Endangered Species Law & Policy

On February 29, 2016, the U.S. Court of Appeals for the Ninth Circuit upheld the U.S. Fish and Wildlife Service’s (Service) designation of critical habitat in Alaska for the polar bear (Ursus maritimus).  Alaska Oil and Gas Ass’n v. Jewell, No. 13-35919 (9th Cir. Feb. 29, 2016).  The Ninth Circuit reversed the lower court’s decision, reinstating the previously vacated critical habitat designation.

In 2013, the district court granted summary judgment to plaintiffs on two grounds.  Substantively, the district court held that the Service failed to identify specifically where and how polar bears use the designated terrestrial denning and barrier island habitats.  Procedurally, the district court held that the Service failed to provide the State of Alaska with adequate justification for its decision to not incorporate all of the State’s comments into the final designation in violation of section 4(i) of the Endangered Species Act (ESA).  The Ninth Circuit reversed the district court in both respects.

Regarding the designated denning and barrier island habitat, the Ninth Circuit concluded that the district court erred because it held the Service to a standard of specificity that the ESA does not require.  The court reasoned that, by designating areas that contained primary constituent elements required for sustained preservation of polar bears, the Service acted in accordance with the statutory purpose.  The court rejected the assertion that the Service must show that the dens were already in use by polar bears in order to be included in the designation.  The court concluded that the Service did not act arbitrarily or capriciously in designating critical habitat for the species because it drew rational conclusions from the best available scientific data, as is required by the ESA.

With respect to the procedural challenge under section 4(i) of the ESA, the Ninth Circuit held that it was sufficient that, after adopting the final designation, the Service responded to the State of Alaska with a letter in which it addressed the State’s concerns that were not included in the final designation.  The court held it was acceptable for the letter to reference other publicly-available documents and to be sent to the Governor of Alaska, rather than to the Alaska Department of Fish and Game.  The court declined to analyze the sufficiency of the Service’s responses, because section 4(i) creates strictly a procedural requirement that the Service satisfied.