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June 25, 2015
SANTA ANA SUCKER CRITICAL HABITAT SURVIVES APPEAL TO NINTH CIRCUIT
In the interests of getting this out as quickly as possible, I am not writing this up right now, but simply providing the summary prepared by the court staff, which is not part of the opinion (link goes to PDF)
The panel affirmed the district court’s summary judgment in favor of federal defendants in an action brought by plaintiff municipalities and water districts challenging a 2010 Final Rule designating areas for the threatened Santa Ana sucker as critical habitat.
In 2000, the United States Fish and Wildlife Service designated the sucker as a “threatened” species pursuant to the Endangered Species Act. In 1999, a coalition of parties developed the Western Riverside County Multiple Species Habitat Conservation Plan, a regional, multi-jurisdictional plan that encompassed nearly 1.26 million acres and provided participating agencies with a 75-year permit for the incidental taking of 146 protected species, including the sucker, in exchange for implementing conservation measures; the Service formally approved the Conservation Plan in 2004. In the 2010 Final Rule, the Service designated additional critical habitat within the Conservation Plan.
The district court held that the Service satisfied its statutory obligation to cooperate with state agencies, that the critical habitat designation was not arbitrary or capricious, and that any claims under the National Environmental Policy Act were barred by this court’s decision in Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), which held that the statute does not apply to critical habitat designations.
The panel held that section 2(c)(2) of the Endangered Species Act did not create an independent cause of action, and rejected appellants’ argument that the Service violated the provision by failing to cooperate with State and local agencies on water resource issues.
The panel held that the critical habitat designation of land covered by the Conservation Plan was proper. Specifically, the panel affirmed the district court’s holding that the Service’s decision not to exclude land covered by the Conservation Plan was not subject to review. The panel also held that the Service’s designation of lands included in the Conservation Plan was not arbitrary or capricious. The panel further held that the designation of habitat in areas covered by the Conservation Plan did not violate the Services’s “No Surprises Rule,” which provides that the Service may not require permittees to pay for additional conservation and mitigation measures absent unforeseen circumstances. The panel also held that appellants had adequate opportunity to comment on the Service’s scientific citations.
The panel held that the Service’s designation of critical habitat in unoccupied areas was proper. The panel rejected appellants’ claim that the Service violated the National Environmental Policy Act by failing to prepare an environmental impact statement in connection with its 2010 Final Rule because the Act does not apply to the designation of a critical habitat.