March 4, 1997
by Neil S. Milligan
On February 3rd a document giving notice of intent to bring suit was delivered to Bruce Babbit, Secretary of the Department of the Interior (DOI), and to John Rogers, Director of the US Fish and Wildlife Service (FWS). The plaintiffs are the Alabama Chapter of the Sierra Club, the Fort Morgan Civic Association, and Mickey Stephens, a private landholder who owns property in a subdivision adjacent to a proposed high-density residential and commercial development. The defendant is the FWS, an agency under the DOI. The Washington D.C. law firm of Meyer & Glitzenstein has agreed to handle the potential lawsuit; Montgomery attorney Ray Vaughn is assisting with the matter.
Plaintiffs claim that FWS is violating the Endangered Species Act (ESA) by permitting "incidental takes" of a Federally-listed endangered species, the Alabama Beach Mouse (ABM, a.k.a. peromyscus polionotus ammobates), and by allowing destruction of its habitat. The legal arguments state that these actions impair the survival and recovery of the ABM. According to the notice, the FWS has until February 28th to withdraw the permits granted to two development projects on Fort Morgan Peninsula, fronting on the Gulf of Mexico near the mouth of Mobile Bay, otherwise the plaintiffs will sue.
The two permitted proposed developments prompting this legal action are "Martinique on the Gulf" and "The Beach Club." Both are high-density residential projects, comprising 52 and 86 acres, respectively. Among the consecutively granted "incidental take permits" are two other high-density developments nearby -- "Laguna Key" and "Kiva Dunes" (the latter includes an oceanfront golf course [!] in its residential community), and another developer has a recently- submitted application pending for construction of an 84-unit condominium complex. The plaintiffs note that FWS has not considered the cumulative impacts of successive projects, nor has it held out for serious and effective conservation plans from the applicants -- mitigation strategies required by law to enhance the endangered species' survival, not just slow its certain demise.
Although it is attached to the Baldwin County mainland, Fort Morgan Peninsula is a barrier island, similar to the others along the sand-rich lower Atlantic and the northern Gulf coastlines. Their contours and positions change over time, but these landforms are generally made up of primary dunes seaward, secondary dunes behind them, and scrub dunes farther inland.
Longshore currents travel parallel to the coastline, carrying sand brought from the inner continent. The sand is deposited on the shore by waves (though cyclically removed and leveled during high-water events) and placed farther inland by wind action, building the dune system. Primary dunes are wind-built, with vegetation such as sea oats helping to trap the shifting sand; they are also fleeting, often erased completely during storms. Secondary dunes are more durable, though not permanent; they can be wiped away during severe storms. The scrub dunes, with more vegetation and protected from the main force of a storm by the seaward dunes, are rarely removed unless artificially disturbed. The dunes comprise a dynamic interconnected system.
Each successive structure acts as a bulwark or barrier to the oncoming forces of Nature, absorbing tremendous energy as it is destroyed, affording protection to everything that lies landward. Early settlers in this precarious zone either lived far enough landward to avoid major damage (and left the natural protections intact), or they built ephemeral dwellings that were inexpensively replaced after the inevitable storms. Whether people are too affluent to be concerned with the consequences of developing in the path of eventual destruction or too ignorant to learn the lessons of Nature is a subject beyond the scope of this article. What is plain is that human settlement on this exposed strip of land is increasing at a phenomenal rate.
Some of the land on the peninsula is already owned by FWS, protected as part of the Bon Secour National Wildlife Refuge (BSNWR). Started in 1980, BSNWR comprises 6,200 acres in three disconnected units; the only portion fronting on the Gulf, the Perdue Unit, is surrounded by developed and nondeveloped private land. Fragmentation and multiple heirs make acquiring more land for conservation problematic. Additionally, as fewer miles of natural coastline are left, the remnants become more valuable for speculative development and too costly for underfunded government agencies. A private, non-profit conservation group, Friends of Bon Secour National Wildlife Refuge, has been building membership and securing donations for land purchases, but so far the market costs remain beyond this small organization's resources. (Friends of Bon Secour is not involved in this lawsuit, neither in name nor with financial support. Anyone interested in assisting with their conservation efforts can contact them for more information at 12295 Highway 180, Gulf Shores, AL 36542.)
