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Alaska Center for the Environment v. Rue (07/30/2004) sp-5826
Alaska Center for the Environment v. Rue (07/30/2004) sp-5826
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA CENTER FOR THE )
ENVIRONMENT, and ALASKA ) Supreme Court No. S-10887
WILDLIFE ALLIANCE, )
) Superior Court No. 3AN-00-3704
CI
Appellants, )
)
v. ) O P I N I O N
)
FRANK RUE, Commissioner, )
ALASKA DEPARTMENT OF ) [No. 5826 - July 30, 2004]
FISH AND GAME, and STATE )
OF ALASKA, )
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Valerie L. Brown and Robert W.
Randall, Trustees for Alaska, Anchorage, for
Appellants. Jon K. Goltz, Assistant Attorney
General, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
The Alaska Center for the Environment and the Alaska
Wildlife Alliance (collectively, the center) filed a superior
court action challenging a decision by the Commissioner of Fish
and Game declining to list the Cook Inlet beluga whale as
endangered under the Alaska Endangered Species Act. The
commissioner found that Cook Inlet belugas failed to qualify for
endangered species listing because they are not currently
threatened with extinction, and also because they are not a
distinct subspecies within the meaning of the act. The superior
court upheld the commissioners finding that no danger of
extinction existed and affirmed his decision on that basis,
without resolving the subspecies issue. The center appeals,
challenging the commissioners findings on both the endangerment
and subspecies issues. We affirm the finding on lack of
endangerment. Because the commissioners ruling on that point
precludes an endangered species listing, we affirm his decision.
To provide future guidance, however, we further conclude that
the commissioner used an incorrect legal standard and thus
failed to consider relevant information in deciding that Cook
Inlet belugas are not a distinct subspecies.
II. FACTS AND PROCEEDINGS
Beluga whales (Delphinapterus leucas) range throughout
arctic and subarctic waters in North America, Greenland, Europe,
and Asia. They are social animals, living in herds of up to
1,000 individuals. Adult males generally group in separate pods
from females, calves, and juveniles. The whales often swim four
to six abreast while rolling in tandem to breathe. Adult belugas
range from eleven to fifteen feet in length and weigh from 1,000
to 2,000 pounds, with females being smaller than males. Belugas
are robust, with a small dorsal fin, bulging, melon-shaped head
and small beak, and they are the only whale with the ability to
bend their necks.
Approximately 100,000 beluga whales inhabit the waters
of Alaska, comprising five separate populations. The Cook Inlet
beluga whale is genetically the most distinct of Alaskas beluga
populations, and it is reproductively isolated. It is also the
smallest beluga population. In the mid-1980s, the Cook Inlet
beluga population was estimated at approximately 1,000 to 1,300.
Since then, the population has experienced a steady decline.
Between 1994 and 1998, their numbers decreased nearly fifty
percent, from 653 to 357.
Throughout this period of decline, Cook Inlet belugas
were harvested by Alaska Native subsistence hunters. In May
2000, responding to a request by the Alaska Department of Fish
and Game, the National Marine Fisheries Service designated Cook
Inlet belugas as a depleted stock after determining that their
current numbers fell below the optimum sustainable population
level. Based on this finding, the fisheries service began to
draft regulations to limit the harvest of these belugas.1
Various groups petitioned the fisheries service to list Cook
Inlet belugas as an endangered species under the Federal
Endangered Species Act. After exhaustive review, however, the
fisheries service determined in June 2000 that the Cook Inlet
belugas decline had primarily resulted from overharvesting, a
problem that its new regulations would be able to address.
Finding no likely danger of extinction in the foreseeable future,
the service declined to list Cook Inlet belugas as an endangered
species under the federal act.
