National Parks Conservation Ass'n v. United States Department of Interior

OPINION AND ORDER

JOHN E. STEELE, District Judge.

This matter comes before the Court on five cross motions for summary judgment in these consolidated cases. Then-magistrate judge Sheri Polster Chappell filed a seventy-nine page Report and Recommendation (Doc. # 123) 1 on January 31, 2013, recommending that Plaintiffs’ motions be denied and Defendants’ motions be granted. Plaintiffs filed Objections (Doc. # 126; Doc. # 127), to which Defendants filed Responses (Doc. # 130; Doc. # 131; Doc. # 132). Plaintiffs then filed Replies (Doc. # 137; Doc. # 138), to which a Surreply (Doc. # 141) was filed. On June 14, 2013, the undersigned heard extensive oral arguments on the objections. (Doc. # 153.)

During oral argument, the undersigned inquired whether any party felt there was a “ripeness” issue in the case. The Court ultimately directed that any party wishing to assert an issue challenging the subject matter jurisdiction of the court file a motion to dismiss by August 6, 2013. (Doc. # 163.)

In response, the Federal Defendants 2 and intervenor defendant Safari Club International (Safari Club) filed motions to dismiss for lack of subject matter jurisdiction. (Doc. # 164; Doc. # 165.) Plaintiffs filed Oppositions (Doc. # 168; Doc. # 169) to the motions to dismiss. Plaintiffs have filed supplemental authorities (Doc. # 171; Doc. # 172; Doc. # 174), prompting the Federal Defendants to file a Motion to Strike (Doc. # 175). Plaintiffs filed oppositions to the motion to strike (Doc. # 178; Doc. # 179), and additional notices of supplemental authority have been filed (Doc. # 181; Doc. # 183; Doc. # 184; Doc. # 185).

I.

The Court accepts and adopts Section I and Section II of the Report and Recommendation (Doc. # 123, pp. 1264-1312), 3 captioned “Relevant Environmental Statutes and Executive Orders” and “Factual and Procedural Background” respectively. In summary, Congress established the Big Cypress National Preserve (the Original Preserve or the Preserve) in 1974 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 *1265 State of Florida and to provide for enhancement and enjoyment thereof.” An Act to Establish the Big Cypress National Preserve in the State of Florida, Pub.L. No. 93-440, § 1 , 88 Stat. 1258 (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.

The National Park Service’s (NPS) allowance of motorized recreational, off-road vehicles (ORVs) in the Original Preserve has been a hotly contested and litigated subject since at least 1995. Ultimately, a 2000 General Management Plan and a Final Recreational Off-Road Vehicle Management Plan addressed ORV use in the Original Preserve. Resolution of the resulting litigation concerning that General Management Plan can be found at Defenders of Wildlife v. Salazar, 877 F.Supp.2d 1271 (M.D.Fla.2012).

In 1988, Congress authorized the acquisition of what is referred to as the Addition lands, consisting of approximately 147,000 acres adjacent to the Original Preserve. The NPS has acquired approximately 112,400 acres of the Addition lands, with the remaining acreage still being owned by private owners or various State of Florida entities. While there are approximately 244 miles of ORV trails on the Addition lands which pre-date the 1988 Congressional authorization, these trails were closed to public use when the NPS began administering the Addition lands in 1996.

Because the Addition lands were not covered by the 2000 General Management Plan for the Original Preserve, the NPS began drafting a separate general management plan for the Addition lands, which included an ORV use component. In due course, decisions were made by the Federal Defendants which are reflected in the following five documents: (1) an Addition Wilderness Eligibility Assessment of March 2010 approved by the NPS Director on May 12, 2010 (AR 7381-7394); (2) a Final General Management Plan/Wilderness Study/Off-Road Vehicle Management Plan/Environmental Impact Statement (the Addition GMP/EIS) authored by the NPS and dated October 20, 2010 (AR 12801-13418); (3) a Biological Opinion authored by the Fish and Wildlife Services (FWS) and dated November 18, 2010 (AR 8583-8670); (4) an Incidental Take Statement authored by the FWS and dated November 18, 2010 (AR 8631-8634); and (5) a Record of Decision authored by the NPS and dated February 4, 2011 (the 2011 ROD) (AR 13494-13616).

Among other things, the 2011 ROD selected the preferred alternative from the Addition GMP/EIS. The preferred alternative allows recreational ORV use in Addition lands on designated trails within 49,449 acres designated as “backcountry recreation;” provides for the future designation of approximately 130 miles of primary ORV trails in three phases; prohibits ORV use in 96,413 acres designated as “primitive backcountry;” and purposes 47,-067 acres for “wilderness” designation.

II.

Complaints filed by the National Parks Conservation Association and John Ador-nato (the “NCPA Plaintiffs”) (Case No. 2:ll-cv-578), and the Public Employees *1266 for Environmental Responsibility (PEER), the Florida Biodiversity Project, the Sierra Club, the South Florida Wildlands Association, Wilderness Watch, and Brian Scherf (the “PEER Plaintiffs,” and collectively with the NCPA Plaintiffs, “Plaintiffs”) (Case No. 2:ll-cv-647), challenge the validity of these decisions for various reasons. Plaintiffs ask the Court to vacate and set aside those decisions and remand the matter of recreational ORV use in the Addition to the NPS for further consideration.

Approximately two years into the case, the Federal Defendants and the Safari Club asserted for the first time that the Court lacks subject' matter jurisdiction. The Federal Defendants assert the lack of subject matter jurisdiction for three “separate but related reasons”: (1) most of the claims are not ripe for adjudication; (2) Plaintiffs lack standing to pursue the remaining claims; and (3) there has been no “final agency action,” as required for subject matter jurisdiction under the Administrative Procedure Act (APA). (Doc. # 164, pp. 3-4.) The Safari Club focuses on the lack of standing, but also refers to ripeness. (Doc. # 165.) Assuming subject matter jurisdiction exists, Defendants urge the Court to adopt the Report and Recommendation and enter judgment in their favor.

Plaintiffs in both cases assert that the Court does have subject matter jurisdiction, but object to various findings and conclusions in the Report and Recommendation. Plaintiffs seek judgment on the merits in their favor.

A. Subject Matter Jurisdiction Generally

The threshold issue is whether the Court has subject matter jurisdiction over any of the claims set forth in the Complaints. Both ripeness and standing are components of a district court’s subject matter jurisdiction. 4 Subject matter jurisdiction cannot be waived or forfeited by the parties 5 ; subject matter jurisdiction may (indeed must) be raised by the court sua sponte 6 ; and subject matter jurisdiction can be raised at any time during the litigation. 7

“Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, — U.S.-, 133 S.Ct. 1059, 1064 , 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 , 114 S.Ct. 1673 , 128 L.Ed.2d 391 (1994)). “Article III, § 2, of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies,’ which restricts the authority of federal courts to resolving the legal rights of litigants in actual controversies.” Genesis *1267 Healthcare Corp. v. Symczyk, — U.S. -, 133 S.Ct. 1523, 1528 , 185 L.Ed.2d 636 (2013) (citation and internal quotation marks omitted). See also Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341 , 189 L.Ed.2d 246 (2014). The party invoking a federal court’s jurisdiction has the burden of establishing subject matter jurisdiction. Driehaus, 134 S.Ct. at 2342 ; Kokkonen, 511 U.S. at 378 , 114 S.Ct. 1673 .

B. Ripeness

“Ripeness reflects constitutional considerations that implicate Article III limitations on judicial power, as well as prudential reasons for refusing to exercise jurisdiction.” Stolt-Nielsen SA. v. AnimalFeeds Int’I Corp., 559 U.S. 662 , 670 n. 2, 130 S.Ct. 1758 , 176 L.Ed.2d 605 (2010) (citation and internal quotation marks omitted); National Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 , 123 S.Ct. 2026 , 155 L.Ed.2d 1017 (2003). To determine whether a claim is ripe for judicial review, courts consider both “the fitness of the issues for judicial decision” and “the hardship of withholding court consideration.” Stolt-Nielsen S.A, 559 U.S. at 670 n. 2, 130 S.Ct. 1758 ; National Park Hospitality Ass’n, 538 U.S. at 808 , 123 S.Ct. 2026 . Courts consider: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 , 118 S.Ct. 1665 , 140 L.Ed.2d 921 (1998). In the administrative context, ripeness is a justicia-bility doctrine designed to prevent the courts from entangling themselves in abstract disagreements over administrative policies and to shield agencies from judicial interaction until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, 727 F.3d 1349, 1356 (11th Cir.2013) (citations omitted). Generally, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 , 118 S.Ct. 1257 , 140 L.Ed.2d 406 (1998) (internal citation and quotation marks omitted). The ripeness of a claim is a legal question. Temple B’Nai Zion, Inc., 727 F.3d at 1356 . 8

C. Standing

“In order to invoke federal-court jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable interest, or ‘personal stake,’ in the outcome of the action. This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved.” Genesis Healthcare, 133 S.Ct. at 1528 (internal citations omitted). For constitutional standing,, “plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed *1268 by a favorable judicial decision.” Lexmark Int'l, Inc. v. Static Control Components, Inc., — U.S.-, 134 S.Ct. 1377, 1386 , 188 L.Ed.2d 392 (2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992)). “Prudential” standing is “a doctrine not derived from Article III and ‘not exhaustively defined’ but encompassing (we have said) at least three broad principles: ‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the 'requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked.’ ” Id. (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 , 124 S.Ct. 2301 , 159 L.Ed.2d 98 (2004)). “Standing is not dispensed in gross. Rather, a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 , Í28 S.Ct. 2759, 171 L.Ed.2d 737 (2008). As the parties invoking the Court’s jurisdiction, plaintiffs bear the burden of establishing standing. Driehaus, 134 S.Ct. at 2342 ; Lujan, 504 U.S. at 560-61 , 112 S.Ct. 2130 .

D.APA Final Agency Action Requirement

The APA states that “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review,” 5 U.S.C. § 704 , and defines “agency action” as including “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act,” 5 U.S.C. § 551 (13). Because the definition of “agency action” under the APA is so broad, the critical inquiry is whether the action is final. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478 , 121 S.Ct. 903 , 149 L.Ed.2d 1 (2001). The test for finality involves two steps: “First, the action must mark the ‘consummation’ of the agency’s decisionmaking process ... it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal- consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 , 117 S.Ct. 1154 , 137 L.Ed.2d 281 (1997) (internal quotation marks and citations omitted). See also Sackett v. EPA, — U.S.-, 132 S.Ct. 1367, 1371-72 , 182 L.Ed.2d 367 (2012). By contrast, a nonfinal agency order is one that “does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action.” National Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1237 (11th Cir.2003) (quoting Rochester Tel. Corp. v. United States, 307 U.S. 125, 130 , 59 S.Ct. 754 , 83 L.Ed. 1147 (1939)). The presence of a final agency action is a jurisdictional requirement. Norton, 324 F.3d at 1236 .

E. Substantive Legal Principles

The Court adopts the portions of the Report and Recommendation (Doc. # 123) setting forth the elements of the various statutes, regulations, and executive orders at issue in this case, as supplemented below. The Court also adopts its prior discussion of these statutes, regulations, and executive orders in Defenders of Wildlife v. Salazar, 877 F.Supp.2d 1271 (M.D.Fla. 2012). Additional substantive principles .will also be discussed within this Opinion and Order.

F. Standards of Review

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 *1269 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 and internal quotation marks 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).

Administrative decisions under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370 (NEPA), are reviewed under the APA’s highly deferential standard. Van Antwerp, 526 F.3d at 1360 ; Defenders of Wildlife v. United States Dep’t of Navy, 733 F.3d at 1115 . An agency’s compliance with the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (ESA), is also reviewed under this deferential APA standard. Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d at 1248 . Similarly, agency action under the Wilderness Act is reviewed under the deferential APA standard. Wilderness Watch v. Mainella, 375 F.3d 1085, 1087-88 (11th Cir.2004); Wyoming v. USDA, 661 F.3d 1209, 1226-27 (10th Cir.2011).

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge’s report and recommendation. 28 U.S.C. § 636 (b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.2010). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636 (b)(1)(C). See also United States v. Farias-Gonzalez, 556 F.3d 1181 , 1184 n. 1 (11th Cir.2009). This requires that the district judge “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507 , 512 (11th Cir. 1990) (quoting H.R. 1609, 94th Cong., § 2 (1976)). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. *1270 Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.1994).

III.

The Court will address subject matter jurisdiction and the objections to the Report and Recommendation on a claim-by-claim basis.

A. APA Violation Based on Wilderness Act Violation

Count One in Case No. 2:ll-ev-578 alleges that the Department of the Interior and the NPS violated the APA because the ORV plan for the Additions lands violated the Wilderness Act of 1964, and hence violated the APA requirement that agency actions, findings, and conclusions be “in accordance with law.” 5 U.S.C. § 706 (2)(A). Specifically, Count One asserts that the Federal Defendants’ determination that more than 40,000 acres of Addition lands were not eligible for protection as “wilderness” was the result of the wrongful application of the requirements of the Wilderness Act in at least six specific ways. (Doc. # 1, ¶ 58(a)-(f).) Similarly, Count One in Case No. 2:ll-cv-647 alleges that the Federal Defendants violated the Wilderness Act and hence violated the APA. (Doc. # 1, ¶¶ 87-89.) 9

The Court has adopted the Report and Recommendation’s summary of the Wilderness Act requirements and the related NPS management policies. (Doc. # 123, pp. 1298-1300.) In sum, the Wilderness Act of 1964, 16 U.S.C. §§ 1131-36 , established a process by which lands could be designated as “wilderness” areas. Under the Wilderness Act, the Secretary of the Interior is required to review certain lands within the national park system for eligibility as “wilderness” and to recommend to the President whether the land is suitable or not suitable for preservation as wilderness. 16 U.S.C. § 1132 (c); 43 C.F.R. § 19.3 . In practice, the NPS evaluates the land to determine its wilderness eligibility (i.e., its suitability for preservation as wilderness), and makes its recommendation to the Secretary of the Interior. After satisfying certain statutory requirements, 16 U.S.C. § 1132 (d), the Secretary of the Interior makes a recommendation to the President of the United States “as to the suitability or nonsuitability of each such area” for preservation as wilderness, 16 U.S.C. § 1132 (c). The President, in turn, makes recommendations to Congress with respect to the designation as wilderness of each such area on which review has been completed. 16 U.S.C. § 1132 (c). No land actually becomes a “wilderness” area unless Congress enacts legislation to that effect. Id.

The Court also adopts (with two exceptions) the Report and Recommendation’s factual findings related to the Wilderness Act (Doc. # 123, pp. 1312-16) 10 as supplemented below. In sum, a 2006 NPS eligibility assessment found that 111,601 acres of Addition lands were eligible for designation as wilderness. A NPS reassessment in 2010 found that only 71,263 acres of Addition lands were wilderness eligible, a reduction of approximately 40,000 acres. The new figure was included in the Addition GMP/EIS and the 2011 ROD. The NPS has made this wilderness recommendation to the NPS Director, but the admin-' istrative record is not clear whether the *1271 recommendation has been forwarded to the Department of the Interior. (Doc. # 123, p. 1312.)

