Citations
- 250 F. Supp. 3d 1260
Full opinion text
OPINION AND ORDER
JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
In this case, plaintiffs challenge the National Park Services’ (NPS) approval of defendant-intervenor Burnett Oil Co., Inc.’s (Burnett) Plan of Operations (the “Plan”) to conduct a three-dimensional seismic geophysical survey using vibroseis technology to identify whether there are commercially feasible deposits of oil and gas within the Big Cypress National Preserve in South Florida. Because plaintiffs believe that NPS approved the survey without undertaking the complete environmental review required by federal law, they filed a Complaint on July 27, 2016 (Doc. # 1), and are currently proceeding on an eight-count Amended Complaint (Doc. #40), seeking declaratory and in-junctive relief for violation of the Administrative Procedures Act (APA), the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and Park Service Regulations governing oil and gas activities found at 36 CFR Subpart 9B (the “9B Regulations”). Plaintiffs request that the Court vacate and remand the NPS’s finding of no significant impact, and its May 10, 2016 conditional approval letter for Burnett’s Plan; vacate and remand the NPS’s biological assessment and the Fish and Wildlife Service’s (FWS) concurrence letter for Burnett’s Plan; and decláre and order that the NPS and FWS are required to reinitiate consultation regarding the effects of Burnett’s Plan and the three Preserve management plans on threatened and endangered species. (Doc. # 94, p. 1.)
On September 30, 2016, plaintiffs filed a Motion for Preliminary Injunction (Doc. #36), requesting that the Court stay NPS’s approval of operations pending a final adjudication on the merits of this case. The federal defendants responded on November 9, 2016. (Doc. # 56.) Defendant-intervenors Collier Enterprises Management, Inc.; Baron Collier Company Ltd.; Collier Resources Company, LLP (the “Collier Entities”); and Burnett responded on November 4, 2017. (Docs. ## 52, 53.) On March 3, 2017, the undersigned heard oral argument on the preliminary injunction motion and the merits of plaintiffs’ APA, NEPA, and 9B claims. (Doc. #87.) During oral argument, the parties informed the Court that they would rely on oral argument in support of the APA, NEPA, and 9B claims, without briefing, and requested to file briefs on the ESA claim and available remedies, which was granted. The parties’ cross-motions for summary judgment on plaintiffs’ ESA claims and available remedies with responses were filed on March 20, 2017, and April 3 and 10, 2017. (Docs. ##94, 100, 102, and 105.)
For the reasons set forth below, judgment is entered in favor of the federal defendants on all claims. Because the Court has found that defendants succeed on the merits, plaintiffs’ Motion for Preliminary Injunction (Doc. # 36) is denied.
I. Background
A. National Park System and the National Park Service Regulations
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 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, he., to conserve and preserve the scenery, wildlife, and objects (natural and historical) within their boundaries for present and future enjoyment.
Pursuant to the rulemaking provisions of the Organic Act, the Big Cypress Establishment Act, and the Addition Act, non-federal oil and gas activities in the Preserve are governed by regulations codified at 36 C.F.R. Part 9, Subpart B (9B Regulations). The 9B Regulations govern “all activities within any unit of the National Park System in the exercise of rights to oil and gas not owned by the United States where access is on, across or through federally owned or controlled lands or waters.” 36 C.F.R. § 9.30(a), They “are designed to insure that activities.undertaken pursuant to these rights are conducted in a manner consistent with the "purposes for which the National Park System and each unit thereof were created, to prevent or minimize damage to the environment and other resource values, and to insure to the extent feasible that all units of the National Park System are left unimpaired for the enjoyment of future generations.” Id.
Park Service regulations require all proposed oil and gas plans of operations to include, as appropriate, a description of “[a]ll reasonable technologically feasible alternative methods of operations, their costs, and their environmental effects.” 36 C.F.R. § 9.86(a)(16)(v). The agency “shall not approve a plan of operations" that “does not' satisfy each of the requirements of § 9.36 applicable to the operations proposed.” Id. § 9.37(a)(4). Park Service regulations also specify that‘the agency “shall not approve a plan of operations... [u]ntil the operator shows that the operations will be conducted in a manner which utilizes technologically feasible methods least damaging to the federally-owned or controlled lands, waters and resources of the unit while assuring the protection of " public health and safety.” 36 C.F.R. § 9.37(a)-(a)(1). •
B. Big Cypress National Preserve
(1) Establishment Act and Ownership of the Preserve’s Oil and Gas Resources
In 1974 Congress established the Big Cypress National Preserve (the Preserve) to “ensure the preservation, conservation, and protection of the natural, scenic, hy-drologic, 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). AR 166959; 166989 (map). 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 166987). 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-l. AR 166989. The Preserve is centrally located between Miami and Naples, Florida, extending from the northern boundary of Everglades National Park to seven miles north of Interstate 75. AR 166987. Today, with the Addition, the Preserve covers approximately 729,000 acres. AR 176892.
Congress instructed the Secretary to buy lands within specified boundaries to establish the Preserve, except that
[n]o improved property.. .nor oil and gas rights, shall be acquired without the consent of the owner, unless the Secretary. . .determines that such property is subject to, or threatened with, uses which are, or would be, detrimental to the purposes of the preserve.
16 U:S.C. § 698f(e). Because of this limitation on NPS’s acquisition authority, when the United States acquired the surface lands of the Preserve it did not acquire most oil and gas rights. AR 176896. The surface and mineral estates were severed (a “split estate”), and private owners typically retained the mineral rights. AR 000061. Thus, the United States acquired most lands of the Preserve from the Collier family, without associated mineral rights. AR 176892.
Aware of this divided ownership of the surface estate and mineral rights, the Department of Interior explored purchasing a large portion of the Preserve’s mineral interests from the Colliers in the early 2000s. After substantial negotiations, the parties tentatively agreed to terms for a sale, contingent on Congressional appropriation of funds. See Mathews Decl., Ex. 1 (Doc. # 47-3). However, questions were raised regarding valuation of the deal, and the required funds were never appropriated. See Mathews Deck, Ex. 2 (Doc. # 47-3). Accordingly, the vast majority of the Preserve’s mineral estate remains in private ownership, including substantial mineral interests owned by the Collier Entities.
