## Facts

- Environmental groups petitioned to list “sea ice seal” species under the Endangered Species Act (ESA), including the Pacific bearded seal subspecies, focusing on the Beringia distinct population segment (DPS).
- After notice-and-comment rulemaking with peer review and public hearings, the National Marine Fisheries Service (NMFS) issued a final rule (2012) listing the Beringia DPS as “threatened.”
- NMFS’s threat assessment relied heavily on climate-model projections (including multiple emissions scenarios) forecasting substantial loss of seasonal sea ice over shallow continental-shelf waters used for mating, pupping, nursing, molting, and resting.
- NMFS concluded that sea-ice loss would likely make the Beringia DPS endangered later in the century (approximately by 2095), and treated that time horizon as within the “foreseeable future” for this species and threat.
- Industry groups, Alaska governmental entities, and Alaska Native organizations sued under the ESA citizen-suit provision and the Administrative Procedure Act (APA), arguing NMFS relied on speculative long-term projections, stretched “foreseeable future,” and failed to show a sufficient link between sea-ice decline and endangerment.
- The district court vacated the Beringia DPS listing as arbitrary and capricious; NMFS, the Secretary of Commerce, and an intervenor appealed.

## Issues

1. Whether NMFS acted arbitrarily and capriciously under the APA by listing the Beringia DPS as threatened based primarily on long-term climate projections.
2. Whether NMFS permissibly defined “foreseeable future” in a species- and threat-specific way extending to the end of the century.
3. Whether NMFS adequately explained a causal connection between projected sea-ice habitat loss and a likelihood of future endangerment.
4. Whether NMFS satisfied ESA § 4(i) by providing a written explanation for rejecting Alaska’s recommendations and comments.

## Decision

- The Ninth Circuit reversed the district court and reinstated the threatened listing for the Beringia DPS.
- The court held that NMFS reasonably relied on peer-reviewed climate projections as the “best scientific and commercial data available,” despite uncertainty.
- The court upheld NMFS’s definition of “foreseeable future” as flexible and case-specific, tied to the predictability of the threat and the agency’s ability to make reasoned forecasts.
- The court concluded NMFS adequately linked loss of sea ice to demographic and ecological stressors (reproductive success, mortality risk, prey access, crowding, and exposure to predators and human activity) supporting threatened status.
- The court rejected a requirement that NMFS identify a precise extinction threshold or exact future date of endangerment.
- The court held NMFS complied with ESA § 4(i) by giving a sufficiently detailed written response to Alaska’s objections.

## Legal Principles

- APA review of scientific and technical determinations is highly deferential; courts may not substitute their judgment for the agency’s where the agency reasonably explains its conclusions on the record.
- The ESA’s “best scientific and commercial data available” standard allows reliance on forecasting and modeling when direct observation of future conditions is impossible; uncertainty does not bar action if the agency provides a rational explanation.
- “Foreseeable future” under ESA § 4 is not a fixed number of years; it may be determined case-by-case based on the nature of the threat, the predictability of relevant conditions, and the species’ responses.
- To list a species as threatened, the agency must reasonably explain why the species is “likely to become endangered” within the foreseeable future; the ESA does not require precise quantification of risk or a specific extinction threshold.
- ESA § 4(i) is satisfied when the agency provides a written justification that meaningfully addresses a state’s contrary recommendations and comments.

## Conclusion

The Ninth Circuit upheld NMFS’s threatened listing of the Beringia bearded seal DPS, holding that long-term climate projections can constitute best available science, that “foreseeable future” may extend to the end of the century when supported by reasoned analysis, and that courts must defer to well-explained expert agency judgments under the APA and ESA.


Alaska Oil & Gas Ass'n v. Pritzker, 840 F.3d 671 (9th Cir. 2016)