Court Rejects Polar Bear Critical Habitat Designation

Industry, Alaska Native groups, and state and local governments scored a significant win when U.S. District Judge Ralph Beistline ruled that the U.S. Fish and Wildlife Service’s (USFWS) proposed critical habitat designation for the polar bear did not meet the requirements of the Endangered Species Act (ESA).

The current designation of 187,157 square miles of the Arctic – an area larger than the State of California – as critical habitat “went too far and was too extensive,” the judge wrote in his opinion. The proposed area accounts for much of Alaska’s oil production.

“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,” Governor Parnell said. “I am pleased the State of Alaska was able to fight off this concerted effort to kill jobs and economic development in Alaska.”

The State of Alaska and others, including the North Slope Borough, the Alaska Oil and Gas Association, Arctic Slope Regional Corporation, and a broad coalition of representatives of the Alaska Native community, challenged the critical habitat designation under the Endangered Species Act (ESA).

Of particular concern to the District Court were decisions by the USFWS to list extensive areas of land as critical habitat in the absence of evidence demonstrating features essential to polar bears were even present. As stated by the court, “[USFWS cannot] designate a large swath 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.”

“The court made the right decision in rejecting this unwarranted listing of critical habitat by the Service,” said Attorney General Michael Geraghty. “Protecting polar bears is a priority for us all, but such measures must carefully comply with the requirements of the statute.”

The State of Alaska also challenged the USFWS for failing to follow appropriate legal procedures in dealing with the comments and concerns raised by the State. The District Court agreed, holding that USFWS “failed to follow applicable ESA procedure by not providing the State with adequate justification for the State’s comments not incorporated into the Final Rule.”

Judge Beistline noted, “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. 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.”

The court vacated and remanded the final rule to correct the substantive and procedural deficiencies.

“We are very encouraged that Judge Beistline looked at the evidence and came to this conclusion,” said Rex A. Rock Sr., President and CEO of Arctic Slope Regional Corporation (ASRC). “Polar bears already had extensive protections under the Marine Mammal Protection Act and the Endangered Species Act. The designation plan, as presented, would have needlessly hurt our region and other communities along the western Alaska coastline down to Hooper Bay without providing any additional conservation benefits.”

ASRC and the North Slope Borough have been leading a coalition of Alaska Native groups from the North Slope, Northwest and Southwest Alaska to fight the massive critical habitat designation in court.

“This decision is good news for the oil and gas industry, for Alaska Natives, and for the State of Alaska,” said Kara Moriarty, Executive Director of the Alaska Oil and Gas Association (AOGA). “The judge agreed that USFWS overstepped its bounds when it designated an area the size of California as polar bear critical habitat, despite abundant polar bear populations. We’re heartened to see this kind of overreaching behavior rejected.”

In 2011, AOGA and the American Petroleum Institute (API) jointly filed a lawsuit challenging the designation. The plaintiffs believed that such a large, unnecessary critical habitat designation was unlawful and would stymie oil and gas development in an area that holds immense promise for future resource development.

AOGA and API were represented by the law firm, Stoel Rives LLP, which also successfully represented AOGA in recent polar bear ESA listings and 4(d) Rule litigation.

“AOGA members care as much about protecting Alaska’s environment and wildlife as anyone else, but we also recognize the need to responsibly develop our natural resources in order to keep the state’s number one economic driver healthy,” said Moriarty. “We are convinced that development can be done safely, and without major impacts to the wildlife that call these areas home.”

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