Alaska Oil and Gas Association v. Sally Jewell , 815 F.3d 544 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALASKA OIL AND GAS No. 13-35619
ASSOCIATION; AMERICAN
PETROLEUM INSTITUTE; STATE OF D.C. Nos.
ALASKA; ARCTIC SLOPE 3:11-cv-00025-RRB
REGIONAL CORPORATION; THE 3:11-cv-00036-RRB
NORTH SLOPE BOROUGH; NANA 3:11-cv-00106-RRB
REGIONAL CORPORATION, INC.;
BERING STRAITS NATIVE
CORPORATION; CALISTA
CORPORATION; TIKIGAQ
CORPORATION; OLGOONIK
CORPORATION, INC.; UKPEAGVIK
INUPIAT CORPORATION; KUUKPIK
CORPORATION; KAKTOVIK
INUPIAT CORPORATION; THE
INUPIAT COMMUNITY OF THE
ARCTIC SLOPE,
Plaintiffs-Appellees,
v.
SALLY JEWELL, Secretary of the
Interior; DANIEL M. ASHE,
Director, U.S. Fish and Wildlife
Service; U.S. FISH & WILDLIFE
SERVICE,
Defendants-Appellants,
2 ALASKA OIL AND GAS ASS’N V. JEWELL
and
CENTER FOR BIOLOGICAL
DIVERSITY; DEFENDERS OF
WILDLIFE; GREENPEACE, INC.,
Intervenor-Defendants.
ALASKA OIL AND GAS No. 13-35662
ASSOCIATION; AMERICAN
PETROLEUM INSTITUTE, D.C. Nos.
Plaintiffs-Appellants, 3:11-cv-00025-RRB
3:11-cv-00036-RRB
and 3:11-cv-00106-RRB
STATE OF ALASKA; ARCTIC SLOPE
REGIONAL CORPORATION; THE
NORTH SLOPE BOROUGH; NANA
REGIONAL CORPORATION, INC.;
BERING STRAITS NATIVE
CORPORATION; CALISTA
CORPORATION; TIKIGAQ
CORPORATION; OLGOONIK
CORPORATION, INC.; UKPEAGVIK
INUPIAT CORPORATION; KUUKPIK
CORPORATION; KAKTOVIK
INUPIAT CORPORATION; THE
INUPIAT COMMUNITY OF THE
ARCTIC SLOPE,
Plaintiffs,
v.
ALASKA OIL AND GAS ASS’N V. JEWELL 3
SALLY JEWELL, Secretary of the
Interior; DANIEL M. ASHE,
Director, U.S. Fish and Wildlife
Service; U.S. FISH & WILDLIFE
SERVICE,
Defendants-Appellees,
and
CENTER FOR BIOLOGICAL
DIVERSITY; DEFENDERS OF
WILDLIFE; GREENPEACE, INC.,
Intervenor-Defendants.
ALASKA OIL AND GAS No. 13-35666
ASSOCIATION; AMERICAN
PETROLEUM INSTITUTE; STATE OF D.C. Nos.
ALASKA; ARCTIC SLOPE 3:11-cv-00025-RRB
REGIONAL CORPORATION; THE 3:11-cv-00036-RRB
NORTH SLOPE BOROUGH; NANA 3:11-cv-00106-RRB
REGIONAL CORPORATION, INC.;
BERING STRAITS NATIVE
CORPORATION; CALISTA
CORPORATION; TIKIGAQ
CORPORATION; OLGOONIK
CORPORATION, INC.; UKPEAGVIK
INUPIAT CORPORATION; KUUKPIK
CORPORATION; KAKTOVIK
INUPIAT CORPORATION; THE
INUPIAT COMMUNITY OF THE
ARCTIC SLOPE,
Plaintiffs-Appellees,
4 ALASKA OIL AND GAS ASS’N V. JEWELL
v.
SALLY JEWELL, Secretary of the
Interior; DANIEL M. ASHE,
Director, U.S. Fish and Wildlife
Service; U.S. FISH & WILDLIFE
SERVICE,
Defendants,
and
CENTER FOR BIOLOGICAL
DIVERSITY; DEFENDERS OF
WILDLIFE; GREENPEACE, INC.,
Intervenor-Defendants-
Appellants.
STATE OF ALASKA, No. 13-35667
Plaintiff-Appellant,
D.C. Nos.
and 3:11-cv-00025-RRB
3:11-cv-00036-RRB
ALASKA OIL AND GAS 3:11-cv-00106-RRB
ASSOCIATION; AMERICAN
PETROLEUM INSTITUTE; ARCTIC
SLOPE REGIONAL CORPORATION;
THE NORTH SLOPE BOROUGH;
NANA REGIONAL CORPORATION,
INC.; BERING STRAITS NATIVE
CORPORATION; CALISTA
CORPORATION; TIKIGAQ
CORPORATION; OLGOONIK
ALASKA OIL AND GAS ASS’N V. JEWELL 5
CORPORATION, INC.; UKPEAGVIK
INUPIAT CORPORATION; KUUKPIK
CORPORATION; KAKTOVIK
INUPIAT CORPORATION; THE
INUPIAT COMMUNITY OF THE
ARCTIC SLOPE,
Plaintiffs,
v.
SALLY JEWELL, Secretary of the
Interior; DANIEL M. ASHE,
Director, U.S. Fish and Wildlife
Service; U.S. FISH & WILDLIFE
SERVICE,
Defendants-Appellees,
and
CENTER FOR BIOLOGICAL
DIVERSITY; DEFENDERS OF
WILDLIFE; GREENPEACE, INC.,
Intervenor-Defendants.
6 ALASKA OIL AND GAS ASS’N V. JEWELL
ARCTIC SLOPE REGIONAL No. 13-35669
CORPORATION; THE NORTH SLOPE
BOROUGH; NANA REGIONAL D.C. Nos.
CORPORATION, INC.; BERING 3:11-cv-00025-RRB
STRAITS NATIVE CORPORATION; 3:11-cv-00036-RRB
CALISTA CORPORATION; TIKIGAQ 3:11-cv-00106-RRB
CORPORATION; OLGOONIK
CORPORATION, INC.; UKPEAGVIK
INUPIAT CORPORATION; KUUKPIK OPINION
CORPORATION; KAKTOVIK
INUPIAT CORPORATION; THE
INUPIAT COMMUNITY OF THE
ARCTIC SLOPE,
Plaintiffs-Appellants,
and
ALASKA OIL AND GAS
ASSOCIATION; AMERICAN
PETROLEUM INSTITUTE; STATE OF
ALASKA,
Plaintiffs,
v.
SALLY JEWELL, Secretary of the
Interior; DANIEL M. ASHE,
DIRECTOR, U.S. Fish and Wildlife
Service; U.S. FISH & WILDLIFE
SERVICE,
Defendants-Appellees,
ALASKA OIL AND GAS ASS’N V. JEWELL 7
and
CENTER FOR BIOLOGICAL
DIVERSITY; DEFENDERS OF
WILDLIFE; GREENPEACE, INC.,
Intervenor-Defendants.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted
August 11, 2015—Anchorage, Alaska
Filed February 29, 2016
Before: Mary M. Schroeder, Johnnie B. Rawlinson, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Schroeder
8 ALASKA OIL AND GAS ASS’N V. JEWELL
SUMMARY*
Endangered Species Act
The panel reversed the district court’s judgment vacating
the United States Fish & Wildlife Service (“FWS”)
designation of critical habitat in Alaska for the polar bear, a
species listed as threatened under the Endangered Species
Act; affirmed the district court’s denial of cross-appeal
claims; and remanded for entry of judgment in favor of FWS.
