Alaska Oil and Gas Association et al v. National Marine Fisheries Service et al
Filing
71
MEMORANDUM DECISION Granting 42 Motion for Summary Judgment; Granting 50 Motion for Summary Judgment; and Granting 54 Motion for Summary Judgment. (CC: DQA) (Jan, Chambers Staff)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA OIL AND GAS
ASSOCIATION; et al.,
Case No. 4:14-cv-00029-RRB
Plaintiffs,
vs.
NATIONAL MARINE FISHERIES
SERVICE; et al.,
Defendants.
NORTH SLOPE BOROUGH,
Case No. 4:15-cv-00002-RRB
Plaintiff,
vs.
PENNY PRITZGER; et al.,
Defendants.
STATE OF ALASKA,
Case No. 4:15-cv-00005-RRB
Plaintiff,
vs.
NATIONAL MARINE FISHERIES
SERVICE; et al.,
Defendants.
MEMORANDUM DECISION
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 1
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 Arctic subspecies of ringed seal (the Phoca
hispida hispida 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.
While the issues presented here appear complex, this dispute ultimately boils down
to whether or not it was reasonable for NMFS to list the Arctic ringed seals as a
“threatened species,” while the population is strong and healthy, based primarily upon
1
Endangered and Threatened Species; Threatened Status for the Arctic, Okhotsk
and Baltic Subspecies of the Ringed Seal and Endangered Status for the Ladoga
Subspecies of the Ringed Seal, 77 Fed. Reg. 76706–38 (December 28, 2012).
2
Plaintiffs: Plaintiffs in 4:14-cv-00029 are the Alaska Oil and Gas Association
(“AOGA”), the American Petroleum Institute (“API”); and in 4:15-cv-00002 the North Slope
Borough (“NSB”), 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: Defendants In 4:14-cv-00002 are the National Marine Fisheries
Service (“NMFS”) and Penny Pritzger, Secretary of Commerce; in 4:15-cv-00002 the
Secretary of Commerce and NMFS; and in 4:15-cv-00005-RRB NMFS, National Oceanic
and Atmospheric Administration (“NOAA”), Kathryn D. Sullivan, NOAA Administrator and
Eileen Sobeck, Assistant NOAA Administrator (for convenience, unless the context clearly
indicates otherwise, as used herein, “NMFS” refers to the federal defendants collectively).
Intervener: The Center for Biological Diversity, Inc. (“CBD”) has appeared as an
intervener defendant in support of the listing in the consolidated action.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 2
speculation as to what circumstances may or may not exist 80 to 100 years from now. For
the reasons set forth below, the Court concludes that it was not.
II.
PENDING MOTIONS
At Docket 42 the Northern Alaska Plaintiffs have moved for summary judgment,
which NMFS and CBD have opposed and cross-moved for summary judgment.3 The
Northern Alaska Plaintiffs have replied and opposed the cross-motions.4
At Docket 50 the State of Alaska (hereinafter “State”) has moved for summary
judgment, which NMFS and CBD have opposed and cross-moved for summary judgment.5
The State has replied and opposed the cross-m otions.6
At Docket 54 Plaintiffs AOGA/API have moved for summary judgment, which NMFS
and CBD have opposed and cross-moved for summary judgment.7 AOGA/API have replied
and opposed the cross-motion.8
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.9
3
Dockets 60 (NMFS); 63 (CBD).
4
Docket 65.
5
Dockets 60 (NMFS); 63 (CBD).
6
Docket 66.
7
Dockets 60 (NMFS); 63 (CBD).
8
Docket 67.
9
D.Ak. LR 7.2(a)(3)[B].
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 3
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”).10 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.”11 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
generally be at its most deferential. Absent superior data[,] occasional
imperfections do not violate the ESA best available standard.
10
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)).
11
5 U.S.C. § 706(2)(A).
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 4
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.12
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.13 A court may not substitute its judgment for that of the agency:14
as long as the agency states a rational connection between the facts found and the
decision made it must be upheld.15 This deference is particularly appropriate where the
decision of the agency at issue “requires a high level of technical expertise.”16
12
San Luis & Delta–Mendota Water Auth., 747 F.3d at 601–02 (internal citations
and quotation marks omitted) (omissions and substitutions in the original).
