United States District Court, D. Alaska
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 35 is Plaintiff Center for Biological
Diversity (“CBD”)’s Motion for Summary
Judgment Pursuant to Federal Rule of Civil Procedure 56. Also
before the Court at Docket 39 is Defendants’ Motion for
Summary Judgment. Amici curiae Alaska Oil and Gas Association
and the American Petroleum Institute (“Amici”)
filed a brief in support of Defendants’ position at
Docket 51. Oral argument was not requested as to either
motion and was not necessary to the Court’s
determinations.
STATUTORY
AND REGULATORY BACKGROUND
The
Endangered Species Act (“ESA”) requires the
Secretary of the Interior to “determine whether any
species is an endangered species or a threatened species . .
. .”[1] The Secretary may base this determination
on any of the following five factors affecting a species:
“the present or threatened destruction, modification,
or curtailment of its habitat or range;”
“overutilization for commercial, recreational,
scientific, or educational purposes;” “disease or
predation;” “the inadequacy of existing
regulatory mechanisms;” or “other natural or
manmade factors affecting its continued
existence.”[2] The Secretary must rely only on “the
best scientific and commercial data available to him after
conducting a review of the status of the species . . .
.”[3]
“To
the maximum extent practicable, within 90 days after
receiving” a petition to list a species, “the
Secretary shall make a finding as to whether the petition
presents substantial scientific or commercial information
indicating that the petitioned action may be warranted”
(“90-day finding”).[4] If the Secretary finds that
action may be warranted, “the Secretary shall promptly
commence a review of the status of the species
concerned” and, within 12 months of receiving the
petition, find that listing is warranted, not warranted, or
warranted but precluded by pending listing proposals
(“12-month finding”).[5]
FACTUAL
BACKGROUND
On
February 8, 2008, CBD filed with the Secretary a petition to
list the Pacific walrus as threatened or
endangered.[6] On December 3, 2008, CBD filed a complaint
in the district court, seeking, in relevant part, a
declaration that the Secretary was in violation of the ESA
for failing to make a 90-day finding and a permanent
injunction compelling the Secretary to make and publish a
90-day finding.[7] On May 14, 2009, the parties filed a
settlement agreement in that case in which the U.S. Fish and
Wildlife Service (“FWS”) agreed to publish a
90-day finding as to the Pacific walrus by September 10,
2009.[8] On May 18, 2009, the district court
adopted the parties’ settlement
agreement.[9]
On
September 10, 2009, FWS issued its 90-day finding, in which
it determined that “the petition presents substantial
scientific or commercial information indicating that listing
this subspecies may be warranted.” FWS then initiated
“a status review to determine if listing the Pacific
walrus [was] warranted.”[10] On August 27, 2010, CBD and
FWS filed an amended settlement agreement that required FWS
to submit its 12-month finding by January 31,
2011.[11] On September 1, 2010, the district court
adopted the January 31, 2011 deadline.[12]
On
February 10, 2011, FWS issued a 12-month finding as to the
Pacific walrus (“2011 Listing
Decision”).[13] FWS determined that listing the Pacific
walrus was warranted but precluded by pending listing
proposals.[14] The 45-page decision included
subsections summarizing information pertaining to each of the
five factors enumerated in 16 U.S.C. § 1533(a)(1), upon
which the Secretary may base a determination as to the
relevant species.[15] The agency “identif[ied] loss of
sea ice in the summer and fall and associated impacts . . .
