Ctr. for Biological Diversity v. Usfws ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 20-15654
DIVERSITY,
D.C. Nos.
Plaintiff-Appellee, 4:17-cv-00475-
v. JAS
4:17-cv-00576-
UNITED STATES FISH AND JAS
WILDLIFE SERVICE, 4:18-cv-00189-
JAS
Defendant-Appellee,
OPINION
v.
ROSEMONT COPPER COMPANY,
Intervenor-Defendant-
Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted September 23, 2022
Pasadena, California
Filed May 17, 2023
2 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
Before: Sandra S. Ikuta, Danielle J. Forrest, and Holly A.
Thomas, Circuit Judges.
Opinion by Judge Forrest;
Partial Concurrence and Partial Dissent by
Judge H.A. Thomas
SUMMARY *
Environmental Law
In a case in which intervenor Rosemont Copper
Company challenges the U.S. Fish and Wildlife Services’s
(FWS) designation of certain areas in southern Arizona as
critical habitat for jaguar under the Endangered Species Act
(ESA), the panel affirmed the district court’s vacatur of the
FWS’s designation of the challenged area as occupied
critical habitat; reversed the district court’s grant of
summary judgment in favor of the FWS regarding its
designation of that same area and of Subunit 4b as
unoccupied critical habitat; vacated the grant of summary
judgment in favor of the Center for Biological Diversity
(Center); and remanded with directions that the case be
returned to the agency for further proceedings.
This litigation was initiated by the Center after the FWS
concluded that Rosemont’s proposed mine project would not
destroy or adversely modify the designated critical
habitat. Rosemont intervened and filed crossclaims against
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 3
the FWS, arguing that certain of its critical-habitat
designations for the jaguar violated the Administrative
Procedures Act (APA) and the ESA. This case concerns
only Unit 3, which covers 351,501 acres and spans several
counties and mountain ranges, including the Santa Rita
Mountains; and Subunit 4b, which covers 12,710 acres and
is a corridor connecting the Whetstone Mountains and the
Santa Rita Mountains.
The FWS argued that the district court erred in rejecting
the FWS’s designation of Unit 3 as occupied critical habitat,
and Rosewood argued that the district court erred in
upholding the FWS’s designation of Unit 3 and Subunit 4b
as unoccupied critical habitat because the standard the FWS
used was something less demanding than essential for the
conservation of species. First, the panel held that the only
plausible construction of “essential” in the ESA’s definition
of “critical habitat” is area that is indispensable or necessary
to conservation, not merely beneficial to such
efforts. Second, the panel considered whether the FWS’s
critical habitat designations of Unit 3 and Subunit 4b were
proper. Because the FWS designated the northern Santa Rita
Mountains as occupied critical habitat based on irrelevant
photographs from decades after the jaguar was listed as
endangered and a single timely sighting from a different
mountain range, the panel affirmed the district court’s
conclusion that the FWS’s challenged occupied critical-
habitat designation was arbitrary and capricious.
Next, the panel addressed Rosemont’s argument that the
FWS failed to follow its regulation governing unoccupied
critical-habitat designations. This court discussed the
operative version of 50 C.F.R. § 424.12(e) in Bear Valley
Mut. Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015). The
FWS and the Center argued that Bear Valley foreclosed
4 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
Rosemont’s argument that the FWS erred by not sequentially
considering both adequacy and essentiality. The panel held
that imposing a sequential analysis to determine whether
designation of unoccupied critical habitat is proper does not
violate Bear Valley, which acknowledged both the
inadequacy-of-occupied-habitat and essentiality-of-
unoccupied-habitat requirements and upheld the FWS’s
challenged designation where these requirements were both
met. Because the panel concluded that Bear Valley did not
displace the agency’s interpretation of Section 424.12(e), the
panel considered whether the FWS’s designation of Unit 3
and Subunit 4b as unoccupied critical habitat complied with
Section 424.12, as interpreted by the agency.
The panel held that because the FSW did not comply
with Section 424.12(e) by addressing whether designated
occupied critical habitat was adequate to address
conservation goals, its designation of Unit 3 and Subunit 4b
as unoccupied critical habitat was arbitrary and
capricious. The panel rejected the dissent’s position that the
FWS could properly consider the adequacy of areas
occupied at the time of designation not just the time of listing
in deciding whether designation of unoccupied areas was
essential. The panel agreed with the Tenth Circuit that the
governing version of Section 424.12 required the FWS to
consider a species range at the time of listing because any
other reasoning would be inconsistent with the ESA. The
panel held further that even if the FWS should consider
whether areas occupied at the time of designation, rather
than listing, were inadequate to conserve the species, the
FWS’s analysis still fell short because it did not explain why
the areas that it found were occupied when it made its
unoccupied critical habitat designations were inadequate to
conserve the jaguar. The panel concluded that the FWS did
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 5
not provide a rational connection between the facts found
and the choice made, or articulate a satisfactory explanation
to justify its designations of Unit 3 and Subunit 4b as
unoccupied critical habitat.
Finally, Rosemont challenged the district court’s refusal
to remand for reconsideration of the FWS’s economic-
impact analysis. The panel held that Rosemont had not
waived this issue. Rosemont’s argument that the FWS
needed to revisit its economic-impact analysis became
relevant only after the district court concluded that the FWS
used the wrong standard in determining that Rosemont’s
Mine would not adversely affect the designated critical
habitat and remanded for the FWS to reconsider that
issue. Thus, it was not improper for Rosemont to raise the
argument for the first time on appeal. The panel held,
however, that directing the FWS to reconsider its economic-
impact analysis was premature at this point.
The panel concluded that it need not reach whether the
FWS violated the APA in concluding that Rosemont’s Mine
would not adversely modify the Unit 3 and Subunit 4b
critical-habitat designations, which the Center argued in its
motion for summary judgment.
Concurring in part and dissenting in part, Judge H.A.
Thomas agreed with the majority that the district court
correctly vacated the FWS’s designation of Unit 3 as
occupied critical habitat. She also agreed it would be
premature to vacate the FWS’s economic-impact
analysis. She dissented from the majority’s holding that the
district court erred in upholding the FWS’s designation of
Unit 3 and Subunit 4b as unoccupied critical habitat. She
would hold that, when considered as a whole, the record
amply supported the FWS’s determination that habitat
6 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
within the United States—and the designated units in
particular—were critical to the conservation of the jaguar as
it faces threats elsewhere in its range.
COUNSEL
Julian W. Poon (argued), Theodore J. Boutrous Jr., Bradley
J. Hamburger, Zachary Freund, and Virginia L. Smith,
Gibson Dunn & Crutcher LLP, Los Angeles, California;
Norman D. James and Bradley J. Pew, Fennemore Craig
P.C., Phoenix, Arizona; George O. Krauja, Fennemore Craig
P.C., Tucson, Arizona; Lauren M. Kole, Gibson Dunn &
Crutcher LLP, Denver, Colorado; Michael J. Rusing, Rusing
Lopez & Lizardi PLLC, Tucson, Arizona; for Intervenor-
Defendant-Appellant.
Allison N. Henderson (argued), Center for Biological
Diversity, Crested Butte, Colorado; Marc D. Fink, Center for
Biological Diversity, Duluth, Minnesota; Brendan R.
Cummings, Center for Biological Diversity, Oakland,
California; Roger Flynn, Western Mining Action Project,
Lyons, Colorado; for Plaintiff-Appellee.
Andrew M. Bernie (argued), Andrew C. Mergen, Sommer
H. Engels, and Amelia G. Yowell, Attorneys; Todd Kim,
Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice;
Washington, D.C.; Simi Bhat, Attorney; Natural Resources
Defense Council; San Francisco, California; Andrew A.
Smith, Attorney; United States Attorney’s Office;
Albuquerque, New Mexico; for Defendant-Appellee.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 7
OPINION
FORREST, Circuit Judge:
Rosemont Copper Company (Rosemont) challenges the
U.S. Fish and Wildlife Service’s (FWS) designation of
certain areas in southern Arizona as critical habitat for jaguar
under the Endangered Species Act (ESA). Rosemont seeks
to develop a copper mine and related processing facilities in
the area within and adjacent to the critical-habitat
designations. This litigation was initiated by the Center for
Biological Diversity (Center) after the FWS concluded that
Rosemont’s proposed mine project would not destroy or
adversely modify the designated critical habitat. The Center
alleged that the FWS and the United States Forest Service
violated the Administrative Procedures Act (APA) in
approving Rosemont’s proposed mining project. Rosemont
intervened and filed crossclaims against the FWS, arguing
that certain of its critical-habitat designations for the jaguar
violated the APA and the ESA. All parties moved for
summary judgment.
The district court concluded that the FWS erred in
designating occupied critical habitat in the northern Santa
Rita Mountains because the record did not establish that
jaguar occupied this area when this species was listed as
endangered in 1972. Ctr. for Biological Diversity v. U.S.
Fish & Wildlife Serv., 441 F. Supp. 3d 843, 872 (D. Ariz.
2020). But it upheld the FWS’s designation of this same area
and an adjacent area as unoccupied critical habitat. Id. at
872–73. The district court also granted summary judgment
in favor of the Center on its claim that the FWS violated the
APA by improperly using a heightened standard in
determining that Rosemont’s mining project was not likely
8 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
to destroy or adversely modify designated critical habitat for
the jaguar and remanded for the FWS to conduct a proper
analysis. Id. at 855–57. Rosemont argues that if this case is
remanded, the FWS should be instructed to reconsider its
economic-impact analysis that was part of the basis for its
critical-habitat designation. We conclude that the district
court correctly vacated the FWS’s occupied critical-habitat
designation but erred in upholding the FWS’s unoccupied
critical-habitat designations. Therefore, we reverse the grant
of summary judgment in favor of the FWS, vacate the grant
of summary judgment in favor of the Center, remand with
instructions for the district court to vacate the FWS’s
critical-habitat designations, and remand to the agency for
further proceedings consistent with this opinion.
I. BACKGROUND
A. The Endangered Species Act
The ESA is “the most comprehensive legislation for the
preservation of endangered species ever enacted by any
nation.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180
(1978). It directs the Secretary of the Interior to “determine
whether any species is an endangered species or a threatened
species.” 1 16 U.S.C. § 1533(a)(1). The Secretary publishes
in the Federal Register “a list of all species determined . . .
to be endangered species and a list of all species determined
1
A “species” includes “any subspecies of fish or wildlife or plants, and
any distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16). An
“endangered species” is “any species which is in danger of extinction
throughout all or a significant portion of its range,” and a “threatened
species” is “any species which is likely to become an endangered species
within the foreseeable future throughout all or a significant portion of its
range.” Id. § 1532(6), (20).
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 9
. . . to be threatened species.” Id. § 1533(c)(1). Upon listing
a species as endangered or threatened, the Secretary is
required to “concurrently . . . designate any habitat of such
species which is then considered to be critical habitat.” Id.
§ 1533(a)(3)(A)(i). Critical habitat designations must be
based on the conditions that existed at the time of listing, id.
§ 1532(5)(A), and “the best scientific data available and after
taking into consideration the economic impact, . . . national
security, and any other relevant impact, of specifying any
particular area as critical habitat.” Id. § 1533(b)(2).
B. The Jaguar
The jaguar (Panthera onca) is a large felid found in
South America, Central America, Mexico, and the
southwestern United States. The jaguar’s total range spans
over 3 million square miles. The portion of this range in the
United States is less than one percent. Although “[t]he
probability of long-term survival of the jaguar is considered
high in 70 percent of the currently occupied range,” the
population is decreasing because of many biological
challenges, including the jaguar’s “large spatial
requirements.”
More than 30,000 jaguars likely still live in the wild.