13
Nat’l Ass’n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007).
14
Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971).
15
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).
16
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
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 5
This Court’s review is limited to “the administrative record already in existence, not
some new record made in the reviewing court.”17
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 fact-finding capacity of the district court is thus typically
unnecessary to judicial review of agency decision making.18
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.19 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].”20 As the Ninth
Circuit has found “[by] leaving an ‘explicit gap’ for agency promulgated regulations, the
17
Camp v. Pitts, 411 U.S. 138, 142 (1973).
18
San Luis & Delta–Mendota Water Authority, 747 F.3d at 602 (internal citations
and quotation marks omitted).
19
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43
(1984).
20
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).
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 6
ESA expressly delegates authority to the [agency] to decide how such listing
determinations are to be made.”21 Thus, this Court examines the Listing Rule before it
under Chevron’s second step, i.e., whether the agency’s interpretation is permissible.22
Applying the foregoing standards, the ultimate issue presented in this appeal
is whether or not the decision to list the Arctic subspecies of ringed seal (the Phoca
hispida hispida subspecies) 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 in the absence of evidence of the current
population level, the lack of projected decline in that population, and the failure to
define an extinction threshold, the evidence is insufficient to support a finding that
the Arctic ringed seals are threatened with extinction in the foreseeable future. This,
coupled with the lack of any suggested efforts to protect the Arctic ringed seals,
leads the Court to conclude that the decision to include the Arctic ringed seals as
threatened was arbitrary, capricious and an abuse of discretion. 23
21
Trout Unlimited v. Lohn, 559 F.3d 946, 961 (9th Cir. 2009).
22
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).
23
The Court agrees with NMFS that, despite a minor ambiguity, listing of the Arctic
ringed seals is the only issue properly before the Court.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 7
V.
DISCUSSION
A.
Listing Rule
NMFS provided the following summary:
SUMMARY: We, NMFS, issue a final determination to list the Arctic (Phoca
hispida hispida), Okhotsk (Phoca hispida ochotensis), and Baltic (Phoca
hispida botnica) subspecies of the ringed seal (Phoca hispida) as threatened
and the Ladoga (Phoca hispida ladogensis) subspecies of the ringed seal as
endangered under the Endangered Species Act (ESA). We will propose to
designate critical habitat for the Arctic ringed seal in a future rulemaking. To
assist us in this effort, we solicit information that may be relevant to the
designation of critical habitat for Arctic ringed seals. In light of public
comments and upon further review, we are withdrawing the proposed ESA
section 4(d) protective regulations for threatened subspecies of the ringed
seal because we have determined that such regulations are not necessary
or advisable for the conservation of the Arctic, Okhotsk, or Baltic subspecies
of the ringed seal at this time. Given their current population sizes, the longterm nature of the primary threat to these subspecies (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.24
Plaintiffs challenge the following finding in the Listing Rule:
We have reviewed the status of the ringed seal, fully considering the
best scientific and commercial data available, including the status review
report. We have reviewed threats to these subspecies of the ringed seal, as
well as other relevant factors, and considered conservation efforts and
special designations for ringed seals by states and foreign nations. In
consideration of all of the threats and potential threats to ringed 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:
Arctic subspecies: (1) There are no specific estimates of population
size available for the Arctic subspecies, but most experts postulate that the
population numbers in the millions. (2) The depth and duration of snow cover
are forecasted to decrease substantially throughout the range of the Arctic
ringed seal. Within this century, snow cover is forecasted to be inadequate
24
77 Fed. Reg. 76706.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 8
for the formation and occupation of birth lairs over most of the subspecies’
range. (3) Because ringed seals stay with the ice as it annually advances and
retreats, the southern edge of the ringed seal’s range may initially shift
northward. Whether ringed seals will continue to move north with retreating
ice over the deeper, less productive Arctic Basin waters and whether the
species that they prey on will also move north is uncertain. (4) The Arctic
ringed seal’s pupping and nursing seasons are adapted to the phenology of
ice and snow. The projected decreases in sea ice, snow cover, and thermal
capacity of birthing lairs will likely lead to decreased pup survival. Thus,
within the foreseeable future it is likely that the number of Arctic ringed seals
will decline substantially, and they will no longer persist in substantial
portions of their range. We have determined that the Arctic subspecies of the
ringed seal is not in danger of extinction throughout all of its range, but is
likely to become so within the foreseeable future. Therefore, we are listing
it as threatened. 25
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.”26
B.