Meanwhile, the center, together with other groups,
petitioned Alaskas Commissioner of Fish and Game, asking that
Cook Inlet beluga whales be listed as an endangered species under
the Alaska Endangered Species Act. Upon consulting with various
experts, reviewing numerous comments, and considering other
available information, the commissioner issued a decision letter
in July 2000, declining to list Cook Inlet belugas as endangered
under the Alaska Endangered Species Act. The commissioner based
this determination on two alternative theories: Cook Inlet
beluga whales are not threatened with extinction, and so are not
endangered within the meaning of Alaskas ESA. Also, Cook Inlet
beluga whales do not constitute a species or subspecies within
the meaning of this law.
The center filed a superior court action for
declaratory and injunctive relief, claiming that the commissioner
erred in finding that Cook Inlet belugas are not threatened with
extinction and that they do not constitute a species or
subspecies under the Alaska Endangered Species Act. After the
parties filed cross-motions for summary judgment, the superior
court entered an order upholding the commissioners finding on the
issue of threatened extinction. Reviewing this finding under the
deferential standard established in Southeast Alaska Conservation
Council, Inc. v. State,2 the superior court concluded that the
commissioner had taken a hard look at the salient issues and had
made a rational decision. But as to the commissioners
alternative finding that Cook Inlet belugas are not a species or
subspecies, the courts original order remanded for further
proceedings, ruling that this finding had not been adequately
explained. The court revised its ruling on reconsideration,
however, evidently agreeing with the states position that the
subspecies issue did not need to be decided because it was moot.
Ultimately, then, the superior court simply affirmed the
commissioners decision.
The center appeals.
III. DISCUSSION
A. Standard of Review
We review the superior courts decision on summary
judgment de novo.3 In reviewing an agencys regulatory decision,
such as the commissioners refusal to list Cook Inlet belugas as
an endangered species, we usually apply the reasonable but not
arbitrary standard,4 which consists primarily of ensuring that
the agency has taken a hard look at the salient problems and has
genuinely engaged in reasoned decision making.5 But when the
decision raises a question of statutory interpretation involving
legislative intent rather than agency expertise, we review that
question independently, applying the substitution-of-judgment
standard.6
B. Statutory Background
The legislature adopted Alaskas Endangered Species Act
in 1971.7 The acts opening section contains a strong statement
of purpose: The legislature recognizes that, due to growth and
development, certain species or subspecies of fish and wildlife
are now and may in the future be threatened with extinction. The
purpose of [this act] is to establish a program for their
continued conservation, protection, restoration, and propagation.8
Alaskas act is similar but not identical to the Federal
Endangered Species Act.9 The Alaska act authorizes the
Commissioner of Fish and Game to determine that a species or
subspecies of fish or wildlife is endangered by finding that its
numbers have decreased to such an extent as to indicate that its
continued existence is threatened.10 Under the act, the
commissioner must make this finding by seeking the advice and
recommendation of interested persons and organizations, including
but not limited to ornithologists, ichthyologists, ecologists,
and zoologists and considering four potential indicators of
threatened extinction:
(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.[11]
Upon determining that a species or subspecies qualifies
under these criteria, the commissioner places it on a published
list of endangered species.12 The commissioner may add to the
list on a continuing basis and must review the entire list at
least once every two years.13 Once listed as endangered, a
species or subspecies may not be harvested, captured, or
propagated except under the terms of a special permit issued by
the commissioner;14 violations of these restrictions are
punishable as misdemeanors.15
C. Commissioners Findings on Threat of Extinction
The center initially challenges the commissioners
finding that Cook Inlet beluga whales are not currently
threatened with extinction and thus do not need to be listed. In
the centers view, the commissioners decision is arbitrary and
lacks a rational basis because it fails to consider the small
size of the Cook Inlet beluga population and assesses only past
causes of decline rather than current threats to survival.
We find little merit to these claims. In reaching his
decision, the commissioner reviewed a broad array of data and
information, including the National Marine Fisheries Services
then-recent decision not to add Cook Inlet belugas to the federal
endangered species list. Based on the entirety of this
information, the commissioner analyzed the four statutory factors
specified under Alaskas act.16
Considering the first factor, threats to habitat,17 the
commissioner found that [t]here is no scientific evidence to tie
the decline of the Cook Inlet population of beluga whales to the
destruction, drastic modification, or severe curtailment of
habitat, and that current policies provide protection for beluga
whale habitat in Cook Inlet.
