United States of America
The Home Builders Association challenged 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. The Appeals Court concluded that none of those challenges have merit, and affirmed. Vernal pools are a "unique kind of wetland ecosystem" that exists only temporarily. The pools typically appear in spring,following fall and winter rains before drying up until the following year. Since the pools' existence depends on rainfall, pool size and location can vary from year to year. 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. Home Builders first attacked the USFWSs classification, as critical habitat, of areas in which the physical or biological features essential to the conservation of the species do not occur simultaneously. USFWS refers to such “physical or biological features” as “primary constituent elements” or PCEs. Home Builders argued that if an area that does not contain all PCEs is designated as an occupied critical habitat, then the PCEs not present cannot be deemed essential to the conservation of the species, and, therefore, should not be considered PCEs at all. Home Builders further argued that if the absent elements are truly PCEs, then their absence means the area cannot be essential to the conservation of the species. The court noted that due to the unique characteristics of vernal pool complexes, the elements necessary to species survival are not necessarily all found in the same area. Obviously, the topographical features that feed the pools and the depressional features where the pools form will be found in different areas. Home Builders also argued that the USFWS determination of the PCEs was invalid because it failed to determine when the protected species will be conserved. The court held that there was no reason why the USFWS could not determine what elements are necessary for conservation without determining exactly when conservation will be complete. All that the ESA requires before the designation of occupied critical habitat is a determination of what physical or biological features are essential to the conservation of the species. Finally, Home Builders argued the USFWS failed to properly account for the economic impact of its critical habitat designation. The court noted that ESA mandates the consideration of economic impact before the designation of critical habitat and the USFWS had fulfilled that requirement by obtaining an economic analysis from an outside consultant to compare the current state of affairsthe baselinewith how things would look after designation of the critical habitat. Home Builders challenged that approach, arguing for a “cumulative” assessment, which would include the costs of complying with other regulations, should have been performed. The court disagreed, noting that a cumulative assessment would be necessary under the National Environmental Policy Act (NEPA), but that neither the ESA nor its implementing regulations expressly require such analysis. The court noted, moreover, that it is sensible to require a more thorough analysis under NEPA than the ESA as NEPA imposes requirements before the government takes action that might have negative consequences for the environment, while the ESA imposes requirements before the government takes action that will protect the environment. The court also found that Home Builders position failed as it was contrary to Arizona Cattle Growers Assn. v. Salazar (9th Cir. 2010) 606 F.3d 1160, 1172, which expressly approved the baseline approach employed by the USFWS in the economic analysis at issue.