Ruling could restrict US agencies’ ability to protect habitat

The U.S. Fish & Wildlife Service’s designation of a 62,000-acre southern Arizona site as critical habitat for jaguars was “arbitrary and capricious,” a 9th U.S. Circuit Court of Appeals ruled Wednesday. The court’s decision may restrict federal agencies’ ability to classify land as critical habitats for endangered species moving forward.

Represented at the appellate level by attorneys at Gibson, Dunn & Crutcher LLP, intervenor Rosemont Copper Company is developing a mining project in Pima County, where the designated site is located. A lawsuit was initially filed by the Center for Biological Diversity after the Fish and Wildlife Service approved Rosemont’s proposal to develop a mining project in critical jaguar habitat as classified by the Endangered Species Act.

Attorneys for Rosemont then filed crossclaims alleging that the federal agency erroneously categorized the territory as critical habitat. Gibson Dunn partner Julian W. Poon argued on behalf of Rosemont at the appellate level. He declined to comment.

The majority opinion was written by 9th Circuit Judge Danielle J. Forrest, an appointee of President Donald Trump.

“This is a disappointing decision that puts endangered jaguars at risk,” Marc Fink, an attorney at the Center for Biological Diversity, said in a statement Wednesday. “There’s documented evidence of a jaguar in the [area] as recently as 2015, including at the site of the proposed Rosemont mine.”

The attorney added that his team “will do everything possible to keep this critical habitat protected” for the area’s wildlife.

The panel affirmed U.S. District Judge James A. Soto’s vacatur of the Fish and Wildlife Service’s designation of the challenged area as occupied critical habitat and reversed his decision to allow the area to remain designated as unoccupied critical habitat, concluding that the land met neither the requirements under the Endangered Species Act nor the federal agency’s requirements to be listed as critical habitat.

9th Circuit Judges Sandra S. Ikuta and Holly A. Thomas also vacated the court’s summary judgment in favor of the Center for Biological Diversity.

Thomas, an appointee of President Joe Biden, partially dissented from her colleagues that the lower court incorrectly categorized the land as unoccupied critical habitat.

“When considered as a whole, the record amply supports the [U.S. Fish and Wildlife Service’s] determination that habitat within the United States — and the designated units in particular — are critical to the conservation of the jaguar as it faces threats elsewhere in its range,” she wrote. Center for Biological Diversity v. U.S. Fish and Wildlife Service, 2023 DJDAR 4383 (9th Circ., filed Apr. 14, 2020).