FWS proposed to designate an area of Alaska’s coast and
waters as critical habitat for the polar bear: Unit 1, the sea ice
habitat; Unit 2, the terrestrial denning; and Unit 3, the barrier
island habitat. Oil and gas associations, several Alaska
Native corporations and villages, and the State of Alaska
(“plaintiffs”) challenged the designation under the
Endangered Species Act and the Administrative Procedure
Act. The district court denied the majority of the claims, but
granted summary judgment to plaintiffs on two grounds.
FWS and intervenor environmental groups appealed, and
plaintiffs cross-appealed.
The panel held that the FWS’s designation of polar bear
habitat was not arbitrary, capricious or otherwise in
contravention of applicable law. The panel held that the
district court held the FWS to a standard of specificity that
the Endangered Species Act did not require. The panel held
that the standard that FWS followed, looking to areas that
contained constituent elements required for sustained
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALASKA OIL AND GAS ASS’N V. JEWELL 9
preservation of polar bears, was in accordance with statutory
purpose.
The panel held that FWS’s designation of Unit 2 as
critical denning habitat was not arbitrary and capricious
where Unit 2 contained areas requiring protection for both
birthing and acclimation of cubs, and FWS adequately
explained its treatment of the relatively few areas of known
human habitation. The panel also held that FWS drew
rational conclusions from the best available scientific date, as
required by the Endangered Species Act, in its designation of
both Unit 2 and Unit 3 as critical habitat for the polar bear.
The panel held that FWS provided adequate justification
to Alaska pursuant to Endangered Species Act Section 4(i).
Concerning plaintiffs’ cross-appeal claims, the panel held
that the district court correctly upheld the “no-disturbance
zone” around the barrier islands in Unit 3 because it provided
refuge from human disturbance. The panel also held that
FWS’s assessment of the potential economic impacts was not
arbitrary and capricious. Finally, the panel held that Section
7 of the Endangered Species Act did not create an additional
duty for FWS to consult with states on critical habitat
designations.
COUNSEL
Jeffrey W. Leppo (argued), Ryan P. Steen, Stoel Rives LLP,
Seattle, Washington for Plaintiffs-Appellees/Cross-
Appellants Alaska Oil and Gas Association and the American
Petroleum Institute.
10 ALASKA OIL AND GAS ASS’N V. JEWELL
Matthew A. Love (argued), Van Ness Feldman LLP, Seattle,
Washington; Tyson C. Kade, Van Ness Feldman LLP,
Washington, D.C. for Plaintiff-Appellee/Cross-Appellant
North Slope Borough.
Bradley E. Meyen (argued), Senior Assistant Attorney
General, Andrew Naylor, Assistant Attorney General, Alaska
Department of Law, Anchorage, Alaska; Murray D. Feldman,
Holland & Hart LLP, Boise, Idaho; Christina F. Gomez,
Holland & Hart LLP, Denver, Colorado for Plaintiff-
Appellee/Cross-Appellant State of Alaska.
Kevin M. Cuddy (argued), Stoel Rives LLP, Anchorage,
Alaska for Plaintiffs-Appellees/Cross-Appellants Arctic
Slope Regional Corporation, NANA Regional Corporation,
Bering Straits Native Corporation, Calista Corporation,
Tikigaq Corporation, Olgoonik Corporation, Inc., Ukpeagvik
Iñupiat Corporation, Kuukpik Corporation, Kaktovik Iñupiat
Corporation, and The Iñupiat Community of the Arctic Slope.
Sam Hirsch, Acting Assistant Attorney General, Andrew C.
Mergen, Jennifer Scheller Neumann, Clifford E. Stevens, Jr.,
Meredith L. Flax, David C. Shilton, Robert P. Stockman
(argued), Environment & Natural Resources Division, U.S.
Department of Justice; Kenneth M. Lord, Of Counsel, Office
of the Solicitor, U.S. Department of the Interior, Washington,
D.C., for Defendants/Appellants/Cross-Appellees Sally
Jewell, Secretary of the Interior, Daniel M. Ashe, Director,
U.S. Fish & Wildlife Service, U.S. Fish & Wildlife Service.
Rebecca Noblin, Center for Biological Diversity, Anchorage,
Alaska for Intervenor-Defendants/Appellants Center for
Biological Diversity, Defenders of Wildlife, Greenpeace, Inc.
ALASKA OIL AND GAS ASS’N V. JEWELL 11
OPINION
SCHROEDER, Circuit Judge:
INTRODUCTION
This case is about polar bear habitat in Alaska. The polar
bear population has been declining for many years, and in
2008, the United States Fish & Wildlife Service (“FWS”)
listed the species as threatened under the Endangered Species
Act (“ESA” or “Act”), 16 U.S.C. §§ 1531 et seq. After
challenges from all sides, the D.C. Circuit upheld the
designation. In re Polar Bear ESA Listing & Section 4(d)
Rule Litig., 709 F.3d 1, 2–3 (D.C. Cir. 2013).
Within a year of listing a threatened species, the Act
requires FWS to designate habitat critical to the conservation
of the species. 16 U.S.C. § 1533(a)(3)(A)(i), (b)(6)(C). In
2009, FWS proposed to designate an area of Alaska’s coast
and waters as critical habitat for the polar bear. The
designation contained three “units.” Unit 1, the sea ice
habitat, comprised 95.9% of the total designation, while Units
2 and 3, the terrestrial denning and barrier island habitats,
made up the final 4.1%. Only the designations of Units 2 and
3 are disputed here.
The proposal drew fire from oil and gas trade
associations, several Alaska Native corporations and villages,
and the State of Alaska (“Plaintiffs”), all of which seek to
utilize the natural resources in Alaska’s waters and North
Slope that make up much of the designated habitat. After
FWS granted final approval to the proposed designation, the
objecting parties filed this action challenging the designation
under the ESA and the Administrative Procedure Act
12 ALASKA OIL AND GAS ASS’N V. JEWELL
(“APA”). 5 U.S.C. §§ 706 et seq. They principally argued
that the habitat designation was unjustifiably large, and also
claimed that FWS had failed to follow ESA procedure.
The district court denied the majority of the claims, but
granted summary judgment to Plaintiffs on two grounds.
Alaska Oil & Gas Ass’n v. Salazar, 916 F. Supp. 2d 974 (D.
Alaska 2013). Substantively, the district court faulted FWS
for failing to identify specifically where and how existing
polar bears utilize the relatively small portion of critical
habitat designated as Units 2 and 3. Id. at 999–1003.
Procedurally, the district court faulted FWS for failing to
provide the State of Alaska with adequate justification for
adopting a final rule not fully consistent with the State’s
submitted comments. Id. at 1003–04. The district court
vacated the entire designation. Id. at 1004. FWS, joined by
several defendant-intervenor environmental groups, appeals,
and Plaintiffs cross-appeal.
In its appeal, FWS contends that the district court
misconstrued the ESA’s requirements by holding FWS to
proof that existing polar bears actually use the designated
area, rather than to proof that the area is critical to the future
recovery and conservation of the species. FWS stresses that
it utilized the best available technology as statutorily
required. See 16 U.S.C. § 1533(b)(2). FWS also contends
that there was no meaningful deficiency in the manner in
which it provided written justification to the State for its final
action. We conclude that these contentions have merit, and
reverse the district court’s judgment vacating the designation.
