Endangered Species Act Issues in Alaska

Brad Meyen and Andrew Naylor Alaska Department of Law Natural Resources Section

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Laws Affecting ESA Issues     

Endangered Species Act of 1973 Marine Mammal Protection Act of 1972 Administrative Procedure Act National Environmental Policy Act Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973  Alaska Endangered Species Act 2

ESA Listing Process     

Public petition or Service initiated 90-Day finding--office files 12-Month status review--public comment Publish decision/proposed rule--public comment Final listing decision (critical habitat at same time or later)  Develop recovery plan  Species change of status--similar process

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ESA Section 4 Secretary uses best scientific and commercial data available to consider threats to a species from: (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; (E) other natural or manmade factors affecting its continued existence.

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Difference Between Threatened and Endangered Definitions  Endangered--any species which is in danger of extinction throughout all or a significant portion of its range  Threatened--any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range  Threatened species and take (FWS/NMFS) 5

Economic Issues  Not part of listing decision. But if critical habitat is designated at time of listing, economic review must occur during same period.  To comment on proposed designation of critical habitat at same time as listing requires prompt review economic analysis.  Baseline and Coextensive approach 6

WHAT HAPPENS AFTER LISTING? Section 4: Critical Habitat: Designated if not done at time of listing Section 9: Prohibits the “take” of a listed species. Under Section 3 take includes “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.” Section 7: Federal agencies shall “insure” actions do not jeopardize species or destroy/adversely modify critical habitat. 7

Section 7 Consultation      

Federal Nexus Informal v. Formal Biological Assessment v. Biological Opinion Reasonable and Prudent Alternatives Incidental Take Statement “God Squad” Exemption

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Section 7 Consultation  Joint FWS and NMFS Consultation handbook: – http://www.nmfs.noaa.gov/pr/laws/esa/policies.h tm#consultation – http://www.fws.gov/endangered/esalibrary/index.html#consultations

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Alaska ESA Examples

Aleutian Canada Goose

Polar Bear

Steller Sea Lion

Beluga Whales in Cook Inlet

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Aleutian Canada Goose – Listed as endangered in 1967 – Recovery Plan adopted in 1974  Predation by introduced foxes was identified as the main threat.

– Reclassified to threatened in 1990 – Delisted in 2001 as recovered

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Steller Sea Lion – Listed as threatened in 1990, critical habitat designated in 1993 – Western DPS reclassified as endangered in 1997, Eastern DPS remained listed as threatened

– Petition to delist Eastern DPS in 2010 with proposed rule in 2012 – Fishery BiOp prepared as part of Section 7 consultation  Fishing restricted beginning in 1998

– Recovery Plan adopted in 1992 and revised in 2008  Recovery objectives established – Grow at 3% per year for 30 years – Growth must occur throughout range – Threats facing the stocks eliminated and monitored

 Research needs identified: – Total estimated cost ~$430 million

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Steller Sea Lion  Current Status – Eastern DPS: Remains listed threatened  Recovery objectives achieved  Delisting rule proposed in 2012 – Western DPS: Remains listed endangered  Population at ~ 70,000 animals

 New BiOp for Western DPS 2010 – New BiOp resulted in litigation over JAM finding/RPA required to avoid JAM – Example of how litigation may arise in Section 7 context 13

Polar bear  FWS was petitioned to list polar bears because of climate change

 FWS listed polar bears in 2008 as threatened based on: – climate change will result in a decline of sea ice habitat – lost habitat will threaten world-wide polar bear population with extinction over the next 50-100 years – Used 45 year “foreseeable future”

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Polar bear  Litigation Status – The State (among others) challenged the decision to list the polar bear as threatened. The case was consolidated in DC with other cases. The court upheld the listing. – The State appealed the District Court’s ruling. – Oral argument was held in DC Circuit Court of Appeals on October 19, 2012. No decision yet.

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 Critical Habitat – Final Rule Designated 187,000 square miles of critical habitat.

– Challenged by three lawsuits filed in the District of Alaska—Final Rule Vacated and Remanded.

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Beluga Whales in Cook Inlet  Beluga whales over-harvested in 1990s  In 2000, NMFS determined that the whales were not in danger of extinction and decided not to list under ESA  NMFS instead found the whales to be depleted under the MMPA  In 2008, NMFS listed beluga whales as endangered based on: – population was not increasing as fast as expected after harvest was regulated – the population had a greater than 1% chance of going extinct within 100 years

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Beluga Whales in Cook Inlet Post Listing – Critical habitat was designated for 3,016 square miles of Cook Inlet. – NMFS is developing a recovery plan.

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For climate change related listings: _________________________________________________  How should modeling of climate change be used?  Is it possible to maintain all species in their historic ranges if the ecosystem changes?  For changing ecosystems, how should critical habitat be defined?  How should recovery objectives be written, especially for listed species currently healthy and abundant in number?  What species could not be listed because of climate change?

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Federally Listed Endangered Species Short-tailed albatross - FWS Eskimo curlew - FWS Aleutian shield fern - FWS Steller sea lion, western DPS - NMFS Bowhead whale - NMFS Fin whale – NMFS Cook Inlet beluga whale - NMFS Humpback whale - NMFS Other rare species: North Pacific right whale, Blue whale, Sei whale, and the Leatherback turtle - NMFS 20

Federally Listed Threatened Species Spectacled eider - FWS Steller's eider (AK breeding pop) – FWS Polar bear – FWS Northern sea otter, southwest Alaska DPS - FWS Steller sea lion, Eastern DPS – NMFS Bearded and Ringed Seals – NMFS

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Species recently considered or under consideration for listing Pacific walrus, Yellow-billed loon, Kittlitz’s murrelet, Red Knot, Alexander Archipelago Wolf, Prince of Wales Flying Squirrel--FWS 43 species of coral, freshwater seals in Lake Iliamna--NMFS

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Thank you. Questions?

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