Home Blds Assoc Nc v. Usfws ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOME BUILDERS ASSOCIATION OF 
NORTHERN CALIFORNIA; BUILDING
INDUSTRY LEGAL DEFENSE
FOUNDATION; CALIFORNIA BUILDING
INDUSTRY ASSOCIATION; CALIFORNIA
STATE GRANGE; GREENHORN
GRANGE,
Plaintiffs-Appellants,
v.
UNITED STATES FISH AND WILDLIFE
SERVICE; UNITED STATES No. 07-16732
DEPARTMENT OF THE INTERIOR; GALE
A. NORTON, in her official capacity  D.C. No.
CV-05-00629-WBS
as Secretary of Interior; H. DALE
HALL, in his official capacity as OPINION
Director of U.S. Fish and Wildlife
Service; MATTHEW J. HOGAN, in
his official capacity as Acting
Director of U.S. Fish and Wildlife
Service,
Defendants-Appellees,
BUTTE ENVIRONMENTAL COUNSEL;
CALIFORNIA NATIVE PLANT SOCIETY;
DEFENDERS OF WILDLIFE,
Defendants-Intervenors-Appellees.

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
June 15, 2010—San Francisco, California
11229
11230 HOME BUILDERS ASSOCIATION v. USFWS
Filed August 9, 2010
Before: Pamela Ann Rymer and Raymond C. Fisher, Circuit
Judges, and Rebecca R. Pallmeyer, District Judge.*
Opinion by Judge Pallmeyer
*The Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
HOME BUILDERS ASSOCIATION v. USFWS 11233
COUNSEL
M. Reed Hopper, Meriem L. Hubbard and Damien M. Schiff
(argued), Pacific Legal Foundation, Sacramento, California,
for the plaintiffs-appellants.
Ronald J. Tenpas, Andrew Mergen, Kevin W. McArdle and
Robert H. Oakley (argued), U.S. Department of Justice,
Washington, D.C., for the defendants-appellees.
Brian P. Segee, Defenders of Wildlife, Washington, D.C., and
Neil Levine, Denver, Colorado, for the defendant-intervenors-
appellees.
11234 HOME BUILDERS ASSOCIATION v. USFWS
OPINION
PALLMEYER, District Judge:
Home Builders Association of Northern California1 and
other industry groups (collectively “Home Builders”) chal-
lenge the designation by the U.S. Fish and Wildlife Service
(“FWS”) of about 850,000 acres of land as critical habitat for
fifteen endangered or threatened vernal pool species. In the
district court, Butte Environmental Council and other conser-
vation groups (collectively “Butte Environmental”) inter-
vened as defendants in support of the designation, and they
have participated in the appeal. The district court upheld the
designation, and Home Builders appeals, raising five techni-
cal challenges to FWS’s procedure. We conclude that none of
those challenges have merit, and we affirm.
BACKGROUND
Vernal pools are a “unique kind of wetland ecosystem” that
exists only temporarily. 68 Fed. Reg. 46,684, 46,685 (Aug. 6,
2003). The pools typically appear in spring—that is, vernally
—following fall and winter rains before drying up until the
following year. Id. Since the pools’ existence depends on
rainfall, pool size and location can vary from year to year. Id.
at 46,685-86. To survive years in which no pool develops due
to low rainfall, vernal pool species have developed a dormant
stage: vernal pool plant seeds can remain viable for several
years and the fertilized egg of a vernal pool crustacean can
remain viable for ten years or more. Id. at 46,687, 46,689. The
egg develops a thick shell that protects it from extreme tem-
peratures and even digestive enzymes, meaning that it can be
transported within the digestive tracts of animals without
harm. Id. at 46,687.
1
While this appeal was pending, Home Builders Association of North-
ern California changed its name to Building Industry Association of the
Bay Area. We follow the parties’ lead and continue to refer to appellants
as Home Builders.