Plaintiffs’ cross-appeal revives the arguments that the
district court rejected. We affirm the district court’s denial of
these claims. We therefore hold that the designation was not
ALASKA OIL AND GAS ASS’N V. JEWELL 13
arbitrary, capricious or otherwise in contravention of
applicable law. See 5 U.S.C. § 706(2)(A). That is the
standard we must apply to decisions involving listings under
the ESA. See In re Polar Bear, 709 F.3d at 8.
I. BACKGROUND
A. The Endangered Species Act
The purpose of the ESA is to ensure the recovery of
endangered and threatened species, not merely the survival of
their existing numbers. See 16 U.S.C. §§ 1531(b), 1532(3)
(emphasizing species and habitat conservation, and 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 [the ESA] are no
longer necessary”). The Supreme Court has recognized that
the goal of species recovery is paramount. The Court said in
Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978):
“The plain intent of Congress in enacting this statute was to
halt and reverse the trend toward species extinction, whatever
the cost.”
To accomplish this goal, the Act directs the Secretaries of
Interior and Commerce to list endangered and threatened
species for federal protection. 16 U.S.C. § 1533(a)(1), (2).
The Secretary of Interior must also designate the habitat that
is critical to each species’s conservation. Id.
§ 1533(a)(3)(A)(i). The Secretary of Interior has delegated to
FWS the authority to administer the ESA. 50 C.F.R.
§ 402.01(b).
Critical habitat is defined in the statute as the specific
areas “within the geographical area occupied by the species”
14 ALASKA OIL AND GAS ASS’N V. JEWELL
that the species needs for recovery and that therefore should
be protected. 16 U.S.C. § 1532(5)(A)(i). The statute
describes the areas to be protected as those areas containing
the physical and biological features (1) essential for the
species’s success, such as space for growth and normal
behavior, food, breeding sites, and habitats protected from
disturbance, and (2) which may require special management
or protection. Id.; 50 C.F.R. § 424.12(b). The Secretary
designates critical habitat “on the basis of the best scientific
data available” after taking into consideration the probable
economic, national security, and other relevant impacts. 16
U.S.C. § 1533(b)(2).
During this process, the Secretary must provide notice of
any proposed designation of critical habitat to impacted states
and solicit their feedback. Id. § 1533(b)(5)(A)(ii). If the
approved final designation conflicts with the state’s
comments, the Secretary must provide the state with written
justification for its action. Id. § 1533(i). Once an area is
designated as critical habitat, federal agencies are required to
consult with the Secretary before taking any action that may
negatively impact the habitat. Id. § 1536(a)(2).
B. Polar Bear Listing and Critical Habitat Designation
Polar bears (Ursus maritimus) are scattered throughout
the ice-covered waters of the Arctic Circle. Two relatively
distinct polar bear populations occur within the United States:
the southern Beaufort Sea population, which extends into
Canada, and the Chukchi-Bering Seas population, which
extends into Russia.
The bears spend the majority of their lives on sea ice,
which provides a platform for essential life functions such as
ALASKA OIL AND GAS ASS’N V. JEWELL 15
hunting, seasonal movements, resting, and mating. Female
polar bears, however, particularly on Alaska’s northern coast,
will come ashore to den and to acclimate their cubs before
returning to the sea ice.
Because of global climate change, the extent and quality
of Arctic sea ice is declining, and the polar bear population is
declining with it. On May 15, 2008, FWS listed the polar
bear as a threatened species under the ESA. FWS highlighted
concerns over climate change and discussed the major
negative impacts that declines in sea ice would have on the
species, including nutritional stress caused by diminished
numbers of ice-dependent prey, decreased access to the prey
that remain, shorter hunting seasons and longer periods of
fasting onshore, higher energetic demands for travel and
obtaining food, and more negative interactions with humans.
See In re Polar Bear, 709 F.3d at 4–6. FWS found that such
factors would likely result in the decline in the physical
condition and reproductive success of polar bears, which
would ultimately lead to population level declines. Id.
FWS did not designate polar bear critical habitat at the
same time it listed the species as threatened, citing the
difficulty of determining at that time which areas within the
polar bear’s extraordinarily large and dynamic range were
essential for conservation. Instead, FWS undertook a
thorough evaluation of the available science and consulted
with polar bear experts. FWS issued a proposed rule on
October 29, 2009, designating polar bear critical habitat, and
on May 5, 2010, the agency issued a draft analysis of the
probable economic impacts of the designation. This was
within the one-year period permitted for designation of the
areas containing features termed “primary constituent
16 ALASKA OIL AND GAS ASS’N V. JEWELL
elements” necessary for a threatened species’ conservation.
16 U.S.C. § 1533(b)(6)(A); 50 C.F.R. § 424.12(b).
FWS held two comment periods and multiple public
hearings to solicit feedback on the proposed rule and
economic analysis. During this time, FWS received over
100,000 comments, ranging from suggestions for
dramatically expanding the habitat designation, to assertions
that no designation was necessary at all.
On December 7, 2010, FWS published the Final Rule
designating critical habitat for the polar bear. The Final Rule
designated an area of approximately 187,000 square miles as
critical polar bear habitat, broken down into three parts. Unit
1, the sea ice habitat, included the sea ice that polar bears use
as a platform for hunting, resting, short- and long-distance
movements, and denning. Unit 1 comprised 95.9% of the
total area designated as critical habitat, reflecting both the
polar bears’ large range and the primacy of sea ice to the
species’ success.
The remaining 4.1% of the critical habitat designation
consisted of Unit 2, the terrestrial denning habitat, and Unit
3, the barrier island habitat. FWS, in the Final Rule,
described the terrestrial denning habitat as areas with steep,
stable slopes, access to the coast, proximity to sea ice, and
freedom from human disturbance. It went on to explain that
this habitat contains essential physical or biological features,
and that the habitat requires protection, given the polar bears’
slow reproductive rate and sensitivity to human disturbance
during denning. Relying on radio-telemetry data collected on
certain denning female bears over several years, FWS defined
Unit 2 as covering approximately 95% of known and
potential den sites on Alaska’s northern coast.
ALASKA OIL AND GAS ASS’N V. JEWELL 17
FWS similarly explained that it considered Alaska’s
coastal barrier islands and their surrounding waters to have
the essential physical and biological features for polar bears,
because the bears regularly use the islands as places to feed,
den, rest, and migrate along the coast without undue human
disturbance. Accordingly, FWS designated the barrier
islands, and the spits and waters within one mile of them (the
“no-disturbance zone”), as Unit 3.
The ESA requires designation as critical habitat of areas
that may require special management or protection. 16
U.S.C. § 1532(5)(A)(i)(II). FWS found that both Units 2 and
3 may require special management considerations or
protection because of the potential negative impacts on the
designated areas caused by climate change, oil and gas
operations, human disturbance, and commercial shipping.
After identifying the essential physical and biological
features of polar bear habitat that may need special
management or protection, the Final Rule considered the
probable economic and other relevant impacts of designating
those areas as critical habitat. Under the ESA, FWS must use
the best scientific data available and take into consideration
the economic, national security, and other relevant impacts of
designating a particular area as critical habitat before making
its final designation. 16 U.S.C. § 1533(b)(2). FWS may then
exclude an area from the final designation if it determines
that the benefits of excluding the area outweigh the benefits
of including it, unless excluding such area would result in the
extinction of the concerned species. Id.
