## Facts

- Environmental organizations challenged the U.S. Fish and Wildlife Service’s failure to designate critical habitat for the northern spotted owl after the species was listed as threatened under the Endangered Species Act (ESA).
- After earlier litigation, the Service proposed (1989) and finalized (1990) a rule listing the owl as “threatened,” but declined to designate critical habitat.
- The Service stated critical habitat was “not determinable” and deferred designation, without explaining why designation could not be made, what analyses had been performed, or what information was missing.
- Plaintiffs sought summary judgment and an order compelling critical-habitat designation, alleging violations of the ESA and the Administrative Procedure Act (APA).

## Issues

1. Whether the ESA requires the Service to designate critical habitat concurrently with listing a species as threatened, absent a supported finding that designation is “not prudent” or “not determinable.”
2. Whether the Service’s deferral of critical-habitat designation as “not determinable,” without a reasoned and record-supported explanation, was arbitrary and capricious under the APA.

## Decision

- The court granted plaintiffs’ motion for summary judgment.
- The court held the Service violated the ESA by failing to designate critical habitat concurrently with the owl’s threatened listing, absent a valid exception.
- The court found the “not determinable” justification inadequately explained and unsupported by the administrative record, rendering the deferral arbitrary and capricious under the APA.
- The court ordered the federal defendants to proceed with critical-habitat designation and to submit a plan and timetable for completing the designation process.

## Legal Principles

- ESA § 4 requires the Secretary, to the maximum extent prudent and determinable, to designate critical habitat concurrently with listing a species as endangered or threatened.
- The “not determinable” exception is limited and must be justified under the agency’s regulatory standards with a concrete explanation of why required analyses cannot be completed and what information is lacking.
- Under the APA, agency action is arbitrary and capricious if the agency fails to examine relevant data and provide a reasoned explanation connecting the record to its decision.
- ESA determinations must be made using the best scientific and commercial data available; an unexplained failure to use available information weighs against a deferral.

## Conclusion

The court enforced the ESA’s requirement that critical habitat be designated at the time of listing unless the agency makes a supported, reasoned finding that an exception applies, and it compelled the Service to move forward with critical-habitat designation after finding the agency’s deferral arbitrary and capricious.


N. Spotted Owl v. Lujan, 758 F. Supp. 621 (W.D. Wash. 1991)