Steve Davies

Steve Davies is editor and publisher of Endangered Species & Wetlands Report, which he started in 1995. Davies began his professional journalism career as a copy editor for the weekly Gazette Newspapers in Gaithersburg, Md., before becoming a reporter there. He then moved to Carlisle, Pa., covering Cumberland County government for the daily Sentinel. He returned to the Washington area to cover Congress and federal regulatory agencies for a series of trade newsletters before starting his own publication, which is an independent venture. Click LinkedIn for more detail.

Sep 032014

The Ninth Circuit said an energy firm’s non-stormwater discharges of coal into Resurrection Bay in Alaska are prohibited by an EPA multi-sector general permit (Alaska Community Action on Toxics  v. Aurora Energy Services, 13-35709).

Here is the summary provided by the court:

The [9th Circuit] panel reversed the district court’s summary judgment entered in favor of Aurora Energy Services, LLC and Alaska Railroad Corporation in a citizen suit that challenged, pursuant to the Clean Water Act, defendants’ non-stormwater discharges of coal into Resurrection Bay, Alaska.

The panel held that the district court erred in concluding that the Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity – a general permit under the Environmental Protection Agency’s National Pollutant Discharge Elimination System – shielded the defendants from liability under the Clean Water Act for their non-stormwater coal discharges. The panel remanded for further proceedings.

And here’s a quote from the 11-page opinion:

The plain terms of the General Permit prohibit defendants’ non-stormwater discharge of coal. In Part, the General Permit states: “You must eliminate non-stormwater discharges not authorized by an NPDES permit. See Part 1.2.3 for a list of non-stormwater discharges authorized by this permit.” The referenced section (which is actually Part 1.1.3) lists eleven categories of non-stormwater discharge which are “the non-stormwater discharges authorized under this permit.” None of these categories cover defendants’ coal discharge.

Argument coverage

Opinion from ESWR site

Oral argument recording (from 9th Circuit website)

Sep 032014

U.S. District Judge Lawrence O’Neill rejected a request by California irrigators to stop extra flows provided by the Bureau of Reclamation to help prevent a die-off of chinook salmon in the Klamath River (San Luis & Delta-Mendota Water Authority v. Jewell, 13-1232 LJO-GSA, Cal. E.D.).

“[T]he flow augmentation releases are designed to prevent a potentially serious fish die-off from impacting salmon populations entering the Klamath River estuary,” O’Neill said in his Aug. 27 order. “There is no dispute — and the record clearly reflects — that the 2002 fish kill had severe impacts on commercial fishing interests and tribal fishing rights, and that another fish kill would likely have similar impacts.”

The judge issued a similar ruling last year, when the same groups sought to stop increased flows to protect the fish.

“The Court finds that, although Reclamation has not presented an entirely consistent approach to determining the need for [Flow Augmentation Releases], the circumstances justify the planned 2014 FARs as a measure needed to prevent a fish kill that could significantly impact this year’s fall-run Chinook in the lower Klamath.”

Biologists’ principal concern is that the low water levels make the fish more susceptible to an epizootic outbreak of Ich, a fresh-water ciliated protozoan parasite.

In his conclusion, the judge wrote:

The Court concludes that, even though Plaintiffs are likely to (and in all likelihood soon will) succeed on the merits of at least one of their claims against Reclamation in connection with the 2013 FARs, the balance of the harms does not warrant an injunction at this time. Even if the Court were prepared immediately to issue a final ruling on the merits in favor of Plaintiffs, an injunction would not be automatic. The potential harm to the Plaintiffs from the potential, but far from certain, loss of added water supply in 2015 does not outweigh the potentially catastrophic damage that “more likely than not” will occur to this year’s salmon runs in the absence of the 2014 FARs.

In a “Note,” he added:

Federal Defendants are hereby on notice that the Court will view future FARs (and requests to enjoin them) in light of all the circumstances, including the fact that Federal Defendants repeatedly have treated as “emergency” circumstances that appear to merit a consistent, reasoned, policy rationale. All involved deserve a reasonable opportunity to challenge any such rationale, and all interested, including the Court, deserve to be able to give to these issues “the time and attention [they] deserve.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 606 (9th Cir. 2014). Failure to heed this notice may disappoint Defendants in future orders.