About 600 of those are found in northwestern Mexico. No
breeding pair of jaguars has been documented in the relevant
area of the United States. There are only three undisputed
records of female jaguars with cubs in the United States––
the most recent being in 1910. 2 There is a single record of a
2
The FWS followed a classification protocol for reports of jaguar present
in the United States based on the degree of certainty or validity of the
report. For example, a “Class I record” is substantiated by physical
10 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
female jaguar in the United States in 1963, but it is disputed.
There have been no confirmed sightings of female jaguar in
the United States since 1963. The FWS identified undisputed
Class I records of eight or nine unique jaguars (all males)
within the United States between 1962 and 2013. One of
these included a jaguar that was shot in southern Arizona in
1965. “Jaguars in the United States are understood to be
individuals dispersing north from Mexico . . . where the
closest breeding population occurs about 210 km (130 mi)
south of the U.S.-Mexico border.”
The FWS first listed the jaguar as endangered in 1972.
The average lifespan of a jaguar is approximately ten years.
“[T]he jaguar was included only on the foreign species list”
because the jaguar was believed to be extinct in the United
States. 3 90-Day Finding on a Petition to Revise Critical
Habitat for the Jaguar, 86 Fed. Reg. 49985-01, 49986 (Sept.
7, 2021). The FWS issued a proposed rule in 1980 to list the
jaguar as a domestic endangered species, but the proposed
rule was withdrawn in 1982. The FWS did not list the jaguar
as an endangered species in the United States until 1997.
Despite the later designation of the jaguar as a domestic
evidence (e.g., a skin, skull, or photograph) and considered “‘verified’ or
‘highly probable.’” A Class II record has “detailed information of the
observation,” but no physical evidence and is considered “‘probable’ or
‘possible.’” Disputed records include those where “the validity of the[]
location[] is questionable because of the suspicion that the[] [observed]
animals were released for ‘canned hunts.’”
3
The categorization of the jaguar as an endangered species on the foreign
species list was in accordance with the Endangered Species Conservation
Act of 1969 (ESCA), a precursor to the Endangered Species Act of 1973,
which maintained separate listings for foreign species and species native
to the United States. See 90-Day Finding on a Petition to Revise Critical
Habitat for the Jaguar, 86 Fed. Reg. 49985-01, 49986 (Sept. 7, 2021).
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 11
endangered species, the FWS treats its 1972 listing as the
jaguar’s listing date within the United States because “it was
always [FWS’s] intent . . . to consider the jaguar endangered
throughout its entire range when it was listed as endangered
in 1972.” 4
The FWS did not designate critical habitat for the jaguar
when it listed the jaguar as a domestic endangered species in
1997. The FWS concluded that a critical habitat designation
in the United States was “not prudent” because “the primary
threat to [jaguars] in the United States is direct taking rather
than habitat destruction,” and the “[p]ublication of detailed
critical habitat maps and descriptions in the Federal Register
would” be counterproductive. In 2006, the FWS
reconsidered its decision not to designate critical habitat and
again decided against making such a designation.
The FWS changed course on designating critical habitat
for the jaguar in 2009. That year, the FWS’s 2006
determination not to designate critical habitat for the jaguar
was vacated by a federal court. See Ctr. for Biological
Diversity v. Kempthorne, 607 F. Supp. 2d 1078, 1094 (D.
Ariz. 2009). On remand in that litigation, the FWS
concluded that “the designation of critical habitat for the
jaguar would be beneficial” to conservation of the species.
Based on this changed position, the FWS “convened a
binational Jaguar Recovery Team in 2010.” The team was
tasked with “synthesiz[ing] information on the jaguar,
focusing on [a]n area comprising jaguars in the northernmost
portion of their range.”
In April 2012, the Jaguar Recovery Team issued a
“Recovery Outline for the Jaguar.” The Recovery Outline
4
Rosemont does not dispute 1972 as the time of listing.
12 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
divided the jaguar’s range into two “recovery units”: the
Northwestern Recovery Unit (NRU) and the Pan American
Recovery Unit. Each unit has “core areas” with “persistent
verified records of jaguar occurrence over time and recent
evidence of reproduction.” They also have “secondary
areas” that “contain jaguar habitat with historical and/or
recent records of jaguar presence [but] with no recent record
or very few records of reproduction.” Secondary areas “are
of particular interest when they occur between core areas and
can be used as transit areas through which dispersing
individuals can move, reach adjacent core areas, and
potentially breed.”
The Recovery Outline focused on the NRU, which
contains two core areas and secondary areas. The
northernmost section of the NRU—a secondary area that
extends into Arizona and New Mexico—is the area at issue
in this case. This section of the NRU does not connect two
core areas. The area that extends into the United States
contains approximately 12,386 square miles, which is
roughly 0.36% of the jaguar’s current range. A map of the
NRU is included as Appendix 1.
The Recovery Outline stated that “jaguars in the U.S. are
thought to be part of a population, or populations, that occur
largely in Mexico.” And based on the evidence available,
“any conclusions about the conservation importance of the
habitat types in which jaguars have occurred or might occur
in Arizona and New Mexico are preliminary and can vary
widely.” However, “the region to the south of Arizona and
New Mexico is especially critical for the recovery of the
jaguar in the southwestern U.S. because the source
population is likely in central Sonora[, Mexico].”
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 13
Relying on the Recovery Outline, the FWS published a
proposed rule in 2012 designating approximately 838,000
acres in southern Arizona and New Mexico as critical habitat
for the jaguar. The FWS revised its initial proposal and
sought additional public comment in 2013. The Arizona
Game and Fish Department (Arizona) objected to critical
habitat being designated for the jaguar within that state.
Specifically, Arizona argued that “designating critical
habitat for the less than 1% of historic jaguar range which
occurs in the U.S. would jeopardize the credibility and long-
term viability of the ESA,” and that “recovery of jaguar is
entirely reliant on conservation action in the 99+% of its
habitat found south of the international border.” Rosemont
also submitted comments that the area within its proposed
mining project should be excluded from the FWS’s critical-
habitat designations.
The FWS published its Final Rule on March 5, 2014
(Final Rule). See Endangered and Threatened Wildlife and
Plants; Designation of Critical Habitat for Jaguar, 79 Fed.
12572, 12573 (Mar. 5, 2014). The Final Rule designated
764,207 acres in southern Arizona and southwestern New
Mexico as critical habitat. Id. at 12572. The designated area
includes six units, four located in Arizona (Units 1–4), one
that straddles the Arizona/New Mexico border (Unit 5), and
one located in New Mexico (Unit 6). 5 Id. The FWS also
designated several subunits within those units. Id. at 12591.
This case concerns only Unit 3 and Subunit 4b. Unit 3 covers
351,501 acres and spans several counties and mountain
ranges, including the Santa Rita Mountains. Id. at 12572.
5
The Tenth Circuit addressed challenges to the FWS’s designation of
Units 5 and 6 as critical habitat in New Mexico Farm & Livestock Bureau
v. United States Department of Interior, 952 F.3d 1216 (10th Cir. 2020).
14 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
Subunit 4b covers 12,710 acres and is a corridor connecting
the Whetstone Mountains and the Santa Rita Mountains. Id.
at 12593. A map of Units 1 through 4 is included as
Appendix 2.
The FWS explained that in determining the occupancy
of the jaguar at the time of listing, it was considering
evidence from 1962 through 1982 (10 years before and after
the listing date) because the “consensus” is that the average
lifespan of a jaguar is 10 years. Id. at 12581. The FWS
considered areas in which jaguars had been reported from
1982 to the present to be occupied given “it is likely those
areas were occupied at the time of the original listing, but
jaguars had not been detected because of their rarity, the
difficulty in detecting them, and a lack of surveys for the
species.” Id. The FWS then determined that Unit 3 was
“occupied” by jaguar in 1972 and designated this area
occupied critical habitat. Id. at 12593. The FWS based this
determination on an undisputed Class I record of a jaguar in
1965, photos of a male jaguar in the Santa Rita Mountains in
2012 and 2013, and its finding that the mountain ranges
within Unit 3 contained all the “primary constituent
elements” (PCEs) for jaguars. Id. PCEs are “those specific
elements of the physical or biological features that provide
for a species’ life history processes and are essential to the
conservation of the species.” Id. at 12587. Acknowledging
uncertainty in its conclusion that Unit 3 was “occupied” at
listing, the FWS also analyzed whether Unit 3 was properly
designated as “unoccupied” critical habitat. Id. at 12607–08.
The FWS found that it was because there was evidence of
recent occupancy in Unit 3, the area contained features that
constitute jaguar habitat, and the area contributed to the
jaguar’s persistence. Id.CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 15
The FWS designated Subunit 4b only as unoccupied
critical habitat. Id. at 12593–94. The FWS concluded that
this area was essential to the conservation of the species
because it connected the Whetstone and Santa Rita Mountain
ranges and “represent[ed] areas through which a jaguar may
travel between Subunit 4a and Mexico.” Id. at 12611.
C. Rosemont’s Mining Project
Rosemont’s proposed copper mine and related mineral-
processing facilities (Mine) are located in the northern Santa
Rita Mountains in Pima County, Arizona. Applying for the
necessary federal authorizations and permits for its Mine,
Rosemont consulted twice with federal agencies on
endangered-species issues and requirements under the ESA.
During both consultations, the FWS considered whether
Rosemont’s Mine was likely to destroy or adversely modify
the jaguar’s critical habitat that the FWS had designated. The
FWS issued a biological opinion after each consultation
(2013 and 2016 Biological Opinion) and concluded both
times that the Mine was “not likely [to] destroy or adversely
modify” critical habitat for the jaguar. Accordingly, the FWS
declined to exclude Rosemont’s project area from its critical-
habitat designation because “the construction and operation
of the Rosemont Mine would not . . . adversely modify
designated critical habitat” and the resulting economic costs
from the designation, if any, would be limited.
D. Procedural Background
In September 2017, the Center sued the FWS, alleging
that it violated the APA in issuing its 2016 Biological
Opinion and approving Rosemont’s Mine. Rosemont
intervened as a defendant and crossclaimed, arguing that the
FWS violated the ESA and the APA by designating Unit 3
16 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
and Subunit 4b as critical habitat for the jaguar. The parties
cross-moved for summary judgment.
The district court granted the FWS’s and the Center’s
motions for summary judgment and denied Rosemont’s
motion. Ctr. for Biological Diversity, 441 F. Supp. 3d at
871–75. The district court agreed with Rosemont that the
FWS erred in determining that Unit 3 was occupied by the
jaguar when it was listed, but it held that the FWS properly
designated Unit 3 and Subunit 4b as unoccupied critical
habitat. Id. at 872–74. The district court also granted
summary judgment to the Center on its claim that the FWS’s
2016 Biological Opinion improperly used a heightened
standard in determining that Rosemont’s Mine was not likely
to destroy or adversely modify critical habitat for the jaguar.
Id. at 855–57.
Rosemont timely appealed. Thereafter, Rosemont
petitioned the FWS to revise its critical-habitat designations
to exclude the area where the Mine is located in the northern
Santa Rita Mountains. 6 We stayed Rosemont’s appeal
pending the FWS’s ruling on Rosemont’s petition. In
September 2021, the FWS denied Rosemont’s petition,
finding that it “does not present substantial scientific or
commercial information indicating that [the northern portion
of Unit 3 and Subunit 4b] are not essential for the
conservation of the species.” 90-Day Finding on a Petition
6
Rosemont’s motion requesting that we take judicial notice of its
Petition to Revise the Critical Habitat for the Jaguar Species, filed with
the FWS on November 11, 2020, is granted. See Anderson v. Holder, 673
F.3d 1089, 1094 n.1 (9th Cir. 2012) (noting that “[w]e may take judicial
notice of records and reports of administrative bodies.” (internal
quotation marks and citation omitted)).
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 17
to Revise Critical Habitat for the Jaguar, 86 Fed. Reg. at
49988.
