Law, Business and Society 11th Edition by Tony McAdams

Exercise 17

Judge Betty B. Fletcher
Litigation History
In 1993 the Mexican Spotted Owl was listed as a threatened species under the Endangered Species Act ("ESA"). The listing decision prompted a series of lawsuits alternately seeking to compel the FWS [U.S. Fish and Wildlife Service] to designate critical habitat for the owl and, following the FWS's designation of habitat, attacking that designation.
The first such lawsuit was in 1995 to compel the FWS to designate critical habitat and resulted in the FWS's issuing a final rule designating 4.6 million acres of critical owl habitat, a designation that was quickly challenged in court and then revoked in 1998. After another lawsuit was filed to compel the FWS to designate habitat, the FWS proposed a rule in 2000 to designate 13.5 million acres of critical habitat and in 2001 the agency promulgated a final rule that again designated 4.6 million acres. That rule was later struck down and … the FWS reopened the comment period on the rule it proposed in 2000. In 2004 the FWS designated approximately 8.6 million acres of critical habitat. It is this designation, the 2004 Final Rule, that Arizona Cattle challenges in the current action.
Arizona Cattle moved for summary judgment to set aside the 2004 Final Rule.... The District Court rejected Arizona Cattle's arguments….
THE 2004 FINAL RULE
The FWS relied on three types of habitat management areas... as a starting point for the 2004 Final Rule: protected areas, restricted areas, and other forest and woodland types. Protected areas are those areas containing known owl sites, termed Protected Activity Centers ("PACs"); "steep slope" areas meeting certain forest conditions; and legally and administratively reserved lands. "PACs include a minimum of 600 acres... that includes the best nesting and roosting (i.e., resting) habitat in the area... and the most proximal and highly used foraging areas." However, PACs contain only 75% of necessary foraging areas for the owl. Restricted areas include non-steep slope areas with appropriate forest conditions that are "adjacent to or outside of protected areas." "Areas outside of PACs, including restricted areas, provide additional habitat appropriate for foraging."...
THE ESA AND THE DEFINITION OF "OCCUPIED"
The ESA defines a species' critical habitat as... "the specific areas within the geographical area occupied by the species, at the time it is listed…."
The statute thus differentiates between "occupied" and "unoccupied" areas.… [We] face the preliminary issue of what it means for an area to be "occupied" under the ESA.
It is useful to unpack this inquiry into two components: uncertainty and frequency. Uncertainty is a factor when the FWS has reason to believe that owls are present in a given area, but lacks conclusive proof of their presence. Frequency is a factor when owls are shown to have only an intermittent presence in a given area. Occasionally, both factors will play a part in determining whether an area is "occupied." Because the ESA permits only one of two possible outcomes for this inquiry- occupied or unoccupied-... we must determine the scope of the FWS's authority to categorize as "occupied" those areas that may not fit neatly into either pigeonhole.
We have ample guidance on the "uncertainty" issue. The ESA provides that the agency must determine critical habitat using the "best scientific data available." This standard does not require that the FWS act only when it can justify its decision with absolute confidence….
Turning to the "frequency" component, Arizona Cattle asserts that the word "occupied" is unambiguous and must be interpreted narrowly to mean areas that the species "resides in." In the context of the owl, they argue that such areas consist only of the 600-acre PACs. The FWS argues … that where a geographic area is used with such frequency that the owl is likely to be present, the agency may permissibly designate it as occupied. FWS contends that, at a minimum, this includes the owl's "home range" and may include other areas used for intermittent activities.
We cannot agree that "occupied" has an unambiguous, plain meaning as Arizona Cattle suggests. The word "occupied," standing alone, does not provide a clear standard for how frequently a species must use an area before the agency can designate it as critical habitat. Merely replacing the word "occupied" with the word "resides" does not resolve this ambiguity.... Viewed narrowly, an owl resides only in its nest; viewed more broadly, an owl resides in a PAC; and viewed more broadly still, an owl resides in its territory or home range. Determining whether a species uses an area with sufficient regularity that it is "occupied" is a highly contextual and fact-dependent inquiry.... Such factual questions are within the purview of the agency's unique expertise and are entitled to the standard deference afforded such agency determinations.
* * * * *
The FWS has authority to designate as "occupied" areas that the owl uses with sufficient regularity that it is likely to be present during any reasonable span of time. This interpretation is sensible.... Arizona Cattle's "reside in" interpretation would make little sense as applied to nonterritorial, mobile, or migratory animals-including the owl-for which it may be impossible to fix a determinate area in which the animal "resides." Such a narrow interpretation also would mesh poorly with the FWS's authority to act in the face of uncertainty.
* * * * *
It is possible for the FWS to go too far. Most obvious is that the agency may not determine that areas unused by owls are occupied merely because those areas are suitable for future occupancy. Such a position would ignore the ESA's distinction between occupied and unoccupied areas.... The fact that a member of the species is not present in an area at a given instant does not mean the area is suitable only for future occupancy if the species regularly uses the area.
Having thus framed the inquiry, we turn to the primary issue before the court: whether the FWS included unoccupied areas in its critical habitat designation.
THE FWS DID NOT DESIGNATE UNOCCUPIED AREAS AS CRITICAL HABITAT
* * * * *
... PACs are explicitly defined with reference to frequent owl presence, and non-PAC protected areas and restricted areas are "devised around" and "adjacent to" PACs. More to the point, we note significant record support for owl occupancy of these areas in the form of studies correlating the habitat characteristics of protected and restricted areas with owl presence.
The agency did not stop there. [Its] analysis proceeds, unit by unit, through the addition of areas to the critical habitat proposal on the basis of information about known owl locations....
A point of recurring significance to our analysis is that PACs reflect only known owl sites. Although the 2004 Final Rule identified 1,176 PACs, owl populations have been estimated to be significantly greater than the maximum 2,352 owls reflected by this number of PACs…. Efforts by the FWS to identify other evidence of owl presence when it is unable to fix the location of a PAC with certainty are, therefore, highly significant.
Even more significant is the fact that the FWS excluded areas with evidence of few or no owls…. Finally, we note that... the FWS excluded the vast majority of critical habitat units that contained no PACs and refined the boundaries of the critical habitat units to exclude large areas that are distant from PACs.
The FWS's process for designating critical habitat gives us a strong foundation for our conclusion that the agency did not arbitrarily and capriciously treat areas in which owls are not found as "occupied."...
THE AMOUNT OF LAND DESIGNATED IS NOT DISPROPORTIONATE TO THE NUMBER OF OWLS
Arizona Cattle also argues that even using the owl's substantially larger home range as the appropriate measure for the territory occupied by the owl, the FWS has designated a grossly disproportionate amount of land compared to the amount the owl occupies. It ties this argument to a seemingly simple calculation: multiplying the 1,176 PACs by the maximum estimated home range size of the owl of 3,831 acres, the resultant area is only approximately 4.5 million acres, in contrast to the 8.6 million acres designated. This calculation, however, rests on a faulty assumption that the PACs represent all extant owls. We have already explained that PACs reflect only known owl sites and that there is record support for the existence of substantially greater numbers of owls and undiscovered sites.
... Arizona Cattle's argument does not overcome the strong evidence that the FWS was focused on designating areas occupied by owls.
* * * * *
We find no fault with the FWS's designation of habitat for the Mexican Spotted Owl….
Affirmed.
What was the standard of review that the court applied to the agency's decision?