and subsistence harvest . . . as the primary threats to the
Pacific walrus in the foreseeable
future.”[16] It characterized these threats as being
“of sufficient imminence, intensity, and magnitude to
cause substantial losses of abundance and an anticipated
population decline of Pacific walrus that will continue into
the foreseeable future.”[17] FWS also explained the
reasoning for its preclusion finding and its efforts to make
expeditious progress on listing-candidate
species.[18] In making its findings, FWS determined
that the “foreseeable future” extended from 2011
to the year 2100.[19]
On July
12, 2011, in the course of multidistrict litigation related
to several listing petitions, CBD and FWS reached a
settlement, in which FWS agreed to submit either a proposed
rule or a not-warranted finding as to the Pacific walrus by
September 30, 2017.[20] On September 9, 2011, the district court
adopted the parties’ settlement
agreement.[21]
In May
2017, FWS issued its Final Species Status Assessment for the
Pacific Walrus (“2017 Species Status Assessment”
or “Assessment”).[22] The 297-page Assessment
includes six sections: an introduction, a description of the
Pacific walrus, analyses of current and future resource
conditions, an analysis of the viability of the Pacific
walrus, and management recommendations.[23] The
Assessment, relying largely on studies published subsequent
to the 2011 Listing Decision, “found that environmental
changes over the last several years such as sea ice loss and
associated stressors are impacting Pacific walruses, but that
other stressors that were identified in 2011 have declined in
magnitude.”[24] It further determined that “the
population is currently under low levels of stress and
recovering from a population decline that started about 1980
. . . .”[25] The Assessment also found that the
“availability of preferred sea ice habitat for Pacific
walruses would decline in the future” and consequently
increase stressor levels, indicating likely “future
population declines.”[26]
However,
the 2017 Species Status Assessment also explained that other
stressors, such as oil and gas exploration and subsistence
harvesting, had declined since 2011. It noted that Pacific
walruses had “adapted to living in a dynamic
environment and have demonstrated the ability to adjust their
distribution and habitat use patterns in response to recent
shifting patterns of sea ice, ” but that
“increasing abundance stressors will negatively affect
the population but to an unknown extent.”[27] Regarding its
“foreseeable future” conclusions, the 2017
Assessment noted that FWS “included projections out to
2100 but caution that [FWS] had low confidence in [its]
ability to predict how Pacific walruses will respond to
stressor levels projected for 2100.”[28]
Although
the 2017 Final Species Status Assessment acknowledged that
FWS’s 2011 Listing Decision “concluded that
listing the Pacific walrus as threatened or endangered was
warranted but precluded, ” it did not discuss the 2011
process other than to conclude that “[a]s identified in
our 2011 assessment, declining sea ice habitat has the
greatest potential to negatively affect the Pacific walrus
population. Other stressors identified in our 2011 assessment
as potentially having a population-level effect have
diminished over the last six years.”[29]
On
October 5, 2017, FWS issued a second 12-month finding as to
the Pacific walrus (“2017 Listing
Decision”).[30] In contrast to the 2011 Listing
Decision, the 2017 Listing Decision contained only three
pages of analysis related to the Pacific
walrus.[31] However, the 2017 Listing Decision
stated that “[a] detailed discussion of the basis for
[FWS’s] finding can be found in the [2017 Species
Status Assessment] and other supporting
documents.”[32] Also, in contrast to the 2011 Listing
Decision, the 2017 Listing Decision did not include discrete
subsections addressing each of the five factors enumerated in
16 U.S.C. § 1533(a)(1). Instead, the 2017 Listing
Decision purported to “summarize . . . the information
on which [FWS] based its evaluation of the five factors . . .
to determine whether the . . . Pacific walrus . . . [met] the
definition of ‘endangered species’ or
‘threatened species.’”[33] In the 2017
Listing Decision, FWS determined that “the threats
affecting the Pacific walrus are not, singly or in
combination, of sufficient imminence, intensity, or magnitude
that the species is in danger of extinction or is likely to
become endangered in the foreseeable future throughout all or
a significant portion of its range.”[34] Although FWS
concluded that “the Pacific walrus will experience a
future reduction in availability of sea ice, ” the
agency was “unable to reliably predict the magnitude of
the effect and the behavioral response of the Pacific walrus
to this change, ” and determined that it lacked
“reliable information showing that the magnitude of
this change could be sufficient to put the subspecies in
danger of extinction now or in the foreseeable
future.”[35] FWS further found that “sufficient
resources remain to meet the subspecies’ physical and
ecological needs now and into the
future.”[36] Also, in contrast to its determination
in 2011 that the foreseeable future extended to the year
2100, FWS determined that the “foreseeable
future” extended only to the year 2060.[37] Based on the
foregoing, FWS concluded that “listing the Pacific
walrus as an endangered or threatened species under the Act
is not warranted at this time.”[38]
On
March 8, 2018, CBD initiated this action. The Complaint
alleges five claimed violations of the ESA and the
Administrative Procedure Act (“APA”) in the 2017
Listing Decision: a failure to explain FWS’s change in
position from the 2011 Listing Decision as to whether listing
is appropriate as to the Pacific walrus (Claim I); an
improper foreseeable future analysis due to its defining the
foreseeable future as 2060 rather than 2100 (Claim II); lack
of consideration of the best available scientific data and
reaching conclusions contrary to the best available
scientific data (Claim III); improper and inconsistent
treatment of scientific uncertainty (Claim IV); and a failure
to consider whether any distinct population segment qualified
for listing or whether the Pacific walrus might be threatened
or endangered “in a significant portion of its
range” (Claim V).[39]
On
February 26, 2019, CBD filed its summary judgment
motion.[40] On April 16, 2019, Defendants did the
same.[41]
JURISDICTION
The
Court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1331.
