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Cape Hatteras Access Preservation Alliance v. U.S. Dep't of the Interior

August 17, 2010

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.



The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court

MEMORANDUM OPINION

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. at 115 (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, 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 redesignating 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 of the federal defendants. Currently before the Court are plaintiffs' motion for summary judgment, and federal defendants and defendant-intervenors' cross motions for summary judgment.

III. Standing

Federal defendants and defendant-intervenors assert that plaintiffs lack standing to bring this suit. To establish standing, plaintiffs must establish that they meet certain constitutional and prudential requirements. "The 'irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2) causation, and (3) redressability." Jackson County, N.C. v. FERC, 589 F.3d 1284, 1288 (D.C. Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)) (internal quotation omitted). Thus, to demonstrate constitutional standing, "a petitioner must allege (1) a personal injury-in-fact that is (2) fairly traceable to the defendant's conduct and (3) redressable by the relief requested." Int'l Bhd. of Teamsters v. Trans. Security Admin., 429 F.3d 1130, 1134 (D.C. Cir. 2005).

In order to establish prudential standing, plaintiffs must demonstrate that the injury "arguably falls within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit." Bennett v. Spear, 520 U.S. 154, 162 (1997). The requirement that the interests of plaintiffs fall within the zone of interests protected or regulated by the statutes at issue is "not meant to be especially demanding" and does not require that a particular plaintiff be the intended beneficiary of the act. Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399-400 (1987). The test excludes only plaintiffs whose interests are "so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Id. The focus is "not on those who Congress intended to benefit, but on those who in practice can be expected to police the interests that the statute protects." Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1075 (D.C. Cir. 1998).

Here, plaintiffs have demonstrated both constitutional and prudential standing. As in CHAPA I, CHAPA members fear that the Service's administration of the critical habitat will result in use restrictions on vehicles and closure of beaches of access portions. This not only affects recreation but the livelihood of local fisherman who are dependent on the vehicles. The regulations could also impact tourism, which would have a severe impact on local business, many of which derive substantial revenue from tourism. Similarly, the counties assert harm related to their tourism economy and their ability to maintain and repair infrastructure and seashore. These injuries are causally related to the Service's critical habitat designation. Additionally, the Court can require the Service to revisit, again, its designation. Additionally, the Supreme Court recently held that "[a] party that obtains a judgment in its favor acquires a 'judicially cognizable' interest in ensuring compliance with that judgment." Salazar v. Buono, 130 S.Ct. 1803, 1814-15 (2010) (citing Allen v. Wright, 408 U.S. 737, 763 (1984)). Here, the plaintiffs obtained a judgment in their favor in CHAPA I and are seeking judicial review challenging whether the Service complied with the remand order. Therefore, plaintiffs have demonstrated constitutional standing.

Similarly, plaintiffs have established prudential standing. Plaintiffs acquire prudential standing in relation to their ESA claims pursuant to the citizen-suit provision of the ESA. See Bennett, 520 U.S. at 162. In Bennett v. Spear, the Supreme Court held that the broad language of the citizen-suit provision of the ESA "negates the zone-of-interests test" and expands standing "to the full extent permitted under Article III." 520 U.S. 154, 164 (1997). Additionally, plaintiffs have established that their injuries fall within the zone of interests regulated by the statutory provision invoked in the suit. 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). Similarly, the Counties' assertions of harms they suffered in relation to repair of area beaches 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) are sufficient to fall within the zone of interests.*fn1

IV. Standard of Review

Generally, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp., 477 U.S. at 324.

However, a federal agency's compliance with its statutory and regulatory obligations is subject to the Administrative Procedure Act (APA). The APA creates a cause of action for challenges to final agency decisions, findings or conclusions alleged to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). While the court's review must be "searching and careful, the ultimate standard of review is a narrow one" and the court "is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). The standard is deferential in order to guard against "undue judicial interference" with the lawful exercise of agency discretion and prevents "judicial entanglement in abstract policy disagreements which courts lack both the expertise and information to resolve. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66 (2004).

In applying this standard, an action will be set aside if the agency identified no "rational connection between the facts found and the choice made," if the "explanation for its decision [is] counter to the evidence before the agency, or is so implausible that is could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Under the APA's standard of review, there is a presumption of validity of agency action. Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976) (en banc). In other words, so long as the agency considered the relevant factors and articulated an explanation establishing a rational connection between the facts found and the choice made, the court will not substitute its judgment for that of the agency. See CHAPA I, 344 F. Supp. 2d. at 119 (citing Wyo. Outdoor Council v. Bosworth, 284 F. Supp. 2d 81, 89 (D.D.C. 2003).

V. ESA Critical Habitat Designation

The Endangered Species Act 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). The ESA was enacted 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). The ESA defines the terms "conserve" and "conservation" as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary." Id. at 1532(3). In other words, as noted by the Fifth Circuit, the objective of the ESA "is to enable listed species not merely to survive, but to recover from their endangered or threatened status." Sierra Club v. United States Fish and Wildlife Serv., 245 F.3d 434, 438 (5th Cir. 2001).

The ESA makes the Secretaries of Commerce and of the Interior responsible for administering and enforcing the Act. The Secretary of the Interior is responsible for terrestrial and freshwater fish species, while the Secretary of Commerce is responsible for marine species. The Secretary of the Interior has delegated the responsibility for terrestrial species to the Service. Fisher v. Salazar, 656 F. Supp. 2d 1357, 1358 (N.D. Fla. 2009).

The ESA requires the Service to maintain a list of both endangered and threatened species. A species is "endangered" if it is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is "threatened" if it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. at § 1532(20). Determinations as to whether a species should be listed as endangered or threatened must be made "solely on the basis of the best scientific and commercial data available." Id. at § 1533(b)(1)(A). Economic impacts are not factored into the determination to list a species as endangered or threatened.

In creating the ESA, "Congress started from the finding that '[t]he two major causes of extinction are hunting and destruction of natural habitat.'" Tennessee Valley Authority v. Hill, 437 U.S. 153, 179 (1978). Of these two threats, "Congress was informed that the greatest was the destruction of natural habitat." Id. Accordingly, the Service is also required to make a determination to designate -- "to the maximum extent prudent and determination" -- the listed species' critical habitat. Id. at § 1533(a)(3)(A). Critical habitats are those lands that are essential to the listed species' conservation. Id. § 1532(5)(A). Specifically, critical habitat is defined as:

(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, 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; and

(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such ...


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