Decision Not to List Cook Inlet Beluga Whales as Endangered Upheld
Alaska Center for Env’t v. Rue, 2004 Alas. LEXIS 98 (Alaska July 30, 2004).

Danny Davis1

In July 2004, the Alaska Supreme Court affirmed the decision of the Alaska Fish and Game Commissioner not to list the Cook Inlet beluga whale as endangered under Alaska’s Endangered Species Act. The Court, however, also held that the commissioner used a wrong legal standard in deciding that the whales are not a distinct subspecies.

Background
In May 2000, responding to a request from the Alaska Department of Fish and Game, the National Marine Fisheries Service (NMFS) listed the Cook Inlet beluga whale as a depleted stock because the beluga’s numbers had fallen below the optimum sustainable population level. In the mid-1980’s the Cook Inlet belugas numbered over one thousand but by 1998 had declined to around 350, primarily due to overharvesting. Various groups petitioned NMFS to list the belugas as an endangered species under the federal Endangered Species Act.2 In June 2000, NMFS determined that the cause of the beluga’s decline was over- harvesting and that the beluga was in no danger of extinction. NMFS believed that restricting the harvesting of belugas would allow the population to recover. A suit was brought in federal district court challenging the decision not to list the belugas as endangered. The court dismissed the case, stating that NMFS acted within the scope of its legal authority.
While the federal ESA process was proceeding, the Alaska Center for the Environment (ACE), along with other groups, petitioned Alaska’s Fish and Game commissioner to list the Cook Inlet beluga whales as an endangered species under Alaska’s Endangered Species Act. In July 2000, the commissioner issued a decision declining to list the belugas as an endangered species because the belugas were not threatened by extinction. The commissioner also determined that the belugas are not a “species or subspecies” within the meaning of the Act. ACE filed suit seeking declaratory and injunctive relief claiming the commissioner erred in determining that the belugas are not threatened and not a “species or subspecies.” The Alaska Superior Court affirmed the commissioner’s decision. Although the court questioned the subspecies decision, the court ruled the issue was moot because of the decision that the belugas were not endangered. ACE appealed the decision to the Alaska Supreme Court.

Alaska’s Endangered Species Act
Alaska’s Endangered Species Act is similar to the federal Endangered Species Act. The Commissioner of Fish and Game is authorized to list a species or subspecies as “endangered.” An endangered species or subspecies is one whose “numbers have decreased to such an extent as to indicate that its continued existence is threatened.”3 The commissioner is to consider the following indicators in making a decision:

(1) the destruction, drastic modification, or severe curtailment of its habitat;
(2) its overutilization for commercial or sporting purposes;
(3) the effect on it of disease or predation;
(4) other natural or man-made factors affecting its continued existence.4

Also, the commissioner is to seek “the advice and recommendation of interested persons and organizations, including but not limited to ornithologists, ichthyologists, ecologists, and zoologists.”5 Species or subspecies listed as endangered “may not be harvested, captured, or propagated except under the terms of special permit issued by the commissioner.”6

Listing Decision
The court must “accept the commissioner’s decision unless it lacks any rational basis.”7 ACE argued that the commissioner’s failure to list the Cook Inlet belugas as endangered was arbitrary and without rational basis because the commissioner failed to consider the small size of the beluga population and the current threats to the population. The court dismissed ACE’s claims.

The commissioner, considering all the factors, determined that overharvesting was the likely cause of the beluga’s decline. Since federal law gives exclusive authority to NMFS to manage overharvesting of whales, the commissioner concluded that only the federal government could control overharvesting and that rules already adopted by NMFS would likely succeed. The court concluded that the commissioner’s decision was rational.

Are the Whales a Subspecies?
The commissioner concluded that the Cook Inlet beluga whales did not qualify as a “species or subspecies” within the meaning of the law. ACE argued that the commissioner misconstrued the meaning of “species or subspecies” and that the commissioner’s interpretation of the Act was unduly narrow. The commissioner argued this point was moot.

Typically, a court will not consider a moot issue “when its resolution would not result in any actual relief, even if the claiming party prevailed.”8 However, if public interest would be served by deciding the moot issue, a court may consider it. To address a moot issue under the public interest exception, a court must find (1) that the issue in question is capable of repetition, (2) that it might repeatedly evade review if the mootness doctrine is strictly applied, and (3) that it “is so important to the public interest as to justify overriding the mootness doctrine.”9 The court decided the commissioner’s decision met the three-part test for review because the “subspecies” issue will continually come up in future law suits, may evade review if courts continue to find the commissioner has made a rational decision, and is of important public interest because a ruling now could result in a quicker response if the whales become endangered.

The commissioner ruled that the whales are not a subspecies because the scientific literature does not recognize the Cook Inlet beluga whales as a distinct subspecies of the general beluga species. The commissioner argued that, in his view, the act used “species” and “subspecies” in the technical taxonomic sense. The court disagreed with this narrow reading. The court ruled that the act requires the commissioner to take a hard look at all views from informed scientists in determining the existence of a subspecies, not just taxonomy. Because the commissioner only considered taxonomy, the court held that he abused his discretion. The court, however, refrained from expressing a view on whether the Cook Inlet beluga whales would be considered a subspecies under this broader definition.

Conclusion
Even though environmental groups were unsuccessful in getting the Cook Inlet belugas listed as an endangered species, this ruling could be seen as a small victory. Requiring the commissioner to use a broad definition may make it easier in the future for environmental groups to argue that the Cook Inlet belugas are a “subspecies.” This is one fewer battle that the environmental groups will have to fight if the beluga’s numbers continue to decline.

Endnotes
1. Danny is a second-year law student at University of Mississippi School of Law.
2. An “endangered species” is one that “is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6) (2004).
3. Alaska Stat. § 16.20.190(a) (2004).
4. Id.
5. Id. § 16.20.190(c).
6. Id. § 16.20.195.
7. Alaska Ctr. for Env’t v. Rue, 2004 Alas. LEXIS 98 at *14 (Alaska July 30, 2004).
8. Id. at *18.
9. Id. at *19.