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Critical Habitat: Current Centerpiece of Endangered Species Act Litigation and Policymaking: Critical For Whom? The Species or the Landowner?

Steven P. Quarles, Thomas R. Lundquist, Proceedings of 48th Annual Rocky Mountain Mineral Law Institute (2002)

The designation of, and constraints imposed by, “critical habitat” for endangered species and threatened species (listed species) under the Endangered Species Act of 1973 (ESA)1 [18-3] recently have engendered significant issues for litigators, policymakers, and landowners. These issues are being identified and shaped by the judicial branch through citizen suits, after years of limiting constructions and benign neglect of critical habitat by the legislative and executive branches.

This article begins with an explanation of the basic statutory and regulatory provisions concerning critical habitat. It then divides the evolution of critical habitat concepts into four stages. In Stage I (1973 to 1978), critical habitat was accorded an actual or potentially prominent role in the 1973 ESA, in the initial implementing rules adopted by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services),2 and by the Supreme Court in the landmark case of Tennessee Valley Authority v. Hill.3 In Stage II (roughly from 1978 to 2000), Congress and the Services sapped critical habitat of much significance, leaving little “critical” about critical habitat and only 10%-15% of listed species with designated critical habitats.

In Stage III (roughly 1996 to the present time), the courts have acted to release critical habitat from its administrative captivity in d