Congress passed the Endangered Species Act (ESA) as a tool to ensure that species would not become extinct. The act was meant as the ultimate safeguard and has been used successfully to prevent extinctions where species were in significant decline and facing immediate risk of extinction, and when the threats to survival were easily identifiable and manageable.
Currently eight species endemic to Alaska are listed as “endangered,” meaning they are in danger of extinction throughout all or a significant portion of their range. These include the short-tailed albatross, Eskimo curlew (likely extinct), Aleutian shield fern, Steller sea lion (western distinct population segment or DPS), bowhead whale, fin whale, beluga whale (Cook Inlet DPS), humpback whale and the North Pacific right whale. In addition, the blue whale, Sei whale, and leatherback turtle, all occasional visitors to our state, are listed as endangered.
Five species are listed as threatened, meaning they are likely to become extinct in the foreseeable future. These include the spectacled eider, Steller’s eider, polar bear, Northern sea otter (Southwest Alaska DPS), and the Steller sea lion (eastern DPS).
Eight additional species have been either designated as candidate species or are under consideration for listing. These include the Pacific walrus, yellow-billed loon, Kittlitz’s murrelet, marbled murrelet, red knot, and the ringed and bearded seals.
Recent ESA listing decisions and consultations have caused concern about how the ESA is being applied by federal agencies in Alaska. Three examples illustrate some of these concerns – the polar bear, the Cook Inlet beluga whale and the Steller sea lion.
The Center for Biological Diversity petitioned the U.S. Fish and Wildlife Service (USFWS) to list the polar bear as an endangered species due to speculative climate impacts over the next century. In May 2008 the USFWS listed the polar bears as a threatened species, based on models that indicate climate change will result in a decline of sea-ice habitats, and on speculation that lost habitat will threaten currently healthy populations with extinction over the next 50–100 years. This listing was made despite the fact that the polar bear population remains at all-time record numbers, and many underlying hypotheses and assumptions in the models remain untested.
The State submitted extensive comments questioning the science and models used by USFWS to list polar bears. The State is also challenging the decision to list polar bears as threatened. We believe the decision was premature and based on speculative model outcomes. We question whether a species that is currently at record high numbers, and which is not in significant decline should be listed solely on the basis of untested model projections. If this theory were to hold, what species could not be listed? The National Marine Fisheries Service (NMFS) recently proposed to list ringed and bearded seals based on this same theory (there are more than a million ringed seals) and USFWS is using this model to consider listing walrus.
USFWS has recently designated 187,000 square miles, an area larger than California, as critical habitat for polar bears. This is the largest designation ever for a species, and will trigger adverse modification consultations throughout the area. The State submitted extensive comments questioning the approach and the required economic assessment and is assessing its options to challenge this listing. We question whether Congress intended the entire occupied range of a species to be designated as “critical.” We also question whether USFWS adequately considered the costs of the designation as it is required to do. USFWS is also developing a recovery plan for polar bears and is considering including a greenhouse gas emission target that in its opinion would need to be achieved to delist the polar bears.
Beluga whales in Cook Inlet were over-harvested in the early to mid 1990s, causing a sharp decline in the population. In 2000, NMFS determined the whales were not in danger of extinction and chose to not list them under the ESA. The population at that time was about 375. Instead, NMFS listed the whales as depleted under the Marine Mammal Protection Act, giving the stock needed protection; an action the State requested and supported. In 2007, NMFS initiated a new status review and listed the whales as endangered based on a conclusion that the population was not increasing as fast as expected after harvest was regulated, and the fact that the population had a greater than 1% chance of going extinct within 100 years. Their analysis modeled extinction probabilities out to 300 years! The population at the time of listing was about the same as when the same agency chose to not list the species ten years earlier.
The State is challenging the decision to list beluga whales in Cook Inlet as endangered. We feel the decision is premature in that NMFS’ own model shows that the population has less than a 1% chance of extinction over the next 50 years. Put another way, the models predicted that the population has more than a 99% chance of not becoming extinct within the next half century. We also question use of model projections out to 300 years. This raises the question as to whether species that have low risks of extinction within the immediate future should be listed as endangered.
