The Endangered Species Act Meets Alaska€¦ · 2 What is it? How does it work? How does it...
Transcript of The Endangered Species Act Meets Alaska€¦ · 2 What is it? How does it work? How does it...
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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
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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 & 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
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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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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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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