ELR Citation: ELR 20614
No(s). 00-2050 (10th Cir. May 11, 2001)

The court sets aside the critical habitat designation (CHD) for the southwestern willow flycatcher because the U.S. Fish and Wildlife Service's (FWS') adoption of a baseline approach to measure the economic impact of the flycatcher CHD was an erroneous construction of the Endangered Species Act (ESA). The baseline approach adopted by FWS utilizes a "but for" method for determining what economic impacts result from the CHD. Thus, unless an economic impact would not result but for the CHD, that impact is attributable to a different cause and is not included in the analysis. The court first holds that Congress intended that FWS conduct a full analysis of all of the economic impacts of a CHD, regardless of whether the impacts are attributable co-extensively to other causes. Thus, FWS' baseline approach to economic analysis is not in accord with the language and intent of the ESA.

Counsel for Plaintiffs
Marc R. Stimpert
Budd-Falen Law Offices
623 W. Second St., Cheyenne WY 82001
(307) 632-5105

Counsel for Defendants
Katherine J. Barton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Tacha, J. Before Kelly and Lungstrum, + JJ.

+ Honorable John W. Lungstrum, Chief District Judge for the District of Kansas, sitting by designation.