In a post-oral argument submission, the Federal Defendants state that the NPS “has completed a wilderness proposal based on the 2010 wilderness eligibility assessment attached to the Addition GMP/ EIS and the wilderness study included in the Addition GMP/EIS” and that the “NPS is currently managing all areas found wilderness eligible in the 2010 wilderness eligibility assessment as wilderness.” (Doc. #164, p. 7.) The PEER Plaintiffs suggest that the Secretary has now made a recommendation to the President. (Doc. # 169, p. 12 n. 8.)

(1) Ripeness

Defendants do not specifically address the ripeness of the Wilderness Act claims, 11 but both sets of Plaintiffs discuss the ripeness of the claims at some length. (Doc. # 168, pp. 16-20; Doc. # 169, pp. 11-15.) Generally, Defendants assert that the claims are not ripe because recreational ORV use in the Addition has not occurred and cannot lawfully occur absent completion of the rulemaking process.

Plaintiffs’ Wilderness Act claims, however, challenge only the 2010 NPS wilderness determination, which reduced the eligible acreage by about 40,000 acres from the 2006 NPS determination. For the Wilderness Act claims, the alleged injury is not ORV use, but the failure to include the 40,000 acres in the mix for potential Congressional wilderness designation. The ultimate substantive issue in these claims is whether the Federal Defendants violated the Wilderness Act when they excluded the 40,000 acres from their wilderness Eligibility Determination. Resolution of this issue is not dependent upon actual ORV use in Addition land.

It is unclear if Plaintiffs are correct when they state that in light of the 2010 NPS Eligibility Determination, “no recommendation for wilderness protection could legally include the 40,000 acres which NPS had ruled out as wilderness eligible.” (Doc. # 168, p. 18.) 12 Nonetheless, it is at least substantially less likely the 40,000 acres would be included in a recommendation. Further, it is undisputed that, in light of the 2010 re-assessment, the NPS is no longer managing the 40,000 acres to preserve eligibility for wilderness designation, as its policy would dictate if the 40,-000 acres had been found wilderness eligible. Nothing more need be done by the Federal Defendants to focus the Wilderness Act issue. The Wilderness Eligibility Assessment has been made, and there is no suggestion that anything is in the works to change it. Judicial action will not inappropriately interfere with further administrative action regarding the Wilderness Eligibility Assessment, since no additional action is necessary as to that determination. Plaintiffs have shown that a delayed review will cause them undue hardship since management of the 40,000 acres is no longer with an eye toward preserving wilderness eligibility, and the current management may itself undermine wilderness eligibility. The Court concludes that the Wilderness Act claims are ripe for adjudication.

*1272 (2) Standing

Defendants challenge only the first prong of the constitutional standing requirements, asserting that Plaintiffs lack standing because Plaintiffs have not established injury-in-fact that is concrete and particularized. Defendants assert that Plaintiffs’ only alleged injury — speculative future injury resulting from recreational ORV use in the Addition lands — is insufficient under constitutional standing principles. (Doc. # 164, pp. 4, 19-21.) Safari Club also challenges the standing of certain specific Plaintiffs. (Doc. # 165, pp. 3-16.) Plaintiffs disagree both generally and in connection with the Wilderness Act claims. (Doe. # 168, pp. 20-26; Doc. # 169, pp. 11-18.)

As noted above, the injury in the Wilderness Act claims is not ORV use on Additions land, but the failure to include the 40,000 acres as eligible for wilderness designation. The failure to include the 40,000 acres is not speculative and is not a future event. The decision has been made by the NPS, and the NPS’s post-oral argument submission establishes that the NPS is acting pursuant to its 2010 Wilderness Eligibility Assessment. The Court finds that all Plaintiffs have established the injury-in-fact constitutional standing requirement for the Wilderness Act claims.

The more substantial Wilderness Act standing issue, not raised by any Defendant, is the redressability prong of the constitutional standing requirements. In order for Plaintiffs to show that they have standing, they must demonstrate that their alleged injury is redressable by a favorable ruling or decision. Clapper, 133 S.Ct. at 1147; Fla. Wildlife Fed’n, Inc. v. South Fla. Water Mgmt. Dist., 647 F.3d 1296, 1303-04 (11th Cir.2011). The Eleventh Circuit has stated that redressability is “one of the more amorphous requirements of modern standing doctrine.” I.L. v. Alabama, 739 F.3d 1273, 1279 (11th Cir.2014). As a general matter, however, “[r]edressability is established when a favorable decision would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.” Fla. Wildlife Fed’n, 647 F.3d at 1303 -04 (quoting Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1290 (11th Cir.2010)).

In Wilderness Soc’y v. Norton, 434 F.3d 584, 591 (D.C.Cir.2006), the court stated that “[n]o legal consequences flow from the [NPS’s] recommendations” concerning wilderness designation, and held that the NPS’s failure to make wilderness recommendations or forward recommendations to the President were not redressable injuries because no court order could require Congress to designate particular lands as wilderness. It is certainly correct that a court order in this case could not require Congress to designate the 40,-000 acres as wilderness. A court order could, however, require the NPS to reconsider its Wilderness Eligibility Assessment in compliance with the Wilderness Act. That relief could in turn result in a return to the 2006 eligibility assessment, or some other assessment which included more or different acreage. While such relief would not necessarily result in Plaintiffs ultimately receiving the wilderness designation they desire, redressability does not require complete victory or full relief. Massachusetts v. EPA 549 U.S. 497, 525-26 , 127 S.Ct. 1438 , 167 L.Ed.2d 248 (2007). At the least, such a judicial order would bring the 40,000 acres within the NPS policy of managing the acres in a manner to preserve their eligibility for wilderness designation.

Because a favorable decision in this case could significantly increase the likelihood that all the Plaintiffs would obtain relief that directly redresses the Wilderness Act *1273 injury they suffered, the Court concludes that the Wilderness Act claims satisfy this prong of the constitutional standing standard. The Court further finds that all Plaintiffs have satisfied all other constitutional standing requirements, as well as the prudential standing requirements.

(3) APA Final Agency Action

Defendants argue that because the 2011 ROD does not authorize any actual recreational ORV use, and because such ORV use cannot occur until the NPS has issued a special rule authorizing it, there has been no “final agency action” as required for jurisdiction under the APA. (Doc. # 164, pp. 4-5.) Ip response, Plaintiffs assert that the Wilderness Eligibility Assessment is the final agency action for their Wilderness Act claims. The Magistrate Judge found that the wilderness eligibility determination by the NPS was “in a sense a ‘final agency action’ ” because under the NPS policy, the designation triggered management of the acres by the NPS to preserve their eligibility for wilderness designation. (Doc. # 123, p. 1318.)

The Court finds that for Wilderness Act purposes, there has been a final agency action by the NPS' regarding the 40,000 acres. Those acres have been excluded from wilderness eligibility by an NPS Wilderness Eligibility Assessment approved by the NPS Director. As' a legal consequence, the 40,000 acres will not be recommended for wilderness designation, and the NPS has already ceased managing them in a manner to preserve their wilderness character. Nothing remains' to be done by the NPS with regard to its wilderness determination 'of Addition lands. Therefore, the Court agrees with Plaintiffs that the Wilderness Eligibility Assessment approved by the NPS Director is a final agency action.

(4) Merits Discussion

The Report and Recommendation found that the 40,000 acre reduction in wilderness eligible acres was not arbitrary, capricious, an abuse of discretion, or in violation of the Wilderness Act. (Doc. # 123, pp. 1312-20.) All Plaintiffs object to these findings.

Plaintiffs assert the record establishes that the reassessment of wilderness eligible acres was manipulated to satisfy political demands for more ORV trails and was based on new criteria (variously referred to as rules of decision, principles, or assumptions) for which there was no adequate legal explanation and which were inconsistent with the Wilderness Act. The new NPS criteria were arbitrary and capricious, Plaintiffs assert, because they essentially required that areas be more pristine than Congress demanded of wilderness-eligible land. More specifically, Plaintiffs object to the 2010 NPS principles that the existence of human disturbance be determined by the existence of an unimproved trail used substantially over time and requiring substantial human intervention to restore (as opposed to the 2006 principle which looked only to elevated roads and trails which required significant engineering); that the determination of whether human imprint was “substantially unnoticeable” be determined from the perspective of a land manager, rather than a common visitor (as was done in 2006); and that the Addition’s wilderness eligibility assessment be considered separately from the Original Preserve (which was found in 1979 to contain no wilderness areas). Plaintiffs also object to the new principle which widened buffer corridors for ORV primary trails from 50-100 feet to half a mile (2,640 feet). The NPCA Plaintiffs further object that the Report and Recommendation *1274 failed to state any conclusion about whether the NPS acted “not in accordance with law” regarding the Wilderness Act. (Doc. # 126, pp. 9-22; Doc. # 127, pp. 8-18.)

Both the Federal Defendants and the Intervening Defendants oppose the objections, and seek to have the Court adopt the Report and Recommendation. (Doc. # 130; Doc. # 131.)

The Court has already adopted the factual background and procedural history as set forth in the Report and Recommendation and (with two exceptions) its Wilderness Act findings. (Doc. # 123, pp. 1300-16.) The Court also adopts the Report and Recommendation’s statements about the standard of review under the APA. (Doc. # 123, pp. 1317-18.) The remainder of this section of the Report and Recommendation recommends that the Court give the NPS’s interpretation of the phrase “imprint of man’s work substantially unnoticed” some deference and not pass judgment on the NPS’s wilderness eligibility designation. (Doc. # 123, pp. 1318-20.) The Court declines to accept the latter portion of this section of the Report and Recommendation.

While it is easy to get bogged down in minutiae, what the NPS was attempting to determine was which, if any, portions of the Addition land satisfied the definition of “wilderness” in the Wilderness Act. The Wilderness Act defines “wilderness” as follows:

A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

16 U.S.C. § 1131 (c). As the Report and Recommendation understated, the positions of the interested parties has been “fairly polarized.” (Doc. # 123, p. 1304.) No determination will please everyone, and recent history has demonstrated that almost any NPS determination related to recreational ORV use in the Preserve or Addition results in litigation. The record demonstrates extensive, good faith efforts by the NPS to make appropriate Wildlife Act assessments. After a de novo review of the record, the Court finds that the 2010 re-assessment of wilderness eligibility was not the result of manipulations based on politics, but the result of agencies attempting to arrive at appropriate decisions.

The Court also finds that the use of different assumptions or principles by the NPS in 2010 was not arbitrary, capricious, or an abuse of discretion, the new principles were not inconsistent with the Wilderness Act, and they did not violate the Wilderness Act. The administrative record establishes that neither the 2006 assumptions nor the 2010 assumptions are entitled *1275 to Chevron 13 deference. Both are, however, entitled to some limited deference under Skidmore v. Swift & Co., 323 U.S. 134 , 65 S.Ct. 161 , 89 L.Ed. 124 (1944), given the agency’s experience and expertise with recreational ORV use in the Preserve and its former use in the Addition.

While an unexplained change may be a basis to find an arbitrary and capricious determination, this “is reserved for rare instances, such as when an agency provides no explanation at all for a change in policy, or when its explanation is so unclear or contradictory that we are left in doubt as to the reason for the change in direction.” Lands Council v. Martin, 529 F.3d 1219, 1225 (9th Cir.2008). “Agency inconsistency is ‘at most’ a reason for concluding that an action is arbitrary and capricious only when the change in position is inadequately explained.” McMaster v. United States, 731 F.3d 881 , 892 n. 5 (9th Cir.2013) (citing Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981-82 , 125 S.Ct. 2688 , 162 L.Ed.2d 820 (2005)). As the Report and Recommendation found (Doc. # 123, pp. 1307, 1314-15), the NPS explained its reasons for the changes from 2006 to 2010, and these explanations have record support. Plaintiffs’ disagreement with the stated reasons does not render the changes unexplained. The Court finds that the different assumptions and explanations used by the NPS in 2010 were rational, and that the NPS’s actions were not arbitrary or capricious, an abuse of discretion, or in violation of the Wilderness Act.

The expansion of the width of all primary ORV trail corridors from roughly 50-100 feet to 2,640 feet (a half mile) requires more discussion. Under the Addition ORV Plan, areas within the half-mile buffer corridors are not eligible for wilderness designation, and the half-mile corridors result in other areas being too fragmented to manage as wilderness (e.g., all lands in the Western Addition). (Doc. # 123, pp. 1306, 1311.) Several explanations for this corridor expansion are in the record.

As the Report and Recommendation states (Doc. # 123, pp. 1307-08), the February 17, 2010 Wilderness Workshop reported that the buffers surrounding the Levee-28 Interceptor Canal, roadways, and active ORV trails in the 2006 assessment were ineligible for wilderness designation. (AR 7160.) In reaching this conclusion, the workshop noted that humans’ imprint along the man-made trail segments north of Interstate 75 are substantially noticeable when on the ground and that “man-made items are visible adjacent to the trail, including old buses, etc.” (Id.) In addition, motorized use would continue along the trails regardless of any future management action because access to private property in the Addition must be maintained. Given that motorized use of the trails would continue, it was determined that the lands adjacent to the trails were ineligible for wilderness designation because “these areas would not offer outstanding opportunities for solitude and a primitive and unconfined recreation. Without a buffer, such opportunities would not be possible due to continued motorized activity.” (Id.) 14

The discussion then turned to the width of the buffer. The workshop concluded *1276 that the buffer width established in 2006 “was too narrow to offer opportunities for solitude of primitive recreation. As a result, the trail buffer width was widened to a quarter mile on either side of the trail segments.” (AR 7160.) 15 Although humans’ imprint beyond the imprint of the trails varies throughout the Addition, the workshop , “concluded that the buffer should be applied consistently to ensure that these areas remain practicable for management.” (Id.) “In sum, the trails and a quarter mile buffer on either side of the trail are ineligible for wilderness because they are and will continue to be used to access private property and for tribal sustainable use and occupancy in the Addition.” (Id.)

The roadways north of Interstate 75 and the Levee-28 interceptor canal were also reviewed at the February 17, 2010 Wilderness Workshop. “Given past engineering, construction, and maintenance; continued motorized use and access for infrastructure maintenance (regardless of any future management actions), and that the previous width was too narrow to offer opportunities for solitude or primitive recreation, the area of ineligible land was expanded.” (AR 7161.) 16 The prior buffer distance of 35 to 50 feet was therefore expanded to a quarter mile on either side of Interstate 75, U.S. Highway 41, State Road 29, and the Levee-28 Interceptor Canal. (AR 7161.) 17

Following the February 17, 2010 Wilderness Workshop, concerns were raised within the NPS regarding the adequacy of the rationale for expanding the buffers from 50-100 feet to a half mile. (AR 7171-72, 7246, 7254-55, 7811.) A memo dated March 5, 2010, stated that some of the buffer zones out west are so narrow that parks are seeing uses inappropriate for wilderness. Narrow buffer zones also render necessary management actions difficult or impossible. For example, road washout in the northwest cannot be repaired because the only available realignment is in designated wilderness. (AR 7254-55.)

Following further investigation, the NPS augmented the description and rationale for the “non-wilderness corridors” in the May 2010 Wilderness Eligibility Assessment. The Assessment stated that expansion of all buffer corridors to a half mile was to accommodate “environmental protection and safety considerations, such as for fire management, exotic/invasive plant and animal control, hunting and retrieval of game, and traditional uses including the gathering of native materials.” (AR 7391.) As an example, the Wilderness Eligibility Assessment stated:

[A]ll constructed roads, trails, and canal embankments represent a change in elevation that provides an opportunity for non-native plant invasion. The road shoulder, even if represented by inches in change from natural wetland grade, provides space above standing water for seeds to germinate if a source is nearby. Most exotic invasives become established more easily in disturbed areas *1277 such as raised road shoulders and other significant constructed features. Specific management techniques, including mechanical treatment are required in these areas to maintain the ecological integrity of the Preserve.

