Description: Challenge to designation of distinct population segments of bearded seals as threatened.
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Alaska v. Ross
Case Documents:
Filing Date Type File Action Taken Summary 01/22/2018 Order List Download Certiorari denied. Supreme Court Declined to Review Listing of Bearded Seal as Threatened Species. The U.S. Supreme Court declined to review a Ninth Circuit decision upholding the listing of the Beringia distinct population segment of the Pacific bearded seal subspecies as “threatened” under the Endangered Species Act. The Ninth Circuit had reversed a district court decision vacating the listing; the Ninth Circuit found that the National Marine Fisheries Service reasonably relied on loss of sea ice caused by global climate change over the next 50 to 100 years as the basis for the listing. The parties seeking certiorari asked the Supreme Court to consider whether a species could be listed as threatened when the government determined that the species “is not presently endangered” but “will lose its habitat due to climate change by the end of the century.” 11/27/2017 Brief Download Brief filed for federal respondents in opposition to the petition. 10/27/2017 Brief Download Brief in opposition filed by respondent Center for Biological Diversity. 08/21/2017 Amicus Brief Download Amicus brief filed in support of petitioners by Alaska Federation of Natives. 08/21/2017 Amicus Brief Download Amicus brief filed in support of petitioners by Resource Development Council of Alaska, Inc. and chambers of commerce. 08/21/2017 Amicus Brief Download Amicus brief filed in support of petitioners by 18 states. 07/21/2017 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. State of Alaska Sought Supreme Court Review of Bearded Seal Listing as Threatened Species. Petitioners led by the State of Alaska filed a petition for a writ of certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s decision upholding the listing of the bearded seal as a threatened species under the Endangered Species Act (ESA). The petitioners identified the question presented as whether a species could be listed as threatened when the government determined that the species “is not presently endangered” but “will lose its habitat due to climate change by the end of the century.” The State of Alaska petitioners argued that the case isolated a single legal issue of “critical importance regarding the reach of the ESA” and that the case provided “an ideal vehicle” for reviewing the issue because the National Marine Fisheries Service (NMFS) “based its listing decision entirely on the speculative, long-term effects of climate change on a healthy species,” the listing decision would take “a substantial, immediate toll on the State and its local population,” and the listing lacked positive conservation effects because NMFS “disclaimed any power to address the threat it purported to identify. The Alaska petitioners argued that NMFS had disregarded the statutory text and structure,” and that the agencies charged with implementing the ESA should not be allowed to “manhandle” the statute “to fit the square peg of climate change into the round hole of ESA regulation.” The Alaska petitioners said immediate review was necessary because neither the Ninth Circuit nor the D.C. Circuit was “likely to impose any effective limit on the listing of cold-weather species.” 01/13/2017 Reply Download Reply brief filed by petitioners. -
Alaska Oil & Gas Association v. Ross
Case Documents:
Filing Date Type File Action Taken Summary 12/13/2017 Reply Download Reply brief filed by petitioners. 07/21/2017 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. Trade Groups Sought Supreme Court Review of Bearded Seal Listing as Threatened Species. Alaska Oil and Gas Association (AOGA) and American Petroleum Institute (API) filed a petition for a writ of certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s decision upholding the listing of the bearded seal as a threatened species under the Endangered Species Act (ESA). The petitioners identified the question presented as whether a species could be listed as threatened when the government determined that the species “is not presently endangered” but “will lose its habitat due to climate change by the end of the century.” AOGA and API argued that the Ninth Circuit’s interpretation of the ESA allowing such a listing was incompatible with standards established by the Supreme Court and the D.C. Circuit and contrary to the statute’s plain language. The petitioners said certiorari should be granted to address the “palpable consequences for both public and private entities” that the Ninth Circuit’s “lax standard” would have and that the bearded seal listing presented “the perfect vehicle to set the Ninth Circuit’s erroneous standard straight” because the National Marine Fisheries Service had “conceded that it has no data to make a concrete inference about how the bearded seal will react to climate change and proceeded to list as threatened a highly abundant species that has shown no population decline despite observed sea ice declines.” -
Alaska Oil & Gas Association v. Pritzker
Case Documents:
Filing Date Type File Action Taken Summary 02/22/2017 Order Download Rehearing en banc denied. Ninth Circuit Denied Rehearing of Decision Upholding Threatened Status for Bearded Seal. The Ninth Circuit Court of Appeals denied rehearing en banc of its decision reinstating the listing of a distinct population segment of the Pacific bearded seal subspecies as threatened. The Ninth Circuit upheld the listing in October 2016, reversing an Alaska district court. The Ninth Circuit said that the National Marine Fisheries Service had reasonably relied on loss of sea ice cause by global climate change over the next 50 to 100 years as basis for the listing. 01/09/2017 Petition for Rehearing Download Joint petition filed for rehearing en banc. 10/24/2016 Opinion Download Opinion issued reversing district court's vacating of listing. Ninth Circuit Reinstated Listing of Bearded Seal as Threatened Based on Climate Change Projections. The Ninth Circuit Court of Appeals reversed a district court decision that vacated the listing of the Beringia distinct population segment (DPS) of the Pacific bearded seal subspecies as “threatened” under the Endangered Species Act (ESA). A threatened species is one that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Ninth Circuit found that the National Marine Fisheries Service (NMFS) had acted reasonably based on best available scientific and commercial data when it relied on projections of loss of sea ice through the end of the century as the basis for its listing decision. The Ninth Circuit concluded that the fact that climate projections from 2050 to 2100 might be “volatile” did not deprive those projections of value because “[t]he ESA does not require NMFS to make listing decisions only if underlying research is ironclad and absolute.” The court rejected the plaintiffs’ argument that NMFS had impermissibly diverged from its previous practice of using 2050 “as the outer boundary” of the “foreseeable future.” The court also was not persuaded by the plaintiffs’ contention that NMFS did not adequately establish the relationship between loss of sea ice and the bearded seal’s risk of extinction or by the argument that NMFS was required to calculate or demonstrate the magnitude of the threat of sea ice loss to the seals. The Ninth Circuit concluded: “NMFS has provided a rational and reasonable basis for evaluating the bearded seal’s viability over 50 and 100 years, and it has candidly disclosed the limitations of the available data and its analysis. The ESA does not require more, and NMFS did not act arbitrarily or capriciously in concluding that the effects of global climate change on sea ice would endanger the Beringia DPS in the foreseeable future.” -
Alaska Oil & Gas Association v. Pritzker
Case Documents:
Filing Date Type File Action Taken Summary 07/25/2014 Memorandum Decision Download Memorandum decision issued vacating listing. The federal district court for the District of Alaska ruled in the three actions that the listing of the Beringia distinct population segment (DPS) of bearded seals as threatened under the Endangered Species Act (ESA) was arbitrary, capricious, and an abuse of discretion. Procedurally, the court said that the National Marine Fisheries Service (NMFS) had not responded adequately to the State of Alaska’s comments because NMFS had responded to some of the comments only in the preamble to the final rule, rather than in a letter directed to the State, as required by the ESA. Substantively, the court said that NMFS’s forecasting of possible impacts of loss of sea-ice on the bearded seal population more than 50 years into the future was too speculative and too remote. The court also said that its finding that the listing was arbitrary and capricious was bolstered by NMFS’s explicit finding that no protective regulations were required. The court also found that plaintiffs did not have standing to challenge the listing of the Okhotsk DPS of bearded seals, which is located in the Sea of Okhotsk off the coast of Japan and the Russian Federation. 07/02/2013 Complaint Download Amended complaint filed. The American Petroleum Institute joined the Alaska Oil and Gas Association in filing an amended complaint. 05/21/2013 Complaint Download Complaint filed. Alaska Oil and Gas Association (AOGA) challenged the National Marine Fisheries Service’s (NMFS’s) listing of two distinct population segments (DPSs) of bearded seals as threatened under the Endangered Species Act (ESA). AOGA alleged that the listing was unlawful because the bearded seal populations were presently “abundant, wide-ranging and entirely healthy” and the basis for the listing was “unknown and unspecified adverse effects that may occur at an unknown time and at an unknown rate in the future as a consequence of climate change in the Arctic occurring over the next century.” Among other things, AOGA asserted that NMFS irrationally relied upon climate predictions extending to 2100 when prior ESA listing determinations relied on mid-century projections, and that neither best available scientific data and information nor the administrative record supported a listing of the bearded seal DPSs as threatened. -
State of Alaska v. National Marine Fisheries Service
Case Documents:
Filing Date Type File Action Taken Summary 06/21/2013 Complaint Download Complaint filed. The State of Alaska filed an action challenging the listing of distinct population segments of bearded seals as threatened. -
North Slope Borough v. Pritzker
Case Documents:
Filing Date Type File Action Taken Summary 11/20/2013 Complaint Amended complaint filed. Parties representing inhabitants and local governments in northern Alaska filed an action challenging the listing of distinct population segments of bearded seals as threatened.