Court denies bearded seal en banc hearing

The U.S. Court of Appeals for the 9th Circuit has denied a request for an en banc hearing in the appeal against the National Marine Fisheries Service’s listing of the Beringia population of bearded seals as threatened under the terms of the Endangered Species Act. In October a panel of three 9th Circuit judges upheld the listing of the seals by overturning an earlier decision by the federal District Court in Alaska that the listing had been arbitrary and capricious.

Following the 9th Circuit ruling the appellees in the case had requested an en banc rehearing, a move that would have involved all of the judges in the 9th Circuit Court reviewing the case, and not just the panel of three judges that had issued the October ruling. Apparently the court judges expressed no interest in the en banc option.

The listing of the bearded seals has come as one of a number of wildlife listings related to the projected loss of Arctic sea ice as a consequence of global warming. Bearded seals live around the sea ice, which they use for resting, feeding and rearing their young. Worried about the potential impact of the listing on economic activity in the Arctic and questioning the listing of an apparently healthy species based on long-term climate projections, several entities, including the Alaska Oil and Gas Association, the American Petroleum Institute, the state of Alaska, the North Slope Borough and other local government and Alaska Native organizations appealed the decision in District Court.

In general, in an appeal of this type, the courts tend to defer to the technical expertise of the agency involved but seek to determine whether the agency’s decision was made in a lawful manner. In this case the District Court thought that the agency had insufficient data on which to base its listing decision. The 9th Circuit judges disagreed, saying that the Fisheries Service had provided a reasonable explanation of its use of complex scientific data.

- ALAN BAILEY