The National Marine Fisheries Service looked too far into the future when it listed the Beringia Distinct Population Segment of the bearded seal as threatened, a federal judge decided July 25 (Alaska Oil and Gas Ass’n v. Pritzker, 13-18-RRB, D. Alaska).
In a decision that quoted extensively from the Dec. 28, 2012, listing rule, U.S. District Judge Ralph R. Beistline said NMFS had failed to identify threats to the Alaska-based seal that were immediate enough. Instead of simply looking at the “foreseeable future,” as required by the ESA, the judge inserted an adverb — “reasonably.”
Bearded seal (Photo by NMFS). “Based on the best available scientific data, we have concluded that it is highly likely that sea ice will decrease substantially within the range of the Beringia DPS in the foreseeable future, particularly in the Bering Sea,” the service said in its final listing rule.
“This decision is a win for science,” AOGA President and CEO Kara Moriarty said. “Throughout this process, AOGA has maintained that no scientific evidence exists to link climate change now or in the future to adverse effects on these species.”
Here’s the conclusion of Beistline’s 32-page opinion, which mistakenly refers to the seal as being “endangered,” when in fact it was listed as threatened, along with the Okhotsk DPS of the subspecies. Beistline did not address the Okhotsk DPS, although its listing also was challenged.
After reviewing the voluminous record and applicable case law, the court has determined that the action of NMFS in listing the Beringia DPS of bearded seals was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In particular, with respect to two factors: (1) the lack of any articulated discernable [sic], quantified threat of extinction within the reasonably foreseeable future; and (2) the express finding that, because existing protections were adequate, no further protective action need be taken at this time. Listing the Beringia DPS as “endangered” had no effect except to require all federal agencies to consult with NMFS before carrying out any action that might jeopardize the continued existence of the Beringia DPS throughout its range. A listing under the ESA based upon speculation, that provides no additional action intended to preserve the continued existence of the listed species, is inherently arbitrary and capricious. (emphasis added)
In a footnote, Beistline clarified his finding.
“This court is not holding that the use of projections that extend out more than 50 years is impermissible in all cases. The Court’s holding today is limited to the facts presented in the record before it, i.e., that an unknown, unquantifiable population reduction, which is not expected to occur until nearly 100 years in the future, is too remote and speculative to support a listing as threatened. If it were to hold otherwise, such a holding could logically render every species in the arctic and sub-arctic areas potentially ‘threatened.’ “
Beistline said he found it “troubling” that the listing rule does not elucidate “any serious threat of a reduction in the population of the Beringia DPS, let alone extinction, … prior to the end of the 21st century. Indeed, the listing rule itself concedes that, at least through mid-21st century, there will be sufficient sea-ice to sustain the Beringia DPS at or near its current population levels. Indeed, with respect to the second half of the century it appears that no significant threat to the Beringia DPS is contemplated before 2090. Even as to that date, NMFS acknowledges that it lacks any reliable data as to the actual impact on the bearded seal population as a result of the loss of sea-ice. Under the facts in this case, forecasting more than 50 years into the future is simply too speculative and remote to support a determination that the bearded seal is in danger of becoming extinct.”
On another issue, the judge said he could “sever” the challenge to the Okhotsk DPS from the challenge to the Beringia DPS. He said the state could not standing for that DPS.
“Reduced to its essence, the state’s argument is that it has an interest in ensuring that NMFS complies with the law,” Beistline said. “The fatal flaw in the state’s position is that it would confer standing to challenge almost every decision made by a federal agency. The generalized interest advanced by the State is insufficient to confer standing under the standard laid down in Lujan. The court therefore concludes that plaintiffs have not set forth sufficient evidence of standing as to the Okhotsk DPS of bearded seals.”
Beistline also said NMFS did not adequately respond to comments from the state on the proposal. The ESA requires that FWS and NMFS must respond to state comments separately from their response to comments in their final rules.
More excerpts from the decision:
It is indisputable that a listing as a threaten [sic] species has a chilling effect on the extent of the scope and nature of human interaction with that species.
Plaintiffs raise several alleged errors: (1) a failure to link its sea-ice projections to habitat changes, biological functions, and population changes; (2) improper use and application of the “foreseeable future” (specifically, a significant and allegedly unsupported change in the reliability of projecting 100 years into the future instead of 50); (3) failure to adequately respond to the State’s comments; (4) uncertainty and lack of adequate information to support the listing, specifically the lack of available information/data to reasonably determine either an extinction threshold or whether such a threshold would be reached; and (5) an unexplained change from the initial draft that did not list the Beringia DPS as threatened.
[Plaintiffs] cite no authority that a species cannot be added to, or removed from, a proposed listing during the rule making process. Nor, for that matter, has independent research by the court discovered any such authority.
NMFS argues that it responded to each of the state’s comments in either its direct response to the state’s comments or in the listing rule itself. As the state notes, in rejecting the argument that responding in the listing rule was sufficient, this court itself recently held:
First, it is clear from the fact that Congress established a separate procedure to respond to state agency comments, as opposed to comments from other affected parties, that Congress envisioned a separate duty on the part of the Service to specifically respond to those state comments not adopted in a final rule. Indeed, the statute clearly requires that after a final rule is issued, the Service must provide a separate written justification to the state agency responsible for the comments not used in the final rule. Thus, the service’s statement that adequate responses to the State’s unused comments could be found in part in the final rule itself is directly contrary to ESA procedure. By not including in the response letter all its responses to the State’s comments not ultimately included in the final rule, the Service did not fulfill its response obligations under the ESA.
NMFS has not cited any controlling authority that this court’s earlier decision is erroneous, nor has it advanced any compelling argument that the court should reverse itself. Accordingly, this court holds that it does not appear that NMFS adequately responded to the state’s comments.
As noted above, what constitutes the “foreseeable future” is determined by the agency on a case-by-case basis. Reduced to its essence, the argument advanced by plaintiffs is that NMFS should not have considered the effect on the Beringia DPS beyond 50 years. The court has reviewed the authorities cited by the plaintiffs and finds them either inapposite or not controlling on the issue. Likewise, this court finds that the recent polar bear case decided by the D.C. Circuit relied upon by NMFS is also inapposite. In that case, although the Fish and Wildlife Service reviewed models projecting climate and ice changes over periods of 45, 75 and 100 years, the challenged listing was based upon a 45-year period, which the District Court specifically found was not too long. Independent research by the court has not revealed any case in which a listing of threatened was based upon a time period that exceeded 50 years. Thus, in that respect this court is writing on a clean slate.
Alaska Oil and Gas Association press release
Alaska Dispatch News (Yereth Rosen)
Alaska Native News
Ringed, ribbon, spotted and bearded ice seals (NMFS page) | Stock assessment reports
Bearded, ringed and spotted seals (Center for Biological Diversity, which petitioned to list the seals and intervened in the litigation)
Solicitor opinions (DOI)
Polar bear listing opinion (D.C. Circuit, 3/1/2013)