Emily Yehle, E&E reporter
Greenwire: Tuesday, June 3, 2014

The National Park Service is facing scrutiny over its decision to open more than 130 miles of trails to off-highway vehicles in a wetlands preserve, after a federal judge denied the agency’s motion to dismiss a lawsuit from environmentalists.

The lawsuit — first filed in 2011 — accuses NPS of flouting federal law by opening the trails without first assessing the potential effects on the environment and wildlife. The trails weave though Big Cypress National Preserve, a 729,000-acre area in South Florida that harbors the endangered Florida panther and other rare wildlife.

Off-highway vehicles (OHVs) have long been a subject of controversy in the preserve, where American Indians and permit-holding visitors use airboats, swamp buggies and other vehicles to hunt, fish, camp and explore remote areas. But while the original preserve follows an OHV plan, the trails at issue in the lawsuit are located in the “addition lands” that were added to Big Cypress in 1988.

Environmental groups filed at least two lawsuits opposing the trails in 2011. But the latest iteration came in 2013 with a lawsuit from the Center for Biological Diversity, the Sierra Club, the South Florida Wildlands Association and WildEarth Guardians. In it, they argue that NPS must set aside the OHV trails because NPS did not conduct any agency review or consult with the Fish and Wildlife Service over adverse effects to federally protected species.

In a motion to dismiss, NPS argued that most of the lawsuit was “prudentially moot” because of steps the agency has taken since the lawsuit was filed. Specifically, NPS closed more than 60 miles of the trails and voluntarily began an environmental review under the National Environmental Protection Act.

But in a recent order, a federal judge rejected that argument and denied the motion, meaning the case will move forward in the U.S. District Court for the Middle District of Florida.

U.S. District Judge Sheri Polster Chappell pointed out that 85 miles of OHV trails are still open, leaving open the question of whether NPS should have performed NEPA analysis beforehand. Furthermore, she wrote, NPS could stop or delay its NEPA review at any time, since it is voluntary.

“[B]y leaving the trails open without any definite NEPA review, the NPS left the Preserve open to potential damaging impact,” Chappell wrote. “[T]he issue is not whether or not to ultimately close or open the 85 miles of secondary trails — that is for the NPS expertise to determine. Instead, the issue is whether or not the NPS is following the rules and guidelines established by Federal environmental statutes, Federal Regulations, Executive Orders, and EIS review.”

Environmentalists heralded the decision as a step forward in their fight to regulate OHV use on public lands.

“The endangered Florida panther, a symbol of Florida’s original wildness, has an enormous number of threats to navigate in South Florida,” Sarah Peters, an attorney with WildEarth Guardians, said in a statement. “This decision, hopefully, will ensure that national park mismanagement of off-road vehicle recreation isn’t one of those threats.”

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