Alaska Oil & Gas Association v. Pritzker

The Ninth Circuit Court of Appeals denied rehearing en banc of its decision reinstating the listing of a distinct population segment of the Pacific bearded seal subspecies as threatened. The Ninth Circuit upheld the listing in October 2016, reversing an Alaska district court. The Ninth Circuit said that the National Marine Fisheries Service had reasonably relied on loss of sea ice cause by global climate change over the next 50 to 100 years as basis for the listing.

The Ninth Circuit Court of Appeals reversed a district court decision that vacated the listing of the Beringia distinct population segment (DPS) of the Pacific bearded seal subspecies as “threatened” under the Endangered Species Act (ESA). A threatened species is one that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Ninth Circuit found that the National Marine Fisheries Service (NMFS) had acted reasonably based on best available scientific and commercial data when it relied on projections of loss of sea ice through the end of the century as the basis for its listing decision. The Ninth Circuit concluded that the fact that climate projections from 2050 to 2100 might be “volatile” did not deprive those projections of value because “[t]he ESA does not require NMFS to make listing decisions only if underlying research is ironclad and absolute.” The court rejected the plaintiffs’ argument that NMFS had impermissibly diverged from its previous practice of using 2050 “as the outer boundary” of the “foreseeable future.” The court also was not persuaded by the plaintiffs’ contention that NMFS did not adequately establish the relationship between loss of sea ice and the bearded seal’s risk of extinction or by the argument that NMFS was required to calculate or demonstrate the magnitude of the threat of sea ice loss to the seals. The Ninth Circuit concluded: “NMFS has provided a rational and reasonable basis for evaluating the bearded seal’s viability over 50 and 100 years, and it has candidly disclosed the limitations of the available data and its analysis. The ESA does not require more, and NMFS did not act arbitrarily or capriciously in concluding that the effects of global climate change on sea ice would endanger the Beringia DPS in the foreseeable future.”