Legislature(2015 - 2016)BUTROVICH 205
02/10/2016 03:30 PM Senate RESOURCES
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| Overview: State of Alaska and Endangered Species Act Listings | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 10, 2016
3:31 p.m.
MEMBERS PRESENT
Senator Cathy Giessel, Chair
Senator Mia Costello, Vice Chair
Senator John Coghill
Senator Peter Micciche
Senator Bert Stedman
Senator Bill Stoltze
Senator Bill Wielechowski
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
OVERVIEW: STATE OF ALASKA AND ENDANGERED SPECIES ACT LISTINGS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
COMMISSIONER SAM COTTEN
Alaska Department of Fish and Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Commented on the Endangered Species Act
(ESA) listings in Alaska.
BRUCE DALE, Director
Division of Wildlife Conservation
Alaska Department of Fish and Game (ADF&G)
Juneau, Alaska
POSITION STATEMENT: Commented on the Endangered Species Act
(ESA) listings in Alaska.
ATTORNEY GENERAL CRAIG RICHARDS
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Commented on the Endangered Species Act
(ESA) listings in Alaska.
BRAD MEYEN, Sr. Assistant Attorney General
Resources Section
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Commented on the Endangered Species Act
(ESA) listings in Alaska.
ACTION NARRATIVE
3:31:03 PM
CHAIR CATHY GIESSEL called the Senate Resources Standing
Committee meeting to order at 3:31 p.m. Present at the call to
order were Senators Stoltze, Costello, Micciche, Coghill and
Chair Giessel.
^Overview: State of Alaska and Endangered Species Act Listings
Overview: State of Alaska and Endangered Species Act Listings
3:31:35 PM
CHAIR GIESSEL announced the overview of the Endangered Species
Act (ESA).
3:32:16 PM
COMMISSIONER SAM COTTEN, Alaska Department of Fish and Game
(ADF&G), Juneau, Alaska, said the ADF&G provides scientific
expertise on most ESA issues. The department has experts on
fish, marine mammals, game, and non-game species, and they like
to think that they have a good reputation. They work closely
with a lot of other organizations, nationally and
internationally, and have often been recognized as valuable
contributors on these issues.
In addition to its scientific staff, he said the department has
experts on the ESA. That ESA work was recently consolidated with
the Wildlife Diversity Program and turned into the Threatened
Endangered and Diversity Program. This change enabled the
department to maintain its ESA capacity with fewer financial
resources.
COMMISSIONER COTTEN said the ADF&G collaborates closely on ESA
issues with the Department of Natural Resources (DNR) and the
Department of Law (DOL). ESA staff from ADF&G and DOL
communicate on a daily basis and are participating in three
initiatives to reform the ESA where necessary, so it can be
implemented in a way that better meets the interests of the
State of Alaska.
ATTORNEY GENERAL CRAIG RICHARDS, Department of Law (DOL),
Juneau, Alaska, said he wanted to briefly address what DOL does
in relation to the ESA and tell them how his program works and
why he thinks it is a particular success.
SENATOR STEDMAN joined the committee.
3:34:20 PM
ATTORNEY GENERAL RICHARDS said the DOL does several things in
relation to ESA challenges: listings and critical habitat
designations, in particular with federal action. The department
actually challenges the federal government in lawsuits if Alaska
disagrees with ESA listings in the State or Alaska or in its
surrounding territorial waters. Additionally, the department
sometimes intervenes to support ESA determinations in rule
makings and other areas where the state agrees with the feds
instead of environmental groups who want more stringent action.
ATTORNEY GENERAL RICHARDS said the DOL also assists ADF&G in a
number of different areas including reviewing proposed rules and
developing a coordinated and cohesive strategy to ultimately win
in the rule making process to the extent they can and to
litigate if necessary. They also monitor nationwide issues
evolving with ESA and try to develop alliances both internally
and with industry partners on different ESA issues like marine
mammals. He also develops alliances nationwide with other state
attorney generals' offices, because although Alaska is unique in
terms of the marine mammal issues, it is not unique in the sense
that other states often share some of our frustrations in how
ESA listings are being used to close down development over large
tracts of land.