Applicable Statutes
Section 4(a)(1) of the ESA provides:27
(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
25
77 Fed. Reg. 76716.
26
16 U.S.C. § 1532(20); 50 C.F.R. § 424.01(m) (10-1-12).
27
16 U.S.C. § 1533(a)(1).
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 9
(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 provides in relevant part:28
(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.
(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).29 It has been stated that “[t]he ultimate goal of the ESA is to recover listed species
28
16 U.S.C. § 1533(b)(1)
29
See 50 CFR § 424.11(b), (c) Factors for listing, delisting, or reclassifying species
(10-1-12).
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 10
to the point where they no longer need ESA protection.”30 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.31 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.”32 The
listing of a species as threatened triggers several protective provisions.33 The most recent
edition of C.F.R. Part 223 (October 1, 2013) does not itself contain any provision generally
or specifically regulating activities affecting the Arctic ringed seal. 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.”34 Of these, only Part 222, which applies to both threatened
and endangered species,35 applies to this case.36 In this case, the only apparent provision
30
Western Watersheds Project v. Ashe, 948 F. Supp.2d 1166, 1171 (D. Idaho
2013) (citing 16 U.S.C. §§ 1531(b)–(c), 1532(3)).
31
ESA § 4(d) [16 U.S.C. § 1533(d)].
32
ESA § 4(a)(3)(A) [16 U.S.C. § 1533(a)(3)(A)].
33
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
procedures to govern activities involving them).
34
50 C.F.R. § 223.101(c) (10-1-2013).
35
Governing “the taking, possession, transportation, sale, purchase, barter,
exploration, importation of, and other requirements to wildlife . . . determined to be
(continued...)
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 11
that may be applicable is the general permitting procedures.37 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)38 by regulation.39
Although it was initially proposed to apply ESA § 9(a) to the listing of the Arctic
ringed seal, in promulgating the Listing Rule NMFS determined that such regulations were
unnecessary.40 NMFS 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.41 NMFS specifically 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 Arctic ringed seals include permits and
authorizations relating to coastal development and habitat alteration, oil and
35
(...continued)
threatened or endangered pursuant to section 4(a) of the Act.” 50 C.F.R. § 222.101(a) (101-2013).
36
Part 224 applies to endangered species 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 Arctic ringed seal.
37
50 C.F.R. §§ 222.301, et seq.
38
16 U.S.C. § 1538(a).
39
50 C.F.R. § 222.301(b).
40
77 Fed. Reg. 76718.
41
Id.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 12
gas development (including seismic exploration), toxic waste and other
pollutant discharges, and cooperative agreements for subsistence harvest.42
NMFS summarized the factors it considered in listing the Arctic ringed seals as
threatened. With respect to sea ice and snow cover NMFS found:
Arctic ringed seal: In the East Siberian, Chukchi, Beaufort, KaraLaptev, and Greenland Seas, as well as in Baffin Bay and the Canadian
Arctic Archipelago, little or no decline in ice extent is expected in April and
May during the remainder of this century. In most of these areas, a moderate
decline in sea ice is predicted during June within this century; while
substantial declines in sea ice are projected in July and November after midcentury. The central Arctic (defined as regions north of 80°N. latitude) also
shows declines in sea ice cover that are most apparent in July and
November after 2050. For Hudson Bay, under a warmer climate scenario (for
the years 2041–2070) Joly et al. (2010) projected a reduction in the sea ice
season of 7–9 weeks, with substantial reductions in sea ice cover most
apparent in July and during the first months of winter.
In the Bering Sea, April and May ice cover is projected to decline
throughout this century, with substantial interannual variability forecasted in
the eastern Bering Sea. The projection for May indicates that there will
commonly be years with little or no ice in the western Bering Sea beyond
mid-century. Very little ice has remained in the eastern Bering Sea in June
since the mid-1970s. Sea ice cover in the Barents Sea in April and May is
also projected to decline throughout this century, and in the months of June
and July, ice is expected to disappear rapidly in the coming decades.
