June 8, 2010

When is an owl really at home?

By When is an owl really at home?

Author:  Damien M. Schiff

On Friday, the Ninth Circuit Court of Appeals issued a decision in Arizona Cattle Growers Association v. Salazar, concerning a challenge to the critical habitat designation (comprising over 8 million acres) for the Mexican spotted owl.  (N.B.  PLF represented the Association in the district court).MSO

The main issue in the appeal concerned the difference between occupied and unoccupied critical habitat under the Endangered Species Act (ESA).  Every listed species is supposed to have a designated critical habitat.  The ESA defines critical habitat according to two type—occupied and unoccupied—and assigns different standards to each.  For the Mexican spotted owl, the Fish and Wildlife Service designated as "occupied" critical habitat those areas where the owl would "likely" be, not just the areas where the owl was known to be.  The Cattle Growers argued that the Service's approach improperly conflated the two types of critical habitat.

The Ninth Circuit disagreed, holding that the Service reasonably interpreted "occupied" to include those areas where the owl is likely to be found and that are used with reasonable frequency.  (In reaching that conclusion, the Court afforded the Service's interpretation only Skidmore deference, meaning deference according to the interpretation's power to persuade.)

The other main issue on appeal was how the Service conducted its economic impact assessment.  The ESA requires the Service to take into account the economic impact of critical habitat designation when making designation decisions.  For the Mexican spotted owl analysis, the Service employed a "baseline" approach, whereby it analyzed only those costs attributable to the designation itself, and not also attributable to other factors (such as listing).  The Cattle Growers argued that the analysis was inconsistent with the "coextensive" approach, whereby the Service must take into account any costs that are attributable to the designation, regardless of whether they are also attributable to other factors.  In holding that the baseline approach is permissible, the Ninth Circuit expressly disagreed with the Tenth Circuit's decision in New Mexico Cattle Growers Association v. United States Fish & Wildlife Service, which held that the ESA requires the coextensive approach.  (N.B.  The Ninth Circuit does not say that the baseline approach is mandated by the ESA, only that the Service's employment of that approach is acceptable).

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