Today a Ninth Circuit three-judge panel issued a remarkable legal opinion. The bottom line: Decisions to include areas as part of critical habitat for endangered or threatened species under the ESA are judicially reviewable, while decisions not to exclude areas from critical habitat are not judicially reviewable. It’s one heck of a legal opinion.
Logic dictates that decisions to include or exclude areas from critical habitat are flip sides of the same coin. When deciding which area to include, one necessarily decides which areas not to include, i.e., which areas to exclude. It comes down to a question of what to leave in and what to leave out. But the Ninth Circuit panel didn’t see it that way when it opined that government decisions “not to exclude” areas from critical habitat designation for the green sturgeon species could not be judicially reviewed, on the ground that there was “no law to apply.”
The decision is wrong on the facts and wrong on the law. But this case is of more than academic interest to lawyers. Almost the entire West Coast of the United States has been designated by the government as critical habitat for the green sturgeon, placing substantial roadblocks to economic development and growth in the states of Washington, Oregon, and California. Quality of life issues for millions of Americans are at stake.
We are reviewing our legal options.
On Tuesday, June 2, 2015, Pacific Legal Foundation (PLF) and Competitive Enterprise Institute held a joint event on Capitol Hill to discuss the constitutional limits of the Endangered Species Act (ESA). With U.S. Sen. Mike Lee (R-Utah) and U.S. Rep. … Continue reading
If species aren’t protected under the Endangered Species Act’s burdensome approach, they’ll receive no protection at all. This is an all too common refrain. But it’s a false choice. There are many ways to try to conserve and recover species. … Continue reading
Many friend-of-the-court briefs have been filed supporting People for the Ethical Treatment of Property Owners‘ challenge to the federal government’s unconstitutional Utah prairie dog regulation. These briefs are a reminder of how important the issue is and how unnecessary the … Continue reading
In defending the constitutionality of the Utah prairie dog regulation, the government makes a paradoxical claim. Conceding that federal intrusions into areas of traditional state authority are unconstitutional, the government nonetheless argues that the Necessary and Proper Clause allows the … Continue reading
May 15 was Endangered Species Day. For some farmers, ranchers, and other property owners who can’t develop or use their land in a productive manner because of federal dictates, every day is devoted, unwillingly or not, to endangered species. As … Continue reading
To honor Chief Justice Robert’s first decade on the Supreme Court — more like castigate him — the Constitutional Accountability Center has released a series of papers on the court’s jurisprudence. The most recent of which addresses the court’s environmental … Continue reading
Well-doers often forget the costs that the Endangered Species Act imposes on others. The listing of an animal as threatened or endangered saddles people within its range with some heavy burdens. Property owners may lose control over portions of their own property, which they must leave untouched … Continue reading
The obvious answer must be no, right? Setting aside the absurdity of a town’s leash law being a federal issue, the Constitution forbids the federal government from commandeering state and local governments. In New York v. United States and Printz … Continue reading
If you missed last nights Stossel program‘s coverage of PLF’s prairie dog victory, you can still catch it this Sunday at 10 pm EST on FoxNews. A clip is also available on the show’s homepage. … Continue reading