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Ninth Circuit Narrows “Critical Habitat” under the Endangered Species Act

Ninth Circuit Narrows “Critical Habitat” under the Endangered Species Act

Key Points

  • Ninth Circuit interprets “critical habitat” narrowly to include only areas that are “indispensable or necessary to conservation,” which clarifies and limits federal jurisdiction under the Endangered Species Act
  • The U.S. Fish & Wildlife Service may designate “unoccupied” critical habitat only when it first finds that designating “occupied” critical habitat would be inadequate to ensure the protected species’ conservation
  • Clarifying the scope of critical habitat designations helps regulators and regulated entities better identify critical habitat areas for both conservation and compliance purposes

In a recently-issued Endangered Species Act opinion, Center for Biological Diversity v. U.S. Fish & Wildlife Service, the Ninth Circuit vacated the U.S. Fish & Wildlife Service’s designation of an area in southern Arizona as unoccupied critical habitat for the protected jaguar. Its decision rested on two key issues. First was its narrow interpretation of the term “essential” under the Act’s definition for “critical habitat.” Second was its clarification of the two-step process for designating “unoccupied critical habitat.”

Clarifying what is “critical habitat” for protected species is vital to defining the Endangered Species Act’s jurisdiction. The Act, for instance, prohibits federal agencies from destroying or adversely modifying critical habitat when funding, permitting, leasing, or entitling projects. When a project involves critical habitat, the agency must consult the Fish & Wildlife Service or National Marine Fisheries Service to ensure that its actions won’t adversely impact that habitat. 

At issue in Center for Biological Diversity was habitat designated as “unoccupied” and “critical.” A protected species’ critical habitat can be either occupied or unoccupied. Both types require that the habitat is “essential” to the species’ conservation. The Act thus authorizes designating critical habitat when it is “essential” to the conservation of the species. But the Act does not define “essential.” As a result, what is “critical habitat”—particularly unoccupied critical habitat—has remained notoriously unclear.

The uncertain limits of unoccupied critical habitat arose in the Center for Biological Diversity’s lawsuit against the Fish & Wildlife Service. After a project proponent twice consulted Fish & Wildlife Service, the Service issued two biological opinions that a $1.9 billion open-pit copper mining project would not destroy or adversely modify the jaguar’s critical habitat. But the Service declined to exclude the mining project from its unoccupied critical habitat designation. So the Center sued for designating the area as critical habitat and finding that the mining project would not adversely impact the habitat.

The main issue in the Center’s lawsuit was whether the mining project area was “essential” to the jaguar’s conservation. The Ninth Circuit concluded that “the only plausible construction of ‘essential’ in the [Act’s] definition of ‘critical habitat’ is area that is indispensable or necessary to conservation.” It is not enough, the Ninth Circuit explained, that habitat is “merely ‘beneficial’ to or capable of ‘promoting’ survival or recovery.”

The Ninth Circuit then held that the Fish & Wildlife Service can designate unoccupied critical habitat only when designating occupied habitat would be inadequate to ensure the species’ conservation. Put otherwise, this “sequential analysis” requires first determining that occupied critical habitat is inadequate to conserve the species and, second, determining that designating unoccupied critical habitat is essential for conservation.

The Fish & Wildlife Service, the Ninth Circuit found, never addressed whether the jaguar’s occupied critical habitat was inadequate to ensure its conservation. Perhaps that approach was because there was no known jaguar-occupied habitat when the jaguar was listed in 1972 (rather than in 2014, when the habitat was designated as “critical”). But the Fish & Wildlife Service never explained why the occupied habitat was inadequate to ensure the jaguar’s conservation, which made its unoccupied habitat designation arbitrary and capricious.

Identifying critical habitat, including unoccupied critical habitat, is central to protected species’ conservation. But ambiguities in the Endangered Species Act create uncertainty. The Ninth Circuit’s definition of “essential” and its two-part test for unoccupied critical habitat designations help clarify some of that uncertainty.

For More Information, Please Contact:

Sean Herman
Sean Herman
Partner
San Francisco, CA
Jillian Ames
Jillian Ames
Associate
San Francisco, CA