IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

GULF	RESTORATION	NETWORK, )

)

Plaintiff, )

)

v. ) CIVIL	ACTION	NO.	15-00191-CB-C

)

SALLY	JEWELL,	Secretary	of	the	 )

Interior,	U.S.	DEPARTMENT	OF )

THE	INTERIOR, DR.	KATHRYN	SULLIVAN, )

Undersecretary	of	Commerce	for	the	 )

Oceans	and	Atmosphere	and	NOAA )

Administrator,	NATIONAL	OCEANIC )

AND	ATMOSPHERIC	ADMINISTRATION,	 )

GINA	MCCARTHY,	Administrator	of	the )

Environmental	Protection	Agency, )

ENVIRONMENTAL	PROTECTION )

AGENCY,	TOM	VILSACK,	Secretary	of	 )

Agriculture,	U.S.	DEPARTMENT	OF )

AGRICULTURE,	and )

N.	GUNTER	GUY,	in	his	official	capacity )

As	Commissioner	of	the	Alabama	 )

Department	of	Conservation	&	Natural )

Resources, )

)

)

Defendants. )

OPINION	and	ORDER

This	action	arises	from	restoration	efforts	by	federal	and	state	agencies	following	

the	2010	Deepwater	Horizon	Oil	Spill	in	the	Gulf	of	Mexico.		Specifically,	the	Plaintiff	

challenges	Defendants’	plan to	use	a	portion	of	funds	provided	for early	restoration	of	

natural	resources	to	partially	fund	a	proposed	lodge and	conference	center	at	Alabama’s	

Gulf	State	Park.			The	parties	submitted	the	matter	for	resolution	on	cross	motions	for	

summary	judgment	and	came	before	the	Court	for	oral	argument on	January	26,	2016.		

(Docs.	46,	48,	51,	&	52.)		After	careful	consideration	of	the	administrative	record,	the	

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arguments	of	counsel,	and	the	applicable	law,	the	Court	finds	Plaintiff	is	entitled	to	relief	on	

one	of	the	causes	of	action asserted	in	the Second	Amended	Complaint (SAC).

Introduction

On	April	10,	2010,	the	offshore	drilling	rig	Deepwater	Horizon operated	by	British	

Petroleum	Exploration	and	Production,	Inc.	(BP)	“exploded,	caught	fire	and	subsequently	

sank	in	the	Gulf	of	Mexico,	resulting	in	an	unprecedented	volume	of	oil	and	other	

discharges.”		(AR	026319-20.)		The	oil	spill	was	the	largest	in	United	States	history,	

releasing	millions	of	barrels	over	a period	of	87	days	and	causing	damage	to	natural	

resources	in	all	five	Gulf	Coast	states.		(AR	026320.)	“Affected	natural	resources	include[d]	

ecologically,	recreationally,	and	commercially	important	species	and	their	nearshore	and	

offshore	habitats	in	the	Gulf	of	Mexico	and	along	the	coastal	areas	of	Alabama,	Florida,	

Louisiana,	Mississippi,	and	Texas.”		(Id.)		Pursuant	to	the	Oil	Pollution	Act	of	1990	(OPA),	

the	disaster	triggered	action	by	state	and	federal	agencies,	known	as	“Trustees,”	“to	assess	

natural	resource injuries	and	losses	and	to	determine	the	actions	required	to	compensate	

the	public	for	those	injuries	and	losses.”		(AR	026320.) In April	2011,	the	Trustees	entered	

an	agreement	with BP whereby	BP	agreed	to	make	available	$1	billion	for	early	restoration	

of	natural	resources	while	the	full	injury	assessment	was	ongoing. This	challenge	arises	

under	the	Oil	Pollution	Act	(OPA),	33	U.S.C.	§§	2701,	et	seq.,	the	National	Environmental	

Protection	Act	(NEPA),	42	U.S.C.	§§	4321,	et	seq.,	and	the	Administrative	Procedures	Act	

(APA),	5	U.S.C.	§§	701-706.		The	narrow	issue	presented	by	the	pleadings	and	

administrative	record	in	this	case	is	whether	the	allocation	of	$58.5	million	in BP	early	

restoration	funds	to	partially	construct	a	lodge	and	conference	center	was	properly	arrived	

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at	applying	the	applicable	OPA	and	NEPA	statutes	and	their	regulations,	sufficient	to	

withstand	the	narrow "arbitrary	and	capricious"	standard	of	review	under	the	APA.

The	Parties

Gulf	Restoration	Network	(GRN)	“is	a	non-profit	membership	corporation	

incorporated	under	the	laws	of	the	State	of	Louisiana.		(SAC	¶	15,	Doc.	34.)		GRN	“has	

numerous	members	who	live,	work,	and	take	advantage	of	the	tremendous	outdoor	

recreation	opportunities	in	and	around	Gulf	State	Park.”		(Id.)		The	Defendants	are	Federal	

and	State	Trustees	designated	pursuant	to	OPA	to	conduct	a	Natural	Resources	Damages	

Assessment	and	“develop	a	plan	for	the	restoration,	rehabilitation,	replacement	or	

acquisition	of	the	equivalent,	of	natural	resources	under	their	trusteeship.”		33	U.S.C.	§	

2706(c)(1)(C)	&	(c)(2)(C).		Sally	Jewell	is	sued	in	her	official	capacity	as	Secretary	of	the	

United	States	Department	of	Interior.		Dr.	Kathryn	Sullivan	is	sued	in	her	official	capacity	as	

the	Undersecretary	of	Commerce	for	Oceans	and	Atmosphere	and	Administrator	of	

National	Oceanic	and	Atmospheric	Administration	(NOAA).		Gina	McCarthy	is	sued	in	her	

official	capacity	as	Administrator	of	the	United	States Environmental	Protection	Agency

(EPA).	Tom	Vilsack	is	sued	in	his	official	capacity	as	Secretary	of	the	United	States	

Department	of	Agriculture	(USDA).		Gunter	Guy	Jr.	is	sued	in	his	official	capacity	as	the	

Commissioner	of	the	Alabama	Department	of	Conservation	and	Natural	Resources.

