Coos County ready to sue over shorebird.

Byline: LARRY BACON The Register-Guard

COQUILLE - Some legal saber-rattling by the Coos County Board of Commissioners regarding the federally protected Western snowy plover has the local environmental community up in arms.

"The snowy plover recovery program could go down the tubes," says Jim Britell of Port Orford, president of the Kalmiopsis Audubon Society.

The commissioners are threatening to file a lawsuit challenging a 1999 U.S. Fish & Wildlife Service order that designated critical habitat areas for the small shorebird. Britell is the point man in a campaign by the environmental community to pressure county commissioners not to file the suit.

The commissioners say they intend to move ahead with legal action and believe that they have a good chance of having the habitat designation set aside by the courts. They filed a 60-day notice of intent to sue in January.

They said this week that they can't say exactly when they will file the suit but all three remain committed to it.

Commissioner John Griffith, who has orchestrated the county's challenge to the habitat designation, said the suit is likely to come after the commissioners approve a memo of understanding with the Pacific Legal Foundation, a Sacramento-based public interest law group that has agreed to represent the county in the suit at little or no cost.

The proposed lawsuit would argue that the Fish & Wildlife Service didn't properly consider economic impacts in designating habitat critical for the plover's recovery.

Similar lawsuits in New Mexico and Arizona in recent months have overturned critical habitat designations for two other federally listed species - the pygmy owl in Arizona and the willow flycatcher in New Mexico.

The Fish & Wildlife Service did an economic assessment of the critical habitat designation that service spokesman Phil Carroll said included about 74 miles of Oregon's 262 miles of sandy beaches. Most of the designated habitat is on the south coast.

The assessment concluded that the critical habitat designation itself had no economic effects because whatever effects might occur came from listing the plover as threatened under the federal Endangered Species Act, Carroll said. Economic effects can't be considered when a species is listed under the act.

That kind of logic doesn't fly with Griffith, who said it hasn't fared well in the other court challenges. Griffith, who enjoys scuba diving, surfing and surf fishing, said he campaigned against beach closures long before becoming a county commissioner 1 1/2 years ago.

He said the large expanse of beaches designated as critical habitat opens the door to more beach closures to protect the bird, and that would hurt the coastal economy, especially on the south coast.

Federal agencies working with the state Department of Parks and Recreation now restrict mostly dry-sand areas on 18.4 miles of Oregon beaches for six months each year to keep people away from plovers during their mating and nesting season.

There are no public access restrictions in most of the critical habitat areas, but Griffith said the number of restricted miles has nearly doubled in the past six years.

About a quarter of the south coast beaches from Heceta Head to Blacklock Point now have plover-related closures, he said, and he believes the closures are costing the local economy millions of dollars each year.

But Carroll said a court ruling setting aside the critical habitat designation wouldn't change the federal government's responsibility to protect the plover.

It would still be listed, he said, and the Fish & Wildlife Service and other agencies would still be obligated to protect nesting areas by closing certain sections of beaches during nesting season. "The critical habitat is a separate issue," he said.

The habitat designation is a key issue, however, in the opinion of Britell and other environmental activists. Representatives of more than 20 Audubon Society chapters and other conservation organizations, including the Sierra Club and the Oregon Natural Resources Council, sent a letter to the commissioners saying if the lawsuit is filed and were to succeed, it would:

Benefit advocates of motorized access to West Coast beaches by removing possible plover-related restrictions.

Help developers who need federal money or permits to build on privately owned ocean front property - money or permits that are now restricted if development might affect critical habitat areas.

Divert scarce resources for plover recovery efforts to handle the paperwork necessary to defend against the suit.

More importantly, Britell said, a court ruling setting aside critical plover habitat would confuse people and erode vital public support for the bird's recovery effort - particularly in California, where both plovers and people are more numerous on the beaches.

In California, he said, voluntary cooperation is especially important to keep people out of plover nesting areas. The public might view a court decision setting aside critical habitat areas as an indication that such cooperation is unnecessary, he said, and that could be a huge setback for the bird.

"This is a species that can only be recovered if is has the public's good will and support," he said.

Griffith said setting aside critical habitat wouldn't affect motor vehicle restrictions on Oregon beaches. Nor would it help private developers, he said, because most of the land adjacent to critical habitat is in government ownership or already barred from development because of land-use constraints.

And a Coos County lawsuit, he said, would generate much less paperwork than the number of lawsuits filed against federal agencies by environmental organizations on a wide range of issues.

If a suit is filed, Britell said, one of the major environmental organizations is certain to intervene on behalf of the plover. There's concern, he said, that the Bush administration might not mount a vigorous defense against the suit.

Meanwhile, he questioned whether Griffith and the Coos County commissioners might be trying to undermine plover recovery efforts in Oregon.

He noted that Coos County comments about the federal recovery plan, written by Griffith, say the bird should be taken off the endangered species list in Oregon and Washington.

Griffith said he wrote the comment because he has doubts about the government's ability to overcome the deadly effects of predators and spreading beach grass that are degrading plover habitat in the two states.

He said the Coos County commissioners aren't "anti-plover."

The goal of the proposed lawsuit is to show the economic effects of the critical habitat designation, he said.

"Beaches are important to Oregonians," he said. "If they have to be closed for a threatened species, I can accept that, and I think most Oregonians can accept that.

"We just don't want to give up more than that species requires."

WESTERN SNOWY PLOVER

Description: Small shorebird that nests in dry-sand areas on Pacific Coast beaches. Population listed as threatened in 1993 under U.S. Endangered Species Act.

Problem: Population has dwindled because of habitat degradation by European beach grass, increased number of predators, urban development and human disturbance.

Current population: California, 976; Oregon, 112; Washington, 50.

Critical habitat: Twenty-eight areas covering 210 miles of coastline designated by U.S. Fish & Wildlife Service in 1999 - 19 in California, seven in Oregon, two in Washington.

- U.S. Fish & Wildlife Service.