FEATURE ARTICLE

November 2004

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Ninth Circuit Sharpens the Regulatory Teeth of Critical Habitat at the Expense of Landowners and Proponents of Habitat Conservation Plans

The Ninth Circuit drastically sharpened the regulatory teeth associated with critical habitat in a recent decision. The most significant consequence of the decision, however, may be a stake in the heart of biologically superior conservation plans that operate on an ecosystem-wide basis. And perhaps most troubling is the fact that the ruling is premised upon a significant leap in judicial logic that betrays an incomplete and flawed understanding of Congress’s actual and express directives regarding critical habitat.