(2) The Preserve’s History of Oil and Gas Activity
Oil and gas activities in the greater Big Cypress Swamp predates creation of the Preserve. AR 001093. Oil and gas activity has occurred in south Florida since 1930, and by the early 1970s, much of the area had seen drilling operations. AR 166990; 176892. The Sunniland Trend is part of the hydrocarbon-bearing South Florida Geologic Basin located beneath southwest Florida. AR 001093. The Sunniland Trend has produced over 120 million equivalent barrels of crude oil and non-commercial quantities of natural gas continuously since 1943 from commercial oil fields. Id.
Congress, aware of this oil and gas activity and the potential of the area for future exploration and production, prohibited the Secretaiy from condemning private oil and gas interests except in limited circumstances, 16 U.SIC. § 698f(c), but Congress also called for NPS to promulgate regulations governing “exploration for and extraction of oil, gas, and other minerals” in the Preserve. 16 U.S.C. § 698i(b)(2). Years later, in the Addition Act, Congress specified that the regulations should address
access on, across, or through all lands within the boundaries of the Big Cypress National Preserve and the Addition for the purpose of conducting such exploration or development and production, as are necessary and appropriate to provide reasonable use and enjoyment of privately owned oil and gas interests, and consistent with the purposes for which the Big Cypress Preserve and the Addition were established.
Pub. L. No. 100-301 (S. 90), § 8, 102 Stat. 443 (1988). Throughout the Preserve’s enabling legislation, Congress envisioned continued exploration and development of oil and gas, in a manner reasonably regulated by NPS and balanced with resource protection goals.
NPS addressed its multifaceted management authority in a 1992 General Management Plan (GMP) and final Environmental Impact Statement (EIS) for the original Preserve, which contained a Minerals Management Plan (MMP) and analyzed all phases of oil and gas activities, including seismic surveys, in the original Preserve. AR 166949-167412. To protect resource values where oil and gas activities occurred, the MMP established a ten percent “area of influence” limit, “so that no more than 10 percent of the preserve would be influenced by [oil and gas] activities at any one time.” AR 164184; 166970.
One form of such geophysical exploration is the seismic survey, a technique which has been used on the Preserve’s lands since the early 1970s. AR 176892; 174758. Seismic surveys generate an energy “wave” that bounces off underground oil and gas deposits back up to small, strategically positioned sensors on the surface called “geophones.” AR 164284; 002351 (geophone). The data acquired during the survey may be either two or three dimensional, depending on the layout of the geophones and the location of the energy source points, but 3-D seismic surveys produce “better imagefs] and successfully identify subtle geological features.... ” AR 176907. The most common ways to create the energy wave necessary for a seismic survey are dynamite and vibration. The dynamite method, called “shot-hole drilling,” requires drilling a grid of deep holes, dropping explosives into the holes, and detonating the charges. AR 178215; see AR 057514-18 (photographs of drilling equipment). The vibration method employs a specialized vehicle called a “vibraseis buggy,” which lowers a hydraulic plate mounted to its undercarriage, vibrates it against the ground for 12-24 seconds, and moves' to the next source location. AR 176911; 176909-10 (photographs of vibra-seis buggies). A seismic survey maps the structural position of underground geological rock formations using sound waves, similar to an ultrasound examination, but does not penetrate the surface. AR 164284.
In 1999, the NPS issued an EA and-FONSI for a 3-D seismic survey (the first in the Sunniland Oil Trend) conducted by Calumet Florida, Inc. in a 14-square mile area of the Preserve known as Raccoon Point. AR. 170764. The seismic survey did not use vibraseis, but instead the older method of “shothole drilling,” “mobilizing over 100 people, 15 off-road vehicles (swamp buggies and ATVs), eight rubber-tracked drill' rigs, two heliportable drill rigs, and two helicopters.,., ” AR 170761., Follow-up monitoring confirmed that the' survey had no long-lasting effects. See, e.g„ AR 170752-67.
In 2000, ÑPS issued a second EIS and GMP for the lands of the Addition. AR 172579-173196. Both GMPs recognized that “recent discoveries of oil and gas both within and adjacent to the preserve have prompted interest in.. .geophysical exploration.” AR 166990; 172610. In 2006, the NPS issued an “Operators Handbook for Nonfederal Oil and Gas Development in Units of the National Park System,” which provides detailed discussions of the impacts of oil and gas activities and 'ways to minimize them. AR 171451-814.
C. History of Burnett Oil’s Oil and Gas Exploration Rights in the Preserve, Proposed Plan for 3-D Seismic Survey,; and NPS’s Consideration
Because South Florida’s Sunniland Trend is located hundreds of miles from the traditional oil developments in the southwestern'United States, it took nearly a decade for the Collier Entities, to identify an exploration and development company with which to partner to. explore their mineral resources. (Doc. #52-1, Affidavit of Tom Jones, VP- for Govt. Affairs of the Barron Collier Companies, ¶ 17.) On April 3, 2013, Collier Resources Company and Burnett entered into a Seismic and Exploration Agreement establishing -the terms for leasing- of certain exploration rights for mineral interests owned by the Colliers within the Preserve. Id. at ¶ 18. Pursuant to this arrangement, Burnett controls the exploration rights to certain- Collier-owned oil and gas interests within the Preserve, and Burnett is responsible for obtaining the required permits and authorizations. Id. at ¶ 19. - • ■
In November 2013, representatives from Collier and Burnett informed NPS of their desire to conduct a seismic survey of Collier’s private oil and gas resources in the Preserve. AR 000002. Burnett proposed, to do' this with vibraseis buggies to create seismic waves from the “source point”, which bounce off underground rock formations and return signals back to the surface. The return signals are collected using small, portable receivers (geophones), which are placed on the ground by hand. By repeating this process across the survey area, Burnett is able to develop the three-dimensional imagery it needs to evaluate the potential for oil and gas to have been trapped in structural formations two miles below the ground. See generally AR 176907-11. Burnett believes that the use of vibraseis buggies can generate better data with fewer .source points, which means that the survey can be conducted with many fewer vehicles and in a fraction of the time required by. the explosives method. AR 174782; 174830.
