Full opinion text
OPINION AND ORDER JOHN E. STEELE, District Judge. For the third time since 1995, the issue of the use of motorized recreational off-road vehicles (ORVs) in the Big Cypress National Preserve is before the Court. The first case, initiated by environmental interests, resulted in a Settlement Agreement, while the second, initiated by ORV interests,- resulted in summary judgment in favor of the government agencies. In the current case, environmentally inclined plaintiffs challenge the February, 2007 decision of the National Park Service to reopen ORV trails in the Bear Island Unit of the Big Cypress National Preserve. Plaintiffs assert that the reopening of these trails violated: (1) the 1995 Settlement Agreement; (2) the National Park Service’s 2000 ORV Management Plan; (3) the National Park Service' Organic Act; (4) the Big Cypress Establishment Act; (5) Executive Order 11,644; (6) Executive Order 11,989; (7) the National Environmental Policy Act (NEPA); (8) the Endangered Species Act (ESA); and (9) the Administrative Procedure Act (APA). The case is now before the Court on cross motions for summary judgment (Docs. # 95, 103) and supporting and opposing memoranda and exhibits (Docs. # 104,106, 109, 113, 127). The administrative record has been filed on two computer discs (Doc. # 63), which will be referred to as “AR” followed by the page number. The Court heard oral argument on January 9, 2012. With the Court’s permission, the defendants filed a Post-Hearing Brief on Remedy (Doc. # 120) on January 17, 2012 and plaintiffs filed a Reply (Doc. # 121) on January 23, 2012. Plaintiffs filed two Notices of Supplemental Authority (Docs. # 127, 129) on February 27, 2012 and April 16, 2012, to which defendants filed Responses (Docs. # 128,130). I. Relevant Environmental Statutes and Executive Orders A. National Park System and the National Park Service The national park system in the United States began with the establishment of Yellowstone National Park in 1872. 16 U.S.C. § la-1. In 1916, the National Park Service Organic Act created the National Park Service (NPS) within the Department of Interior. 16 U.S.C. § 1. NPS was required to: promote and regulate the use of the Federal areas known as national parks, monuments, and reservations ... as provided by law, by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, 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. Id. Thus, national parks are created with a conservation mandate, i.e., to conserve and preserve the scenery, wildlife, and objects (natural and historical) within their boundaries for present and future enjoyment. B. National Environmental Policy Act (NEPA) The National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370 (“NEPA”), established a “national policy [to] encourage productive and enjoyable harmony between man and his environment,” and was intended to reduce or eliminate environmental damage and to promote “the understanding of the ecological systems and natural resources important to” the United States. 42 U.S.C. § 4321. NEPA does not itself mandate particular results, but only imposes “procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757-58, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); see also Citizens For Smart Growth v. Sec’y, Dept. of Transp., 669 F.3d 1203, 1211 (11th Cir.2012); Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.2008). NEPA compliance must take place before decisions are made in order to ensure that those decisions take environmental consequences into account. Wilderness Watch v. Mainella, 375 F.3d 1085, 1096 (11th Cir.2004) (emphasis in original). C. Executive Order 11,644 In response to a general increase of ORV use on public lands, in 1972 President Richard M. Nixon issued an executive order for the purpose of “establish[ing] policies and provid[ing] procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands.” Exec. Order No. 11,644, 37 Fed.Reg. 2877 (Feb. 8, 1972), as amended by Exec. Order No. 12,608, 52 Fed.Reg. 34617, Sec. 21 (September 9, 1987). This Executive Order, intended to further the purpose and policy of NEPA, required the Secretaries of the Departments of Interior, Defense, and Agriculture (and the Tennessee Valley Authority) to “develop and issue regulations and administrative instructions ... to provide for administrative designation of the specific areas and trails on public lands on which the use of off-road vehicles may be permitted, and areas in which the use of off-road vehicles may not be permitted, and areas in which the use of off-road vehicles may not be permitted, .... ” Id. at § 3. The Executive Order required that the regulations direct that the designation of such areas and trails: (1) “be based upon the protection of the resources of the public lands, promotion of the safety of all users of those lands, and minimization of conflicts among the various uses of those lands”; and (2) be located in such a way as to (a) “minimize damage to soil, watershed, vegetation, or other resources of the public lands”; (b) “minimize harassment of wildlife or significant disruption of wildlife habitats”; (c) “minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands”; and (d) “ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.” Id. at § 3(a). Further, such trails and areas were not to be located in designated Wilderness or Primitive Areas, and “shall be located in areas of the National Park system ... only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.” Id. Public participation in the promulgation of the regulations and designations of the areas and trails was required. Id. at § 3(b). The Executive Order also required the agencies to “monitor the effects” of ORV use on the public lands and “[o]n the basis of the information gathered, they shall from time to time amend or rescind designations of areas or other actions taken pursuant to this order as necessary to further the policy of this order.” Id. § 8. D. Endangered Species Act (ESA) Shortly after President Nixon issued this Executive Order, Congress enacted the Endangered Species Act of 1973, 16 U.S.C. § 1531-1544(ESA), described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The U.S. Fish and Wildlife Service (FWS) is the agency responsible for implementing the ESA. The purpose of the ESA is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” and “to provide a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth., 437 U.S. at 184, 98 S.Ct. 2279. The “negative environmental consequences” of ORV use, S. Utah Wilderness Alliance, 542 U.S. at 60, 124 S.Ct. 2373, potentially impacts endangered and threatened species of animals. Relevant provisions of the ESA will be discussed below. E. Big Cypress Establishment Act Against this background, in 1974 Congress established the Big Cypress National Preserve (Big Cypress NP or the Preserve) to “assure the preservation, conservation, and protection of the natural, scenic, hydrologic, floral and faunal, and recreational values of the Big Cypress watershed in the State of Florida and to provide for enhancement and enjoyment thereof.” Pub. L. 93-440, § 1, 88 Stat. 1258 (Oct. 11, 1974), codified at 16 U.S.C. § 698f(a). The Secretary of the Interior (the Secretary) was authorized to acquire property within the Preserve, 16 U.S.C. § 698f(c), and required to administer the Preserve as a unit of the National Park System “in a manner which will assure their natural and ecological integrity in perpetuity in accordance with the provisions of sections 698f to 698m-4 of this title and with the provisions of sections 1, 2, 3, and 4 of this title, as amended and supplemented.” 