PLF Lawsuits Charge Government with Flawed Critical Habitat Designations for 42 California Species: Fish and Wildlife Service Admits Designations Routinely Skirt Scientific Standards

Fish & Wildlife Service state “In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species,” yet “consumes significant amounts of conservation resources and imposes huge social and economic costs.”
See Federal Register, Vol. 68, No. 151, August 6, 2003

Contact: M. Reed Hopper
Phone: (916) 419-7111

Sacramento,CA; March 30, 2005: The “critical habitat” designations for more than 40 California species fail to meet the scientific and legal standards required under the federal Endangered Species Act, according to two lawsuits filed today by Pacific Legal Foundation.

The two statewide challenges seek to compel the United States Fish and Wildlife Service (FWS) to bring 42 critical habitat designations into compliance with the clear standards mandated by recent federal court decisions. PLF’s first legal challenge would require FWS to fix the critical habitat designations for 27 species (of which 21 are plants); the second suit would require the agency to correct habitat areas for 15 vernal pool species (11 plants and 4 species of “fairy shrimp”).

“There is no rhyme or reason why some areas are designated as critical habitat and no meaningful evaluation of the real costs to society of these designations—in clear violation of federal law,” said Pacific Legal Foundation Principal Attorney Reed Hopper. “As a result, Californians pay more for their homes, face higher taxes, and have seen their property unnecessarily turned into what amounts to wildlife preserves. The Service must use real science to identify critical habitat areas and consider the real economic consequences of these designations.”

As PLF explains, all 42 designations fail to meet the standards identified by a federal judge in PLF’s 2003 landmark court victory in the Alameda whipsnake case (Home Builders Association of Northern California v. United States Fish and Wildlife Service, 268 F. Supp. 2d 1197 (E.D.Cal.)). Specifically, PLF says the designations are illegal because federal officials: (1) failed to accurately determine through appropriate surveying and mapping where species are actually located, (2) failed to perform the requisite scientific analysis to identify the areas that are essential to the species’ conservation, and (3) routinely fail to fairly evaluate the economic and social impact of designations on the surrounding community, as Congress requires under the plain language of the ESA.

By law, “Critical Habitat” is supposed to include only those areas that are essential to the conservation of threatened or endangered species. However, in setting the boundaries for critical habitat, FWS often does little more than guess where the species live and what they need, and as a result, includes far more land than is scientifically or legally defensible. According to PLF, FWS acknowledges its lack of precision in locating and mapping habitat areas, but claims it hasn’t the time or resources to be more accurate.

FWS also has repeatedly made it clear that the designation of critical habitat does not meaningfully benefit species, but does have significant social and economic costs on surrounding communities. In fact, FWS regularly publishes its conclusion that “In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species,” yet “consumes significant amounts of conservation resources and imposes huge social and economic costs.” See Federal Register, Vol. 68, No. 151, August 6, 2003. But despite FWS’ admission, it fails on a regular basis to conduct the statutorily required economic impact analysis of proposed designations.

Once land is designated as critical habitat, severe land use restrictions apply, increasing the costs of constructing homes, hospitals, schools, and roads, and raising the cost of living and doing business throughout the state.

PLF filed the two lawsuits on behalf of associations representing California family farmers and ranchers, homebuilders, and business owners throughout the state. Together, these associations represent businesses that employ hundreds of thousands of Californians and generate billions of dollars a year for the California economy.

“Our clients represent Californians with diverse interests who are hurt by the haphazard designation of critical habitat,” Hopper said. “Farmers strive to produce food for California families, builders are working to address California’s continuing housing crisis, and business employers throughout the state want to create more jobs for Californians, but they are all suffering unfairly from these invalid designations.”

The lawsuits were filed in the United States District Court for the Eastern District of California, in the Sacramento and Fresno divisions.

To read testimony given by Pacific Legal Foundation stating problems with Endangered Species Act

To read about many other interesting cases Pacific Legal Foundation