HOME BUILDERS ASSOCIATION v. USFWS 11235
Three factors are necessary to the formation of vernal
pools: a climate with a wet season to fill the pools and a dry
season to evaporate them; soil that is impermeable or nearly
impermeable to water so that rain water is not readily
absorbed into the surface beneath the pools; and a topography
that typically includes shallow depressions in which the pools
form. Id. at 46,685. These factors tend to appear over continu-
ous areas in which clusters of vernal pools—called complexes
—are formed. Id. Vernal pool complexes include land that is
not part of the pools themselves but that is necessary to pro-
vide water and nutrients to the pools: drainage pathways cal-
led “swales” and upland areas. Id. Alteration of those lands
can negatively affect the health of the vernal pools them-
selves. Id.Vernal pools are home to a diverse group of species,
including freshwater crustaceans, amphibians, insects, and
plants. Id. at 46,686. Those native species and the pools them-
selves provide food and habitat for various birds, toads, frogs,
and salamanders. Id. Vernal pools are threatened by develop-
ment of all kinds; researchers have estimated destruction of
vernal pool habitat ranging from 60% in Oregon’s Agate
Desert area to 90% along the central California coast to nearly
100% in southern California. FWS, Draft Recovery Plan for
Vernal Pool Ecosystems of California and Southern Oregon
at I-15 (Oct. 2004), available at http://www.fws.gov/pacific/
ecoservices/endangered/recovery/vernal_pool/ (last visited
July 7, 2010). Species that make their homes in vernal pools
are at risk as a result of the destruction: between 1978 and
1997, FWS designated as endangered or threatened four crus-
tacean and eleven plant species native to vernal pools. 62 Fed.
Reg. 33,029 (June 18, 1997); 62 Fed. Reg. 14,338 (Mar. 26,
1997); 59 Fed. Reg. 48,136 (Sept. 19, 1994); 57 Fed. Reg.
24,192 (June 8, 1992); 43 Fed. Reg. 44,810 (Sept. 28, 1978).
Under the Endangered Species Act (“ESA”), FWS is
required, “to the maximum extent prudent and determinable,”
to designate critical habitat at the same time that it lists a spe-
11236 HOME BUILDERS ASSOCIATION v. USFWS
cies as endangered or threatened. ESA § 4(a)(3)(A), 16 U.S.C.
§ 1533(a)(3)(A). Once habitat is designated as critical, federal
agencies are prohibited from authorizing, funding, or carrying
out any action likely to result in “the destruction or adverse
modification” of that habitat without receiving a special
exemption. ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). To satisfy
that prohibition, agencies must consult with the appropriate
expert wildlife agency before any federal action that might
affect critical habitat. California ex rel. Lockyer v. U.S. Dep’t.
of Agric., 575 F.3d 999, 1018-19 (9th Cir. 2009). Although it
designated the four crustacean species at issue here as endan-
gered or threatened in 1994, FWS nevertheless declined to
designate critical habitat at that time. FWS explained in the
final rule designating the crustacean species that concurrent
designation of critical habitat was “not prudent” because
“such designation likely would increase the degree of threat
from vandalism or other human activities.” 59 Fed. Reg. at
48,151.
After FWS issued that final rule, a group of plaintiffs led
by the Building Industry Association of Superior California
challenged it in the District Court for the District of Colum-
bia. The court rejected all of the plaintiffs’ claims except their
challenge to FWS’s failure to designate critical habitat. The
court ordered FWS to designate critical habitat, but before
FWS could comply with the court’s order, the plaintiffs struck
the critical-habitat claim from their complaint so that they
could take an immediate appeal from the denial of their other
claims. Bldg. Indus. Ass’n of Superior Cal. v. Norton, 247
F.3d 1241, 1244 (D.C. Cir. 2001). A group of plaintiffs
including some of the defendant-intervenor-appellees in this
case brought a critical-habitat claim in the District Court for
the Eastern District of California. They too were successful,
and the court ordered FWS to designate critical habitat for the
vernal pool crustaceans. Butte Envtl. Council v. White, 145 F.
Supp. 2d 1180 (E.D. Cal. 2001).
HOME BUILDERS ASSOCIATION v. USFWS 11237
FWS complied with that order, and on September 24, 2002
issued a proposed rule to designate 1,662,762 acres in north-
ern California and southern Oregon as critical habitat for the
vernal pool crustaceans as well as the eleven plant species. 67
Fed. Reg. 59,884 (Sept. 24, 2002). After extensive public
comment, FWS issued a final designation on August 6, 2003.