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The	Legal	Framework1

OPA

The	Oil	Pollution	Act	of	1990,	33	U.S.C.	§§ 2701	et	seq.,	was	enacted	in	response	to	a	

series	of	oil	spills,	the	most	notorious	of	which	was	the 1989	grounding	of	the	tanker	Exxon	

Valdez in	Prince	William	Sound,	Alaska.2		United	States	v.	Locke,	529	U.S.	89,	96	(2000).		The	

OPA	was	designed	as	a	“comprehensive	and	far-reaching	approach	to	the	problem	of	oil	

spills.”		Among	other	things,	it	“sets	up	a	federal	system	to	clean	up	oil spills	and	

compensate	victims	and	establishes	a	national	planning	and	response	system	to	ensure	

effective	and	immediate	removal	of	oil	spill in	U.S.	waters.”			136	Cong.	Rec.	H6934	(1990)	

(statement	of	Rep.	Lowey).		In	this	regard,	the	statute	“imposes	liability	(for	both	removal	

costs	and	damages) on	parties	responsible	for	an	oil	spill.”		Locke,	529	U.S.	at	101-02.		

Damages	are	recovered	by	a	trustee	or	trustees appointed,	in	this	case,	by	the	President	

and	by	the	governors	of	the	affected	states.		See	33	U.S.C.	§	2706(a)-(b).		The	trustees	are	to	

assess	damages	to	natural	resources	caused	by	the	discharge of	oil	and	“develop	and	

implement	a	plan	for	the	restoration,	rehabilitation,	replacement,	or	acquisition	of	the	

equivalent,	of	the	natural	resources	under	their	trusteeship.”		Id.	§	2706	(c)(1)	&	(c)(2).		

The	process	of	natural	resource	damage	assessment (NRDA)	is	governed	by	regulations	

																																																							 1 Normally,	a	recitation	of	facts	would	precede	a	discussion	of	the	applicable	law.		In	

this	 case,	 however,	 a	 basic	 knowledge	 of	 OPA,	 NEPA	 and	 the	 APA	 is	 necessary	 to	

understand	the	facts.

2 At	 the	 time,	 the	Exxon	 Valdez was	 the	 biggest	 oil	 spill	in	 history,	 releasing	more	

than	 11	million	 gallons	 of	 crude	 oil.	 	Id.	 	In	 comparison,	 the	Deepwater	Horizon released	

more	than	3.19	million	barrels of	oil,	In	re	Oil	Spill	by	Oil	Rig	“Deepwater	Horizon	in	the	Gulf	

of	Mexico,	77	F.	Supp.	3d	500,	525	(E.D.	La.	2015),	which	according	to	the	Federal	Trustees	

translates	to	134	million	gallons.

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developed	by	NOAA.		Gen.	Elec.	Co.	v.	U.S.	Dept.	of	Commerce,	128	F.3d	767,	770-71	(Fed.	Cir.	

1997);	15	C.F.R. §	990.10	et	seq.

If	the	trustees	determine	that	an	oil	discharge	caused	injury	to	natural	resources	

and	that	restoration	is	required,	they	must “identif[y] a	‘reasonable	range’ of	restoration	

alternatives,	evaluating	them	against	several	factors,	including	cost,	potential	success,	risk	

of	collateral	injury,	and	public	health	and	safety.” Gen.	Elec.,	128	F.3d	at	770	(citing	15	

C.F.R.	§	990.53-990.54.)		Next,	the	trustees	develop	a	Draft	Restoration	Plan	“setting	forth	

the	injury	assessment	procedures	employed,	the	nature	and	extent	of	injuries	resulting	

from	the	discharge,	the	restoration	goals,	the	range	of	restoration	alternatives	considered,	

how	the	alternatives	were	evaluated,	and	which	alternatives	were	chosen.		Id.	At	771	

(citing	15	C.F.R.	§	990.55(b)).		After	public	notice	and	comment,	the	trustees	adopt	a	Final	

Restoration	Plan.		Id. (citing	15	C.F.R.	§	990.55(d)).		Finally,	the	trustees	demand	payment	

from	the	responsible	party	or	parties.		Id. (citing	15	C.F.R.	§	990.62(a)).		

NEPA

The	National	Environmental	Policy	Act	of	1969	(NEPA)	“establishes	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.”		Dept.	of	Transportation	v.	Public	Citizen,	541	U.S.	752,	756	(2004)	

(quoting	42	U.S.C.	§	4321).		NEPA	“does	not	mandate	particular	results”	but	instead	

requires	agencies	to	analyze	the	environmental	impact	of	their	proposed	actions.		Id.		To	

this	end,	NEPA	imposes	“action-forcing procedures”	on	Federal	agencies.		Robertson	v.	

Methow	Valley	Citizens	Council,	490	U.S.	332,	348	(1989).	 The	“heart”	of	NEPA	is	the	

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Environmental	Impact	Statement	(EIS).		Id.		If	a	proposed	major	Federal	action	would	

significantly	affect	the quality	of	the	human	environment,	the	official(s)	responsible	for	the	

proposal	must prepare	an	EIS	that	examines	the	adverse	environmental	impacts	of	the	

action,	alternatives	to	the	proposed	action,	“the	relationship	between	short-term	uses	of	

man’s	environment	and	the	maintenance	and	enhancement	of	long-term	productivity,”	and	

“any	irreversible	and	irretrievable	commitments	of	resources”	involved	in	the	proposed	

action.		42	U.S.C.	§	4332(2)(C).		

