Alaska Oil & Gas Association v. Pritzker

The federal district court for the District of Alaska ruled in the three actions that the listing of the Beringia distinct population segment (DPS) of bearded seals as threatened under the Endangered Species Act (ESA) was arbitrary, capricious, and an abuse of discretion. Procedurally, the court said that the National Marine Fisheries Service (NMFS) had not responded adequately to the State of Alaska’s comments because NMFS had responded to some of the comments only in the preamble to the final rule, rather than in a letter directed to the State, as required by the ESA. Substantively, the court said that NMFS’s forecasting of possible impacts of loss of sea-ice on the bearded seal population more than 50 years into the future was too speculative and too remote. The court also said that its finding that the listing was arbitrary and capricious was bolstered by NMFS’s explicit finding that no protective regulations were required. The court also found that plaintiffs did not have standing to challenge the listing of the Okhotsk DPS of bearded seals, which is located in the Sea of Okhotsk off the coast of Japan and the Russian Federation.

The American Petroleum Institute joined the Alaska Oil and Gas Association in filing an amended complaint.

Alaska Oil and Gas Association (AOGA) challenged the National Marine Fisheries Service’s (NMFS’s) listing of two distinct population segments (DPSs) of bearded seals as threatened under the Endangered Species Act (ESA). AOGA alleged that the listing was unlawful because the bearded seal populations were presently “abundant, wide-ranging and entirely healthy” and the basis for the listing was “unknown and unspecified adverse effects that may occur at an unknown time and at an unknown rate in the future as a consequence of climate change in the Arctic occurring over the next century.” Among other things, AOGA asserted that NMFS irrationally relied upon climate predictions extending to 2100 when prior ESA listing determinations relied on mid-century projections, and that neither best available scientific data and information nor the administrative record supported a listing of the bearded seal DPSs as threatened.