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Building Indus. Ass'n of the Bay Area v. United States Department of Commerce

United States Court of Appeals, Ninth Circuit

July 7, 2015

BUILDING INDUSTRY ASSOCIATION OF THE BAY AREA; BAY PLANNING COALITION, Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; UNITED STATES NATIONAL MARINE FISHERIES SERVICE; GARY LOCKE, in his official capacity as Secretary for the United States Department of Commerce; ERIC C. SCHWAAB, in his official capacity as Assistant Administrator for the United States National Marine Fisheries Service, Defendants-Appellees, CENTER FOR BIOLOGICAL DIVERSITY, Intervenor-Defendant-Appellee

Argued and Submitted, Pasadena, California March 5, 2015.

Appeal from the United States District Court for the Northern District of California. DC No. 4:11-cv-04118-PJH. Phyllis J. Hamilton, Chief District Judge, Presiding.

SUMMARY[**]

Endangered Species Act

The panel affirmed the district court's summary judgment in favor of the United States Department of Commerce and others in an action brought by property owners under the Endangered Species Act and the Administrative Procedure Act, challenging the designation of critical habitat for a threatened species, the southern distinct population of green sturgeon, and the regulations implementing that designation.

The panel held that, when considering the economic impact of its designation, the National Marine Fisheries Service complied with section 4(b)(2) of the Endangered Species Act and was not required to follow the specific balancing-of-the-benefits methodology argued for by appellants. The panel also held that section 4(b)(2) establishes a discretionary process by which the agency may exclude areas from designation, but does not set standards for when areas must be excluded from designation. Accordingly, an agency's discretionary decision not to exclude an area from designation is not subject to judicial review. Finally, the panel held that appellants' claim under the National Environmental Policy Act failed because the Act does not apply to critical habitat designations.

Theodore Hadzi-Antich (argued) and M. Reed Hopper, Pacific Legal Foundation, Sacramento, Californiam, for Plaintiffs-Appellants.

David C. Shilton (argued), Robert H. Oakley, and Kristen Floom, Attorneys, and Robert G. Dreher, Acting Assistant Attorney General, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees.

Emily Jeffers (argued) and Miyoko Sakashita, Center for Biological Diversity, San Francisco, California, for Intervenor-Defendant--Appellee.

Before: Harry Pregerson, Barrington D. Parker, Jr.[*], and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Parker.

OPINION

Barrington D. Parker, Jr., Senior Circuit Judge:

This appeal, arising under the Endangered Species Act (" ESA" ) and the Administrative Procedure Act (" APA" ), requires us to review the designation of critical habitat for a threatened species--the southern distinct population segment of green sturgeon (the " Southern DPS of green sturgeon" )--and the regulations implementing that designation. The context for this litigation is the impact of the designation on local property owners and on the residential construction industry in the Sacramento-San Joaquin Delta and within the Sacramento River basin of Northern California. Plaintiffs-Appellants Building Association of the Bay Area (" BIABA" ) and the Bay Planning Coalition (" BPC" ) appeal from a judgment of the District Court for the Northern District of California (Phyllis J. Hamilton, J.). The district court concluded that the agencies' procedures leading to the designation complied with the ESA and the APA, granted Defendants' motions for summary judgment and dismissed the case.

Appellants' main contention on this appeal is that, when designating critical habitat for the Southern DPS of green sturgeon, the National Marine Fisheries Service (the " NMFS" ) violated section 4(b)(2) of the ESA by failing to follow a specific, obligatory methodology imposed by that section, which required the agency to balance the conservation benefits of designation against the economic benefits of exclusion from designation. Appellants also contend that NMFS's decision not to exclude certain areas from critical habitat designation is subject to judicial review and that NMFS abused its discretion in not excluding those areas. Finally, Appellants challenge the dismissal of their claim that, as part of the designation process, NMFS was required to comply with the National Environmental Policy Act (" NEPA" ) and failed to do so.

As explained below, we conclude that, when considering the economic impact of its designation, NMFS complied with section 4(b)(2) and was not required to follow the specific balancing-of-the-benefits methodology argued for by Appellants. We also conclude that section 4(b)(2) establishes a discretionary process by which the agency may exclude areas from designation, but does not set standards for when areas must be excluded from designation. Accordingly, an agency's discretionary decision not to exclude an area from designation is not subject to judicial review. Finally, Appellants' NEPA claim fails because NEPA does not apply to critical habitat designations. See Bear Valley Mutual Water Co. v. Jewell, F.3d,, 2015 WL 3894308 (9th Cir. Jun. 25, 2015); Douglas Cnty. v. Babbitt, 48 F.3d 1495, 1501-08 (9th Cir. 1995). Accordingly, we affirm.

BACKGROUND

I.

The Southern DPS of green sturgeon is one of two population segments of green sturgeon, a bottom-dwelling fish that occupies coastal estuaries and marine waters from Mexico to Alaska. Final Rulemaking to Designate Critical Habitat, 74 Fed.Reg. 52,300, 52,301 (Oct. 9, 2009). The Southern DPS of green sturgeon originates from coastal watersheds south of the Eel River in northwestern California, but the only known spawning population of the species is located in the Sacramento River. Construction of dams and associated structures have altered the Southern DPS of green sturgeon's habitat by substantially increasing the fish's spawning area and reducing the success of its spawning. Proposed Threatened Status for Southern Distinct Population of North ...


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