"Bears Need Room to Roam": The Ninth Circuit's Questionable Interpretation of Critical Habitat Designation
"Bears Need Room to Roam": The N inth Circuit's Questionable Interpretation of Critical Habitat Designation
Katherine Lee 0 1 2 3 4
0 Law Commons, and the Oil , Gas, and Mineral Law Commons
1 Part of the Administrative Law Commons, Environmental Law Commons , Natural Resources
2 Boston College Law School
3 Thi s Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact
4 Katherine Lee, "Bears Need Room to Roam": Th e Ninth Circuit's Questionable Interpretation of Critical Habitat Designation , 59 B.C.L. Rev. E. Supp. 206, 2018
Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Recommended Citation
1 Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Depatr
ments of Interior and Commerce, 64 U. COLO. L. REV. 277, 296 (1993).
2 Listed Animals, U.S. FISH & WILDLIFE SERV. (“FWS”), https://www.fws.gov/endangered/
?ref=topbar (follow “Threatened and Endangered Animals” hyperlink)
3 See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Summary for Policy Maker,sin
CLIMATE CHANGE 2007: IMPACTS, ADOPTION, VULNERABILITY 1, 8 (Solomon, S. et al. eds., 2007)
(analyzing the broad range of scientific evidence concerning climate change and its impacts).
4 Dave Owen, Critical Habitat and the Challenge of Regulating Small Har,m6s4 FLA. L.
REV. 141, 149 (2012). The World Wildlife Fund (“WWF”) has done extensive research on how
climate change has negatively affected the habitats of a multitude of animal species.Artic, WWF,
https://www.worldwildlife.org/places/arctic [https/:/perma.cc/XQ6L-SPDX]. For example, the
Artic is warming twice as fast as the rest of the world due to the burning of fossil fuelIsd.. This
directly impacts the amount of ice available; many animals, such as the polar bear, depend on the
ice for survival. Id.
ed the Endangered Species Act (“ESA”)to prevent the extinction of plant
and animal species and to promote their recovery.5 The legislative history of
the ESA highlighted major concernsof the potential loss of species.6 Yet,
agency actions and determinations made under the ESA have often come
into conflict with opposing private and economic interests. 7
This Comment explores the U.S. Fish and Wildlife Service’s (“FWS”)
critical habitat designation of polar bears as discussed inAlaska Oil & Gas
Ass’n v. Jewell.8 In February 2016, the United States Court of Appeals for
the Ninth Circuit held that the 187,000 square mile “critical habitat
designation” made by the FWS for the polar bear was not “arbitrary andi-capr
cious” because the FWS used the best available scientific data possib9le.
Although the ESA and its aims are incredibly important, the Ninth Circuit
incorrectly decided Jewell.10 This Comment considers the implications of
this decision and its effect on the regluatory framework going forward1.1
Part I of this Comment lays out the history of the ESA, the method for
porposing critical habitat designations under the Act, and how courts havee-r
viewed these types of agency decisions in the past.12 Part II specifically
examines the Ninth Circuit’s decision in Jewell in which the court deferred to
the FWS’s reasoning and methods of designating large geographical areas
as critical habitat for the at-risk polar bear.13 Finally, Part III argues that the
Ninth Court incorrectly decidedJewell and explores the decision’s
potentially harmful ramifications.14 This decision will continue to affect the
administration of the ESA inregard to critical habitat designations and
endorses an approach in which courts give unrestricted deference to agency
action in the exercise of their statutory authority.15
I. THE STATUTORY FRAMEWORK OF THE ENDANGERED SPECIES ACT
In 1973, Congress enacted theESA in an effort to protect the critical
ecosystems upon which threatened or endangered species of fish, wildlife,
and plants depend.16 Section A of this Part discusses the background of the
initial implementation of the ESA.17 Section B examines the method used to
determine critical habitat designations under the ESA.18
A. Passing the Endangered Species Act
The passing of theESA embodied the country’s newfound commt-i
ment to not only protect the survival of endangered species, ablusot to
make sure that these speciesare revived.19 Congress first articulated its
nitent to take action to thwart the problem of declining species in the
Endnagered Species Preservation Act of 1966—the first environmental statute to
impose a requirement to utilize science in environmental decisions made by
an administrative body.20 This law permitted the creation of a list of species
threatened with the possibility of extinction2.1 The ESA of 1973 is a much
more comprehensive piece of legislation and calls for the use ofany means
necessary to bring all species to a state in which involvement of the ESA is
13 See infra notes 55–128 and accompanying text.
14 See infra notes 129–153 and accompanying text.
15 See infra note 133 and accompanying text.
16 16 U.S.C. §§ 1531-44. The ESA defines a species as endangered when it is vulnerable to
becoming extinct in a sizable area of its habitat, and a species is threatened when, in the
immediate or near future, the species could become an endangered species within a sizable area of its
habitat. Id. § 1532.
17 See infra notes 19–33 and accompanying text.
18 See infra notes 34–54 and accompanying text.
19 See 16 U.S.C. §§ 1531(b), 1532(3).
20 Endangered Species Preservation Act of 1966, Pub. L. No. 68699-, 80 Stat. 926 (1966)
(repealed by 16 U.S.C. §§ 1531-44) [hereinafter ESPA]. The ESPA proposed creating and
manitaining a conservation program that helped with the restoration of certain species “threatened with
extinction.” Id. The ESPA also gave more authority to the Secretary of the Interior to administer
the Wildlife Refuge System.Id. The ESPA was the first attempt by Congress to raise awareness
for the growing concern of protecting wildlife and endangered species. Id.
21 Id. The ESPA did not contain any concrete provisions that restricted or monitored the
activities of federal agencies. Darin, supra note 7, at 211.
no longer necessary.22 Protection of critical habitats flow largely from
Section Seven of the ESA, which prohibits federal agencies from taking,
permitting, or funding any action that is likely to result in the negative altae-r
tion of a critical habitat.23
The ESA directs the Secretaries of the Interior and Commerceo t list
endangered and threatened species for federal protection24. The FWS then
uses the best scientific and commercial data available to determine whether
a species needs be listed.25 Within a year of listing a species as threatened,
the ESA requires the FWS to designate habitatsas critical to the
conservation of the species.26 Section Three of the ESA defines a “critical habitat” as
including both the occupied and unoccupied habitats that the species needs
for recovery and tha,t therefore, should be protected2.7 In 1978, the ESA
was amended to redefine “critical habitat” as the first statutory definition
did not explicitly indicate that the designation of a critical habitat included a
protected species’ “entire range,” or the area where a pacrtuilar species
could be found in their lifetim,eincluding areas of migration or
hiberantion.28 The 1978 amendments also required the Secretary of the Interior to
consider the economic impact of the critical habitat designation on its
ef22 See 16 U.S.C. §§ 1531(b), 1532 (asserting that the purpose of the ESA is to create a
comprehensive plan to protect and preserve the environments in which threatened or endangered
sepcies depend, so much so that the protections of the ESA will eventually no longer be required).
