A federal district judge in Alaska set aside the United States Department of the Interior, Fish and Wildlife Service’s (Service) final rule designating critical habitat for the polar bear under the Endangered Species Act (ESA). The court determined that the Service’s action was “arbitrary, capricious and procedurally errant.” The court found that, for two of the three units of the designated critical habitat, the record lacked evidence of physical or biological features identified by the Service as necessary for including in critical habitat. Additionally, the court held that the Service failed to follow applicable procedure under the ESA because the Service did not provide adequate justification for adopting a rule inconsistent with the state of Alaska’s comments on the proposed designation. Therefore, the final rule was vacated and remanded to the Service to correct the substantive and procedural deficiencies (Alaska Oil and Gas Association v. Salazar et al., case No. 3:11-cv-00025; State of Alaska v. Salazar et al., case No. 3:11-cv-00036; Arctic Slope Regional Corporation et al. v. Salazar et al., case No. 3:11-cv-00106).
Background. In December 2010, the Service designated more than 180,000 square miles of coastal Alaska as critical habitat for the polar bear. This critical habitat included three units: Unit 1, sea-ice habitat; Unit 2, terrestrial denning habitat; and Unit 3, barrier island habitat. This designation was monumental. The designation included virtually all of the polar bear’s range and is the largest area ever to be designated critical habit. Additionally, the Service relied upon climate change and global warming as part of its scientific rationale for the designation.
Decision. While vacating the final rule and remanding it back to the Service, the court concluded that in many respects the final rule was valid. For Unit 1 (sea-ice habitat), which encompassed more than 179,000 square miles, the court held that there was a rational connection between the facts supporting the inclusion of the sea ice area in the designation and the Service’s action. Thus, the court found the inclusion of the sea ice primary constituent element (PCE), found in Unit 1, to be valid.
However, for Unit 2 and Unit 3, the court held that the Service had not shown that these units contain all of the required physical or biological features of the terrestrial denning habitat PCE and barrier island habitat PCE, respectively. For Unit 2 (terrestrial denning habitat), the Service identified four features as comprising the terrestrial habitat PCE. The court noted that “the Service concluded that the whole of Unit 2 contained all of the physical or biological features” based solely on the first feature (location of the confirmed or probable den sites). The court determined that the record lacked any support for the second and fourth factors (unobstructed, undisturbed access between den sites and the coast and the absence of disturbance from humans and human activities that might attract other polar bears). Furthermore, the studies on which the Service relied only confirm that the first feature is found in roughly 1 percent of the entire designated habitat. No PCE features were identified in 99 percent of Unit 2.
Similarly for Unit 3 (barrier island habitat), the Service identified three PCE features, but the court found that an explanation of the location of the third essential feature (access along the coast to maternal den sites and optimal feeding habitat) was completely lacking. Although each part of a designated critical habitat does not have to contain each identified PCE, every part of the designation must have at least one. The court concluded that without showing where the third feature is found in the area, Unit 3 cannot be considered critical habitat within the definition of barrier island habitat PCE.
In addition to these substantive errors, the court found that the Service procedurally erred in not including in its response letter to the State all its responses to the State’s comments that were not ultimately included in the final rule.
Commentary. Even though the court indicated that the final rule was valid in many respects (including the sea-ice PCE for Unit 1, which covers approximately 95 percent of the area of the critical habitat designation), the court vacated the final rule and remanded it back to the Service. The court acknowledged the deference afforded to agency decisions, but held that “the current designation went too far and was too extensive.” This district court decision is appealable to the Ninth Circuit Court of Appeals.
Unless overturned on appeal, this decision means that the Service will have to re-designate the critical habitat and re-propose the designation. During this process, there will be ample opportunity for public comment and stakeholders will be able to engage in dialogue with the Service. With appropriate review and consideration, it is hopeful that future agency action can meet “the twin goals of protecting a cherished resource and allowing for growth and much needed economic development.”
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This article was originally published by Bingham McCutchen LLP.