Alaska Federal Court Rejects "Threatened Species" Listing of Beringia Bearded Seals

A Stoel Rives legal team recently helped convince a federal judge in Alaska that a listing of the Beringia population of bearded seals as “threatened species” under the Endangered Species Act (ESA) was not justified under the evidence.  

On behalf of the Alaska Oil and Gas Association (AOGA) and the American Petroleum Institute (API) —who were joined as plaintiffs by the North Slope Borough and the State of Alaska — Stoel Rives attorneys Jeff Leppo, Ryan Steen and Daniel Lee challenged the listing decision and argued, among other things, that there was no scientific evidence linking climate change impacts to any harm to the bearded seal. In particular, the team contended that the listing decision was based on speculation about what could happen in a century as a result of global climate change, if the species responds in a manner that has not been observed, and if the theoretical future impact on the species is of a magnitude that is scientifically impossible to determine. 

Judge Beistline of the U.S. District Court for the District of Alaska agreed and emphasized in his ruling that “an unknown, unquantifiable population reduction, which is not expected to occur until nearly 100 years in the future, is too remote and speculative to support a listing as threatened.” Thus, the listing decision could not be sustained because its analysis “could logically render every species in the arctic and sub-arctic areas potentially ‘threatened.’” Accordingly, the court vacated the listing as arbitrary and capricious. In addition, the court determined that the listing decision failed to comply with the requirement that the federal government adequately consider and respond to comments submitted by the State of Alaska.

Kara Moriarty, AOGA President and CEO described the decision as “a win for science,” in light of the fact that “no scientific evidence exists to link climate change now or in the future to adverse effects on these species.” On the contrary, the available scientific data indicated bearded seal populations remain “healthy, abundant, and thriving.”

The favorable result obtained by AOGA is one of only a small number of successful challenges to a listing decision in the history of the ESA.  As did Judge Beistline in this case, courts afford great deference to the scientific and regulatory judgments of federal agencies acting under authority of the ESA.  However, the unprecedented nature of the bearded listing in the absence of any scientific link between climate change and the species’ past, present or future health and survival, as well as the coordinated efforts of industry, Alaska Native groups, government, were key components in achieving this rare victory.

The case is Alaska Oil and Gas Association and American Petroleum Institute v. Pritzker, Case No. 4:13-cv-00018-RRB. Download Judge Beistline's order, issued July 25, 2014.