(Id.) The NPS argues that the mechanically constructed trails in the Addition and the need for future removal of exotic vegetation by mechanical means properly precludes wilderness eligibility. (Doc. # 130, pp. 17-18.) The NPS also refers to side-cast debris and borrow pits in several graded areas. (AR 13295.) Plaintiffs assert that none of the rationales justify the dramatic increase in corridor width. (Doc. # 126, pp. 20-22; Doc. # 127, pp. 17-18.)

The Court begins by acknowledging that this buffer corridor expansion is entitled to some deference based upon the NPS’s experience and expertise with recreational ORV vehicles in the Preserve for over thirty years. The issue is not whether the Court agrees with the buffer width decision, but whether it is arbitrary and capricious. The Court agrees with the Federal Defendants that the mere fact that the buffer zones differ in size from 2006 to 2010 does not render the 2010 assessment arbitrary and capricious. (Doc. # 130, p. 17.) This does not, however, end the Court’s review.

It is not clear if Plaintiffs are challenging the half-mile corridors around the roadways and canal. If so, the Court finds that the record supports the half-mile buffer surrounding Interstate 75, U.S. 41 (also known as Tamiami Trail), State Road 29, Wagonwheel Road, and the Levee-28 Interceptor Canal. Interstate 75, 18 and to a lesser extent, U.S. 41, State Road 29, and Wagonwheel Road 19 will be subjected to continued motorized use as well as periodic maintenance and improvements regardless of any future management actions in the Addition. (AR 13034-35, 13045.) The area around the roads is not untrammeled by humans, and evidence of past disturbances from road construction remains noticeable, such as canals and borrow pits'. (AR 7388-89.) Disturbances from canal engineering, construction activities, and maintenance are also visible on the sides of the Levee-28 Interceptor Canal, which runs through the northeast portion of the Addition. (AR 7385, 12833.) Accordingly, the Court finds that the rationale in the record supports the half-mile buffer surrounding Interstate 75, U.S. 41, State Road 29, Wagonwheel Road, and the Levee-28 Interceptor Canal.

The Court also finds that the half-mile buffer for all primary ORV trails is supported by the record. While it is not intuitive that the same half-mile buffer needed for Interstate 75 is needed for the primary ORV trails, there is sufficient evidence in the record to support the NPS’s decision. The NPS determined that expanded buffer corridors were necessary for environmental protection and safety and noted that the frequency of administrative access requiring exceptions to wilderness restrictions would defeat the purpose of wilderness in the expanded buffer corridors. (AR 13500, 6489-90.) Furthermore, the half-mile buffer allows for enough flexibility for siting the primary trails and provides for future trail relocation, if necessary. (AR 12928.)

The Court therefore concludes that summary judgment in favor of Defendants on Count I of the Complaints is appropriate.

*1278 B. APA Violation Based on NPS Organic Act and Preserve and Addition Establishment Acts Violation

Count Two in Case No. 2:ll-cv-578 alleges that the Department of the Interior and the NPS violated the APA because the ORV plan for the Addition lands violated the National Park Service Organic Act of 1916 (the Organic Act) and the Establishment Acts creating the Preserve and Addition, and hence violated the APA requirement that agency action, findings and conclusions be “in accordance with law.” 5 U.S.C. § 706 (2)(A). Specifically, it is asserted that the Federal Defendants violated these Acts by (1) impairing the resources or values of the Addition, (2) improperly elevating recreational use of ORVs over conservation, and (3) administering the Addition in a manner inconsistent with the Acts. (Doc. # 1, ¶¶ 62-76.) The NPCA Plaintiffs have since clarified that their only claim in this count is that the NPS violated the mandate of the Acts that preservation predominate over recreation when in conflict. (Docs. •# 126, pp. 22-26; Doc. # 162, p. 2; Doc. # 168, p. 5.) A similar claim is asserted in Count Three in Case No. 2:ll-cv-647 (Doc. # 1, ¶¶ 96-101), but the PEER Plaintiffs continue to press an impairment claim (Doc. # 127, p. 30 n. 20).

Both the NPS Organic Act and the Preserve and Addition Establishment Acts are discussed in Defenders of Wildlife, 877 F.Supp.2d at 1275-78 , which is adopted here. The Court also adopts the legal discussion in the Report and Recommendation. (Doc. # 123, pp. 1337.) In short, under the NPS Organic Act “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.” Defenders of Wildlife, 877 F.Supp.2d at 1276 . The Preserve and Addition, on the other hand, have both a conservation mandate and a mandate to allow multiple uses, including recreational ORV use on designated trails. Id. at 1277-78 .

The 2011 ROD included the NPS’s “Determination of Impairment for the NPS Preferred Alternative.” (AR 13515-24, 13601-08.) This Determination found that the impact of the preferred alternative would not rise to the level of “impairment” of the Addition’s natural resources and values. (AR 13601-08.) All Plaintiffs assert that the ORV Plan for the Addition violates the mandate that preservation predominate over recreation when in conflict. Additionally, the PEER Plaintiffs assert that the impairment determination violates the Organic Act and the Establishment Acts because the level of recreational ORV use in the preferred alternative rises to the level of “impairment.”

(1) Ripeness

The Federal Defendants assert that these claims are not ripe “because the activity that forms the basis for Plaintiffs’ claims, recreational off-road vehicle (‘ORV’) use in the Addition, has not occurred and cannot lawfully occur absent a rulemaking.” (Doc. # 164, pp. 3, 16-17.) These Defendants argue that there is no binding precedent for a case like this, where the challenge to the administrative decision is based on activity (recreational ORV use) that is not occurring and cannot lawfully occur until the rulemaking process is completed. (Doc. # 164, p. 9.) The Federal Defendants further assert that their decision can be challenged “only if it directly authorized actions with real on-the-ground consequences.” (Doc. # 164, p. 10.) Plaintiffs, while recognizing that there are still steps to be taken before recreational ORV trails are actually opened, essentially argue that their chai- *1279 lenge to the overall extent and adverse impacts of the Plan’s ORV trails in the Addition is as ripe as it need be under existing case law. (Doc. # 168, pp. 5-11; Doc. # 169, pp. 23-28.)

As the Report and Recommendation accurately summarized, the preferred alternative which was accepted for recreational ORV use in the Addition incorporated many of the features of the Preserve ORV Plan, including that all ORV use be restricted to designated trails, nightly and seasonal closures of ORV trails, discretionary trail closures in the interest of safety and resource protection, and an ORV permit and inspection program. (Doc. # 123, pp. 1308-09.) The preferred alternative included approximately 130 miles of ORV trails as a conceptual primary trail network, with actual designation of trials to be accomplished in phases based on field conditions, proximity to access points, levels of trail stabilization necessary, and trail monitoring needs. The ORV trail system would be phased in over time, with additional trails designated, closed, relocated, maintained, or altered under an adaptive management system depending upon the impacts of the ORV trails on the Addition resources.

The Court finds that most components of these claims are ripe for adjudication. In addition to the general ripeness discussion above, two cases guide the Court’s determination. In Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 , 118 S.Ct. 1665 , 140 L.Ed.2d 921 (1998), the Supreme Court held that a non-NEPA judicial challenge asserting that a national forest management Plan wrongly favored logging and clearcutting was not ripe for adjudication. The Plan itself did not authorize the cutting of any trees, although it made logging more likely because the existence of a Plan was a precondition to any logging. Despite the Plan, the Forest Service had to take the following additional steps before it could permit actual logging: (a) “propose a specific area in which logging will take place and the harvesting methods to be used”; (b) “ensure that the project is consistent with the Plan,”; (c) “provide those affected by proposed logging notice and an opportunity to be heard”; (d) “conduct an environmental analysis pursuant to the National Environmental Policy Act of 1969 (NEPA) to evaluate the effects of the specific project and to contemplate alternatives”; (e) “subsequently make a final decision to permit logging, which affected persons may challenge in an administrative appeals process and in court”; and (e) “revise” the Plan “as appropriate.” Id. at 729-730 , 118 S.Ct. 1665 . The Supreme Court found there was no hardship because the Plan did not command anyone to do or to refrain from doing anything, did not inflict significant practical harm on the interests advanced by the plaintiff, and did not force the plaintiff to modify its behavior. The Supreme Court further found that judicial review at that time could hinder the agency’s efforts to refine its policies through revision of the Plan or application of the Plan in practice. Further, judicial review at the time would not have the benefit of the focus that a particular logging proposal would provide. Id. at 732-737 , 118 S.Ct. 1665 .

In Wilderness Soc’y v. Alcock, 83 F.3d 386 (11th Cir.1996), the Eleventh Circuit found that a challenge to timber harvest provisions of a national forest management Plan was not ripe for judicial review. The Plan set timber harvest goals and possible future timber harvest levels, but required another level of decisionmaking that would determine precisely what site-specific action would be taken pursuant to the Plan. No harvesting would be done until the second-stage decisions were made, and a challenge to both the site-specific action and the Plan-level decisions could be made *1280 after the second-stage decisions were made. While the Plan made it “more likely” that there would be timber harvesting, it was not yet known when or how an injury to the plaintiffs would occur. Id. at 390-91 .

The Court agrees with Plaintiffs that the specifics of the primary recreational ORV trails are not necessary to make these claims fit for adjudication because the NPS is already implementing the 2011 ROD with regards to recreational ORV use in the Addition. While the availability of money and resources will undoubtedly impact the implementation of the Plan, it is undisputed that the NPS has begun to implement the Plan and has begun to spend money, even without a final rule. There has been construction of a recreational access point at the Interstate 75 Mile Marker 51 for ORV use (Doc. # 164, p. 5), which was authorized by the 2011 ROD (AR 12900). The NPS anticipated, and has now started, the construction of two recreational access facilities at the Interstate 75 Mile Marker 63, which would include paved parking lots and other heavy construction, as authorized by the 2011 ROD. (Doc. #164, pp. 5-6; AR 12900; Doc. # 169-1.) The PEER Plaintiffs suggest that NPS personnel may have already begun “groundtruthing” the Addition ORV trails. (Doc. # 169, p. 4.)

The NPS’s conduct is already affecting Plaintiffs, and there would be hardship to Plaintiffs if judicial review were denied. There is no undue judicial interference with further formulation of the details of the Plan, and there is not a need for further factual development of the record as to the primary trails. Additionally, the Court finds that Defendants have overstated the significance of the requirement of a new rule before ORV use could actually occur. In the Preserve, this new rule was adopted virtually overnight. Defenders of Wildlife, 877 F.Supp.2d at 1285-1290 . The administrative journey required in this case is far shorter than that required in Ohio Forestry, and has already begun in earnest.

Two components of the PEER Plaintiffs’ challenge are excluded from this finding and are not ripe. Plaintiffs’ attack on the general adoptive management of the Plan is the type of programmatic challenge found premature in Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 , 110 S.Ct. 3177 , 111 L.Ed.2d 695 (1990). Additionally, the PEER Plaintiffs’ attempt to challenge secondary trails is premature. Everyone agrees that before secondary trails may be allowed, the NPS must comply with the NEPA requirements, which will provide an opportunity to have meaningful input and an opportunity for objections. (Doc. # 123, pp. 1330-31.) See e.g. Ala. v. United States Army Corps of Eng’r (In re MDL-1824. Tri-State Water Rights Litig.), 644 F.3d 1160, 1181-85 (11th Cir.2011) (matter not ripe where various required written reports, including NEPA requirements, were not completed).

(2) Standing

Defendants assert that Plaintiffs lack standing because their asserted injuries are based on conjecture as to what may occur in the Addition land based on what they claimed to have observed in the Preserve. Because recreational ORV use is not currently authorized, Defendants argue that no Plaintiff has or can assert a present injury-in-fact. (Doc. # 164, pp. 19-21.)

Safari Club further asserts that the impact of recreational ORV use on the environment is not now, nor was it when the Complaints were filed in October and November 2011, sufficiently certain or imminent. This is so because establishment of the ORV trails has not occurred, and is not *1281 certain to ever occur given the need for additional administrative steps and funding constraints. 20 Safari Club also asserts that Plaintiffs do not allege sufficiently concrete plans to visit the Addition at a time when ORV use might be occurring. (Doc. # 165, pp. 3-10.) Safari Club further asserts that PEER, the Florida Biodiversity Project, and Wilderness Watch have such glaring standing deficiencies that they should not be further considered in determining whether any of the Plaintiffs in Case No. 2:ll-cv-647 have standing. (Doc. # 165, pp. 10-11.) Finally, Safari Club asserts that the Court must find at least one Plaintiff with standing in each of the two cases in order to allow each case to proceed. (Doc. # 165, pp. 12-14.)

The Supreme Court recently discussed the injury-in-fact requirement of standing in Susan B. Anthony List v. Driehaus, — U.S. —, 134 S.Ct. 2334 , 189 L.Ed.2d 246 (2014). The Court stated:

This case concerns the injury-in-fact requirement, which helps to ensure that the plaintiff has a personal stake in the outcome of the controversy. An injury sufficient to satisfy Article III must be concrete and particularized and actual or imminent, not conjectural or hypothetical. An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.

Driehaus, 134 S.Ct. at 2341 (internal citations and quotation marks omitted.)

In this case, the Court is satisfied that Plaintiffs have established at least a substantial risk that the harm they assert (recreational ORV use in the Addition) will occur due to the Federal Defendants’ actions (approval of the 2011 ROD and related documents). The NPS is taking steps in furtherance of the 2011 ROD, including steps which will lead directly to ORV use in the Addition. It is also spending money in furtherance of the Plan. Plaintiffs need not wait for the first. ORV track to be made in the dirt before claiming an actual injury. The Court therefore finds that Plaintiffs have standing to assert the claims in these counts.

The Court also finds that PEER, the Florida Biodiversity Project, and Wilderness Watch have established standing to challenge the deviations from past practice, and Safari Club’s argument to the contrary (Doc. # 165, pp. 11-12) is rejected. The Court does agree with Safari Club that consolidation of the two cases does not change the requirement that there must be at least one plaintiff with standing in each case (Doc. # 165, pp. 12-14), but that requirement is satisfied in these two cases.

(3) APA Final Agency Action

Defendants argue that because the 2011 ROD does not authorize any recreational ORV use, and because such activity cannot occur until the NPS has issued a special rule authorizing it, there has been no’“final agency action” which gives the court jurisdiction under the APA as to ORV use. Defendants further assert that the 2011 ROD is best understood as an interim step, not a final agency action from which legal consequences will flow with respect to ORV use. In the absence of such a final agency action, Defendants as *1282 sert that the United States remains immune from judicial review. (Doc. # 164, pp. 4-5, 22-23.)

The Eleventh Circuit has held that a ROD is indeed a final agency action. Defenders of Wildlife v. U.S. Dep’t of Navy, 733 F.3d at 1114-15 (holding that both a ROD and a Biological Opinion were final agency actions subject to judicial review). The Supreme Court also found a NPS policy regulation which did not require anyone to do anything to be a final agency action. National Park Hospitality Ass’n, 538 U.S. at 812 , 123 S.Ct. 2026 . The 2011 ROD has significant legal consequences and impacts regardless of whether ORV use is actually occurring. The ROD is needed for the ORV use to occur, and the NPS has begun taking steps in furtherance of the 2011 ROD which impact the ultimate implementation of recreational ORV use. This is not a case like In re MDL-1824 Tri-State Water Rights Litig., 644 F.3d at 1181-85 , where various required written reports (including NEPA requirements) had not even been prepared. Here, it is clear that a decision-making process has been consummated, and implementation has begun (although it is far from completed).

