PLF sues over sturgeon listing

From the Pacific Legal Foundation:

Sacramento, CA; March 10, 2011: The federal government’s 2009 critical habitat designation for the green sturgeon must be withdrawn and reworked, says a lawsuit filed today by attorneys with Pacific Legal Foundation, representing San Francisco Bay Area business and landowners associations.

The suit points out that regulators illegally set aside vast areas as green sturgeon habitat, up and down the West Coast and in California’s Central Valley, without even considering economic impacts in some areas and without properly balancing economic considerations, in violation of the Endangered Species Act (ESA). In addition, the suit was brought because the government utterly failed to comply with the requirements of the National Environmental Policy Act (NEPA).

Donor-supported PLF is the leading legal watchdog that litigates, without charge, for limited government, property rights, free enterprise, and a balanced approach to environmental regulations. In this lawsuit, PLF attorneys represent the Building Industry Association of the Bay Area and the Bay Planning Coalition, whose members are directly injured by the illegal government rule.

The case is Building Industry Association of the Bay Area and Bay Planning Coalition v. National Marine Fisheries Service. The complaint may be viewed at PLF’s website: www.pacificlegal.org. A PLF video on the case also may be viewed at PLF’s website.

"This critical habitat designation was not only illegal, it was reckless, because officials ignored the potential pain for the economy in many of the areas they designated as critical habitat," said Pacific Legal Foundation attorney Ted Hadzi-Antich. "As tens of millions of Americans struggle to find jobs, comfortable federal regulators designated much of the West Coast as critical habitat for the green sturgeon, while refusing to comply with economic balancing requirements in the ESA. The government’s failure to consider the appropriate economic criteria and tests for critical habitat designation under the ESA, and its failure to consider alternatives under NEPA, is, quite frankly, flat-out illegal."

"By definition, critical habitat designations curtail economic activity," Hadzi-Antich continued. "So common sense – and federal law – require regulators to show care, nuance, and balance in making these decisions, but the regulators did not do so in this case."

Green sturgeon critical habitat: More than 12,000 square miles at issue

The green sturgeon has been listed as a "threatened" species under the Endangered Species Act since April 7, 2006. The critical habitat designation for the green sturgeon was issued in its final form by the National Marine Fisheries Service on October 9, 2009, and it covers a vast area in the waters, shorelines, and land areas of California, Oregon, and Washington.

Included are:

1) Coastal U.S. marine waters within 60 fathoms depth from Monterey Bay, Calif. (including Monterey Bay), north to Cape Flattery, Wash., including the Straight of Juan De Fuca, Wash., to its U.S. boundary;

2) the Sacramento River, lower Feather River, and lower Yuba River in California;

3) the Sacramento-San Joaquin Delta and Suisin, San Pablo, and San Francisco bays in California;

4) the lower Columbia River Estuary; and

5) certain coastal bays and estuaries in California (Humboldt Bay), Oregon (Coos Bay, Winchester Bay, Yaquina Bay, and Nehalem Bay), and Washington (Willapa Bay and Grays Harbor).

In total, the final rule designates approximately 11,421 square miles of coastal marine habitat, 897 square miles of estuarine habitat, and 320 miles of freshwater riverine habitat.

"All responsible Americans care about environmental protection, including protecting the green sturgeon, but a careful, balanced approach is essential, so we don’t derail ourselves economically in the name of protecting the environment," said Hadzi-Antich. "Critical habitat designations have the effect of limiting productive uses of property. Because the harms to human beings can be significant, federal law requires regulators to carefully balance economic impacts against conservation goals before designating any area as critical habitat. The National Marine Fisheries Service simply refused to follow this legal requirement when it decided to set aside as green sturgeon habitat large swaths of territory they viewed as high value areas. In short, the government broke the law in its misguided efforts to implement it."

The Endangered Species Act requirement for considering human economic impacts is set forth at 16 U.S.C. section 1531, et seq.

Additionally, under NEPA (42 U.S.C. section 4332(2)(C)), the Environmental Impact Statement for any regulation that would "significantly affect[] the quality of the human environment" must include an assessment of alternatives to the regulatory action.

"Put simply, the regulators broke the law when they designated critical habitat for the green sturgeon," said Hadzi-Antich. "This lawsuit isn’t just about the importance of a balanced approach to economic regulations. It’s also about the rule of law: Government has to comply with the law, just like the rest of us."

Plaintiffs in challenging the feds’ failure to weigh the economic impacts

PLF attorneys represent two plaintiff organizations in this case.

The Building Industry Association of the Bay Area (BIABA), a nonprofit association of builders, contractors, and related trades and professions involved in the residential construction industry, is bringing this lawsuit on its own behalf and on behalf of its members. BIABA represents the interests of its members and the residential construction industry in areas of California improperly designated by Defendants as critical habitat under the final rules, including the San Francisco Bay Area and the Yolo and Sutter bypasses adjacent to the Sacramento River.

The ability of these owners and developers to use their properties is undermined by the critical habitat designation because of strict land use restrictions that are triggered for the affected property.

Paul Campos, senior vice president and general counsel for the BIABA, issued this statement:

"It is ironic that at a time when there is an emerging consensus that federal regulations must take into account the impact on jobs and economic health, here we have a federal statute that requires just that – yet it is being ignored and undermined by the very federal agency charged with implementing the law. We are fortunate PLF is there to help us fight against this type of illegal government activity and to give us our day in court. The livelihoods of many property owners and businesses are at issue."

The Bay Planning Coalition is a nonprofit membership-based organization whose mission is to ensure a healthy and thriving San Francisco Bay Area for commerce, recreation, and the natural environment. BPC represents the interests of, among others, businesses and property owners in the San Francisco Bay Area whose land has been designated as critical habitat under the final green sturgeon rules.

John Coleman, executive director of the Bay Planning Coalition, issued this statement: "The rules go way too far in designating critical habitat in vast areas without properly considering economic impacts. This legal action is necessary to make sure the government plays by the rules."