Two agency victories: D.C. judge upholds FWS rule on piping plover critical habitat; Oregon judge denies preliminary injunction of NMFS review of Oregon Coast coho impacts
The CAPE HATTERAS ACCESS PRESERVATION ALLIANCE v. U.S. DEPARTMENT OF the INTERIOR, 731 F.Supp.2d 15, Civil Action No. 09-0236 (RCL), (D.D.C. Aug. 17, 2010.)
SUMMARY: 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.
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. Photo and additional information about Atlantic populations of plovers from FWS.
OLENEC v. NATIONAL MARINE FISHERIES SERVICE, 2011 WL 310236, Civil No. 10-6427-HO. (D. Ore. Jan. 28, 2011).
BACKGROUND: Plaintiffs challenge various agency decisions that resulted in Oregon Resources Corporation (ORC) obtaining a permit to operate chromite mines in southern Coos County. 1 Plaintiffs allege that ORC's surface mines will impact 7.7 acres of wetlands and 0.6 acres of tributary streams... Plaintiffs are particularly concerned about the presence of hexavalent chromium (Cr6) in the ground water at the mine sites, and the risk that possible Cr6 and sedimentation generated during the mining process will injure fish and wildlife, pollute the watershed and threaten their health and well-being... Plaintiffs are concerned about the possible danger posed to the Oregon Coast Coho Salmon (OC Coho), a threatened species...
EXCERPT: The defendants contend that: (1) there is extensive, sound information upon which NMFS based its finding that neither the geological conditions at the sites nor the removal of chromite sands favor the formation of increased concentrations of Cr6; (2) the cumulative impacts of potential, future ORC mining was both too uncertain and too indefinite to evaluate; (3) the potential harms of sedimentation were addressed through the permit's requirements for project modifications, on-going wa-ter quality-monitoring and mitigation measures; and (4) the balance of the hardships do not favor plaintiffs' untimely challenge of an agency decision made in February and March of 2010, upon which ORC has, relied in entering into multi-million dollar contracts including construction of a processing plant in Coos Bay Oregon... The substantial evidence in the administrative record supports NMFS's determination that the Cr6 levels were not harmful to the OC Coho and that site conditions were likely to prevent harmful Cr6 levels from developing. The agencies' actions are thus entitled to deference as they are reasonable, consistent with the scientific evidence and therefore neither arbitrary nor capricious.