CTR. FOR BIOLOGICAL DIVERSITY V. USFWS, ET AL, No. 20-15654 (9th Cir. 2023)
Annotate this Case
Rosemont Copper Company (Rosemont) challenged the U.S. Fish and Wildlife Service’s (FWS) designation of certain areas in southern Arizona as critical habitat for jaguar under the Endangered Species Act (ESA). Rosemont sought to develop a copper mine and related processing facilities in the area. The Center for Biological Diversity (Center) sued after the FWS concluded that Rosemont’s proposed mine project would not destroy or adversely modify the designated critical habitat. Rosemont intervened and filed crossclaims against the FWS. The district court concluded that the FWS erred in designating occupied critical habitat because the record did not establish that jaguar occupied this area when this species was listed as endangered. But it upheld the FWS’s designation of this same area and an adjacent area as unoccupied critical habitat. The district court also granted summary judgment in favor of the Center.
The Ninth Circuit reversed the grant of summary judgment in favor of the FWS, vacated the grant of summary judgment in favor of the Center, remanded with instructions for the district court to vacate the FWS’s critical-habitat designations, and remanded to the agency for further proceedings. The panel held that because the FSW did not comply with Section 424.12(e) its designation of Unit 3 and Subunit 4b as unoccupied critical habitat was arbitrary and capricious. The panel concluded that the FWS did not provide a rational connection between the facts found and the choice made, or articulate a satisfactory explanation to justify its designations of Unit 3 and Subunit 4b as unoccupied critical habitat.
Court Description: Environmental Law. In a case in which intervenor Rosemont Copper Company challenges the U.S. Fish and Wildlife Services’s (FWS) designation of certain areas in southern Arizona as critical habitat for jaguar under the Endangered Species Act (ESA), the panel affirmed the district court’s vacatur of the FWS’s designation of the challenged area as occupied critical habitat; reversed the district court’s grant of summary judgment in favor of the FWS regarding its designation of that same area and of Subunit 4b as unoccupied critical habitat; vacated the grant of summary judgment in favor of the Center for Biological Diversity (Center); and remanded with directions that the case be returned to the agency for further proceedings.
This litigation was initiated by the Center after the FWS concluded that Rosemont’s proposed mine project would not destroy or adversely modify the designated critical habitat. Rosemont intervened and filed crossclaims against the FWS, arguing that certain of its critical-habitat designations for the jaguar violated the Administrative Procedures Act (APA) and the ESA. This case concerns only Unit 3, which covers 351,501 acres and spans several counties and mountain ranges, including the Santa Rita Mountains; and Subunit 4b, which covers 12,710 acres and is a corridor connecting the Whetstone Mountains and the Santa Rita Mountains.
The FWS argued that the district court erred in rejecting the FWS’s designation of Unit 3 as occupied critical habitat, and Rosewood argued that the district court erred in upholding the FWS’s designation of Unit 3 and Subunit 4b as unoccupied critical habitat because the standard the FWS used was something less demanding than essential for the conservation of species. First, the panel held that the only plausible construction of “essential” in the ESA’s definition of “critical habitat” is area that is indispensable or necessary to conservation, not merely beneficial to such efforts. Second, the panel considered whether the FWS’s critical habitat designations of Unit 3 and Subunit 4b were proper. Because the FWS designated the northern Santa Rita Mountains as occupied critical habitat based on irrelevant photographs from decades after the jaguar was listed as endangered and a single timely sighting from a different mountain range, the panel affirmed the district court’s conclusion that the FWS’s challenged occupied critical- habitat designation was arbitrary and capricious.
Next, the panel addressed Rosemont’s argument that the FWS failed to follow its regulation governing unoccupied critical-habitat designations. This court discussed the operative version of 50 C.F.R. § 424.12(e) in Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015). The FWS and the Center argued that Bear Valley foreclosed Rosemont’s argument that the FWS erred by not sequentially considering both adequacy and essentiality. The panel held that imposing a sequential analysis to determine whether designation of unoccupied critical habitat is proper does not violate Bear Valley, which acknowledged both the inadequacy-of-occupied-habitat and essentiality-of- unoccupied-habitat requirements and upheld the FWS’s challenged designation where these requirements were both met. Because the panel concluded that Bear Valley did not displace the agency’s interpretation of Section 424.12(e), the panel considered whether the FWS’s designation of Unit 3 and Subunit 4b as unoccupied critical habitat complied with Section 424.12, as interpreted by the agency.
The panel held that because the FSW did not comply with Section 424.12(e) by addressing whether designated occupied critical habitat was adequate to address conservation goals, its designation of Unit 3 and Subunit 4b as unoccupied critical habitat was arbitrary and capricious. The panel rejected the dissent’s position that the FWS could properly consider the adequacy of areas occupied at the time of designation not just the time of listing in deciding whether designation of unoccupied areas was essential. The panel agreed with the Tenth Circuit that the governing version of Section 424.12 required the FWS to consider a species range at the time of listing because any other reasoning would be inconsistent with the ESA. The panel held further that even if the FWS should consider whether areas occupied at the time of designation, rather than listing, were inadequate to conserve the species, the FWS’s analysis still fell short because it did not explain why the areas that it found were occupied when it made its unoccupied critical habitat designations were inadequate to conserve the jaguar. The panel concluded that the FWS did not provide a rational connection between the facts found and the choice made, or articulate a satisfactory explanation to justify its designations of Unit 3 and Subunit 4b as unoccupied critical habitat.
Finally, Rosemont challenged the district court’s refusal to remand for reconsideration of the FWS’s economic- impact analysis. The panel held that Rosemont had not waived this issue. Rosemont’s argument that the FWS needed to revisit its economic-impact analysis became relevant only after the district court concluded that the FWS used the wrong standard in determining that Rosemont’s Mine would not adversely affect the designated critical habitat and remanded for the FWS to reconsider that issue. Thus, it was not improper for Rosemont to raise the argument for the first time on appeal. The panel held, however, that directing the FWS to reconsider its economic- impact analysis was premature at this point.
The panel concluded that it need not reach whether the FWS violated the APA in concluding that Rosemont’s Mine would not adversely modify the Unit 3 and Subunit 4b critical-habitat designations, which the Center argued in its motion for summary judgment.
Concurring in part and dissenting in part, Judge H.A.
Thomas agreed with the majority that the district court correctly vacated the FWS’s designation of Unit 3 as occupied critical habitat. She also agreed it would be premature to vacate the FWS’s economic-impact analysis. She dissented from the majority’s holding that the district court erred in upholding the FWS’s designation of Unit 3 and Subunit 4b as unoccupied critical habitat. She would hold that, when considered as a whole, the record amply supported the FWS’s determination that habitat within the United States—and the designated units in particular—were critical to the conservation of the jaguar as it faces threats elsewhere in its range.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.