Federal Endangered Species Act
Critical Habitat
Digest of Recent Case Law
November, 2002
by
Tara L. Mueller, Esq.
Deputy Attorney General
California Office of the Attorney General
Land Law Section, Oakland CA
The views herein
expressed are solely those of the author, and do not necessarily reflect the
views of the California Attorney General, the California Department of Justice,
or any other California state agency.
Case Summary
Plaintiffs challenged the FWS
designation of critical habitat for the southwestern willow flycatcher arguing,
inter alia, that the FWS’ “baseline” approach to measuring the economic
impacts of critical habitat designation was an erroneous construction of the
ESA. Under this approach, the FWS would
consider the initial listing of the species to be part of the baseline and thus
would not analyze the economic impacts of listing, but only the economic
impacts attributable directly to the critical habitat designation. Applying this baseline approach to the
critical habitat designation for the flycatcher, the FWS relied on its section
7 regulations to conclude that no economic impacts would have occurred “but
for” the critical habitat designation, and that the impacts of critical habitat
designation and listing of the flycatcher were co-extensive. The FWS
regulations define “adverse modification of critical habitat” as virtually
identical to the jeopardy standard.
Thus, the FWS reasoned, “because all actions that result in adverse
modification of critical habitat will also result in a jeopardy decision,
designation of critical habitat for the flycatcher is not expected to result in
any incremental restrictions on agency activities.”
The Tenth Circuit rejected this
“baseline” approach, holding that the FWS is required to analyze all
impacts of critical habitat designation, regardless of whether those impacts
are co-extensive with those of listing.
The court acknowledged that the ESA “clearly bars economic
considerations from having a seat at the table when the listing determination
is being made.” However, the court stated,
the ESA also plainly requires “some kind of consideration of economic impact”
at the critical habitat designation phase.
The FWS’ regulatory “definition of the jeopardy standard as fully
encompassing the adverse modification standard renders any purported economic
analysis done utilizing the baseline approach virtually meaningless.” Thus, the
court concluded, the baseline approach failed to give effect to the
congressional directive that economic impacts be considered at the time of
critical habitat designation and was not in accord with the language or intent
of the ESA.
The court rejected the FWS’ argument
that analysis of all economic impacts of critical habitat designation would
improperly inject economic analysis into the listing process. Requiring the FWS to consider economic
impacts “at a point subsequent to listing does not inject economic
considerations into the listing process, but rather, situates those
considerations in precisely the spot intended by Congress.”
The court also did not believe that
its ruling would result in any decreased protection for endangered species or
their habitat, even if areas were excluded from future critical habitat
designations as a result of the economic impact analysis. The court noted that the listing will remain
in effect and the “significant protections afforded a species by listing will
not be undermined.”
Analysis
This case has spawned a host of
challenges to the economic impact analyses prepared in connection with the
Services’ designation of critical habitat for numerous species. The Services have attempted to settle most
of these cases by agreeing to vacate the critical habitat designations pending
voluntary remand of the designations to the Services to re-evaluate the
economic impacts (see discussion of National Assn. of Homebuilders,
below).
The New Mexico Cattlegrowers
case also is significant because it casts doubt on the Services’ longstanding
view that critical habitat designation results in no additional benefit to
listed species. In dicta, the court
noted that critical habitat designation in fact does have an impact in and of
itself. The Fifth Circuit likewise
criticized the Services’ “no benefit” approach in the Sierra Club v. FWS
case, discussed below.
Case Summary
A commercial fishing association and
several environmental organizations opposed the Home Builders’ and federal
government’s joint motion for entry of a consent decree. The proposed decree
provided for the voluntary dismissal without prejudice of the Home Builders’ challenge
to NMFS’ designation of critical habitat for nineteen listed salmonid species,
vacated the critical habitat designations, and remanded the matter to NMFS to
establish new critical habitat designations, after it prepared revised economic
impact analyses.
The court agreed with amici that the
court’s role is to exercise its independent judgment to determine whether the
terms of the consent decree are fair and adequate and are not unlawful,
unreasonable, or against public policy.
