Habitat Restored for Endangered Kangaroo Rat in California

Posted by Stephanie Ulmer, Guest Blogger on April 14, 2011

In Ctr. for Biological Diversity v. United States Fish & Wildlife Serv., 2011 U.S. Dist. LEXIS 2349 (C.D. Cal. Jan. 8, 2011), a challenge was brought to a decision of the U.S. Fish & Wildlife Service, which was made under the authority of the Endangered Species Act, 16 U.S.C. § 1531 et seq., regarding the “kangaroo rat” and his “critical habitat.” A kangaroo rat is actually not a rat but resembles one and hops on its large hind legs, and in 1998, the Service designated the San Bernardino kangaroo rat (SBKR) as an endangered species. In 2000, the Service proposed designating 55,408 acres as critical habitat for the SBKR, and on April 23, 2002, the Service made a final designation of 33,295 acres. In 2005, building industry and agricultural organizations challenged the final designation in court, contending that it was overbroad. The Service settled that case by agreeing to issue a revised critical habitat designation. On October 17, 2008, after a period of public comment on the proposed revised habitat designation, the Service published the final revised critical habitat designation, which covered 7,779 acres. This was a substantial change in the number of acres for this endangered animal.

In their suit, Plaintiffs challenged the Service’s revised final critical habitat designation for the SBKR on three grounds. First, they contended that the Service’s use of the "core population" methodology contravened the first prong of the Endangered Species Act’s definition of critical habitat–i.e., the "occupied habitat" portion (16 U.S.C. § 1532(5)(A)(i))–as well as 50 C.F.R. § 424.12. Second, Plaintiffs argued that the Service improperly failed to include areas unoccupied by the SBKR in the critical habitat designation. Finally, they also argued that the Service’s decisions to exclude certain portions of the species’ critical habitat under the authority of § 4(b) of the Endangered Species Act were improperly made.

The court agreed with Plaintiffs, holding that, “While this Court owes substantial deference to the Service’s use of technical analysis in its decision-making, the Service must be able to demonstrate that such analysis actually took place and that the decision-making process may be fairly described as rational… and it appeared that the Service failed to follow the Endangered Species Act’s statutory directives in designating the SBKR’s critical habitat.” Further, the court wrote, since the Service did not supply an explanation for its reliance on the existence of a core population as an indicator of the “physical or biological features essential to the conservation of the species,” its 2008 designation of the SBKR’s critical habitat may be viewed as arbitrary and capricious, in violation of the Administrative Procedure Act.  Alternatively, the court ruled, the 2008 critical habitat designation could be set aside because the core population methodology also contravened the regulatory framework that governed the Service’s designation of critical habitat. As such, the 2008 revised final critical habitat designation for the SBKR was vacated by Judge Anne E. Thompson, the 2002 final critical habitat designation was reinstated, and the case was remanded to the Service to consider a second revised final critical habitat designation.

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