Alaska Tees Up Custody Battle Over Cook Inlet’s Baby Belugas

The State of Alaska has formally notified the federal government that it will file a civil suit challenging the listing of the Cook Inlet beluga whale (Delphinapterus leucas) population near Anchorage, Alaska, as endangered under the Endangered Species Act (“ESA”). Alaska contends that the National Marine Fisheries Service (“NMFS”) failed to consider properly “the substantial regulation by the State and its political subdivisions of beluga habitat and food supply covering nearly every aspect of the environment affecting beluga whales in Cook Inlet,” asserting that these laws “when considered together with existing federal regulations, ensure that beluga whales in Cook Inlet are well protected.”[1] NMFS identified the cumulative effects of continued development within and along upper Cook Inlet; oil and gas exploration, development, and production, and industrial activities as impediments to the recovery of the whales[2]. However, NMFS postponed identifying critical habitat for Cook Inlet belugas for a separate rulemaking within the next year, thereby dodging the battle – for now – over what activities may be restricted or impacted by the listing.

When NMFS began the listing process in 2007, Alaska Governor Sarah Palin signaled her opposition to ESA restrictions on development: “I am especially concerned that an unnecessary federal listing and designation of critical habitat would do serious long-term damage to the vibrant economy of the Cook Inlet area.”[3] Cook Inlet is the most populated and fastest growing watershed in Alaska. Several massive infrastructure projects with the potential to impact beluga habitat are slated for development, including the proposed Knik Arm Bridge, expansion of the Port of Anchorage, and the Chuitna coal strip mine. In addition, new drilling for natural gas in Cook Inlet is planned by Alaska operators. ConocoPhillips, Chevron and Marathon Oil, and Armstrong Oil and Gas are all planning new development wells.[4] Thus, Alaska businesses will be closely following the State’s lawsuit and agency’s next steps.

Background

The beluga whale is a small, toothed whale and a strictly northern hemisphere species, ranging primarily over the Arctic Ocean and subarctic seas, inhabiting fjords, estuaries and shallow waters. Some belugas seek out shallow coastal waters in summer, and remain near the ice edge in winter.[5] The Cook Inlet belugas are one of five populations of belugas recognized in U.S. waters. The other four beluga populations are also found off of Alaska in the Beaufort Sea, the eastern Chukchi Sea, the eastern Bering Sea, and Bristol Bay.[6] The Cook Inlet population is the most isolated, and federal scientists believe that the Alaska Peninsula may have acted as a physical barrier to genetic exchange between these populations for several thousand years.[7]

The Cook Inlet beluga population declined nearly fifty percent between 1994 and 1998, ranging from a high of 653 animals in 1994 to a low of 278 belugas in 2005. Although restrictions on Alaska Native subsistence harvest of Cook Inlet belugas were implemented starting in 1999, the beluga population did not rebound as expected.[8] Scientists at the National Marine Fisheries Service (NMFS) estimated the Cook Inlet beluga population at 375 in both 2007 and 2008, leading them to conclude that the trend for the population for the period 1999 to 2008 is a negative 1.45 percent annually.[9] The agency characterized this trend as “not significantly different from zero, but … significantly less than the expected growth for an un-harvested population (2-4 percent).”[10]

Prior Federal Actions to Protect Cook Inlet Belugas

As a result of the fifty percent decline in population between 1994 and 1998, NMFS began a status review of the Cook Inlet beluga population in 1998 under the Marine Mammal Protection Act (MMPA) and the ESA. In 1999, NMFS received three petitions from the Alaska Department of Fish and Game and other tribal and non-governmental organizations to designate the belugas as depleted under the MMPA and/or endangered under the ESA. In 2000, NMFS found the belugas to be depleted under the MMPA, but determined that listing them as threatened or endangered under the ESA was not warranted. However, NMFS did identify them as a distinct population segment (“DPS”) under the ESA.[11] The ESA defines the term “species” to include “any subspecies of fish or wildlife or plants, and any [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.”[12]

However, when the population did not recover as expected after the cessation of subsistence harvests, NMFS reevaluated its status starting in 2006. Based on models that incorporated the data available at the time, NMFS predicted in its 2006 review that there was a 68 percent probability that the Cook Inlet beluga would continue to decline and become extinct within the next 300 years and a 26 percent probability of extinction within the next 100 years.[13] In 2007 NMFS published a proposed rule to list the Cook Inlet beluga whales as endangered under the ESA.[14] Another status review in 2008 supported the findings of the 2006 review; however, in April 2008, NMFS elected to postpone the listing decision until October 2008 “to allow for consideration of the 2008 abundance estimate.”[15] In June 2008, a group of nonprofit environmental agencies which objected to the six-month extension sued NMFS, seeking to force it to list the whales immediately as endangered.[16] NMFS’ review of the 2008 data did not alter NMFS’ conclusion that the Cook Inlet beluga whale is an endangered species, and it published its final rule listing the whales as endangered under the ESA on October 22, 2008.