After weighing the costs and benefits of inclusion versus
exclusion in accordance with Section 4(b)(2), FWS decided
to exclude the Native villages of Barrow and Kaktovik from
18 ALASKA OIL AND GAS ASS’N V. JEWELL
the critical habitat designation, along with all man-made
structures within the critical habitat, because they did not
contain the physical and biological features essential to the
polar bear. FWS chose not to exclude any other areas of the
original designation on the basis of the probable economic
impact, see id., finding that the probable economic impact
was negligible.
Following issuance of the Final Rule in December of
2010, three groups filed complaints in district court in 2011
pursuant to the APA, 5 U.S.C. §§ 706 et seq., challenging the
Final Rule: (1) the Alaska Oil & Gas Association and the
American Petroleum Institute, trade associations representing
the Alaska oil and gas industry; (2) the State of Alaska; and
(3) a coalition of Alaska Native corporations, an Alaska
Native tribal government, and the North Slope Borough, a
local native government with jurisdiction over a large swath
of territory in northern Alaska. Defendant FWS was joined
by three intervenor environmental groups (Center for
Biological Diversity, Defenders of Wildlife, Inc., and
Greenpeace, Inc.) defending the designation. The district
court consolidated the three cases for summary judgment
proceedings.
Plaintiffs charged FWS with numerous errors in the
critical habitat designation, both substantive and procedural.
They argued that the entire designation was substantively
improper, contending the designation was unsupported by the
administrative record because FWS arbitrarily designated
large land and sea ice masses, but did not identify specific
areas containing the physical and biological features essential
for polar bears. Plaintiffs also claimed several procedural
errors in FWS’s rulemaking, including a contention that FWS
did not adequately consult with the State of Alaska, and that
ALASKA OIL AND GAS ASS’N V. JEWELL 19
FWS violated ESA Section 4(i) by failing to give Alaska
adequate justification for not incorporating the State’s
comments into the Final Rule.
The district court rejected all of Plaintiffs’ claims except
two. The district court found that while the record supported
the designation of Unit 1, the largest unit, the sea ice habitat,
it did not support the designation of Units 2 and 3. The
district court said those designations were unsupported
because “[FWS] has not shown, and the record does not
contain,” evidence that Units 2 and 3 contain all of the
required features of terrestrial denning and barrier island
habitats. The district court also held that FWS failed to
follow the ESA Section 4(i) procedure because the agency
provided an inadequate justification for why it did not
incorporate all of the State’s comments into the Final Rule.
The district court vacated and remanded the Final Rule in its
entirety, notwithstanding its determination that the
designation of Unit 1 was proper. FWS now appeals and
Plaintiffs cross-appeal from the district court’s summary
judgment order.
FWS’s principal contention on appeal is that the district
court erred in holding that the record contained insufficient
evidence of the essential physical or biological features in
Units 2 and 3. FWS says it reasonably relied on the best
scientific data available in making the designation. See 16
U.S.C. § 1533(b)(2). It urges that the ESA does not require
more specific information. FWS also contends that it
complied with the procedural requirements of ESA Section
4(i) by sending a letter to the State of Alaska, which fully
addressed the State’s comments on the proposed rule.
Finally, FWS contends that even if Plaintiffs’ arguments had
some merit, the district court erred by vacating the entire
20 ALASKA OIL AND GAS ASS’N V. JEWELL
Final Rule despite finding no substantive error with more
than 95% of the designation.
In their cross-appeal, Plaintiffs contend that the district
court erred by rejecting their other claims. Plaintiffs
principally challenge the holdings that FWS’s designation of
the “no-disturbance zone” in Unit 3 was reasonable; that
FWS sufficiently explained its finding that the essential
features of the critical habitat may require special
management; that FWS adequately considered the economic
impacts of designation under ESA Section 4(b)(2); and that
under ESA Section 7(a)(2), FWS had an additional duty to
consult with the State of Alaska.
II. ANALYSIS
A. The Purpose of Habitat Designation and the
Applicable Standard
We review the district court’s grant of summary judgment
de novo to determine whether FWS’s 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). The Supreme Court has described in general terms
how the standard operates:
[A]n agency rule would be arbitrary and
capricious if the agency has relied on factors
which Congress has not intended it to
consider, entirely failed to consider an
important aspect of the problem, offered an
explanation for its decision that runs counter
to the evidence before the agency, or is so
ALASKA OIL AND GAS ASS’N V. JEWELL 21
implausible that it could not be ascribed to a
difference in view or the product of agency
expertise.
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983).
This court has been careful to adhere to a narrow
application of the standard, while ensuring that the agency’s
action is considered and rational. We have described the
arbitrary and capricious standard as deferential and narrow,
establishing a “high threshold” for setting aside agency
action. River Runners for Wilderness v. Martin, 593 F.3d
1064, 1067, 1070 (9th Cir. 2010). A court must not substitute
its judgment for that of the agency, but also must not
“rubber-stamp” administrative decisions. Ariz. Cattle
Growers’ Ass’n v. FWS, 273 F.3d 1229, 1236 (9th Cir. 2001).
Instead, the action is presumed valid and is upheld if a
reasonable basis exists for the decision. Nw. Ecosystem All.
v. FWS, 475 F.3d 1136, 1140 (9th Cir. 2007). We have
explained that so long as the agency “considered the relevant
factors and articulated a rational connection between the facts
found and the choices made,” the court should defer to the
agency’s expertise and uphold the action. Id. (citation
omitted). FWS’s designation of Units 2 and 3 more than
satisfies that standard.
Under the ESA, once it had designated the species as
“threatened,” FWS had to determine where, within the polar
bears’ occupied range, the physical or biological features
essential to polar bear conservation are found, and it was
required to designate these areas as critical habitat. See 16
U.S.C. § 1532(5)(A)(i); id. § 1533(a)(3)(A)(i). The ESA
guidelines explain that these physical and biological elements
22 ALASKA OIL AND GAS ASS’N V. JEWELL
essential to the species, known as “primary constituent
elements” or PCEs, are at the heart of the critical habitat
designation:
When considering the designation of critical
habitat, the Secretary shall focus on the
principal biological or physical constituent
elements within the defined area that are
essential to the conservation of the species.
Known primary constituent elements shall be
listed with the critical habitat description.
Primary constituent elements may include, but
are not limited to, the following: roost sites,
nesting grounds, spawning sites, feeding sites,
seasonal wetland or dryland, water quality or
quantity, host species or plant pollinator,
geological formation, vegetation type, tide,
and specific soil types.
50 C.F.R. § 424.12(b)(5). FWS identified three areas
containing PCEs essential to polar bear conservation: sea ice
habitat, found in Unit 1; terrestrial denning habitat, found in
Unit 2; and barrier island habitat, found in Unit 3.
The district court concluded that, although FWS properly
identified the PCEs, it had failed to show specifically where
within Units 2 and 3 those PCEs were located, as required by
the ESA. FWS argues on appeal that the district court erred
because the ESA does not require the level of specificity that
the district court insisted upon. In addition, FWS argues it
reasonably designated Units 2 and 3 as areas containing PCEs
based on the best scientific data available as required by the
Act.