68 Fed. Reg. 46,684 (Aug. 6, 2003). Based on those com-
ments, the final designation reduced the covered area by more
than one million acres.2 The final designation reflected the
exclusion of five rapidly growing counties for economic rea-
sons as well as exclusions for non-economic reasons—areas
already protected, military areas, and tribal areas. Id. at
46,745-55. Litigation once again followed—the plaintiffs
again included some of the intervenors here—and, in October
2004, the District Court for the Eastern District of California
granted FWS’s motion for voluntary remand for reconsidera-
tion of the exclusions.3
On December 28, 2004, FWS reopened the comment
period for thirty days to obtain comments on both the eco-
nomic and non-economic exclusions. 69 Fed. Reg. 77,700(Dec. 28, 2004). After reconsideration, FWS made no changes
to the non-economic exclusions. 70 Fed. Reg. 11,140, 11,140
(Mar. 8, 2005). FWS’s reconsideration of the economic exclu-
2
Although FWS estimated that the August 2003 designation covered
1,184,513 acres, it acknowledged that the estimate did not reflect certain
exclusions it had made. 68 Fed. Reg at 46,684. The parties challenging the
designation estimated that when those extra exclusions were considered,
the total reduction was more than one million acres, reducing the area des-
ignated as critical habitat to about 600,000 acres. The district court
adopted that estimate.
3
FWS’s request for a voluntary remand appears to have been motivated
by its own concerns about the internal process that led to the exclusions.
U.S. Dep’t of the Interior, Office of Inspector General, Investigative
Report: The Endangered Species Act and the Conflict between Science
and Policy 106-12 (Dec. 10, 2008), available at http://www.doioig.
gov/images/stories/reports/pdf/Endangered%20Species%20FINAL%20
REDACTED5%20w_TOC_encryption.pdf (last visited July 7, 2010).
11238 HOME BUILDERS ASSOCIATION v. USFWS
sions, however, did generate changes. As part of the reconsid-
eration, FWS obtained a new economic analysis estimating
the foreseeable economic impacts of the critical habitat desig-
nation. 70 Fed. Reg. 37,739, 37,741 (June 30, 2005). The
analysis took a “baseline” approach: relying on guidance from
the Office of Management and Budget, it compared the cur-
rent state of affairs—the baseline—with how things would
look after designation of critical habitat. CRA International,
Economic Impacts of Critical Habitat Designation for Vernal
Pool Species 45-46 (June 20, 2005), available at
http://www.fws.gov/economics/Critical%20Habitat/Final%20
Draft%20Reports/vernal%20pool%20species%20redo/VPS-
6-20-05.pdf (last visited July 7, 2010). Based on that analysis,
on August 11, 2005, FWS adopted new economic exclusions
to the critical habitat designation. 70 Fed. Reg. 46,924,
46,948-52 (Aug. 11, 2005). Rather than excluding land in five
rapidly growing counties as before, the new designation
excluded twenty-three census tracts4 for which FWS deter-
mined that the benefits of exclusion outweighed the benefits
of inclusion. Id. FWS issued its final rule on February 10,
2006, designating 858,846 acres of land as critical habitat. 71
Fed. Reg. 7118 (Feb. 10, 2006).
Once again, litigation followed in the District Court for the
Eastern District of California, this time from both sides.
Home Builders and a group of intervenors challenged the
final critical habitat designation for going too far, while Butte
Environmental challenged it for not going far enough. The
district court ultimately granted summary judgment to FWS
on Home Builders’s challenge. On Butte Environmental’s
challenge, though, the court ruled that FWS failed to properly
consider the issue of species conservation, in addition to spe-
4
“Census tracts are relatively permanent small-area geographic divi-
sions of a county or statistically equivalent entity defined for the tabula-
tion and presentation of data from the decennial census and selected other
statistical programs.” 73 Fed. Reg. 13,836, 13,836 (Mar. 14, 2008) (foot-
note omitted).
HOME BUILDERS ASSOCIATION v. USFWS 11239
cies survival, in violation of ESA as interpreted in Gifford
Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d
1059, 1069-70 (9th Cir. 2004) (rejecting FWS’s interpretation
of “destruction or adverse modification” because it “reads the
‘recovery’ goal out of the adverse modification inquiry”).
Accordingly, the district court remanded the designation for
yet another reconsideration. While the remand was pending,
Home Builders and the intervenors filed notices of appeal,
which this court dismissed as premature under Alsea Valley
Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1184 (9th Cir.
2004). After the remand, which resulted in no substantive
change to the designation, 72 Fed. Reg. 30,279 (May 31,
2007), the district court entered final judgment in favor of
FWS, and Home Builders appealed. The plaintiff-intervenors
also filed a notice of appeal but later dismissed it voluntarily.