Coverage (scroll over for hed)

Eureka Times-Standard (Jeff Barnard, AP, and Will Houston, Times-Standard) (8/27)

Bay Area Indy Media (Dan Bacher) (8/28)

Aug 222014
BuRec is going to release more water to aid returning adult Chinook salmon, the agency announced today. Press release below links to coverage of the decision.
Reclamation News Release Header

Reclamation to Release Additional Water
to Supplement Flows in the Lower Klamath River

Water release from Trinity Reservoir will begin Saturday, Aug. 23, at 7 a.m.;
Public urged to take safety precautions on or near the river while flows are high

REDDING, Calif. – The Bureau of Reclamation will release additional water from Trinity Reservoir to supplement flows in the lower Klamath River to help protect the returning run of adult Chinook salmon. The public is urged to take all necessary precautions on or near the river while flows are high during this period.

“We have determined that unprecedented conditions over the past few weeks in the lower Klamath River require us to take emergency measures to help reduce the potential for a large-scale fish die-off,” said Mid-Pacific Regional Director David Murillo. “This decision was made based on science and after consultation with Tribes, water and power users, federal and state fish regulatory agencies, and others.”

Several recent factors prevalent in the lower Klamath River are the basis for the decision to provide emergency augmentation flows. Reclamation will increase releases from Lewiston Dam beginning at 7 a.m. on Saturday, Aug. 23, from approximately 450 cubic feet per second to approximately 950 cfs to achieve a flow rate of 2,500 cfs in the lower Klamath River.

At 7 a.m. on Monday, Aug. 25, releases from Lewiston Dam will begin increasing to approximately 2,450 cfs to achieve a flow rate of approximately 4,000 cfs in the lower Klamath River. This release from Lewiston Dam will be maintained for approximately 24 hours before returning to approximately 950 cfs and will be regulated at approximately that level as necessary to maintain lower Klamath River flows at 2,500 cfs until approximately Sunday, Sept. 14. River and fishery conditions will be continuously monitored, and those conditions will determine the duration.

“We fully recognize that during this prolonged severe drought, every acre-foot of water is extremely valuable, and we are making every effort to conserve water released for fish health purposes to reduce hardships wherever possible,” added Murillo.

Reclamation will continue to work with NOAA Fisheries and other federal agencies to comply with applicable provisions of the Endangered Species Act and the National Environmental Policy Act.

# # #
Reclamation is the largest wholesale water supplier and the second largest producer of hydroelectric power in the United States, with operations and facilities in the 17 Western States. Its facilities also provide substantial flood control, recreation, and fish and wildlife benefits. Visit our website at


Aug 222014

The Fish and Wildlife Service violated the ESA when it granted an incidental take permit to the state of Montana that would have resulted in the loss of core habitat for the threatened grizzly bear, a federal judge has ruled (Friends of the Wild Swan v. S.M.R. Jewell, 13-61-M-DWM, D. Mont.).

U.S. District Judge Donald Molloy remanded the matter to FWS to conduct an analysis under Section 10 of the ESA. In the meantime, the habitat conservation plan will remain in effect “with the exception of the portion of the plan that abandons secure core grizzly bear habitat in the Stillwater Block. The agency is enjoined from implementing a new management approach regarding grizzly bear habitat in the Stillwater Block until the requirements of the ESA are met.”

Earthjustice announced the decision in a press release today.

“The service has not rationally justified its finding that the approach under the plan constitutes a complete offset—much less a net benefit—such that additional mitigation measures did not even need to be considered,” the judge ruled. “Absent independent investigation into the impracticability of greater mitigation measures, the service’s finding that the plan mitigates take of grizzly bears to the maximum extent practicable is arbitrary and capricious.”

“Despite the limited scientific support for the proposed management approach, the service found mitigation measures under the plan were sufficient, merely asserting that the plan expands the geographic scope of conservation measures and grizzly bears will adapt to changing habitat conditions,” Molloy wrote.

According to Earthjustice’s press release:

While agreeing with the conservation groups regarding the Stillwater Core issues, the judge upheld federal approval of a different portion of the [Department of Natural Resource and Conservation's] plan that authorized increased road construction and logging in habitat for the bull trout, an imperiled native fish species. The judge concluded that federal biologists properly issued DNRC a “take” permit for bull trout based on a state plan to inventory and remediate logging roads that are harming bull trout habitat. The conservationists promised to monitor the state’s implementation of that mitigation program to ensure that the DNRC lives up to its promise to mitigate harms to bull trout.

