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."