Today a Ninth Circuit three-judge panel issued a remarkable legal opinion. The bottom line: Decisions to include areas as part of critical habitat for endangered or threatened species under the ESA are judicially reviewable, while decisions not to exclude areas from critical habitat are not judicially reviewable. It’s one heck of a legal opinion.
Logic dictates that decisions to include or exclude areas from critical habitat are flip sides of the same coin. When deciding which area to include, one necessarily decides which areas not to include, i.e., which areas to exclude. It comes down to a question of what to leave in and what to leave out. But the Ninth Circuit panel didn’t see it that way when it opined that government decisions “not to exclude” areas from critical habitat designation for the green sturgeon species could not be judicially reviewed, on the ground that there was “no law to apply.”
The decision is wrong on the facts and wrong on the law. But this case is of more than academic interest to lawyers. Almost the entire West Coast of the United States has been designated by the government as critical habitat for the green sturgeon, placing substantial roadblocks to economic development and growth in the states of Washington, Oregon, and California. Quality of life issues for millions of Americans are at stake.
We are reviewing our legal options.