By Leslie Z. Walker
The U.S. Court of Appeals for the Ninth Circuit upheld the U.S. Fish and Wildlife Service’s (“USFWS”) designation of 850,000 acres as critical habitat for fifteen endangered or threatened vernal pool species, against procedural attacks by the Homebuilders Association of Northern California (“Homebuilders”). In Homebuilders et al. v. U.S. Fish and Wildlife Service, (9th Cir. Aug. 9, 2010, No. 07-16732) ____ F.3d____ 2010 U.S. App. LEXIS 16439, Homebuilders claimed USFWS violated the Endangered Species Act (“ESA”) (16 U.S.C. § 1531 et seq.) in issuing its final rule designating the critical habitat by: 1) improperly identifying primary constituent elements on the property; 2) failing to identify the habitat as either occupied or unoccupied habitat; 3) failure to predict when the species will be conserved; 4) improper textual exclusion of development areas from critical habitat designation; and 5) failure to conduct a cumulative economic impacts analysis. Giving deference to USFWS’s determination, the appellate court, like the trial court, upheld the habitat designations, rejecting the Homebuilders arguments for the reasons described below.
- Primary Constituent Elements
The ESA in part, defines occupied critical habitat as, “the specific areas within the geographic area occupied by the species . . . on which are found those physical or biological features (I) essential to conservation of the species and (II) which may require special management considerations or protection.” (ESA, § 3(5)(A)(i); 16 USC § 1532(3)(A)(i).) USFWS refers to the “physical or biological features” as “primary constituent elements” or “PCEs.” Without challenging any specific habitat designations, the Homebuilders claimed that an area must simultaneously contain all PCEs for a particular species to be designated as occupied critical habitat for that species. The court rejected this theory, explaining that the elements necessary to species’ survival may occur in distinct geographic areas. For example, a species may require topographic features that feed vernal pools, as well as depressional features where the Vernal pools actually form – two mutually exclusive geographic areas. The court rejected the Homebuilders’ challenge to the designation of habitat where only some of the PCEs are present.
- Identification of Conservation Point
Homebuilders argued that USFWS’s determination of the PCE’s was invalid because USFWS identified only the features necessary to the conservation of the species, and did not determine when the species in question would be successfully considered conserved. The court rejected this argument, explaining that the requirement that USFWS determine when a species will be considered conserved applies to the preparation of a recovery plan, a different part of the ESA law (ESA § 4(f)(1)(B)(ii); 16 U.S.C. § 1533 (f)(1)(B)(ii)). Homebuilders had argued elsewhere that the requirements of the preparation of a recovery plan should not be imposed on critical habitat designation. The Court found that Homebuilders could not, on the one hand argue the requirements should apply to critical habitat, and on the other hand, argue that they should not apply. Further, if Congress had intended the requirements to apply to critical habitat designation, it would have said so. (Russello v. United States (1983) 464 US 16, 23.) Finally, the court stated that the difference between the two portions of the law makes logical sense because there is a one-year deadline for the designation of critical habitat, but no deadline for creating a recovery plan. The court held that the recovery plan requirements cannot be read into the critical habitat designation process.
- Overlap Between Occupied and Unoccupied Habitat Designations
Under the ESA, an area constitutes “critical habitat” if it meets the requirements for occupied habitat or unoccupied habitat. (16 U.S.C. § 1532 (5)(A).) Homebuilders contended that USFWS erred in the designation because it conflated the standards for occupied and unoccupied habitat. The court rejected the argument because 1) no law required that every area be classified as one or the other; and 2) FWS had found that areas designated in the final rule met the more rigorous of the two standards. (Brown v. S. Ca. IBEW-NECA Trust Funds (9th Cir. 2009) 588 F.3d 1000, 1003.)
- Textual Exclusion of Areas Without PCEs
In its final rule, USFWS stated that it had attempted to exclude developed areas that did not contain PCEs for the 15 vernal pool species, but acknowledged that it inadvertently had included some development structures. USFWS stated that inadvertently included structures were not considered part of the critical habitat. Homebuilders argued that this textual exclusion violated the ESA’s requirement that specific areas be designated. Noting Homebuilders’ failure to identify an alterative procedure or point to a specific error in the procedure used, the court deferred to the USFWS’s designation.
- Economic Impact
ESA mandates the consideration of economic impact before designating critical habitat. (ESA § 4(b)(2), 16 U.S.C. § 1533(b)(2); Bennett v. Spear (1997) 520 U.S. 154, 172.) USFWS did so using the baseline approach, which compares the current state of affairs, with how things would look after the designation of crucial habitat. Homebuilders argued USFWS should have used a cumulative assessment. The Court explained that although a cumulative analysis would be required under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) before a government agency took any action that might have a negative effect on the environment, it is not required before the government takes action to protect the environment, under the ESA.
The Ninth Circuit thus upheld the decision of the District Court upholding USFWS’s critical habitat designation.
Leslie Z. Walker is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.