He said the DOL had successfully used outside counsel for ESA
listings, but a couple of years ago the decision was made to try
to develop that competency in-house as much as possible, both to
save money and to develop the internal institutional knowledge
needed to handle these cases, and to be a little more proactive
on a long-term basis. He said that Mr. Meyen and a few other
attorneys are critical to that effort and have done an amazing
job of putting together a litigation and ESA push-back mechanism
for a relatively low cost where they have seen "some resounding
successes."
3:37:13 PM
BRUCE DALE, Director, Division of Wildlife Conservation, Alaska
Department of Fish and Game (ADF&G), Juneau, Alaska, took over
the presentation and said a staff of approximately eight are in
the Threatened and Endangered and Diversity Species Program and
many more are in the Marine Mammals Program. It is comprised of
people with ESA expertise, people who do work on pre-listed
species, and scientific experts. This staffing array has
provided additional capacity and capability to the entire
department with fewer resources.
The goals of this program, which is housed in the Division of
Wildlife Conservation, are to provide stewardship for Alaska's
wildlife, to conduct and provide relevant and sound science, to
protect the state, including its economy, from unwarranted ESA
regulations and impacts, to maintain the state's management
authority, and to build on the excellent work of previous
administrations.
3:38:55 PM
Their strategy is to take strong positions to protect the state
and fulfill its mandates. The division participates fully pre-
listing to post de-listing. The program coordinates with the
entire ADF&G, the DOL, DNR, and the legislature. Substantial
scientific expertise is one of their biggest tools. They work
with their partners to avoid listings and minimize impacts; they
defend good decisions and strategically challenge bad decisions.
Another big part of their program is to address ESA shortcomings
through the initiatives that Commissioner Cotten mentioned.
3:39:34 PM
MR. DALE provided some definitions:
-Threatened: likely to become endangered within the foreseeable
future.
-Endangered: an official view of both Fish and Wildlife Services
(FWS) and National Marine Fisheries Services (NMFS), (the two
federal agencies that implement the ESA), that a species is in
natural danger of extinction.
CHAIR GIESSEL asked for a definition of "foreseeable future."
MR. DALE replied that there are different viewpoints. Climate
change listings look far into the foreseeable future and use an
overabundance of critical assumptions. FWS and NMFS need clearer
guidance, especially on climate change listings, on what
reasonable standards for the foreseeable future are. Otherwise
measures are adopted that are impossible to implement meaningful
conservation, because the timeline is just too far out and the
future is too uncertain.
He said it's also inappropriate to use the ESA as a tool to
implement carbon reductions and to effect climate change
policies, although climate-based listings are likely to
increase. The wolverine and northern bog lemming, which have
been listed in the Lower 48, are two examples of those policies.
Everyone knows that these petitions are going to become more
common if the FWS continues to list species based on those
rationale.
3:41:52 PM
MR. DALE said that FWS has listed 3 endangered and 5 threatened
species. The NMFS has 14 endangered and 16 threatened listings,
but importantly only three of those have critical habitat in
Alaska. Candidate species (found warranted in a 90 day finding)
are: the Iliamna fresh water seal, the Pacific walrus
(precluded, which means that decision will be delayed for some
time), the northern bog lemming, and yellow cedar. The western
bumble bee is a newly petitioned species and while it is doing
well in Alaska, it is doing poorly in the Lower 48.
The humpback whale is proposed to be delisted. The 12-month
finding for the Southeast wolves in which the FWS concluded that
the Prince of Wales (POW) wolves do not qualify as a distinct
population segment came just at the end of last year.
Anticipating a response from the petitioners, the program is
coordinating a response with the DOL.
MR. DALE said actions have been taken over the last two years to
demonstrate that "take" can be managed sustainably. This has
entailed bringing issues to the Board of Game and implementing a
conservative management strategy - if it can't be demonstrated
that human-caused mortality can be regulated, the state becomes
more vulnerable to petitions and listings. Ongoing research
continues to fill knowledge gaps and staff continues to evaluate
FWS decisions and status reviews to find out where the
weaknesses are and then apply whatever tools are needed:
research or further work on ESA reform.
3:45:00 PM
SENATOR WIELECHOWSKI joined the committee.
CHAIR GIESSEL asked for a description of ADF&G's scientific
expertise.
MR. DALE answered that seven biologists work primarily on pre-
listing species, or where they anticipate a species might be
petitioned, because there isn't much information on that
species. "A little bit of information can go a long way at
preventing those listings," he said. A few scientists in regular
regions partly work on this work with an ESA specialist with an
advanced degree in biology and a degree in law work on ESA
issues when it's about game species. The program coordinator
oversees those staff and he is the one who directs and
coordinates between some of the scientific expertise for issues
like marine mammals, which typically would have 30 scientists.