LEGAL
STANDARD
A court
reviews an agency’s compliance with the ESA under the
Administrative Procedure Act.[42] A reviewing court may not set
aside an agency's decision unless it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.”[43] A court’s review of
whether an agency action is arbitrary and capricious should
be “searching and careful, ” but “narrow,
” as a court may not substitute its judgment for that
of the administrative agency.[44] “Where the agency is
acting on the frontiers of developing science, [a
court’s] deference is at its highest
level.”[45] A court
will reverse a decision as arbitrary and capricious only if
the agency relied on factors Congress did not intend it to
consider, entirely failed to consider an important aspect of
the problem, or offered an explanation that runs counter to
the evidence before the agency or is so implausible that it
could not be ascribed to a difference in view or the product
of agency expertise.[46]
DISCUSSION
CBD
asserts that FWS acted “arbitrar[ily], capricious[ly],
and in violation of the ESA and basic tenets of
administrative law” in several respects.[47] Although the
parties’ briefing does not directly track the five
claims set forth in CBD’s Complaint, the Court
addresses each claim in the Complaint in the context of the
applicable argument from the briefing.
Claim
I: The adequacy of FWS’s explanation for the 2017
Listing Decision’s reversal of the 2011 Listing
Decision’s warranted-but-precluded
determination
In
Claim I, CBD asserts that FWS “failed to provide the
requisite explanation for its reversal” from the
warranted-but-precluded finding in the 2011 Listing Decision
to the not-warranted finding in the 2017 Listing
Decision.[48] According to CBD, FWS’s
“abrupt reversal was not accompanied by any
acknowledgment from the Service that it was, in fact,
changing course, nor by an explanation of how the scientific
rationale that underpinned the 2011 warranted determination
was no longer valid.”[49] Plaintiffs maintain that
“[a]part from stating in the procedural history section
that the Service made a warranted determination in 2011, the
2017 Finding does not acknowledge the 2011 warranted
determination at all.”[50]
a.
Applicability of FCC v. Fox Television Stations, Inc.
In
FCC v. Fox Television Stations, Inc., the Supreme
Court set out a four-part test to be used when determining
whether an agency’s policy change complies with the
APA.[51] When an agency changes its policy, the
policy change complies with the APA if the agency (1)
displays “awareness that it is changing position,
” (2) shows that “the new policy is permissible
under the statute, ” (3) “believes” the new
policy is better, and (4) provides “good reasons”
for the new policy, which, if the “new policy rests
upon factual findings that contradict those which underlay
its prior policy, ” must include “a reasoned
explanation . . . for disregarding facts and circumstances
that underlay or were engendered by the prior
policy.”[52]
As an
initial matter, Defendants assert that “the 2011
finding was not a final listing decision, and it therefore
could not have been ‘reversed’ in
2017.”[53] Instead, they maintain that “the
2011 warranted-but-precluded finding is properly viewed as a
step in an evolving deliberative process that culminated in
FWS’s final decision in 2017 that listing the species
was not warranted.”[54] Defendants contend that
FCC v. Fox is not applicable, because “FWS has
not reversed a final policy or regulation”-rather, it
“completed the next step in the listing
process.”[55]
The
Ninth Circuit recently addressed the applicability of FCC
v. Fox in a similar context in Center for Biological
Diversity v. Zinke, which involved FWS’s
decades-long consideration of the Arctic grayling’s
listing status.[56] In relevant part, FWS determined in 2010
that listing the Arctic grayling was warranted but
precluded.[57] In 2014, FWS reached the opposite
conclusion, finding that listing the Arctic grayling was not
warranted.[58] The Ninth Circuit applied the FCC v.
Fox standard to FWS’s 2014 listing determination
in addressing this policy change.[59]
In
light of Center for Biological Diversity v. Zinke,
the Court finds that FCC v. Fox applies in
addressing FWS’s 2017 Listing Decision for the Pacific
walrus.[60] Because certain factual findings
underlying FWS’s 2017 Listing Decision conflict with
factual findings used to support the 2011 Listing Decision,
FWS was required to provide a “reasoned
explanation” for its change in position.[61] FWS may
support its policy reversal by citing factual circumstances
that have changed since its prior action.[62]
b.
