MEMORANDUM & ORDER Plaintiff Travis D’Arienzo, individually and as a shareholder on behalf of Mermaid Market and Catering, Inc. (“Mermaid Market”), commenced this action on December 29, 2020, against the Fire Island National Seashore (“FINS”), an agency of the United States, Alex Romero, in his official capacity as Superintendent of FINS, and Sonia Taiani,1 an employee of FINS. (Compl., Docket Entry No. 1.) Plaintiff asserts a claim under the Administrative Procedure Act, 5 U.S.C. §701 et seq. (the “APA”) and seeks declaratory and injunctive relief in connection with Defendants’ denial of his driving permit. (Id. at 7.) Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and Plaintiff opposes the motion.2 For the reasons set forth below, the Court grants Defendants’ motion for summary judgment. I. Background a. Plaintiff’s driving permits Plaintiff owns Mermaid Market in Ocean Beach, Fire Island. (R. 1.) Access to Ocean Beach and other communities on Fire Island is available by ferry or by driving a motor vehicle across a bridge and along a designated off-road route through protected Fire Island National Seashore land (the “Seashore”). 16 U.S.C. §459e; 36 C.F.R. §7.20(a); Friends of Animals v. Fellner, No. 16-CV-6006, 2018 WL 11432021, at *1 (E.D.N.Y. July 24, 2018) (describing Seashore lands), aff’d sub nom. Friends of Animals v. Romero, 948 F.3d 579 (2d Cir. 2020). FINS, a unit of the National Park Service (“NPS”), is the government agency responsible for conserving and preserving Seashore lands. 16 U.S.C. §459e-6. To minimize the impact that vehicles have on protected Seashore land, FINS may issue only a finite number of driving permits on the island for vehicles engaging in designated purposes, such as construction and business vehicles. See 36 C.F.R. §7.20(a)(3), (a)(6), (a)(8)(i); see id. §7.20(a)(8)(ii)(E) (“No more than 80 permits at any time are issued to construction and business vehicles. An operator of a construction or business vehicle who is denied a permit because the limit has been reached is placed on a waiting list.”). Plaintiff has applied for and received several temporary driving permits and, as of December of 2020, had been on the waiting list for a permanent permit “for a couple of years.” (R. 97.) i. January to April of 2018 driving permits In January of 2018, Plaintiff applied for a temporary driving permit to access Fire Island “[w]hen the bay freezes and the ferries do not run,” which prevents his business from opening. (Id. at 1.) FINS issued Plaintiff two temporary driving permits as a “Construction/Business Vehicle.” (Id. at 13-16.) The first permit was valid from January 10, 2018, through January 23, 2018, and the second permit was valid from February 14, 2018, through April 14, 2018. (Id.) The permits authorized Plaintiff “to travel across Fire Island National Seashore lands to transport workers, supplies, and materials from the mainland to Fire Island for work involved in the operation of a year round retail business when ferries and waterborne conveyances do not provide access.” (Id. at 13; see also id. at 15.) ii. November of 2018 to April of 2019 driving permit In October of 2018, Plaintiff again applied for a temporary driving permit to “continue to support the winter community as the ONLY food/grocery open to service the residents.” (Id. at 17.) Plaintiff stated that Mermaid Market “[p]rovides year round service to the community and workers coming to work on the barrier island.” (Id. at 20.) Plaintiff sought to be “open before the first ferry gets to the island to have coffee and breakfast items ready for workers coming over.” (Id.) In addition, Plaintiff explained that “[v]endors will not deliver inventory to freight boat unless there is a minimum purchase,” to which Mermaid Market cannot commit in the winter given low seasonal demand. (Id.) FINS issued Plaintiff a temporary driving permit for the same area, valid from November 30, 2018, through April 16, 2019, but only for the hours between 6:00 AM to 9:00 AM and 4:00 PM to 6:00 PM. (Id. at 21.) The permit authorized Plaintiff “to travel across Fire Island National Seashore lands to transport workers and supplies from the mainland to Fire Island for work involved in the operation of the Mermaid Market when ferries and waterborne conveyances do not provide access.” (Id.) On April 16, 2019, Plaintiff emailed FINS and asked for permission to drive through the checkpoint outside the hours of his permit. (Id. at 34-35.) FINS granted Plaintiff’s request for April 16, 2019, only. (Id. at 34.) On April 18, 2019, Plaintiff emailed again, seeking permission “to drive to the checkpoint outside the hours” of his permit. (Id.) An NPS employee responded via email, stating: My understanding of your permit is so you