The Endangered Species Act in Alaska:

balancing responsible development

Is it working?

By Kati Capozzi

Brief History of the ESA

Enacted in 1973 by President Nixon, the Endangered Species Act (ESA) was put in place to protect and recover imperiled species, including plants, and the ecosystems upon which they depend. The near extinction of the bison, and the disappearance of the passenger pigeon were the driving force behind a call for wildlife conservation beginning in the early 1900s and the landmark ESA legislation was Congress’ answer after many previous acts were deemed insufficient. The first animal listed as endangered was the peregrine falcon.

The ESA is administered by two federal agencies, the United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). USFWS has responsibility over freshwater fish and land species as well as three marine species: polar bear, Pacific walrus, and sea otter. NMFS oversees all other marine species.

A species must be listed under the ESA if it is threatened or endangered due to any of the following five factors:

• present or threatened destruction, modification, or curtailment of its habitat or range;
• over-utilization of the species for commercial, recreational, scientific, or educational purposes;
• disease or predation;
• inadequacy of existing regulatory mechanisms; and
• other natural or manmade factors affecting its continued existence.

The ESA requires that listing determinations be based solely on the best scientific and commercial information available; economic impacts are not considered in making species listing determinations. Any person or organization may petition to list a species as threatened or endangered, reclassify a species, or revise critical habitat. Alternatively, USFWS and NMFS may also initiate a status review of a species.

ESA in Alaska

In Alaska, there are 13 species listed as endangered, 10 species listed as threatened, and three species that are candidates for listing or are currently under review. A ‘candidate for listing’ means that NMFS or USFWS has determined that the species should be listed as threatened or endangered but does not have the time or resources to move forward with the listing.

Compared to many other states (some have hundreds of endangered and threatened species), Alaska has a low number of listed species. When dealing with the ESA, Alaska’s main advantage has been the state’s remoteness and isolation, according to Alaska’s Department of Fish & Game (ADF&G).

“Many species that are rare, endangered, or have been extirpated elsewhere in the United States are thriving in Alaska,” ADF&G noted on its website. “Our geographical isolation, relatively recent growth in population, limited development, small agricultural industry, conservative laws on the introduction and importation of exotic animals, and a little luck all contribute to this favorable condition.”

Don’t let the comparatively low number of ESA listings in Alaska fool you, though. The Last Frontier is under a constant microscope of environmental activists who are eager to stop responsible development in its tracks. Their eagerness is only matched by their creativity used when petitioning to have species listed. One trend that has gained popularity over the last several years has been the claim that due to projected future habitat loss, certain species could suffer from a population decrease. What has been ignored is that, in many cases, the species being petitioned are at historic population highs.

A recent example of this was the 2010 status review and eventual ‘threatened’ listing of the bearded seal, which was initiated by NMFS. Using a 100 year modeling forecast, the agency made a speculative decision on what might happen if the species responds in a way that’s never been observed, and if the future impact is of a magnitude that is scientifically impossible to determine.

Fortunately, this listing was challenged in court by the Alaska Oil and Gas Association, the American Petroleum Institute, a coalition of the oil and gas industry, Alaska Native groups, and Alaska Governments. It was found by a U.S. District Court to be “inherently arbitrary and capricious.” The listing was vacated immediately.

Sue and Settle

Scientific wins like the one just described are few and are costly. Some in Congress have raised concerns that the citizen petition mechanism in the ESA has resulted in a never-ending cycle of lawsuits and that attorney fees provisions have been abused and promote litigation. Laws such as the Equal Access to Justice Act, and citizen suit provisions such as Section 11 of the ESA, require litigants to recover attorneys’ fees (and sometimes costs, too) from the federal government. Some statutes require the litigants to be a prevailing party, others just require that the litigation be a facilitator for governmental action.

In either case, the government pays millions of dollars to activist lawyers who succeed in persuading the courts to order something that the government did not do, or did not want to do.

Most upsetting is the growing consensus that the over-zealous citizen petition tactic impedes true species recovery while stripping away USFWS resources and hindering economic and social interests.

Based upon citizen petitions, USFWS and NMFS are scheduled to make listing determinations on more than 750 species. The majority of these petitions have been filed by Center for Biological Diversity. Wild Earth Guardians, another environmental group active in ESA listing petitions, recently settled with USFWS regarding determinations for over 600 species.

Dwindling resources at USFWS and NMFS and the unprecedented number of petitioned species may have negative consequences. There is concern that listing decisions regarding some species will be based upon incomplete or little scientific information. USFWS has indicated that the number of petitioned species far exceeds USFWS resources and the reasonable workload.

What can be done?

The ESA impacts every industry that RDC represents. Fortunately, the State of Alaska has built a solid track record of getting ahead of many of the petitioned species by funding scientific studies and providing crucial data to the agencies that they would not have previously had access to nor been able to commit resources to.

“Without this investment in research, these decisions would be made on less data and more speculation, and challenges of poor outcomes would be hampered,” said Doug Vincent Lang of ADF&G.

As a result of these efforts, Alaska has seen recent success in either preventing listings from occurring at all, or providing the information needed to prove that the species should be delisted. Examples include keeping the yellow-billed loon, the Kittlitz murrelet and the Lynn Canal herring from being listed.

Delistings have also taken place in part thanks to state research. Last year, the eastern distinct population segment of the Steller sea lion was delisted and a petition is currently in to NMFS requesting the Central North Pacific Humpback Whale be classified as its own distinct population segment and be delisted. A determination is expected on that request by the end of the year.

The reality is that the petitions to list species are not slowing down. Until major ESA reform is addressed (there has not been a single comprehensive change of ESA legislation since 1988), the best effort we can make as industry and as state and local governments is to support and fund scientific research. Sound science is good for industry, and good for the health and perpetuation of the species of Alaska.

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