ALASKA OIL AND GAS ASS’N V. JEWELL 23
At the outset, we agree with FWS that the district court
held it to a standard of specificity that the ESA does not
require. The district court asked FWS to identify where each
component part of each PCE was located within Units 2 and
3, and to do so, with accurate scientific data, by establishing
current use by existing polar bears. For illustration, with
respect to terrestrial denning habitat, the court suggested that
FWS could designate only areas containing actual den sites,
as opposed to designating areas containing habitat suitable for
denning. No such limitation to existing use appears in the
ESA, and such a narrow construction of critical habitat runs
directly counter to the Act’s conservation purposes. The Act
is concerned with protecting the future of the species, not
merely the preservation of existing bears. And it requires use
of the best available technology, not perfection. See San Luis
& Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602
(9th Cir. 2014) (explaining that the best scientific data
available does not mean the best scientific data possible); see
also Bldg. Indus. Ass’n of Superior Cal. v. Norton, 247 F.3d
1241, 1246–47 (D.C. Cir. 2001) (same). The D.C. Circuit
stressed that while the agency “may not base its listings on
speculation or surmise” where there is no superior data,
“occasional imperfections do not violate [the ESA].” Bldg.
Indus. Ass’n of Superior Cal., 247 F.3d at 1247 (internal
citations omitted).
The ESA thus requires FWS, when designating critical
habitat, to focus on the PCEs essential to protecting the polar
bear. See 50 C.F.R. § 424.12(b). By requiring proof of
existing polar bear activity, the district court impermissibly
shifted the focus of the critical habitat designation away from
the PCEs. See id. Since the point of the ESA is to ensure the
species’ recovery, it makes little sense to limit its protections
to the habitat that the existing, threatened population
24 ALASKA OIL AND GAS ASS’N V. JEWELL
currently uses. The district court’s construction of the critical
habitat requirements thus contravenes the ESA’s conservation
purposes by excluding habitat necessary to species recovery.
The Act contemplates the inclusion of areas that contain
PCEs essential for occupation by the polar bear, even if there
is no available evidence documenting current activity.
The issue of whether habitat may be designated without
proof of a species’ activity has been recognized before. In
Alliance for the Wild Rockies v. Lyder, 728 F. Supp. 2d 1126
(D. Mont. 2010), the court explained that FWS could
rationally conclude that areas with evidence of a species’
reproduction contain essential PCEs, but could not designate
only those areas where there was evidence of reproduction as
critical habitat. Id. at 1134–35. We agree with the court
when it said that “[w]hile it is rational to conclude areas with
evidence of reproduction contain the primary constituent
elements and should be designated as critical habitat, the
Service could not flip that logic so it means critical habitat
only exists where there is evidence of reproduction. Such a
proposition alleviates the need to further consider the actual
physical and biological features of the occupied area.” Id.
The district court also criticized the designation as an
attempt to designate “potential” habitat. We have rejected a
similar criticism by pointing out that the agency must look
beyond evidence of actual presence to where the species is
likely to be found. See Ariz. Cattle Growers’ Ass’n, 606 F.3d
at 1165–67. The focus must be on PCEs, not the current
existence of a species in an area. The standard FWS
followed, looking to areas that contained the constituent
elements required for sustained preservation of polar bears,
was in accordance with statutory purpose and hence could not
have been arbitrary, capricious, or contrary to law.
ALASKA OIL AND GAS ASS’N V. JEWELL 25
We therefore turn to FWS’s application of that standard
to the specific Units that are challenged here.
B. Unit 2: The Terrestrial Denning Habitat
The Final Rule identified terrestrial denning habitat as a
PCE for the polar bear, and it described topographic features
to include coastal bluffs and riverbanks with: (1) steep, stable
slopes for the den sites themselves; (2) access between den
sites and the coast; (3) sea ice in proximity to the denning
habitat prior to the onset of denning season in the fall; and (4)
freedom from human disturbance. FWS harnessed
technology to identify possible denning sites. Using radio-
telemetry data collected on female polar bears between 1982
and 2009, FWS identified the areas east of the coastal town
of Barrow where 95% of all confirmed and probable polar
bear dens had occurred.
Some of the sites were along the coast, some farther
inland, and a few as far as 18 miles inland. To capture most
of the sites, FWS designated as critical habitat an area
extending 5 to 20 miles inland from the coast east of Barrow,
and designated this area as Unit 2. Two images in the record
illustrate the scope of the denning habitat designation.
26 ALASKA OIL AND GAS ASS’N V. JEWELL
The left image shows the west area of Unit 2, from
Barrow to the Kavik River. The right image shows the east
area of Unit 2, from the Kavik River to the Canadian border.
Land west of the town of Barrow was not included within
the designation, although it contains some features suitable
for den sites. FWS chose not to include it within the
designation because studies indicated that polar bears rarely
den that far west, likely on account of a lack of access to sea
ice in the fall.
The district court nevertheless held that the designation of
Unit 2 was arbitrary and capricious. The court faulted FWS
for failing to show that the entire Unit 2 area contained all the
requisite physical and biological features. In particular, the
district court found that the denning studies cited by FWS
supported inclusion of the first macrohabitat feature of steep,
stable slopes, but also showed that this feature occurred in
ALASKA OIL AND GAS ASS’N V. JEWELL 27
only 1% of Unit 2. The court also found that the studies
inadequately established the existence of the second (access
between dens and the coast) and fourth feature (absence of
human disturbance) in Unit 2, and the court strongly
questioned whether FWS had sufficiently supported the
existence of the third feature (sea ice in proximity of denning
habitat to provide access). The court thus demanded
scientific evidence of the existence of all of the characteristics
of denning habitat in all of Unit 2.
The district court did not make reference to the radio-
telemetry data tracking female bear movements. The court
also did not appear to take into account the need for denning
habitat to include not only the dens themselves, but also
undisturbed access to and from the sea ice. The statute calls
for the best available scientific data, and this FWS utilized.
On appeal Plaintiffs defend the district court’s rejection
of the designation of Unit 2, but on somewhat different
grounds. Plaintiffs contend that FWS acted arbitrarily and
capriciously by mapping Unit 2 using a 5-mile incremental
inland measurement, without identifying specifically where,
within that area, all four elements of the terrestrial denning
habitat PCE were located.
To the extent that Plaintiffs demand greater scientific
specificity than available data could provide, Plaintiffs echo
the district court’s error in demanding too high a standard of
scientific proof. Plaintiffs on appeal concentrate more
heavily on FWS’s choice of a 5-mile increment measurement
inland from the coast to define the area of designation,
essentially claiming it is arbitrary.
28 ALASKA OIL AND GAS ASS’N V. JEWELL
FWS, however, provided a rational explanation for using
the mapping methodology that it did. In the Final Rule, FWS
explained that it viewed the method developed jointly with
the United States Geological Survey (that did the actual
mapping), as the best available choice. The method is
designed to capture a “robust” estimation of the inland extent
of the den use. Polar bears typically den close to the coast,
but some have denned as far as 50 miles inland. The 5-mile
demarcation provides a straightforward, unbiased method for
estimating the inland area in which 95% of the maternal dens
are located. In addition, the demarcation accurately
represents current polar bear denning concentrations in the
zones from Barrow to the Kavik River, and from the Kavik
River to the Canadian border, while allowing FWS to account
for potential changes likely to occur due to coastal erosion
from climate change.
FWS further explained that it rejected restricting
designation to an area covering known denning activity in
favor of the “robust” 5-mile increment because of several
serious data limitations: (1) the uncertainties associated with
fine-scale mapping of potential den site areas; (2) the limited
size of the denning studies, which involved only 20-40 dens
a year, when the total number of females denning in any one
year is approximately 240; and (3) the fact that only a portion
of the North Slope, which contains ample potential denning
habitat, has been mapped. All of the reasons FWS has
provided for use of the 5-mile increment are supported by the
record.