Initially, Burnett proposed a plan to NPS for a 3-D seismic survey covering roughly 400 square miles, to “be completed in V or VI phases.” AR 000003. Phase I of the survey would focus on a 110 square mile area near a former Exxon exploratory oil field in the north-central part of the Preserve. Id. NPS staff cautioned that Burnett’s “expectations of securing permits may be unrealistic” given the size of the survey area and their obligation to formally establish a right of. entry on all parcels inside the survey area. AR 000005; see 36 O.F.R. § 9.36(a)(2). Nonetheless,, in January 2014, Burnett submitted a plan of operations, pursuant to the NPS regulations for non-federal oil and gas activities on NPS-managed lands (9B Regulations). See 36 C.F.R. § 9.36. They sought approval for a 3-D seismic survey of 366 square miles (approximately half of the Preserve), using vibraseis buggies, stepped out in phases, the first phase encompassing approximately 110 square miles. AR 000012. NPS staff began to review that initial plan of operations. AR 000016-57; 261-69; 000313-30.
In June 2014, environmental consulting firm Passarellá & Associates (Passarella) provided NPS a first draft EA, describing the anticipated impacts of the initial multiphase plan. AR 000465. After reviewing that early-draft EA, NPS had concerns with' its completeness, objectivity, and qualitative analyses. AR 001017; 001002-08. NPS provided Passarella comments, noting that it was “difficult if not impossible” to adequately analyze the impacts of later phases of the Plan, due to a lack of specific information about how the activities would be conducted. AR 001039-52; 001042.
In August 2014, Passarella informed-NPS on behalf of Burnett that the Plan would be revised to simplify the multiphase concept, reduce the total ■ survey area by- 75%, and seek approval for Phase I only, AR 001070. A new Elan, covering only a 110-square mile focal point (approximately 70,454 acres) of the original Plan, was submitted in September 2014, AR 001071-1908. Over the next several months, NPS coordinated with the applicants and their consultants to refine both the Plan and the draft EA. AR 002255-88 (response to NPS comments); AR 002364-2991 (Oct. 2014 draft); AR 003648-4490 (Dec. 2014 draft); AR- 003012-13 (NPS comments, Nov. 2014).
Early in 2015, Burnett offered to show NPS how the vibraseis buggies proposed in their Plan would operate in the Preserve’s environment. Burnett requested temporary access to an area of the Preserve near Interstate '75 for this purpose. AR 004559-60, NPS approved the request, and representatives of Burnett, its geophysical, contractor, and N-PS met for the vi-broseis demonstration on April 22, 2015. AR 004644; 004647. NPS recorded several hours of video during the demonstration, and later prepared a summary report. AR 164894-900. Although the demonstration had certain adverse impacts, like tire rutting, damage to several cypress trees, and “mashed down” vegetation, AR 164896-97, NPS expected that the vegetation “will likely recover in a few months,” and found that the soil rutting was generally “not significant. ...” AR 164897. NPS further stated that “there was no appreciable effect on the ground” where the vibrator plate had been deployed. Id Although the vibraseis buggy became stuck once, the report noted that NPS could “work with the applicant to identify various habitats in the project area that must be avoided ... and areas where the proposed equipment may be able to be used.” AR 164898; see also AR 057455 (showing offset vibration points).
In June 2015, NPS informed Passarella and Burnett that the Plan was complete, consistent with federal regulations, and that NPS would begin its formal public review process to evaluate the Plan. AR 004720. NPS requested public comments on Burnett’s revised Plan, AR 004768, considered the comments received, and provided Burnett additional input on the released Plan and in-progress EA. AR 057208.
In the ensuing months, NPS made revisions to Passarella’s draft EA to ensure it comported with NPS standards. AR 057207-08; see, && AR 054878-55071 (redlined EA); 055514-55708 (same); 055911-56106 (same). In addition, NPS reviewed before and after photographs of the vibraseis demonstration site, which were provided by Burnett. AR 054851-62 (photographic report); 054843-48 (aerial photographs); AR 054807-16 (ground-level photographs). Burnett argues that these images revealed that six months after the demonstration, vegetation and soils impacted by the vibraseis buggy had largely recovered.
On November 20, 2015, NPS released the first public EA for Burnett’s Plan. The EA evaluated three alternatives: 1. a no-action alternative; 2. seismic survey using vibraseis buggies; and 3. seismic survey using explosives. AR 176907-17. Although NEPA does not require an opportunity for public comment on an EA, see 40 C.F.R. 1501.4(b), NPS requested comments and held a public information meeting. AR 176654-863 (EA released Nov. 2015); 057198 (press release); 057493-501 (public meeting presentation slides); AR 057624-26 (flyer). NPS received over 65,000 public comments, some expressing concerns with the seismic survey. Based on the comments received, Burnett proposed modifications to the Plan and worked with NPS to make changes to the proposed action, including relocating all staging activity outside Preserve boundaries to an existing industrial site called Vulcan Mine. Previously, staging areas were at five locations throughout the Preserve, covering approximately 11.5 acres. AR 057730-36; 093139; 093552-66 (staging area review PowerPoint prepared by Burnett).
These changes necessitated preparation of a revised EA and draft Wetlands Statement of Findings. On March 25, 2016, NPS released a revised EA. AR 176887-177089. Again, despite the fact that NEPA does not mandate public comment periods for EAs, NPS requested further public comments related to “scientific or technical information that would aid in the agency reaching a decision on a revised [EA],” through April 9, 2016. AR 095035-36.
