State of Alaska v. National Marine Fisheries Service

Filing 39

DECISION & ORDER: Plaintiff's Opening Brief at Docket 27 is GRANTED in part and DENIED in part. See Order for further details. The Clerk of Court is directed to enter a final judgment. Signed by Judge Sharon L. Gleason on 9/26/2024. (SCD, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STATE OF ALASKA,
Plaintiff,
v.
NATIONAL MARINE FISHERIES
SERVICE,

Case No. 3:23-cv-00032-SLG

Defendant,
and
CENTER FOR BIOLOGICAL
DIVERSITY,
Intervenor-Defendant.
DECISION & ORDER
The State of Alaska (“State”) challenges Defendant National Marine
Fisheries Service’s (“NMFS” or the “Service”) final rules designating critical
habitats for the Beringia distinct population segment (“DPS”) of the bearded seal,
Erignathus barbatus nauticus, 1 and for the Arctic ringed seal, Pusa hispida
hispida. 2 The State filed an opening brief at Docket 27. NMFS filed a brief in

See AR_NMFS4209 (final rule designating critical habitat for the bearded seal of the Beringia
DPS); Endangered and Threatened Species; Designation of Critical Habitat for the Beringia
Distinct Population Segment of the Bearded Seal, 87 Fed. Reg. 19180 (Apr. 1, 2022).
1

See AR_NMFS4260 (final rule designating critical habitat for the Arctic ringed seal);
Endangered and Threatened Species; Designation of Critical Habitat for the Arctic Subspecies
of the Ringed Seal, 87 Fed. Reg. 19232 (Apr. 1, 2022).
2

opposition at Docket 31. The Center for Biological Diversity (“CBD”), which was
permitted to intervene, 3 also filed a brief in opposition at Docket 30. The State filed
a reply at Docket 33.
Oral argument on the merits was held on April 25, 2024. 4
BACKGROUND
I.

Description of the Seals
Bearded seals of the Beringia DPS (“bearded seals”) are “the largest of the

northern ice-associated seals” and “inhabit seasonally ice-covered waters of the
Bering, Chukchi, Beaufort, and East Siberian seas.” 5 Because they “primarily feed
on organisms on or near the seafloor . . . that are more numerous in shallow water
where light can reach the sea bottom,” “their effective habitat is generally restricted
to areas where seasonal ice occurs over relatively shallow waters, typically less
than 200 [meters].” 6 Bearded seals use sea ice as protection from predators, “for
whelping and nursing of pups, pup maturation, and molting (shedding and
regrowing hair and outer skin layers), as well as for resting.” 7

3

See Docket 21.

4

Docket 38.

AR_NMFS4210; see also AR_REF1781 (map of global distribution of bearded seals, with the
bearded seal of the Beringia DPS denoted in orange). References to the administrative record,
which was filed conventionally in this case, are denoted in this order with the prefix “AR_” as
seen in this footnote. See Docket 25.
5

6

AR_NMFS4210.

7

AR_NMFS4210.

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Arctic ringed seals (“ringed seals”) are “the smallest of the northern seals”
and are circumpolar, “found throughout ice-covered waters of the Arctic Ocean
Basin and southward into adjacent seas, including the Bering, Chukchi, and
Beaufort seas off Alaska’s coast.” 8 They are “adapted to remaining in heavily icecovered areas throughout the fall, winter, and spring by using the stout claws on
their foreflippers to maintain breathing holes in the ice.” 9 Ringed seals also utilize
sea ice for “resting, whelping . . . , nursing, and molting.” 10 During the winter
through early spring, ringed seals “rest primarily in subnivean lairs (snow caves on
top of the ice),” which is known as the “subnivean period.” 11 Ringed seals occupy
subnivean lairs “for resting, whelping, and nursing pups in areas of annual landfast
ice . . . and stable pack ice.” 12 These lairs “provide protection from cold and
predators throughout the winter months, but they are especially important for
protecting newborn ringed seals,” which “start life with minimal tolerance for
immersion in cold water.” 13

AR_NMFS4261; see also AR_REF2037 (map of global distribution of ringed seals, with the
Arctic ringed seal denoted in orange).
8

9

AR_NMFS4261.

10

AR_NMFS4261.

11

AR_NMFS4261.

12

AR_NMFS4262.

13

AR_NMFS4262.

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II.

Endangered Species Act
In 2012, NMFS listed both species of seals as threatened pursuant to the

Endangered Species Act (“ESA”), codified at 16 U.S.C. § 1531 et seq. 14 Under
the ESA, the Secretary of Commerce (“Secretary”) determines whether to list any
species as endangered or threatened pursuant to the criteria set forth in 16 U.S.C.
§ 1533(a)(1). 15 When doing so, the Secretary
shall make determinations . . . solely on the basis of the best scientific
and commercial data available to him after conducting a review of the
status of the species and after taking into account those efforts, if any,
being made by any State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or other
conservation practices, within any area under its jurisdiction, or on the
high seas. 16
Endangered and Threatened Species; Threatened Status for the Beringia and Okhotsk
Distinct Population Segments of the Erignathus barbatus nauticus Subspecies of the Bearded
Seal, 77 Fed. Reg. 76740 (Dec. 28, 2012) (reproduced at AR_NMFS0079); Endangered and
Threatened Species; Threatened Status for the Arctic, Okhotsk, and Baltic Subspecies of the
Ringed Seal and Endangered Status for the Ladoga Subspecies of the Ringed Seal, 77 Fed.
Reg. 76706 (Dec. 28, 2012) (reproduced at AR_NMFS0045).
14

16 U.S.C. § 1533(a)(1). In this case, the term “Secretary” refers to the Secretary of
Commerce, as NMFS “is an office of the National Oceanic and Atmospheric Administration
within the Department of Commerce.” See 16 U.S.C. § 1532(15) (“The term ‘Secretary’ means,
except as otherwise herein provided, the Secretary of the Interior or the Secretary of Commerce
as program responsibilities are vested . . . .”); see also About Us, NOAA Fisheries,
https://perma.cc/M2CW-FM8W (last visited July 10, 2024).

15

16 U.S.C. § 1533(b)(1)(A). Furthermore, the Secretary “shall give consideration to species
which have been—”

16

(i) designated as requiring protection from unrestricted commerce by any foreign
nation, or pursuant to any international agreement; or
(ii) identified as in danger of extinction, or likely to become so within the
foreseeable future, by any State agency or by any agency of a foreign nation that
is responsible for the conservation of fish or wildlife or plants.
16 U.S.C. § 1533(b)(1)(B).
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At the same time the Secretary makes a determination to list a species as
endangered or threatened, the Secretary must also, “to the maximum extent
prudent and determinable . . . , designate any habitat of such species which is then
considered to be critical habitat.” 17 However, if the “critical habitat of such species
is not then determinable,” the Secretary may delay the designation. 18
The ESA defines “critical habitat” as:
(i) the specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the provisions of [16
U.S.C. § 1533], on which are found those physical or biological
features (I) essential to the conservation of the species and (II) which
may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed in accordance with the provisions of [16
U.S.C. § 1533], upon a determination by the Secretary that such areas
are essential for the conservation of the species. 19
The ESA directs the Secretary to designate critical habitat “on the basis of the best
scientific data available and after taking into consideration the economic impact,
the impact on national security, and any other relevant impact, of specifying any
particular area as critical habitat.” 20 While the Secretary “may exclude any area
from critical habitat if he determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,” he may not do

17

16 U.S.C. § 1533(a)(3)(A)(i).

18

16 U.S.C. § 1533(b)(6)(C)(ii).

19

16 U.S.C. § 1532(5)(A).

20

16 U.S.C. § 1533(b)(2).

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so if “he determines, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result in the extinction
of the species concerned.” 21 The ESA further provides that, “[e]xcept in those
circumstances determined by the Secretary, critical habitat shall not include the
entire geographical area which can be occupied by the threatened or endangered
species.” 22
As a result of listing a species and designating critical habitat, the ESA
requires each federal agency to “insure that any action authorized, funded, or
carried out by such agency . . . is not likely to jeopardize the continued existence
of any endangered species or threatened species or result in the destruction or
adverse modification of [the critical] habitat of such species,” unless the agency
has been granted an exemption. 23 In the instant case, a federal agency would
meet that requirement by consulting with NMFS, 24 a process commonly referred
to as the ESA § 7 consultation. 25

21

Id.

