Alaska Oil and Gas Association v. Blank et al

Filing 78

MEMORANDUM DECISION Granting Motions at Dockets 50 , 54 , and 55 . (Jan, Chambers Staff)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA OIL AND GAS
ASSOCIATION, et al.,

Case No. 4:13-cv-00018-RRB

Plaintiffs,
vs.

MEMORANDUM DECISION

PENNY PRITZKER, U.S.
SECRETARY OF COMMERCE, et al.,
Defendants.
STATE OF ALASKA,
Case No. 4:13-cv-00021-RRB
Plaintiff,
vs.
NATIONAL MARINE FISHERIES
SERVICE, et al.,
Defendants
NORTH SLOPE BOROUGH, et al.
Case No. 4:13-cv-00022-RRB
Plaintiffs,
vs.
PENNY PRITZKER, et al.,
Defendants

MEMORANDUM DECISION
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I.

DECISION APPEALED
On December 28, 2012, the National Marine Fisheries Service (“NMFS”) and

National Oceanic and Atmospheric Administration (“NOAA”) of the Department of
Commerce issued a final decision listing the Beringia and Okhotsk distinct population
segments (“DPS”) of bearded seals (the Erignathus barbatus nauticus subspecies) as
threatened under the Endangered Species Act (“ESA”) (hereinafter referred to as the
“Listing Rule”).1 These consolidated actions challenge that decision.2 The facts underlying
the consolidated actions are well known to parties and a matter of public record.
Accordingly, the facts will not be repeated herein except to the extent necessary to
understand the decision of this Court.

1

Endangered and Threatened Species; Threatened Status for the Beringia and
Okhotsk Distinct Population Segments of the Erignathus barbatus nauticus Subspecies of
the Bearded Seal, 77 Fed. Reg. 76739–68 (December 28, 2012); see 50 C.F.R. § 223.102
Enumeration of threatened marine and anadromous species. (10-1-13 Edition).
2

Plaintiffs: In addition to the Alaska Oil and Gas Association (“AOGA”), the
American Petroleum Institute (“API”) is a plaintiff in 4:13-cv-00018. In addition to the North
Slope Borough (“NSB”), plaintiffs in 4:13-cv-00022 include the Arctic Slope Regional
Corporation (“ASRC”), Northwest Arctic Borough (“NAB”), NANA Regional Corporation
(“NANA”), and Inupiat Community of the Arctic Slope (“Inupiat Community”) (collectively
“Northern Alaska Plaintiffs”).
Defendants: In addition to the Secretary of Commerce, NMFS, and NOAA,
defendants in 4:13-cv-00021 include Kathryn D. Sullivan, Acting NOAA Administrator and
Samuel D. Rauch, Assistant NOAA Administrator (for convenience, unless the context
clearly indicates otherwise, as used herein, “NMFS” refers to the federal defendants
collectively). The Center for Biological Diversity, Inc. (“CBD”) has appeared as an
intervener defendant in the consolidated action.
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II.

PENDING MOTIONS
At Docket 50 Plaintiffs AOGA/API have moved for summary judgment, which

NMFS has opposed and cross-moved for summary judgment.3 The Center for Biological
Diversity (“CBD”) has also opposed and cross-moved for summary judgment.4 AOGA/API
have replied and opposed the cross-motions.5
At Docket 54 the Northern Alaska Plaintiffs have moved for summary judgment,
which NMFS and CBD have opposed and cross-moved for summary judgment.6 The
Northern Alaska Plaintiffs have replied and opposed the cross-motions.7
At Docket 55 the State of Alaska (hereinafter “State”) has moved for summary
judgment, which NMFS and CBD have opposed and cross-moved for summary judgment.8
The State has replied and opposed the cross-m otions.9
The Court being fully advised in the matter has determined that oral argument would
not materially assist in resolving the issues presented. Accordingly, the requests for oral
argument are DENIED.10

3

Docket 63.

4

Docket 64.

5

Docket 65.

6

Dockets 63 (NMFS); 64 (CBD).

7

Docket 66.

8

Dockets 63 (NMFS); 64 (CBD).

9

Docket 73.

10

D.Ak. LR 7.2(a)(3)[B].

MEMORANDUM DECISION
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III.

JURISDICTION and VENUE
Jurisdiction is vested in this Court under 28 U.S.C. §§ 1331, 2201-02, 16 U.S.C.

§ 1540(g), and 5 U.S.C. §§ 553, 702–06. Venue is proper under 29 U.S.C. § 1391(e).
IV.

STANDARD OF REVIEW/ISSUES PRESENTED
Because the ESA does not supply a separate standard for review, this Court reviews

claims under the standards of the Administrative Procedures Act (“APA”).11 The APA
provides that an agency action must be upheld on judicial review unless it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”12 As applied
to the ESA, the Ninth Circuit recently held:
As a reviewing court, we must consider whether the decision was based on
a consideration of the relevant factors and whether there has been a clear
error of judgment. Although our inquiry must be thorough, the standard of
review is highly deferential; the agency's decision is entitled to a presumption
of regularity,” and we may not substitute our judgment for that of the agency.
Where the agency has relied on relevant evidence [such that] a reasonable
mind might accept as adequate to support a conclusion, its decision is
supported by substantial evidence. Even [i]f the evidence is susceptible of
more than one rational interpretation, [the court] must uphold [the agency's]
findings.
Under the ESA, the agency must base its actions on evidence
supported by the best scientific and commercial data available. The
determination of what constitutes the best scientific data available belongs
to the agency's special expertise . . . When examining this kind of scientific
determination, as opposed to simple findings of fact, a reviewing court must

11

San Luis & Delta–Mendota Water Auth. v. Jewel, 747 F.3d 581, 601 (9th Cir.
2014) (citing Bennett v. Spear, 520 U.S. 154, 174 (1997)); Oregon Natural Desert Ass’n
v. Bureau of Land Mgmnt., 625 F.3d 1092, 1109 (9th Cir. 2010); Pyramid Lake Paiute Tribe
of Indians v. United States Dept. of Navy, 898 F.2d 1410, 1414 (9th Cir. 1990)).
12

