Alaska Oil and Gas Association et al v. National Marine Fisheries Service et al
Filing
75
CORRECTED MEMORANDUM DECISION. (Jan, Chambers Staff) Modified title on 3/17/2016 (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 PRITZKER; et al.,
Defendants.
STATE OF ALASKA,
Case No. 4:15-cv-00005-RRB
Plaintiff,
vs.
NATIONAL MARINE FISHERIES
SERVICE; et al.,
Defendants.
MEMORANDUM DECISION [CORRECTED]
MEMORANDUM DECISION [CORRECTED]
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
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, Eileen
Sobeck, Assistant NOAA Administrator (for convenience, unless the context clearly indicates
otherwise, as used herein, “NMFS” refers to the federal defendants collectively) and the State
of Alaska.
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 [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 2
species,” while the population is strong and healthy, based primarily upon 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-motions.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
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.
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 3
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
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
9
D.Ak. LR 7.2(a)(3)[B].
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).
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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.
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
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).
MEMORANDUM DECISION [CORRECTED]
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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
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”
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).
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).
MEMORANDUM DECISION [CORRECTED]
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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 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,
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).
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).
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 7
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
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 long-term 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
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.
24
77 Fed. Reg. 76706.
MEMORANDUM DECISION [CORRECTED]
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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 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:
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).
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(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 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.
28
16 U.S.C. § 1533(b)(1)
MEMORANDUM DECISION [CORRECTED]
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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 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,
29
See 50 CFR § 424.11(b), (c) Factors for listing, delisting, or reclassifying species
(10-1-12).
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).
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only Part 222, which applies to both threatened and endangered species,35 applies to this
case.36 In this case, the only apparent provision 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
35
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) (10-1-2013).
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.
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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 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, Kara-Laptev,
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 mid-century. 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 mid1970s. 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
42
Id.
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forecasted to have snow depths of 5 cm or less by mid-century. 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 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
43
77 Fed. Reg. 76708.
44
77 Fed. Reg. 76710.
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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
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:
45
77 Fed. Reg. 76711.
46
Id.
47
Id.
48
77 Fed. Reg. 76714.
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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 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
49
77 Fed. Reg. 76715.
50
77 Fed. Reg. 76715–16.
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 16
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.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
51
77 Fed. Reg. 76716.
52
See 77 Fed. Reg. 76707.
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 17
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.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
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).
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 18
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.
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
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 WL 766855 at *14.
59
Id.
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 19
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
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,
60
NMFS Opposition, Docket 60, p. 60 (citation to the record omitted).
61
State Reply, Docket 66, p. 12.
MEMORANDUM DECISION [CORRECTED]
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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
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.
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.
63
NMFS Opposition, supra.
64
State Reply, supra.
65
AR 3007851.
66
State Reply, supra, pp. 12–13.
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 21
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 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
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.
68
Alaska Oil & Gas Ass’n v. Blank, Case No. 4:13-cv-00018-RRB, Docket 78, p. 31
(hereinafter “Seal I”).
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 22
existing protections were adequate, no further protective action need be taken
at this time. Listing the Beringia DPS as [“threatened”] 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 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
69
Id., pp. 31–32.
70
Id., p.31, note 69.
71
Ninth Circuit Nos. 14-35806, 14-35811.
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 23
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 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
72
77 Fed. Reg. 76707.
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 24
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 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
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 25
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 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 stateof-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
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 26
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 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 wellknown 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 IPCC-recognized 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
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 27
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
NMFS essentially acknowledged that it lacks sufficient data on the resilience of Arctic
ringed seal to cope with climatic changes,74 or to define an extinction threshold for ringed 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 ringed seal population and trends was limited, additional studies were needed to
understand the population dynamics and habitat of the ringed 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
73
77 Fed. Reg. 76722–23.
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 [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 28
impact on the ringed 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 too speculative and
remote to support a determination that the Arctic ringed 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 “threatened” has no effect except to require all federal agencies to
consult with NMFS before carrying out any action that might jeopardize the continued
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 [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 29
existence of the Arctic ringed seal throughout its range. A listing under the 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 Docket Numbers 42, 50,
and 54 are hereby GRANTED. The Cross-Motions of Defendants at Docket Numbers 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 17th day of March, 2016.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
79
80
Nat’l Ass’n of Homebuilders, 551 U.S. at 657–58.
Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1185–86 (9th Cir.
2004).
MEMORANDUM DECISION [CORRECTED]
Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries Svc., 4:14-cv-00029-RRB – 30
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