22

16 U.S.C. § 1532(5)(C).

16 U.S.C. § 1536(a)(2). In so doing, “each agency shall use the best scientific and
commercial data available.” Id. The process for granting an exemption is contained in 16
U.S.C. § 1536(h).

23

Federal agencies consult with either the U.S. Fish and Wildlife Service (“FWS”) or NMFS,
depending on the species potentially affected. See 50 C.F.R. § 402.13 (describing informal
consultation with “the Service”); 50 C.F.R. § 402.14 (describing formal consultation with “the
Service”); 50 C.F.R. § 402.02 (defining “Service” to mean “the U.S. Fish and Wildlife Service or
the National Marine Fisheries Service, as appropriate”).

24

When the ESA was enacted, the consultation requirement was contained in § 7 of the statute.
See Endangered Species Act of 1973, Pub. L. No. 93-205, § 7, 87 Stat. 884, 892 (1973)

25

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III.

Bearded and Ringed Seal Critical Habitat Designations
NMFS considered the following in designating the critical habitats for the

bearded and ringed seals: physical and biological features essential to the
conservation of the species; specific areas containing the essential features;
special management considerations or protection; any unoccupied areas that are
essential to the species’ conservation; areas owned or controlled by the
Department of Defense (“DOD”); and impacts pursuant to ESA § 4(b)(2), codified
at 16 U.S.C. § 1533(b)(2), which requires the Secretary to consider economic,
national security, and other relevant impacts when designating critical habitat. 26
For both seal species, “[b]ased on the best scientific information available,”
NMFS first identified the “physical and biological features that are essential to the
conservation of [the species] within U.S. waters occupied by the species.” 27 For
the bearded seal, NMFS identified the following essential physical and biological
features: (1) sea ice habitat suitable for whelping and nursing; (2) sea ice habitat
suitable as a platform for molting; and (3) primary prey resources to support
bearded seals. 28 For the ringed seal, NMFS identified the essential features as:
(1) snow-covered sea ice habitat suitable for the formation and maintenance of

(codified at 16 U.S.C. § 1536(a)(1), (2)).
See AR_NMFS4213, AR_NMFS4215, AR_NMFS4218, AR_NMFS4220–21; AR_NMFS4264,
AR_NMFS4267, AR_NMFS4269, AR_NMFS4272.

26

27

AR_NMFS4213; AR_NMFS4264.

28

AR_NMFS4213–15.

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subnivean birth lairs used for sheltering pups during whelping and nursing; (2) sea
ice habitat suitable as a platform for basking and molting; and (3) primary prey
resources to support ringed seals. 29
NMFS then remarked that, “[t]o determine which areas qualify as critical
habitat within the geographical area occupied by the species, [NMFS is] required
to identify ‘specific areas’ that contain one or more of the physical or biological
features essential to the conservation of the species (and that may require special
management considerations or protection . . . ).” 30 However, for both the bearded
and the ringed seals, NMFS explained that “the essential features of . . . [the]
critical habitat[s], in particular the sea ice essential features, are dynamic,” and
“their locations are variable on both spatial and temporal scales.” 31

Stated

differently, NMFS found that the “specific geographic locations of essential sea ice
habitat used by” both bearded and ringed seals “vary from year to year, or even
day to day,” depending on various factors such as time of year, local weather, and
oceanographic conditions. 32 As a result, NMFS found that “[t]he dynamic nature
of sea ice and the spatial and temporal variations in sea ice cover constrain [its]
ability to map precisely the specific geographic locations where the sea ice

29

AR_NMFS4264–67.

30

AR_NMFS4215 (citing 50 C.F.R. § 424.12(b)(1)(iii)); AR_NMFS4267 (citing to the same).

31

AR_NMFS4215; AR_NMFS4267.

32

AR_NMFS4215; AR_NMFS4267.

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essential features occur.” 33 NMFS also noted that, for both seal species, the
“primary prey species . . . occur throughout the geographical area occupied by the
species.” 34 And while NMFS acknowledged that it could not “designate as critical
habitat the entire geographical area occupied by a species,” it decided in this case
to “designat[e] as critical habitat a single specific area that contains all three of the
identified essential features” for each seal species. 35
NMFS next noted that critical habitat may only be designated in occupied
areas “if the area contains one or more essential physical or biological feature[s]
that may require special management considerations or protection.” 36 For both
bearded and ringed seals, NMFS identified the same “four primary sources of
potential threats to one or more of the [essential] habitat features identified”:
climate change, oil and gas activity, marine shipping and transportation, and
commercial fisheries. 37 NMFS then described how each of these potential threats
may impact essential habitat features; for example, it noted that climate change

33

AR_NMFS4215; AR_NMFS4267.

34

AR_NMFS4218; AR_NMFS4269.

35

AR_NMFS4218; AR_NMFS4269.

AR_NMFS4218 (first citing 16 U.S.C. § 1532(5)(A)(i); and then citing 50 C.F.R. §
424.12(b)(1)(iv)); AR_NMFS4269 (citing the same).
36

37

AR_NMFS4218–20; AR_NMFS4269–72.

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due to the release of “carbon dioxide and other heat-trapping greenhouse gases
(GHGs) into the atmosphere” is a “major contributing factor to . . . loss of sea ice.”38
NMFS also determined that, because both seal species “are considered to
occupy their entire historical range that falls within U.S. jurisdiction, . . . there are
no unoccupied areas within U.S. jurisdiction that are essential to their
conservation.” 39 NMFS additionally concluded that none of the designated critical
habitat for either seal species would overlap areas “owned, controlled, or
designated for use by [the] DOD” pursuant to the conditions set forth in 16 U.S.C.
§ 1533(a)(3)(B)(i), and thus the exemptions requested by the DOD were
unnecessary. 40
Finally, in considering economic, national security, and other relevant
impacts when designating critical habitat, NMFS concluded that “[t]he primary
impacts of a critical habitat designation [for both seal species] arise from the ESA
section 7(a)(2) requirement that Federal agencies ensure that their actions are not
likely to result in the destruction or adverse modification of critical habitat (i.e.,
adverse modification standard).” 41

38

AR_NMFS4218; AR_NMFS4270.

39

AR_NMFS4220; AR_NMFS4272.

40

AR_NMFS4220–21; AR_NMFS4272.

NMFS also determined that the ESA § 7

NMFS also noted that § 7(a)(2) “contains the overlapping requirement that Federal agencies
ensure that their actions are not likely to jeopardize the species’ continued existence.”
AR_NMFS4221; AR_NMFS4273.

41

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consultation requirement was “the only regulatory consequence” of the critical
habitat designations. 42 NMFS further remarked that “[d]irect economic costs of the
critical habitat designation[s] accrue primarily through” the § 7 consultation, which
may impact “both administrative costs and costs associated with project
modifications.” 43 However, based on a 10-year time window, the Service stated it
“ha[d] not identified any likely incremental economic impacts associated with
project modifications that would be required solely to avoid impacts to [either seal
species’] critical habitat,” because “section 7 consultations on potential effects to
[both seal species] and [the Service’s] incidental take authorizations for Arctic
activities under section 101(a) of the Marine Mammal Protection Act (MMPA) both
typically address habitat-associated effects to the seals even in the absence of a
critical habitat designation.” 44

Thus, NMFS determined that “the potential

economic impacts associated with the critical habitat designation[s] are modest”
and “primarily associated with oil and gas activities that may occur in the Beaufort
and Chukchi Seas,” and, therefore, it would “not [be] exercising [its] discretion to
further consider and weigh the benefits of excluding any particular area [from

42

AR_NMFS4222; AR_NMFS4273.

43

AR_NMFS4222; AR_NMFS4274.