CHAIR GIESSEL asked if they are proactively collecting baseline
data.
3:47:27 PM
MR. DALE answered yes, very much so. He explained that when they
heard the northern bog lemming was going to be petitioned, they
immediately did as much research as possible, because once the
petition reaches the FWS they have 90 days to determine whether
or not to consider it as a candidate species for listing.
SENATOR STOLTZE asked who does the petitioning.
MR. DALE answered that it's sometimes easy to determine which
species are going to pop up for possible petitioning, because
there is very little information on them, and they are in areas
that certain groups would not like to see an industry expand or
be successful.
SENATOR STOLTZE asked who is involved in the litigation and if
there is a common theme.
MR. DALE answered the Center for Environmental Diversity is
probably the most prolific, but there is a list of environmental
groups that actively petition.
3:49:46 PM
SENATOR STOLTZE requested a short list of the ones that pop up
all the time.
SENATOR COGHILL said he wanted a general list and that it would
be interesting to find out who discovered the northern bog
lemming.
MR.DALE replied the Center for Biological Diversity and
Greenpeace and similar organizations are major players. It
varies regionally from very small groups to national and
international organizations.
SENATOR WIELECHOWSKI asked him to include a list of the
organizations that are being successful or frivolous.
COMMISSIONER COTTEN added that often litigation is not involved,
but the petition to list is.
SENATOR STOLTZE asked if the state has ever stopped a closed
door settlement from happening by having a seat at the table. He
pointed out that in the past, the state has interjected its
presence in either lawsuits or contesting petitions.
COMMISSIONER COTTEN responded that part of the goal is to make
sure these things don't get listed, so the department is at the
table and participating with the DOL in comments and offering
its scientific evidence as to why they shouldn't, in some cases,
be listed before litigation.
SENATOR MICCICHE asked Mr. Dale if he was saying that these
groups that serially petition species might shop for a species
that no one knows a lot about, or one that is hard to research,
in order to stop projects like the Keystone Pipeline.
MR. DALE answered yes and that the 90-day finding is a low bar.
If they can get something that doesn't have much information
across that low bar, then the stakes go up quite a bit in terms
of the research that is needed. Often there isn't time during
the 12-month finding period to actually conduct field research.
So, hopping over that low bar is a very important step.
Petitioning species that don't have much scientific information
in areas where some groups would like to provide some
protections is a good strategy. When FWS and NMFS get a
petition, they have 90 days to make a decision, and all they can
do is use the information on hand in their files and the
information that is provided in the petition. So, one of the ESA
reforms that they (the Association of Fish and Wildlife
Agencies, the ESA Joint Task Force, the Federal State Joint Task
Force, and the new Western Governors Association Initiative) are
encouraging FWS to do is require the petitioner to provide the
affected state or states with the petition 30 days before the
clock starts ticking on the 90 days at the federal level. That
allows the states to assemble any information that is relative
to the petition and put it in the FWS or federal agencies'
drawer so that information can be used in evaluating the 90-day
petition. However, this is being fought very strongly.
He said a companion part to ESA reform is to not allow multiple
petitions, because several years ago the state got one petition
with over 30 species of coral. The corals have little niches in
life and not that much is known about them. So, it's pretty
challenging for states to come up with that much information
that quickly.
3:58:12 PM
SENATOR COSTELLO said that critters - northern bog lemmings, for
instance - don't stop at political borders and asked if these
efforts are multinational or if Canada is dealing with the same
issues. What is the relationship between their efforts and ours?
If something that comes off the list in the U.S., does it go on
the list in Canada?
MR. DALE answered that the department works with its Canadian
counterpart and the northern bog lemming is a bigger problem
there. However, several states also have northern bog lemmings,
so this will be a larger effort. In response, Alaska submitted
extensive comments, but many of those other states did not. That
isn't a good idea, because the more comments one can get in
early, the more those comments can be considered. Some people
didn't take this seriously because they have just a little
sliver of land, but now that it's past the low bar of the 90-day
finding, they are reaching out to the Canadian counterparts to
understand the research that they have done on this species and
finding out what can be done to provide research. This one may
not be acted on right away, so there may be some time do some
research in Alaska and portions of Canada to understand the
species better. The status review is not expected until after
2020.