II. DISCUSSION
We review the district court’s summary judgment rulings
de novo to determine whether the FWS’s challenged actions
were “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A); Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d
1160, 1163 (9th Cir. 2010). Agency action is arbitrary and
capricious when the agency “relie[s] on factors which
Congress has not intended it to consider, entirely fail[s] to
consider an important aspect of the problem, [or] offer[s] an
explanation for its decision that runs counter to the evidence
before the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also
Michigan v. EPA, 576 U.S. 743, 750 (2015) (“Not only must
an agency’s decreed result be within the scope of its lawful
authority, but the process by which it reaches that result must
be logical and rational.” (quoting Allentown Mack Sales &
Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998))).
The first issue for decision is whether the FWS’s
designations of Unit 3 and Subunit 4b as critical habitat were
proper. Because we conclude that they were not, we do not
reach whether the FWS correctly determined that
Rosemont’s Mine would not adversely affect those
designated critical habitats, the subject of the Center’s
motion for summary judgment. We also reject Rosemont’s
argument that the district court erred by not requiring the
FWS on remand to reconsider its economic-impact analysis
related to its critical-habitat designations because that issue
is premature.
18 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
A. Critical Habitat Designations
As previously stated, when a species is listed as
endangered or threatened, the Secretary of the Interior must
“concurrently . . . designate any habitat of such species
which is then considered to be critical habitat.” 16 U.S.C. §
1533(a)(3)(A)(i). Habitat may be designated as critical if it
is “essential” to the “conservation of the species.” Id.§ 1532(5)(A). The ESA identifies two types of critical
habitat: occupied and unoccupied. Id. An area may be
designated as “occupied” critical habitat if the species is
present in the area when the species is listed, and the area
has the “physical or biological features (I) essential to the
conservation of the species and (II) which may require
special management considerations or protection.” Id.
§ 1532(5)(A)(i). The species need not be physically present
permanently for an area to be designated as occupied; the
area simply must “contain” the species. Ariz. Cattle
Growers’ Ass’n, 606 F.3d at 1165. Stated another way, an
area is occupied if the species “uses [it] with sufficient
regularity that [the species] is likely to be present during any
reasonable span of time.” Id. Unoccupied areas, or areas
where the species is not present at listing, can be designated
as critical habitat only if the Secretary determines “that such
areas are essential for the conservation of the species.” 16
U.S.C. § 1532(5)(A)(ii).
While the ESA requires that both occupied and
unoccupied areas be “essential” to conservation before they
can be designated as critical habitat, id. § 1532(5)(A)(i)–(ii),
the standard for designating unoccupied critical habitat is
“more demanding” than the standard for designating
occupied critical habitat. Home Builders Ass’n of N. Cal. v.
U.S. Fish & Wildlife Serv., 616 F.3d 983, 990 (9th Cir.
2010). When the FWS made the designations challenged in
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 19
this case, its governing regulations instructed that “[t]he
Secretary shall designate as critical habitat areas outside the
geographical area presently occupied by a species only when
a designation limited to its present range would be
inadequate to ensure the conservation of the species.” 50
C.F.R. § 424.12(e) (2012) (emphasis added). 7
The FWS argues that the district court erred in rejecting
the FWS’s designation of Unit 3 as occupied critical habitat.
Rosemont argues that the district court erred in upholding
the FWS’s designation of Unit 3 and Subunit 4b as
unoccupied critical habitat because the standard the FWS
used was something less demanding than “essential for the
conservation of the species.”
1. Definitions
Congress did not define “essential” as used in the ESA’s
“critical habitat” definition. Therefore, we begin by
identifying its “ordinary or natural meaning.” HollyFrontier
Cheyenne Ref., LLC v. Renewable Fuels Ass’n, 141 S. Ct.
2172, 2176 (2021) (citation omitted). There is significant
agreement about the ordinary meaning of “essential”: it
refers to something that is indispensable or necessary. See
American Heritage Dictionary of the English Language
(1970) (“Of the greatest importance; indispensable”);
Webster’s New World Dictionary, Second College Edition
(1970) (“Absolutely necessary; indispensable; requisite”);
Webster’s Third New International Dictionary (1971)
(“Necessary, indispensable”); see also Black’s Law
Dictionary (4th ed. 1968) (“Indispensably necessary;
important in the highest degree; requisite.”). Where
7
In 2016, the agency amended the regulation and recodified it at 50
C.F.R. § 424.12(b)(2). See 50 C.F.R. § 424.12(b)(2) (2019).
20 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
“[v]irtually every dictionary we are aware of” from the time
the ESA was enacted references the same basic meaning,
“[w]e have not the slightest doubt that is the meaning that
the statute intended.” MCI Telecomms. Corp. v. AT&T Co.,
512 U.S. 218, 225, 228 (1994).
This interpretation of “essential” also is bolstered by the
surrounding statutory text. See, e.g., Weyerhaeuser Co. v.
U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 368 (2018)
(“Statutory language cannot be construed in a vacuum.”
(alteration and citation omitted)); Yates v. United States, 574
U.S. 528, 543 (2015) (“[A] word is known by the company
it keeps . . . .”). Congress used “essential” in defining
“critical habitat” as geographic areas that are “essential to”
or “essential for” the “conservation of the species.” 16
U.S.C. § 1532(5)(A)(i)–(ii). “Critical” means “important or
essential for determining” and refers to a “state on which the
issue of things depends.” Webster’s New Twentieth Century
Dictionary (2d edition 1971); see also Webster’s New World
Dictionary, Second College Edition (1970) (“[O]f or
forming a crisis or turning point; decisive”); Webster’s Third
New International Dictionary (1971) (“[I]ndispensable for
the weathering, the solution, or the overcoming of a crisis”).
“Conservation”—the concept that “essential” is
connected to—is defined in the ESA. 16 U.S.C. § 1532(3).
It is “the use of all methods and procedures which are
necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant
to this Act are no longer necessary.” Id. (emphasis added).
“Necessary” also means “indispensable.” See Webster’s
New World Dictionary, Second College Edition (1970)
(“[T]hat cannot be dispensed with; essential;
indispensable.”); American Heritage Dictionary of the
English Language (1970) (“Needed to achieve a certain
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 21
result; requisite”). Taken together, both the accepted plain
meaning of “essential” and the relevant surrounding
statutory terms in the ESA unambiguously establish that for
an area to be “essential” for conservation of a species, it must
be more than beneficial; rather, the agency must determine
that the species cannot be brought “to the point at which the
measures provided pursuant to [the ESA] are no longer
necessary” without the critical habitat designation. 16 U.S.C.
§ 1532(3).
Caselaw also supports this interpretation. In
Weyerhaeuser, the Supreme Court construed the ESA’s
definition of “critical habitat”—whether occupied or
unoccupied—as including only “areas that are indispensable
to the conservation of the endangered species.” 139 S. Ct. at368–69 (emphasis added). And we previously indicated that
“essential” means indispensable when we affirmed a district
court’s conclusion that “[i]f certain habitat is essential, it
stands to reason that if the [FWS] did not designate this
habitat, whatever the [FWS] otherwise designated would be
inadequate,” Bear Valley Mut. Water Co. v. Salazar, 2012
WL 5353353, at *22 (C.D. Cal. Oct. 17, 2012), aff’d sub
nom. Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977(9th Cir. 2015); see also N.M. Farm & Livestock Bureau v.
U.S. Dep’t of Interior, 952 F.3d 1216, 1233 (10th Cir. 2020)
(Hartz, J., concurring) (“The administrative record raises
concerns about whether the Service defined essential to
mean merely convenient or helpful. But I am confident that
it will be more careful after remand.”); Markle Interests,
L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452, 486 (5th
Cir. 2016) (Owen, J., dissenting) (“Unit 1 is not ‘essential
[i.e., of the utmost importance; basic and necessary] for the
conservation of the species.’” (alteration in original)),
vacated, 139 S. Ct. 590 (2018).
22 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
Indeed, while the parties disputed the meaning of
“essential” in the district court, Ctr. for Biological Diversity,
441 F. Supp. 3d at 872–74, they seem to now agree that it
means “indispensable,” “necessary,” and “something more
than convenient or helpful.” But that is where their
agreement ends. The FWS and the Center argue that
“essential” is nonetheless a “broad standard” because it is
used in reference to “conservation,” which is a broad
concept. And Rosemont argues that the FWS’s and the
Center’s proposed interpretation is a “watered-down
standard that contravenes the plain meaning of the ESA.”
The FWS and the Center rely on our prior decisions
recognizing that “the purpose of establishing ‘critical
habitat’ is for the government to carve out territory that is
not only necessary for the species’ survival but also essential
for the species’ recovery.” Gifford Pinchot Task Force v.
U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir.
2004), superseded on other grounds by Definition of
Destruction or Adverse Modification of Critical Habitat, 81
Fed. Reg. 7214 (Feb. 11, 2016); see also Home Builders
Ass’n of N. Cal., 616 F.3d at 989 (“Gifford Pinchot requires
FWS to be more generous in defining area as part of the
critical habitat designation.”). 8 That is, the FWS and the
8
The district court relied on this statement in Home Builders Association
in concluding that “essential” does not mean “indispensable” and that
“this higher standard would not be in accordance with the intent of the
ESA.” Ctr. for Biological Diversity, 441 F. Supp. 3d at 873 n.31 (citing
Home Builders Ass’n of N. Cal., 616 F.3d at 989). In Home Builders
Association, the plaintiff made the “perverse” argument that our
statement in Gifford Pinchot that “the purpose of establishing critical
habitat is . . . to carve out territory that is not only necessary for the
species’ survival but also essential for the species’ recovery” required
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 23
Center argue that Unit 3 and Subunit 4b are “essential for
jaguar conservation” because “protecting these areas
through the ESA’s consultation process will promote jaguar
recovery.”
This argument is unpersuasive. While “conservation”
encompasses both ensuring species’ survival and recovery,
the ESA nonetheless requires the agency to show that
designation of critical habitat is “necessary” or
“indispensable” in accomplishing these objectives, not
merely “beneficial” to or capable of “promoting” survival or
recovery. Congress not only limited “conservation” to
include those “methods and procedures which are necessary
to bring any endangered species or threatened species to the
point at which the measures provided pursuant to this Act
are no longer necessary,” 16 U.S.C. § 1532(3) (emphasis
added), it also expressly limited the authority to designate
habitat areas for protection to only “critical habitat,” which
it defined as areas “essential” for conservation. Id. §
1532(5)(A). The “extremely broad[]” construction that the
FWS, the Center, and the dissent advance reads out of the
statute Congress’ limiting words: “critical,” “essential,” and
“necessary.” See 16 U.S.C. § 1532(3), (5)(A). But our
obligation is to give effect to all the terms of the statute.
the FWS to include less area in the critical-habitat designation
challenged in that case. 616 F.3d at 988–89 (quoting Gifford Pinchot,
378 F.3d at 1070). In responding to this argument, we explained that
Gifford Pinchot emphasized the dual survival and recovery purposes of
critical-habitat designations, which “requires FWS to be more generous”
in defining critical habitat, as opposed to more restrictive. Id. This
context makes clear that we were not opining about the meaning of
“essential” or suggesting that nonessential areas could be designated as
critical habitat for accomplishing the dual purposes of designating
critical habitat.
24 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1939
(2022). And doing so here means that the only plausible
construction of “essential” in the ESA’s definition of
“critical habitat” is area that is indispensable or necessary to
conservation, not merely beneficial to such efforts.
2. FWS’s Designations
We now turn to whether the FWS’s critical habitat
designations of Unit 3 9 and Subunit 4b were proper.
a. Occupied Critical Habitat
The district court concluded that the FWS’s designation
of Unit 3 was arbitrary and capricious because the FWS
considered evidence of occupancy outside the timeframe of
1962–1982, which was counter to Congress’s intention that
the agency consider occupancy at the time of listing. Ctr. for
Biological Diversity, 441 F. Supp. 3d at 872. The FWS
contends that this was error.
