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November 1, 2004.


The opinion of the court was delivered by: ROYCE 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 (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 (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 filed a Notice of Intent to Sue on the Secretary of the Interior and filed the case presently before the Court on February 10, 2003.

  D. The Interveners

  On April 11, 2003, the Defenders of Wildlife, Center for Biological Diversity, and Southern Appalachian Biodiversity Project (collectively "Interveners") moved the Court to join this matter as defendant-interveners. The Court granted the motion by order dated June 12, 2003. Interveners initiated the legal actions that led to the designation of critical habitat for the wintering population of the piping plover — the action the plaintiffs now challenge. Interveners have filed memoranda in support of defendants' motion for summary judgment and in opposition to plaintiffs' motion.

  II. Standing

  Defendants and Interveners question whether plaintiffs have standing to bring this suit. To establish standing, plaintiffs must show that they meets certain constitutional and prudential requirements.

  Article III of the Constitution requires, a "concrete and particularized injury" that is "(1) actual or imminent, (2) caused by, or fairly traceable to an act challenged in the instant litigation, and (3) redressable by the court." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Util. Air Regulatory Group v. EPA, 320 F.3d 272, 277 (D.C. Cir. 2003).

  Plaintiffs claim injury related to the Service's alleged failure to follow statutory dictates during its designation of the plover's critical habitat. CHAPA*fn1 asserts a variety of economic and recreational harms. CHAPA members own land within the critical habitat. Some wish to improve land; all need to consider how activity with a federal nexus — such as obtaining wetlands permits, special use permits for building up dunes to protect against the surf, or FEMA insurance — might spur Section 7 consultations about whether the activity would cause impermissible adverse modification to the habitat. See Stigliano Decl.; Ergas Decl. CHAPA members also engage in recreational activities that require access to the CHNS by means of off-road vehicles over routes falling within the critical habitat. At least one CHAPA member must modify his off-road vehicle use to avoid adverse modification. Members fear that the Service's administration of the critical habitat will result in use restrictions on the vehicles and closure of beaches or access points, affecting not only recreation, but the livelihood of fishermen dependent on the vehicles for their daily work. Finally, members fear that the Service's administration will decrease tourism, which would have a dire impact on local businesses, from tackle shops to real estate companies. See Couch Decl.

  The Counties assert harm related to their tourism economy and their ability to maintain and repair infrastructure and seashore. The Counties, like CHAPA business owners, fear that any restrictions or beach closures within the habitat will have a negative impact on their tourism economy. The critical habitat designation, they further assert, will, because of increased Section 7 consultations, slow down and make costlier the Counties' response and repairs after catastrophic events such as Hurricane Isabel, which damaged county roads and beaches. Finally, the Counties cite the specific example of the ongoing Bonner Bridge replacement project that, again because of consultations, will be delayed and could result in the bridge's relocation. In fact, Interveners have advanced the plover critical habitat designation as one reason in a separate effort to block the bridge project. See Sturza Decl.

  Both CHAPA and the Counties have, based on the above, alleged injuries that are actual or imminent. These injuries are causally related to the Service's designation, which is the subject of this litigation. See Catron County Bd. of Comm'rs v. Fish & Wildlife Serv., 75 F.3d 1429, 1433 (10th Cir. 1996) ("Here, as an owner of property that falls within the proposed critical habitat designation and will likely be adversely affected by such designation, the County is the object of the Secretary's alleged failure[s]."). Finally, this Court could require the Service to revisit its designation. See id. Moreover, if, as here,"the suit is one challenging the legality of government action" and "the plaintiff is himself an object of the action (or forgone action) at issue. . . . there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it." Defenders of Wildlife, 504 U.S. at 561-62; see Catron County, 75 F.3d at 1433 (applying Defenders of Wildlife to the designation of critical habitat). Therefore, plaintiffs have demonstrated constitutional standing.

