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.”