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Ninth Circuit Upholds Polar Bear Critical Habitat Designated In Alaska and Arctic Waters

March 23, 2016

The Ninth Circuit Court of Appeals has upheld the designation of 187,000 square miles of the Arctic Ocean, the Bering Sea, and Alaska’s northern coast as critical habitat for the polar bear. The designation includes Deadhorse, the hub of Alaska’s North Slope oil and gas industry, and existing North Slope oil fields.[1] U.S. Fish and Wildlife Service (“FWS”) listed the polar bear as threatened under the Endangered Species Act (“ESA”) in 2008, based primarily on the future threat of climate change to Arctic sea ice.[2] The Ninth Circuit’s decision reverses an Alaska district court ruling that found flaws in the FWS designations of on-shore denning areas and barrier islands as critical habitat and a procedural error in the agency’s consultation with the State of Alaska.[3] By reinstating polar bear critical habitat, the Ninth Circuit’s decision adds another layer of regulatory requirements for future Arctic oil and gas development and for existing oil field operations. The critical habitat designation also has longer term implications for Alaska’s northern coastal communities.

Background

Polar Bear Critical Habitat Rule

In 2008, the FWS listed the polar bear as a threatened species under the ESA. That listing decision was upheld by the Court of Appeals for the D.C Circuit in 2013.[4] In 2009, FWS proposed to designate portions of Alaska’s coast and adjacent waters of the Arctic Ocean and the Bering Sea as critical habitat for the polar bear. “Critical habitat” is defined by the ESA as the “specific areas within the geographical area occupied by the species, at the time” the species is listed, “on which are found” the physical or biological features that are “essential to the conservation of the species and that may require special management considerations or protection.”[5] FWS refers to the characteristics deemed essential to species conservation as “primary constituent elements” (“PCEs”).[6]

FWS finalized its polar bear critical habitat designation in 2010.[7] The agency identified three “units” of polar bear critical habitat. Unit 1, sea ice habitat, is by far the largest unit, comprising 179,500 square miles - 95.9 percent of the total area designated.[8] This unit consists of the sea ice located over waters that are 300 meters or less in depth occurring over the continental shelf, with adequate prey resources to support polar bears.[9] It extends from the Canadian border in the east to the International Dateline in the west, north to the 300-meter contour on the Arctic continental shelf, and south to near the mouth of the Yukon River.[10] Unit 2 is terrestrial denning habitat, covering approximately 5,600 square miles along Alaska’s Arctic coast.[11] It consists of a strip of the northern coast of Alaska from Barrow east to the Kavik River and extending 5 miles inland, then extending 20 miles inland from the Kavik River east to the Canadian border.[12] Unit 3 is barrier island habitat, consisting of “all barrier islands along the Alaska coast and their associated spits, within the range of the polar bear in the United States,” and a no-disturbance zone within 1 mile of the islands.[13] The barrier island unit extends from the Canadian border, across all of northern Alaska and down its west coast to near the mouth of the Yukon River, covering approximately 4,000 square miles.[14]

District Court Partially Rejects Critical Habitat Designation

The district court upheld many aspects of the FWS decision to designate polar bear critical habitat, but nevertheless vacated and remanded the designation based upon a perceived procedural error and flaws in the support provided for designating habitat Units 2 and 3 (terrestrial denning and barrier island habitats).[15] It rejected, for example, an argument that FWS had not been discriminating enough, resulting in the designation of virtually all of the polar bear’s range in U.S. territory as “critical habitat.” The district court held that, by leaving out some areas of the polar bear’s range, FWS complied with the ESA proviso that critical habitat “shall not include the entire geographical area which can be occupied by the” species.[16] The district court also held that FWS was not arbitrary in characterizing all of the designated critical habitat as “occupied” by the polar bear, deferring to the agency’s judgment that the bears use the entire designated area “with sufficient regularity that it is likely to be present during any reasonable span of time.”[17]

Terrestrial Denning Habitat. FWS based its selection of terrestrial denning habitat on four PCEs: (1) den sites, stable steep slopes with water or relatively level ground below and relatively flat terrain above the slope; (2) unobstructed, undisturbed access between den sites and the coast; (3) sea ice in proximity to the terrestrial denning habitat during the Fall (to provide access); and (4) the absence of disturbance from humans and human activities that might attract other polar bears.[18] The district court observed that, for an area in Unit 2 to be designated as critical habitat, at least one of the four features had to be present in that area.[19]

The district court found that FWS had relied almost entirely on data showing that 95 percent of polar bear dens were observed within the designated area – within 18.6 miles of the coast in the Canada-to-Kavik region and within 2.8 miles of the coast in the Kavik-to-Barrow region.[20] It concluded that FWS had found all four PCE’s to be present based solely on the location of the confirmed or probable dens. But the court also found that there was no evidence in the record supporting the second and fourth PCEs, unobstructed access to the coast and absence of human disturbance.[21] The den sites referenced by FWS occupy only about one percent of Unit 2, and the court found that there was no evidence in the record supporting FWS’s conclusion that the rest of Unit 2 contained other PCEs that support the use of actual denning sites.[22] The district court found that the designation of terrestrial denning habitat was arbitrary and capricious because there was no evidence in the record showing where the PCEs other than actual dens were located. The court concluded that there was no way to know, based on the agency’s record, whether 99 percent of Unit 2 contained any PCEs.[23]

