dissenting:
I respectfully dissent because I am not persuaded that the U.S. Fish and Wildlife Service abused its discretion when it decided not to designate critical habitat for the Coastal California gnatcatcher.
I
The standard of review in this case is quite deferential. We are not to substitute our independent judgment for that of the Service; instead, we review its decision to determine whether it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Pyramid Lake Paiute Tribe v. United States Dep’t of the Navy, 898 F.2d 1410, 1414 (9th Cir.1990). In order to satisfy our inquiry, the agency need only “eonsider[ ] the relevant factors and articulate[ ] a rational connection between the facts found and the choice made.’ ” Id. (quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983)).
In deciding that, contrary to the Service’s considered conclusion, designation of critical habitat for the gnatcatcher would be prudent (and is therefore mandated), the majority concludes that neither of the two “imprudence” exceptions apply. If the Service “considered the relevant factors and articulated a rational connection between the facts found and the choice made” for either exception, however, then we are obliged to affirm.
*1128II
According to the Service’s regulations, the first situation in which designation of habitat would be imprudent is when “[t]he species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species.” 50 C.F.R. § 424.12(a)(l)(i) (1996).
When it decided not to designate critical habitat for the gnatcateher, the Service found that on at least 11 occasions, private landowners had destroyed, gnatcateher habitat, raising the inference that, at least in some cases, the landowners were acting intentionally to avoid environmental regulation of their property. The majority concludes that this “increased threat” rationale is insufficient to support application of the exception because it does not balance “the relative threat of coastal sage scrub takings both with and without critical habitat designation.” I disagree.
The majority states that a determination of whether a designation would be prudent must include weighing the benefits of designation against its risks. Our cases do not support this conclusion, however; they generally require only that the agency follow a rational decision-making process. See Bennett v. Plenert, 63 F.3d 915, 921 (9th Cir. 1995), overruled on other grounds, Bennett v. Spear, — U.S. -, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The fact that the word “outweigh” is used in a statutory provision not addressing the prudence exception and in a statement in the federal register does not mandate, on pain of reversal, that the Service conduct an explicit balancing test.
That point aside, however, I believe that a fair reading of the Service’s decision reveals that it did in fact conduct precisely the balancing test called for by the majority when it concluded that designation may cause the intentional destruction of habitat by private landowners, but would produce little benefit since most of the habitat is not on publicly-owned land. It is worth quoting the Service at length:
[S]ome landowners or project developers have brushed or graded sites occupied by gnatcatchers prior to regulatory agency review or the issuance of a grading permit. In some instances, gnatcateher habitat was destroyed shortly after the Service notified a local regulatory agency that a draft environmental review document for a proposed housing development failed to disclose the presence of gnatcatchers on-site. On the basis of these kinds of activities, the Service finds that publication of critical habitat descriptions and maps would likely make the species more vulnerable to [prohibited] activities____
Most populations of the coastal California gnatcateher in the United States are found on private lands where Federal involvement in land-use activities does not generally occur. Additional protection resulting from critical habitat designation is achieved through the section 7 consultation process. Since section 7 would not apply to the majority of land-use activities occurring within critical habitat, its designation would not appreciably benefit the species.
58 Fed.Reg. 16742, 16756 (1993) (emphasis added). In my view, applying the majority’s balancing requirement, the Service indeed weighed the benefits and risks of designation and came to a rational, defensible conclusion that designation was not prudent. This alone would be sufficient to affirm the district court.
Ill
The second situation in which designation would not be prudent exists when “such designation of critical habitat would not be beneficial to the species.” 50 C.F.R. § 424.12(a)(l)(ii) (1996). The Service noted that since approximately 80% of the gnat-catcher habitat is owned by private landowners, designation would not “appreciably benefit the species.” 58 Fed.Reg. at 16756.
In my view, the majority takes too narrow a view of the phrase “beneficial to the species.” The question should not be whether any member of the species would be better off by a slender margin, but whether the species as a whole would benefit from the designation. Even though the gnatcatchers *1129in most of the habitat would not benefit, reasons the majority, some of the gnatcatchers would benefit, and hence designation would be beneficial for the species. The problem with this argument is that it overlooks the Service’s expert opinion, to which we are required to defer, that designation may harm the gnatcatchers when landowners intentionally destroy the habitat. Even though individual pockets of gnatcatchers may benefit, the species as a whole may not.
I respectfully dissent.