Butte Environmental did not file its own appeal from the dis-
trict court’s final judgment, but it has participated in this
appeal as defendant-intervenor-appellee.
DISCUSSION
Our review of the district court’s grant of summary judg-
ment is de novo. Tucson Herpetological Soc’y v. Salazar, 566
F.3d 870, 875 (9th Cir. 2009). Our review of FWS’s deci-
sions, however, is more deferential. Under the Administrative
Procedure Act, we will set aside agency action that is “arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Review under
that standard is narrow; we will not substitute our judgment
for the agency’s. Tucson Herpetological Soc’y, 566 F.3d at
875. Nevertheless, the agency must “ ‘state a rational connec-
tion between the facts found and the decision made.’ ” Id.(quoting Gifford Pinchot, 378 F.3d at 1065).
I. Use of Primary Constituent Elements (PCEs) in
Critical Habitat Designation
[1] Home Builders’s first challenge to the designation
attacks FWS’s classification, as critical habitat, of areas in
11240 HOME BUILDERS ASSOCIATION v. USFWS
which the physical or biological features essential to the con-
servation of the species do not occur simultaneously. Those
“physical or biological features” are part of the definition of
occupied critical habitat: “the specific areas within the geo-
graphical area occupied by the species . . . on which are found
those physical or biological features (I) essential to the con-
servation of the species and (II) which may require special
management considerations or protection.” ESA § 3(5)(A)(i),
16 U.S.C. § 1532(5)(A)(i). FWS refers to such “physical or
biological features” as “primary constituent elements” or
“PCEs.” See 50 C.F.R. § 424.12(b). In the August 2005 Rule,
FWS stated that “[t]he PCEs described for each species do not
have to occur simultaneously within a unit for the unit to con-
stitute critical habitat for any of the 15 vernal pool species.”
70 Fed. Reg. at 46,934.
Without challenging any specific designations, Home
Builders argues generally that if an area that does not contain
all PCEs is designated as an occupied critical habitat, then the
PCEs not present cannot be essential to the conservation of
the species, so should not be considered PCEs at all. On the
other hand, Home Builders continues, if the absent elements
are truly PCEs, then their absence means that the area cannot
be essential to the conservation of the species. Logic and the
unique characteristics of vernal pool complexes defeat this
argument.
[2] In vernal pool complexes, the elements necessary to
species survival are present in distinct areas. For example,
each of the crustacean species has four PCEs: certain topo-
graphic features that feed the pools, certain depressional fea-
tures where the pools form, sources of food, and structures
within the pool that provide shelter. 70 Fed. Reg at 46,934-37.
Quite obviously, the topographical features that feed the pools
and the depressional features where the pools form will be
found in different areas. In general, there is simply no reason
that two elements essential for the conservation of a species
need be present in the same area. As FWS points out, one crit-
HOME BUILDERS ASSOCIATION v. USFWS 11241
ical habitat for a bird species might contain nesting grounds
while another critical habitat contains feeding sites. As
explained, such a separation is especially appropriate for spe-
cies that live in vernal pool complexes.
[3] Home Builders also makes the perverse contention that
by designating as critical habitat areas with fewer than all
PCEs, FWS has impermissibly limited its designation to pro-
tecting only those elements essential to the protected species’
survival as opposed to their recovery. This part of the argu-
ment relies on this court’s holding that “the purpose of estab-
lishing ‘critical habitat’ is for the government to carve out
territory that is not only necessary for the species’ survival but
also essential for the species’ recovery.” Gifford Pinchot, 378
F.3d at 1070. Thus, Gifford Pinchot requires FWS to be more
generous in defining area as part of the critical habitat desig-
nation. Home Builders’s attempt to use the case in support of
its argument that FWS should have included less area within
the critical habitat designation makes no sense. Gifford Pin-
chot says nothing about how many PCEs must be included in
an area for it to be classified as critical habitat. Accordingly,
we find no legal support for Home Builders’s argument.5
II. Identification of the Point at Which the Fifteen
Species Will Be Conserved
[4] Home Builders next argues that FWS’s determination
of the PCEs is invalid because FWS failed to determine when
the protected species will be conserved. ESA § 3(3) defines
conservation as “the use of all methods and procedures which
are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant
to this chapter are no longer necessary.” 16 U.S.C. § 1532(3).
