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American Forest Resource Council v. Ashe

ELR Citation: 43 ELR 20211
Nos. 12-111, (D.D.C., 09/05/2013) (Bates, J.)

A district court upheld critical habitat protections for the marbled murrelet, a small seabird found in the Pacific Northwest that nests in old-growth forests. FWS designated critical habitat for the tri-state population of marbled murrelets in 1996. In 2010, FWS determined that delisting the murrelet was "not warranted" because the tri-state population was a distinct population segment (DPS) under the ESA. Logging groups challenged this determination, and the court remanded to FWS the question whether central California marbled murrelets "interbreed when mature" with other marbled murrelets in the tri-state population. In its remand memorandum, FWS concluded that central California murrelets do interbreed when mature with other murrelets in the tri-state DPS, albeit at low levels. In light of its determination, FWS reaffirmed its significance determination. The logging groups claim that FWS failed to find a rational connection between the fact it found—that low levels of interbreeding occur—and its conclusion that the tri-state DPS, inclusive of central California murrelets, is significant. But because FWS has concluded that central California murrelets are properly included in the DPS, its previously stated rationales remain valid and, in the court's view, are adequate to withstand arbitrary and capricious review. In addition, the court granted FWS' motion for "remand without vacatur" to allow it to reconsider its critical habitat designation for the murrelet in light of post-1996 case law. In designating critical habitat in 1996, FWS concededly did not "identify which designated areas were occupied at the time of listing" or "make an explicit determination that unoccupied areas were essential to conservation of the species." Granting FWS' motion will give the agency an opportunity to cure its own mistakes, will conserve the court's and the parties' resources, and will not unduly prejudice logging interests. The court ordered FWS to submit a new proposed critical habitat designation by September 30, 2015, and a new final critical habitat designation by September 30, 2016. The murrelet critical habitat protections will remain intact during this three-year review period.