Providing coverage of Alaska and northern Canada's oil and gas industry
February 2018

Vol. 23, No.7 Week of February 18, 2018

US 9th Circuit tosses ringed seal appeal

Panel of judges cites precedent of rejected appeal against bearded seal listing, agrees that evidence supports ringed seal listing

Alan Bailey

Petroleum News

The U.S. Court of Appeals for the 9th Circuit has rejected three related appeals against the National Marine Fisheries Service’s 2012 listing of the Arctic ringed seal as threatened under the terms of the Endangered Species Act. In taking this action the court has overturned a 2016 order by the federal District Court in Alaska.

The ringed seal is one of several Arctic animal species that depend on an Arctic sea ice habitat, with the listing based on a view that the decline in the sea ice extent as the climate warms threatens the animals’ future wellbeing.

The District Court had upheld the appeals, saying that in listing the seals the National Marine Fisheries Service had speculated on what circumstances may or may not exist 80 to 100 years from now. The panel of three 9th Circuit judges that reviewed the case disagreed, saying the Fisheries Service’s view, that the ringed seal is likely to become endangered in the foreseeable future, is reasonable and supported by the record presented to the courts. Climate change models show the habitat of the Arctic ringed seals to be diminishing as sea ice recedes, the 9th Circuit Court order says.

Precedent of bearded seal

Essentially, the judges said that a closely related case in which the 9th Circuit rejected an appeal against the listing of the bearded seal set a precedent for the case involving the ringed seal, and that the court is now bound by that precedent. Moreover, the District Court, in its ruling, mistakenly required the Fisheries Service to have more quantitative data to support its prediction of the seal population tipping point - the data that were presented indicate that the seals are more likely than not to become endangered in the foreseeable future, the 9th Circuit order says.

The organizations which appealed the listing, the Alaska Oil and Gas Association, the American Petroleum Institute, the North Slope Borough and the state of Alaska, are concerned about the potential impact of the listing on commercial and subsistence activities in the Arctic and claimed that the listing was not warranted, given the current healthy state of the seal population and a lack of adequate data supporting the listing decision.

Following the 9th Circuit ruling in the bearded seal appeal, the appellees tried to elevate that case to the U.S. Supreme Court. However, the Supreme Court declined to take the case.

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