5
Home Builders does not argue, and the record does not suggest, that
FWS improperly designated critical habitat based on a goal of survival
rather than what would be necessary to achieve conservation and recovery
of the listed species.
11242 HOME BUILDERS ASSOCIATION v. USFWS
If FWS does not know when the species in question will be
brought to this point, Home Builders argues, it cannot know
what physical or biological features are required to bring the
species there. A district court adopted this argument in
another case brought by Home Builders. Home Builders Ass’n
of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F. Supp. 2d 1197,
1214 (E.D. Cal. 2003). We disagree with that court’s reason-
ing because it lacks legal support and is undermined by ESA’s
text.
[5] First, as the district court held in this case, there is no
reason why FWS cannot determine what elements are neces-
sary for conservation without determining exactly when con-
servation will be complete. See also Arizona Cattle Growers’
Ass’n v. Kempthorne, 534 F. Supp. 2d 1013, 1025-26 (D.
Ariz. 2008), aff’d on other grounds, 606 F.3d 1160 (9th Cir.
2010). As FWS explains, all that ESA § 3(5)(A) requires
before the designation of occupied critical habitat is a deter-
mination of what physical or biological features are essential
to the conservation of the species. 16 U.S.C. § 1532(5)(A).
Home Builders does not explain why it is impossible to deter-
mine the elements essential to a goal without determining
when the goal will be achieved. A seller of sporting goods
should be able to identify which rod and reel are essential to
catching a largemouth bass, but is not expected to predict
when the customer will catch one.
Home Builders attempts to rely on ESA’s text as support
for adding this requirement, but the statute actually runs con-
trary to its argument. ESA does require a determination of
criteria for measuring when a species will be conserved, but
that requirement applies to the preparation of a recovery plan.
ESA § 4(f)(1)(B)(ii), 16 U.S.C. § 1533(f)(1)(B)(ii). Recogniz-
ing that this case does not involve a challenge to a recovery
plan, Home Builders urges us to import the requirement to the
designation of critical habitat, a completely different part of
ESA. Home Builders undermines its argument for importation
by advocating it selectively: Home Builders urges that another
HOME BUILDERS ASSOCIATION v. USFWS 11243
recovery plan requirement—providing a description of the
management actions necessary to achieve conservation and
survival—should not be imposed on critical habitat designa-
tions. ESA § 4(f)(1)(B)(i), 16 U.S.C. § 1533(f)(1)(B)(i).
Home Builders’s reasoning is that the second requirement
“presumably would in most instances take considerable time
and effort.” Home Builders’s argument for selective importa-
tion is an argument for Congress, not for the courts. Apart
from its own preference, Homes Builders has not provided
any valid reason to impose requirements from one part of the
statute onto another.
[6] Indeed, inclusion of the requirement for recovery plans
shows that if Congress had intended such a requirement to
apply to critical habitat designations, it would have said so.
See Russello v. United States, 464 U.S. 16, 23 (1983) (“Where
Congress includes particular language in one section of a stat-
ute but omits it in another section of the same Act, it is gener-
ally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.”) (citation and alter-
ation omitted). Finally, we note that Congress’s decision to
apply the extra requirement to recovery plans but not to criti-
cal habitat designations is logical because there is no deadline
for creating a recovery plan, but there is a one-year deadline
for designating critical habitat.
III. Overlap Between Occupied and Unoccupied Habitat
Designations
[7] Next, Home Builders contends that FWS erred by con-
flating the standards for occupied and unoccupied habitat.
Although FWS described the protected habitat as being com-
posed of “occupied” subunits, 70 Fed. Reg. at 46,945, it
acknowledged that some areas that constitute unoccupied crit-
ical habitat will be present within some subunits, id. at
46,929, 46,934. Home Builders fails to explain how FWS’s
procedure here runs afoul of the statutory scheme. Under ESA
§ 3(5)(A), an area constitutes “critical habitat” if it meets the
11244 HOME BUILDERS ASSOCIATION v. USFWS
requirements for occupied habitat or for unoccupied habitat.
16 U.S.C. § 1532(5)(A). There is no requirement that every
area be classified as one or the other, and, in the case of ver-
nal pool complexes, which may change dramatically from
year to year, such a classification may be impossible. 70 Fed.