(4) Merits Discussion

The Report and Recommendation concluded that the Addition ORV Plan did not violate the Organic Act or the Establishment Acts. The Report and Recommendation states in pertinent part: “Because the Court has recommended that the administrative record does not reflect that the NPS’s decisions were arbitrary and capricious in these areas, the Court recommends that Plaintiffs motion for summary judgment as to Counts Two and Five be denied.” (Doc. # 123, p. 1337.)

Plaintiffs object that the Report and Recommendation failed to resolve the dispute about the meaning and mandate of the Organic Acts, and simply brushed aside their contentions with little discussion after conflating the procedural NEPA issues with the substantive claims in these counts. (Doc. # 126, pp. 29-32; Doc. # 127, pp. 25-30.) The Federal Defendants respond that Plaintiffs failed to show a violation of the Acts. (Doc. # 130, pp. 35-37.)

The Court sustains Plaintiffs’ objection to this portion of the Report and Recommendation. “The requirements of NEPA’are purely procedural and do 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 . Whether an agency complies with NEPA is a separate and distinct legal issue from whether its decision violates substantive law. Thus, to paraphrase a prior case, it would not necessarily violate NEPA for the NPS to decide to allow recreational ORV use in all portions of the Addition knowing it would cause the permanent, irreversible destruction of the entire Addition. Van Antwerp, 526 F.3d at 1361-62 . Such a decision, however, would undoubtedly violate other federal statutes. Therefore, the Court declines to accept this portion of the Report and Recommendation (Doc. # 123, p. 1337, first full paragraph) and reviews the matter de novo.

Plaintiffs argue that the principal purpose of the Preserve and Addition is conservation, and that recreation, including authorized hunting and ORV use, must always be a secondary consideration. Thus, Plaintiffs assert, all management activities must be directed toward maintaining natural and scientific values, with accommodation. of other uses limited to where and when they'do not interfere with *1283 or disrupt preservation. While Plaintiffs concede that the NPS has some discretion, they assert that under the Organic Act and the Establishment Acts, this discretion must always be exercised in a manner to best protect preservation in the Preserve and Addition. Plaintiffs argue that the Organic Act mandates that preservation predominate when in conflict with recreation, and the Preserve and Addition Establishment Acts mandate that the NPS manage these areas to assure their natural and ecological integrity in perpetuity. (Doc. # 126, pp. 29-31.)

The PEER Plaintiffs also argue that the Federal Defendants violated these Acts (and some Executive Orders) by significantly deviating from its longstanding management of the Preserve without explanation. Three such unexplained deviations are asserted: (1) authorization for extensive ORV use in prairies in the Addition, while ORV use in all prairies in the Preserve is prohibited; (2) authorization for several ORV trails that traverse Mullet Slough in the Addition, while ORV use is prohibited in the portion of Mullet Slough in the Preserve; and (3) an expanded definition of “secondary trails” from that applicable to the Preserve. (Doc. # 127, pp. 25-30.)

The overarching legal principles Plaintiffs seek to establish are simply not that easy. The conservation mandate of the NPS Establishment Act was tweaked by the subsequent Preserve Act and the Addition Act, both of which required multiple use management, which included the allowance of hunting and at least some recreational ORV use. As was previously stated, multiple use management is “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.” Defenders of Wildlife, 877 F.Supp.2d at 1278,, (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58 , 124 S.Ct. 2373 , 159 L.Ed.2d 137 (2004)). The Court rejects Plaintiffs’ argument that every NPS decision must favor preservation if there is a conflict with another goal. This would not be “striking a balance.” The Court finds that the substantive decisions by the NPS did not violate the Organic Act or the Establishment Acts.

The PEER Plaintiffs also object to unexplained deviations from past practices. First, Plaintiffs assert that the authorization of extensive ORV use in prairies in the Addition, while ORV use in all prairies in the Preserve is prohibited, violates the Organic Act and the Establishment Acts. The NPS found that ORV use would have long term, minor, adverse, and localized impact on prairies. (AR 12979, 13167-68.) The NPS arrived at these findings by assessing the sustainability of the ORV trails in the Addition and analyzing the impacts of implementing the alternatives set forth in the Addition GMP/EIS.

To develop a sustainable trail system, the NPS mapped the locations of existing roads, trails, and other disturbed areas in the Addition using maps, aerial photographs, and global positioning system equipment. The “GMP planning team” then conducted field investigations to determine which roads and trails could sustain ORV use. (AR 12927.) A “sustainable trail,” as defined by the NPS, is “a travel surface that can support currently planned and future uses with minimal impact to the natural systems of the area. Sustainable trails have negligible soil loss or movement and allow naturally occurring plant communities to inhabit the area; however, pruning, removal of certain plants, and stabilization over time may be required to accommodate recreational use.” (Id.) During field investigations, the “GMP planning team” collected informa *1284 tion on vegetation and soil type, trail width, level of use, and the presence of ruts, water, exotic plants, trail improvements, and rare or protected species to aid in the assessment of trail sustainability. (Id.)

The trails in the prairies and marshes of the Addition were easily distinguished on aerial photography due to the visibility of tracks made by ORVs. Because prairies appear to be “the vegetation community most impacted by ORV use” (AR 12979), the ORV trails “would be cited [sic] to avoid prairies and marshes to the greatest extent possible” (AR 13167). Nonetheless, “some adverse impacts on the margins of these plant communities could occur from ORV use.” (AR 13167.) Beneficial impacts would also accrue from ORV management and ecosystem restoration projects. (AR 13168.)

The NPS found the trails traversing the prairies in the Addition to be sustainable and determined that the impacts of ORV use would be long term, minor, adverse, and localized. The ORV trail analysis of the Preserve, on the other hand, revealed that “many of the prairie areas were so heavily trafficked that mapping individual trails was impossible.” (AR 13720.) While the NPS closed all ORV trails in the Preserve’s marl prairies, it did authorize ORV use on a limited segment of trails in other prairies. (AR 13620,13761-62.) Accordingly, the Court finds that the authorization of ORV usé in the prairies of the Addition was not an unexplained deviation from past practices.

Second, the PEER Plaintiffs assert that the authorization of several ORV trails traversing Mullet Slough in the Addition, while ORV use is prohibited in the portion of Mullet Slough in the Preserve, violates the Organic Act and the Establishment Acts. This reversal of the NPS’s prior position was determined through the same process outlined above. The NPS conducted on the ground investigations of the primary ORV trails in Mullet Slough and a sustainability analysis was performed. A portion of the trail in Mullet Slough was an old oil and gas access road that required significant engineering and would require active restoration techniques to return it to its natural condition. (AR 7159.) “[N]ot only was the trail originally created by machinery, but will continue to be used by machinery, namely ORVs, to access private property in the area.” (AR 7159, 13297.) Because the NPS investigated the trails in Mullet Slough and determined that they can support currently planned and future ORV use with minimal impact to the natural systems of the area, the Court finds that the NPS’s authorization of ORV use does not violate the Organic Act or the Establishment Acts.

Third, plaintiffs assert that the expanded definition of “secondary trails” from that applicable to the Preserve violates the Organic Act and the Establishment Acts. As discussed above, this claim is not ripe for judicial review. Accordingly, the Court concludes that the Federal Defendants’ deviation from past practices were adequately explained and do not violate the Organic Act or the Establishment Acts.

C. APA Violation Based on Executive Orders Violation

Count Three of Case No. 2:ll-ev~578 alleges that the Department of the Interior and the NPS violated the APA because the ORV plan for the Addition lands violated 36 C.F.R. § 4.10 (NPS Rule 4.10), and hence violated the APA requirement that agency action, findings, and conclusions be “in accordance with law.” 5 U.S.C. § 706 (2)(A). Specifically, Plaintiffs assert that the ORV plan for the Addition fails to comply with Executive Orders 11,644 and 11,989, as implemented by NPS Rule 4.10. Plaintiffs assert that the Federal Defendants violated Rule 4.10 by (1) permitting *1285 ORV use in areas in the Addition when such use will adversely affect the natural, aesthetic, and scenic values; and (2) by designating ORV trails which do not minimize damage to soil, watershed, vegetation, and other resources of the Addition, do not minimize harassment of wildlife or significant disruption of wildlife habitats, and do not minimize conflicts with other recreational users. (Doc. # 1, ¶¶ 77-85.) A similar claim is set forth in Count Four of Case No. 2:ll-cv-647.

The Court summarized the Executive Orders in Defenders of Wildlife, 877 F.Supp.2d at 1278-79 , which is adopted here. The Court also adopts the discussion of the Executive Orders in the Report and Recommendation. (Doc. # 123, pp. 1296-98, 1337-39.) In sum, 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. Exec. Order 11,989, 42 Fed.Reg. 26959, § 2 (May 24,1977) (amending Exec. Order 11,644, 37 Fed.Reg. 2877, § 9(a) (Feb. 8, 1972)). 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).

(1) Ripeness, Standing, and APA Final Agency Action

Defendants assert that the Executive Order claims are not ripe for judicial review because no trails in the Addition have yet been designated or opened for recreational ORV use and a special regulation and order is required before recreational ORV use in the Addition would be allowed. Thus, Defendants argue, delaying review would not result in a hardship to Plaintiffs and would allow further development of the issues presented by the Executive Order claims. (Doc. # 164, pp. 13-14.)

The Court’s discussion of ripeness, standing, and final agency action concerning the Organic Act and Establishment Acts applies equally here. The Court finds that the Executive Order claims are ripe for adjudication, plaintiffs have standing to bring their challenges, and the 2011 ROD is a final agency action as it relates to the Executive Orders.

(2) Merits Discussion

The NPCA Plaintiffs assert that the NPS failed to explain how it complied with the minimization of impact requirement of the Executive Orders. (Doc. # 126, pp. 31-32.) The PEER Plaintiffs assert the NPS violated the Executive Orders by authorizing a 130 mile primary trail network without complying with minimization criteria required by the Executive Orders. (Doc. # 127, pp. 29-30.) The Report and Recommendation found that the NPS conduct was subject to judicial review for compliance with the Executive Orders under the APA standard. (Doc. # 123, pp. 1337-38.) The Report and Recommendation then appears to reject the Executive Order claim because of its prior finding that there was no NPS decision which was arbitrary and capricious under NEPA. (Doc. # 123, p. 1339.)

As discussed earlier, NEPA contains procedural requirements, not substantive *1286 obligations. The NEPA determinations are not controlling as to compliance with substantive obligations. Therefore, the Court declines to accept this portion of the Report and Recommendation (Doc. # 123, p. 1339), and reviews the matter de novo.

The Executive Orders require that trails be located to minimize damage to soil, watershed, vegetation, or other resources, and to minimize harassment of wildlife or significant disruption of wildlife habitats. The Court’s de novo review of the record establishes that the minimization decisions in the 2011 ROD were not arbitrary or capricious and did not violate the Executive Orders.

As previously discussed, the NPS assessed the sustainability of the existing roads and trails in the Addition and analyzed the impacts of implementing the ORV plan. (AR 12927, 13160-200.) To minimize the impacts of ORV use,'the NPS developed indicators, standards, and management strategies that are designed to protect resources and enhance visitor experience, including strategies to minimize and manage adverse impacts from motorized use. (AR 12918-23.) The NPS also identified “mitigation measures and best management practices that would be applied to avoid or minimize potential impacts from implementation of the action alternatives.” (AR 12945-52.) The NPS has articulated its compliance with the minimization criteria, and the Court finds that the NPS’s actions were not arbitrary or capricious or in violation of the Executive Orders. Accordingly, Defendants are entitled to summary judgment on Count Three of Case No. 2:ll-cv-578 and Count Four of Case No. 2:ll-ev-647.

D. APA Violation Based on NEPA Violation

Count Four in Case No. 2:ll-cv-578 alleges that the Department of the Interior and the NPS violated the APA by acting arbitrarily and capriciously and not in accordance with law because they failed to take a “hard look” at the environmental consequences of the actions selected in the 2011 ROD in violation of the National Environmental Policy Act (NEPA). (Doc. # 1, ¶¶ 86-90.) Count Five in Case No. 2:ll-ev-647 sets forth a similar claim.

The Court adopts the discussion of the legal requirements of NEPA as set forth in the Report and Recommendation. (Doc. # 123, pp. 1320-21.) In sum, NEPA was designed to infuse environmental considerations into government decision-making. NEPA requires that when a federal agency proposes a “major Federal action[ ] significantly affecting the quality of the human environment,” it must prepare and file an environmental impact statement (EIS) that examines the environmental impacts of the proposed action, compares the action to other alternatives, and discusses means to mitigate any adverse environmental impacts. 42 U.S.C. § 4332 (2)(C). When an EIS is required, the federal agency first prepares a draft EIS and solicits public comments. The agency must then “assess and consider” the comments in drafting the final EIS, and publish a notice of availability of the final EIS in the Federal Register. When the agency makes its final decision regarding the proposed action and alternatives discussed in the final EIS, the agency prepares a Record of Decision (ROD) identifying the agency’s action and the alternatives it considered, stating what the decision was, identifying all alternatives considered by the agency, and stating whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why not. After issuing the ROD, the agency is then *1287 authorized to implement its decision. See generally Defenders of Wildlife, 733 F.3d at 1109 . NEPA imposes procedural requirements only, and does not mandate any specific outcome. Citizens for Smart Growth, 669 F.3d at 1211 . A reviewing court asks only whether the agency took a “hard look” at environmental consequences. Id.

The Report and Recommendation rejected Plaintiffs’ challenges and found that the NPS had taken a “hard look” at the impact of ORV use on hydrologic resources, the Florida panther, natural soundscapes, non-motorized visitors, and vegetation communities and sloughs, and that its reliance on the Original Preserve ORV Management Plan was not improper. (Doc. # 123, pp. 1321-29.)

(1)Ripeness

Defendants assert that the NEPA claims are not ripe for judicial review. Defendants argue that the 2011 ROD does not, in and of itself, authorize any recreational ORV use in the Addition, that no such use is occurring, and that no recreational ORV trails have been or can be designated without a special rule. Until such a rulemaking process is complete, Defendants assert that it is impossible to predict the precise contours of the recreational ORV use in the Addition land. Therefore, Defendants assert, judicial review is premature under Ohio Forestry. (Doc. # 164, pp. 14-16.)

In Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11th Cir.2006), the Eleventh Circuit reversed a district court’s finding that challenges to changes in certain forest plans were not ripe for judicial review. The Court summarized the usual ripeness standard, then noted that “NEPA adds an important twist.” Id. at 1174 . The Court stated:

In a NEPA suit, the issue presented for review typically is whether the agency has complied with the statute’s particular procedures. Because of the rather special nature of the injury (that is, the failure to follow NEPA), the issue is ripe at the time the agency fails to comply. “Hence a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 737 , 118 S.Ct. 1665 , 140 L.Ed.2d 921 (1998). As we see it, that is the end of the proper ripeness analysis in a NEPA suit.

