use management terminology from the discussion of the laws that govern

not only Big Cypress National Preserve and Addition, but any unit of the National

Park System.


27

Respectfully submitted,

Dated: August 10, 2015 /s/ Tyler J. Sniff, Esq. Tyler J. Sniff Georgia Bar No. 403125 Donald D.J. Stack, Esq. Georgia Bar No. 673735

STACK & ASSOCIATES, P.C. 260 Peachtree Street, Suite 1200 Atlanta, Georgia 30303 Telephone: (404) 525-9205 Facsimile: (404) 522-0275 E-mail: [email protected]

Dated: August 10, 2015 /s/ Donald C. Baur, Esq. Donald C. Baur, Esq.

Admitted pro hac vice PERKINS COIE, LLP 700 13th Street, NE, Suite 600 Washington, D.C. 20005 Telephone: (202) 654-6234 Facsimile: (202) 654-6211 E-mail: [email protected]

Counsel for Amicus Curiae Coalition to Protect America’s National Parks, Inc.


CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 29(c)(7), I hereby certify

that, in accordance with Federal Rule of Appellate Procedure 29(d), this brief,

exclusive of the Cover Page, Table of Contents, Table of Authorities, Certificate of

Interested Persons and Corporate Disclosure Statement, Certificate of Compliance,

Certificate of Service, and signature blocks, contains 6,943 words.

Dated: August 10, 2015 /s/ Tyler J. Sniff, Esq. Tyler J. Sniff


CERTIFICATE OF SERVICE

Pursuant to Federal Rule of Appellate Procedure 25(c)(2) and Eleventh

Circuit Rule 25-3(a), I hereby certify that on August 10, 2015, I electronically filed

the foregoing using the Court’s CM/ECF system, and thus also served the foregoing

on all counsel of record.

Dated: August 10, 2015 /s/ Tyler J. Sniff, Esq. Tyler J. Sniff


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