Federal	regulations	further	define the	requirements	an	EIS must	meet.		40	C.F.R.	§§

1502.1	et	seq.	Three	of	those	requirements	are	relevant	here.		First,	“it	should	present	the	

environmental	impact	of	the	proposal	and	the	alternatives	[to	that	proposal]	in	

comparative	form.	.	.	providing	a	clear	basis	for	choice	among	options	by	the	decisionmaker	

and	the	public.”	Id. §	1502.14.		Second, the	EIS	must	be	supported	by	evidence	of	the	

environmental	analysis	and	must	identify	methodologies	and	scientific	sources	relied	upon.		

Id. §§	1502.1, 1502.24.		Third,	it	must	consider	the	project’s	effect,	both	direct	and	indirect,	

as	well	as	its	cumulative	impact	on	the	environment.	 Id. §§	§	1502.16	1508.7,	1508.8.

APA

The	Administrative	Procedures	Act	(APA),	5	U.S.C.	§§	701-70,	permits	any	person	

adversely	affected	by	a	Federal	agency’s	action	to	obtain	judicial	review	of	that	action	in	

Federal	court.		Id. §§	702,	703.		“The	APA	provides	for	judicial	review	of	‘final	agency	action	

for	which	there	is	no	other	adequate	remedy	in	a	court.’”	Franklin	v.	Massachusetts, 505	U.S.	

788,	796	(1992)	(quoting 5	U.S.C.	§	704). Thus,	when	a	statutory	scheme	(such	as	NEPA	or	

OPA)	provides	no	private	right	of	action,	an	aggrieved	party	may	seek	review	under	the	

APA.		See,	e.g., Marsh	v.	Oregon	Natural	Resources	Council,	490	U.S.	360	(1989)	(reviewing	

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agency’s	NEPA	action	under	APA);	Bean	Dredging,	LLC	v.	United	States,	773	F.	Supp.	2d	63	

(D.D.C.	2014)	(reviewing	agency’s	OPA	action	under	APA).		An	agency’s	action	may	be	set	

aside	under	the	APA	if	it	was	“arbitrary,	capricious,	an	abuse	of	discretion,	or	otherwise	not	

in	accordance	with	law.”			5	U.S.C.S	§	706(2)(A).		The	“arbitrary	and	capricious”	standard	of	

review	is	highly	deferential.		As	the	Eleventh	Circuit	has	explained:

Along	the	standard	of	review	continuum,	the	arbitrary	and	capricious	

standard	gives	an	appellate	court	the	least	latitude	in	finding	grounds	for	

reversal;	‘[a]dministrative	decisions	should	be	set	aside	in	this	context	...	only	

for	substantial	procedural	or	substantive	reasons	as	mandated	by	statute,	...	

not	simply	because	the	court	is	unhappy	with	the	result	reached.’	The	agency	

must	use	its	best	judgment	in	balancing	the	substantive	issues.	The	reviewing	

court	is	not	authorized	to	substitute	its	judgment	for	that	of	the	agency	

concerning	the	wisdom or	prudence	of	the	proposed	action.

North	Buckhead	Civic	Ass’n	v.	Skinner,	903	F.2d	1533,	1538-39	(11th Cir.	1990).

Facts

Early	Restoration	&	the	Framework	Agreement

The	Deepwater	Horizon’s unprecedented	oil	spill,	beginning	April	20,	2010 and	

continuing	87	days	until	the	oil	well	was	capped,	triggered	OPA’s	natural	resources	damage	

assessment	(NRDA)	provisions. Federal	Trustees	and	State	Trustees	from	the	five	affected	

states	(Alabama,	Florida,	Louisiana,	Mississippi,	and	Texas)	began	to	assess	injuries	to	

natural	resources	from	the	spill.		One	year	later the	Trustees	entered	into	an	agreement	

with	BP.3 In	this	agreement,	entitled	“Framework for	Early	Restoration	Addressing	Injuries	

Resulting	from	the	Deepwater	Horizon	Oil	Spill”	(Framework	Agreement),	BP	agreed	to	

																																																							 3 BP’s	liability	under	the	OPA	was	subsequently	officially	determined	by	the	United	

States	 District Court	 for	 the	 Eastern	 District	 of	 Louisiana.	 	 See	 In	 re	 Oil	 Spill	 by	 Oil	 Rig

Deepwater	Horizon	in	 the	Gulf	of	Mexico	on	April	20,	2010,	21	F.	Supp.	3d	657,	754	n.	283	

(E.D.	La.	2014).		

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provide	up	to	$1	billion	toward	early restoration	projects	to	begin	addressing injuries	to	

natural	resources	resulting	from	the	Spill.		(AR 007611-45.)	In	exchange,	BP	would	get	a	

credit	against	its	total	liability	(called	an	“NRD	offset”)	for	each	project	funded	under	the	

Framework	Agreement.		(AR	007613-14.)		The	agreement	set	out	the	process	by	which	

projects	would	be	funded.		First,	the	Trustees	would	select	project	proposals.		(AR	007613.)		

Next,	the	proposal	would	be	submitted	to	BP	and	the	parties	would	negotiate	the	NRD	

offset.		(Id.)		Once	the	NRD	offset	was	determined,	the	parties	would	enter	a	Project	

Stipulation	with	respect	to	that	project.		(Id.)		No	project	could	be	funded	under	the	

Framework	Agreement	“unless	all	of	the	[p]arties	agree[d]upon	the	project	and	applicable	

NRD	Offsets	for	that	project	and	execute[d]	a	Project	Stipulation.”		(Id.) Finally,	the	project	

would	be	submitted	for	public	review	and	comment.		(AR	015193.)

Early	restoration	projects	were	planned	to	take	place	in	three	phases.		(AR	015251-

53.)	Phase	I	and	Phase	II,	which	totaled	$71	million,	were	approved	in	April	and	December	

2012,	respectively.		The	project	at	issue	here	is	part	of	Phase	III.

Phase	III &	the	Alabama	Gulf	State	Park	Project

The	Phase	III plan,	finalized	in June	2014,	is	composed	of	44	projects	in	five	states.	