Id. Defendants argue the current case is factually distinguishable, but the Court finds no material factual distinctions. It is the alleged lack of proper procedures which is the focus of the NEPA claims, not the ultimate environmental outcome. Plaintiffs’ procedural injuries are as ripe as they are going to get, even if no recreational ORV trails are ever used in the Addition. The Court therefore finds that the NEPA claims are ripe for adjudication.

(2) Standing and APA Final Agency Action

For the same reasons discussed relating to the Organic and Establishment Act claims, the Court finds that all Plaintiffs have standing to assert the NEPA challenges and that 2011 ROD is a final agency action for NEPA purposes. See Defenders of Wildlife, 733 F.3d at 1109 .

(3) Merits Discussion

Plaintiffs object to the Report and Recommendation’s NEPA findings, asserting that due to the lack of funding and other resources, the NPS violated NEPA by issuing the 2011 ROD without obtaining needed studies relating to the Addition’s critical hydrology, the endangered Florida *1288 panther, natural soundscapes, and vegetative communities. Plaintiffs also object to the finding that the decision to allow ORV trails through Mullet Slough was not arbitrary. (Doc. # 126, pp. 22-29.) Plaintiffs further assert that the Report and Recommendation erred in relying on the NPS’s adaptive management plan when (1) more scientific information was essential to an informed decision and studies could be performed to provide the needed information; (2) the adaptive management plan is so lacking of specifics in key respects that it is simply an open-ended grant of discretion to the NPS and not an acceptable substitute for needed studies; (3) the plan failed to adequately consider impacts on the Florida panthers, soundscapes, and non-motorized visitors; and (4) the plan failed to study or evaluate the encircled pockets north of Interstate 75 which would be surrounded on all sides by ORV trails and Interstate 75, creating noise and other human disturbance harmful to the Florida panther and non-motorized visitors. Plaintiffs also assert that the Report and Recommendation erred in finding that the NPS had adequately considered impacts on hydrology and vegetative communities and sloughs south of Interstate 75. (Doc. # 126, pp. 11-12.)

After a de novo review, the Court agrees that the NPS took the required hard look at the impact of ORV use on the hydrologic resources in the Addition. The Court adopts the Report and Recommendation’s discussion of “The impact of ORV use on hydrologic resources” (Doc. # 123, pp. 1321-23), and Plaintiffs’ objections are overruled. The Court also agrees that the NPS took the required hard look at the impact of ORV use in the Addition on the Florida panther. The Court adopts the Report and Recommendation’s discussion of “The impact of ORV use on the Florida panther” (Doc. # 123, pp. 1323-25), and Plaintiffs’ objections are overruled. The Court further agrees that the NPS took the required hard look at the impact of ORV use in the Addition on natural soundscapes and non-motorized visitors. The Court adopts the Report and Recommendation’s discussion of “The impact or ORV use on natural soundscapes and non-motorized visitors” (Doc. # 123, pp. 1325-27), and Plaintiffs’ objections are overruled. The Court also agrees that the NPS took the required hard look at the impact of ORV use in the Addition on vegetation communities and sloughs. The Court adopts the Report and Recommendation’s “The impact of ORV use on vegetation communities and sloughs” (Doc. # 123, pp. 1327-29), and Plaintiffs’ objections are overruled. Finally, the Court agrees with, and therefore adopts, the Report and Recommendation’s “NPS’s reliance on the Original Preserve ORV Management Plan.” (Doc. # 123, pp. 1329-30.) 21 Plaintiffs’ objections are overruled.

E. APA Violation

Count Five in Case No. 2:ll-cv-578 alleges that the Department of the Interior and the NPS violated the APA because certain portions of the ORV plan for the Addition land were arbitrary and capricious and an abuse of discretion. Plaintiffs assert that the Addition ORV plan was arbitrary and capricious for the reasons set forth in the NEPA claim, for allowing recreational ORV use in the Addition at all, and for allowing recreational ORV use in inappropriate areas of the Addition. (Doc. # 1, ¶¶ 91-93.) A similar claim is set forth in Count Six in Case No. 2:ll-cv-647.

*1289 This appears - to be a “freestanding” APA claim. The legal principles governing the APA and the underlying statutes have been discussed previously.

(1) Ripeness, Standing, and APA Final Agency Action

Defendants assert that the freestanding APA claims are not ripe for judicial review (Doc. # 164, p. 17), plaintiffs lack stánding (Doc. # 164, pp. 19-21), and the 2011 ROD is not a final agency action (Doc. # 164, p. 22.) For the reasons discussed earlier, the Court rejects each of these arguments as they relate to this APA claim.

(2) Merits Discussion

The Report and Recommendation state's in pertinent part: “Because the Court has recommended that the administrative record does not reflect that the NPS’s decisions were arbitrary and capricious in these areas, the Court recommends that Plaintiffs motion for summary judgment as to Counts Two and Five be denied.” (Doc. # 123, p. 1337.) Plaintiffs object that the Report and Recommendation conflated the procedural NEPA issues with the substantive claims in these counts. (Doc. # 126, pp. 29-32; Doc. #127, pp. 25-30.) The Court sustains Plaintiffs’ objection for the reasons stated earlier. As discussed with regard to Count'Two, whether an agency complies with NEPA is a separate and distinct legal issue from whether its decision violates substantive law. Therefore, the Court declines to accept this portion of the Report and Recommendation (Doc. # 123, p. 1337, first full paragraph), and reviews the matter de novo.

Plaintiffs assert that the Addition ORV plan was arbitrary and capricious because the NPS failed to comply with the NEPA requirements. As the Court has found, the Federal Defendants did not fail to comply with the NEPA requirements, and therefore Plaintiffs’ APA claims are without merit as to this basis.

Plaintiffs also assert that the Addition ORV plan was arbitrary and capricious for allowing recreational ORV use in the Addition at all. As the Court stated in connection with its discussion of the Organic Act and the Establishment Acts, both the Preserve and the Addition were intended to have ORV use, albeit with restrictions. Barring all ORV use is the Addition, would violate these Acts, and therefore failure to bar ORV use in the Addition was not a violation of the APA.

Plaintiffs further assert that the Addition ORV plan was arbitrary and capricious for allowing recreational ORV use in inappropriate areas of the Addition. As previously discussed, the NPS' assessed the sustainability of the ORV trails and impact of ORV use in the Addition and has articulated its compliance with the minimization criteria. Accordingly, the Court finds Plaintiffs’ argument to be without merit.

F. Endangered Species Act and APA, Biological Opinion

Count Six in Case No. 2:ll-cv-578 alleges that the U.S. Fish and Wildlife Service (FWS), the Department of the Interior, and the NPS violated the Endangered Species Act (ESA) and the APA by obtaining an arbitrary and capricious Biological Opinion from the FWS and violating various independent duties under the ESA. (Doc. # 1, ¶¶ 94-103.) A similar claim is set forth in Count Two in Case No. 2:11-cv-647.

The Court adopts the legal discussion of the ESA as set forth in the Report and Recommendation (Doc. # 123, pp. 1330-31), and in Defenders of Wildlife, 877 F.Supp.2d at 1277, 1304-07 . In sum, Congress enacted the ESA to ensure “that all *1290 Federal departments and agencies ... seek to conserve endangered species and threatened species.” 16 U.S.C. § 1531 (c)(1). The ESA provides for the listing of species as threatened or endangered and the designation of their critical habitat. As relevant here, the Secretary of the Interior administers the ESA through the FWS.

Under certain circumstances, the ESA requires that a federal agency consult with the appropriate expert agency. In determining whether formal consultation with the FWS is necessary, the federal agency first prepares a biological assessment which evaluates the potential effects of its proposed action on listed and proposed species and designated and proposed critical habitat and determines whether the species or habitat are likely to be adversely affected by the action. 50 C.F.R. § 402.12 (a). If the biological assessment determines that an action “may affect” a listed species or critical habitat, formal consultation is required.

If formal consultation is necessary, the FWS is then responsible for formulating a “biological opinion as to whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14 (g)(4). The biological opinion must include a “detailed discussion of the effects of the action on listed species or critical habitat” in addition to the expert agency’s ultimate opinion on jeopardy. 50 C.F.R. § 402.14 (h)(2). In preparing the biological opinion, the FWS is to use “the best scientific and commercial data available.” 16 U.S.C. § 1536 (a)(2); 50 C.F.R. § 402.14 (g)(8). If the FWS concludes the action is likely to jeopardize the continued existence of listed species, it must suggest “reasonable and prudent alternatives” which can be taken by the federal agency to ensure that its action does not jeopardize the continued existence of the species. 16 U.S.C. § 1536 (b)(3)(A).

The ESA prohibits the “taking” of any member of a listed endangered or threatened species. “Take” is defined broadly as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532 (19). The ESA also directs federal agencies to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species” or destroy critical habitat. 16 U.S.C. § 1536 (a)(2).

When a federal agency has been advised that the proposed action will not jeopardize the continued existence of listed species but will result in the taking of some species incidental to that action, the FWS’s biological opinion must include an incidental take statement specifying the amount or extent of anticipated take. The incidental take statement must discuss reasonable and prudent measures necessary or appropriate to minimize the impact of the incidental take. Any take in compliance with the terms and conditions of an incidental take statement is lawful. If the FWS decides that no take is likely from the implementation of a proposed federal action, no incidental take statement is required in the biological opinion. See generally Defenders of Wildlife, 733 F.3d at 1111-13 .

(1) Ripeness, Standing, and APA Final Agency Action

Defendants concede that a Biological Opinion is a final agency action which is the subject of judicial review. (Doc. # 164, p. 17.) Defendants nonetheless argue that this claim is not ripe for judicial review *1291 because the NPS has not yet taken any actions in reliance on the Biological Opinion that have injured Plaintiffs’ interests. Defendants argue that the NPS has yet to authorize recreational ORV use, designate secondary trails, or authorize hunting in the Addition land, and this claim will not ripen until the NPS authorizes recreational ORV use, designates secondary trails, and implements a hunting management plan. Defendants also assert that Plaintiffs lack standing to bring this challenge. (Doc. # 164, pp. 18-19.)

The Court disagrees with Defendants’ arguments to the extent they relate to primary ORV trails. Nothing need occur which will make Plaintiffs’ challenge to the Biological Opinion more ripe than it is now as to primary ORV trails. The issues are fit for judicial review and there would be a hardship to Plaintiffs if judicial review were withheld. The Biological Opinion represents the culmination of the FWS’s decisionmaking process, and the FWS’s role “is terminated with the issuance of the biological opinion.” 50 C.F.R. § 402.14 (Z). A Biological Opinion alters the legal landscape by allowing persons to comply with it and avoid ESA sanctions. Bennett> 520 U.S. at 169-70 , 117 S.Ct. 1154 . Therefore, the Biological Opinion is both ripe and a final agency action as to the primary ORV trails. All Plaintiffs have standing to challenge the Biological Opinion for the same reasons previously discussed relating to the APA and the other substantive statutes.

Defendants’ motion is well founded to the extent that Plaintiffs challenge secondary trails or hunting in the Addition. The record is clear that it is only primary trails which are at issue in the various decisions by the NPS or FWS, and the agencies agree that NEPA analysis will be needed if and when secondary trails and a hunting plan are at issue. Challenges to secondary trails and hunting are not ripe and there has been no final agency action.

(2) Merits Discussion

Plaintiffs object that the agency did not consider the encircled pocket aspect of the ORV trails effect on the panther, which needed another level of analysis. (Docs. # 126, p. 32; Doc. # 127, pp. 22-24.) The Court adopts the discussion in the Report and Recommendation (Doc. # 123, pp. - 1310-11, 1331-35), and after de novo review, overrules the objections.

Plaintiffs also object to the Report and Recommendation’s conclusion that “[t]here is no indication in the record that FWS was arbitrary or capricious in foregoing the formal consultation process in light of its determination, in consultation with NPS, that the GMP/EIS was not likely to adversely affect the Eastern Indigo snake.” (Doc. # 127, pp. 18-21.) Specifically, Plaintiffs argue that the FWS acted in contravention of the ESA by failing to give “the benefit of the doubt” to the Eastern Indigo snake. “The need to give a species the benefit of the doubt,” however, “cannot stand alone as a challenge to a biological opinion.” Miccosukee Tribe of Indians of Fla., 566 F.3d at 1268 . Here, the administrative record reflects that the NPS and the FWS engaged in informal consultation regarding the Eastern Indigo snake and considered the cumulative impact of the preferred alternative in reaching its ultimate conclusion. Although the decision may have been “close”, the Court must be at its most deferential when reviewing an agency’s area of expertise. Because the record supports the FWS’s decision, the Court cannot say that it acted arbitrarily or capriciously or in violation of the law. Accordingly, the Court, after de novo review, overrules the objections and adopts the discussion in the Report and *1292 Recommendation. (Doc. # 123, pp. 1332-33.)

G. Endangered Species Act and APA, Incidental Take Statement

Count Seven in Case No. 2:ll-cv-578 alleges that the FWS, the Department of the Interior, and the NPS violated the ESA and the APA by obtaining an arbitrary and capricious incidental take statement from the FWS. There is no corresponding count in Case No. 2:ll-cv-647.

The Court has summarized the applicable law in Section III.F. of this Opinion and Order. The Report and Recommendation found no violation of the ESA or the APA based upon the incidental take statement.

(1) Ripeness, Standing, APA Final Agency Action

The Court'adopts its findings and conclusions as stated in connection with the ESA Biological Opinion claims. The Court finds the incidental take statement claims as to the primary trails to be ripe, all plaintiffs to have standing, and the Incidental Take Statement to be a final agency action.

(2) Merits Discussion

Plaintiffs filed objections. (Doc. # 127, p. 24.) The Court adopts the discussion in the Report and Recommendation (Doc. # 123, pp. 1311, 1335-37), and after de novo review, overrules the objections.

Accordingly, it is hereby

ORDERED:

1.The Report and Recommendation (Doc.' #123) is ACCEPTED AND ADOPTED IN PART AND REJECTED IN PART. The Court rejects or amends the following portions of the Report and Recommendation: (a) the word “Plaintiffs” at page 39, line 3 is changed to “Defendants”; (b) the record citation on page 40 footnote 25 is changed to “A.R. 14,202” instead of “AR 14,602”; (c) the discussion of the interpretation of the phrase “imprint of man’s work substantially unnoticed” and the magistrate judge’s decision to not pass judgment on the NPS’s Wilderness Act determination (Doc. # 123, pp. 1318-20) is rejected, and the Court substitutes the discussion and findings at pages 26-34 of this Opinion and Order; (d) the first full paragraph on page 76 is rejected, and the Court substitutes the discussions and findings at pages 46-51 and 62-63 of this Opinion and Order; and (e) the conclusion of the Executive Order claim (Doc. # 123, p. 1338) is rejected, and the Court substitutes the discussion and findings at pages 54-55 of this Opinion and Order. The Report and Recommendation is otherwise adopted.

2. Plaintiffs’ Joint Motion for Summary Judgment (Doc. # 103) is DENIED.

3. Federal Defendants’ Cross Motion for Summary Judgment (Doc. # 106) is GRANTED to the extent that judgment shall enter as set forth below.

4. Defendant-Intervenor Safari Club International’s Motion for Summary Judgment (Doc. # 108) is GRANTED to the extent that judgment shall enter as set forth below.

5. Defendant-Intervenor Florida Wildlife Federation’s Cross-Motion for Summary Judgment (Doc. # 110) is GRANTED to the extent that judgment shall enter as set forth below.