NPS responded to public comments on both drafts of the EA, including those opposed. to the survey. AR 164214-24; 177075-87. NPS noted that the vibroseis buggies would have “similar but lesser impacts” than recreational ORVs due to their “wide, balloon-type tires, spreading the ground pressure over a large area.” AR 164221. The survey vehicles would use existing trails where possible and would seldom travel the same routes more than once, due to the survey’s “one pass” design, whereby a vehicle group would not normally travel the same route more than once. AR 164253. Although some commen-ters expressed concern that the survey could have lasting impacts, citing survey lines from the 1970s which are still visible in places, NPS explained that seismic exploration was unrestricted in those days: “bulldozers were allowed to plow paths across the landscape” to provide faster access for shot-hole drilling. AR 164220. NPS also noted that the total “footprint” of vegetation and soils affected by vibro-seis buggy travel would be less than 1.16 square miles of the 110 square mile survey area. AR 164224. Importantly, NPS reinforced that “47 explicit mitigation measures are incorporated into the selected alternative,” to “prevent lasting impacts,” “minimize short-term impacts,” and “ensure that no significant adverse impacts occur.” AR 164223.
The EA incorporates by reference three prior NPS NEPA analyses that address management of oil and gas activities and the use of ORVs within the Preserve, AR 164201-02, including a series of environmentally-protective measures identified in the NPS’ 1992 GMP/EIS and the 2006 Operators Handbook. AR 174759; 174764; 174837; 174839. The EA also incorporates by reference' two prior ORV analyses. First, in 2000, NPS adopted the Big Cypress National Preserve Recreational ORV Management Plan/EIS, which governs the use of ORVs in the Preserve. AR 169310-928. Second, in 2010, NPS finalized the Big Cypress' National Preserve Addition Final GMP/Wilderness Study/ORV Management Plan/EIS (“2010 Addition GMP/EIS”), which addresses management of the Addition, including ORV activities. AR 172579-3196;
D. ESA Consultation Regarding the Plan
For purposes of ESA consultation, NPS provided FWS a biological assessment (BA) in February 2014 that had been prepared by Passarella. FWS 003929. In response to comments received from FWS, NPS issued a revised BA in November 2014, FWS 004928, assessing the effects of Burnett’s Rian on eleven federally-listed or candidate species, including two plants. AR 179693-94; 179720-50.
The revised BA concluded that the planned survey is “not likely to adversely affect” ESA-listed species including the threatened American alligator, threatened eastern indigo snake, threatened Audubon’s crested caracara, endangered Everglade snail kite, endangered red-cockaded woodpecker, threatened wood stork, endangered Florida bonneted bat, and the endangered Florida panther. FWS 006623-27. The revised BA also concluded that the planned survey is “not likely- to adversely affect” the gopher tortoise, Florida prairie-clover, or Florida pineland erabgrass, all of which are ESA “candidate” species. FWS 006628, Finally, the revised BA concluded that the planned survey may affect the Florida panther but that it would have “little, if any adverse consequences on this species, and any such consequences would be insignificant.” FWS 005003-04. In addition to the revised BA, NPS provided FWS the December 2014 draft EA, FWS 005074, and the December .2014 revised plan of operations, FWS 005706.
■ On February 25, 2015, FWS issued a letter concurring that the survey is not likely to adversely affect any of the species considered in the BA. FWS 006622. As to the Florida bonneted bat, FWS reasoned that the survey lines would be scouted daily in an attempt to identify and avoid potential nesting or roosting sites. FWS 006626-27. In addition, FWS reasoned that temporary loss of vegetation during the establishment of transect lines and buggy access paths will not significantly affect foraging opportunities. Id. Finally, FWS concluded that potential roosting sites will not be affected because trees with a diameter greater than 10.2 centimeters will not ]?e removed. FWS 006627. By its own terms, the February 25, 2015 letter completed consultation only for “the seismic survey as specifically described in the project description” and stated that reinitiation of consultation may be required “[i]f modifications are made to the project.” AR 004592-93.
FWS clarified and affirmed its “not likely to adversely affect” determination with regard to the Florida bonneted bat and other species, following receipt of a notice concerning plaintiffs’ intent to bring ESA claims, see FWS 007001, in a memorandum to file dated September 6, 2016. FWS 007017. FWS stated that because the planned srn-vey is a short-term activity (completed in 18 weeks), with limited spatial extent (approximately 70,000 acres with 2.5 square miles affected per day), any action-caused avoidance behaviors by listed species would be only an insignificant effect. Id. at 007019.
In November 2015, NPS requested to reinitiate informal consultation on the draft EA for Burnett’s Plan. AR 057226. The FWS responded that “unless the project changes,” its concurrence was valid, and that it could not assess an alternative to the Plan without a BA for the alternative. FWS 006741. In' March 2016, NPS notified the FWS of the revised EA and stated that the five staging areas in the Preserve were eliminated. AR 095040. The FWS found that the elimination of the five staging areas did not affect its concurrence. FWS 006999.
The revised EA for Burnett’s Plan incorporated by reference three Preserve management plans: (1) 1992 Big Cypress National Preserve General Management Plan/Final Environmental Impact Statement for the Original Preserve, which included a Minerals Management Plan; (2) 2000 Big Cypress National Preserve Recreational Off-Road Vehicle Management Plan/EIS for the Original Preserve; and (3) 2010 Big Cypress National Preserve Recreational Off-Road Vehicle Management Plan/EIS for the Addition. With regard to ESA consultation, in 1991, the FWS found that the Preserve GMP may adversely affect Florida panthers and did not permit any incidental take. AR 167380-85. In 2000, the FWS evaluated effects of the ORV Plan on seven species, AR 169868-914, and concluded that' it was likely to adversely affect the Florida panther because panthers will “move away from designated [ORV] trails,” which “could alter normal breeding, feeding, and sheltering behavior,” AR 169900. The FWS authorized incidental take of Florida panthers through harassment by ORVs and required the NPS to restrict ORVs to designated trails. AR 169904-05.
