Reversing, Ninth Circuit Protects Arctic Ringed Seals

A ringed seal pup. (Shawn Dahle/NOAA)

ANCHORAGE (CN) — The Ninth Circuit on Monday upheld Endangered Species Act protections for ringed seals, reversing a 2016 ruling that rejected the listing as speculative after Alaska and its Oil and Gas Association challenged the listing of ringed and bearded seals.

Ringed seals give birth in snow caves built on top of sea ice. Global warming is reducing the snowpack there, causing caves to collapse, leaving pups vulnerable to death by freezing or from predators.

A three-judge panel ruled Monday, in an unpublished opinion, that the National Marine Fisheries Service properly listed ringed seals as a threatened species based on the best available science, documenting widespread loss of the sea ice habitat the species needs to survive.

The decision is closely related to a judgment on another ice-dependent species, bearded seals. The panel in December postponed ruling on the ringed seal appeal to see if the U.S. Supreme Court would grant review of an oil and gas industry and state appeal of the bearded seal listing.

The Supreme Court in January declined review, concluding that the Fisheries Service had acted properly in listing Arctic Ocean bearded seals as threatened because of projected sea ice loss.

Scientists used climate change models from the Intergovernmental Panel on Climate Change projecting continued loss of sea ice and higher temperatures through the end of the century that will likely cause the seal species to become endangered.

U.S. District Judge Ralph Beistline of Anchorage ruled in March 2016 that the Fisheries Service decision was speculative and required long-range data demonstrating the decline of ringed seals, information that is not available and is not required under the Endangered Species Act.

But on Monday, the Seattle-based panel disagreed with Beistline, and reversed and remanded.

“The district court cannot require the agency to ‘wait until it has quantitative data reflecting the species decline, its population tipping point, and the exact year in which that tipping point would occur before it could adopt conservation policies to prevent that species’ decline,’” the judges wrote.

“The NMFS’s finding — that the Arctic ringed seal was likely to become endangered within the foreseeable future — was reasonable and supported by the record. Like the bearded seals in AOGA I [Alaska Oil and Gas Association v. Pritzker — the bearded seal case], climate change models show the habitat of the Arctic ringed seals to be diminishing as sea ice recedes.” the judges said.

“Reliance on climate change models that project until 2100 was not arbitrary or capricious. The Final Rule ‘provided a reasonable and scientifically supported methodology for addressing volatility in its long-term climate projections, and it represented fairly the shortcomings of those projections — that is all the ESA requires.’”

Kristen Monsell, attorney with the Center for Biological Diversity, which filed the listing petition in 2008, said Beistline wanted very specific information about ringed seal population decline. The law does not require that degree of specificity, Monsell said.

“Particularly here, waiting for perfect science would essentially condemn the species to extinction because it would simply be too late at that point to save them because their sea ice habitat would already be gone,” she said.

Endangered Species Act listing of ringed seals offers them increased protection against the greenhouse gas emissions that are driving climate change, as well as oil and gas development. It also requires the federal government to designate critical habitat to protect the species’ most essential habitat. Listing of the seals does not affect subsistence harvest of the species by Alaska natives.

Ringed seals get their name from small light-colored circles on their coats. The smallest of Alaska’s ice seals, ringed seals are the only ones that thrive in completely ice-covered Arctic waters. They use stout claws to dig and maintain breathing holes.

Ninth Circuit Judges Richard Tallman and Paul Watford and U.S. District of Nevada Judge Richard Boulware II sat on the panel.

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