United States Ninth Circuit

In a challenge to the United States Fish and Wildlife Service's (FWS) designation of critical habitat for the Mexican Spotted Owl, summary judgment for defendants is affirmed where: 1) the FWS permissibly interpreted the word "occupied" in the Endangered Species Act to include areas where the owl was likely to be present and, applying this definition, the FWS designated only -occupied- areas; 2) the FWS did not arbitrarily and capriciously treat unoccupied areas as occupied; and 3) even if the FWS listed the species concurrently with designating critical habitat, listing the species is a necessary antecedent to designating habitat.

Appellate Information

• Argued 11/04/2009
• Decided 06/04/2010
• Published 06/04/2010

Judges

• Before BETTY B. FLETCHER, WILLIAM C. CANBY, JR., and SUSAN P. GRABER, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Norman D. James, Fennemore Craig, Phoenix, AZ, for the plaintiff-appellant, Arizona Cattle Growers' Association., Karen Budd-Falen, Budd-Falen Law Offices, LLC, Cheyenne, WY, for amicus curiae, New Mexico Cattle Growers' Association.


• For Appellees:
  
• Andrew C. Mergen, Rebecca Riley, & Robert H. Oakley, U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the defendant-appellee, U.S. Fish and Wildlife Service., Marc D. Fink, Center for Biological Diversity, Duluth, MN, and Matt Kenna, Western Environmental Law Center, Durango, CO, for defendant-intervenor-appellee, Center for Biological Diversity.