Home Builders' Association v. U.S. Fish & Wildlife Service

Aug 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16732. The Home Builders Association of Northern California 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. The Appeals Court said, "We conclude that none of those challenges have merit, and we affirm."

 

    By way of background, the Appeals Court explains vernal pools are a "unique kind of wetland ecosystem" that exists only temporarily. The pools typically appear in spring -- that is, vernally -- 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. 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.

 

    On one of the critical challenges the Appeals Court said, "Home Builders's position is contrary to Arizona Cattle Growers, 606 F.3d at 1172, where the court rejected the notion that 'FWS was required to attribute to the critical habitat designation economic burdens that would exist even in the absence of that designation.' That opinion also expressly approved the baseline approach to economic analysis, under which 'any economic impacts of protecting the [listed species] that will occur regardless of the critical habitat designation . . . are treated as part of the regulatory "baseline" and are not factored into the economic analysis of the effects of the critical habitat designation.' Id. Beyond arguing that FWS failed to follow the requirements of statutory and regulatory

provisions that have no application, Home Builders raises no other argument that anything was insufficient about FWS's consideration of the economic impact of its designation."

 

    Access the complete opinion (click here).