Fight to List Bearded Seals as Threatened Hits 9th Circuit

ANCHORAGE, Alaska (CN) — The National Marine Fisheries Service and Center for Biological Diversity lobbied the Ninth Circuit on Thursday to reverse a lower court's finding that the service violated the Endangered Species Act by listing some bearded seals as threatened.

In front of a three-judge panel, Fisheries Service lawyer Robert Stockman maintained that the Beringia population of the largest Arctic seal deserves to be listed as a threatened species because of continued loss of the sea-ice habitat they depend on.

"There is plenty of evidence that ice-flow habitat is threatened and that it will threaten the species," Stockman said. The distinctly white-whiskered seals require sea ice during crucial and specific periods of its life, including molting, mating, gestating and giving birth.

The agency's data modeling projects that ice within the Beringia population's range — where 70 percent of bearded seals live — will disappear or be greatly reduced by the end of the century.

"Ice loss already is outpacing models and the minimum-ice years will start being harmful soon," Stockman said.

In overturning protections for the bearded seal in 2014, U.S. District Judge Ralph R. Beistline said the National Marine Fisheries Service made an "arbitrary and capricious decision" when listed the seal as threatened because it was based on "hollow speculation."

He added, "It did not appear that any serious threat of a population reduction, let alone extinction, existed before 2100. The listing itself conceded that through the middle of the century, there would be enough sea ice to sustain Bering Sea bearded seals at or near current levels."

At the time, Alaska attorney general Michael C. Geraghty said, "The listing was based solely on speculative 100-year projections that lacked any credible scientific evidence. Because it was unnecessary, the listing would only place unnecessary and costly regulatory burdens on responsible development opportunities and divert resources from helping species that truly need it."

Attorneys for the North Slope Borough and the Alaska Oil and Gas Association, who joined the state in suing to reverse the listing, maintained during the hearing that the federal agency has not demonstrated that Bering Sea ice losses will harm bearded seals, since they have thrived for centuries and survived other warming periods.

"Here all we have is information on sea-ice loss," Tyson Kade, an attorney representing the North Slope Borough, Alaska Native members of the Arctic Slope and NANA regional corporations.

Kade and Jeff Leppo, the attorney representing the American Petroleum Institute, both conceded during testimony before Circuit Judges Raymond Fisher, Richard Paez and Andrew Hurwitz, that the seals are threatened. But they said the burden of proof is on the federal agencies to meet not just one but three requirements for listing.

Kade argued that federal scientists have only met the requirement on threat, but still lack adequate data to determine actual effect of the lack of sea ice and degree of magnitude. He also maintained that in order to make their argument, the service extrapolates the data out to 100 years rather than the 50 normally used to consider other seal species and polar bear listings.

"They say that it's self-evident because all they do is base it on sea ice," Kade said. "They assume that loss of habitat equates to extinction."

Kade compared the science available to support the listing of the polar bear versus that of the bearded seal. Science can point to loss of sea ice already having an effect on polar bears, but "here the species is healthy and abundant despite sea ice," he said.

He questioned whether scientists can make a reliable prediction that meets the best available science obligation.

Hurwitz asked, "You don't contest that habitat is threatened? Couldn't an inference be made then that because the seals rely on sea ice that they are also threatened?"

Leppo responded, "For 11 million years this species has persisted through periods of change. It's obvious that it's been resilient to periods of sea-ice change because it has survived."

He pointed to tendency of the population to migrate, and said that 30 percent is already healthily whelping and nursing in other areas. He also questioned why proponents of listing the species as threatened model out to 100 years when for other types of seals they only predict 50 years in the foreseeable future.

Kristen Monsell, attorney for Center for Biological Diversity, countered that crowding the seals when they migrate toward remaining sea ice will threaten the population in other ways as they fight for limited habitat and food.

She said that scientists can meet the best available science threshold and have since improved their data modeling to now predict out to 2100 rather than 2050 with a greater degree of accuracy.

"We have developed more knowledge and expertise with the models and could do it better this time with this species as opposed to how we did the others," she said.

She added that the point of listing species as threatened or endangered is for agencies to act with enough time to put measures in place to protect future generations of a species, not just the current population.

Leppo dismissed the idea that bearded seals will face harmful competition if they migrate north of the Bering Strait into other areas with ice.

"If this was a small area, that would be a fair point," he said. "We're not talking about vernal pools. The area is a very, very large area."

The panel did not indicate when or how it would rule.

Bearded seals get their name from short snouts covered with thick, long, white whiskers that resemble beards.

They grow as large as 8 feet, weigh between 575 and 800 pounds and can live to 25 years or more while feeding in shallow depths of less than 325 feet for Arctic cod and shrimp.

Photo: Michael Cameron/NOAA

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