United States District Court, D. Alaska
RALPH R. BEISTLINE, District Judge.
I. DECISION APPEALED
On December 28, 2012, the National Marine Fisheries Service ("NMFS") and National Oceanic and Atmospheric Administration ("NOAA") of the Department of Commerce issued a final decision listing the Beringia and Okhotsk distinct population segments ("DPS") of bearded seals (the Erignathus barbatus nauticus subspecies) as threatened under the Endangered Species Act ("ESA") (hereinafter referred to as the "Listing Rule"). These consolidated actions challenge that decision. 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.
II. PENDING MOTIONS
At Docket 50 Plaintiffs AOGA/API have moved for summary judgment, which NMFS has opposed and cross-moved for summary judgment. The Center for Biological Diversity ("CBD") has also opposed and cross-moved for summary judgment. AOGA/API have replied and opposed the cross-motions.
At Docket 54 the Northern Alaska Plaintiffs have moved for summary judgment, which NMFS and CBD have opposed and cross-moved for summary judgment. The Northern Alaska Plaintiffs have replied and opposed the cross-motions.
At Docket 55 the State of Alaska (hereinafter "State") has moved for summary judgment, which NMFS and CBD have opposed and cross-moved for summary judgment. The State has replied and opposed the cross-motions.
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.
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"). 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." 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.
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.
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. A court may not substitute its judgment for that of the agency: as long as the agency states a rational connection between the facts found and the decision made it must be upheld. This deference is particularly appropriate where the decision of the agency at issue "requires a high level of technical expertise."
This Court's review is limited to "the administrative record already in existence, not some new record made in the reviewing court."
If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry...
The factfinding capacity of the district court is thus typically unnecessary to judicial review of agency decisionmaking.
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. 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]." 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." Thus, this Court examines the Listing Rule before it under Chevron's second step, i.e., whether the agency's interpretation is permissible.
Applying the foregoing standards, the ultimate issue presented in this appeal is whether or not the decision to list the Beringia and Okhotsk DPSs of the Erignathus barbatus nauticus subspecies of bearded seals as threatened under the ESA was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." For the reasons set forth below, the Court concludes that under the circumstances and given the lack of evidence upon which the listing was based, the decision to include the Beringia bearded seals as threatened was arbitrary, capricious and an abuse of discretion.
NMFS contends that the Plaintiffs lack standing to challenge the listing of the Okhotsk DPS of the bearded seals, which is located in the Sea of Okhotsk off the coast of Japan and the Russian Federation. NMFS also challenges the standing of the Northern Alaska Plaintiffs in its entirety. Standing is a threshold question affecting the jurisdiction of this Court. Accordingly, it must be determined first.
To bring an action under the APA, a party must have both constitutional and prudential standing. To have standing under Article III, a plaintiff must show that it has: (1) "suffered an injury in fact, " i.e. "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical"; (2) with a causal connection between the act complained of and the injury; and (3) a reasonable likelihood that a favorable decision will redress the injury. "For a plaintiff to have prudential standing under the APA, the interest to be sought to be protected by the complainant must be arguably within the zone of interests to be protected or regulated by the statute in question."
In opposition AOGA/API do not contend that they have suffered any injury in fact as a result of the Listing Rule's inclusion of the Okhotsk DPS. Instead, AOGA/API argue that they are attacking the Listing Rule in its entirety and, because it is indivisible, it stands or falls in its entirety. In addition to advancing a similar argument, the State further contends that it has standing because it is "injured by NMFS's lack of disclosure... and lack of consideration or evaluation of relevant factors in the listing decision." The State also contends that "[a]s one of the wildlife management authorities in the circumpolar region, Alaska has a direct interest in seeing that NMFS complies with ESA § 4 as concerns species throughout the region, especially where other individuals of the same species (from Alaska's perspective) occur within Alaska." Finally, the State argues that "[t]he Okhotsk listing is counter to Alaska's policy concern's and plans, and it presents adverse precedent for other listing decisions based on factors of concern to Alaska."
A. Listing of the Okhotsk Segment
First, this Court rejects the indivisibility argument. The Court agrees that the factors that Plaintiffs contend render the decision to list the Beringia DPS invalid could likewise render the decision to list the Okhotsk DPS invalid. But that is not the test: the test is whether or not the decision to list both segments could have been made separately as opposed to being inextricably intertwined. While the NMFS chose to list both in the same listing, Plaintiffs have not cited any rule, regulation, or decision that NMFS was required to do so. In short, the Court may sever the decision to list the Beringia segment from the decision to list the Okhotsk segment.
The Court also rejects the State's additional argument regarding its interest. Reduced to its essence, the State's argument is that it has an interest in ensuring that NMFS complies with the law. The fatal flaw in the State's position is that it would confer standing to challenge almost every decision made by a Federal agency. The generalized interest advanced by the State is insufficient to confer standing under the standard laid down in Lujan . The Court therefore concludes that Plaintiffs have not set forth suffcient evidence of standing as to the Okhotsk DPS of bearded seals.
Accordingly, the Court will address solely the listing of the Beringia DPS.
B. Standing of Northern Alaska Plaintiffs
NMFS contends that the Northern Alaska Plaintiffs have not asserted a sufficient "injury in fact" that is "concrete and particularized." Even if, as NMFS argues, the interest of the Northern Alaska Plaintiffs may be speculative and remote, other factors override the objection to their standing. It is indisputable that a listing as a threaten species has a chilling effect on the extent of the scope and nature of human interaction with that species. In this case, it is also indisputable that the Northern Alaska Plaintiffs have a historic cultural relationship with the Beringia DPS of seals, including subsistence. The Northern Alaska Plaintiffs certainly have at least as much of a direct interest in the Listing Rule as does CBD; the Court would err if it did not permit CBD to intervene on the side of NMFS. Accordingly, the Court declines to dismiss the Northern Alaska Plaintiffs for lack of standing.
A. Listing ...