United States v. Town of Plymouth, Mass.
1998 U.S. Dist. LEXIS 7523, 6 F. Supp. 2d 81, 46 ERC (BNA) 2072 (1998)
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Rule of Law:
A governmental entity may be found to have caused an illegal "take" of a threatened species under the Endangered Species Act by authorizing activities that result in the actual killing or injuring of individual animals, or by significantly impairing their essential behavioral patterns through habitat degradation or disturbance, especially when failing to implement necessary protective measures.
Facts:
- Piping plovers are small, sand-colored shorebirds listed as "threatened" under the Endangered Species Act, which nest on sandy coastal beaches and feed on small invertebrates in intertidal zones and wrack lines.
- Piping plover chicks are precocial, meaning they can move and feed within hours of hatching, but they are tiny, flightless, and vulnerable to disturbances and physical harm, often moving extensive distances from nests to feed.
- Plymouth Long Beach is a narrow, 2.8-mile barrier beach primarily owned by the Town of Plymouth, providing important habitat for migratory shorebirds, including piping plovers, but also heavily used by off-road vehicles (ORVs) through permits sold by the Town.
- The Town of Plymouth's 1992 ORV/Wildlife Management Plan divided the beach into zones, with Zone 2 (the primary habitat for plovers) remaining open to ORVs except for symbolically fenced areas around nests, which could be reduced if they restricted ORV access.
- John E. Crane, the Town's Beach Conservation Officer, observed that ORV traffic would grind the wrack line into the sand, destroying food sources, and create deep ruts that impeded plover chick movements.
- On July 13, 1993, fourteen tern chicks were found dead in vehicle tracks, and in July 1994, five juvenile least terns were found dead in ORV tracks in Zone 2 of Plymouth Long Beach.
- On June 13, 1996, a newly hatched piping plover chick, observed healthy hours earlier, was found dead in an ORV track in Zone 2, and a necropsy suggested blunt trauma consistent with being crushed by a vehicle.
- In 1997, after the Town Manager signed a Memorandum of Agreement (MOA) with the U.S. Fish and Wildlife Service committing to federal guidelines, the Board of Selectmen rescinded the MOA following public outcry, and shortly thereafter, John Crane was fired for allegedly failing to carry out the Town's 1992 Plan and communicate with town officials.
Procedural Posture:
- In early 1997, the U.S. Fish and Wildlife Service and the Solicitor's Office of the United States Department of the Interior began discussions with the Town of Plymouth regarding a proposed Memorandum of Agreement (MOA).
- The Town Manager and Dr. French signed the MOA in early June 1997.
- On August 5, 1997, the Plymouth Board of Selectmen voted to rescind the MOA with the Service.
- On March 25, 1998, state and federal officials met with town officials to recommend delineation of piping plover nesting habitat areas within Zone 2 and Zone 3 that should be protected by symbolic fencing.
- On March 31, 1998, the United States (Plaintiff) filed a complaint against the Town of Plymouth (Defendant) in federal court.
- On April 10, 1998, the United States filed its motion for a preliminary injunction.
- The District Court held a hearing on the motion for preliminary injunction, reviewing affidavits, videotapes, and documents.
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Issue:
Does the Town of Plymouth's authorization and management of off-road vehicle use on Plymouth Long Beach constitute an illegal "take" of the threatened piping plover under the Endangered Species Act, warranting a preliminary injunction?
Opinions:
Majority - Saris, District Judge
Yes, the Town of Plymouth's current authorization and management of off-road vehicle use on Plymouth Long Beach constitutes an illegal "take" of the threatened piping plover under the Endangered Species Act, and future takes are likely to occur without an injunction. The court found that the United States is likely to succeed on the merits, citing compelling evidence that ORVs have in the past caused illegal "takes" by killing one chick and by substantially interfering with the breeding, nesting, and feeding habitat of piping plovers in Zone 2. The term "take" under the ESA is broadly defined to include "harm" and "harass," which encompass acts that kill or injure wildlife, or significantly impair essential behavioral patterns through habitat modification or degradation, as established in precedents like Babbitt v. Sweet Home Chapter of Communities for a Great Oregon and Strahan v. Coxe. Expert testimony from Dr. Scott M. Melvin indicated that ORVs pose a high probability of killing, harming, or harassing chicks, and adversely affect nesting and feeding habitats by crushing wrack and creating ruts. The court noted the town's "persistent refusal over the last five years" to implement adequate precautionary measures, attributing this to a "long-standing intransigence of town officials" and a lack of authority vested in the Natural Resources Officer to close the beach. The court specifically pointed to the 1996 plover chick death as a probable "take" by an ORV. Given Congress's intent in the ESA to afford endangered species the "highest of priorities" (Tennessee Valley Authority v. Hill), the balance of hardships and public interest tips heavily in favor of the protected species, making a preliminary injunction appropriate and necessary to prevent future harm. The court largely adopted the Service's proposed preliminary relief, modifying it slightly to give the Town more implementation authority while ensuring compliance.
Analysis:
This case significantly reinforces the broad interpretation of "take" under the Endangered Species Act, clarifying that indirect harm through habitat modification and negligent governmental authorization of harmful activities falls within its scope. It underscores the high priority Congress placed on species conservation, affirming that local interests in recreation or property use generally do not outweigh the statutory duty to protect threatened and endangered species. The ruling serves as a strong precedent for holding municipalities accountable for their management practices on lands vital to listed species, compelling them to implement robust protective measures even in the face of local opposition.
