03.17.2016

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Updates

In a decision that could result in significant new restrictions on development activities in the Arctic as well as set important Endangered Species Act (ESA) precedent in the Western United States, the U.S. Court of Appeals for the Ninth Circuit recently reversed an Alaska district court’s judgment vacating the designation of critical habitat in Alaska for the polar bear. 

Background: District Court Vacates FWS Rule

In 2008, the United States Fish & Wildlife Service (FWS) listed the polar bear as threatened.  Once a species is listed, the ESA requires FWS to designate habitat critical to the conservation of the species.  In 2010, FWS issued a rule designating approximately 187,000 square miles as critical habitat for the polar bear, an area larger than the state of California.  Nearly 96% of the total designated area is sea ice.  The other approximate 4% consists of a five-mile band of terrestrial denning sites and barrier islands, including a one-mile radius around those islands. 

In response to FWS’s rule, the state of Alaska, Native corporations and villages, and oil and gas associations sued the agency, alleging multiple violations of the ESA and Administrative Procedure Act.  As to the 4% of terrestrial and barrier island habitat, the district court agreed with two of the plaintiffs’ claims.  It held that the rule was arbitrary and capricious for being unjustifiably large and that FWS violated procedural requirements of the ESA by failing to adequately respond to comments.  The court then vacated the entire rule.

Ninth Circuit Reverses District Court

A unanimous panel reversed the district court’s vacatur, reinstating the critical habitat designation.  In its opinion, the Ninth Circuit ruled that the district court imposed a level of specificity the ESA does not require. 

The court held that FWS can designate an area for a particular reason critical to a species’ survival without proof that the species engages in that activity in that area.  In this case, the Ninth Circuit concluded that FWS could designate an area to protect denning sites even though the agency lacked proof that such sites actually existed.  FWS looked at the factors that make for good denning sites (e.g., steep, stable slopes, access between the den and coast, proximity to sea ice in the fall and freedom from human disturbance) to determine whether the habitat was suitable for denning and thus worthy of critical habitat designation.  The court considered this analysis to be sufficient to sustain the critical habitat designation.

In an element of the decision that has potentially far-reaching implications for other ESA actions, the court stated that the ESA requires use of the best scientific data available, not the best scientific data possible.  The best scientific data available does not necessarily lend itself to pinpointing precise locations of denning sites, according to the Ninth Circuit.  For instance, the court found that FWS’s reliance on a study monitoring female polar bears from 1982 to 2009 satisfied the best-scientific-data-available requirement.  When coupled with an analysis of factors indicative of good denning sites, the designation was not arbitrary and capricious.

The court further held that it is appropriate to consider future climate change, such as receding sea ice, when designating habitat.  The court reasoned that just as courts have recognized climatic factors when listing a species, so too can such factors be used in the designation process.

Lastly, the court upheld FWS’s reasoning for excluding some human structures and activities from designation, like the city of Barrow, Alaska, while including others, like the industrialized area of Deadhorse, Alaska.  The court found that the record showed routine polar bear activity and denning near Deadhorse and that despite some human activity, polar bears could still move through Deadhorse to access den sites. 

As for the alleged procedural violation, the court disagreed with the district court that FWS did not adequately explain why it did not incorporate the state’s comments into its regulation.  The alleged procedural violation stemmed from section 4(i), 16 U.S.C. § 1533(i), which requires written justification for FWS’s failure to adopt regulations consistent with a state’s comments.  The Alaska Department of Fish and Game (ADFG) submitted detailed comments.  FWS responded to ADFG’s comments by sending a letter to Governor Parnell.  The court held (1) section 4(i) is judicially reviewable; (2) a letter to the governor satisfies the procedural requirement; (3) a response that references other publicly available documents in support of its justifications is not necessarily defective; and (4) FWS’s letter effectively addressed ADFG’s comments. 

ESA Implications in the West

This decision will serve as important ESA precedent in other situations, at least within the Ninth Circuit.  Coupled with recent FWS rules that heighten the standards that must be met to avoid the prohibition on actions that adversely modify critical habitat, the Ninth Circuit ruling will require extra care to carrying out development activities that comply with the ESA.

© 2016 Perkins Coie LLP