Environmental Case LawNinth Circuit Decides that Critical Habitat Is Not Limited to Areas "Occupied" by Species
On June 4, 2010 the Ninth Circuit Court of Appeals issued a decision in Arizona Cattle Growers Assoc. v. Ken Salzaar, et al. regarding the 8.6 million acre critical habitat designation (CHD) for the Mexican spotted owl. The major issues discussed by the court were: 1. Proper Designation of Occupied Areas, and; 2.Agency discretion in exclusion of evidence.
Proper Designation of Occupied Areas:
The U.S. Fish and Wildlife Service (FWS) included areas in the CHD where it determined the owl was likely to be present. The court found the FWS had permissibly interpreted the Endangered Species Act (ESA), which defines CHD to include (i) the specific areas within a geographical area occupied by the species(I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. When considering what an occupied area means, the Ninth Circuit Court used a two part inquiry: Uncertainty and Frequency.
Uncertainty is a factor when the FWS has reason to believe owls are present in the given area, but lacks conclusive proof of their presence.
Frequency is a factor when owls are shown to have only an intermittent presence in a given area.
The Court found that 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.
The Court also opined that it was possible for the FWS to go too far. Most obvious is that the agency may not determine that areas unused by owls are occupied merely because those areas are suitable for future occupancy.
Agency discretion in exclusion of evidence:
The Arizona Cattlegrowers contended the FWS had failed to demonstrate owl occupancy in a particular area, stating there was some evidence available that the owls were absent from the area. The FWS apparently declined to rely on that evidence, finding it unreliable. The Court stated this was precisely the sort of decision within the agencys [sic] technical expertise that we are not free to second-guess.
Ninth Circuit Court of Appeals Abandons the "Federal Defendants" Rule in NEPA Actions (FRCP 24)-
On January 14, 2011, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Wilderness Society v. U.S. Forest Service which abandoned the so -called "Federal Defendants" rule that was established over twenty years ago. The court previously has categorically prohibited private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act (NEPA).
Wilderness Society v. U.S. Forest Service Full Opinion
Important NEPA Documents
NEPA Categorical Exclusion Guidance
Migration and Monitoring Guidance