5 U.S.C. § 706(2)(A).

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generally be at its most deferential. Absent superior data[,] occasional
imperfections do not violate the ESA best available standard.
The best available data requirement merely prohibits [an agency] from
disregarding available scientific evidence that is in some way better than the
evidence [it] relies on. Essentially, FWS cannot ignore available biological
information. Thus, insufficient . . . [or] incomplete information . . . does not
excuse [an agency's] failure to comply with the statutory requirement of a
comprehensive biological opinion using the best information available where
there was some additional superior information available. On the other hand,
where the information is not readily available, we cannot insist on perfection:
[T]he best scientific . . . data available, does not mean the best scientific data
possible.13
The Ninth Circuit has made clear that a court’s review of agency decisions under
the APA is extremely narrow. Under § 706(2)(A), a court may set aside an agency action
only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” When reviewing “under the arbitrary and capricious standard[,]” a court is deferential
to the agency involved.14 A court may not substitute its judgment for that of the agency:15
as long as the agency states a rational connection between the facts found and the
decision made it must be upheld.16 This deference is particularly appropriate where the
decision of the agency at issue “requires a high level of technical expertise.”17

13

San Luis & Delta–Mendota Water Auth., 747 F.3d at 601–02 (internal citations
and quotation marks omitted) (omissions and substitutions in the original).
14

Nat’l Ass’n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007).

15

Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971).

16

Home Builder’s Ass’n of Northern Calif. v. United States Fish and Wildlife Svc.,
616 F.3d 983, 988 (9th Cir. 2010) (quoting Tucson Herpetological Soc’y v. Salazar, 566
F.3d 870, 875 (9th Cir. 2009).
17

Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375–77 (1989); see Alaska
Wilderness Recreation and Tourism Ass’n v. Morrison, 67 F.3d 723, 727 (9th Cir. 1995).
MEMORANDUM DECISION
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This Court’s review is limited to “the administrative record already in existence, not
some new record made in the reviewing court.”18
If the record before the agency does not support the agency action,
if the agency has not considered all relevant factors, or if the reviewing court
simply cannot evaluate the challenged agency action on the basis of the
record before it, the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation. The
reviewing court is not generally empowered to conduct a de novo inquiry into
the matter being reviewed and to reach its own conclusions based on such
an inquiry . . .
The factfinding capacity of the district court is thus typically
unnecessary to judicial review of agency decisionmaking.19
Where, as here, the Court is reviewing an agency’s interpretation of a statute, such
as the ESA, the appropriate framework of review under Chevron is a two-step process:
(1) first the court must look to the plain meaning of the statutory language, i.e., is it
unambiguous; and (2) if ambiguous, whether the agency’s interpretation of the statutory
language is permissible.20 In this case it is indisputable that the statute in question fails the
“plain meaning” rule, it is ambiguous. “When it enacted the ESA, Congress delegated
broad administrative and interpretive power to the Secretary [of Commerce].”21 As the Ninth
Circuit has found “[by] leaving an ‘explicit gap’ for agency promulgated regulations, the

18

Camp v. Pitts, 411 U.S. 138, 142 (1973).

19

San Luis & Delta–Mendota Water Authority, 747 F.3d at 602 (internal citations
and quotation marks omitted).
20

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43

(1984).
21

Babbitt v. Sweet Home Chapter of Cmtys for Greater Oregon, 515 U.S. 687, 708
(1995); see 16 U.S.C. § 1533(c)(1), see also 50 C.F.R. § 402.01(b) (re-delegating that
authority to NMFS).
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ESA expressly delegates authority to the [agency] to decide how such listing
determinations are to be made.”22 Thus, this Court examines the Listing Rule before it
under Chevron’s second step, i.e., whether the agency’s interpretation is permissible.23
Applying the foregoing standards, the ultimate issue presented in this appeal
is whether or not the decision to list the Beringia and Okhotsk DPSs of the
Erignathus barbatus nauticus subspecies of bearded seals as threatened under the
ESA was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” For the reasons set forth below, the Court concludes that
under the circumstances and given the lack of evidence upon which the listing was
based, the decision to include the Beringia bearded seals as threatened was
arbitrary, capricious and an abuse of discretion.
V.

STANDING
NMFS contends that the Plaintiffs lack standing to challenge the listing of the

Okhotsk DPS of the bearded seals, which is located in the Sea of Okhotsk off the coast
of Japan and the Russian Federation. NMFS also challenges the standing of the Northern
Alaska Plaintiffs in its entirety. Standing is a threshold question affecting the jurisdiction of
this Court. Accordingly, it must be determined first.
22

Trout Unlimited v. Lohn, 559 F.3d 946, 961 (9th Cir. 2009).

23

An agency determination qualifies under the second-step of the Chevron rule
when it meets two requirements: (1) “when it appears that Congress delegated authority
to the agency generally to make rules carrying the force of law,” and (2) “the agency
interpretation claiming deference was promulgated in the exercise of that authority.” United
States v. Mead Corp., 533 U.S. 218, 226–27 (2001).
MEMORANDUM DECISION
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To bring an action under the APA, a party must have both constitutional and
prudential standing.24 To have standing under Article III, a plaintiff must show that it has:
(1) “suffered an injury in fact,” i.e. “an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”;
(2) with a causal connection between the act complained of and the injury; and (3) a
reasonable likelihood that a favorable decision will redress the injury.25 “For a plaintiff to
have prudential standing under the APA, the interest to be sought to be protected by the
complainant must be arguably within the zone of interests to be protected or regulated by
the statute in question.”26
In opposition AOGA/API do not contend that they have suffered any injury in fact
as a result of the Listing Rule’s inclusion of the Okhotsk DPS. Instead, AOGA/API argue
that they are attacking the Listing Rule in its entirety and, because it is indivisible, it stands
or falls in its entirety. In addition to advancing a similar argument, the State further
contends that it has standing because it is “injured by NMFS’s lack of disclosure . . . and
lack of consideration or evaluation of relevant factors in the listing decision.” The State also
contends that “[a]s one of the wildlife management authorities in the circumpolar region,
Alaska has a direct interest in seeing that NMFS complies with ESA § 4 as concerns
24

Association of Data Processing Service Organizations v. Camp, 307 U.S. 150,
151–52 (1970).
25

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation
marks and citations omitted).
26

National Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 488
(1998) (internal quotation marks and alteration omitted).
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species throughout the region, especially where other individuals of the same species
(from Alaska’s perspective) occur within Alaska.” Finally, the State argues that “[t]he
Okhotsk listing is counter to Alaska’s policy concern’s and plans, and it presents adverse
precedent for other listing decisions based on factors of concern to Alaska.” 27
A.

