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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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
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ENVIRONMENT, and ALASKA  )    Supreme Court No. S-10887
                              )    Superior Court No. 3AN-00-3704
               Appellants,         )
          v.                  )    O P I N I O N
FRANK RUE, Commissioner,      )
ALASKA DEPARTMENT OF          )    [No. 5826 - July 30, 2004]
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.


          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.


          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.


     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


     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


            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


          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


          2.     Meaning  of  the  acts  species  and  subspecies


          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.


          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

     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).