January 15, 2003
JUDGE BLASTS FEDS FOR REFUSING TO PROTECT 8.9 MILLION ACRES OF FOREST AND HIDING CRITICAL INFORMATION FROM PUBLIC REVIEW
ORDERS EXPANDED CRITICAL HABITAT DESIGNATION ORDERED FOR MEXICAN SPOTTED OWL
Ruling may lead to expansion of protected areas across nation: Bush administration has excluded over 35.9 million acres from protection
Bury also ruled that the Fish and Wildlife Service illegally withheld critical information from the public and peer reviewers, and refused to consider protecting essential, but currently unoccupied, owl habitat.
The order was issued in response to a 2001 lawsuit by the Center for Biological Diversity, Navajo environmental group Dine CARE, and the Center for Native Ecosystems. Bury ordered the Fish and Wildlife Service to issue a new critical habitat proposal in three months and finalize it within six months.
The Endangered Species Act requires the designation and protection of specific critical habitat zones for all threatened and endangered species. The zone must include all areas essential to the conservation of the species, and be managed to ensure the species fully recovers from endangerment. It is impermissible to adversely modify critical habitat areas. Critical habitat designation is opposed by industry groups because is establishes clear definitions of what areas must be protected and what standard of protection must be implemented. They prefer the more generic aspects of the Endangered Species Act that rely heavily on agency discretion and thus are more susceptible to political pressure and less susceptible to citizen review and legal challenge. Significant reform of grazing, mining, development, and road construction policies in New Mexico, Arizona, and California have shown critical habitat to be a powerful habitat protection and policy reform tool.
The Clinton Administration issued a proposal to designate 13.5 million acres of critical habitat in AZ, NM, UT, and CO for the threatened Mexican spotted owl on July 21, 2000. Overriding the recommendation of U.S. Fish and Wildlife Service biologists, the Bush Administration issued a final designation on February 1, 2001 deleting 8.9 million acres, including all eleven national forests in Arizona and New Mexico. The vast majority of owls, owl habitat, and logging occur on the excluded forests. The final critical habitat, instead focused on National Park Service and Bureau of Land Management lands where no logging, and thus, no controversy, occurs. Judge Bury rightfully called this designation strategy nonsensical.
Bury rejected the Bush administrations claim that the Arizona and New Mexico national forests should be excluded because they are being adequately managed under the federal Mexican Spotted Owl Recovery Plan. Bury noted that the U.S. Forest Service had agreed to implement only part of the plan, that it had repeatedly violated even the part that it agreed to, and that, in principle, a management plan is not a substitute for critical habitat. According to Bury:
"Forest Services Forest Plans are not adequate and are, in fact legally insufficient . . . the Forest Services delay and extreme reluctance in complying with not only the ESA but numerous court orders, as well, raises serious doubts about the Forest Services commitment to protecting the Mexican spotted owl and its habitat. Indeed, the Forest Service made affirmative efforts to block the listing of the owl as a threatened species. Therefore, the adequacy of the Forest Services protection of the Forest Services protection of the owl is inherently suspect. p. 21.
"Defendant [i.e. Secretary of Interior] knew or should have known that their decision not to designate critical habitat in Arizona or New Mexico on the basis that it would not provide additional protection was unlawful. Indeed Defendant and FWS have been told by no fewer than three federal courts, including the Ninth Circuit, that its position is untenable and in contravention to the ESA. Nevertheless, with apparent disregard of the courts, Defendant decided not to designated critical habitat . . . on the basis that adequate plans were already in place and additional protection was unnecessary. This argument has already failed three times. It fails yet again here. p. 20.
Citing the paramount importance of habitat loss to the great majority of endangered species, Bury declared that Formal designation of critical habitat is a key protection to endangered and threatened species. He noted that the Center for Biological Diversity had fought a valiant and persistent battle for over a decade to protect the owl and its habitat.
The Mexican spotted owl was the first of many critical habitat proposals slashed by the Bush administration. The Bush administration has designated 32 critical habitats, all under court order. It has not once responded to peer reviewers and public comment by increasing the amount of protected area between a proposed and final rule. In 77% of the cases, it decreased the size of the protected area, on average by 50%. In all, the Bush administration deleted over 35.9 million acres of proposed protected critical habitat areas. In many of these cases, it used the same rational which was struck down by Judge Bury.