No. 13-35619
D.C. Nos.
3:11-cv-00025-RRB
3:11-cv-00036-RRB
3:11-cv-00106-RRB
No. 13-35662
D.C. Nos.
3:11-cv-00025-RRB
3:11-cv-00036-RRB
3:11-cv-00106-RRB
No. 13-35666
D.C. Nos.
3:11-cv-00025-RRB
3:11-cv-00036-RRB
3:11-cv-00106-RRB
STATE OF ALASKA,
Plaintiff-Appellant,
and
ALASKA OIL AND GAS
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
No. 13-35667
D.C. Nos.
3:11-cv-00025-RRB
3:11-cv-00036-RRB
3:11-cv-00106-RRB
No. 13-35669
D.C. Nos.
3:11-cv-00025-RRB
3:11-cv-00036-RRB
3:11-cv-00106-RRB
OPINION
COUNSEL
Jeffrey W. Leppo (argued), Ryan P. Steen, Stoel Rives LLP,
Seattle, Washington for Plaintiffs-Appellees/CrossAppellants Alaska Oil and Gas Association and the American
Petroleum Institute.
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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, 23 (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 Alaskas 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 Alaskas 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
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BACKGROUND
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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
speciess 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 states
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
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ANALYSIS
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CONCLUSION