Whether FWS provided a “reasoned explanation” for
its policy change
CBD
maintains that FWS’s implicit “explanation [for
its change in policy] is inadequate and fails to rely upon
the best available science.”[63] For example, CBD
maintains that FWS’s conclusion regarding the Pacific
walrus’s adaptability to coastal haulouts
“contradicts the Service’s own conclusions in the
[2017] Status Assessment, where the Service itself
acknowledged that increased use of land will result in
increased mortality, energetic stress, and prey
depletion.”[64] CBD also contends that “the
science supporting the walrus listing has only grown stronger
since [FWS’s] 2011 Finding, ”[65] including the
accelerating impacts of sea ice loss and ocean warming on the
Pacific walrus population and its prey.[66]
CBD
maintains in its reply that the 2017 Species Status
Assessment “cannot provide the rationale for
[FWS’s] change in position.”[67] The Court has
found no case law indicating that a court’s
determination of whether an agency has explained its change
in position cannot include a document incorporated by
reference into a listing decision, such as the 2017 Species
Status Assessment. Accordingly, in determining whether FWS
adequately explained its 2017 Listing Decision, the Court
will consider not only the 2017 Listing Decision but also the
2017 Species Status Assessment.[68]
Both
FWS’s position in 2011 and its position in 2017 are
based on FWS’s analysis of the five factors enumerated
in 16 U.S.C. § 1533(a)(1). In the 2011 Listing Decision,
FWS concluded that three of the five factors-“the
present or threatened destruction, modification, or
curtailment of its habitat or range;”
“overutilization for commercial, recreational,
scientific, or educational purposes;” and “the
inadequacy of existing regulatory mechanisms”-supported
a warranted-but-precluded finding.[69] In contrast to the 2011
Listing Decision, the 2017 Listing Decision does not include
subsections explicitly addressing each of the factors.
However, the 2017 Listing Decision identified the factual
considerations FWS took into account in its analysis which
addressed each of the factors.[70] Moreover, the 2017 Assessment
that was incorporated into the 2017 Listing Decision contains
analyses of those same five factors, both current and into
the future.[71] By comparing FWS’s factual
findings as to the three statutory factors underlying its
2011 position with the factual findings used to support the
2017 Listing Decision, the Court can determine whether FWS
has provided a “reasoned explanation” for its
change in policy. The Court addresses each of those factors
in turn.
In its
2011 Listing Decision, FWS determined that the first 16
U.S.C. § 1533(a)(1) factor-“the present or
threatened destruction, modification, or curtailment of its
habitat or range”-constituted “a threat to the
Pacific walrus.”[72]The 2011 Listing Decision analyzed the
effects of loss of sea ice, ocean warming, and ocean
acidification on the Pacific walrus’s habitat or
range.[73] The 2011 Listing Decision concluded that
ocean warming or acidification did not constitute threats to
the Pacific walrus now or in the foreseeable
future.[74] However, it concluded that “the
loss of sea-ice habitat creates several stressors on the
Pacific walrus population, ” including “localized
prey depletion; increased energetic costs to reach prey,
resulting in decreased body condition; calf abandonment;
increased mortality from stampedes, especially to females,
juveniles, and calves; and increased exposure to predation
and hunting.”[75] Accordingly, the 2011 Listing Decision
found that “[i]ncreased direct and indirect mortality,
particularly of calves, juveniles, and females, will result
in a declining population over time.”[76]
The
2017 Assessment and the 2017 Listing Decision also address
the effects of the loss of sea-ice habitat and corresponding
increases in the use of coastal haulouts by the Pacific
walrus. In the Assessment, FWS found that “the
probability of direct mortality or injury due to trampling
during stampedes is greater at coastal haulouts than it is on
pack ice.”[77] It also noted that hunting and predation
at haulouts could increase Pacific walrus
mortality.[78] The 2017 Assessment found that if
“[l]arge, sustained calf mortality events”
occurred “in combination with a large harvest of adult
females, ” the Pacific walrus would likely suffer
“significant population-level
effects.”[79] It also found, however, that haulout
mortality trends “suggest that management programs in
the U.S. and Russia have been effective at reducing
disturbances and haulout related mortalities in recent
years.”[80] In reaching this conclusion, the 2017
Assessment relied on recent studies and data, including
minimum estimates of Chukchi sea haulout mortalities from
2007 to 2016.[81] It also cited a non-binding resolution
adopted by the Eskimo Walrus Commission in 2008 that advised
hunters to exercise “extreme caution” when
hunting at haulouts.[82] Additionally, the 2017 Assessment found
that “it is difficult to determine whether or not
overall predation rates of Pacific walruses by polar bears
have increased” and that “population-level
effects remain uncertain.”[83] With respect to the
effect of projected future losses of sea-ice habitat, the
2017 Assessment found “that as the ice free season
increases in the future, Pacific walruses will spend more
time at coastal haulouts resulting in increasingly negative
effects on the population manifested through increased energy
expenditure and disturbance related mortality
events.”[84] It also found, however, that the
magnitude of the predicted effect on energy expenditure
remains unknown.[85] Additionally, the 2017 Assessment
concluded that “Pacific walruses habitat needs will be
