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Interior Department To Be Sued Over Cape Hatteras National Seashore Plover Habitat Decisions


A lawsuit is being promised over U.S. Fish and Wildlife Service decisions to designate critical winter habitat for piping plover on Cape Hatteras National Seashore. Photo by Alan Pitt.

Interior Department officials have been notified that a lawsuit will be forthcoming over decisions to designate critical habitat for piping plover at Cape Hatteras National Seashore.
The notification[/url] was sent to Interior Secretary Dirk Kempthorne and U.S. Fish and Wildlife Service Director Dale Hall on Tuesday. Filed by the Washington, D.C., law firm of Holland and Knight, the notice was lodged on behalf of the North Carolina counties of Dare and Hyde, as well as the Cape Hatteras Access Preservation Alliance, a non-profit that represents, among others, the interests of surf anglers and beach buggy enthusiasts.

If you've been paying attention in recent months, you'll recognize that this fight revolves around decisions to close portions of Cape Hatteras National Seashore to vehicle and pedestrian access to protect species protected under the provisions of the Endangered Species Act.

In the notice, the groups claim U.S. Fish and Wildlife Service officials violated the ESA, as well as the National Environmental Policy Act and the Administrative Procedures Act, in their decisions to declare critical winter habitat for the plovers on both the national seashore and nearby Pea Island National Wildlife Refuge.

The agency's actions, says the notice, "have caused, presently are causing, and will foreseeably continue to cause, substantial harm and adverse impacts to CHAPA's members, the counties, and the thousands of people who rely on the Cape Hatteras National Seashore for their livelihood and recreation."

In addition to claiming FWS officials violated "mandatory, non-discretionary duties under the ESA," the groups say the designation of the critical habitat is unnecessary "in light of ongoing management under the seashore's Interim Plan."

The bottom line, maintain the groups, is that the critical habitat designation should be lifted and that the seashore and wildlife refuge be recognized as exempt from such designations.

Summary of Claims

• The FWS should have excluded the seashore and Pea Island National Wildlife Refuge from critical habitat designation because the benefits of exclusion outweighed the benefits of designation.

• The FWS should have excluded the seashore and Pea Island National Wildlife Refuge from critical habitat designation because the Interim Plan meets the FWS's exclusion requirements.

• The environmental assessment makes clear that the costs of designating critical habitat at the seashore and Pea Island outweigh the benefits.

• The economic analysis is still deficient. It arbitrarily relies on the discredited Vogelsong study and fails to adequately discuss "the effects of the designation on everyone who might be affected" as directed by Judge Lamberth.

• The FWS fails to satisfy Judge Lamberth's direction that FWS must adequately address how each identified primary constituent element would need management or protection

• The FWS has still failed to comply with NEPA. The FWS's Environmental Assessment contains virtually no science and does not address the extensive scientific data and analysis that CHAPA and the Counties submitted through their environmental consultant.

• The FWS has been arbitrary and capricious under the Administrative Procedures Act. The FWS record fails to make a "rational connection between the facts found and the choice made."


If aBIG IF . The truth about special interest groups trying to steal public property would come to light it would be a great victory for the average taxpaying American.

Yet another pathetic attempt by the yahoos on the Outer Banks to turn a National Seashore into the Dare County Motor Park. There's no question there's critical habitat at the National Seashore. So this will simply tie the issue up in legal knots for years. Remember, this issue has already been in the courts for a decade. Environmental groups petitioned and sued to get critical habitat designated, CHAPA sued to get it overturned, the FWS took three years to redesignate it, and now here we go again.

And the irony is this suit won't do anything except waste money. NPS still has to do an ORV plan. And wintering critical habitat doesn't necessarily mean any additional restrictions anyway. The real fight remains over the ORV groups insistence on beach driving in the nesting season, which runs April to November, despite the fact that recovery plans for the piping plover and sea turtles all recommend banning ORVs from nesting areas.


Thanks for the article! While it's certainly regrettable that this issue must once again enter the federal judicial system, perhaps it will be put to bed at long last.

The same groups/counties, in different combinations, have won similar cases over the same designations twice in recent years. There is no reason to believe that the outcome be any different this time, and perhaps the flawed and outmoded Vogelsong study will cease to be a point of reference in future legal proceedings. [Emphasis on future added]


Are you aware of the Center for Diversity's campaign to ban ORV use in all critical habitat areas and to remind the government of the real meaning of critical habitat? In this light, the contention that critical habitat won't result in additional restrictions is dissingenuous.