Listing of the Okhotsk Segment

First, this Court rejects the indivisibility argument. The Court agrees that the factors
that Plaintiffs contend render the decision to list the Beringia DPS invalid could likewise
render the decision to list the Okhotsk DPS invalid. But that is not the test: the test is
whether or not the decision to list both segments could have been made separately as
opposed to being inextricably intertwined. While the NMFS chose to list both in the same
listing, Plaintiffs have not cited any rule, regulation, or decision that NMFS was required
to do so. In short, the Court may sever the decision to list the Beringia segment from the
decision to list the Okhotsk segment.28

27

Plaintiff State of Alaska’s Reply Memorandum in Support of its Motion for
Summary Judgment. Docket 73 at 13–14.
28

The Court also disagrees with the supposition that, if the decision to list the
Beringia DPS is unsupported by the evidence, then the listing of the Okhotsk DPS more
likely than not suffers from the same infirmity. The evidence differed as to both segments,
which requires separate analyses. In addition, the record reflects that NMFS initially
proposed listing the Okhotsk DPS, but not the Beringia DPS. Moreover, in the absence
of some party having a concrete and particularized interest, which is not apparent in this
case, this Court need not reach that issue. If it were to do so, the Court would be in effect
entering an advisory opinion, which is specifically forbidden. See Flast v. Cohen, 392 U.S.
83, 95–97 (1968).
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The Court also rejects the State’s additional argument regarding its interest.
Reduced to its essence, the State’s argument is that it has an interest in ensuring that
NMFS complies with the law. 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 suffcient
evidence of standing as to the Okhotsk DPS of bearded seals.
Accordingly, the Court will address solely the listing of the Beringia DPS.
B.

Standing of Northern Alaska Plaintiffs

NMFS contends that the Northern Alaska Plaintiffs have not asserted a sufficient
“injury in fact” that is “concrete and particularized.” Even if, as NMFS argues, the interest
of the Northern Alaska Plaintiffs may be speculative and remote, other factors override the
objection to their standing. It is indisputable that a listing as a threaten species has a
chilling effect on the extent of the scope and nature of human interaction with that species.
In this case, it is also indisputable that the Northern Alaska Plaintiffs have a historic cultural
relationship with the Beringia DPS of seals, including subsistence. The Northern Alaska
Plaintiffs certainly have at least as much of a direct interest in the Listing Rule as does
CBD; the Court would err if it did not permit CBD to intervene on the side of NMFS.29

29

See Center for Biological Diversity v. Kempthorne, 588 F.3d 701, 707–08 (9th
Cir. 2009).
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Accordingly, the Court declines to dismiss the Northern Alaska Plaintiffs for lack of
standing.
VI.

DISCUSSION
A.

Listing Rule

NMFS provided the following summary:
SUMMARY: We, NMFS, issue a final determination to list the Beringia
and Okhotsk distinct populations segments (DPSs) of the Erignathus
barbatus nauticus subspecies of the bearded seal (Erignathus barbatus) as
threatened under the Endangered Species Act (ESA). We will propose to
designate critical habitat for the Beringia DPS in a future rulemaking. To
assist us with this effort, we solicit information that may be relevant to the
designation of critical habitat for the Beringia DPS. In light of public
comments and upon further review, we are withdrawing the proposed ESA
section 4(d) protective regulations for the Beringia and Okhotsk DPSs
because we have determined that such regulations are not necessary or
advisable for the conservation of the Beringia and Okhotsk DPSs at this time.
Given their current population sizes, the long-term nature of the primary
threat to these DPSs (habitat alteration stemming from climate change), and
the existing protections under the Marine Mammal Protection Act, it is
unlikely that the proposed protective regulations would provide appreciable
conservation benefits.30
Plaintiffs challenge the following finding in the Listing Rule:
We have reviewed the status of the bearded seal, fully considering the
best scientific and commercial data available, including the status review
report. We have reviewed threats to the Beringia DPS and the Okhotsk DPS,
as well as other relevant factors, and considered conservation efforts and
special designations for bearded seals by states and foreign nations. In
consideration of all of the threats and potential threats to bearded seals
identified above, the assessment of the risks posed by those threats, the
possible cumulative impacts, and the uncertainty associated with all of these,
we draw the following conclusions:

30

77 Fed. Reg. 76740.

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Beringia DPS: (1) The present population size of the Beringia DPS
is uncertain, but is estimated to be about 155,000 individuals. (2) It is highly
likely that reductions will occur in both the extent and timing of sea ice in the
range of the Beringia DPS within the foreseeable future, particularly in the
Bering Sea. To adapt to this modified ice regime, bearded seals would likely
have to shift their nursing, rearing, and molting areas to ice-covered seas
north of the Bering Strait, where projections suggest there is potential for the
ice edge to retreat to deep waters of the Arctic basin, forcing the seals to
adapt to suboptimal conditions and exploit potentially unsuitable habitats,
and likely compromising their reproduction and survival rates. (3) Available
information indicates a moderate to high threat that reductions in spring and
summer sea ice will result in spatial separation of sea ice resting areas from
benthic feeding habitat. (4) Available information indicates a moderate to
high threat of reductions in sea ice suitable for molting (i.e., areas with at
least 15 percent ice concentration in May-June) and a moderate threat of
reductions in sea ice suitable for pup maturation (i.e., areas with at least 25
percent ice concentration in April-May). (5) Within the foreseeable future, the
risks to the persistence of the Beringia DPS appear to be moderate
(abundance and diversity) to high (productivity and spatial structure). We
have determined that the Beringia DPS is not in danger of extinction
throughout all of its range, but it is likely to become so within the foreseeable
future. Therefore, we are listing it as threatened. 31
The ESA defines a threatened species as one that “is likely to become an
endangered species within the foreseeable future through all or a significant portion of its
range.”32 With respect to this provision the Listing Rule stated in response to a comment
suggesting that the listing was premature:
Whether a species is healthy at the time of listing or beginning to decline is
not the deciding factor. The inquiry requires NMFS to consider the status of
the species both in the present and through the foreseeable future. Having
received a petition and subsequently having found that the petition presented
substantial information indicating that listing bearded seals may be warranted
(73 FR 51615; September 4, 2008), we are required to use the best scientific

