District Court Upholds Designation of Critical Winter Habitat for Piping Plovers Along Cape Hatteras National Seashore

Written by Kurt Repanshek

In an opinion that goes against off-road vehicle interests along Cape Hatteras in North Carolina, a federal judge has ruled that the U.S. Fish and Wildlife Service properly designated critical winter habitat for the Piping Plover, a threatened species of shorebirds.

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Piping Plover in Florida. © Jan Wegener

Judge Royce C. Lamberth, chief judge of the U.S. District Court for the District of Columbia, held that the Fish and Wildlife Service properly considered economic impacts, special management considerations, and off-road vehicle regulations when it set aside 2,053 acres in North Carolina’s Dare and Hyde counties — including parts of Cape Hatteras National Seashore — as critical habitat for the diminutive shorebirds.

The ruling handed down Tuesday was applauded by conservation groups.

“Cape Hatteras is unique. It’s one of the few places on the East Coast that hosts Piping Plover activity all year round,” said Jason Rylander, staff attorney for Defenders of Wildlife. “Critical habitat designation will provide a crucial, additional layer of protection throughout the year.”

At Audubon North Carolina, deputy director Walker Golder called the judge’s decision “a great victory for Piping Plovers and reaffirms the importance of Cape Hatteras National Seashore for this threatened species.”

The ruling comes at the end of a long road of litigation and rule-making. The case at hand can be traced at least to 2001 when the Fish and Wildlife Service first designated critical winter habitat for the birds. Portions of that designation that involved Cape Hatteras were immediately challenged by the Cape Hatteras Access Preservation Association, a coalition of off-road and surf-fishing interests.

In 2004 a lower court remanded the matter back to the Fish and Wildlife Service with a direction to re-examine its designation of the four units that fell within both the national seashore and Pea Island National Wildlife Refuge.

While this was playing out, environmental groups — Defenders of Wildlife and the National Audubon Society — sued the National Park Service for failing to develop an ORV management plan for Cape Hatteras National Seashore.

Fish and Wildlife Service officials published their revised critical winter habitat designations in October 2008, about the same time national seashore officials and the environmental groups agreed to a consent decree mandating that the seashore would develop an ORV plan by April 2011.

While the Fish and Wildlife Service’s revised designation of critical habitat was roughly 1,600 acres smaller than the original designation, and touched on no private lands, the preservation association sued again in February 2009.

In rejecting their claims for relief, Judge Lamberth held that the Fish and Wildlife Service properly and adequately identified why the lands in question were vital to the plovers, which spend 10 months a year “wintering” in North Carolina, and how they need to be managed to benefit the shorebirds.

The ruling (attached below) is only the latest chapter in a long-running saga pitting those who rely on off-road vehicles to enjoy the national seashore and fish from its shores against groups that have maintained the Park Service long has failed to protect threatened and endangered species of birds and sea turtles from those ORVs.

At Defenders, Mr. Rylander said Wednesday that the favorable ruling for winter habitat nevertheless is a smaller piece of the overall puzzle that will provide the necessary protections.

“The Park Service will have yet another reason to do what it’s already obligated to do under the (National Park Service) Organic Act and the Endangered Species Act,” he said from his Washington office. “So, it’s another benefit. But it’s not the entire ballgame.”

The final piece to the puzzle, Mr. Rylander said, will be the adoption of a formal ORV plan for the national seashore.

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