Critical habitat designation under the Endangered Species Act: a road to recovery?

• Author: McDonald, Jack

[T]he designation of critical habitat is more important than the designation of an endangered species itself.

--Statement of Senator Garn (R-UT), 124 CONG. REC. S21,575 (daily ed. July 19, 1978).

1. INTRODUCTION

   The Endangered Species Act (ESA or Act)(1) exists, not for the purpose of constructing long lists of plants and animals near extinction, but to work toward the goal of making a species's presence on these lists no longer necessary. In a word, the goal is "recovery." There is no more important factor contributing to recovery than availability of habitat for a threatened or endangered species. However, the Fish and Wildlife Service (FWS or Service) and the National Marine Fisheries Service (NMFS), the agencies (Services) in charge of implementing the Act, routinely avoid designating critical habitat for listed species and greatly reduce the legal protection given to such habitat when it is designated.

   This was the situation in a recent Ninth Circuit case involving the coastal California gnatcatcher (gnatcatcher), a songbird dependent on the severely depleted coastal sage scrub habitat of southern California and northern Baja California. In Natural Resources Defense Council v. Department of the Interior (NRDC II),(2) a coalition of environmental organizations successfully forced FWS to designate critical habitat for the gnatcatcher. Litigation, brought originally to enjoin the construction of a tollroad across the sensitive habitat of the gnatcatcher, continued after the tollroad was essentially complete. The follow-up lawsuit was brought for the sole purpose of designating gnatcatcher critical habitat. Considering the FWS policy giving virtually no significance to critical habitat, the question that begs an answer is: Why did NRDC proceed with the litigation?

   This Chapter explores that question. Part II explores the legal conflict over the habitat of the gnatcatcher and the Ninth Circuit's reasoning in requiring the designation of critical habitat. Part III examines critical habitat designation under section 4 of the ESA. It explores the history of critical habitat designation and the reasoning behind the current FWS policy. Part III presents an argument that FWS has a legal obligation to designate critical habitat in all but the rarest circumstances. Part IV explores the significance of critical habitat in the ESA consultation process, first under the current FWS policy, and second, under the assumption that Congress intended for designation of critical habitat to play an instrumental role in the recovery of endangered species. Part IV includes analysis of two recent district court cases seeking to fulfill the potential of critical habitat in the consultation process. Part IV concludes with an argument that FWS should allow critical habitat to reach its full potential in assisting the recovery of endangered species.

   The Ninth Circuit ordered designation of critical habitat for the gnatcatcher because it found the designation to be valuable for the species. Given the controversy inherent in designation, FWS was reluctant to embrace the court's position. Not only does the decision require a higher standard for avoiding designation, but it also undermines the second part of the FWS critical habitat policy: that FWS need not consider the impact of federally approved projects on critical habitat. The ESA has a goal of species recovery and Congress wove this goal into the requirements of the Act. Critical habitat is one of the keystones of recovery in the ESA and the courts have ignored its contribution for too long. The Ninth Circuit in NRDC II recognized the value in critical habitat, and the ESA itself shows that critical habitat is valuable because it is the key factor that contributes to the main goal of recovery.

2. THE CALIFORNIA GNATCATCHER CASES

   1. The Tollroad and the First Lawsuit

      The coastal California gnatcatcher is a songbird that is dependent upon certain types of coastal sage scrub.(3) Though a "common" bird in southern California and northern Baja California, Mexico in the 1940s, its numbers have been severely depleted.(4) The primary reason for this decrease is the depletion of its coastal sage scrub habitat by agricultural and urban development.(5) Only about 2500 pairs of gnatcatchers survive in southern California. In 1993, FWS listed the gnatcatcher as threatened but did not concurrently designate critical habitat.(6)

      By the time of the listing, the San Joaquin Hills Transportation Corridor Tollroad was in the works. The Federal Highway Administration (FHA) proposed an automobile tollroad across potential gnatcatcher habitat in the San Joaquin Hills.(7) In 1995, NRDC brought its original suit, Natural Resources Defense Council v. Department of the Interior (NRDC I),(8) seeking a preliminary injunction to halt the construction of the tollroad. NRDC sought to enjoin the tollroad project by showing that the FHA approval of the tollroad was granted in violation of the ESA. NRDC argued that, first, FWS violated section 4 of the ESA when it failed to designate critical habitat for the gnatcatcher upon listing the species;(9) and second, FHA violated section 7 of the ESA by not consulting with FWS to ensure that critical habitat was not adversely modified,(10)