Based on model projections, April snow depths over much of the
range of the Arctic ringed seal averaged 25–35 cm in the first decade of this
century, consistent with on-ice measurements by Russian scientists (Weeks,
2010). By mid-century, a substantial decrease in areas with April snow
depths of 25–35 cm is projected (much of it reduced to 20–25 cm). The
deepest snow (25–30 cm) is forecasted to be found just north of Greenland,
in the Canadian Arctic Archipelago, and in an area tapering north from there
into the central Arctic Basin. Southerly regions, such as the Bering Sea and
Barents Sea, are forecasted to have snow depths of 5 cm or less by midcentury. By the end of the century, April snow depths of 20–25 cm are
forecasted only for a portion of the central Arctic, most of the Canadian Arctic
Archipelago, and a few small isolated areas in a few other regions. Areas
42
Id.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 13
with 25–30 cm of snow are projected to be limited to a few small isolated
pockets in the Canadian Arctic by 2090–2099. 43
After an extensive analysis of the general effects of change in ice and snow cover
on ringed seals, NMFS concluded:
Arctic ringed seal: The depth and duration of snow cover is projected
to decrease throughout the range of Arctic ringed seals within this century.
Whether ringed seals will continue to move north with retreating ice over the
deeper, less productive Arctic Basin waters and whether forage species that
they prey on will also move north is uncertain and speculative (see additional
discussion below). Initially, it is possible that impacts will be somewhat
ameliorated if the subspecies’ range retracts northward with its sea ice
habitats. By 2100, however, April snow cover is forecasted to become
inadequate for the formation and occupation of ringed seal birth lairs over
much of the subspecies’ range. Thus, even if the range of the Arctic ringed
seal contracts northward, by 2100 April snow cover suitable for birth lairs is
expected to be limited to a portion of the central Arctic, most of the Canadian
Arctic Archipelago, and a few other small isolated areas. The projected
decreases in ice and, especially, snow cover are expected to lead to
increased pup mortality from premature weaning, hypothermia, and
predation.44
After considering the foregoing factors and ocean acidification, NMFS summarized:
Climate models consistently project overall diminishing sea ice and
snow cover at least through the current century, with regional variation in the
timing and severity of those losses. Increasing atmospheric concentrations
of greenhouse gases, including CO2, will drive climate warming and increase
acidification of the ringed seal’s ocean and lake habitats. The impact of
ocean warming and acidification on ringed seals is expected to be primarily
through changes in community composition. The precise extent and timing
of these changes is uncertain, yet the overall trend is clear: Ringed seals will
face an increasing degree of habitat modification through the foreseeable
future.
Diminishing ice and snow cover are the greatest challenges to
persistence of all of the ringed seal subspecies. While winter precipitation is
43
77 Fed. Reg. 76708.
44
77 Fed. Reg. 76710.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 14
forecasted to increase in a warming Arctic, the duration of ice cover is
projected to be substantially reduced, and the net effect will be lower snow
accumulation on the ice. Within the century, snow cover adequate for the
formation and occupation of birth lairs is forecasted to occur in only parts of
the Canadian Arctic Archipelago, a portion of the central Arctic, and a few
small isolated areas in other regions. Without the protection of lairs, ringed
seals, especially newborns, are vulnerable to freezing and predation. We
conclude that the ongoing and projected changes in sea ice habitat pose
significant threats to the persistence of each of the five subspecies of the
ringed seal and are likely to curtail the range of the species substantially
within the foreseeable future.45
With respect to utilization for commercial, subsistence, recreational, scientific or
educational purposes, NMFS concluded: “that there is no evidence that overutilization of
ringed seals is occurring at present.”46 NMFS considered the risk of disease as low, and
“the threat posed to ringed seals by predation is currently moderate, but predation risk is
expected to increase as snow and ice conditions change with a warming climate.”47 With
respect to pollution and contaminants, oil and gas industry, fisheries, and shipping NMFS
concluded: “We find that the threats posed by pollutants, oil and gas activities, fisheries,
and shipping do not individually or collectively place the Arctic or Okhotsk subspecies of
ringed seals at risk of becoming endangered in the foreseeable future.”48 The analysis of
demographic risks concluded:
Within the foreseeable future, the BRT judged the risks to Arctic ringed seal
persistence to be moderate (diversity and abundance) to high (productivity
and spatial structure). As noted above, the impacts to Arctic ringed seals
45
77 Fed. Reg. 76711.
46
Id.
