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Natural Resources Defense Council v. United States Department of the Interior

 

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The Ninth Circuit held that the U.S. Fish and Wildlife Service (FWS) must designate critical habitat for the coastal California gnatcatcher under the Endangered Species Act of 1973 (ESA).[1] The FWS argued that listing of critical habitat would be imprudent because the identification of the habitat would increase the risk of deliberate habitat destruction. Also, because the majority of the habitat was not on federal land, the FWS argued that listing critical habitat would not be beneficial to the species. The court rejected these arguments, holding that when considering the risk of habitat destruction, the FWS must balance the risks of destruction with the benefits of designation. In making this determination, the FWS must consider whether the designation is beneficial to the species overall, not just beneficial to the majority of its population.

In 1993, the FWS listed the gnatcatcher as a threatened species under the ESA. Section 4 of the ESA requires that when the FWS lists a threatened species, it must also designate critical habitat “to the maximum extent prudent and determinable.”[2] A coalition of environmental groups challenged the failure to designate critical habitat and appealed the district court decision denying the challenge.

The Fish and Wildlife regulations state that critical habitat designation would not be “prudent” under section 4 of the ESA when either of the following conditions applies: (1) the identification of critical habitat can be expected to increase risk to the species, or (2) designation of critical habitat would not be beneficial to the species.[3] The FWS argued that designation of critical habitat would not be prudent because public identification would increase the risk of deliberate destruction of gnatcatcher habitat, and designation would not appreciably benefit the gnatcatcher because most of its habitat is on private land.

Although completion of a California tollroad mooted many of the claims in the original suit brought by the plaintiffs, the court found the issue of critical habitat designation for the gnatcatcher to be ripe for review. Under section 7 of the ESA, federal agencies must consult with the Secretary of Interior to ensure their actions do not harm critical habitat.[4] Because the lack of critical habitat designation eliminates the section 7 consultation requirement, the court found that the issue was sufficiently concrete to consider ripeness.

To show that designation would actually increase the risk of habitat harm, the FWS pointed to eleven cases in which landowners or developers destroyed gnatcatcher sites after designation. Two of these incidents occurred after the FWS notified local authorities that gnatcatchers were present. Unconvinced, the court held that the FWS must balance the pros and cons of designation, and that the agency failed to show that designation would cause more destruction than protection of gnatcatcher sites.

The court also struck down the argument that critical habitat designation would not benefit the gnatcatcher because most of its habitat is on private land. The court pointed out that the regulation provides the Service the option of declining to designate critical habitat if it would not appreciably benefit the species, but that the FWS had incorrectly interpreted the statute as “benefits most of the species.”[5] Designation of critical habitat would be beneficial to gnatcatchers with habitat on federal land and private land affected by federal projects. In addition, the court held that the FWS’s argument was inconsistent with the congressional intent that the imprudence exception be narrow.

The FWS also argued that the California Natural Communities Conservation Program (NCCP) for protection of the gnatcatcher was a superior means of protection. The court chose not to consider this argument because the FWS did not identify this program in the final listing decision as a reason for not designating critical habitat. However, the court suggested that it would still reject the argument if it considered it. The court found the NCCP to be an inadequate substitute for critical habitat designation because designation triggers the ESA section 7 consultation requirement for federal agencies.


[1]Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (1994).

[2]16 U.S.C. § 1533(3) (1994).

[3]50 C.F.R. § 424.12(a)(1)(i)-(ii) (1997).

[4]16 U.S.C. § 1536(2) (1994).

[5]Natural Resources Defense Council v. United States Dep’t of the Interior, 113 F.3d 1121, 1125 (9th Cir. 1997).

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