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Seal listing upheld 9th Circuit court overturns District Court ruling over bearded seal status ALAN BAILEY Petroleum News
The U.S. Court of Appeals for the 9th Circuit has upheld the National Marine Fisheries Service listing of the Beringia population of bearded seals as threatened under the terms of the Endangered Species Act. The court’s Oct. 24 ruling overturns a decision by the federal District Court in Alaska - the District Court had found the Fisheries Service to have been arbitrary or capricious in listing the seals.
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.
Entities with economic interests in the Arctic offshore have been concerned about the potential impact of sea ice related listings on economic activity in the region, given legal mandates for actions designed to protect the listed animals. Controversy over the listings is compounded by uncertainty over future climate trends and disagreements over the causes of climate change.
When an agency decision such as the bearded seal listing is appealed through the courts, a court generally defers to the agency’s technical expertise. Instead, the focus of the court’s review centers on whether, in making its decision, the agency appropriately followed the law and, in particular, whether the agency had been “arbitrary or capricious” in its decision making.
Long-term projection In 2012 the Fisheries Service listed two distinct populations of bearded seal as threatened but only one of these populations, the Beringia bearded seal, lives in U.S. waters. The listing was based on climate and sea ice models which projected that, towards the end of the 21st century, diminished sea ice would pose a significant threat to the seals’ survival. 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 July 2014 District Court Judge Ralph Beistline tossed the listing decision, citing a lack of any discernible, quantifiable threat of extinction in the foreseeable future. In addition to the uncertain path of climate change many decades ahead, the Fisheries Service had insufficient data on the resilience of bearded seals to cope with the changing climate, Beistline argued.
The 9th Circuit Court has now disagreed with Beistline’s position, saying that it has taken a “deferential and narrow” view of Fish and Wildlife’s expertise in making its listing decision. The agency appropriately used the best available science, the court said.
The court said that the Fisheries Service had tasked a team of biologists, a marine chemist and a climate scientist with reviewing the status of the bearded seals. The team determined that the seals prefer to hunt organisms found on the ocean floor, using broken sea ice in relatively shallow water, both as a base and for rearing their young. And all independent peer reviewers agreed that the continued viability of the seals depends on the availability of sea ice during crucial life stages, the 9th Circuit judges said.
Climate models Using several climate models, the Fisheries Service concluded that by 2095 sea ice will have entirely disappeared from several regions where the seals give birth and raise their young, while a majority of peer reviewers commented that any increase in sea ice over deep water would not offset the loss of ice in the shallow waters of the Bering, Chukchi and Beaufort seas.
In assessing the magnitude of the impact of climate change on sea ice, the Fisheries Service used predictive models developed by the Intergovernmental Panel on Climate Change, comparing the predictions of these models with models considered particularly reliable for the prediction of the future sea ice cover.
Referencing a D.C. Circuit court ruling that had found that, in a case relating to the listing of polar bears, the IPCC climate models constitute “the best available science,” the 9th Circuit judges said that they “must defer to the agency’s interpretation of complex scientific data as long as the agency provides a reasonable explanation for adopting its approach and discloses limitations to that approach.”
In fact, recent observations indicate that the Arctic is warming faster than the IPCC models predict, the judges commented.
Moreover, the District Court, in its decision, had incorrectly concluded that quantitative data was needed to demonstrate the impact of the sea ice decline on the bearded seal population. It is not necessary to wait until a species’ habitat is destroyed to determine that habitat loss may lead to extinction, the 9th Circuit judges countered.
State comments documented The judges also rejected an argument by the state of Alaska that the Fisheries Service had violated the Endangered Species Act by not providing the state with a written statement, notifying the state of the listing decision and commenting on how the agency had addressed comments submitted by the state. The statute does not require the federal agency to separately notify the state of its action - the Fisheries Service has documented responses to the state’s comments, the judges said.
U.S. Sen. Dan Sullivan, R-Alaska, a fervent opponent of federal regulation, has issued a statement criticizing the 9th Circuit decision and referencing the fact that the Center for Biological Diversity had filed the original petition for the listing of the seals.
“I am deeply troubled by the 9th Circuit’s decision today to allow unnecessary and crushing federal regulatory burdens to move forward, which will impact large swaths of Alaska lands and waters,” Sullivan said on Oct. 24. “The listing will have detrimental impacts on our ability to access Alaska’s lands and resources, which is why a broad coalition - Alaska Native organizations, resource development groups, individual Alaskans and the state - came together to oppose the listing pushed by outside radical environmentalists.”
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