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Building Industry Ass'n of the Bay Area v. United States Department of Commerce

ELR Citation: 45 ELR 20130
Nos. 13-15132, (9th Cir., 07/07/2015)

The Ninth Circuit upheld the National Marine Fisheries Service's (NMFS') designation of critical habitat for the southern distinct population of green sturgeon, a threatened species. The rule designated approximately 11,421 square miles of marine habitat, 897 square miles of estuary habitat, and hundreds of additional miles of riverine habitat in California, Oregon, and Washington. Several developers challenged the designation, arguing that NMFS failed to balance the conservation benefits of designation against the economic benefits of exclusion from designation. But NMFS fully complied with the requirements of ESA §4(b)(2) when it considered the economic impact of its designation. The ESA does not require NMFS to follow a specific methodology when designating critical habitat under §4(b)(2), and NMFS took into consideration the economic impact of designation in all areas, including high conservation value areas. Appellants also argued that NMFS' decision not to exclude certain areas from designation was arbitrary and capricious. But an agency's decision not to exclude an area from designation is not subject to judicial review. ESA §4(b)(2) establishes a discretionary process by which the agency may exclude areas from designation, but it does not set standards for when areas must be excluded from designation. Last, appellants' claim under NEPA failed because the Act does not apply to critical habitat designations.