Alaska v. National Marine Fisheries Service

The Ninth Circuit Court of Appeals reversed a federal district court of the District of Alaska order vacating and remanding critical habitat designations for two species of Arctic seals. As a threshold matter, the Ninth Circuit concluded that it had jurisdiction over Center for Biological Diversity’s (CBD’s) appeal, rejecting the National Marine Fisheries Service’s (NMFS’s) argument that it lacked jurisdiction over a non-agency litigant’s appeal of a district court remand order. On the merits, the Ninth Circuit concluded that NMFS’s designations were consistent with the Endangered Species Act’s definition of occupied critical habitat, rejecting the State of Alaska’s argument that the statute requires that the entire designated area be “essential” to the species and that NMFS must explain why a smaller protected area would be insufficient. The Ninth Circuit also agreed with CBD that NMFS was not required to account for foreign nation conservation efforts or existence of foreign habitat. The Ninth Circuit also found that NMFS considered relevant factors and provided a reasonable explanation for declining to consider Alaska’s and North Slope Borough’s proposed exclusions of certain coastal areas. In addition, the Ninth Circuit rejected Alaska’s contention that NMFS failed to adequately explain why the designations were “prudent.”

Filing Year For Action

The federal district court for the District of Alaska vacated final rules designating over 160 million acres of Alaska’s coastal waters as critical habitat under the Endangered Species Act for the Beringia distinct population segment of the bearded seal and for the Arctic ringed seal. The court agreed with the State of Alaska that the National Marine Fisheries Service (NMFS) acted arbitrarily and capriciously because the agency “failed to articulate a satisfactory explanation for why the entirety of the designated areas in U.S. territory are indispensable to the seals’ survival and recovery,” “failed to consider any foreign nation efforts to conserve the seals,” and failed to consider the economic benefits of excluding some areas from critical habitat. The court found, however, that NMFS adequately explained its identification of areas where dynamic sea ice essential features would be found and adequately determined that essential habitat features might need special management considerations or protections from the potential threats of climate change, oil and gas exploration, marine shipping and transportation, and commercial fisheries. In addition, the court rejected the argument that the Endangered Species Act or its regulations required “an express prudency determination” for critical habitat designations.