can get to the Mermaid Market to be open before the first ferry arrives in Ocean Beach. As you’re requesting to drive in more of a residential manner that goes beyond what your temporary permit was issued for, so your request is denied. (Id.) The employee noted that ferries ran to and from Ocean Beach multiple times a day and directed Plaintiff to utilize those for trips in between his permitted hours. (Id. at 33.) iii. October of 2019 to May of 2020 driving permit On or about October 16, 2019, Plaintiff applied for a temporary driving permit through May 15, 2020, consistent with his residential lease. (Id. at 37, 40.) FINS requested that Plaintiff pick a four-hour window in the afternoon for the permit in order “to run [his] business past the last ferry” and to give Plaintiff “ample time to pick up [his] supplies and deliver them to [his] business.” (Id. at 44.) Taiani reiterated that Plaintiff’s permit was “being issued to [him] because [he] provide[s] a service to the community and it allows [him] to be open before the first and last ferry” since “[y]ear round residents rely on [his] store.” (Id.) After discussion, Plaintiff and Defendants agreed to a temporary permit with driving privileges from 6:00 AM to 9:00 AM and 2:00 PM to 6:00 PM. (Id. at 43.) FINS issued Plaintiff a temporary driving permit valid from October 29, 2019, through May 15, 2020, with the agreed-upon access hours. (Id. at 47.) The permit authorized Plaintiff “to travel across Fire Island National Seashore lands to transport workers, supplies, and materials from the mainland to Fire Island for the work involved in the operation of the Mermaid Market when ferries and waterborne conveyances do not provide access.” (Id.) iv. Weekend-only permit issued to a similar business In or around October of 2020, the owners of CJ’s restaurant (“CJ’s”) in Ocean Beach requested a driving permit from Defendants. (Id. at 65-66.) FINS previously issued CJ’s temporary permits in 2014 and 2015, which allowed full-week driving access. (Id. at 54.) CJ’s “resolution with the Village of Ocean Beach” stated that CJ’s must operate twelve months per year, and from November 1 to April 15 each year, CJ’s “must provide essential food items including but not limited to milk, bread, [and] eggs provided that no other provider of the aforementioned food items is continually open for business during said period.” (Id. at 52 (emphasis removed).) CJ’s owner requested the driving permit to receive supplies and to transport workers outside of limited winter ferry hours. (Id. at 66.) After evaluating the business’ “demonstrated need for access against the available waterborne transportation,” FINS issued CJ’s owner a temporary permit for weekends only until adequate ferry service resumed. (Id. at 56, 81.) In granting the permit, a FINS employee noted that the agency was realigning the permit program and intended to “work more closely with communities” to identify and meet community needs within regulations. (Id. at 56-57.) v. December of 2020 to March of 2021 driving permit On October 9, 2020, Plaintiff contacted FINS to obtain a temporary driving permit for the upcoming winter season. (Id. at 68-69.) Taiani notified Plaintiff of the temporary driving permit FINS issued to CJ’s owner, and that “[d]riving privileges will be consistent for both businesses and that will be the ability to drive on weekends only, because of inadequate ferry service,” since “Ocean Beach has ferries running throughout the day with a 9 hour span on weekdays, [and] regulations require[] 8 hours to be adequate ferry service.” (Id. at 79.) Taiani further explained that previous temporary driving permits were granted “to meet essential needs of the community based on the information available at the time: that [Plaintiff] was the only business providing food and essential sundries to the community, particularly before and after the available ferry schedule.” (Id. at 83.) She noted that FINS had since become aware that other businesses provide “this service in the same and other nearby communities,” (id. at 83, 111), and sought “to be consistent with the exceptions offered to all parties in similar circumstances,” (id. at 83). Plaintiff disputes this assertion and maintains that his store is the only grocery provider on the island. (Id. at 17, 110, 121, 124.) On December 9, 2020, FINS issued Plaintiff a temporary driving permit valid from December 12, 2020, through March 15, 2021, with the same driving privileges as the permit issued to CJ’s owner. (Id. at 81, 93, 106.) The permit authorized Plaintiff “to travel across Fire Island National Seashore lands on weekends, for the purpose of transporting supplies and employees.” (Id. at 106.) Plaintiff accepted the permit “under protest.” (Id. at 108.) b. Statutory and regulatory framework In 1964, Congress enacted the Fire Island National Seashore Act, Pub. L. No. 88-587, which authorized the Secretary of the Interior (the “Secretary”) to establish the Fire Island National Seashore. 