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State of Alaska v. Jane Lubchenco

November 21, 2011

STATE OF ALASKA, PLAINTIFF, AND ESCOPETA OIL COMPANY, INTERVENOR PLAINTIFF,
v.
JANE LUBCHENCO, ADMINISTRATOR, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, ET AL., DEFENDANTS, AND ALASKA CENTER FOR THE ENVIRONMENT, A NONPROFIT CORPORATION, ET AL., INTERVENOR DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth Chief United States District Judge

MEMORANDUM OPINION

The absence of an expected change is sometimes indistinguishable from the presence of an observed one. So when the best available science predicts that a recently enacted ban on subsistence hunting will reverse the abrupt depletion of a species, a decade without any noticeable recovery in the species' population should raise a concern that the true cause of its decline has not been fully addressed. The species in this case-beluga whales in Alaska's Cook Inlet-was nearly wiped out by a catastrophic spree of subsistence whaling between 1994 and 1998. More than a decade later, and despite the passage of a legislative moratorium on subsistence hunting in 1999, the population of Cook Inlet beluga whales has failed to show any appreciable signs of recovery. For this and other reasons, the National Marine Fisheries Service ("Service") granted a petition to list the species as endangered under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. The Service's decision is rational and is supported by the administrative record, and the defendants are therefore entitled to summary judgment.

I.BACKGROUND

Thirty years ago, the number of beluga whales in Cook Inlet-a glacial fjord reaching 180 miles from Anchorage to the Gulf of Alaska-likely exceeded 1,300, but now hovers around 350. See generally Administrative Record ("AR") 00021 at 87-88. Although the population dwindled steadily through the 1980s and early 1990s, its decline was accelerated between 1994 and 1998 by Alaska Natives, who depend to some extent on beluga whales for subsistence. Aided by modern technology, Alaska Natives decimated the beluga population in Cook Inlet, harvesting nearly half of the remaining 650 whales in only four years. Id. This unregulated harvest led to what could fairly be described in conservation terms as an emergency.

The Service initially responded by designating the stock of Cook Inlet beluga whales as "depleted" under the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1371 et seq., allowing the agency to regulate subsistence hunting. 65 Fed. Reg. 34590 (May 31, 2000). The Service also considered a petition to list the Cook Inlet beluga under the ESA, which defines an "endangered species" as one that is in "danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). Relying on the assumption that the legislative and regulatory action already taken to control subsistence hunting would allow the population to recover, the Service determined that ESA listing was not warranted at that time. 65 Fed. Reg. 38778 (June 22, 2000). That decision was previously upheld by this Court. Cook Inlet Beluga Whale v. Daley, 156 F. Supp. 2d 16, 22 (D.D.C. 2001) (Robertson, J.). However, the Service determined that the stock of beluga whales in Cook Inlet is a distinct population segment ("DPS"), making it eligible for future listing under the ESA despite the existence of healthy populations in other parts of the world. *fn1 65 Fed. Reg. 38778.

The fundamental assumption on which the Service based its 2000 decision proved too optimistic. Aerial surveys performed annually over Cook Inlet-the state-of-the-art method for estimating abundance of marine mammals-indicated that the population had not shown any appreciable signs of recovery since 1999, when hunting restrictions began. 72 Fed. Reg. 19855. Instead of the 2 to 6 percent annual population growth the Service expected, the abundance estimates for the next several years indicated that the population was still declining at a rate of 4.1 percent. Id. Concerned that the cause of the species' decline was more complicated than the residual effects of subsistence whaling, the Service initiated a status review of the Cook Inlet beluga whale in March 2006.

To determine the probability of extinction, the Service developed a time-series model that extrapolated the negative population trend observed in Cook Inlet over 50, 100, and 300 years. The parameters for this model-which include a "constant mortality effect" for killer whale predation and an "unusual mortality effect" for irregular (but devastating) events such as mass strandings and oil spills-were subject to extensive peer review by independent researchers, including representatives from Alaska's own Department of Fish and Game. See AR 00025 at 2. The Service also tested the model's sensitivity to these parameters by varying assumptions about growth rates, mortality effects, and the optimum sustainable population size for Cook Inlet (known as the "carrying capacity"). After performing over ten thousand trial runs, the Service selected a model that best fit the observed trend in the abundance estimates. The most realistic model resulted in a 1 percent risk of extinction in 50 years, a 26 percent risk of extinction in 100 years, and a 70 percent risk of extinction in 300 years. AR 00021 at 14. The Service concluded that "[t]aken as a whole, these modeling results indicate clearly that it is likely that the Cook Inlet beluga population will continue to decline or go extinct over the next 300 years unless factors determining its growth and survival are altered in its favor." Id. at 86

Following another petition to designate the stock as endangered, the Service published a Proposed Rule to list Cook Inlet belugas under the ESA. 72 Fed. Reg. 19854 (April. 20, 2007). The effect of this publication was to initiate the public notice and comment process required by the Administrative Procedure Act ("APA"), 5 U.S.C. § 553(c). The majority of comments supported listing the Cook Inlet beluga whale as endangered. However, and of particular importance to this case, the State of Alaska opposed the listing determination, arguing that nothing had changed with respect to potential threats to the population since the Service's 2000 determination that listing was not warranted. Alaska also disputed whether the population was actually trending downward, arguing that the ban on subsistence hunting had effectively stopped the population slide, and that growth could not reasonably be expected until the breeding age component of the population had stabilized.