For land to be classified as occupied critical habitat, it
must be “within the geographical area occupied by the
species, at the time [the species] is listed.” 16 U.S.C. §
1532(5)(A)(i). Although the ESA and its implementing
regulations do not define “occupied,” we have previously
construed this term to refer to when a species “uses [the area]
with sufficient regularity that it is likely to be present during
any reasonable span of time.” Ariz. Cattle Growers’ Ass’n,
606 F.3d at 1165. This is a “highly contextual and fact-
dependent inquiry.” Id. at 1164.
9
Rosemont contests the occupancy determination only as to the northern
Santa Rita Mountains area of Unit 3—roughly 50,000 of the total
300,000 acres within Unit 3—and we limit our analysis to only this
disputed portion.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 25
The FWS designated Unit 3 as “occupied” based on a
Class I sighting in the Patagonia Mountains in 1965 and
photographs of a single male jaguar in the Santa Rita
Mountains taken in 2012 and 2013. Final Rule, 79 Fed. Reg.
at12593. Because the jaguar was listed as endangered in
1972 and the average lifespan of a jaguar is ten years, it was
reasonable for the FWS to consider sightings between 1962
and 1982, including the Class I sighting from 1965.
However, we agree with the district court that the FWS’s
reliance on the 2012 and 2013 photographs was “counter to
Congress’ intention that the agency consider occupancy at
the time of listing, not at the time of designation or some
undefined period.” Ctr. for Biological Diversity, 441 F.
Supp. 3d at 872.
The ESA makes clear that the FWS must designate
critical habitat based on the occupancy status “at the time
[the species] is listed.” 16 U.S.C. § 1532(5)(A)(i) (emphasis
added). Thus, by relying on the 2012 and 2013 photographs,
taken decades after listing, in designating Unit 3 as occupied
critical habitat, the FWS “relied on factors which Congress
has not intended it to consider.” See Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43. Our limited role under arbitrary and
capricious review does not extinguish our duty to “ensure
that agency decisions are founded on a reasoned evaluation
of the relevant factors.” Marsh v. Or. Nat. Res. Council, 490
U.S. 360, 378 (1989) (internal quotation marks omitted).
Where the ESA expressly instructs the FWS to focus its
inquiry on the time of a species’ listing, evidence falling
outside a reasonable definition of that timeframe is not a
“relevant factor.” Id.Without the 2012 and 2013 photographs, the only
evidence underlying the FWS’s occupancy determination is
the Class I sighting from 1965. The FWS argues this alone
26 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
was enough to establish occupancy and that the district court
did not adequately consider this evidence. We disagree. The
district court considered the 1965 sighting and found it an
“insufficient” basis to conclude that the jaguar occupied the
northern Santa Rita Mountains, the only portion of the Unit
3 critical-habitat designation that Rosemont contests. Ctr.
for Biological Diversity, 441 F. Supp. 3d at 872. The 1965
sighting was in the Patagonia Mountains. The district court
was correct that this single sighting in a different mountain
range has limited relevance to whether the area where
Rosemont’s Mine is located was occupied by the jaguar in
1972. Id. This evidence alone does not support the finding
that the jaguar used the challenged area “with sufficient
regularity that it is likely to be present during any reasonable
span of time.” Ariz. Cattle Growers’ Ass’n, 606 F.3d at 1165;
Turtle Island Restoration Network v. U.S. Dep’t of Com.,
878 F.3d 725, 732 (9th Cir. 2017) (holding that agency
action is arbitrary and capricious when the agency’s
“explanation for its decision . . . runs counter to the evidence
before the agency” (citation omitted)).
The FWS attempts to justify this occupied critical-
habitat designation based on the circumstances surrounding
its decision, including the difficulty of detecting jaguars
during the 1970s and the presence of PCEs in Unit 3. But
detection difficulties and the existence of favorable
“physical or biological features” do not speak to whether
jaguars occupied the disputed area in 1972. See N.M. Farm
& Livestock Bureau, 952 F.3d at 1227. While jaguars are
difficult to detect, without a Class I report or some other
compelling evidence from the relevant period in the relevant
place, much of the FWS’s decision rests on speculation. See
id. (“[T]he Service’s reliance on sightings in 1995, 1996, and
2006 to support a conclusion of occupation in 1972 is not
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 27
based on expert opinion and is purely speculative.”). This is
particularly true where the record otherwise establishes only
minimal presence of the jaguar in the American Southwest
generally.
In sum, because the FWS designated the northern Santa
Rita Mountains as occupied critical habitat based on
irrelevant photographs from decades after the jaguar was
listed as endangered and a single timely sighting from a
different mountain range, we affirm the district court’s
conclusion that the FWS’s challenged occupied critical-
habitat designation was arbitrary and capricious.
b. Unoccupied Critical Habitat
The FWS designated Unit 3 and Subunit 4b as
unoccupied critical habitat. Before turning to the merits of
these designations, we address Rosemont’s argument that
the FWS failed to follow its regulation governing
unoccupied critical-habitat designations.
i.
When the FWS issued the Final Rule that included its
challenged critical-habitat designations, its governing
regulation provided: “The Secretary shall designate as
critical habitat areas outside the geographical area presently
occupied by a species only when a designation limited to its
present range would be inadequate to ensure the
conservation of the species.” 50 C.F.R. § 424.12(e) (2012).
Rosemont argues that this regulation imposes a two-step
analysis. First, the FWS must determine that any occupied
critical habitat is inadequate to conserve the jaguar. And
second, the FWS must determine that designation of
unoccupied critical habitat is essential for conservation.
28 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
The history of Section 424.12(e) is relevant to
Rosemont’s argument. Section 424.12 was first promulgated
in 1980. See 45 Fed. Reg. 13010-01, 13023 (Feb. 27, 1980).
Up until 2016, including when the FWS issued the 2014
Final Rule, subsection (e) of the regulation read as just
quoted—unoccupied critical habitat designations were
allowed only when occupied critical habitat “would be
inadequate to ensure the conservation of the species.” 50
C.F.R. § 424.12(e) (2012); see Final Rule, 79 Fed. Reg. at
12590. But the agency removed subsection (e) in 2016. 81
Fed. 7414-01, 7439–40 (Feb. 11, 2016). In the preamble to
this regulatory amendment, the FWS explained that it was
stepping away from a “rigid” two-step analysis, “i.e., first
designating all occupied areas that meet the definition of
‘critical habitat’ (assuming that no unoccupied habitat is
designated) and then, only if that is not enough, designating
essential unoccupied habitat” because that “may not be the
best conservation strategy for the species.” Id. at 7415. Then
in 2019, the FWS restored the language previously contained
in subsection (e). 84 Fed. Reg. 45020, 45053 (Aug. 27,
2019). Noting that the 2016 amendment “eliminat[ed] the
sequenced approach to considering occupied habitat before
unoccupied habitat,” the FWS stated that it was “restoring
the requirement that the Secretary will first evaluate areas
occupied by the species.” Id. at 45043.
We discussed the operative version of Section 424.12 in
Bear Valley. 790 F.3d at 993. There, the plaintiffs argued
that the FWS failed to consider both whether occupied
habitat areas were adequate for conservation and whether
unoccupied habitat areas were essential for conservation. Id.
at 994. At issue there was conservation of sucker fish and the
FWS’s designation as unoccupied critical habitat upstream
areas that were “the primary sources of high quality course
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 29
sediment for the downstream occupied portions” of the river.
Id. The FWS found that the upstream unoccupied sediment
areas were essential because they provided spawning and
feeding grounds and helped maintain water quality and
temperature. Id. In rejecting the plaintiffs’ argument that the
FWS failed to consider the adequacy of the occupied areas
in meeting conservation objectives, we reasoned that the
regulation’s reference to adequacy was just the ESA’s
requirement that an area be “essential” to conservation,
stated “in a different way.” Id. We further explained that in
that case the FWS’s “Final Rule sufficiently explained why
the designation of unoccupied habitat . . . was essential, and
conversely, why designation of solely occupied habitat was
inadequate for the conservation of the species.” Id.The FWS and the Center argue that Bear Valley
forecloses Rosemont’s argument that the FWS erred by not
sequentially considering both adequacy and essentiality.
Rosemont contends that we are not constrained by Bear
Valley because the agency’s later amendments to Section
424.12 establish that the 2012 version of the regulation
mandated a “rigid step-wise approach,” see 81 Fed. Reg. at
7415; 84 Fed. Reg. at 45043, and that interpretation
supersedes Bear Valley under National Cable &
Telecommunications Association v. Brand X Internet
Services. 545 U.S. 967 (2005).
Under Brand X, “[a] court’s prior judicial construction
of a statute trumps an agency construction otherwise entitled
to Chevron deference only if the prior court decision holds
that its construction follows from the unambiguous terms of
the statute and thus leaves no room for agency discretion.”
Id. at 982. We conclude that Brand X is not implicated here
because our decision in Bear Valley does not conflict with
the FWS’s interpretation of Section 424.12(e). See Medina-
30 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
Nunez v. Lynch, 788 F.3d 1103, 1105 (9th Cir. 2015) (noting
that Brand X is implicated where “we confront a conflict
between our own precedent and [an agency’s] later
published precedent to the contrary.”). In Bear Valley, we
did not reject the requirement that occupied habitat areas
must be inadequate for conservation before an unoccupied
critical-habitat designation is proper. Rather, we upheld the
FWS’s unoccupied critical-habitat designation because the
FWS “sufficiently explained why the designation of
unoccupied habitat . . . was essential, and conversely, why
designation of solely occupied habitat was inadequate for the
conservation of the species.” 790 F.3d at 994. That is, we
recognized the function and necessity of both inquiries. See
id. If occupied critical habitat is adequate to conserve a
protected species, then unoccupied areas necessarily are not
essential to conservation. But if occupied critical habitat is
inadequate for conservation, then designation of unoccupied
critical habitat may be essential.
That we construed these analyses as closely related—
particularly given the ecological facts at issue in Bear
Valley—does not conflict with the agency’s interpretation
that Section 424.12 requires both inquiries to be separately
and sequentially considered. Id. Stated another way,
imposing a sequential analysis to determine whether
designation of unoccupied critical habitat is proper does not
violate Bear Valley, which acknowledged both the
inadequacy-of-occupied-habitat and essentiality-of-
unoccupied-habitat requirements and upheld the FWS’s
challenged designation where these requirements were both
met. Id.; cf., e.g., Lambert v. Saul, 980 F.3d 1266, 1268,
1275–76 (9th Cir. 2020) (applying Brand X where agency’s
interpretation of the relevant statute as foreclosing a
presumption conflicted with this court’s prior recognition of
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 31
such a presumption); Empire Health Found. for Valley Hosp.
Med. Ctr. v. Azar, 958 F.3d 873, 877–78 (9th Cir. 2020)
(applying Brand X after finding that the Department of
Health and Human Services’ interpretation “directly
conflict[ed] with [this court’s] interpretation” of the statute
at issue), rev’d sub nom. Becerra v. Empire Health Found.
for Valley Hosp. Med. Ctr., 142 S. Ct. 2354 (2022); Medina-
Nunez, 788 F.3d at 1105 (applying Brand X upon
“confront[ing] a conflict between [this court’s] precedent
and the BIA’s later published precedent to the contrary”);
Skranak v. Castenada, 425 F.3d 1213, 1219 (9th Cir. 2005)
(applying Brand X because adopting the agency’s
interpretation would “conflict” with the court’s prior
holding).
