Alaska v. National Marine Fisheries Service

The federal district court for the District of Alaska vacated final rules designating over 160 million acres of Alaska’s coastal waters as critical habitat under the Endangered Species Act for the Beringia distinct population segment of the bearded seal and for the Arctic ringed seal. The court agreed with the State of Alaska that the National Marine Fisheries Service (NMFS) acted arbitrarily and capriciously because the agency “failed to articulate a satisfactory explanation for why the entirety of the designated areas in U.S. territory are indispensable to the seals’ survival and recovery,” “failed to consider any foreign nation efforts to conserve the seals,” and failed to consider the economic benefits of excluding some areas from critical habitat. The court found, however, that NMFS adequately explained its identification of areas where dynamic sea ice essential features would be found and adequately determined that essential habitat features might need special management considerations or protections from the potential threats of climate change, oil and gas exploration, marine shipping and transportation, and commercial fisheries. In addition, the court rejected the argument that the Endangered Species Act or its regulations required “an express prudency determination” for critical habitat designations.

The State of Alaska filed a lawsuit in federal district court in Alaska challenging the National Marine Fisheries Service’s (NMFS’s) designation of critical habitat for the Arctic subspecies of the ringed seal and the Beringia distinct population segment of the Pacific bearded seal. Alaska asserted that the critical habitat designations—which it said consisted of “an enormous area covering all or virtually all of [each] seal’s range within the United States’ jurisdiction”—violated the Endangered Species Act and Administrative Procedure Act. Alaska contended, among other arguments, that NMFS acted arbitrarily and capriciously by failing to explain how designation of critical habitat would protect sea ice essential habitat features. Alaska’s allegations in support of this argument included that NMFS failed to explain how Section 7 consultation on the impacts of discretionary federal actions on critical habitat would result in protection of sea ice essential features at risk from future climate change.