Legislature(1999 - 2000)
04/05/2000 01:07 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 60 - HABITAT FOR ENDANGERED EIDER DUCKS Number 1100 CO-CHAIR HUDSON announced that the next order of business would be HOUSE JOINT RESOLUTION NO. 60, opposing the designation of millions of acres of Alaska as critical habitat for the Spectacled Eider and the Steller's Eider. [It was sponsored by the House Resources Standing Committee.] REPRESENTATIVE GAIL PHILLIPS, Alaska State Legislature, stated that in February of this year they heard that the U.S. Fish and Wildlife Service (USFWS) was going to propose a rule change to designate huge marine areas of Alaska as critical habitat for the Spectacled Eider and the Steller's Eider. The proposed rule change would take up 75,000 square miles; it is primarily Alaskan coastline but also includes a huge amount of land bordering the National Petroleum Reserve-Alaska (NPR-A) on the North Slope, a huge amount in the Yukon-Kuskokwim Delta, a huge amount inland on the Seward Peninsula, a huge amount on the Bering Sea, almost all of Cook Inlet, almost all surrounding Kodiak Island, and all surrounding the Aleutian Chain. REPRESENTATIVE PHILLIPS stressed that it is one of the worst rulings that has come out of USFWS - to declare a critical habitat area this intense - since she has been in the legislature. The eiders were listed under the Endangered Species Act (ESA) as threatened in the early 1990s. At that time, it was not considered prudent to establish critical habitat, because potential habitat lost is not considered a factor in the recovery of the species. In September of last year, the [U.S.] Department of Interior entered into an agreement to reevaluate this critical habitat determination based on a lawsuit by a coalition of environmental groups and the previous court rulings to similar cases that overturned critical habitat determinations. Therefore, HJR 60 says that the Alaska State Legislature does not support the critical habitat designation; they are requesting the Governor to pursue legal action against the USFWS if the regulations are adopted, and it urges the delegation to assist in blocking the adoption of the final regulation. REPRESENTATIVE PHILLIPS further stated that she had met with [U.S.] Senator Stevens specifically and had made him aware of the issue. His comment was that this is such a huge issue and such a huge designation of land withdrawal in Alaska that it would be the three of them - U.S. Senator Stevens, U.S. Senator Murkowski and Congressman Young - who would take up the fight. She noted that the designation of critical habitat in those areas would adversely affect resource development, subsistence, commercial fishing and just about everything else in those areas. The proposed ruling fails to identify the areas that are truly necessary for recovery of the species; therefore, they are not getting at what they intended to get at, by these proposed rulings. She stressed that Alaska needs to send a strong message that there has been enough land withdrawn in Alaska already. CO-CHAIR MASEK wondered how the Administration feels about the issue. REPRESENTATIVE PHILLIPS indicated that she has not heard from them. [Representative Kapsner indicated that they were invited to attend this meeting.] REPRESENTATIVE PHILLIPS stated that they have not had an attack on lands in Alaska this large since the Carter Administration "lock-up." CO-CHAIR HUDSON pointed out that the "WHEREAS" on page 2, line 4, indicates that 65 percent of the area designated as critical habitat is already within federal wildlife refuges, and this current designation would pretty much lock up the rest of the state except for a few areas in Southeast Alaska. REPRESENTATIVE WHITAKER wondered what they can do to stop the critical habitat designation from occurring, other than [passing] a resolution. Number 1526 RON SOMERVILLE, Resource Consultant, Senate and House Majorities, Alaska State Legislature, responded that the ESA requires that critical habitat be designated for any species that is listed as threatened or endangered. The agencies have avoided that in the past because if they determine that the designation of critical habitat does not really enhance the recovery of the species, then they avoid that. He pointed out that it is probably an oversight by the agencies. That is why the court cases recently have been focused on the identification of critical habitat; the implementation of how the critical habitat would fit into a recovery plan for a particular species has a lot of unknowns, whereas the taking of a species that is endangered has been dealt with a lot in the courts. It has been the missing element that the environmental community looks upon. MR. SOMERVILLE stressed that one thing that they are being told by the USFWS is "the establishment of critical habitat does not mean anything," which Mr. Somerville said is not true. He indicated that in the packet there is a memorandum from Bill Horn which points out that under existing law the only thing that requires an approval by the USFWS for an activity would be if someone were actually "taking" an animal. He referred to the Northern Spotted Owl as an example and said that the impacts of that designation on private lands was phenomenal. For instance, it had a tremendous impact on the ability of people to harvest their own timber on private lands, even though it was unclear what the critical habitat designation meant. MR. SOMERVILLE said the same is true here. All the marine habitat of both the Spectacled Eider and Steller's Eider that is designated as critical habitat is really based upon the fact that an animal or bird may have been seen there at one time. Any activity on the private lands in the lower