23 Id. § 1536. Federal agencies are expected to participate in the conservation of endangered
or threatened species.Id. Agencies are not allowed to act in a way that would “jeopardize” or
harm designated critical habitats in any way. Id.
24 Id. § 1533(a)(1)(2) (explaining that a species cannot be removed or have its status changed
without approval from the Secretary of Commerce). Currently, there are five species that are under
review to determine if they are worthy of federal protection under the ESA. Brian HiresP,etitions
to Federally Protect Five Wildlife Species Move Forward to Next Review PhaseF, WS (Dec. 19,
https://www.fws.gov/news/ShowNews.cfm?ref=petitions-to-federally-protect-five-wildlifespecies--move-forward-to-n&_ID=36201 [https://perma.cc/ZXK4-GYRA]. These species include
the oblong rocksnail, tricolored bat, sicklefin chub, and Venus flytrap. Id.
25 50 C.F.R. § 424.12 (2016).
26 16 U.S.C. §1533(a)(3)(A), 1533(b)(
)(C). The year deadline can be extended to acquire
additional scientific data with respect to the proposed regulation. Id. § 1533(d)(
27 Id. § 1532 (
)(A)(i) (specifying that that Secretary of the Interior has the discretion to
cnosider areas as “critical habitat” that are “outside the geographical area occupied by the species”).
28 See James Salzman, Evolution and Application of Critical Habitat Under the Endangered
Species Act, 14 HARV. ENVTL. L. REV. 311, 320 (1990) (explaining other significant
1978amendments to the ESA, such as the requirement of the FWS to consider economic impacts of critical
habitat designation and to engage in a cos-tbenefit analysis). A species can be delisted or deemed
to be “recovered” when the available science purports that the species is no longer endangered or
threatened. 50 C.F.R. §424.11. The process of deciding to delist a species is very similar to the
process of adding a species to the list; it is a very scientific and involved analysis. FWSD,
ELISTING A SPECIES 1 (2011), https/:/www.fws.gov/endangered/esa-library/pdf/delisting.pdf [https://
perma.cc/33S7-YJ96]. After a species is delisted, the FWS continues to monitor the species for a
period of five years to make sure that the species is able to survive without the measurements
taken under the ESA. Id. at 2.
fected territory.29 Areas may not be included in the critical habitat
designation if the impact on the economy is greater than the advantage of including
that area.30 This amendment came about in reaction to the Supreme Court’s
decision in Tennessee Valley Authority v. Hill, which prioritized the
protection of the endangered snail darter over the construction of the Tellico Dam
on the Little Tennessee River3.1 This was a project on which Congress had
spent large sums of public money,but yet the Court was willing to halt the
project in favor of the survival of thsenail darter.32 This decision marked
not only the first interpretation of the ESA by the Court, but it also
exemplified a heightened level of significance placed on endangered and threatened
species due to the fact that the Court’s holding had interpreted the ESA to
prioritize species conservation over the aims of another federal project.33
B. The Critical Habitat Designation Under the ESA
The regulations under the ESA lay out specfiic procedures and
mehtods that the FWS must follow in determininga critical habitat designation
for any threatened or endangered species3.4 When considering the
designation of critical habitat, the FWS must focus on physical and biological
faetures essential for the species’ success.35 The FWS can designate areas that
are currently unoccupied by the species in question, as long as it can show
that the area would be considered essential for conservation.36 Furthermore,
29 See Salzman supra note 28 at 320 (describing how this 1978 amendment now required the
Secretary of the Interior to consider social implications of critical habitat designation).
30 16 U.S.C. § 1533(b)(2). The Secretary will also examine a critical habitat’s impact on
antional security. Id.
31 Hill, 437 U.S. at 172–73; see also ZYGMUNT J.B. PLATER, THE SNAIL DARTER AND THE
DAM: HOW PORK-BARREL POLITICS ENDANGERED A LITTLE FISH AND KILLED A RIVER 4 (2013)
(explaining that the media and the public erroneously portrayed the case as a hindrance to
anmiportant federal project).
32 Hill, 437 U.S. at 174. More than $110 million had been spent on the dam before it was
halted due to litigation. Id. at 200. Congress had spent ample resources on the dam from 1967 to
1977. Id. at 158. The project intended to bring a large number of jobs and economic benefits to the
region. PLATER, supra note 31, at 18.
33 Hill, 437 U.S. at 194. The Court focused on Congress’s “plain intent” and the cleanr- la
guage set out in the statute that prioritized endangered species conservation over the goals of other
federal agencies. Id. at 196. The Court noted that Congress anticipated that Section Seven of the
ESA would possibly require agencies to change the course of their projects in order to fulfill the
primary aim of species conservation. Id. at 186–87.
34 See 50 C.F.R. § 424.12 (requiring the FWS to use the “best available science” when
idenitfying what constitutes a critical habitat).
35 See id. § 424.12(b)(1)(ii) (noting that the findings of the physical and biological features
essential for the species are not solely limited to the region occupied by the species when it was
36 See id. § 424.12 (deciding whether an area is essential for conservation is a determination
that is impacted by the life history of the species, the current endangered status of the species, and
other scientific data).
the FWS must take into consideration the economic implications of defining
a particular area asa critical habitat before making its final designation37.
The agency must also look beyond evidence of actual presencoef certain
species to areas where those species are likely to be found.38
When the FWS proposes a critical habitat designation, it mustcomply
with the rulemaking procedureslaid out in theESA.39 Once the FWS has
decided on a critical habitat, the agency must give general and specific
ontice of the proposed rule4.0 General notice is satisfied when the FWS
pbulishes a map ofthe proposed designation in the Federal Register ande- r
quests public comments in accordance with the Administrative Procedure
Act (APA).41 This notice and comment process provides anopportunity to
inform affected parties of potential critical habitats in order to gain feedbakc
and afford them the opportunity toparticipate in the rulemaking process4.2
Further, the FWS is required to give state agencies specific notice of the
proposed regulation.43 These affected parties may then submit written comments
that are considered before the Final Rule of the habitat designation misade
effective.44 After taking public comments into consideration, the agency
publishes the final rule in the Federal Register anmdust include a statement
explaining the rule’s basis and purpose.45 In the event that the approved
des37 See id. § 424.19 (explaining that the Secretary of the Interior has discretion to engage in a
cost benefit analysis, considering if the economic benefit of excluding an area from a critical
habitat outweighs the benefit of including the portion as part of a critical habitat). For example, in
Jewell, the plaintiffs primarily raised concerns that the critical habitat designation for the polar
bear would impact oil and gas development. INDUS. ECONS., INC., ECONOMIC ANALYSIS OF
CRITICAL HABITAT DESIGNATIONS FOR THEPOLAR BEAR IN THEUNITED STATES ES-5 (2010),
CR3J-4XRA]. Oil and gas associations feared that the designation would influence decisions to
invest in the region, which would be problematic considering that oil and gas development is the
predominant economic activity in this remote area of Alaska.Id. Oil and gas industries are subject
to regulations that would restrict them from engaging in projects that were within one mile of a
polar bear den. Id. at ES-8.
