Oceans and Ice: Scientific Uncertainty in the Regulation of Protected Species

Vol. 28 No. 1

Mr. Steen is a partner with the law firm of Stoel Rives LLP in Seattle, WA. Ms. Leverette is an associate with the law firm of Stoel Rives LLP in Seattle, WA.

In the United States, society has determined that certain species should receive special protection. Generally, and as reflected by two of our primary federal wildlife management statutes, the decision to prioritize species protection arises from recognition of the connection between human action and species health. The decision to protect imperiled species, as reflected in the Endangered Species Act of 1973 (ESA), was motivated by an acknowledgement that certain species were going, or had gone, extinct as a result of human actions. 16 U.S.C. § 1531(a). In the case of the Marine Mammal Protection Act of 1972 (MMPA), an increase in public awareness of widespread dolphin mortalities caused by tuna purse seine fisheries led to comprehensive federal protection of all marine mammals. Id. § 1361(1); see, e.g., HR Rep. No. 92-707 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4148.

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The ESA and MMPA are complex federal statutes that address species conservation in distinctly different ways. In both instances, however, Congress required federal implementing agencies to base their decisions upon the best available scientific and commercial information (best available science). See 16 U.S.C. §§ 1362(27), 1374(h), 1386(b)(3) (MMPA); see also Id. §§ 1533(b)(1)(A), 1536(a)(2) (ESA). In this article, we examine how federal agencies apply the best available science under the ESA and MMPA, respectively, in circumstances where scientific understanding is limited by a lack of data or an incomplete understanding of complex phenomena. We focus our examination on the ESA’s listing mechanism and the MMPA’s regulation of marine mammal interactions in commercial fisheries.

Under the ESA, Congress directs the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the Services) to apply the “best available scientific and commercial data available” in a variety of regulatory decisions, including the listing of species, designation of critical habitat, and the issuance of biological opinions. Id. §§ 1533(b)(1)(A), 1536(a)(2), 1536(c). The ESA does not define the best available science nor does it expressly restrain the Services’ professional determination about what constitutes the best available science. Indeed, attempts to establish an ESA definition for the best available science have failed. See, e.g., H.R. 3824, Threatened and Endangered Species Recovery Act of 2005. The Services, therefore, have broad discretion in determining what constitutes the best available science and need not solely rely on scientific factors. See, e.g., Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 954 (9th Cir. 2003) (reviewing a challenge to a best available science determination and explaining that “[p]articularly when the analysis ‘requires a high level of technical expertise,’ this Court ‘must defer to the informed discretion of the responsible federal agencies.’”) (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377–78 (1989)). When listing species as “threatened” or “endangered,” the Services are required to assess the status of a species by applying the best available science in a very general five-factor inquiry. 16 U.S.C. § 1533(a)(1) (requiring consideration of the present or threatened diminution of the species’ habitat or range; overutilization; disease and predation; adequacy of existing regulatory mechanisms in protecting the species; and other natural or manmade factors affecting the species’ existence).

The mandate to base agency decisions on the best available science is also pervasive throughout the MMPA and, for purposes of this discussion, specifically applies to NMFS’s regulation of marine mammal and commercial fishery interactions. See 16 U.S.C. §§ 1362(27), 1374(h), 1386(b)(3). Like the ESA, the MMPA also does not define what constitutes the best available science. However, unlike the general five-factor inquiry through which the best available science is applied in ESA listing decisions, the MMPA substantially constrains NMFS’s application of the best available science by dictating specific mathematical formulas designed to conservatively estimate the status of marine mammal stocks and the effects of fisheries on those stocks.

Below, we draw upon case studies involving Arctic ice seals and Hawaii pelagic false killer whales to highlight tensions that arise under the ESA and the MMPA, respectively, when federal decisions are made at the fringes of scientific understanding. In each case study, we provide a brief overview of the relevant statutory provisions; examine how scientific uncertainty is addressed under each statutory scheme; discuss the role of agency discretion in each context; and explore how the decisions reflect and challenge the purpose of each law. The application of the ESA and the MMPA in the context of limited data and great uncertainty provides a unique platform for debating the specific goals these laws were intended to achieve as well as whether and how Congress intended to allocate the risks associated with uninformed decision making. Here, we simply set the stage for debate and necessarily leave the competing legal and policy arguments for another day.