met during the core breeding and birthing portions of the
annual cycle” through 2060.[86]These conclusions were
based on recent studies and data, including models
incorporating data collected after 2011.[87]
Based
on the foregoing, the Court finds that FWS has provided a
reasoned explanation for its change of position as to the
“present or threatened destruction, modification, or
curtailment of its habitat or range” factor. Even
though FWS did not expressly acknowledge or articulate that
it was changing its position, the 2017 Assessment contains a
detailed analysis of the same considerations that FWS relied
upon in its 2011 analysis. Furthermore, much of FWS’s
2017 analysis relies on data and studies that were developed
after the 2011 Listing Decision was issued; this new
information reflected that some relevant factual
circumstances had changed since FWS’s 2011 Listing
Decision.[88]
In its
2011 Listing Decision, FWS also determined that the second 16
U.S.C. § 1533(a)(1) factor-“overutilization for
commercial, recreational, scientific, or educational
purposes”-was “likely to threaten the Pacific
walrus in the foreseeable future.”[89] FWS analyzed
the effects of recreation, scientific, and educational uses
of the Pacific walrus; U.S. import and export; commercial
harvest; and subsistence harvest.[90] FWS concluded in 2011
that of these activities, only subsistence harvesting would
be likely to threaten the Pacific walrus in the foreseeable
future.[91] FWS predicted that future subsistence
harvest of Pacific walruses would “continue at similar
levels”; that as the Pacific walrus population declines
“the proportion of animals harvested will increase
relative to the overall population”; and that
“this continued level of subsistence harvest will
become unsustainable.”[92]
The
2017 Assessment also analyzed the impact of subsistence
harvesting on the Pacific walrus. In the Assessment, FWS
concluded that “[t]he subsistence harvest of Pacific
walruses has been declining since 1990 with the greatest
declines in the U.S. harvest since 2013.”[93] FWS also
noted that the current subsistence harvest was at the
“[l]owest level[] on record.”[94] It further
noted that changing weather patterns and ice conditions may
have negatively impacted hunters’ ability to harvest
Pacific walruses for subsistence purposes.[95] FWS expressly
acknowledged that in 2011 it had “assumed that total
harvest levels would remain the same as observed at that time
and that with a declining population, harvest rates may
become unsustainable in the future, ” and that in 2017
it had altered its analytical approach in light of the
“great deal of uncertainty surrounding predictions of
Pacific walrus harvest levels into the
future.”[96]
In
summary, FWS has provided a reasoned explanation for its 2017
assessment of the “overutilization for commercial,
recreational, scientific, or educational purposes”
factor. FWS explicitly acknowledged that it had changed its
methodology for evaluating the effect of subsistence
harvesting, and explained its rationale for doing so. The
2017 Assessment relied on recent observations and data,
including data collected after the 2011 Listing Decision was
issued. Recent developments suggest that at least one of
FWS’s 2011 predictions-that subsistence harvests of the
Pacific walrus would continue at similar levels-was
erroneous.[97] Accordingly, FWS has adequately
explained its change in position as to this factor.
In its
2011 Listing Decision, FWS also determined that the fourth 16
U.S.C. § 1533(a)(1) factor-“the inadequacy of
existing regulatory mechanisms”- weighed in favor of a
warranted-but-precluded determination.[98] FWS then
found that “[w]hile laws and regulations exist that
help to minimize the effect of other stressors on the Pacific
walrus, there are no regulatory mechanisms in place that
address the primary threats of habitat loss due to sea-ice
declines . . . and subsistence harvest.”[99] Accordingly,
in 2011 FWS found that “existing regulatory mechanisms
do not remove or reduce the threats to the Pacific walrus
from the loss of sea-ice habitat and
overutilization.”[100]
The
2017 Assessment contains a brief analysis of existing
regulatory protections for the Pacific walrus.[101] Like the
2011 Listing Decision, the Assessment noted that both
international and domestic laws and regulations
“provide conservation benefits and protections to the
Pacific walrus population.”[102]
But the
2017 Assessment did not contradict the 2011 Listing
Decision’s findings that “there are no existing
regulatory mechanisms to effectively address loss of sea-ice
habitat, ” or that “there are currently no
tribal, Federal, or State regulations in place to ensure
that, as the population of walrus declines in response to
changing sea-ice conditions, the subsistence harvest of
walrus will occur at a reduced and sustainable
level.”[103]
Taken
as a whole, however, the 2017 Listing Decision and Assessment
nevertheless provide a “reasoned explanation” for
FWS’s implicit conclusion that this factor does not
weigh in favor of a conclusion that listing is warranted.
From the 2011 Listing Decision, it is clear that FWS’s
conclusion that existing regulatory mechanisms are inadequate
was contingent upon its finding that the first and second
statutory factors also constituted threats to the Pacific
walrus.[104] And as noted above, FWS has adequately
explained its 2017 conclusion that those two factors do not
constitute threats to the Pacific walrus.
In
summary, the 2017 Listing Decision constitutes a change in
policy from the 2011 Listing Decision, and the change rests
in part on “upon factual findings that contradict those
which underlay [FWS’s] prior
policy.”[105] Accordingly, pursuant to FCC v.
