Alaska Oil & Gas Ass'n v. Nat'l Marine Fisheries Serv.
Decision Date | 17 March 2016 |
Docket Number | Case No. 4:15-cv-00002-RRB,Case No. 4:14-cv-00029-RRB,Case No. 4:15-cv-00005-RRB |
Parties | ALASKA OIL AND GAS ASSOCIATION; et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE; et al., Defendants. NORTH SLOPE BOROUGH, Plaintiff, v. PENNY PRITZKER; et al., Defendants. STATE OF ALASKA, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE; et al., Defendants. |
Court | U.S. District Court — District of Alaska |
On December 28, 2012, the National Marine Fisheries Service ("NMFS") and National Oceanic and Atmospheric Administration ("NOAA") of the Department of Commerce issued a final decision listing the Arctic subspecies of ringed seal (the Phoca hispida hispida subspecies) as threatened under the Endangered Species Act ("ESA") (hereinafter referred to as the "Listing Rule").1 These consolidated actions challenge that decision.2 The facts underlying the consolidated actions are well known to parties, and a matter of public record. Accordingly, the facts will not be repeated herein except to the extent necessary to understand the decision of this court.
While, the issues presented here appear complex, this dispute ultimately boils down to whether or not it was reasonable for NMFS to list the Arctic ringed seals as a "threatenedspecies," while the population is strong and healthy, based primarily upon speculation as to what circumstances may or may not exist 80 to 100 years from now. For the reasons set forth below, the Court concludes that it was not.
At Docket 42 the Northern Alaska Plaintiffs have moved for summary judgment, which NMFS and CBD have opposed and cross-moved for summary judgment.3 The Northern Alaska Plaintiffs have replied and opposed the cross-motions.4
At Docket 50 the State of Alaska (hereinafter "State") has moved for summary judgment, which NMFS and CBD have opposed and cross-moved for summary judgment.5 The State has replied and opposed the cross-motions.6
At Docket 54 Plaintiffs AOGA/API have moved for summary judgment, which NMFS and CBD have opposed and cross-moved for summary judgment.7 AOGA/API have replied and opposed the cross-motion.8
The Court being fully advised in the matter has determined that oral argument would not materially assist in resolving the issues presented. Accordingly, the requests for oral argument are DENIED.9
Jurisdiction is vested in this Court under 28 U.S.C. §§ 1331, 2201-02, 16 U.S.C. § 1540(g), and 5 U.S.C. §§ 553, 702-06. Venue is proper under 29 U.S.C. § 1391(e).
Because the ESA does not supply a separate standard for review, this Court reviews claims under the standards of the Administrative Procedures Act ("APA").10 The APA provides that an agency action must be upheld on judicial review unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."11 As applied to the ESA, the Ninth Circuit recently held:
The Ninth Circuit has made clear that a court's review of agency decisions under the APA is extremely narrow. Under § 706(2)(A), a court may set aside an agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." When reviewing "under the arbitrary and capricious standard[,]" a court is deferential to the agency involved.13 A court may not substitute its judgment for that of the agency:14 as long as the agency states a rational connection between the facts found and the decision made itmust be upheld.15 This deference is particularly appropriate where the decision of the agency at issue "requires a high level of technical expertise."16
This Court's review is limited to "the administrative record already in existence, not some new record made in the reviewing court."17
Where, as here, the Court is reviewing an agency's interpretation of a statute, such as the ESA, the appropriate framework of review under Chevron is a two-step process: (1) first the court must look to the plain meaning of the statutory language, i.e., is it unambiguous; and (2) if ambiguous, whether the agency's interpretation of the statutory language is permissible.19 In this case it is indisputable that the statute in question fails the "plain meaning"rule, it is ambiguous. "When it enacted the ESA, Congress delegated broad administrative and interpretive power to the Secretary [of Commerce]."20 As the Ninth Circuit has found "[by] leaving an 'explicit gap' for agency promulgated regulations, the ESA expressly delegates authority to the [agency] to decide how such listing determinations are to be made."21 Thus, this Court examines the Listing Rule before it under Chevron's second step, i.e., whether the agency's interpretation is permissible.22
Applying the foregoing standards, the ultimate issue presented in this appeal is whether or not the decision to list the Arctic subspecies of ringed seal (the Phoca hispida hispida subspecies) as threatened under the ESA was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." For the reasons set forth below, the Court concludes that in the absence of evidence of the current population level, the lack of projected decline in that population, and the failure to define an extinction threshold, the evidence is insufficient to support a finding that the Arctic ringed seals are threatened with extinction in the foreseeable future. This, coupled with the lack of any suggested efforts to protect the Arctic ringed seals,leads the Court to conclude that the decision to include the Arctic ringed seals as threatened was arbitrary, capricious and an abuse of discretion.23
NMFS provided the following summary:
SUMMARY: We, NMFS, issue a final determination to list the Arctic (Phoca hispida hispida), Okhotsk (Phoca hispida ochotensis), and Baltic (Phoca hispida botnica) subspecies of the ringed seal (Phoca hispida) as threatened and the Ladoga (Phoca hispida ladogensis) subspecies of the ringed seal as endangered under the Endangered Species Act (ESA). We will propose to designate critical habitat for the Arctic ringed seal in a future rulemaking. To assist us in this effort, we solicit information that may be relevant to the designation of critical habitat for Arctic ringed seals. In light of public comments and upon further review, we are withdrawing the proposed ESA section 4(d) protective regulations for threatened subspecies of the ringed seal because we have determined that such regulations are not necessary or advisable for the conservation of the Arctic, Okhotsk, or Baltic subspecies of the ringed seal at this time. Given their current population sizes, the long-term nature of the primary threat to these subspecies (habitat alteration stemming from climate change), and the existing protections under the Marine Mammal Protection Act, it is unlikely that the proposed protective regulations would provide appreciable conservation benefits.24
Plaintiffs challenge the following finding in the Listing Rule:
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