Arizona Cattle Growers' Pyrrhic Victory for Critical Habitat

Brauer, Stephanie
May 2011
Ecology Law Quarterly;2011, Vol. 38 Issue 2, p369
Academic Journal
Since the inception of the Endangered Species Act, litigants from both sides of the political spectrum have challenged the US. Fish and Wildlife Service's critical habitat designations, with development interests typically arguing to limit the designation of critical habitat and environmental interests arguing to expand it. For much of the Act's history, the Fish and Wildlife Service and the courts linked protecting critical habitat to preventing the jeopardy or extinction of a species. Yet, even after multiple circuit courts of appeals invalidated this approach in favor of connecting critical habitat to the conservation or recovery of a species, the deficient status quo of preventing harm instead of promoting recovery endures. Arizona Cattle Growers is one example. At first glance Arizona Cattle Growers' Association v. Salazar, a recently decided Ninth Circuit case about the critical habitat designation of the Mexican spotted owl, appears to be just another addition to the litigious history of the Endangered Species Act. While the case may be counted as a conclusive victory for the environmental groups that intervened to ensure the preservation of the Mexican spotted owl's critical habitat, the focus of the court's discussion on whether the Fish and Wildlife Service designated unoccupied areas as occupied critical habitat highlights a less promising aspect of the decision: the ESA's ineffectiveness at promoting species recovery instead of merely preventing their extinction.


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