As to the second factor, overutilization,18 the
commissioner noted strong historical evidence suggesting that
Cook Inlet belugas had been overharvested, finding that [c]learly
the harvest in recent years has caused a significant decline in
the population. Since federal law gives the National Marine
Fisheries Service exclusive power to regulate the harvest of
whales, the commissioner noted, [o]nly the federal government can
change this. And in fact, the commissioner observed, the federal
government had recently enacted laws and had begun to draft rules
to control the overharvest. While believing it likely that these
measures would succeed in controlling the overharvest, the
commissioner emphasized that he intended to monitor the issue and
would reconsider this determination in the event that [the
fisheries service] fails to adopt long-term regulations
controlling hunting at sustainable levels.
Addressing the third factor, disease and predation,19
the commissioner found no scientific evidence of any appreciable
or increased threat attributable to this category.
Concerning the fourth, catchall, factor,20 the
commissioner reviewed available information on recent beluga-
whale strandings, incidental takings in commercial fisheries,
environmental conditions affecting the availability of food,
potential contamination through chemical pollution, and
destruction of existing physical habitat. Finding no evidence
[that] any of these other factors have had, or are having, any
impact on the health or mortality of Cook Inlet beluga whales,
the commissioner concluded that Cook Inlet beluga whales are not
threatened with extinction.
The center advances a two-pronged attack on these
findings. First, it assails the commissioner for failing to
recognize that the depleted size of the Cook Inlet beluga
population is the one factor that poses the biggest threat to the
whales survival. Relying on an analysis prepared by the Alaska
Chapter of the Wildlife Society, which concludes that the Cook
Inlet belugas population is so reduced that it is likely to
decline toward extinction in the event of harvest of a single
individual per year, the center asserts that the commissioner
simply deferred to a contrary view expressed by the fisheries
service, which found that the population could sustain an annual
harvest of up to seven whales a year. Because of this oversight,
the center insists, the commissioner lacked any rational basis to
find that the populations depleted size did not, by itself,
establish a threat of extinction.
But this argument, at its core, simply asks us to
reweigh the information in the agency record and substitute our
judgment for the commissioners. The commissioners decision shows
that he was aware of and considered the beluga stocks depleted
size: as the center recognizes, the commissioner specifically
addressed this issue, observing, Just because the population is
small is no indication that it is not healthy and viable. While
the commissioners observation certainly indicates that his views
on this point concur with the fisheries services assessment
rather than the Wildlife Societys, this hardly demonstrates that
the commissioner simply deferred to the former and arbitrarily
rejected the latter. On the whole, the commissioners analysis of
statutory and other factors bearing on the issue of threatened
extinction reflects an overarching concern with the populations
dwindling size and the manner of its depletion. Our function is
not to reweigh the competing information on this issue; instead,
the law requires us to accept the commissioners decision unless
it lacks any rational basis. Here, the commissioner considered
the requisite factors, and the fisheries services recent findings
provided a rational basis to conclude that the belugas diminished
population did not by itself imperil the whales survival. We
thus find no occasion to second-guess this decision.
The center separately asserts that the commissioner
misapplied the statutory factors. The center posits that the
commissioner assessed threats to the Cook Inlet beluga whale
solely on the basis of whether there was conclusive evidence
linking that threat to the past decline of the population. This
was error, the center insists, because [t]he requisite inquiry
under Alaskas [act] is fundamentally a forward-looking one,
asking whether there are any threats to the species or subspecies
that may affect its future survival, i.e., its continued
existence.
But experience teaches: our past is often the most
reliable predictor of our future. Indeed, it seems difficult to
imagine many threats of extinction that could be reliably
predicted without experiential analysis. A fair reading of the
challenged decision indicates that the commissioner sought to
obtain a reliable view of current and potential future danger by
taking a hard look at the historical information at hand.
