Legislature(2021 - 2022)BUTROVICH 205
03/01/2021 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Designating Endangered Species in Alaska: a Cautionary Note | |
| 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
March 1, 2021
3:31 p.m.
MEMBERS PRESENT
Senator Joshua Revak, Chair (teleconference)
Senator Peter Micciche, Vice Chair
Senator Click Bishop
Senator Gary Stevens
Senator Jesse Kiehl
Senator Scott Kawasaki
MEMBERS ABSENT
Senator Natasha von Imhof
OTHER LEGISLATORS PRESENT
Senator Tom Begich
COMMITTEE CALENDAR
PRESENTATION: DESIGNATING ENDANGERED SPECIES IN ALASKA: A
CAUTIONARY NOTE
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
DOUG VINCENT-LANG, Commissioner
Alaska Department of Fish and Game
Juneau, Alaska
POSITION STATEMENT: Delivered a presentation on designating
endangered species in Alaska.
ACTION NARRATIVE
3:31:56 PM
VICE CHAIR PETER MICCICHE called the Senate Resources Standing
Committee meeting to order at 3:31 p.m. Present at the call to
order was Senators Kawasaki, Stevens, Kiehl, Chair Revak (via
teleconference), and Vice-Chair Micciche.
^PRESENTATION: Designating Endangered Species in Alaska: A
Cautionary Note
PRESENTATION: Designating Endangered Species in Alaska:
A Cautionary Note
3:32:39 PM
VICE CHAIR MICCICHE announced the committee would hear a
presentation from Commissioner Vincent-Lang on designating
endangered species in Alaska.
3:33:27 PM
DOUG VINCENT-LANG, Commissioner, Alaska Department of Fish and
Game, Juneau, Alaska, reviewed the following outline of the
presentation on designating endangered species in Alaska:
1. Definition of the ESA
2. State of Alaska position
3. ESA process
4. Alaska ESA examples
5. Issues with current implementation
6. Current status of ESA listings in Alaska
7. Consultation process issues
8. Legal considerations
COMMISSIONER VINCENT-LANG discussed the history and purpose of
the Endangered Species Act (ESA). He paraphrased slide 3 that
read as follows:
The ESA
• Adopted under President Nixon in 1973
• Purpose:
• to protect critically imperiled species from
extinction
• to recover species to the point where legal
protections are not needed
• Effect: Puts species and the habitats they occupy
that the federal government determines to be
critically imperiled under federal control and
adopts a comprehensive federal regulatory
oversight program.
COMMISSIONER VINCENT-LANG emphasized that the state supports
listing species that are critically imperiled and at-risk of
immediate extinction. However, the state is concerned about what
constitutes "critically imperiled" and how much federal
oversight is necessary to "recover" a species.
3:35:47 PM
COMMISSIONER VINCENT-LANG stated agreement with listing the
North Pacific right whale as endangered. He said there is no
question that this species needs protection, and the state is
committed to work with the federal government until protection
is no longer needed.
COMMISSIONER VINCENT-LANG stated he disagreed with the ESA
ringed seal listing. He paraphrased slide 6 that read as
follows:
Disagreement
Ringed Seals
• The state disagrees with the listing of this
species as threatened.
• This species currently numbers in the millions
worldwide.
• By their own analysis NOAA found there will be no
population level impacts to this species in the
next 50 years.
• However, this species was listed based solely on
climatic modeling results that show something
might happen in the next 100 years that warrants
its listing today.
• As a result of its listing this species is
granted the same protections as the right whale
and NOAA recently proposed a designation of
critical habitat for this species that is about
the size of Texas.
We disagree with the listing of this species and
are fighting in court to reverse it.
3:37:16 PM
VICE CHAIR MICCICHE announced Senator Bishop joined the
committee meeting.
3:37:24 PM
COMMISSIONER VINCENT-LANG continued the slide presentation. He
reviewed the ESA process that starts with a public petition or
is initiated by an agency when people are concerned about the
extinction of a species. After the petition, the agency has 90
days to determine whether further analysis is necessary to come
to a listing decision. He said the state's experience is that
the findings could take up to a couple of years. This is
followed by a 12-month status review and a proposed decision
that goes out for public review. Thereafter, the agency makes a
final decision on whether to list the species.
COMMISSIONER VINCENT-LANG explained that if the species is
listed, the next steps are to designate the critical habitat and
establish a recovery team and develop recovery objectives. As
the species does or does not recover, it is reclassified. He
defined each category. Up-listing is the reclassification of a
species from threatened to endangered; down-listing is the
reclassification of a species from endangered to threatened; and
de-listing removes a species from the list.