AR_NMFS4222; AR_NMFS4274. NMFS explained that, while “economic costs of the
designation[s] are likely to extend beyond the 10-year timeframe of the analysis, . . . forecasting
potential future Federal actions that may require section 7 consultation regarding critical habitat
for [both seal species] becomes increasingly speculative beyond the 10-year time window.”
AR_NMFS4222; AR_NMFS4273.
44

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critical habitat designation] based on economic impacts against the benefits of
designation.” 45

NMFS then considered national security and other relevant

impacts for both bearded and ringed seals and decided only to exclude one
particular area off of the Beaufort Sea shelf from the ringed seal critical habitat due
to national security impacts. 46
The State initiated this lawsuit in February 2023, challenging the Service’s
April 2022 final rules, which the State describes as designating “an enormous area
. . . exceed[ing] 160 million acres [of water surrounding the Alaskan coast] and
approximat[ing] the size of Texas” as critical habitat for bearded and ringed seals.47
The State asserts that the Service designated a single area containing
approximately 174 million acres of critical habitat for the bearded seal and a single
area containing approximately 164 million acres of critical habitat for the ringed
seal, with significant overlap in the two areas. 48

Neither NMFS nor CBD

(collectively, “Defendants”) disputes the State’s size estimates of the critical
habitats. 49 The State maintains that “these unprecedented designations” include

45

AR_NMFS4223; AR_NMFS4274.

AR_NMFS4223–24; AR_NMFS4274–78. The area excluded from the ringed seal critical
habitat does not appear to be occupied by bearded seals and is also not included in the
bearded seal critical habitat. Compare AR_NMFS4315 (map of ringed seal critical habitat)
(reproduced in Appendix 2), with AR_REF1781 (map of global distribution of bearded seals) and
AR_NMFS4259 (map of bearded seal critical habitat) (reproduced in Appendix 1).
46

47

Docket 1; Docket 27 at 6 (emphasis omitted).

48

Docket 33 at 8 (citing AR_NMFS4314–15; AR_NMFS4258–59; AR_PUB14291).

49

See generally Docket 31; Docket 30.

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“virtually all of the geographic area occupied by each seal within the jurisdiction of
the United States” and violate the ESA’s requirements for limiting critical habitat to
only those “specific areas that are essential to the conservation of the species.” 50
The State’s complaint alleges six separate violations of the ESA: (1) failure
to designate specific areas as critical habitat; (2) failure to consider all of the
species’ global habitat; (3) failure to designate specific areas that contain the
essential habitat features; (4) failure to explain how the essential habitat features
will be protected by the designations; (5) failure to analyze whether each critical
habitat designation is prudent; and (6) violation of ESA § 4(b)(2), which requires
the agency to take into consideration the economic, national security, and other
relevant impacts when designating critical habitat. 51 The State seeks declaratory
and injunctive relief, and asks the Court to “[h]old unlawful and set aside the critical
habitat designat[ions]” and “[e]njoin NMFS from taking any action to apply or
enforce the critical habitat designat[ions]” for both species of seals, “including
during Section 7 consultation.” 52

Docket 27 at 6; Docket 1 at ¶ 3 (emphasis omitted) (citing 16 U.S.C. § 1532(5)(A)); see also
AR_NMFS4234 (Comment 35 noting that “[s]everal commenters stated that the proposed
designation is overbroad because it includes most of the geographical area occupied by the
Beringia DPS within the U.S. [exclusive economic zone]”); AR_NMFS4289 (Comment 25 noting
the same for the ringed seal).

50

51

Docket 1 at ¶¶ 47–109.

52

Docket 1 at 35–36.

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Defendants oppose and maintain that the bearded and ringed seal critical
habitat designations satisfy the requirements of the ESA. 53
A map of the critical habitat designated for the bearded seal and a map of
its global distribution is included as Appendix 1. 54 A map of the critical habitat
designated for the ringed seal and a map of its global distribution is included as
Appendix 2. 55
JURISDICTION
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331,
which “confer[s] jurisdiction on federal courts to review agency action, regardless
of whether the [Administrative Procedure Act] of its own force may serve as a
jurisdictional predicate.” 56
LEGAL STANDARD
The State seeks judicial review under the Administrative Procedure Act
(“APA”). 57 Under that statute, a reviewing court shall set aside agency action that

53

Docket 31; Docket 30.

See AR_NMFS4259 (map of final critical habitat designation for the bearded seal);
AR_REF1781 (map of global distribution of bearded seals, with the bearded seal of the Beringia
DPS denoted in orange).
54

See AR_NMFS4315 (map of final critical habitat designation for the ringed seal);
AR_REF2037 (map of global distribution of ringed seals, with the Arctic ringed seal denoted in
orange).
55

56

Califano v. Sanders, 430 U.S. 99, 105 (1977).

57

Docket 27 at 3.

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is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]” 58 Agency action is arbitrary and capricious if it:
relie[s] on factors which Congress has not intended it to consider,
entirely fail[s] to consider an important aspect of the problem, offer[s]
an explanation for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise. 59
By contrast, an agency action is proper if “the agency considered the relevant
factors and articulated a rational connection between the facts found and the
choices made.” 60 “Whether agency action is ‘not in accordance with law’ is a
question of statutory interpretation, rather than an assessment of reasonableness
in the instant case.” 61
DISCUSSION
Preliminarily, the Court addresses the Service’s assertion that the State
failed to establish its standing to bring this lawsuit because the State failed to allege
that it had standing and failed to submit standing declarations with its opening
brief. 62 To establish standing, a plaintiff must show (1) an injury in fact, meaning
an “invasion of a legally protected interest that is (a) concrete and particularized,

58

5 U.S.C. § 706(2)(A).

Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1067 (9th Cir. 2018) (quoting Greater
Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1023 (9th Cir. 2011)).
59

60

Id. (quoting Greater Yellowstone Coal., 665 F.3d at 1023).

Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (citing Nw. Env’t Advocs. v. EPA, 537
F.3d 1006, 1014 (9th Cir. 2008)).
61

62

Docket 31 at 20.

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and (b) actual or imminent, not conjectural or hypothetical”; (2) causation; and (3)
redressability, meaning that “the injury will likely be redressed by a favorable
decision.” 63 States are not “normal litigants for the purposes of invoking federal
jurisdiction,” and a “well-founded desire to preserve a state’s sovereign territory
supports federal jurisdiction, which may be further reinforced by ownership of a
great deal of the territory alleged to be affected by a challenged federal action.” 64
Where a state has shown that it would suffer an impact on revenues due to an
agency decision, the state has demonstrated “an interest in the judgment sufficient
to establish Article III standing.” 65
To establish standing, the State relies on the comments it submitted to
NMFS regarding the proposed bearded and ringed seal critical habitats and on a
declaration by Douglas Vincent-Lang, Commissioner of the Alaska Department of
Fish and Game, filed with its reply. 66 While the declaration’s filing was belated, the
Court accepts the declaration as filed and finds that the State has adequately
established its standing to maintain this action. As the State noted in its comments

Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992)).

63

Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 (9th Cir. 2011) (alterations and internal
quotation marks omitted) (quoting Massachusetts v. EPA, 549 U.S. 497, 518–19 (2007)).
64

See Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 963–66 (9th Cir. 2015) (first
citing Didrickson v. U.S. Dep’t of the Interior, 982 F.2d 1332, 1338 (9th Cir.1992); and then citing
Watt v. Energy Action Educ. Found., 454 U.S. 151, 160–61 (1981)) (holding that Alaska
established standing as an intervenor when an agency rule would have resulted in a reduction
of Alaska’s statutory entitlement to revenue from timber sales).

65

66

See Docket 33 at 5 (citing AR_PUB14283, AR_PUB14286–90), 37–44 (Decl. Vincent-Lang).