16 U.S.C. § 698i(a). The original Preserve was over 574,000 acres, (variously estimated at 574,440 acres, AR 58, or 582,000 acres, AR 858). Approximately 147,000 acres were added in 1988 by the Big Cypress National Preserve Addition (the Addition), PL 100-301; 74 Fed.Reg. 34030; 16 U.S.C. § 698m-1. AR 858. The Secretary was required to develop and publish “such rules and regulations as he deems necessary and appropriate to limit or control the use of Federal lands and waters with respect to: (1) motorized vehicles, ... (6) hunting, fishing, and trapping, ...” 16 U.S.C. § 698i(b). On the other hand, the Secretary was also required to “permit hunting, fishing and trapping on lands and waters under his jurisdiction within the Preserve and Addition in accordance with the applicable laws of the United States and the State of Florida, except that he may designate zones where and periods when no hunting, fishing, trapping or entry may be permitted for reasons of public safety, administration, floral and faunal protection and management, or public use and enjoyment.” 16 U.S.C. § 698j. The legislative history of the Act made clear Congress’ expectations that ORVs would be allowed in the Preserve, but restricted to designated trails: Since the area to be included in the Preserve is largely undeveloped at the present time and because it will be managed in a manner which will assure its return to the true wilderness character which once prevailed, it will offer many outdoor recreation opportunities to the visiting public.... While the use of all terrain vehicles must be carefully regulated by the Secretary to protect the natural, wildlife, and wilderness values of the Preserve, the bill does not prohibit their use along designated roads and trails. S. Rep. 93-1128 (Aug. 22, 1974), 1974 U.S.C.C.A.N. 5568, 5571; H.R. Rep. 93-502 at 5-6, 93rd Cong., 1st Sess. (Sept. 13, 1973). Thus, since its creation the Preserve has required multiple use management, which the Supreme Court described as “a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put ...” S. Utah Wilderness Alliance, 542 U.S. at 58, 124 S.Ct. 2373. F. Executive Order 11,989 In 1977 President Jimmy Carter issued Executive Order No. 11989, which strengthened Executive Order 11,644. Exec. Order 11,989, 42 Fed.Reg. 26959 (May 24, 1977). Executive Order 11,989 provides that notwithstanding the general provisions relating to the zones of ORV use, the agency head “shall ... immediately close” any area or route to ORVs whenever he determines that ORV use “will cause or is causing considerable adverse effects” to soil, vegetation, wildlife, wildlife habitat, or cultural or historic resources. Id. § 2 (amending Exec. Order 11,644, § 9(a)). The closure must remain in place until the adverse effects have been eliminated and measures have been implemented to prevent future recurrence. Id. at § 2(a). Additionally, each agency head was authorized to “adopt the policy that portions of the public lands within his jurisdiction shall be closed to use by off-road vehicles except those areas or trails which are suitable and specifically designated as open to such use pursuant to Section 3 of this Order.” Id. at § 2(b). G. NPS Special Regulations for the Big Cypress Preserve Shortly after creation of the Preserve, the Secretary began the process of drafting special rules relating to ORVs and other issues in light of some inconsistencies between the general NPS regulations and the Act creating the Preserve. On January 24, 1979, the NPS published notice of a proposed special regulation for the Preserve, 44 Fed.Reg. 5680, and on August 1, 1979, NPS published the final rule promulgating 44 Fed.Reg. 45124. This new regulation defined “motorized vehicles”, closed certain areas and trails to ORV use, opened two specified areas to ORV use, provided for temporary closure of areas and routes by the superintendent, and imposed restrictions on ORV operation and equipment. An Environmental Assessment (EA) was prepared in connection with the new regulation, but an Environmental Impact Statement (EIS) was not prepared because NPS found the regulations were not “a major Federal action significantly affecting the quality of the human environment which would require preparation of an Environmental Impact Statement.” 44 Fed.Reg. 45128. This was because “[t]he regulations will limit and control certain activities which heretofore have been unrestricted and, since they will phase out some adverse uses of the preserve lands, they have little potential for causing a significant environmental impact.” Id. II. Relevant Procedural History Regarding Big Cypress Preserve A. The Big Cypress Preserve The Preserve is located to the north and west of most of the Everglades in southwest Florida. It is a mosaic of extensive prairies and marshes, forested swamps, and shallow sloughs on exceptionally flat terrain. AR 59, 955. The Preserve is an important watershed located upstream of Everglades National Park, and is an important and fragile area. AR 59. Due to soft soils and vegetation, the marshes and prairies are highly sensitive to ORV use, which can cause severe and irreparable damage to the Preserve’s ecosystems. AR 278-79, 960-67. The Preserve is home to a variety of plant and animal life, including thirty animal species that receive special protection or are recognized by the State of Florida, the federal government, or international treaties. AR 59, 966-68. The Preserve and nearby public land provide approximately half of the habitat for the Florida Panther (Felis concolor coryi), which was listed as an endangered species in 1967 and has remained on the Endangered Species List. See 32 Fed.Reg. 4,001 (Mar. 11. 1967). There are currently approximately 80-100 adult and immature Florida panthers within the Preserve boundaries. AR 2049. Since the 1930s, people have accessed what is now Preserve property using motorized ORVs, including swamp buggies, tracked vehicles, smaller all-terrain vehicles, and airboats. AR 255. Historically, ORVs were allowed to go virtually anywhere, usually leaving visible tracks on the ground. NPS has identified ORV use as the second most popular activity in the Preserve, AR 64, 265, and hunters, ORV users, and owners of improved properties within the Preserve as the primary Preserve visitors. AR 250. NPS divided the Preserve into six planning or management units: Bear Island, Deep Lake, Turner River, Corn Dance, Loop, and Stairsteps. See Attachment B to this Opinion and Order. AR 85. The Bear Island Unit (BIU) of the Preserve, located in its northwest corner, includes all of the Preserve lands north of Interstate 75, has one of the highest concentrations of important resources in the Preserve, is particularly rich in inland marshes and hardwood hammocks, and supports the healthiest remaining population of Florida panthers in the Preserve. AR 84, 100. The BIU is of great importance to panthers, having