COURT VACATES CRITICAL HABITAT FOR
 ARKANSAS RIVER SHINER IN FOUR STATES

A coalition of 17 agricultural and ranching associations and water suppliers recently forced the U.S. Fish and Wildlife Service ("USFWS") to jettison its extensive designation of critical habitat for the Arkansas River shiner that covered nearly 1,200 miles over four rivers in Oklahoma, Texas, New Mexico and Kansas. Most of the area that was covered by the designation is privately-owned land. U.S. District Judge LeRoy Hansen in Albuquerque, New Mexico ruled that the designation must be vacated due to substantive flaws in the economic analysis that was required to be performed under the Endangered Species Act ("ESA"), and ordered USFWS to re-designate critical habitat within two years based on a legally-sufficient analysis. The case was styled New Mexico Cattle Growers, et. al. v. Norton. Click here for a copy of Judge Hansen's opinion and order. Click here to view the Original Complaint.

The coalition, which was represented by Smith|Robertson, filed suit against USFWS in April 2002 to challenge the designation on grounds that included defects in the economic analysis, a failure to base the designation on the best scientific data available, and a failure to comply with the National Environmental Policy Act. Because USFWS eventually stipulated that its economic analysis was flawed, the court did not have to address the coalition's claims regarding scientific data and NEPA compliance in order to decide the case. However, Judge Hansen's order directing the re-designation of critical habitat did not limit the USFWS to a reconsideration of the economic issues; it stated that all aspects of designating critical habitat for the shiner should be reconsidered.

The coalition and USFWS also reached an agreement to settle the coalition's claim for recovery of its attorneys' fees and costs that it incurred in bringing the lawsuit. Both the ESA and the Equal Access to Justice Act allow successful plaintiffs to recover their attorneys fees.

The Smith|Robertson attorneys who represented the coalition were Craig Douglas, Alan Glen and Michael Klein. For more information, please contact Craig Douglas at cdouglas@smith-robertson.com

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