Alaska’s Procedural Challenges to the Listing

Alaska’s notice of intent to sue alleges three procedural violations of section 4 of the ESA (16 U.S.C. § 1533) by NMFS. First, Alaska asserts that NMFS violated the ESA by failing to consider adequately other conservation or protection efforts by Alaska or its political subdivisions pursuant to 16 U.S.C. § 1533(b)(1)(A), which requires the agency make its listing decision “solely on the basis of the best scientific and commercial data available to [it] 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 political subdivision of a State … to protect such species.” Alaska criticizes NMFS for its “conclusory” evaluation of thirty pages of comments submitted by the state on “ongoing and planned conservation efforts by state and local entities”, contending that NMFS did not document that it adequately consider “the extensive provisions contained in the laws and regulations of Alaska and its political subdivisions addressing all aspects of beluga habitat and food supply and did not explain why these efforts will not be effective.”[17]

Second, Alaska objects that NMFS did not provide it with an adequate written justification in the final rule or in a letter to the State for its failure to adopt a final rule consistent with Alaska’s comments.[18] Alaska contends this failure to respond violates 16 U.S.C. § 1533(i), which provides that in the event of a disagreement between the federal agency and a state agency over a proposed ESA regulation, the federal agency must submit a written justification to the state agency for its failure to adopt a regulation consistent with the state agency’s comments. Third, Alaska contends that under the general requirement for notice and comment rulemaking under section 4 of the ESA, NMFS should have re-opened public comment after the six month extension to consider the 2008 data, rather than proceeding with publication of the final rule.[19] However, the ESA does not appear to give the agency the discretion to re-institute public comment after such a six month extension; instead, the agency’s options are to “publish in the Federal Register either a final regulation to implement the determination or revision concerned, a finding that the revision should not be made, or a notice of withdrawal of the regulation … together with the finding on which the withdrawal is based.”[20]

Alaska’s Challenge to the DPS Determination

In addition to these alleged procedural violations, Alaska seeks to reopen the debate as to whether the Cook Inlet beluga whales are a distinct population segment or DPS, a determination that NMFS originally made in 2000. Alaska contends that the final rule does not adequately document two of the factors used in making the DPS determination, and that it is inconsistent with the DPS policy adopted by NMFS and the U.S. Fish and Wildlife Service (collectively “the Services”) as well as the Ninth Circuit’s 2007 review of the DPS policy in Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service.[21]

The DPS Policy sets forth two factors for the Services’ consideration: the “[d]iscreteness of the [DPS] in relation to the remainder of the species to belongs,” and the “significance of the population segment to the species to which it belongs.”[22] Discreteness is satisfied if a population segment is “‘separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors,’ or if a population’s boundaries are marked by international borders.” [23]“Significance” is evaluated by the Services under four non-exclusive factors: (1) whether the population persists in a unique or unusual ecological setting; (2) whether the loss of the population would cause a “significant gap” in the taxon’s range; (3) whether the population is the only surviving natural occurrence of a taxon; and (4) whether the population’s genetic characteristics are “markedly” different from the rest of the taxon. A marine population qualifies as a DPS only if NMFS determines it is both discrete and significant. If NMFS makes such a determination, the next step is determining whether the DPS is threatened or endangered.

Asserting that NMFS “reaffirmed” its DPS determination and “provided a separate rulemaking section and conclusion” in the final rule, Alaska challenges NMFS’ reliance on two of the four non-exclusive factors: persistence in an ecological setting that is unique; and whether the loss of the DPS would result in a significant gap in the range of the species.[24] Alaska disagrees with NMFS’ conclusion that Cook Inlet is a unique ecological setting because it is the only water south of the Alaska Peninsula and in the Gulf of Alaska that supports a viable population of beluga whales, and because unlike northern beluga habitat, it is “a true estuary, with salinities varying from freshwater at its northern extreme to marine near its entrance to the Gulf of Alaska.”[25] Alaska also contests NMFS’ finding that “the loss of the Cook Inlet beluga population segment may result in the complete loss of the species in the Gulf of Alaska, resulting in a significant gap in the range with little likelihood of in migration from other beluga population segments into Cook Inlet.”[26]

Alaska argues that these two determinations are inadequately documented, and that NMFS did not explain why the loss of the Cook Inlet population would be “significant” or “important” to the species: “While the Cook Inlet population may be, as was the Washington gray squirrel population in Northwest Ecosystem Alliance, an isolated, peripheral population at the southern portion of the subspecies’ range, that alone may not mean its loss creates a significant gap in the range of the species. By this measure, NMFS failed to establish the necessary ‘significance’ to classify beluga whales in Cook Inlet as a DPS.”[27]

Conclusion

As the State notes in its letter to NMFS, the purpose of the 60-day notice provision is to provide NMFS with an opportunity to correct any violations of the ESA; in this case, according to Alaska, “by withdrawing the listing of the beluga whale distinct population segment as endangered.”[28] A withdrawal of the listing by the Obama Administration by mid-March is unlikely. It is more likely that NMFS will continue with the designation of critical habitat. If the State proceeds with its threatened lawsuit over the listing, it has two significant hurtles to overcome in its challenge to the DPS determination: 1) establishing that NMFS’ alleged “reaffirmation” of the DPS determination is a new rulemaking susceptible to judicial review; and 2) convincing a court that NMFS’ scientific and technical judgment was arbitrary and capricious. The State may find more traction with its procedural arguments, and in doing so establish new law as to the extent of deference that the Services must pay to the objections of states in ESA listing decisions. Regardless of the outcome, this notice letter will not end controversy over the best steps for protection of Cook Inlet beluga whales.

For more information about ESA issues, please contact Linda Larson or any member of Marten Law Group’s Natural Resources practice group.