Cape Hatteras Access Pres. All. v. U.S. Int. Dept.

• Decision Date: 01 November 2004
• Docket Number: No. CIV.A.03-217(RCL).,CIV.A.03-217(RCL).
• Citation: 344 F.Supp.2d 108
• Parties: THE CAPE HATTERAS ACCESS PRESERVATION ALLIANCE, Dare County, North Carolina, Hyde County, North Carolina, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, United States Fish and Wildlife Service, Gale Norton, Steven Williams, Defendants, Defenders of Wildlife, Center for Biological Diversity, Southern Appalachian Biodiversity Project, Defendant-Interveners
• Court: U.S. District Court — District of Columbia

344 F.Supp.2d 108

THE CAPE HATTERAS ACCESS PRESERVATION ALLIANCE, Dare County, North Carolina, Hyde County, North Carolina, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, United States Fish and Wildlife Service, Gale Norton, Steven Williams, Defendants, Defenders of Wildlife, Center for Biological Diversity, Southern Appalachian Biodiversity Project, Defendant-Interveners

No. CIV.A.03-217(RCL).

United States District Court, District of Columbia.

November 1, 2004.

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Lawrence R. Liebesman, Rafe Petersen, Ethan Ray Arenson, Holland & Knight, LLP, Washington, DC, for Plaintiffs.

Mary Melissa Whittle, U.S. Department of Justice, William J. Snape, Defenders of Wildlife, Washington, DC, for Defendants.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This case concerns the piping plover, a small, sand-colored shorebird, and the designation of its critical habitat under the Endangered Species Act. Defendants, the Department of the Interior and its Fish and Wildlife Service (collectively the "Service"), designated 137 coastal areas to serve as the wintering plovers' critical habitat. Plaintiffs, a business association and two North Carolina counties, challenge numerous aspects of the Service's designation. Upon consideration of the parties' cross motions [19 and 21] for summary judgment, the oppositions and replies thereto, and the administrative record, the Court, for the reasons set forth in this Memorandum Opinion, grants in part and denies in part both motions.

I. Background

A. ESA, NEPA, and Designation of Critical Habitat

Enacted in 1973, the Endangered Species Act ("ESA"), is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Among the congressionally identified purposes of the Act are "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). An endangered species is a species that is "in danger of extinction throughout all or a significant portion of its range," id. § 1532(6), while a threatened species is a species that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range," id. § 1532(20). Congress conferred partial responsibility for implementing the ESA on the Secretary of the Interior, id. 1532(15), who, in turn conferred her responsibilities to the Service.

The ESA authorizes the Service to protect a species by listing it as threatened or endangered, id. § 1533(a)(1), and then requires the Service to designate that species's critical habitat, id. § 1533(a)(3), those lands that are essential to its conservation, id. § 1532(5)(A). While determinations as to whether or not a species is endangered or threatened must be made "solely on the basis of the best scientific and commercial data available," id. § 1533(b)(1)(A), designation of critical habitat additionally requires consideration of economic and other impacts, id. § 1533(b)(2).

A critical habitat designation provides protection for threatened and endangered species by triggering what is termed a Section 7 consultation in response to actions proposed by or with a nexus to a federal agency. Id. § 1536(a)(2). Section 7(a)(2) of the ESA requires each federal agency, in consultation with the Service, to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species ... which is ... critical." Id. A Service regulation, not the ESA, defines "[j]eopardize" as "an action that reasonably would be expected ... to reduce appreciably the likelihood of both the survival and recovery of a listed species." 50 C.F.R. § 402.02. The same regulation defines "[d]estruction or adverse modification" as an "alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species." Id.

If an agency action may adversely affect a listed species's critical habitat, the action agency and the Service enter into a formal consultation process, at the conclusion of which the Service issues a biological opinion as to the effect of the federal agency action. If the Service concludes that the action will likely result in adverse modification of critical habitat, the Service shall set forth any reasonable and prudent alternatives to the action. See 50 C.F.R. § 402.14; 16 U.S.C. § 1536(b)(3)(A).

The National Environmental Policy Act ("NEPA"), a statute separate from the ESA, requires federal agencies to examine the environmental effects of proposed federal actions and to inform the public of the environmental concerns that went into the agency's decision-making. See Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Specifically, NEPA requires, "to the fullest extent possible," all agencies of the federal government to prepare environment impact statements for any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).

B. The Service's Designation

In July 2001, the Service published a final rule in the Federal Register that designates as critical habitat for the wintering plover population 137 coastal areas in states from North Carolina to Texas. Final Determination of Critical Habitat for Wintering Piping Plovers, 66 Fed.Reg. 36,038 (July 10, 2001).

The 2001 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. AR 13345, 49 (citing Determination 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, a court ordered the Service to carry out these designations. AR 13345 (citing Defenders of Wildlife v. Babbitt, Nos. 96-CV-2695, 97-CV-777 (D.D.C Feb. 8, 2000)). All U.S. piping plover populations winter along the Atlantic Coast south of North Carolina, along the Gulf Coast and in the Caribbean. AR 13344. Unable to isolate the two piping plover populations subject to the lawsuits from other populations when on their wintering grounds, the Service chose to designate critical habitat for all U.S. wintering piping plovers collectively. AR 13345.

In North Carolina, the Service designated 18 areas, NC-1 to NC-18, totaling some 6800 acres and 126 linear miles of shoreline. AR 13372, 13392-98.

C. Plaintiff's Interests

Plaintiff Cape Hatteras Access Preservation Alliance ("CHAPA") is a project of the Outer Banks Preservation Alliance ("OBPA") formed with the goal of "preserving and protecting a lifestyle and way of life historically prevalent on the Outer Banks of North Carolina, specifically, Cape Hatteras National Seashore" ("CHNS"). The OBPA works with the National Park Service to develop a plan for the use and management of off-road vehicles that will protect the seashore's resources without harming the area's unique lifestyle and economic well-being. CHAPA members regularly operate off-road vehicles, the main means for accessing seashore beaches, for both recreational and commercial purposes. AR 08206. Off-road vehicles provide recreational access to seashore beaches that is essential for the area's tourism-based economy.

Plaintiffs Dare County and Hyde County (the "Counties") contain the CHNS, which drew 3.3 million tourists in 2000. 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 200,000 to 225,000. Dare County's 2001 revenue from tourism was over $365 million. Plaintiff Hyde County, home to just 5,500 people, includes the Ocracoke Island portion of the CHNS. The island depends on tourism, which generated an economic impact of $24 million in 2001. Ocracoke beach is a nationally known tourist destination and is the sixth best beach in the U.S., as ranked by Dr. Stephen Leatherman of Florida International University.

Through letters responding to the Service's proposed critical habitat rule, the Service became aware of the plaintiffs' position that designation would have adverse effects for plaintiffs' tourism industry and for residents' and visitors' recreational and commercial uses. AR 8206; AR 15806, AR 16268-77. Plaintiffs fear beach closures and the cost and delay of Section 7 consultations. The National Park Service manages and has a "say over" recreational activities at the CHNS, AR 00994, and states in its final rule that a managing agency can typically protect lands from adverse modifications due to beach driving by "redesignating routes and beach access points, and by temporarily closing off specific areas during critical seasons." AR 13352. Despite this, the Service found that the economic impact of designation was not significant enough to warrant exclusion of these areas. AR 13387.

About 14 months after the Service designated the plover's wintering critical habitat, plaintiffs...