Fox, FWS was required to provide “good
reasons” for the policy, including “a reasoned
explanation . . . for disregarding facts and circumstances
that underlay or were engendered by the prior
policy.”[106] FWS has met that burden. The 2017
Assessment and 2017 Listing Decision contain a detailed
analysis of the ESA factors relevant to the 2017
determination, including many of the same underlying factual
considerations that FWS took into account when issuing the
2011 Listing Decision. Although FWS certainly could have
provided a more explicit recognition and discussion of the
policy change, the Court is able to discern the basis for the
agency’s 2017 listing determination.[107]Accordingly, the Court finds that FWS
has provided the requisite “reasoned explanation”
for its change in policy.
c.
The remaining FCC v. Fox elements
In
addition to a “reasoned explanation” for a policy
change, FCC v. Fox requires that an agency
“(1) display[] ‘awareness that it is changing
position, ’ (2) show[] that ‘the new policy is
permissible under the statute, ’ [and] (3)
‘believe[]’ the new policy is
better.”[108] FWS’s 2017 Listing Decision
acknowledged its 2011 “finding that listing the Pacific
walrus as an endangered or threatened species was
warranted.”[109] FWS’s 2017 Listing Decision is
also permissible under the ESA, and it is clear that FWS
believes its new policy is better.[110]
Based
on the foregoing, the Court will grant summary judgment to
Defendants on Claim I, as FWS has adequately explained its
change in position on the listing of the Pacific walrus.
Claim
II: Defining the “foreseeable future” as 2060,
rather than 2100
In
Claim II, CBD alleges that FWS “arbitrarily defined the
‘foreseeable future’ for determining the
walrus’s risk of extinction from climate change as
2060, ” rather than 2100.[111] CBD also maintains
that FWS’s decision represents a change from its 2011
decision, in which it characterized the “foreseeable
future” as the year 2100, but that the agency provided
no explanation for that change in position.[112]Defendants
explain that “FWS does not dispute that the best
available science on sea-ice loss allows FWS to foresee the
threat out to 2100.”[113] Rather, FWS was uncertain
“about the magnitude of effect that climate change will
have on the full suite of environmental conditions
(e.g., benthic productivity) or how the species will
respond to those changes, ” particularly after
2060.[114]
The
Ninth Circuit appears to have adopted the FCC v. Fox
analysis when considering whether an agency’s change in
its determination of the timeframe of the “foreseeable
future” complies with the APA. In Alaska Oil &
Gas Association v. Pritzker, the Circuit considered
whether the National Marine Fisheries Service’s
“use of longer-term climate projections diverge[d] from
its previous practice of setting the year 2050 as the outer
boundary of its ‘foreseeable future’
analysis’” when making a listing decision
regarding a subspecies of the Pacific bearded
seal.[115] In finding that the Service’s
foreseeable-future policy change was neither arbitrary nor
capricious, the Pritzker Court reasoned that the
Service “acknowledge[d] that its interpretation
represent[ed] a change in agency policy, ”
“provide[d] a thorough and reasoned explanation,
” and the new policy was “consistent with the
ESA’s mandate.”[116] The elements addressed by
the Ninth Circuit in Pritzker track the elements set
forth in FCC v. Fox.[117] Accordingly, the Court
considers whether FWS, in changing its interpretation of the
“foreseeable future” from 2100 to 2060 for the
Pacific walrus listing decision, met the standards set forth
in FCC v. Fox.[118]
The
Court finds that FWS displayed some awareness that it was
changing position as to the cutoff date for the
“foreseeable future.” Although neither the 2017
Species Assessment nor 2017 Listing Decision expressly states
that FWS had changed its position on this topic, the Listing
Decision acknowledges that FWS “included projections
out to 2100 in our analysis, [but] considered 2060 as the
foreseeable future timeframe for this
analysis.”[119]
The
Court also finds that FWS showed that the policy of using
2060 as the foreseeable future timeframe is permissible under
the ESA. An Interior Department internal guidance document,
to which the Ninth Circuit has recently cited, specifies that
FWS’s “interpretation of the ‘foreseeable
future’ must be supported by reliable data regarding
‘threats to the species, how the species is
affected by those threats, and how the relevant
threats operate over time.’”[120]Here, the
2017 Listing Decision explained that FWS was uncertain
“about the magnitude of effect that climate change will
have on the full suite of environmental conditions
(e.g., benthic productivity) or how the [Pacific
walrus] will respond to those changes” after
2060.[121] In short, FWS’s
“foreseeable future” determination is
species-specific, and tied to the agency’s ability to
predict the effect of environmental change on the Pacific
walrus.
