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Precedent-Setting Decision Greatly Restricts Economic and Recreational Activities Within Critical Habitat

By: Robert D. Thornton

For the first time in the western United States, a federal court has concluded that the Endangered Species Act prohibits activities that have an effect on the recovery of an endangered or threatened species. Prior to this decision, the ESA regulations allowed activities in critical habitat that had an effect on recovery as long as the activity did not affect the survival of the species. If followed by other courts, the decision will prohibit most economic activities on the approximately 40 million acres of proposed or designated critical habitat in California. Activities within critical habitat (including activities previously approved by the Fish and Wildlife Service in habitat conservation plans and biological opinions) may now be challenged as a violation of the Endangered Species Act.

On August 3, 2004, the District Court for the Northern District of California (J. Illston) invalidated a biological opinion issued by the U.S. Fish and Wildlife Service concerning the impact of a management plan for the California Desert Conservation Area on the desert tortoise. American Motorcycle Association District 37 v. Norton, Nos. 03-03807 SI; 03-02509 SI (N.D. Cal. Aug. 3, 2004). The plaintiff environmental organization challenged the management plan (and the Service's biological opinion approving the management plan) on the grounds that the management plan violated the critical habitat provisions of the Endangered Species Act.

The ESA requires federal agencies to insure that their actions (including permits issued to non-federal persons) do not result in the destruction or adverse modification of critical habitat. 16 U.S.C. §1536(a)(2). The Court held that the Service's biological opinion violated the ESA because it relied upon an overly narrow definition of "adverse modification." The Service had relied upon a regulation (adopted by the Departments of Interior and Commerce in 1986) defining "adverse modification" to mean actions that "appreciably diminish the value of critical habitat for both survival and recovery" of a listed species. The Court held that the use of "survival" to define "adverse modification" violated the ESA. The Court concluded that the prohibition against "adverse modification" applies to activities that diminish the value of critical habitat for recovery of a listed species -- even if they don't impact survival of the species. In doing so, the Court adopted the reasoning of the 2001 landmark decision of the 5th Circuit Court of Appeals invalidating the ESA regulation defining "adverse modification." Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001).

Since 2001, environmental groups have embarked on a concerted litigation campaign to extend the Sierra Club decision to the federal courts in California. In American Motorcycle Association, they succeeded.

Impact of the Decision on Landowners and Public Agencies in California

In the last several years, in response to litigation by environmental organizations, the Departments of Interior and Commerce have designated (or proposed to designate) 40% of California as critical habitat -- including 50% of the non-federal land in the State. Much more critical habitat is on the way. With narrow exceptions, the ESA requires the designation of critical habitat for all threatened and endangered species. The federal government has designated critical habitat for less than 8% of the 280 endangered and threatened species in California.

Within the last few days, the Interior Department indicated that it will propose to designate 380,000 acres of critical habitat in 20 counties for the California tiger salamander. Critical habitat designations for the California gnatcatcher, the arroyo toad, the red-legged frog and two species of fairy shrimp are expected to be re-adopted in the next year. Re-designation of critical habitat for several salmon species is expected. Environmental organizations have filed lawsuits challenging the exclusion of areas subject to habitat conservation plans from critical habitat. Other lawsuits are pending to force the designation of critical habitat for other species.

In summary, the Court decision has immediate, far-reaching implications for transportation, housing, and agricultural activities in areas of the State that are either currently designated as critical habitat or that may be designated in the future. The decision could also prohibit military training activities on the several military bases in California that contain critical habitat.

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