The court, however, believed that the consent decree satisfied this
standard because it was consistent with the Tenth Circuit’s opinion in New
Mexico Cattle Growers Assn. v. U.S. Fish and Wildlife Service, 248 F.3d
1277 (10th Cir. 2001) (discussed above). In that case, the Tenth Circuit invalidated the FWS’ critical
habitat designation for the southwestern willow flycatcher on the ground that
the agency had failed to prepare an adequate analysis of the economic impacts
of the designation. The D.C. District
Court observed that “the persuasive rationale underlying the Tenth Circuit’s
opinion makes it quite understandable why the agency would want to remove the
critical habitat designations and conduct them in accord with the proper
methodology.” Thus, the court concluded
that NMFS’ decision to vacate the critical habitat designations was reasonable,
and rejected amici’s arguments that the designations should remain in place
pending re-analysis of the economic impacts of the designations.
Analysis
This case is significant because, as
discussed above, regulated parties have challenged the critical habitat
designations for numerous species, based on the alleged inadequacy of the
Services’ economic impact analyses. In
all or most of these cases, the Services have agreed to vacate the critical
habitat designations pending voluntary remand to allow them to re-evaluate the
economic impacts of the designations.
Environmental plaintiffs have opposed the Services’ settlement
proposals, and have sought to keep the critical habitat designations intact
pending the Services’ re-analysis.
However, not all courts agree with
the D.C. District Court’s analysis. In
fact, another judge on the same court temporarily re-instated critical habitat
for the California red legged frog in order to hear arguments by the
environmental intervenors as to why critical habitat should remain in place
pending revision of the economic impact analysis. Similarly, the U.S. District Court for the Eastern District of
California refused to vacate critical habitat for the Alameda whipsnake,
finding that the court was not bound by the Tenth Circuit’s decision in New
Mexico Cattlegrowers.
The U.S. District Court for the
Central District of California also refused to vacate the critical habitat
designations for the coastal California gnatcatcher and San Diego fairy shrimp
pending remand of the designations to the FWS, concluding that critical habitat
provides important protections for listed species beyond the jeopardy standard
of section 7 (citing Sierra Club v. FWS, discussed below). However, the court approved the FWS’
requested voluntary remand, finding the Tenth Circuit’s reasoning the New
Mexico Cattlegrowers case persuasive.
Case Summary
Plaintiffs Building Industry
Association (BIA) et al. challenged the U.S. Fish and Wildlife Service’s
(FWS’s) designation of critical habitat for the Riverside fairy shrimp and
arroyo southwestern toad on the ground that the final rules contained
inadequate economic impact analyses.
The FWS moved to vacate the final rules and remand the designations to
it in light of the Tenth Circuit’s decision in New Mexico Cattlegrowers
Assn. v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th
Cir. 2001). Intervenor environmental
groups argued against remand, contending that the Tenth Circuit case was
incorrectly decided. However, they
agreed with the plaintiffs and the FWS that the economic impact analyses were
inadequate, albeit for different reasons.
While the court declined to adopt
the Tenth Circuit’s reasoning, it granted the FWS’ motion to remand because it
was undisputed that the critical habitat rules required further consideration
by the FWS. The court observed that:
As all parties recognize, FWS, by declining to
consider impacts of critical habitat designation that were co-extensively
attributable to other causes and by concluding that the economic impacts of
critical habitat designation above and beyond listing were not significant . .
. rendered meaningless the congressional charge . . . to assess the economic impact
of critical habitat designation.
Whether the flaw the FWS’s analyses relate to the exclusion of impacts
attributable to other causes, as New Mexico Cattlegrowers would suggest,
or instead to some failure to FWS to appreciate the import of critical habitat
designation, as intervenors urge, is better left to another day.
The court also granted the FWS’
motion to vacate the critical habitat designations because the FWS had provided
evidence that four of the five vernal pools designated as critical habitat for
the fairy shrimp and all twenty two riparian areas designated as critical
habitat for the arroyo toad are currently occupied by the species. Thus, the court accepted FWS’ argument that
critical habitat provided no additional protection for the species, because
section 7 consultation would be triggered by the “no jeopardy” standard in any
event. The court also observed that
there were a host of additional regulatory protections “that may function to
protect the fairy shrimp and the arroyo toad even absent critical habitat
designation,” including sections 9 and 10 of the ESA, the California
Environmental Quality Act, the California Porter-Cologne Water Quality Control
Act, and various provisions of the California Fish and Game Code.
