Bldg. Indus. Ass’n V. U.S. Dep’t of Commerce

Under 4(b)(2) of the Endangered Species Act, after the agency considers economic impact, the entire exclusionary process is discretionary and there is no particular methodology that the agency must follow.

Upon wildlife agencies petition, the National Marine Fisheries Service (“NMFS”) concluded the southern distinct population segment of green sturgeon (“Southern DPS of green sturgeon”) were a threatened species under the Endangered Species Act (“ESA”). After an economical and biological analysis, the NMFS promulgated a rule designating certain areas as critical habitats for the Southern DPS of green sturgeon. Plaintiffs, organizations who represent parties who suffered an adverse effects by NMFS’s designation, filed suit in district court alleging the NMFS violated the ESA and the Administrative Procedure Act’s (“APA”) because 4(b)(2) of the ESA requires an agency to follow a “balancing-of-the-benefits” methodology when considering the economic impact of designating critical habitat; the discretionary decision to include or not exclude an area from designation was subject to judicial review, and that under section 702 of the APA, the NMFS failed to follow NEPA by preparing either an Environmental Assessment or Impact Statement. The district court concluded NMFS followed procedures in line with EPA and APA, and thus granted Defendant’s summary judgment. On appeal, the Ninth Circuit Court affirmed and dismissed case. The panel reasoned the NMFS complied with section 4(b)(2) because the statute states that after the agency considers economic impact, the entire exclusionary process is discretionary, and there is no particular methodology that the agency must follow. Further, the panel concluded the discretionary decision to include or not exclude an area from designation was not subject to judicial review; citing Bear Valley, wherein it explained section 701(a)(2) excludes agency action from judicial review if the agency action is “committed to agency discretion by law.” Lastly, the panel concluded as a matter of law, the NEPA claim fails because the act does not apply to critical habitat designation. AFFIRMED.