Aug 152014

The D.C. Circuit Court of Appeals has turned down petitions seeking review of the Federal Energy Regulatory Commission’s decision to allow construction of a compressor station in Minisink, N.Y. (Minisink Residents for Environmental Preservation and Safety v. FERC, 12-1481).

Essentially, the court said it did not have the authority to second-guess FERC, which the court said had made a reasonable decision. In addition, the option favored by the petitioners was more environmentally damaging than the approved project, the court said.

In a footnote, the court said:

For instance, the Commission explained as follows:

• The Wagoner Alternative would impact ten times more land acreage (112.4) than the Minisink Project (10.6);
• The Wagoner Alternative would require the clearing of more trees and the conscription of more agricultural land than the Minisink Project;
• The Wagoner Alternative would necessitate the placement of pipeline across eleven wetlands and twelve waterbodies, raising complications not extant in the Minisink Project; and
• The Wagoner Alternative had the potential to impact five special status species, as opposed to one through the Minisink Project.


MREPS website | MREPS petition for review

Millennium Pipeline


Wolverine listing proposal withdrawn

 Posted by on August 12, 2014
Aug 122014

The Fish and Wildlife Service has announced that it is withdrawing its proposal to list the wolverine as threatened.

Links follow.


August 12, 2014
Contact: Gavin Shire, 703-346-9123,

Service Determines Wolverine Does Not Warrant
Protection Under Endangered Species Act

Future effects of climate change on species are uncertain; Service will continue to work with state partners to manage healthy and secure wolverine populations

The U.S. Fish and Wildlife Service announced today that it is withdrawing a proposal to list the North American wolverine in the contiguous United States as a threatened species under the Endangered Species Act (ESA). The wolverine, a large but elusive member of the weasel family found in the Mountain West, has made a steady recovery in the past half century after hunting, trapping and poisoning nearly extirpated the species from the lower 48 states in the early 1900s.

While it is clear that the climate is warming, after carefully considering the best available science, the Service has determined that the effects of climate change are not likely to place the wolverine in danger of extinction now or in the foreseeable future. As a result, the wolverine does not meet the statutory definition of either a “threatened species” or an “endangered species” and does not warrant protection under the ESA.

Service Director Dan Ashe’s decision to withdraw the listing proposal was informed by the consensus recommendation of the agency’s three Regional Directors for the regions encompassing the wolverine’s known range in the contiguous United States—the Mountain Prairie, Pacific Northwest and Pacific Southwest regions. The three Directors made the recommendation based on a synthesis of the entire body of scientific evidence. The Service had previously extended the listing deadline by six months due to substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination, as allowed by the ESA.

“Climate change is a reality, the consequences of which the Service deals with on a daily basis. While impacts to many species are clear and measurable, for others the consequences of a warming planet are less certain. This is particularly true in the Mountain West, where differences in elevation and topography make fine-scale prediction of climate impacts ambiguous,” said Ashe. “In this case, based on all the information available, we simply do not know enough about the ecology of the wolverine and when or how it will be affected by a changing climate to conclude at this time that it is likely to be in danger of extinction within the foreseeable future.”

The Service initially proposed to list the wolverine based on climate-change-model forecasts showing overall loss of spring snow across the range of the species. However, upon conducting a more thorough review and gathering additional information, the Service found that climate change models are unable to reliably predict snowfall amounts and snow-cover persistence in wolverine denning locations. Additionally, evidence suggests that wolverine populations grew and expanded in the second half of the last century and may continue to expand into suitable, unoccupied habitat. For example, wolverine sightings outside formerly known habitat occurred in the Sierra Nevada range in California in 2008 and in Colorado in 2012. And in April 2014, a wolverine was seen in the Uinta Range of Utah—the first confirmed sighting of the species in that state in some 30 years. Currently, there is insufficient evidence to conclude that wolverine habitat impacts due to the effects of climate change will affect the population in the foreseeable future.

“While we concluded that the wolverine does not merit Endangered Species Act protection at this time, this does not end our involvement in wolverine conservation,” said Ashe. “We will continue to work with our state partners as they manage for healthy and secure wolverine populations and monitor their status. If new information emerges that suggests we should take another look at listing, we will not hesitate to do that.”

