A federal court in California has upheld a Fish and Wildlife Service (FWS) decision to double the designated habitat for the endangered Santa Ana sucker fish. Bear Valley Mut. Water Co. v. Salazar, No. 11-1263 (C.D. Cal. 10/17/12).
FWS issued an endangerment finding in 2004, although the agency indicated that it could not define the designated habitat. In 2010, following multiple intervening court challenges and FWS actions, the agency issued a rule that designated about 9,331 acres as critical fish habitat. Plaintiffs, municipal California water districts, challenged the action, asserting a variety of FWS procedural errors and stating that the rule would have the practical effect of restricting development in the region by adding a layer of federal approval to future projects. They alleged that the Endangered Species Act (ESA) requires FWS to consult with them but that the agency failed to do so.
The court ruled that the statute did not require consultation for a habitat designation like the one that FWS issued. Plaintiffs also challenged the FWS decision not to exclude some “essential” habitat from the designated critical habitat, which is allowed by the statute and had occurred in prior Santa Ana sucker designations. The court determined that this decision was unreviewable as discretionary agency action.
The U.S. Army Corps of Engineers had commented on the proposed critical habitat designation, expressing concern that the designation “would place significant restrictions on the manner in which the operations and management work [of the Seven Oaks dam] is performed and potentially affect the lives and property of millions of citizens.” Plaintiffs asserted that the habitat designation was contrary to a congressional mandate to operate the Seven Oaks dam for flood-control purposes because the designation would require changes to the dam’s operational practices. The court held that this claim was not ripe for judicial action, because “nowhere in the rule does it state the dam operators must do something,” and no other mandate relating to dam operation had issued.
The court also rejected claims relating to a revised economic analysis used in considering the designation. Finally, although plaintiffs complained that FWS did not follow National Environmental Policy Act (NEPA) requirements in issuing the designation, the court concluded that NEPA does not apply to critical habitat designations.