31

77 Fed. Reg. 76748.

32

16 U.S.C. § 1532(20); 50 C.F.R. § 424.01(m) (10-1-12).

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and commercial data available to determine whether bearded seals satisfy
the definition of an endangered or threatened species because of any of the
five factors identified under section 4(a)(1) of the ESA. These data were
compiled in the status review report of the bearded seal (Cameron et al.,
2010) and summarized in the preamble to the proposed rule.
We agree that the Beringia and Okhotsk DPSs are moderately large
population units, are widely distributed and genetically diverse, and are not
presently in danger of extinction. However, these characteristics do not
protect them from becoming at risk of extinction in the foreseeable future as
a consequence of widespread habitat loss. 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. To adapt to this modified
sea ice regime, bearded seals would likely have to shift their nursing, rearing,
and molting areas to ice-covered seas north of the Bering Strait, where
projections suggest there is potential for the spring and summer ice edge to
retreat to deep waters of the Arctic basin. The most significant threats to the
Beringia DPS were identified by the BRT as decoupling of sea ice resting
areas from benthic foraging areas, decreases in sea ice habitat suitable for
molting and pup maturation, and decreases in prey density and/or availability
due to changes in ocean temperature and ice cover, which were scored as
of ‘moderate’ or ‘moderate to high’ significance (Table 7; Cameron et al.,
2010). The greatest threats to the persistence of bearded seals in the
Okhotsk DPS were determined by the BRT to be decreases in sea ice
habitat suitable for whelping, nursing, pup maturation, and molting. These
threats, which were assessed by the BRT as of ‘high significance,’ are more
severe in the range of the Okhotsk DPS than in the range of the Beringia
DPS because of the likelihood that the Sea of Okhotsk will by the end of this
century frequently be ice-free or nearly so during April–June, the crucial
months for these life history events.
Data were not available to make statistically rigorous inferences about
how these DPSs will respond to habitat loss over time. We note that we
currently have no mechanism to detect even major changes in bearded seal
population size (Taylor et al., 2007). However, the BRT’s assessment of the
severity of the demographic risks posed to the persistence of each of
bearded seals DPSs was formalized using a numerical scoring system. The
risks to the persistence of the Beringia and Okhotsk DPSs within the
foreseeable future were judged to be moderate to high, with consistently
higher risk scores assigned to the Okhotsk DPS (Table 9; Cameron et al.,
2010). After considering these risks as well as the remaining factors from
section 4(a)(1) of the ESA, we concluded that the Beringia and Okhotsk

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DPSs are likely to become endangered within the foreseeable future
(threatened), primarily due to the projected loss of sea ice habitat. 33
B.

Applicable Statutes

Section 4(a)(1) of the ESA (16 U.S.C. § 1533(a)(1)) provides:
(a) Generally
(1) The Secretary shall by regulation promulgated in accordance with
subsection (b) of this section determine whether any species is an
endangered species or a threatened species because of any of the following
factors:
(A) the present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or
educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued
existence.
It is evident that in this case that § 4(a)(1)(B), (C), and (D) are clearly inapplicable, leaving
§ 4(a)(1)(A) and (E).
Section 4(b)(1) of the ESA (16 U.S.C. § 1533(b)(1)) provides in relevant part:
(b) Basis for determinations
(1)
(A) The Secretary shall make determinations required by
subsection (a)(1) of this section solely on the basis of the best
scientific and commercial data available to him after conducting a
review of the status of the species and after taking into account those
efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect such
species, whether by predator control, protection of habitat and food
supply, or other conservation practices, within any area under its
jurisdiction; or on the high seas.

33

77 Fed. Reg. 76758 (response to Comment 18).

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(B) In carrying out this section, the Secretary shall give
consideration to species which have been—
(I) designated as requiring protection from unrestricted
commerce by any foreign nation, or pursuant to any
international agreement; or
(ii) identified as in danger of extinction, or likely to
become so within the foreseeable future, by any State agency
or by any agency of a foreign nation that is responsible for the
conservation of fish or wildlife or plants.
The regulations promulgated by the Secretary reiterate the provisions of ESA § 4(a)(1) and
(b)(1).34 It has been stated that “[t]he ultimate goal of the ESA is to recover listed species
to the point where they no longer need ESA protection.”35 It is within this general framework
that this Court must resolve the issue before it.
C.

Effect of Listing

NMFS is authorized to issue such regulations as it may consider necessary and
advisable for the preservation of a listed species.36 The ESA further provides that
concurrently with the listing as threatened or endangered, the Secretary “shall . . .
designate any habitat of such species which is then considered to be critical habitat.”37 The
listing of a species as threatened triggers several protective provisions.38 The most recent
34

See 50 CFR § 424.11(b), (c) Factors for listing, delisting, or reclassifying species
(10-1-12).
35

Western Watersheds Project v. Ashe, 948 F. Supp. 2d 1166, 1171 (D. Idaho
2013) (citing 16 U.S.C. §§ 1531(b)–(c), 1532(3)).
36

ESA § 4(d) [16 U.S.C. § 1533(d)].

37

ESA § 4(a)(3)(A) [16 U.S.C. § 1533(a)(3)(A)].

38

See 50 C.F.R. § 223.101(a) (10-1-12) (stating that the purpose and scope of the
regulations is to provide for conservation of threatened species by establishing rules and
(continued...)
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edition of C.F.R. Part 223 (October 1, 2013) does not itself contain any provision generally
or specifically regulating activities affecting the Beringia DPS. It does, however, note that
the provisions therein “are in addition to, and not in lieu of, other regulations of parts 222
through 226 of this chapter which prescribe additional restrictions or conditions governing
threatened species.”39 Of these, only Part 222, which applies to both threatened and
endangered species,40 applies to this case.41 In this case, the only apparent provision that
may be applicable is the general permitting procedures.42 However, the regulations also
specifically provide that a permit is required solely for threatened species to which the
Secretary has applied the limitations of ESA § 9(a) [16 U.S.C. § 1538(a)] by regulation.43
Although it was initially proposed to apply ESA § 9(a) to the listing, in promulgating
the Listing Rule NMFS determined that it was “not aware of any [information], indicating
that the addition of the ESA § 9 prohibitions would apply to any activities that are currently
unregulated and are having, or have the potential to have, significant effects on the