In 2010, the FWS evaluated effects of the Addition GMP on seven species, AR 174088-174, and concluded that it was likely to adversely affect the Florida panther, largely due to effects from opening ORV trails. AR 174099; 174126-33. The FWS authorized incidental take of Florida panthers through harassment, principally due to' panthers avoiding' ORV trails. AR 174136-37. The Addition GMP and the associated biological, opinion were reviewed and upheld by this Court in National Parks Conservation Ass’n v. U.S. Dep’t of Interior, 46 F.Supp.3d 1254 (M.D. Fla. 2014), adhered to on reconsid. 2015 WL 476163 (M.D. Fla. Feb. 05, 2015), aff'd 835 F.3d 1377 (11th Cir. 2016).
Plaintiffs commented.to the;Agencies on the effects of Burnett’s Plan on listed species in April 2014, FWS 004045-53; December 2014, FWS 006549-85; August 2015, AR 4976, 4994-99; December 2015, AR 084576, 084607-36; and April 2016, AR 095316, 095358-90.
E. NPS’s Final Decision (FONSI)
On May 6, 2016, NPS issued a Finding of No Significant Impact (FONSI) for the EA, selecting Alternative 2—Burnett’s revised plan” of operations using vibroseis technology, as modified by forty-seven total minimization and mitigation measures which would apply as conditions of approval. AR'164179-282 (FONSI); AR 164184-92 (list of 47 mitigation measures); AR 164123-24 (press release). The FONSI concluded that with standard operating procedures, best management practices, and mandatory minimization and mitigation measures, the selected action “will not significantly affect the quality of the -human environment.” AR 164179. The agency concluded that the effects of the vibroseis buggies and other off-road vehicles would be “similar to impacts from past recreational ORV use,” but concluded .that there were important differences which would make the-survey. less impacting such as the use of terra tires, operation during the dry season, immediate restoration of any damage, and the use of existing trails. AR 164193. “Based on the impact analysis in the EA, the impacts described above would occur in only a small portion of the survey area (0.01% of the survey, area), which comprises approximately 0.001% of the Preserve.” AR 164207. And “[d]ue to the low intensity, short-term nature of the impacts and the required minimization and mitigation measures, affected resources will return to a condition similar to those that currently exist within three years or less, in most cases.” Id.
The NPS .also addressed the April 2015 vibroseis buggy demonstration, and noted that the field test had “demonstrated minimal vegetation impacts and substantial recovery six months later.” AR 164193-94. The primary problem with the demonstration was that the buggy got stuck in a man-made ditch, and the NPS concluded that the “[i]f the field test had followed the same minimization and mitigation measures (e.g., No. 46) that will be in place for the selected action, Preserve staff would have rerouted the vehicle around the area such that it would not have followed the original route and subsequently gotten stuck.” AR 164197.
The FONSI discussed the three prior, incorporated Preserve Management Plans, AR 164194-96, finding that the recreational ORV use addressed in the management plans involved repeated passes over the same locations (which causes greater impact), whereas Burnett designed its survey to minimize the number of times that vehicle cross the same location (the “one pass” survey design), AR 177032, and Burnett’s survey incorporates environmentally-pro-teetive measures that are not required for general recreational ORV activities.
F. The Two Phases of Burnett’s Approved Seismic Survey
The approved seismic survey will be conducted in two main phases, both of which plaintiffs take issue with. See Declaration of Charles E. Nagel III (Doc. # 53-2). The first phase involves scouting out the locations of the source and receiver points and placement of geophones (the “Preliminary Survey Phase”). AR 164183-84. In this first phase, survey crews will enter the survey area with NPS personnel and other qualified specialists and identify routes for vibroseis buggies to follow and areas to avoid, consistent with NPS mitigation measure 46 that “[n]o Vibroseis operations will be undertaken without prior NPS approval of proposed routes.” AR 164192; see also Condition 6 of the mitigation measures (NPS involvement in field operations), Conditions 15 and 30 (scouting team includes wetland scientist, archaeologist, and ecologist). This work will be done by personnel working on foot and using vehicles. Vehicles in the initial phase will include pickup trucks (on-road only), utility transport vehicles (“UTVs”) (small off-road vehicles which are smaller than recreational swamp buggies, photos at AR 174809), a trailer (to be used on roads only), and a helicopter. No vibroseis buggies will be used during the Preliminary Survey Phase. Burnett estimates that the Preliminary Survey Phase will take approximately six weeks. (Doc. # 53-2, ¶ 10.)
The second phase (the “Seismic Acquisition”) involves the actual data acquisition, which is when the vibroseis buggies will be used for approximately six weeks. During this phase, vibroseis buggies will enter from mile marker 63 on Interstate 75, following the routes identified in the Preliminary Survey Phase. A group of three buggies will be accompanied by two UTVs, which include a scout UTV working with a professional wetland scientist and archaeologist (in a second UTV). The buggies will stop for approximately two minutes at each vibration source point and apply approximately 12 to 24 seconds of vibration at each source point. AR 164184. Adding additional time to transition between the different phases, mobilize, and clean up, Burnett believes it will need approximately four months to complete the approved seismic survey. AR 164183.
II. The Administrative Procedures Act
Each of the eight counts in the Amended Complaint sets forth claims under the Administrative Procedures Act (APA) and a federal statute or regulation. The Court begins by discussing the general principles of the APA, and then discusses each of the individual counts.
Under the APA, a court may set aside an agency’s actions, findings, or conclusions only if they are found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2). This is an exceedingly deferential standard in which “[t]he court’s role is to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for the administrative agency’s decision.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (citation omitted). An agency action may be found arbitrary and capricious “where the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Defenders of Wildlife v. United States Dep’t of the Navy, 733 F.3d 1106, 1115 (11th Cir. 2013) (citation omitted).
