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Court rejects polar bear habitat rule Says Fish & Wildlife critical habitat designation is too extensive and requires evidence of presence of specific habitat features Alan Bailey Petroleum News
In an appeal against the U.S. Fish and Wildlife Service’s designation of critical habitat for the polar bear under the terms of the Endangered Species Act, the federal District Court in Alaska has ruled that the habitat designation is too broad. The court has remanded the designation back to Fish & Wildlife for rework.
“There is no question that the purpose behind the service’s designation is admirable, for it is important to protect the polar bear, but such protection must be done correctly,” wrote Judge Ralph Beistline in a Jan. 11 court order. “In its current form, the critical habitat designation presents a disconnect between the twin goals of protecting a cherished resource and allowing for growth and much needed economic development. The current designation went too far and was too extensive.”
Alaska Gov. Sean Parnell, who has been strongly opposed to the critical habitat designation, expressed his satisfaction with the court’s ruling.
“The Fish and Wildlife Service’s attempt to classify massive sections of resource-rich North Slope lands as critical habitat is the latest in a long string of examples of the federal government encroaching on our state’s rights,” Parnell said in a Jan. 11 press release. “I am pleased the State of Alaska was able to fight off this concerted effort to kill jobs and economic development in Alaska.”
Issued 2010 Fish and Wildlife issued the critical habitat designation in November 2010 following the agency’s October 2009 listing of the polar bear as threatened under the Endangered Species Act. The designation of critical habitat, consisting of features critical to a species’ survival within an area of territory, is a legal requirement spelled out in the act.
The prime threat to the polar bear is presumed to be the loss of Arctic sea ice as a consequence of global warming. The animals spend much of their lives on the ice, preying on seals that live in the Arctic Ocean. Fish and Wildlife specified as critical habitat all areas of Arctic Alaska offshore continental shelf where water depths are 300 meters or less, as well as barrier islands and spits along Alaska’s northern coast, and on-land bear denning habitat along the coast.
The total critical habitat area amounted to 187,157 square miles and included territory that accounts for much of Alaska’s oil production.
Concerned about the possible impact of the critical habitat designation on economic activity in the Arctic, including oil industry activity and subsistence hunting, several organizations, including the Alaska Oil and Gas Association, the American Petroleum Institute, Arctic Slope Regional Corp., the State of Alaska and the Inupiat Community of the Arctic Slope, appealed the designation in District Court, with the court consolidated various appeals into a single appeal case.
Land designation rejected In rejecting the critical habitat designation Beistline took exception to the way in which Fish and Wildlife had specified the polar bear critical habitat on land, including on the Beaufort Sea barrier islands. The agency had said that the on-land critical habitat features consist of bear den sites; access between den sites and the coast; the presence of sea ice close to the denning area; and the absence of disturbance from human activities.
While designating as critical habitat the whole of a huge coastal area that can include the onshore habitat features, Fish and Wildlife had only presented evidence of the locations of den sites and sea-ice access, with no documented evidence for specific locations where the other two habitat features exist. Moreover, the evidence on record indicated that polar bear dens, for example, only exist in about 1 percent of the total designated area, Beistline wrote.
“The (Fish and Wildlife) Service cannot designate a large swathe of land in northern Alaska as ‘critical habitat’ based entirely on one essential feature that is located in approximately one percent of the entire area set aside,” Beistline wrote.
Beistline applied a similar argument in his critique of the critical habitat designation for the barrier islands and spits along the northern Alaska coast.
Offshore accepted But Beistline upheld Fish and Wildlife’s view that much of the Arctic offshore can legally be considered critical habitat for the polar bear, despite objections that this specification exceeds the intent of the Endangered Species Act and claims that the agency had not provided sufficient evidence that polar bears occupied the entirety of this vast region at the time of the species’ listing.
By limiting the area of the habitat designation to the area of ocean within a 300-meter water depth the agency had not, in fact, specified the entire area of the ocean that polar bears could inhabit, Beistline wrote. As a consequence, the designation complies with a statutory requirement that the designated area must not include the entire possible geographic range of the species, he wrote. And the Endangered Species Act does not require proof that any specific portion of a designated habitat area is actually occupied by the protected species at the time of the designation — if the bears are likely to be found in an area, the agency can use its expertise in assessing whether the area is “occupied” by the species, he wrote.
Economic impacts Beistline also upheld the Fish and Wildlife position on the potential economic impacts of the critical habitat designation — the agency had estimated a total cost of $669,000 over a 29-year period, this being the cost of additional government consultations emanating from the habitat designation. Under the terms of the Endangered Species Act, a critical habitat designation must take into account its economic ramifications.
People opposing the designation claimed that agency’s cost estimate was wildly optimistic. The State of Alaska and Arctic Slope Regional Corp., the Native regional corporation for the North Slope, commissioned an independent review that concluded that the designation could cost hundreds of millions or even billions of dollars in the next 15 years. Parnell said that consultations involving the critical habitat would slow economic growth in Alaska and the rest of the United States.
The law merely requires that the regulatory agency consider all economic impacts of a critical habitat designation, something that the Fish and Wildlife Service had clearly done during its communications with parties impacted by the designation, Beistline wrote. The agency had considered but rejected potential costs of an uncertain or speculative nature, leaving the consulting costs as the only reasonably certain economic outcome.
“While it is arguably misleading for the service to represent that the total potential incremental cost of the designation actually includes a complete picture of all the costs that could be incurred as a result of the designation, the statute and regulation merely state that the service must solely consider all such costs,” Beistline wrote. “The service then has complete discretion over the application of such analysis. … It is evident from reading the record that the service at least generally, if not specifically, considered all the incremental costs presented to it by the various parties.”
Cooperation with state And, contrary to a claim by the State of Alaska that the Fish and Wildlife Service had not met its legal obligation to cooperate with the state “to the maximum extent practicable,” the agency had fully complied with that obligation through actions such as holding public meetings requested by the state, consulting with the state and alerting the state to every opportunity to participate in the designation process, Beistline wrote.
“Although plaintiffs may deem the service’s cooperation to be of little real significance in the final production of the designation, the court does not find any instance in the record in which the service does not comply with its relatively non-demanding, maximum-extent-practicable interpretation,” Beistline wrote.
However, the Fish and Wildlife Service failed to comply with the appropriate statutes by not providing the State of Alaska with an adequate explanation of why the agency’s final rule did not incorporate comments that the state had provided to the agency, especially since those comments expressed disagreement with the proposed rule, Beistline said.
Alaska Native corporations had claimed a lack of consultation with them as a reason to declare the critical habitat designation invalid. But Beistline rejected this claim, saying that this type of consultation is not a legal requirement under the legal circumstances in which the designation was prepared.
Beistline also rejected some other claims made by the organizations appealing the designation, including questions over whether special management is required for habitat features and whether there can be non-disturbance zones around female bears with cubs on barrier islands.
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