38 See Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1165–67 (9th Cir.2010)
(holding that the large area designated for the Mexican spotted owl was legitimate because the ESA
does not intend to exclude “unoccupied” areas from critical habitat designations).
39 16 U.S.C. § 1533(b).
40 Id. § 1533(b)(
41 Id. Additional notice can come in the form of general newspaper circulation or a public
hearing. Id. § 1533(b)(
42 See id. § 1533(b)(4) (referencing the informal rulemaking sttuate in the Administrative
Procedure Act (APA)). The APA’s informal rulemaking procedures applies when an agency is
engaging in informal rulemaking under congressionally delegated power. 5 U.S.C. 5§53 (2012).
All agencies must engage in a notice and comment period and call for the public to participate in
the rulemaking process. Id.
43 16 U.S.C. § 1533(b)(
)(A). The ESA provides additional procedures beyond the APA by
requiring the FWS to specifically give actual notice to state agencies. Id.
44 5 U.S.C. § 533.
ignation of a critical habitat conflicts with what the state’s desired
designation, the Secretary of the Interior must provide the state with a written
justification for its decision to designate a habitat as “critical.”46 Once an area is
designated as a critical habitat, Section Seven(a) of the ESA creates
regulatory protections that require federal agencies to take extra precautions to
protect the conservation of the species and taovoid negatively impacting
the characteristics of the habitat.47
The ESA requires that the methodology for determining what conis-t
tutes a critical habitat be grounded in “the best available scientific data.4”8
The Endangered Species Conservation Act of 1969 (the “1969 Act”)
inotrduced the “best available scientific data” requirem,enwthich has been
largely unaffected by thepassage and implementation of the ESAonly a
few years later4.9 The “best available scie ntific data” standard, however,
was not more specifically defined by either the 1969 Act or the ESA.50
The standard has been debated in light of decisions regarding the ESA,
with the Ninth Circuit weighing in on the issue inits recent decisions.51 In
San Luis & Delta-Mendota Water Authority v. Locke, the Ninth Circuit not
ed that an agency decision should onlybe rejected when the court cannot
infer a rational relationship between the decision and the utilized science5.2
The court gave great deference to an agency decision undetrhe ESA,
upholding the National Marine Fisheries Service determination concerning
water projects and endangered species fish; the court held that the highest
deference to agencies should be given when reviewing an agency decision
with a high level of “expertis”e5.3 This deferential approach will be
explained more thoroughly later in this Comment.54
II. AGENCY DEFERENCE: THE NINTH CIRCUIT UPHOLDS POLAR BEAR
CRITICAL HABITAT DESIGNATION
When an agency action is challenged by an interested party, courts will
often give a great amount of deference to the agency’s determination.55 This
Part of the Comment will explore the idea of agency deference and how it
applies to the Ninth Circuit’s decision in Alaska Oil & GasAss’n v.
Jewell.56 Section A will discuss why courts apply deference to agency decisions
under the ESA5.7 Section B will explain the FW’Ss decision to designate
187,000 square miles as critical polar bear habitat.58 Section C will examine
the court’s review of the FWS’s critical habitat designation, particularly the
analysis of the terrestrial and denning habitats and the procedural question
of whether the FWS provided adequate written justification to the State of
Alaska in their Final Rule.59
A. Deference to Agency Decisions Under the APA
The FWS has great deference in interpreting the ESA.60 Under the APA,
the review of any agency action by the courts should be deferential and nr-a
row.61 The deferential and narrow standardcourts use is rooted in
theSupreme Court’s 1984 decision in Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc.62 Under a Chevron analysis, the courtreviewing an
agency determination must consider(1) whether Congress specifically
addressed the question at issue and(2) if it was not addressed by Congress,
whether the agency’s interpretation of the statute was reasona63blAe.fter
Chevron, courts generally give deference to the agency decision and presume
it to be valid upon review.64 When a court does overturn an agency decision,
that decision must have been “arbitrary and capricious,” or an action that was
clearly contrary to law.65 The question of how to interpret the “arbitrary and
capricious standard under the APAhas been repeatedly examined by the
Court.66 The Court has held that the standard is highly deferent;iaylet, the
review should still ensure that the agency has taken relevant factors into
consideration and come to a reasonable conclusion67. The Court has also stated
that an agency action would only be set aside in extreme circumstances, such
as when the agency had altogether failed to consider an important factor in its
analysis or failed to provide a reasonable relationship betweenits decision
and the discovered facts.68 Alternatively, deference to an agency decision is
most crucial when a court is inquiring about a decision that eixsceedingly
technical and requires expertise only specific agencies can provide.69
discuss scope of review broadly but rather focused on the smaller dispute concerning the Clear Air
63 Chevron, 467 U.S. at 842–43; see also Brandon Curtin, Comment, Deference to the Agency
Is the Best Policy: The CD. Circuit AppliesChevron in Denying Additional Medicare
Rmeibursements to Provider Hospitals inWashington Regional Medicorp, 58B.C. L. REV. E. SUPP.
289, 295 (2017), http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3585&context=
bclr [https://perma.cc/PU8S-Y7TF] (arguing that the D.C. Circuit correctly applieCdhevron by
deferring to the Secretary of Health and Human Service’s calculation of medical reimbursements).
64 See United States v. Mead Corp., 533 U.S. 218, 218 (2001) (emphasizing tChahtevron
deference applies when Congress has delegated rulemaking authority by statute to the agency).
65 5 U.S.C. §706(2)(A); Ariz. Cattle Growers’ Ass’n v. Salaza, r606 F.3d 1160, 1163 (9th
66 See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (holding that a federal
agency is not required to prepare a supplemental Environmental Impact Statement each time ne wn- i
formation is brought forth that could impact the agency action in some manner). An
Environmental Impact statement is required by theNational Environmental Policy Act when an agency wants
to take on a major project and requires that the agency set forth how the proposed project could
negatively or positively affect the environmentS.ee Environmental-Impact Statement, BLACK’S
LAW DICTIONARY (10th ed. 2014).
67 Environmental-Impact Statement, BLACK’S LAW DICTIONARY (10th ed. 2014).
68 See, e.g., Motor Vehicles Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (holding that the National Highway TrafficSafety Administration did not
provide a rational basis for rescinding a requirement of “passive restraints” in automobiles such as
airbags or seatbelts). The Courtfocused on the factit could not defer to the agency because the
agency jumped to a conclusion regarding the safety benefits of the “passive restraints” too quickly
without taking important factors into consideration that were imperative to a reasoned analysis. Id.
69 Marsh, 490 U.S. at 377. The Court points out that even when the situation is highly hte-c
nical, courts should carefully examine the record in order to determine if the agency has made a
reasonable decision. Id.
Many recent cases before the Ninth Circuithave required the court to
review agency decisions under the APA7.0 The Ninth Circuit has described
the arbitrary and capricious standard as deferential and narrow, with a high
threshold for setting aside agency action7.1 Additionally, the Ninth Circuit
has indicated that so long as the agency looks at relevant factors and
idenitfies a connection between the situation and the choices made, the court
should defer to the expertise of the agency and uphold the designati7o2n.