4:00:26 PM
MR. DALE said the polar bear is listed as threatened and a draft
recovery plan is in place. This listing was also the first ESA
climate change recovery plan. One of the ways that state,
industry and NGOs can be involved is by participating in these
recovery plans so that they can be designed in a way that both
industry can continue in whatever ways possible and meaningful
conservation can occur. In this instance, "take" as it relates
to industry is identified as not a primary threat. So the take-
home is that an ESA listing like this has little conservation
benefit for polar bears, but under the recovery plan, activities
such as Native harvests and industry exploration and development
in polar bear habitat are going to be allowed to continue.
4:02:11 PM
CHAIR GIESSEL asked if the polar bear listing was based on a
100-year projection of their population.
MR. DALE answered yes and that was especially problematic in
terms of critical habitat because one can't predict what a
habitat will look like in 100 years. Therefore, the DOL got it
successfully vacated in court.
He said that Alaska will participate in a round table work
session in the Western Governors Association April meeting that
will include industry. The association plans to provide the
Wyoming governor's initiative on ESA reform to its Resources
Committee that will make recommendations that will be taken to
Congress.
4:03:29 PM
COMMISSIONER COTTEN related that Mr. Dale generated interest in
this issue at the Resource Development Council meeting on the
part of some industry participants who said they intend to
participate in the conference.
MR. DALE added as a result of that interaction with the Resource
Development Council they have some really good people from
different industries lined up who are very excited about this.
They are also working with various groups to come up with a
representative from the fishing industry.
4:05:15 PM
SENATOR STOLTZE said the PEW Charitable Trust has been very
active along with other national organizations on working ESAs
in other states. Many of them have a stated goal of not having
commercial fisheries, because they are not sustainable.
4:06:30 PM
MR. DALE responded that the department takes its constitutional
mandate to manage on a sustained yield basis very seriously.
Their efforts to demonstrate that is the best defense against
groups arguing essentially that those activities are not
sustainable, and information gained through research is the only
thing that can level that playing field.
SENATOR STOLTZE said it wasn't until the Mat-Su delegation put
money into the budget that the department acknowledged Cook
Inlet wasn't identified for a genetic identification study and
then subsequently undertook that study, because the Kenai
Peninsula commercial fishing industry didn't want it. That
concerns him a little bit, because he has some constituents who
have said they would have a good case to use the ESA to promote
their fair share on the Kenai Peninsula watershed. He does not
think that is the best approach and he asked Commissioner Cotten
if he had any suggestions on how to prevent forcing groups, out
of frustration, to go to the last straw of filing ESAs.
COMMISSIONER COTTEN asked if he is referring to the biggest
genetic study the state has undertaken in the last decade, the
Western Alaska Sustainable Salmon Identification Project
(WASSIP), which specifically left out Cook Inlet, because it was
designed around identifying western Alaska fish stocks. The
study didn't get too specific about Cook Inlet, Southeast or
even Kodiak fish, because it wasn't what the question was at the
time.
He explained that the department has learned a lot about
genetics in the mean-time using a lot of new methods and
information about identifying salmon species, in particular. He
wouldn't oppose additional genetic studies, but that one cost $6
to $8 million - that cost is another factor in this fiscal
environment.
SENATOR STOLTZE said specific appropriations were put in to
address the Cook Inlet stocks and they got a lot of resistance
from other user groups. Overall, the concern is that the ESA is
being used in Alaska out of frustration and bad motivations by
groups like the PEW Charitable Trust and Oceana. He asked if
listings surrounding fishing was a concern, because he didn't
see any slides on the issue.
COMMISSIONER COTTEN responded that it certainly is a concern,
and the department has had a lot of experience with the ESA. The
Steller sea lion is one that had a pretty good ending. It was
delisted, because Alaska successfully challenged some of the
assumptions used for designating critical habitat areas. As a
result, the feds reconstituted an evaluation of important
critical habitat areas. He thought that meant that they would
reduce the number of critical habitat areas, but in fact that is
not what it does: it allows them to reconsider all critical
habitat in Alaska. However, they have backed up a little bit on
that effort recently as a result of some of the state's
challenges. But it does seem to be never ending. Fishing is
often impacted by ESA listings.
