Cape Hatteras Access Pres. Alliance v. U.S. Dept. of Interior

• Decision Date: 17 August 2010
• Docket Number: Civil Action No. 09-0236 (RCL)
• Citation: 731 F.Supp.2d 15
• Parties: The CAPE HATTERAS ACCESS PRESERVATION ALLIANCE, et al., Plaintiffs, v. U.S. DEPARTMENT OF the INTERIOR, et al., Defendants, and Defenders of Wildlife, et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

731 F.Supp.2d 15

The CAPE HATTERAS ACCESS PRESERVATION ALLIANCE, et al., Plaintiffs,

v. U.S. DEPARTMENT OF the INTERIOR, et al., Defendants,andDefenders of Wildlife, et al., Defendant-Intervenors.

Civil Action No. 09-0236 (RCL).

United States District Court, District of Columbia.

Aug. 17, 2010.

Lawrence R. Liebesman, Holland & Knight LLP, Washington, DC, for Plaintiffs.

Meredith L. Flax, U.S. Department of Justice, Washington, DC, for Defendants.

Jason C. Rylander, Defenders of Wildlife, Washington, DC, for Defendant-Intervenors.

Julia Furr Youngman, Chapel Hill, NC, Pro Hac, Vice.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I. Introduction

This case concerns environmental regulations designating critical habitat for the piping plover, a small shorebird. On October 21, 2008, defendants, the Department of the Interior and its Fish and Wildlife Service (collectively "the Service") published a final rule designating critical habitat for the wintering piping plover in North Carolina pursuant to the Endangered Species Act (ESA). The Service revised its critical habitat designation for the units after this Court vacated the Service's original designation in 2001. See Cape Hatteras Access Pres. Alliance v. U.S. Dep't of the Interior, 344 F.Supp.2d 108 (D.D.C.2004) ( CHAPA I ). The revised designation includes approximately 2,053 acres in Dare and Hyde Counties, North Carolina and consists of four habitat units.

Plaintiffs challenge the revised critical habitat designations under the ESA and the National Environmental Policy Act (NEPA). Plaintiffs allege that the Service's revised designation fails to satisfy the Court's remand order in CHAPA I. Specifically, plaintiffs argue that the revised critical habitat designation (1) fails to address the statutory requirement that Primary Constituent Elements (PCE's) must be those that may require special management considerations; (2) improperly relied on a district court decision holding that if a habitat is already under some sort of management for its conservation, that particular habitat meets the definition of critical habitat; (3) fails to adequately consider other relevant information, including a 2007 off-road vehicle plan; and (4) fails to adequately consider the economic impacts of the designation. Finally, plaintiffs argue that the Service's Environmental Assessment (EA) and Finding of No Significant Impact pursuant to NEPA are inadequate.

Upon consideration of the parties' cross motions for summary judgment, the oppositions and replies thereto, the administrative record, and for the reasons set for in this Memorandum Opinion, plaintiffs' motion for summary judgment will be denied. Accordingly, the government defendants' cross-motion for summary judgment will be granted and intervening defendants' cross-motion for summary judgment will be granted.

II. Factual and Procedural Background

a. The Piping Plover

The North Carolina coast is home to the piping plover, a small North American shorebird that "blends in well with beaches and sand flats, part of its primary habitat." 66 Fed. Reg. 36,038-36,143 (July 10, 2001). It nests and roosts directly on sandy beaches and spends much of its time foraging for small marine crustaceans and other prey in the wet and moist areas of beaches such as "mud flats, sand flats, algal flats, and washover passes (areas where banks in the sand dunes result in an inlet)." Id. at 36,038. Piping plovers are a migratory species; the members of all three of its breeding populations winter in coastal areas of the United States from North Carolina to Texas, as well as along the coasts of Mexico and on Caribbean islands. Id. In North America, the piping plover breeds in three geographic regions. The threatened Atlantic Coast population breeds on sandy beaches along the East Coast from Newfoundland to North Carolina. 66 Fed. Reg. at 36,038; see also 67 Fed. Reg. 57,638 (Sept. 11, 2002). "Piping plovers begin arriving on the wintering grounds in July, with some late-nesting birds arriving in September." Id. They begin leaving the wintering grounds to migrate back to breeding sites in late February, "and by late May most birds have left the wintering grounds." Id. at 36,039. Piping plovers spend up to 10 months of each year on the wintering grounds. Id. at 36,043. The piping plover can be observed in North Carolina every month of the year, and all three geographic populations of piping plovers are known to use the North Carolina coastline during the non-breeding season. AR 345 at 13-14, 86, 129-30, 211-12.

b. Plaintiffs' Interests

Plaintiff Cape Hatteras Access Preservation Alliance (CHAPA) is a coalition established for the purpose of "preserving and protecting a lifestyle and way of life historically prevalent on the Outer Banks of North Carolina." Pls.' Mot. Summ. J. 4. CHAPA members regularly operate off-road vehicles for both recreational and commercial purposes. Off-road vehicles provide recreational access to seashore beaches that is essential for the area's tourism-based economy. CHAPA's members are concerned that the Service's critical habitat designation will lead to substantial limits, or an outright ban, on off-road vehicle use within certain areas of the Cape Hatteras Seashore.

