(CN) – A Ninth Circuit panel on Monday appeared likely to postpone a decision on reinstating federal protection for Alaska’s ringed seals until the Supreme Court decides whether to review a prior Ninth Circuit decision on bearded seals.
The National Marine Fisheries Service told the three-judge panel on Monday it should affirm the listing of ringed seals as threatened, but it would be appropriate to wait and see if an appeal of the bearded seal listing is granted review by the Supreme Court.
Both seal species received threatened status under the Endangered Species Act in 2012.
Oil and gas companies and the state of Alaska challenged both listings, and an Alaska federal judge found the listings were based on speculation and ordered the Fisheries Service to conduct further studies.
The Ninth Circuit reinstated protection for the bearded seal on appeal in 2016. Alaska petitioned the Supreme Court for review, and is waiting to hear if the high court will take up the case.
At Monday’s hearing, Circuit Judge Richard Tallman asked if it “might make sense” to wait until the Supreme Court decides whether it will review the other seal case to weigh in on the ringed seal’s fate.
Katherine Hazard, representing the Fisheries Service and Michael McBride, representing petroleum interests and Native Alaskan communities, both agreed it would be appropriate for the panel to postpone a decision.
“If the case stands, we are bound by our sister court,” Tallman said.
McBride disagreed with that, arguing the bearded seal is different from the ringed seal and case law should not be bound by a decision about a different species.
“There is different habitat for this seal,” McBride said, referring to the ringed seal.
The Fisheries Service used the projected dramatic decrease in arctic ice and snow, which is integral to both seals’ habitats, to help determine the threatened listing.
McBride said the type of ice the bearded seal depends on is different than the ringed seal, which he said will have more projected territory and is more adaptable than the bearded seal.
“The ringed seal will survive even if the sea ice will not,” McBride said.
Circuit Judge Paul Watford challenged him, saying the projected mortality rate is 100 percent of newborn seal pups with modeled future conditions.
“The models don’t forecast well for snow,” McBride replied, referring to studies that show it’s hard to predict an Arctic snow forecast.
McBride said the predictions for habitat loss are not enough to show a determination for threatened listings.
U.S. District Judge Richard Boulware, sitting by designation from the District of Nevada, said the panel only had to determine if the Fisheries Service had a “reasonable” basis for listing.
Hazard said the majority of peer reviewers agreed with the habitat modeling for snow and sea ice.
“Most of the issues” decided in the bearded seal opinion that led to reinstating protection apply to the ringed seal, Hazard said.
Tallman said the panel would most likely wait until the certiorari petition is accepted or denied by the high court before ruling.