State of Alaska v. Lubchenco

Using sub-regions to determine if continued fishing in those regions will adversely modify the critical habitat and jeopardize the continued existence of the entire population of a particular species does not violate the Endangered Species Act.

Fishing industry representatives and the State of Alaska challenged a district court ruling allowing limitations on the commercial fishing industry put in place for particular sub-regions of the Pacific Ocean by the National Marine Fisheries Services (hereinafter “NMFS”). These sub-regions are inhabited by the endangered western Distinct Population Segment of Stellar sea lions (hereinafter “Western Sea Lions”). Western Sea Lions were declared endangered in 1997. Two of the seven sub-regions they inhabit have been experiencing population declines attributed to nutritional stress. Fishing industry representatives and the State of Alaska contend that the NMFS violated the Endangered Species Act (hereinafter “ESA”) by basing the fishing restrictions on declines in sub-regions rather than on the entire population of the species. They also contend that the NMFS utilized the wrong standards in measuring the effects of continued fishing and failed to find a sufficient causal link between authorizing fisheries and the population decline. The Ninth Circuit reviewed the agency actions narrowly, stating that they must only determine if the agency’s action was arbitrary or capricious. The Court has consistently held that the ESA permits agencies to consider the impact of actions on sub-populations, as long as such impact would affect the population as a whole. Additionally, the panel noted that the NMFS stopped using the regulatory definition of adverse habitat modification after the 2004 opinion in Gifford Pinchot Task Force. The panel acknowledged that there is no reason to require the agency to go back to the regulation that was deemed questionable in their prior ruling, and that following the statutory provision of the ESA is acceptable. AFFIRMED.