Habitat protections to get rewrite.

Byline: Bill Bishop The Register-Guard

A federal judge in Eugene ruled Wednesday that federal regulators must rewrite rules protecting critical coastal habitat of the threatened Western snowy plover, but allowed the current rules to remain effective in the meantime.

The Coos County commissioners, with the help of a Bellevue, Wash.-based public interest law group, filed a lawsuit last year to overturn the protections enforced in 28 areas covering 18,000 acres along 180 miles of coastline in Washington, Oregon and California.

The city of Sand City, Calif., joined in the lawsuit with Coos County, trying to clear the way for development on three sections of beachfront in the city.

The lawsuit charged the government did not properly consider economic impacts of designating the areas as critical habitat for plover recovery. The suit also sought to have the rules lifted until they are rewritten because the government had not proven the birds would be harmed without the rules.

When an area is designated as critical habitat, federal agencies and any government or individual seeking a federal permit for beach use must consult with the U.S. Fish & Wildlife Service about potential impacts on the plover. The critical habitat rules are separate from other laws that protect the species by, for example, roping off sections of nesting area during breeding season.

In response to the suit, the U.S. Fish and Wildlife Service admitted it erred in failing to consider economic impacts. The agency asked U.S. District Judge Michael Hogan to allow time for new rules to be written. It also argued the protections are essential and should remain in effect even though they fail to meet current legal standards.

Hogan, ruling after a half-hour hearing, said neither side presented a compelling argument. He said the wildlife service had little evidence to show the rules help the bird's recovery. He said Coos County and Sand City had presented even less proof that the rules imposed unreasonable economic hardship.

Marianne Dugan, a Eugene lawyer representing the Arizona-based nonprofit Center for Biological Diversity, said the ruling was neither a victory nor defeat for either side. New economic and environmental information may lead the wildlife agency to write new rules that are more or less protective for the birds.

"It could go either way. They could take out some of the designated area. They could add more. Who knows," Dugan said. "This is going to continue for us quite a bit longer." The center and the Kalmiopsis Audubon Society joined the lawsuit on the side of the government. An Audubon Society spokesperson could not be reached for comment.

New rules aren't expected before September 2005, agency lawyer Ruth Ann Lowery said.

Russell Brooks, a lawyer for the Sacramento-based Pacific Legal Foundation, said Hogan's ruling was "not justice, basically" because it allows the government to continue enforcing regulations that don't conform to legal standards.

He also disputed the need for so much regulation, calling it "an enormous, unlawful land grab."

"It's hard to believe a little bitty shorebird needs that much shoreline," Brooks said.

He said his clients will review economic impact data and consider whether to seek another hearing on the issue.

CAPTION(S):

Western snowy plover protections cover 18,000 coastal acres. Plover: New rules aren't expected before Sept. 2005 Continued from Page D1