Plaintiffs Dare County and Hyde County are counties within the Outer Banks of North Carolina. Dare County encompasses seven of the seashore's eight unincorporated villages and six municipalities, Duck, Kill Devil Hills, Kitty Hawk, Manteo, Nags Head, and Southern Shores. While the county's permanent population is 29,000, the county's average daily population during the summer months ranges from 225,000 to 275,000. Dare County's 2001 revenue from tourism was over $365 million. Plaintiff Hyde County, home to only 5,500 people, includes the Ocracoke Island portion of the Outer Banks of North Carolina. The island depends on tourism, which generated $24 million in 2001.

c. The Service's Critical Habitat Designation

The Service first published its critical habitat designation for the piping plover in 2001. The designation came nearly 16 years after the Service published its final rule pursuant to the ESA listing the plover as endangered in the Great Lakes watershed and threatened in the remainder of its range, including on its migratory routes and its wintering grounds, where the plover spends up to 10 months each year. CHAPA I, 344 F.Supp.2d at 115 (citingDetermination of Endangered and Threatened Status for the Piping Plover, 50 Fed. Reg. 50,726 (Dec. 11, 1985)). Back in 1985, the Service declined to designate any critical habitat for the plover. In 1996, the Defenders of Wildlife filed suit to compel critical habitat designation for the Great Lakes and Northern Great Plains populations of piping plovers. In 2000, the Court ordered the Service to carry out these designations. CHAPA I, 344 F.Supp.2d at 115 (citing Defenders of Wildlife v. Babbitt, Nos. 96-CV-2695, 97-CV-777 (D.D.C Feb. 8, 2000)).

After the Service published its original final rule designating critical habitat for wintering piping plovers in 137 coastal areas, including 18 areas in North Carolina in 2001, plaintiffs filed suit challenging the designation of four units of critical habitat in the Outer Banks of North Carolina. In 2004, the Court remanded to the Service the 2001 designation of the four units. CHAPA I, 344 F.Supp.2d 108. The Court identified six errors or needs for clarification under the ESA and one error under NEPA. The Court found that (1) the Service failed to show that PCEs are found on all of the areas it designated as critical habitat; (2) the Service failed to analyze whether PCEs may require special management considerations or protections; (3) the Service must clarify its economic analysis, specifically its functional equivalence policy; (4) the Service must identify baseline costs in its economic analysis; (5) the Service's conclusions regarding off-road vehicles were arbitrary and capricious; (6) the Service must address consultation costs in its economic analysis; and (7) the Service erred by failing to complete an EA pursuant to NEPA.

In response to the Court's order in CHAPA I, the Service published a proposed rule re-designating portions of each of the four areas as critical habitat on June 12, 2006. 71 Fed. Reg. 33,703. On May 31, 2007, the Service announced the availability of a draft economic analysis and environmental assessment for the June 12, 2006 proposed rule. 72 Fed. Reg. 30,326. On May 15, 2008, the Service announced revisions to the proposed critical habitats to include several islands to one of the four units. 73 Fed. Reg. 28,084.

Meanwhile, environmental groups filed suit in the United States District Court for the Eastern District of North Carolina, alleging that the National Park Service (NPS) failed to promulgate a final regulation to manage off-road vehicle use at Cape Hatteras in violation of the ESA, two presidential executive orders, NPS regulations and the Migratory Bird Treaty Act. Defenders of Wildlife v. Nat'l Park Serv., No. 07-cv-45 (E.D.N.C.). The plaintiffs in the present lawsuit intervened in that lawsuit. The court approved a Consent Decree, which requires NPS to publish a final off-road vehicle management plan by April 1, 2011. Until then, NPS may continue off-road vehicle management derived in an Interim Plan.

The Service published its final revised critical habitat designation on October 21, 2008. 73 Fed. Reg. 62,815. The rule designates 2,043 acres of North Carolina shoreline, primarily located within the Cape Hatteras National Seashore. The revised final designation contains approximately 1,573 fewer acres than the original 2001 designation and no private land is included in the revised designation. On February 6, 2009, plaintiffs filed a Complaint for Declaratory and Injunctive Relief against the U.S. Department of Interior and the Service. Defenders of Wildlife and the National Audubon Society intervened in the lawsuit on the side...