38

(...continued)
procedures to govern activities involving them).
39

50 C.F.R. § 223.101(c) (10-1-2013).

40

Governing “the taking, possession, transportation, sale, purchase, barter,
exploration, importation of, and other requirements to wildlife . . . determined to be
threatened or endangered pursuant to section 4(a) of the Act.” 50 C.F.R. § 222.101(a) (101-2013).
41

Part 224 applies to endangered specifies with no apparent application in this
case. Part 225 is reserved. Part 226 designates critical habitat for various species, but
does not designate any critical habitat for the Beringia DPS.
42

50 C.F.R. §§ 222.301, et seq.

43

50 C.F.R. § 222.301(b).

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 16

Beringia or Okhotsk DPS.”44 NMFS then concluded that, because § 9(a) prohibitions would
not provide appreciable conservation benefits and they could be adopted in the future if
necessary, it was unnecessary to adopt them at this time.45 NMFS noted:
Section 7(a)(2) of the ESA requires Federal agencies to consult with
us to ensure that activities they authorize, fund, or conduct are not likely to
jeopardize the continued existence of a listed species or a species proposed
for listing, or to adversely modify critical habitat or proposed critical habitat.
If a Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with us. Examples
of Federal actions that may affect the Beringia DPS of bearded seals include
permits and authorizations relating to coastal development and habitat
alteration, oil and gas development (including seismic exploration), toxic
waste and other pollutant discharges, and cooperative agreements for
subsistence harvest.46
D.

Analysis of Arguments

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

44

77 Fed. Reg. 76749.

45

Id.

46

Id.; see 77 Fed. Reg. 76765 (response to Comment 50).

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 17

reached; and (5) an unexplained change from the initial draft that did not list the Beringia
DPS as threatened.
The Listing Rule also addressed changes in ocean conditions.
Ocean acidification is an ongoing process whereby chemical reactions
occur that reduce both seawater pH and the concentration of carbonate ions
when CO2 is absorbed by seawater. Results from global ocean CO2 surveys
over the past two decades have shown that ocean acidification is a
predictable consequence of rising atmospheric CO2 levels. The process of
ocean acidification has long been recognized, but the ecological implications
of such chemical changes have only recently begun to be appreciated. The
waters of the Arctic and adjacent seas are among the most vulnerable to
ocean acidification. The most likely impact of ocean acidification on bearded
seals will be through the loss of benthic calcifiers and lower trophic levels on
which the species’ prey depends. Cascading effects are likely both in the
marine and freshwater environments. Our limited understanding of planktonic
and benthic calcifiers in the Arctic (e.g., even their baseline geographical
distributions) means that future changes will be difficult to detect and
evaluate.
Warming of the oceans is predicted to drive species ranges toward
higher latitudes. Additionally, climate change can strongly influence fish
distribution and abundance. Further shifts in spatial distribution and
northward range extensions appear to be inevitable, and the species
composition of the plankton and fish communities will continue to change
under a warming climate.
Bearded seals of different age classes are thought to feed at different
trophic levels, so any ecosystem change could be expected to affect bearded
seals in a variety of ways. Changes in bearded seal prey, anticipated in
response to ocean warming and loss of sea ice and, potentially, ocean
acidification, have the potential for negative impacts, but the possibilities are
complex. These ecosystem responses may have very long lags as they
propagate through trophic webs. Because of bearded seals’ apparent dietary
flexibility, these threats are of less concern than the direct effects of potential
sea ice degradation.47

47

77 Fed. Reg. 76744–45.

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 18

After analyzing the effect of changes in ocean conditions the Listing Rule concluded:
Bearded seals of different age classes are thought to feed at different
trophic levels, so any ecosystem change could be expected to affect bearded
seals in a variety of ways. Changes in bearded seal prey, anticipated in
response to ocean warming and loss of sea ice and, potentially, ocean
acidification, have the potential for negative impacts, but the possibilities are
complex. These ecosystem responses may have very long lags as they
propagate through trophic webs. Because of bearded seals’ apparent dietary
flexibility, these threats are of less concern than the direct effects of potential
sea ice degradation. Bearded seals of different age classes are thought to
feed at different trophic levels, so any ecosystem change could be expected
to affect bearded seals in a variety of ways. Changes in bearded seal prey,
anticipated in response to ocean warming and loss of sea ice and,
potentially, ocean acidification, have the potential for negative impacts, but
the possibilities are complex. These ecosystem responses may have very
long lags as they propagate through trophic webs. Because of bearded
seals’ apparent dietary flexibility, these threats are of less concern than the
direct effects of potential sea ice degradation.48
The Listing Rule also concluded that the potential threat to bearded seals from
disease was low, and the adequacy of existing regulatory mechanisms was also included
in the risk assessment.49 With respect to pollution and contaminants, oil and gas industry,
fisheries, and shipping the Listing Rule concluded: “We find that the threats posed by
pollutants, oil and gas industry activities, fisheries, and shipping do not individually or
collectively place the Beringia DPS or the Okhotsk DPS at risk of becoming endangered
in the foreseeable future.”50 The analysis of demographic risks concluded:

48

77 Fed. Reg. 76745.

49

Ibid. It is noted that the only discussion of green-house gases was in connection
with the Okhotsk segment.
50

77 Fed. Reg. 76747.

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 19

The degree of risk posed by the threats associated with the impacts
of global climate change on bearded seal habitat is uncertain due to a lack
of quantitative information linking environmental conditions to bearded seal
vital rates, and a lack of information about how resilient bearded seals will be
to these changes. The BRT considered the current risks (in terms of
abundance, productivity, spatial structure, and diversity) to the persistence
of the Beringia DPS and the Okhotsk DPS as low or very low. The BRT
judged the risks to the persistence of the Beringia DPS within the
foreseeable future to be moderate (abundance and diversity) to high
(productivity and spatial structure), and to the Okhotsk DPS to be high for
abundance, productivity, and spatial structure, and moderate for diversity.51
Although the Listing Rule discussed conservation efforts in general, it made neither
findings nor drew conclusions from conservation efforts, internationally or domestically.
The Court does note, however, that the tenor of the analysis in the Listing Rule was
generally positive in noting ongoing monitoring of the bearded seal population by others.
The Listing Rule concluded:
Beringia DPS: (1) The present population size of the Beringia DPS
is uncertain, but is estimated to be about 155,000 individuals. (2) It is highly
likely that reductions will occur in both the extent and timing of sea ice in the
range of the Beringia DPS within the foreseeable future, particularly in the
Bering Sea. To adapt to this modified ice regime, bearded seals would likely
have to shift their nursing, rearing, and molting areas to ice-covered seas
north of the Bering Strait, where projections suggest there is potential for the
ice edge to retreat to deep waters of the Arctic basin, forcing the seals to
adapt to suboptimal conditions and exploit potentially unsuitable habitats,
and likely compromising their reproduction and survival rates. (3) Available
information indicates a moderate to high threat that reductions in spring and
summer sea ice will result in spatial separation of sea ice resting areas from
benthic feeding habitat. (4) Available information indicates a moderate to
high threat of reductions in sea ice suitable for molting (i.e., areas with at
least 15 percent ice concentration in May-June) and a moderate threat of
reductions in sea ice suitable for pup maturation (i.e., areas with at least 25
percent ice concentration in April-May). (5) Within the foreseeable future, the