  With the constitutional requirements met, plaintiffs must next establish prudential standing by demonstrating that the injury "arguably falls within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit. Bennet v. Spear, 520 U.S. 154, 162 (1997). Plaintiffs, whether asserting claims of under-enforcement or over-enforcement, have prudential standing to challenge the legality of the Service's actions under the ESA by virtue of its citizen suit provision, 16 U.S.C. § 1540(g)(1)(c). Bennet, 520 U.S. at 166. Plaintiffs also have prudential standing to challenge the Service's lack of compliance with NEPA. CHAPA's assertion of future recreational harms are within the zone of interests protected by the statute. Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1236 (D.C. Cir. 1996) (noting that even those not "pure of heart" can assert, under NEPA, aesthetic and environmental interests in the quality of public lands for activities such as camping, hiking, and fishing); Overseas Shipholding Group, Inc. v. Skinner, 767 F. Supp. 287, 294 (noting that harms need not be actual, but only reasonably foreseeable), as are the Counties' assertions of harms they suffered in relation to repair of area beaches after Hurricane Isabel and harms to the quality of life of residents related to the physical environment, see Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972). Therefore, this Court can reach the merits of plaintiff's case.*fn2

  III. Standard of Review

  The Service's designation of critical habitat for the wintering piping plover is reviewed pursuant to the standard in the Administrative Procedure Act ("APA"), 5 U.S.C. § 706; N.M. Cattle Growers Ass'n v. Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir. 2001) (challenge to merits of critical habitat designation reviewed under the APA); Wyo. Outdoor Council v. Bosworth, 284 F. Supp. 2d 81 (D.D.C. 2003). Under this standard, a court may set the action aside only if the Service's decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-14 (1971); C&W Fish Co. v. Fox, 931 F.2d 1556, 1562-1565 (D.C. Cir. 1991). In making this inquiry, the Court asks whether the Service considered the relevant factors and whether or not it made a clear error of judgment. "At a minimum, the agency must have considered relevant data and articulated an explanation establishing a rational connection between the facts found and the choice made. The scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency." Wyo. Outdoor Council, 284 F. Supp. 2d at 89 (citations omitted). Rather, the agency action under review is entitled to a presumption of regularity. See Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). The burden of proof under the arbitrary and capricious standard is on the party challenging the decision. See Cleary, Gottlieb, Steen & Hamilton v. Dep't of Health & Human Servs., 844 F. Supp. 770, 783 (D.D.C. 1993) (citing Schweiker v. McClure, 456 U.S. 188 (1982)).

  The Court must review the Service's designation based on the administrative record before the court. See Camp v. Pitts, 411 U.S. 138, 142 (1973). Because there are generally no facts in dispute in administrative record cases, and the court need not and, indeed, may not, "find" underlying facts, there are no material facts essential to the court's resolution of this action, and the parties' motions for summary judgment are appropriate. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); San Luis Obispo Mothers for Peace v. United States Nuclear Regulatory Comm'n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc).

  IV. Analysis of ESA Compliance

  A. Occupied

  Any land, whether the listed species occupies the land or not, may take on critical habitat status. Whether and how an area becomes critical habitat first depends on whether a listed species occupies that area. Under the ESA, critical habitat may include "specific areas within the geographical area occupied by the species . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." 16 U.S.C. § 1532(5)(A)(i). Critical habitat may also include "specific areas outside the geographical area occupied by the species . . . upon a determination by the Secretary that such areas are essential for the conservation of the species." id. § 1532(5)(A)(ii). Thus, both occupied and unoccupied areas may become critical habitat, but, with unoccupied areas, it is not enough that the area's features be essential to conservation, the area itself must be essential. All areas designated as critical habitat for the plover were designated based on their status, determined by the Service, as occupied areas. AR 13370-72.

  1. Service's definition of "occupied"

  Plaintiffs first challenge the Service's definition of the statutory term "occupied" found in the ESA as arbitrary and capricious. An agency interpreting a statute it administers gets Chevron deference. See Chevron, U.S.A. v. Nat'l Res. Def. Council, 467 U.S. 837, 842 (1984). If the statute clearly speaks to the precise question at issue, that ends the matter. If, on the other hand, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id.

  The ESA does not define"occupied" or "geographical area occupied by the species." Thus, under Chevron, the question becomes whether the Service's definition is permissible. The Service does not have a regulation that imposes a single definition of "occupied" for all species; rather, the Service has retained flexibility and defines the term differently depending on a given species's characteristics. The Service's final rule for the plover does not explicitly define "occupied," yet the rule makes clear that, with a limited exception, the areas considered as candidates for critical habitat were those areas meeting specific criteria related to the plovers' presence in those areas. AR 13371. The Service looked for areas with "consistent use," which the service defined as those areas where "observations over more than one wintering season" demonstrated plovers' presence. Id. at 13370-71. This definition ...

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