This standard of review provides a court with the least latitude in finding grounds for reversal, and allows setting aside administrative decisions only “for substantial procedural or substantive reasons as mandated by statute, not simply because the court is unhappy with the result reached.” Citizens for Smart Growth v. Sec’y of the Dep’t of Transp., 669 F.3d 1203, 1210 (11th Cir. 2012) (quoting Fund for Animals v. Rice, 85 F.3d 535, 541-42 (11th Cir. 1996)). A court must “defer to the agency’s technical expertise,” City of Oxford v. FAA, 428 F.3d 1346, 1352 (11th Cir. 2005) (citation omitted), because when it “is making predictions, within its area of special expertise, at the frontiers of science ... as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.” Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1248-48 (11th Cir. 2012) (quoting Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009)). This deferential standard applies even in the context of summary judgment, Preserve Endangered Areas of Cobb’s History v. United States Army Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir. 1996). Plaintiffs. bear the burden to show agency action is arbitrary and capricious. Druid Hills Civic Ass’n v. Fed. Highway Admin., 772 F.2d 700, 709 n.9 (11th Cir. 1985); Citizens for Smart Growth, 669 F.3d at 1211.
A reviewing court must consider whether the record contains substantial evidence in support of an agency decision. 5 U.S.C. § 706(2)(E). Substantial evidence is ‘“relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.’ ” Stone & Webster Constr., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1133 (11th Cir. 2012) (quoting Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). This standard precludes a reviewing court from “deciding the facts anew, making creclibility determinations, or re-weighing the evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam). “The ability to find adequate support in the record for a contrary conclusion is insufficient to overturn an agency’s factual conclusion.” Natl. Parks Conservation Ass’n, 835 F.3d at 1384 (citing DeKalb Cty. v. U.S. Dep’t of Labor, 812 F.3d 1015, 1020 (11th Cir. 2016)).
III. The Four APA and NEPA Claims (Counts I-IV)
Plaintiffs allege that NPS violated NEPA and the APA by failing to: (1) prepare an Environmental Impact Statement for Burnett Oil’s Plan of operations (Count I); (2) take a “hard look” at the effectiveness of the mitigation measures required for Burnett Oil’s Plan of Operations (Count II); (3) take a “hard look” at the adverse impacts caused by implementation of all aspects of Burnett’s Plan, including all direct, indirect, and cumulative impacts on Preserve resources (Count III); and (4) consider all reasonable alternatives to Burnett Oil’s Plan of Operation (Count IV).
A. NEPA General Principles
The- National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370, 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, 669 F.3d at 1211; Van Antwerp, 526 F.3d at 1360. NEPA compliance must take plaee 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), ,
“NEPA essentially forces federal agencies to document the potential environmental impacts of significant decisions before they are made, thereby ensuring that environmental issues are consid-. ered by the agency and that important information is made available to -the larger audience that may help to make the decision or will be affected by it.” Id. at 1094 (citing Robertson v. Methow Valley Citizens Council. 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). “NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to, correct.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The Council on Environmental Quality (CEQ), an agency created by NEPA in the Executive Office of the President, has issued regulations to guide agencies’ compliance, 40 C.F.R. §§ 1500.1-1508.28.
To comply with NEPA, agencies often prepare an Environmental Assessment (EA), a “concise” public document which “briefly” discusses' the environmental impacts of, and alternatives to, a proposal for federal action. 40 C.F.R. § 1508.9. Agencies may use the EA to determine whether the - proposed • action will “significantly affect[] the quality of the human environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1501.3-1501.4. If the proposed action will have “significant” environmental impacts, NEPA instructs agencies to prepare an Environmental Impact c Statement (EIS), a detailed environmental review document which analyzes the environmental impacts of the proposal, reasonable alternatives, and other factors. 42 U.S.C. § 43S2(2)(C). 1⅛ however, the agency prepares an EA and concludes that the proposed action is not likely to have significant impacts, the agency may issue a Finding of No Significant Impact (FON-SI), and the NEPA process is complete. 40 C.F.R. § 1508.13. A FONSI is a factual determination which “implicates Substantial agency expertise and is entitled to deference.” Marsh, 490 U.S. at 376, 109 S.Ct. 1851.
Because NEPA imposes purely procedural requirements, rather than substantive results, and does not mandate any specific outcome, “agencies may make a decision that preferences other factors over environmental concerns as long as they have first adequately identified and analyzed the environmental impacts.” Citizens for Smart Growth, 669 F.3d at 1211 (citing Van Antwerp, 526 F.3d at 1361). If the agency follows the process required by NEPA in deciding whether to take the action, even a capricious substantive decision will not violate NEPA because “NEPA merely prohibits uninformed— rather than unwise—agency action.” Van Antwerp, 526 F.3d at 1361-62 (quoting Robertson, 490 U.S. at 350-51, 109 S.Ct. 1835 (footnote omitted)). Agency decisions allegedly violating NEPA are reviewed under the APA’s highly deferential standard. Citizens for Smart Growth, 669 F.3d at 1203.
B. The Alleged NEPA Violations
(1) “Hard Look” at Adverse Impacts (Count III)
Plaintiffs allege that NPS failed to take a “hard look” at the adverse impacts of Burnett Oil’s Plan in three ways: (1) In the revised EA and FONSI, NPS failed to evaluate the cumulative impacts of all four phases of Burnett’s planned seismic exploration, which all are “reasonably foreseeable,” see 40 C.F.R. § 1508.7; (2) NPS failed to evaluate the cumulative impacts of eleven other projects affecting wildlife and habitat in the same region; and (3) NPS failed to consider - numerous direct impacts from the Plan. The Court will consider each argument in turn.
(a) Cumulative Impact of Four Phases
As discussed above, Burnett initially submitted a proposal for a 3-D seismic survey covering roughly 400 square miles, to “be completed in V or VI phases.” Phase I of the Survey would focus on a 110 square mile area near a former Exxon exploratory oil field, and the initial plan requested approval for all four phases. AR 000003. Because the details of such a mul-ti-phase project were quite unclear, Burnett’s Plan was revised to request approval for only on& phase. AR 176893.
Plaintiffs argue that Burnett has stated that approval for the future phases will be requested under a separate plan for each subsequent phase, and that Burnett has acquired mineral - exploration rights for these future phases. Thus, plaintiffs reason that because' the future-phases are'“reasonably foreseeable,” NPS should have, but failed to, consider the cumulative impact that would result from the four phases. Burnett responds with the Declaration of its President, Charles Nagel III, who states that while Burnett reserves the right to submit future plans of operation, it has no plan to file an application for any future plans of the seismic survey. See Doc. # 53 at 11; Doc. # 53-2,- ¶ 14.
