Ctr. For Biological Diversity v. USFWS, Et Al

U.S. Fish & Wildlife must designate any habitat as critical only if it is essential to species conservation. Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 368 (2018). FWS acted “arbitrarily and capriciously” by designating two tracts of land as critical habitat when they relied on two irrelevant photographs of a single transitory jaguar and speculated that a jaguar may use the land for travel.

Intervenor Rosemont applied to build a copper mine near protected jaguar habitat. U.S. Fish and Wildlife (FWS) approved, and Center for Biological Diversity (Center) challenged. Rosemont intervened, arguing that FWS improperly applied the Endangered Species Act (ESA) by designating Unit 4 and Subunit 4b as protected habitat. The District Court found that Unit 4 was improperly protected but Subunit 4b was properly protected. FWS and Rosemont appealed. 

Empowered by 16 U.S.C. §§ 1533(a)(3)(A)(i) and 1532(5)(A), FWS must designate any habitat as critical only if it is essential to species conservation. Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 368 (2018). The habitat may be occupied or unoccupied by the threatened species. Ariz. Cattle Growers’ Ass’n, 606 F.3d at 1165. 

The Court found that FWS acted “arbitrarily and capriciously” in designating Unit 3 as critical occupied habitat when they relied on two “irrelevant” photographs of a single transitory jaguar and when they designated Subunit 4b as critical unoccupied habitat based on speculation that jaguars may use it for travel despite the existence of other protected travelways. 

The Court held that the district court correctly vacated the occupied critical habitat designation of Unit 3 but erred in upholding the unoccupied critical habitat designations of Subunit 4b. 

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.