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to the agency regarding the proposed critical habitats, the State manages “vast,
interconnected marine ecosystems [to] support healthy populations of fish and
wildlife species,” including bearded and ringed seals, to “provide ample food,
recreation, and economic benefits to Alaskans.” 67

Furthermore, the State

maintains that oil and gas development on Alaska’s North Slope and the adjacent
offshore areas of the Beaufort and Chukchi Seas provides numerous jobs and
revenue to Alaskan communities 68 and promotes Alaskans’ “economic and social
welfare.” 69 The State maintains, however, that the critical habitat designations will
result in “delays and regulatory uncertainty”—such as lengthy litigation—to oil and
gas development. 70

Indeed, NMFS identified “oil and gas exploration,

development, and production” as one of “four primary sources of potential threats

See AR_PUB14291; AR_PUB14284 (“Oil and gas activities [in Alaska] are regulated pursuant
to the Marine Mammal Protection Act (MMPA) and other federal, state, and local regulatory
mechanisms to ensure they have no more than a negligible impact on marine mammals,
including bearded and ringed seals.”). See also Docket 33 at 39–40, ¶ 10 (noting that the
bearded and ringed seals “are two of the most common marine species in the Arctic region and
are found throughout much of Alaska’s coastal waters and territorial seas”), ¶ 14 (explaining that
“Alaska, as a sovereign state and pursuant to its public trust responsibilities, has a significant
interest in managing and conserving wildlife and natural resources within its jurisdiction,
including the bearded seal and ringed seal, as well as their habitat and food sources”).
67

68

AR_PUB14286–87.

69

Docket 33 at 41, ¶ 15.

AR_PUB14289; AR_PUB14287; Docket 33 at 41–42, ¶¶ 15–18. In its comments, the State
noted various lawsuits regarding oil and gas development that ensued after (1) a polar bear
critical habitat designation in Alaska’s North Slope and nearby waters, and (2) a beluga whale
critical habitat designation in Cook Inlet, “a large, semi-enclosed estuary in southcentral Alaska.”
See AR_PUB14289 & n.28 (citing Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544, 550 (9th Cir.
2016)); Cook Inletkeeper v. Raimondo, 533 F. Supp. 3d 739, 745 (D. Alaska 2021); Cook
Inletkeeper v. U.S. Dep’t of the Interior, Case No. 3:22-cv-00279-SLG (D. Alaska filed Dec. 21,
2022).
70

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to one or more” essential habitat features for both the bearded seal and the ringed
seal that may require special management considerations or protection. 71 Thus,
the State maintains that the invalidation of the critical habitat designations would
redress economic harm to the State resulting from delayed oil and gas exploration,
development, and production. 72

Defendants do not directly dispute these

assertions.
In addition, the Service’s critical habitat designations expand “from the
Alaska shoreline to the international dateline in much of the Bering Sea, all of the
Chukchi Sea, and the shelf of the Beaufort Sea.” 73

The final critical habitat

designations show that almost all of Alaska’s coastal waters from its northeastern
border with Canada to a southwestern point near Nunivak Island are included in
the Service’s designations for one or both seals. 74 The parties do not dispute, and
the Court finds, that such an expanse constitutes “a great deal of the territory
alleged to be affected by a challenged federal action.” 75 Accordingly, the Court
finds that the State has standing to bring this challenge.

71

AR_NMFS4218; AR_NMFS4269.

72

See Organized Vill. of Kake, 795 F.3d at 963–66 (citations omitted).

73

AR_PUB14291.

See AR_NMFS4259 (map of final critical habitat designation for the bearded seal)
(reproduced in Appendix 1); AR_NMFS4315 (map of final critical habitat designation for the
ringed seal) (reproduced in Appendix 2).
74

Sierra Forest Legacy, 646 F.3d at 1178 (internal quotation marks omitted) (quoting
Massachusetts, 549 U.S. at 519).

75

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The Court turns to the State’s claims that the Service’s critical habitat
designations constitute error.
I.

Critical Habitat Essential to the Conservation of the Species &
Failure to Consider Foreign Occupied Areas
The Court considers the State’s first two arguments together: first, that “the

designation of all, or virtually all, of the species’ suitable habitat” within the United
States as critical habitat “is wholly inconsistent with the plain language” of the ESA
and its regulatory provisions 76; and second, that NMFS failed to address why the
areas designated are essential to the seals’ survival and recovery when substantial
portions of the seals’ ranges are outside of United States territory. 77 The State
also asserts that, “[a]t the very least, NMFS erred because it did not explain why
each massive designation ‘is essential to [the species’] persistence.’” 78
“The ESA identifies two types of critical habitat: occupied and unoccupied.” 79
Here, the State disputes the Service’s designation of occupied areas as critical
habitat for the seals; the parties do not dispute the Service’s decision to not
designate any unoccupied areas. Nonetheless, the Court discusses both types of
critical habitat because the parties draw distinctions between the two.
76

Docket 27 at 21.

77

Docket 27 at 25.

Docket 27 at 22 (emphasis in original) (quoting Ctr. for Biological Diversity v. U.S. Fish &
Wildlife Serv., 67 F.4th 1027, 1046–47 (9th Cir. 2023) (holding that FWS erred in designating
unoccupied critical habitat for the jaguar by failing to explain why those areas themselves were
necessary to the species’ survival and recovery)).

78

79

Ctr. for Biological Diversity, 67 F.4th at 1035 (citing 16 U.S.C. § 1532(5)(A)).

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For areas occupied by a species, critical habitat is defined in the ESA as
“the specific areas within the geographical area occupied by the species . . . on
which are found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special management
considerations or protection.” 80 Conservation is defined in the ESA as “the use of
all methods and procedures which are necessary to bring any . . . threatened
species to the point at which” 81 “the species is recovered,” 82 meaning
“improvement in the status of [the] listed species to the point at which listing is no
longer appropriate under the criteria set out in [16 U.S.C. § 1533(a)(1)].” 83
“[T]he touchstone of unoccupied critical habitat (in contrast to occupied
critical habitat) is whether the area itself is ‘essential’ to the conservation of the
species.’” 84 For example, the Ninth Circuit held that FWS properly designated
areas upstream of a sucker fish habitat as unoccupied critical habitat, because
FWS found that the upstream areas were “the primary sources of high quality
course sediment for the downstream occupied portions of the river” and that the

80

16 U.S.C. § 1532(5)(A)(i).

81

16 U.S.C. § 1532(3).

82

50 C.F.R. § 424.02.

83

Id.

Ctr. for Biological Diversity, 67 F.4th at 1044 (emphasis in original) (quoting Otay Mesa Prop.,
L.P. v. U.S. Dep’t of the Interior, 344 F. Supp. 3d 355, 376 (D.D.C. 2018)) (other citations
omitted).
84

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sediment flowing downstream “provided spawning and feeding grounds and
helped maintain water quality and temperature.” 85
Although “the standard for designating unoccupied critical habitat is ‘more
demanding’ than the standard for designating occupied critical habitat,” “the ESA
requires that both occupied and unoccupied areas be ‘essential’ to conservation
before they can be designated as critical habitat.” 86 As the Ninth Circuit explained,
“the Supreme Court [has] construed the ESA’s definition of ‘critical habitat’—
whether occupied or unoccupied—as including only ‘areas that are indispensable
to the conservation of the endangered [or threatened] species.’” 87

“While

‘conservation’ encompasses both ensuring species’ survival and recovery, the
ESA nonetheless requires the agency to show that designation of critical habitat is
‘necessary’ or ‘indispensable’ in accomplishing these objectives, not merely
‘beneficial’ to or capable of ‘promoting’ survival or recovery.” 88 Therefore, “for an
area to be ‘essential’ for conservation of a species, . . . the agency must determine

Id. at 1040–41 (internal quotation marks omitted) (explaining the Ninth Circuit’s decision in
Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015)).

85

Id. at 1035 (first quoting 16 U.S.C. § 1532(5)(A)(i)–(ii); and then quoting Home Builders Ass’n
of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983, 990 (9th Cir. 2010)).
86

Id. at 1037 (emphasis in original) (quoting Weyerhaeuser v. U.S. Fish & Wildlife Serv., 586
U.S. 9, 20 (2018)).

