The National Marine Fisheries Service (NMFS) listed two species of Arctic seals—the Pacific bearded seal and the Arctic subspecies of the ringed seal—as threatened under the Endangered Species Act in 2012. This listing triggered a statutory obligation for NMFS to designate critical habitat, defined as specific areas occupied by the species that contain physical or biological features essential to their conservation. In 2022, NMFS issued final rules designating critical habitat for both species in waters off Alaska's north coast. The State of Alaska challenged these designations, arguing they were too broad and violated the ESA and the Administrative Procedure Act. The district court agreed with Alaska, vacating the rules and remanding the matter to NMFS. The Center for Biological Diversity, which had intervened as a defendant, appealed the district court's order, while Alaska filed a cross-appeal regarding the prudency requirement.
The Ninth Circuit first addressed whether it had jurisdiction to hear the Center's appeal of a remand order. The court concluded that the remand order was final because it resolved discrete legal issues, and a favorable outcome for the Center on remand was unlikely, meaning the appeal would not be a wasted proceeding. On the merits, the court reversed the district court's ruling that the designations were unlawful. The court explained that the ESA defines critical habitat as areas containing essential physical or biological features, not areas that are themselves 'indispensable' to the species' survival. The court found that NMFS complied with the statute by identifying the essential features and designating the specific areas where those features were found. The court also rejected Alaska's argument that NMFS was required to consider foreign conservation efforts or foreign habitat, noting that the ESA's text for critical habitat designations does not include such a requirement, unlike the separate provision governing species listings. Finally, the court held that NMFS acted within its discretion when it declined to exclude certain coastal areas. The ESA requires agencies to consider economic and national security impacts before excluding areas, but the decision to exclude is discretionary. NMFS had conducted extensive reviews and reasonably concluded that the benefits of designation outweighed the costs, even if the economic impacts were small.
The critical habitat designations for the Pacific bearded seal and the Arctic subspecies of the ringed seal are reinstated. The case is remanded to the district court with instructions to enter judgment in favor of NMFS and the Center for Biological Diversity. The decision clarifies that agencies need not find an entire designated area is 'indispensable' to conservation, nor must they consider foreign conservation efforts, when designating occupied critical habitat under the ESA.
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