Providing coverage of Alaska and northern Canada's oil and gas industry
October 2019

Vol. 24, No.40 Week of October 06, 2019

Court rejects walrus listing appeal

Says that Fish and Wildlife provided adequate justification for 2017 decision not to list Pacific walrus as endangered under ESA

Alan Bailey

for Petroleum News

The federal District Court in Alaska has rejected an appeal by the Center for Biological Diversity against a 2017 decision by the U.S. Fish & Wildlife Service not to list the Pacific walrus as endangered under the terms of Endangered Species Act. In a Sept. 26 court order Judge Sharon Gleason rejected each of the arguments that the CBD had put forward in its challenge to the FWS decision.

Loss of sea ice habitat

The issue regarding whether to list the walrus emanates from the fact that the animals constitute one of the species impacted by the shrinkage of the Arctic sea ice extent, as the Arctic climate warms. The question of whether and to what extent sea ice loss will impact future animal wellbeing has become controversial, especially given uncertainties over the extent and rate of ice loss, and uncertainties over the ways in which this ice loss may impact animal wellbeing.

In recent years, following sea ice loss, walrus have been observed gathering in large, onshore haulouts, rather than remaining offshore on ice floes. This has given rise to concerns about potential mortality rates in the haulouts. And the Center for Biological Diversity has argued that the walrus depend on sea ice in support of their offshore lifestyle.

Opponents of the sea-ice related listings argue that impacted animals are currently healthy, and point to uncertainties regarding future sea ice cover. The listing of animals can impact economic activity in regions of animal habitat. And Native communities in the Arctic hunt walrus as subsistence resources.

2008 petition

Following a February 2008 petition to Fish & Wildlife by the Center for Biological Diversity to list the walrus as threatened or endangered as a consequence of climate change, in February 2011 the agency determined that a listing was warranted. However, because of the workload involved in dealing with higher priority listings, the agency deferred the formal listing procedure for the walrus. Subsequently, in a settlement with the environmental organization, the agency undertook to make a formal listing decision by the end of September 2017.

Shortly before that 2017 deadline, Fish & Wildlife announced that it had decided not to list the walrus. The agency argued the walrus had been observed adapting to sea ice loss in a manner not previously anticipated; that actions taken to prevent disturbance to shore haulouts had proven effective in reducing walrus mortality; and that industrial and subsistence impacts on the walrus had dropped since the 2011 listing opinion had been issued. The agency also reduced its time horizon for forecasting climate change and sea ice shrinkage from 2100 to 2060, arguing that forecasting the climate and sea ice situation beyond 2060 was too speculative for reliable prediction.

Fish & Wildlife found that recent studies and data have indicated that the walrus habitat needs for breeding and birthing would be met through to 2060.

The Center for Biological Diversity sued in District Court, arguing that, in reversing its 2011 ruling, Fish & Wildlife had violated the Endangered Species Act and the Administrative Procedures Act. The environmental organization cited, among other things, evidence of walrus death from trampling in onshore haulouts. The organization also argued that ocean acidification from carbon dioxide is impacting the walrus prey.

Adequate explanation

In making her decision to uphold Fish & Wildlife’s position, Judge Gleason adopted the normal court approach to an administrative appeal by determining whether the agency decision had been “arbitrary and capricious” or not in accordance with law, while also deferring to agency expertise in the subject matter at issue. She said that a change in an agency ruling can be justified if the agency has found compelling evidence that alters a previous perspective: She found that the agency had provided an adequate and reasoned explanation for its new viewpoint. The 2017 assessment relied on recent studies and data that justify a change in the agency’s position, she said.

Gleason also commented that, following legal precedent from another challenge to a sea ice related species listing decision, an agency can change its policy for what it views as the “foreseeable future” for assessing future trends in climate change and sea ice loss, provided that the agency presents an adequately reasoned explanation for the policy change. And, in relation to the potential walrus listing, the agency had “provided good reasons to end the foreseeable future at the year 2060,” Gleason wrote.


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