ELR Citation: ELR 20102
No(s). 04-55084 (9th Cir. Jun 5, 2006)

The court holds that the U.S. Fish and Wildlife Service's (FWS') decision not to designate critical habitat for the stickleback is not arbitrary and capricious, and that the FWS is not required to ensure compliance with federal and state laws before issuing an incidental take statement to a company allowing it to mine in areas that may impact the fish. Although the FWS proposed to designate critical habitat for the stickleback in 1980, a proposal to designate critical habitat for an endangered species listed prior to the 1982 Endangered Species Act Amendments does not create a mandatory duty to make that designation final. Congress conferred discretion on the FWS to choose whether to designate critical habitat for endangered species listed before 1982. Nor is the FWS required to ensure compliance with federal and state law before issuing the incidental take statement. There is simply no evidence that the FWS has ever interpreted its regulatory definitions to impose a sweeping duty to require compliance with all other laws before issuing an incidental take statement. Such a requirement would impose an enormous burden on the FWS, which is already operating with a serious backlog of mandatory duties. The court, therefore, upholds a lower court's grant of summary judgment in favor of the FWS and the mining company.