Alaska Oil & Gas Ass'n v. Jewell

• Citation: 815 F.3d 544
• Decision Date: 29 February 2016
• Docket Number: 13–35666,Nos. 13–35619,13–35669.,13–35667,13–35662,s. 13–35619
• Parties: ALASKA OIL AND GAS ASSOCIATION ; American Petroleum Institute; 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–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, and Center For Biological Diversity ; Defenders of Wildlife; Greenpeace, Inc., Intervenor–Defendants. Alaska Oil and Gas Association ; American Petroleum Institute, Plaintiffs–Appellants, and 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. 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 Association ; American Petroleum Institute; 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–Appellees, 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, 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 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. 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–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, and Center for Biological Diversity ; Defenders of Wildlife; Greenpeace, Inc., Intervenor–Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

815 F.3d 544

ALASKA OIL AND GAS ASSOCIATION ; American Petroleum Institute; 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–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,andCenter For Biological Diversity ; Defenders of Wildlife; Greenpeace, Inc., Intervenor–Defendants.

Alaska Oil and Gas Association ; American Petroleum Institute, Plaintiffs–Appellants,

and

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.Sally Jewell, Secretary of the Interior; Daniel M. Ashe, Director, U.S. Fish and Wildlife Service; U.S. Fish & Wildlife Service, Defendants–Appellees,andCenter for Biological Diversity ; Defenders of Wildlife; Greenpeace, Inc., Intervenor–Defendants.

Alaska Oil And Gas Association ; American Petroleum Institute; 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–Appellees,

v.Sally Jewell, Secretary of the Interior; Daniel M. Ashe, Director, U.S. Fish and Wildlife Service; U.S. Fish & Wildlife Service, Defendants,andCenter for Biological Diversity ; Defenders Of Wildlife; Greenpeace, Inc., Intervenor–Defendants–Appellants.

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 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,andCenter For Biological Diversity ; Defenders of Wildlife; Greenpeace, Inc., Intervenor–Defendants.

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–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,andCenter for Biological Diversity ; Defenders of Wildlife; Greenpeace, Inc., Intervenor–Defendants.

Nos. 13–35619

13–35666

13–35662

13–35667

13–35669.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 11, 2015.

Filed Feb. 29, 2016.

Jeffrey W. Leppo (argued), Ryan P. Steen, Stoel Rives LLP, Seattle, WA, for Plaintiffs–Appellees/Cross–Appellants Alaska Oil and Gas Association and the American Petroleum Institute.

Matthew A. Love (argued), Van Ness Feldman LLP, Seattle, WA; 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, ID; Christina F. Gomez, Holland & Hart LLP, Denver, CO, for Plaintiff–Appellee/Cross–Appellant State of Alaska.

Kevin M. Cuddy (argued), Stoel Rives LLP, Anchorage, AL, 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, AL, for Intervenor–Defendants/Appellants Center for Biological Diversity, Defenders of Wildlife, Greenpeace, Inc.

Before: MARY M. SCHROEDER, JOHNNIE B. RAWLINSON, and MARY H. MURGUIA, Circuit Judges.

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 ("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 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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (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...