Nor is
FWS’s use of the year 2100 as the “foreseeable
future” in its 2011 Listing Decision as to the Pacific
walrus determinative. The ESA requires the Secretary to make
listing determinations “solely on the basis of the best
scientific and commercial data available . . .
.”[122] This standard allows FWS to consider
data that has become available subsequent to a previous
listing decision as to that species. As discussed throughout
this order, FWS’s 2017 Listing Decision relied on
post-2011 data from varied sources regarding the Pacific
walrus’s adaptability and population
status.[123] And the 2017 Listing Decision stated
that FWS scientists “generally felt that forecasts of
Pacific walrus’s responses to various environmental
changes up to 2060 were more reliable tha[n] those beyond
that time period.”[124]In light of FWS’s
reliance on new data and scientific opinions as to the
Pacific walrus, its decision to select the year 2060 as the
“foreseeable future” was permissible under the
ESA under any deference standard.[125]
The
Court also finds that FWS believes that using the year 2060
as the foreseeable future is better than using the year
2100.[126] FWS recognized in the 2017 Listing
Decision that its scientists believed forecasts to 2060 were
more reliable than those to 2100.[127] FWS found that using
the year 2060 allowed it to make better predictions, since it
had “less confidence in [its] ability to predict the
potential behavioral and physiological adaptations of Pacific
walruses, and the resulting consequences for reproduction and
survival under the sea ice conditions projected for 2100
because of the extensive time between now and
2100.”[128]
Finally,
the Court finds that FWS provided good reasons to end the
foreseeable future at the year 2060 in its 2017 Listing
Decision. The 2017 Listing Decision states that FWS found
“that beyond 2060 the conclusions concerning the
impacts other effects of climate change on the Pacific walrus
population are based on speculation, rather than reliable
prediction.”[129] The 2017 Species Assessment reviews
model projections for future global warming trends, sea ice
seasons, Pacific walrus habitat access, ocean warming,
benthic productivity, and ocean acidification.[130] Many of
the models project out through the years 2060 and
2100.[131] In its discussion of concerns about
speculation related to projections about the effects of
climate change on the benthos, FWS noted that
“variation among Science Team members (uncertainty)
also increased with time, particularly in
2100.”[132] And the 2017 Assessment specifically
addresses uncertainty, stating that “model uncertainty
in [sea surface temperature] projections arising from the
internal variability of the climate system and initializing
conditions outweighs uncertainties associated with the
alternative scenarios to about mid-century, but by late
century scenario uncertainly takes over.”[133]
FWS
adequately explained its decision to use the year 2060 as the
timeframe for its foreseeable future analysis. The Court
finds that determination was neither arbitrary nor
capricious. In addition, the Court finds that FWS adequately
complied with Fox v. FCC in making this policy
change, although the agency could have been far more explicit
in acknowledging and explaining its decision.[134] Based on
the foregoing, the Court will grant summary judgment to
Defendants on Claim II.
Claim
III: The adequacy of FWS’s consideration of the Best
Available Scientific Data
In
Claim III, CBD alleges that FWS “reached unfounded
conclusions contrary to the available
evidence.”[135] CBD asserts that FWS
“irrationally concluded that the Pacific walrus could
adapt to massive losses of habitat.”[136] CBD
points to evidence “that the walrus will not
be able to adapt” to sea ice loss, including the lack
of observations of breeding from coastal haulouts, and a risk
of “increased mortality, decreased prey availability,
increased energetic costs, and decreased calf
survival.”[137]
As
discussed elsewhere in this order, recent studies support the
conclusion that the Pacific walrus has thus far adapted to
its changing circumstances.[138] FWS acted neither
arbitrarily nor capriciously in drawing that conclusion.
CBD
also relies on the 2011 Species Status Report and peer
reviews of the draft 2017 status report to assert that
Pacific walruses are dependent on sea ice.[139]But these
sources do not undermine FWS’s conclusion that Pacific
walruses have so far adapted sufficiently to coastal
haulouts.[140] CBD’s speculation about the
possible future impact of stressors on the Pacific walrus
population is insufficient to require a different conclusion
than that drawn by FWS based on the best available science.
CBD
also maintains that FWS’s “arbitrary conclusions
regarding Pacific walrus population trends and subsistence
harvest levels render its decision
unlawful.”[141] CBD relies on two cases to support
this point. CBD cites Tucson Herpetological Society v.
