Building Industry Ass'n of the Bay Area v. United States Department of Commerce
792 F.3d 1027
9th Cir.2015Background
- ESA designation of critical habitat for the Southern DPS green sturgeon and implementing regulations are at issue against BIABA, BPC, and CBD-intervenor.
- NMFS designated habitat across marine, estuary, and riverine areas, with fourteen areas excluded from designation.
- Appellants challenge NMFS’s compliance with ESA §4(b)(2) and argue for a mandatory balancing methodology weighing economic impact against conservation benefits.
- District court granted summary judgment for agencies; NMFS’s analysis considered economic, security, and other impacts, including HCV areas.
- Appellants also allege NMFS failed to conduct NEPA review, and seek judicial review of NMFS’s exclusion decisions.
- The panel holds NMFS complied with §4(b)(2); exclusion decisions are discretionary and not reviewable; NEPA does not apply to critical habitat designations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §4(b)(2) requires a specific balancing method. | Appellants: there is a mandatory balancing methodology in §4(b)(2). | NMFS: §4(b)(2) gives discretion; no fixed methodology required. | No mandatory balancing method; discretion governs exclusion. |
| Did NMFS consider economic impact for all areas, including high-conservation-value areas? | Appellants: failed to consider economic impact for HCV areas. | NMFS considered economic impacts across all areas, including HCV. | NMFS considered economic impact for all areas; HCV areas could not be excluded. |
| Is NMFS's decision not to exclude areas from designation judicially reviewable? | Appellants contend such decisions are reviewable. | Agency discretion in exclusion is unreviewable. | Not reviewable; exclusion decisions are discretionary and reviews do not apply. |
| Does NEPA apply to critical habitat designations? | Appellants: NEPA analysis required. | NEPA does not apply to critical habitat designations. | NEPA claim fails; NEPA does not apply to critical habitat designations. |
| Standard of review for APA challenges to agency action in this context? | N/A | N/A | APA arbitrary-and-capricious standard governs review of NMFS actions. |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (Supreme Court 1997) (consideration of economic impacts under ESA, not a fixed balancing test)
- Heckler v. Chaney, 470 U.S. 821 (Supreme Court 1985) (review of agency discretion when statute precludes meaningful standard)
- Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (NEPA not required for certain ESA actions; habitat designation context)
- Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (APA review of agency action; narrow but searching scrutiny)
- Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) (ESA designation reasoning and NEPA considerations in context)