87

Id. at 1038 (emphasis in original) (“Congress not only limited ‘conservation’ to include those
‘methods and procedures which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to this Act are no longer
necessary,’ it also expressly limited the authority to designate habitat areas for protection to only
‘critical habitat,’ which it defined as areas ‘essential’ for conservation.” (first quoting 16 U.S.C. §
1532(3) (emphasis added); and then quoting 16 U.S.C. § 1532(5)(A))).

88

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that the species cannot be brought ‘to the point at which the measures provided
pursuant to [the ESA] are no longer necessary’ without the critical habitat
designation.” 89
Further, when determining whether to list a species as endangered or
threatened under the criteria in 16 U.S.C. § 1533(a)(1), the Secretary must “tak[e]
into account those efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect such species . . . within
any area under its jurisdiction, or on the high seas.” 90 Because “conservation” is
defined to result in species recovery, 91 the concept of “conservation” also warrants
consideration of foreign nation efforts when determining whether listing would still
be appropriate and, therefore, whether the proposed critical habitat areas would
be indispensable to ensuring species’ survival and recovery. 92

89

Id. at 1037 (quoting 16 U.S.C. § 1532(3)).

90

16 U.S.C. § 1533(b)(1)(A).

See 50 C.F.R. §§ 424.02, 402.02 (defining recovery to mean “improvement in the status of
[the] listed species to the point at which listing is no longer appropriate under the criteria set out
in [16 U.S.C. § 1533(a)(1)]”).
91

In Center for Biological Diversity, the Ninth Circuit remanded with directions to vacate two
unoccupied critical habitat designations for the jaguar, which largely resided outside of the
United States. 67 F. 4th at 1030–31. As part of its holding regarding one of the units, the Circuit
Court noted that FWS “conceded there is nothing in the Final Rule establishing that the jaguar
will be unable to recover or survive if [that unit] is not designated as critical habitat”; it further
explained that “experts from both the United States and Mexico” concluded that, “[b]ecause
such a small portion of the jaguar’s range occurs in the U.S., it is anticipated that recovery of the
species will rely primarily on actions that occur outside the U.S.” Id. at 1045 (citation omitted).
The Ninth Circuit therefore held that “FWS’s designation of [that unit] as unoccupied critical
habitat was arbitrary and capricious because the FWS failed to provide a ‘reasoned evaluation
of the relevant factors,’ and its designation ‘[was] without substantial basis in fact.’” Id. at 1046
(citations omitted). While the Ninth Circuit’s discussion in Center for Biological Diversity relates
to unoccupied habitat, the case is nonetheless instructive because the Circuit Court considered

92

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The State first maintains that “each seal’s entire 160-million-plus-acre
designation cannot be indispensable to ensuring the conservation of that
species.” 93 NMFS responds that, because NMFS only designated occupied areas
as critical habitat, it did not need to determine that the entirety of those designated
areas was essential. 94 NMFS asserts, rather, that it must only identify “those
occupied areas [which] contain the physical and biological features essential to the
conservation of the species” and that it “need not further determine that the specific
areas are essential for the conservation of the species.” 95
In this case, NMFS identified physical and biological features that it alleged
are essential to the conservation of the bearded and ringed seals “within U.S.
waters occupied by the species.” 96 Then, noting that the sea ice essential features
are “dynamic” and “vary spatiotemporally” 97 and that both seals’ primary prey
species “occur throughout the geographical area occupied” by the seals, NMFS
decided to “designat[e] as critical habitat a single specific area that contains all

the jaguar’s large presence outside of the United States when remanding with directions to
vacate and because the Circuit Court in the same case emphasized that both occupied and
unoccupied critical habitat must be “indispensable to the conservation” of the listed species. Id.
at 1037 (emphasis and citation omitted).
93

Docket 27 at 22 (emphasis omitted).

94

Docket 31 at 23.

95

Docket 31 at 23–24 (emphasis omitted) (citing 16 U.S.C. § 1532(5)(A)(i)–(ii)).

96

AR_NMFS4213; AR_NMFS4264.

97

AR_NMFS4215; AR_NMFS4267.

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three of the identified essential features” for each seal species. 98

These

designations resulted in a critical habitat for each seal species of over 160 million
acres, 99 expanding “from the Alaska shoreline to the international dateline in much
of the Bering Sea, all of the Chukchi Sea, and the shelf of the Beaufort Sea.”100
NMFS made these designations, however, without explaining why the entirety of
each designated area is necessary to the seals’ survival and recovery, or why a
smaller area would be inadequate for their conservation, especially since a
significant portion of the bearded seal’s habitat and most of the ringed seal’s
habitat are outside of United States territory, which is addressed further below. 101

98

AR_NMFS4218; AR_NMFS4269.

99

See Docket 33 at 8 (citing AR_NMFS4314–15; AR_NMFS4258–59; AR_PUB14291).

AR_PUB14291; see also AR_NMFS4259 (map of final critical habitat designation for the
bearded seal) (reproduced in Appendix 1); AR_NMFS4315 (map of final critical habitat
designation for the ringed seal) (reproduced in Appendix 2).
100

See Ctr. for Biological Diversity, 67 F.4th at 1037 (citation omitted) (explaining that “[i]f certain
habitat is essential, it stands to reason that if the [Service] did not designate this habitat,
whatever the [Service] otherwise designated would be inadequate”). The State maintains that
“[t]hese enormous designations deprive the statutory term ‘essential’ of meaning” and are so
large that they “cannot be indispensable to ensuring the conservation of th[e] species.” Docket
27 at 21–22 (emphasis omitted). While the Court agrees that the designated critical habitats are
rather large, the Court is not persuaded that an area cannot be essential to the conservation of
a species simply because it is large.

101

The State also asserts that NMFS erred by failing to “identify specific areas within the
geographical area occupied by the species” because it designated “virtually all of the suitable
habitat for the species in the U.S.” Docket 27 at 24 (emphasis omitted) (quoting 50 C.F.R. §
424.12(b)). The Service’s response that it complied with the ESA because it did not designate
“the entire geographical area which can be occupied” by the seals is inapposite to the State’s
argument. Docket 31 at 22 (emphasis omitted) (quoting 16 U.S.C. § 1532(5)(C)). Rather, the
State made its argument in further support of its position that NMFS failed to “explain why each
massive designation ‘is essential to [the species’] persistence.’” Docket 27 at 22 (emphasis in
original) (citation omitted).
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CBD contends that the entirety of the areas designated as critical habitat is
essential because the seals’ habitat requirements are “extensive and dynamic.” 102
It cites to comments submitted by the Marine Mammal Commission, which
maintained that the “protection of the entire area is necessary to prevent the ringed
seals that occur in the United States from becoming endangered and to bring them
to the point where the protections afforded by the [ESA] are no longer necessary,”
and that “one cannot identify a less extensive, specific geographic location for
breeding or molting that will reliably support these functions year after year than
has been identified” by NMFS. 103 However, as the Court explains below, it is error
to consider a species’ survival and recovery within the United States only. And
simply because NMFS is unable to identify a less extensive, specific geographic
location for breeding or molting does not explain why the 160-million-plus-acre
areas it identified as critical habitat are “‘necessary’ or ‘indispensable’ in [ensuring
the seals’ survival and recovery], not merely ‘beneficial’ to or capable of ‘promoting’
survival or recovery.” 104

CBD further points to the Service’s response to a

comment in the final rule that, because the location of the seals’ essential habitat
features “are not static, and their location changes both seasonally and annually,
a critical habitat designation must be large enough to account for such changes in

102

Docket 30 at 20.

103

Docket 30 at 21, 23 (alteration in original) (quoting AR_PUB0287–88) (other citation omitted).

104

See Ctr. for Biological Diversity, 67 F.4th at 1038.

