Supreme Court decides against intervening in 'critical habitat' designations

The Supreme Court declined today to take up whether federal regulators and courts take account sufficiently of the economic impacts of "critical habitat" designations under the Endangered Species Act.

It is a touchy issue because private property owners, including developers and ranchers, have objected to critical habitat designations that infringe on their ability to do business.

The Endangered Species Act specifically states that the Fish and Wildlife Service must designate critical habitats based on "the best scientific data available" but must also "take into consideration the economic impact" of a designation.

The service has the discretion to reject an area for inclusion in the critical habitat for economic, national security or "any other relevant impact."

FWS favors what is known as the "baseline" approach, in which the government compares the "current state of affairs" with "how things would look after the designation of critical habitat," according to the Obama administration's brief in one of the cases.


Property owners challenging the designations argued that the economic analysis should also include other factors, including the impact of the ESA listing in itself, the general economic climate and other regulations that businesses are required to follow.

The Supreme Court's failure to intervene means the government can maintain its current approach.

The cases before the high court were out of the San Francisco-based 9th U.S. Circuit Court of Appeals. In both, acting Solicitor General Neal Katyal urged the justices not to take up the issue.

In the first case, Arizona Cattle Growers Association v. Salazar, the 9th Circuit, in a ruling issued in June, upheld the government's designation of critical habitat for the Mexican spotted owl (Greenwire, June 7, 2010).

The area encompasses around 8.6 million acres in Arizona, Colorado, New Mexico and Utah.

The second case, Home Builders Association of Northern California v. FWS, decided a couple of weeks later, involves the designation of critical habitat for 15 protected species, comprised of four crustaceans and 11 plants. Again, the 9th Circuit endorsed the plan.

The final designation included almost 860,000 acres in 34 California counties and one in Oregon.

Lawyers arguing for the Supreme Court to intervene had claimed there was a major split within the federal appeals courts, based on a 2001 ruling by the 10th U.S. Circuit Court of Appeals, New Mexico Cattle Growers Association v. U.S. Fish and Wildlife Service, in which that court found fault with the government's approach.

Damien Schiff, an attorney at the Pacific Legal Foundation, a legal group that advocates for property rights and represented the home builders in the second 9th Circuit case, wrote in his brief that the government is "grossly underestimating the economic impact" of the designation.

The 9th Circuit's approach "promises to have an especially harsh impact on housing and other land development industries already suffering in these tough economic times," he added.

Acting Solicitor General Katyal countered that the approach advocated by Schiff, in which the government would consider such matters as California's budget problems and the nationwide recession "lacks merit and was properly rejected."

Daniel Rohlf, an environmental law professor at Lewis and Clark Law School in Portland, Ore., said he was "not very surprised" the court did not agree to take the cases, largely because the regulation in use when the 10th Circuit issued its ruling in 2001 has since been withdrawn.

"Both decisions were pretty well reasoned," Rohlf added.

Schiff said he was disappointed that the court failed to take up what he described as a "perennially important issue" in environmental law.

Ignoring wider economic impacts leads to a result that is "flat-out immoral, especially in these difficult economic times," he added.

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