## Facts

- The United States, acting through the U.S. Fish and Wildlife Service, sought preliminary injunctive relief under the Endangered Species Act (ESA) against the Town of Plymouth, Massachusetts.
- Plymouth Long Beach is a barrier beach where the Town authorized and managed off-road vehicle (ORV) access by permit and by designated zones.
- The piping plover, a shorebird listed as threatened under the ESA, nested on the beach; after hatching, chicks were flightless for weeks, used open sand, and were difficult to see, increasing risk from vehicles and human disturbance.
- The court credited expert evidence (including a declaration from a state rare-species zoologist) that ORV use and related recreational activity disturbed nesting, breeding, and feeding habitat, particularly in a designated area identified as “Zone 2.”
- The record included evidence of at least one plover chick being killed by an ORV tire and evidence of repeated disturbance affecting essential plover behaviors and habitat use.
- The Town relied on a 1992 beach management plan and argued its practices were compatible with conservation, citing an increase in nesting pairs from 1991 to 1997.
- Federal officials contended the Town’s measures were inadequate and that continued ORV authorization without stricter protections would result in additional prohibited harm to plovers.

## Issues

1. Whether the Town’s authorization and management of ORV use on the beach likely constituted an unlawful “take” of threatened piping plovers under ESA § 9, including by killing or by conduct that harasses through significant disruption of essential behaviors.
2. Whether the United States satisfied the requirements for a preliminary injunction restricting ORV access to prevent future ESA violations.
3. What interim restrictions and protective measures were appropriate to reduce the risk of additional takes while the case proceeded.

## Decision

- The court granted the United States’ motion for a preliminary injunction.
- The court found the United States likely to succeed on the merits that ORV use had caused an illegal take by killing a chick and by substantially interfering with breeding, nesting, and feeding habitat in Zone 2.
- The court found future takes likely absent injunctive relief.
- The court concluded the remaining preliminary-injunction factors favored relief, given the irreparable nature of harm to a listed species and the public interest in ESA enforcement.
- The court ordered ORVs banned from Zone 2 unless the Town complied with specified protective requirements drawn from federal and state guidance, including minimum vehicle-free buffer zones around nests and unfledged broods.

## Legal Principles

- ESA § 9 prohibits “taking” threatened species; “take” encompasses both direct mortality and harassment that significantly disrupts essential behavioral patterns, including through substantial interference with breeding, nesting, or feeding habitat.
- A municipality may be enjoined when its authorization or management of third-party activity foreseeably results in prohibited takes.
- Preliminary injunctive relief is available to prevent likely ESA violations; once a likely take and risk of recurrence are shown, threatened harm to a listed species is treated as irreparable, and the public interest strongly favors protection of the species.
- Injunctions should be tailored to the demonstrated risk, including conditioning ongoing activity on compliance with scientifically grounded protective buffers and related operational limits.

## Conclusion

The court preliminarily restrained the Town’s ORV program because the record showed past and likely future ESA takes of threatened piping plovers, and it imposed targeted, guideline-based restrictions—particularly in Zone 2—to prevent further unlawful harm while allowing limited access only if protective measures were implemented.


United States v. Town of Plymouth, 6 F. Supp. 2d 81 (D. Mass. 1998)