the highest proportion of preferred panther habitat within the original Preserve boundaries. AR 1107. Its location north of Interstate 75 provides additional prey resources and upland plant communities not available in the southern portion of the Preserve. AR 84; 1107-09. Much of the BIU is leased for cattle grazing. Active oil production has been taking place for many years, which has caused the development of an extensive network of roads providing access to existing oil production pads. AR 84. The BIU also contains the largest designated campground in the Preserve. AR 84. B. The 1991 General Management Plan In October, 1991, NPS issued a massive General Management Plan (1991 GMP) and Final Environmental Impact Statement (FEIS) for the Preserve. AR 38-755. The GMP and FEIS addressed all aspects of management of the Preserve, including ORV management. NPS reported that in the previous season it had issued 2,012 ORV permits. At that time, ORVs could access the Preserve at almost any location and travel almost anywhere on trails crisscrossing much of the land. AR 64. Only the Loop Unit and two designated trails were closed to ORV use. Id. NPS further reported that the network of ORV trails in the Preserve had developed haphazardly over the years, with many trails following active and abandoned mineral access roads, former logging trams, and major prairies and marshes. AR 257. NPS conservatively estimated the total mileage of ORV trails in the Preserve at 1,240 miles. AR 257-58, 259; see Attachment D to this Opinion and Order for the NPS’s visual display of the then-existing ORV trails in the Preserve. AR 259. The NPS “Proposed Action” in connection with ORV use, which with one exception was the action ultimately adopted, provided in part that: Regulation and control of ORV use would be implemented through (1) a vehicle permit system, (2) general regulations governing the operation of vehicles, and (3) a system of designated access points, areas or trails for each management unit with ORV use. More detailed actions concerning ORV management would be included in an ORV management plan, which would be developed once the [GMP/FEIS] has been approved. AR 97. The Proposed Action was said to result in a 20% reduction in mileage of ORV trails, AR 302, limit the total number of ORV permits to 2,000 per year, AR 99, and limit the number of access points for ORVs to approximately 15 improved sites and 22 unimproved sites. AR 98-100, 143. Specific ORV trails and areas were not identified, but would be designed through the “Superintendent’s Compendium” process authorized by 36 C.F.R. § 1.5 and 1.7. AR 47. The ORV restrictions were viewed as a method of protecting the Florida panther by reducing human activity in its habitat, AR 121, 312, and allowing for recovery of damaged natural vegetation, AR 276, 281, and marshes, AR 278. The Proposed Action also provided that ORV use in the BIU would be limited solely to designated trails, with a network of 60-80 miles of trails in order to “contain potential disturbance to panthers, to control hunting pressure on panther prey (deer and hogs), and protect important resource areas.” AR 100. The criteria applied to determine which trails and areas should be closed to ORV use included causing extensive ponding or erosion; adversely impacting soils, vegetation, wildlife, or wildlife habitat; multiple trails cutting through sloughs, strands, or other important resource areas; and threats of vandalism or erosion to cultural resource sites. AR 101. In a January, 1992 Record of Decision (1992 ROD) intended “to document the National Park Service’s determination of how Big Cypress National Preserve will be managed for the next 10 to 15 years,” AR 12, NPS adopted the Proposed Action as part of its 1991 GMP. AR 10-19. The 1992 ROD stated that “[t]he preserve will be managed to conserve natural and cultural resources and ecological processes while accommodating uses and experiences that do not adversely affect the area’s ecological integrity.” AR 11. C. The 1995 Lawsuit The more detailed ORV management plan promised in the 1991 GMP was not forthcoming. In 1995, several environmental groups and individuals, led by the Florida Biodiversity Project and Brian Scherf, sued NPS and other federal agencies over ORV management in the Preserve. Fla. Biodiversity Project v. Kennedy, Case No. 95-50-Civ-FtM-24D (M.D.Fla.). The lawsuit asserted that NPS failed to circumscribe or manage ORVs in the Preserve in any meaningful way, resulting in an overall dispersed trail network of approximately 23,000 miles which severely damaged the Preserve. The lawsuit was settled by an October 25, 1995 Settlement Agreement (Doc. # 39-2), in which NPS agreed to prepare the ORV management plan contemplated by the 1991 GMP and prepare a Supplemental Environmental Impact Statement (SEIS). The SEIS would analyze the cumulative impacts of a “no action” alternative to the extent required by NEPA, and would “build upon the analysis of issues and impacts previously set forth” in the 1991 GMP and FEIS. (Id. at 2-3). In January, 1996, NPS entered into an agreement with Virginia Polytechnic Institute and State University for preparation of the OVR plan. 61 Fed.Reg. 1599-02 (Jan. 22, 1996). D. Initial Work on ORV Plan Between 1995 and March, 1999, the NPS collected data and public opinion for the development of the ORV plan for the Preserve. 64 Feg. Reg. 13233-01 (March 17, 1999). NPS described its efforts to collect data and information as including “meetings and interviews with groups, organizations and individuals from a variety of sectors including ORV and hunting groups, hiking clubs, environmental groups, employees or associates of the Miccosukee or Seminole Tribes, state agencies, and other federal agencies.” Id. Efforts also included a mail-back ORV visitor-use survey, a Website and E-mail and two newsletters. Id. By March, 1999, NPS had entered the phase of the project in which alternatives for the management of ORVs in the Preserve would be developed and considered. Id. On August 16, 1999, NPS announced that the Off-Road Vehicle Management Plan/Supplement to the Final Environmental Impact Statement (ORVMP/SFEIS) was available for review by the public. 