Endangered Species Law & Policy

On May 17, 2023, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) issued its decision in Center for Biological Diversity v. U.S. Fish and Wildlife Service (Case No. 20-15654), a case in which a mining company challenged the U.S. Fish and Wildlife Service’s (Service) designation of certain areas in southern Arizona as critical habitat for the jaguar (Panthera onca) under the Endangered Species Act (ESA). The Ninth Circuit upheld the district court’s ruling that the Service improperly designated the challenged area as occupied critical habitat. With respect to the challenged designation of unoccupied critical habitat, the Ninth Circuit overturned the district court’s ruling in favor of the Service, finding instead that the Service had also improperly designated the area of unoccupied critical habitat. Justice Thomas dissented on this point: she would have upheld the district court’s decision that the record adequately supported the Service’s unoccupied critical habitat designation.

The jaguar is a large cat found in South America, Central America, Mexico, and the southwestern United States. The Service listed the jaguar as endangered in 1972, originally only including it on the foreign species list because the jaguar was thought to already be extinct in the United States (the Service later remedied this error by adding the jaguar to the domestic endangered species list in 1996). The jaguar’s total range spans over 3 million square miles. Less than one percent of this total range falls within the United States. The Service did not originally designate critical habitat for the jaguar, because the main threat to the species was hunting (intentional take), and therefore, the Service determined that mapping critical habitat for the species would be “counter-productive.” In 2009, a federal court vacated the Service’s decision not to designate critical habitat for the jaguar. As a result, the agency started the rulemaking process to identify critical habitat for the species. In 2014, the Service issued a final rule designating 764,208 acres in southern Arizona and southwestern New Mexico as critical habitat. The designated area includes six units and multiple subunits. This case concerns only Unit 3 (351,501 acres) and Subunit 4b (12,710 acres).

In its 2014 final rule, the Service determined that Unit 3 was both occupied and unoccupied critical habitat and that Subunit 4b was unoccupied critical habitat. The Service concluded Unit 3 was occupied habitat based on a record of a jaguar in 1965, photos of a male jaguar in the area in 2012 and 2013, and its determination that Unit 3 contained all the primary constituent elements for jaguars. The Service determined Unit 3 was also unoccupied habitat because although the agency was not confident that jaguars were in the area in 1972, there was evidence of recent occupancy of jaguars in the area, the area contained features of the jaguar’s habitat, and the area contributed to the jaguar’s presence. The Service determined that Subunit 4b was unoccupied habitat because the area was essential to the conservation of the species, as it connected the Whetstone and Santa Rita Mountain ranges and “represented areas through which a jaguar may travel between Subunit 4a and Mexico.”

On appeal, the Ninth Circuit reviewed the district court’s rulings de novo. The court began by analyzing the text of the ESA, which states that habitat may be designated as critical if it is “essential . . . to the conservation of the species.” The Ninth Circuit went on to explain that the ESA identifies two types of critical habitat: occupied and unoccupied. To be considered occupied habitat, the area must contain the species. An area is considered to contain the species if the species uses it with sufficient regularity that the species is likely to be present during any reasonable span of time. The Ninth Circuit determined that essential habitat only includes areas that are indispensable to the conservation of the endangered species, and that when the Service designates unoccupied critical habitat for a species, it must explain why the designation of occupied critical habitat alone is not sufficient to ensure the conservation of the species.

The Ninth Circuit next examined whether the Service’s designations of Unit 3 and Subunit 4b were proper. The court affirmed the district court’s determination that the designation of Unit 3 as occupied habitat was improper, because although the Service was justified in relying on the record from 1965 to support its conclusion that jaguars were present in the area in 1972, the agency went too far when it also considered “irrelevant photographs” from decades after the time of listing and a single sighting from a different mountain range. With regard to the designation of Unit 3 as unoccupied critical habitat, the court found the Service acted improperly because instead of assessing whether the occupied critical habitat designation would be sufficient to conserve the species and then, if not, designating the unoccupied habitat, the Service instead designated the unoccupied habitat as a way to “hedge” the occupied status of Unit 3 (the agency admitted that it is possible there were not jaguars present in Unit 3 in 1972).

The Ninth Circuit found “some of the same deficiencies” in the listing of Subunit 4b as unoccupied habitat, determining that the Service did not show that the subunit was necessary or indispensable for the conservation of the jaguar. The court noted that the Service admitted jaguars could use either Subunit 4b or Subunit 4c to travel to Mexico, and that Subunit 4c is the more direct route. The Ninth Circuit made clear that it did not ascribe to the mining company’s argument that connective corridors are not essential under the ESA generally, and instead specified that the record in this case did not support the conclusion that the particular corridor at issue in Subunit 4b was necessary to the conservation of the species.