Endangered Species Law & Policy

On Tuesday October 24, 2012, several conservation groups wrote a letter to President Obama expressing concerns about an agreement that the Obama Administration entered into with the American Forest Resource Council, Carpenter Industrial Council, and Douglas County, Oregon (Plaintiffs), to remove critical habitat for the marbled murrelet (Brachyramphus marmoratus), a seabird listed as threatened under the Endangered Species Act (ESA).  The agreement still needs approval by the United States District Court for the District of Columbia.

Plaintiffs sued the U.S. Fish and Wildlife Service and other federal defendants in the United States District Court for the District of Columbia.  Plaintiffs alleged that the Service violated the ESA by unlawfully designating critical habitat for the California, Oregon, and Washington population of the marbled murrelet. 

The agreement explains that since 1996, when the Service designated critical habitat for the murrelet, there have been two U.S. Court of Appeals for the Ninth Circuit’ decisions (Arizona Cattle Growers v. Salazar, 606 F.3d 1160 (9th Cir. 2010), Home Builders Ass’n v. Salazar, 613 F.3d 983 (9th Cir. 2010), and a U.S. District Court for the District of Columbia decision (Cape Hatteras Access Preservation Alliance v. U.S. Department of Interior, 344 F. Supp. 2d 108 (D.D.C. 2004), that have made the Service reconsider the critical habitat designation for the murrelet.

Defendant Intervenors opposed the agreement and argued that the consent decree is not fair, reasonable or in the public interest.

The Service asserts that it does not believe a vacatur of the critical habitat designation will significantly impair the conservation of the murrelet.  The agreement notes that other regulatory mechanisms provide substantial protection for the murrelet. 

Critics assert that the agreement, entered into to resolve the claims without extending litigation, is an aberration on the part of the Service because there have been other cases where the courts have held a designation of critical habitat illegal but nonetheless generally left the habitat in place while the illegality is fixed.