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NINTH CIRCUIT UPHOLDS 187,000 SQUARE-MILE CRITICAL HABITAT DESIGNATION FOR POLAR BEARS IN ALASKA


In Alaska Oil & Gas Association v. Jewell, 2016 U.S. App. LEXIS 3624, the Ninth Circuit reversed the district court and upheld the Fish and Wildlife Service’s (“FWS”) final rule designating 187,000 square-miles as critical habitat to protect threatened polar bears as required by the Endangered Species Act (“ESA”).

Under the ESA, FWS is required to designate “critical habitat” for threatened species. Critical habitat is defined as areas that contain physical and biological features—also known as “primary constituent elements” or PCEs—that are essential to the conservation of the species. The benefits of protection must then be weighed against economic, national security, and other relevant impacts before a designation is made. Of the 187,000 square-miles FWS designated as habitat, 95.9% is comprised of sea ice and the remaining land consists of terrestrial habitat on Alaska’s northern coast and barrier islands. While polar bears spend the majority of their lives on sea ice, FWS determined that terrestrial land was also essential to polar bear conservation because female polar bears will occasionally come ashore to den and acclimate their cubs. After balancing these conservation concerns with other factors, FWS excluded two Native villages as well as all man-made structures from the designation, but chose to include a one-mile “no disturbance zone” around each barrier island.

Only the terrestrial habitat designation was challenged by the Alaska Oil and Gas Association, the American Petroleum Institute, oil and gas trade associations, the State of Alaska, and numerous Native American groups, who argued that the designation was arbitrary and capricious under the Administrative Procedure Act and violated the ESA. Three environmental groups then intervened on behalf of FWS. The district court granted summary judgment to the plaintiffs on two of their claims and vacated the entire designation.

On the first claim, the district court held that the terrestrial habitat designations were improper because FWS failed to show that polar bears actually denned in these areas. The Ninth Circuit disagreed, holding that there is no such requirement in the ESA. The Ninth Circuit reasoned that imposing a requirement of actual species presence would run counter to the ESA’s goal of species recovery which requires expanding habitat beyond what is currently utilized. In reaching its conclusion that the designations were proper, the Court found that FWS utilized the best available scientific data to justify its designations on the northern coast and barrier island habitats.

On the second claim, the district court held that FWS had provided the State of Alaska with inadequate “written justification” for adopting a final rule that was inconsistent with the State’s recommendations in violation of ESA Section 4(i). The Ninth Circuit followed D.C. Circuit precedent and held that the requirements in Section 4(i) are procedural and courts cannot review the substance of the written response. Therefore, the Ninth Circuit overturned the district court and held that FWS fulfilled its limited statutory duty by sending a written response to the State.

Finally, the Ninth Circuit denied plaintiffs’ cross-appeal, upholding the district court’s ruling on plaintiffs’ remaining claims. The case was remanded and the district court was ordered to enter judgment in favor of FWS.

Key Point:

The Endangered Species Act provides wide discretion to the United States Fish and Wildlife Service in designating critical habitat for endangered or threatened species. Critical habitat designations should be made based on the habitat’s physical and biological features; no evidence of actual presence in the area is required.



dateMarch 23rd, 2016byby


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