United States District Court, D. Alaska
RALPH R. BEISTLINE UNITED STATES 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 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”). 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.
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 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. The Northern Alaska Plaintiffs have replied and opposed the cross-motions.
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.The State has replied and opposed the cross-motions.
At Docket 54 Plaintiffs AOGA/API have moved for summary judgment, which NMFS and CBD have opposed and cross-moved for summary judgment. AOGA/API have replied and opposed the cross-motion.
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 fact-finding capacity of the district court is thus typically unnecessary to judicial review of agency decision making.
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 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.
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.
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 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.
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.”
B. Applicable Statutes
Section 4(a)(1) of the ESA ...