REAL ESTATE LAW UPDATE
November, 2001

SO THERE'S NO "CRITICAL HABITAT" FOR
THE PYGMY OWL ANYMORE-
NOW WHAT?

By Nathan B. Hannah

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You may have heard that a United States District Court Judge recently voided the U. S. Fish and Wildlife Service's designation of "critical habitat" for the cactus ferruginous pygmy owl. As usual, the reactions publicized in the news media bear little or no relationship to the actual legal impact of the Court's decision. The actual legal impact of the decision is to remove a federal review process that had applied to certain activities on land within the "critical habitat."

First, let's review what a designation of "critical habitat" means under the Endangered Species Act. The designation of certain areas as "critical habitat" means that before a federal agency can take any action (including issue any permit) on land within the "critical habitat," a consultation with the Fish and Wildlife Service is required. Activities by landowners are not impacted by the "critical habitat" designation unless a permit for those activities must be obtained from a federal agency. Activities by landowners that would result in the killing or injuring of an endangered species are prohibited regardless of whether or not the activities occur in "critical habitat."

From this legal background it is easy to see that the removal of the "critical habitat" designation means that landowners in pygmy owl territory who wish to undertake an activity requiring a federal permit are no longer legally required to go through the process of a consultation with the Fish and Wildlife Service, because there is no designated "critical habitat." Landowners are still prohibited from taking any action that would kill or injure a pygmy owl, which includes destroying habitat that is actually occupied by a pygmy owl.

As was the situation when a different District Court Judge ruled that the construction of the new high school in the Amphitheater School District was not a violation of the Endangered Species Act, the Judge's analysis in this case is highly instructive, if any of the news reporters or parties involved would bother to relay it. Here is what the Judge said about how the designation of "critical habitat" should be determined:

The initial determination of what areas constitute "critical habitat" is to be made on the basis of the "best scientific data available." This involves identifying geographic areas containing the physical and biological features considered to be "essential to the conservation of the species." In addition, there must be a consideration of the "probable economic and other impacts" on human activities resulting from the critical habitat designation. Habitat that is not presently occupied by the species may be designated as critical only upon a determination that such areas are in fact essential to ensure the conservation of the species.

The Judge also addressed the question of what would likely happen in the short term if the designation of pygmy owl "critical habitat" was voided while the Fish and Wildlife Service reconsidered the designation:

The Defendants have not presented the Court with any evidence suggesting that significant harm to the species is likely to occur if the critical habitat designation is vacated pending remand. The Defendants concede that the majority of the land designated as critical habitat is not held privately and could not be developed during the time period at issue in this case. The Defendants have not presented any evidence that suggests that private land owners are going to develop the privately held section of land so that the Fish and Wildlife Service cannot designate it as critical habitat. Even assuming such development were to take place during the time it took the Fish and Wildlife Service to reconsider the issue of critical habitat, the Defendant has not presented any evidence that development on the sections of land that are held privately would cause significant harm to the species. Even without a critical habitat designation, the present listing of the species as endangered will still provide some protection against destruction of the pygmy owls' habitat.

The pygmy owl is, as the Court pointed out, still listed as an endangered species under the Endangered Species Act. That means that any action that would kill or injure a pygmy owl is still prohibited. It also means that habitat that is actually occupied by a pygmy owl cannot be destroyed. Unoccupied habitat, however, is not protected in the absence of a "critical habitat" designation, and should not be included in any future designation of "critical habitat" unless it is, in the words of the Court, "in fact essential to ensure the conservation of the species."

The District Court's decision to remove the "critical habitat" designation means that the private land owners whose land was included in the designation are no longer required to go through the consultation process with the Fish and Wildlife Service when seeking a federal permit for an activity on their land. Activities on private land that is not occupied by a pygmy owl are not restricted in any way by the Endangered Species Act unless and until the Fish and Wildlife Service, applying the criteria described by the Court, designates the land as "critical habitat."

This communication is designed to bring legal developments of interest to the attention of our clients and others. It should not be relied upon as a substitute for specific legal advice in a particular matter. For further information on any of the subjects discussed, or for legal advice in connection with any particular matter, please contact us.