Alaska v. National Marine Fisheries Service

The federal district court for the District of Alaska upheld the National Marine Fisheries Service’s (NMFS’s) 2020 decision not to delist the Arctic ringed seal as an endangered species. First, the court rejected the plaintiffs’ contention that because the U.S. Fish and Wildlife Service had determined that conclusions beyond 2060 were based on speculation in the context of its decision not to list the Pacific walrus under the Endangered Species Act, NMFS should not look beyond that date in its “foreseeable future analysis” for the ringed seal. The court found that NMFS “provided a rational connection between the facts it observed” (e.g., the Arctic ring seal’s need for access to snow cover on top of stable ice) and the decision to treat the seal differently from how the U.S. Fish and Wildlife Service treated the Pacific walrus, which exhibited a greater capacity to adapt. Next, the court found that it was reasonable for NMFS not to consider a scenario based on low greenhouse gas emissions in the Intergovernmental Panel on Climate Change’s Fifth Assessment Report. The court said “current trends indicate there will be continued high GHG emissions” and the plaintiffs’ delisting petition did not provide “evidence to support a dramatic, worldwide shift in emissions.” The court also rejected the argument that NMFS improperly disregarded new data indicating that changes in sea ice extent and duration had not detectably reduced ringed seal population size or health.

The federal district court for the District of Alaska granted Center for Biological Diversity’s (CBD’s) motion to intervene as a defendant in a lawsuit challenging the National Marine Fisheries Service’s (NMFS’s) rejection of a petition to delist the Arctic ringed seal under the Endangered Species Act. NMFS listed the Arctic ringed seal as threatened in 2012. The court found that CBD satisfied the requirements to intervene as of right. First, CBD demonstrated through its efforts to obtain and defend the listing of the Arctic ringed seal significant protectable interests in the species’ protection under the Endangered Species Act. The court further found that these interests had a relationship to the claims at issue because a ruling for the plaintiffs would make it more difficult for CBD to protect these interests. Second, the court found that disposition of the action might impair or impede CBD’s ability to protect its interests even though there were other means by which CBD could protect its interests. Third, the court found that CBD had overcome the presumption that its interests would be adequately represented by existing parties, including NMFS. The court said there was no guarantee that NMFS would make arguments “concerning what [CBD] views as the ‘overwhelming scientific consensus’ that climate change will harm the Arctic ringed seal’s habitat, the inadequacy of existing regulatory mechanisms to address the threat of climate change, and reasons why the species must remain listed.” The court also noted that CBD had “developed independent expertise on specific issues facing the Arctic ringed seal and the science surrounding the climate impacts that threaten its critical habitat” and that “[t]his scientific expertise … , coupled with [CBD’s] extensive involvement in this specific listing decision, should help elucidate the issues before the Court.” The court also found “no indication” that the plaintiffs or NMFS had demonstrated the same degree of expertise.

In an unpublished memorandum, the Ninth Circuit Court of Appeals affirmed a district court’s rejection of the State of Alaska’s lawsuit challenging the National Marine Fisheries Service’s (NMFS’s) negative 90-day finding on a petition to delist the Arctic ringed seal as a threatened species under the Endangered Species Act. The Ninth Circuit concluded that NMFS “reasonably determined” that the petition did not present new information that indicated delisting was warranted. First, the Ninth Circuit found that NMFS reasonably determined that new climate change projections were consistent with those considered at the time of the 2012 listing decision; that NMFS had a “reasonable and scientifically supported methodology for addressing volatility in its long-term climate projections”; and that it was not arbitrary and capricious for NMFS to conclude that the lowest emissions scenario was unrealistic. Second, the Ninth Circuit found that it was reasonable to decline to rely on the U.S. Fish and Wildlife Service’s 12-month findings about the Pacific walrus. Third, the court found that NMFS did not improperly disregard new information in the delisting petition about the Arctic ringed seal’s response to sea ice loss and other climate-related changes.