The court rejected intervenors’
assertion that, even if federal action triggers consultations in occupied areas
due to the presence of listed species, such consultations will be conducted
under a less rigorous standard than if the critical habitat designation is in place,
and that critical habitat is necessary to trigger consultation in any
unoccupied areas that are essential to species recovery. The court found these arguments to be “too
abstract to have much weight,” because intervenors had not identified any
specific threat to the species or designated critical habitat units “over the
short time frame during which new rules would be developed.” Nor had intervenors identified any concrete
threat to habitat that would be handled ineffectively due to the fact that consultation
would be conducted under the “no jeopardy” standard as opposed to “no adverse
modification” standard.
Accordingly, the court concluded
that “the flawed rules, which may erroneously place regulatory burdens on
plaintiffs and others, should not be allowed to stand,” even with respect to
the one unoccupied vernal pool designated as critical habitat. The court found that this unoccupied area
would be adequately protected because it is adjacent to and partially within
habitat for another listed species, the El Segundo butterfly, and thus “may
receive” section 7 protections “by virtue of the butterfly’s presence.” Furthermore, the court stated, because the
unoccupied vernal pool is within the flight path for one of the main runways at
the Los Angeles Airport it “could only be subject to very limited types of
development” in any event.
Finally, the court rejected both the
FWS’ and intervenors’ proposed time frames for re-promulgating proposed
critical habitat rules, requiring that the FWS propose new critical habitat
designations within 21 months of the date of the court’s decision.
Case Summary
In this case, the court addressed
the appropriate time frame for reconsideration of critical habitat
determinations pursuant to stipulation.
The parties stipulated that the Fish and Wildlife Service (FWS) would
reconsider its “not prudent” determinations with respect to designation of
critical habitat for eight listed plant species, but did not agree on a time
frame. Plaintiffs argued that the FWS
should have two years to complete it reconsideration of critical habitat for
all eight species, based on the ESA’s two year time frame for designation of
critical habitat. Defendants and the
developer intervenors argued that the FWS should have three to four years to do
so. The court rejected both time lines
as unreasonable and imposed its own time frame in between those of the
parties.
The court disagreed with plaintiffs’
argument that the court’s discretion to impose a different time frame was
extremely limited. The court
distinguished cases involving violations of mandatory, non-discretionary
deadlines from the instant case, where the parties agreed to a voluntary remand
without reaching the merits of the dispute.
(The stipulation did not make any admissions of fact or law.) In addition, the court found, in this case
the FWS had already met the statutory deadline for designation of critical
habitat by making “not prudent” determinations for all eight species. While plaintiffs disputed the legality of
those determinations, “given the joint stipulation, the court [was] not in a
position to review the validity of the original determinations.”
The court agreed with defendants’
contention that a reasonableness standard applied to the court’s determination
of the appropriate time frame, citing Environmental Defense Center v.
Babbitt, 173 F.3d 867 (9th Cir. 1995). In determining what is a reasonable time frame, the court held,
it may exercise its discretion to consider the FWS’ budgetary shortfalls,
workload constraints, and other relevant factors.
The court found that plaintiffs’
time line was unreasonable because it would require the FWS to begin
reconsideration of the not prudent determinations in FY 2002, though the FWS
had already allocated all of its available funds to comply with other court
orders and settlement agreements. The
court did not agree with plaintiffs that the FWS should be required to
demonstrate that compliance with their proposed time line would be impossible.
The court also found the FWS’ time
line to be unreasonable, because the FWS had not explained why it could not
begin reconsidering the not prudent determinations until FY 2004. The FWS’ argument that all of the FY 2003
budget was already committed was premature, given that: (1) Congress had not
yet passed the FY 2003 budget, (2) the FWS anticipated hiring additional
biologists in FY 2003, and (3) after reconsideration, the FWS may once again
determine that designation of critical habitat was not prudent for some or all
of the species in question, thereby rendering the workload less than
anticipated.
The court then imposed its own time
line for FWS to complete its reconsideration of the not prudent determinations,
beginning in July of 2003 and ending in November of 2005.