FOR RELEASE: IMMEDIATELY
CONTACT: Ron Bishop or Mark Czaplewski, Central Platte NRD
October 14, 2005

Judge Rules In Favor of Coalition In Piping Plover Lawsuit
    LINCOLN--The Nebraska Habitat Conservation Coalition was successful yesterday in a lawsuit challenging the U.S. Fish and Wildlife Service’s critical habitat designations for the threatened piping plover. The Coalition argued that the designation of critical habitat violates the Endangered Species Act (ESA) and provides little or no benefits to the species.     
    In September 2002, the Fish and Wildlife Service published a final rule that designated critical habitat for the bird, encompassing portions of four rivers in Nebraska, as well as areas in Minnesota, Montana, North Dakota and South Dakota.  In Nebraska, the Service designated a total of 440 river miles, including the Platte River from Lexington to its confluence with the Missouri River and stretches of the Loup, Niobrara and 120 river miles of the Missouri River adjacent to Nebraska. 
    U.S. District Judge Lyle Strom vacated the entire designation in Nebraska and ordered the Fish and Wildlife Service to re-designate critical habitat to include only areas occupied by the piping plover.  The Coalition argued that the Service’s choice of primary constituent elements (as required by the ESA) was deficient because they were not found in the designated areas.  Primary constituent elements are defined as biological or physical elements essential to the conservation of the species. Judge Strom agreed saying the Service stated in their documents that “some areas not essential to conservation of the piping plover were included within critical habitat boundaries.”  By its own admissions, the Service designated areas as critical habitat that lack the primary constituent elements.  The ruling does not affect designations in Minnesota, Montana, North Dakota and South Dakota. 
    The Coalition also argued that the impact analysis conducted was inadequate.  Mark Czaplewski, NHCC member and Central Platte NRD biologist, said the Fish and Wildlife Service failed to weigh the economic and other impacts against the benefits of the designation.  In his opinion, Strom said the cost of critical habitat consultations fail to look at all aspects of those impacted.  He concluded by saying the economic assessment prepared by the Service fails to meet the requirements of the Endangered Species Act.

     Czaplewski said “the Central Platte NRD and other Coalition members are active participants in the conservation of the piping plover and wanted to accomplish conservation efforts through local management plans already in place.”  He said the coalition also wanted to make sure the economic impacts to landowners and private citizens of Nebraska were fully evaluated and incorporated into the legal process.

     Marc Stimpert, NHCC attorney, said that the U.S. Fish and Wildlife Service has the right to appeal the decision to the 8th Circuit Court of Appeals within 60 days, but that the Service does not have to appeal.

     The United States House of Representatives has passed HR 3824, known as the Threatened and Endangered Species Recovery Act of 2005 ("TESRA"). The TESRA is currently before the Senate. If passed, the TESRA would eliminate critical habitat from the ESA in favor of stronger local recovery plans and landowner incentives directed at protecting threatened and endangered species.

     The Nebraska Habitat Conservation Coalition is comprised of 32 Nebraska entities from both public and private sectors, including natural resources districts, municipalities, irrigation and power districts, and other organizations.