In the NEPA context, the reviewing court must ensure that the agency took a “hard look” at the environmental consequences of the project. Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir. 2002). A cumulative impact is “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. This requirement prevents a proponent from breaking a proposal into small pieces that, when viewed individually, appear insignificant but that are significant when viewed as a whole. 40 C.F.R. § 1508.27(b)(7) (“Significance cannot be avoided by terming an action temporary or breaking it down into small component parts”).
CEQ regulations do not define “reasonably foreseeable,” but ’cases interpreting that phrase have recognized that the impacts of a future project cannot be meaningfully analyzed until there is some degree of certainty about the scope of the project and specific actions proposed. City of Oxford v. FAA, 428 F.3d 1346, 1353 (11th Cir. 2005) (proposal must be “sufficiently concrete for the agency to gather information useful to itself and the public”). The inquiry into whether a future action is foreseeable should be conducted with an eye toward the purposes underlying NEPA. NEPA contains an implicit “rule of reason,” “which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process.” Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004).
In City of Oxford, the Eleventh Circuit found that a cumulative impact analysis is not required for hypothetical plans. In that case, a highway widening was not in the planning stages. “With no concrete plan to consider.. .investigators and researchers would be forced to analyze the environmental impact of a project, the parameters and specifics of which would be a mere guess.” 428 F.3d at 1355. See also Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1014-15 (9th Cir. 2006) (Where the “parameters of the.. .project were unknown at the time of the EA, it was not arbitrary and capricious for [the agency] to omit the project from its cumulative analysis”)
Here, NPS noted that the revised plan seeks approval only for what was identified as the first phase (110 ± square mile survey area) of the originally proposed NG3-D Seismic Survey (Figure 1-1). [Burnett] is no longer seeking approval for Phases II, III, and IV that were identified in the original [Plan of Operations]. Those phases are no longer part of the [Plan of Operations], and the NPS will only evaluate what is requested in the [Plan of Operations].-
AR 176893. The NPS concluded that the “probability or extent of any future surveys is speculative” and that any remaining phases “are not reasonably foreseeable ... and therefore are appropriately not included in the cumulative impact analysis.” AR 177076; see also AR 164214, 164219. In comments on the multi-phase plan, NPS explained that
Approval of Phases II, III, and IV would be subject to Burnett submitting additional information prior to conduct of operations in the later phases.. .While such an approach could provide checkpoints for Burnett and the NPS to benefit from lessons learned in prior phases, approving a plan of operations under this scenario may be difficult if not impossible given that impact analysis expectations... may not be met.... Where information is lacking, an alternative may be to scale back operations to include areas where information is available and adequate cumulative impact analysis can be conducted.
AR 001041-42.
The Court finds that there is insufficient evidence that the next three phases of Burnett’s Plan will ever occur to justify a requirement that NPS assess their cumulative impact. When Burnett reduced the size of the proposed survey area to only 25% of its original size (AR 001069-70), it stated that it was “no longer seeking approval for Phases II, III, and IV that were originally identified in the original POP,” and that “[tjhose phases are no longer part of the POP.” AR 003668. The data collected in the approved survey may well affect if and/or where Burnett will seek to conduct future survey activities in the Preserve, including whether pursuing oil and gas in the Preserve is economically feasible. Even if Burnett intends to conduct more surveys, plans for those phases are not concrete enough to allow NPS to meaningfully analyze their cumulative environmental impacts. See City of Oxford, 428 F.3d at 1356 n.23 (if a new building is proposed, the agency “may then be required to analyze the cumulative impacts of that project in conjunction with the project currently at issue.”). The Court finds no NEPA or APA violations.
(b) Cumulative Impacts of Eleven Other Projects
Plaintiffs next argue that NPS failed to evaluate the cumulative impacts of other projects affecting wildlife and habitat in the same region, including a seismic survey approved for 161 square miles of private and state lands just north of the Preserve (the “Tócala Survey”), and at least eleven major development projects proposed in the habitat for endangered Florida panthers and other species. Plaintiffs assert that these projects will put increased pressure on the single population of Florida panthers and on other wildlife that use the Preserve, and should have been included in NPS’s cumulative impact analysis of the Plan.
Defendants respond that plaintiffs have waived this argument because they failed to mention these other projects in their comments on the October 2015 EA (AR 057230-320). The Court finds this argument unpersuasive as plaintiffs did raise this argument in the second comment period. See AR 057348; 057366-67; 057370-73. But even if the argument was not waived, the federal defendants argue that NPS’s decision was not arbitrary and capricious as the record reveals that NPS did consider and address the other projects, and NPS was within its discretion to decline to consider the cumulative impacts.
“Cumulative environmental impacts are, indeed, what require a comprehensive impact statement. But determination of the extent and effect of these factors, and particularly identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies.” Kleppe v. Sierra Club, 427 U.S. 390, 413-14, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Here, regarding the seismic survey on private and state lands north of the Preserve, NPS explained that “[t]he Tócala survey is miles from the Preserve, is on privately owned ranch-land, has no effects on Preserve resources, and thus should not be included in the cumulative impacts analysis.” AR 094221. The record also shows that NPS did address the other projects, but NPS declined to consider their cumulative impact because those projects would not affect the same resources as the proposed action. AR 164219. In this regard, NPS stated that “many projects listed by com-menters were located one or more counties away from the survey area, and these projects would not affect the same resources as the proposed action and therefore would not be considered under cumulative impacts.” AR 164219. Plaintiffs have not shown that NPS’s decision was arbitrary and capricious as it was well within NPS’s expertise to determine that the other projects would not have a cumulative impact. The Court finds no NEPA or APA violation.
