The Endangered Species Act

Meets Alaska

Ramona Monroe

December 2016

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What is it?

How does it work?

How does it uniquely

affect Alaska?

ENDANGERED SPECIES ACT

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The “pit bull of

environmental law”

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KEY ELEMENTS

• Listings

• “Take” Prohibition

• Critical Habitat Designation

• Section 7 Consultation

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JURISDICTION

FWS: Terrestrial mammals, fish (freshwater), birds, plants, a few marine mammals

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JURISDICTION

NOAA: Marine mammals (whales, dolphins, pinnipeds) and fish, salmon/steelhead

Listings

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LISTINGS

• Threatened Species: any species which is

likely to become an endangered species

within the foreseeable future throughout all or

a significant portion of its range.

• Endangered Species: any species which is

in danger of extinction throughout all or a

significant portion of its range.

“Brink of extinction”

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LISTINGS

• Listing may be petitioned by citizens (most common)

• Services may propose listings

• Must be based on “best available scientific and commercial data available”

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LISTING FACTORS

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

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ESA LISTINGS - ALASKA

• Marine Mammals – Polar bear – Ringed seal (vacated) – Bearded seal – Northern sea otter (DPS) – Steller sea lion (DPS) – Bowhead whale – Fin whale – Humpback whale – Blue whale – Sperm whale – Cook Inlet beluga whale

(DPS)

• Birds – Short-tailed albatross – Spectacled eider – Steller’s eider (DPS) – Eskimo curlew

(extirpated)

• Terrestrial Mammals – Wood Bison

• Candidate Species – Pacific Walrus – Yellow-billed loon

• Plants – Aleutian shield fern

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Take Prohibition

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TAKE PROHIBITION & SECTION 4(D)

• Take prohibition automatically applies to endangered species

• Services may apply to threatened species via 4(d) rules

–FWS: “blanket” 4(d) rule; case-by-case limitations on take prohibition

–NMFS: case-by-case application

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“TAKE”

“Harass, harm, pursue, hunt,

shoot, wound, kill, trap,

capture or collect, or attempt

to [do so].”

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“TAKE” BY HABITAT MODIFICATION

• Must actually kill or injure wildlife,

but…

• Activity that is reasonably certain

to injure by impairing essential

behavioral patterns can be “take”

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TAKE EXCEPTIONS

• Alaska Natives

– for subsistence purposes

• Self Defense

– actions to protect yourself or any human from bodily harm

Critical Habitat

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CONGRESSIONAL INTENT

Before 1978 FWS had gone “too far”

with critical habitat designations by

“just designating territory as far as

the eyes can see and the mind can

conceive.” So, in 1978, Congress

amended the ESA to include an

“extremely narrow definition of

critical habitat.”

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CRITICAL HABITAT

“the specific areas within the

geographical area occupied by

the species . . . on which are

found those physical or

biological features essential to

the conservation of the

species…”

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POLAR BEAR CRITICAL HABITAT

• 187,157 sq. miles (larger than California)

• Largest in ESA history (when designated)

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POLAR BEAR CRITICAL HABITAT

• 3 “Units” – Sea ice habitat – Terrestrial denning

habitat – Barrier Island habitat

• Service admits no

conservation benefit – MMPA sufficiently

protective – FWS will not use to

regulate GHG emissions

• Service recognized O&G activities are not a threat

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RINGED SEAL PROPOSED CH (12/3/2014)

Litigation

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ALASKA ESA LITIGATION

VS.

(and other ANCs)

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PBCH LITIGATION

Polar Bear Crit. Hab. Designated

Lawsuits filed in AK dist. court

AK dist. ct. vacates & remands

9th Circuit reverses dist. court

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PBCH LITIGATION

Alaska District Court:

“In short, the Service cannot designate

a large swath of land in northern

Alaska as ‘critical habitat’ based

entirely on one essential feature that is

located in approximately one percent

of the entire set aside area.”

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PBCH LITIGATION Ninth Circuit:

“[T]he ESA does not require the level of

specificity that the district court insisted

upon….”

“The Act is concerned with protecting the future

of the species, not merely the preservation of

existing bears. And it requires use of the best

available technology, not perfection.”

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PBCH LITIGATION

Nov. 4, 2016: Writs of Certiorari to U.S.

Supreme Court Filed (pending)

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BEARDED & RINGED SEALS

Premise of Listings

• Ice dependent species

• Climate change forecasts to year 2100

• Forecasted reduction of Arctic ice habitat

• “Likely” to become in danger of extinction by 2100

Premise of Lawsuits

• Highly abundant

• Occupy full historical ranges

• No present adverse effects

• Magnitude of risk to species is unknown

• No basis to determine if “likely” to become in danger of extinction

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BEARDED & RINGED SEALS

May 2013

• Lawsuit filed

• AK Dist Ct

July 2014

• Dist Ct Ruling

• Vacates Rule

Oct. 2016

• 9th Cir Ruling

• Reverses

Dec. 2014

• Lawsuit filed

• AK Dist. Ct.

Mar. 2016

• Dist Ct Ruling

• Vacates Rule

2017

• 9th Circuit

• Pending…

Bearded Seal Litigation Ringed Seal Litigation

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BEARDED & RINGED SEALS

Alaska District Court:

“Troubling to this Court is that it does not appear from the Listing Rule that any serious threat of a reduction in the population of the Beringia DPS, let alone extinction, exists prior to the end of the 21st century. Indeed, the Listing Rule itself concedes that, at least through mid-21st century, there will be sufficient sea-ice to sustain the Beringia DPS at or near its current population levels.”

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BEARDED & RINGED SEALS

Ninth Circuit:

“[N]either the ESA nor our case law

requires the agency to calculate or

otherwise demonstrate the ‘magnitude’

of a threat to a species’ future survival

before it may list a species as

threatened.”

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TAKE AWAYS Alaska has been ground zero for climate-based application of

the ESA

• Listings premised on what may happen by end of century

The Federal Services can designate broad swaths of land or water as “critical habitat” so long as “essential features” are, or may in the future be, found somewhere within those broad areas, including areas unoccupied by the species

• New CH regulations provide much more discretion to Services and allow larger designations

The Ninth Circuit will apparently defer to the Services in almost all conceivable circumstances

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TAKE AWAYS

Listings can pose significant regulatory concerns for resource users and managers (state, Native, industry)

• Take prohibition, Section 7 consultations

Reliable published data and analysis is essential, and eliminates basis for unreasonable conservatively biased assumptions

The State of Alaska can serve a critically important role in developing good science and advancing science-based decisionmaking

Thanks for your time.