Ice Seals and the ESA

The ESA was enacted by Congress in 1973 as an action-forcing conservation statute designed to ensure protections for endangered and threatened species based on the best available science. Section 4 of the ESA requires the Services to maintain a list of all species determined to be threatened or endangered. Id. § 1533(c). An endangered species is “in danger of extinction throughout all or a significant portion of its range,” Id. § 1532(6), while a threatened species “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20) (emphasis added). At the initiative of one of the Services or upon petition by an “interested person,” species may be added to, removed from, or up- or down-listed after notice and an opportunity for public comment. Id. § 1533(b)(1), (3), (5). The vast majority of contemporary listing decisions are the product of the petition process and often implemented through court-ordered deadlines established in litigation brought by environmental advocacy groups. See, e.g., Stipulated Settlement Agreement, In re Endangered Species Act Section 4 Deadline Litigation, No. 10-cv-0377 (D.D.C. July 12, 2011) (providing listing review schedules for 757 species due to petitions filed by environmental advocacy groups).

In December 2012, NMFS listed two distinct population segments of bearded seals (Beringia and Okhotsk) and three subspecies of ringed seals (Arctic, Okhotsk, and Baltic) (collectively referred to as ice seals) as threatened. The Ladoga subspecies of ringed seal, which occupies a range entirely outside of U.S. territory, was also listed as endangered. The primary basis for these listing determinations was NMFS’s projection of climate change effects 100 years into the future. 77 Fed. Reg. 76,740, 76,749 (Dec. 28, 2012) (principal threat to bearded seals is habitat alteration stemming from climate change); 77 Fed. Reg. 76,706, 76,718 (Dec. 28, 2012) (same finding with respect to ringed seals). As reported by NMFS, ice seals are currently abundant, wide-ranging, and genetically diverse, and they exhibit no present threat of population-level stress due to any factor (including climate change). See 75 Fed. Reg. 77,496, 75,497–502 (Dec. 10, 2010); see also 75 Fed. Reg. 77,476, 77,477–80 (Dec. 10, 2010). Alaskan stocks of ringed and bearded seals are also not listed as depleted or strategic under the MMPA. See B.M. Allen & R.P. Angliss, Alaska Marine Mammal Stock Assessments, 2012. Both ringed and bearded seals are listed as species of least concern on the International Union for the Conservation of Nature (IUCN) Red List of Threatened Species, which is an independent international model for assessing the conservation status of plants and animals. See The IUCN Red List of Threatened Species. In short, it is well-recognized that ice seals are healthy species that persist in high numbers throughout their full historical range.

In its decision to list ice seals under the ESA, NMFS identified the climate models set forth in the Intergovernmental Panel on Climate Change’s (IPCC) Fourth Assessment Report: Climate Change 2007 as the best available science. See 77 Fed. Reg. at 76,741; 77 Fed. Reg. at 76,707. In this report, the IPCC acknowledges that current models cannot reliably predict future global temperatures beyond the year 2050. Fourth Assessment Report: Climate Change 2007: The Physical Science Basis, at 749 (Solomon et al., eds., 2007) (summarizing changes in the reliability of climate models in projecting future climate conditions). For this reason, the Services have premised previous climate-based listing decisions on projections extending to midcentury. See, e.g., 73 Fed. Reg. 28,212, 28,253 (May 15, 2008) (listing polar bear as threatened based on projections to midcentury); 73 Fed. Reg. 79,822, 79,823 (Dec. 30, 2008) (NMFS’s decision not to list ribbon seal because “[b]eyond the year 2050, projections of climate scenarios are too heavily dependent on socio-economic assumptions and are therefore too divergent for reliable use in assessing threats to ribbon seals”). Federal courts have upheld these listing determinations, which define the foreseeable future as midcentury. In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig., 709 F.3d 1, 15–16 (D.C. Cir. 2013); Ctr. for Biological Diversity v. Lubchenco, No. C-09-04087, 2010 U.S. Dist. LEXIS 135030 (N.D. Cal. Dec. 21, 2010). However, in the ice seal listing rules, NMFS parted ways with this precedent and used global climate models—which have acknowledged limitations in predicting effects beyond 2050—to conclude that currently healthy species should be listed as threatened now because their available habitat may decline significantly by the year 2100.