64 Feg.Reg. 44532-02 (Aug. 16, 1999); 64 Fed.Reg. 62218-01 (Nov. 16, 1999). In preparing the ORV management plan, NPS recognized that its strategy up until that point allowed dispersed use of ORVs in some areas of the Preserve, restricted use of ORVs to designated trails in other areas, and closed other areas cornpletely to ORV use. AR 851, 861. Generally, ORV users had unlimited access to the Preserve from approximately 70 informal locations. AR 861. The Deep Lake and Loop units were closed to all ORV use. Dispersed use was allowed in the Corn Dance and Turner River units. AR 941. The Stairsteps Unit was managed in four zones with varying ORV use allowed. AR 851, 861, 941. In the BIU, ORV use was allowed on approximately 54-55 miles of designated trails, 16 miles of which were above-grade roads constructed prior to the establishment of the Preserve for agriculture, logging, and mineral exploration. AR 861, 941, 943. There were no limitations on the types of vehicles permitted within the management units. AR 862. NPS characterized this management strategy as “primarily reactive to unacceptable conditions”, AR 862, with ad-hoc monitoring of ORV impacts mainly through staff observations. AR 862. NPS concluded that this management strategy did not meet its legal mandates nor comply with its policy. AR 862, 889-90. E. FWS Biological Opinion NPS formally consulted with FWS regarding ORV use and its potential effect on the endangered Florida panther, as required by the ESA. On July 14, 2000, the FWS issued its 2000 Biological Opinion for the draft 2000 ORV Management Plan. AR 1080-1126. FWS concluded that implementation of the plan may cause an “incidental take” of the panther in the form of harassment, AR 1116, but “is not likely to jeopardize the Florida panther.” AR 1115, 1117. FWS attached an Incidental Take Statement (ITS) to its opinion, which required NPS to comply with the following six non-discretionary terms and conditions: (1) reducing the extent of trails in Bear Island and employing designated trails in the rest of the Preserve, (2) studying the level of ORV use in Bear Island to determine the level that is acceptable and compatible with panther use, (3) continue panther monitoring and initiate a study concurrent with the ORV carrying capacity and level of use study, (4) provide FWS with copies of studies performed on panther use and related ORV investigations, (5) implement specific studies of the effects of the action on Preserve panthers and determine the ORV carrying capacity for management units within the Preserve, and (6) notify FWS upon locating dead, injured or sick panthers. AR 1117-18. F. 2000 ORV Management Plan In August, 2000, NPS announced the availability of the Recreational Off-Road Vehicle Management Plan/Supplement to the Final Environmental Impact Statement (RORVMP/SFEIS). 65 Fed.Reg. 49593-01 (Aug. 14, 2000). On September 28, 2000, NPS issued a Record of Decision, AR 849-54, adopting the final version of the 2000 ORV Management Plan. This was a 200-plus page document which included an SEIS related specifically to ORV impact on the Preserve. AR 849-54. The plan applied only to the original Preserve, AR 859, and did not address commercial operations of ORVs or ORV use in the Addition. AR 880. Based upon legislative mandates and special commitments, NPS stated that “ORV use can occur only to the extent that it does not significantly adversely affect the preserve and its natural and cultural resources. Appropriate use of ORVs within this context, and the means for achieving that use, are provided in this plan.” AR 881. Due to its “scope and complexity”, AR 880, NPS contemplated a three-phase implementation process with all aspects of the plan being implemented within ten years. AR 861, 880, 932, 936-40. Under the 2000 ORV Management Plan, NPS would apply a “precautionary principle, which would favor resource protection over resource use” in its management of motorized recreational ORVs. AR 859-60, 896, 898. The plan “emphasizes protection of natural and cultural resources in a manner that would leave the resources unimpaired for future users, while allowing ORV access for resource-related recreational opportunities.” AR 896. Because NPS recognized its database of information was incomplete, “[w]here the effects of an action are unknown, the proposed management actions would favor the protection of the preserve’s natural and cultural resources.” AR 860. NPS would also use an “adaptive management approach” which included continual review and modification of the plan as heeded to ensure effectiveness and compliance with mandates and policies, AR 880, and “adaptive management techniques” which would “apply lessons learned from research and field experience to improving ORV management ...” AR 896. “This means that the plan would not be a static document but instead would evolve as additional information became available. Sources of information would include existing data, new information from scientific research and monitoring, and input from NPS staff and other individuals who are familiar with the preserve.” AR 897. Management actions would be adapted that “assure the highest protection of the preserve’s resources.” AR 861. Any modifications to the plan would comply with all appropriate laws and regulations, including but not limited to, the NEPA and the ESA. AR 800, 880. Modifications to the plan would also include appropriate public involvement. Id. In relevant part, under the 2000 ORV Management Plan NPS would: -eliminate dispersed use of ORVs, restricting access to the Preserve to specified access points and restricting ORV use to designated trails, AR 860, 898; -limit ORV use throughout the Preserve to no more than 400 miles of designated primary trails and 15 designated access points, AR 898, 902-04; -perform a “detailed analysis using such tools as geographic information system, staff knowledge, and ground truthing” in order to determine the “most appropriate route for each trail,” AR 898; -continue to develop a designated trail system and access points based on “resource protection” and “visitor experience” criteria, AR 899; -include the following principles as “resource protection criteria”: (1) avoid or minimize trails through vegetation communities most susceptible to impacts, (2) avoid or minimize trails in areas where ORVs may have a detrimental effect on threatened and endangered species; (3) avoid archeological and sacred sites; (4) designate trails and access points in areas that offer the most suitable substrate; and (5) locate access points and designate trails to maximize use of existing disturbed areas, AR 899-900; -include the following principles as “visitor experience criteria”: (1) designate trails to provide access, (2) avoid or minimize user conflicts, and (3) avoid or minimize safety hazards, AR 900-01; -conduct a computerized geographic information system suitability analysis (GIS) using the above criteria to refine the current conceptual configuration of the ORV network shown on a map entitled “Conceptual Framework of Access Points and Primary Trails” to select optimal alignments for each component of the access points and trails, AR 901-03; -use primary trails, i.e., trails emanating from the designated access points and providing recreational access within the Preserve, as the principal ORV routes, AR 903; -use short secondary trails as access to private property or specific destinations such as campsites, AR 903; -develop a system of indicators and standards to assess trail conditions and to support the need for management action, AR 908-10; -monitor the effects of ORV use, AR 908-11; -implement management actipns, including trail closures, relocations, maintenance, and changes to level or type of use, based on the monitoring results, AR 912-17; -implement a permit program which required a user to possess certain permits before using an ORV in the Preserve, and to issue only 2,000 ORV permits per year, AR 917-22; -plan for and begin restoration of areas impacted by ORV use to a more desirable condition, and monitor recovery activities, AR 926-41; and -“establish an advisory committee of concerned citizens to examine issues and make recommendations regarding the management of ORVs in the preserve,” AR 898. As to the BIU specifically, the 2000 