Center for Biological Diversity v. Lubchenco
758 F. Supp. 2d 945
N.D. Cal.2010Background
- Plaintiffs Center for Biological Diversity and Greenpeace allege NMFS violated the ESA by failing to list the ribbon seal as threatened or endangered.
- Defendants include NOAA Administrator Lubchenco, Secretary of Commerce Locke, and NMFS; Alaska filed amicus briefs supporting the defendants.
- NMFS conducted a status review and issued a 12-month finding on listing, concluding listing was not warranted and placing ribbon seals on the Species of Concern list.
- Ribbon seals inhabit the Sea of Okhotsk, Bering Sea, and Chukchi Sea; they are ice-dependent during whelping, mating, and molting (March–June) and spend most of their lives at sea otherwise.
- Sea ice habitat is shrinking; NMFS recognized decoupling of summer Arctic ice from spring Bering/Okhotsk ice, with potential range shifts but only slight anticipated population declines.
- The Status Review relied on a Biological Review Team and modeling to assess five ESA factors, concluding no current danger of extinction but a gradual future decline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Significant portion of range | Defendants failed to treat Okhotsk as a significant portion of range. | No evidence of major areas where the species cannot survive; range remains whole. | NMFS properly concluded no significant portion of range viability issue. |
| Distinct Population Segments (DPS) analysis | International management differences justify a DPS and potential listing distinctions. | No discrete population segment evidence; no DPS warranted. | No DPS designated; ribbon seal treated as a single population for listing purposes. |
| Foreseeable future timeframe | 2050 cutoff ignores longer-term climate impacts (2100+); IPCC projections should extend planning. | Foreseeable future up to 2050 is appropriate due to model uncertainty beyond that date. | Court upholds 2050 foreseeable future as not arbitrary or capricious. |
| Use of best available science | NMFS ignored key studies (Meier 2007 on Okhotsk ice declines) and other analyses. | NMFS considered multiple sources, including Wang 2007 and Overland/Meier data; used best available science. | NMFS complied with best available science; no arbitrary or capricious disregard. |
| Ocean acidification and other threats | Acidification and prey shifts threaten ribbon seals beyond 2050. | Effects are uncertain; major impacts expected later and not enough to trigger listing now. | Not basis to list; insufficient to show current extinction risk. |
Key Cases Cited
- Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001) (significant portion of range concept and agency duty to explain range considerations)
- Trout Unlimited v. Lohn, 645 F. Supp. 2d 929 (D. Or. 2007) (best available science governs listing decisions; deference to agency judgment allowed)
- Earth Island Inst. v. Hogarth, 494 F.3d 757 (9th Cir. 2007) (defers to agency expertise in technical domain; substantial basis in fact required)
- Center for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223 (W.D. Wash. 2003) (best available science requirement and no need for independent studies to improve data)
- River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) (caution in applying high threshold for setting aside agency action; deference to expert agency)