Because we conclude that Bear Valley does not displace
the agency’s interpretation of Section 424.12(e), we consider
whether the FWS’s designation of Unit 3 and Subunit 4b as
unoccupied critical habitat complies with Section 424.12, as
interpreted by the agency. In doing so, we note that two of
our sister circuits have likewise applied the FWS’s
interpretation of Section 424.12, including the Tenth Circuit
in its review of the FWS’s designations of Units 5 and 6
under the same Final Rule at issue here. See N.M. Farm &
Livestock Bureau, 952 F.3d at 1228–29; Markle Interests,
L.L.C., 827 F.3d at 470 (“Under the regulations in effect at
the time that Unit 1 was designated, the Service had to find
that the species’[] occupied habitat was inadequate before it
could even consider designating unoccupied habitat as
critical.”), vacated on other grounds, 139 S. Ct. 590 (2018).
32 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
ii.
a.
Turning to the merits of the FWS’s designation of Unit
3 and Subunit 4b as unoccupied critical habitat, the FWS did
not address whether “the designation of areas occupied by
jaguars in 1972 would be inadequate to ensure the
conservation of the species.” See N.M. Farm & Livestock,
952 F.3d at 1231. Perhaps this was because the FWS made
its unoccupied designations after hedging on its occupied
designations 10 because it recognized that, based on the
evidence of record, “an argument could be made that no
areas in the United States were occupied by [jaguars] at the
time it was listed.” Final Rule, 79 Fed. at 12582; see also id.
at 12588 (“[S]ome expert opinions . . . suggest that jaguars
in the United States had declined to such an extent by
[listing] as to be effectively eliminated.”). But all we can do
is speculate because the agency did not address Section
424.12’s adequacy requirement other than to recite it. See id.
at 12578; cf. Ctr. for Biological Diversity v. Haaland, 998
F.3d 1061, 1068 (9th Cir. 2021) (noting that our review is
“limited to the reasons given by the agency for its action.”).
It is well established that “an agency is to be held to the
terms of its regulations.” United States v. Coleman, 478 F.2d
1371, 1374 (9th Cir. 1973) (citing Service v. Dulles, 354 U.S.
363, 372 (1957)). Because the FSW did not comply with
Section 424.12(e) by addressing whether designated
occupied critical habitat was adequate to address
conservation goals, its designation of Unit 3 and Subunit 4b
as unoccupied critical habitat was arbitrary and capricious.
10
The FWS designated as occupied critical habitat Units 1a, 3, 4a, 5, and
6. Final Rule, 79 Fed. Reg. at 12591–92.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 33
See N.M. Farm & Livestock Bureau, 952 F.3d at 1231
(“Because [the FWS] did not follow its own regulations or
provide a rational explanation for failing to do so, its
designation of Units 5 and 6 as critical habitat was arbitrary
and capricious.”).
The dissent argues that we misconstrue the governing
regulation as limiting the FWS to determining whether
occupied critical habitat (necessarily based on occupancy at
listing) is adequate to conserve the species before
designating unoccupied critical habitat. Dissent at 58–59.
Relying on the regulation’s instruction that the agency
consider the adequacy of any “geographical area presently
occupied by a species,” the dissent argues that the FWS may
properly consider the adequacy of areas occupied at the time
of designation not just the time of listing in deciding whether
designation of unoccupied areas is essential. Dissent at 59
(emphasis added) (quoting 50 C.F.R. § 424.12(e) (2012)).
We do not find this argument persuasive. This reading of
Section 424.12(e) contravenes Congress’s express
requirement that the agency designate areas “outside the
geographical area occupied by the species at the time it is
listed” only where it finds “that such areas are essential for
the conservation of the species.” See 16 U.S.C. §
1532(5)(A)(ii). We agree with the Tenth Circuit that the
governing version of Section 424.12 “require[d] the [FWS]
to consider a species’ range at the time of listing,” because
any other reading “would be inconsistent with the [ESA].”
N.M. Farm & Livestock, 952 F.3d at 1228 n.12 (quoting 16
U.S.C. § 1532(5)(A)(ii)).
The agency’s conduct further supports our conclusion.
The agency has not advanced or adopted the dissent’s
interpretation. In commentary to the 2016 amendment, the
FWS explained that the language in the 2012 version that
34 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
“unoccupied habitat can be considered only if a
determination is made that the [FWS] cannot recover the
species with the inclusion of only the ‘geographical area
presently occupied’ by the species . . . is generally
understood to refer to habitat occupied at the time of
listing.” Listing Endangered and Threatened Species and
Designating Critical Habitat; Implementing Changes to the
Regulations for Designating Critical Habitat, 81 Fed. Reg.
7414, 7415 (Feb. 11, 2016) (emphasis added) (citation
omitted). The amendment commentary further evidences
that the agency has not and does not adopt the dissent’s
interpretation by acknowledging that the 2012 version of the
regulation “confusingly references present range, while the
two parts of the statutory definition refer to the area occupied
at the time of listing” and explaining that the amendment
sought to “reduce confusion to change the regulations to
track the statutory distinction.” Id. at 7434. That is, the 2016
amendment clarified—it did not establish—that the agency
may consider only the “geographical area occupied by the
species at the time of listing” in assessing whether
designation of unoccupied areas is essential to conservation.
50 C.F.R. § 424.12(b)(1)(i), (2019) (emphasis added); see
also id. § 424.12(b)(2).
b.
Even if the dissent were correct that the 2012 regulation
directs the FWS to consider whether areas occupied at the
time of designation, rather than listing, are inadequate to
conserve the species, the FWS’s analysis still falls short
because it did not explain why the areas that it found were
occupied when it made its unoccupied critical habitat
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 35
designations were inadequate to conserve the jaguar. 11 The
FWS did, however, address whether designating Unit 3 and
Subunit 4b as unoccupied critical habitat was “essential to
the conservation of the [jaguar].” See Final Rule, 79 Fed.
Reg. at 12582, 12594 (emphasis added). We conclude that
none of the FWS’s justifications for finding these areas
essential—individually or collectively—satisfy the ESA
and, therefore, the FWS acted arbitrarily and capriciously in
designating these areas as unoccupied critical habitat.
The FWS determined that Unit 3 was essential because
“(1) [this area has] demonstrated recent (since 1996)
occupancy by jaguars; (2) [it] contain[s] features that
comprise suitable jaguar habitat; and (3) [it] contribute[s] to
the species’ persistence in the United States by allowing the
normal demographic function and possible range expansion
of the proposed Northwestern Recovery Unit, which is
essential to the conservation of the species . . . .” See Final
Rule, 79 Fed. Reg. at 12582. The FWS determined that
jaguars were present because of the 1965 sighting along with
“multiple sightings of a male jaguar from October 2012
through September 11, 2013, in the Santa Rita Mountains.”
Id. at 12627. Regarding suitable habitat, the FWS
determined that Unit 3 contains favorable “[e]xpansive open
spaces in the southwestern United States with adequate
connectivity to Mexico that contain a sufficient native prey
base and available surface water, have suitable vegetative
cover and rugged topography to provide sites for resting, are
11
The dissent asserts that the FWS was “justified in concluding that the
designation of other areas alone would be inadequate to ensure the
species’ conservation,” but it does not identify where in the Final Rule
the agency made this determination. Dissent at 60. Thus, under the
dissent’s view, it seems the appropriate outcome would be a remand, not
affirmance of the agency’s unoccupied critical habitat designations.
36 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
below 2,000 m (6,582 feet (ft)) and have minimal human
impact.” Id. at 12583. Specifically, the Santa Rita
Mountains, where Rosemont’s Mine would be located,
“contain all elements of the physical or biological feature
essential to the conservation of the jaguar.” Id. at 12593.
Finally, the FWS determined that Unit 3 is a “secondary
area” that provides “a recovery function benefitting the
overall recovery unit.” Id. at 12574.
First, it cannot be disputed that the evidence of jaguars
present within Unit 3 is thin. The 2012 and 2013 jaguar
sightings were of a single transient male. As previously
discussed, the FWS also relied on these sightings in
concluding that Unit 3 was “occupied” by jaguar. Id. at
12582. Cf. Otay Mesa Prop., L.P. v. U.S. Dep’t of Interior,
344 F. Supp. 3d 355, 376 (D.D.C. 2018) (Jackson, J.)
(finding that the FWS acted arbitrarily and capriciously
when “its ‘unoccupied critical habitat’ designation relied on
the same methodology the agency had used to determine that
[the area designated] qualifies as occupied critical habitat”).
And these 2012 and 2013 sightings follow a long history of
minimal presence of the jaguar generally. The FWS reported
in its Final Rule that “some expert opinions . . . suggest that
jaguars in the United States had declined to such an extent
by [listing] as to be effectively eliminated.” Final Rule, 79
Fed. Reg. at 12588.
Second, whether Unit 3 contains the “features that
comprise jaguar habitat” is not determinative. Id. at 12582.
As now-Justice Jackson has explained, “the language of the
[ESA] does not permit reliance on the mere presence of
pertinent biological features (PCEs) to determine that an area
qualifies as unoccupied critical habitat” where “Congress
has quite clearly decided that the touchstone of unoccupied
critical habitat (in contrast to occupied critical habitat) is
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 37
whether the area itself is ‘essential’ to the conservation of the
species.” Otay Mesa Prop., L.P., 344 F. Supp. 3d at 376; see
also Ariz. Cattle Growers’ Ass’n, 606 F.3d at 1163
(recognizing that the ESA “differentiates between
‘occupied’ and ‘unoccupied’ areas, imposing a more onerous
procedure on the designation of unoccupied areas by
requiring the Secretary to make a showing that unoccupied
areas are essential for the conservation of the species”); see
also Markle Interests, L.L.C. v. U.S. Fish and Wildlife Serv.,
848 F.3d 635, 646 (5th Cir. 2017) (Jones, J., dissenting from
the denial of rehearing en banc) (“For occupied habitat, the
relevant specific areas contain physical or biological
features essential to the conservation of a species. For
unoccupied habitat, the specific areas themselves must be
essential for the species’ conservation.”).
The dissent disputes that Unit 3 was designated as
unoccupied critical habitat “based on the presence of PCEs
alone,” discussing that the agency (1) also relied on 2012 and
2013 photographs of the jaguar in Unit 3, and (2) only
designated areas “providing at least 100 square kilometers of
habitat.” Dissent at 56. That an area provides at least 100
square kilometers of habitat is itself a PCE. See Final Rule,
79 Fed. Reg. at 12587 (“[W]e determine that the primary
constituent elements specific to jaguars are: Expansive open
spaces in the southwestern United States of at least 100 km
in size”). So even under the dissent’s view, the FWS’s Unit
3 unoccupied critical habitat designation was based only on
minimal evidence of the presence of jaguars and the
presence of PCEs.
This is the standard for designating occupied critical
habitat, not unoccupied. See Otay Mesa Property, L.P., 344
F. Supp. 3d at 374 (“[T]he designation of ‘occupied critical
habitat’ under the ESA turns on the identification of the areas
38 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
that the species occupies and where the PCEs exist within
those areas.”); see also Markle Interests, L.L.C., 848 F.3d at
646 (Jones, J., dissenting from the denial of rehearing en
banc) (“The ESA’s text dictates that the unoccupied critical
habitat designation is different and more demanding than
occupied critical habitat designation.”). As previously
discussed, while the FWS may consider the presence of the
PCEs when designating unoccupied areas, it may not
designate unoccupied critical habitat solely on that basis. See
Otay Mesa Prop., L.P., 344 F. Supp. 3d at 376; see also Cape
Hatteras Access Pres. All. v. U.S. Dep’t of Interior, 344 F.
Supp. 2d 108, 119 (D.D.C. 2004) (“[W]ith unoccupied areas,
it is not enough that the area’s features be essential to
conservation, the area itself must be essential.”). The
dissent’s approach would allow the agency to designate
areas that are not occupied by the relevant species within the
meaning of the ESA so long as they contain PCEs—this
would flip the standard by making it easier for the FWS to
designate unoccupied rather than occupied critical habitat.
