Alaska Oil and Gas Ass'n v. Penny Pritzker
840 F.3d 671
| 9th Cir. | 2016Background
- In 2008 the Center for Biological Diversity petitioned to list three "sea ice seal" populations; NMFS conducted multi-stage status reviews, peer review, and public comment.
- NMFS concluded the Okhotsk and Beringia distinct population segments (DPS) of the Pacific bearded seal were "likely to become endangered within the foreseeable future" and issued a final rule listing the Beringia DPS as threatened (Dec. 2012).
- NMFS relied on IPCC climate models and regional observational data to project loss of shallow-water sea ice (critical for whelping, nursing, foraging) through mid- and end-of-century, up to near-complete loss by 2095 in key areas.
- Plaintiffs (Alaska Oil & Gas Ass’n, State of Alaska, North Slope Borough and others) sued under the ESA citizen-suit provision and the APA, arguing NMFS’s long-term climate projections were speculative, data on seal populations/adaptability were insufficient, and NMFS failed to satisfy ESA Section 4(i) state-notice requirements.
- The district court upheld lack of standing for the Okhotsk DPS but granted summary judgment to plaintiffs on the Beringia listing—vacating the rule—finding NMFS’s century-scale projections speculative and demanding quantitative extinction thresholds and population projections.
- The Ninth Circuit reversed, holding NMFS’s listing decision was reasonable, supported by the best available science, and complied with Section 4(i).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. May NMFS rely on long-term (mid-/end-century) climate projections to list a species as threatened? | Projections beyond 2050 are too speculative to support listing. | NMFS may use best available science and species-specific timeframes; IPCC models and observations are reliable. | NMFS may use mid- and end-century projections; its methodology and disclosure were reasonable. |
| 2. Did NMFS improperly change its approach to the "foreseeable future" by looking past 2050? | NMFS deviated from prior practice without adequate reason. | Agency may set foreseeability timeframe based on species-, threat-, and data-specific analysis and explain change. | Change was reasoned and consistent with Solicitor guidance; not arbitrary or capricious. |
| 3. Was there insufficient causal linkage between sea-ice loss and bearded seal extinction risk? | Lack of population baselines, extinction threshold, and quantified probability prevents a reasoned finding. | Best available data showed critical dependence on shallow-water sea ice; quantitative thresholds not required. | NMFS provided a rational connection between habitat loss and species risk; quantitative extinction dates not required. |
| 4. Did NMFS violate ESA §4(i) by failing to provide a written justification to the State of Alaska? | NMFS's letter was insufficient and did not address Alaska's substantive comments adequately. | §4(i) requires a written response incorporated in the rule or cross-referenced; agency satisfied notice and responses. | Under Ninth Circuit precedent, NMFS complied with §4(i); responses in the rule and accompanying letter were adequate. |
Key Cases Cited
- Alaska Oil & Gas Ass'n v. Jewell, 815 F.3d 544 (9th Cir. 2016) (agency may adopt species- and threat-specific foreseeable-future timeframes; §4(i) does not impose separate state-notification duty)
- In re Polar Bear Litig., 709 F.3d 1 (D.C. Cir. 2013) (IPCC models can constitute best available science supporting listings based on sea-ice loss)
- Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001) (habitat-loss evidence alone, without reasoned causal link, is insufficient to list)
- Nw. Ecosys. All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136 (9th Cir. 2007) (defer to agency on complex scientific data when agency explains methodology)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (ESA’s purpose is to prevent species extinction)