The Ninth Circuit Court of Appeals recently clarified the proper approach to be applied in analyzing the economic impacts of designating critical habitats for endangered or threatened species under the Endangered Species Act (ESA). In Arizona Cattle Growers’ Association v. Salazar, the Court found that the U.S. Fish and Wildlife Service (FWS) properly applied a "baseline" approach in designating approximately 8.6 million acres of Federal land as critical habitat for the Mexican Spotted Owl. The Court also found that the FSW properly interpreted “occupied” as including not only areas where owls are found, but areas where owls are likely to be present as well. See, previous blog dated June 21, 2010.

A decision to list a species as endangered or threatened is made without reference to the economic effects of the decision. In contrast, an agency must consider the economic impacts of designating critical habitat in any particular area. Under the baseline approach used by the FWS, any economic impacts of protecting a species that will occur regardless of the critical habitat designation, such the economic impacts imposed by listing the species, are treated as part of the regulatory “baseline” and are not factored into the economic analysis of effects of the critical habitat designation.Continue Reading Ninth Circuit Rules on the Appropriate Economic Analysis Approach in Designating Critical Habitats Under the Endangered Species Act

In a recent case, Arizona Cattle Growers Association v. Salazar, the Ninth Circuit Court of Appeals upheld a designation by the U.S. Fish and Wildlife Service of approximately 8.6 million acres of Federal land as critical habitat for the Mexican Spotted Owl, a threatened species under the Endangered Species Act (“ESA”). In making the designation, FWS interpreted the word “occupied” in the ESA’s critical habitat provision to include not only areas where owls are found, but areas where owls are likely to be present as well.

Continue Reading Ninth Circuit Upholds U.S. Fish and Wildlife Service’s Interpretation of “Occupied” Under the Endangered Species Act Critical Habitat Designation Provision