Home Builders Ass’n of N. Cal., 616 F.3d at 990 (explaining
that the standard for designating unoccupied critical habitat
is “more demanding” than the standard for designating
occupied critical habitat). Finally, and most important, the
FWS has conceded there is nothing in the Final Rule
establishing that the jaguar will be unable to recover or
survive if Unit 3 is not designated as critical habitat. And the
Jaguar Recovery Outline, on which the FWS relied and
which was prepared by experts from both the United States
and Mexico, indicates that any impact to the jaguar related
to Unit 3 will be minimal:
Because such a small portion of the jaguar’s
range occurs in the U.S., it is anticipated that
recovery of the species will rely primarily on
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 39
actions that occur outside the U.S. Activities
that may adversely or beneficially affect
jaguars in the U.S. are less likely to affect
recovery than activities in core areas of their
range.
Final Rule, 79 Fed. Reg. at 12574 (citing Jaguar
Recovery Outline) (emphasis added). Not only that, these
experts concluded that while “the region to the south of
Arizona and New Mexico is especially critical for the
recovery of the jaguar in the southwestern U.S.,” based on
the available evidence, “any conclusions about the
conservation importance of the habitat types in which
jaguars have occurred or might occur in Arizona and New
Mexico are preliminary and can vary widely.” Given this
record, the FWS has not explained how “the best scientific
data available” establishes that designation of Unit 3 is
essential for conservation of the jaguar where the importance
of this area is uncertain and this designation is “less likely”
to impact the jaguar’s recovery. 16 U.S.C. § 1533(b)(2). 12
Accordingly, we find that the FWS’s designation of Unit
3 as unoccupied critical habitat was arbitrary and capricious
because the FWS failed to provide a “reasoned evaluation of
the relevant factors,” Marsh, 490 U.S. at 378 (internal
12
The dissent argues that the record sufficiently establishes that Unit 3
is essential because, as a peripheral habitat, it “provide[s] for possible
range expansion and genetic exchange” and could “help[] the jaguar
return to the territory it occupied before it became endangered.” Dissent
at 54. We do not dispute that these functions would benefit the jaguar.
But the repeated assertion that conservation is a “broad concept” that
encompasses survival and recovery does not overcome Congress’s
express requirement that an area itself be essential to serving these
objectives.
40 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
quotation marks omitted), and its designation “is without
substantial basis in fact,” Arizona Cattle Growers’ Ass’n,
606 F.3d at 1163.
We find some of the same deficiencies in the FWS’s
designation of Subunit 4b as unoccupied critical habitat. The
FWS determined that Subunit 4b “provides connectivity
from the Whetstone Mountains to Mexico . . . [and] is
essential to the conservation of the jaguar because it
contributes to the species’ persistence by providing
connectivity to occupied areas.” Final Rule, 79 Fed. Reg. at
12594. The FWS also noted that Subunit 4b contains “a
combination of low human influence and either or both
canopy cover and ruggedness such that they represent areas
through which a jaguar may travel between the United States
and Mexico.” Id. at 12611. Rosemount challenges this
designation on two grounds. First, it argues that Subunit 4b
cannot be essential because merely connecting members of
the species in the United States and Mexico is “not essential
to the conservation of the species.” See All. for the Wild
Rockies v. Lyder, 728 F. Supp. 2d 1126, 1140 (D. Mont.
2010). Second, it argues that Subunit 4c, which was also
designated critical habitat, provides an alternate corridor
between the United States to Mexico.
We agree that Subunit 4b’s connectivity function and
preferred ecological characteristics do not establish that its
designation as critical habitat is “necessary” or
“indispensable” for conservation of the jaguar. To be clear,
we do not adopt Rosemont’s position that travel corridors
linking population units are not “essential” under the
meaning of the ESA as a general matter. Rather, we conclude
that the FWS’s designation of Subunit 4b as an essential
travel corridor is not supported by the record in this case—
including that the FWS has designated a separate corridor
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 41
that provides the same connectivity function as Subunit 4b
and the complete absence of evidence that jaguars have ever
used Subunit 4b to travel between the United States and
Mexico or for any other purpose.
The FWS’s unexplained assertion that Subunit 4b is
essential to jaguar persistence because it connects the
mountains in the United States to Mexico does not make it
so. Final Rule, 79 Fed. Reg. at 12594; see State Farm Mut.
Auto. Ins. Co., 463 U.S. at 43 (“[T]he agency must examine
the relevant data and articulate a satisfactory explanation for
its action including a ‘rational connection between the facts
found and the choice made.’” (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168 (1962))); see also
Arizona Cattle Growers’ Ass’n v. U.S. Fish and Wildlife,
Bureau of Land Mgmt., 273 F.3d 1229, 1243–44 (9th Cir.
2001) (finding the FWS’s issuance of an incidental take
statement arbitrary and capricious because the evidence
linking cattle grazing to an effect on the razorback sucker
was too “speculative” and “woefully insufficient”). The
Final Rule generally describes that ensuring connectivity
between the jaguar in the United States and Mexico can aid
conservation, but that is not the ESA’s standard. See 16
U.S.C. § 1532(5)(A)(ii); see also N.M. Farm and Livestock
Bureau, 952 F.3d at 1233 (Hartz, J., concurring) (expressing
concern that the FWS “defined essential to mean merely
convenient or helpful” when designating unoccupied critical
habitat for the jaguar). The FWS must demonstrate that the
specific travel corridor it designated—Subunit 4b—is
essential to conservation. See Markle Interests, L.L.C., 848
F.3d at 638, 646–47 (Jones, J., dissenting from the denial of
rehearing en banc); see also Cape Hatteras Access Pres. All.,
344 F. Supp. 2d at 119 (noting that the unoccupied area
“itself must be essential”). Yet, nowhere does the FWS
42 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
reference any information indicating what impact not
protecting Subunit 4b would have on the jaguar. Again, this
is particularly problematic where the experts who studied
recovery of the jaguar concluded that any actions taken in
the United States are “less likely to affect recovery.” Final
Rule, 79 Fed. Reg. at 12624.
Our decision in Alaska Oil & Gas Association v. Jewell
does not compel a contrary result. 815 F.3d 544, 556 (9th
Cir. 2016). There, we rejected the argument that the FWS
could designate as critical habitat only areas containing
actual polar bear den sites but not areas containing habitat
suitable for denning where there was no evidence of current
use of these areas by the species. Id. at 555. To start, there is
a material difference between that case and this one. There,
we were reviewing the FWS’s designation of occupied
critical habitat. Id. Here, we are reviewing the FWS’s
designation of unoccupied critical habitat. The designation
of unoccupied critical habitat is governed by a different and
more stringent standard. See 16 U.S.C. § 1532(5)(A); see
also Home Builders Ass’n of N. Cal., 616 F.3d at 990; Ariz.
Cattle Growers’ Ass’n, 606 F.3d at 1165.
Additionally, Alaska Oil does not displace the limitation
that the FWS may designate as critical habitat only those
areas shown to be “necessary to species recovery [and
survival].” 815 F.3d at 556 (emphasis added). The FWS met
this requirement in Alaska Oil because the record there
established “that many barrier islands provide denning
habitat, as historically evidenced by denning polar bears”;
that “polar bears regularly move across the barrier islands in
search of denning, food, and rest;” and “that polar bears use
barrier islands as migration corridors, moving between
them.” Id. at 561. With that evidence, we rejected that “only
such specific areas, which the bears could be shown to utilize
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 43
at the present time, could be designated as [occupied] critical
habitat,” and we upheld the FWS’s designation as critical
habitat of “all barrier islands along the Alaska coast and their
associated spits.” Id. at 560–61.
But here, the record does not support the FWS’s finding
that Subunit 4b is essential to conservation. The Final Rule
acknowledges that “[e]ither Subunit 4b or 4c may be used
by the jaguar” to travel to Mexico, and that Subunit 4c is the
more direct route. Indeed, the 2013 Biological Opinion
seemingly concedes that designation of Subunit 4b is not
essential, noting “it is difficult . . . to determine whether
Subunit 4b is so important to jaguar movement that loss of
this connectivity would lead to an adverse modification
conclusion,” particularly given the existence of “other
connections between Units 3 and 4 within Subunit 4c.” See
also Final Rule, 79 Fed. Reg. at 12591 (noting that Subunit
1b “provide[s] the jaguar connectivity with Mexico within
the [NRU]”). This is particularly problematic where “there
is no evidence that jaguars ever have used [Subunit 4b] for
travel and [the FWS] cannot speculate whether they will use
this area for travel in the future.” This is a material difference
from the evidence of the polar bears’ presence in and use of
the barrier islands at issue in Alaska Oil. 815 F.3d at 561.
The FWS and the dissent nonetheless contend that
Subunit 4b is “necessary” and “indispensable” because
“secondary areas that provide connectivity between core
areas . . . could allow for range expansion and genetic
exchange,” and jaguars might use Subunit 4b to travel
between Mexico and the United States at some point in the
future. Dissent at 49, 56–58. Indeed, the FWS contends that
without Subunit 4b, “50% of the connectivity to Mexico
from the Whetstones would likely be lost.” But again, this
necessarily is speculation, and the 2013 Biological Opinion
44 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
concedes that “either or both subunits [4b and 4c] may (or
may not) be important to the conservation of jaguars in the
NRU.” If jaguars do not use Subunit 4b to travel between
Mexico and the United States, then it is no percentage of
connectivity for the jaguar. Cf. N.M. Farm & Livestock
Bureau, 952 F.3d at 1227 (finding the FWS’s critical-habitat
designation arbitrary and capricious where it relied on
“speculative” findings that were “not based on substantial
evidence”). And the potential benefit of connectivity is
immaterial if the FWS cannot establish that Subunit 4b is
needed to achieve that benefit. See MCI Telecomm. Corp.,
512 U.S. at 229 (explaining that “an agency’s interpretation
. . . is not entitled to deference when it goes beyond the
meaning that the statute can bear”).
For all these reasons, the FWS’s conclusion that it had
“no reason not to include [Subunit 4b] as critical habitat”
falls flat. Final Rule, 79 Fed. Reg. at 12611. See generally
Garcia v. Holder, 659 F.3d 1261, 1267 (9th Cir. 2011)
(granting “only limited deference” where agency decision is
“conclusory or lacks meaningful analysis”). The dissent’s
assertion that we are rejecting the FWS’s designation of
Subunit 4b simply because there is no “direct evidence that
jaguars use Subunit 4b to travel to Mexico, as opposed to
Subunit 4c” is incorrect. Dissent at 57. Nor are we faulting
the agency for failing to “identify . . . the precise spots where
the species can be found.” Dissent at 57 (citing Alaska Oil,
815 F.3d at 555–57). We conclude that the agency
designation of Subunit 4b was arbitrary and capricious based
on the entirety of the record, including that the FWS
designated as critical habitat a separate area that provides the
same connectivity function as Subunit 4b (Subunit 4c) and
failed to explain why designation of Subunit 4b was also
essential, see Final Rule, 79 Fed. Reg. at 12611; there is no
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 45
evidence of jaguar using Subunit 4b at any point, for any
purpose; and the FWS conceded that it cannot even
“speculate whether [jaguar] will use [Subunit 4b] for travel
in the future.” Habitat that “may (or may not) be important
to the conservation of jaguars” definitionally is not essential
to conservation. To conclude otherwise would render
meaningless Congress’s limitations on the government’s
authority to designate land as unoccupied critical habitat. See
Alaska Oil, 815 F.3d at 562.
In sum, the FWS has not provided a “rational connection
between the facts found and the choice made” or
“articulate[d] a satisfactory explanation” to justify its
designations of Unit 3 and Subunit 4b as unoccupied critical
habitat. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43(citation omitted).