For example, in River Runners for Wilderness v. Martin, the court examined
whether the National Park Service acted arbitrarily or capriciously in
deciding to allow the continued use of motor rafts in the Grand Canyon National
Park.73 The court found that the agency’s evaluation of relevant factors such
as the impact on the environment (soil, water,and vegetation) and the
impact on the management of the national park (visitor experience and park
operations) was sufficient; the agency had also appropriately taken the
alternative options into adequate consideration.74
Due to its large geographic scope, the Ninth Circuit hears the majority of
appeals related to ESA determinations of critical habitat designation7s5. The
states within the Ninth Circuit contain ovoenre-hundred endangered or
threatened species listed by the FWS.76 One notable decision, Arizona Cattle
Growers’ Ass’n v. Salazar, exemplifies how the Ninth Circuit has consistently
given deference to agenciesin determining both the scope of the area set
aside for critical habitat designation and the economic impacts worthy of
consideration.77 The Ninth Circuitspecifically addressed a challenge ttohe
FWS’s critical habitat designation for the Mexicanspotted owl.78 The
plaintiffs challenged the designation as overbroad and argued thathe FWS failed
to sufficiently consider the economic impacts of the designation.79 The FWS
argued that the ESA’s definition of critical habitat includes geographical areas
that are used with such frequency by a listed species that the species is
considerably likely to be there, not just the area where the species “resid8e0s.”
The Ninth Circuit upheld the District Court for the District of Arizona’s grant
of summary judgment in favor of the FWS8.1 The court noted that whether a
species “occupies” an area is dependent on the specificfacts of each
individual case and should be evaluated on a cas-eby-case basis.82 Additionally, the
court reasoned that limiting occupied areas to those in which a species e“-r
sides” focuses too narrowly on survival and ignores the broader statutory
purpose of the critical habitat designation, which includes conservation.83
Other circuits have refused to give as much deference to the agency in
regard to critical habitat designations.84 For example, in Otay Mesa
Property, L.P. v. United StatesDepartment of Interior, the United States Court of
Appeals for the District of Columbia Circuit held that there was not
“sbustantial evidence” provided by the FWS to support a critical habitat degs-i
nation for the San Diego fairy shrimp.85 The FWS had based the proposed
habitat designation on eight surveys ofthe plaintiff’s land.86 Seven of the
78 Id. at 1161.
79 Id. at 1162.
80 Id. at 1165. The court specified that the FWS has the authority to designate an area as
occupied when the owl uses the area regularly and when the species could be spotted there within a
reasonable time period. Id.
81 Id. at 1171. The court found that the FWS properly used a “baseline approach” to analyze
the economic effect of the critical habitat designation. Id. The court found it to be correct to
disregard any economic impacts that would occur even if the critical habitat designation had not been
put in place. Id. at 1173. The plaintiff’s argument rested on a “coe-xtensive approach” that had
been applied in New Mexico Cattle Growers Ass’n v. U.S. Fish & Wildlife Service, 248 F.3d 1277,
1283 (10th Cir. 2001). Id. at 1172. The Tenth Circuit held that the FWS should look at any and all
economic impacts of a critical habitat designation “regardless of whether the impacts are
coextensive with other causes.” N.M. Cattle Growers Ass’n, 248 F.3d at 1284. The court in Salazar
believed this was too narrow and held that the FWS permissibly applied the “baseline approach.”
Salazar, 606 F.3d at 1173–74.
82 Salazar, 606 F.3d at 1164. The court cautioned against situations where the FWS relies on
inconclusive data, such as when a species uses an area of critical habitat sporadically.Id. at 1166–
83 Id. at 1166. The court also held that the FWS did not arbitrarily or capriciously treat
unoccupied areas as occupied and that the amount of land designated as critical habitat for the owl was
not disproportionate to the amount of land occupied by the owl. Id. at 1170–71.
84 Otay Mesa Prop., L.P. v. U.S. Dep’t of Interior, 646 F.3d 914, 916 (D.C. Cir. 2011).
85 Id. at 918. The San Diego fairy tale shrimp was listed by the FWS as an endangeredspecies
in 1997. Id. The fairy shrimp is found in southern California and northern Mexico and is a small
water animal about the size of an ant. Id. at 916.
86 See id. at 915 (noting that in 2001, there was a just single sighting of four fairy shripmon
the plaintiff’s property).
surveys did not find any fairy shrimp on thpelaintiff’s property; yet, the
FWS still included the property in the critical habitat designationbased on
the fact that the fairy shirmp had been identified there on oneoccasion.87
The court held that this was not enough to show that the shrimp “occupied”
the land in question88. The substantial evidence standardapplied by the
D.C. Circuit is still a deferential standard, but the court noted that deference
should not result in “abdication.”89
B. The Designation of Critical Polar Bear Habitat
On May 15, 2008, theFWS listed the polar bear as a species thret-a
ened under the ESA.90 Polar bears are native to the ice-covered waters of
the Arctic Circle.91 Polar bears rely on this icy landscape for their survival,
but the extent and quality of the Arctic Sea ice is declininga,long with the
polar bear population.92 In 2008, the FWS studied how the decline in sea ice
would negatively impact the polar bear populationand determined that it
would reduce the abundance of available sea-ice prey, leading to nutritional
In 2009, the FWS proposed to designate the northern area ofAlaska’s
coast and waters as a critical habitat for the polar bear.94 In 2010, after
proposing a rule and holding two public comment periods, the FWS designated
87 Id. at 918. During oral argument, the FWS used maps to show that the property in question
was part of a “complex” of pools of water that were essential for fairy shrimp conservation efforts.
an area of approximately 187,157 square miles as critical polar bear hia-b
tat.95 The FWS identified three areas containing elements essential to polar
bear conservation: sea ice habitat (“Unit 1”), terrestrial denning habitat
(“Unit 2”), and barrier island habitat (“Unit 3”9)6. Unit 1 included the sea
ice that polar bears use as a platform for hunting and rest,incgomprising
almost ninety-six percent of the total area designated.97 Units 2 and 3
comprised the remaining four percent.98
The designation raised concerns with oil and gas trade associations,
several of Alaska Native corporations and villages, and the State of Ala9s9ka.
These groups wanted to make use of the natural resources in Alaska’s waters
and North Slope.100 In 2011, these three groups filed complaints challenging
the designation and claiming that the FWS made numerous errors in the
critical habitat designation, both substantive and procedu1r0a1l.The plaintiffs
claimed that the entire designation was improper under the ESA because the
FWS arbitrarily designated large land and sea ice masses, but it did not
identify specific areas containing the physical and biological features essential for
polar bears.102 The plaintiffs also argued that bynot adequately justifying its
95 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the
Polar Bear (Urus maritumus) in the United States, 75 Fed. Reg. 76,085, 76,086 (Dec. 7, 2010) (to
be codified at 50 C.F.R. pt. 17) [hereinafter Designation for Polar Bear 2010]. The Federal
Regsiter gave notice of the critical habitat designation that was to become effective on January6, 2011.