6. Defendant-Intervenor Florida Fish and Wildlife Conservation Commission’s Motion for Summary Judgment (Doc. #111) is GRANTED to the extent that judgment shall enter as set forth below.

7. Federal Defendants’ Motion to Dismiss for Lack of Jurisdiction (Doc. # 164) *1293 is GRANTED IN PART AND DENIED IN PART. The portion of Count Two in each case challenging the general adoptive management of the ORV Plan and challenging secondary trails, and the portion of Count Six in Case No. 2:ll-cv-578-FtM-29CM challenging the secondary trails and hunting in the Addition are DISMISSED WITHOUT PREJUDICE AS NOT RIPE FOR JUDICIAL REVIEW. The motion is otherwise denied.

8. Defendant-Intervenor Safari Club International’s Motion to Dismiss on Jurisdictional Grounds (Doc. # 165) is GRANTED IN PART AND DENIED IN PART. The portion of Count Two in each case challenging the general adoptive management of the ORV Plan and challenging secondary trails, and the portion of Count Six in Case No. 2:ll-ev-578-FtM-29CM challenging the secondary trails and hunting in the Addition are DISMISSED WITHOUT PREJUDICE AS NOT RIPE FOR JUDICIAL REVIEW. The motion is otherwise denied.

9. Federal Defendants’ Motion to Strike Peer Plaintiffs’ “Notice of Filing” (Doc. # 175) is DENIED.

10. As to the Complaint (Doc. # 1) in Case No. 2:ll-cv-578-FtM-29CM,' judgment shall be entered as follows:

a. Count One: In favor of Defendants and against Plaintiffs^ who shall take nothing;

b. Count Two: The portions challenging the general adoptive management of the ORV Plan and challenging secondary trails are dismissed without prejudice as being unripe for judicial review. Judgment on the remainder of the Count is in favor of Defendants and against Plaintiffs, who shall take nothing;

c. Count Three: In favor of Defendants and against Plaintiffs, who shall take nothing;

d. Count Four: In favor of Defendants and against Plaintiffs, who shall take nothing;

e. Count Five: In favor of Defendants and against Plaintiffs, who shall take nothing;

f. Count Six: The portions challenging the secondary trails and hunting in the Addition are dismissed without prejudice as being unripe for judicial review. Judgment on the remainder of the Count is in favor of Defendants and against Plaintiffs, who shall take nothing;

g. Count Seven: In favor of Defendants and against Plaintiffs, who shall take nothing;

h. Count Eight: Dismissed pursuant to the Opinion and Order (Doc. # 105) dated August 20, 2012.

11.As to the Complaint (Doc. # 1) in Case No. 2:ll-cv-647-FtM-29CM, judgment shall be entered as follows:

a. Count One: In favor of Defendants and against Plaintiffs, who shall take nothing;

b. Count Two: The portions challenging the secondary trails and hunting in the Addition are dismissed without prejudice as being unripe for judicial review. Judgment on the remainder of the Count is in favor of Defendants and against Plaintiffs, who shall take nothing;

c. Count Three: The portions challenging the secondary trails and hunting in the Addition are dismissed without prejudice as being unripe for judicial review. Judgment on the remainder of the Count is in favor of Defendants and against Plaintiffs, who shall take nothing;

*1294 d. Count Four: In favor of Defendants and against Plaintiffs, who shall take nothing;

e. Count Five: In favor of Defendants and against Plaintiffs, who shall take nothing;

f. Count Six: In favor of Defendants and against Plaintiffs, who shall take nothing;

12. The Clerk shall enter judgment accordingly, terminate all pending motions and deadlines as moot, and close the file.

REPORT AND RECOMMENDATION

SHERI POLSTER CHAPPELL, United States Magistrate Judge.

TO THE UNITED STATES DISTRICT COURT

This matter comes before the Court on the Parties’ Cross Motions for Summary Judgment. Plaintiffs’ Joint Motion for Summary Judgment (Doc. # 103) was filed on July 30, 2012. Federal Defendants’ Combined Memorandum in Support of Cross-Motion for Summary Judgment and in Opposition to Plaintiffs’ Joint Motion for Summary Judgment (Doc. # 106) was filed on September 7, 2012. Defendant-Intervenor Safari Club International’s Combined Cross-Motion for Summary Judgment/Memorandum in Support and Opposition to Plaintiffs’ Joint Motion for Summary Judgment (Doc. # 108), Florida Wildlife Federation’s Cross-Motion for Summary Judgment and Combined Memorandum of Law in Support of Cross-Motion for Summary Judgment and in Opposition to Plaintiffs’ Joint Motion for Summary Judgment (Doc. # 110), and Intervenor Florida Fish and Wildlife Conservation Commission’s Motion for Summary Judgment, Memorandum in Support Thereof, and Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment (Doc. # 111) were filed on September 20, 2012. Plaintiffs’ Combined Opposition to Defendants’ Summary Judgment Motions and Reply in Support of Plaintiffs’ Summary Judgment Motion, wherein oral argument was requested, was filed on October 26, 2012 (Doc. # 114). Federal Defendants’ Reply Memorandum in Support of Cross-Motion for Summary Judgment (Doc. # 115) was filed on November 30, 2012. Defendant Intervenor Safari Club International’s Reply in Support of its Cross-Motion for Summary Judgment (Doc. # 116) and De-fendanh-Intervenor Florida Wildlife Federation’s Reply in Support of its Cross-Motion for Summary Judgment (Doc. # 117) were filed on December 7, 2012. The Court has considered the briefing of the Parties, as well as the administrative record 1 submitted to the Court and issues the following Report and Recommendation for the District Court’s consideration.

This case involves the issue of the use of motorized recreational off-road vehicles (ORVs) in the Addition Lands of the Big Cypress National Preserve. Plaintiffs challenge the National Park Services’ Final General Management Plan/Wilderness Study/Off-Road Vehicle Management Plan/Environmental Impact Statement dated October 2010 (“Addition GMP” or “GMP”) and the associated February 4, 2011 Record of Decision (“ROD”) concerning ORV use in the Addition Lands. Plaintiffs also challenge Fish and Wildlife Services’ (“FWS”) related biological opinion (“BO”) and associated incidental take statement. Plaintiffs assert violations of various federal statutes, including: (1) the Administrative Procedures Act (“APA”); (2) the Wilderness Act; (3) the National *1295 Environmental Policy Act (“NEPA”); (4) the Endangered Species Act (“ESA”); and (5) the National Park Service Organic Act of 1916, the Big Cypress National Preserve Addition Act (“Addition Act”), Executive Orders 11,644 and 11,989, and NPS regulations at 36 C.F.R. § 4.10 . 2 Plaintiffs seek an order vacating the Addition GMP and enjoining the NPS from taking any further action on the Addition GMP.

1312 1312 1320 1321 1323 1325 1326 1328 1329 1331 1333 1333 1334 1335 II.FACTUAL AND PROCEDURAL BACKGROUND. A. The Original Preserve and the Addition. B. NPS Management of the Original Preserve. C. NPS Management of the Addition Lands. 1. The planning process for the Addition GMP/EIS. 2. The Draft GMP/EIS. 3. Public comments on the Draft Addition Lands GMP/EIS 4. The Addition GMP/EIS . 5. The Biological Opinion . 6. The Record of Decision. III.DISCUSSION. A. Count One: 3 APA Violations of the Wilderness Act. B. Count Four: Breach of NEPA. 1. The impact of ORV use on hydrologic resources . 2. The impact of ORV use on the Florida panther. 3. The impact of ORV use on natural soundscapes and non-motorized visitors. 4. The impact of ORV use on vegetation communities and sloughs .... 5. NPS’s reliance on the Original Preserve ORV Management Plan... C. Counts Six and Seven: Endangered Species Act Violations. 1. Eastern Indigo Snake. 2. Florida Panther. (a) Effects of the GMP on the Panther. (b) Best Scientific Data Available. (c) Incidental Take Statement. D. Counts Two and Five: Big Cypress Establishment Act, National Park Service Organic Act, and APA. E. Count Three: Violations of Executive Orders 11,644 and 11,989 IV.CONCLUSION.1339 TABLE OF CONTENTS RELEVANT ENVIRONMENTAL STATUTES AND EXECUTIVE ORDERS.1295 A. National Park System and the National Park Service.1296 B. National Environmental Policy Act.1296 C. Executive Orders 11,644,11,989, and 36 C.F.R. § 4.10.1296 D. Endangered Species Act.1297 E. Big Cypress Establishment Act and the Addition Act.1298 F. The Wilderness Act and Related NPS Management Policies..'.1299 I — *• J — i CO CO CO CO -3 -3 OOfMCOCO^LOCOOH OOOOOOOOl — It—I CO CO CO CO CO CO CO CO CO CO rH r-i i — I i — ( i — l i — I i — ( i — I i — I i — l

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 *1296 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 . This federal agency under the United States Department of Interior 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

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).

C. Executive Orders 11,644, 11,989 and 36 C.F.R. § 4.10

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 providing] 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 (Sept. 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 *1297 § 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.

In 1977 President Jimmy Carter issued Executive Order No. 11,989, 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).

As contemplated by Executive Order 11,644, NPS issued a regulation at 36 C.F.R. § 4.10 , which prohibits operation of motor vehicles except on park roads, parking areas, and “routes and areas designated for [ORV] use.” 36 C.F.R. § 4.10 (a). It also requires that such “routes and areas designated for [ORV] use be promulgated as special regulations.” 36 C.F.R. § 4.10 (b). Pursuant to this general regulation, NPS has promulgated special ORV regulations for the Original Preserve which, among other things, regulate where within the Original Preserve ORV use is permitted. See, e.g., 36 ' C.F.R. § 7.86(a)(2). In accord with the Executive Orders and 36 C.F.R. § 4.10 , NPS will draft and promulgate ORV management regulations for the Addition prior to designating ORV trails in the Addition and opening any such trails to recreational ORV use. The Federal Defendants represent that, at present, no draft regulation has been noticed. (Doc. # 107, p. 6).

D. Endangered Species Act

Shortly after President Nixon issued this Executive Order, Congress enacted *1298 the Endangered Species Act of 1973, 16 U.S.C. § 1531-1544 , 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.

E. Big Cypress Establishment Act and the Addition Act

Against this background, in 1974 Congress established the Big Cypress National Preserve (“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 estimated at 582,000 acres. A.R. 12805. Approximately 147,000 acres were added in 1988 as the Big Cypress National Preserve Addition (“Addition” or “Addition Lands”) with the passage of the Big Cypress National Preserve Addition Act, PL 100-301; 74 Fed.Reg. 34030; 16 U.S.C. § 698m-l; A.R. 12803. 4

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. See 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). The same is true of the Addition Act. See H.R.Rep. No. 99-692, at 5 (1986); H.R.Rep. No. 100-30 at 3 (1987). *1299 The Addition Act further requires NPS to “cooperate with the State of Florida to establish recreational access points and roads, rest and recreation areas, wildlife protection, hunting, fishing, frogging, and other traditional recreational opportunities,” and requires that three of these access points be located within the Preserve. 16 U.S.C. § 698m-2.

F. The Wilderness Act and Related NPS Management Policies

The Wilderness Act established the “National Wilderness Preservation System to be composed of federally owned areas designated by Congress as ‘wilderness areas.’ ” 16 U.S.C. § 1131 (a). The Wilderness Act defines the term “wilderness” as follows:

A wilderness ... is ... an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain ... an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

16 U.S.C. § 1131 (c). The Wilderness Act, in pertinent part, required the Secretary of the Interior to “review every roadless area of five thousand contiguous acres or more” in the national park system and to “report to the President his recommendation as to the suitability or nonsuitability of each such area or island for preservation as wilderness.” Id. § 1132(c). The enabling legislation for the Big Cypress National Preserve Addition, specifically Public Law 93-440 as amended by Public Law 100-301 states:

... the Secretary shall review the area within the Preserve or the area within the Addition ... and shall report to the President, in accordance with section 3(c) and (d) of the Wilderness Act ( 78 Stat. 891 ; 16 U.S.C. 1132(c) and (d)), his recommendations as to the suitability or nonsuitability of any area within the preserve or the area within the Addition ... for preservation as wilderness, and any designation of any such areas as a wilderness shall be accompanied in accordance with said subsections of the Wilderness Act.

In addition, NPS has issued Management Policies, an internal guidance document, intended “to improve the internal management of [NPS]” by providing “NPS management and staff with clear and continuously updated information on NPS policy and required and/or recommended actions, as well as any other information that will help them manage parks and programs effectively.” 2006 Management Policies, p. 4; River Runners for Wilderness v. Martin, 593 F.3d 1064, 1071 (9th Cir.2010) (noting that the Management Policies make clear that they are “intended only to provide guidance within the Park Service”); Wilderness Soc’y v. Norton, 434 F.3d 584, 596-97 (D.C.Cir.2006). Pursuant to NPS’s 2006 Management Policies, NPS will undertake a wilderness eligibility assessment in order to determine whether the subject lands are eligible for protection as wilderness. A.R. 14410. Wilderness eligible lands are then formally *1300 assessed in a wilderness study in order to determine whether NPS should recommend to the NPS Director and ultimately the Department of Interior that these lands be designated as wilderness. Id. 5 The Management Policies use Wilderness Act’s definition of the term “wilderness” to identify the primary eligibility criteria under which NPS lands will be considered eligible for wilderness protection. A.R. 14409. The Management Policies also articulate “additional considerations in determining eligibility” that should be taken into account in determining the wilderness eligibility of lands previously subjected to human use. A.R. 14409-10.

Although, under the Wilderness Act, the President advises Congress of his recommendation as to wilderness designation, only Congress can designate wilderness. 16 U.S.C. § 1131 (c). The Wilderness Act prohibits any permanent - or temporary roads, use of motor vehicles or motorized equipment, landing of aircraft, structures or installations within designated wilderness, “except as necessary to meet minimum requirements for the administration of the area for the purposes of [the Wilderness] Act.” 16 U.S.C. § 1133 (c). Pursuant to the Management Policies, all wilderness eligible lands are “managed to preserve their eligibility for designation.” A.R. 14412.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Original Preserve and the Addition

Big Cypress National Preserve is located in Southern Florida to the northwest of Everglades National Park. A.R. 12829. Both the Preserve’s topography and its ecology are distinctive to southern Florida, as the Preserve is characterized by exceptionally flat terrain and by “[e]xtensive prairies and marshes, forested swamps, and shallow sloughs.” A.R. 9985, 12820, 12833, 12994. Approximately 90 percent of the Preserve is flooded during the wet season. A.R. 9985, 12828. Due to the high level of annual rainfall and “the flat limestone topography ... the inundation lasts for several months beyond the actual rainfall period” in the summer. A.R. 9985, 12828. This surface water hydrology is characterized as a “sheet flow” and, during the wet season, a “shallow continuous expanse of water,” flows slowly, almost imperceptibly, toward the coasts. A.R. 12994. The amount of time that soils are saturated on an annual basis “is the major determinant of vegetative communities, and a difference of only a few inches in elevation ... leads to the establishment of totally different plant communities.” A.R. 9985,12828-31.

