Here’s a significant turn of events involving a story I reported on earlier: a US District Court judge ruled on Friday 25 July 2014 that the Bering/Chukchi Sea population of bearded seal (Erignatha barbatus) was improperly given ‘threatened’ species status in 2012. Judge Beistline ordered the National Marine Fisheries Service (NMFS) “to correct deficiencies in its study of the population.“
Bearded seals are important secondary prey species for polar bears in some regions of the Arctic (Thiemann et al. 2008), after ringed seals (which were also listed as ‘threatened’ in 2012).
Among other points made in his written decision, the judge is quoted as saying (reported here):
“A listing under the ESA based upon speculation, that provides no additional action intended to preserve the continued existence of the listed species, is inherently arbitrary and capricious.” [my emphasis]
“Arbitrary and capricious” — now that’s a slap-down. He also reportedly called the ESA listing “an abuse of discretion.”
The question is, how often have other ESA listings – not challenged in court – been based on similarly arbitrary and capricious decisions that also involved an abuse of discretion?
More quotes from Judge Beistline’s decision, and reaction to it, below.
Alaska Dispatch News reported last Friday (Yereth Rosen, 25, July 2014: “Judge rules Beringia bearded seals improperly listed as threatened”):
“Alaska’s bearded seals, animals with distinctive whiskers and a penchant for floating alone on pieces of drifting Arctic sea ice, were improperly granted threatened-species status in 2012, a federal judge ruled Friday
The National Marine Fisheries Service erred in using a 100-year projection as justification for granting Endangered Species Act protections to the Alaska-dwelling population of that seal, U.S. District Court Judge Ralph Beistline ruled.
Such a long-term projection was overly speculative, Beistline said in his ruling, which came in legal challenges filed by the Alaska Oil and Gas Association, the North Slope Borough and the state of Alaska. Fifty years into the future was generally the longest projection that could be considered reliable, Beistline said.
The NMFS in December 2012 gave threatened listings to two distinct populations of bearded seals – the Beringian population, which includes Alaska seals, along with seals in adjacent areas [i.e. Bering Sea, Chukchi Sea and Beaufort Sea]; and the Okhotsk population, which lives in the Sea of Okhotsk west of Russia’s Kamchatka Peninsula. At the same time, NMFS also listed as threatened three distinct populations of ringed seals, including the Arctic population, which encompasses Alaska.
The listings cited loss of seasonal sea ice and, for ringed seals, snow that is used for pupping dens as significant factors justifying Endangered Species Act protections.
But Beistline found fault with the NMFS study of the Beringia distinct population of bearded seals. The agency failed to demonstrate that any near-term threats to that population segment exist, he said in his ruling.
“Troubling to this Court is that it does not appear from the Listing Rule that any serious threat of a reduction in the population of the Beringia DPS, let alone extinction, exists prior to the end of the 21st century,” Beistline said. “Indeed, the Listing Rule itself concedes that, at least through mid-21st century, there will be sufficient sea ice to sustain the Beringia DPS at or near its current population levels.”
It appears, at least from the NMFS listing rule, that there is no significant threat to the Beringia population until 2090, Beistline said.
Whether Beringia bearded seals will ultimately retain Endangered Species Act protections was unclear Friday. Beistline ordered NMFS to correct deficiencies in its study of the population.” [my bold]
More quotes from the decision were included in this report (IVPressOnline):
“In sending the decision back to the agency, U.S. District Judge Ralph Beistline in Fairbanks said the December 2012 decision to list the seals because of a loss of sea ice was improper and “an abuse of discretion.”
Beistline found there was no discernible, quantified threat of extinction within the foreseeable future for the seals and that the agency found existing protections were adequate.
The listing, he said, had no effect other than making all other federal agencies consult with the National Marine Fisheries Service on actions that could jeopardize the seals throughout their range.
“A listing under the ESA based upon speculation, that provides no additional action intended to preserve the continued existence of the listed species, is inherently arbitrary and capricious,” he wrote.
The state, Alaska Oil and Gas Association and the North Slope Borough sued after the agency added bearded seals and ringed seals in the Arctic Ocean to the threatened list.
Polar bears also are listed because of a loss of sea ice. The state did not challenge the listing of ringed seals, the main prey of polar bears.
“We are pleased the court agreed that the listing of the bearded seal was not warranted,” Alaska Attorney General Michael Geraghty said in a statement. “The listing was based solely on speculative 100-year projections that lacked any credible scientific evidence.” [my bold]
Cameron, M. F., Bengtson, J. L., Boveng, J. K., Jansen, J. K., Kelly, B. P., Dahle, S. P., Logerwell, E. A., Overland, J. E., Sabine, C. L., Waring, G. T. and Wilder, J. M. 2010. Status review of the bearded (Erignatha barbatus). NOAA Technical Memorandum NMFS-AFSC-211.
Thiemann, G.W., Iverson, S.J., and Stirling, I. 2008. Polar bear diets and Arctic marine food webs: insights from fatty acid analysis. Ecological Monographs 78:591-613. Open access http://www.esajournals.org/doi/abs/10.1890/07-1050.1