August 19, 2015

The federal government doesn't make mistakes

By The federal government doesn't make mistakes

In essence, that’s what a three-judge panel of the Ninth Circuit held in a recent decision regarding critical habitat designation under the Endangered Species Act.

The National Marine Fisheries Service designated virtually the entire West Coast of the United States as protected critical habitat for a species known as the green sturgeon, thereby adversely impacting millions of Americans living and working in the states of Washington, Oregon, and California.   The impact of ESA critical habitat designation on the rights of property owners is legendary.  Nevertheless, the Ninth Circuit panel stated that decisions “not to exclude” areas from critical habitat designation are left entirely to the discretion of the government.  What standard does the government use to decide whether any particular area should be excluded from critical habitat?  It’s the “careful thought” standard, of course.  As long as the government claims that it gave “careful thought” to the issue, that is good enough for the Ninth Circuit to rubber stamp the government’s critical habitat designation, even if it affects virtually the entire Pacific Coast of the United States.

PLF challenged the designation on substantive grounds, arguing that the government did not conduct an adequate economic impacts analysis before designating such a vast area as critical habitat.  The Court held that the government’s decision could not be reviewed because “there is no law to apply.”  But there is law to apply.  We filed a Petition for Rehearing En Banc, asking the full 9th Circuit to rehear the case, because of the central importance of the issue to those living and working near the Pacific Coast.  Hopefully, the full Court, sitting en banc, will not hold that the government doesn’t make mistakes.

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