(CN) — Alaska’s fight against burdensome seal protections continued Thursday, when attorneys for the state and federal government debated whether the feds properly allocated a vast coastal area under the Endangered Species Act.
In April 2022, the National Marine Fisheries Service — also known as NOAA Fisheries — designated critical habitat off the coast of Alaska for Arctic ringed seals and the Beringia distinct population segment of bearded seals as required by the Endangered Species Act. The move came 10 years after the agency listed both species as “threatened” under the act, as actions to designate critical habitat for the seals were deferred when NOAA’s proposed listings were challenged in court.
NOAA’s legal challenges led to a settlement that allowed the agency to complete a final determination of critical habitat in 2022. But now that NOAA has designated critical habitat — 257,000 square miles for the ringed seal and 273,000 square miles for the bearded seals — Alaska claims too much land was designated and that the species are not even threatened.
“By comparison, the state of Texas contains 268,000 square miles while California contains 163,000 square miles,” Alaska wrote in its 2023 complaint. “All of this critical habitat is occupied by members of the two seal species, which are among the most common marine mammals found in the Arctic region.”
Yet Alaska does not officially challenge NOAA’s listing of the seal’s “threatened” status — only that the agency designated too much coastal area for the animal’s recovery.
Within its opening brief, Alaska specifically argues that NOAA failed to identify specific physical or biological features essential for seal conservation because the task was so-called impractical given the nature of sea ice.
On Thursday, however, attorneys for NOAA and intervenor Center for Biological Diversity pushed back on this argument by explaining how sea ice — which is essential for the seal’s breeding and survival — is an impermanent fixture that melts and travels constantly.
“The plaintiffs ask for more specific and smaller areas, but they ignore the dynamic nature of this habitat,” said center attorney Emily Jeffers. “And the service here is required not to use the best possible data, but the best data available. And that is what they did here in making their critical habitat designations.”
Alaska also argues NOAA did not meaningfully consider the economic impacts of these designations — especially whether it should exclude areas along Alaska’s North Slope — and assumed that no project modifications or other requirements would ever be imposed to protect critical habitat areas.
Representing the state, attorney Norman James of Fennemore Craig PC often questioned why the designation is necessary if the critical habitat is already protected under the Marine Mammal Protection Act and Section 7 consultation under the Endangered Species Act that allows federal agencies to permit industrial activities in critical habitats. That drew a question from U.S. District Judge Sharon Gleason, a Barack Obama appointee.
“I wonder, why is the state concerned enough here to appeal the designation if there's no indication it would increase protection?” Gleason asked.
To this, James said it’s likely a practical matter between the agency’s involvement in lawsuits from groups that oppose oil and gas development — a vital state resource that he argues should trigger a section of the Endangered Species Act that requires consideration of an action’s economic impacts.
NOAA attorney Astrid Cevallos had an answer to this point as well, summarizing Alaska’s argument as one assuming that a lack of significant economic burdens infers no need to designate critical habitat.
Cevallos also argued none of the oil and gas development at issue would trigger consultation based on critical habitat designation alone and that, as noted by NOAA’s final rule, the presence of designated critical habitat for other marine mammals hasn't prevented oil and gas development before.
Before taking the arguments under advisement, Gleason heard James’ rebuttal on how NOAA failed to justify the massive designation as essential for the seal’s persistence. For that argument, James touched on a 2023 Ninth Circuit ruling where a judge panel vacated the U.S. Fish and Wildlife Service’s designation of critical habitat for jaguars that are primarily found outside of the U.S.
“To simply ignore the fact that we have a large population and extensive habitat outside the U.S. means you're not doing the full analysis,” James said, adding that nobody knows whether the U.S. designations are truly essential for seal conservation.
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