## Facts

- The Cook Inlet beluga whale population declined from more than 1,300 to roughly 350, with a sharp reduction in the mid-to-late 1990s tied to subsistence hunting.
- In 2000, NMFS designated the Cook Inlet beluga stock as “depleted” under the Marine Mammal Protection Act (MMPA) and regulated subsistence harvest; NMFS at that time declined to list the stock under the Endangered Species Act (ESA), expecting recovery.
- From 2000 to 2006, the population showed little to no recovery despite harvest restrictions.
- NMFS conducted a peer-reviewed scientific assessment and concluded the Cook Inlet belugas faced a substantial extinction risk based on multiple stressors, including effects of past hunting, Cook Inlet development, and killer whale predation.
- NMFS treated the Cook Inlet belugas as a distinct population segment (DPS) under the ESA and issued a final rule (after notice and comment) listing the DPS as endangered.
- The State of Alaska (joined by an intervenor plaintiff) sued under the ESA citizen-suit provision, arguing the listing violated the APA; environmental organizations intervened to support the listing.

## Issues

1. Whether NMFS’s ESA listing decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under the APA.
2. Whether NMFS unlawfully or unreasonably designated the Cook Inlet belugas as a DPS under the ESA and the agency’s DPS policy.
3. Whether NMFS inadequately explained its change from a 2000 “not warranted” determination to the 2008 endangered listing.
4. Whether NMFS failed to properly consider the ESA’s statutory listing factors, including existing regulatory mechanisms and habitat-related threats.

## Decision

- The court applied deferential APA review and declined to substitute its judgment for the agency’s evaluation of scientific evidence.
- The court held NMFS relied on the best available scientific and commercial data and reasonably treated the lack of recovery after harvest controls as significant information supporting reassessment.
- The court upheld NMFS’s DPS determination as consistent with the ESA’s text and the agency’s DPS policy, given the Cook Inlet population’s isolation and asserted significance.
- The court found NMFS adequately explained its change from the 2000 determination in light of monitoring data showing no meaningful rebound and the agency’s updated risk assessment.
- The court concluded NMFS analyzed the ESA listing factors and rationally determined that existing protections (including under the MMPA) had not eliminated extinction risk.
- Summary judgment was granted to the federal defendants, summary judgment was denied to Alaska, and the endangered listing remained in place.

## Legal Principles

- Under APA arbitrary-and-capricious review, a court asks whether the agency considered relevant factors, explained its decision, and did not contradict the record; scientific disputes generally receive substantial deference.
- The ESA requires listing determinations to be based on the “best available” data; uncertainty does not bar agency action if the agency reasonably explains its assessment.
- The ESA’s definition of “species” includes a “distinct population segment” of a vertebrate species; an agency may list a DPS when it reasonably applies its discreteness-and-significance criteria.
- An agency may change position from a prior determination if it acknowledges the change and provides a rational explanation grounded in the record, including new monitoring results or reassessed risk.
- In ESA listings, the agency must consider the statutory threat factors, including the adequacy of existing regulatory mechanisms; the agency may find existing measures insufficient if they have not produced recovery or reduced risk.

## Conclusion

The court upheld NMFS’s decision to list the Cook Inlet beluga whale DPS as endangered, finding the agency reasonably relied on scientific evidence, adequately justified its DPS designation and policy change from 2000, and sufficiently addressed the ESA’s listing factors under deferential APA review.


State of Alaska v. Lubchenco, 825 F. Supp. 2d 209 (D.D.C. 2011)