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PLF Launches Sweeping Lawsuit Challenging Critical Habitat for 48 Species in California

Contact: Dawn Collier
Phone: (916) 419-7111

Sacramento,CA; November 15, 2004: Pacific Legal Foundation today announced its intent to file a sweeping lawsuit against the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service, challenging the critical habitat designations for 48 listed species of California plants and animals. The lawsuit will be a statewide challenge to the federal agencies’ broad failure to meet the requirements of the Endangered Species Act (ESA) in designating critical habitats. PLF filed a 60-day notice of its intent to sue today.

PLF believes the lawsuit is necessary to fix four dozen critical habitat designations that are now invalid under recent federal court decisions. In particular, PLF says all 48 California designations contain the same fatal flaws identified by a federal judge last year in PLF’s landmark court victory that invalidated the designation of thousands of acres of land as critical habitat for the Alameda whipsnake.

Specifically, PLF argues that critical habitat designations throughout California violate the ESA because the federal agencies did not adequately identify the areas that are essential to
species conservation and routinely relied on inadequate economic analyses in evaluating the social impact of designations as required under the act.

“The federal government has been using a flawed template to designate critical habitat,” said PLF attorney Reed Hopper. The government’s strategy is to set aside as much land as possible without doing the work to determine where the species actually live and what they require to recover. The result is that species languish on the endangered species list endlessly without any real hope of being saved.”

“This lawsuit will promote species recovery by forcing the federal government to set goals and meet clear standards in designating critical habitat. It’s a win-win for everyone,” Hopper said.

In addition, Hopper explains that the agencies understate the economic impact of critical habitat designations as a matter of course, despite the fact that the ESA specifically requires the government to evaluate the potential effect of proposed designations on the local economy before the designation is made.

According to the California State Association of Counties, of California’s entire land area of 100 million acres, over 42 million acres are designated as critical habitat. Once land is designated as critical habitat, it falls under severe use restrictions that increase the costs of constructing homes, hospitals, schools, and roads which, in turn, raises the cost of living and doing business in the state.

“The federal government has repeatedly ignored the impact of ESA regulation on California property owners, businesses, and communities,” said Hopper.

“We’re talking about millions of acres of property subjected to strict federal regulation, which has dramatic repercussions for the state’s economy. Yet federal regulators routinely claim
there will be no significant economic impact from proposed designations, no matter how much land they restrict or where it is located,” said Hopper.

“With such high stakes for both species and people, federal regulators need to rethink how the ESA is implemented. We’re simply asking the government to replace guesswork with sound science and get it right,” added Hopper.

PLF won the landmark 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.) in May, 2003. In that case, FWS admitted it had guessed where the snake lived and suggested that the designation of over 400,000 acres of land as critical habitat would have no significant economic impact in northern California, despite the fact that the area is suffering from a severe housing crunch and much of the designated property was slated for family homes. In finding for PLF, the federal court invalidated the designation, and issued a comprehensive analysis of the requirements the government must meet when it designates critical habitat.

PLF is bringing the lawsuit on behalf of the Home Builders Association of Northern California, the Building Industry Legal Defense Foundation, the California Chamber of Commerce, the California State Grange, and the Greenhorn Grange.