COMMISSIONER VINCENT-LANG highlighted the following four species
to explain the ESA listing process in greater detail:
Alaska ESA Examples
Aleutian Canada Goose
Polar Bear
Steller Sea Lion
Beluga Whales in Cook Inlet
3:38:57 PM
COMMISSIONER VINCENT-LANG stated that the Aleutian Canada goose
was listed as endangered in 1967 and a recovery plan was adopted
in 1974. Predation by introduced foxes was identified as the
primary threat and once they were removed, the species began to
recover. He underscored it is optional for the agency to define
critical habitat, and it was not done in this case, because
habitat was not a limiting factor. The species was reclassified
to threatened status in 1990 and de-listed as recovered in 2001.
3:39:50 PM
SENATOR BISHOP asked who introduced the foxes.
COMMISSIONER VINCENT-LANG answered he did not know and directed
attention to the ESA listing process for the Steller sea lion.
He explained that the eastern and western stock of this species
was listed as threatened in 1990. The National Marine Fisheries
Service (NMFS) established critical habitat in 1993 after a
determination that fish were an important prey-base for Steller
sea lions so the habitat for the prey-base needed protection. He
noted that the western stock of the species, which occupies the
area from Prince William Sound to the Aleutians, was up-listed
to endangered status in 1997. The eastern stock, which occupies
Prince William Sound down through Southeast Alaska, remained in
threatened status.
COMMISSIONER VINCENT-LANG explained that the federal government
prepared a fishery biological opinion (BiOp) as part of a
consultation process and fishing was restricted in 1998. A
recovery plan was adopted in 1992 and revised in 2008 when
recovery objectives were established. These were to grow the
stock throughout the range three percent per year for 30 years
and to eliminate any threats. He highlighted that the estimated
cost to achieve the objectives was $430 million. The current
status is that the eastern stock remains threatened, and the
western stock remains endangered.
COMMISSIONER VINCENT-LANG said this was an interesting case. The
state did not fight the listing and the establishment of
critical habitat. Rather, it used federal and matching state
general fund dollars to collect data on the Steller sea lion.
The state's data was used in court to challenge the federal
BiOp, which unnecessarily restricted fishing in Alaska. The
collected data demonstrated federal science was wrong. The judge
agreed and overturned the BiOp; the rewritten BiOp resulted in
fewer Alaska fishery restrictions. He emphasized that good,
state-collected data was crucial to Alaska's success, because
the courts were deferential to federal data.
3:42:27 PM
SENATOR KAWASAKI asked about the process to disagree, challenge,
or appeal a federal decision.
COMMISSIONER VINCENT-LANG responded every step in the ESA
process can be litigated by both the State of Alaska and by non-
governmental organization (NGO) communities watching the federal
process. To challenge, the state has two options. It can
litigate a listing or designation of critical habitat, or use
state science to battle decisions. In this case, state data,
collected with federal dollars, proved federal science was not
the best available. Fortunately, a federal judge agreed and
eased fishery restrictions.
3:43:51 PM
SENATOR STEVENS questioned why the Steller sea lion was divided
into eastern and western stocks.
COMMISSIONER VINCENT-LANG answered the Steller sea lion was
originally listed as an entire stock. Eventually, through
genetic information, the stocks were separated. The federal
government allowed different listing criteria for each species.
The eastern stock met its recovery objectives, so it was down-
listed. Whereas, the western stock was not meeting its recovery
objectives, so it remained listed as endangered. This resulted
in differential fishery restrictions in the Western stock verses
the Eastern stock.
SENATOR STEVENS commented that this added an aspect of
complexity. Other species could be treated the same way; healthy
in one area and endangered in another.
COMMISSIONER VINCENT-LANG said ringed seals were counted as a
whole, without demographic separation. The worldwide population
numbers in the millions. Even though the United States ESA
determined the worldwide population was at risk, the recovery
and critical habitat plan jurisdiction was limited to U.S.
waters.
3:45:52 PM
CHAIR REVAK referred to the NOAA analysis that found there will
be no ringed seal population impacts within the next 50 years.
He said some people have speculated that the federal government
was motivated to list this species to skirt promises made to
Alaskans under ANILCA and other federal laws. He requested
feedback on this speculation.
COMMISSIONER VINCENT-LANG said the State of Alaska disagrees
with the ringed seal listing, because fifty years is well beyond
what is foreseeable. He posited that species most at-risk, such
as the North Pacific right whale, should be prioritized. Ringed
seals do not merit the same level of resources, in terms of
extinction prevention. In essence, the listing gave both species
equal levels of protection.