As with any sanctuary for reclusive animals, smaller parcels are less useful, and increasing human encroachment on the boundaries reduces their utility even more. On the other hand, developments adjoining such protected land become more valuable for residences because the inhabitants cherish the natural surroundings beyond their paved parking lots and double-paned, air-conditioned views. Ironically, any new residents may become champions of conserving Nature -- though too late -- through a syndrome similar to the well-known NIMBY (Not In My Back Yard) effect. When this happens, the IGMAs (I Got Mine Already) come to appreciate the relative remoteness and quietude and resent any attempts at further development, often seen as encroachment on their private little wilderness next-door.
Extinction is an inexorable but slow and methodical process, one that life has evolved in concert with. Natural extinction happens when the environment changes beyond what an organism can adapt to, or when it is confronted with another species better able to utilize life-giving resources, but it is always a result of the struggle for survival. Extinct means gone forever from the face of this planet, from total existence, and it is a travesty when brought about solely from convenience or to satisfy frivolous wants. When one considers that everything on this planet serves a purpose -- has an impact, no matter how slight, on the way everything else functions -- it should make one wonder, "What will happen when this species is no longer around?" A mind too small to allow that every living thing has an inherent right to co-exist should at least recognize a species' value in the potential personal gain to one's narrow self interests.
Fortunately, some humans have considered the unseen work of various organisms in maintaining the environmental status quo. The ESA was enacted because Congress recognized that many wildlife species were declining in number due to unchecked economic development and unlimited growth. The act is a measure designed to increase the chances that a species threatened with extinction may recover to viable levels. It provides legal protection for individuals and populations, and it demands conservation of ecosystems inhabited by them. The statute also requires FWS to develop and implement recovery plans that include actions necessary to prevent extinction and to assure conservation and recovery of the species. The idea is to get the populations healthy enough so that they no longer need Federal protection.
"Taking" a listed species is forbidden under the ESA and the definition includes killing, harming, harassing or otherwise disturbing a species, or indirectly doing so by destroying or modifying its habitat. "Permitted takings" are severely limited exceptions to these prohibitions and are of two types. FWS can grant a permit to "take" (for example to trap, survey, or monitor) a limited number of individuals in a designated range for scientific study of the species. These activities are for the purpose of enhancement of survival of the species and meet the intent of the ESA. The other type is the "incidental take permit" (ITP), applied for when the "taking" (again, a limited number of individuals in the population) is incidental to, and not the purpose of, otherwise lawful activities. Neither exception is license for disregard of the ESA's purpose of species protection; both must only be allowed with the goal of continued survival in mind.
Issuance of ITPs is based on two conditions. First, that such permits will not operate to the disadvantage of the listed species that are the subject of the permit; this means that they may not be granted unless FWS determines that "the 'taking' will not appreciably reduce the likelihood of survival and recovery of the species in the wild." Second, they must be consistent with the purposes and policies set forth in the ESA; meaning that the FWS must insure that an action "is not likely to jeopardize the continued existence of any endangered species...or result in the destruction or adverse modification" of its critical habitat. Critical habitat is that which is "essential to the conservation of the species" and "may require special management considerations or protection."
The applicants requesting incidental takes of a listed species must submit a "habitat conservation plan" (HCP) for the remainder of the species. The HCP is a vehicle intended to enhance the survival and recovery of the protected species with measures that would not normally be undertaken. So this is not just an apology-before-the-fact for contributing to the likely extinction of a species deemed worthy of Federal protection. The desired activity that brings about the incidental take requires specific ameliorative actions that increase the likelihood of the species' survivability beyond what would have been expected with no human intervention.
The Alabama Beach Mouse may seem like an inconsequential animal, but everything serves a purpose (see previous section, The Rules). It lives in burrows dug in the sides of sand dunes, mostly in the primary dunes. Secondary and scrub dunes also provide habitat and refuge during severe storms that destroy frontal dunes, sheltering mice that can later recolonize seaward. It is believed that the ABM is instrumental in propagating seeds of the sea oat, burying an excess of them as food stores. In a locale as outwardly barren as the sandy beach, it is conceivable that even the waste products from these tiny mammals make a significant contribution in providing fertilizer for the network of roots that helps hold the dunes in place.