SENATOR STOLTZE proposed a hypothetical scenario of frustration
resulting from no action in the legislature and lack of success
in the courts leading to a filing of an ESA on Kasilof Chinooks,
and asked what uncertainty that could throw into the process.
4:13:21 PM
COMMISSIONER COTTEN responded that someone wanting to petition
to list the Kasilof Chinook salmon would have to go through the
same process that any other ESA petition would "enjoy." The
department would participate fully at that point. It has a lot
of expertise on a lot of salmon stocks, and staff would
certainly dig deep if a proposal like that ever came up to make
sure they are prepared. However, he didn't see that as a
different process.
MR. DALE agreed and said the department has a lot of evidence
that would show that a fishery could be managed on a sustained
yield basis, and it has evidence and information on genetics
that would clearly show whether one group is a distinct
population segment.
He explained that like with the Prince of Wales wolf, different
fish stocks can be detected as genetically different, but that
is not all that determines whether it is a subspecies or not, or
whether it should be listed or not. The FWS asks what unique
characteristics of a population would be lost with its
extinction and that is the reason why the Prince of Wales wolf
wasn't declared a distinct population segment.
MR. DALE continued that the department works with Alaska Native
groups on harvest of polar bear subpopulations that are shared
with Canada and Russia. Many of the circumpolar species are
managed under a treaty, and in this case there is a treaty and a
shared quota between Alaska and Russia. He said the U.S.
delegation recently went to Russia for that meeting, and the
department wrote some strong letters siding with the North Slope
Borough and Native Corporation asking the FWS not to implement
the quota, because the other side doesn't have legal seasons or
bag limits and no meaningful reporting of the harvest. So, an
unfair burden would be placed on Alaska Natives without any
meaningful conservation on the other side.
4:17:07 PM
He said the humpback whale is a proposed partial delisting that
the State of Alaska and Hawaii actually began. It's a situation
where the entire humpback whale species was listed way back in
the early days. Through the work of a large variety of people,
14 different stocks were identified, and the Hawaii/Alaska
segment didn't look like it needed to be listed. That final
ruling is expected soon. The state will be involved in a post-
delisting monitoring plan.
MR. DALE reported that yellow cedar is another climate change
listing petition and it has a positive 90-day finding. The
petitioners really overstated the decline and there is
inconsistent evidence for a climate change link. He, working
with DNR foresters, has submitted extensive comments on this.
The status review won't happen right away.
4:18:35 PM
SENATOR STEDMAN said the yellow cedar petition relates to the
previous question about data mining issues where people select a
species to throw on the table to block development. Most of the
yellow cedar die-off happened in Southeast in the 1880s and
1890s. "They've been dead for a long time," but the impression
the public gets is of recent industrialization. He asked if this
petition will affect any state land in Southeast if it prevails.
MR. DALE said he couldn't speak to the distribution of yellow
cedar relative to state land, but he can state that where it is
distributed on state land, those restrictions on activities
would apply - to private lands, as well - should this species
become listed.
SENATOR STEDMAN said that yellow cedar is a valuable tree that
is used as insect repellent and takes 100 years to decay. He
said it is valuable as an export, and ESAs are just a mechanism
to continually try to shut down the Tongass Forest. He hoped the
state would take a very aggressive position on fighting this
type of activity.
SENATOR MICCICHE asked what proportion of plant species versus
animal species have there been attempts at listing.
4:22:43 PM
BRAD MEYEN, Sr. Assistant Attorney General, Resources Section,
Department of Law (DOL), Anchorage, Alaska, replied that the
Aleutian shield fern is the only listed plant species for
Alaska. The yellow cedar is the first plant species that has
been proposed for listing after that.
MR. DALE followed up that he was thinking of the question in
terms of nationally, because Hawaii has the unfortunate
distinction of being the clear winner in the total number of
listed species category and most of those are plants. The
picture is probably much different nationally.
4:23:56 PM
MR. DALE said the beluga whale in Cook Inlet has been listed as
endangered and has a draft recovery plan in place. He has
serious problems with this plan, because there is no viable path
to down-list or delist, even if research clearly shows that the
whales are no longer in danger of extinction. This is because
there are historical numbers for only a very short time period.