Yukon-Kuskokwim Delta or south of Barrow would require an approval by the USFWS, regardless of whether the activity impacted the species. Mr. Somerville emphasized that he does not want anyone to be misled into believing that the critical habitat designation does not affect private land or that it does not mean anything, because it does. Number 1764 REPRESENTATIVE PHILLIPS pointed out that Kachemak Bay has been designated as a critical habitat area. There, residents would like to put in small test-site clam farms. There are over 700,000 acres of shoreline in Kachemak Bay, and they want to put in a 10-acre clam farms. The ADF&G is forbidding it because it is a critical habitat area. However, the critical habitat designation has no reference to whether they can or cannot; it says that it is open to all uses. Number 1833 SCOTT PETSEL, Staff for Representative Gail Phillips, Alaska State Legislature, indicated that the U.S. Department of the Interior and the ADF&G are having hearings on May 8, 2000, and the comment period will end; therefore, if [legislators] believe strongly, they should encourage their constituents to write letters in opposition to the critical habitat designation, and [legislators] should write letters themselves. REPRESENTATIVE WHITAKER stated, "The process itself is a federal function." He asked, "The determination will be made by the [U.S.] Fish & Wildlife Service, as approved by whom? Where can this be stopped?" MR. SOMERVILLE indicated that the decision will be made by the USFWS subject to some oversight by the court. He explained that it can be stopped by asking the delegation to makes sure that certain instructions are given to the agencies as it relates to critical habitat. Number 1930 REPRESENTATIVE KAPSNER wondered how the designation will affect the people in her area. MR. SOMERVILLE pointed out that Natives are excluded from most regulations under the ESA, so it will not affect most of Representative Kapsner's constituents. REPRESENTATIVE KAPSNER noted that she also represents non- Natives; for example, her dad is a non-Native. She wondered how the designation might affect someone like her dad from going out and subsistence hunting. MR. SOMERVILLE indicated that it would affect someone like her dad. He explained that "taking" is already effective when the animal is listed as endangered or threatened. REPRESENTATIVE KAPSNER clarified that she was wondering about other hunting of unendangered animals. MR. SOMERVILLE referred to the proposal in the committee packet where it reads, "Such activities that may have the potential to destroy or adversely affect or modify critical habitat for Spectacled Eiders include, but are not limited to commercial fishing, oil exploration and development, petroleum product transfer." He explained that what they are saying is that some of these other activities can affect critical habitat. MR. PETSEL indicated that the way he sees it is anything that requires a permit will have an additional layer of review attached to it. Number 2155 TADD OWENS, Project Coordinator, Resource Development Counsel (RDC), testified via teleconference from Anchorage. He explained that the RDC represents individuals and companies from all of Alaska's basic economic sectors, including mining, forestry, oil and gas, tourism and fisheries. Their mission is to grow Alaska's economy through the responsible development of the state's natural resources. The membership [RDC] strongly supports HJR 60. The USFWS concedes that neither the Spectacled Eider nor the Steller's Eider is habitat limited in Alaska; therefore, these waterfowl have not suffered due to a lack of suitable habitat. The sheer size of the proposed designation is a serious cause for concern to RDC's members. In fact the USFWS stated reason for designating critical habitat for these two species is in order to respond to a lawsuit filed by environmental organizations. RDC believes that a designation of this magnitude should be based on sound science and not a legal compromise. Both the Spectacled Eider and the Steller's Eider are listed as threatened under the ESA and the protections afforded to species listed as threatened under the ESA are substantial. He pointed out that the Spectacled Eider and the Steller's Eider are not habitat limited; therefore, the designation of critical habitat does little to significantly increase their protection. MR. OWENS noted that critical habitat can, however, be used as a tool to slow economic development by individuals and organizations interested in acting as obstructionists. For example, last week Greenpeace, the American Oceans Campaign and the Sierra Club asked a federal judge in Seattle to ban the harvest of pollock and other bottomfish in areas throughout the Bering Sea and the Gulf of Alaska where critical habitat for Steller sea lions has been designated. Mr. Owens said RDC's members are committed to the responsible development of Alaska's natural resources. They believe that the protections provided through a threatened listing are enough to safeguard the welfare of both the Spectacled and Steller's Eider. The designation of more that 75,000 square miles of critical habitat, on the other hand, goes entirely too far. Number 2311 MARILYN CROCKETT, Deputy Director, Alaska Oil and Gas Association (AOGA), testified via teleconference from Anchorage. She stated that AOGA is a private nonprofit trade association whose member companies account for the majority of oil and gas operations in Alaska; its members have demonstrated a longstanding commitment to protection of wildlife populations and their habitat surrounding oil and gas operations. They have cooperated with the USFWS over many years in research, so that they could understand specific habitat preferences. Extensive