Beach Access Issues
December 12, 2008
Beach access group and Dare and Hyde counties
plan to sue over piping plover habitat designation

By IRENE NOLAN



Cape Hatteras Access Preservation Alliance (CHAPA) and Dare and Hyde counties have notified the U.S. Fish and Wildlife Service that they intend to file yet another lawsuit over the issue of the designation of critical habitat for the piping plover.

In their Dec. 2 notice of their intent to sue, the parties claim that the designation violates the Endangered Species Act, the National Environmental Policy Act (NEPA), and other federal environmental laws.

“The FWS’s actions have caused, presently are causing, and will foreseeably continue to cause, substantial harm and adverse impacts to CHAPA’s member, the Counties, and the thousands of people who rely on the Cape Hatteras National Seashore for their livelihood and recreation,” said the notice, which was filed by Lawrence R. Liebesman, an attorney for the Washington-based law firm of Holland & Knight.

This is the second time that CHAPA and the counties have challenged the FWS attempt to designate critical habitat for the piping plover.

The piping plover, a small shorebird, nests and spends winters on the seashore beaches.  In 1985, the bird’s Great Lakes population was listed as endangered, and the Atlantic Coast and Great Lakes populations were listed as threatened under the Endangered Species Act.  The USFWS also considers piping plovers threatened in their wintering habitat. All three populations spend part of the winter on the Atlantic Coast, from North Carolina south.

The Fish and Wildlife Service did not designate critical habitat — areas essential for the conservation of the species -- when the piping plover was listed under the ESA but was forced in making the designation after the agency was sued by environmental groups in the 1990s.  In settling the lawsuits, FWS designated critical habitat for the shorebird – and also declared critical habitat for the wintering populations.

In 2001, USFWS published its final rule for designating critical habitat for wintering birds in the Federal Register. It included 3,600 acres in the Cape Hatteras National Seashore.

In 2003, CHAPA and Dare and Hyde counties sued the Fish and Wildlife Service over the designation of wintering habitat, and in 2004, a federal judge ordered the agency to redo the plan.

The court found and directed the following:

1. The court directed that FWS show that primary constituent elements -- the physical and biological features essential to piping plover conservation -- exist on areas that are designated. It ordered FWS to clarify whether that these physical and biological features are essential for the recover of the piping plover and may require special management or protection.

2. The court found that the FWS designation of critical habitat must include compliance with the National Environmental Policy Act. The court found that the Environmental Impact Analysis did not comply with the requirements of the National Environmental Policy Act, was incomplete, and possibly contained erroneous information.

3. The court found that the FWS's economic analysis was arbitrary and capricious, in that it considered the impact of off-road vehicles and other human use of beaches, but did not address information in the record about the possibility of closures of the beaches to such use or how off-road vehicle use might be affected by the designation.

4. The court also found that the FWS omitted from the economic analysis the full costs associated with the designation and ordered the FWS to reconsider them. 

On May 15, the Fish and Wildlife Service published its "Revised Designation of Critical Habitat for Winter Population of the Piping Plover in North Carolina" in the Federal Register.

After a public comment period, the agency published its final rule on designation of critical habitat for wintering piping plovers in the Federal Register on Oct. 21.

Attorney Libesman writes in the notice of intent to sue that the issues are basically the same ones as in the 2003 lawsuit, which was remanded back to the Fish and Wildlife Service.

“This designation suffers from many of the same defects as the first designation that was struck down,” Libesman wrote.

They include:

•     The FWS should have excluded the Seashore and Pea Island National Wildlife Refuge from critical habitat designation because the benefits of exclusion outweighed the benefits of designation.

•     The FWS should have excluded the Seashore and Pea Island National Wildlife Refuge from critical habitat designation because the Interim Plan meets the FWS's exclusion requirements.

•     The environmental assessment makes clear that the costs of designating critical habitat at the Seashore and Pea Island outweigh the benefits.

•     The economic analysis is still deficient. It arbitrarily relies on the discredited Vogelsong study and fails to adequately discuss "the effects of the designation on everyone who might be affected" as directed by Judge Lamberth.

•    The FWS fails to satisfy Judge Lamberth's direction that FWS must adequately address how each identified primary constituent element would need management or protection

•    The FWS has still failed to comply with NEPA. The FWS's Environmental Assessment contains virtually no science and does not address the extensive scientific data and analysis that CHAPA and the Counties submitted through their environmental consultant

The law requires that 60 days notice is given before a lawsuit can be filed.


FOR MORE INFORMATION:

Click here to read the 17-page copy of the Notice of Intent to Sue.

For more background on designating wintering habitat for piping plovers, go to:

http://islandfreepress.org/2008Archives/06.02.2008-GuestColumnMikeBerryCriticalHabitat.html


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