ORV use in the Original Preserve was governed by the 2000 Recreational Off-Road Vehicle Management Plan/Supplement to the Final Environmental Impact Statement. 65 Fed.Reg. 49593-01 (Aug. 14, 2000). 6 This was a 200-plus page document'which included an SEIS related specifically to ORV impact on the Preserve. A.R. 849-54. This Plan applied only to the original Preserve, A.R. 859, and did not address commercial operations of ORVs or ORV use in the Addition. A.R. 880. Based upon legislative mandates and special commitments, NPS stated that “ORV use can occur only to the extent that it does not *1301 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.” A.R. 881. Due to its “scope and complexity,” A.R. 880, NPS contemplated a three-phase implementation process with all aspects of the plan being implemented within ten years. A.R. 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. A.R. 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.” A.R. 896. Because NPS recognized its database of information was incomplete, “[wjhere the effects of an action are unknown, the proposed management actions would favor the protection of the preserve’s natural and cultural resources.” A.R. 860.

NPS would also use an “adaptive management approach” to the 2000 Plan, which included continual review and modification of the plan as needed to ensure effectiveness and compliance with mandates and policies, A.R. 880, and “adaptive management techniques” which would “apply lessons learned from research and field experience to improving ORV management ...” A.R. 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.” A.R. 897. Management actions would be adapted that “assure the highest protection of the preserve’s resources.” A.R. 861. Any modifications to the plan would comply with all appropriate laws and regulations, including but not limited to, the NEPA and the ESA. A.R. 800, 880. Modifications to the plan would also include appropriate public involvement. Id.

In 1988, Congress authorized the acquisition of the Addition Lands to the Original Preserve and directed the Secretary of the Interior to permit recreational activities, including hunting, on these lands, just as these activities were permitted in the original Preserve.

The Secretary shall permit hunting, fishing, and trapping on lands and waters under his jurisdiction within the preserve and the 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 Addition consists of two separate areas: the Northeast Addition and the Western Addition. A.R. 12828-29. The 128,000-acre Northeast Addition, located to the northeast of the Original Preserve boundary, is bounded to the north and east by lands that are not federally managed, including the tribal lands and private lands. A.R. 12828, 12907. The Northeast Addition is bisected by Interstate 75 (also known as Alligator Alley or 1-75) which is the main interstate access route between Fort Lauderdale/Miami and Tampa Bay. A.R. 13034, 13045, 16206. Noise disturbance created by 1-75 “can be heard thousands of feet into the interior of the Addition.” A.R. 13046. The Levee 28 Interceptor Canal runs through its northeast corner. A.R. 12833.

*1302 The 19,000-acre Western Addition is an approximately one-mile wide strip of land between State Road 29, a paved highway, and the western boundary of the Original Preserve. A.R. 13034. The Western Addition is crossed by two major highways, 1-75 and U.S. 41 (also known as the Tam-iami Trail) as well as by Wagonwheel Road. A.R. 12901,13034. Roadside canals, byproducts of road construction, and line roadways exist in both areas of the Addition. A.R. 12991.

Prior to NPS’s acquisition of the Addition Lands, they were either in private or state ownership. A.R. 12864, 9814. 7 Portions of the Addition Lands were used for agriculture, including farming and grazing, and they were altered and furrowed in furtherance of agricultural development. A.R. 13026-28, 9815, 7157-58. Mineral development also occurred, and remnants of that development remain, including seven abandoned well sites and a pipeline right of way that runs through the Northeast Addition. A.R. 9815, 13027, 13296. Hunting camps and ranches were constructed on these privately-owned properties, particularly in the section of the Northeast Addition north of 1-75, which still contains a residential section commonly referred to as the Big Cypress Sanctuary. A.R. 16206, 9814-15.

The Addition contains approximately 244 miles of ORV trails, all of which were established and used prior to NPS’s acquisition. A.R. 4087, 9015, 9815, 13259. The existing network of ORV trails includes several raised grades, including Jones Grade, Nobles Grade, Bundschu Grade, and Bear Island Grade. A.R. 3620, 9015, 16206. Prior to NPS’s acquisition of the Addition Lands, public hunting and ORV use occurred, A.R. 9815, and, although the Addition has been closed to public recreational ORV use and hunting since NPS began administering it in 1996, this trail network is still used by NPS and state agencies for administrative purposes including firefighting, research and monitoring, as well as use by individual property owners and tribal members. A.R. 12807, 12832, 7159-60.

B. NPS Management of the Original Preserve

NPS completed a wilderness study for the Original Preserve in 1979, which found no lands in the Original Preserve to be suitable for wilderness protection. A.R. 9695-9715, A.R. 10083-84. As a result, there is no designated wilderness in the Original Preserve.

In 1991, NPS issued a General Management Plan and Final Environmental Impact Statement for the Original Preserve (“Original Preserve GMP”) 8 which addressed all aspects of management of the Preserve, and called for the development of an ORV management plan. A.R. 9946-10681. 9 At that time, ORV use in the *1303 Preserve was largely unregulated and was characterized by dispersed use (meaning use not restricted to a designated trail system). 10

NPS published a “Final Recreational Off-Road Vehicle Management Plan” and Supplemental EIS (“Original Preserve ORV Plan”) in August 2000, A.R. 13617-14235, and issued a ROD adopting its preferred alternative on September 28, 2000. 65 Fed.Reg. 70934 (Nov. 28, 2000). Pursuant to the Original Preserve ORV Plan, NPS restricted ORV access to 15 designated access points and no more than 400 miles of designated primary and secondary ORV trails, ultimately eliminating dispersed use of ORVs in the Original Preserve. A.R. 13620-21, 13664. NPS also instituted temporal closures of ORV trails, ORV permitting and licensing requirements, and a program to monitor the effects of ORV use. A.R. 13669-80. NPS monitors compliance with the designated trail system, which it enforces through written warnings, citations, fines, and suspension of operator permits. See e.g., A.R. 16379-82,16585-89,16506-13,17527-30.

C. NPS Management of the Addition Lands

1. The planning process for the Addition GMP/EIS

Because the Addition Lands were in private ownership at the time of the Original Preserve GMP, that document, by its own terms, addressed only the Original Preserve. Accordingly, it was necessary to draft a separate general management plan relating to the Addition Lands. 66 Fed. Reg. 31690 (June 12, 2001). The planning process for the Addition GMP/EIS began in 1999. See A.R. 2072-74. On June 12, 2001, NPS publicly noticed its intent to prepare a general management plan for the Addition that would not include either a wilderness study or an ORV management plan. A.R. 13498; 66 Fed.Reg. 31690. 11

Even prior to releasing a draft for public comment, NPS involved the public in meetings and workshops to receive public comments on NPS’s preliminary preferred alternative. See e.g., A.R. 13516-17 (describing public and agency involvement), 182-83, 580-85, 3204-05, 4778-92, 4975. In response to public comments, NPS in 2006 expanded the scope of the GMP/EIS to include a wilderness study and an ORV management plan. A.R. 13516-17, 13498; 71 Fed.Reg. 23945 (Apr. 25, 2006). On July 11-12, 2006, NPS began the initial wilderness review by convening a workshop attended by both Preserve staff and representatives from other NPS offices. A.R. 13499. The participants in that workshop used “geographic information systems, maps; aerial photographs, and personal knowledge,” in order to identify wilderness eligible and ineligible lands. A.R. 4051, 11893, 13499. This assessment concluded that approximately 111,601 acres of the Addition were wilderness eligible, and identified certain areas for follow-up field visits. A.R. 13499, 4312-13. That determination was a threshold step because a determination that an area is wilderness eligible (i.e., meets the objec *1304 tive criteria under the Wilderness Act) would require that the area not be opened to recreational ORV use until Congress had acted on any wilderness recommendation. NPS 2006 Management Policies, § 6.3.1, A.R. 14411.

NPS also developed a framework for developing a specific proposal for an ORV trail system for the Addition. Under this framework, “NPS staff first mapped the locations of existing roads, trails, and other disturbed areas in the Addition,” using “available maps, aerial photographs, and global positioning system equipment to locate roads and trails in the field” in order to identify potentially sustainable ORV trail's. A.R. 11981. Field investigations were conducted in order to determine which of the existing ORV trails were sustainable. A.R. 11981, 14428-557, 14584-616. "Of the approximately 258 miles of trails assessed, 140 miles were determined to be sustainable, meaning that they “can support currently planned and future uses with minimal impact to the natural systems of the area” with “negligible soil loss or movement” although some trail management, including stabilization of the trail, might be required. A.R. 11981. NPS then worked with stakeholders, including Plaintiffs, to identify potential modifications to the preliminary preferred alternative that might enhance public support. A.R. 4975-82.

2. The Draft GMP/EIS

NPS released its Draft General Management Plan/Wilderness Study/Off-Road Vehicle Management Plan/Environmental Impact Statement (“Draft GMP/EIS”) for public comment on July 14, 2009. 74 Fed. Reg. 34030 (July 14, 2009), A.R. 11863-12284. The Draft GMP/EIS incorporated a draft wilderness study, A.R. 11993-98, and NPS’s 2006 wilderness eligibility assessment, A.R. 12279-84, which was attached as an appendix. It also included an ORV management plan, modeled after the Original Preserve ORV Plan, whereby recreational ORV use in the Addition would be restricted to a designated trail system. A.R. 11973-92. It also included a “preferred alternative” that would “maximize ORV access.” A.R. 11867.

A central feature of the Draft GMP/EIS was the concept of management zones which were used to “define[ ] specific resource conditions and visitor experiences to be achieved and maintained in each specific area of the Addition,” and were incorporated into each of the alternatives considered, except for the “no action alternative.” A.R. 11946. The four management zones discussed in the Draft GMP/ EIS include: “developed,” “frontcountry,” “primitive backcountry,” and “backcountry recreation.” A.R. 11946-50. The developed management zone would include NPS administrative facilities, while frontcountry areas would include visitor facilities such as campgrounds, picnic areas, and comfort stations. A.R. 11948.

Recreational ORV use would be permitted only in the backcountry recreation management zone, where visitors would also be able to undertake any activities permitted in the other management zones. A.R. 11949. In contrast, no ORV use would be allowed in the primitive back-country zone. A.R. 12252. Here, the “[preservation of natural and cultural resources, restoration of degraded resources, and continuation of natural processes would be the dominant goals” and visitors there “would experience a natural landscape with opportunities for primitive and unconfined recreation directly dependent on ability, knowledge, and self-reliance.” A.R. 11950.

The preferred alternative in the Draft GMP/EIS proposed approximately 140 miles of primary ORV trails located solely within the approximately 52,431 acres of *1305 land zoned for backcountry recreation. A.R. 11961-64. A maximum of 700 ORV permits would be issued annually for the Addition, although the actual designation of trails and issuance of permits would be accomplished in phases. Id. Approximately 93,426 acres of land would be zoned as primitive backcountry in which recreational ORV use would be prohibited. A.R. 11962. 85,862 acres of land zoned as primitive backcountry would be proposed for wilderness designation. Id 12

3. Public comments on the Draft Addition Lands GMP/EIS

NPS received extensive public comment on the Draft GMP/EIS, including testimony at four public meetings/wilderness hearings. The comments were fairly polarized. See e.g., A.R. 4364-67, 13254. Many commenters, citing environmental concerns, voiced support for the alternative in the Draft GMP/EIS which would prohibit all recreational ORV use in the Addition and propose designation of the maximum amount of eligible wilderness. See e.g., A.R. 4364-67. Conversely, other commenters, including multiple state agencies, opposed any wilderness designation in the Addition. See e.g., A.R. 6880-900. Of those, most supported the alternative in the Draft GMP/EIS providing for the most ORV access. See e.g., id.

Many of the comments received involved lands in the Western Addition and Northeast Addition north of 1-75, that NPS’s 2006 wilderness eligibility assessment had found wilderness eligible, but “which the commenters claimed actually included areas of noticeable human disturbance.” See e.g., A.R. 135499, 13353-55, 2484-86 (attaching map of ORV trails), 2858-59 (detailing “heavy historical” use of Addition Lands and manmade imprints such as “secondary roads” and “helispots”). 13 NPS also received comments objecting to lands found wilderness eligible on the grounds that “wilderness designation would severely restrict motorized access needed for emergency response, fire management, exotic species control, wildlife management, hydrologic restoration, and traditional activities such as hunting.” See e.g., A.R. 13549,13353-59, 2862-63. 14

*1306 On November 3-4, 2009, NPS held a “Finalize Preferred Alternative Workshop,” where NPS staff met to discuss public and agency comments on the draft GMP/EIS and any potential changes to the preferred alternative. A.R. 6486-97, 13500. At this meeting, NPS staff recommended that “the amount of proposed wilderness in the preferred alternative be reduced by eliminating all proposed wilderness in the Northeast Addition north of 1-75, primarily because much of this area has been altered by previous agricultural practices.” A.R. 13500, 6487-91. The group noted that NPS “will need to use mechanized equipment to remove exotic vegetation and maintain natural conditions through prescribed fire” in order to complete the process of restoring these lands to their pre-disturbance conditions, a process which might take years to complete. A.R.' 13500, 6489-90. The group found that the lands north of 1-75 also include many uplands and pinelands which are more prone to incursion by exotic species and wildfires, requiring frequent administrative access to address these problems, as well as for panther monitoring purposes. Id. The group concluded that the frequency of administrative access requiring exceptions to wilderness restrictions would defeat the purpose of wilderness in the area of the Northeast Addition north of 1-75. Id. In contrast, lands in the Northeast Addition south of 1-75 were retained as proposed wilderness as they “were not used in the past for farming and other human use as much as lands north of 1-75” and present less of a risk of fire than the lands north of 1-75. A.R. 13500, 6487-88.

All lands in the Western Addition were also removed from proposed wilderness, “primarily because a buffer strip of either 1/4 to 1/2 mile on the eastern edge of the State Road 29 right-of-way would be needed for access, management, and operations needs,”- and this buffer would render the remaining non-disturbed lands in the Western Addition too fragmented to manage as wilderness. A.R. 13500. As a result of this meeting, “the acreage of proposed wilderness for the preferred alternative was reduced from 85,862 to 48,-130.” Id.

NPS’s Management Policies require eligible wilderness to be managed as designated wilderness, which includes the Wilderness Act’s prohibition on the use of mechanical equipment (including ORVs) unless “necessary to meet minimum requirements for the administration of the area for the purposes of [the Wilderness] Act.” See NPS Management Policies 2006 (A.R. 14394-418; A.R. 14412; 16 U.S.C. § 1133 (c)). A waiver of this policy was sought with respect to certain areas of the Addition that had previously been found wilderness eligible under the 2006 assessment, but which NPS determined should not be proposed for wilderness designation as substantive questions had been raised as to whether certain areas of the Addition were indeed wilderness eligible or whether they contained areas of substantially noticeable human disturbance. A.R. 6923-25, 6934. As Preserve Superintendent Pedro Ramos explained, the waiver was necessary because these lands would “require, our indefinite and continued active intervention in order to accomplish and maintain restoration goals related to *1307 exotic species of animals and plants as well as hydrology.” A.R. 6934; see also 6923-25.

No waiver was issued. Therefore, in response to public comments received during the Fall of 2009 to the 2006 wilderness study, which was attached as an appendix to the Draft GMP/EIS, NPS convened an additional workshop, on February 17, 2010, in order to review the 2006 wilderness eligibility assessment as required by NPS Management Policy 6.2.1. A.R. 14409; 13500. NPS staff reviewed the wilderness criteria from the Wilderness Act and the Management Policies, and utilized the following assumptions:

1. The participants’ definition of what was considered an example of a “substantial imprint of humans’ work” included roads, trails, or other areas that were created by man and used significantly over time that would require substantial human intervention to restore.