Despite roundly criticizing this retrospective approach, the
center identifies no purely prospective risk overlooked by this
examination of historical harm.21
In summary, then, our review of the record convinces us
that the commissioners analysis of threatened extinction
considered the statutory requirements, took a hard look at the
salient problems, and engaged in reasoned decisionmaking. We
thus uphold the commissioners determination that Cook Inlet
beluga whales did not need to be listed under Alaskas act because
their numbers had not decreased to such an extent as to indicate
that [their] continued existence is threatened.22
D. The Species or Subspecies Issue
As already mentioned, Alaskas Endangered Species Act
applies only to species or subspecies of Alaskan fish or
wildlife. Here, in addition to concluding that no current threat
of extinction existed, the commissioner found that Cook Inlet
beluga whales do not qualify as a species or subspecies within
the meaning of this law. The center disputes this finding,
arguing that the commissioner misconstrued the meaning of species
or subspecies, as used in the act.
In response, the state maintains that this issue is
moot and urges us not to consider it, asserting that the
commissioners decision can be affirmed on the alternative ground
that Cook Inlet belugas are not currently threatened with
extinction. In any event, the state contends, the commissioner
reasonably found that Cook Inlet belugas fail to qualify as a
subspecies under Alaskas act because the scientific literature
does not formally recognize these whales as a distinct subspecies
of the general beluga species. The center replies that
the commissioners interpretation of the species or subspecies
provision is unduly narrow and that, even if technically moot,
this issue falls under the public interest exception to the
mootness doctrine because it presents an important legal question
that might evade review if we fail to resolve it now.
1. Mootness
The law considers a disputed claim to be moot when its
resolution would not result in any actual relief, even if the
claiming party prevailed.23 Because the act would not allow Cook
Inlet belugas to be listed as an endangered species unless they
faced a threat of extinction, our opinions affirmance of the
commissioners finding on this point disqualifies them regardless
of their status as a species or subspecies. Accordingly, the
state is correct in asserting that this issue is technically
moot.
The mootness doctrine generally counsels against
deciding moot claims; but as both parties recognize, an exception
to the mootness doctrine arises when the public interest would be
served by deciding an issue even though it is technically moot.
In applying the public interest exception, courts must find (1)
that the issue in question is capable of repetition, (2) that it
might repeatedly evade review if the mootness doctrine strictly
applied, and (3) that it is so important to the public interest
as to justify overriding the mootness doctrine.24
The state contends that the question at issue here
Cook Inlet belugas standing as a species or subspecies under the
act fails to meet any of these requirements. But the state
rests this argument on the premise that [t]he subspecies
determination is specific to the record in this case. The state
reasons that [i]f the issue arises again it will almost certainly
involve different scientific evidence because the Commissioners
decision will depend on the record in that particular case. Yet
the commissioner appears to have decided this issue primarily as
a matter of law, not as a case-specific question of fact.
Despite acknowledging strong evidence of the Cook Inlet
belugas genetic uniqueness and geographic isolation, the
commissioners decision emphasized in its statement of factual
background that the fact remains that within the meaning of
Alaskas endangered species statutes, all beluga whales in Alaskan
and Canadian waters are the same species, and no subspecific
designations have been proposed or accepted within the scientific
community. (Emphasis added.) The commissioners substantive
analysis of the Cook Inlet belugas classification confirmed his
view that this issue presented a straightforward legal question:
There is a threshold legal question whether the Cook Inlet beluga
whale population constitutes a species or subspecies within the
meaning of the Alaska ESA. Consideration of the plain language
of the statute and legislative history of the federal ESA
suggests it is not. (Emphasis added.) Later, despite finding no
legislative history to indicate that the words species and
subspecies were intended to have anything other than their
commonly understood definitions, the commissioner again stressed
that scientific literature does not identify any population of
belugas as a separate subspecies, that Alaska law makes no
provision for listing of stocks, populations or other non-
specific genetic distinctions, and that, in his view, the act
used species and subspecies exclusively in the technical sense of
these words.