The district court also made a particular point of the lack of evidence in the record supporting inclusion of the area around Deadhorse – the oil industry’s hub and home of the main airport on the North Slope – in Unit 2.[24] The court rejected an argument that FWS could find that the areas adjacent to human activity in the oil fields provide access between den sites and the sea ice, saying that this suggests the agency had not made that finding at the time it made the critical habitat designation.[25]

Barrier Islands. FWS identified three PCEs in its designation of barrier island habitat (Unit 3): (1) denning habitat; (2) refuge from human disturbance; and (3) access along the coast to maternal denning sites and optimal feeding habitat.[26] The district court found that FWS had clearly identified the locations of the first two features, including designation of specific islands where denning has historically occurred.[27] But the court found that FWS had not designated where on the islands the polar bears move to access den sites and preferred feeding habitats.[28] It overturned the designation of Unit 3 as critical habitat on that basis, saying: “[a]lthough each part of Unit 3 does not have to contain each of the three essential features, every part of the designation must have at least one.”[29]

ESA Procedural Requirements. The district court also found that FWS did not satisfy its procedural obligation under the ESA to provide the State with a written justification for not accepting its comments on a critical habitat proposal.[30] This obligation is triggered when State comments disagree with a critical habitat proposal and FWS nevertheless adopts a final rule that conflicts with those comments.[31] The district court rejected a FWS argument that it was sufficient to respond by referring the State to the final rule itself, holding that FWS had an obligation to provide a separate, complete response to the State.[32] Based on this procedural error and the flaws it identified in the designation of critical habitat Units 2 and 3, the district court vacated the final polar bear critical habitat rule in its entirety and remanded it to FWS.[33]

FWS and several intervenor environmental groups appealed the district court’s decision to the Ninth Circuit. The State of Alaska, oil and gas interests, and Alaska Native organizations cross-appealed.

Ninth Circuit’s Decision Upholding Polar Bear Critical Habitat

On February 29, 2016, the Ninth Circuit Court of Appeals upheld the final polar bear critical habitat rule on all points, reversing the district court on the three flaws it had found in the FWS action and rejecting the opponents’ renewed objections to aspects of the rule that the district court had found satisfactory.[34] As to the deficiencies that the district court identified in the administrative record supporting designation of critical habitat Units 2 and 3, the Ninth Circuit concluded that the district court had held FWS “to a standard of specificity that the ESA does not require.”[35] It characterized the district court’s decision as requiring the agency to offer proof of existing polar bear activity in areas designated as critical habitat, rather than evidence that an area contained suitable habitat. It found that the district court’s holding, so characterized, provided too narrow a construction of the ESA and impermissibly shifted the focus away from PCEs toward current existence of species in the area.[36] As to the adequacy of the FWS response to the State’s comments on proposed critical habitat, the Ninth Circuit held that nothing prohibited the agency from incorporating by reference other publicly available documents – here, its final critical habitat rule – in its response to a state.[37]

Terrestrial Denning Habitat

The Ninth Circuit described the district court’s holding regarding terrestrial denning habitat (Unit 2) as having “faulted FWS for failing to show that the entire Unit 2 area contained all the requisite physical and biological features.”[38] It noted the district court’s conclusion that the denning studies relied upon by FWS, while supporting inclusion of the steep slopes where dens are likely to be located, were inadequate to establish that the rest of the Unit 2 area provided access between dens and the coast (PCE 2) and the absence of human disturbance (PCE 4). It described the district court’s conclusion as an insistence that the agency provide scientific evidence of the existence of all PCEs in Unit 2.[39]

The Ninth Circuit panel apparently was satisfied that undisturbed access to and from sea ice was an essential adjunct to actual denning sites, and so access could be assumed from the presence of actual and potential denning locations: “The court also did not appear to take into account the need for denning habitat to include not only the dens themselves, but also undisturbed access to and from the sea ice.”[40] Later in the opinion, the panel notes that the FWS considered denning habitat to include areas needed for bears to travel, feed, and acclimate cubs.[41] The panel’s conclusion that the record was adequate to support designation of all of Unit 2 as critical habitat appears to have been based on a combination of:

  1. the ESA’s directive to the agency to make its decisions based upon the best available science,
  2. the courts’ deference to the agency on technical questions, and
  3. the overall purpose of the ESA being to protect the future of listed species, not merely the preservation of existing animals.[42] The opinion had earlier observed: “The Act contemplates the inclusion of areas that contain PCEs essential for occupation by the polar bear, even if there is no available evidence documenting current activity.”[43]

The Ninth Circuit rejected additional arguments that the band of Alaska’s coast designated as critical habitat was too wide, finding that uncertainties in the denning study justified extending critical habitat further inland.[44] It also dismissed arguments that FWS improperly designated habitat as critical based not on conditions at the time of species listing, but instead because it could become critical in the future due to climate change. The Ninth Circuit ruled that these same climactic factors had been considered in listing the polar bear under the ESA and approved by the D.C. Circuit in its review of that listing decision.[45]

The Ninth Circuit also found little difficulty in upholding the FWS decision to include the industrialized area around Deadhorse within Unit 2 critical habitat. It said that the administrative record shows that polar bears routinely move through Deadhorse, and have been known to den there, and that polar bears “are allowed to exist in the areas between the widely dispersed network of roads, pipelines, well pads, and buildings.”[46] The panel did not comment on whether habitat in the area near Deadhorse is consistent with PCE 4 – absence of human disturbance.