Salazar for the proposition that “[i]f the science
on population size and trends is underdeveloped and unclear,
the [Service] cannot reasonably infer that the absence of
evidence of population decline equates to evidence of
persistence.”[142] And in its reply, CBD cites to
Center for Biological Diversity v. U.S. Fish &
Wildlife Service, which, it asserts, “reject[ed]
reliance on inconclusive data to determine population was
‘basically stable’ and does not warrant ESA
protection.”[143]
In
Tucson, the Ninth Circuit held that a FWS listing
decision was not supported by the administrative record
because the agency had impermissibly relied on a
“single attenuated finding” of population
viability to draw a “sweeping conclusion that viable
lizard populations persist throughout most of the
species’ current range.”[144] In this
case, FWS relied on a relatively strong base of information
in reaching its 2017 Listing Decision: reduced harvest
levels, few observations of malnourished animals, relatively
high reproduction and survival rates, an apparently adequate
prey base, and positive feedback about the Pacific
walrus’s status from Alaska Native
hunters.[145] Although uncertainty persists for the
Pacific walrus, the administrative record contains a
substantial amount of data that support FWS’s
conclusions.
Center
for Biological Diversity v. U.S. Fish & Wildlife
Service is also inapposite. There, the district court
vacated FWS’s withdrawal of the Pacific fisher after
concluding that the agency’s assessment of the toxicant
exposure stressor was contrary to the evidence in the
administrative record and the agency had applied
“flawed logic regarding population
stability.”[146] Pacific fisher populations had been
severely diminished, [147] and the court found that FWS had
misinterpreted the data and ignored contrary scientific
evidence when it concluded that the species’ population
levels had stabilized.[148]
In this
case, FWS considered several sources of data in making its
2017 listing determination as to the Pacific walrus. More
importantly, the Pacific walrus appears to be in a much
stronger position than the Pacific fisher, even by the most
conservative estimates.[149] And FWS recognized the
“low precision” of current Pacific walrus
population estimates; it does not appear to have relied on
the population estimates in reaching its 2017
decision.[150]
CBD
also asserts that recent studies on which FWS relied do not
support the agency’s conclusions. Specifically, some
studies show populations decreasing.[151] But an
author of those studies concluded that “the population
growth rate either increased during 1999–2015 or
stabilized at a lesser level of decline than seen in the
1980s.”[152] Particularly in light of the deference
owed to agencies in making scientific determinations, the
Court finds that the administrative record contains
sufficient evidence to support FWS’s
conclusions.[153] Based on the foregoing, the Court will
grant summary judgment to Defendants on Claim III.
Claim
IV: FWS’s treatment of uncertainty
In
Claim IV, CBD alleges that FWS “treated scientific
uncertainty inconsistently” by “dismissing the
negative impacts of sea ice loss beyond 2060 because of
uncertainly, while relying on uncertainty to conclude that
the walrus would be able to adapt to the loss of its sea ice
habitat, that the population is approaching stability, and
that subsistence harvest would remain
sustainable.”[154]
As
discussed above, FWS had substantial information to support
its conclusion that the current Pacific walrus population has
either increased or stabilized.[155] And FWS’s
reliance on that information to determine that the population
had demonstrated resilience, was likely stable, and that
survival rates are increasing, is not irrational.
CBD
also maintains that although FWS “repeatedly recognized
the uncertainty regarding future harvest levels, ” it
“relied on modeling that assumed harvest levels would
be ‘low’ . . . in concluding that future harvest
levels would be sustainable and not threaten the
population.”[156] CBD cites to National
Wildlife Federation v. National Marine Fisheries
Service, in which the District of Oregon found that the
NMFS’s treatment of uncertainty was
“inconsistent” and selective in support of
NMFS’s conclusion.[157] But here, while recognizing
that predicting future harvest levels was uncertain,
[158] FWS relied on the most recent data to
draw its conclusion that harvest levels would remain low:
“The Science Team agreed that it was not possible to
predict future harvest levels and therefore decided to set
harvest levels at the current level (low) . . .
.”[159] Although FWS could have chosen a
higher estimate for future harvest levels, it was neither
arbitrary nor capricious to take an optimistic approach based
on the existing data, particularly when its 2011 prediction
that harvest levels would remain stable was proven
incorrect.[160]
CBD
also maintains that FWS improperly relied on uncertainty in
limiting the foreseeable future to 2060.[161] However,
the administrative record supports FWS’s determination
that “while it is likely that the increased use of land
habitat will have some negative effects on the population,
the magnitude of effect is uncertain given the demonstrated
ability of Pacific walruses to change their behavior or adapt
to greater use of land.”[162] Based on the
foregoing, the Court will grant summary judgment to
Defendants on Claim IV.
Claim
V: The adequacy of FWS’s Listing Analysis
In
Claim V, CBD alleges that FWS “did not consider whether
the Pacific walrus might be threated or endangered ‘in
a significant portion of its
range.’”[163]CBD takes issue with FWS’s
abundance model-the pooling of land and ice habitats-and
asserts that FWS should have analyzed land habitats and ice
habitats separately.[164] But the record demonstrates that
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