In the final analysis, then, the commissioner read the
act as categorically limiting the definitions of species and
subspecies to refer to generally accepted taxonomic
classifications an interpretation that essentially foreclosed
any need to evaluate available biological information for
evidence suggesting that Cook Inlet beluga whales might actually
qualify as a subspecies under the commonly understood substantive
meaning of the word, even though they have not yet been
recognized as a subspecies in the technical sense. So
interpreted, the act left no room for case-specific discretion;
as the commissioner put it, the threshold question of whether
Cook Inlet beluga whales constitute a species or subspecies
within the meaning of the Alaska ESA must be answered in the
negative. (Emphasis added.)
Because the commissioner viewed this issue as a legal
question having a categorical answer, we think that his ruling
meets the three-part test for review under the public interest
exception to the mootness doctrine. First, the question of
listing is likely to recur if the Cook Inlet beluga whale
population fails to show signs of a healthy recovery; and when it
does arise again, the commissioners narrow technical view of
species or subspecies issue will likely compel another denial of
listing, except in the seemingly unlikely event that taxonomists
formally recognize Cook Inlet belugas as a subspecies in the
technical sense. Second, denying review based on mootness seems
likely to hamper or delay future review of this issue: even if
forceful new evidence of threatened extinction arises, the
commissioners current position may well discourage new petitions
and will likely prevent any realistic possibility of endangered-
species listing until the subspecies issue completed a new round
of appeals a delay that seriously jeopardizes the Cook Inlet
beluga population if the new petition were ultimately found to
have merit. And third, as evidenced by the acts statement of
purpose,25 the question at issue has substantial importance, and
its timely resolution will undoubtedly further the public
interest.
2. Meaning of the acts species and subspecies
requirement
We thus turn to the merits of the threshold legal
question decided by the commissioner: the meaning of the acts
species or subspecies requirement.26 Because this issue presents
a question of statutory interpretation involving legislative
intent, we decide it independently, applying the substitution-of-
judgment standard.27
Initially, we note our agreement with the commissioners
comment that the legislature apparently intended to give the
words species or subspecies their commonly understood
definitions. But the commissioner did not attempt to articulate
or apply the common meaning of these words; instead, he
ultimately assigned them their narrowest possible meaning,
construing the act to use them in their strict technical sense
that is, as formal taxonomic classifications accepted in the
published scientific literature.
The commissioners reliance on this narrow definition is
problematic, since it conflicts with the legislatures intent to
use species and subspecies as they are commonly understood. The
narrow technical meaning of these words may well be the one
commonly applied by scientists engaged in taxonomy a scientific
discipline devoted to the systematic classification of plants and
animals.28 But we doubt that scientists working outside the
specialized realm of taxonomy particularly those engaged in
actively developing areas of biological study involving fish and
wildlife management would commonly restrict these words to the
narrow meanings taxonomists agree to give them in published
articles. Nor does it seem realistic to assume that the Alaska
Legislature chose to assign these words such a static and
constricted technical meaning when it adopted the act. After
all, the acts stated purpose is to establish a program that will
effectively protect fish and wildlife against dynamic new threats
of extinction new dangers attributable to growth and
development.29 It seems unlikely that the legislature could have
expected the act to function effectively in averting such threats
if the act protected species or subspecies of fish and wildlife
only after they gained formal recognition by an isolated
scientific discipline that devotes itself to abstract technical
matters of classification that are largely unrelated to fish and
game management.
As cogently observed by the United States District
Court in the recent case of Center for Biological Diversity v.
Lohn, formal taxonomic changes are often slow to occur and lag
behind current knowledge; hence, accepted taxonomic designations
of whales can easily prove inaccurate, while at the same time
other scientific evidence can reliably establish the existence of
species and subspecies that have not yet been formally recognized
by taxonomists.30 These observations are hardly surprising.
Because taxonomy organizes plants and animals to reflect their
development over the ages, it naturally tends to view life in
historical perspective. It thus seems illogical to expect that
taxonomists would generally attach much urgency to the
recognition and acceptance of new and emerging classifications.
