Home » Case Summaries » 2016 » Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671 (9th Cir. 2016)

 
 

Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671 (9th Cir. 2016)

 

 

In 2009, the National Marine Fisheries Service (NMFS) concluded that the Okhotsk and Beringia, distinct population segments of Pacific bearded seals, warranted listing as “threatened” under the Endangered Species Act[1] (ESA) because the seals were likely to become endangered by the year 2095 as a result of the loss of sea ice. The Alaska Oil and Gas Association and others (collectively, Plaintiffs)[2] challenged the listing of both distinct population segments as arbitrary and capricious. Plaintiffs argued that 1) NMFS’s decision was not based on the best scientific and commercial date available, as required by the ESA; 2) the bearded seal population was viable; 3) the lack of adequate seal population data made any ESA determination impossible; 4) NMFS’s methods called for undue speculation; 5) NMFS unreasonably switched policy tactics from previous Arctic sea ice listing petitions; and 6) NMFS failed to demonstrate the requisite causal connection between the loss of sea ice and any impact on the seal populations.

The United States District Court for the District of Alaska found that Plaintiffs lacked standing to challenge the listing of the Okhotsk population, but granted Plaintiffs’ motion for summary judgment on the Beringia population.[3] NMFS appealed the district court decision to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit reviews a grant of summary judgment de novo to determine if the ESA listing decision was arbitrary, capricious, or otherwise a violation of law.

On appeal, Plaintiffs argued that NMFS’s decision was arbitrary and capricious because it used unreliable climate models to predict the degree of warming beyond 2050. The Ninth Circuit disagreed with Plaintiffs. The court held that the International Panel on Climate Change (IPCC) models represented the best available scientific information, and the IPCC models reasonably supported NMFS’s finding. Further, the Ninth Circuit held that NMFS provided a reasonable explanation for relying on the IPCC projections, which was all that the ESA required.

The Ninth Circuit agreed with Plaintiffs that there was more uncertainty with climate projections for the second half of the 21st century, but found that this uncertainty alone did not make NMFS’s decision arbitrary or capricious. The court recognized that there was uncertainty as to the magnitude and speed of warming, and the effect of warming on the persistence of sea ice. But the court held that the ESA does not require NMFS to make decisions based on only absolutely certain data. Instead, the ESA mandates that NMFS make its decision based on the “best scientific and commercial data available.”[4] The court concluded that NMFS provided a reasonable and scientifically supported basis for dealing with the inherent uncertainty in long-term climate projections, and that NMFS was forthcoming and open about any shortcomings its process may have had. This, the court held, is all the ESA requires.

Second, Plaintiffs argued that NMFS’s use of the year 2095 instead of 2050 as the “foreseeable future” is an unreasonable deviation from previous policy decisions. The ESA allows NMFS to list a species as threatened only if the species is likely to become endangered in the “foreseeable future.”[5] Plaintiffs contended that NMFS was precluded from considering 2095 as the foreseeable future because, in the past, NMFS had consistently used 2050 as the requisite deadline. In its listing criteria, NMFS acknowledged the change in its foreseeability analysis and justified this change as incorporating a more dynamic, species-specific, and evidence-based process. The Ninth Circuit held that as long as an agency provides a reasonable explanation for a new policy, as NMFS did in this case, then the agency is free to change its policies and does not have to show that any one policy is better than another.

Third, Plaintiffs argued that NMFS failed to establish the causal connection required between the loss of sea ice and the bearded seal population’s survival. The Ninth Circuit disagreed with Plaintiffs. NMFS determined that sea ice was crucial to the survival of bearded seals because bearded seals use sea ice during critical stages of life such as breeding, nursing and raising pups, and mating. Further, the sea ice must form over shallow waters to allow bearded seals access to their food sources on the ocean floor. The Ninth Circuit held that NMFS clearly demonstrated that a decrease in sea ice was likely to negatively impact the bearded seal population. Further, the Ninth Circuit held that uncertainty as to the speed and magnitude of the negative impact does not render the decision invalid if data available in the record reasonably supports the agency’s conclusions. An agency does not need to wait until a species’ habitat has completely disappeared before determining that the habitat loss will negatively impact the species.

Finally, Plaintiffs argued that NMFS was required, and failed, to determine that the negative effects of climate change would render the species extinct by 2100. The Ninth Circuit rejected this argument because the court found that Plaintiffs had misinterpreted the ESA. The ESA mandates that the agency determine the likelihood of endangerment based on a list of factors, but it does not require an agency to determine the projected date of extinction.[6] The Ninth Circuit determined that NMFS conducted a thorough analysis of the best scientific and commercial data available, seriously considered all of the public comments it received, and generally complied with the spirit and letter of the ESA.

Separately, the State of Alaska argued that NMFS failed to comply with its obligation under the ESA to provide written notice and justification as to why NMFS failed to adopt regulations consistent with the state’s comments.[7] The Ninth Circuit disagreed. After reviewing all of the public comments it received and prior to publishing its listing decision, NMFS wrote to the commissioner of the Alaska Department of Fish and Game (ADFG), the lead agency for commenting. In that letter, NMFS notified ADFG of NMFS’s decision regarding the bearded seal distinct population segments and addressed the substantive comments that Alaskan agencies had made. The court held that the ESA does not require separate state notification and that the ESA only requires that the justification for rejecting a state agency’s comments be in writing. The court held that the record indicates that NMFS adequately and substantively responded to all of Alaska’s arguments, and therefore, the State received the notice and process required by the ESA.

In sum, the Ninth Circuit rejected each argument offered by Plaintiffs as to why NMFS’s bearded seal ESA listing was arbitrary and capricious. The court reversed the district court’s grant of a summary judgment to Plaintiffs, and found instead for NMFS.

 

 

 

Footnotes    (↵ returns to text)

  1. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544.
  2. Plaintiffs in this case were Alaska Oil and Gas Association; American Petroleum Institute; State of Alaska; North Slope Borough; Inupiat Community of the Arctic Slope; Northwest Arctic Borough; Arctic Slope Regional Corporation; and NANA Regional Corporation, Inc.
  3. Alaska Oil & Gas Ass’n v. Pritzker, Nos. 4:13–cv–00018–RRB, 4:13–cv–00021–RRB, 4:13–cv–00022–RRB, 2014 WL 3726121, at *4, *16 (D. Alaska July 25, 2014).
  4. 16 U.S.C. § 1533(b)(1)(A).
  5. Id. § 1532(20).
  6. Id. § 1533(a)(1)(A)–(E).
  7. See id. § 1533(i) (stating that “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency’s comments or petition”).
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