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9th Circuit upholds polar bear habitat, overturns appeal ruling
A panel of judges from the United States Court of Appeals for the 9th Circuit has upheld the U.S. Fish & Wildlife Service’s designation of critical habitat for the polar bear, thus overturning a January 2013 ruling by federal District Court in Alaska, which rejected the critical habitat rule.
Following its 2009 listing of the polar bear as threatened under the terms of the Endangered Species Act, in November 2010 Fish & Wildlife issued a critical habitat designation for the bear. That designation, covering a total area of 187,157 square miles, included those areas of the Arctic Alaska offshore continental shelf where water depths are 300 meters (980 feet) or less in depth; barrier islands and spits along Alaska’s northern coast; and polar bear, on-land denning habitat along the Beaufort Sea coast. Loss of sea ice as a consequence of global warming is thought to be the main threat to the bears.
Adverse impacts? Under the terms of the Endangered Species Act, the review of an application for a federal permit for an activity that might impact a protected species must assess whether the proposed activity may have an adverse impact on critical habitat features.
Concerned about the possible impact of the habitat designation on economic activity in the Arctic, given the vast area designated, including the designation of coastal lands, a number of organizations including the Alaska Oil and Gas Association, the American Petroleum Institute, Arctic Slope Regional Corp., the state of Alaska and the Inupiat Community of the Arctic Slope, appealed the designation in District Court. The 9th Circuit court order is the latest development in that appeal.
The 9th Circuit panel has concluded that, in making the critical habitat designation, Fish & Wildlife did not act in an arbitrary and capricious manner, and had reached rational conclusions from the best available scientific data.
Murkowski enraged “I am enraged by today’s 9th Circuit decision allowing the Fish & Wildlife Service to designate over 187,000 square miles of land - an area larger than the state of California - as ‘critical habitat’ for polar bears,” said Sen. Lisa Murkowski, R-Alaska, in response to the 9th Circuit order. “This never should have happened in the first place. It is an abuse of the well-intentioned Endangered Species Act that will result in serious consequences for Alaska’s already-struggling economy.”
“We are very concerned and frustrated by this decision,” said Rex A. Rock Sr., president and CEO of Arctic Slope Regional Corp. “Clearly, it is another egregious example of federal overreach when it comes to the limited rights and protections the Alaska Native community has on its own lands. This appellate court’s finding threatens to impede much-needed economic development in our region at a time when the state’s economy is already unstable. It could also make the cost of goods and services even steeper.”
Environmental organizations have a different perspective.
“This is a critical victory for polar bears at a time when there’s huge momentum on fighting climate change,” said Kassie Siegel, a Center for Biological Diversity attorney who filed the original petition for Endangered Species Act protection for the bears. “The ruling strengthens the Endangered Species Act and affirms the commonsense idea that you can’t protect imperiled animals without protecting the places they live.”
District Court critique District Court Judge Ralph Beistline, when rejecting the critical habit designation in 2013, took particular exception to the manner in which Fish & Wildlife had specified the habitat on land, including on the Beaufort Sea barrier islands. The agency had said that the on-land critical habitat features consist of bear den sites; access between den sites and the coast; the presence of sea ice close to the denning area; and the absence of disturbance from human activities. But the agency had not provided evidence of the actual locations of habitat features, but instead had designated the entire coastal area. The agency cannot designate an entire swathe of land in northern Alaska as critical habitat based on a habitat feature only located in perhaps 1 percent of that land, Beistline said.
Beistline also found that Fish & Wildlife had not provided an adequate justification for not incorporating all of the state of Alaska’s comments into the critical habitat final rule.
Judge disagrees However, the panel of 9th Circuit judges has disagreed with Beistline’s views. The 9th Circuit judges say that Fish & Wildlife had appropriately identified areas that “contained constituent elements required for sustained preservation of polar bears” and that Beistline had held the agency to “a standard of specificity that the Endangered Species Act did not require.”
“The (Endangered Species) Act is concerned with protecting the future of the species, not merely the preservation of existing bears. And it requires use of the best available technology, not perfection,” the judges wrote in their order. “Since the point of the ESA is to ensure the species’ recovery, it makes little sense to limit its protections to the habitat that the existing, threatened population currently uses … the act contemplates the inclusion of areas that contain PCEs (primary constituent elements) essential for occupation by the polar bear, even if there is no available evidence documenting current activity.”
Onshore habitat When it comes to habitat appropriate to bear denning, that habitat exists along the coast and farther inland, the judges wrote. And, in conjunction with the U.S. Geological Survey, Fish & Wildlife developed a method for making a robust estimate of the extent of inland den use. Moreover, the District Court, in its critique of the denning habitat designation, referenced studies that only considered the bear dens themselves, and not all the associated habitat necessary to the birthing and raising of young, the judges wrote.
The 9th Circuit court also found that Fish & Wildlife had appropriately responded to the state of Alaska’s comments on the critical habitat designation.
- ALAN BAILEY
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