Tribal Management Plans Do Not Exempt Reservation Lands from ESA Critical Habitat Designation

Tim Vollmann

Exclusion of tribal and federal lands from a designation of critical habitat for the Mexican spotted owl pursuant to the Endangered Species Act (ESA) cannot be justified solely on the basis of the existence of land management plans designed to protect the owls, according to a Jan. 13, 2003, decision of the U.S. District Court for the District of Arizona in Center for Biological Diversity v. Norton, CV 01-409-TUC-DCB. The court rejected the rationale used by the U.S. Fish and Wildlife Service (FWS) to exclude millions of acres of Indian reservation and Forest Service lands in Arizona and New Mexico from a final rule designating critical habitat in 2001. The Mexican spotted owl is listed as a threatened species under the ESA. The FWS had declined to designate lands on the Navajo, Mescalero Apache, White Mountain Apache, Jicarilla Apache and San Carlos Apache Reservations as critical habitat for the owl.

District Judge David Bury held that the ESA definition of “critical habitat,” which includes lands “which may require special management considerations or protection,” cannot be read to allow the exclusion of lands subject to “adequate” management plan protections because additional protections are deemed unnecessary. He viewed the ESA Section 7 consultation requirement, triggered when a federal action may cause adverse modification of critical habitat, as such an additional protection. The FWS was ordered to re-propose a critical habitat rule for the owl within three months, consistent with the court’s order.

The court also ruled that, in weighing the impacts of designation of critical habitat to a particular area, the FWS may consider its working relationship with an Indian tribe as a “relevant impact.” This ruling pertained only to the FWS decision not to include San Carlos Apache lands in the critical habitat designation, based in part on the agency’s finding that the designation would be viewed by the Tribe as “as an unwarranted and unwanted intrusion into tribal natural resource programs.” However, the San Carlos management plan had not been finalized prior to the final rule, and the draft plan had not been made available to the public during the comment period. The court found that the FWS failure to make the draft plan public violated both the ESA and the Administrative Procedure Act.

The judge also held that, because the Forest Service management plan had been held to be inadequate under the ESA in earlier litigation, the FWS could not rely on the plan in its justification for not designating National Forest lands in Arizona and New Mexico as critical habitat. The court did not rule on the adequacy of the tribal management plans.