Building Industry Ass'n of the Bay Area v. United States Department of Commerce

This appeal, arising under the Endangered Species Act (“ESA”) and the Administrative Procedure Act (“APA”), requires us to review the designation of critical habitat for a threatened species — the southern distinct population segment of green sturgeon (the “Southern DPS of green sturgeon”) — and the regulations implementing that designation. The context for this litigation is the impact of the designation on local property owners and on the residential construction industry in the Sacramento-San Joaquin Delta and within the Sacramento River basin of Northern California. Plaintiffs-Appellants Building Association of the Bay Area (“BIABA”) and the Bay Planning Coalition (“BPC”) appeal from a judgment of the District Court for the Northern District of California (Phyllis J. Hamilton, J.). The district court concluded that the agencies’ procedures leading to the designation complied with the ESA and the APA, granted Defendants’ motions for summary judgment and dismissed the case.

Appellants’ main contention on this appeal is that, when designating critical habitat for the Southern DPS of green sturgeon, the National Marine Fisheries Service (the “NMFS”) violated section…