Plaintiffs on appeal attempt unsuccessfully to poke holes
in the analysis. They claim the 5-mile increment does not
accurately represent polar bear denning concentrations,
pointing out that 95% of dens from Barrow to the Kavik
ALASKA OIL AND GAS ASS’N V. JEWELL 29
River occur within 2.8 miles of the coast. This argument,
however, ignores the fact that in the eastern zone of Unit 2
(from the Kavik River to the Canadian border) 95% of dens
occurred within 18.6 miles of the coast, not 2.8 miles. The
area designated as Unit 2 is therefore an appropriate zone for
purposes of site inclusion and administrative convenience and
is not arbitrary or capricious.
Plaintiffs also assert that future climate change is not an
appropriate consideration under the ESA. Plaintiffs contend
FWS can only designate habitat that contains essential
features at the time the species is listed, not habitat that may
become critical in the future because of climate change or
other potential factors. Plaintiffs argue there is no record
evidence to explain how the proposed critical habitat is
currently eroding due to climate change. They also argue that
FWS failed sufficiently to connect evidence of climate
change to its decision to use a 5-mile increment. Plaintiffs
instead suggest FWS relied on mere speculation that climate
change would cause land with PCEs to erode in the future.
The record belies these contentions, as the D.C. Circuit
has recognized. The very climatic factors that Plaintiffs now
criticize are those that the D.C. Circuit took into account in
approving the listing of polar bears as threatened. See In re
Polar Bear, 709 F.3d at 4–6. That court reviewed the bases
for listing the polar bear and found that in collecting data on
climate change and sea ice, FWS relied on numerous
published studies and reports describing the effects of climate
change. See id. at 6. FWS explained that the rapid retreat of
sea ice in the summer and the overall erosion of sea ice
throughout the year in the Arctic is “unequivocal and
extensively documented in scientific literature.” Id. FWS
further explained that a majority of state-of-the-art climate
30 ALASKA OIL AND GAS ASS’N V. JEWELL
models predict sea ice will continue to recede substantially
and that the Arctic will be seasonally ice-free by the middle
of the 21st century. Id. FWS also noted that the
observational record of current sea ice losses indicates that
losses seem to be about 30 years ahead of the modeled values,
which suggests a seasonally ice-free Arctic may come a lot
sooner than expected. Id. FWS properly took all of this
information into account in designating critical polar bear
habitat.
Underlying FWS’s rejection of Plaintiffs’ challenges is
the unassailable fact that bears need room to roam. Dens are
widely dispersed across the North Slope in a non-
concentrated manner. FWS established that polar bears are
highly mobile and spend most of their time on sea ice. In the
North Slope of Alaska, polar bears routinely den on the
coastal plain, which they reach by walking across the
relatively flat topography of that area. The record also
establishes that polar bears are faithful to particular denning
areas, but not to particular den sites. Accordingly, the data
supports FWS’s position that it is difficult (if not impossible)
to predict precisely where they will move within denning
habitat in the future.
Additional studies tracked polar bear activity and showed
that polar bears move through all of Unit 2. For example, a
study that tracked the activity of three polar bears in different
years showed that all three bears moved through large swaths
of Unit 2. The study documented that annually, the active
range of a female polar bear is an average of 92,584 square
miles. The habitat designation of a total of approximately
187,000 miles cannot be legitimately characterized as
“excessive.”
ALASKA OIL AND GAS ASS’N V. JEWELL 31
The remaining dispute about Unit 2 concerns areas
adjacent to Alaska Native villages, industrial facilities, and
other human structures and activities. Plaintiffs argue that
FWS failed to provide a reasonable explanation for including
areas near some human activity in the designation, while
excluding the Native communities of Barrow and Kaktovik
from its final critical habitat designation, as well as all man-
made structures such as buildings and paved roads. Plaintiffs
point particularly to the designation’s inclusion of the
industrialized area of Deadhorse, which is where the North
Slope’s principal airport is located. The district court
described Deadhorse as rife with structures and human
activity.
The record reflects, however, that Deadhorse is primarily
an industrial staging area for oil and gas operations, and has
no legally defined boundaries and almost no permanent
residents. Further, the record shows that polar bears routinely
move through Deadhorse, and have been known to den near
there. Thus, it was reasonable for FWS to conclude that
despite some human activity, polar bears could still move
through the Deadhorse area to access and locate den sites free
from disturbance. As the Final Rule explained, FWS retained
areas around Deadhorse because, among other reasons, “polar
bears . . . are allowed to exist in the areas between the widely
dispersed network of roads, pipelines, well pads, and
buildings.”
FWS also sufficiently explained why it did not include
areas in and near the communities of Barrow and Kaktovic.
FWS carefully distinguished between the towns themselves
and other land just outside their boundaries. FWS, for
instance, decided not to exclude an additional one-mile radius
around Kaktovic from the designation because (1) polar bears
32 ALASKA OIL AND GAS ASS’N V. JEWELL
routinely pass through that area; (2) the developed
communities make up only a small part of the legally defined
boundaries of Kaktovic, so a buffer zone essentially already
existed; and (3) the exclusion of the legally defined
boundaries already eliminated some potential polar bear
denning habitat. Polar bears similarly pass near Barrow.
FWS explained that the legal boundaries of Barrow
themselves provided a buffer because they are well outside
the developed area of the village. Therefore, FWS did not
include a “buffer zone” around Barrow and several other
native communities west of Barrow; those communities were
already outside of the designated area.
Accordingly, FWS’s designation of Unit 2 as critical
denning habitat was not arbitrary and capricious. Unit 2
contains areas requiring protection for both birthing and
acclimation of cubs, and FWS adequately explained its
treatment of the relatively few areas of known human
habitation.
C. Unit 3: The Barrier Island Habitat
FWS’s Final Rule identified the third PCE for the polar
bear as “barrier island habitat,” consisting of the barrier
islands off the coast and a buffer zone, “used for denning,
refuge from human disturbance, and movements along the
coast to access maternal den and optimal feeding habitat.”
The Rule defined the area to include “all barrier islands along
the Alaska coast and their associated spits . . . and the water,
ice, and terrestrial habitat within 1.6 km (1 mi) of these
islands (no-disturbance zone).” Thus the entire barrier island
PCE was designated as Unit 3. An image in the record
illustrates the scope of the barrier island habitat designation.
ALASKA OIL AND GAS ASS’N V. JEWELL 33
In criticizing the designation, the district court failed to
take the entirety of the designation into account. As it did
with respect to the terrestrial denning habitat of Unit 2, the
district court faulted FWS for the lack of evidence in the
record showing specifically where on the barrier islands the
uses take place, i.e., where bears move to seek den sites,
refuge, and feeding habitat. The district court held, in effect,
that only such specific areas, which the bears could be shown
to utilize at the present time, could be designated as critical
habitat.
Given the statutory requirements, FWS appropriately
looked to the specific features of the islands that meet the
bears’ critical needs and to the area in which they occur. The
Final Rule defines the barrier island habitat PCE in broad
terms to be the barrier islands and associated spits, and the
water, ice, and any other terrestrial habitat within 1 mile of
the islands. The Final Rule explained the reason for such a
34 ALASKA OIL AND GAS ASS’N V. JEWELL
designation is that bears use the barrier islands, associated
spits, and surrounding water in ways that are essential to their
existence and conservation. The district court erroneously
focused on the areas existing polar bears have been shown to
utilize rather than the features necessary for future species
protection. See 50 C.F.R. § 424.12(b)(5) (“When considering
the designation of critical habitat, the Secretary shall focus on
the [PCEs] within the defined area that are essential to the
conservation of the species.”); see also Ariz. Cattle Growers’
Ass’n, 606 F.3d at 1167; Alliance for Wild Rockies, 728 F.
