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Arizona Cattle Growers' Ass'n v. Salazar

ELR Citation: 40 ELR 20154
Nos. No. 08-15810, (9th Cir., 06/04/2010)

The Ninth Circuit upheld the FWS' designation of critical habitat for the Mexican Spotted Owl. A cattle growers' association argued that the FWS unlawfully designated areas containing no owls as "occupied" habitat. But the FWS' interpretation of the word "occupied" in the ESA was permissible. The FWS has authority to designate as "occupied" areas that the owl uses with sufficient regularity that it is likely to be present during any reasonable span of time. Nor did the FWS arbitrarily and capriciously treat unoccupied areas as occupied. The process that the FWS used to select habitat for designation, the measures it took to exclude areas where owls were absent or use by owls was infrequent, and its careful work to confirm the presence of owls in the designated areas demonstrate that the FWS designated areas that correspond to habitat where the owl is likely to be found. In addition, the FWS' economic analysis of the critical habitat designation was proper.