      The Ninth Circuit did not decide if FWS violated the ESA by failing to designate critical habitat.(11) It instead placed the burden on NRDC to show that, even if FWS was compelled to designate critical habitat, designation would include land affected by the tollroad.(12) Only then, the court reasoned, would FHA have a duty to reinitiate consultation or be in violation of the Act.(13)

      The court determined that NRDC had not met its burden of showing that the land affected by the tollroad would be critical habitat. The current Biological Opinion (BiOp)(14) relied on by FHA, despite being written without the benefit of critical habitat designation, indicated that the project land was "not essential to the overall survival and recovery" of the species.(15) The court noted that, although the determination would not be precisely the same as when critical habitat was designated, it was sufficiently similar to suggest that NRDC was not likely to meet its burden.(16)

      The court also noted that, even if the land used by the tollroad met the legal definition of critical habitat, FWS could still exercise its discretion to exclude the area from being designated as critical habitat under an economic relief clause in the ESA.(17) Given the small acreage of destruction and the economic reliance on the partially completed tollroad, the likelihood of FWS exercising its discretion was high, according to the court, and was further grounds for denying the injunction.(18)

   2. The Second Lawsuit Seeking Critical Habitat Designation

      Failing to get the injunction for the San Joaquin Tollroad, NRDC filed a new suit against the Department of the Interior (DOI). NRDC alleged that DOI violated the ESA by failing to designate critical habitat when listing the gnatcatcher as threatened. The district court granted summary judgment to DOI, and NRDC appealed to the Ninth Circuit.(19) The Ninth Circuit reversed the district court and handed down its opinion in NRDC II.(20) By a two to one majority,(21) the court found that FWS violated the ESA by failing to designate critical habitat for the gnatcatcher.(22)

      FWS did not designate the gnatcatcher's critical habitat when listing the species, relying on both of its regulations that allow for the exemption of critical habitat designation.(23) These two regulatory exceptions, known as the "imprudency exceptions," allow FWS to find that designation of critical habitat would be imprudent if 1) the designation would increase the threat to the species, or 2) the designation would not be beneficial to the species.(24) The court did not accept the imprudency exceptions.

      1. Increased Threat to the Species

         FWS declined to designate critical habitat because it would increase the degree of threat to the gnatcatcher.(25) FWS cited eleven instances where landowners or developers had destroyed gnatcatcher sites, including two cases where the habitat was destroyed after local authorities learned of the presence of gnatcatchers from the Service.(26) FWS reasoned that the publication of critical habitat descriptions and the maps accompanying designation would lead to more such incidences.(27)

         The court held that an increased threat to the destruction of critical habitat alone is not sufficient to forgo critical habitat designation.(28) According to the court, only when the increased threat of designating critical habitat outweighs the benefits of such a designation, can FWS use the "increased threat" exemption.(29) The court pointed to section 4(b)(2) of the Act, which allows exclusion of an area from critical habitat if the Secretary of the Interior determines that the benefits of exclusion outweigh the benefits of designation.(30) The court found that FWS never weighed the benefits of designation of critical habitat against the benefits of exclusion.(31) Interestingly, the court noted that the destroyed habitat areas had been extensively surveyed in other studies of the gnatcatcher and sage scrub habitat prior to the listing of the gnatcatcher.(32) These studies indicated that even if the critical habitat had not yet been designated, it was already publicized to the extent that designation posed no increased threat.

         In the dissent, Judge O'Scannlain argued that the Act does not require FWS to do a balancing test to use the imprudency exceptions.(33) He reasoned that even if it did require a balancing test, FWS performed an implicit balancing when it stated that there was little benefit in designation.(34) Section 4(b)(2), containing the balancing language, is not relevant to the imprudency exception of section 4(a)(3), the dissent argued, and therefore the Act does not require a balancing for prudency.(35) Even if the Act did...