ORV Management Plan provided that NPS would: -allow the use of swamp buggies, all-terrain cycles, and street-legal, four-wheel-drive vehicles, AR 903; and -allow for “approximately 30 miles” of designated primary trails, AR 903, aecessed through a single access point near the existing Bear Island Campground, 904-05. G. 2000 Trail Closings By a letter dated October 16, 2000, effective October 24, 2000, NPS Superintendent John Donahue (Superintendent Donahue) notified ORV users of changes due to the implementation of the 2000 ORV Management Plan. AR 1178-81. These included that all ORV users would depart from and return to designated access points as located on NPS maps. AR1178-81. ORV use was prohibited between 10 p.m. and 5 a.m. Id. As to the BIU, ORV use was limited to certain types of vehicles, access was limited to one access point, and ORV use was restricted to designated trails. These trails were previously known as the Green, Red, Yellow, and Blue trails, and were later renamed. See Attachment E to this Opinion and Order. AR 6489. The 2000 ORV Management Plan closed the “Green Trail”, “Blue Trail,” ‘Yellow Trail” and part of the “Red Trail”. Id. As a result of these trail closings, the approximately 55 miles of designated trails in the BIU were reduced to about 28 miles of designated primary trails and 0.34 miles of secondary trail. AR 1752. The resulting ORV trails in the Bear Island Unit were depicted in the NPS “Interim ORV Map, October 24, 2000.” See Attachment F to this Opinion and Order. AR 1176. NPS stated that the intent of the plan was “to limit and control the use of off-road vehicles (ORV) use in a manner that will ensure the natural and ecological integrity of the preserve. The selected action will result in long-term benefits to vegetation, soils, surface water flows, and water quality. Further, the selection action may benefit the Cap Sable seaside sparrow and the Florida Panther.” 65 Fed.Reg. 70934-03 (Nov. 28, 2000). H. 2001 Challenge to Plan and Trail Closures In 2001, persons and groups affiliated with ORV interests filed a lawsuit in this Court challenging the 2000 ORV Management Plan and NPS’s decision to close the trails listed above. Wildlife Conservation Fund of Am. v. Norton, Case No. 2:01-cv-25-FtM-29DNF (arguing that “[t]he new anti-access edicts in Big Cypress reflect one Administrations’s political agenda and disregard of on-the-ground facts and the law related to the Preserve.” (Case No. 2:01-cv-25, Doc. #1, ¶ 1)). On February 22, 2005, the undersigned issued an Opinion and Order finding that NPS had taken the required “hard look” at its options and the 2000 ORV Management Plan was not arbitrary or capricious, was not an abuse of discretion, and was not otherwise contrary to law. (Docs. # 95-4, 95-5.) I. 2007 Decision to Reopen BIU Trails In January, 2006, a group of persons formed the Big Cypress Sportsmen’s Alliance (the Sportsmen’s Alliance) to advocate greater ORV access to the Preserve, particularly in the BIU. AR 1203-04. In February, 2006, new Superintendent Karen Gustin (Superintendent Gustin) queried her staff as to the rationale for the trail closures in the BIU. AR 1205-09. During this period, NPS formed an advisory ORV Committee to address ORV issues in the Preserve, and began considering whether to modify the ORV trail system within the BIU in order to provide for greater access for ORV users. AR 1210-11, 1214-15. On May 4, 2006, the Sportsmen’s Alliance made a handwritten request to reopen ORV trails in certain portions of the BIU. AR 1213. Although the request included a rough map, AR 1212, it did not specify the number of miles the Sportsmen’s Alliance wanted reopened. An NPS email later clarified that the request related to reopening the Yellow and Blue trails, which had been closed in October, 2000 pursuant to the adoption of the 2000 ORV Management Plan. AR 1271. On May 12, 2006, Superintendent Gustin asked her staff to prepare a recommendation regarding the development of an additional 10 to 14 miles of trails in the BIU, AR 1216, and assigned three staff members to the project. AR 1216-19, 1230. Subsequent correspondence between NPS, environmental interests and ORV interests outlined the subsequent events leading up to the 2007 decision. On May 22, 2006, NPS informed the Sportsmen’s Alliance that 21 miles of trails had been marked in the BIU. NPS stated that the 2000 ORV Management Plan allowed development of 30 miles of ORV trails in the BIU, and mistakenly stated that if NPS stuck to the 30 miles it would not have to do any additional environmental compliance. AR 1230. In June, 2006, NPS employees and seven or eight other persons surveyed the Yellow Trail, Red Trail and Blue Trail as part of the “ground truthing” for the project. The ORV Committee began working to define the term “adaptive management,” which until then had lacked a concrete meaning. AR 1231, 1246-47. The ORV Committee also began working to create a standardized process to address future ORV trail change requests. AR 1231, 1248-50, 1260-65, 1284-89. An NPS email at the end of June, 2006, assured the Sierra Club that NPS was gathering information about the Sportsmen’s Alliance request, but that no decisions, promises or commitments had been made. AR 1271. The email continued that the “protection of the resource is our prime concern. If any additional trail routes are designated, they would have to be on preexisting trails and sustainable. We would not be designating trails in undisturbed wetlands or through areas that could not sustain use.” AR 1271-72. In a July 10, 2006 email, an NPS employee stated that if NPS decided to designate any new trails, including secondary trails, it would prepare an Environmental Assessment, which would involve public and agency comment. AR 1297. As discussed below, no Environmental Assessment was ever prepared by NPS regarding the 2007 re-opening of BIU ORV trails. In a July 13, 2006 Memorandum, NPS’s Resource Management Chief discussed FWS’s 2000 Biological Opinion and noted FWS’s concern that ORV use would increase human presence in the Preserve and result in increased disturbance of the panther population. The Resource Management Chief also noted that the 2000 ORV Management Plan contemplated that 31 separate projects would be undertaken to discover any impacts resulting from management actions and ORV use, but none of these projects were completed. (Doc. # 61-5, Exh. 4). On July 28, 2006, Superintendent Gustin adopted the ORV Committee’s recommendation for additional public involvement. AR 1315-16. She authored a letter stating NPS was “moving forward” with the implementation of the 2000 ORV Management Plan, soliciting public input regarding additional trail access, and announcing a public “scoping” meeting which would take place on August 15, 2006. AR 1325-29. Members of the public were invited to identify destinations for ORV trails and explain why such trails would be consistent with the 2000 ORV Management Plan. Id. Invitations were sent to a diverse group of approximately 2,000 individuals and organizations, including plaintiffs. AR 1668. In a July 31, 2006 email, NPS Preserve Management Chief Ron Clark noted that the requests to modify the existing trails were made under the assumption that adaptive management