By Cori Badgley

The Endangered Species Act (“ESA”) is a complex web of provisions that are not always easily interpreted. A recent case decided by the 9th Circuit Court of Appeals, Center for Biological Diversity v. U.S. Fish and Wildlife Service (2006) 450 F.3d 930, illustrates the intricacies of the ESA and provides a warning to all those wishing to claim violations of its provisions – do your homework.

In Center for Biological Diversity, the main issue involved the designation of critical habitat for endangered species. As many are aware, most critical habitat designations do not occur until an environmental group files a lawsuit against the United States Fish and Wildlife Service (“Service”) challenging its failure to designate critical habitat after a listing. Specifically, the court addressed the issue of “whether the Endangered Species Act requires the United States Fish and Wildlife Service to complete formal designation of critical habitat for an endangered fish species listed over thirty-five years ago.” In addition, the court also addressed the issue of whether the Incidental Take Statement (“ITS”) was sufficient when it had not contemplated whether the actions permitted would violate any other federal or state law outside of the ESA.

The court held that the Service is not required by the ESA to complete the designation of the critical habitat for an endangered species when the proposed designation was drafted before 1982. In addition, the court held that it is not necessary for the Service to ensure that the project does not violate any other federal or state law in order to issue the incidental take statement required under the ESA. Generally, the court emphasized the discretion given to the Service and relied to a large extent on the Service’s interpretation of the ESA.

In 1970, the Service listed the unarmored threespine stickleback fish as an endangered species. In 1980, the Service developed a proposal that designated critical habitat for the stickleback, but the designation was never completed. Since the stickleback is mainly found in parts of southern California, the critical habitat included three stream zones of the Santa Clara River watershed. In 1990, Cemex, a cement company, wanted to pump water from the Santa Clara River to its mining project in southern California. The pumping would increase the frequency that the Santa Clara River dries up, which could lead to more stickleback getting stuck in isolated pools when the river is dry.

During the environmental review process, the Service investigated the project’s impact on the stickleback. The Service reported that it was difficult to retrieve adequate predictions on how the stickleback population would be affected due to the Service’s inability to pin down the cause of death for any given stickleback. In spite of this difficulty, the Service required that Cemex implement mitigation measures to ensure that the stickleback would be reasonably protected. With the mitigation measures in place, the Service concluded that the project “was not likely to jeopardize the continued existence of the stickleback.” The final biological opinion included an ITS, exempting Cemex from the prohibition against takings. 16 U.S.C. section 1532(19) defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” An ITS exempts the Service and the party named in the ITS from the prohibition on takings found in Section 9 of the ESA.

In 2002, the Center for Biological Diversity (“CBD”) filed suit against the Service on the grounds that the Service violated the ESA by failing to designate a critical habitat for the stickleback. In addition, CBD claimed that the Service unlawfully issued an ITS to Cemex in 1990. Also in 2002, the Service made a finding that critical habitat should not be designated for the stickleback. In light of the complicated procedural history and the different parties involved, the issues were finally narrowed at the appellate level to CBD’s claims that the Service is required by the ESA to designate a critical habitat for the stickleback and CBD’s challenge to the ITS. The 9th Circuit addressed each claim involving this issue in turn, examining the statutory language and legislative intent very closely.

CBD’s first claim on the issue of critical habitat designation alleged that the Service violated the ESA by failing to designate a critical habitat for the stickleback “to the maximum extent prudent and determinable” pursuant to 16 U.S.C. section 1533(a)(3)(A). In response, the court pointed out that the legislature added this section in 1982 and specifically differentiated the requirements for designations of species determined to be endangered before 1982 and after 1982. Any critical habitat designations for species, such as the stickleback, that were placed on the endangered species list prior to 1982 “shall be subject to the procedures . . . for regulations proposing revisions to critical habitat instead of those for regulations proposing the designation of critical habitat.”

This differentiation is important because the statutes governing the proposal of revisions to critical habitat are permissive and not mandatory, like the provisions cited by CBD for designation of critical habitat. The court determined that the legislature would not have differentiated between the two groups of endangered species if there was no difference in the requirements. Therefore, the court held that when the species was listed as endangered prior to 1982 and the Service had failed to complete a critical habitat designation by 1982, the Service may designate critical habitat, but it may also do nothing.

CBD’s second claim alleged that the Service’s finding that critical habitat should not be designated for the stickleback was arbitrary and capricious. According to CBD, there was no connection between the Service’s finding and the facts. The Service’s reasons for finding that critical habitat should not be designated for the stickleback included the determination that the evidence on the stickleback is outdated and there was already a backlog of critical habitat designations that were mandated by law. The lack of information made it impossible for the Service to either designate critical habitat or withdraw the proposal issued in 1980.

The court noted that Congress gave discretion to the Service in designating critical habitat. Generally, the Service’s determination should be upheld in light of the large amount of discretion given to it. In this case, the court found that the Service provided a reasonable explanation, and it was not the court’s job to question the findings. Therefore, the Service’s finding was neither arbitrary nor capricious.

CBD’s third claim alleged that the Service failed to give notice to the public and provide time for public comment in violation of statutory requirements. Again, the court looked to the statutory language and found a fatal flaw in CBD’s argument. A public comment period was not required for critical habitat revisions when the Service determines that a critical habitat should not be designated. The ESA might require a public comment period for designations of critical habitat, but as stated earlier, the more permissive section on revisions to critical habitat designations governs the designation of the stickleback and other species identified prior to 1982.

Next, the court addressed CBD’s challenge to the ITS, which alleged that the Service could not issue an ITS to Cemex because California law prohibited any taking of an endangered fish species whether incidental or not. CBD relied on the language in 50 C.F.R. section 402.02, which defined incidental take as “takings that result from, but are not the purpose of, carrying out an otherwise lawful activity.” Since Cemex’s activity was not lawful under California law, it was not engaging in “an otherwise lawful activity.”

The court quickly rejected this argument. The statute on which the regulations are based do not include a requirement that the Service must make a finding declaring that the party is not violating any other federal or state law. A regulation can extend only as far as the statute under which it was created. Congress knows how to require compliance with other laws and chose not to do it in this case. In addition, this regulation was promulgated by the Service, and just as legislative intent is important when interpreting a statute, deference should be given to the Service’s interpretation of its own regulation. The court agreed with the Service’s interpretation and held that the regulation did not require a finding that the party complied with all other state and federal laws. Along the same lines, an ITS does not shield any party from liability arising out of other federal or state laws.

The tone of the court was similar to a teacher chastising a student for not doing her homework. The court continually pointed to the statutory language and relied on one of the main precepts of statutory construction – any interpretations that lead to an absurd result are most likely wrong. In addition, the court emphasized that Congress had given the Service discretion, and therefore, the court gave deference to the Service’s interpretation. Further, Cemex had been required to mitigate any damage that might be done to the stickleback, in spite of the Service’s failure to designate critical habitat. Although the case did clear up the permissive versus mandatory nature of critical habitat designation, the main lessons to be learned from this case are deference to the Service is a large hurdle to overcome and make sure to take a refresher course in statutory construction before taking on the complex provisions of the ESA.

Cori Badgley is a law clerk with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.