47
Id.
48
77 Fed. Reg. 76714.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 15
may be somewhat ameliorated initially if the subspecies’ range retracts
northward with sea ice habitats, but by the end of the century snow depths
are projected to be insufficient for lair formation and maintenance throughout
much of the subspecies’ range, including the potentially retracted northward
one.49
Although the Listing Rule discussed conservation efforts with respect to the Arctic ringed
seals in general, it made neither findings nor drew conclusions from conservation efforts,
internationally or domestically. It did note, however, that a co-management agreement with
Alaska Natives to monitor subsistence harvesting and cooperate research and education
programs pertaining to seals existed, and that NMFS’s national marine mammal Laboratory
is engaged in an active research program to enhance the understanding of risk factors
affecting ringed seals to improve the ability to develop effective management measures
for the species.50
The Listing Rule concluded:
Arctic subspecies: (1) There are no specific estimates of population
size available for the Arctic subspecies, but most experts postulate that the
population numbers in the millions. (2) The depth and duration of snow cover
are forecasted to decrease substantially throughout the range of the Arctic
ringed seal. Within this century, snow cover is forecasted to be inadequate
for the formation and occupation of birth lairs over most of the subspecies’
range. (3) Because ringed seals stay with the ice as it annually advances and
retreats, the southern edge of the ringed seal’s range may initially shift
northward. Whether ringed seals will continue to move north with retreating
ice over the deeper, less productive Arctic Basin waters and whether the
species that they prey on will also move north is uncertain. (4) The Arctic
ringed seal’s pupping and nursing seasons are adapted to the phenology of
ice and snow. The projected decreases in sea ice, snow cover, and thermal
capacity of birthing lairs will likely lead to decreased pup survival. Thus,
49
77 Fed. Reg. 76715.
50
77 Fed. Reg. 76715–16.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 16
within the foreseeable future it is likely that the number of Arctic ringed seals
will decline substantially, and they will no longer persist in substantial
portions of their range. We have determined that the Arctic subspecies of the
ringed seal is not in danger of extinction throughout all of its range, but is
likely to become so within the foreseeable future. Therefore, we are listing
it as threatened. 51
D.
Arguments
The Northern Alaska Plaintiffs contend that the use of a foreseeable future
extending out 100 years was arbitrary and capricious in that it used climate modeling that
NMFS had previously concluded was too uncertain and unreliable, and that NMFS failed
to provide a rational connection between the limited scientific data available and its
decision.
The State also contends that the application of the foreseeable future period beyond
50 years was arbitrary and capricious. Additionally, the State argues that NMFS failed to
provide an adequate response under ESA § 4(I).
AOGA/API also joins the argument that the use of the 100-year foreseeable future
was improper. They also contend that NMFS has not, indeed cannot, project the
magnitude of the risk of extinction to Arctic ringed seals.
E.
Analysis
The parties agree that the Listing Rule relied principally, if not solely, upon climate
change as the governing factor for listing the Arctic ringed seals as threatened.52 It is also
undisputed that, under the regulations, climate change is not only a factor properly
51
77 Fed. Reg. 76716.
52
See 77 Fed. Reg. 76707.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 17
considered, but that a listing may be made on any one of the factors alone.53 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.54 With
that general background, the Court will address the issues raised: first the procedural
issue, then the substantive issues.
1. Procedural Issue
The State contends that NMFS failed to adequately respond to the State’s
comments. Section 4(I) of the EPA55 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
Initially, the State contends that the State failed to provide a separate written
justification relying on this Court’s prior decision in Salazar.57 The Ninth Circuit having
specifically rejected that argument in Salazar,58 this Court must also reject it in this case.
53
50 C.F.R. § 424.11(c) (10-1-12).
54
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).
55
56
16 U.S.C. § 1533(I)
See 50 C.F.R. § 424.18(c) (10-1-12) (containing identical language).