If and when the ice seal listing decisions are challenged in court (a number of organizations have already filed notices of intent to sue), NMFS will undoubtedly argue that it should be accorded deference in its administration of the ESA’s listing provisions. How far, however, can agency deference stretch in this context? One could argue that if ice seals can be listed as threatened under the ESA, then virtually any and all species can be listed so long as the administrating agency can, in its discretion, forecast a threat 100 years into the future based upon uncertain scientific data and modeling regardless of whether the species presently enjoys a healthy and abundant status. Because the ESA does not specify any metrics to govern an agency’s predictions or otherwise require a formulaic evaluation of the status of a species (such as a quantified population dynamics analysis), the boundaries of the agency’s discretion in the listing context are left to be drawn by courts, applying the APA’s “arbitrary and capricious” standard of review. Whether the present system is more or less effective than a statutory structure that draws tighter restrictions on agency decision making in the first instance is a topic for debate.

The ice seal listing decisions also raise fundamental questions regarding the purpose of the ESA. Other sections of the ESA do not appear to contemplate the listing of species for which no present threat exists or for which there is no known solution to an identified threat. For example, the Services are charged with developing recovery plans for listed species. 16 U.S.C. § 1533(f). What is the purpose of such a plan for a presently healthy species that exists at a high abundance throughout its range? What depressed status must be recovered from? As another example, Section 7 requires federal agencies to insure that their actions are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” 16 U.S.C. § 1536(a)(2). This determination is generally made through a Section 7 interagency consultation and the production of a biological opinion. However, when the sole basis for a listing is a projected threat based on a global phenomenon, then (i) activities that are not responsible for the threat but which nevertheless occur within the range of the species may be unfairly subjected to unnecessary Section 7 processes; and (ii) some organizations may leverage Section 7 to argue that all activities, anywhere, that contribute to the identified future threat (e.g., greenhouse gas emitting activities) are subject to the ESA’s consultation provisions. But see Memo. from H.D. Hall, Director, FWS, on “Expectations for Consultations on Actions that Would Emit Greenhouse Gases” to Regional Directors (May 14, 2008) (responding to concerns that GHG emissions would be evaluated during Section 7 consultations and setting forth the FWS policy that Section 7 consultation would not be required to address impacts of a facility’s GHG emissions because the best available science cannot connect emissions from a given facility to specific impacts). Whether the ESA’s recovery planning and consultation provisions were intended to address these situations is another topic for debate.

Finally, as federal agencies flex the ESA’s listing provisions to cover a broader range of species based on modeling exercises identified as the best available science, there will undoubtedly be an increasing number of petitions seeking to list presently healthy species for which some future threat may be projected. The “plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 (1978). However, species conservation does have a cost and that cost, in terms of the Services’ administrative resources and litigation expenses, limits the speed at which the Services are able to review listing petitions and the extent to which the Services may invest resources in species that are in present need of recovery. For example, in 2011, the Center for Biological Diversity and FWS entered into a settlement agreement to prioritize listing determinations for hundreds of species whose listing decisions had been delayed (some more than twenty-five years) due to administrative backlog caused by limited resources. Stipulated Settlement Agreement, In re Endangered Species Act Section 4 Deadline Litig., No. 10-cv-0377 (D.D.C. July 12, 2011) (providing listing review schedules for 757 species). Indeed, in 2011, the Washington Post reported that in 2010, FWS officials stated that the agency “spent so much of its $21 million listing budget on litigation and responding to petitions that it had almost no money to devote to placing new species under federal protection.” Juliet Eilperin, Interior Dept. Strikes Deal to Clear Backlog on Endangered Species Listings, Washington Post (May 10, 2011). Whether Congress intended the devotion of limited resources to healthy species that by all accounts will face no serious threats in more half a century (if ever)—to the possible detriment of species that face real and current threats—is another topic worthy of debate.