96 Jewell, 815 F.3d at 552.
97 See id. (noting that within each unit, the FWS pointed to essential physical and biological
features that were critical to polar bear habitat conservation).
99 Id. at 553. The district court later consolidated the three cases. Plaintiff’s Unnaposed
oMtion to Consolidate Related Polar Bear Critical Habitat Litigation at 2, Alaska Oil & Gas Ass’n v.
Salazar, 916 F. Supp. 2d 974 (D. Alaska 2013) (No. 3:-1c1v-00025-RB) [hereinafter Plaintiff’s
100 See Plaintiff’s Unopposed Motion, supra note 99, at 4. (noting that while all groups had
separate interests, it made logical sense to combine the cases considering each claimed that the
critical habitat designation violated the ESA and the APA, and all sought declaratory and
101 Id. The objecting parties filed a separate action under the ESA and the APA. Id. Alaska Oil
and Gas Association is a private, non-profit trade organization that represented fifteen oil and gas
companies. Id. They identified themselves as the “principal industry stakeholders” operating
within the critical habitat for polar bears in Alaska. Complaint for Declaratory and Injunctive Reliefat
3, Salazar, 916 F. Supp. 2d 974 (No. 11CV00025). The State of Alaska also sued as a sovereign
state with an interest in regulating the wildlife in its jurisdiction. Plaintiff’s Unopposed Motion,
supra note 99, at 3. The Arctic Slope Regional Corporation, a group of ten native Alaskan
coroprations, an Alaskan tribunal government, and the North Slope Borough, sued as wIdel.l.This
group filed because they owned a substantial amount of land located within the critical habitat
102 Plaintiff’s Unopposed Motion, supra note 99. The FWS defined “physical or biological
features” for purposes of the definition of critical habitat as follows:
failure to incorporate the State of Alaska’s comments into the Final Rule, the
FWS violated the procedural requirements laid out in the ESA.103
C. Judicial Review of the Critical Habitat
The district court agreed with the FWS’s habitat designation for Unit 1
104 The court did not
en(the sea ice habitat) as critical polar bear habitat.
dorse the FWS’s designation for Units 2 and 3 (dens and barrier islands).105
Unit 2, the terrestrial denning habitat, was intended to provide a protected
area for the birth and acclimation of young cubs.106 The court found that the
method used by the FWS in identifying which den sites to use was arbitrary
and capricious because it used a five mile inland measurement, without
specifically identifying where within that area all elements of a denning habitat
were located.107 Unit 3, the portion of “barrier island habitat”, was used for
denning, refuge, and migration along the coast to access dens anfdeeding
locations.108 The district court held that that the area should only consist of
places where current populations of polar bears exis;t consequently, Unit 3
was too broad.109 The court also held that the FWS violated the rulemaking
requirements under hte ESA because the agency did not provide an ea-d
The features that support the life-history needs of species, including but not limited
to, water characteristics, soil type, geological features, sites, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat characteristic, or a
more complex combination of habitat characteristics. Features may include habitat
characteristics that support ephemeral or dynamic habitat conditions. Features may
also be expressed in terms relating to principles of conservation biology, such as
patch size, distribution distances, and connectivity.
50 C.F.R § 424.02 (2016).
103 See Plaintiff’s Unopposed Motion,supra note 99; see also 16 U.S.C. §1533(i) (2012)
(requiring the FWS to provide a written justification when a state agency disagrees with
104 Jewell, 815 F.3d at 553.
105 Id. The district court concluded that there was not enough evidence put forth by the FWS
to show that these areas had required physical and biological features of a critical habitat, and that
the FWS did not meet the standard of proof required under the statute. Id.
106 Designation for Polar Bear 2010,supra note 95, at 76,099 (explaining that polar bears
must be able to get to potential den sites or geographical areas that assist them in raising young
107 Jewell, 815 F.3d. at 557. The FWS has usead five-mile increment measurement inland
from the coast to define the area of designation.Id. The FWS used a U.S. Geological Survey as a
means for creating the map. Id. at 558.
108 Designation for Polar Bear 2010,supra note 95, at 76,115. Thebarrier island habitat is
defined in broad terms and includes not only the barrier islands themselves but also the water and
ice surrounding the islands and any habitats on shore within one mile. Id.
109 Jewell, 815 F.3d at 561.
quate justification for why it did not incorporate all of the State of Alaska’s
comments into the Final Rule.110
In February 2016, the Ninth Circuit reversed the district court’s decision,
upholding the habitat designation entirely.111 The court held that the standard
the FWS followed in the creation of the Final Rule was in accordance with
the statutory purpose of promoting the recovery of the specieswhich it seeks
to protect.112 In reviewing Units 2 and 3, the court rationalized the FW’sS
approach by relying on the polar bear’s nomadic nature1.13 The Ninth Circuit
disagreed with the lower court’s narrow focus on the locations of where
actual and probable den sites of polar bears were located, notingthat bears need
“room to roam.”114 The lower court erred in believing that the area should
only consist of places where current populations of polar bears ex1is15t.
Instead, the focus should be on species preservation, andthe FWS’s broad
definitions of the brarier islands were permissible1.16 While the plaintiffs
disagreed with the breadth and scope of the designation, they could not
specifically ascertain the evidence the FWS failed to consider.117
Finally, the court discussed the issue of whether the FWS had provided
adequate written justification in the Final Rule to the State of Alaska.118 This
was the first time that this question of written justification adequacy had been
addressed by the Ninth Circuit.119 The district court had originally faulted the
FWS for only incorporating theits response to the State of Alaskaby
refer110 Id. The Ninth Circuit found that the procedure was still correct, even though under the
statute, the FWS should have specifically sent the letter to the Alaska Department of Fish and
Game, rather than to Alaska’s governor.Id. The letter also did not specifically include verbatim
111 Id. at 550. The court focused on deferring to an agency using a narrow standard, especially
when the action is “considered and rational.”Id. at 554. The threshold was considered very high
by the court to discredit a decision made by an agency. Id.
112 Id. at 556. The court lookedclosely at the critical habitat designations by the FWS for
Units 2 and 3. Id. at 556–61. Specifically, for Unit 2, the Ninth Circuit stated that the FWS used a
rational mapping methodology in determining which denning areas were used by the polar bear.
Id. at 558. The five-mile demarcation from the coast used by the FWS was considered by the
Ninth Circuit to be a rational and we-llsupported method, considering that some bears den as far
as fifty miles away from the coastline. Id.
113 Id. at 559. The FWS’s argument was largely based on the nomadic nature of the species.
114 See id. (focusing on the fact that polar bears are mobile and that while they may tend to
stay loyal to particular denning areas, they do not always stay in one particular den).
115 Id. at 561.
116 See id. (stating that the designation aligned with the underlying purpose of the ESA).
117 Id. at 562. The court did not require any more specificity in their determinations than they
had already made. Id.