The population could very well increase modestly or become very
stable in its current size and no longer be in danger of
extinction, but that could not be proved. This is a very serious
problem in recovery plans and a very important step for states
to pay attention to when they are being developed. The only way
to change that equation at this point is to know more about the
whales in the Cook Inlet. That applies to both the critical
habitat and population dynamics. As more becomes known about
these whales, it's possible that some critical habitats will be
found to not be, in fact, critical.
4:25:35 PM
MR. DALE said the status review of the Pacific walrus is on the
radar and that decision will be made by September 2017 and a
decision is expected on the listing of the Lake Iliamna harbor
seal in the next few months. The western bumble bee petition is
being reviewed, and it ranges across much of Alaska. So, the
department is actively busy looking into these species as much
as possible from all aspects.
He said Alaska was asked to participate in the Western Governors
Association ESA Initiative, and he is working heavily on that
content with two other coastal states with whom Alaska shares
unique ESA characteristics. The Association of Fish and Wildlife
Agencies has a standing Threatened and Endangered Species Policy
Committee, and the states provide direct and strong unified
recommendations to the FWS and the NMFS in that forum. The Joint
State-Federal ESA Task Force is another initiative that has 10
states including Alaska. He wants to maintain Alaska's seat,
because other states consider Alaska a leader in this field and
he wants to maintain that role going into the future.
CHAIR GIESSEL asked if bumble bees are honeybees.
MR. DALE said he didn't know that answer, but he would provide
that information for her.
4:28:10 PM
MR. DALE said the department wants to increase the state's role
and standing in addressing ESA shortcomings through these
initiatives and discussion with Alaska's delegation as Congress
intended. Improving the listing and critical habitat designation
processes and addressing climate change issues, like defining
"foreseeable future" appropriately, is very important and until
that is done, climate-based petitions will continue.
CHAIR GIESSEL asked what the chances are for delisting sea
otters, because the committee had heard a lot about their
destructive activities toward shellfish.
MR. DALE answered that the sea otter issue is more under the
Marine Mammal Protection Act than the ESA.
SENATOR STEDMAN noted that sea otters are a problem,
particularly in Southeast and the state needs to keep the feds'
feet to the fire in updating their reports, as they are supposed
to do, and allow the citizens of Alaska who are legally
qualified hunters to be able to get their limit.
He also commented that Southeast has been going up and down with
the ice ages and a lot of the yellow cedar range is most likely
under water now due to changing ice levels. He recognized that
some coastal village sites that used to be at water level are
300 feet above high tide now, and some of the ones that are at
water level, like Sitka, did not used to be a shore front
community.
SENATOR STEDMAN said it's hard to live in a national forest and
be viewed as an invasive species by the feds while some of these
groups just use the courts to try to shut down the industrial
base. He invited people to swing by his office in Room 30 to see
his charts of Southeast Alaska's industrialization, salmon
canneries, fish traps, and mines 100 years ago.
4:33:53 PM
SENATOR MICCICHE said in all of their enlightenment, the feds
don't realize that there is an interplay between the ESA and the
Marine Mammal Protection Act. Sea otter die offs are happening
in Kachemak Bay because they were protected in the first place
and the population consequently became unsustainable. He worries
that the Steller sea lion will be in the same situation. He
wondered about the potential for fraud or abuse from using the
ESA law for self-serving reasons and thought there should be
some penalty for abusing something that should be an honorable
act.
MR. DALE responded that was a very good point and it was a
subject of considerable discussion at the first two Western
Governors Association meetings. That is the value of bringing in
all kinds of recreational users as well as industry to the
discussion.
SENATOR MICCICHE suggested a public outreach program that
exposes what happens to the hundreds of millions of dollars that
people send these environmental groups. Donors think they are
saving a furry little critter and have no idea of the real
objectives.
COMMISSIONER COTTEN commented that they are all familiar with
the situation in Kachemak Bay where ADF&G was not allowed to
manage sea otters on a sustained yield basis. Tanner crab,
Dungeness crab, and King crab populations are all suffering as a
result. If sea otters could be managed, that would then allow
ADF&G to manage other species more intelligently.
4:38:41 PM
MR. DALE said money spent on research to avoid unwarranted
listings and critical habitat designations is well worthwhile.
Research enables the state to drive good decisions and limit
unnecessary ESA regulations. It prevented the listing of
Kittlitz's Murrelets, thus avoiding potential cruise ship
regulations and barriers to that industry. Partnering with
industry, research helped prevent listing of the yellow billed
loon, which commonly nests in oil and gas areas, and helped
determine that little brown bats nest in twos and threes in
Canada and Alaska, and not in huge groups like elsewhere leading
to the spread of the very lethal white nose syndrome, the cause
of many needless petitions in Canada.