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the locations of essential features and the particular species’ habitat requirements
throughout their life history.” 105 Nonetheless, the ESA requires that the specific
areas designated be essential. In effect, the Service implicitly acknowledges that
only a fraction of the designated areas may be indispensable to the seals’
conservation at any one time.
Defendants also cite to the Ninth Circuit’s decision in Alaska Oil & Gas Ass’n
v. Jewell, a case about designating polar bear critical habitat, for the proposition
that “NMFS must designate critical habitat areas large enough to encompass . . .
essential [habitat] features wherever they may occur throughout the year and from
year to year.” 106 In Alaska Oil & Gas, however, the Ninth Circuit held that the
district court erred by “holding [the agency] 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.” 107 In the instant case, the Court
takes issue with the agency’s lack of a finding that its designations—which include
almost anywhere the seals might be found at any given time within United States
jurisdiction—“is critical to the future recovery and conservation of the species.”108

105

Docket 30 at 25–26 (quoting AR_NMFS4235; AR_NMFS4290).

106

Docket 31 at 9; see Docket 30 at 23.

815 F.3d at 550, 561 (holding that “[t]he district court erroneously focused on the areas
existing polar bears have been shown to utilize rather than the features necessary for future
species protection”).

107

108

See id. at 550.

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While NMFS appropriately explained how it delineated an area containing the
seals’ essential habitat features, 109 the problem is that it then designated virtually
the entire area that “encompass[es] these essential features wherever they may
occur throughout the year and from year to year,” 110 without linking why that entire
area is indispensable to the survival and recovery of the seal species. Although
the Court acknowledges the challenging nature of designating critical habitat for
threatened species that inhabit Arctic waters, the Court does not read the ESA to
permit the Service to designate nearly all of the seals’ occupied habitat within the
United States as indispensable to the seals’ conservation. Therefore, the Court
finds that the Service failed to act in accordance with the law.
As to foreign areas occupied by the seals, NMFS contends that “Plaintiff’s
assertion that NMFS should have taken the species’ total range beyond U.S.
territory and waters into account in designating critical habitat conflicts with the
ESA’s implementing regulations.” 111 The Service maintains that because “[t]hose
regulations state that NMFS ‘will not designate critical habitat within foreign
countries or in other areas outside of the jurisdiction of the United States,’” it
“reasonably focused on critical habitat within U.S. jurisdiction to satisfy the
statutory obligation to designate critical habitat for these species.” 112 CBD echoes
109

See AR_NMFS4215–18; AR_NMFS4267–69.

110

Docket 31 at 9.

111

Docket 31 at 26.

112

Docket 31 at 26 (first quoting 50 C.F.R. § 424.12(g); and then citing AR_NMFS4213,

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the Service’s explanation and contends that, “[g]iven that NMFS does not
designate critical habitat outside U.S. jurisdiction, protecting the seals’ critical
habitat areas within the United States is all the more essential.” 113
These explanations, however, do not address why the Service could not
consider foreign nation efforts in determining what habitat in the United States
would be indispensable to the seals, even though the Service can only designate
critical habitat within United States territory. The regulation that the Service cites,
50 C.F.R. § 424.12(g), simply prohibits designation of critical habitat “within foreign
countries or in other areas outside of the jurisdiction of the United States”; it is
otherwise silent. It does not require the agency to only consider conservation
efforts within the United States; nor does it prohibit consideration of foreign nation
efforts in protecting a species. It also does not conflict with the ESA, which
expressly requires the Secretary to consider foreign nation efforts when making a
listing determination, which then drives the requirement to designate critical habitat
in United States territory. 114 Indeed, the Service is required to consider foreign
nation efforts when designating critical habitat, which, “whether occupied or
unoccupied,” “includ[es] only ‘areas that are indispensable to the conservation of
the endangered [or threatened] species.’” 115 As explained above, “conservation”
AR_NMFS4264).
113

Docket 30 at 28.

114

See 16 U.S.C. § 1533(a)(1), (a)(3)(A), (b)(1)(A).

115

Ctr. for Biological Diversity, 67 F.4th at 1037 (emphasis omitted) (quoting Weyerhaeuser, 586

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requires consideration of when a species would no longer need to be listed as
endangered or threatened—an outcome that also requires “taking into account
those efforts, if any, being made by any State or foreign nation . . . to protect such
species.” 116 Therefore, the Court finds that the Service’s failure to consider foreign
nation conservation efforts when designating the seals’ critical habitats to be
arbitrary and capricious, because it “entirely fail[ed] to consider an important
aspect of the problem.” 117
An “agency must examine the relevant data and articulate a satisfactory
explanation for its action including a ‘rational connection between the facts found
and the choice made.’” 118 Because NMFS failed to consider any foreign nation
efforts to conserve the seals, and because it failed to articulate a satisfactory
explanation for why the entirety of the designated areas in U.S. territory are
indispensable to the seals’ survival and recovery, the Court finds the Service’s

U.S. at 20). See also supra note 95.
50 C.F.R. §§ 424.02, 402.02; 16 U.S.C. § 1533(b)(1)(A). Moreover, the ESA contemplates
conservation of a species globally, without distinction as to a species’ recovery within United
States territory versus outside of United States territory. So, for the Service to consider only a
species’ recovery within United States jurisdiction makes little sense, as a species may have
recovered significantly outside of the United States and yet have relatively few numbers within
United States territory. See, e.g., Ctr. for Biological Diversity, 67 F.4th at 1045 (remanding with
directions to vacate two unoccupied critical habitat designations for the jaguar, explaining that
“any impact to the jaguar related to [one of the units would] be minimal” and that, “[b]ecause
such a small portion of the jaguar’s range occurs in the U.S., it is anticipated that recovery of the
species will rely primarily on actions that occur outside the U.S.”).

116

117

Zinke, 900 F.3d at 1067 (citation omitted).

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

118

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critical habitat designations for the bearded seal and the ringed seal to be arbitrary
and capricious and not in accordance with the law.
II.

Speculation of Presence of Essential Habitat Features
The State asserts that the ESA requires NMFS to identify where the

essential habitat features, previously referred to as Primary Constituent Elements
(“PCEs”), “are found within the larger occupied area to identify the areas that are
critical habitat.” 119 But the State notes that NMFS admitted that “it could not
specifically identify where the sea ice essential features are located because they
‘are dynamic and variable on both spatial and temporal scales.’” 120 The State
maintains that the Service’s analysis “contradicts the express language of the ESA
that critical habitat comprises ‘specific areas’ where ‘physical or biological features’
‘essential to the conservation of the species’ ‘are found.’” 121 In support of its
position, the State cites to Cape Hatteras Access Preservation Alliance v. U.S.
Department of the Interior and asserts that the D.C. District Court in that case
“rejected the agency’s excuses for why it could not ensure the identified essential
features were within the designated areas—including, as in this case, that the
features were ‘dynamic,’ along with lack of data—because its ‘excuses have no

Docket 27 at 27 & n.84 (citing Endangered and Threatened Wildlife and Plants; Regulations
for Listing Species and Designating Critical Habitat, 84 Fed. Reg. 45020, 45023 (Aug. 27, 2019)
(describing abandonment of term “primary constituent elements”)).

119

120

Docket 27 at 27–28 (quoting AR_NMFS4267–68; AR_NMFS4246).

Docket 27 at 28 (emphasis in original) (quoting Home Builders Ass’n of N. California v. U.S.
Fish & Wildlife Serv., 268 F. Supp. 2d 1197, 1216 (E.D. Cal. 2003)).

121

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basis in the statute or in cases.’” 122 The State contends that NMFS “erroneously
focused on whether seals occupy the designated areas, and not on the essential
features, as the statute and agency regulations require.” 123
NMFS responds that it did identify “specific areas that contain one or both
of the sea ice essential features at certain times” and that it “did not speculate but
rather relied on the best scientific data available about the distribution of ice seals
and presence of sea ice during ice seal whelping and nursing activity.” 124 Indeed,
the Cape Hatteras court noted that its holding “might be different if the Service had
discussed observations of specific PCEs at one time and had evidence that the
PCEs, though not always present, would return during the [species’] wintering
season.” 125 To the extent the State asserts that NMFS must identify exactly where
the seals’ essential habitat features “are found” within the seals’ occupied area,
the Court rejects such an argument as “demand[ing] greater scientific specificity
than available data could provide,” given that the sea ice essential features are
dynamic and variable. 126

Thus, the Court finds that the Service adequately

Docket 27 at 28–29 (quoting Cape Hatteras Access Pres. All. v. U.S. Dep’t of the Interior,
344 F. Supp. 2d 108, 122–23 (D.D.C. 2004)).
122

123

Docket 27 at 32.