Reg. at 46,929, 46,934.
[8] In any event, FWS ultimately concluded that “the areas
designated by this final rule, including currently occupied and
unoccupied areas, are essential for the conservation of these
species.” Id. at 46,930. Essential for conservation is the stan-
dard for unoccupied habitat, ESA § 3(5)(A)(ii), 16 U.S.C.
§ 1532(5)(A)(ii), and is a more demanding standard than that
of occupied critical habitat. Arizona Cattle Growers’ Ass’n v.
Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010). Thus, basing
the designation on meeting the more demanding standard
poses no problem. Courts routinely apply similar reasoning in
cases where a standard is unclear yet the result is the same
under even the highest standard. E.g., Brown v. S. Cal. IBEW-
NECA Trust Funds, 588 F.3d 1000, 1003 (9th Cir. 2009)
(“Because we agree with the district court that the result
would be the same under either standard of review, we like-
wise need not decide the question.”).
IV. Textual Exclusion of Areas Without PCEs
Home Builders also challenges the critical habitat designa-
tion as based on what it believes are areas that were desig-
nated as critical habitat despite containing no PCEs. In the
final rule, FWS explained that in designating critical habitat,
it “made every effort to avoid designating developed areas
such as buildings, paved areas, boat ramps and other struc-
tures that lack the PCEs for the 15 vernal pool species.” 70
Fed. Reg. at 46,930. FWS acknowledged that its best efforts
may not have resulted in perfection and that “[a]ny such struc-
tures inadvertently left inside critical habitat boundaries are
not considered part of the unit.” Id. Thus, federal actions lim-
ited to those areas would not require consultation with FWS
HOME BUILDERS ASSOCIATION v. USFWS 11245
if the action did not affect the species or the PCEs in the adja-
cent critical habitat. Id.
[9] Home Builders’s argument here is that the explicit tex-
tual exclusion of the structures from the critical habitat desig-
nation is improper and the need for such an exclusion shows
that the designation failed to satisfy ESA’s requirement that
“specific areas” be designated. ESA § 3(5)(A), 16 U.S.C.
§ 1532(5)(A). FWS has interpreted this requirement in a regu-
lation stating that “[e]ach critical habitat will be defined by
specific limits using reference points and lines as found on
standard topographic maps of the area.” 50 C.F.R.
§ 424.12(c). To be sure, FWS could not designate critical hab-
itat by saying merely “we designate all areas that constitute
critical habitat under ESA § 3(5)(A).” That is hardly what
FWS did in this case, however. FWS began with data from
sources that included the final rules listing the fifteen species,
other recovery plans, reports by biologists, and academic
reports published in peer-reviewed journals. 68 Fed. Reg. at
46,712. FWS then delineated the critical habitat using Arc-
View, a computer program that relies on Geographic Informa-
tion System data drawn from numerous sources. Id. at 46,713.
Next, FWS further refined the designation using “satellite
imagery, watershed boundaries, geologic landform coverages,
elevational modeling data, soil type coverages, vegeta-
tion/land cover data, and agricultural/urban land use data.” Id.
Despite those efforts, FWS acknowledged that some devel-
oped areas could have been included in the initial designation.
70 Fed. Reg. at 46,930. Even though the existence of such
areas was purely hypothetical, FWS then excluded them with
an explicit textual reference. Id.
[10] Home Builders does not suggest a method that might
have produced a more precise delineation of the protected
area. Instead, it argues that the textual exclusion was prohib-
ited because the regulation, 50 C.F.R. § 424.12(c), defines the
exclusive method for designating critical habitat. The regula-
tion itself, however, contains no suggestion that it is exclu-
11246 HOME BUILDERS ASSOCIATION v. USFWS
sive. And Home Builders fails to explain why we should not
defer to the agency’s interpretation of its own regulation,
which, in the case of an ambiguous regulation, is controlling
unless plainly erroneous or inconsistent with the regulation.
Chae v. SLM Corp., 593 F.3d 936, 948 (9th Cir. 2010) (citing
Auer v. Robbins, 519 U.S. 452, 461 (1997)). Home Builders
also argues that, based on the need for that exclusion, FWS’s
procedure did not produce a designation that was sufficiently
specific. As explained, though, Home Builders offers no alter-
native procedure and points to no infirmity in the procedure
used except that it may not have been perfect. Specificity does
not require perfection; ESA requires only that FWS designate
critical habitat “on the basis of the best scientific data avail-
able.” ESA § 4(b)(2), 16 U.S.C. § 1533(b)(2). Home Builders
presents no valid reason not to defer to FWS on this issue.