57
Alaska Oil and Gas Ass’n v. Salazar, 916 F. Supp.2d 974, 1003 (D. Alaska
2013), reversed and remanded sub nom., Alaska Oil and Gas Ass’n v. Jewell, ___ F.3d
___, 2016 WL 766855 (9th Cir. Feb. 29, 2016).
58
Jewell, ___ F.3d at ___, 2016 W L 766855 at *14.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 18
The State also argues that the NMFS responses were inadequate in four particulars:
(1) failed to consider or respond to two independent studies submitted or referred to by the
State; (2) adequately address comments regarding the current abundance and health of
the Arctic ringed seal; (3) adequately address the State’s comment pointing out the historic
resilience of the ringed seal or its ability to adapt to changed climatic conditions over a nine
or ten generational span; and (4) in using a 100-year forecast, did not adequately respond
to the departure from its historic use of a 50-year forecast.
This Court rejects the State’s argument as to (2), (3), and (4). NMFS did respond
to those comments. Reduced their essence, the State’s “objections” for the most part
addressed a disagreement with the sufficiency of the content of the responses. The Ninth
Circuit made clear in Jewel that in the context of weighing the adequacy of an agency’s
response “a court will not analyze the sufficiency of [NMFS’s] responses.”59 As to point (1)
a slightly different scenario exists. The State refers to two independent studies: (1) a study
of ringed seals in Hudson Bay showing that the health of ringed seals is better in the
2000's than it was in the 1990's when it was colder and there was more ice; and (2) an
Alaska industry group ecosystem studies or Bureau of Ocean Energy Management,
Regulation, and Enforcement studies cited in AFDG’s comment letters. The Court will
address the two points in seriatim.
In response to the Hudson Bay studies, implicitly acknowledging that the study cited
by the State had not been specifically cited, NMFS argues that its summary of comments
59
Id.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 19
indicated that it had thoroughly reviewed “all ‘peer-reviewed journal articles, technical
reports, and references to scientific literature’ provided and those not specifically
mentioned in the response to comments had been ‘considered previously or did not alter
our determinations regarding the status of the four ringed seal subspecies.’”60 In response,
the State argues that this generic response is insufficient to show that it actually reviewed
the study’s key findings vis-a-vis the declination during the heavy ice conditions and
increase during periods of less sea ice.61
While NMFS’s response was perhaps technically deficient, the State’s argument still
fails. Even assuming that NMFS did not consider that particular study, the State fails to
advance any argument that the failure had any material bearing on the ultimate decision,
based on projections occurring at some point after the year 2050. To require an agency
to specifically respond to each and every study referenced by the State by name simply
exalts form over substance. Particularly where, as in this case, the study in question had
little, if any, material relevance to the ultimate decision addressing projected conditions a
hundred years in the future.62
In response to the failure to respond to the Alaska industry group studies, NMFS
argues that, because the State simply provided links to websites without identifying any
specific, relevant study the State believed NMFS should have considered. NMFS contends
60
NMFS Opposition, Docket 60, p. 60 (citation to the record omitted).
61
State Reply, Docket 66, p. 12.
62
The Court notes that the State does not advance any argument as to the
materiality of the omitted material, in particular how its consideration might have changed
the decision.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 20
that this constituted a waiver of that point.63 In response, the State simply argues that in
2011 NMFS could have accessed the URLs provided and located the studies referenced.64
The URL identified by the State in its comment, http://alaska.boemre.gov/ess/index.htm,65
is a general index.
In its Reply the State, after acknowledging that the URL cited has been superceded,
states:66
The link to the new website, www.BOEM.gov, brings up the agency’s main
page, with a tab for “Environmental Stewardship,” which includes a link to
“Environmental Studies,” where the ADFG-referenced reports and data can
be accessed. The industry website states that the marine mammals studies
have been moved to a new webpage—www.chukchiscience.com.42 Links to
the studies are available there under “Study the Science.”
42
See http://alaska.conocophillips.com/EN/sustainable/environment/Pages/studies.aspx.
The Court agrees with NMFS that in failing to name specific, relevant studies the
State waived any objection to the failure to consider that material. Given the volume of
material that NMFS must review and consider in the rule adoption process,67 it is simply
unrealistic to expect a federal agency to search an index to ascertain where the material
63
NMFS Opposition, supra.
64
State Reply, supra.
65
AR 3007851.
66
State Reply, supra, pp. 12–13.
