Endangered Species Law & Policy

On March 15, 2016, in Alaska Oil & Gas Association v. National Marine Fisheries Service, case number 4:14-cv-00029-RRB, the U.S. District Court for the District of Alaska vacated a final regulation promulgated by the National Marine Fisheries Service ("NMFS") 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 ("ESA").  The State of Alaska, North Slope Borough and the Alaska Oil and & Gas Association (collectively, Plaintiffs) challenged the listing determination as arbitrary and capricious.

The court agreed with Plaintiffs, holding the agency's decision was fatally flawed.  The court reasoned that NMFS acknowledged and articulated the lack of a discernable, quantified threat of extinction to the species within the next 50 to 100 years, and found that protective regulations were not necessary, nor advisable, at this time as they would not provide appreciable conservation benefits.  The court also observed that listing the subspecies would have the effect of requiring interagency consultation in the absence of any available or reliable measures to conserve the subspecies.  As such, the court determined that listing the ringed seal subspecies in light of this contrary evidence was inherently arbitrary and capricious.

NMFS's decision to list the ringed seal subspecies was based on evidence that, although existing populations of the subspecies number in the millions, snow cover is forecasted to decrease substantially throughout its range and, within a century, become inadequate for the formation and occupation of seal birth lairs.  This evidence, coupled with NMFS's finding that it is uncertain whether the seals will migrate northward, lead NMFS to list ringed seal subspecies as threatened and endangered under the ESA.

The court declined to hold, as argued by Plaintiffs, that a listing decision based on foreseeable conditions occurring 50 or more years from today is per se arbitrary and capricious or contrary to the ESA.  This limitation on the court's ruling is significant, as it provides NMFS with the opportunity to begin again on remand and to attempt to iron out the wrinkles in their logic in a new regulation.