118 See 16 U.S.C. §1533(b)(
)(A)(ii) (requiring the FWS to give state agencies notice of a
proposed regulation and to provide an explanation to the state if they decide to provide input).
119 Jewell, 815 F.3d at 562. The court adopted the D.C. Circuit’s approach that reviews only
whether the FWS satisfied§ 4(i) of the ESA from a procedural standpoint and will not subsnt-a
tively look at the written justification itself. Id.
ence to a letter to the governor after the Final Rule was adopted; the district
court stated that this was inadequate.120 The Ninth Circuit, however,took a
more permissive approach in interpreting whwaats required under the
ESA.121 The court concluded that including theresponse by reference was
sufficient under the ESA.122 By stating its positions clearly in the Final Rule,
rather than specifically addressing each of the State of Alaska’s comments,
the court found that the FWS had still satisfied the statutory standard.123
The court’s decision highlights that considering the statutory purpose
of species protection, it would be unreasonable to limit protections for polar
bears only to areaussed by existing, threatened populations of polar
bears.124 The Ninth Circuit agreed withthe FWS’ assertion that the district
court held the agency to a level of precision that was not required by the
ESA.125 The Ninth Circuit reasoned that the method used was not arbitrary,
capricious, or contrary to lawbecause the agency provided a rational
realtionship between the scientific facts available and the decision m1a26de.
Therefore, the Ninth Circuit deferred to the agency’s evaluation of what was
necessary for species conservation.127 The Ninth Circuit stated that the
lower court had held the FWS to an unnecessarily high standard of specificity.128
III. POTENTIAL ISSUES WITH THE NINTH CIRCUIT’S PERMISSIVE
CRITICAL HABITAT STANDARD
This Part explains why the permissive standard applied by the Ninth
Circuit could be a problematic interpretation of the ESA.129 At the time that
the critical habitat designation was created for the polar bear, theFWS
con120 Id. at 563. The district court found that the FWS should have specifically incorporated all
its comments into the Final Rule, but it failed to do so and thereby violated §4(i) of the ESA. Id.
122 Id. The court found that it was clear from the record that all comments were responded to
in some shape or form, and that the statute does not require that the state is content with theop-r
vided justifications. Id.
123 Id. Due to the fact that this was a procedural question, the Ninth Circuit decided not to
specifically consider the content of the answers provided by FWS in addressing the concerns of
the State of Alaska. Id. at 563–64.
124 Id. at 556.
125 Id. at 555. The district court required the FWS to provide specific and tailored evidence of
areas the polar bears used throughout Units 2 and 3.Id. For example, for Unit 2, the district court
believed the FWS should have identified specific den sites. Id. The Ninth Circuit said that this was
too specific; the FWS should not use such a narrow constructionI.d. Specifically, the Ninth
Circuit noted that the ESA “requires the use of best available technology, not perfection.” Id.
126 Id. at 556.
127 See id. at 554, 562 (highlighting that the FWS acted reasonably under what the ESAe- r
128 Id. at 556.
129 See infra notes 130–153 and accompanying text.
sidered the designation to be a fairly inconsequential aciton.130 The FWS
believed that no additional regulatory changes, minor economic impacts,or
slight changes to polar bear conservation requiremenwtsould occur.131
Consequently, the decision in Alaska Oil & Gas Ass’n v. Jewell arguably
embodies a change in law that raises questions of how the FWS may
approach critical habitat designations going forward.132
The Ninth Circuit created a permissive standard for the FWS mtoake
critical habitat designations using the best available scienc1e3.3 The court in
Jewell found that the FWS used the best possible methodology in determining
the critical habitat designation because they used the scientific data that was
available to them.134 The court made a pointof stating that the broad
geographical scope of the designation was consistent with the statutory purpose
of sustaining the preservation of polar bears; therefore, the designation was
not arbitrary or capricious.135 Potential problems arise from the fact that
currently the best available science requirement is met as long as the agency
takes the available data into account1.36 In 1992, the Ninth Circuit held that
even if the data is weak, the reliance on that questionable data would not
automatically render an agency decision arbitrary or capricious.137 Further,
Jewell is not the latest Ninth Circuit case to give such deference to the FWS when
examining the utilized scientific methodology.138 The Ninth Circuit hasalso
continued to apply such a permissive standard in its more recent decisions.139
It is possible that the Ninth Circuit would continue to approve critical
habitat designations on remarkably large geographic areas with a minimal
supportive scientific data.140 This could set a precedent for even more
problematic decisions in the future1.41 Such a lax standard may promote forum
shopping and an increase in venue disputes in order for aggrieved parties to
avoid a ruling under the permissive Ninth Circuit standard.142 Plaintiffs may
attempt to bring suit in the D.C. Circuit where the FWS is based1.43 As
previously discussed, the D.C. Circuit’s “substantial evidence” standard
arguably raises the bar for agency deference an d, therefore, could result in more
favorable results for plaintiffs thanif they brought suitin the Ninth
Cricuit.144 Further, these types of decisions could have significant and lasting
effects on state economies.145 In Alaska, the approval of the polar bear
critical habitat designation creates a regulatory burden on oil and gas
exploartion efforts, which could adversely impact job creation and economic
growth.146 If the Ninth Circuit’s permissive approach continues to control
the review of critical habitat designationsby the NWS, the implementation
of the ESA will have little judicial oversight. 147
arguing that the population of seals was “plentiful” and that the scientific data used by the agency
was questionable in nature. Id. at 675.
139 Id. at 675. The NMFS used two distinct approaches to determine the impact of water
temperatures on seals and sea iceI.d. at 672. Their findings estimated that certain types of sea ice
would be completely eliminated by 2050.Id. at 679. An independent reviewer opined that seals
would continue to disappear. Id. at 680.
140 Plaintiff’s Petition for Writ of Certiorari, supra note 75, at 32.
141 See id. (arguing that the Jewell decision creates a dangerous precedent that allows for the
continued designations of vast regions as critical habitats, even though this may directly contradict
with Congress’ original intent in creating the ESA).
142 Forum Shopping, BLACK LAW’S DICTIONARY (10th ed. 2014). Forum shopping is defined
The practice of choosing the most favorable jurisdiction ocrourt in which a claim
might be heard. A plaintiff might engage in forum shopping for example by filing a
suit in a jurisdiction with a reputation for high jury awards or by filing several si
milar suits and keeping the one with the preferred judge.
143 See Plaintiff’s Petition for Writ of Certiorari,supra note 75 (noting that since the FWS is
based in Washington, D.C., the D.C. Circuit is next in line for the number of cases heard regarding
critical habitat designations).
144 See Otay Mesa Prop., L.P. v. U.S. Dep’t of Interior, 646 F.3d 914, 916, 918 (D.C. Cir.
2011) (holding that the FWS did not provide enough scientific evidence to support a critical
haibtat designation and that the reasoning provided by the FWS was “too thin to justify the action”).
145 Plaintiff’s Petition for Writ of Certiorari,supra note 75, at 28. Other courts have rejected
the Ninth Circuit’s standard and are arguably more stringent in their review of critical habitat
designations. See Otay Mesa Prop., 646 F.3d at 916, 918–19 (holding that substantial evidence did
not support the FWS determination that property was occupied by shrimp).
146 INDUS. ECONS., INC., supra note 37, at 3-15–17.
147 Plaintiff’s Petition for Writ of Certiorari, supra note 75, at 31.
The Supreme Court will soon be able toprovide insight into the
daministration of the ESA and the deference given to agency determinations14.8
On January 22, 2018, the Court granted certiorari to acase from the Fifth
Circuit, Weyerhaeuser Co. v. United States. Fish & Wildlife Service, involving
the FWS’s designation of private Louisiana land as critical habitat for the
dusky gopher frog.149 The private land at issue, however, currently contains no
gopher frogs, and the FWS concedes that the designation could result in major
economic loss for the landowners.150 The FWS argues that the area is essential
because it could provide an important breeding site forspecies recovery in the
future.151 The Court will address the question of whether the ESAprohibits
private land as being designated for critical habitat if it is currently unoccupied
by the species.152 The Court will have an opportunity to strikea greater
balance between species preservation and economic or private interests.153
The Ninth Circuit decision in Alaska Oil & Gas Ass’n v. Jewell creates
an impermissibly broad standard in approaching critical habitat
desigantions. While the ESA was created with the intent to protect and conserve the
numerous populations of threatened species inthe United States, the Ninth
Circuit has overly broadened the scope of the FWS’s discretion. Aggrieved
parties would be wise to avoid the Ninth Circuit if they hope to find any
relief under the ESA. It is up to theother circuits to provide a framework
for answering these questions in the face of impending climate change and
continued rates of species extinction.Other circuits should avoid the broad
and lenient view taken by the Ninth Circuit that considerably undermines
the plain language of the ESA.
Preferred cite: Katherine Lee, Comment, “Bears Need Room to Roam”: The Ninth Circuit’s
Questionable Interpretation of Critical Habitat Designatio5n9, B.C. L. REV. E. SUPP. 206 (2018),
5 See Laurence M. Bogert , That's My Story and I'm Stickin' to It: Is the Best Available iS-c ence Any Available Science Under the Endangered Species Ac ,t?31 IDAHO L. REV . 85 , 86 , 90 ( 1994 ) (explaining that the Endangered Species Act (“ESA”) has been called the “most comep-r hensive piece of legislation” for species preservation by the Supreme Court and has often clashed with economic or private interests).
6 See Tenn . Valley Auth. v. Hill,437 U.S. 153 , 177 - 78 ( 1978 ) (calling attentionto how the threat to species extinction threatens our own “genetic heritage”).
7 See Thomas F. Darin , Designating Critical Habitat Under the Endangered Species Act: Habitat Protection Versus Agency Discretio,n24 HARV . ENVTL. L. REV. 209 , 210 ( 2000 ) (xeplaining that the ESA has been named in a number of lawsuits concerning economic interests against species and habitat protection since it was enacted in 1973s )e;e, e.g., Markle Interests , LLC v. U.S. Fish & Wildlife, 827 F.3d 452 , 459 ( 5th Cir . 2016 ) (addressing an action brought by private landowners against the FWS challenging a critical habitat designation of the dusky gopher frog); N.M. Cattle Growers Ass'n v. U.S. Fish & Wildlif,e 248 F.3d 1277 , 1280 ( 10th Cir . 2001 ) (addressing an action brought by the agricultural industry in New Mexico challenging the critical habitat designation of the southwestern willow flycatcher).
8 See infra notes 90-128 and accompanying text.
9 Alaska Oil & Gas Ass'n v . Jewell , 815 F.3d 544 , 559 , 561 ( 9th Cir . 2016 ) (holding that the designation was not arbitrary and capricious even in the areas where polar bears were not actually present). The arbitrary and capricious standard has been described as a very deferential approach . Id. at 554 . Critical habitat is defined in the ESA as geographical areas that the species inhabits at the time that the species is listed . Endangered Species Act of 1973 , 16 U.S. C1 . 53 § 2 ( 2012 ). These areas must include “physical and biological features” that are imperative for the protection of said species . Id.
10 See infra notes 129-153 and accompanying text.
11 See infra notes 129-153 and accompanying text.
12 See infra notes 16-54 and accompanying text.
46 16 U.S.C. § 1533(i) (stating that if the Secretary of the Interior does not want to follow the state's proposed comments it must provide its reasons in writing for doing so ).
47 Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes in Regulations for Designating Habitat , 81 Fed. Reg. 7413 , 741 - 415 (Feb. 11, 2016 ) (later codified at 50 C.F .R. pt. 424 ).
48 See 50 C.F.R. § 424 . 12 (stating that “this analysis will vary between species and mayn-i clude consideration of the appropriate quality, quantity, and spatial and temporal arrangements of such features in the context of life history, status, and conservation needs of the species”).
49 Elizabeth Kuhn , Note, Science and Deference: The “Best Available Science” Mandate Is A Fiction in the Ninth Circuit, GEO . ENVTL. L. REV. 1 ( Oct . 23 , 2016 ), https://gelr.org/ 2016 /10/23/ science-and-deference/#_ftn1 [https://perma.cc/X47D-BGFQ] (questioning the role of the “best available science mandate” considering the great deference the Ninth Circuit gives to agency decisions that are based on scientific findings).
50 See id . (noting that Congress may not have defined “critical habitat” further becausite wanted to continue to retrieve input from scientists before making an endangered or threatened species listing decision).
51 See San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 , 995 ( 9th Cir . 2014 ) (reasoning that the intent of the best available science standard is to prohibit an agency from jumping to a conclusion based on unfounded evidence).
52 See id . at 994 ( noting that rejection of an agency decision should really only occur when there is absolutely no reasonable relationship between the decision and the data for which the science is being used).
53 Id. at 996.
54 See infra notes 55-89 and accompanying text.
55 Alaska Oil & Gas Ass'n v . Jewell , 815 F.3d 544 , 554 ( 9th Cir . 2016 ); Cascadia Wildlands v . Thrailkill , 806 F.3d 1234 , 1241 ( 9th Cir . 2015 ).
56 See infra notes 60-128 and accompanying text.
57 See infra notes 60-89 and accompany text.
58 See infra notes 90-103 and accompany text.
59 See infra notes 104-126 and accompanying text.
60 Bogert, supra note 5, at 128; see also Chevron Deference,BLACK'S LAW DICTIONARY (10th ed. 2014 ). Chevron deference requires the court to engage in a two-part test when reviewing agency action. Chevron Deference, BLACK'S LAW DICTIONARY (10th ed. 2014 ). The court will defer to the agency's decision if the statute is (1) unclear, and (2) the interpretation of the statute by the agency was reasonable . Id.
61 5 U.S.C. § 701 ( 2 ) ( 2012 ) (requiring the court to adhere to an agency decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance withe law” or is “contrary to constitutional right, power, privilege, or immunity”).
