By Angelica Li*
On October 4th, 2017, the Trump Administration announced that the Pacific Walrus would not be listed under the Endangered Species Act and afforded the protection that many environmentalists are insisting that is crucial to the walrus’s future. The Endangered Species Act (ESA) was passed in 1973 in order to protect species that are threatened through a large portion of their habitats. To have a species protected under the ESA, the United States Fish and Wildlife Service (FWS) or the National Oceanic and Atmospheric Administration (NOAA) must conclude, based on a detailed review of threats to the animal’s habitat, factors that would impact its future survival, and ongoing conservation efforts, that the species should be protected under the ESA. The FWS justified the decision not to list the Pacific Walrus on grounds that the walrus’ population is supposedly healthy and can adopt to the changing conditions of its habitat by congregating on dry land, despite the acknowledged threats posed to the walrus by melting sea ice One cannot just ignore however, that despite the official findings, the final conclusion may not be as justified, as it seems according to the test the FWS examines to determine the necessity of an ESA listing.
The Pacific Walrus, a flipper-footed mammal native to the icy world of Alaska, uses sea ice for a variety of purposes, such as calving and resting between foraging for food. Sea ice levels have been rapidly decreasing due to climate change, leading to fears of fewer food sources and an increased loss of calves. While specific populations have been difficult to quantify, the Pacific Walrus population has decreased by 60 percent since 1980. In 2008, the Center for Biological Diversity filed a petition to list the walrus. In 2011, the FWS concluded at the end of a twelve-month study that the walrus would be a candidate for listing, but other species that were more at risk would be listed first, and the final decision on the Pacific Walrus would be made at the end of September 2017. This culminated in the controversial final decision announced in October. While many politicians applauded the decision, many environmentalists disagree; the Center for Biological Diversity went so far as to call it a “truly dark day for America’s wildlife.” While this statement may be a little extreme, one should take a close look at the factors the FWS examines to determine if a species should really be listed under the ESA or not.
The FWS looks to five factors to decide if a species should be listed or not: the damage and destruction of a species’ habitat, disease and predation, overutilization of the species for commercial, recreation, or scientific purposes, inadequacy of current protection efforts, and other natural or manmade factors affecting the species’ survival. Only three are relevant to the Pacific Walrus, and those will be discussed here. There is little doubt that the Arctic sea ice that forms a major part of the Pacific Walrus’s habitat has been continuously declining over the years as a result of climate change. Just this past July, sea ice levels averaged only 3.17 million square miles, the fifth lowest July levels since 1979. In fact, it seems that the only other recent year that has recorded sea ice levels lower than that found in 2017 was back in 2012. While the five years in between have seen higher levels of ice, the trends are far from stable, and still far lower than the average from 1981-2010. These facts play into the analysis of the disease or predation of the Pacific Walrus.  As the amount of ice available to the walrus decreases, the animals tend to rest on land instead of ice, rendering them more vulnerable to predation, because the ice providing a “moving platform” that the animals could avoid predators from. This is especially true for calves, who would usually wait safely on the ice floes while their mothers hunted for food.
One must also analyze the inadequacy of current protection for the Pacific Walrus. Without the widespread reach of ESA protection, it seems that current protection for the walrus is mostly limited to background research and cooperation amongst the local native Alaskans and the nearby Russians who also like to hunt the walrus. In any case, the effects of hunting on the walrus population has long been considered minimal, but this does not mean that an ESA listing would not have a positive impact. If the Pacific Walrus is listed under the ESA, then the FWS will have to consider whether a critical habitat can be delineated for it. Based on the factors the FWS considers in delineating these areas, including space for individual and population growth, cover or shelter, sites for breeding or rearing offspring, it is highly likely that the Arctic ice floes would be considered at least a part of the critical habitat. While it would be far too extreme to expect an ESA listing to lead to major legislation to fight climate change, at the very least, action can likely be taken to mitigate the effects of the offshore oil drilling in the Arctic that the Trump Administration has recently approved by signing the newest tax reform bill, which risks tainting the ice with spilled oil.
In the face of continuously decreasing sea ice, increased threats of predation, and the benefits an ESA listing would provide, it seems clear that the FWS decision not to list the Pacific Walrus was not justified. In light of this overwhelming plethora acknowledged facts, a claim that the Pacific Walrus population is stabilizing and confidence that it could adapt to changing conditions in its habitat does not seem to be a strong enough basis from which to make this choice. Just because the walruses can congregate on land instead of ice does not erase the fact that the ice is their natural habitat that offers a far higher chance of survival. To ensure the future survival of this large flipper-footed mammal, the FWS should reexamine the scientific facts and reconsider their recent decision.