Docket 31 at 29 (first quoting AR_NMFS4215, AR_NMFS4267; and then citing
AR_NMFS4216, AR_NMFS4268).
124

Cape Hatteras, 344 F. Supp. 2d at 122–23. In addition, the ESA’s implementing regulations
allow for features to “include habitat characteristics that support ephemeral or dynamic habitat
conditions.” 50 C.F.R. § 424.02.

125

See Alaska Oil & Gas, 815 F.3d at 555, 557–58 (holding that FWS need not “designate only
areas containing actual den sites, as opposed to designating areas containing habitat suitable

126

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explained how it identified the areas where the dynamic sea ice essential features
would be found. 127
III.

Failure to Identify Special Management Considerations
The State next contends that “NMFS erred because it did not specify any

special management considerations or protections the designated area may
require in the future.” 128 Pursuant to the ESA, occupied critical habitat may only
be designated if the identified essential habitat features “may require special
management considerations or protection,” 129 which is defined as “[m]ethods or
procedures useful in protecting the physical or biological features essential to the
conservation of listed species.” 130 The State maintains that, while NMFS identified
four “‘sources of potential threats’: climate change, oil and gas exploration, marine
shipping and transportation, and commercial fisheries[,] . . . the agency failed to
discuss what measures may be necessary to protect the essential features from
those threats.” 131 In addition, the State asserts that, because “the seals’ habitat
for denning”).
This is not to say, however, that it was proper for the Service to designate as critical habitat
the entire areas that it did simply because those areas had the potential to contain sea ice
essential features. As discussed above, the Service must still explain why those entire areas
are indispensable to the seal species’ conservation.
127

128

Docket 27 at 33.

129

16 U.S.C. § 1532(5)(A)(i).

130

50 C.F.R. § 424.02.

Docket 33 at 21 (quoting AR_NMFS4269–72; AR_NMFS4218–20). Citing to Cape Hatteras,
the State also maintains that NMFS failed to “discuss how each identified PCE . . . would need
management or protection.” Docket 27 at 34 (emphasis in original) (quoting 344 F. Supp. 2d at
124). However, as CBD points out, the agency in Cape Hatteras “entirely failed to identify
131

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will be protected through existing regulatory mechanisms, including ESA Section
7 [consultation] and Section 101(a) of the Marine Mammal Protection Act
(‘MMPA’),” “no special management considerations or protections are needed to
protect the seals’ habitat.” 132

The State maintains that the designated area

consequently “fails to meet the ESA’s two-part definition of critical habitat.” 133
The Court disagrees. The ESA’s requirement to determine that essential
habitat features “may need special management considerations or protection” is a
“relatively minor legal hurdle imposed by this section of the statute.” 134 “[T]he
Service does not have to identify the source of such considerations or protection,
merely that the considerations or protection may be necessary in the future.”135
Moreover, “[i]n the context of the special management or protection analysis, the
existence of alternative protections or programs does not excuse FWS from
designating critical habitat.” 136 Here, NMFS adequately determined that the seals’

features that may require special management considerations or protections, mentioning the
statutory requirement only briefly in response to a comment and ‘passing . . . it [over] without
analysis of any kind.’” Docket 30 at 37 (quoting 344 F. Supp. 2d at 124). Thus, the Court reads
Cape Hatteras to require the agency to identify special management considerations or
protections, as required by the ESA, but not to require the identification of the specific measures
needed to protect essential habitat features from identified threats.
132

Docket 33 at 21–22.

133

Docket 33 at 22.

Ariz. Cattle Growers’ Ass’n v. Kempthorne, 534 F. Supp. 2d 1013, 1031 (D. Ariz. 2008)
(emphasis in original), aff’d sub nom. Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160 (9th
Cir. 2010).

134

Alaska Oil & Gas Ass’n v. Salazar, 916 F. Supp. 2d 974, 991 (D. Alaska 2013), rev’d and
remanded on other grounds sub nom. Alaska Oil & Gas, 815 F.3d 544.

135

136

Alaska Oil & Gas, 815 F.3d at 564 (citing NRDC v. U.S. Dep’t of the Interior, 113 F.3d 1121,

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essential habitat features may need special management considerations or
protections from the four aforementioned potential threats. 137 NMFS specified how
each potential threat may impact essential habitat features, e.g., that greenhouse
gases due to climate change is a major contributing factor to loss of sea ice, and
that use of icebreaking ships in marine shipping and transportation may “pose
greater risks” to sea ice features. 138 Accordingly, the Court rejects the State’s
argument here.
IV.

Failure to Find that Critical Habitat Designation is Prudent
The State asserts that “NMFS erred because it did not make a specific

prudency determination in the final critical habitat rules” and that the “record
supports a not-prudent finding.” 139 The ESA provides that the Secretary, “to the
maximum extent prudent and determinable—shall, concurrently with making a
determination . . . that a species is an endangered or a threatened species,
designate any habitat of such species which is then considered to be critical
habitat.” 140 ESA regulations also provide that “[i]f designation of critical habitat is
not prudent or if critical habitat is not determinable, the Secretary will state the

1127 (9th Cir. 1997)).
137

AR_NMFS4218–20; AR_NMFS4269–72.

138

AR_NMFS4218–20; AR_NMFS4269–72.

139

Docket 27 at 35, 39.

140

16 U.S.C. § 1533(a)(3)(A)(i).

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reasons for not designating critical habitat in the publication of proposed and final
rules listing a species.” 141
However, as Defendants point out, this Court has previously held that there
is no “requirement in the ESA or in its enforcing regulations that obliges the Service
to expressly find, and to so state in the Final Rule, that the designation was prudent
from the outset.” 142 “Generally, the Service’s decision concerning the prudency of
a designation is implied with the continuation and completion of such designation.
In contrast, it is necessary for the Service to expressly justify its actions when it
finds designation to not be prudent, which is not the case here.” 143 Thus, while the
State may disagree with the Service’s findings here, the Court declines to read into
the ESA or its regulations a requirement for an express prudency determination
when making a critical habitat designation.
V.

Failure to Consider Economic Impacts
The ESA requires that NMFS “tak[e] into consideration the economic impact,

the impact on national security, and any other relevant impact, of specifying any
particular area as critical habitat,” and authorizes NMFS to “exclude any area from

141

50 C.F.R. § 424.12(a).

142

See Docket 31 at 42; Docket 30 at 40–41; Salazar, 916 F. Supp. 2d at 996.

Salazar, 916 F. Supp. 2d at 996 (emphasis omitted). And, as CBD notes, the Service
addressed commenters’ concerns regarding the prudency of the designations in the final rules
and found that none of the reasons the commenters offered would lead to a determination that
“a designation would not be prudent.” Docket 30 at 38–39 (citing AR_NMFS4250;
AR_NMFS4307).
143

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critical habitat if [NMFS] determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat.” 144 In this case,
the State and the North Slope Borough requested that specific areas be excluded
pursuant to the ESA. 145
The State maintains that NMFS “erred both in its consideration of the
economic impacts of the seals’ critical habitat designations and whether to exclude
areas from the designations to avoid future resource conflicts.” 146 The State
asserts that the “variety of activities” that NMFS identified that may adversely affect
the seals’ critical habitats—such as oil and gas exploration, development and
production—are also economic activities “critical to the economy of Alaska’s North
Slope and to the State generally,” which the State and the North Slope Borough,
the northernmost borough in Alaska, explained in their comments to NMFS.147
Because of this, “the State urged NMFS to exclude from critical habitat a 20-mile
buffer zone around communities and along the Beaufort Sea coast.” 148 The North
Slope Borough “similarly requested exclusion of a 10-mile buffer zone around all
North Slope villages and all lands conveyed to the Borough or to Alaskan Native

144

16 U.S.C. § 1533(b)(2).

145

See AR_PUB14286–88, AR_PUB14301; AR_PUB14239–40, AR_PUB14539–41.

