SW Legal studies in Business

Listing of Whale as Depleted Rather Than Endangered Not Abuse of Discretion
Description Court rejected a challenge to a decision made by the Secretary of Commerce to list a whale as depleted under the Marine Mammal Protection Act, which would result in less hunting by Native Americans, rather than endangered under the Endangered Species Act, which would impose more severe controls. The decision was not an abuse of discretion under the standards of the statutes.
Topic Environmental Law
Key Words Endangered Species Act; Marine Mammal Protection Act; Listing; Administrative Discretion
C A S E   S U M M A R Y
Facts "The Cook Inlet Beluga Whale is a genetically distinct, geographically isolated marine mammal with a remnant population that inhabits Cook Inlet from later April or early May until October or November." The National Marine Fisheries Service (NMFS) estimates that the population has fallen from about 1000 to 300 whales in the past 20 years due to hunting by Native Americans. The NMFS decided to list the whale as "depleted" under the Marine Mammal Protection Act (MMPA) rather than as "endangered" under the Endangered Species Act (ESA). Depleted is a listing that may be used for marine mammals that are determined to be below its Optimum Sustainable Population. The MMPA gives the Secretary authority to issue regulations to limit takings by Native Americans, but does not have the regulatory impact of a listing under the ESA. The listing under the MMPA, rather than under the ESA, was challenged as arbitrary and capricious in violation of the law.

The decision of the Secretary is upheld. The decision to protect the whale under the MMPA rather than under the ESA was not arbitrary, capricious, or an abuse of discretion. The NMFS must use the ESA, rather than the MMPA, if the specie population will qualify as endangered even if it is listed as depleted under the MMPA. The determination to list under the MMPA as a depleted specie was made based on reasonable opinions of qualified experts. There may be contrary views on the matter, but there was sufficient basis for the decision made that MMPA listing, which would limit hunting, would be adequate to allow the specie to recover.

Citation Cook Inlet Beluga Whale v. Daley, 156 F.Supp.2d 16 (D. D.C., 2001)

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