Author: Reed Hopper
One of the most onerous provisions of the Endangered Species Act is the "critical habitat" provision. Under the ESA, the U.S. Fish and Wildlife Service is generally required to designate habitat essential for the conservation of a protected species. The resulting "critical habitat" effectively converts private land into a federal preserve. The landowner may not adversely modify the habitat without federal approval, giving the federal government a veto power over local land use. It is important, therefore, that a "critical habitat" designation is based on sound science and is no larger than necessary. For many years, however, the Service has routinely designated large areas as "critical habitat" for administrative convenience rather than identifying only those specific areas required for the specie's survival. One example is the "critical habitat" designation for the Peninsular bighorn sheep in southern California.
Peninsular bighorn sheep were listed as endangered in 1998. In 2001, the U.S. Fish and Wildlife Service designated 844,897 acres as "critical habitat" in Riverside, San Diego, and Imperial Counties in the State of California. In 2005, PLF (representing home builders) and others challenged the designation as over broad. In 2006, we settled the case. The agency agreed to reexamine the designation in light of a case we won challenging the "critical habitat" for the Alameda whipsnake. That case set new standards for "critical habitat" designations. In 2009, the Service revised the "critical habitat" downward to 376,938 acres–a 55% reduction in size. Recently, several environmentalist groups challenged the basis for the reduction claiming the agency employed the wrong standards and overlooked important evidence. We filed an amicus brief in support of the reduction.
Today, the District Court for the Southern District of California rejected the environmentalists' challenge and upheld the reduced "critical habitat" designation.
The opinion can be read here.