Ninth Circuit Rejects Challenge to Vernal Pool Critical Habitat; Limits Scope of Economic Impact Analysis

For the second time in two months, the United States Court of Appeals for the Ninth Circuit rejected an industry challenge to a designation of critical habitat under the Endangered Species Act (ESA).  In Home Builders Association of Northern California v. United States Fish and Wildlife Service (PDF), the court upheld the designation of 858,000 acres of land in California as critical habitat for fifteen vernal pool species.

The ESA prohibits federal agencies from approving actions that adversely modify critical habitat.  The court rejected Home Builders’ claim that the ESA limited the designation of critical habitat to those areas that contain all (rather than some) of the physical or biological features essential to the conservation of the vernal pool species. The court also rejected the claim that, in designating critical habitat, the Fish and Wildlife Service is required to determine when the protected species are required to be conserved.  Following its recent decision in Arizona Cattle Growers’ Assn. v. Salazar, 606 F.3d 1160 (9th Cir.  2010), the court upheld the Service’s analysis of the economic impacts of the critical habitat designation.  The court concluded that, unlike the National Environmental Policy Act, the ESA does not require the Fish and Wildlife Service to evaluate cumulative impacts of the critical habitat designation.

  • Robert D. Thornton

    Robert Thornton specializes in advising state and regional infrastructure authorities on environmental issues regarding large infrastructure projects. He has successfully defended more than $12 billion in regional ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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