2. Whether the imprint of humans’ work is substantially unnoticeable was reviewed from the perspective of a land manager and not a common visitor. Man’s past work is, in many cases, substantially noticeable to a land manager, but may not be to the common visitor.

3. The wilderness eligibility criteria were only applied to the Addition; areas in the original Preserve were not included as part of this analysis.

4. If needed restoration techniques would be inconsistent with wilderness eligibility, then the 2006 wilderness eligibility assessment would be altered as appropriate.

A.R. 7156,13293.

NPS then conducted an assessment of the Addition Lands which the Defendants assert was more detailed than had been done in 2006, using topographic maps, up-to-date geographic information system overlays, and aerial photography from both 1999 and 2009, as well as personal knowledge. Compare A.R. 4092-96 with A.R. 7155-64. Representatives from NPS offices, many of whom had been involved in the 2006 assessment, reevaluated previously disturbed areas of the Addition, including established ORV trails and former agricultural areas, for wilderness eligibility. A.R. 7156-57,13501. 15

Based on the data reviewed, NPS found — as memorialized in a report of the February 17, 2010 Wilderness Workshop (A.R. 7155-7164) — that certain identified disturbed areas did not meet the wilderness eligibility criteria, and that once those areas were removed from wilderness eligibility, the surrounding areas were fragmented and not practicable to manage as wilderness. A.R. 7157-63. 16 NPS also found that the non-wilderness buffers surrounding the L-28 Interceptor Canal, highways, and active ORV trails in the 2006 assessment were “too narrow to offer opportunities for solitude or primitive recreation,” and that these buffers should be *1308 increased to 1/4 mile in order to remedy this error. A.R. 7159-63, 13301. As a result, NPS recommended that 71,263 acres 17 of the Addition were eligible for designation as wilderness at the conclusion of the February 17, 2010 Wilderness Workshop (down from 85,862 acres in the Draft GMP/EIS). A.R. 7163. This recommendation was presented to and approved by the NPS Director Jonathan Jarvis, and included in the Final GMP/EIS. A.R. 12942, 12939-43, 13291. A wilderness designation is important because if an area is designated as “wilderness” no ORV use can occur in that area. See 16 U.S.C. § 1133 (c) (under the Wilderness Act, any “use of motor vehicles, motorized equipment or motorboats, -... landing of aircraft, ... [or] other form of mechanical transport” is prohibited). Once designated as eligible, pursuant to the Management Policies, the lands are “managed to preserve their eligibility for designation.” A.R. 14412.

4. The Addition GMP/EIS

On November 24, 2010, NPS noticed the availability of the final GMP/EIS for the Addition Lands in the Federal Register, informing the public that the document was available for review. 75 Fed.Reg. 71730 (Nov. 24, 2010); A.R. 8688. The Addition GMP/EIS included a revised wilderness eligibility assessment which, pursuant to the February 17, 2010 workshop, found 71,263 acres of the Addition Lands eligible for wilderness protection, and a wilderness study. A.R. 12939-43, 13291-13304. The GMP/EIS retained the requirement that all ORV use be restricted to designated trails, although, as a result of additional field investigations conducted in response to comments ^ on the Draft GMP/EIS reflecting the environmental concerns regarding impacts on the ORV trail system, NPS reduced its assessment of the mileage of sustainable ORV trails in the Addition. A.R. 13257, 13514. The management zones from the Draft GMP/ EIS were also retained in the Addition GMP/EIS. A.R. 12889.

With respect to ORV management, the GMP/EIS authorized the use of swamp buggies and all-terrain cycles, A.R. 12924, and incorporated many of the features of the Original Preserve ORV Plan, including restricting ORV use to a designated trail system, nightly and seasonal closures of the ORV trails, discretionary trail closures in the interest of safety and resource protection, and an ORV inspection program. Compare A.R. 13619-21 with A.R. 12925, 12928-31. The preferred alternative included approximately 130 miles of trails as of a conceptual primary trail network, although the actual designation of trails would be accomplished in phases based on field conditions, proximity to access points, levels of trail stabilization necessary and trail monitoring results. A.R. 12904-05. The ORV trail system would be phased in over time and, after an initial designation of trails based on field conditions, additional trails would be designated if monitoring indicated that “impacts were at or below acceptable limits.” A.R. 12905. Any ORV trails not designated for public ORV use under the preferred alternative “would be reclaimed (natural elevations and plant communities restored) as funding permits.” A.R. 13257.

The Addition GMP/EIS provides for *1309 adaptive management 18 of the Addition and identifies several “user capacity indicators and standards” intended to guide this adaptive management and to provide qualitative standards for measuring any adverse impacts to Addition resources, including impacts on wildlife, surface water flow, water quality, soil conditions, vegetation, and visitor experience. A.R. 12917-22. It also discusses specific management strategies that NPS would use to reduce or mitigate any adverse impacts, including management strategies directed at recreational ORV use. A.R. 12921-38. With respect to ORV use, if NPS’s monitoring indicated that an applicable standard had been exceeded, NPS would then implement adaptive management actions including, but not limited to, closures of trails, trail relocation, trail maintenance, or alteration of the level or type of use on a trail. A.R. 12932-33.

Although the Addition GMP/EIS contemplates that hunting will eventually be allowed in the Addition, it provides that before the Addition is opened for hunting NPS “would develop a hunting management plan that would follow NEPA compliance requirements,” and would assess “the effects of hunting activities on special status species such as the Florida panther.” A.R. 13253, 13261. In developing the hunting management plan, NPS would engage in additional consultation with FWS pursuant to Section 7 of the ESA, and would work closely with the Florida Fish and Wildlife Conservation Commission, pursuant to 16 U.S.C. § 698m-2. A.R. 13253. Similarly, NPS would engage in additional consultation with FWS before any access facilities are built and obtain any necessary permits for construction in wetlands. A.R. 13252-53.

Plaintiffs argue that NPS finalized the GMP to meet an artificial deadline it has imposed on itself and did so despite the absence of numerous critical studies, including:

(a) The absence of a completed FWS BO when NPS finalized its GMP. NPS had pressed for that opinion earlier. A.R. 7454-56,15493-96,15592. Its principal author, Jane Tutton, explained that was not possible because she had been “heavily involved in the Deepwater Horizon spill response.” A.R. 7454-56. NPS continued to push, however, A.R. 7538-41, and she stated that “timing will be tight on this,” A.R. 15518. The opinion was not finalized until November 18, 2010, one week before the release of the GMP. A.R. 13531,15866.

*1310 (b) The absence of a study of ORV impacts on the endangered Florida panther. The Preserve had sought funding for such a study but NPS had found that study of lower priority for limited available funding than other studies proposed by other National Park System parks. A.R. 15504-07.

(c) The absence even of an up-to-date analysis of panther movements based on ORV presence. Failing to obtain funding for a study of ORV impacts on the panther, the Preserve contracted for a statistician to re-analyze and update 1999 data showing that panthers tended to stay away from areas where ORVs were used. A.R. 16249. But by the time NPS finalized its GMP, it still did not have the new report. A.R. 8882 (draft submitted months after GMP and FWS opinion). FWS’s Tutton expressed her concern, saying, “[w]e are a little vulnerable in not getting that info before we put the Final EIS and BO out there.” A.R. 15559.

(d) The absence of any study of the impact of the preferred alternative on the critical surface water flows through the Addition or its water quality. NPS performed no study of that issue. Instead, the GMP simply stated that the impact was “unknown.” A.R. 12997.

(e) The absence of any study of the impact of the preferred alternative on the natural soundscape of the Addition. Natural sounds are an important part of the Addition’s resources, for non-motorized users and for wildlife. But after obtaining a “base-line” study of such sounds, A.R. 14899, no further work on that issue was done. Nevertheless, NPS found ORV impacts on other users only “minor to moderate,” with no separate evaluation of noise impacts.

(f)The absence of any plan to obtain the funding needed to monitor, implement and/or enforce the plan. NPS relies on the designated ORV trail restrictions and other limitations imposed by the 2000 Plan to mitigate ORV impacts. But — because of lack of funding and manpower and because of the vast area involved — NPS has not adequately monitored the Original Preserve, as FWS repeatedly urged, A.R. 13321, 13322, 13315, to assess whether ORV users are going off-trail there or otherwise to determine if those restrictions have been effective in minimizing impacts. NPS concedes it will need a 20% increase in its staff to monitor and enforce the new Addition plan, A.R. 12909, but provides no evaluation of impacts in the absence of such an increase.

5. The Biological Opinion

On November 18, 2010, FWS issued its BO for the Final GMP/EIS. A.R. 8583. In its BO, FWS concurred with the NPS’s determinations that the proposed action was not likely to adversely affect the red-cockaded woodpecker, the West Indian manatee, the wood stork, the Everglades snail kite, the American Crocodile, and the Eastern Indigo snake. A.R. 8592-94. As to the snake, FWS concluded that activities with the potential to affect the snake were the construction of new access points or recreational facilities and the use of ORV trails. A.R. 8593. Construction of new access points or recreational facilities would likely require permits from the U.S. Army Corps of Engineers, and therefore result in additional, project-specific ESA consultation in the future. Id. In light of the minimization and mitigation measures proposed by NPS, it concluded that any change in territory size or configuration resulting from ORV use would not result in measurable changes in feeding breed *1311 ing, or sheltering behaviors of the Eastern Indigo snake.

FWS also concluded that the proposed action was not likely to jeopardize the Florida panther. A.R. 8630. In support of this conclusion, the. BO cited available information concerning the effects of ORV use on panthers in other areas of the Preserve. This information included a 2002 study by Janis and Clark, A.R. 16249 & 14375, and a 2010 draft study by Fletcher and McCarthy, A.R. 7908. Both studies observed that panthers moved away from trails during the hunting season. See A.R. 8627. However, based on these studies, FWS concluded that the observed movement away from trails has “minor biological consequences.” Id.

FWS authorized “incidental take” of Florida panthers in the form of harassment in the accompanying Incidental Take Statement (“ITS”). A.R. 8631. No lethal take was anticipated or authorized. See id. The ITS also specified terms and conditions in order to be exempt from the prohibitions of Section 9 of the ESA. A.R. 8632. The terms and conditions called for NPS to: (1) minimize human disturbance and habitat degradation; (2) minimize take through a better understanding of the interactions of the Florida panther and its environment in the Addition Lands; and (3) notify FWS upon locating a dead, injured, or sick threatened or endangered species. Id. at 8632-33.

6. The Record of Decision

On February 4, 2011 — twelve years after NPS initiated the planning process for the Addition GMP/EIS — NPS signed a ROD formally adopting the preferred alternative in the Addition GMP/EIS. A.R. 13494-96; 76 Fed.Reg. 29786, 2011 WL 1933679 (May 23, 2011). The ROD explained that NPS convened the February 17, 2010 wilderness eligibility workshop to review the “2006 assessment and pertinent public comments to the draft GMP/EIS in order to decide what changes if any should be made to the 2006 assessment.” A.R. 13500. The ROD also explained that, in 2010, NPS concluded that some of the areas initially found to be wilderness eligible in 2006 were, in fact, wilderness ineligible, primarily due to:

• Substantial evidence of past substantial agricultural disturbance, e.g., in the Western Addition between 1-75 and U.S. 41 and in the Northeast Addition west of Nobles Ranch.

• A 1/4-mile buffer on either side of roads, trails, and canals due to lack of opportunities for solitude and the presence of human disturbance. The lands adjacent to these features also frequently contain excavated areas and sidecast debris from construction and maintenance, as well as other artifacts.

• Fragmentation as a result of the two items previously described. A.R. 13501.

The ROD includes a discussion of measures that NPS would apply “to avoid or minimize potential impacts from implementation of the selected action” to Addition resources, including air, water, soils, vegetation, wildlife (including threatened and endangered species and species of concern), cultural resources and visitor safety and experience. A.R. 13503-13. In an effort to comply with the Organic Act, NPS also issued impairment findings and concluded that:

Adverse impacts anticipated as a result of implementation of the NPS preferred alternative on a resource or value whose conservation is (1) necessary to fulfill specific purposes identified in the establishing legislation, (2) key to the natural or cultural integrity of the Preserve (including the Addition) or to opportunities for enjoyment of the Preserve, or (3) *1312 identified as significant in the Preserve’s general management plan or other relevant NPS planning documents will not rise to levels that would constitute impairment.

A.R. 13608.

III. DISCUSSION 19

A. Count One: APA Violations of the Wilderness Act

Count One alleges that the NPS violated the APA by acting arbitrarily and capriciously by manipulating the Act’s criteria and standards for determining what areas are eligible for protection as “wilderness” under the Wilderness Act. Plaintiffs argue that instead of objectively applying the Act’s requirements, NPS figured out what criteria would permit it to minimize “wilderness” eligibility to meet political demands for greater ORV use and then crafted and applied “assumptions” about such criteria to satisfy that objective. But that those “assumptions” are inconsistent with the Act, and that process and the resulting determinations are arbitrary and capricious.

The acreage designated as wilderness in the ROD for the Addition Lands was 71,-263. A.R. 13293. Congress defined “wilderness” as an area, “in contrast with those areas where man and his own works dominate the landscape,” “where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain” and where “imprint of man’s work substantially unnoticed.” 16 U.S.C. § 1131 (c). In the Act, Congress further defined an objective set of criteria by which federal agencies must assess eligibility of public lands as to potential long-term wilderness preservation, i.e., the area

(i) generally appears to have been affected primarily by the forces of nature, with thé imprint of man’s work substantially unnoticeable;

(ii) has outstanding opportunities for solitude or a primitive and unconfined type of recreation;

(iii) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and

(iv) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

Id.

In its wilderness assessment, Plaintiffs argue that NPS reassessed its prior 2006 wilderness eligibility determination of the Addition Lands to satisfy political pressure. To substantiate this, Plaintiff points to the fact that in 2002, then-Superintendent John Donahue provided the Regional Director with a “wilderness suitability assessment” that included “determinations” that 128,597 acres of the Addition (approximately 87%) satisfied the wilderness eligibility criteria of the Wilderness Act. A.R. 3463-65. And that one month later, the Regional Director decided without explanation to exclude Superintendent Donahue’s wilderness assessment from the GMP process. See A.R. 3484. Then, in February 2006, NPS decided to revisit the wilderness eligibility assessment process. A.R. 3939, 3983. Thus, in 2006, NPS convened a two-day workshop involving nearly twenty NPS officials, see A.R. 4055, during which those land managers resolved how the statutory criteria must be applied in the Addition and then applied the criteria to each parcel of land in the Addition to determine eligibility. See A.R. 4047-55. NPS then followed that workshop with *1313 “site visits” and “field inspections” to ensure that the areas deemed eligible during the workshop in fact satisfied the statutory criteria on the ground. See, e.g., A.R. 4056-67 & 4131-33, 4341-42 (describing “site visits”), 4346 (discussing “field inspections”), 14428-557,14584-616.

In April 2007, NPS publicly announced that its 2006 eligibility assessment had determined that approximately 109,000 acres (74% of the Addition) satisfied the Wilderness Act eligibility criteria. A.R. 4510. In late 2007, NPS added an area of 2,600 acres, known as “The Gap,” that had been inadvertently eliminated from wilderness eligibility, see A.R. 4816, 4820, resulting in a final aggregate of 111,601 acres (76% of the Addition) that satisfied the statutory criteria.

In May 2009, NPS issued its Draft GMP/EIS for the Addition Lands. A.R. 11863. NPS

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