(AR	105185.)		Two	types	of	projects	were	chosen	for	funding	in	this	phase:	(1)	restoration	

of	habitats	and	living	coastal and	marine	resources	and	(2)	recreational	use	opportunities.		

(AR	015191.)			The	total	cost	of	these	projects	is	approximately	$627	million,	

approximately	one-third	of	which	($230	million)	is	dedicated	to	recreational	use.		(AR	

015193.)		The	projects	are	intended	to	be	independent	of	each	other,	so	that	selection	of	

one	project	does	not	affect	the	viability	of	any	other	project.		(AR	015193.)

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At	an	estimated	$85.5	million	the	Gulf	State	Park	Enhancement	Project is	the	most	

expensive	recreational	use	project,	by	far,	and	the	second	most	expensive	Phase	III	project.

4		

(AR	015195-015197.)		Of	the	total	amount	dedicated	to	Gulf	State	Park,	$58.5	million	is	to	

be	set	aside	as	partial	funding	for	construction	of	a	proposed	lodge and	conference	center

(“the	lodge/conference	center”),	with	the	remainder	going	to	build	an	interpretive	center,	a	

research	and	education	center,	other	visitor	enhancements,	(such	as	trail	improvements	

and	signage), and	dune	habitat	restoration.	 (AR 018733-34.)	 Pursuant	to	the	Framework	

Agreement,	BP	and	the	Trustees	entered	into	a	Project	Stipulation	approving	the	project	

and	agreeing	to	an	NRD	offset amount.		(AR	018715-37.)		In	this	instance,	the	agreed	offset	

ratio	is	2:1.		In	other	words,	for	every	$1	spent	on	the	Gulf	State	Park	Enhancement	Project	

BP	is	to	be	given	$2 credit.		Thus,	by	setting	aside	$58.5	million	in	funding	for	a	proposed	

lodge	and	conference	center,	the	Trustees	and	BP would	also	remove	an	additional	$58.5	

million	from early	restoration	funding.

At	the	time	Phase	III	was	approved,	the	Gulf	State	Park	lodge and	conference	center	

was	little	more	than	a	concept.

5		The	lodge/conference	center	was	projected	to	have	

approximately	350	rooms	and	meeting	space	for	up	to 1500	attendees.		(AR	016343.)

There	were	no	architectural	plans	(only	a	sketch	of	what	a	lodge/conference	center	might

look	like),	no	specific	cost	estimates,	and	no	timetable	for	completion.	(AR 016344-45;	AR	

016337.)	 The	Trustees	conceded	that	the	$58.5	million	allocated	would	not	be	sufficient	to	

																																																							 4 The	only	project	more	expensive	is	the	Louisiana	Outer	Coast	Restoration	project,	

for	restoration	of	barrier	islands	and	beaches,	at	$318	million.	(AR	015195.)		

5 The	 project	 was	 to	 be	 built	 on	 the	 site	 of	 the	 original	 Gulf	 State	 Park	lodge	 and	

conference center,	which	was	destroyed	by	Hurricane	Ivan	in	2004.

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fund	the	entire	project,	and	they	did	not	explain	where	the	remaining	money	would	come	

from,	when	it	would	be	available,	when	the	project	would	be	completed,	or	what	would	

happen	to	the	$58.5	million	if	the	project	did	not	come	to	fruition.		(AR 016336-37.)

The	Phase	III	Programmatic	Environmental	Impact	Statement

The	Trustees	prepared	and	submitted	a	Phase	III	Programmatic	Environmental	

Impact	Statement	(PEIS)	for	public	comment	and held	public	meetings	before	adopting	the	

final	PEIS	in	June	2014.		(AR	015184-88.)				The	PEIS	is	broad,	covering	all	Phase	III	

projects,	and	uses	“[a]	programmatic	approach	to	assist the	Trustees	in	evaluation	of	

proposed	projects.”		(AR	015190.)		Four	categories	of	potential	programs	were	identified:		

(1)	No	action	(i.e.,	no	additional	early	restoration);	(2)	Restoration	of	habitat	and	living	and	

coastal	marine	resources;	(3)	Enhanced	recreational	use	opportunities;	(4)	a	combination	

of	(2)	and	(3).		(AR	015191.)	The	Trustees	chose	alternative	(4)—a	combination	of	

restoration	and	recreational	use.		(Id.)		Each	of	the	44	projects	falls	within	one	of	these	

broad	programmatic	categories,	sometimes	referred	to	as	“alternatives”.		(AR	015195-

015197.)		The	PEIS	explained	the	purpose	and	need	for	Phase III	action	as	follows:		“For	the	

purpose	of	accelerating	meaningful	restoration	of	injured	natural	resources	and	their	

services	resulting	from	the	Spill,	the	Trustees	propose	to	continue	implementation	of	Early	

Restoration	in	accordance	with	the	Oil	Pollution	Act	(OPA)	and	using	funds	made	available

in	the	Framework	Agreement.”		(AR	015239.)

The	Alabama	Gulf	State	Enhancement	Project was	designated	a	restoration	project	

designed	to	make	up	for	the	loss	of	recreational	use	caused	by	the	spill.		According	to	the	

PEIS,	the	lodge/conference	center	portion	of	the	project	would	make	up	for	lost	

recreational	use	by	creating	approximately	120,000	new	visitor	nights	per	year	and	a	

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roughly	comparable	number	of	visitor-days	at	the	park.		The	PEIS	did not	explore	any	

potential	alternative	projects;	instead,	it	concluded that	the	only	alternative to	the	project	

is	“No	Action”,	i.e.,	“the	Trustees	would	not	pursue	the	Gulf	State	Park	Enhancement	Project	

as	part	of	Phase	III	Early	Restoration.”		(AR	016360.)

