The opinion of the court was delivered by: Robertson, District Judge
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).
Within thirty days of plaintiffs' request for an ESA listing, the NMFS
published formal notice that action under the ESA "may be warranted." That
notice triggered a one year status review period.*fn3
On October 19, 1999, the NMFS published a proposed rule, not under the
ESA, but under the Marine Mammal Protection Act (MMPA), to list the whale
as "depleted." (The final rule was issued May 31, 2000). Under the MMPA,
16 U.S.C. § 1362, the Secretary can designate a species as "depleted"
if the species is listed as endangered or threatened under the ESA or if
the Secretary determines that the stock is below its Optimum Sustainable
Population. Once a marine mammal has been listed as "depleted," the
Secretary is authorized to promulgate regulations limiting takings by
Native Americans, but a listing under the MMPA does not have the
regulatory, economic and environmental fallout of a listing as
"threatened" or "endangered" under the ESA.
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."
"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.
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 ...