March 4, 2015

Ninth Circuit to decide whether federal wildlife regulators must honor their agreements

By Anthony L. Francois Senior Attorney

Tomorrow morning is Ninth Circuit day at PLF. Immediately following Ted Hadzi-Antich’s oral argument in the Green Sturgeon critical habitat listing case, the same panel will hear another very important Endangered Species Act case. Bear Valley Mutual Water Co. v. Jewell, in which Pacific Legal Foundation filed this amicus brief, addresses whether the federal government can designate critical habitat for a species after it has agreed not to.

Habitat conservation plans are a tool under the Endangered Species Act that local governments and private parties can use to voluntarily conserve species and thereby avoid the inflexible regulatory restrictions that result from critical habitat designation. When it approves a plan, the only important commitment the federal government makes is that it will not designate critical habitat in the plan area. That is the only significant value of the plan to the non-federal parties who enter into it. Habitat conservation plans usually take several years and millions of dollars in consulting fees to complete, and then require the non-federal parties to engage in costly and extensive conservation actions for the benefit of the covered species. The only reason anyone agrees to these plans is to avoid the even more costly and restrictive result when critical habitat is designated.

But in this case, the federal government claims that it can ignore a habitat conservation plan and designate critical habitat, even after it has legally obligated itself not to. If the federal government wins this case, then every habitat conservation plan throughout the Ninth Circuit will be worse than worthless. They will still presumably oblige the non-federal parties to carry out the agreed-upon conservation actions, and then live with additional restrictions from the designation of critical habitat.

Those interested can follow the live video stream of both oral arguments at the Ninth Circuit’s website starting at 9:00 am Pacific.

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