ENVIRONMENTAL LAW
United States Court of Appeals, 9th Circuit (2023)
Catherine Cole
In Center for Biological Diversity v. United States Fish & Wildlife Service, 67 F.4th 1027 (9th Cir. 2023), the Ninth Circuit decided a government entity’s designations of areas as either an occupied critical habitat or as an unoccupied critical habitat were arbitrary and capricious decisions. (Id. at 1050). The Center for Biological Diversity began litigation against the Rosemont Copper Company, who wanted to build a mine. (Id. at 1030). Rosemont counterclaimed, challenging the United States Fish & Wildlife Service (FWS)’s decision to make parts of southern Arizona a critical habitat for jaguars (Id.). Since the record did not support jaguars living in the Santa Rita Mountains at the relevant time, the district court found the decision to designate areas as occupied critical habitat was arbitrary and capricious. (Id.) The district court only upheld the designation of the area as unoccupied critical habitat. (Id.). After interpreting “essential” to mean indispensable to conservation and evaluating the reliability of FWS’ record, the Ninth Circuit decided that the occupied critical habitat designation was arbitrary and capricious. (Id. at 1038–40). Though allowing the agency’s interpretation of the regulatory standard of designating unoccupied-critical habitat areas to stand, the court decided that the designation of unoccupied critical area was also arbitrary and capricious. (Id. at 1042). The court noted that the agency had failed to give a reasoned evaluation of the relevant factors, including, for example, considering the lack of jaguar sightings and evaluating the area sharing features of the jaguar habitat as nondeterminative. (Id. at 1046). Reversing the grant of summary judgment and remanding to the agency for further proceedings, the Ninth Circuit held that the agency’s designations were arbitrary and capricious. (Id. at 1050).
