State of Alaska v. Lubchenko (NOAA)

Jul 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35201, consolidated with 12-35203, & 12-35204. Appealed from the United States District Court for the District of Alaska. The Appeals Court explains, the western Distinct Population Segment of the Steller sea lions (wDPS) live in the great northern Pacific Ocean region off Alaska, and they were declared endangered in 1997. More recently, in two of the seven sub-regions they inhabit, they have been experiencing population declines because they have been showing signs of nutritional stress.

 

    In 2010, the National Marine Fisheries Service (NMFS or the agency) therefore limited commercial fishing in those waters, causing representatives of the fishing industry and the State of Alaska (Plaintiffs) to file this action challenging the limitations.

 

    The plaintiffs' principal argument is that the NMFS violated the Endangered Species Act (ESA) because it based the fishing restrictions on declines in sub-regions rather than in the entire population of the endangered species. Plaintiffs also contend the agency utilized the wrong standards in measuring the effects of continued fishing and failed to find a sufficient causal link between authorizing fisheries and the population decline.

 

    The Appeals Court said, "We hold that use of subregions did not violate the ESA and that the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population. We therefore affirm the district court's judgment rejecting plaintiffs' claims."

 

    Reinforcing its decision, the Appeals Court said, "Applying its regulation, the agency indisputably found that the fisheries were removing prey species of the wDPS. It also found evidence of nutritional stress. While the agency admitted it could not find a direct link between the fisheries and the species's decline, it found that the indirect effect of the fisheries was the removal of wDPS's food. The agency was not required to find that the fisheries were the direct cause of the species's decline. . . The district court's order granting summary judgment to the defendants on the ESA claims and injunction on the NEPA claims are affirmed."

   

    Colin O'Brien, attorney for Earthjustice said, "This decision reinforces the importance of maintaining strong measures to protect Steller sea lions from the adverse effects of fishing, particularly in the western and central Aleutians. Not only is it important to protect sea lions in their own right, but the species is a key indicator of overall ecosystem health and fishery sustainability." John Hocevar, Oceans Campaign Director, Greenpeace said, "Instead of attacking the science, it's time for Alaska's fishing industry to start thinking about what can be done to prevent fur seals and other fish-eating species from joining sea lions on the endangered list. The court's decision to uphold protections is great news for endangered Steller sea lions. There's no reason why we can't have both productive commercial fisheries and a healthy ecosystem, but we won't be able to do that unless decisions are based on the best available science and a precautionary approach."

   

    Access the complete opinion (click here). Access a release from Earthjustice with more comments on the decision (click here). [#Wildlife, #CA9]