and the precautionary principle set forth in the 2000 ORV Management Plan allowed NPS to do so. Mr. Clark stated that the new information NPS had that it did not have in 2000 was “that the panther numbers in the Preserve are on the rise, panther/human incidents are on the rise, panther habitat in Florida has decreased, and Bear Island, because of its topography and vegetation cover, may be more important to panthers now than at any time since the Preserve’s creation.” AR 1481-82. The August 15, 2006, scoping meeting was well-attended. AR 1366-1374. NPS received a wide range of verbal and written comments from the interested public. On one end of the spectrum, there were requests to reopen all 55 miles of primary trails existing in the BIU prior to the adoption of the 2000 ORV Management Plan and to open additional access points or specific trails. E.g., AR 1354-1462. Others, including some of the plaintiffs, made detailed responses strongly opposing any change to the existing trail designations and challenging the adequacy of NPS’s 2000 ORV Management Plan implementation process. AR 1389-98. NPS viewed this meeting as only the first step in the process, “to be followed by future ground truthing before decisions are made.” AR 1346. After the scoping meeting, NPS attempted to identify the source of funds for needed research projects. AR 1468-73, 1493-1507. NPS prepared various technical assistance requests for ORV-related research for fiscal year 2007. AR 1531-45. None of the research projects were completed prior to the decision at issue in this case. In a September 8, 2006, email, Superintendent Gustin stated that NPS collected “a lot of input and data” at the August 15, 2006 meeting, but “there is a review process that needs to occur before we open any additional trails anywhere.” AR 1412-13. The email continued that NPS would make all the necessary considerations under NEPA and the 2000 ORV Management Plan, and summarized the process: “Basically, once we gather information on trails and do some prehminary ground truthing, we solicit public input, and then enter an internal review process from which results are forwarded to the superintendent’s office.” AR 1413. In an apparent reference to the August 15 public meeting, the email continued, “We have solicited public input for Bear Island and Zone 4 and are now collating that data with the intent of beginning our internal review.” Id. “We then consider the proposed concept and in consultation with environmental compliance staff, make a determination as to what level of compliance is required before implementing the concept.” Id. Superintendent Gustin described the process as “very labor intensive.” Id. In a September 15, 2006 email, Superintendent Gustin provided a progress report on Bear Island. She explained that there is a review process which needed to occur before any additional trails are opened anywhere, which included “going through and making all of the considerations we are responsible for making under NEPA and the ORV management plan itself.” Id. AR 1508-09. In October, November, and December, 2006, NPS produced a number of different maps depicting various proposed trail expansions for the BIU. These maps showed 24.14 miles of existing trails, and included at least five different proposals for expansion of primary and secondary trails in varying lengths. AR 1571-77, 1610-12, 1615. A December 4, 2006, letter from Superintendent Gustin provided another update of the BIU project. She explained the process of review and the functions to be performed by NPS staff, and stated NPS expected to reach a decision on the BIU within a month or two, pending natural resource and archeological surveys. AR 1613-14. The Florida Biodiversity Project responded with a December 21, 2006 letter objecting to the NPS actions and raising several issues as to the BIU. AR 1619-21. In late December, 2006, NPS stated that the trail designation criteria from the 2000 ORV Management Plan was being followed, and that NPS had not yet finished field checking possible routes for sustainability. AR 1668. NPS asserted that the public input from the preparation of the 2000 ORV Management Plan satisfied the public input requirements, and that the August 15, 2006 scoping meeting and questionnaire provided NPS with enough information to proceed with the plan implementation. AR 1668-69. January and February, 2007 saw the continued preparation of more draft ORV trail maps for the BIU. AR 1686-95, 1699, 1719, 1749. In early January, 2007, NPS conducted a survey which recorded the conditions of the natural resources in an area near Bear Island that may be considered for additional ORV use. AR 1700-13. The survey found no issues with the biological communities or the threatened or endangered community components, but could only state that the substrates “may be suitable for ORV use.” AR 1701, 1704. The NPS proposed changes to the designated trails in the BIU were ultimately depicted in a February 13, 2007 ORV trail map. AR 1697-98, 1749-50. See Attachment G to this Opinion and Order. An additional map depicted the type of vegetation through which the trails ran. AR 1696. See Attachment H to this Opinion and Order. According to the map, 34% of the primary trails and 28% of the secondary trails would be located in prairies and marshes. On February 15, 2007, just six days prior to announcing NPS’s 2007 decision to reopen the BIU trails, Superintendent Gustin wrote a letter to FWS Field Supervisor Paul Souza. In the letter, Superintendent Gustin noted that under the 2000 ORV Management Plan NPS was “instructed to manage the development of up to 400 miles of primary trails, create secondary trails, and establish a designated trail system,” and that NPS was “currently working on finishing the trail system in the Bear Island management unit.” AR 1752. Superintendent Gustin stated NPS was working on adding approximately 11 miles of primary trails in the BIU to the then-current 23 miles, and adding approximately 7 miles of secondary trails to the 0.34 miles. Id. She also stated that the BIU was “very popular with hunters” and “is very good habitat for the Florida panther.” AR 1753. She then described a series of four actions that NPS committed to undertake to implement the terms and conditions of the July 14, 2000 Biological Opinion, including the initiation of a carrying capacity study for the BIU, development of a scope of work (SOW) on evaluating the impacts of ORV use on panther movement, collection and analysis of use data, and periodic review of habitat conditions adjacent to trials through a habitat checklist and photo monitoring points. AR 1753. Superintendent Gustin requested Mr. Souza’s concurrence that the 2007 proposed trail designations at the BIU were consistent with the terms and conditions of the 2000 Biological Opinion. AR 1753-54,1758. The next day, on February 16, 2007, Field Supervisor Souza wrote Superintendent Gustin confirming that the commitments outlined in NPS’s letter were sufficient to demonstrate NPS’s intention to implement the ITS and the terms and conditions of the 2000 Biological Opinion with respect to the BIU. AR 1758-61. On February 21, 2007, NPS issued a press release and closure order announcing the modification of the