51

77 Fed. Reg. 76747–48.

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 20

risks to the persistence of the Beringia DPS appear to be moderate
(abundance and diversity) to high (productivity and spatial structure). We
have determined that the Beringia DPS is not in danger of extinction
throughout all of its range, but it is likely to become so within the foreseeable
future. Therefore, we are listing it as threatened. 52
The parties agree that the Listing Rule relied principally, if not solely, upon climate
change as the governing factor for listing the Beringia DPS as threatened. 53 It is also
undisputed that, under the regulations, climate change is not only a factor properly
considered, but that a listing may be made on any one of the factors alone.54 It is further
undisputed that the term “foreseeable future” is not defined by either statute or regulation;
accordingly, the agency defines it on a case-by-case basis in each listing decision.55 With
that general background, the Court will address the issues raised: first the procedural
issues, then the substantive issues.
1.

Procedural Issues

Initially, the Court rejects Plaintiffs’ argument that NMFS impermissibly added the
Beringia DPS after the initial publication of a proposed rule. It is undisputed that the
Plaintiffs had adequate and timely notice of the intent to include the Beringia DPS. Indeed,
the record is clear that Plaintiffs vigorously opposed that listing. Consequently, Plaintiffs

52

77 Fed. Reg. 76748.

53

See 77 Fed. Reg. 76741.

54

50 C.F.R. § 424.11(c) (10-1-12).

55

See In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule
Litigation – MDL No. 1993, 709 F.3d 1, 15 (D.C. Cir.), cert. denied sub nom. Safari Club
Int’l. v. Jewell, 134 S. Ct. 310 (2013).
MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 21

not only cannot claim any prejudice by that action, but they 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.
The State contends that NMFS failed to adequately respond to the State’s
comments. Section 4(I) of the EPA [16 U.S.C. § 1533(I)] provides in relevant part that
where, as here, a State has filed comments disagreeing with the proposed regulation, “the
Secretary shall submit to the State agency a written justification for his failure to adopt
regulations consistent with the agency’s comment or petition.”56
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. 57

56
57

See 50 C.F.R. § 424.18(c) (10-1-12) (containing identical language).
Alaska Oil and Gas Ass’n v. Salazar, 916 F. Supp.2d 974, 1003 (D. Alaska 2013)
(continued...)

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 22

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.
2.

Substantive Issues

Plaintiffs’ substantive issues can be conflated into two: (1) uncertainty and lack of
information to support the listing, including failure to link its sea-ice projections to habitat
changes, biological functions, and population changes; and (2) improper use of a 100-year
projection into the future.
Plaintiffs contend that there is a lack of data to link projected habitat declines to
bearded seal biological response and the ultimate projected population trends. The Listing
Rule identified five main functions of sea-ice with respect to bearded seals.
An assessment of the risks to bearded seals posed by climate change
must consider the species’ life-history functions, how they are linked with sea
ice, and how altering that link will affect the vital rates of reproduction and
survival. The main functions of sea ice relating to the species’ life-history are:
(1) A dry and stable platform for whelping and nursing of pups in April and
May (Kovacs et al., 1996; Atkinson, 1997); (2) a rearing habitat that allows
mothers to feed and replenish energy reserves lost while nursing; (3) a
habitat that allows a pup to gain experience diving, swimming, and hunting
with its mother, and that provides a platform for resting, relatively isolated
from most terrestrial and marine predators; (4) a habitat for rutting males to

57

(...continued)
(emphasis in the original) (footnotes omitted).
MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 23

hold territories and attract post-lactating females; and (5) a platform suitable
for extended periods of hauling out during molting.58
NMFS then discussed in general terms the effect of these five factors on the bearded seal
population.59
With respect to the predictions of the effect of changes in sea-ice on the Beringia
DPS, the Listing Rule found:
Beringia DPS: In the Bering Sea, early springtime sea ice habitat for
bearded seal whelping should be sufficient in most years through 2050 and
out to the second half of the 21st century, when the average ice extent in
April is forecasted to be approximately 50 percent of the present-day extent.
The general trend in projections of sea ice for May (nursing, rearing, and
some molting) through June (molting) in the Bering Sea is toward a longer
ice-free period resulting from more rapid spring melt. Until at least the middle
of the 21st century, projections show some years with near-maximum ice
extent; however, less ice is forecasted on average, manifested as more
frequent years in which the spring retreat occurs earlier and the peak ice
extent is lower. By the end of the 21st century, projections for the Bering Sea
indicate that there will commonly be years with little or no ice in May, and that
sea ice in June is expected to be non-existent in most years.
Projections of sea ice concentration indicate that there will typically be
25 percent or greater ice concentration in April–May over a substantial
portion of the shelf zone in the Bering Sea through 2055. By 2095 ice
concentrations of 25 percent or greater are projected for May only in small
zones of the Gulf of Anadyr and in the area between St. Lawrence Island
and Bering Strait. In the minimal ice years the projections indicate there will
be little or no ice of 25 percent or greater concentration over the shelf zone
in the Bering Sea during April and May, perhaps commencing as early as the
next decade. Conditions will be particularly poor for the molt in June when
typical ice predictions suggest less than 15 percent ice by mid-century.
Projections suggest that the spring and summer ice edge could retreat to
deep waters of the Arctic Ocean basin, potentially separating sea ice suitable
for pup maturation and molting from benthic feeding areas.

