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Alaska Oil & Gas Ass'n v. Jewell

ELR Citation: 46 ELR 20042
Nos. 13-35619 et al., (9th Cir., 02/29/2016) rev'd

The Ninth Circuit reversed a lower court decision vacating FWS' designation of critical habitat in Alaska for the polar bear, a threatened species, and reinstated the designation. The designation encompasses sea ice, terrestrial denning, and barrier island habitat. Oil and gas associations, several Alaska Native corporations and villages, and the state of Alaska challenged the designation under the ESA and APA, and the lower court vacated the rule. It had held that the rule violates the APA's arbitrary and capricious standard, and that FWS failed to follow applicable ESA procedure by not providing the state with adequate justification for the state's comments that were not incorporated into the final rule. The appellate court reversed. FWS’s designation of polar bear habitat was not arbitrary, capricious, or otherwise in contravention of applicable law. The lower court erred in holding FWS to a standard of specificity that the ESA did not require. The standard that FWS did follow in making the designation—looking to areas that contained constituent elements required for sustained preservation of polar bears—was in accordance with the statutory purpose. In addition, FWS' designation of critical denning habitat was not arbitrary and capricious since the designation contained areas requiring protection for both birthing and acclimation of cubs, and FWS adequately explained its treatment of the relatively few areas of known human habitation. FWS also drew rational conclusions from the best available scientific data, as required by the ESA, in its designation of both the terrestrial denning and barrier island habitats, and its assessment of the potential economic impacts was not arbitrary and capricious. Nor did ESA §7 create an additional duty for FWS to consult with states on critical habitat designations. Even if §7(a)(2) contained additional processes regarding critical habitat designation, the plain text of the section indicates that consultation with states is discretionary, not mandatory. And despite the lower court's ruling to the contrary, FWS provided Alaska with adequate justification for the state's comments not incorporated into the final rule pursuant to ESA §4(i).