SENATOR MICCICHE said he was the local mayor at the time the
beluga whale was listed and asked if there is something in the
ESA that recognizes that our planet has moved many species along
before the invention of the internal combustion engine or
industry, because it moved beyond nature's usefulness.
MR. DALE said that was a good question to segue to Mr. Meyen for
the rest of the talk, because nothing in the act separates
natural extinctions from potentially human-caused ones. In fact,
if something is inevitable because of natural processes, it's
still subject to the same law as something that was clearly or
allegedly affected by humans in some way.
4:42:35 PM
MR. MEYEN responded that the ESA can actually be used to list
healthy species and that is sometimes what happens. In the two
cases they have talked about the listing was based on a
projected decline in models going out 100 years.
MR. MEYEN said the Aleutian shield fern is the only listed plant
species currently in Alaska and there are efforts to list the
yellow cedar, but he is working closely with ADF&G and DNR to
address its uniqueness. He said he would work with ADF&G on
compiling a list of groups that bring these petitions forward.
MR. MEYEN said the ESA litigation on listing of polar bears left
the question of whether it was appropriate for the FWS to
designate over 187,000 square miles of land and water as
critical habitat, which became effective in 2011. As soon as the
six day notice expired, the State of Alaska filed suit in March,
2011, to challenge that designation for among other reasons the
lack of defining certain primary constituent elements, which are
biological and physical traits of certain types of land that are
necessary for the conservation of the species. For example, the
FWS designated a boundary area of five miles inland to cover
denning habitat while 98 percent of that area does not have the
necessary requirements to support denning.
Another factor is that when any state makes comments about
either the listing of a species or the designation of critical
habitat, the federal agency responsible for that species is to
provide specific and direct comments back to the state, but the
federal government did not do that properly. As part of the
litigation, the U.S. District Court in Alaska agreed with the
primary constituent elements issue and other factors in the case
and overturned the polar bear critical habitat designation in
Alaska, vacating it in January 2013. So, for the past three
years there has been no critical habitat effective for the
Alaska polar bear.
The FWS along with the environmental groups that have petitioned
for listing the polar bear, principally the Center for
Biological Diversity, then appealed to the Ninth Circuit. The
briefing of that appeal has been completed and the case was
argued before the justices when they were in Alaska in August
2015. All the writings and pleadings are done and they are just
waiting for the final decision to be rendered.
4:48:35 PM
MR. MEYEN said there are two primary points of challenge: when a
species is listed and the designation of critical habitat. The
bearded seal (managed by the NMFS) was listed in 2012. In that
instance, the state - along with the oil and gas industry, the
North Slope Borough along with other North Slope interests -
filed individual lawsuits. All three of them were managed
together and all the briefings coordinated. In July 2014 the
judge vacated the listing of the bearded seal for among other
reasons, not responding directly to the state's criticisms of
the listing under Sec. 4(i) of the ESA and not giving the full
explanation of why the FWS did not accept the state's comments,
and instead proceeded to list the species in any event. Another
factor was using a 100-year projection model for the sea ice
regime to predict that a species, which numbers in the hundreds
of thousands today, would become in danger of extinction 100
years in the future. The court thought that was a little bit too
far in the distance to be reasonably foreseeable.
When the listing was vacated in July 2014, the NMFS and the
environmental groups that had done the petition (the Center for
Biological Diversity) appealed to the Ninth Circuit. This case
was fully briefed by the state and filed in November 2015. All
that remains is the final brief by the federal government and
that is due on March 18, 2016.
MR. MEYEN said the next case is the ringed seal that is very
similar to the bearded seals. It was originally listed in 2012,
but the decision was to address these species (bearded seal and
Prince of Wales wolf) separately. The State of Alaska and others
- the Alaska Oil and Gas Association (AOGA), the American
Petroleum Institute, and a coalition of North Slope interests
including the North Slope Borough - filed their independent
actions to challenge the listing and the three actions were
consolidated for purposes of briefing and hearing. All the
briefings were completed in November 2015 and the court has not
set a hearing yet. It is the same judge that handled the bearded
seal case, and a hearing was not held in that case either.
Again, the DOL is in the situation of waiting for a decision.
