Home » Case Summaries » 2016 » Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544 (9th Cir. 2016)

 
 

Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544 (9th Cir. 2016)

 

 

In this case, the State of Alaska, various oil and gas trade associations, Alaska Native corporations, and Alaska Native villages (collectively, Alaska)[1] challenged the United States Fish and Wildlife Service’s (FWS) critical habitat designation for Alaskan polar bears under the Endangered Species Act[2] (ESA). The United States District Court for the District of Alaska granted summary judgment to Alaska for two reasons.[3] First, the district court held that FWS failed to identify exactly where and how polar bears use the areas designated as critical habitat units two and three.[4] Second, the district court found that FWS failed to provide adequate justification to the State of Alaska for adopting a final rule that did not adequately address Alaska’s comments on the proposed designation.[5] The district court vacated the designation as a whole.[6]

FWS and several intervenor environmental groups[7] appealed. FWS contended that the ESA did not require FWS to prove how and where existing polar bears used the designated habitat. Additionally, FWS argued that it adequately addressed the state’s comments. The Ninth Circuit reviewed the district court’s decision de novo. The Ninth Circuit ultimately agreed with FWS and reversed and remanded the district court’s holding. Alaska cross-appealed in an effort to resurrect claims the district court had already rejected. The Ninth Circuit affirmed the district court’s denial of those claims.

In 2008, FWS listed polar bears as “threatened” under the ESA. FWS then designated three units of polar bear critical habitat in Alaska. Critical habitat designation is partly based on the location of “primary constituent elements” (PCEs), elements essential to the listed species.[8] The ESA further mandates that critical habitat designation be based on the best available scientific data and that FWS take into consideration other potential impacts, including cost. In addition, FWS must give notice and seek feedback from impacted states regarding critical habitat designations. When FWS’s final designation is not entirely in line with the state’s comments, FWS is required to provide written justification for its choice of action.[9] In this case, FWS based its critical habitat designation for the polar bear on the best available science, including consultation with polar bear experts. Prior to issuing its Final Rule in 2010,[10] FWS considered the proposed designation’s probable impacts, and held multiple public hearings and public comment periods.

On appeal, FWS argued that the district court incorrectly found that the ESA requires FWS to specify precisely where the PCEs were located within units two and three. The Ninth Circuit agreed and explained that the district court incorrectly held FWS to a stricter standard than is required under the ESA. The court reasoned that the district court’s standard was contrary to the purpose of the ESA because it conflicted with the ESA’s conservation goals. In support, the Ninth Circuit cited Alliance for Wild Rockies v. Lyder,[11] which held that FWS could designate critical habitat areas based on evidence that the listed species used a given area for reproductive purposes.[12]

The Ninth Circuit next addressed whether FWS’s process for mapping unit two was arbitrary and capricious. In mapping and designating unit two, FWS relied on radio-telemetry data, which demonstrated that 95% of all known polar bear dens were located in a certain area east of the town of Barrow. Based on this information, FWS designated unit two as critical habitat and mapped the unit as an area extending between five and twenty miles from the coast, which encompassed most of the confirmed and probable denning sites. Plaintiffs argued that FWS’s use of a five-mile measurement from the coast was arbitrary and capricious because FWS did not note precisely where within this area the denning habitats were located. The Ninth Circuit disagreed and found that Alaska was demanding a more vigorous standard than required by the ESA.[13] The court found that FWS rationally mapped unit two to include the majority of denning sites. In addition, the court found that FWS’s decision was based on FWS’s work with the United States Geological Survey and that FWS took all of the appropriate information into account.

Next, the court addressed Alaska’s claim that FWS did not adequately explain its decision to include areas adjacent to human activity within unit two. The Ninth Circuit held that, despite the occurrence of some human activity adjacent to unit two, it was reasonable for FWS to find that polar bears could still move through the area used by humans to establish denning sites.

Next, the Ninth Circuit addressed the issues arising from FWS’s designation of critical habitat unit three, also known as the Barrier Island habitat. The district court found that FWS had failed to specifically identify where and how polar bears use unit three, and held that the only areas that qualified as critical habitat are areas FWS could demonstrate were presently used by polar bears. The Ninth Circuit found that the district court was requiring scientific certainty where the ESA does not. The Ninth Circuit noted that part of the confusion likely stemmed from the fact that the district court had misinterpreted the term “denning habitat.” The district court interpreted the term to describe only the locations suitable for the actual dens.[14] However, FWS determined that “denning habitat” includes those areas essential to birthing as well as post-natal care and feeding. The Ninth Circuit found that it was reasonable for FWS to designate unit three based on this definition, and that it was inappropriate to limit critical habitat to just the areas used for actual dens. The Ninth Circuit held that FWS adequately explained its rationale for designating unit three, and that FWS had made a reasonable decision based on the best available scientific data.