Issues	Presented

In	this	action,	GRN challenges	the	lodge/conference	center	contained	within	the	

Alabama	Gulf	State	Park	Enhancements	Project.		GRN	asserts	that	the	Trustees’	actions	

were	arbitrary	and	capricious	(in	violation	of	the	APA)	in	three	respects.		First,	the	PEIS

failed	to	conduct	the	alternatives	analysis	required	by	both	NEPA	and	OPA.		Specifically,	

GRN	argues	the	PEIS	is	deficient	because	it	does	not	discuss	alternatives	to	the	

lodge/conference	center other	than	the	“no	action”	alternative.		This,	GRN	alleges,	is	a	

violation	of	NEPA	and	OPA.		Second, GRN	contends	the	PEIS		“provides	little	or	no	data to	

support	the	principal	justification for .	.	. the	[lodge/conference	center	project]” and	

therefore	violates	NEPA	regulations	requiring	explanation	of	methodologies	used	and	

citation	to	scientific	data.		(SAC	¶	93,	Doc.	34)	Third,	GRN	contends	the	PEIS	violates	NEPA	

because	it	fails	to	analyze	the	cumulative	and	indirect	impacts of	the	project. GRN	seeks	

declaratory	and	injunctive	relief,	including	an	order	enjoining	further	action	on	the	

lodge/conference	center. 6

Both	the Federal	Trustees	and	the	State	Trustee	deny	their	actions	were	arbitrary	

and	capricious, although their	arguments	are	not	identical.		With	respect	to	the	alternatives	

analysis,	the	State	Trustee	argues	the	program-level	alternatives	analysis	was	sufficient	to	

																																																							 6 The	 SAC	 actually	 asserts	 four	 causes	 of	 action,	 but	 the	 fourth	 is	 a	 claim	 for	

injunctive	relief	against	the	State	Trustee	under	the	All	Writs	Act,	28	U.S.C.	§	1651.

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meet	NEPA	and	OPA	requirements.		The	Federal	Trustees,	on	the	other	hand,	do	not	rely	on	

the	program-level	alternatives	analysis.		Instead,	they	argue	the	project-level	alternatives	

analysis	(which	discussed	only	the	proposed	project	and	“no	action”)	was	sufficient	under	

the	circumstances	to	meet	the	requirements	of	NEPA	and	OPA.		Both	Federal	and	State	

Trustees	argue	GRN’s	second	claim	is	not	a	valid	NEPA	claim	because	the	alleged	missing	

data	does	not	relate	to	the	environmental	effects	of	the	proposed	action.		Likewise,	both	

contend	that	the	PEIS	adequately	addressed	the	cumulative	environmental	impacts	of	the	

project.

Legal	Analysis

First	Cause	of	Action:		NEPA/OPA Alternatives	Claim

Both	NEPA	and	OPA	require	a	comparative	analysis	of	the	proposed	project	and	the	

alternatives	to	the	project.	40 C.F.R.	§	1502.14 (NEPA);	15	C.F.R.	§	990.55(b)	(OPA).		

Although	OPA	and	NEPA	focus	on	different	substantive goals,	the	process	is	the	same.	In	

fact the	OPA	process	was	intended	to	“mirror[	]	the	decisionmaking	process	embodied	in	

NEPA.”	61	Fed.	Reg.	440,	441	(1996).		Consequently,	the	two	claims	will	be	analyzed	as	

one.7 The	alternatives	analysis	is	“the	heart	of	the	environmental	impact	statement.” 40	

C.F.R.	§1502.14.		The	EIS	“should	present	the	environmental	impacts	of	the	proposal	and	

the	alternatives	in	comparative	form,	thus	sharply	defining	the	issues	and	providing	a	clear	

basis	for	choice	among	options	by	the	decisionmaker	and	the	public. Id. The	EIS	“shall”	

include	the	following:	

																																																							 7 The	State	Trustee	argues	the	Recreational	Use	Alternatives	document	prepared	by	

the	 State	 prior	 to	 choosing	 the	 Gulf	 State	 Park	 project	 satisfied	 the	 OPA	 alternatives	

analysis.			 Because	 the	 OPA	 process	 mirrors	 NEPA,	 that	 document	 cannot	 be	 sufficient	

under	OPA	unless	it	is	also	sufficient	under	NEPA.

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(a)	Rigorously	explore	and	objectively	evaluate	all	reasonable	alternatives,	

and	for	alternatives	which	were	eliminated	from	detailed	study,	briefly	

discuss	the	reasons	for	their	having	been	eliminated.

(b)	Devote	substantial	treatment	to	each	alternative	considered	in	detail	

including	the	proposed	action	so	that	reviewers	may	evaluate	their	

comparative	merits.

(c)	Include	reasonable	alternatives	not	within	the	jurisdiction	of	the	lead	

agency.

(d)	Include	the	alternative	of	no	action.

(e)	Identify	the	agency's	preferred	alternative	or	alternatives,	if	one	or	more	

exists,	in	the	draft	statement	and	identify	such	alternative	in	the	final	

statement	unless	another	law	prohibits	the	expression	of	such	a	preference.

(f)	Include	appropriate	mitigation	measures	not	already	included	in	the	

proposed	action	or	alternatives.

40	C.F.R.	§	1502.14.

Initially,	the	State	Trustee	argues	that	the	programmatic alternatives	analysis

satisfies	the	alternatives	requirement.		That	analysis	considered	alternatives	at	the broader	

program	level,	not at	the	specific	project	level.		It	examined	the	types	of	program	

alternatives	that could	be	adopted	in	Phase	Three	Early	Restoration:	(1)	No	action	(i.e.,	no	

additional	early	restoration);	(2)	Restoration	of	habitat	and	living	and	coastal	marine	

resources;	(3)	Enhanced	recreational	use	opportunities;	(4)	a	combination	of	(2)	and	(3).		

Of	those	alternative	programs,	the	Trustees	chose	option	(4).		Option	(4)	consisted	of	44	

different	projects	in	five	states.		When	an	agency	proposes	to	commit	resources to	a	specific	

project	as	part	of	a	broader program,	it	must	provide a	sufficiently	detailed	alternatives	

analysis	of	the	project.		See Ilio’ulaokalani	Coalition	v.	Rumsfeld,	464	F.3d	1083,	1095-96	

(9th Cir.	2006)	(because	Army	did	not	consider	site-specific	alternatives	in	programmatic	

EIS,	alternatives	analysis	was	required	in	supplemental	EIS);	see	also New	Mexico	ex	re.	

