U.S. District Judge upholds FWS discretion to exclude areas from critical habitat designation in Cape Sable seaside sparrow dispute
CENTER FOR BIOLOGICAL DIVERSITY v. SALAZAR, Civ. No. 09-1684 (RMC) (D.D.C. Mar. 16, 2011)(Memorandum Opinion, U.S. District Judge Rosemary Collyer)
SUMMARY: Did the Secretary of the U.S Department of the Interior appropriate exercise executive discretion when he failed to designate the area containing sub-population A of the Cape Sable seaside sparrow as critical habitat because the designation would most likely interfere with the Comprehensive Everglades Restoration Plan which will return more natural water flows to the Everglades? Balancing these competing interests is complex and difficult but the result is left to the Secretary... As long as his decision will not result in the extinction of the species, the Secretary has broad discretion. The Secretary insists that sub-population will persist, albeit in far less area, and that the exclusion will not result in the extinction of the bird. Plaintiffs attack his reasoning and conclusions. In the end, it is a judgment call that the Secretary is empowered to make. As the Secretary has provided a rational basis for his determinations, summary judgment will be granted to the defendants.
BACKGROUND: The need for a revised designation of critical habitat has been the subject of litigation in D.D.C. for more than a decade. In 2006, the U.S. Fish & Wildlife Service published a proposed rule designating critical habitat for the Cape Sable seaside sparrow. After receiving public comment suggesting that the proposed rule might inhibit Everglades restoration, because the areas proposed to be designated as critical habitat included areas that were expected to become wetter as Everglades restoration moved forward, FWS modified its draft rule and excluded some of those areas from the final critical habitat rule. See discussion in prior ESA blawg entries.
EXCERPT: To be sure, Plaintiffs might legitimately feel that their victory has been snatched from them, just as they expected to obtain the revised critical habitat sought since 1999. However, the Secretary has fully explained his change in position from the proposed designation to the Final Rule, and he cannot be criticized for taking public comments and Everglades restoration into account in revising the designation to exclude Units 1 and 2... The Service prepared it Proposed Rule in a hurry, forced by court deadlines, and possibly with ESA myopia. When evaluating the best available scientific information limited to the Sparrow, it proposed that Units 1 and 2 be designated critical habitat. Push back from other stakeholders forced a re-evaluation -- the exact purpose of public comment and peer review. With a broader view of conservation of the Sparrow, other species in the Everglades, and the Everglades' ecosystem itself, the Service determined that Subpopulation A of the Sparrow would persist without designation; that the Sparrow would not become extinct, and would in fact prosper in a restored Everglades; that designation of Units 1 and 2 would hamper Everglades restoration; and that these considerations rendered exclusion of Units 1 and 2 more beneficial overall than inclusion. In other words, designation of the Units as critical habitat would impose a static restriction on an area that is beginning a dynamic and somewhat unpredictable revitalization. The Service has been remarkably candid and straightforward about the difficult choices it faced, and its reasoning for the Final Rule... The very complexity of these issues shows that more than one reasonable conclusion could be drawn; under such circumstances, the Secretary is entitled to exercise his discretion.
Photo of a Cape Sable seaside sparrow known to researchers as "UCLA" due to banding colors, available from wikipedia.
FULL DISCLOSURE: Keith Rizzardi appeared as counsel for amicus in this case.