B. Economic-Impact Analysis
Finally, Rosemont challenges the district court’s refusal
to remand for reconsideration of the FWS’s economic-
impact analysis. Section 4(b)(2) of the ESA requires the
Secretary to consider the economic impact of designating a
particular area as critical habitat in making any such
designation. 16 U.S.C. § 1533(b)(2). Where the Secretary
concludes that the harms of a particular designation
outweigh its benefits, the area may be excluded from a
critical-habitat designation. Id. Here, the FWS determined
that Rosemont’s Mine “would not jeopardize the jaguar nor
adversely modify designated critical habitat” and, therefore,
the critical habitat designation would not cause any
disproportionate economic impacts on Rosemont. Final
Rule, 79 Fed. Reg. at 12626. Largely based on this
economic-impact analysis, the FWS “did not find it to be
reasonable or appropriate . . . to enter into the discretionary
46 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
exclusion analysis about whether to exclude the mine from
the final designation.” Id. at 12620.
The district court held that the FWS applied the incorrect
standard in determining that Rosemont’s Mine would not
adversely modify critical habitat and remanded for the FWS
to “reconsider” this conclusion under the proper standard of
review. Ctr. for Biological Diversity, 441 F. Supp. 3d at 857.
Accordingly, Rosemont claims that vacatur and remand is
required because the predicate assumption upon which the
Final Rule’s economic-impact analysis relied—that
Rosemont’s Mine would not adversely modify designated
critical habitat—was extinguished by the district court.
Rosemont argues the agency’s economic-impact decision is
rendered arbitrary and capricious because it rests on a
“flawed premise [that] is fundamental to [the agency’s]
determination.” Safe Air for Everyone v. EPA, 488 F.3d
1088, 1101 (9th Cir. 2007). The FWS and the Center contend
that this argument is (1) waived because Rosemont did not
raise the argument before the district court and (2)
premature.
We disagree that Rosemont waived this issue. We have
discretion to address arguments that “could not have [been]
raised” sooner and were “promptly raised . . . once the
decision on which it was based was issued.” Randle v.
Crawford, 604 F.3d 1047, 1056 (9th Cir. 2010); see also In
re Eashai, 87 F.3d 1082, 1085 n.2 (9th Cir. 1996) (“[T]he
rule of waiver is one of discretion rather than appellate
jurisdiction.”). Here, Rosemont’s argument that the FWS
needs to revisit its economic-impact analysis became
relevant only after the district court concluded that the FWS
used the wrong standard in determining that Rosemont’s
Mine would not adversely affect the designated critical
habitat and remanded for the FWS to reconsider that issue.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 47
See Ctr. for Biological Diversity, 441 F. Supp. 3d at 857.
Thus, it was not improper for Rosemont to raise this
argument for the first time in its appeal of the district court’s
decision.
However, we agree that directing the FWS to reconsider
its economic-impact analysis is premature at this point. We
have concluded that the critical-habitat designations that
Rosemont challenges must be vacated. Thus, it is unclear
what, if any, economic-impact analysis is needed as relates
to Rosemont’s interests. See Texas v. United States, 523 U.S.
296, 300 (1998) (“A claim is not ripe for adjudication if it
rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” (internal
quotation marks and citations omitted)).
III. CONCLUSION
We affirm the district court’s vacatur of the FWS’s
designation of the challenged area of Unit 3 as occupied
critical habitat, and we reverse the district court’s grant of
summary judgment to the FWS regarding its designation of
that same area and of Subunit 4b as unoccupied critical
habitat. As a result, we need not reach whether the FWS
violated the APA in concluding that Rosemont’s Mine
would not adversely modify the Unit 3 and Subunit 4b
critical-habitat designations, which the Center argued in its
motion for summary judgment. We remand this case with
direction that it be returned to the agency for further
proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED. 13
13
Each party shall bear its own costs.
48 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
H.A. THOMAS, Circuit Judge, concurring in part and
dissenting in part:
I agree with the majority that the district court correctly
vacated the Fish and Wildlife Service’s (FWS) designation
of Unit 3 as occupied critical habitat. I also agree that it
would be premature to vacate the FWS’s economic-impact
analysis. But I respectfully dissent from the majority’s
holding that the district court erred in upholding the FWS’s
designation of Unit 3 and Subunit 4b as unoccupied critical
habitat. When considered as a whole, the record amply
supports the FWS’s determination that habitat within the
United States—and the designated units in particular—are
critical to the conservation of the jaguar as it faces threats
elsewhere in its range.
I.
The jaguar is the largest felid in the Americas. It
historically ranged from Argentina to the southern United
States, with habitats from California to Texas. But human
activity in the past century has driven the jaguar out of nearly
all of its range in the United States. The decline in the
domestic jaguar population was sufficiently severe that,
when the FWS listed the jaguar as an endangered species in
1972, it believed the jaguar to be extinct in the United States.
The FWS therefore designated no critical habitat for the
jaguar for decades after its listing.
Things began to change for the jaguar in 1997. That year,
recognizing that the jaguar had some presence within the
United States, the FWS classified the jaguar as a native
endangered species. Then, in 2009, a district court ordered
the FWS to reconsider its decision not to designate any
critical habitat for the jaguar. Ctr. for Biological Diversity v.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 49
Kempthorne, 607 F. Supp. 2d 1078, 1094–95 (D. Ariz.
2009). In response to that 2009 order, the FWS convened the
Jaguar Recovery Team, a group of experts and stakeholders
from the United States and Mexico, to gather information
about the northernmost portion of the jaguar’s habitat.
In 2012, the Jaguar Recovery Team issued its findings in
the Recovery Outline for the Jaguar (Recovery Outline). The
Recovery Team divided the area it studied into two units: the
Northwestern Recovery Unit (NRU) and the Pan American
Recovery Unit. The NRU stretched from Sinaloa, Mexico to
southern Arizona and New Mexico. The Recovery Team
divided the NRU into “core areas,” i.e., areas with reliable
and recent evidence of jaguar habitat and reproduction, and
“secondary areas,” i.e., areas with more sporadic evidence of
jaguar populations and likely lower population densities.
The portions of the NRU within the United States were
classified as secondary.
These secondary areas were still vital for the recovery of
the jaguar population. As the Recovery Team explained, “the
long-term recovery needs for the jaguar” depended not only
on the core areas, but also upon “the maintenance of
secondary areas that provide connectivity between core
areas and that could allow for range expansion and genetic
exchange.” Indeed, the Recovery Team concluded that
“[r]ange expansion and natural movement of the jaguar may
be of increased importance in the face of climate change and
increased habitat fragmentation.”
Following the Recovery Team’s report, the FWS
designated certain areas in southern Arizona and New
Mexico as critical habitat for the jaguar. To determine the
jaguar’s critical habitat, the FWS identified areas that (i) are
occupied by the jaguar, (ii) are greater than 100 square
50 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
kilometers, and (iii) contain all of the “physical or biological
features essential to the conservation” of the jaguar.
Endangered and Threatened Wildlife and Plants;
Designation of Critical Habitat for the Jaguar, 79 Fed. Reg.
12572, 12587 (Mar. 5, 2014) (Final Rule). These areas:
(1) Provide connectivity to Mexico; (2)
Contain adequate levels of native prey
species . . . (3) Include surface water sources
available within 20 km (12.4 mi) of each
other; (4) Contain from greater than 1 to 50
percent canopy cover within Madrean
evergreen woodland . . . (5) Are characterized
by intermediately, moderately, or highly
rugged terrain; (6) Are below 2,000 m (6,562
feet) in elevation; and (7) Are characterized
by minimal to no human population density,
no major roads, or no stable nighttime
lighting.
Id. The FWS also designated as critical habitat certain areas
providing connectivity to the jaguar’s habitat in Mexico.
Two areas are relevant here: Unit 3, which includes areas
in the Santa Rita, Patagonia, Empire, and Huachuca
Mountains; and Subunit 4b, which includes areas in the
Whetstone Mountains connecting Unit 3 to Subunit 4a. The
FWS found that Unit 3 contained each of the physical and
biological features essential to jaguar conservation (also
referred to as primary constituent elements, or PCEs), and
that recent photographs of a jaguar in the area provided
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 51
evidence of jaguar occupation. 1 The FWS also designated
Subunit 4b as unoccupied critical habitat, explaining that it
provided connectivity between occupied areas in Unit 4 and
Mexico.
In making its designation, the FWS considered
comments arguing that no areas within the United States
should be considered critical habitat for the jaguar. The FWS
disagreed, explaining that populations “at the edge of a
species’ range play a role in maintaining the total genetic
diversity of a species; in some cases, these peripheral
populations persist the longest as fragmentation and habitat
loss impact the total range.” Id. at 12574. Accordingly, the
FWS found that critical habitat within the United States
contributed to “the jaguar’s persistence and recovery across
the species’ entire range” and provided “areas for cyclic
expansion and contraction” of the population in the nearby
core areas of the NRU. Id. at 12605. In making this
determination, the FWS referenced the work of the Recovery
Team, emphasizing the Recovery Team’s habitat modeling
and its findings regarding the features essential for jaguar
conservation.
II.
“The Endangered Species Act of 1973 is a
comprehensive scheme with the broad purpose of protecting
endangered and threatened species.” Defs. of Wildlife v.
Zinke, 856 F.3d 1248, 1252 (9th Cir. 2017) (cleaned up). In
furtherance of this purpose, the Endangered Species Act
(ESA) requires federal agencies to ensure “that any action”
1
The FWS determined that Unit 3 and Subunit 4a, among other areas not
relevant here, were occupied critical habitat. Recognizing the sparse
evidence of jaguar occupation, however, the FWS made an alternative
designation of these areas as unoccupied critical habitat.
52 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
they take “is not likely to jeopardize the continued existence
of any endangered species or threatened species or result in
the destruction or adverse modification of habitat of such
species which is determined . . . to be critical.” 16 U.S.C.
§ 1536(a)(2).
The ESA tasks the Secretary of the Interior and the
Secretary of Commerce with designating a species’ critical
habitat. Id. §§ 1532(15), 1533(a)(3)(A)(i). Under the ESA,
critical habitat may either be occupied or unoccupied by the
species in question. Id. § 1532(5)(A). An area may be
designated as occupied critical habitat if it contains “those
physical or biological features (I) essential to the
conservation of the species and (II) which may require
special management considerations or protection.” Id.
§ 1532(5)(A)(i). To be designated as unoccupied critical
habitat, however, the area must be “essential for the
conservation of the species.” Id. § 1532(5)(A)(ii). In other
words, the designation of occupied critical habitat focuses
on the features found in the area, while the designation of
unoccupied critical habitat requires that the habitat itself be
essential to the species’ conservation. See id. § 1532(5)(A).
Under the Administrative Procedure Act, the FWS’s
designation of critical habitat “will be set aside only if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.’” Bear Valley Mut. Water Co. v.
Jewell, 790 F.3d 977, 986 (9th Cir. 2015) (quoting 5 U.S.C.
§ 706(2)(A)). “Under this standard, we will sustain an
agency action if the agency has articulated a rational
connection between the facts found and the conclusions
made.” Id. (internal quotation marks omitted). “In
recognition of the agency’s technical expertise the court
usually defers to the agency’s analysis, particularly within
its area of competence.” Ariz. Cattle Growers’ Ass’n v.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 53
Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010) (reviewing a
critical habitat designation). “A federal court may not
substitute its judgment for that of the agency.” Bear Valley
Mut. Water Co., 790 F.3d at 986.
A.
The majority discusses at length the meaning of the word
“essential” in the ESA’s definition of critical habitat,
explaining that the term is used as a synonym for
“necessary” or “indispensable.” But this discussion does
little to resolve the dispute in this case. The parties do not
disagree on the definition of the term “essential.” And the
ESA does not require that critical habitat be “essential” in
the abstract. Rather, it requires that critical habitat be
“essential for the conservation of the species.” 16 U.S.C.
