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Archived: Environmental Laws Legal Cases

Since its creation in 1977, MSLF has been one of the Nation's leading legal centers fighting environmental overkill and the use of so-called environmental statutes to achieve other public policy objectives. MSLF believes, not only in a sensible, science-based balance between environmental goals and economic growth, but in making people part of the environmental equation. MSLF has achieved a number of important legal precedents in its 25 year fight for reasonable environmental policy.

Building Industry Association of the Bay Area v. U.S. Department of Commerce

Legal Question:

In light of the Administrative Procedure Act’s strong presumption in favor of judicial review of final agency action, is a decision on whether to exclude areas from critical habitat immune from such review? 


Building Industry Association of the Bay Area and Bay Planning Coalition


United States Department of Commerce; National Oceanic and Atmospheric Administration; United States National Marine Fisheries Service; Gary Locke, Secretary of the U.S. Department of Commerce; Eric C. Schwaab, Assistant Administrator for the U.S. National Marine Fisheries Service

Amicus Curiae:

Mountain States Legal Foundation


Supreme Court of the United States
In 2006, the National Marine Fisheries Service (NMFS) listed the southern distinct population segment of the North American green sturgeon as “threatened” under the ESA.  In 2009, the NMFS designated over 11,000 square miles of marine habitat, 900 square miles of estuary habitat, and hundreds of miles of riverine habitat as critical habitat for the sturgeon.  Despite many written comments requesting exclusion of specific areas from the critical habitat designation on the basis of significant economic impacts, the NMFS refused to exclude areas it deemed of “high conservation value” from the designation due to economic impacts:  “[N]o economic impact could outweigh the benefit of designation for these areas.”  Nonetheless, the NMFS did exclude “high conservation value” areas from the designation based on national security and Indian tribal interests.

Two groups sued, arguing the NMFS’s process for considering and making habitat exclusions was arbitrary and capricious.  On November 30, 2012, a federal district court ruled the NMFS’s decision was unreviewable under the APA’s exception to judicial review for action committed to agency discretion by law.  On July 7, 2015, the Ninth Circuit affirmed, holding that the ESA does not require the NMFS to exclude areas from critical habitat designation based on economic impacts.  Because the ESA uses the word “may” not “must” in specifying that the NMFS “may exclude an area from critical habitat,” the court concluded that the NMFS’s decision was insulated from judicial review.  The Ninth Circuit denied rehearing on January 6, 2016; the petition was filed on May 3, 2016.  

On June 3, 2016, MSLF filed a friend of the court brief in support of the petitioners.  
No Status Updates
  • Designation of Critical Habitat Requires Economic Impact Analysis

    Jun 3, 2016
    A western nonprofit, public-interest legal foundation with decades of experience battling illegal abuses of federal law by administrative agencies today urged that the Supreme Court of the United States review a ruling of the U.S. Court of Appeals for the Ninth Circuit that exempts agencies from considering economic impact when they designate “critical habitat” pursuant to the Endangered Species Act (ESA).

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