146

Docket 27 at 41.

Docket 27 at 42 (first quoting AR_NMFS4278-79, AR_NMFS4224–25; then quoting
AR_NMFS4269–72, AR_NMFS4218–20; then citing 16 U.S.C. § 1532(5)(A)(i); and then citing
AR_PUB14284–88, AR_PUB14236-40, AR_PUB14537–40).
147

148

Docket 27 at 42–43 (citing AR_PUB14286–88, AR_PUB14301).

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corporations, along with shipping lanes needed for the transportation of good[s]
and services to and from North Slope communities.” 149 However, NMFS chose to
“not exercis[e] [its] discretion to further consider and weigh the benefits of
excluding any particular area based on economic impacts against the benefits of
designation,” because it “concluded that the potential economic impacts
associated with the critical habitat designation are modest both in absolute terms
and relative to the level of economic activity expected to occur in the affected area,
which is primarily associated with oil and gas activities that may occur in the
Beaufort and Chukchi seas.” 150
Defendants contend that NMFS met its responsibilities here by “prepar[ing]
exhaustive Impact Analysis Reports” 151 and “[u]sing the ‘baseline’ approach
endorsed by the Ninth Circuit,” which allows assessment of “the incremental
impacts attributable to the critical habitat designation relative to a baseline that
reflects existing regulatory impacts in the absence of the critical habitat.” 152 The

149

Docket 27 at 43 (citing AR_PUB14239–40, AR_PUB14540).

150

AR_NMFS4223; AR_NMFS4274.

151

Docket 30 at 45 (citing AR_NMFS3913; AR_NMFS4065).

Docket 31 at 44 (first quoting AR_NMFS4221, AR_NMFS4272; and then citing Ariz. Cattle
Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1173 (9th Cir. 2010)). NMFS explained that “the
direct incremental costs of th[e] critical habitat designation[s] are expected to be limited to the
additional administrative costs of considering [the seals’] critical habitat[s] in future section 7
consultations.” Referencing its Final Impact Analysis Reports, the Service calculated the total
“the total incremental costs associated with th[e] critical habitat designation[s] over the next 10
years, in discounted present value terms,” at “an annualized cost of $74,900 at both a 7 percent
and a 3 percent discount rate” for the bearded seal and “an annualized cost of $95,000 at both a
7 percent and a 3 percent discount rate” for the ringed seal. NMFS also noted that
approximately 81 percent of these incremental costs for the bearded seal and 83 percent of the

152

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State does not challenge NMFS’s use of the baseline approach, but responds that
the critical habitat designation provides “no additional regulatory protection”
because the seals’ habitat is already protected under the Marine Mammal
Protection Act and the ESA § 7 “jeopardy” analysis. 153 The State maintains that,
if there are no additional benefits from critical habitat designation, then NMFS
“failed to properly consider the exclusion of areas from critical habitat” and, “[a]t a
minimum, should have excluded the areas along Alaska’s North Slope as
requested by Alaska.” 154
The ESA provides that the Secretary “may exclude any area from critical
habitat if he determines that the benefits of such exclusion outweigh the benefits
of specifying such area as part of the critical habitat.” 155 While the statute “requires
the Secretary to consider economic impact and relative benefits before deciding
whether to exclude an area from critical habitat or to proceed with designation,”
the statute is “not ‘drawn so that a court would have no meaningful standard

costs for the ringed seal are “associated with oil and gas activities in the Chukchi and Beaufort
seas and adjacent onshore areas.” AR_NMFS4222-23; AR_NMFS4274.
Docket 33 at 29, 31. The Court notes, however, that the ESA § 7 consultation regarding
adverse modification to critical habitat is a separate, if overlapping, benefit with the ESA § 7
jeopardy analysis that NMFS identified and discussed in the final rules. See 16 U.S.C. §
1536(a)(2) (providing that “[e]ach federal agency shall, in consultation with . . . the Secretary,
insure that any action authorized, funded, or carried out by such agency . . . is not likely to
jeopardize the continued existence of any endangered species or threatened species or result in
the destruction or adverse modification of [the critical] habitat of such species” (emphasis
added)); AR_NMFS4221; AR_NMFS4273.
153

154

Docket 33 at 33.

155

16 U.S.C. § 1533(b)(2).

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against which to judge the [Secretary’s] exercise of [his] discretion’ not to
exclude.” 156 Whether an agency “ignored some costs and conflated the benefits
of designating [critical habitat] with [other] benefits . . . is the sort of claim that
federal courts routinely assess when determining whether to set aside an agency
decision as an abuse of discretion under [5 U.S.C.] § 706(2)(A).” 157
Given the Service’s lack of explanation for why the entire 160-million-plus
acres it designated as critical habitat for the seals is essential to their conservation,
the Court also finds that NMFS abused its discretion in deciding not to consider
exclusion of any areas from critical habitat, including its decision to not consider
exclusion of a “20-mile buffer zone around communities and along the Beaufort
Sea coast” as requested by the State, and “a 10-mile buffer zone around all North
Slope villages and all lands conveyed to the Borough or to Alaskan Native
corporations, along with shipping lanes needed for the transportation of good[s]
and services to and from North Slope communities,” as requested by the North
Slope Borough. 158 If “the primary benefit of a critical habitat designation” is the
ESA § 7 consultation requirement regarding adverse modification to critical

Weyerhaeuser, 586 U.S. at 25 (first citing 16 U.S.C. § 1533(b)(2); and then quoting Lincoln v.
Vigil, 508 U.S. 182, 191 (1993)).

156

Id. (citing Judulang v. Holder, 565 U.S. 42, 53 (2011) (“When reviewing an agency action, we
must assess . . . whether the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” (internal quotation marks omitted))).

157

Docket 27 at 42–43 (first citing AR_PUB14286–88, AR_PUB14301; and then citing
AR_PUB14239–40, AR_PUB14540).

158

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habitat—a requirement which “overlap[s] [with the already existing] requirement
that Federal agencies ensure that their actions are not likely to jeopardize the
species’ continued existence” 159—then NMFS should have considered whether a
seemingly minor increase in “the benefits of specifying such area as part of the
critical habitat” is outweighed by “the benefits of . . . exclusion,” which may include
economic benefits for the State and residents on the North Slope of Alaska. 160
VI.

Remedy
The Ninth Circuit has held that remand without vacatur should be ordered

only in “limited circumstances” where “equity demands” doing so. 161

“When

determining whether to leave an agency action in place on remand, [a court]
weigh[s] the seriousness of the agency’s errors against ‘the disruptive
consequences of an interim change that may itself be changed.’” 162 Given that the
Service determined that “[t]he primary impacts of a critical habitat designation [for
both seal species] arise from the ESA section 7(a)(2) requirement that Federal
agencies ensure that their actions are not likely to result in the destruction or
adverse modification of critical habitat,” which “overlap[s] [with the already existing]

159

AR_NMFS4221; AR_NMFS4273.

160

16 U.S.C. § 1533(b)(2).

Pollinator Stewardship Council v. EPA, 806 F.3d 520, 532 (9th Cir. 2015) (citations omitted)
(collecting cases where courts remanded without vacatur because vacatur would, for example,
risk potential extinction of snails or lead to air pollution).

161

Id. (citation omitted); see also Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d
146, 150–51 (D.C. Cir. 1993).

162

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requirement that Federal agencies ensure that their actions are not likely to
jeopardize the species’ continued existence,” 163 the Court finds that any
consequences of an interim change are not so disruptive as to warrant leaving the
designations in place. Accordingly, the Court remands with vacatur.
CONCLUSION
In light of the foregoing, IT IS ORDERED that the State’s request for
declaratory and injunctive relief at Docket 27 is GRANTED in part and DENIED in
part as set forth herein. The Court VACATES the Service’s final rules designating
critical habitat for the bearded seal of the Beringia DPS and the Arctic ringed seal
and REMANDS to the agency for further proceedings consistent with this order.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 26th day of September 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

163

AR_NMFS4221; AR_NMFS4273.

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Appendix 1

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Appendix 2

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