Projecting the Future: Ninth Circuit Upholds ESA Listing for Bearded Seals

Date01 March 2017
3-2017 NEWS & ANALYSIS 47 ELR 10217
Projecting the Future:
Ninth Circuit Upholds ESA
Listing for Bearded Seals
by Elizabeth A. Lake and Rafe Petersen
Elizabeth A. Lake is a Partner in the West Coast Land Use and Environment Group at Holland & Knight LLP.
Rafe Petersen is a Partner and member of the Government Section at Holland & Knight LLP.
In Alaska Oil & Gas Ass’n v. Pritzker,1 the U.S. Court
of Appeals for the Ninth Circuit recently upheld a rule
listing two species of seals as “threatened” under the
Endangered Species Act (ESA)2 based on climate change
projections and associated habitat loss from reduction of
sea ice. e listing rule concluded that the loss of sea ice
over shal low waters in the Arctic would leave the Pacic
bearded seal subspecies endangered by 2095. Reversing
the U.S. District Court for the District of Alaska, which
concluded that the climate projections and modeling were
uncertain and unreliable, the appellate court held, in
October 2016, that the National Marine Fisheries Ser vice
(NMFS) listing decision was reasonable and supported by
substantial evidence. e opinion is noteworthy because
it a llowed the extension of the “ foreseeable future” time
frame almost 50 years beyond any prior listing decision
and reconrmed that reliance on climate change models,
even if uncertain, may constitute “best available science.”
e case has garnered particu lar attention based on its
use of climate modeling over an almost 100-year hori-
zon, despite acknowledging the in herent uncertainty and
increasing variability of such models over time. e court’s
opinion supports NMFS’ and the U.S. Fish a nd Wildlife
Service’s (F WS’) recent policy shift toward resolving cli-
mate change uncertainties in favor of listing species, and
has caused consternation because it is possible to argue that
almost any species could become in da nger of extinction
from climate change over a long enough period. However,
it is also arguable that such a nding could be limited on
its facts.
I. The Listing
On December 28, 2012, NMFS issued a nal rule listing
the Beringia and Okhotsk distinct population segments
(DPS) of bearded seals as “threatened” under the ESA
1. No. 14-35806, 46 ELR 20169 (9th Cir. Oct. 24, 2016).
2. 16 U.S.C. §§1531-1544; ELR S. ESA §§2-18.
(2012 listing decision).3 e ESA denes a “threatened spe-
cies” a s one that “is likely to become endangered in the
foreseeable futu re t hroughout a ll or a signicant portion
of its range.” In 2008, the Center for Biological Diversity
had led a petition to list the subject species as endangered,
citing global warming as t he primary threat to bea rded
seals.4 In the 2012 listing decision, NMFS found that the
bearded seal populations were presently stable, but listed
the bearded seal as threatened due to predicted loss of sea
ice habitat related to climate change.
Utilizing modeling data from the Intergovernmenta l
Panel on Climate Change’s (IPCC’s) Fourth Assessment
Report,5 NMFS based its decision on modeled projections
nearly 100 yea rs into the future. In terms of reliability of
the modeling, NMFS acknowledged its limitations, stat-
ing, “[ W]e recognize that there are uncertainties associ-
ated with predictions ba sed on hemispheric projections or
indirect means. We also note t hat judging the timing of
onset of potential impacts to bearded sea ls is complicated
by the coarse resolution of the IPCC models.” Neverthe-
less, NMFS determined that the models reect rea sonable
assumptions regarding habitat alterations to be faced by
bearded sea ls in the foreseeable future.6 Finally, although
ESA §9 ta ke prohibitions were included in the draft rule,
NMFS concluded that the §4(d) regulations extending
such take prohibitions were not necessary for the bearded
seal population at this time.
3. While the slip opinion states that NMFS found the species to be “endan-
gered,” the rule actually stated that they were “threatened.” 77 Fed. Reg.
76739, 76740 (Dec. 28, 2012).
4. See C  B D, B  S  C-
—P  L T S S U  E
S A: R S (PUSA HISPIDA), B S (ERIGNATHUS
BARBATUS),  S S (PHOCA LARGHA) (2008), available at http://
5. IPCC, C  W G III   F A-
 R   I P  C C
(2007), available at
6. Id. at 76749.
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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