58

77 Fed. Reg. 76742.

59

77 Fed. Reg. 76742–43.

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 24

In the East Siberian, Chukchi, and Beaufort seas, the average ice
extents during April and May (i.e., the period of whelping, nursing, mating,
and some molting) are all predicted to be very close to historical averages
out to the end of the 21st century. However, the annual variability of this
extent is forecasted to continue to increase, and single model runs indicate
the possibility of a few years in which April and May sea ice would cover only
half (or in the case of the Chukchi Sea, none) of the Arctic shelf in these
regions by the end of the century. The projections indicate that there will
typically be 25 percent or greater ice concentration in April–June over the
entire shelf zones in the Beaufort, Chukchi, and East Siberian Seas through
the end of the century. In the minimal ice years 25 percent or greater ice
concentration is projected over the shelf zones in April and May in these
regions through the end of the century, except in the eastern Chukchi and
central Beaufort Seas. In the 2090s, ice suitable for molting in June (i.e., 15
percent or more concentration) is projected to be mostly absent in these
regions in minimal years, except in the western Chukchi Sea and northern
East Siberian Sea.
A reduction in spring and summer sea ice concentrations could
conceivably result in the development of new areas containing suitable
habitat or enhancement of existing suboptimal habitat. For example, the East
Siberian Sea has been said to be relatively low in bearded seal numbers and
has historically had very high ice concentrations and long seasonal ice
coverage. Ice concentrations projected for May–June near the end of the
century in this region include substantial areas with 20–80 percent ice,
potentially suitable for bearded seal reproduction, molting, and foraging.
However, the net difference between sea ice related habitat creation and
loss is likely to be negative, especially because other factors like ocean
warming and acidification (discussed below) are likely to affect habitat.
A substantial portion (about 70 percent) of the Beringia DPS currently
whelps in the Bering Sea, where a longer ice-free period is forecasted in May
and June. To adapt to this modified sea ice regime, bearded seals would
likely have to shift their nursing, rearing, and molting areas to the ice covered
seas north of the Bering Strait, potentially with poor access to food, or to
coastal haul-out sites on shore, potentially with increased risks of
disturbance, predation, and competition. Both of these scenarios would
require bearded seals to adapt to novel (i.e., suboptimal) conditions, and to
exploit habitats to which they may not be well suited, likely compromising
their reproduction and survival rates. Further, the spring and summer ice
edge may retreat to deep waters of the Arctic Ocean basin, which could
separate sea ice suitable for pup maturation and molting from benthic
feeding areas. Accordingly, we conclude that the projected changes in sea

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 25

ice habitat pose significant threats to the persistence of the Beringia DPS
throughout all of its range.60
NMFS addressed the use of the 100-year projection.
Comment 5: A peer reviewer and several public comments pointed out that
assessing impacts to bearded seals from climate change through the end of
this century is inconsistent with: (1) Other recent ESA determinations for
Arctic species, such as ribbon seal and polar bear, that considered species
responses through mid-century; and (2) IUCN red list process, which uses
a timeframe of three generation lengths. Related public comments, including
from the State of Alaska, noted that NMFS’s recent ESA listing determination
for the ribbon seal and a subsequent court decision concluded that
projections of climate scenarios beyond 2050 are too heavily dependent on
socioeconomic assumptions and are therefore too divergent for reliable use
in assessing threats to the species. A reviewer and some commenters
expressed the opinion that trying to predict the responses of bearded seals
to environmental changes beyond midcentury increases the uncertainty
unreasonably. A few commenters suggested that the altered approach is
significant because the listing determination is wholly dependent upon
NMFS’s use of a 100-year foreseeable future. Several commenters
expressed the opinion that inadequate justification was provided for NMFS’s
use of a 100-year foreseeable future. Many of these commenters suggested
that the best scientific data support a “foreseeable future” time frame of no
more than 50 years, and some commenters such as the State of Alaska
suggested a shorter time horizon of no more than 20 years. In contrast,
another peer reviewer and some commenters expressed support for use of
climate model projections through the end of the 21st century.
Response: The ESA requires us to make a decision as to whether the
species under consideration is in danger of extinction throughout all or a
significant portion of its range (endangered), or is likely to become
endangered within the foreseeable future throughout all or a significant
portion of its range (threatened) based on the best scientific and commercial
data available. While we may consider the assessment processes of other
scientists (i.e., IUCN), we must make a determination as to whether a
species meets the definition of threatened or endangered based upon an
assessment of the threats according to section 4 of the ESA. We have done
so in this rule, using a threat-specific approach to the “foreseeable future” as
discussed below and in the proposed listing rule.

60

77 Fed. Reg. 76743–44.

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 26

In the December 30, 2008, ribbon seal listing decision (73 FR 79822)
the horizon of the foreseeable future was determined to be the year 2050.
The reasons for limiting the review to 2050 included the difficulty in
incorporating the increased divergence and uncertainty in future emissions
scenarios beyond this time, as well as the lack of data for threats other than
those related to climate change beyond 2050, and that the uncertainty
inherent in assessing ribbon seal responses to threats increased as the
analysis extended farther into the future. By contrast, in our more recent
analyses for spotted, ringed, and bearded seals, we did not identify a single
specific time as the foreseeable future. Rather, we addressed the
foreseeable future based on the available data for each respective threat.
This approach better reflects real conditions in that some threats (e.g.,
disease outbreaks) appear more randomly through time and are therefore
difficult to predict, whereas other threats (climate change) evince
documented trends supported by paleoclimatic data from which reasonably
accurate predictions can be made farther into the future. Thus, the time
period covered for what is reasonably foreseeable for one threat may not be
the same for another. The approach is also consistent with the memorandum
issued by the Department of the Interior, Office of the Solicitor, regarding the
meaning of foreseeable future (Opinion M–37021; January 16, 2009). In
consideration of this modified threat-specific approach, NMFS initiated a new
status review of the ribbon seal on December 13, 2011 (76 FR 77467).
As discussed in the proposed listing rule, the analysis and synthesis
of information presented in the IPCC’s AR4 represents the scientific
consensus view on the causes and future of climate change. The IPCC’s
AR4 used state-of-the-art atmosphere-ocean general circulation models
(AOGCMs) under six “marker” scenarios from the SRES (IPCC, 2000) to
develop climate projections under clearly stated assumptions about
socioeconomic factors that could influence the emissions. Conditional on
each scenario, the best estimate and likely range of emissions were
projected through the end of the 21st century. In our review of the status of
the bearded seal, we considered model projections of sea ice developed
using the A1B scenario, a medium “business-as-usual” emissions scenario,
as well the A2 scenario, a high emissions scenario, to represent a significant
range of variability in future emissions.
We also note that the SRES scenarios do not assume implementation
of additional climate initiatives beyond current mitigation policies. This is
consistent with consideration of “existing” regulatory mechanisms in our
analysis under ESA listing Factor D. It is also consistent with our Policy on
Evaluating Conservation Efforts (68 FR 15100; March 28, 2003), which
requires that in making listing decisions we consider only formalized