Supp. 2d at 1134.
We understand that the record contains a confusing use of
the key term “denning habitat,” and this contributed to the
district court’s misdirected focus with respect to both Units
2 and 3. For example, in expressing a general dissatisfaction
with the Unit 2 designation, the district court found that the
record did not support inclusion of more than a tiny fraction
of Unit 2 as “denning habitat.” The district court was looking
at denning studies cited by FWS that indicated that only 1%
of Unit 2 is suitable as “denning habitat.” Those studies used
the term, however, to refer to the habitat suitable for the
building of the actual den itself. Because the average den is
about 20 feet wide (6.4 m), it is unsurprising that actual den
sites themselves would encompass less than 1% of Unit 2.
FWS identified the habitat necessary for birthing as well as
the post natal care and feeding essential to survival.
In its designation of Units 2 and 3, FWS defined denning
habitat more broadly to include not only the denning site
itself, but also the area necessary for access to the ice from
the den. It considered the denning habitat essential for
protection to encompass the areas where polar bears could not
only successfully build a den, but also travel, feed, and
ALASKA OIL AND GAS ASS’N V. JEWELL 35
acclimate cubs. This was in accord with the statutory
purposes, and thus it was not arbitrary or capricious for FWS
to include areas necessary for such related denning needs.
The administrative record supports the existence
throughout the barrier islands of the features suitable for
denning. As the district court conceded, the record shows
that many barrier islands provide denning habitat, as
historically evidenced by denning polar bears. The record
also demonstrates that the islands and the surrounding spits
and marine environment provide refuge from human
disturbance, and FWS cited evidence showing that polar
bears regularly move across the barrier islands in search of
denning, food, and rest.
In addition, the Final Rule explains that polar bears use
barrier islands as migration corridors, moving between them
by swimming or walking on ice or shallow sand bars. There
are reports in the record of polar bears denning and feeding
on the various barrier islands, and Native Alaskan hunters
reporting polar bears regularly moving along coastal islands.
The entire barrier island unit thus provides access along the
coast to inland maternal den sites and optimal feeding habitat.
In the final analysis, with respect to both Units 2 and 3,
Plaintiffs disagree with the scope of FWS’s designation of
critical habitat, but Plaintiffs cannot point to evidence that
FWS failed to consider, or demonstrate that FWS’s stated
reasons are irrational or unsupported by the record. FWS
drew rational conclusions from the best available scientific
data, which is what the statute requires. 16 U.S.C.
§ 1533(b)(2).
36 ALASKA OIL AND GAS ASS’N V. JEWELL
D. FWS Provided Adequate Justification to Alaska
Pursuant to Section 4(i)
FWS is statutorily required to give certain state agencies
notice of any proposed regulation to list species or designate
critical habitat. Id. § 1533(b)(5)(A)(ii). This is to enable the
state to provide input. If a state agency files comments
disagreeing with all or part of the proposed regulation and
FWS then issues a final rule which is in conflict with those
comments, FWS must provide the state with an explanation:
“[A] written justification for [its] failure to adopt regulations
consistent with the [state’s] comments or petition.” 16 U.S.C.
§ 1533(i). In this case, FWS gave the required notice and
Alaska responded. The issue is whether FWS provided an
adequate justification to the State after adopting a final rule
that was not consistent with all of the State’s comments.
FWS accepted written comments from the public during
two different comment periods and held a number of public
hearings. FWS contacted appropriate Federal, State, and
local agencies; Alaska Native organizations; and other
interested parties and invited them to comment on the
proposed rule to designate critical habitat for the polar bear in
Alaska. During the first comment period, FWS requested
comments on the proposed rule. After considering those
comments, FWS reopened the public comment period and
requested additional comments on the revised proposed rule.
The Alaska Department of Fish and Game (“ADFG”)
submitted detailed comments. After adopting the Final Rule,
FWS responded with a letter to Alaska’s Governor Sean
Parnell, addressing the State’s concerns that were not
addressed in the final designation. FWS also cited to those
sections of the Final Rule which addressed the State’s
ALASKA OIL AND GAS ASS’N V. JEWELL 37
comments. Alaska now contends FWS’s written justification
was insufficient to comply with Section 4(i) on the grounds
that FWS failed to comply with the section’s procedural
requirements, and failed to consider and provide reasoned
responses to several of Alaska’s substantive comments.
As a threshold matter, we address whether the written
justification called for by Section 4(i) is subject to judicial
review. FWS claims it is not, and our circuit has not yet
addressed this question. But the D.C. Circuit has. In In re
Polar Bear, the D.C. Circuit construed Section 4(i) to be a
part of the process that is reviewable when the court reviews
the final agency action. 709 F.3d at 17–19. The court
explained that it is a review only of whether FWS satisfied
the procedural requirements of Section 4(i). Id. The court
said it may not assess the substantive adequacy of the
agency’s responses to the comments because the ESA does
not specify what the substance of a written justification must
be. Id at 18–19. The court analyzed whether FWS was fully
aware of and took into account the commenting parties’
interests and concerns, because that is what is required by the
ESA in requiring a written justification. Id. We now follow
this approach.
The district court found fault with FWS’s justification
because it incorporated by reference its responses to Alaska’s
comments contained in the Final Rule rather than including
all of those responses verbatim in the letter to the Governor.
The district court held, in effect, that FWS’s justification for
not adopting a final rule wholly consistent with the Alaska’s
comments had to be self contained. Second, the district court
found FWS violated Section 4(i) by sending its response
letter to the Governor rather than ADFG, which had
submitted the comments to FWS.
38 ALASKA OIL AND GAS ASS’N V. JEWELL
We disagree with the district court’s conclusion that the
response was inadequate. There is nothing that we can
perceive in the text of Section 4(i), or its purpose, that
prevents FWS from referencing other publicly-available
documents in support of its justifications. The Supreme
Court recently declined to read a similar “one document”
requirement into a statute that required government entities to
provide reasons for a denial “in writing and supported by
substantial evidence contained in a written record.” T-Mobile
S., LLC v. City of Roswell, 135 S. Ct. 808, 811 (2015)
(quoting 47 U.S.C. § 332(c)(7)(B)(iii)). In T-Mobile South,
the telecommunications company had argued that a city must
give its reasons for denying permission to build a cell phone
tower in a denial letter itself, and not by referencing a
separate document. Id. at 815–18. In rejecting this approach,
the Supreme Court explained that Congress could have
written such a rule into the statute if it had wanted, but it
chose not to. Id. at 818. Like the statute in T-Mobile South,
the only requirement for the justification in Section 4(i) is
that it be in writing. It does not foreclose cross-referencing
other publicly available documents. The district court
therefore should not have imposed a “one document”
requirement.
Nor was it improper for FWS to mail the response to
Alaska’s Governor instead of ADFG. The comment letters
from Alaska and ADFG specified that they “represent[ed] the
consolidated comments for the State of Alaska based on input
from [ADFG and other departments].” Both letters also noted
that Section 4(i) required FWS to provide written justification
“to the State.” Because the letters appear to be speaking for
the State rather than any of the agencies listed, FWS’s action
was warranted.