V. Economic Impact Consideration
[11] Finally, Home Builders argues that FWS failed to
properly account for the economic impact of its critical habi-
tat designation. ESA mandates the consideration of economic
impact before the designation of critical habitat. ESA
§ 4(b)(2), 16 U.S.C. § 1533(b)(2); Bennett v. Spear, 520 U.S.
154, 172 (1997). To fulfill that requirement, FWS obtained an
economic analysis from an outside consultant that relied on
guidance from the Office of Management and Budget to com-
pare the current state of affairs—the baseline—with how
things would look after designation of critical habitat. Our
court recently rejected a challenge to FWS’s “baseline”
approach in Arizona Cattle Growers’, 606 F.3d at 1172-74.
The challenger in that case, relying on an opinion of the Tenth
Circuit, unsuccessfully argued that FWS should instead have
used a “co-extensive” approach, which “would take into
account all of the economic impact of the [critical habitat des-
ignation], regardless of whether those impacts are caused co-
extensively by any other agency action (such as listing) and
even if those impacts would remain in the absence of the [des-
ignation].” New Mexico Cattle Growers Ass’n v. U.S. Fish &
HOME BUILDERS ASSOCIATION v. USFWS 11247
Wildlife Serv., 248 F.3d 1277, 1283 (10th Cir. 2001). We
declined to endorse that approach, explaining, “[t]he very
notion of conducting a cost/benefit analysis is undercut by
incorporating in that analysis costs that will exist regardless
of the decision made.” Arizona Cattle Growers’, 606 F.3d at
1173.
[12] In challenging the baseline approach here, Home
Builders argues for a “cumulative” assessment that would
include an assessment of the costs of complying with other regu-
lations.6 Such an assessment would be necessary under the
National Environmental Policy Act (“NEPA”), which requires
a cumulative impacts analysis in which the agency considers
the environmental impact that “results from the incremental
impact of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what
agency (Federal or non-Federal) or person undertakes such
other actions.” 40 C.F.R. § 1508.7; see Natural Res. Def.
Council v. U.S. Forest Serv., 421 F.3d 797, 814 (9th Cir.
2005). NEPA and ESA, though, are different statutes. While
NEPA’s regulations expressly require consideration of cumu-
lative impacts, 40 C.F.R. §§ 1508.25(a)(2), 1508.7, neither
ESA nor its implementing regulations do so. Rather, the plain
language of ESA directs the agency to consider only those
impacts caused by the critical habitat designation itself. ESA
§ 4(b)(2), 16 U.S.C. § 1533(b)(2) (requiring the agency to
consider “the economic impact . . . of specifying any particu-
lar area as critical habitat”). It is sensible to require a more
thorough analysis under NEPA than under ESA. NEPA
imposes requirements before the government takes action that
might have negative consequences for the environment; ESA
6
As with its other arguments, Home Builders fails to make this one with
any specificity. The economic analysis on which FWS relied in this case
did include consideration of compliance with other regulations such as
local zoning laws and state natural resource laws. CRA International, Eco-
nomic Impacts of Critical Habitat Designation for Vernal Pool Species,
supra, at 46 (June 20, 2005). We can only guess which existing regulatory
impacts Home Builders believes FWS failed to consider.
11248 HOME BUILDERS ASSOCIATION v. USFWS
imposes requirements before the government takes action that
will protect the environment.
Finally, Home Builders’s position is contrary to Arizona
Cattle Growers, 606 F.3d at 1172, where the court rejected
the notion that “FWS was required to attribute to the critical
habitat designation economic burdens that would exist even in
the absence of that designation.” That opinion also expressly
approved the baseline approach to economic analysis, under
which “any economic impacts of protecting the [listed spe-
cies] that will occur regardless of the critical habitat designa-
tion . . . are treated as part of the regulatory ‘baseline’ and are
not factored into the economic analysis of the effects of the
critical habitat designation.” Id. Beyond arguing that FWS
failed to follow the requirements of statutory and regulatory
provisions that have no application, Home Builders raises no
other argument that anything was insufficient about FWS’s
consideration of the economic impact of its designation.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.