State of Alaska v. Lubchenco
825 F. Supp. 2d 209
D.D.C.2011Background
- Cook Inlet beluga population declined from about 1,300 to roughly 350, with heavy subsistence harvest 1994–1998 driving the decline.
- Post-1999 subsistence-harvest moratorium, aerial surveys show no meaningful recovery and ongoing decline risk.
- Service initially designated the stock as depleted under MMPA and declined to list under ESA in 2000, later recognizing it as a distinct population segment (DPS) for potential future listing.
- The Service conducted a status review and population viability analysis, incorporating a long-term extinction-risk model with several mortality and disturbance parameters.
- Final ESA listing as endangered was issued in 2008 after public notice and comment; Alaska and others challenged the rule under the APA and ESA, leading to cross-motions for summary judgment.
- The court grants summary judgment for Defendants, applying a highly deferential review of agency science and procedure under the ESA/APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether listing Cook Inlet beluga as endangered was rational under ESA §1533(a)(1). | Alaska argues no change since 2000; listing was arbitrary. | Service rationally considered all five factors and current data show continued decline. | Yes; five factors supported endangered designation. |
| Whether the Service based its decision on the best available science. | Science relied on models with questionable assumptions. | Models are best available science with extensive testing and peer review. | Yes; reliance on best available science sustains listing. |
| Whether the Service complied with procedural requirements and public-comment obligations. | Service failed to provide full opportunity and respond adequately. | Service conducted multiple hearings, engaged in extensive replies, and extended review as permitted. | Yes; procedures satisfied under APA/ESA. |
| Whether the Service properly considered Alaska conservation efforts under PECE and 4(a)(D) (inadequacy of regulatory mechanisms). | State conservation efforts should have diminished threats. | Efforts lacked certainty of implementation/effectiveness; PECE not satisfied. | Yes; Alaska programs not shown to remove threats; listing rational. |
| Whether an endangered designation was required or a threatened designation could have sufficed. | Service should have listed as threatened given lack of immediate recovery. | Endangered categorization warranted by high extinction risk; no need for threatened designation. | Endangered designation appropriate. |
Key Cases Cited
- Southwest Center for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000) (any factor can support listing under ESA §1533(a)(1))
- Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (1983) (judicial deference to agency scientific determinations)
- Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) (deferential review of scientific judgments)
- Daley v. Daley, 156 F. Supp. 2d 16 (D.D.C. 2001) (ESA/APA listing decisions depend on best available science)
- Building Industry Ass’n of Superior California v. Norton, 247 F.3d 1241 (D.C. Cir. 2001) (district court review of population viability analyses)
- Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009) (strong deference to predictive models in conservation)
- City of Portland v. EPA, 507 F.3d 706 (D.C. Cir. 2007) (requirement to address significant objections with reasoned responses)
- Solite Corp. v. E.P.A., 952 F.2d 473 (D.C. Cir. 1991) (no reopening of comment period required for supplemental data)
- Massachusetts ex re. Div. of Marine Fisheries v. Daley, 170 F.3d 23 (1st Cir. 1999) (best available data standard under ESA/APA)