August 9, 2010

Disappointing critical habitat decision

By Disappointing critical habitat decision

Author:  Damien M. Schiff

In Home Builders Association of Northern California v. United States Fish & Wildlife Service, we challenged the Service's 600,000-acre-plus designation of critical habitat for 15 vernal pool species. The case was designed to apply our victory in the Alameda Whipsnake case (under the same case title). Unfortunately, the Ninth Circuit today rejected our challenge.

1. The Service's regulations authorize the designation of occupied critical habitat containing the physical or biological features essential to the species's conservation. We argued that this statutory requirement means that the Service cannot designate areas containing fewer than all the features deemed to be essential (otherwise, either the feature would not be essential, or the habitat would not be capable of supporting the species's recovery). The Ninth Circuit said that there is nothing wrong with the Service designating areas that do not contain all of the species's essential features; the Court used the example of a species that might have nesting habitat and foraging habitat located in two different areas. In such a case, it would be unreasonable to require the two types of habitat to be in the same place. We responded to this argument in our briefing, arguing that the Service can designate different types of habitat, but for each type that it designates, it must designate only those areas containing all the essential features for that type of habitat. The Court's opinion does not address this point.

2. We also argued that, because the Service does not know when the vernal pool species will be deemed "conserved," it cannot know which features are essential to their conservation, and therefore cannot designate critical habitat. The Court again disagreed and expressly overruled the Whipsnake decision on this point. The Court believed nothing to be wrong with identifying essential elements to a goal without knowing when the goal will be achieved; for example, you need a reel and tackle to catch a fish, even though you don't know when you are going to catch the fish. The comebacker, of course, is that a reel and tackle are essential to having an opportunity to catch a fish, but more is needed actually to catch a fish. The ESA's text (to continue the analogy) requires that you catch the fish (i.e., conserve the species), but the Court concluded that the process of working out a species's conservation should be addressed by the Service when it produces recovery plans for listed species, not when it designates critical habitat.

3. The ESA authorizes the designation of two types of critical habitat—occupied and unoccupied. The Service conceded that it included unoccupied critical habitat within occupied critical habitat. We argued that such a procedure violates the ESA. The Court rejected our argument, concluding that the Service had used the heightened standard for "unoccupied critical habitat" for the entire designation, and therefore that the inclusion of unoccupied areas is harmless error. (The Court also stated that there is no legal requirement for the Service to say whether any given area of critical habitat is occupied or unoccupied.). The problem with that justification, as we pointed out in the briefing and at oral argument, is that unoccupied critical habitat is defined as those areas outside the occupied range of the species, whereas occupied critical habitat is defined as those areas within the occupied range of the species. Hence, it is a logical impossibility to designate unoccupied critical habitat within occupied critical habitat. The Court's opinion does not address this point.

4. In a related vein, we argued that the Service could not get around the fact of having included nonqualifying areas within the designation by excluding these areas "by definition" without actually locating them on the habitat maps. The Court rejected this argument, reasoning that the Service is not bound by any particular method of identifying a critical habitat's metes and bounds and, moreover, the Service's method used here was reasonably specific.

5. Finally, we challenged the Service's economic impact analysis, arguing that the Service erred by not conducting a cumulative impact analysis. We analogized to NEPA case law. The Court okayed the Service's analysis and rejected our argument, reasoning that the ESA is different from NEPA (because NEPA is designed to avoid environmental harm, whereas the ESA critical habitat process is designed to protect the environment). The Court also viewed our argument as an impermissible challenge to the Service's "baseline" method, which it wasn't.

All told, this is a disappointing but not surprising result.

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