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Douglas County v. Babbitt

ELR Citation: 25 ELR 20631
Nos. Nos. 93-36013, -36016, 48 F.3d 1495/40 ERC 1225/(9th Cir., 02/24/1995) Aff'd in part, rev'd in part

The court holds that the National Environmental Policy Act (NEPA) does not apply to the Secretary of the Interior's designation of critical habitat under the Endangered Species Act (ESA). The court first holds that an Oregon county has standing to challenge the Secretary's failure to comply with NEPA in designating critical habitat for the northern spotted owl, because the county has a procedural right and underlying that right is a concrete interest that the designation of critical habitat could harm. The county has a procedural right because NEPA §102(2)(C) provides that local agencies that are authorized to develop and enforce environmental standards may comment on proposed federal action. The defendant appellee county is such a local agency because an Oregon statute authorizes counties to prepare, adopt, amend, and revise land management plans that contain environmental standards. The court also holds that the county's proprietary interest in the lands adjacent to the critical habitat is a concrete interest within the zone of interests Congress designed NEPA to protect.

Turning to the merits, the court holds that NEPA does not apply to the designation of critical habitat because ESA procedures have displaced NEPA requirements for such designations. The procedures Congress chose for critical habitat designations make NEPA procedures superfluous. In addition, the ESA's mandate that the Secretary designate as critical habitat any area without which a threatened or endangered species would become extinct conflicts with NEPA's requirements to consider environmental impacts. Also, by not changing the ESA's critical habitat provisions when it amended the ESA in 1988, Congress implicitly chose to accept the Secretary's 1983 policy not to prepare environmental impact statements (EISs) when designating critical habitats. As for the concern that the Secretary will have unchecked discretion in making critical habitat designations if he or she is not subject to NEPA requirements, the court holds that the ESA's procedural requirements and the review of decisions possible under the Administrative Procedure Act are adequate safeguards.

The court next holds that NEPA does not require the Secretary to prepare an EIS when he or she designates critical habitat because NEPA procedures do not apply to federal actions that do not alter the natural physical environment. The purpose of NEPA is to provide a mechanism to enhance or improve the environment and prevent further irreparable damage. Finally, the court holds that NEPA does not apply to the designation of a critical habitat because the ESA furthers NEPA's goals without demanding an EIS. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment. By designating critical habitats for endangered or threatened species, the Secretary is working to preserve the environment and prevent the irretrievable loss of a natural resource. Applying NEPA to the ESA would not further the purposes of either statute.

[The district court's opinion is published at 23 ELR 20755. Briefs in this litigation are digested at ELR PEND. LIT. 66320.]

Counsel for Plaintiff
Ronald S. Yockim
Cegavske , Johnston, Yockim & Associates
425 SE Jackson St., Roseburg OR 97470
(503) 673-5528

Counsel for Defendant
Albert M. Ferlo Jr.
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Pregerson, Trott, and Fitzgerald,* JJ.: