The Ninth Circuit Approves the FWS Polar Bear Critical Habitat Designation

On Monday, the 9th Circuit reversed a district court decision that rejected the critical habitat designated by the Fish and Wildlife Service for protection of the polar bear, polar-bear-cub-on-momwhich was listed as threatened in 2008.  The case is largely a straightforward application of accepted Endangered Species Act principles, but does make a few important points.

As the 9th Circuit pointed out, the district court’s logic was flawed.  The district court concluded that FWS had not supported its critical habitat designation because the record did not show that polar bears actually used all of the designated habitat.  However, while use of land by polar bears is a sufficient basis to designate habitat, it is not a necessary basis.

That’s why the ESA regulations focus on primary constituent elements, or PCEs.  So long as an area contains the primary elements of habitat, the species at issue could use the area as habitat.  That is sufficient as a logical matter and that is sufficient under the ESA.  The 9th Circuit found that the FWS was not arbitrary and capricious in its analysis of the areas that contained the PCEs, and that was pretty much the end of the case.

The only other aspect of the case worthy of note was the Court’s rejection of Alaska’s complaint that FWS did not respond adequately to Alaska’s comments.  The Court’s analysis was short and sweet.

FWS’s letter highlighted the basis for its positions on the contested issues and therefore, effectively addressed [Alaska’s] comments.  It is clear FWS responded, in some way, to each of [Alaska’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.

Besides, the Court neglected to mention, polar bears are cute.

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