67
The Court notes that in this case, NMFS received 5,294 comment submissions
in the form of letters via mail, fax and electronically; testimony from 41 people and written
submissions from 12 people at three public hearings; plus comments from State and
Federal Agencies, foreign government agencies, native organizations, environmental
groups, industry groups, and other interested persons. 77 Fed. Reg. 76719.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 21
to which a comment refers may be found. Had the State included in its comments the detail
it presents in its Reply, NMFS would not have had a basis upon which to ignore it.
2.
Substantive Issues
Initially the Court notes that, in a case involving the Beringia DPS of bearded seals,
it previously held under the facts of that case, that the use of a 100-year projection was not
within the reasonably foreseeable future. In that case, after finding that under the facts
presented, forecasting more than 50 years into the future was simply too remote and
speculative to support a determination that the bearded seal was in danger of becoming
extinct.68 The Court concluded:
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.”(Fn omitted) 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 preserve the
continued existence of the listed species, is inherently arbitrary and
capricious.69
The Court, however, also specifically noted:
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
68
Alaska Oil & Gas Ass’n v. Blank, Case No. 4:13-cv-00018-RRB, Docket 78, p. 31
(hereinafter “Seal I”).
69
Id., pp. 31–32.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 22
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
Appeals from that decision are presently pending before the Ninth Circuit.71
Thus, the threshold issue before the Court in this case is whether, in light of its
earlier decision and applying the doctrine of stare decisis, it should reach a different result
based upon the facts presented. For the following reasons the Court is of the opinion that
it should not.
Throughout its listing rule NMFS uses the term “foreseeable future.” NMFS defined
foreseeability in general terms as:
The foreseeability of a species’ future status is case specific and depends
upon both the foreseeability of threats to the species and foreseeability of the
species’ response to those threats. When a species is exposed to a variety
of threats, each threat may be foreseeable over a different time frame. For
example, threats stemming from well-established, observed trends in a
global physical process may be foreseeable on a much longer time horizon
than a threat stemming from a potential, though unpredictable, episodic
process such as an outbreak of disease that may never have been observed
to occur in the species.
The principal threat to ringed seals is habitat alteration stemming from
climate change. In the 2008 status review for the ribbon seal (Boveng et al.,
2008; see also 73 FR 79822, December 30, 2008), NMFS scientists used the
same climate projections used in our risk assessment for ringed seals (which
is summarized in the preamble to this final rule), and analyzed threats
associated with climate change through 2050. One reason for that approach
was the difficulty of incorporating the increased divergence and uncertainty
in climate scenarios beyond that time. Other reasons included the lack of
data for threats other than those related to climate change beyond 2050, and
70
Id., p.31, note 69.
71
Ninth Circuit Nos. 14-35806, 14-35811.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 23
the fact that uncertainty embedded in the assessment of the ribbon seal’s
response to threats increased as the analysis extended farther into the
future.
Since completing the analysis for ribbon seals, with its climate impact
analysis, NMFS scientists have revised their analytical approach to the
foreseeability of threats due to climate change and responses to those
threats, adopting a more threat-specific approach based on the best
scientific and commercial data available for each respective threat. For
example, because the climate projections in the Intergovernmental Panel on
Climate Change’s (IPCC’s) Fourth Assessment Report (AR4; IPCC, 2007)
extend through the end of the century (and we note the IPCC’s Fifth
Assessment Report (AR5), due in 2014, will extend even farther into the
future), for our analysis of ringed seals we used the same models to assess
impacts from climate change through 2100. We continue to recognize that
the farther into the future the analysis extends, the greater the inherent
uncertainty, and we incorporated that limitation into our assessment of the
threats and the species’ response. For other threats, where the best scientific
and commercial data do not extend as far into the future, such as for
occurrences and projections of disease or parasitic outbreaks, we limited our
analysis to the extent of such data. This threat-specific approach creates a
more robust analysis of the best scientific and commercial data available. It
is also consistent with the memorandum issued by the Department of
Interior, Office of the Solicitor, regarding the meaning of the term
‘‘foreseeable future’’ (Opinion M–37021; January 16, 2009).72
In response to an objection projecting through the end of the 21st century, NMFS
stated:
Comment 9: A peer reviewer expressed the view that climate model
predictions should not be considered beyond mid-century because they rely
on assumptions about future policy decisions that will affect GHG emissions
and are thus highly speculative. 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. Two reviewers and several commenters expressed
the opinion that trying to predict the response of seals to environmental
change beyond mid-century increases the uncertainty unreasonably. A
72
77 Fed. Reg. 76707.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 24
reviewer and several public comments also pointed out that assessing
impacts to ringed 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; (2) the IUCN red list process, which uses a timeframe
of three generation lengths; and (3) the mid-century timeframe considered
to evaluate environmental responses of marine mammals to climate change
in a special issue (March 2008) of the journal Ecological Applications (Walsh,
2008). A few commenters expressed the opinion that the altered approach
is significant because the listing determinations are 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; Walsh, 2008), 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.