Wolverine populations currently occur within the contiguous United States in the North Cascades Range in Washington and the Northern Rockies of Montana, Idaho, Wyoming and a small portion of Oregon (Wallowa Range). Populations once existed in the Sierra Nevada of California and the southern Rocky Mountains in the states of Colorado, Wyoming and New Mexico.

Simultaneous with the withdrawal of the listing proposal, the Service is withdrawing a proposed special rule under Section 4(d) of the Act that would have tailored protections to those needed for the conservation of the species, and a proposed nonessential-experimental-population designation for the southern Rocky Mountains of Colorado, New Mexico and Wyoming.

The U.S. Fish and Wildlife Service works with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people. For more information, visit, or connect with us through any of these social media channels:


Jul 302014

In a decision issued today, the Fifth Circuit Court of Appeals determined that a jurisdictional determination by the Army Corps of Engineers was not a final agency action and was thus not judicially reviewable (Belle Company v. U.S. Army Corps of Engineers, 13-30262).

The court affirmed a district court judge’s decision that said the court did not have subject-matter jurisdiction.

The Fifth Circuit said the case is distinguishable from the facts before the Supreme Court in Sackett, which involved an EPA compliance order. (Story)

“[W]hereas the compliance order in Sackett severely limited the Sacketts’ ability to obtain a 404 permit from the Corps, see Sackett, 132 S. Ct. at 1372, the JD operates oppositely, informing Belle of the necessity of a 404 permit to avoid enforcement action,” the appeals court said.

In contrast to the compliance order, “the JD does not state that Belle is in violation of the CWA, much less issue an order to Belle to comply with any terms in the JD or take any steps to alter its property,” the opinion said.

“Moreover, while the Corps, responsive to Belle’s own inquiry, has made a determination as to the presence of wetlands on Belle’s property, it renders no regulatory opinion as to Belle’s ultimate goal to build a landfill. Belle could still obtain a Corps permit to fill, without the presumption (attached to an EPA compliance order) against issuing a permit.”


Jul 292014

The Idaho Department of Fish and Game says it won’t kill wolves in the Frank Church River of No Return Wilderness on the Payette National Forest.

Western Watersheds Project, which has sued IDFG over its plans, announced the development today. Jeff Gould, chief of the department’s wildlife bureau, made the commitment in a declaration filed in the Ninth Circuit Court of Appeals (Maughan v. Vilsack, 14-35043).

“The lawsuit already halted last winter’s operations in the Frank Church River of No Return Wilderness, but the agencies had intended to resume this year,” WWP said.

“Wiping out two wolf packs without any public participation or environmental review violated the management principles of the Wilderness Act and the National Forest Management Act,” WWP said earlier this year, when the hunt was first stopped. “The IDFG was using Forest Service cabins as a base camp for the extermination efforts.”

IDFG “claimed that the Golden Pack and the Monumental Pack were reducing elk populations to the detriment of human hunting,” WWP said.

In addition to WWP, plaintiffs in the lawsuit include Defenders of Wildlife, Center for Biological Diversity and Wilderness Watch.


Jul 282014

Under the terms of a legal settlement, the Fish and Wildlife Service said it would analyze the effects on listed species of five widely used pesticides, the Center for Biological Diversity announced.

The settlement amends a previous settlement requiring FWS to complete, by November 2015, a Section 7 consultation on the impact of seven pesticides on endangered California red-legged frogs. According to the stipulation signed by U.S. District Judge Jeffrey S. White, EPA, FWS, NMFS “now agree that it would be more efficient for EPA and FWS to consult on the potential effects that pesticides at issue in this case have on threatened and endangered species nationwide, instead of limiting their consultation only to potential effects on the California red-legged frog.”

The National Academy of Sciences recommended in a report released last year that federal agencies should take a more coordinated approach to assessing the risks of pesticides to endangered species.

“As part of the agreement the agency will consider the pesticides’ impacts not only on red-legged frogs but on all endangered species across the country. The analysis is likely to lead to permanent restrictions on some of the most harmful uses of these highly toxic pesticides,” carbaryl, chlorpyrifos, diazinon, malathion and methomyl, the center said in its press release.