He said the net effect of the Endangered Species Act was to
remove the listed species and its habitat from state management.
Some people believed the underpinning of this was to bring some
species and their habitat under federal control.
3:48:02 PM
CHAIR REVAK asked how the ringed seal listing affects Alaskans.
COMMISSIONER VINCENT-LANG answered that as soon as a species is
listed, direct and incidental taking is prohibited. A federal
permit is required for any activity that directly or indirectly
takes a ringed seal. In addition, anything that potentially
adversely modifies or jeopardizes the habitat, would now be
under federal permit, especially if it occurs on federal land.
Suddenly, an area the size of Texas is subject to a jeopardy and
adverse modification fine.
3:49:22 PM
SENATOR KIEHL referred to the ESA examples, three marine mammals
and a migratory bird, described earlier. He asked for
confirmation that these species are not subject to much state
management.
COMMISSIONER VINCENT-LANG answered that is correct. Until now,
listed species have primarily been limited to marine mammals. He
predicted this strategy would soon be used on non-marine
mammals.
3:49:54 PM
VICE CHAIR MICCICHE asked if polar bears were listed, because
modeling determined the population could be in danger in the
future.
COMMISSIONER VINCENT-LANG responded polar bears are next. He
paraphrased slides 12 and 13 that read as follows:
Polar Bear
• Environmental groups petitioned USFWS to list
polar bears as endangered due to climate change
impacts
• May 2008, USFWS listed polar bears as threatened
based on:
- climate change will result in a decline of
sea ice habitats
- lost habitat will threaten currently healthy
populations with extinction over the next
50-100 years
He said the State of Alaska opposed this listing, took it to
court and lost. The judge ruled it was at the discretion of the
U.S. Fish and Wildlife Service (USFWS) to define foreseeable
future, and to determine the statistical validity of the
definition. As a result of the polar bear listing, Alaska has a:
• Section 4d Rule
Defines the scope of the Section 7 consultation
process
• Critical Habitat
Designated over state objection over 200,000
square miles as critical habitat
• Recovery Plan
Developed a recovery/conservation plan that set
recovery objectives to OSY numbers
3:51:54 PM
COMMISSIONER VINCENT-LANG related that polar bears are not only
listed under the ESA, but also under the Marine Mammal
Protection Act (MMPA), which means the recovery objective
changed from action required to prevent extinction to the much
higher optimal sustainable yield (OSY) numbers. He emphasized
that in Alaska, the two subpopulations of polar bear are not at
immediate risk of extinction. The Chukchi population is healthy
and robust and the southern Beaufort Sea population, which has
declined in numbers, has stabilized as a result of changing
habitat.
He related that the USFWS listed the worldwide population of
polar bears as at-risk of extinction. However, the agency did
not list the 19 subpopulations identified in the Marine Mammal
Protection Act as either threatened or endangered, yet recovery
objectives were set for each of the subpopulations. He said a
lot of "messes" resulted because of how a species was listed
worldwide versus how the recovery was managed in a
subpopulation.
3:54:36 PM
SENATOR BISHOP asked if the USFWS was collaring, tracking, and
monitoring polar bears.
COMMISSIONER VINCENT-LANG offered his understanding the agency
had adopted non-handling methods to estimate populations, in
lieu of collaring, to avoid harassment of the bears. He
contrasted the non-handling methods used on polar bears with the
hands-on research methods used on California condors, which is
also a listed species. Not only were California condors
collared, but they were also captured annually to test lead
levels. He said ADF&G believes listed species need to be
studied.
3:55:36 PM
SENATOR STEVENS brought up the issue of climate change and
described it as "out of our control." He questioned how the
state can be required to maintain a species if climate change
causes it to relocate.
COMMISSIONER VINCENT-LANG responded climate change was one of
the most interesting aspects of the polar bear listing. Even
though it was identified as the primary threat, the USFWS said
little could be done with respect to climate change. Instead,
the USFWS focused on management of other existing threats, which
were considered inconsequential at the time of listing.
COMMISSIONER VINCENT-LANG reviewed the impacts on ANWR and the
North Slope that resulted from the polar bear listing. He said
oil and gas operations were not causal components in the
listing, but oil and gas activities were impacted due to
incidental intake regulations, both in ANWR and on the North
Slope. The listing is also affecting traditional uses of polar
bears by Alaska Natives, and it has started to affect interest
in Alaska as a place to do business. He maintained challenged
permits create uncertainty as to whether oil wells will be
allowed to operate.
