952 F.3d 1216
10th Cir.2020Background
- In 2014 the U.S. Fish and Wildlife Service designated 764,207 acres in AZ and NM as critical habitat for the jaguar, divided into six units; Units 5 (Peloncillo) and 6 (San Luis) are at issue.
- Jaguar (Panthera onca) was listed as a foreign endangered species under the ESCA in 1972; domestic populations were explicitly listed in 1997.
- The Service relied on undisputed Class I sightings (1962–2013) and expert reasoning about jaguar rarity/detectability to conclude Units 5 and 6 "may have been occupied" at the time of listing and therefore labeled them occupied; it also provided an alternative unoccupied-habitat rationale.
- The district court found the occupied finding unsupported but upheld the designation based on the Service’s unoccupied-habitat determination; plaintiffs appealed.
- The Tenth Circuit held (1) the relevant listing date for occupancy is 1972 (the species-level listing), (2) the occupied-habitat finding for Units 5 and 6 was arbitrary and capricious, and (3) the Service also violated its own pre-2016 regulation (50 C.F.R. § 424.12(e) (2013)) by designating unoccupied habitat without first finding occupied-area designation inadequate, and therefore reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which listing date governs occupancy inquiry (1972 ESCA listing vs. 1997 domestic listing)? | Use 1997 (domestic listing date). | Use 1972: species (Panthera onca) was listed throughout its range then. | 1972 governs; species-level listing date controls. |
| Were Units 5 & 6 "occupied" at time of listing (1972)? | Not occupied—no Class I records 1962–1982; later sightings insufficient. | May have been occupied—jaguars are rare/cryptic, later Class I sightings and lack of early survey effort support inference. | Service’s occupied finding is speculative and not supported by substantial evidence; arbitrary and capricious. |
| Did the Service lawfully designate Units 5 & 6 as unoccupied critical habitat under § 424.12(e) (2013)? | Service failed to show that designation limited to occupied areas would be inadequate before designating unoccupied areas. | Agency treated alternative unoccupied rationale as sufficient; relied on conservation rationale and deference. | Service violated its own regulation (pre-2016 § 424.12(e)) by not first finding occupied-area designation inadequate; designation arbitrary and capricious. |
| Must the Service identify a recovery endpoint or may "secondary/marginal" habitat be deemed essential? | Service must identify the point of recovery; marginal units cannot be "essential." | No recovery-endpoint identification required; secondary/marginal areas can be essential to conservation. | ESA does not require identifying a recovery endpoint when designating critical habitat; secondary/marginal habitat can be essential. |
Key Cases Cited
- N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001) (standard of APA review of Service actions under the ESA)
- Colo. Wild v. U.S. Forest Serv., 435 F.3d 1204 (10th Cir. 2006) (definition of substantial evidence and deference to agency scientific expertise)
- Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (contextual, fact-dependent definition of "occupy")
- Ctr. for Native Ecosystems v. Cables, 509 F.3d 1310 (10th Cir. 2007) ("conservation" encompasses recovery)
- Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152 (10th Cir. 2002) (agencies must follow their own regulations or rationally explain departures)
- Cherokee Nation of Okla. v. Norton, 389 F.3d 1074 (10th Cir. 2004) (agency compliance with regulations is required under the APA)
- Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452 (5th Cir. 2016) (interpretation of pre-2016 regulation requiring occupied-area inadequacy finding before designating unoccupied habitat)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and conditions on deference to agencies’ interpretations of their own regulations)