designated trail system and completion of the implementation of the 2000 ORV Management Plan within the BIU, effective February 28, 2007. AR 1766-73. NPS’s designation of ORV trails in the BIU provided for: (1) reclaiming 3.11 miles of primary trail to be returned to a natural condition; (2) converting 1.58 miles of primary trail to secondary trail; (3) reopening 15.21 miles of previously closed trails as primary trails; and (4) reopening 7.49 miles of previously closed trails as secondary trails. This resulted in a designated trail system for the BIU consisting of a total of 34.95 miles of primary trail and 9.41 miles of secondary trail. AR 1766. NPS also proposed additional studies to be performed in the future and committed to undertake a periodic review of habitat conditions adjacent to the BIU trails. AR 2130, 1571-2, 1696, 1685. On September 19, 2007, FWS issued its 2007 Amended Opinion. AR 2043-2095. In the Amended Opinion, FWS concluded that the new ORV trail designations would likely have a “minor” effect on panthers in light of the fact that “[pjanther locations during the hunting season in Bear Island were on average, only 180 meters (m) farther from trails than before the hunting season. An increase of 180 m probably has minor biological consequences.” In reaching this conclusion, FWS relied on the same study it relied upon in 2000 — the Janis and Clark study conducted in 1999. The 2007 Amended Opinion also amended the six “non-discretionary” terms and conditions outlined in the 2000 opinion/ITS. AR 2073. III. Discussion of Counts of Complaint The Court will discuss Count One, breach of the Settlement Agreement, and Count Two, violation of NEPA, in tandem. A. Count One: Breach of Settlement Agreement Count One alleges that the February, 2007 decision of NPS to reopen ORV trails in the BIU violated the 1995 Settlement Agreement. Both sides agree that this is a breach of contract claim. (Doc. # 95, p. 16; Doc. # 103, p. 39). See In re Chira, 567 F.3d 1307, 1311 (11th Cir.2009) (“Principles governing general contract law apply to interpret settlement agreements.”); R.A.M., LLC v. Hill, 393 Fed.Appx. 684, 686 (11th Cir.2010) (“A settlement agreement is a contract”); Greco v. Dep’t of the Army, 852 F.2d 558, 560 (Fed.Cir.1988) (same). It appears that the Settlement Agreement is governed by Florida law. Mobil Oil Exploration & Producing Se., Inc. v. United States, 530 U.S. 604, 607-08, 120 S.Ct. 2423, 147 L.Ed.2d 528 (2000) (“When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals.” (citation omitted)); R.A.M., LLC, 393 Fed.Appx. at 686 (“Settlement agreements are interpreted under the law of the forum state”) (citing Schwartz v. Fla. Bd. of Regents, 807 F.2d 901, 905 (11th Cir.1987)); F.T.C. v. Am. Entm’t Distribs., Inc., 433 Fed.Appx. 816, 817 (11th Cir.2011) (whether settlement agreement with government agency was valid contract is determined by reference to state substantive law). Defendants, however, rely on federal common law contract principles. (Doc. # 103, p. 42). As discussed below, the Court discerns no material differences between Florida law and federal common law in this case. The elements of a breach of contract claim are the existence of a valid contract, a material breach of that contract, and resulting damages. State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc., 427 Fed.Appx. 714, 725 (11th Cir.2011); Schiffman v. Schiffman, 47 So.3d 925, 926 (Fla. 3rd DCA 2010); AVVA-BC, LLC v. Amiel, 25 So.3d 7, 12 n. 3 (Fla. 3d DCA 2009). At oral argument, defendants’ counsel cited essentially the same elements for breach of contract under federal common law. (Doc. # 118, p. 57.) (1) Existence of Contract: It is undisputed that a contract exists in the form of the 1995 Settlement Agreement, and that plaintiffs the Florida Biodiversity Project and Brian Scherf were signatories to that agreement. These two plaintiffs clearly have standing to enforce its provisions. Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 52 n. 2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). (2) Interpretation of Settlement Agreement: Two issues are raised relating to the interpretation of the Settlement Agreement: (a) whether NPS’s interpretation of the terms of the agreement is entitled to Chevron deference and (b) whether Florida law or federal common law applies to the agreement. (a) Deference to NPS Interpretation? Defendants ask the Court to give deference to NPS’s interpretation of the Settlement Agreement. Specifically, defendants request application of the arbitrary and capricious standard when NPS interprets contract terms which include statutory and regulatory language, but not where the contract uses “ordinary contract terms.” (Doc. # 103, pp. 39-40). Although an agency’s interpretation of a contract is generally not entitled to deference, some circuits have given deference under certain circumstances. The Tenth Circuit adopted the view that under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), an agency’s interpretation of a contract is reviewed under the arbitrary and capricious standard when (1) the agency routinely reviews such contracts, (2) review of such contracts is a duty delegated to the agency by Congress, and (3) the contract deals with an arcane subject matter or uses specialized terminology with which the agency is familiar. Weight Loss Healthcare Ctrs. of Am., Inc. v. Office of Pers. Mgmt., 655 F.3d 1202, 1205-06 (10th Cir.2011) (citing Sternberg v. Sec’y, Dep’t of Health & Human Sews., 299 F.3d 1201, 1205 (10th Cir.2002)). In Muratore v. U.S. Office of Pers. Mgmt., 222 F.3d 918, 921-23 (11th Cir.2000), the Eleventh Circuit found that under the facts of that case the agency’s interpretation of the contract was entitled to deference. According to the Muratore court, Chevron suggests that “the institutional advantages of agencies apply to a broad range of administrative activities,” and contract interpretation is sufficiently similar to statutory interpretation to warrant deference. The Eleventh Circuit found the agency had relevant expertise in the area because it negotiated the contracts at issue, routinely interpreted plans, had been given broad authority by Congress to regulate the field in which it negotiated the contracts, and had the ability to take a broad, national view when it interpreted plans, which served the function of ensuring consistent, nationwide application. Id. at 923. The Eleventh Circuit concluded that this expertise “justifies deference in [that] case.” Id. The Supreme Court thereafter held that Chevron deference should be given only to those agency interpretations found in an “administrative action with the effect of law.” United States v. Mead Corp., 533 U.S. 218, 230, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Following the Supreme Court’s decision in Mead Corp., the Eleventh Circuit held that settlement agreements are “far removed” from the type of administrative action entitled to Chevron deference. Ala. Power Co. v. U.S. Dep’t of Energy, 307 F.3d 1300, 1312 (2002). Here, NPS has neither identified sufficient facts which give it special expertise in the interpretation of settlement agreements involving ORV use in a national park or preserve, nor shown that its interpretation of the Settlement