Steller sea lion case now in hands of judge

The fate of wide-ranging fishing closures in the western Aleutian Islands is now in the hands of a federal judge after a Dec. 21 hearing in U.S. Alaska District Court.

The State of Alaska, a coalition of fishing industry groups and Aleut Enterprises squared off against National Marine Fisheries Service, Oceana and Greenpeace to contest the validity of the rule issued Dec. 13, 2010, that shut down fishing for Atka mackerel and Pacific Cod over large swaths of the Aleutian chain.

After taking two hours of oral arguments for summary judgment, Judge Timothy Burgess gave no indication of when he may issue a ruling other than to tell the parties, “I’ll let you know as soon as I can.”

With another fishing season set to begin Jan. 1, Burgess must determine whether the government followed due process in implementing the rule, and whether it met its burden of proof under the Endangered Species Act or exceeded its mandate.

NMFS analysis of the economic impact of the closures estimated foregone fishing industry revenue of some $83 million per year and as many as 750 to 900 jobs lost. The former Naval base Adak depends on fuel sales to the fishing fleet, revenue it lost nearly entirely under the closures during 2011 with boats shifting effort to the eastern Bering Sea where they can more easy fuel up at Dutch Harbor.

The federal action was designed to provide more food sources for endangered Steller sea lions, which NMFS determined were suffering from nutritional stress in the farthest reaches of the Aleutians west of Adak. NMFS reached this conclusion based on pup surveys and an observed decline in the pup-to-non-pup ratio.

NMFS decided that the decline in observed number of pups was being caused by a reduced birth rate, and concluded fishing pressure on Steller sea lion food sources such as cod and mackerel was causing the reduced birth rate.

The state, fishing groups and Aleut Corp. argued that NMFS did not establish that fishing pressure was causing the reduced birth rate for Steller sea lion and in fact the government was aware it did not have enough evidence to support that conclusion.

They cited an email exchange in July 2010 between Kaja Brix and Doug DeMaster of NMFS in which DeMaster — the lead author of the biological opinion that recommended the fishing closures — agreed that the preponderance of evidence did not show competition between the fisheries and Steller sea lions.

Brix wrote that including that statement in the biological opinion, or BiOp, about the lack of evidence supporting fishing pressure as the cause of nutritional stress would open NMFS up to a legal challenge under the “arbitrary and capricious” standard of the Administrative Procedures Act.

DeMaster responded that he was comfortable removing that statement from the BiOp because of the low threshold of proof for instituting fishing restrictions under the Endangered Species Act, or ESA.

In arguing to Burgess that its action was proper, the government stated that uncertainty requires a precautionary approach and under the ESA it was required to insure that the fisheries would not cause jeopardy or adverse modification to Steller sea lion habitat.

Further, the government asserted that the state and fishing industry were disputing the scientific conclusions of NMFS, and that the court is obliged to defer to the agency’s expertise.

Although the state, fishing groups and Aleut Corp. argued the government did not build a sufficient scientific record to support its conclusions about nutritional stress, the focus of its challenge was on procedural grounds and whether the ESA allows NMFS to make a jeopardy finding based on the performance of a subpopulation of a listed species.

The Steller sea lion is divided into two distinct population segments, or DPS, with an eastern and western population split by the 144 degrees west longitude line through the central Gulf of Alaska.

The NMFS action targeted subpopulations of the western DPS in the farthest Aleutians west of Adak. It entirely closed Area 543, a space about half the size of Texas, to all cod and mackerel fishing, and imposed additional closures in Areas 541 and 542 in the central Aleutians.

Burgess asked Freezer Longline Coalition attorney Ryan Steen whether the plaintiffs were disputing government authority to analyze the impacts of a subpopulation on a larger DPS in considering a jeopardy or adverse modification finding.

In response, Steen stated that the government has established statistical significance in prior cases such as one involving tuna where a subpopulation status was large enough proportionally to impact the entire species.

However, Steen noted, NMFS did not provide anything in the record that established why the western Aleutian subpopulation of Steller sea lions was statistically significant enough to influence the species across its range

Taken as a whole, the BiOp reports that population growth in four of the seven subregions is “statistically significant” and that were it not for the decline in the western Aleutians, “it could be argued that the western DPS of Steller sea lions were moving toward recovery.”

In questions submitted to attorneys before the oral argument, Burgess also asked about the manner in which NMFS issued the rule Dec. 13, 2010. All previous Steller sea lion protection measures have been initiated through the North Pacific Fishery Management Council, which governs the federal waters off Alaska.

In this case, the BiOp was released Aug. 2, 2010, and the council was told that if it did not adopt the measures recommended by NMFS, an interim final rule issued by then-Secretary of Commerce Gary Locke would put the rules in place.

The council nonetheless suggested more “surgical” closures at a special meeting in August 2010 to discuss the BiOp. The council was told at is subsequent regular October meeting that NMFS would not adopt the less onerous restrictions, and it waived required notice and comment periods Dec. 13, 2010, when it issued the rule under the Administrative Procedures Act by citing the “good cause” provision.

The state and fishing groups argued that NMFS did not have “good cause” to waive notice and comment periods because the situation was not an emergency as there was no immediate threat to the Steller sea lion population.

Burgess asked NMFS whether it had ever issued an interim final rule in such a manner — to which it responded they could not cite a previous such case — and it also asked the state and fishing groups what would have changed had a normal comment process been followed.

Along those lines, Burgess asked the state what would have changed had NMFS prepared a full environmental impact statement, or EIS, as the plaintiffs argued. Federal agencies are required under the National Environmental Policy Act to either prepare an environmental assessment or the more thorough EIS to assess the affects of regulatory actions.

Essentially, Burgess was asking if plaintiffs believed that the action would have changed if NMFS had followed the regular comment process and prepared an EIS.

In response, state of Alaska attorney Murray Feldman said their position is “we don’t know” what the outcome would have been because NMFS did not prepare the EIS that would have addressed questions such as the environmental effects of removing fishing pressure as well as the human effects of lost economic activity.

The state, fishing groups and Aleut Corp. asked Burgess to vacate the 2010 BiOp and revert to the 2003 BiOp and the previous fishing rules in place prior to 2011.

NMFS argued that it would be impossible to vacate the 2010 BiOp because the 2003 version is out of date and the fishery management plan has changed. Attorneys for NMFS asked for an opportunity to file additional briefs if Burgess took any action to either remand the action back to the agency or vacate the BiOp.

Attorneys for the plaintiffs opposed any further briefing in the case and asked Burgess to rule on the facts before him.

Andrew Jensen can be reached at andrew.jensen@alaskajournal.com.