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
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 25
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 Interior, Office of the Solicitor, regarding the
meaning of the term ‘‘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 AOGCMs under six “marker” scenarios from the
Special Report on Emissions Scenarios (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 ringed 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
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 FWS in
conducting its status review of the polar bear under the ESA, and the IPCC
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 26
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 ringed seal, the
climate projections in the IPCC’s AR4, as well as the scientific papers used
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 ringed 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. 73
73
77 Fed. Reg. 76722–23.
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 27
NMFS essentially acknowledged that it lacks sufficient data on the resilience of
Arctic bearded seals to cope with climatic changes,74 or to define an extinction threshold
for bearded seals and assessing the probability of reaching that threshold within a specified
time prior to the end of the century.75 NMFS also acknowledged 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.76
It does not appear from the Listing Rule that any serious threat of a reduction in the
population of the Arctic ringed seal, let alone extinction, exists prior to the last decade of
the 21st century. This is troubling. Indeed, the Listing Rule itself concedes that, at least
through mid-21st century, there is little threat to the population level of the Arctic ringed
seal. With respect to the second half of the century it appears that no significant threat to
the Arctic ringed seal is contemplated until sometime after 2050, but somewhere around
2090–2100. 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 some 80 years into the future is simply
74
77 Fed. Reg. 76726 (response to Comment 23).
75
77 Fed. Reg. 76716, 76728 (response to Comment 29).
76
77 Fed. Reg. 76728 (response to Comment 30).
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 28
too speculative and remote to support a determination that the bearded seal is in danger
of becoming extinct.77
VI.
CONCLUSION/ORDER
After reviewing the voluminous record, applicable case law, and its prior decision
in Seal I, the Court has determined that, as with the Beringia DPS of bearded seals, the
action of NMFS in listing the Arctic ringed seals was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”78 In particular, the Court reaches this
conclusion based on two factors: (1) the lack of any articulated discernable, quantified
threat of extinction within the reasonably foreseeable future; and (2) the express finding
by NMFS that (a) the proposed protective regulations for threatened subspecies of the
ringed seal were not necessary or advisable for the conservation of the Arctic ringed seal
at this time and (b) the existing protections under the Marine Mammal Protection Act made
it unlikely that the proposed protective regulations would provide appreciable conservation
benefits. Listing the Arctic ringed seal as “endangered” has 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 Arctic ringed seal throughout its range. A listing under the
77
As in Seal I 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.”
78
5 U.S.C. § 706(2)(A).
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 29
ESA based upon an un-quantified threat of extinction that may occur more than 50 years
in the future that provides no additional action intended to 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.79 “[V]acatur of an unlawful agency rule
normally accompanies a remand.”80
There is nothing, of course, to prevent NMFS from revisiting this matter if
circumstances later develop to suggest that the Arctic ringed seal may become threatened
in the “reasonably foreseeable future.”
Therefore, Plaintiffs’ Motions for Summary Judgment at Dockets 42, 50, and 54 are
hereby GRANTED. The Cross-Motions of Defendants at Dockets 60 and 63 are hereby
DENIED. The final rule is hereby VACATED to the extent it affects the Arctic ringed seal
(the Phoca hispida hispida subspecies) and REMANDED to NMFS to correct the
aforementioned deficiencies.
The Clerk of the Court is directed to enter final judgment accordingly.
IT IS SO ORDERED this 11th day of March, 2016.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
79
Nat’l Ass’n of Homebuilders, 551 U.S. at 657–58.
80
Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1185–86 (9th Cir.
2004).
MEMORANDUM DECISION
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 30
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