Author: Reed Hopper
In almost all cases, the U.S. Fish and Wildlife Service overstates Critical Habitat for threatened and endangered species. This is because the Service is unwilling or unable to expend the resources to determine those areas actually occupied by the species and which are essential to the conservation of the species, as the law requires. Instead, the agency tends to designate broad swaths of "potential" habitat for administrative convenience. This approach often invites a lawsuit challenging the Critical Habitat designation as over broad and requiring the Service to revise the designation downward.
A case in point involved the Peninsular bighorn sheep in southern California. When the Service designated Critical Habitat for the sheep covering 844,897 acres, Pacific Legal Foundation brought suit arguing the designation was not based on best available science and was grossly over stated. In response, the Service took a closer look at the data and revised the designation to cover 376,938 acres–a 55% reduction in size. The suit and the wasted resources could have been avoided had the Service done its job in the first place and employed science-based decision making. But it appears that not much has changed at the agency over the past few years. It is still designating overly broad Critical Habitat. The polar bear is just the latest iteration.
Recently the Service designated 187,157 square miles in and around the coast of Alaska as Critical Habitat for the bear, the largest in U.S. history. Now the Service is facing another lawsuit–from the State of Alaska. In its 60-day notice of intent to sue, the State argues:
1. The designation includes areas not essential to the conservation of the polar bear;
2. The designation includes areas that do not require special management;
3. The designation is not based on the best available scientific data;
4. The Service failed to adequately consider the economic impact of the designation;
5. The Service did not adequately consider the benefits of excluding certain areas from the designation; and,
6. The Service failed to adequately coordinate with the State.
These arguments make for a compelling case and are supported by case law. The details can be read in the notice letter itself. The suit will likely be brought at the end of February, 2011.