Richardson	v.	Bureau	of	Land	Mgmt.,	565	F.3d	683,	716-19	(10th Cir.	2009)	(discussing	need	

for	site-specific	alternatives	analysis	for	oil	and	gas	leases	on	federal	land).		The	PEIS’s	

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examination	of	programmatic	alternatives	is	not	project	specific	and,	therefore,	does	not	

satisfy	the	alternatives	analysis	requirement.

With	respect	to	the	Gulf	State	Park	project,	the	PEIS	discussed	only	two	alternatives:		

(1)	go	forward	with	the	project	as	proposed	or	(2)	no	action.		 GRN	points	to	several	

reasonable	alternatives	that	could	have	been	addressed:		

• Purchase	property	for	public	access	and	conservation.

• Restore	wetlands	and	shoreline.

• Build	habitat.

• Allow	private	entity	to	fund	or	partially	fund	lodge construction	and	apply	funds	to	

restoration.

• Build	public	education	and	trails	component	and	forego	lodge/convention	center.		

The	Trustees	do	not	dispute	that	these	are,	in	theory,	reasonable	alternatives.		They	argue,	

however,	that	these	alternatives	are	unreasonable	because	they	could	not	have	been	

implemented	under	the	Framework	Agreement.		

The	Trustees’ circular logic	goes	something	like	this:		All	funding	for	early	

restoration	comes	from	BP	via	the	Framework	Agreement.		The	Framework	Agreement	

provides	that	only	projects	agreed	to	by	BP	and	the	Trustees	in	a	Project	Stipulation	will	be	

funded.		No	project	can	go forward	without	funding.		Unless	BP	and	the	Trustees	have	

agreed	to	a	project,	any	other	project	is	not	a	reasonable	alternative	because	it	cannot	be	

funded.	Therefore,	BP	and	the	Trustees decide	which alternatives	are	reasonable because	

only	BP	and	the	Trustees	decide	which	projects	are	funded.		Simply	put,	the	Trustees	choose	

a	project,	take	it	to	BP,	enter	a	Project	Stipulation,	and	there	can	be	no	alternative	other	

than	the	“no	action”	alternative.	

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The	purpose	of	alternatives	analysis	“is	to	inform	both	the	public	and	the	

decisionmaker,”	by	giving	them	clearly	defined	alternatives.		Citizens	Against	Burlington,	

Inc.	v.	Busey,	938	F.2d	190,	195	(D.C.	Cir.	1991).		Of	course,	only	alternatives	that	are	

reasonable,	or	feasible,	require	discussion.		Id.		Whether	an	alternative	is	reasonable	

depends	upon	the	goals	of	the	agency’s	action,	but	“an	agency	may	not	define	its	goals	in	

terms	so	unreasonably	narrow	that	only	one	alternative	from	among	the	environmentally	

benign	ones	in	the	agency’s	power	would	accomplish	the	goal,	and	the	EIS	would	become	a	

foreordained	formality.”		Id.	at	196.			The	Trustees	point	to	the	PEIS’s	“purpose	and	need”	

statement—to	accelerate	meaningful	restoration—and	argue	that	they	have	fulfilled	their	

duty	to	consider	a	reasonable	range	of	restoration	alternatives.			Since	there	could	be	no	

early	restoration	project	absent	an	agreement	with	(and	funding	from)	BP,	no	other	project	

could	achieve	the	stated	goal.		Hence,	there	was	no	“reasonable”	alternative	other	than	the	

“no	action”	alternative.		This	is	the	paradigm	of	a	self-fulfilling	prophecy.		While	“no	

minimum	number	of	alternatives”	must	be	considered,	Citizens	for	Smart	Growth	v.	Sec’y	

Dept.	of	Transp.,	669	F.3d	1203,	1212	(11th Cir.	2012),	agencies	must	present	a	reasoned	

alternatives	analysis.		

At	both	the	program	level	and	the	project	level,	the	Trustees	have	unreasonably	

narrowed	the	universe	of	possible	alternatives	to	two:		(1)	go	forward	with	the	project	as	

proposed	or	(2)	no	action.	In	the	PEIS	programmatic	alternatives analysis,	the	Trustees	

combined	projects	involving	restoration	of	habitat	and	marine	life	with	projects	involving	

recreational	use.	 By	doing	so,	they	created	projects	that	could	be	funded	under	the	

Framework	Agreement.			At	the	project	level,	the	Trustees	contend	that	the	only	reasonable	

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alternative	is	a	project	that	can	be	funded.		Since	funding	requires	a	Project	Stipulation	

between	the	Trustees	and	BP,	only	those	projects	are	reasonable.

Moreover,	the	Trustees	are	simply	wrong	in	their	conclusion	that	the	Framework	

Agreement/Project	stipulation	precludes	the	funding	of	alternative	projects.		The	Trustees	

argue	that	a	full	alternatives	analysis	was	not	possible	because	there	was	no	method	for	

funding	any	alternative	project.		The	Project	Stipulation	provides	that	“[a]t	any	time	after	

BP[	]	has	made	full	payment	[of	Phase	III	funds],	the	Trustees	may	for	good	cause	elect	not	

to	implement	the	Early	Restoration	Project.”8		(AR	018718.)			The	Trustees	may	retain	

unspent	funds	and	apply	them	“to	one	or	more replacement	project(s),	which	may	include	

a	modified	version	of	the	project	.	.	.	[and]	shall	be	designed	for	lost	recreational	use	

provided	by	natural	resources	injured	in	Alabama.”		(AR	018719.)	 This	language	lends	

itself	to	no	other	interpretation	but	that	there	were	alternatives	other	than	those	selected	

projects	that	could	have	been	funded.

