UNITED STATES DISTRICT COURT NORTHERN ... - Bizjournals

Case 1:13-cv-03241-AT Document 1 Filed 09/30/13 Page 53 of 64122. The sixth possible source of additional mortality cited by Defendantsis pollution. However, the permit denial states: “The effects of pollution onbeluga whales are difficult to determine and there is no basis for integratingpollution into an assessment of biological removal.”123. It is arbitrary, capricious, and not in accordance with law forDefendants to assert, in the absence of any evidence and in the presence ofevidence to the contrary, that additional sources of mortality cause the totalremovals from the number of beluga whales found in the Sakhalin-Amur area toexceed PBR. There is a marked lack of data supporting Defendants’ conclusion.In fact, the IUCN panel found there was no evidence to suggest that any takesbeyond those for public display are anything but minimal, and certainly not highenough to exceed PBR when combined with collections for public display.124. It is also arbitrary, capricious, and not in accordance with law forDefendants to calculate PBR using a methodology not applied to any other permitapplicant. Defendants compared the alleged number of removals to the IUCNpanel’s PBR number. However, as described above, the IUCN panel used amethod to calculate the population level number used in the PBR equation that ismore conservative than the method used by Defendants in calculating PBR underthe MMPA. If Defendants calculated PBR using the same method for determining53