NMFS is also in the process of designating critical habitat for beluga whales in Cook Inlet. The State has submitted extensive comments questioning the scientific approach used to justify the proposed designation and has questioned the economic analysis estimating the impact of the proposed designation. NMFS has also convened a recovery team to develop recovery goals and identify needed research. The State is participating in this effort.
Steller sea lions were listed as threatened by NMFS in 1990. This was in response to significant declines due in part to illegal killings and regime shifts. NMFS established critical habitat for the species in 1993, largely protecting important haul outs and rookeries. The State supported this action, as the species was declining precipitously. In 1997, the species was delineated into two stocks, an eastern and a western. The eastern stock maintained its threatened listing while the western stock was listed as endangered. NMFS prepared a Biological Opinion and in 1998 began restricting fisheries that it identified would jeopardize the animals and/or adversely modify their habitat. NMFS also developed a recovery plan which was revised in 2008. This plan established recovery goals and identified nearly a half of billion dollars in research was needed.
The identified recovery goals required the stocks to grow at 3% per year for 30 years across the entire historic range of the species and that all threats be removed before the species could be delisted. For the western stock this translates into nearly 105,000 animals before the species can be delisted. This raises the question as to how many animals are needed to delist a species.
So what is the current status of Steller sea lions in Alaska? The eastern stock has achieved all of its recovery goals, and the threats facing the stock have been addressed. Despite this, and despite repeated requests to NMFS to delist the stock, it remains listed as threatened. To spur action, Alaska, Washington and Oregon have formally petitioned NMFS to delist this stock.
The western stock remains listed as endangered, despite the population numbering over 73,000 animals and growing across its range at between 1%–1.5% per year. Despite this growth, NMFS has released a new Biological Opinion that finds fishing in some areas of the Aleutians continues to jeopardize the stock and adversely modify its habitat, and has stated its intent to adopt further restrictions to fishing. The State questions whether further restrictions to fisheries are justified, given the rising population and lack of substantial data showing fishing is jeopardizing Steller sea lions or modifying their habitat. The State submitted comments questioning the process and foundational science used by NMFS in its Biological Opinion and is considering our options to challenge this decision.
These and other listings raise several concerns the State has with recent application of the ESA in Alaska. Should model outcomes alone lead to listing decisions regardless of current population health? Should there be a requirement that a population is in a state of significant decline before a listing is made? Should underlying assumptions within models be tested before they are used to list a species? How far into the future can population trends be reasonably predicted? Finally, what is a reasonable level of extinction risk–1%, 10%, 20%, or 25%?
For listing decisions made due to possible climate impacts, should a precautionary listing for a species be made based solely on model results of future threats? If so, should a species be listed even if the cause (climate change) cannot reasonably be addressed by the ESA? Assuming climate is changing ecosystems, how should critical habitat be established and defined? How should recovery objectives be written; especially for species at currently healthy levels (but projected to decline based solely on model results)? And ultimately, what species could not be listed due to climate change?
For recovery planning efforts, are recovery objectives set too high? Should recovery measures reflect the minimal number required to remove the risk of extinction, or be set to a number that represents some level of historic abundance or full recovery? Can threats ever be completely removed? Should recovery plans contain non-population objectives that must be achieved (greenhouse gas emission targets)?
Why is it important to address these questions? Because once a species is listed and critical habitat is established, any action that potentially jeopardizes the species or adversely modifies its habitat is subject to federal consultation under the ESA. To get an idea of the area subject to such consultations in Alaska, the ranges of species currently listed, or are now under consideration for listing, see Figure 1 on page 7. Much of Alaska’s coastline is now subject to federal oversight. It also subjects all federal agency decisions to legal challenge by third parties. This has the potential to stop or slow resource development projects, and place decisions in the hands of judges.
The State has formed a unit within the Alaska Department of Fish and Game to monitor federal actions related to the ESA and to intervene by providing comments on all ESA actions and, where necessary, to support legal challenges to unjustified actions.
Listing decisions are affecting resource development in Alaska. To assure these actions are necessary to protect the species, we must be sure that listing decisions are based on real declines and tested models, reasonable time frames for projections, reasonable levels of extinction risk, and reasonable recovery objectives.
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