pre- development nest and brood-rearing surveys are conducted to map those areas and avoid them, offering an additional level of protection for these species, and they plan to continue those surveys. The USFWS has proposed some 74,000 square miles to be designated as critical habitat for Spectacled Eider and some 25,000 square miles for the Steller's Eider. As noted in the resolution, these designations are proposed as a result of the settlement agreement between the USFWS and environmental groups who question the USFWS's initial decision not to designate critical habitat. MS. CROCKETT continued that ironically USFWS personnel have stated that they do not believe that the designation of critical habitat provides significant additional protection over measures implemented pursuant to either a threatened or endangered listing. They note that listed species and their habitats are protected by the ESA whether or not they are in an area designated as critical habitat; they further note that in most cases, critical habitat designation duplicates the protection provided by the ESA. That is why over the years they have chosen to dedicate their resources to investigate the need to list a species as threatened or endangered rather than spending time designating critical habitat. Furthermore, the majority of the critical habitat designations for both of the eiders are on the northern portion of NPR-A, where numerous eider protection measures are already in place. MS. CROCKETT noted that the Environmental Impact Statement (EIS) for NPR-A designated over 1 million acres in the vicinity as a Spectacled Eider breeding range "land use emphasis" area. The EIS also included 79 stipulations to specifically address and minimize the impacts of human activities upon birds like the eiders. The state's best interest findings for lease sales conducted by Alaska contain similar stipulations and mitigation measures, and these, taken together, offer a whole set of additional eider habitat protection mechanisms. OLIVER LEAVITT, Vice President, Arctic Slope Regional Corporation (ASRC), testified via teleconference from Barrow. He read his testimony into the record: I am here this afternoon to urge the State of Alaska to join with us in opposing the designation of much of the North Slope as critical habitat for Spectacled and Steller's Eiders. The stakes are high. Unless we respond quickly and with all the means at our disposal, the eiders will do for the North Slope what the spotted owl did for the economy of the Pacific Northwest. I believe ASRC and the state have a common interest in opposing this latest example of regulatory overreaching. ASRC owns 5 million acres of land on the North Slope. Less than ten years ago, ASRC entered into an historic agreement with the state of Alaska in which we merged our titles in the Colville Delta to facilitate oil and gas development. The wisdom of that policy is apparent today. This summer, the Alpine field will go into production. This will be the first commercial development of oil on ASRC's lands. The alpine field and other small to medium fields in the process of development will help the state of Alaska to offset the revenue decline from Prudhoe Bay. You are well aware that every attempt to develop oil and gas on the North Slope is met with litigation by the self-appointed environmental ombudsmen. Recently, for example, ASRC joined with the state and ARCO to defeat a court challenge that threatened to stop the Alpine project in its track. I believe that the designation of much of the North Slope as eider critical habitat will only spawn more such litigation and give enormous leverage to those groups whose sole aim is to stop all further development of oil and gas in the Arctic. Let me say at this point that I am not opposed in principle to designating critical habitat where there is a demonstrated need to insure the survival of a species. The lives of the Inupiat are too dependant on the health of our environment and the animals that have always sustained us to ignore such threats. Having said this, we have seen more than our share of politically motivated science. In my lifetime, I have witnessed an attempt to end the whale hunt because some scientists predicted that the bowhead were nearing extinction. It turned out that the Inupiat hunters knew a good deal more about the status of the bowhead stocks than biologist who have never lived in the Arctic. I believe that the proposal to designate most of the coastal plain of the North Slope as critical habitat for two species of eiders is another example of politically motivated science. The Fish and Wildlife Service admits that designating critical habitat will do nothing to hasten the recovery of the eiders. It will, however, provide a powerful new litigation tool for those who want to stop development in the Arctic. The Spectacled Eider was listed as endangered less than ten years ago. The Steller's Eider was added to the threatened list only three years ago. In both cases, the Fish and Wildlife Service concluded that it would not be prudent to designate critical habitat for a very simple reason: There is no evidence whatsoever that habitat destruction or scarcity has contributed to decline of the species. Since that time, the Fish and Wildlife Service has been working on a recovery plan for both species in cooperation with the state in the North Slope Borough. To my knowledge neither has suggested that the designation of critical habitat is necessary for the species to recovery. Studies done in the past few years show that the North Slope population of both species has not declined and may even be increasing. The Fish and Wildlife Service said that it was forced to take this action by adverse court decisions. It