But by the same token, it seems just as illogical and therefore
probably contrary to legislative intent to constrict the common
definitions of species and subspecies to the technical
definitions formally recognized in this single corner of science.
The superior court correctly observed in its original
order on summary judgment that the dictionary can help to define
the common meaning of subspecies:
Websters New Universal Dictionary of the
English Language (1976) defines subspecies as
a division of a species. The American
Heritage Dictionary of the English [L]anguage
defines subspecies as a subdivision of a
taxonomic species, usually based on
geographical distribution. The Academic
Press Dictionary of Science and Technology
defines subspecies as a taxonomic rank
immediately below species indicating a group
of organisms that is geographically isolated
from and may display some morphological
differences from other populations of a
species, but is nevertheless able to
interbreed with other such groups within the
species where their ranges overlap. It
appears that the common definition of
subspecies includes looking at distinct
geographical segments.
These common definitions point to a useful core of
features commonly associated with a subspecies: geographic
isolation; distinctive characteristics, often genetically
determined; and a retained ability to interbreed with other
members of the same general species. While this description
lacks precision in many respects and hardly qualifies as an
exhaustive definition, the issues presented here do not require a
more exacting elaboration. The most important point for present
purposes is that the commonly understood meaning of subspecies
does not turn on the categorical pronouncements of a single
science; nor does it describe a classification in the rigid
technical sense of general agreement or acceptance as reflected
by scientific literature.31 To the contrary, while the narrow
meanings of these words are certainly included in their commonly
understood meanings, their common meanings are broader and more
flexible. As used in the act, they call for a case-specific
exercise of discretion by the commissioner based on a hard look
at all currently available scientific information, including but
not limited to formally recognized taxonomic classification.
In short, nothing in the common definitions of these
words requires the commissioner to determine the existence of a
subspecies by exclusive reference to the generally accepted views
of a single branch of science; as with the issue of threatened
extinction, the act requires the commissioner to determine the
existence of a subspecies by taking a hard look at the available
views of informed scientists from all relevant disciplines. When
this information leaves serious doubt as to the de facto status
of an unrecognized subspecies, the commissioner has broad
discretion to fall back on traditionally accepted taxonomic
classifications; but when up-to-date, case-specific science
reliably indicates that taxonomic changes have lagged behind and
are no longer accurate, the act gives the commissioner broad
discretion to find that a protectable subspecies exists under the
act, regardless of whether the classification finds general
support in the technical sense.
The crucial point, again, is that the act vests
controlling discretion in the commissioner, not in taxonomy.
Here, as our review of the disputed decision makes clear, the
commissioner largely failed to recognize or exercise his full
range of discretion. By concluding as a matter of law that the
act permitted a subspecies to be found only when it was
recognized to exist in the technical sense of the word, the
commissioner effectively declared himself powerless to take a
hard look at available scientific information suggesting that
Cook Inlet beluga whales possessed the requisite traits of a
subspecies despite their lack of formal taxonomic recognition.
While we must ordinarily give broad deference to an agencys
discretionary decisions, such deference is warranted only when
the agency utilizes, rather than ignores, the analysis of its
experts.32 We have recognized that outright refusal to consider
the various alternatives available as a matter of discretion
. . . is a failure to exercise any discretion at all.33 The
commissioners refusal here to consider any scientific information
except taxonomic classification in the technical sense amounted
to an abuse of discretion.
We by no means suggest that the act required the
commissioner to develop and explore new information on the status
of Cook Inlet beluga whales. To the contrary, we reconfirm our
prior decisions holding that agencies making regulatory decisions
need only consider information that is submitted or is otherwise
readily available.34 But here, the available information included
abundant scientific data suggesting that Cook Inlet belugas are
both genetically distinctive and uniquely isolated from other
beluga populations. The commissioner expressly declined to
evaluate this information because he did not think that it
addressed the issue of classification in the technical sense
intended under the act. Although we express no view as to
whether this information might ultimately establish the existence
of a subspecies under the commonly understood meaning of the
word, we hold that the commissioner erred in failing to take a
hard look at this issue under the correct legal standard.