That is the extent of open litigation where the State of Alaska
is a party.
4:53:30 PM
MR. MEYEN said the decision was made to not list the Alexander
Archipelago wolf in Southeast and they are waiting to see if the
environmental organizations will attempt to challenge it. If
that is the case and the DOL determines that the decision was
appropriately made by the FWS, then the department would
consider intervening on behalf of the federal government to
support their decision.
MR. MEYEN explained that the state has not always been adverse
to the federal government on listing issues. It has intervened
and/or filed amicus briefs on behalf of their positions in the
past. One example from several years ago is the decision to not
list the ribbon seal. In that case, the DOL intervened and filed
amicus briefs on behalf of the NMFS. The decision was upheld and
the ribbon seal is not listed in Alaska waters at this time.
SENATOR STOLTZE asked if he thought the ESA is the number-one
threat to development in Alaska.
ATTORNEY GENERAL RICHARDS said his great concern is if large
critical habitat designations occur, on the North Slope for
instance, that they would pose a very serious economic threat to
the state's economic base.
SENATOR STOLTZE observed that the ESA is applied using the
theory of global warming. With the polar bear the hypothetical
is that its habitat will be destroyed in the future.
ATTORNEY GENERAL RICHARDS said this is one area where the state
has to play the long game. Just from a lawyer's perspective,
when the state enters into these cases it's incredibly important
to inform the record, to do the research and analysis so that
years down the road there is an informed record to win on a
scientific basis and not just on legal challenges. Maintaining
alignment within the administration and with Native and industry
groups is really important, because the state has to have five
to ten year visions, if not longer, of how to keep these
repeated challenges from shutting down development.
SENATOR STOLTZE closed by acknowledging his appreciation of the
legal team on this issue.
4:58:55 PM
SENATOR MICCICHE said when the National Oceanic and Atmospheric
Administration's (NOAA) priority actions for 2016-2020 was
released, it lead in by saying that, "Eight species were
identified by the National Marine Fisheries Service as among the
most at risk of extinction," and the Cook Inlet beluga whale is
on that list.
MR. DALE said he hadn't read that report.
COMMISSIONER COTTEN said he had seen it, and in fact, the beluga
whale is an interesting animal in a lot of different ways. But
it isn't just a matter of evolution of the planet and the ice
age withdrawal that caused a reduction in their population in
Cook Inlet. The U.S. government allowed a hunt for several years
that never should have happened and that did reduce the numbers.
He said there is some discussion about what might have been the
average population over a period of years, and while there is
some conjecture around that number, now it's in the neighborhood
of about 300-350 animals, and the determination was made that
that number was not sustainable. The other half of that problem
is that no one has been able to identify why they haven't
recovered. That is why the recovery plan was filled with so much
research to make it rebound.
SENATOR MICCICHE said stakeholders in the original meetings with
NOAA and NMFS were forbidden from talking about the subsistence
hunt that resulted in the decimation of belugas on the west side
of Cook Inlet. The first page of the first report said that
subsistence hunting would be disregarded as a cause. It was very
frustrating.
SENATOR COSTELLO asked Attorney General Richards if the state's
current budget situation would diminish the department's ability
to be engaged in this effort.
ATTORNEY GENERAL RICHARDS replied that he didn't think so. The
department has had excess funds for ESA litigation for a number
of years that was not needed and prior to his coming into
office, a few attorney generals had focused on developing the
internal capacity to handle these large cases, and they have
been very strategic about the way they do it. They are
litigating as much as they need to, and it is being done leanly
and successfully.
CHAIR GIESSEL thanked everyone and echoed what Senator Stoltze
said about due diligence on this issue.
5:04:46 PM
CHAIR GIESSEL adjourned the Senate Resources Standing Committee
meeting at 5:04 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| ESA Update Feb10-2016 Senate Resources_print version.pdf |
SRES 2/10/2016 3:30:00 PM |
Endangered Species Act |
| Alaska ESA Litigation List.pdf |
SRES 2/10/2016 3:30:00 PM |
Endangered Species Listing |
| ESA Petition List and Outcome 3-1-16.pdf |
SRES 2/10/2016 3:30:00 PM |
Endangered Species Listing |
| Federally Listed Threatened and Endangered Species in Alaska.pdf |
SRES 2/10/2016 3:30:00 PM |
Endangered Species Listing |