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Natural Resources Defense Council v. Department of the Interior

ELR Citation: 27 ELR 20971
Nos. 95-56075, 113 F.3d 1121/(9th Cir., 05/21/1997) rev'd

The court holds that the U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act (ESA) by failing to designate critical habitat for the threatened coastal California gnatcatcher and by failing to justify its use of the imprudence exception to the ESA. The court first holds that FWS' decision not to designate critical habitat for the gnatcatcher is ripe for immediate review because plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan. Turning to the plaintiffs' claim itself, the court notes that ESA §4 requires that the gnatcatcher's listing as a threatened species be accompanied by concurrent designation of critical habitat to the maximum extent prudent and determinable. FWS has defined critical habitat designation in the regulations promulgated under the ESA as not prudent when one orboth of the following situations exist: (1) either the species is threatened by taking or other human activity and the identification of critical habitat can be expected to increase the degree of such threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. FWS' reliance on the "increased threat" exception was improper because FWS failed to consider all required relevant factors by not balancing the relative threat of coastal sage scrub both with and without critical habitat designation, and FWS' expansive construction of the "no benefit" prong to the imprudence exception is inconsistent with clear congressional intent that this exception be rare. The court rejects FWS' suggestion that designation is only necessary where it would protect the majority of species habitat. The court also rejects FWS' endorsement of California's Natural Communities Conservation Program (NCCP) as a reason for not designating critical habitat for the gnatcatcher. The NCCP was not identified in FWS' proposed or final listings as a reason not to designate critical habitat. Therefore, this argument is not properly before the court for consideration. In any event, the NCCP alternative cannot be viewed as a functional substitute for critical habitat designation under the ESA because the NCCP is a purely voluntary program that applies only to nonfederal land-use activities.

A dissenting judge would hold that FWS' decision not to designate critical habitat for the gnatcatcher reveals that it did conduct precisely the balancing test called for in the majority opinion. The agency concluded that designation may cause the intentional destruction of habitat by private landowners, but would produce little benefit since most of the habitat is not on publicly owned land.

Counsel for Plaintiffs
Joel R. Reynolds, Michael D. Fitts
Natural Resources Defense Council
6310 Sanvicente Blvd., Ste. 250, Los Angeles CA 90048
(213) 934-6900

Counsel for Defendants
Anne S. Almy, Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Pregerson, Nelson, and O'Scannlain, JJ.