Barrier Island Habitat

The Ninth Circuit characterized the district court’s holding regarding the barrier island critical habitat designation (Unit 3) as “in effect, that only such specific areas, which the bears could be shown to utilize at the present time, could be designated as critical habitat.”[47] Again, the panel concluded that the district court had “erroneously focused on the areas existing polar bears have been shown to utilize rather than the features necessary for future species protection.”[48] Instead, the panel concluded that evidence of polar bears using specific barrier islands as migration corridors, dens and refuges was sufficient to support designation of all of Alaska’s northern barrier islands as critical habitat.[49]

The Ninth Circuit also rejected the plaintiffs’ cross-appeal regarding inclusion of a 1-mile “no disturbance zone” around barrier islands as a PCE, holding that “habitats that are protected from disturbance” are among the requirements considered essential to conservation under FWS regulations.[50] It gave little space to the plaintiffs’ other cross-appeal issues, stating: “[w]e deal with them summarily because the district court correctly denied them.”[51]

Conclusion

FWS claimed that its designation of polar bear critical habitat would not result in changes in polar bear conservation requirements. It remains to be seen whether that will prove to be true. Most activities conducted within the broad geographic area covered by the designation are likely to have a federal nexus, either through permitting or – in the Alaska Native communities that are surrounded by critical habitat – some contribution of federal funding to the project. As a result, ESA consultations are more likely to become a common part of the administrative process that must be completed before any human activity can proceed. At a minimum, this increases administrative costs and can pose delays. The time required to complete consultations could make the planning for routine activities at existing North Slope oil fields more problematic. The consultation also may lead to new restrictions on activities in coastal Alaska, and also may provide another avenue for legal challenges to any controversial projects.

[1] Alaska Oil and Gas Ass’n v. Jewell, __ F.3d___, Slip Op. (9th Cir. Feb. 29, 2016) (“Jewell”).

[2] 73 Fed Reg. 28,212 (May 15, 2008).

[3] Alaska Oil and Gas Ass’n v. Salazar, 916 F.Supp.2d 974, 984 (D.AK 2013) (“Salazar”).

[4] In re Polar Bear ESA Listing & Section 4(d) Rule Litig., 709 F.3d 1 (D.C. Cir 2013).

[5] 16 U.S.C. § 1532(5)(A)(i).

[6] 50 C.F.R. § 424.12(b)(5).

[7] 75 Fed. Reg. 76,086 (Dec. 7, 2010).

[8] 75 Fed. Reg. at 76,121; See Jewell, Slip Op. at 11.

[9] 75 Fed. Reg. at 76,121; 50 C.F.R. § 17.95.

[10] 75 Fed. Reg. at 76, 134.

[11] 75 Fed. Reg. at 76,121.

[12] 50 C.F.R. § 17.95; Salazar, 916 F.Supp.2d at 1000.

[13] 50 C.F.R. § 17.95; Salazar, 916 F.Supp.2d at 1002.

[14] 75 Fed. Reg. at 76,121, 76,137.

[15] Salazar, 916 F.Supp.2d at 984.

[16] Salazar, 916 F.Supp.2d at 988.

[17] Salazar, 916 F.Supp.2d at 988-89.

[18] See id. at 999.

[19] Salazar, 916 F.Supp.2d at 1000.

[20] Id.

[21] Id.

[22] Id. at 1000-01.

[23] Salazar, 916 F.2d at 1001-02.

[24] Salazar, 916 F.Supp.2d at 1001.

[25] Id.

[26] See Salazar, 916 F.Supp.2d at 1002.

[27] Id.

[28] Id.

[29] Id. (emphasis in the original).

[30] Salazar, 916 F.2d at 1003.

[31] 16 U.S.C. § 1533(i); 50 C.F.R. § 424.18(c).

[32] Salazar, 916 F.2d at 1003.

[33] Id. at 1004.

[34] Jewell, __ F.3d __, Slip Op.

[35] Slip Op. at 23.

[36] Slip Op. at 23.

[37] Slip Op. at 37-39.

[38] Slip Op. at 26.

[39] Slip Op. at 27.

[40] Id.

[41] Slip Op. at 34-35.

[42] Slip Op. at 23, 27.

[43] Slip Op. at 24.

[44] Slip Op. at 27-29.

[45] Slip Op. at 29-30.

[46] Slip Op. at 31.

[47] Slip Op. at 33.

[48] Slip Op. at 34.

[49] Slip Op. at 35.

[50] Slip Op. at 40.

[51] Slip Op. at 39.

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