CITIZENS WIN STEP ONE TO PROTECT THE DUNGENESS NATIONAL WILDLIFE REFUGE
The Federal U.S. Fish and Wildlife Refuge Act is clear that compatibility determinations are mandatory. The U.S. District Court for the Western District of Washington State concludes that the Refuge Act requires the U.S. Fish and Wildlife Service (USFWS/Service) to complete a compatibility determination, that the Court has jurisdiction and that plaintiffs’ case has merit and should be heard.
BACKGROUND
Whenever a project is near or on a national wildlife refuge, the USFWS must complete a “compatibility determination” on potential impacts to these federal lands. A 50-acre industrial shellfish operation has been allowed to operate abutting the Dungeness National Wildlife Refuge in Sequim WA without the agency having written a compatibility determination or permitted the shellfish operation. This Refuge hosts 240 species of birds, 29 species of mammals, 8 species of reptiles and amphibians, and 26 species of fish.
Protect the Peninsula’s Future, a WA State non profit was joined by another WA State non profit, Coalition To Protect Puget Sound Habitat and the national non profit, Beyond Pesticides challenging the USFWS in US Western District Court, pleading that the USFWS must write a compatibility determination stating the shellfish operation’s harm to this refuge. The USFWS/Department of Interior asked the court to dismiss our case, denying their own authority. On July 17, 2024, THE FEDERAL DISTRICT COURT DENIED DISMISSING OUR CASE..
We also pled that should the operation be allowed, it needed a permit. The federal judge left open the opportunity to strengthen this argument.
THE LAW
In his review of the USFWS attempt to dismiss the plaintiffs’ case, Judge Benjamin H. Settle underscored that the Refuge Act mandates that the Service “shall not initiate or permit a new use of a refuge or expand, renew, or extend an existing use of a refuge, unless the [Service] has determined that the use is a compatible use and that the use is not inconsistent with public safety.” The federal judge continued, “To conclude otherwise would lead to absurd results. It would require the Court to ignore the clear instructions in the Refuge Act and its regulations that deputize the Service to regulate activity within the Refuge. Indulging the Service’s position would also require ignoring the points in the Refuge Act that carefully instruct the Service on how to navigate conflicting or concurrent authority within a refuge.”
“It bears repeating that the Service already acknowledged that it ‘cannot allow the proposed activity unless the entirety of the commercial oyster farming operation within the Refuge boundary is found Compatible with the Refuge purposes.’”
While our news is good, the following news is ironic given that we have to sue for the same protection!
U.S Fish and Wildlife Service Announces $48.4 Million for Collaborative Efforts to Conserve America’s Most Imperiled Species. The U.S. Fish and Wildlife Service today announced $48.4 million in grants to 19 states and Guam to support land acquisition and conservation planning projects on over 23,000 acres of habitat for 80 listed and at-risk species through the Cooperative Endangered Species Conservation Fund (CESCF). The grants will be matched by more than $27.75 million in partner funds.
Judge Settle’s decision is a major win for the citizens of the United States and for the animals dependent on U.S. Fish and Wildlife (USFWS) national refuges for resting, feeding and breeding.
On August 6, 2024, the plaintiffs’ refiled their amended case for the judge to rule on whether the USFWS must write a compatibility determination and if the shellfish operation is allowed, a permit should be written.
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