Grange v. United States Fish

• Decision Date: 09 August 2010
• Docket Number: No. 07-16732.,07-16732.
• Parties: HOME BUILDERS ASSOCIATION OF NORTHERN CALIFORNIA; Building Industry Legal Defense Foundation; California Building Industry Association; California State Grange; Greenhorn Grange, Plaintiffs-Appellants, v. UNITED STATES FISH AND WILDLIFE SERVICE; United States Department of the Interior; Gale A. Norton, in her official capacity as Secretary of Interior; H. Dale Hall, in his official capacity as Director of U.S. Fish and Wildlife Service; Matthew J. Hogan, in his official capacity as Acting Director of U.S. Fish and Wildlife Service, Defendants-Appellees, Butte Environmental Counsel; California Native Plant Society; Defenders of Wildlife, Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

616 F.3d 983

HOME BUILDERS ASSOCIATION OF NORTHERN CALIFORNIA; Building Industry Legal Defense Foundation; California Building Industry Association; California State Grange; Greenhorn Grange, Plaintiffs-Appellants,

v.UNITED STATES FISH AND WILDLIFE SERVICE; United States Department of the Interior; Gale A. Norton, in her official capacity as Secretary of Interior; H. Dale Hall, in his official capacity as Director of U.S. Fish and Wildlife Service; Matthew J. Hogan, in his official capacity as Acting Director of U.S. Fish and Wildlife Service, Defendants-Appellees,Butte Environmental Counsel; California Native Plant Society; Defenders of Wildlife, Defendants-Intervenors-Appellees.

No. 07-16732.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 15, 2010.

Filed Aug. 9, 2010.

M. Reed Hopper, Meriem L. Hubbard and Damien M. Schiff (argued), Pacific Legal Foundation, Sacramento, CA, for the plaintiffs-appellants.

Ronald J. Tenpas, Andrew Mergen, Kevin W. McArdle and Robert H. Oakley (argued), U.S. Department of Justice, Washington, D.C., for the defendants-appellees.

Brian P. Segee, Defenders of Wildlife, Washington, D.C., and Neil Levine, Denver, CO, for the defendant-intervenors-appellees.

Appeal from the United States District Court for the Eastern District of California, William B. Shubb, District Judge, Presiding. D.C. No. CV-05-00629-WBS.

Before: PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges, and REBECCA R. PALLMEYER, District Judge. ^*

OPINION

PALLMEYER, District Judge:

Home Builders Association of Northern California ¹ and other industry groups (collectively “Home Builders”) challenge the designation by the U.S. Fish and Wildlife Service (“FWS”) of about 850,000 acres of land as critical habitat for fifteen endangered or threatened vernal pool species. In the district court, Butte Environmental Council and other conservation groups (collectively “Butte Environmental”) intervened as defendants in support of the designation, and they have participated in the appeal. The district court upheld the designation, and Home Builders appeals, raising five technical challenges to FWS's procedure. We conclude that none of those challenges have merit, and we affirm.

BACKGROUND

Vernal pools are a “unique kind of wetland ecosystem” that exists only temporarily. 68 Fed.Reg. 46,684, 46,685 (Aug. 6, 2003). The pools typically appear in spring-that is, vernally-following fall and winter rains before drying up until the following year. Id. Since the pools' existence depends on rainfall, pool size and location can vary from year to year. Id. at 46,685-86. To survive years in which no pool develops due to low rainfall, vernal pool species have developed a dormant stage: vernal pool plant seeds can remain viable for several years and the fertilized egg of a vernal pool crustacean can remain viable for ten years or more. Id. at 46,687, 46,689. The egg develops a thick shell that protects it from extreme temperatures and even digestive enzymes, meaning that it can be transported within the digestive tracts of animals without harm. Id. at 46,687.

Three factors are necessary to the formation of vernal pools: a climate with a wet season to fill the pools and a dry season to evaporate them; soil that is impermeable or nearly impermeable to water so that rain water is not readily absorbed into the surface beneath the pools; and a topography that typically includes shallow depressions in which the pools form. Id. at 46,685. These factors tend to appear over continuous areas in which clusters of vernal pools-called complexes-are formed. Id. Vernal pool complexes include land that is not part of the pools themselves but that is necessary to provide water and nutrients to the pools: drainage pathways called “swales” and upland areas. Id. Alteration of those lands can negatively affect the health of the vernal pools themselves. Id.

Vernal pools are home to a diverse group of species, including freshwater crustaceans, amphibians, insects, and plants. Id. at 46,686. Those native species and the pools themselves provide food and habitat for various birds, toads, frogs, and salamanders. Id. Vernal pools are threatened by development of all kinds; researchers have estimated destruction of vernal pool habitat ranging from 60% in Oregon's Agate Desert area to 90% along the central California coast to nearly 100% in southern California. FWS, Draft Recovery Plan for Vernal Pool Ecosystems of California and Southern Oregon at I-15 (Oct. 2004), available at http:// www. fws. gov/ pacific/ ecoservices/ endangered/ recovery/ vernal_ pool/(last visited July 7, 2010). Species that make their homes in vernal pools are at risk as a result of the destruction: between 1978 and 1997, FWS designated as endangered or threatened four crustacean and eleven plant species native to vernal pools. 62 Fed.Reg. 33,029 (June 18, 1997); 62 Fed.Reg. 14,338 (Mar. 26, 1997); 59 Fed.Reg. 48,136 (Sept. 19, 1994); 57 Fed.Reg. 24,192 (June 8, 1992); 43 Fed.Reg. 44,810 (Sept. 28, 1978).