This	case	demonstrates	the	importance	of	providing	a	clear	and	meaningful	analysis	

of	alternatives.		The	Trustees	and	BP	agreed	to	take	$58.5	million	dollars	($117	million	

total,	with	NRD	offsets)	out	of	the	“pot”	of	funds	available	for	early	restoration	with	the	

intention	of	setting	those	funds	aside	for	possible	use	in	a	project	that,	at	the	time,	was	little	

more	than an idea and	could	not	come	to	fruition	for	many	years,	if	at	all.			Clearly,	the	

Trustees	failed	to	evaluate whether	there	were	reasonable	restoration	alternatives	that	

would	have	conformed	to	the	requirements	of	OPA	and	NEPA.		Their failure to	do	so was	

arbitrary	and	capricious.		GRN	is	entitled	to	summary	judgment	on	this	cause	of	action.

																																																							 8 By	 the	 terms	of	 the	agreement,	 funds	were	 to	be	 transferred	 to	 the	State	Trustee	

within	14	days	after	the	Project	Stipulation	was	filed

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Second	Cause of	Action:		NEPA	Claim/Insufficient	Data	

In	this	cause	of	action,	GRN	alleges	that	the	PEIS	does	not	satisfy	NEPA’s	

requirement	that	“the	environmental	impact	statement	be	supported	by	evidence	that	the	

agency	has	made	the	necessary	environmental	analysis,”	40	C.F.R.	§	1502.1,	because	it	does	

not	“identify	any	methodologies	used”	or	“make	explicit	reference.	.	.	to	the	scientific	and	

other	sources	relied	upon.”	40	C.F.R.	§	1502.24.		Specifically,	GRN	contends	the	record	does	

not	support	the Trustees	conclusion	that	a	lodge and	conference	center	would	make	up	for	

lost	recreational	use	by	bringing	new	visitors	to	the	beach.		In	support	of	its	claim,	GRN	

points	to	the	lack	of	data	to	support	the	number	of	visitor	nights the	lodge/conference	

center	would	bring	or	to	support	the	need	for	short-term	lodging	in	the	area.		However,	as	

the	Trustees	point	out,	these	alleged	deficiencies do	not	relate	to	the	environmental	

analysis	required	by	NEPA	but	to	the	issue	of lost	recreational	use,	a	claim	that	can	only	be	

asserted under	OPA.	40	C.F.R.	§	1502.1.		Because	GRN	points	to	no	deficiency	in	that	regard,	

it	has	failed	to	meet	its	burden	of	proving	that	the	Trustees	acted	arbitrarily	and	

capriciously.		The	Trustees	are	entitled	to	summary	judgment	on	this	cause	of	action.9

Third	Cause	of	Action:		NEPA	Claim/Failure	to	Consider	Cumulative	Impacts	&	

Indirect	Effects

An	environmental	impact	statement	must	consider	not	only	the	direct	effects	of	a	

proposed	action	but	also	cumulative	impacts	and	indirect	effects	of	“past,	present,	and	

reasonably	foreseeable	future	actions	regardless	of	what	agency	or	person	undertakes	such	

other	actions.”		Utahns	for	Better	Transp.	v.	United	States	Dep't	of	Transp., 305	F.3d	1152,	

																																																							 9 The	 Court	 does	 not	 reach	 the	 Trustees’	 alternative	 argument	 that	 the	 data	were	

sufficient	to	support	conclusions	regarding	the	need	for	short-term	lodging.

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1174	(10th	Cir.	2002), modified,	319	F.3d	1207	(10th	Cir.	2003);	see	also 40	C.F.R.	§	1508.7

(defining	cumulative	impacts);	40	C.F.R.	§	1502.16	(EIS	must	include	discussion	of	indirect	

effects);	40	C.F.R.	1508.8	(defining	indirect	effects);	see	also	Sierra	Club	v.	Marsh,	976	F.2d	

763,	770	(1st Cir.	1992)	(discussing	direct	and	indirect	effects	requirement).		GRN	asserts	

the	PEIS	failed	to	consider	the	following	indirect	effects	or	cumulative	impacts:		(1)	the	

reconfiguration	of	an	intersection	or	widening	State	Road	182	at	one	entrance	to	the	

proposed	lodge/conference	center;	(2)	the	construction	of	a	new	road	to	accommodate	a	

likely	increase	in	traffic;	and	(3)	the	likelihood	the	project	will	lead to	new	development.		

None	of	these	actions	are	reasonably	foreseeable.

The	Trustees	contend	the	first	argument,	regarding	road	changes	to	accommodate	

the	lodge	entrance, is	based	on	a	misreading	of	the	record.		The	cited	paragraph	from	the	

PEIS	states:

The	proposed	project	would	be	accessed	via	the	existing	four-way,	signalized	

SR	182	and	135	intersection	and	a	reconfigured	T-intersection	at	SR	182	and	

the	old	[Gulf	State	Park]	lodge’s	east	access.		At	the	second	location	,	the	reestablished	lodge	would	be	accessed	via	SR	182	by	a	right-in	and	right-out	

configuration.		SR	182	would	need	to	be	widened	to	accommodate	a	left-turn	

lane	from	westbound	SR	182,	or	an	alternative	intersection	configuration	

would	need	to	be	implemented to	support	increased	access	to	the	lodge.

(AR	016432,	emphasis	added.)		The	wording	could	be	clearer,	but	what	this	paragraph	

describes	is	two	entrances.		The	first	would	provide	complete	access	in	and	out	via	a	traffic	

light	at	SR	182	and	135.		The	second	would	provide	only	limited access—eastbound	

vehicles	could	turn	right	into	the	second	entrance	and	exiting	vehicles	could	only	turn	right

onto	SR	182.		If	increased	access	were	desired,	i.e.,	to	make	this	entrance	accessible	to	and	

from	both	east	and	west,	it	would	be	necessary	to	widen	SR	182	or	reconfigure	the	

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intersection.		 Therefore,	contrary	to	GRN’s	argument,	the	record	does	not	support	the	

claim	that	additional	roadwork	would	be	reasonably	foreseeable.		

