Obama admin urges Supreme Court to pass on sturgeon case

By Amanda Reilly | 08/10/2016 01:11 PM EDT

The Obama administration is urging the Supreme Court to pass on a case that challenges the National Marine Fisheries Service’s critical habitat protections for a threatened fish species.

The Obama administration is urging the Supreme Court to pass on a case that challenges the National Marine Fisheries Service’s critical habitat protections for a threatened fish species.

California nonprofit groups representing developers and property owners have asked the high court to review the case after losing their appeal in the 9th U.S. Circuit Court of Appeals. The petitioners want the Supreme Court to decide whether certain decisions about critical habitat for endangered species can be challenged in court.

But the Department of Justice told the high court last week that the case is unwarranted because the government has the discretion to decide which areas not to exclude from critical habitat designations.


The case involves critical habitat for the green sturgeon, a bottom-dwelling species that lives in coastal estuaries and marine waters from Mexico to Alaska. Its southern population segment, which is known only to spawn in the Sacramento River, has been threatened by dam construction, pesticides, bycatch, poaching and the introduction of exotic species.

In October 2009, the National Marine Fisheries Services designated more than 11,000 square miles of coastal marine habitat, nearly 900 miles of estuarine habitat and hundreds of miles of riverine habitat in Washington, Oregon and California as critical for the sturgeon.

Green sturgeon
Green sturgeon. | Photo by David Dominquez, courtesy of the Fish and Wildlife Service.

To make its decision, NMFS rated areas by their likelihood to promote the conservation of the sturgeon and considered economic activities that may be affected by a designation.

The service ultimately left 14 areas off the list based on economic costs. But property owners and builders contend that they are harmed by the critical habitat designation. They challenged NMFS’s decision to not exclude any areas with a "high" conservation rating regardless of the economic impacts.

In their petition to the Supreme Court, they said that lower courts erred in finding that the government’s decisions to not exclude areas from critical habitat aren’t subject to judicial review (Greenwire, May 5).

This is not the only case where groups backed by the conservative Pacific Legal Foundation are challenging whether courts have judicial review over critical habitat decisions. Landowners, a timber company and 15 states recently asked the 5th U.S. Circuit Court of Appeals to rehear a case involving habitat for the dusky gopher frog. The court found in a 2-1 ruling that decisions to exclude areas from critical habitat are immune from judicial review (E&ENews PM, Aug. 9).

In its Supreme Court brief last week, the Obama administration said that the Endangered Species Act gives NMFS the discretion to not exclude areas from critical habitat as long as it adequately considers economic and other impacts.

A court would have "no meaningful standard" against which to judge the service’s decision on the green sturgeon habitat, the government argued.

And even if NMFS’s decision was reviewable by the courts, the Obama administration argued that the agency did consider economic effects. The decision not to leave off any high-value areas from the critical habitat designation was consistent with law, the Department of Justice’s court brief said.

"As the court of appeals explained," the government’s brief says, "the Service determined that certain areas within the proposed critical-habitat designation had a high conservation value … because the exclusion of such areas from the critical-habitat designation would ‘significantly impede’ conservation of this species or lead to its extinction."

The votes of four Supreme Court justices are required for the court to review the case.