False Killer Whales and the MMPA

Like the ESA, the MMPA creates legal duties that require NMFS to make decisions in the face of scientific uncertainty. We focus here on decisions relating to commercial domestic fisheries and marine mammal populations with expansive open-water ranges. Achieving decisions based on scientific certainty is often elusive in this context because pelagic marine mammal species are difficult and expensive to study. Frequently, NMFS does not know the range of the species in question, whether the species is made up of more than one stock, or the stock’s abundance. However, this very information is critical to application of the MMPA, which requires NMFS to identify marine mammal stocks and to estimate population size and abundance trends for those stocks. The MMPA further requires NMFS to regulate commercial fisheries based on specific formulas and processes that derive entirely from this critical information.

Section 101 of the MMPA places a broad moratorium on the taking or importation of marine mammals. 16 U.S.C. § 1371. The MMPA provides an exception to the broad take moratorium for marine mammals taken “incidentally in the course of commercial fishing.” Id. § 1371(a)(2). This exception applies only so long as the incidental take occurs pursuant to a permit issued under Section 104 or an authorization issued under Section 118. Id. Almost all commercial fisheries operate under Section 118 authorizations. Pursuant to Sections 117 and 118, NMFS regulates commercial fisheries according to statutorily prescribed formulas that calculate the maximum number of fishery interactions that a marine mammal population can sustain.

Section 117 requires NMFS to, among other things, publish annual stock assessment reports (SARs) for each marine mammal stock under NMFS’s jurisdiction. Id. § 1386. SARs must be based on the best available science and contain, among other things, the following information: i) an estimate of annual levels of “human-caused mortality and serious injury” of marine mammal stocks; ii) a minimum population estimate, current and maximum net productivity rates, and current population trends for marine mammal stocks; and iii) an estimated potential biological removal (PBR) for each marine mammal stock.

PBR represents the threshold by which NMFS determines whether fishery interactions with a given marine mammal stock are unsustainable. PBR is statutorily defined as the product of (i) the minimum population size, (ii) one-half the maximum theoretical or estimated net productivity rate of the stock at a small population size, and (iii) a recovery factor of between 0.1 and 1.0. This formula is necessarily conservation-biased because it is built upon an estimate of a stock’s minimum population size (not the actual or most likely population size), an artificially depressed estimate of productivity, and a recovery factor that is essentially a catch-all used to further reduce the PBR estimate as a precautionary measure. If a fishery’s interactions with a stock exceed the PBR, the stock is designated as strategic, meaning that the stock is exposed to “a level of human-caused mortality and serious injury” that is “likely to cause the stock to be reduced below its optimum sustainable population.” Id. § 1386(a)(4)-(5).

Section 118, in turn, applies the information generated under Section 117 to address the regulation of fisheries that have unacceptable levels of marine mammal interactions. Among other things, Section 118 requires NMFS to form a take reduction team (TRT) for any marine mammal stock that is designated as strategic and interacts with certain commercial fisheries that have been categorized by NMFS as having at least occasional interactions with marine mammals. Id. § 1387(f)(6). The TRT is charged with developing a take reduction plan (TRP) designed to meet the goals of (i) reducing the fishery’s serious injury rate to below the marine mammal stock’s PBR within six months and (ii) reducing the fishery’s serious injury rate to an insignificant level approaching zero within five years. Id. § 1387(f)(2). The TRP is then implemented by NMFS through regulations that may or may not incorporate the TRT’s recommendations and may include measures such as limits on serious injuries, time/area closures, the use of alternative gear or techniques, educational workshops, and fishery monitoring. Id. § 1387(f)(9).

The Hawaii-based commercial longline tuna fishery operates in both the U.S. exclusive economic zone (EEZ) and in areas of the high seas beyond the EEZ. False killer whales (FKWs) regularly depredate fishing lines in this fishery (and in longline fisheries worldwide) and unpredictably and rarely become hooked or entangled. Virtually all such interactions are categorized by NMFS as serious injuries.

For over a decade, NMFS estimated the population size and PBR for the Hawaii pelagic false killer whale (FKW) stock (the Pelagic Stock) based on a single FKW pod sighting in the Hawaiian EEZ during a 2002 line-transect survey. Using this data, NMFS originally estimated the Pelagic Stock at 236 animals, which was subsequently updated by NMFS to 484. This resulted in a PBR of 2.4, which was easily exceeded by the fishery’s estimated FKW serious injury rate. Consequently, in 2009, NMFS established a TRT to address the Pelagic Stock. The TRT met four times over the course of about one year (at great expense to the federal government) and proposed a TRP to NMFS that included a number of regulatory recommendations such as gear changes, training workshops, and fishery closures. NMFS subsequently issued a regulation incorporating the TRT’s recommendations. See 50 C.F.R. § 229.37.

