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Judge says NMFS critical habitat for endangered species too broad
Alan Bailey for Petroleum News
In a Sept. 26 order, Judge Sharon Gleason of the federal District Court in Alaska upheld an appeal by the state of Alaska against the National Marine Fisheries Service's designation of critical habitat for bearded and ringed seals, offshore Arctic Alaska. The judge requires NMFS to rework its critical habitat definition. The extent of the seals' critical habitat would impact the potential to conduct activities in the Arctic offshore, including oil exploration and development.
Listed as endangered In 2012 NMFS listed the seals as endangered under the Endangered Species Act and subsequently determined the critical habitat designation -- the ESA requires the designation and protection of critical habitat for protected species. In February 2023 the state initiated the lawsuit challenging the critical habitat designation. The Center for Biological Diversity subsequently joined the lawsuit.
To figure out what to designate as critical habitat, NMFS determined the types of offshore snow and ice conditions that the seals depend on. However, the agency found that the areas in which these conditions are found vary from year to year "or even day to day," depending on factors such as the time of the year, the local weather and the oceanographic conditions. Consequently, the agency designated a single continuous area amounting to more than 160 million acres around the Alaska coastline as critical habitat. The state, in its lawsuit, argued that this designation was much too broad and violated an ESA requirement to limit critical habitat to specific areas that are essential to the conservation of the species.
Why the entire area? In ordering a rework of the critical habitat designation, Gleason argued that NMFS had failed to provide an explanation for why the entire designated area is indispensable to the seals' survival and recovery. Nor had the agency considered any efforts by foreign countries to conserve the seals, Gleason wrote. Gleason also agreed with the state that NMFS had erred in deciding not to consider the exclusion of some areas from the critical habitat designation, where these exclusions might have minor impacts on seal protection while bringing economic benefits to the state and to North Slope residents.
Gleason did find that NMFS had provided an adequate explanation of how it could identify areas where features essential to the seals' survival could be found. And the judge agreed with NMFS that the agency had adequately considered the potential threats that might impact the critical habitat at some time in the future. The judge also disagreed with the state's argument that the agency was required to specifically determine that the critical habitat designation was prudent.
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