Fish and Wildlife "Beyond the Pale"

Liberty Matters News Service

11/17/04

U.S. District Court Judge Royce C. Lambreth chided the U. S. Fish and Wildlife Service (FWS) for failing to follow the rules when it designated 6,800 acres and 126 linear miles of the Cape Hatteras National Seashore as critical habitat for wintering piping plovers.

"Tourism is the lifeblood of Dare County's economy, and we are grateful that the Court took note of this," said Warren Judge, chairman of the Dare County Board of Commissioners, a party to the lawsuit against the Department of Interior and others.

Judge Lambreth wrote that the FWS arbitrarily designated critical habitat for the birds despite the fact some areas were not suitable.

"The Service's argued-for interpretation, essentially that designation is proper merely if PCEs (areas containing features essential to conservation of the species) will likely be found in the future, is simply beyond the pale of the statute," the judge said.

The opinion also cited the FWS for failure to properly interpret the "best available science," and accurately assess economic impact among other shortcomings.

RELATED STORY:

Judge sides with county

BY SANDY SEMANS, SENTINEL STAFF

Dare County, NC - A federal District Court judge has struck down a designation which deemed areas of the Cape Hatteras National Seashore as critical habitat for
wintering piping plovers.

"We appreciate the court recognizing the importance of maintaining the
public's ability to use and enjoy these beach areas on Hatteras Island,"
said Warren Judge, chairman of the Dare County Board of Commissioners.

"Tourism is the lifeblood of Dare County's economy, and we are grateful that
the Court took note of this. This ruling also reinforces the County's
position on the short-bridge alternative to replace the Bonner Bridge, and
our commitment to continue to fight for the public's right to access all of
our beaches," he added.

The order, signed by U.S. District Court Judge Royce C. Lamberth, vacates
designations for four North Carolina areas that had been deemed critical
habitat for wintering piping plovers.

Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance
filed the suit against the U.S. Department of Interior, U.S. Fish and
Wildlife Service, Secretary of Interior Gale Norton and Steven Williams.

Designation of critical habitat along North Carolina's coast came as a
result of a 1996 suit filed by the Defenders of Wildlife in an attempt to
get the federal government to place critical habitat designation for the
Great Lakes and North Great Plains populations of piping plovers. In 2000, a
court ordered the Fish and Wildlife Service to carry out those designations.
Because all piping plovers winter along the Atlantic Coast south of North
Carolina along the Gulf Coast and in the Caribbean, the two piping plover
populations addressed in the lawsuit could not be isolated from other
populations when on their wintering grounds. Therefore, the Service
designated critical habitat for all U.S. wintering piping plovers
collectively.

When implemented in this state, the designated areas totaled about 6800
acres and 126 of linear miles of shoreline.

Lamberth noted in his 43-page written opinion that the Service didn't follow
a laundry list of criteria needed before such designation could occur.

The opinion states that the Service must determine that "those physical or
biological features essential to the conservation of the species and which
may require special management considerations or protection" - PCEs - are
"found" on specific areas with the area to be designated.

"It appears that, incredibly, the Service admits in the final rule [posting
the designation in the Federal Register] that some designated areas do not
contain PCEs," wrote Lambreth.

"The Service's argued-for interpretation, essentially that designation is
proper merely if PCEs will likely be found in the future, is simply beyond
the pale of the statute," states the opinion.

A list of other shortcomings in the determination of critical habitat
designations also were noted in the opinion, including the interpretation of
"best available science," economic impact, and compliance with other federal
laws and regulations including the National Environmental Policy Act.