is true that the Fish and Wildlife Service was sued in California. Instead of defending that suit, however, the Fish and Wildlife Service quickly caved in to the environmental plaintiffs without even filing an answer. The haste with which the case was settled suggests that neither the Fish and Wildlife Service nor their adversaries wanted to provide a forum for an affected land owner, including ASRC in the State of Alaska to intervene and state their views. Our attorneys tell us that the only case that the fish and wildlife lost involved failure to designate critical habitat when loss of critical habitat was a significant factor in the decline of the species. None has suggested that is the case with eiders on the North Slope. Attached to my testimony is an opinion letter from the Fish and Wildlife Service's own attorneys questioning the legality of designating critical habitat when loss of habitat has not been identified as a factor in the decline of the species. (This letter was produced to ASRC by the Fish and Wildlife Service pursuant to a Freedom of Information Act request.) The Fish and Wildlife Service is telling everyone not to worry, that designating critical habitat will not change the Endangered Species Act consultation requirements that are already in effect. Why else would they go to the trouble and expense of suing the service? Settling the litigation was just a convenient excuse for furthering a common agenda and giving both the Fish and Wildlife Service and the environmental organizations more control over oil and gas development on the North Slope. Since most active development in the Arctic takes place in the winter when eiders are not present, the non- jeopardy requirement of the Endangered Species Act can usually be satisfied with a simple exchange of letters. That is how it was done at Alpine. Once critical habitat is designated, however, any permit that disturbs that habitat - even if there is no evidence that the habitat has ever been used by the species - will probably require formal consultation with the service. Formal consultations require biological assessments and biological options. The can add a year or more to permitting time limits. The study costs are charged to the developer. The slightest imperfection in the process or the result provides a host of new procedural and substantive arguments in the inevitable litigation to follow. Perhaps more importantly, designation of critical habitat on ASRC's lands opens absolutely every land use decision on those lands - even if no federal permit is required to citizen suits by the environmental lobby. The same will be true, of course, for state owned lands. Anyone who thinks that this tremendous power will be exercised in moderation by groups like the trustees for Alaska has never tried to develop land in the Arctic. Recently the [U.S.] Department of the Interior declared approximately 700,000 acres of prospective oil and gas lands in NPR-A off-limits to development as Spectacled Eider breeding range. If a critical habitat designation is to be made, it should be limited to the area already identified and set aside by the Department of the Interior. Thank you for providing the opportunity to present my views on an issue of critical importance to both ASRC and the State of Alaska. Number 2908 CHARLES BROWER, Director, Department of Wildlife Management, North Slope Borough, testified via teleconference from Barrow. He stated that he is in support of HJR 60 and indicated that he supports Mr. Leavitt's statement as well. ROBERT SUDYAM, Wildlife Biologist, Department of Wildlife Management, North Slope Borough, testified via teleconference from Barrow. He stated that he has been studying eiders on the North Slope for approximately 10 years. He noted that when the USFWS listed Spectacled and Steller's Eiders as threatened, they did not designate critical habitat. Mr. Sudyam said they did that for two reasons. First, they lacked the information to know where these eiders spent their time. Second, when they had information available on the distribution or the habitat that was occupied by these species, they determined that the habitat was in a more or less pristine condition - and most of it was and did not need special management. Since that time, additional information has been gathered, but that additional information does not change the earlier evaluation of the need for critical habitat. The proposed designation by USFWS for critical habitat is essentially a distribution [ends midspeech because of tape change]. TAPE 00-31, SIDE B Number 2959 HARRY BROWER, JR., a hunter from Barrow, testified via teleconference from Barrow. He stated that he supports HJR 60, and he supports the comments made by Mr. Leavitt and Representative Phillips. Number 2925 WAYNE REGELIN, Director, Division of Wildlife Conservation, Alaska Department of Fish & Game (ADF&G), indicated that the department supports HJR 60 and strongly disagrees with the action that the USFWS is proposing. Once the huge area is declared as critical habitat and it goes to court, the court will give it a whole lot more emphasis. There are a few small areas that recent research has shown for the Spectacled Eider that might qualify as critical habitat. For the Steller's Eider there are no critical habitat areas. The department views the designation as a rather foolish action that could be extremely detrimental to the state. CO-CHAIR HUDSON indicated that concluded the public testimony. Number 2814 REPRESENTATIVE JOULE made a motion to move HJR 60 from committee with individual recommendations and the accompanying zero fiscal note. There being no objection, HJR 60 moved from the House Resources Standing Committee.
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