3:58:02 PM
SENATOR KAWASAKI read AS 16.20.190(a) regarding what the
commissioner of fish and game must consider when determining
endangered species. He asked if ADF&G considers this statute to
render the determination as opposed to what USFWS has done.
COMMISSIONER VINCENT-LANG answered although state statute does
not define the word "foreseeable,it was considered. He said
ADF&G could not conclude polar bears were at-risk of extinction
in the foreseeable future.
SENATOR KAWASAKI asked if he was referring to polar bears in the
state, not internationally.
COMMISSIONER VINCENT-LANG answered right.
SENATOR KAWASAKI said he wanted to see both a healthy polar bear
population and continued drilling. There are pros and cons to
both, but he did not like to hear that polar bears may, in fact,
become extinct in Alaska. He continued to say:
Senator Stevens is right, we are not going to get away
from the climate changing, some things we can do, and
some things are beyond our control.
COMMISSIONER VINCENT-LANG offered his belief that the state
agrees that the polar bear population should be monitored to
ensure it does not become extinct. However, the entire weight of
a federal and state regulatory process should not be utilized
when, under USFWS estimates, the risk of extinction hovers in
the 1 percent to 3 percent range.
COMMISSIONER VINCENT-LANG said in the next couple of years,
population estimates would be available in the Beaufort. At that
time, it will be clear whether the northern Beaufort and Chukchi
populations have increased. He suspected that this would
indicate southern populations had moved north.
4:02:16 PM
SENATOR BISHOP asked how long the polar bear had been on the
planet and suggested 10,000 years.
COMMISSIONER VINCENT-LANG said yes, something like that.
4:02:35 PM
VICE CHAIR MICCICHE brought up listed birds that migrate to
Alaska. He asked how listings attributable to declining
populations and habitat in other regions of the world, but not
attributable to conditions in Alaska, are handled.
COMMISSIONER VINCENT-LANG answered the worldwide population
would be evaluated. If the population is determined to be
threatened or endangered, critical habitat along migration
routes would be identified. The species would then be listed as
threatened or endangered in Alaska, and the habitat designated
as critical to prevent extinction of the species.
VICE CHAIR MICCICHE asked, if the South American habitat was
decimated but the habitat in Alaska was secure, would the state
have any control or would it suffer the same consequences.
COMMISSIONER VINCENT-LANG answered this was exactly the case
with yellow-billed loons. Although they migrated, nested, and
fledged in Alaska, the primary threat to the yellow-billed loon
was in the South China Sea. Alaska was disconnected from the
limiting factor, but the migratory routes and nesting grounds in
Alaska would probably be designated as protected.
4:04:46 PM
SENATOR BISHOP asked if there were any documented cases of
interbreeding between polar bears and grizzly bears in the
Interior.
COMMISSIONER VINCENT-LANG answered yes, it occurred.
4:05:03 PM
COMMISSIONER VINCENT-LANG discussed beluga whales in Cook Inlet.
Slides 16-17 read as follows.
Beluga Whales in Cook Inlet
• Beluga whales over-harvested in early to mid-
1990s
• In 1998, NMFS initiated a status review to list
beluga whales in Cook Inlet as endangered
• In 2000, NMFS determined the whales are not in
danger of extinction and chooses to not list
under ESA
• NMFS instead lists the whales as depleted under
the MMPA
• In October 2008 NMFS listed beluga whales as
endangered based on:
population was not increasing as fast as
expected after harvest was regulated
the population had a greater than 1% chance of
going extinct within 100 years
• Critical habitat has been established in Cook
Inlet
• A recovery plan has been developed that sets the
recovery goal to OSY levels
• We are now seeing a wide variety of lawsuits
impacting oil and gas operations as a result of
the listing
The state is engaged as an intervenor.
• NMFS has stated its intent to examine fisheries
impacts on these whales with an eye towards
restricting fisheries
4:07:53 PM
VICE CHAIR MICCICHE asked if MMPA was the acronym for the Marine
Mammal Protection Act.
COMMISSIONER VINCENT-LANG said yes.
4:08:00 PM
SENATOR BISHOP cited a national news article published two days
prior, "Energy Company to Breed Endangered California Condors to
Replace Birds Killed by Turbine Blades." A green energy company,
a California environmentalist, and the USFWS worked together to
raise California Condors in captivity. He suggested the
possibility of oil and gas companies breeding belugas in
captivity, for release in Cook Inlet, as a new paradigm to
alleviate the problem.
4:09:25 PM
COMMISSIONER VINCENT-LANG answered that beluga whales are
genetically one population across the state. Prior to the MMPA
overharvesting regulation, which occurred twenty-five years ago,
Bristol Bay and Cook Inlet belugas intermixed in Shelikof
Strait.
