October 25, 2013

Ninth circuit should re-examine flawed ESA precedent in re-hearing drakes bay appeal

By Anthony L. Francois Senior Attorney

This morning PLF, joined by the California Cattlemen’s Association and the Building Industry Association of the Bay Area, filed an amicus brief in support of Drakes Bay Oyster Company’s petition for rehearing en banc of the Court’s September decision in their case. That opinion upheld the trial court’s denial of an injunction that would keep the shellfish farm in existence while it litigates its permit renewal claims against the Interior Department and the National Park Service.

A critical aspect of the Ninth Circuit’s decision is its ruling that the federal government could avoid examining the environmental impacts of an action, in this case destroying a long standing farming operation, if the agency intends to benefit the environment in taking that action.  This ruling is based on the Ninth Circuit’s dubious precedent in Douglas County v. Babbitt, which holds that the National Environmental Policy Act does not apply to designation of critical habitat under the Endangered Species Act.

PLF’s brief argues that Douglas County should be reversed.  Other federal circuits have expressly disagreed with the case, and common sense and experience have demonstrated that critical habitat designations do have significant environmental impacts that the government should identify and consider.  Just ask any Fresno County farmer who has been denied irrigation water whether designating critical habitat for the delta smelt has impacted the environment of the San Joaquin Valley.  And while you are asking, don’t forget to take today’s ESA at 40 Facebook poll.

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