(c) Direct Impacts from the Plan
Plaintiffs complain that during the agency’s preparation of the revised EA, Burnett decided to use an off-site staging area at an existing industrial site (Vulcan Mine) outside the Preserve, over eight miles from the seismic survey area, instead of five on-site staging areas. Plaintiffs argue that in approving the off-site staging area, NPS failed to consider how the increased helicopter flight time would affect wildlife and visitor experiences in the areas between the off-site staging area and the seismic survey area, as well as off-road travel of survey vehicles such as ORVs, besides the vibroseis buggies, to ferry supplies back and forth. Defendants respond that NPS did take a hard look at each of these impact topics. The Court agrees with defendants.
With regard to the off-site staging area being moved to the Vulcan Mine site, it is worth noting that plaintiffs requested that NPS move the staging area out of the wetlands in the Preserve. AR 004977; 004987-88. The initial EA described five “staging areas” where crew would assemble and vibroseis equipment, support trailers, helicopter landing zones, and other miscellaneous survey infrastructure would be located. AR 176680-81; AR 093533 (example photograph staging area). NPS noted the possibility that “a high-density, interlocking, composite mat system” might be installed at the staging areas, to protect the underlying soil and root system of vegetation, AR 176811. NPS considered the effects of having staging areas in Preserve wetlands, AR 176680-81, and determined after public comment that moving staging areas out of the Preserve to the Vulcan Mine site would in fact “significantly reduce environmental impacts” and “reduce environmental impacts, personnel, and vehicular traffic, as well as eliminate the use of heavy equipment in the Preserve.” AR 094063; 094056-57 (map); 176910-11 (final EA). This modification eliminated the use of composite mats.
With regard to the impact of off-road vehicles other than vibroseis buggies, the EA did specifically consider the impacts of these vehicles. AR 002342 (photograph of UTV). The EA describes how “survey activities would generally utilize a ‘one pass’ design,” which “means that the equipment group (which would include a UTV and three Vibroseis buggies) would seek to traverse a given area only once, and that area would not be driven upon repeatedly again in the majority of cases.” AR 176919. NPS also explained how minimization and mitigation measures would reduce any vehicular impacts to wetlands, habitat, soils, and vegetation to minimal levels. AR 176973. Thus, NPS noted that the “one-pass” design of the survey, the fact that operations would be limited the dry season, .and other minimization and mitigation measures would reduce the impacts of all motorized vehicles used in the survey.
NPS also took into account the impacts support vehicles would have on wilderness. AR 176987 (discussing effects “of Vibroseis buggies, UTVs, helicopters, and other mechanized equipment”). In the Wetlands Statement of Findings, attached as Appendix B to the EA, NPS explained how the equipment groups would work:
[e]aeh group of buggies will have a scout' UTV working with a professional wetland scientist and archaeologist (in a second UTV), traveling in tandem across vibration source point lines with the least environmental impacts. ...The “one pass” design eliminates the progressive widening of trails which generally occurs as a result of overuse and rutting from multiple passes. Virtually all of the one pass lanes had restored in one year and completely disappeared after seven years of recovery.
AR 177032. NPS cited studies which concluded that “single passes of ORVs (in most cases) did not result in long-term adverse impacts to vegetation or soils” and “virtually all of the one pass lanes had restored in one year and completely disappeared after seven years of recovery.” Id. The NPS noted that vibroseis buggies have similar but lesser .impacts to recreational ORVs, and soil impacts would be temporary or minimal because they would use existing trails when possible, soil ruts would be immediately restored, among other factors. AR 177078.
Regarding visitor experience and recreation, NPS explained that the original five staging areas “would have been located near 1-75 recreational access points,” but after moving the staging location outside the Preserve, “[n]o survey activities would occur within a half-mile of campgrounds, interpretive sites, research sites, or other publicly funded facilities, as the five staging areas would not be used.” AR 094226.
A review of the record belies plaintiffs’ assertion that' NPS summarily concluded that the Vulcan Mine site would have lesser impacts than the on-site staging areas. See Van Antwerp, 526 F.3d at 1360 (agency not required to redo environmental analysis for minimization measure that are within the scope of studied impacts). The Court finds no NEPA or APA violation.
(2) Viable, Less-Damaging Alternatives to the Plan (Count IV)
Plaintiffs contend that NPS adopted an impermissibly narrow purpose and need statement which led to its failure to consider all reasonable, less damaging alternatives to the Plan. The federal defendants respond that the Court should defer to the purpose and need statement that NPS properly formulated based on Burnett’s interest as the survey applicant, as well as NPS’s resource management interests.,
(a) Purpose and Need Statement
Here, NPS’s final definition of the project’s purpose was consideration- of Burnett’s “request to exercise its private oil and gas exploration rights while protecting the Preserve . resources.” AR 176895. “The proposed geophysical exploration is needed to determine whether and where potentially producing geological structures might be located so that owners of those oil and gas interests may exercise their private property rights.” Id. Plaintiffs believe .that this purpose and need statement is -too narrow and was biased towards approval from the beginning.
An EA must include “brief discussions of the need for the proposal [and] of alternatives as required by [NEPA].” 40 C.F.R. § 1508.9(b); 42 U.S.C. § 4332(2)(E). “[A]gencies must look hard at the factors relevant to the definition of purpose” and “should take into account the needs and goals of the parties involved in the application.” Citizens for Smart Growth, 669 F.3d at 1212 (quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991)). “[A]n agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency’s power would accomplish the goals of the agency’s action, and the EIS would become a foreordained formality.” Id. “Nor may an agency frame its goals in terms so unreasonably broad that an infinite number of alternatives would accomplish those goals and the project would collapse under the weight of the possibilities.” Id. When responding to applications from private actors, agencies “should take into account the needs and goals of the parties involved in the application” when formulating a statement of purpose and need. Citizens for Smart Growth, 669 F.3d at 1212 (quoting Citizens Against Burlington, 938 F.2d at 199).
Over the course of nearly two years, NPS supplemented and revised the EA, in consultation with Burnett and in response to public comments. The statement of purpose and need was revised as well. Compare AR 468 (first draft) with AR 176895 (final). The statement prope