A federal district court has granted a preliminary injunction against the Town of Plymouth, MA ordering it to prohibit off-road vehicles (ORVs) from a public beach.
The order was entered at the request of the U.S. Fish and Wildlife Service to protect piping plovers, birds listed as "threatened" according to the Endangered Species Act, 16 U.S.C. §1531-1543. U.S. v. Plymouth, 46 E.R.C. 2072 (E.D. Mass. 1998). The Court allowed ORVs only if the town established minimum vehicle free buffer zones around piping plover nests and unfledged broods.
The court found that chicks and some adults are vulnerable to ORVs traveling the beach. They tend to get stuck in tire ruts or to be run over because they fail to move quickly enough to get out of the way. The court also noted a report that ORVs are likely to disturb nesting and feeding habitat and opportunity.
The court found that the beach is a location for year around recreation, including ORVs and vehicles of fishermen, property owners, guests and campers. "Pictures suggest that on hot summer days, the beach looks like a shopping mall at Christmas, with cars parked side-by-side along the beach." 46 ERC 2074.
The court stated that once a species is designated as endangered or threatened, it is protected from any "taking", which includes an intentional or negligent act or omission which creates a likelihood of injury, including significant disruption to breeding and feeding. The court held that "Plymouth's persistent refusal over the last five years to undertake adequate and timely precautionary measures on the initiative of those town officials responsible for management of the beach creates a likelihood that piping plover chicks will be killed and disturbed and that the nesting and feeding habitat will be adversely modified during the upcoming breeding season." 46 ERC 2080.
The court ordered the town to prohibit ORVs during a certain time period, unless the town adopted certain measures specified by the court, including establishment of buffer zones and monitoring of the birds.
It would seem that the situation described in this case could be applicable to other areas, such as public parks and green spaces where endangered species may be found.
Dan Kucera is a partner with the Chicago law firm of Chapman and Cutler, specializing in public utilities, water and wastewater and environmental law. Tel: (312) 845-3757; Fax:(312) 701-2361; email: firstname.lastname@example.org.