16 U.S.C. §459e(a). The Seashore extends “from the easterly boundary of the main unit of Robert Moses State Park eastward to Moriches Inlet” and includes Fire Island. Id. §459e(b). Congress established FINS: For the purpose of conserving and preserving for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes, and other natural features within Suffolk County, New York, which possess high values to the Nation as examples of unspoiled areas of great natural beauty in close proximity to large concentrations of urban population. Id. Maintaining minimal road traffic on Fire Island was a priority from FINS’s inception. See United States v. Matherson, 367 F. Supp. 779, 782 (E.D.N.Y. 1973) (describing the purpose of FINS), aff’d, 493 F.2d 1399 (2d Cir. 1974). The Secretary is required to “administer and protect the Fire Island National Seashore with the primary aim of conserving the natural resources located there.” 16 U.S.C. §459e-6(a). In carrying out this duty, “the Secretary may appoint subordinate officials and subdelegate to them the necessary power needed to perform the day to day operations of the National Seashore” and has delegated such power to the Superintendent of FINS. Matherson, 367 F. Supp. at 781 (citations omitted). “In providing for access to the island, the Superintendent shall require maximum possible reliance on those means of transportation which are other than private motor vehicles and which have the minimum feasible impact on Seashore lands.” 36 C.F.R. §7.20(a)(3). The Superintendent is authorized to issue permits for motor vehicles whose travel is essential to “the management or enjoyment of Seashore resources,” “the occupancy of residences,” or “the ownership of real property on the island.” Id. §7.20(a)(6). When an applicant applies for a permit, the Superintendent “shall approve an application…with appropriate limitations and restrictions or deny the application” after considering: [T]he purposes of the Act in providing for the conservation and preservation of the natural resources of the Seashore and for the enjoyment of these resources by the public; the scope and purpose of such travel; the availability of alternative transportation on the day or days when the applicant for a permit requests to travel on Seashore lands; the present or past issuance of other permits to the applicant; [and] any limitations on numbers of permits established pursuant to paragraph (a)(8)…. Id. Permit applicants are divided into categories including year-round residents, part-time residents, reserved-rights holders, public utility and essential service vehicles, construction and business vehicles, municipal employees, and recreational vehicles. Id. §7.20(a)(8)(ii). The Superintendent may limit the number of permits within each permit category and the total number of permits as necessary for resource protection, public safety, or visitor enjoyment. Id. §7.20(a)(8)(i). For construction and business vehicles, “[n]o more than 80 permits at any time are issued.” Id. §7.20(a)(8)(ii)(E). “When the number of outstanding permits drops below 80, [waiting list] permits are issued in order of the date of receipt of the application.” Id. “[W]hen water transportation is available, a…business shall accomplish all transportation of materials, supplies, and crews by use of the nearest available ferry, freight, or other overwater transportation method.” Id. II. Discussion a. Standard of review “When a plaintiff seeks to ‘hold unlawful and set aside agency action’ under the APA, the district court essentially sits as an appellate tribunal, reviewing the administrative record compiled by that agency when it made the decision and determining whether…the agency’s action was ‘arbitrary, capricious, an abuse of discretion, [or] otherwise not in accordance with the law.’” Saleh v. Blinken, No. 22-1168, 2023 WL 5091819, at *1 (2d Cir. Aug. 9, 2023) (first quoting 5 U.S.C. §706(2)(A); then citing Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083-84 (D.C. Cir. 2001); and then citing Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997)); see also Brezler v. Mills, 220 F. Supp. 3d 303, 321 (E.D.N.Y. 2016) (“Where ‘a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal,’ and ‘[t]he entire case on review is a question of law.’” (quoting Am. Bioscience, 269 F.3d at 1083)); Ass’n of Proprietary Colls. v. Duncan, 107 F. Supp. 3d 332, 344 (S.D.N.Y. 2015) (quoting same). Thus, a summary judgment determination is “generally appropriate” in APA cases because “‘[t]he question [of] whether an agency’s decision is arbitrary and capricious…is a legal issue’ amenable to summary disposition.” Noroozi v. Napolitano, 905 F. Supp. 2d 535, 541 (S.D.N.Y. 2012) (quoting Citizens Against Casino Gambling v. Hogen, No. 07-CV-451, 2008 WL 2746566, at *25 (W.D.N.Y. July 8, 2008)); see also Saleh, 2023 WL 5091819, at *1 (“It is generally acceptable for the district court to style such determinations [of whether an agency's action was arbitrary or capricious] as ones for summary judgment.” (first citing Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220, 229 (2d Cir. 2020); and then citing Henley v. FDA, 77 F.3d 616, 619 (2d Cir. 1996))). Summary judgment is proper only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Radwan v. Manuel, 55 F.4th 101, 113 (2d Cir. 2022) (quoting Fed. R. Civ. P. 56(a)). The court must “constru[e] the evidence in the light most favorable to the nonmoving party,” Radwan, 55 F.4th at 113 (alteration in original) (quoting Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir. 2011)), and “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought,” Koral v. Saunders, 36 F.4th 400, 408 (2d Cir. 2022) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). The role of the court “is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” Kee v. City of New York, 12 F.4th 150, 167 (2d Cir. 2021) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)). A genuine issue of fact exists when there is sufficient “evidence on which the jury could reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The “mere existence of a scintilla of evidence” is not sufficient to defeat summary judgment. Id. The court’s function is to decide whether, “after resolving all ambiguities and drawing all inferences in favor of the nonmovant, a reasonable jury could return a verdict for the nonmovant.” Miller v. N.Y. State Police, No. 20-3976, 2022 WL 1133010, at *1 (2d Cir. Apr. 18, 2022) (first citing Anderson, 477 U.S. at 248; and then citing Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127, 129 (2d Cir. 2013)). b. Defendants’ objections to Plaintiff’s Affidavit Plaintiff failed to file a memorandum of law in opposition to Defendants’ motion, and instead submitted two affidavits in opposition: one from Plaintiff (“Plaintiff’s Affidavit”) and one from Frank Fisher, a resident of Ocean Beach (“Fisher’s Affidavit”). (See Pl.’s Aff.; Fisher’s Aff. in Opp’n to Defs.’ Mot. (“Fisher’s Aff.”), Docket Entry No. 21.) Defendants argue that the Court should disregard the affidavits because Plaintiff failed to comply with Local Civil Rule 7.1(a) and because the Court should not consider facts beyond the administrative record. (Defs.’ Reply 1.) i. Local Civil Rule 7.1(a) does not bar the Court from considering Plaintiff’s Affidavit Defendants argue that Plaintiff failed to comply with Local Civil Rule 7.1(a) by submitting an affidavit rather than a memorandum of law, and the Court should therefore disregard Plaintiff’s submission in its entirety. (Id.) “[A] district court has the inherent power to decide when a departure from its Local Rules should be excused or overlooked.” Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1048 (2d Cir. 1991) (citations omitted), superseded by rule on other grounds as recognized by Contino v. United States, 535 F.3d 124, 127 (2d Cir. 2008); see also In re Vivenzio, No. 22-944, 2023 WL 2147600, at *2 (2d Cir. Feb. 22, 2023) (finding that “the bankruptcy court ‘may modify or suspend the requirements’ set forth in the local rules” (first quoting E.D.N.Y. Local Bankr. R. 1001-1(d); and then citing Somlyo, 932 F.2d at 1048)); Phx. Glob. Ventures, LLC v. Phx. Hotel Assocs., Ltd., 422 F.3d 72, 74 (2d Cir. 2005) (extending “the inherent authority of a district court to overlook violations of, or depart from, its own local rules, to permit a district court…to overlook failures to comply with requirements of its electronic filing system” (citing Somlyo, 932 F.2d at 1048-49)); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (noting that district courts have “broad discretion to determine whether to overlook a party’s failure to comply with local court rules” (first citing Wight v. BankAmerica Corp., 219 F.3d 79, 85 (2d Cir. 2000); and then citing Somlyo, 932 F.2d at 1048)), abrogated on other grounds by Gross v. FBL Fin. Servs. Inc., 557 U.S. 167 (2009). The Second Circuit has also stated that “[i]f faced with potential unfairness, the district court should tailor the Local Rules to best achieve a just outcome.” Somlyo, 932 F.2d at 1049. The Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York require opposition papers to include a memorandum of law and supporting affidavits and exhibits, unless otherwise permitted by the court. S.D.N.Y. & E.D.N.Y. Local