The Fish and Wildlife Service must propose a new critical habitat designation for the Southwestern willow flycatcher within a year and a final designation a year after that (Center for Biological Diversity v. Norton, 02-1067 LH/RHS, D.N.M.).
Senior U.S. District Judge C. LeRoy Hansen rejected FWS's contention that it had complied with the ESA. "Certainly the mandatory, nondiscretionary duty to designate critical habitat within the statutory deadline cannot be discharged by issuance of a defective rule, and this Court will not so find," Hansen said.
The Tenth Circuit ruled two years ago that FWS's economic analysis for the flycatcher designation was defective because the service's "baseline" method did not properly take into account the impact of critical habitat (New Mexico Cattle Growers Ass'n v. USFWS, 248 F.3d 1277, 2001).
"Upon vacatur of the original designation, then, the FWS was immediately in violation of its duty to designate critical habitat for the flycatcher, and under controlling precedent in this circuit, was required to reissue the critical habitat designation 'as soon as possible,' taking into consideration 'what work is necessary to publish the new rule and how quickly that can be accomplished,' " Hansen said, quoting Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir., 1999)
Hansen said "more than two years have passed since the Tenth Circuit vacated the critical habitat designation for the flycatcher and since this court's remand, exceeding the statutory time limit provided in the Endangered Species Act for initial issuance of a critical habitat designation."
The judge said he would not order FWS "to follow any particular procedures or include certain analyses in completing the critical habitat designation, instead leaving these decisions to the FWS in the exercise of its expertise and best judgment, giving full consideration to the issues presented by [Salt River Project] in this matter. Thus, through a full and fair reconsideration by the FWS of all relevant criteria informing its decision, the court hopes that future challenges to the reissued flycatcher critical habitat designation will be curtailed."
Salt River Valley Water Users Association intervened on the side of the government in the case but requested the two-year timeline granted by the judge. The plaintiffs sought a shorter timeline.
ARKANSAS SHINER CRITICAL HABITAT VACATED, REMANDEDService given two years to complete new designation
FWS has until September 2005 to complete a new critical habitat designation for the Arkansas River shiner, much less time than the service and plaintiffs had agreed upon (New Mexico Cattle Growers Ass'n v. USFWS, 02-461 LH/RHS, D.N.M.).
Senior U.S. District Judge C. LeRoy Hansen, who ruled the same day to give FWS the same timetable for the Southwestern willow flycatcher, rejected a settlement agreement between the plaintiffs and FWS that would have given the service until at least October 2007--four years from now--to complete a new CH designation.
"[I]n no case may the service exceed the statutory time limits setforth in the ESA for the promulgating critical habitat designations: the FWS must issue a proposed critical habitat designation for the shiner no later than one year after the date of the court's order in this matter, and a final rule no more than one year later."
Hansen also vacated the current CH designation, however, finding that the continued listing of the species would provide adequate protection.
GAO SAYS FWS MUST FIND WAY TO DEVELOP CRITICAL HABITAT GUIDANCE
The General Accounting Office urged the Fish and Wildlife Service to come up with new guidance for designating critical habitat. Although GAO concluded that FWS uses the best available science in its listing decisions, GAO said concerns remain about critical habitat.