Ninth Circuit Court rules to keep ESA status of Pacific bearded seals

Citing imminent loss of the sea ice it needs to survive, the Ninth Circuit on Monday upheld federal protection of a subspecies of the Pacific bearded seal under the Endangered Species Act.

     The appeals court reversed a 2014 ruling that the National Marine Fisheries Service made an “arbitrary and capricious decision” when it listed bearded seals as threatened because loss of habitat to climate change was based on “hollow speculation.”

     The Ninth Circuit found instead that the NMFS “listing decision was reasonable” for “certain sea ice seal’ species,” and that it “clearly fulfilled its procedural and substantive obligations” under the Act. Furthermore, it held that “the administrative record demonstrated that NMFS provided a reasonable evidence-based justification for its mid-century and end-of-century sea ice predictions.”

     Judge Richard Paez wrote for the panel: “This case turns on one issue: When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act?”

     The NMFS used climate projections to determine that loss of sea ice in shallow Arctic waters will leave the Pacific bearded seal subspecies endangered by 2095.

     Bearded seals get their name from their short snouts covered with long white whiskers that resemble beards. They grow as large as eight feet, weigh 575 to 800 lbs. and can live 25 years or more, feeding on Arctic cod and shrimp in water less than 325 feet deep.

     NMFS attorney Robert Stockman told an appeals panel in August that Beringia population of the largest Arctic seal deserves listing as a threatened species due to continual loss of the sea ice habitat they need to survive.

     “There is plenty of evidence that ice-floe habitat is threatened and that it will threaten the species,” Stockman said.

     The white-whiskered seals require sea ice during crucial periods of its life, including molting, mating, gestating and giving birth. The NMFS data modeling predicts that sea ice in the Beringia population’s range — where 70 percent of bearded seals live — will disappear or will be greatly reduced by the end of the century.

     Attorneys for the North Slope Borough, representing the Barrow and Kotzebue regions of northern Alaska, and the Alaska Oil and Gas Association, who joined the state in suing to reverse the listing, maintained during the hearing that the NMFS had not demonstrated that loss of Bering Sea ice would harm bearded seals, as they have thrived for centuries and survived other warming periods.

     “Here all we have is information on sea ice loss,” said Tyson Kade, an attorney representing the North Slope Borough, Alaska Native members of the Arctic Slope and other regional corporations.

     But Paez and his fellow Judges Raymond Fisher and Andrew Hurwitz disagreed, and accepted the NMFS projections that climate change presents a long-term threat to the seals, and that “on the basis of the administrative record, NMFS's listing is reasonable.”

     Kara Moriarty, CEO of the Alaska Oil and Gas Association, told the Alaska Dispatch News, “This is not what Congress intended when it enacted [the Endangered Species Act]" and that their rationale for listing the bearded seal was based on conjecture rather than science.”

     Moriarty told the newspaper her association is considering asking for en banc review or appealing to the Supreme Court.

     The Ninth Circuit’s reversal of the U.S. District Court ruling can be expected to set off a process that includes designating critical habitat for the species in the U.S. waters of the Bering, Beaufort and Chukchi seas, because the seals follow the pack ice south in winter and north in the summer.

     Endangered Species Act protections could affect offshore oil drilling already in the works and harvests by Alaska Native communities who depend on the seals’ meat and fur for subsistence. 


This story first appeared in Courthouse News Service and  is reprinted with permission from the author.

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