Under the Endangered Species Act (“ESA”), FWS is required, “to the maximum extent prudent and determinable,” to designate critical habitat at the same time that it lists a species as endangered or threatened. ESA § 4(a)(3)(A), 16 U.S.C. § 1533(a)(3)(A). Once habitat is designated as critical, federal agencies are prohibited from authorizing, funding, or carrying out any action likely to result in “the destruction or adverse modification” of that habitat without receiving a special exemption. ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). To satisfy that prohibition, agencies must consult with the appropriate expert wildlife agency before any federal action that might affect critical habitat. California ex rel. Lockyer v. U.S. Dep't. of Agric., 575 F.3d 999, 1018-19 (9th Cir.2009). Although it designated the four crustacean species at issue here as endangered or threatened in 1994, FWS nevertheless declined to designate critical habitat at that time. FWS explained in the final rule designating the crustacean species that concurrent designation of critical habitat was “not prudent” because “such designation likely would increase the degree of threat from vandalism or other human activities.” 59 Fed.Reg. at 48,151.

After FWS issued that final rule, a group of plaintiffs led by the Building Industry Association of Superior California challenged it in the District Court for the District of Columbia. The court rejected all of the plaintiffs' claims except their challenge to FWS's failure to designate critical habitat. The court ordered FWS to designate critical habitat, but before FWS could comply with the court's order, the plaintiffs struck the critical-habitat claim from their complaint so that they could take an immediate appeal from the denial of their other claims. Bldg. Indus. Ass'n of Superior Cal. v. Norton, 247 F.3d 1241, 1244 (D.C.Cir.2001). A group of plaintiffs including some of the defendant-intervenor-appellees in this case brought a critical-habitat claim in the District Court for the Eastern District of California. They too were successful, and the court ordered FWS to designate critical habitat for the vernal pool crustaceans. Butte Envtl. Council v. White, 145 F.Supp.2d 1180 (E.D.Cal.2001).

FWS complied with that order, and on September 24, 2002 issued a proposed rule to designate 1,662,762 acres in northern California and southern Oregon as critical habitat for the vernal pool crustaceans as well as the eleven plant species. 67 Fed.Reg. 59,884 (Sept. 24, 2002). After extensive public comment, FWS issued a final designation on August 6, 2003. 68 Fed.Reg. 46,684 (Aug. 6, 2003). Based on those comments, the final designation reduced the covered area by more than one million acres. ² The final designation reflected the exclusion of five rapidly growing counties for economic reasons as well as exclusions for non-economic reasons-areas already protected, military areas, and tribal areas. Id. at 46,745-55. Litigation once again followed-the plaintiffs again included some of the intervenors here-and, in October 2004, the District Court for the Eastern District of California granted FWS's motion for voluntary remand for reconsideration of the exclusions. ³

On December 28, 2004, FWS reopened the comment period for thirty days to obtain comments on both the economic and non-economic exclusions. 69 Fed.Reg. 77,700 (Dec. 28, 2004). After reconsideration, FWS made no changes to the non-economic exclusions. 70 Fed.Reg. 11,140, 11,140 (Mar. 8, 2005). FWS's reconsideration of the economic exclusions, however, did generate changes. As part of the reconsideration, FWS obtained a new economic analysis estimating the foreseeable economic impacts of the critical habitat designation. 70 Fed.Reg. 37,739, 37,741 (June 30, 2005). The analysis took a “baseline” approach: relying on guidance from the Office of Management and Budget, it compared the current state of affairs-the baseline-with how things would look after designation of critical habitat. CRA International, Economic Impacts of Critical Habitat Designation for Vernal Pool Species 45-46 (June 20, 2005), available at http:// www. fws. gov/ economics/ Critical% 20Habitat/Final% 20Draft% 20Reports/vernal% 20pool% 20species% 20redo/VPS-6-20-05.pdf (last visited July 7, 2010). Based on that analysis, on August 11, 2005, FWS adopted new economic exclusions to the critical habitat designation. 70 Fed.Reg. 46,924, 46,948-52 (Aug. 11, 2005). Rather than excluding land in five rapidly growing counties as before, the new designation excluded twenty-three census tracts ⁴ for which FWS determined that the benefits of exclusion outweighed the benefits of inclusion. Id. FWS issued its final rule on February 10, 2006, designating 858,846 acres of land as critical habitat. 71 Fed.Reg. 7118 (Feb. 10, 2006).

Once again, litigation followed in the District Court for the Eastern District of California, this time from both...