Sierra Club v. U.S. Fish & Wildlife Service

No. 00-30117 (250 F.3d 748) (11th Cir. March 15, 2001)

ELR Digest

The court holds that the U.S. Fish and Wildlife Service's and the National Marine Fisheries Service's failure to designate critical habitat for the Gulf sturgeon was arbitrary and capricious. Relying on the definitions of the destruction/adverse modification and jeopardy standards in 50 C.F.R. § 402.02, the agencies concluded that the designation of critical habitat would provide no additional benefit to the sturgeon beyond the protections currently available through jeopardy consultation. The court first holds, however, that the regulation's definition of the destruction/adverse modification standard in terms of both survival and recovery is facially invalid. Requiring consultation only where an action affects the value of critical habitat to both recovery and survival of a species imposes a higher threshold than the statutory language permits. Consultation is required where an action affects recovery alone. The court next holds that given the extent of the agencies' reliance on the invalid regulation, their decision not to designate critical habitat for the Gulf sturgeon was arbitrary and capricious. The agencies expressly found that designation of unoccupied critical habitat was necessary to the recovery, but not the survival, of the sturgeon, and the invalid regulation directly informed the agencies' conclusion that designation was not warranted. The court further holds, however, that the agencies' failure to expressly consider the informational benefits of habitat designation was not arbitrary or capricious given the ambiguity of the Endangered Species Act's description of the "other relevant impacts" warranting consideration.

The full text of this decision is available from ELR (16 pp., ELR Order No. L-352).

Counsel for Plaintiff
Stuart Henry
Henry, Lowerre, Johnson, Hess & Frederick
202 W. 17th St., Austin TX 78701
(512) 479-8125

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

[31 ELR 20504]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]