courts will rely on unless "there is "simply no rational relationship'
between the model chosen and the situation to which it is applied."
American Iron & Steel Institute v. Environmental Protection Agency,
115 F.3d 979, 1004 (D.C.Cir. 1997).
Plaintiffs argue that harvesting will still occur even after the MMPA
"depleted" listing because some hunting will be permitted under
co-management agreements between the agency and Native American
organizations and some hunting will occur illegally. Proposed regulations
governing co-management agreements, however, limit Native American hunts
to two strikes annually, 65 Fed. Reg. 59164, 59165-66 (Oct. 4, 2000), and
there is no reason to believe that the MMPA's enforcement mechanisms,
which are identical to those of the ESA, will be less effective in
controlling illegal takings. Plaintiffs' concerns are reasonable, and
enforcement should be carefully monitored, but the record contains
support for the agency's conclusion that future takings will be minimal
and that the current population is sustainable.
(C) Disease or Predation
The agency concedes that both disease or predation "occur in the CI
beluga population and may affect reproduction and survival," but it has
concluded that these factors are not causing the stock to be threatened
or endangered. 65 Fed. Reg. 38778, 38781 (June 22, 2000). Plaintiff has
not shown that conclusion to be arbitrary or capricious. Nothing in the
record indicates that disease threatens recovery of the Beluga Whale
stocks. Plaintiffs have not rebutted the agency's finding that "[n]o
quantitative data exist on the level of removals from this population due
to killer whale predation or its impact." Id. "Even if the available
scientific and commercial data were quite inconclusive, [the Secretary]
may — indeed must — still rely on it at that stage."
Southwest Center for Biological Diversity, 215 F.3d at 60.
(D) Inadequacy of Existing Regulatory Mechanisms
We have found nothing in the record, and plaintiff has identified
nothing, showing that there are inadequacies in existing regulatory
mechanisms or, if there were, what the effects of such inadequacies would
be. Plaintiffs argue that the MMPA is inadequate to ensure that illegal
hunting does not occur and to adequately protect Cook Inlet from damaging
development activities, but that argument simply asserts plaintiffs'
policy preference for a remedy under the ESA and begs the question of
whether ESA listing is required.
(E) Other Natural or Manmade Factors Affecting its Continued Existence
Plaintiffs argue that there are many other factors — strandings,
oil spills, takings through commercial fishing, effects of pollutants,
ship strikes, noise, urban runoff, etc. — that put the species at
risk and that it was arbitrary and capricious for the agency to determine
that "[t]he best available information indicates that these activities,
alone or cumulatively, have not caused the stock to be in danger of
extinction and are not likely to do so in the foreseeable future." 65
Fed. Reg. 38778, 38783 (June 22, 2000). They point to a snippet in the
record indicating that "other factors could be contributing to the
decline," AR-D545, at ¶ 5, and argue that the agency failed to
adequately consider the cumulative effects of all of the potential
factors combined with the small population size of the Cook Inlet Beluga
It is true that the absence of "conclusive evidence" of a real threat
species does not justify an agency's finding that ESA listing is not
warranted. Defenders of Wildlife, 958 F. Supp. at 679. But neither is
listing required simply because the agency is unable to rule out factors
that could contribute to a population decline. It was not arbitrary or
capricious for the agency to place its principal reliance on the
cessation of Native American hunts and the Breiwick and DeMaster
conclusion that the Cook Inlet Beluga Whale population could sustain
itself, even accounting for stochastic events.
II. Other Arguments
(A) IUCN Criteria
The agency's decision is not rendered arbitrary by the fact that
criteria adopted by the International Union for the Conservation of
Nature and Natural Resources (IUCN) would have supported a different
conclusion. The IUCN criteria are widely used, by NMFS among others, to
classify species that are at a high risk of extinction. But the agency's
obligations arise under the five statutory criteria of the ESA, and not
the IUCN criteria. The agency adequately explained its decision to depart
from the IUCN recommendation in its final decision. 65 Fed. Reg. 38778,
38779 (June 22, 2000).
(B) Political Considerations
Plaintiffs' allegation that the listing decision was impermissibly
affected by political considerations is not supported by the record. The
record does contain an agency memorandum reciting that the whales
"presently meet some or all of the qualifications for listing under both
the ESA and MMPA," and stating that one of the advantages of an MMPA
listing is that "interest among the Alaska congressional delegation is
high, which opposes an ESA listing." AR-D309 at 1-3. And, one of the
agency's own experts stated that the evidence "towards a listing . . .
are compelling" and that "most knowledgeable scientists would support a
listing decision in the absence of politics." AR-F25 at 2. These bits of
evidence show that the agency's decision was a difficult one and that
political considerations may have been lurking in the corridors. They do
not establish that, but for "politics," the whale would have been listed
under the ESA or that political considerations became part of the
decision making process.
An appropriate order accompanies this memorandum.
Upon consideration of the cross motions for summary judgment and of the
whole record, it is this — day of August, 2001,
ORDERED that defendants' motion for summary judgment [# 32] is
granted. It is
FURTHER ORDERED that plaintiffs' motion for summary judgment [# 30] is
denied. And it is
FURTHER ORDERED that intervenors' motions for summary judgment [# 37, #
40] are granted.