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Pacific Legal Foundation Files Suit Challenging NOAA’s Green Sturgeon Critical Habitat
Posted on Friday, March 11, 2011 (PST)

The federal government’s 2009 critical habitat designation for the green sturgeon must be withdrawn and reworked, according to a lawsuit filed Thursday in the District of Columbia’s U.S. District Court by the Pacific Legal Foundation.


The complaint says that NOAA Fisheries Service illegally set aside vast areas as green sturgeon critical habitat, up and down the West Coast and in California’s Central Valley, without considering economic impacts in some areas and without properly balancing economic considerations, in violation of the Endangered Species Act.


In addition, the lawsuit claims the federal government failed to comply with the requirements of the National Environmental Policy Act.


The southern distinct population segment, or DPS, of North American green sturgeon was listed by NOAA Fisheries as threatened under the ESA on April 7 2006. The agency followed up as required by the ESA by designating critical habitat for the species on Oct. 9, 2009.


A critical habitat designation only applies when federal projects, permits or funding are involved. It does not apply to activities on private land that do not involve a federal agency. Private land owners may continue to use the habitat as long as their activities do not require a federal permit, receive federal funding, or involve a federal project.


The designation is intended to protect the sturgeon by requiring all federal agencies to ensure that actions they fund authorize, or carry out are not likely to destroy or adversely modify the critical habitat.


Donor-supported PLF 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 say they are directly injured by the government rule.


The complaint 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 said. "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."


The green sturgeon critical habitat designation includes:


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

-- the Sacramento River, lower Feather River, and lower Yuba River in California;

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

-- the lower Columbia River estuary; and

-- 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).


The areas designated comprise approximately 320 miles of freshwater river habitat, 897 square miles of estuarine habitat, 11,421 square miles of coastal marine habitat, 487 miles of habitat in the Sacramento-San Joaquin Delta, and 135 square miles of habitat within the Yolo and Sutter bypasses, part of the Sacramento River Flood Control Project.


"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 building association represents the interests of its members and the residential construction industry in areas of California designated as critical habitat under the final rules, including the San Francisco Bay Area and the Yolo and Sutter bypasses adjacent to the Sacramento River. It was 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.


"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,” said Paul Campos, senior vice president and general counsel for the BIABA.


The co-plaintiff -- 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.


"The rules go way too far in designating critical habitat in vast areas without properly considering economic impacts,” John Coleman, BPC executive director, said. “This legal action is necessary to make sure the government plays by the rules."


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