Politics

Alaska v. Endangered Species Act

Concerned with recent activity regarding application of the Endangered Species Act, Gov. Sean Parnell and the state's lawyers are gearing up to invest more money than ever engaging in the legal warfare between government and conservation groups.

A major initiative would carve a role for the state in the legal battles that drive the ESA, while also funneling money to the Alaska Department of Fish and Game for enhanced studies and the state's own conservation efforts, Attorney General Dan Sullivan said.

"We think it's possible, and indeed from a state government official's perspective constitutionally required, to both develop our resources, economic opportunity, and protect our wildlife and environment," Sullivan said. "We can do both. That's the balance we're trying to achieve."

The state's focus isn't just about the polar bear or the beluga whale or the ringed seal.The state says it supports protections for animals that face threats.

The real worry is the theory underscoring the protections afforded the polar bear, and the legal precedent that has set -- one that could turn Alaska into the world's largest zoo, the state warns.

"This is unprecedented, the (polar bear) listing by (U.S.) Fish and Wildlife," Sullivan said. "You have a listing that's not based on a demonstrated decline, but on a potential future decline based on the theories of climate change continuing. What animal in Alaska would not be listed under that theory?"

But groups devoted to saving species discount the state's desire to protect animals, and admonish the government for bringing politics into play.

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"It's a waste of the state's resources," said Rebecca Noblin, an Anchorage-based staff attorney for the Center for Biological Diversity, a national environmental group leading the charge. "Climate change is the biggest threat to biodiversity we've seen. A lot of the species really are in trouble, and we need the protections of the ESA to give them a fighting chance."

A poster child

Alaska's government isn't disputing that the climate is changing and sea ice is diminishing. But, Sullivan said, the environmental groups are misusing the Endangered Species Act to intentionally shut down the state's oil industry on the grounds that it contributes to climate change, which may affect animals in the future.

The polar bear is a poster child, but not simply one that captures the world's attention as an iconic Arctic species. It's also an example of how Alaska has managed to develop resources while protecting an animal, Sullivan said.

"The last four decades we've significantly developed the North Slope -- significantly, our oil resource up there, and at the same time, the population numbers of the polar bear dramatically increased," he said.

But he's talking about worldwide numbers, which are thought to range between 20,000 and 25,000, according to the International Union for Conservation of Nature. The two populations that inhabit parts of Alaska -- the Chukchi Sea group, which shares turf with Russia, and the south Beaufort bears, which ignore the Alaska-Canada boundary -- could be in decline.

"What they're saying is misleading," Noblin said. "In the past few years, populations have begun to decline again because of loss of sea ice. In particular, the two Alaska species are now considered to be both in decline by the International Polar Bear Working Group."

The working group is part of the IUCN, which puts Alaska bears in decline or calls numbers "uncertain." Polar bear counts are not reliable, and there is often little past data with which to compare current estimates. Just the same, the group says declines in both populations are expected to continue. Most at fault? The impacts of climate change, human activity associated with industrial development, increased contaminants transported to the area by the atmosphere and ocean, and possible overharvest.

Endangered economy

Under the Endangered Species Act, critical habitat areas are drawn up for animals listed as threatened or endangered. The goal is to protect the areas the critters live in, including their food supplies, to allow populations a chance at bouncing back.


Any activities that the federal government permits or funds within those critical habitats is subject to a special consultation with the agencies charged with species protection -- the U.S. Fish and Wildlife Service for land animals, and the National Marine Fisheries Service for water-based creatures.

Critical habitat is a big concern to the state. Animals listed under the ESA are protected from "take," which includes harassment or harm.

"It's pretty broad, but you have to have a whale there," explained Doug Vincent-Lang, who heads the Alaska Department of Fish and Game's Endangered Species Act unit. "When we start talking about critical habitat, you don't have to have a whale there."

He offered salmon fishing as an example. Quotas could be slashed in critical habitat areas for the whale if the federal review indicates that salmon harvest could adversely affect the habitat the whale lives in.

While federal agencies do consider economic factors in deciding what to allow within those special areas, the consultation takes time and is costly for those developing projects -- and, Sullivan points out, decisions could be tied up for years if environmental groups launch a legal challenge.

"If an environmental group thinks it's wasn't done well, they'll sue," he said. "That has an enormous chilling effect, from our perspective, on basic resource development investment, economic investment. It makes doing business here quite expensive."

What's at stake? No less than Alaska's economic future, according to Parnell.

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With production in current oil fields on the decline, and with it the flow of dollars into the state's treasury, Alaska is looking for fresh revenue sources. The treasure chest is considered by some to lie in the oceans a few miles off the state's western and northern coasts, where the outer continental shelf shelters vast reserves of oil.

Developing those resources is paramount to Alaska's economic future, netting not only continued flow into the state treasury, but also a new boom with thousands of jobs, Parnell said.

The state is creating a "false dichotomy" between economic and environmental health, Noblin charged.

"In the Arctic, the main threat is climate change," Noblin said. "But when (animals) are already suffering from loss of sea ice and changing conditions, the last thing they need is additional stress. Industrializing the Arctic is only going to make it worse for these Arctic species."

Funding a new angle

Litigation isn't the state's preferred route. Sullivan and Vincent-Lang are quick to say they'd rather invest the money and people in collecting good data on the animals at issue, and devising conservation strategies in partnership with federal agencies.

"I think a lot of people make the state out to be litigate-happy," Vincent-Lang said. "We'll litigate when necessary, but we're going to work closely to cooperate where we can. For instance, the North Pacific right whale. We're not litigating over that. There's little doubt that there's few North Pacific right whales left in the world"

But the Endangered Species Act, almost 40 years after its creation, is all about legal standing.

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"When you intervene in a case, that means you become a party," Sullivan said. "Then you have the ability to help control the case, (or) elements of the settlement."

Vincent-Lang said the state tries to intervene as soon as a species is considered for listing, offering any available science that could set a stronger stage for federal review. And when possible, the state looks ahead to develop joint conservation strategies with the federal government for species that could come under ESA scrutiny in the future.

"We're looking in a number of areas to cooperate with the feds," Sullivan said. "We've been a little frustrated on the kind of lack of reciprocal cooperation on some of these issues. Litigation is not on the front burner of what we're intending to do, but when we feel we need to do it, we'll do it."

Asked for details on the state effort, Department of Law spokesman Bill McAllister said the strategy is too fluid to name a price tag. Parnell has said his 2011 budget, due out Dec. 15, will include $1 million for the ESA fight. That figure covers an additional full-time attorney for the Department of Law, as well as about $800,000 for outside legal help.

Some of the new money will also be devoted to the state's own development of conservation strategies and scientific research to secure a better understanding of the facts surrounding some of the world's most beloved Arctic critters. That will include about $750,000 over the next several years to fill gaps in knowledge about polar bear numbers and habits along the Chukchi Sea and the North Slope.

Parnell says regardless of the dollar cost up front, the price of doing nothing is far greater.

One funding source could be state lawmakers. The Legislative Council has approximately $1.5 million set aside to pay for a more aggressive role in climate change, global warming and endangered species act issues. The committee's chairman, Rep. John Harris (R-Valdez), wasn't available to comment on whether the state was pursuing that pot of money.

Contact Rena Delbridge at rena_alaskadispatch.com.

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