Agreement is an administrative action with the effect of law. Under either line of authority discussed above, the argument that deference must be given to NPS’s interpretation of the Settlement Agreement is not supported. Therefore, the Court will apply the normal rules of contract interpretation to the construction of the Settlement Agreement. (b) Florida or Federal Law? Defendants assert that federal common law applies to the interpretation of the Settlement Agreement. (Doc. # 103, p. 41.) As suggested above, the Court finds no significant distinctions between the principles cited by defendants and the ordinary principles of contract construction under Florida law. A contract is ambiguous if a word or phrase in a contract is subject to more than one reasonable meaning; courts decide as a matter of law whether ambiguity exists in a contract. Southern-Owners Ins. Co. v. Hayden, 413 Fed.Appx. 187, 188 (11th Cir.2011) (applying Florida law). “Under Florida law, the basic rule of contract interpretation is that the intention of the parties is to be determined from a consideration of the whole agreement.” In re Chira, 567 F.3d at 1311 (internal quotation marks and citation omitted.) “Under Florida law, it is well settled that the actual language used in the contract is the best evidence of the intent of the parties and, thus, the plain meaning of that language controls.” Hayden, 413 Fed.Appx. at 188. “In interpreting a contract under Florida law, we give effect to the plain language of contracts when that language is clear and unambiguous. We must read the contract to give meaning to each and every word it contains, and we avoid treating a word as redundant or mere surplus-age if any meaning, reasonable and consistent with other parts, can be given to it.” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1242 (11th Cir.2009) (internal quotation marks, footnote, and citations omitted). When applying federal common law to contract cases, courts generally look to the Restatement (Second) of Contracts for guidance. Mobil Oil Exploration, 530 U.S. at 608, 120 S.Ct. 2423; U.S. ex rel. Ubl v. IIF Data Solutions, 650 F.3d 445, 451 (4th Cir.2011). The relevant federal common law contract principles are the same as the Florida principles. The paramount goal of contract interpretation is to determine the intent of the parties. Courts are to consider not the inner, subjective intent of the parties, but rather the intent a reasonable person would apprehend in considering the parties’ behavior. The strongest objective manifestation of intent is the language of the contract. Thus, where the words of the contract clearly manifest the parties’ intent, a court need not resort to extrinsic aids or evidence. The words of the contract clearly manifest the parties’ intent if they are capable of only one objectively reasonable interpretation. If the words of the contract are capable of more than one objectively reasonable interpretation, the words are ambiguous. Ambiguous terms that appear clear and unambiguous on their face, but whose meaning is made uncertain due to facts beyond the four corners of the contract, suffer from latent ambiguity. Courts have the responsibility to determine as a matter of law whether contract terms are clear or ambiguous. To make that determination, a court must consider the words of the contract, the alternative meaning suggested by counsel, and the nature of the objective evidence to be offered in support of that meaning. The objective, extrinsic evidence proffered may include, for example, the structure of the contract, the bargaining history, and the conduct of the parties that reflects their understanding of the contract’s meaning. Extrinsic evidence notwithstanding, the parties remain bound by the appropriate objective definition of the words they use to express their intent. Baldwin v. Univ. of Pittsburgh Med. Ctr., 686 F.3d 69, 75-76 (3rd Cir.2011) (citations and internal punctuation omitted). Both sides agreed at oral argument that the choice of law is immaterial to the outcome of this case. (Doc. # 118, p. 59.) (3) Obligations Under the Settlement Agreement: To determine whether a contract was breached, the Court must first determine the obligations under the contract. In the Settlement Agreement, NPS agreed to develop the ORV Management Plan and issue an SEIS analyzing the cumulative environmental effects of implementing such a plan. The parties agreed that the “overall objective of the ORV Management Plan will be to establish a comprehensive system for management of ORV use in [the Big Cypress NP] with the goal of assuring the natural and ecological integrity of [Big Cypress NP] resources in accordance with the [Big Cypress NP] Establishment Act.” (Doc. # 39-2, p. 3). Paragraph 6 of the Settlement Agreement provided that the ORV Plan would “be reviewed on a continuing basis” and that: [supplemental environmental analyses of the ORV Plan will be prepared in the future if the NPS makes substantial changes in the proposed action that are relevant to environmental concerns, or if the NPS determines that significant new circumstances or information exist relevant to environmental concerns and bearing on the proposed action or its impacts. The public will be allowed to participate in such supplemental analyses to the full extent required by NEPA, the CEQ regulations and the NPS regulations. If interested parties submit written comments raising issues which may be considered substantial changes in the Plan or significant new circumstances or information, NPS will make its best efforts to respond to such comments within a reasonable amount of time. (AR 798-799.) (Id. at pp. 6-7, ¶ 6.) Additionally, “Mottling in this Settlement Agreement shall be construed to limit or modify the right of plaintiffs to challenge final agency action taken by NPS in connection with the final ORV Management Plan to the extent permitted by law.” (Id.) The agreement also provided, however, that “Mottling in this Settlement Agreement shall be construed to limit or modify the discretion accorded to the federal defendants by the statutes they administer or by general principles of administrative law.” (Id. at p. 11, ¶ 16.) The Settlement Agreement did not limit the discretion of NPS to allocate funds among priorities within the national park system. (Id. at p. 12, ¶ 17.) Although defendants were required to “make all reasonable efforts to obtain the resources necessary to carry out the terms of the agreement and to have those funds allocated to” the Preserve, they were not required to obligate or pay funds or in any way violate the Anti-Deficiency Act (31 U.S.C. § 1341) or any other applicable appropriations law. (Id.) The Settlement Agreement “embodie[d] the entire terms and conditions of the agreement between the parties.” (Id. at p. 11, ¶ 15) Defendants argue that paragraph 6 of the Settlement Agreement merely requires NPS to comply with NEPA and its regulations, nothing more. This is so, defendants argue, because paragraph 6 mirrors language directly from a Council on Environmental Quality (CEQ) regulation which governs the agency’s obligation to supplement an EIS. 40 C.F.R. § 1502.9(c)(1); (Doc. # 103, pp. 39-42.) The choice of this language, defendant’s argue, demonstrates the pa