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COOK INLET BELUGA WHALE v. DALEY

August 20, 2001

COOK INLET BELUGA WHALE, ET AL., PLAINTIFFS,
V.
WILLIAM M. DALEY, SECRETARY, U.S. DEPARTMENT OF COMMERCE, ET AL., DEFENDANTS, CITY OF ANCHORAGE, ET AL., INTERVENER-DEFENDANTS.



The opinion of the court was delivered by: Robertson, District Judge

MEMORANDUM

This Administrative Procedure Act case presents a challenge to the decision of the Secretary of Commerce and the National Marine Fisheries Service (NMFS) to list the Cook Inlet Beluga Whale as "depleted" under the Marine Mammal Protection Act, but not as "endangered" or "threatened" under the Endangered Species Act (ESA). The Secretary determined that the recent Beluga Whale population decrease, which everyone agrees is attributable almost exclusively to over-hunting, can be arrested using the statutory protection afforded "depleted" marine mammal species and a legislative moratorium on Native American takings.*fn1 Because the plaintiffs have not sustained their burden of showing that that determination was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," summary judgment will be entered in favor of the government.

Factual and Procedural Background

The Cook Inlet Beluga Whale (Delphinapterus leucas) is a genetically distinct, geographically isolated marine mammal with a remnant population that inhabits Cook Inlet from late April or early May until October or November. NMFS estimates that in the mid-1980's, between 1000 and 1300 whales inhabited the inlet. Today, the population is estimated at between 300 and 400 whales. It is not disputed that the single most significant factor in the population decline has been Native American hunting: NMFS estimates that between 1995 and 1997 the Native American subsistence harvest averaged 77 whales per year. That is why, in March 1999, the plaintiffs filed a petition to list the Cook Inlet Beluga Whale under the Endangered Species Act (ESA).*fn2

The Endangered Species Act delegates to the Secretary of Commerce the authority to determine whether fish, wildlife, or plant species should be listed as endangered or threatened. A species is "endangered" when it is in "danger of extinction throughout all or a significant part of its range," and it is "threatened" when it is "likely to become an endangered species within the foreseeable future." 16 U.S.C. § 1532 (6), (20), 1533(c). The Secretary's ESA determination is made on the basis of five statutorily prescribed factors, any one of which is sufficient to support a listing determination. 16 U.S.C. § 1533 (a)(1).

On June 22, 2000, the NMFS determined that an ESA listing was "not warranted." It is that determination which, in plaintiffs' submission, was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

Argument

"In exercising its narrowly defined duty under the APA, the Court must consider whether the agency acted within the scope of its legal authority, adequately explained its decision, based its decision on facts in the record, and considered the relevant factors." National Park and Conservation Ass'n v. Stanton, 54 F. Supp.2d 7, 11 (D.D.C. 1999). Plaintiffs argue that the agency decision in this case improperly applied the law and facts to the five-factor determination; failed to apply the best scientific and commercial data available; and improperly considered political and economic factors.

I. Statutory Factors

A decision whether or not to list a species shall be made "solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation." 16 U.S.C. § 1533 (b). Applying this standard, the Secretary must list a species as endangered or threatened if "any of § 1533(a)(1)'s five factors are sufficiently implicated." Southwest Center for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C.Cir. 2000). Each of the five factors is considered below.

(A) The present or threatened destruction, modification, or curtailment of the species' habitat or range.

The agency's conclusion that "no indication exists that the range has been, or is threatened with being modified or curtailed to an extent that appreciably diminishes the value of the habitat for both survival and recovery of the species," 65 Fed. Reg. 38778, 38781 (June 22, 2000), was not arbitrary or capricious. There is no dispute that the Cook Inlet, the whale's habitat, has changed over time in response to the increasing demand of municipal, industrial, and recreational activities, but there is no record basis for concluding that these changes have had a deleterious effect on the whale. Plaintiffs can point only to the fact that the whales have increasingly inhabited the upper inlet in recent decades. The agency concedes that this change in whale behavior might be in response to human activities, but no data suggest that the change threatens extinction. The agency is not required to conduct further testing to determine the effect of various ...


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