January 14, 2013

Court voids polar bear habitat designation

By M. Reed Hopper Senior Attorney

On Friday, the federal district court in Alaska vacated the Critical Habitat designation for the polar bear.  Although the court deferred to the U.S. Fish and Wildlife Service on technical issues related to the designation, the court found the agency did not support its findings with sufficient evidence.  For example, the court held:

“In short, the Service cannot designate a large swath of land in northern Alaska as ‘critical habitat’ based entirely on one essential feature that is located in approximately one percent of the entire area set aside. The Service has not shown and the record does not contain evidence that Unit 2 contains all of the required physical or biological features of the terrestrial denning habitat PCE, and thus the Final Rule violates the APA’s arbitrary and capricious standard.”

Based on this finding, and others, including the agency’s lack of response to comments by the State of Alaska, the court felt compelled to invalidate the designation in its entirety and remand to the agency to correct the errors.  The decision is generally consistent with Ninth Circuit precedent and does not break new ground, but it provides an overview of the controversies surrounding Critical Habitat designations nationwide.

With a nod to the competing values at stake in the case, the court had this to say:

“After reviewing the voluminous pages of case law pertaining to the legally required consequence of an agency action found to be arbitrary, capricious, and procedurally errant, and in light of the seriousness of the Service’s errors, the Court hereby sets aside the Final Rule.198 The Court does not hand down this judgment lightly, but only after careful consideration of all the law and facts involved with this critical habitat designation. There is no question that the purpose behind the Service’s designation is admirable, for it is important to protect the polar bear, but such protection must be done correctly. In its current form, the critical habitat designation presents a disconnect between the twin goals of protecting a cherished resource and allowing for growth and much needed economic development. The current designation went too far and was too extensive.”

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