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Saturday, May 25, 2024 | Back issues
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Alaska Loses Challenge|to Beluga Whale Listing

WASHINGTON (CN) - A government agency used the best available science before adding the beluga whale population of Alaska's Cook Inlet to the endangered species list, a federal judge ruled.

Alaska filed suit in June 2010 to overturn the listing, claiming that the beluga population had stabilized after a precipitous decline caused by several years of unregulated hunting by Native Americans.

Chief U.S. District Judge Royce Lamberth disagreed Monday, saying that the National Marine Fisheries Service did not expect a stable population after authorities brought subsistence hunting under control in 1998. This led it, rationally, to consider other issues facing the species:

"The absence of an expected change is sometimes indistinguishable from the presence of an observed one," Lamberth wrote. "So when the best available science predicts that a recently enacted ban on subsistence hunting will reverse the abrupt depletion of a species, a decade without any noticeable recovery in the species' population should raise a concern that the true cause of its decline has not been fully addressed."

In 2000, the service rejected a previous effort to list the belugas as endangered because a recent decision to regulate hunting was expected to reverse the declining population.

When the D.C. Circuit upheld that decision, it "all but held that listing would be necessary if the service ultimately determined that the population was not recovering," Lamberth noted.

But despite the hunting block, beluga numbers in Cook Inlet have declined by 1.45 percent since 2000. In 2008 the service counted just 350 Cook Inlet belugas, far below the 2-to-6-percent-per-year population rebound it expected.

Alaska simply did not understand what "recovery" meant for a species that had been so depleted, Lamberth found. "Plaintiffs confuse the expected behavior of a population that is already functioning at carrying capacity, on one hand, with that of a smaller population that is no longer being actively depleted but is still below carrying capacity, on the other," the 25-page decision states. "The former would not be expected to show consistent annual growth, while a failure of the latter to immediately begin growing would raise a concern about the population's health."

Alaska had also argued that the service should have listed the belugas as threatened rather than endangered.

Lamberth disagreed here, too, citing the Endangered Species Act. "This argument confuses a species that is 'likely to become endangered in the foreseeable future' with one that is already 'in danger of extinction,'" he wrote. "There is no requirement that the service separately consider a 'threatened' designation for a species that already qualifies as 'endangered' under the ESA. It is enough that the species is presently 'in danger of extinction throughout all or a significant portion of its range.'"

Belugas are indeed in danger of extinction, Lamberth said, noting that a recent study found that the Cook Inlet beluga whale has a 26 percent risk of extinction in 100 years.

A misunderstanding also doomed Alaska's claim that the service arbitrarily selected the model to calculate that extinction risk. "This argument misapprehends the purpose of testing the model through sensitivity analysis," Lamberth wrote. "The service relied on a comparison of all of these trial runs - not merely the results of a single model - in determining that the population is declining. As the service explained, "[w]hile several of the sensitivity trials showed some improvement in extinction risk, only the assumption of a growth rate greater than 2%, the least likely model, removed the risk of decline and extinction."

There is always wiggle room in statistical analysis, but "the most important thing to remember is that even if plaintiffs can poke some holes in the agency's models, that does not necessarily preclude a conclusion that these models are the best available science," Lamberth wrote.

Population biologists and statisticians peer reviewed the service's statistical methodology. One of the reviewers, a representative for Alaska, "concluded that although the model assumptions 'could have been more detailed' or 'better discussed,' 'the assumptions made considering what is known about beluga biology and life history were reasonable,'" the ruling states.

Lamberth disagreed as well with Alaska's procedural complaint, alleging that the service did not provide enough opportunities for public comment and that its own arguments against listing were not sufficiently addressed.

This claim "bordered on the absurd," the judge wrote, noting that the service held four public meetings - three in Alaska and one in Maryland - on the proposed listing, extended the deadline on comments for six months, and responded to each and every one of Alaska's comments on the proposed listing.

The service says it received 180,000 comments on the listing. "The majority of which supported listing the Cook Inlet beluga whale as endangered," Lamberth wrote. "Thus, it appears that plaintiffs simply dislike the service's disagreement with the minority of comments opposing the listing determination."

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