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New Mexico Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv.

ELR Citation: 31 ELR 20614
Nos. No. 00-2050, 248 F.3d 1277/(10th Cir., 05/11/2001)

The court sets aside the critical habitat designation (CHD) for the southwestern willow flycatcher because the U.S. Fish and Wildlife Service's (FWS') adoption of a baseline approach to measure the economic impact of the flycatcher CHD was an erroneous construction of the Endangered Species Act (ESA). The baseline approach adopted by FWS utilizes a "but for" method for determining what economic impacts result from the CHD. Thus, unless an economic impact would not result but for the CHD, that impact is attributable to a different cause and is not included in the analysis. The court first holds that Congress intended that FWS conduct a full analysis of all of the economic impacts of a CHD, regardless of whether the impacts are attributable co-extensively to other causes. Thus, FWS' baseline approach to economic analysis is not in accord with the language and intent of the ESA.

Counsel for Plaintiffs
Marc R. Stimpert
Budd-Falen Law Offices
623 W. Second St., Cheyenne WY 82001
(307) 632-5105

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

Tacha, J. Before Kelly and Lungstrum, + JJ.

+ Honorable John W. Lungstrum, Chief District Judge for the District of Kansas, sitting by designation.