It is probably safe to assume that neither the dune system nor the beach mouse would exist as such without the other. This animal has lived with periodic catastrophic storms for thousands of years. With two other subspecies of beach mouse, it was once found across an estimated 100 miles along the Alabama and Florida coastlines. When the ABM was listed in 1985, remaining critical habitat was designated as 10.6 miles of coastline along Fort Morgan Peninsula.
At that time, FWS noted that the major threat to beach mouse habitat continued to be human destruction of the coastal sand dune ecosystem for commercial and residential development. Further, such development also serves to fragment small groups of mice, impairing gene flow and preventing migration between populations and halting potential recolonization of depleted areas by natural immigration. Endemic with human invasion of natural areas are "insecurity" lights. Such artificial lighting limits the nocturnal animal's foraging opportunity while increasing its predators' success.
Other threats accompanying human encroachment are disturbance of habitat by increased recreational uses, predation by domestic cats, displacement through competition by introduced house mice, and the increase of potential predators and competitors attracted to refuse containers associated with residential and commercial developments. Additionally, hurricanes are now more likely to cause serious unrecoverable population losses because of habitat removal, refuge elimination, and reduced ABM numbers.
The attorneys representing the plaintiffs (who in turn represent the mouse) seem to have valid points that support the contention that FWS is negligent in providing protection as required under ESA. In the 1987 Recovery Plan for the ABM, FWS concluded that "primary recovery objectives" included "preventing further habitat deterioration" and emphasized that "[m]aintaining and improving the remaining habitat is essential for [its] survival." In its "Beach Club" decision, FWS explains that, "[f]or high density residential development projects by real estate developers" it has "issued [incidental take permits] for every such project initiated on the Fort Morgan Peninsula during the last four years." In its 1995 "Martinique" decision, FWS makes a similar claim and justifies it further, saying that "It is therefore reasonable to conclude that cumulative detrimental effects to extant Alabama beach mouse populations from continued gulf-front construction will be minimized through use of the Section 10 permits for coastal development." This appears to be simple denial: as if cumulative effects will not happen just because the permit is granted. The ESA is quite clear, however, that the permits must be granted only on the sound basis of species protection.
The litigants also have a problem with what passes for satisfactory Habitat Conservation Plans: there is no component that enhances species survival. Granting the ITPs for each development allows construction that will permanently destroy critical habitat and crush and entomb an unlimited number of mice in their burrows. In exchange for the permitted "taking" of the endangered species and to compensate for the permanent loss of its habitat, the applicants magnanimously promise to discourage residents from having cats, use scavenger- proof refuse containers, control exterior lighting, post signs to educate about the endangered status of the ABM, restore scrub dunes damaged during construction, and spend up to $210,000 (combined total, between both multimillion dollar projects) on one of several mitigation options, which may include merely contributing to a conservation research fund. The FWS defends its permit approval based on "the adequacy of minimization and mitigation measures outlined in the Applicant's HCP as measured against the Service's issuance criteria." FWS feels that each HCP "minimizes and/or mitigates permitted take to the benefit of the species" even though the "project may result in incidental taking of the Alabama beach mouse in some areas."
FWS also adds the disclaimer that "the [Endangered Species] Act is not a land-use regulation" but "provides a mechanism for resolution of endangered- species conservation and private economic development," and that "Development on the Fort Morgan peninsula will occur regardless of whether or not a Section 10 permit is obtained from the Service." (It is interesting to note that FWS decisions written ten and twelve years ago, when policy was directed by President Reagan, were more conservation-minded than those of today under Bill Clinton's administration.) There are additional examples that the attorneys believe bolster their case. Even if the suit progresses and the courts decide for the FWS and the developments go in, only time and Nature will tell who truly won. Perhaps we should remember Burns' words: The best-laid schemes o' mice an' men gang aft agley...
Editor's note: Neil Milligan is a member of numerous environmental groups, including the Sierra Club. Anyone wishing to help with the financial costs incurred in this litigation can contact Vaughn's office at 334-265-8573.