Business Interests Lose Sturgeon Habitat Fight

SAN FRANCISCO (CN) - Regulators properly considered economic impacts in setting a critical habitat for the threatened green sturgeon, a federal judge ruled.

The National Marine Fisheries Service (NMFS) listed the green sturgeon as threatened in August 2006 and issued a final rule on the sturgeon's critical habitat in 2009.

In a March 2011 complaint, the Building Industry Association of the Bay Area and the Bay Planning Coalition claimed that the designation did not consider economic impacts and that it violated the National Environmental Policy Act.

Though they acknowledged that "the ultimate decision whether to exclude any area from critical habitat is discretionary," the groups said the service failed to "balance the benefits" in high conservation areas.

The agencies disagreed, claiming that the Endangered Species Act does not force them "to use any particular methodology" when analyzing economic impacts.

U.S. District Judge Phyllis Hamilton sided with the agencies Friday, agreeing that the act did not create a mandatory balancing test.

"Based on the plain text of the statute, even if the secretary does determine that the benefits of exclusion outweigh the benefits of designation, he is still not obligated to exclude that area from designation," she wrote. "Instead, he 'may exclude' the area from designation. Accordingly, even if NMFS was somehow obligated to perform a balancing test, it was not obligated to exclude any area from designation regardless of the results of that balancing test."

She also found that the Fisheries Service satisfied the requirement to consider economic impacts by, among other things, determining "dollar thresholds" where economic impacts outweighed "conservation benefits" for all areas, even high conservation areas (HCV).

"While plaintiffs obviously disagree with NMFS's rule that 'all areas with a conservation value rating of 'High' were not eligible for exclusion regardless of the level of economic impact because of the threatened status of the green sturgeon,' the record shows that NMFS did properly consider the economic impacts before deciding that HCV areas would be ineligible for exclusion, and thus satisfied its duty under section 4(b)(2)" of the act, Hamilton wrote.

Citing a lack of jurisdiction under the Administrative Procedures Act, the judge declined to analyze the findings of the Fisheries Services.

Hamilton also dismissed the claims under the National Environmental Protection Act (NEPA) for lack of legal standing.

To sue under NEPA, a plaintiff must prove that environmental damage is at issue, Hamilton noted.

In one of their motions, the building groups argued that the critical habitat designation "interferes with their ability not only to achieve economic goals, but also to preserve and maintain for their members a physical environment that can support and sustain those economic goals."

Hamilton was not convinced.

"While plaintiffs may have the 'mission' of engaging in commerce in a way that minimizes damage to the environment, that is not the same as alleging that the environment itself would be harmed as a result of ESA designations, which is the proper test for NEPA standing," she wrote. (lines 27 p. 11 - line 2 p. 12)

Finding that the complaint failed on all counts, Hamilton granted summary judgment to the defendants: the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service.

Theodore Hadzi-Antich argued the case for the business and property groups. Justice Department attorney Kristin Floom argued for the federal agencies. The Center for Biological Diversity, which joined as defendant-intervenor, appeared through Emily Jeffers.

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