January 19, 2011

A win for a rat, a loss for property owners

By A win for a rat, a loss for property owners

Author:  Damien M. Schiff

Last week, in Center for Biological Diversity v. United States Fish & Wildlife Service, a federal district court in California ruled that the 2008 critical habitat designation for the San Bernardino kangaroo rat is illegal.  The court thereby overturned the new designation, comprising some 9,000 acres of habitat in California's Inland Empire, and reinstated the rat's 2002 designation, which comprised about 33,000 acres.  PLF had successfully challenged the 2002 designation on the grounds that it was overbroad, including much marginal habitat that did not meet the strict requirements for critical habitat under the Endangered Species Act (a charge born out by the fact that, after the remand had been completed, the Service issued a designation that was reduced in size by about 70%).

Last week's decision took issue with the Service's approach of designating as occupied critical habitat only those areas of the rat's range that contain "core populations."  The court observed that critical habitat is defined as those specific areas containing the physical or biogical features essential to the species' conservation; and that the Service has interpreted the statutory definition to require the indentification of a species' "primary constituent elements" (PCEs).  The problem with the new designation and the Service's use of the "core population" approach, concluded the court, was twofold.

First, the Service did not explain what the rat needed in addition to its PCEs in order to qualify a given area as critical habitat (the designation had contained some unfortunate language about how the rat's PCEs, in combination with a certain unexplained spatial arrangement, qualified an area for critical habitat status). 

Second, the Service did not adequately explain how or why the presence of "core populations" is a legitimate proxy for indentifying those areas that contain the rat's PCEs.  As the court succinctly put it,

In defending the FWS's use of this methodology, Defendants assert, without elaboration, that "the Service reasonably concluded that areas with high relative abundances and fitness of SBKR also possess high quality habitat." This is, perhaps, a reasonable assumption for the FWS to make. However, this premise does not logically entail the converse proposition—i.e., that those areas that possess a high quality habitat will contain an abundant SBKR population. And it is this converse proposition that, if true, would justify the core population methodology. In reality, the use of core population as a proxy for areas that contain the physical or biological features essential to a species' conservation will fail to identify areas that have these essential features but, for whatever reason, do not happen to support an abundant population. Consequentially, the core population methodology will frequently lead to a substantially underinclusive critical habitat designation.

The court also held that the Service had violated the ESA by failing to explain why declining to designate unoccupied critical habitat would not preclude or retard the rat's recovery.

On balance, this is a bad decision for property owners, certainly for all the reasons that critical habitat restricts land use and reduces property values, but also because PLF had successfully forced the Service to reduce the scope of the agency's expansive 2002 designation.  It's difficult to say now whether the Service will be able to maintain the size of the 2008 designation by providing greater explanation (or whether the Obama Administration would even want to try).  Most likely, the new designation will be somewhere between the 2002 and 2008 designations.

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