Cook Inlet beluga decision upheld

Kristen Nelson

Petroleum News Editor-in-Chief

The state of Alaska was correct in finding that Cook Inlet beluga whales are not endangered, but did not adequately consider whether those whales are a distinct subspecies.

That was the ruling the Alaska Supreme Court made July 30 in affirming a decision by an Alaska Superior Court, which had ruled against the Alaska Center for the Environment and the Alaska Wildlife Alliance and in favor of a decision made by Frank Rue, then commissioner of the Alaska Department of Fish and Game.

The Alaska Center for the Environment challenged the commissioner’s decision in declining to list the Cook Inlet beluga whale as an endangered species under the Alaska Endangered Species Act. The commissioner found the whales were not threatened with extinction and were not a distinct subspecies. The Superior Court upheld the commissioner’s finding that the whales were not in danger of extinction but did not resolve the subspecies issue, and the center appealed on both grounds.

The Alaska Supreme Court affirmed the commissioner’s finding that the whales are not endangered.

“Because the commissioner’s ruling on that point precludes an endangered species listing, we affirm his decision,” the Alaska Supreme Court said.

The court noted that the National Marine Fisheries Service designated the Cook Inlet belugas as depleted in 2000. There were requests that the belugas be designated as endangered under the Federal Endangered Species Act, but the fisheries service determined the beluga’s population decline (an estimated drop of 50 percent between the mid-1980s and the late 1990s) was primarily due to over harvesting, a problem it addressed with regulations, and it declined to list the belugas as endangered.

Decision not reversed

The court said its “holding on the issue of subspecies status does not warrant reversal” of the lower court’s decision, but said it expects the subspecies issue to come up again, and when that happens, its “decision on subspecies status will require the commissioner to reevaluate his position on that issue based on a hard look at all relevant scientific information submitted or available at the time of the new review.”

The court said it does not require the commissioner “to develop and explore new information on the status of Cook Inlet beluga whales” and said it reconfirmed “our prior decisions holding that agencies making regulatory decisions need only consider information that is submitted or is otherwise readily available.”

The Alaska Endangered Species Act “applies only to ‘species or subspecies’ of Alaskan fish or wildlife,” the court said, and the commissioner determined Cook Inlet beluga whales did not qualify as a species or subspecies within the meaning of the Alaska law. The court said the state argued that “the commissioner reasonably found that Cook Inlet belugas fail to qualify as a subspecies under Alaska’s act because the scientific literature does not formally recognize these whales as a distinct subspecies of the general beluga species.”

The court found the commissioner acknowledged “strong evidence of the Cook Inlet belugas’ genetic uniqueness and geographic isolation,” but said the commissioner’s decision on the subspecies issue “stressed that scientific literature does not identify any population of belugas as a separate subspecies.”

Issue reviewed, although moot

The court said the species or subspecies issue is likely to recur “if the Cook Inlet beluga whale population fails to show signs of a healthy recovery” and denying review “seems likely to hamper or delay future review of this issue” because the commissioner’s position might discourage new petitions “even if forceful new evidence of threatened extinction arises.” And, the court, said, “the question at issue has substantial importance,” as evidenced by the statement of purpose in the Alaska Endangered Species Act.

The court said formal designation of species or subspecies status could take a long time and that the Legislature probably did not mean to restrict its use of the terms species and subspecies to those “formally recognized by taxonomists.”

Common dictionary definitions of subspecies “point to a useful core of features commonly associated with a subspecies: geographic isolation; distinctive characteristics, often genetically determined; and a retained ability to interbreed with other members of the same general species.” While this is not a precise definition, the important point “is that the commonly understood meaning of ‘subspecies’ does not turn on the categorical pronouncements of a single science” nor does it depend on “general agreement or acceptance as reflected by scientific literature.”

What is required, the court said, is that the commissioner, on a case-specific basis, takes “a hard look at all currently available scientific information, including but not limited to formally recognized taxonomic classification.”

And if that information “leaves serious doubt as to the de facto status of an unrecognized subspecies, the commissioner has broad discretion to fall back on traditionally accepted taxonomic classifications; but when up-to-date, case-specific science reliably indicates that taxonomic changes have lagged behind and are no longer accurate, the act gives the commissioner broad discretion to find that a protectable subspecies exists under the act, regardless of whether the classification finds general support in the ‘technical sense.’”

The court said that where it disagrees with the commissioner’s decision “is that the act vests controlling discretion in the commissioner, not in taxonomy.” In this case, the court said, the commissioner’s refusal to consider “any scientific information except taxonomic classification in the ‘technical sense’ amounted to an abuse of discretion.”