Because we have recognized that the commissioners
findings on threatened extinction provided an independent ground
to deny the centers petition, our holding on the issue of
subspecies status does not warrant reversal. We nevertheless
recognize that the commissioner himself noted that future review
of endangerment to Cook Inlet belugas may become necessary
because of uncertainty surrounding the effects of the federal
governments planned efforts to manage subsistence harvest. If
the center believes that further review is now warranted by
intervening changes, then todays holding on the issue of
endangerment will not preclude it from filing a new petition. In
that event, todays decision on subspecies status will require the
commissioner to reevaluate his position on that issue based on a
hard look at all relevant scientific information submitted or
available at the time of the new review.
IV. CONCLUSION
The decision of the superior court is AFFIRMED.
_______________________________
1 The Marine Mammal Protection Act gives the National
Marine Fisheries Service exclusive authority to manage the
harvest of beluga whales.
2 665 P.2d 544, 549 (Alaska 1983).
3 Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska
1999).
4 Handley v. State, 838 P.2d 1231, 1233 (Alaska 1992).
5 Interior Alaska Airboat Assn v. State, 18 P.3d 686, 690
(Alaska 2001).
6 Jerrel v. Dept of Natural Res., 999 P.2d 138, 141
(Alaska 2000).
7 Ch. 115, 1, SLA 1971. The act is codified in the
Alaska Statutes as Article 3 of Title 16 AS 16.20.180-.210.
8 AS 16.20.180.
9 16 U.S.C. 1531-1599 (2000).
10 AS 16.20.190(a).
11 AS 16.20.190(a), (c).
12 AS 16.20.190(b).
13 Id.
14 AS 16.20.195.
15 AS 16.20.200.
16 AS 16.20.190(a)(1)-(4).
17 AS 16.20.190(a)(1).
18 Id. at (2).
19 Id. at (3).
20 Id. at (4).
21 The center accuses the decision of failing to
adequately consider threats to habitat posed by the risk of an
oil spill. Yet the risk of an oil spill is one that has long
existed in the Cook Inlet; and this risk has been deemed
tolerable thus far. In discussing current efforts that seek to
curb this risk by restricting future Cook Inlet development, the
decision demonstrates the commissioners forward-looking
consideration of salient information concerning this risk.
22 AS 16.20.190.
23 See, e.g., DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d
919, 928 n.50 (Alaska 2002).
24 Peninsula Mktg. Assn v. State, 817 P.2d 917, 920
(Alaska 1991) (quoting Hayes v. Charney, 693 P.2d 831, 834
(Alaska 1985)).
25 See AS 16.20.180.
26 AS 16.20.190(a).
27 Jerrel, 999 P.2d at 141.
28 Websters, for example, defines taxonomy, in its
biological sense, as a system of arranging animals and plants
into natural, related groups based on some factor common to each,
as structure, embryology, or biochemistry: the basic taxa now in
use are, in descending order from most inclusive, kingdom, phylum
. . . , class, order, family, genus, and species. Websters New
World College Dictionary at 1467-68 (4th ed. 2004).
29 AS 16.20.180.
30 Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d
1223, 1233 (W.D. Wash. 2003).
31 Indeed, we note that the commissioners emphasis on the
need for general acceptance implicitly suggests a narrow view of
scientific relevance that is now generally rejected. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 588-89 (1993); State v.
Coon, 974 P.2d 386, 394 (Alaska 1999) (rejecting rule adopted in
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which
required general acceptance as condition of admissibility for
scientific evidence).
32 Ctr. for Biological Diversity, 296 F. Supp. 2d at 1239.
33 Garner v. State, 63 P.3d 264, 269 n.22 (Alaska 2003)
(quoting Cano v. Municipality of Anchorage, 627 P.2d 660, 664
(Alaska App. 1981)).
34 See, e.g., Kelso v. Rybachek, 912 P.2d 536, 539-40
(Alaska 1996).
