Alaska wants to reverse critical habitat for threatened seals

(CN) — The State of Alaska sued to reverse the National Marine Fisheries Service’s designation of critical habitat for threatened ringed and bearded seals on Wednesday, claiming the agency overreached as to the amount of land needed to protect the two subspecies and that the habitat interferes with the state’s oil and gas exploration.

“Washington D.C. continues to see our state as the nation’s sole wildlife preserve, to the detriment of the opportunities we were promised at statehood to be able to build a robust economy,” said Alaska Governor Mike Dunleavy in a statement. “Nearly the entire Alaska coastline and vast offshore areas are designated as ‘critical’ for one species or another, ranging from whales to sea ducks to seals and sea lions. No other state is burdened by the same level of federal overreach created by unnecessarily large critical habitat designations. If other states had the same level of federal designations, the law would be rewritten.”

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. However, the move came ten 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.

According to NOAA’s website, this led to a settlement agreement under which the agency committed 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 now 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,” the complaint states. “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.”

Alaska Commissioner of Fish and Game Doug Vincent-Lang mirrored the sentiment in a statement challenging the subspecies’ listing.

“I struggle to believe that a species with a healthy, robust population of millions can be considered threatened with extinction.” said Vincent-Lang. “The best available scientific information indicates ringed seals are resilient and adjust well to varying conditions across their enormous range and are likely to continue. ESA listings should be reserved for imperiled species.”

Of course, not everyone agrees.

“The agency’s critical habitat designations are based on the best available science and should be upheld. Just because the designations are large doesn’t mean they’re unlawful,” Kristen Monsell, senior attorney for the Center of Biological Diversity told Courthouse News.

Monsell noted that Alaska’s lawsuit parallels a similar challenge the state made to the listing of polar bears under the Endangered Species Act, dealing with protected habitat that was restored by Ninth Circuit in 2016.

“The Ninth Circuit previously rejected the state’s and oil industry’s challenge to polar bear critical habitat in which they raised the same issues and made similar arguments,” wrote Monsell. “In doing so, the court recognized that critical habitat designations help ensure the overall goal of the ESA — ‘the recovery of threatened and endangered species, not merely the survival of their existing numbers.’”

Alaska’s lawsuit does not challenge NOAA’s listing of the subspecies “threatened” status, but only argues the agency designated too much land for the animal’s recovery in breach of Endangered Species Act.

“NMFS’s critical habitat designations conflict with the plain language of the ESA, which limits critical habitat to specific areas that are essential to the conservation of the species,” the complaint states, adding that the agency also failed to properly identify specific features essential to the species’ conservation or how areas containing sea ice would be protected by the designation — especially in the face of climate change.

Alaska also argues that NOAA did not explain how the impacts from industrial and commercial activities on sea ice features will be avoided or minimized through the Section 7 consultation process.

“In fact, NMFS concluded that no project modifications or other critical habitat protections are expected to result from the designation of critical habitat,” the complaint states.

Moreover, Alaska claims NOAA failed to consider the economic impacts resulting from designations and should have considered requests made by Alaska and the North Slope Borough during the commenting period to exclude certain areas.

The state says NOAA rejected these requests because the agency determined that no significant economic impacts would be caused by the designation, as “federal authorizations, permits, and funding are already subject to Section 7 consultation because the two seal species are listed under the ESA.”

“If critical habitat designation will have minimal impact on human activities, including oil and gas exploration, development and production and marine transportation, then the critical habitat will provide negligible conservation value and should not be designated,” the complaint states.

This argument, according to Berkeley Law Professor Holly Doremus, may be one of the only arguments the state has going for it. While Doremus believes that Alaska cites Weyerhaeuser v. U.S. Fish and Wildlife Service “unfairly," she said it might be helpful to show how NOAA should have excluded more land based on the economic costs.

If NOAA cannot show they considered Alaska’s objection and why they nonetheless included the areas, “The Weyerhaeuser case at least, means the courts can review the refusal to exclude,” said Doremus.

Otherwise, the professor said the case is not likely to be a winner, and the state may not even have standing to challenge the designation.

Follow @alannamayhampdx

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