by Jenny Coyle
HCP Challenge Key to Saving Dune Habitat
It just didn't make sense. The U.S. Fish and Wildlife Service approved the construction of two luxury condominium resorts on a stretch of coastline that is home to the endangered
Alabama beach mouse. The agency said in its own 1987 recovery plan for the mouse that all of the remaining habitat - about 350 acres of fragile sand dunes on Alabama's Gulf Coast - must be protected if the species is to survive.
So in 1996, when the agency gave the go-ahead for the 86-acre Beach Club and 52-acre Martinique on the Gulf, the Sierra Club, represented by Earthjustice Legal Defense Fund, took Fish and Wildlife to court - and won.
The Endangered Species Act prohibits the "taking" - killing, harming or disrupting habitat - of listed species, but it also authorizes Fish and Wildlife to issue an "incidental take permit" as an exception to this prohibition. A permit may be issued after the agency approves a habitat conservation plan (HCP) in which the landowner spells out conservation measures that will be taken to offset, or mitigate, the impact on the endangered species.
The judge ruled that the resort developers' HCPs were "devoid of any rational basis" and relied on "insufficient, inadequate, and out-of-date data." He ordered Fish and Wildlife to conduct a new scientific analysis and require better mitigation.
"This ruling is more than a victory for the besieged Alabama beach mouse," said Rebecca Bernard, a Sierra Club staff attorney. "This is the first time an HCP has been challenged successfully in court, so this will help groups to challenge other faulty plans. This decision sends the government a clear signal that HCPs must be based on solid science and contain real conservation measures, such as the acquisition and protection of key habitat lands."
The Alabama Chapter spearheaded the lawsuit, and past chair Margie Welch, who lives on the coast, played the role of point person for the chapter. "You need someone who follows the case closely and is able to do some legwork by rounding up information and finding experts and others who can testify. He or she should also be the one to communicate directly with the attorneys so they don't have to deal with 40 people in the executive committee.
"We did some agonizing over what, when and how to pursue aspects of the case, but overall it was a unifying experience for our chapter," said Welch. "The government put on a blindfold when it approved the condos smack in the middle of endangered-species habitat. We're glad our efforts will result in better HCPs and more protection for imperiled species elsewhere. We feel empowered by being a part of good environmental law."
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