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 27

conservation efforts that are sufficiently certain to be implemented and
effective.
The model projections of global warming (defined as the expected
global change in surface air temperature) out to about 2040–2050 are
primarily due to emissions that have already occurred and those that will
occur over the next decade. Thus conditions projected to mid-century are
less sensitive to assumed future emissions scenarios. For the second half
of the 21st century, however, the choice of an emissions scenario becomes
the major source of variation among climate projections. As noted above, in
our 2008 listing decision for ribbon seal, the foreseeable future was
determined to be the year 2050. The identification of mid-century as the
foreseeable future took into consideration the approach taken by the FWS
in conducting its status review of the polar bear under the ESA, and the
IPCC assertion that GHG levels are expected to increase in a manner that
is largely independent of assumed emissions scenarios until about the
middle of the 21st century, after which the emissions scenarios become
increasingly influential.
Subsequently, in the listing analyses for spotted, ringed, and bearded
seals, we noted that although projections of GHGs become increasingly
uncertain and subject to assumed emissions scenarios in the latter half of
the 21st century, projections of air temperatures consistently indicate that
warming will continue throughout the century. Although the magnitude of the
warming depends somewhat on the assumed emissions scenario, the trend
is clear and unidirectional. To the extent that the IPCC model suite
represents a consensus view, there is relatively little uncertainty that warming
will continue. Because sea ice production and persistence is related to air
temperature through well-known physical processes, the expectation is also
that loss of sea ice and reduced snow cover will continue throughout the 21st
century. Thus, the more recent inclusion of projections out to the year 2100
reflects NMFS’s intention to use the best and most current data and
analytical approaches available. AOGCM projections consistently show
continued reductions in ice extent and multi-year ice (ice that has survived
at least one summer melt season) throughout the 21st century (e.g., Holland
et al., 2006; Zhang and Walsh, 2006; Overland and Wang, 2007), albeit with
a spread among the models in the projected reductions. In addition, as
discussed by Douglas (2010), the observed rate of Arctic sea ice loss has
been reported as greater than the collective projections of most IPCCrecognized AOGCMs (e.g., Stroeve et al., 2007; Wang and Overland, 2009),
suggesting that the projections of sea ice declines within this century may in
fact be conservative.
We concluded that in this review of the status of the bearded seal, the
climate projections in the IPCC’s AR4, as well as the scientific papers used
MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 28

in this report or resulting from this report, represent the best scientific and
commercial data available to inform our assessment of the potential impacts
from climate change. In our risk assessment for bearded seals, we therefore
considered the full 21st century projections to analyze the threats stemming
from climate change. We continue to recognize that the farther into the future
the analysis extends, the greater the inherent uncertainty, and we
incorporated that consideration into our assessments of the threats and the
species’ responses to the threats. 61
NMFS acknowledged that it lacks sufficient data on the resilience of bearded seals
to cope with climatic changes;62 or to define an extinction threshold for bearded seals and
assessing the probability of reaching that threshold within a specified time;63 and that,
because the existing body of information regarding bearded seal population and trends
was limited, additional studies were needed to understand the population dynamics and
habitat of the bearded seal. 64
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

61

77 Fed. Reg. 76752–54.

62

77 Fed. Reg. 76755 (responses to Comments 8 and 9).

63

77 Fed. Reg. 76757 (response to Comment 16).

64

77 Fed. Reg. 76759 (response to Comment 19); see also 77 Fed. Reg. 76760
(response to Comment 27) (conceding that a more thorough assessment of seal habitat
and population response to the climatic changes was needed before the threat of extinction
could be assessed with any level of certainty)).
MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 29

either inapposite or not controlling on the issue.65 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,66 the challenged listing was based upon a
45-year period, which the District Court specifically found was not too long.67 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.
Troubling to this Court is that it does not appear from the Listing Rule that any
serious threat of a reduction in the population of the Beringia DPS, let alone
extinction, exists 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.68 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

65

In each of the cases cited the relevant time-period considered by the agency in
making the listing was less than 50 years. Although it is plausible to interpret those cases
as not precluding a longer period, they cannot be plausibly construed as necessarily
permitting it. The precise issue was simply not before any court.
66

In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule
Litigation, 794 F. Supp.2d 65, 75–76, 94–95 (D. D.C. 2011), aff’d 709 F.3d 1 (D.C. Cir.),
cert. denied sub nom. Safari Club Int’l. v. Jewell, 134 S. Ct. 310 (2013).
67

Id. at 75.

68

77 Fed. Reg. 76743–44.

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 30

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.69
VII.

CONCLUSION AND ORDER
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.”70
In particular, with respect to two factors: (1) the lack of any articulated discernable,
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

69

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.”
70

5 U.S.C. § 706(2)(A).

MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 31

preserve the continued existence of the listed species, is inherently arbitrary and
capricious.
Where, as here, the agency’s action is found to be arbitrary and capricious, the
appropriate action is to remand to the agency.71 “[V]acatur of an unlawful agency rule
normally accompanies a remand.”72
Therefore, Plaintiffs’ Motions for Summary Judgment at Dockets 50, 54, and 55 are
hereby GRANTED. The final rule shall be VACATED to the extent it affects the Beringia
bearded seal DPS and REMANDED to NMFS to correct the aforementioned substantive
and procedural deficiencies.
The Clerk of the Court is directed to enter final judgment accordingly.
IT IS SO ORDERED this 25th day of July, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

71

Nat’l Ass’n of Homebuilders, 551 U.S. at 657–58.

72

Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1185–86 (9th Cir.

2004).
MEMORANDUM DECISION
Alaska Oil and Gas Association v. Frank Pritzker, et al, 4:13-cv-00018-RRB – 32