Civ. R. 7.1(a) (the “Local Rules”) (requiring the memorandum of law to “set[] forth the cases and other authorities relied upon in support of the motion” and the supporting affidavits and exhibits to “contain[] any factual information and portions of the record necessary for the decision of the motion”). Courts have routinely excused noncompliance with Local Rules, including Local Rule 7.1(a). See, e.g., Riverbay Corp. v. Serv. Emps. Int’l Union, Local 32BJ, No. 22-CV-10994, 2023 WL 3738984, at *1 n.1 (S.D.N.Y. May 31, 2023) (excusing the petitioner’s violation of Local Civil Rule 7.1(a) under its inherent authority (citing Somlyo, 932 F.2d at 1048)); Cotto v. Fed. Nat’l Mortg. Assoc., No. 20-CV-6487, 2021 WL 4340668, at *5 n.4 (S.D.N.Y. Sept. 22, 2021) (excusing the defendant’s failure to file a memorandum of law under Local Civil Rule 7.1(a) because the defendant’s “supporting affirmation (albeit improperly) include[d] an explanation of [the defendant]‘s legal arguments seeking to dismiss the [c]omplaint, with citations to applicable case law”); Abdullah v. Travelers Ins. Co., No. 13-CV-7825, 2014 WL 6807932, at *2 n.5 (S.D.N.Y. Oct. 28, 2014) (excusing the plaintiffs’ noncompliance with Local Rule 7.1(a) and considering the plaintiffs’ arguments when they “did not file a memorandum of law,…but rather made legal arguments in two attorney declarations”). Plaintiff’s Affidavit makes arguments supported by facts in the administrative record.3 To the extent that Plaintiff addresses disputes of fact, they are also contained in the administrative record.4 Therefore, the Court will consider Plaintiff’s Affidavit,5 despite Plaintiff’s noncompliance with the Local Rules. ii. The APA does not bar the Court from considering Plaintiff’s Affidavit Defendants also argue that the APA limits the Court’s review to the administrative record that was before the agency at the time it took the contested actions, and the Court should therefore disregard Plaintiff’s Affidavit. (Defs.’ Reply 1, 3-5 (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)).) Under the APA’s “record rule,” “a court reviewing an agency decision is confined to the administrative record compiled by that agency when it made the decision.” Nat’l Audubon Soc’y, 132 F.3d at 14 (first citing Fla. Power, 470 U.S. at 743-44; and then citing Camp v. Pitts, 411 U.S. 138, 142 (1973)); Camp, 411 U.S. at 142 (“[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.”); Harris v. Comm’r of Internal Revenue, 748 F. App’x 387, 390 (2d Cir. 2018) (declining to consider additional documents submitted by the plaintiff because they were not part of the administrative record (citing Nat’l Audubon Soc’y, 132 F.3d at 14)); HiFi DNA Tech LLC v. U.S. Dep’t of Health & Hum. Servs., 357 F. App’x 345, 347 (2d Cir. 2009) (quoting Nat’l Audubon Soc’y, 132 F.3d at 14). Courts in this Circuit have considered portions of a party’s submissions that do not run afoul of the APA’s record rule. See, e.g., Farm Sanctuary v. U.S. Dep’t of Ag., __ F. Supp. 3d __, __, 2023 WL 2673141, at *4 (W.D.N.Y. Mar. 28, 2023) (reviewing the parties’ submissions regarding the plaintiff’s statement of undisputed facts but noting that the “proper record before the [c]ourt in assessing the [c]ross-[m]otions for [s]ummary [j]udgment is contained in the revised administrative record”); Vt. Pub. Int. Rsch. Grp. v. U.S. Fish & Wildlife Serv., 247 F. Supp. 2d 495, 516 (D. Vt. 2002) (finding no justification to strike the plaintiff’s entire statement of undisputed material facts but declining to consider portions of the statement that were “argumentative and conclusory or include[d] information…outside the [APA's] record rule”); see also SAI v. Trans. Sec. Admin., 315 F. Supp. 3d 218, 232 (D.D.C. 2018) (treating, for purposes of summary judgment in a FOIA case, a pro se plaintiff’s fortypage affidavit as a brief in opposition because it contained more extensive legal and factual argument than did the plaintiff’s five-page opposition brief); Omoniyi v. Dep’t of Homeland Sec., No. 10-CV-1344, 2012 WL 892197, at *1 n.1 (S.D.N.Y. Mar. 13, 2012) (considering, for purposes of a motion to dismiss in an INA case, a pro se plaintiff’s affidavit because although titled as such, “it is not a sworn statement (or a declaration made under penalty of perjury), and is more aptly described as a memorandum”). As discussed above, Plaintiff’s Affidavit makes arguments based on facts in the administrative record. For example, Plaintiff argues that (1) Defendants’ denial of a driving permit to Plaintiff in December of 2020 was “arbitrary and without sound reason or basis in the record or in law,” (Pl.’s Aff.
19-41); (2) Defendants’ assertion that Plaintiff had not used the permit properly is unsupported, (id.