§ 1532(5)(A)(ii).
Conservation is a broad concept, including “all methods
that can be employed to ‘bring any endangered species or
threatened species to the point at which the measures
provided pursuant to [the ESA] are no longer necessary.’”
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv.,
378 F.3d 1059, 1070 (9th Cir. 2004) (quoting 16 U.S.C.
§ 1532(3)), superseded on other grounds by Interagency
Cooperation—Endangered Species Act of 1973, as
Amended; Definition of Destruction or Adverse
Modification of Critical Habitat, 81 Fed. Reg. 7214 (Feb. 11,
2016). Accordingly, “the purpose of establishing ‘critical
habitat’ is for the government to carve out territory that is
not only necessary for the species’ survival but also essential
for the species’ recovery.” Home Builders Ass’n of N. Cal.
v. U.S. Fish & Wildlife Serv., 616 F.3d 983, 989 (9th Cir.
2010) (quoting Gifford Pinchot Task Force, 378 F.3d at
1070).
54 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
The FWS found that the jaguar’s recovery would “rely
primarily on actions that occur outside the U.S.” Final Rule,
79 Fed. Reg. at 12574. It further found that “[a]ctivities that
may . . . affect jaguars in the U.S. are less likely to affect
recovery than activities in core areas of their range.” Id.
Contrary to the conclusion reached by the majority, there is
no conflict between these findings and a designation of
critical habitat within the United States. Whenever the
United States contains only a minority of a species’ critical
habitat, it is likely that conservation efforts in other countries
will be more important than those here. We have previously
rejected the notion that “designation is only necessary where
it would protect the majority of species habitat.” See Nat.
Res. Def. Council v. U.S. Dep’t of the Interior, 113 F.3d
1121, 1126 (9th Cir. 1997). The ESA, moreover, defines
conservation broadly, and certain habitat may be “essential
for the conservation of the species” even if other habitat is
more important. 16 U.S.C. § 1532(5)(A)(ii).
Here, the FWS adequately justified its determination that
habitat within the United States is essential to the jaguar’s
conservation, even though the jaguar’s core habitat is found
elsewhere. As the FWS explained, threats to the jaguar at the
core of its range increase the value of habitat at the
periphery. These peripheral habitats not only provide for
possible range expansion and genetic exchange but also have
the potential to outlast core areas as threats to the species
increase. The jaguar’s range in 1972, when it was listed as
an endangered species, was already much smaller than its
historical range, which extended well into the United States.
The designation of habitat within the United States therefore
helps the jaguar return to territory it occupied before it
became endangered. Indeed, “[s]ince the point of the ESA is
to ensure the species’ recovery, it makes little sense to limit
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 55
its protections to the habitat that the existing, threatened
population currently uses.” Alaska Oil & Gas Ass’n v.
Jewell, 815 F.3d 544, 556 (9th Cir. 2016).
B.
Having determined that habitat within the United States
is essential to the jaguar’s conservation, the FWS reasonably
designated Unit 3 and Subunit 4b as critical habitat.
i.
The majority contends that the designation of Unit 3 was
improper because the presence of PCEs alone cannot be
determinative in designating an area as unoccupied critical
habitat. But the FWS properly applied the appropriate
standard: that the designated habitat be “essential to the
conservation of the species.” 16 U.S.C. § 1532(5)(a)(ii).
The FWS designated Unit 3 as critical habitat because it
contained evidence of recent jaguar habitation, featured
every one of the PCEs identified by the Recovery Team to
be essential to the jaguar’s recovery, and provided for the
species’ persistence in the United States and possible
expansion to a new range. This designation was based on the
Recovery Team’s findings, which employed scientific
modeling to determine which habitat features were essential
to the jaguar. It was justified also by the Recovery Team’s
determination that areas at the edge of the jaguar’s range
play an important role in supporting the jaguar’s recovery
and survival—particularly toward the northwest of the
species’ range, where opportunities for expansion are
necessary to preserve the genetic health of the NRU’s jaguar
population.
The FWS determined that Unit 3 did not contain just
some but rather all PCEs “essential to the conservation” of
56 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
the jaguar. Final Rule, 79 Fed. Reg. at 12587. This
determination exceeds the standard necessary for
designation of occupied critical habitat. See Home Builders
Ass’n of N. Cal., 616 F.3d at 988–89. Nothing in the ESA
prevents the FWS from designating unoccupied habitat on
the basis that the presence of certain PCEs makes the habitat
“essential for the conservation of the species.” See 16 U.S.C.
§ 1532(5)(A)(ii). We have, in fact, upheld such designations
in the past. See Bear Valley Mut. Water Co., 790 F.3d at 994.
Nor was the designation of Unit 3 based on the presence
of PCEs alone. Because the jaguar is a territorial animal
requiring an expansive range, the FWS designated only areas
providing at least 100 square kilometers of habitat. The FWS
also pointed to multiple undisputed records of jaguars within
the designated habitat, including photographs in 2012 and
2013 of a male jaguar in Unit 3. 2 Taken together, these
explanations satisfy the FWS’s obligation to “articulate[] a
rational connection between the facts found and the
conclusions made.” Id. at 986 (internal quotation mark
omitted).
ii.
The FWS also properly designated Subunit 4b as
unoccupied critical habitat. As the FWS explained, Subunit
4b provides connectivity between Unit 4 and the jaguar’s
habitat in Mexico, and includes features conducive to the
jaguar’s travel, such as canopy cover, ruggedness, and low
human influence. The agency’s determination was supported
by the Recovery Outline, in which the Recovery Team
2
Even if these photographs were too recent to show that Unit 3 was
occupied at the time of listing in 1972, the FWS was not precluded from
considering them to determine that the area was essential to the
conservation of the jaguar at the time of designation in 2014.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 57
explained that connectivity between jaguar populations was
critical to the species’ genetic health and to its ability to
expand toward the edge of its range. It was also supported
by a 2013 draft biological opinion regarding the Rosemont
Copper Mine, which found that disruptions to the
connectivity provided by Subunit 4b would reduce the
conservation value of the designated habitat as a whole.
The majority finds the designation of Subunit 4b
arbitrary and capricious because the FWS did not provide
direct evidence that jaguars use Subunit 4b to travel to
Mexico, as opposed to Subunit 4c (another unoccupied
subunit connecting Subunit 4a to Mexico through Unit 3).
But contrary to the majority’s suggestion, this designation
was not merely speculative. The FWS recognized that, to
reach the jaguar population in Subunit 4a, jaguars would
need the ability to travel through at least one of Subunit 4b
and Subunit 4c—if not both. And the FWS determined that
Subunit 4b contained features conducive to this purpose.
These findings are sufficient to satisfy the FWS’s
burden. As we explained in Alaska Oil, an area may be
designated even as occupied critical habitat without direct
evidence of a species’ presence. 815 F.3d at 555–56. Nor is
the FWS required to identify the specific location of the
features justifying its designation or the precise spots where
the species can be found. Id. at 555–57. The FWS need only
“dr[a]w rational conclusions from the best available
scientific data.” Id. at 562. The FWS has satisfied that
standard here.
The majority attempts to distinguish Alaska Oil because
it involved a designation of occupied rather than unoccupied
critical habitat. But that fact simply explains why our
decision in Alaska Oil focused on the locations of PCEs, the
58 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
presence of which is required for a designation of occupied
critical habitat. See id. at 556; 16 U.S.C. § 1532(5)(A)(i). It
does not, however, distinguish Alaska Oil’s holding that the
FWS need not identify the specific locations of species or
features when designating critical habitat. That holding is
derived from the rule that the ESA “requires use of the best
available technology, not perfection”—a rule applicable to
both designations of occupied and unoccupied critical
habitat. Id. at 555; 16 U.S.C. § 1533(b)(2).
The majority’s approach risks prohibiting any
designation of connective critical habitat in the absence of
direct evidence that a species traverses through a specific
designated route. Unless the FWS were certain which
specific route or routes a species takes between areas of its
habitat, the majority’s approach would preclude the FWS
from protecting any connective habitat at all. The ESA does
not require this level of granularity. See Alaska Oil, 815 F.3d
at 557–58 (upholding a critical habitat designation specified
in five-mile increments). Here, the FWS reasonably
determined that the jaguar would require connectivity
between its core population in Mexico and its critical habitat
in the United States, and that Subunit 4b was well-suited for
this purpose.
C.
Finally, the majority finds that the FWS violated its own
regulation, because it designated unoccupied habitat without
first determining that designation of only occupied habitat
would be inadequate to ensure the conservation of the jaguar.
As an initial matter, the majority misconstrues the applicable
regulation. The majority faults the FWS for failing to
consider whether it would have been enough to designate
only habitat occupied by the jaguar “in 1972.” Majority Op.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 59
at 32. At the time the designation was issued, however, the
FWS’s regulation required the agency to determine whether
the “geographical area presently occupied by a species . . .
would be inadequate to ensure the conservation of the
species” before designating unoccupied critical habitat. 50
C.F.R. § 424.12(e) (2012). In other words, the regulation
directed the agency to consider the species’ present range,
rather than its range at the time of listing. 3
This distinction matters. Even if the evidence on the
record was insufficient to support a finding that the jaguar
occupied Unit 3 in 1972, the FWS was justified in
determining that Unit 3 comprised part of the jaguar’s
present range due to recent uncontroverted evidence of
jaguar habitation, as well as the presence of every PCE. See
Final Rule, 79 Fed. Reg. at 12578–79; cf. Alaska Oil, 815
F.3d at 556–57 (upholding a designation of occupied critical
habitat due to the presence of PCEs, even without
geographically precise evidence of the species’ presence in
the habitat). Accordingly, the FWS’s regulation did not
require it to make a separate finding that the designation of
occupied areas other than Unit 3 would have been sufficient
to ensure the jaguar’s conservation.
In any event, the FWS adequately explained why
designating critical habitat within the United States was
essential to the conservation of the jaguar—and why leaving
3
The majority points to a statement from the FWS’s rule repealing this
provision in 2016 which asserts that the reference to “‘geographical area
presently occupied’ by the species . . . is generally understood to refer to
habitat occupied at the time of listing.” Listing Endangered and
Threatened Species and Designating Critical Habitat; Implementing
Changes to the Regulations for Designating Critical Habitat, 81 Fed.
Reg. 7414, 7415 (Feb. 11, 2016). But this interpretation of the regulation
is contrary to its plain language. See 50 C.F.R. § 424.12(e) (2012).
60 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
conservation efforts entirely to other countries
encompassing the core of the jaguar’s range would not be
enough. Because humans have killed jaguars or damaged
their habitat, the jaguar’s range has diminished significantly
over the last century. As the Recovery Team found, the
jaguar continues to face threats to its survival in much of its
range. Accordingly, areas at the periphery of the jaguar’s
range play an important role in ensuring that the jaguar can
not only survive but also recover.
For the reasons discussed above, these determinations
justified the designation of critical habitat in Unit 3 and
Subunit 4b. Unit 3 not only provides every one of the PCEs
essential to the jaguar but also contains recent evidence of
jaguar habitation. And Subunit 4b provides critical
connectivity to Mexico, without which the jaguar may not
be able to move between periphery and core populations.
The FWS was therefore justified in concluding that the
designation of other areas alone would be inadequate to
ensure the species’ conservation. See Final Rule, 79 Fed.
Reg. at 12590.
* * *
The FWS reasonably determined that habitat within the
United States was critical for the jaguar’s conservation and
recovery. This determination was supported by factual
assessments lying at the core of the agency’s expertise.
Accordingly, I would uphold the FWS’s designation of
critical habitat for the jaguar.
CTR. FOR BIOLOGICAL DIVERSITY V. USFWS 61
Appendix 1
62 CTR. FOR BIOLOGICAL DIVERSITY V. USFWS
Appendix 2