The amendment gives the service some leeway. “While it is not obligated to do so, if FWS completes nationwide
consultations on the effects of the five pesticides …, then FWS shall be deemed to have discharged its obligations under the terms of the original stipulated settlement in full.”

Link to the settlement (Center for Biological Diversity v. U.S. Fish and Wildlife Service (11-5108-JSW, N.D. Cal.)

Center for Biological Diversity press release

For Immediate Release, July 28, 2014

Contact: Collette Adkins Giese, (651) 955-3821

Settlement Will Help Safeguard Nation’s Endangered Wildlife From 5 Dangerous Pesticides

SAN FRANCISCO— The Center for Biological Diversity reached a settlement today requiring the U.S. Fish and Wildlife Service to analyze the impacts of five common pesticides on endangered wildlife across the nation. The pesticides up for review — carbaryl, chlorpyrifos, diazinon, malathion and methomyl — have all been found to be toxic to wildlife and may pose a health risk to humans.

“We don’t think these chemicals should even be in use, but at the very least, measures to protect endangered wildlife should have been put in place when these chemicals were first approved,” said Collette Adkins Giese, an attorney at the Center. “We hope the analysis required by this agreement will finally reduce the use of toxic pesticides in the habitats of our country’s most vulnerable wildlife.”

Under the Federal Insecticide, Fungicide, and Rodenticide Act, the EPA is authorized to approve pesticides for commercial use. But the agency routinely fails to follow through on a critical part of that process: consulting with the U.S. Fish and Wildlife Service to ensure the pesticides will not jeopardize endangered species.

The Center previously sued the EPA for failing to consult over the impacts of these and other pesticides on endangered California red-legged frogs; it obtained an injunction in 2006 imposing restrictions on pesticide use until the consultation was completed. To date those consultations have not been completed. In 2013 the Center again sued, seeking completion of consultation. In today’s settlement the Fish and Wildlife Service resolved that litigation by agreeing to complete consultation and produce the required “biological opinions” in less than five years. As part of the agreement the agency will consider the pesticides’ impacts not only on red-legged frogs but on all endangered species across the country. The analysis is likely to lead to permanent restrictions on some of the most harmful uses of these highly toxic pesticides.

“Governmental agencies have a legal and moral duty to ensure that harmful chemicals aren’t sprayed in the same places where vulnerable wild animals are trying to survive,” said Adkins Giese. “Pesticides found in endangered species habitat can also contaminate our drinking water, food, homes and schools, where they pose a disturbing health risk.”

More than a billion pounds of pesticides are used annually in the United States. But for most of the 18,000 different pesticides approved for use by the EPA, governmental agencies have not evaluated impacts on wildlife as required by the Endangered Species Act.

The Endangered Species Act requires the EPA to consult with federal wildlife agencies to ensure that the agency avoids authorizing pesticide uses that jeopardize endangered species. If the Fish and Wildlife Service determines EPA registration of a pesticide is likely to harm protected species, it may specify use restrictions to avoid adverse effects. For particularly harmful pesticides, the EPA or registrant may choose to take the product off the market. Conservation groups, including the Center, have filed a series of lawsuits attempting to force such consultations, which have resulted in restrictions on pesticide use near endangered species habitats.

Earlier this year, the Center and Pesticide Action Network filed a second amended complaint in their ongoing efforts to protect the nation’s most vulnerable wildlife from toxic pesticides. The lawsuit seeks to compel the EPA to evaluate the impacts of dozens of pesticides known to be toxic to more than 100 endangered and threatened species, including Florida panthers, California condors, piping plovers, black-footed ferrets, arroyo toads, Indiana bats and Alabama sturgeon. Documents from the Fish and Wildlife Service and EPA, as well as peer-reviewed scientific studies, indicate that these species are harmed by the pesticides. A federal court in California hears oral argument in that case on Friday.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 775,000 members and online activists dedicated to the protection of endangered species and wild places.

The Center for Biological Diversity reached a settlement today requiring the U.S. Fish and Wildlife Service to analyze the impacts of five common pesticides on endangered wildlife across the nation. The pesticides up for review — carbaryl, chlorpyrifos, diazinon, malathion and methomyl — have all been found to be toxic to wildlife and may pose a health risk to humans. 

Jul 282014

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)

Associated Press

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)