The final issue in this case was whether FWS gave adequate notice to the State of Alaska, and whether FWS provided appropriate reasons for straying from the state’s comments in the Final Rule. Under the ESA, FWS is required to provide notice to state agencies before designating critical habitat so as to give the state time to give input.[15] Additionally, the ESA requires FWS to justify in writing any decision to adopt plans inconsistent with state comments.[16] The Ninth Circuit concluded that the court could only review whether or not FWS actually provided written justification to the state. The court could not address the substance of the written justification because the ESA does not establish what the substance of the written justification must contain.

The Ninth Circuit disagreed with the district court’s conclusion that FWS’s response to Alaska’s comments was inadequate. First, the court found that the district court took issue with FWS’s decision to only reference Alaska’s comments rather than including them in whole in the Final Rule. The Ninth Circuit found that there was nothing in the ESA that prevented FWS from referencing public documents rather than including them word for word.

Second, the district court held that FWS violated the ESA because it sent its response letter to the Governor of Alaska and not the state agency that had submitted the comments.[17] The Ninth Circuit found that FWS action was not a violation of the ESA because the agency ultimately received the letter regardless.

Third, the Ninth Circuit rejected the claim that FWS neglected to include adequate responses to all of the Alaska Department of Fish and Game’s comments. The Ninth Circuit held that FWS responded in some way to each of the state agency’s comments. The court reasoned that FWS’s response was consistent with the ESA because the statute does not create a guarantee that the state will find FWS’s responses satisfactory.

Finally, the Ninth Circuit addressed several claims that Alaska attempted to resurrect on appeal. First, Ninth Circuit found that the district court correctly determined that the so-called “no-disturbance zone” was an important part of unit three because the zone provided a barrier against human disturbance. Second, Alaska contended that a critical habitat designation would not alter current polar bear conservation requirements. The Ninth Circuit explained that the existence of other programs or conservation requirements does not mean that FWS does not have to fulfill its responsibility to designate critical habitat. Third, Alaska argued that FWS acted arbitrarily and capriciously because FWS did not adequately take into account all costs associated with the designation. The Ninth Circuit disagreed, holding that FWS adequately examined relevant costs associated with the designation. Finally, Alaska contended that the ESA requires FWS to consult with impacted states prior to designating critical habitat. The Ninth Circuit held that consultation was not required during the initial designation process.

In sum, the Ninth Circuit held that the district court erred in striking down FWS’s critical habitat designation. The Ninth Circuit reversed the district court’s holding and remanded the case for entry of judgment in favor of FWS.

 

 

Footnotes    (↵ returns to text)

  1. Plaintiffs included the Alaska Oil & Gas Association and the American Petroleum Institute, the State of Alaska, Alaska Native corporations, an Alaska Native tribal government, and the North Slope Borough.
  2. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  3. Alaska Oil & Gas Ass’n v. Salazar, 916 F. Supp. 2d 974, 974 (D. Alaska 2013).
  4. Id. at 999–1003.
  5. Id. at 1003–04.
  6. Id.
  7. Defendant FWS was joined by three environmental groups: Center for Biological Diversity, Defenders of Wildlife, and Greenpeace.
  8. See ESA, 16 U.S.C. § 1532(5)(A) (2012).
  9. Id. § 1533(i).
  10. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States, 75 Fed. Reg. 76,086, 76,086 (Dec. 7, 2010) (to be codified at 50 C.F.R. pt. 17).
  11. 728 F. Supp. 2d 1126 (D. Mont. 2010).
  12. Id. at 1134–35.
  13. The standard requires use of best available technology to focus on PCEs essential to protecting polar bears, regardless of whether polar bears are currently present in that habitat. See 16 U.S.C. § 1533(b)(2).
  14. Alaska Oil & Gas Ass’n v. Salazar, 916 F. Supp. 2d 974, 1002 (D. Alaska 2013).
  15. 16 U.S.C. § 1533(b)(5)(A)(ii).
  16. Id. § 1533(i).
  17. Alaska Oil & Gas Ass’n, 916 F. Supp. 2d at 1003.
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