* Angelica Li is a Junior Editor on MJEAL. She can be reached at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
 Press Release, Ctr. for Biological Diversity, Trump Administration Denies Protection to Pacific Walrus Imperiled by Climate Change (Oct. 4, 2017), https://www.biologicaldiversity.org/news/press_releases/2017/pacific-walrus-10-04-2017.php.
 Endangered Species Act of 1973, 16 U.S.C. § 1531 (1973).
 Listing Under the Endangered Species Act, Nat’l Oceanic & Atmospheric Admin. Fisheries (Sept. 26, 2016), http://www.nmfs.noaa.gov/pr/listing/; ESA Basics, U.S. Fish & Wildlife Serv. (Jan. 2013), https://www.fws.gov/endangered/esa-library/pdf/ESA_basics.pdf.
 Hilary Hanson, Trump Administration Denies Endangered Species Protection to Walruses Threatened by Climate Change, Huffington Post (Oct. 7, 2017), https://www.huffingtonpost.com/entry/pacific-walrus-endangered-species-act-trump_us_59d7d43ae4b0f6eed350356b.
 Trump Administration Refuses Protection for Pacific Walrus, Voice of America News (Oct. 4, 2017, 3:45 P.M.), https://www.voanews.com/a/trump-administration-pacific-walrus/4056591.html.
 Pacific Walrus Species Profile, Alaska Dep’t of Fish and Game, http://www.adfg.alaska.gov/index.cfm?adfg=walrus.main (last visited Nov. 10, 2017).
 Hanson, supra note 4.
 Ctr. for Biological Diversity, supra note 1.
 Ctr. for Biological Diversity, supra note 1.
 Voice of America, supra note 5.
 ESA Basics, United States Fish &Wildlife Service (Jan. 2013), https://www.fws.gov/endangered/esa-library/pdf/ESA_basics.pdf.
 Phil McKenna, As Arctic Sea Ice Disappears, 2,000 Walruses Mob Remote Alaska Beach, Inside Climate News (Aug. 17, 2017), https://insideclimatenews.org/news/17082017/walrus-alaska-haul-out-climate-change-sea-ice-temperature-records.
 U.S. Fish &Wildlife Serv., supra note 11.
 U.S. Government Will Not List Pacific Walrus as Threatened Species, CBC News (Oct. 4, 2017), http://www.cbc.ca/news/canada/north/pacific-walrus-not-threatened-species-1.4326953.
 Pacific Walrus, Ctr. for Biological Diversity, http://www.biologicaldiversity.org/programs/climate_law_institute/the_arctic_meltdown/slideshow_text/Pacific_walrus.html (last visited Nov. 10, 2017).
 U.S. Fish and Wildlife Serv., supra note 11.
 Lowry, L., Odobenus rosmarus, The IUCN Red List of Threatened Species, http://www.iucnredlist.org/details/15106/0 (last visited Nov. 10, 2017).
 Listing and Critical Habitat: Critical Habitat, U.S. Fish & Wildlife Serv. (Aug. 3, 2017), https://www.fws.gov/endangered/what-we-do/critical-habitats.html.
 Listing and Critical Habitat: Frequently Asked Questions, U.S. Fish & Wildlife Serv. (Jan.12, 2015), https://www.fws.gov/endangered/what-we-do/critical-habitats-faq.html.
 Timothy Cama, Trump ‘Really Didn’t Care About’ ANWR Initially, THE HILL (Feb. 2, 2018, 1:35 P.M.), http://thehill.com/policy/energy-environment/371843-trump-really-didnt-care-about-anwr-initially.
 Charles W. Schmidt, Cold Hard Cache: The Arctic Drilling Controversy, 118 Envtl. Health Persp. 394, 395 (2010).
 Doyle Rice, 25 species, Including Pacific Walrus, Denied Endangered Protection by Trump Administration, USA Today (Oct. 5, 2017, 10:36 A.M.), https://www.usatoday.com/story/tech/science/2017/10/04/trump-administration-denies-endangered-species-protection-pacific-walrus-and-two-dozen-oth-25-specie/732704001/.
 See Samantha Raphelson, On Thin Ice: Walruses Threatened After U.S. Declines To List As Endangered, Nat’l Public Radio News (Nov. 2, 2017, 4:19 P.M.), https://www.npr.org/2017/11/02/561615478/on-thin-ice-walruses-threatened-after-u-s-declines-to-list-as-endangered.