On February 12, 2018, in Alaska Oil & Gas Association v. National Marine Fisheries Service, Case No. 16-35380, the U.S. Court of Appeals for the Ninth Circuit reversed a 2016 decision by the U.S. District Court for the District of Alaska that vacated a final regulation listing the Arctic subspecies of ringed seal (Phoca hispida hispida, Phoca hispida ochotensis, and Phoca hispida botanica) as threatened and the Ladoga subspecies of ringed seal (Phoca hispida ladogensis) as endangered under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (“ESA”).
Plaintiffs challenged the National Marine Fisheries Service’s (“NMFS”) 2012 listing determination as arbitrary and capricious. NMFS’s decision to list the ringed seal subspecies was based on evidence that snow cover is forecasted to decrease substantially throughout the species’ range and become inadequate for the formation and occupation of seal birth lairs within a century. NMFS found this evidence sufficient to support listing the subspecies, despite the fact that they currently number in the millions. This evidence and the uncertainty of whether the seals will migrate north lead NMFS to list ringed seal subspecies as threatened and endangered under the ESA. The district court found that NMFS failed to provide a basis for the listing decision in light of the fact that there was no discernable, quantified threat of extinction to the species in the next 50 to 100 years.
The Ninth Circuit reversed, applying the “more likely than not” standard articulated in Alaska Oil & Gas Ass’n et al. v. Pritzker, 840 F. 3d 671, 684 (9th Cir. 2016) (“Alaska Oil & Gas I”). The Ninth Circuit held that ESA Section 4, 16 U.S.C. § 1534, does not require quantitative data that is not yet available when a species is “more likely than not” to become extinct in the foreseeable future. The Ninth Circuit also ruled that NMFS’s reliance on climate change models projecting out to the year 2100 was not arbitrary and capricious because the Final Rule provided a reasonable and scientifically supported methodology for addressing volatility in its long-term climate projections and fairly represented the shortcomings of those projections.