62 Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.4 ,67 U.S. 837 , 865 ( 1984 ). The case involved assessing an interpretation of the words “stationary source” in amendments to the Clean Air Act . Id. at 840. At the time of the decision, there was little to no evidence that the Courte-b lieved the case to be a pivotal administrative law decision . See GARY LAWSON, FEDERAL ADMINISTRATIVE LAW 569 (7th ed. 2016 ) (noting that both the briefs and arguments in the case did not
70 See River Runners for Wilderness v . Martin , 593 F.3d 1064 , 1067 ( 9th Cir . 2010 ) (highlighting the high threshold required for setting aside agency action); Or . Envtl. Council v. Kunzman , 817 F.2d 484 , 492 ( 9th Cir . 1987 ) (reasoning that agency action is only set aside bye-a r viewing court if there is a clear “abuse of discretion”).
71 See Martin , 593 F. 3dat 1070 (underscoirng the importance of giving deference to the agency) .
72 See Nw . EcoSystem All . v. U.S. Fish & Wildlife Serv., 475 F.3d 1136 , 1140 ( 9th Cir . 2007 ) (holding that a decision to deny a petition to classify western gray squirrels as an endangered population segment was not arbitrary or capricious).
73 Martin, 593 F.3d at 1067.
74 Id. at 1078. After consideringalternatives that would have forbid motor rafts, the agency decided that these options would undermine the agency's overall goal of providing a range of recreational activities for visitors . Id.
75 See Plaintiff 's Petition for Writ of Certiorari at 33 , Alaska Oil & Gas Ass'n v . Pritzker , 840 F.3d 671 ( 9th Cir . 2016 ) cert . denied, __ S. Ct . __ ( 2018 ) (No. 1173-3) [hereinafter Plaintiff's Petition for Writ of Certiorari] (noting that since the FWS is based in Washington, D.C., the D.C. Circuit is next in line for the number of cases heard regarding critical habitat designations).
76 Listed Species Believed to or Known to Occur in Each State , FWS (Oct. 15 , 2017 ), https/:/ ecos.fws.gov/ecp0/reports/species -listed-by-state-totals-report [https/:/perma.cc/7UL6-BRUU]. The Ninth Circuit includes Alaska , Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Map of the Ninth Circuit, U.S. CTS. FOR NINTH CIR ., https://www.ca9.uscourts.gov/ content/view.php?pk_id=0000000135 [https://perma.cc/VQW6-G88X].
77 See Salazar , 606 F.3d at 1165, 1172 .
88 See id . (highlighting that the court was unwilling to defer to the agency action because the record was “too thin” to support the designation ).
89 Id. at 916.
90 See Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for Polar Bear (Urus maritimus) ThroughoutIts Range , 73 Fed. Reg. 28 , 211 , 28 ,212(May 15, 2008 ) (later codified as 50 C.F .R. pt. 17) (explicitly stating that based on the sbt-available science, the polar bear is likely to become an endangered species throughout “all of its range” due to the decline in sea ice habitats if action is not immediately taken).
91 Id. Polar bears evolved to utilize the Artic Sea ice and spend most of the year on sea ice and travel to land infrequently . Id. at 28 , 213 .
92 See FWS , POLAR BEAR 1 ( 2014 ), https://www.fws.gov/alaska/fisheries/endangered/pdf/ polarbear_factsheet_v2.pdf [https://perma.cc/U82L-BWUE] (emphasizing that the decline of sea ice has the ability to impact the overall health of the polar bear and can adversely impact groups of the population within their most prominent geographical regions).
93 See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed . Reg. 28211 , 28259 - 60 (May 15, 2008 ) (later codified at 50 C.F .R pt. 17 ) (indicating that the lack of availability of prey could result in competition between dominant and ine-f rior polar bear populations).
94 Jewell, 815 F.3d at 552. Once an agency proposes a rule, it requests feedback from the public in the form of publically submitted comments and conducts additional research . Michael Asimow , Interim-Final Rules : Making Haste Slowly, 51 ADMIN. L. REV. 703 , 722 ( 1999 ). The agency then publishes a Final Rule in the Federal Register which responds to the comments it has received and also creates a specific date when the rule is enforceable . Id.
130 See INDUS . ECONS., INC., supra note 37 , at ES -4 (noting that the foreseeable econmoic impacts of a critical habitat designation would be considered minor and that they were “limited to additional administrative costs”). The Plaintiff's Petition for Writ of Certiorari outlines the hmarful impacts on the economy this decision could have for the State of Alaska, especially considering that the oil and gas reserves are important resources for the state and national economies . Plaintiff's Petition for Writ of Certiorari, supra note 73 , at 32.
131 INDUS. ECONS., INC., supra note 37 , at ES -4.
132 See Maria L. Banda & Scott Fulton , Litigating Climate Change in National Courts: Recent Trends and Developments in Global Climate Law, 47 ENVTL. L. REP. NEWS & ANALYSIS 10 , 121 , 10 , 134 ( 2017 ) (noting that Jewell gives nod to the importance of recognizing the future impact of climate change as a relevant portion of critical habitat designation determinations).
133 See Kuhn , supra note 49 (noting that the Ninth Circuit tends to give a large amount of deference to an agency, especially in the context of a scientific or technical question ).
134 Alaska Oil & Gas Ass'n v . Jewell , 815 F.3d 544 , 562 ( 9th Cir . 2016 ). The FWS also consulted with polar bear experts in its determination . Id. at 552.
135 See id . at 556 (stressing the importance of the statutory purpose of conservation and indicating that it would make “little sense to limit its protections”).
136 Kuhn, supra note 49. The agency is free to use data that may be considered unreliable if there is no other data available . Id.
137 See Greenpeace Action v . Franklin , 14 F.3d 1324 , 1336 ( 9th Cir . 1992 ) (holding that the FWS's “Finding of No Significant Impact” was supported by sufficient evidence to fulfill the statutory requirement ).
138 Alaska Oil & Gas Ass'n v . Pritzker , 840 F.3d 671 , 681 ( 9th Cir . 2016 ). The Alaska Oil and Gas Association brought an action against the National Maritime Fisheries Service (“NMFS”) due to its decision to add a subspecies of Pacific bearded seals to the endangered list under the ESA,
148 Markle Interests , LLC v. U.S Fish & Wildlife Serv., 827 F.3d 452 ( 5th Cir. 201c6e)r,t granted sub nom . Weyerhaeuser Co . v. U.S. Fish & Wildlife Serv., No. 1 - 771 , 2018 WL 491540 ( 2018 ).
149 Markle Interests , LLC, 827 F.3d at 458.
150 See id . at 459 ( noting that even though there are currently no gopher frogs on the land in question, the land contains possible breeding sites and “clustered ephemeral ponds”). The pnla-i tiffs argue that this designation could result in an economic loss of up to $33.9 million over a twenty-year period . Id. at 472.
151 Id. at 466.
152 Plaintiff's Petition for Writ of Certiorari, at i , Markle Interests , 827 F.3d 452 , cert granted sub nom . Weyerhaeuser Co. , 2018 WL 491540 (No . 17 - 71 ).
153 Id. at 12.