The Endangered Species Act Meets Alaska Ramona Monroe December 2016
ENDANGERED SPECIES ACT What is it? How does it work? How does it uniquely affect Alaska? 2
The pit bull of environmental law 3
KEY ELEMENTS Listings Take Prohibition Critical Habitat Designation Section 7 Consultation 4
JURISDICTION FWS: Terrestrial mammals, fish (freshwater), birds, plants, a few marine mammals 5
JURISDICTION NOAA: Marine mammals (whales, dolphins, pinnipeds) and fish, salmon/steelhead 6
Listings
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 8
LISTINGS Listing may be petitioned by citizens (most common) Services may propose listings Must be based on best available scientific and commercial data available 9
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 continued existence. its 10
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 11
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Take Prohibition
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-bycase limitations on take prohibition NMFS: case-by-case application 14
TAKE Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to [do so]. 15
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 16
TAKE EXCEPTIONS Alaska Natives for subsistence purposes Self Defense actions to protect yourself or any human from bodily harm 17
Critical Habitat
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. 19
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 20
POLAR BEAR CRITICAL HABITAT 187,157 sq. miles (larger than California) Largest in ESA history (when designated) 21
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 22
RINGED SEAL PROPOSED CH (12/3/2014) 23
Litigation
ALASKA ESA LITIGATION (and other ANCs) VS. 25
PBCH LITIGATION Polar Bear Crit. Hab. Designated Lawsuits filed in AK dist. court AK dist. ct. vacates & remands 9th Circuit reverses dist. court 26
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. 27
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. 28
PBCH LITIGATION Nov. 4, 2016: Writs of Certiorari to U.S. Supreme Court Filed (pending) 29
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 30
BEARDED & RINGED SEALS Bearded Seal Litigation Ringed Seal Litigation May 2013 Lawsuit filed AK Dist Ct Dec. 2014 Lawsuit filed AK Dist. Ct. July 2014 Dist Ct Ruling Vacates Rule Mar. 2016 Dist Ct Ruling Vacates Rule Oct. 2016 9th Cir Ruling Reverses 2017 9th Circuit Pending 31
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. 32
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. 33
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 34
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 35
Thanks for your time.