In 2012, NMFS published a new estimate for the Pelagic Stock based upon data gathered in a new survey performed in 2010. In this survey, NMFS observed six times as many FKW pods than in the original survey, and set the new population estimate at 1,503 animals. Because of the variability associated with survey estimates, NMFS has cautioned that the new estimate cannot statistically support a conclusion that the stock has increased since 2002. This new estimate was nevertheless more than three times larger than the previous estimate, resulting in an increased PBR of 9.1. Although the 2012 fishery interaction rate (13.1) still exceeds the new PBR estimate, the increased population estimate raises fundamental questions regarding the purpose of Section 118.

All of the regulatory processes and decisions described above were based on the assumption, dictated by Section 118’s specific formulas, that the Hawaii longline tuna fishery was taking animals from the Pelagic Stock at an unsustainable rate (i.e., at a rate above PBR). If this assumption were correct, then after a decade of supposedly unsustainable take one would reasonably have expected the Pelagic Stock to experience a significant and noticeable decrease in abundance. However, NMFS’s 2012 survey failed to produce evidence of such a decrease and, quite to the contrary, resulted in a new abundance estimate more than three times greater than the previous estimate. Despite this evidence, the fishery continues to be regulated under the MMPA as a fishery having unsustainable take of marine mammals.

The unfortunate reality is that NMFS does not have the funding or ability to develop a good understanding of the population dynamics of the Pelagic Stock or the true effect of fishery interactions on that stock. Taking the best available science at face value, as the MMPA requires, it is simply not possible to reconcile the best available science (showing no decreasing abundance) with NMFS’s conclusion that the fishery continues to take FKWs at an unsustainable rate. There is a gap in knowledge that cannot be explained by the available information. Perhaps the fishery actually does not seriously injure every animal that is hooked or entangled (NMFS presently assumes that approximately 90 percent are seriously injured). Perhaps the 2002 survey was an anomaly and a much larger FKW population actually existed at that time (in which case a TRT likely never would have been formed). Perhaps FKWs from other high seas stocks migrated and took up residence in waters near Hawaii between 2002 and 2012. None of this information is known, yet the MMPA mandates that NMFS make regulatory decisions, initiate time-consuming regulatory processes, and promulgate new and restrictive rules regardless of the quality or quantity of the available information. In the case of Hawaii FKWs, this has resulted in a regulatory conundrum in which the best available science indicates that the Pelagic Stock is increasing in abundance (or at a minimum, stable) while, at the same time, the Hawaii longline fishery continues to be regulated based on an assumption that the fishery has been removing animals from the population since 2002 at an unsustainable rate.

Some General Observations

The ESA and MMPA employ two different approaches to applying science in wildlife management. On one hand, the ESA listing provisions direct agencies to apply the best available science through application of very general guiding statutory factors. The administering agencies consequently exercise substantial discretion in determining whether the best available science justifies the listing of a species. On the other hand, in regulating interactions between commercial fisheries and marine mammals, Congress enacted a statutory scheme in which federal agencies are specifically directed to apply precise formulas that, in turn, dictate concrete management decisions. Although NMFS has discretion in applying the best available science to the underlying variables in those formulas, the ultimate results are essentially dictated by the statutory equation. As is the case with Hawaii FKWs, application of this inflexible statutory scheme may result in regulatory decisions that cannot be reconciled with the best available science.

Agency discretion and a mandate to use the best available science are necessary components of any wildlife management statute. As the wildlife management statutes enacted in the 1970s are confronted with continuing scientific advances and more complex management conundrums, the courts, Congress, federal agencies, and communities will have to grapple with the application of federally dictated management structures that may be outdated. We should be open to having a genuine discussion about how management of our wildlife resources is best accomplished in a manner that effectively conserves species while also prioritizing limited federal funds and creating predictable and logical compliance structures for the regulated community. The case studies described above are only two of many examples that can serve to help us advance our thinking and take legislative action, when necessary, to amend our wildlife management statutes in a manner that allows for the most effective and sensible application of the best available science by federal management agencies.

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