Problem: Cook Inlet Beluga Whale v. Daley 156 F.Supp.2d 16 (D.C.D.C. 2001)

Judge James Robertson

The Cook Inlet Beluga Whale . . . 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 [National Marine Fisheries Service] estimates that in the mid-1980s, between 1,000 and 1,300 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. . . . That is why, in March 1999, the plaintiffs filed a petition to list the Cook Inlet Beluga Whale under the Endangered Species Act (ESA). 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."

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. Within 30 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. 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." . . . Under the MMPA, the Secretary can designate a species as " depleted" 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."

ARGUMENT

"In exercising its narrowly defined duty, 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." 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.

I. Statutory 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." Applying this standard, the Secretary must list a species as endangered or threatened if "any of Section 1533(a)(1)'s five factors are sufficiently implicated." 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," 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 environmental factors, such as oil drilling, on the whale population. "The ‘best available data' requirement makes it clear that the Secretary has no obligation to conduct independent studies."

(B) Overutilization All agree that Native American harvesting has been the most significant factor in the declining whale population. The agency has found "that a failure to restrict the subsistence harvest would likely cause CI beluga whales to become in danger of extinction in the foreseeable future." But the agency has also concluded that "overutilization" does not support ESA listing because it has been stopped-by designating the whale as "depleted" under the MMPA. Plaintiffs attack that conclusion as unreasonable.

(C) Disease or Predation The agency concedes that both disease or predation "occur in the CI beluga population and may affect reproduction and survival," but it has concluded that these factors are not causing the stock to be threatened or endangered. Plaintiff has not shown that conclusion to be arbitrary or capricious. . . .

(D) Inadequacy of Existing Regulatory Mechanisms We have found nothing in the record, and plaintiff has identified nothing, showing that there are inadequacies in existing regulatory mechanisms or, if there were, what the effects of such inadequacies would be. Plaintiffs argue that the MMPA is inadequate to ensure that illegal hunting does not occur . . . , but that argument simply asserts plaintiffs' policy preference for a remedy under the ESA and begs the question of whether ESA listing is required.

(E) Other Natural or Manmade Factors Affecting Its Continued Existence Plaintiffs argue that there are many other factors- strandings, oil spills, takings through commercial fishing, effects of pollutants, ship strikes, noise, urban runoff, etc.-that put the species at risk and that it was arbitrary and capricious for the agency to determine that "the best available information . . . indicates that these activities, alone or cumulatively, have not caused the stock to be in danger of extinction and are not likely to do so in the foreseeable future." . . .

Questions

1. Why did the plaintiffs want the Cook Inlet Beluga Whale listed as endangered under the ESA?

2. What was the standard of review that the court applied to the agency's decision?

3. What five factors are to be considered in the listing of a species as endangered under the Endangered Species Act?