In April 2008, the Service extended the one-year deadline for a final listing determination to October 2008, noting "substantial disagreement" regarding the population trend. 73 Fed. Reg. 21578 (April 22, 2008); see 16 U.S.C. § 1533(b)(6)(B)(i). This six-month extension allowed the Service to incorporate into its population viability analysis the results of the June 2008 aerial survey of Cook Inlet. When the 2008 abundance estimate was included in the model, however, the rate of population decline was still 1.45 percent annually-not significantly less than zero, but significantly less than the expected growth rate of 2 to 6 percent for a healthy population. AR 00021 at 38.

Satisfied that listing the species as endangered was now appropriate, the Service published its Final Rule on October 22, 2008. 73 Fed. Reg. 62919. Alaska then sued for declaratory and injunctive relief under the APA, 5 U.S.C. § 702 et seq., and the ESA's citizen-suit provision, 16 U.S.C. § 1540(g), seeking to have the Service's listing determination vacated by this Court. The State's six-count complaint alleges that the Service failed to consider the relevant statutory factors and did not conform to the required procedures for making a listing determination. Compl. ¶¶ 48-72 (Doc. 1). On September 7, 2010, the Court allowed Escopeta Oil Company, LLC to file an intervenor complaint raising substantially identical claims.*fn2

Compl. ¶¶ 46-70 (Doc. 22). The Court also allowed Alaska Center for the Environment and several other nonprofit corporations to intervene as plaintiffs.*fn3 The parties then moved for judgment on the administrative record, and the case is now ripe for summary judgment. See Mem. Supp. Alaska's Mot. Summ. J. ("Alaska Mem.") at 45 (Doc. 45); Mem. Supp. Defs.' Mot. Summ. J. ("Defs.' Mem.") at 45 (Doc. 46-1). For the reasons that follow, the Court will deny plaintiffs' motions for summary judgment and grant defendants' cross-motions for summary judgment.

II.STANDARD OF REVIEW

This case is governed by the APA's strict limits on judicial review of agency decisions under the ESA. See Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C. Cir. 1982). These limits permit a reviewing court to set aside agency action only when it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §706(2)(A). Review under this standard is "highly deferential" and "presumes the agency's action to be valid." Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981) (citations omitted).

In applying this standard, a federal court may not "substitut[e] its judgment for that of the agency." Id. Instead, the court's only role is to determine whether the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. Natural Resource Defense Council, Inc., 462 U.S. 87, 105 (1983) (citations omitted). Accordingly, the arbitrary and capricious standard "mandates judicial affirmance if a rational basis for the agency's decision is presented, even though [the court] might otherwise disagree." Costle, 657 F.2d at 283 (citations omitted).

The ESA requires an "endangered" designation to be made on the basis of five statutory factors, any one of which is sufficient to support a listing determination. 16 U.S.C. § 1533(a)(1). These factors include the present or threatened destruction of the species' habitat, overutilization, disease or predation, inadequacy of existing regulatory mechanisms, and other natural or manmade factors affecting the species' continued existence. Id. A decision whether or not to list a species must 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." Id. § 1533(b)(1)(A). Applying this standard, the Service 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).

A listing determination is inherently fact-specific and science-dependent, and federal courts are particularly deferential toward agency findings-like those here-that involve "scientific determination[s]," Baltimore Gas, 462 U.S. at 103, since those findings are presumed to be the product of agency expertise. In such cases, the court "must look at the decision not as the chemist, biologist or statistician that [it is] qualified neither by training nor experience to be, but as a reviewing court exercising [its] narrowly defined duty of holding agencies to certain minimum standards of rationality." Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (en banc).

Summary judgment is an appropriate mechanism for deciding the question of whether agency action is supported by the administrative record. Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985). In such cases, a federal district court "sits as an appellate tribunal" to review the purely legal question of whether the agency acted in an arbitrary and capricious manner. Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Thus, in the special context of reviewing agency factfinding, judicial review is limited to the administrative record, see 5 U.S.C. § 706, and the burden is on plaintiffs to prove the particular manner in which the Service's actions are arbitrary and capricious. City of Olmsted Falls, Ohio v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002).

III.ANALYSIS

Defendants are entitled to summary judgment because the administrative record demonstrates that the Service acted rationally in listing the Cook Inlet beluga whale as endangered. Plaintiffs attack this determination on three fronts, challenging the rationale behind the Service's decision, its basis in science, and the procedures through which it was promulgated. The record amply reflects, however, that the Service considered the statutory factors and articulated a rational basis for its listing determination, grounded that decision in the best available scientific data, and provided a full opportunity for public comment before publishing its Final Rule. These activities suffice to allow the agency's decision to survive judicial review under the "highly deferential" standard that applies to this case. See Costle, 657 F.2d at 283.

A.The Service rationally considered the ESA's listing factors.

The Service's decision to list the Cook Inlet beluga whale as endangered is rational because the small, isolated population has not shown any appreciable signs of recovery since 1999, when hunting restrictions began. Everyone agrees that the already-declining population suffered unsustainable losses from the mid- to late-1990s. Alaska Mem. at 7-8; Daley, 156 F. Supp. at 20. Although the Service reasonably expected that the regulation of subsistence whaling would result in immediate population growth, the most recent estimates show unmistakably that the population is not recovering and that there is a meaningful risk that the number of beluga whales in Cook Inlet is actually continuing to decline. As the Service explained, this unexpected development "strongly suggests other factors may now be involved in the lack of recovery," and that "cessation of excessive harvests is not enough to bring about recovery." 73 Fed. Reg. 62922. Because the regulation of subsistence whaling failed to reverse the downward trend in population numbers, the Service acted rationally in looking beyond this factor as the sole cause of the species' decline.

Recall that in identifying species that qualify for protection under the ESA, the Service must consider five statutorily prescribed factors, any one of which is sufficient to support a listing ...


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