As for being critical habitat, since the areas do not require special management they are NOT, BY DEFINITION, critical habitat--ESA section 3(5)(A). As for the specific units, check out the NPS Plover Reports and maps, most of the previous habitat was claimed by Isabel. As for the inlets, sandbars come and go--this is clearly not sustainable habitat. I could go on but the real issue here is that USFWS did not originally designate habitat here for a reason. USFWS is only embarking upon this task because of the DOW suit against USFWS. USFWS knew full well that the area didn't qualify under section 3(5)(A). So it is DOW not CHAPA who initiated this wasteful litigation. Furthermore, despite the fact that Padre Island was exempted under section 4(b)(2), DOW is challenging the Padre Island decison as well.

Bottom line DOW et al will not stop until they get their way or until someone finally stops them in their tracks. I for one hope CHAPA is the group to accomplish just that. My only misgiving is that by fighting this CHAPA is putting more money into the greedy environmentalist attorney's pockets.

Ginny ! What a hoot !

Greedy Environmentalist Attorney's !

I guess you don't know where money is getting spent these days, and what you can do if you want when you leave law school. Just today I heard the campaign for what they are calling "clean coal" has already spent $1 Billion THIS year. But, fighting for endangered birds is where you want to be if you are REALLY looking for a huge paycheck.

Yiikes !

Go be an environmentalist, and just watch the money roll in!

My comment was directed at those who wish to take away the area,s that was designated as recreation area,s That is what Hatteras seahore was set aside for.. For EVERYONE not just birds And turtles. It has been proved time and again all can coexist.

So, george53, tell us what "for EVERYONE" really means to you?

For "EVERYONE" all at once? For "EVERYONE," with each one bringing in an ATV? For "EVERYONE" with the same level of use and the same technology used at the time the Seashore was established? For "EVERYONE" without regard to more recent environmental laws, passed by the representatives of all citizens of the United States, because of the recognition that America's environment was deteriorating, and those citizens had learned no national park exists in isolation?

For "EVERYONE" even if it means the destruction of the very special qualities that caused the creation (for "EVERYONE") of the National Seashore in the first place?

Maybe "EVERYONE" is beginning to realize America is not so big that it can any longer afford to let its resources be abused, poluted, and twisted beyond recongition for the thrill and diversions of a "FEW."


How about we let the court decide just whose attempt is "pathetic", shall we? Ginny covers the details quite concisely and thoroughly, so I'll take your stance to task.

Remember, this issue has already been in the courts for a decade. Environmental groups petitioned and sued to get critical habitat designated, CHAPA sued to get it overturned, the FWS took three years to redesignate it, and now here we go again.

So, by your own words, you cite who began all the lawsuits over this issue. Enviro groups, who would've ever guessed? The fact of the matter is, it's pretty obvious that the Federal Courts agree with the pro-access groups, since they've sided with them twice! Now just who is wasting the taxpayers money and tying up courts yet a third time?

And the irony is this suit won't do anything except waste money. NPS still has to do an ORV plan.

Enviro groups don't seem to care about money wasting or tying up the court system. How very nice of you to employ a double-standard when the lawsuit comes from your foes. How about the millions of dollars that have been spent since the inception of the Consent Decree, with only a few more fledged birds to show for it? How about the money spent on signage for closures? How about the fact that the CHNSRA park rangers, who used to dress like the "Crocodile Hunter", now look like Marines on patrol, body armor, sidearms and tasers worn to protect against "Perceived" threats? How much taxpayer money has been spent on these items alone, not to mention all the other mandates required by the CD? Don't preach about wasting taxpayer money. It's the DOW creedo!

We would not be having any of these conversations if the Enviro groups had not left the negotiating table and filed their own lawsuit while everyone else was attempting to hammer out the final plan. They are the one who left good-faith negotiations, and they hold the distinction of being the first to sue over this matter. It's like an analogy of the brat on the football field who actually owns the ball. They took said ball and went home when they didn't get their way.

This lawsuit will likely shine the spotlight on much of the fuzzy science and questionable tactics employed by the enviro groups in both this matter and the matter of the final ORV plan, as they are intertwined. Much of this will not stand up well in court. You and your pals need to face that fact.

I'll leave this thread for now with a parting picture for you. Below is the front cover of a brochure for ther Cape Hatteras National Seashore Recreation Area Circa 1955. This is just a gentle reminder that the intention of this area is, and always has been, to be used as a playground for Human Beings. The fact of the matter is, we can coexist with the other wonderful species that inhabit this area, just like we always have, ORV's included.

The area must be managed, not shut down.

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