ALASKA OIL AND GAS ASS’N V. JEWELL 39
Even assuming FWS should have sent its letter to ADFG
instead of the Governor, the mistake would have been
inconsequential. See 5 U.S.C. § 706 (requiring a court
reviewing agency decisions to take “due account . . . of the
rule of prejudicial error”). It is undisputed that ADFG
received the letter. Moreover, Alaska had previously
accepted Section 4(i) letters from FWS in exactly this
format—a letter sent to the Governor containing responses to
ADFG comments and referencing responses in other
documents—without issue. See In re Polar Bear ESA
Listing, 794 F. Supp. 2d 65, 114 (D.D.C. 2011), aff’d 709
F.3d 1 (D.C. Cir. 2013).
Finally, we reject Alaska’s claim that FWS’s letter failed
to offer reasoned responses to each of ADFG’s substantive
comments. FWS’s letter highlighted the basis for its
positions on the contested issues and therefore, effectively
addressed ADFG’s comments. See In re Polar Bear, 709
F.3d at 19. It is clear FWS responded, in some way, to each
of ADFG’s substantive comments. Alaska seems to disagree
with the substantive content of those responses. Yet Section
4(i) does not guarantee that the State will be satisfied with
FWS’s response. See id. Because Section 4(i) creates a
procedural requirement, a court will not analyze the
sufficiency of FWS’s responses. Id. FWS provided written
justification showing that it considered ADFG and the State’s
interests and concerns and, thus, satisfied its duties under
Section 4(i). See id.
E. Plaintiffs’ Cross-Appeal
In their cross-appeal, Plaintiffs seek to resurrect the
claims that the district court rejected. We deal with them
summarily because the district court correctly denied them.
40 ALASKA OIL AND GAS ASS’N V. JEWELL
Plaintiffs argue that the “no-disturbance zone” around the
barrier islands in Unit 3 does not contain an essential physical
or biological feature, and that the evidence does not support
the necessity or purpose of including the zone. The district
court correctly upheld the no-disturbance zone as a part of
Unit 3 because it provides refuge from human disturbance.
See 50 C.F.R. § 424.12(b)(5) (requirements essential to
conservation may include “[h]abitats that are protected from
disturbance”).
Plaintiffs argue that FWS failed to harmonize inconsistent
findings when it determined that the PCEs essential to the
polar bear may require special management considerations or
protection, while also stating that the designation of critical
habitat would not result in changes to polar bear conservation
requirements. The latter statement is from FWS’s economic
impact assessment, and means only that in light of existing
regulatory measures, FWS could not foresee any additional
expense for affected parties. See Ariz. Cattle Growers’ Ass’n,
606 F.3d at 1172. In the context of the special management
or protection analysis, the existence of alternative protections
or programs does not excuse FWS from designating critical
habitat. NRDC v. U.S. Dep’t of Interior, 113 F.3d 1121, 1127
(9th Cir. 1997) (explaining that “the existence of such an
alternative would not justify [FWS’s] failure to designate
critical habitat”). To the contrary, the notion that polar bears
are already protected by some regulatory measures in
designated areas is an indication that the habitat is critical.
See Ctr. for Biological Diversity v. Norton, 240 F. Supp. 2d
1090, 1099 (D. Ariz. 2003). There is no conflict.
Moreover, even if the designation of critical habitat would
not currently result in changes to polar bear conservation
requirements, it is reasonable for FWS to identify special
ALASKA OIL AND GAS ASS’N V. JEWELL 41
management considerations or protections that may be
required in the future. Nothing in the ESA requires that FWS
determine all possible conditions or protections at the time of
critical habitat designation. See 16 U.S.C. §§ 1532–1533.
Plaintiffs next contend that FWS’s assessment of the
potential economic impacts was arbitrary and capricious
because it grossly underestimated and excluded the indirect
costs that would result from designation. Specifically,
Plaintiffs maintain that FWS’s economic assessment failed to
fully account for administrative costs, delay costs, and
uncertainty and risk likely to result from critical habitat
designation.
The district court found that FWS did consider all such
impacts, and we agree. The ESA requires FWS to take into
consideration the economic, national security, and other
relevant impacts of specifying an area as critical habitat
before making its final designation. 16 U.S.C. § 1533(b)(2);
50 C.F.R. § 424.19(b). With this information, FWS
determines whether the benefits of excluding particular areas
from the designation outweigh the benefits of including those
areas in the designation. 16 U.S.C. § 1533(b)(2). FWS is
required only to consider the potential economic impacts of
critical habitat designation and has discretion to exclude such
costs from its final estimate. Bennett v. Spear, 520 U.S. 154,
172 (1997).
Here, FWS undertook a formal economic impact
assessment of the proposed critical habitat designation as
required by Section 4(b)(2). FWS considered potential
indirect costs of the designation arising from delay, litigation,
uncertainty and risk, and more. FWS chose to address these
42 ALASKA OIL AND GAS ASS’N V. JEWELL
impacts qualitatively rather than quantitatively because they
were too uncertain to include in the final calculation.
The Final Economic Analysis thus provided a quantitative
assessment of the likely direct costs of the designation, as
well as a qualitative assessment of the more uncertain and
speculative potential indirect costs. FWS’s decision not to
include those costs deemed too uncertain or speculative in the
total potential incremental cost of the designation was within
its discretion. FWS’s economic impact assessment, therefore,
was not arbitrary and capricious.
Alaska lastly argues that Section 7(a)(2) creates an
independent duty, beyond the requirements of Section 4, for
FWS to engage in consultation with any affected states before
designating critical habitat.
Section 7 outlines the process by which federal agencies
consult with FWS when those agencies take, fund, or
authorize actions that might jeopardize a protected species or
harm critical habitat. 16 U.S.C. § 1536. Section 7 provides
detailed instruction and procedures for conducting these
consultations, including substantive requirements, deadlines,
and specific procedures. See id. § 1536(a)(2). The district
court concluded that Section 7(a)(2) did create a duty to
consult, but not one that applied in this case. The district
court noted that Section 7 governs the federal interagency
consultation process, which applies only after an area has
already been designated as critical habitat. It accordingly
held that the statute did not require FWS to consult with the
State during the initial critical habitat designation, but that it
did require consultation with the State when later evaluating
whether federal agency action would be likely to destroy or
harm the designated habitat.
ALASKA OIL AND GAS ASS’N V. JEWELL 43
The district court was correct in denying Alaska’s claim,
although we do not agree with the district court to the extent
that it held that Section 7 creates any independent duty to
consult apart from the requirements of Section 4. In 1982,
Congress added the specific procedures for designating
critical habitat to Section 4, including FWS’s duty to consult
with affected states. Pub. L. No. 97-304, 96 Stat. 1411 (Oct.
13, 1982). If such a duty already existed under Section 7,
Congress would not have had to mandate coordination with
the states under Section 4. Furthermore, Section 4 does not
mention any additional duty to consult with affected states or
reference Section 7 to imply that additional procedural duties
can be found there. See 16 U.S.C. § 1533.
Finally, even if Section 7(a)(2) contained additional
processes regarding critical habitat designation, the plain text
of the section indicates that consultation with states is
discretionary, not mandatory. See 16 U.S.C. § 1536(a)(2).
Congress’s use of “as appropriate” language indicates that
consultation with states under Section 7(a)(2) is discretionary
and not a separately enforceable obligation. See, e.g.,
Defenders of Wildlife v. Browner, 191 F.3d 1159, 1166 (9th
Cir. 1999) (holding that “as appropriate” language indicates
discretionary authority). We therefore hold that Section 7
does not create an additional duty for FWS to consult with
states on critical habitat designations.
III. CONCLUSION
The judgment of the district court is REVERSED and the
case REMANDED for entry of judgment in favor of the
governmental appellants.