Likewise,	the	record	does	not	support	GRN’s	claim	that	construction	of a	new	northsouth	road	would	likely	be	necessary	to	support	the	increase	in	traffic	resulting	from	the	

proposed	lodge/conference	center.		The	Trustees	conducted	a	traffic	study,	detailed	in	the	

PEIS,	and	concluded the	impacts	of	increased	traffic	would	be moderate,	with	the	greatest	

increase	in	travel	delay	being	12.1	seconds	during	peak	periods.		(AR	016432-34.)		Based	

on	this	information,	the	Trustees	concluded	that	new	road	construction	was	not	reasonably	

foreseeable.		(AR	018412.)		The	only	evidence	GRN	cites	to	the	contrary	is	a	newspaper	

article	in	which	the	mayor	of	Gulf	Shores	expressed	his	support	for	the	lodge/convention	

center	because	he	believed	it	would	force	the	state	to	build	a	north-south	road	through	Gulf	

State	Park.		The	mayor’s	opinion	does	not	contradict	the	Trustees’	traffic	study,	nor	does	it	

provide	evidence	that	the	state	would	be	likely	to	construct	a	new	road	to	accommodate	

lodge/conference	center	traffic.

Finally, GRN	criticizes	the	PEIS’s	conclusion	that	the	project	will	not	result	in	

substantial	new	development.		GRN	does	not	actually	point	to	any	evidence	that	substantial	

new	development	is	likely	to	occur.		Instead,	it	merely	points	out	alleged	inconsistencies	in	

the	Trustees’	projections.		Specifically,	one	justification	for	the	project	is	the	lack	of	shortterm	lodging,	but	the	traffic	study assumed	75%	of	the	conference	attendees	would	stay	

offsite.		The	traffic	study	focused	on	peak	flows	and	assumed	the	conference	center	was	in	

full	use.		(AR	016432.)		In	other	words,	it	was	not	predicting	the	number	of	visitors,	only	

what	would	happen	to	traffic	if	the	conference	center	was	at	maximum	capacity.		GRN’s	

only	other	argument	is	a conclusory	assertion	that	the	projected	number	of	annual	visitors

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will	“inexorably”	lead	to	new	development.		As	the	Trustees	point	out,	the	projected	

number--210,000	visitors	per	year—equates	to approximately	310	visitors	per	day.		

Nothing	in	the	record	indicates	to	the	Court	that	an	increase	of	this	size	would	make	new	

development	reasonably	foreseeable.

In	sum,	the	Trustees	did	not	act	arbitrarily	or	capriciously	in	failing	to	consider	

indirect	effects	or	cumulative	impacts	that	were	not	reasonably	foreseeable.		Therefore,	

they	are	entitled	to	summary	judgment	on	this	cause	of	action.

Fourth	Cause	of	Action/Relief Requested

GRN seeks	the	following	relief	:		(1)	a	declaration	that	the	Federal	Trustees	violated	

NEPA	and	OPA	by	approving	the	lodge/conference	center; (2)	“Declare	unlawful	and	set	

aside	the	Record	of	Decision	as	it	relates	to	the	[lodge/conference	center];”	(3)	“Declare	

unlawful	and	set	aside	the	Project	Stipulation,	as	it	relates	to	approving	the	

[lodge/conference	center];”	(4)	Order	the	Federal	Trustees	to	withdraw	their	approval	of	

the	“lodge/conference	center];”		(5)	“Enjoin	the	Federal	Trustees	and	Commissioner	Guy	

from	taking	any	action	in	furtherance	of	the	[lodge/conference	center]	until	the	Federal	

Trustees	comply	with	the	law;”	and	(6)	award	attorney	fees	and	costs.		In	a	separate	cause	

of	action,	GRN	asserts	its	right	to	prospective	injunctive	relief	against	Commissioner	Gunter	

Guy,	the	designated	Implementing	Trustee.		

GRN	has	prevailed	on	their	claim	that	the	Trustees	failed	to	conduct	a	NEPA/OPA	

alternatives	analysis with	respect	to	the	allocation	of $58.5	million	in	BP	early	restoration	

funds	to partially	fund	the	lodge/conference	center.		The	Court	can,	and	will,	enjoin	the	use	

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of	those	funds	pending	further	review	by	the	Trustees.10		However,	based	on	the	

administrative	record	before	it,	and	the	narrow	issue	presented	by	the	pleadings,	the	Court	

cannot	enjoin	the	Commissioner	or	the	State	from	building	the	lodge/conference	center	

with	funds other	than	early	restoration	funds.

The	Court	will	withhold	ruling	on	GRN’s	request	for	attorney’s	fees and	costs

pending	further	briefing.		Within	thirty	days	of	the	date	of	this	order,	GRN	may	file	a	

properly	supported	motion,	including	citation	to	authority	permitting	the	award	of	fees	and	

costs	as	well	as	documentation	supporting	the	hours	expended	and	the	hourly	rate	

charged.		A	briefing	schedule	will	be	entered	after	the	motion	is	filed.

Conclusion

Summary	judgment	is	granted	in	favor	of	GRN	as	to	the	OPA/NEPA	claim, asserted	

in	the	First	Cause	of	Action,	that	the	Trustees	acted	arbitrarily	and	capriciously	by	failing	to	

conduct	a	proper	alternatives	analysis.	 Summary	judgment	is	granted	in	favor	of	the	

Trustees	on	the	remaining causes	of	action.		Judgment	will	be	entered	by	separate	order.

DONE	and	ORDERED this	the	16th day	of	February,	2016.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

																																																							 10 GRN	has	not	requested	injunctive	relief	with	respect	to	the	remaining	portion	of	

early	restoration	funds	allocated	to	the	Gulf	State	Park	Enhancements	Project.	

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