COMMISSIONER VINCENT-LANG said the MMPA harvesting regulations
resulted in larger orca populations that created a barrier in
Shelikof Strait which segregated the Bristol Bay belugas from
the Cook Inlet belugas. The larger orca population also forced
belugas into a narrower habitat range in the upper part of Cook
Inlet, whereas belugas used to occupy the entire inlet. He said
the state did not challenge the listing in court and instead put
sonobuoys in Cook Inlet to collect science. Belugas were not
heard in the middle and lower parts of Cook Inlet, but there
were a lot of killer whale sounds. He said NMFS looked at beluga
whales in Cook Inlet but did not look at the geographically
isolated pod of 12-13 belugas that occupied the Yakutat area.
NMFS chose to focus on the Cook Inlet population without
considering other populations.
COMMISSIONER VINCENT-LANG surmised that the smaller beluga
population in Cook Inlet was unable to grow to 1500 (the OSY
number), because the habitat range was constrained by killer
whales. He stated this would not change unless something was
done about killer whales in Cook Inlet.
4:11:38 PM
SENATOR KIEHL brought up recovery numbers and noted that the
federal and state goals matched. The goal was not just to
conserve and protect, but to restore and propagate. He asked
Commissioner Vincent-Lang how he interpreted the instructions in
statute to be different from the federal government with ESA.
COMMISSIONER VINCENT-LANG answered it was unnecessary to grow
numbers back to historic levels under the state Act. He said the
population needed to be recovered sufficiently to prevent
extinction. To ensure good diversity in the population, the
right genetic number of belugas in Cook Inlet was 500.
He stated resources should be used on species most critically
at-risk in the immediate future, rather than potentially
threatened in the future. He said he fundamentally took issue
with the fact that resources could be thrown at a species that
had a 1 percent chance of extinction over the next 100 years;
the threshold is too low.
4:13:50 PM
SENATOR STEVENS commented that it was a fascinating fact that
orcas have interrupted interbreeding between Bristol Bay and
Cook Inlet belugas. He asked if it was possible to control the
population of killer whales.
COMMISSIONER VINCENT-LANG responded it was not possible under
the Marine Mammal Protection Act.
SENATOR STEVENS asked if the orca population doubled or tripled,
could their numbers be controlled.
COMMISSIONER VINCENT-LANG was aware of one instance when the
federal government allowed a listed species to be controlled to
protect another species at greater risk of extinction. In the
Columbia River, Steller sea lions consumed endangered salmon and
steelhead trout. The determination was that some of the Steller
sea lions could be taken to ensure salmon and steelhead trout
were protected.
4:15:57 PM
VICE CHAIR MICCICHE asked if there was a threshold under ESA to
manage predatory species.
COMMISSIONER VINCENT-LANG answered that it is discretionary
within the federal agencies. There is not a specific standard.
VICE CHAIR MICCICHE asked, if the problem were in the
archipelago of Kodiak, if it could be worked from that angle. He
then withdrew the question.
4:17:03 PM
COMMISSIONER VINCENT-LANG chronicled the issues the state sees
with the implementation of the ESA. He briefly touched on the
issue of appropriate parameters when modeling populations under
consideration for listing, slide 18:
• How far into the future can population trends be
reasonably predicted
10 years, 50 years, 100 years, 300 years?
• What is a reasonable level of extinction risk
1%, 10%, 20%, 25%?
4:17:58 PM
VICE CHAIR MICCICHE asked how the threshold was defined in the
ESA.
COMMISSIONER VINCENT-LANG answered federal agencies had the
discretion to define foreseeable and the discretion to define
the level of acceptable risk.
4:18:28 PM
COMMISSIONER VINCENT-LANG reviewed the questions about climate
related listings, recovery objectives, and critical habitat on
slides 19-21:
For climate related listings:
• Is it possible to save all species in their
historic ranges when the ecosystems are changing
due to climate change?
• Assuming climate is changing ecosystems, how
should critical habitat be established and
defined?
• How would recovery objectives be written,
especially for species at currently healthy
levels but are projected to decline?
• Should a species be listed even if the cause
(climate change) cannot reasonably be addressed
by the ESA?
• What could not be listed due to climate change?
For recovery objectives:
• Are recovery objectives set too high?
• Can threats be completely removed?
• Can population targets be reached and sustained?
• MMPA and ESA have different criteria for de-
listing. Should ESA recovery standards be the
same as those for de-listing under MMPA?
For critical habitat:
• What is truly critical?
• Are excessive designations necessary?
• What is considered [de minimis] impact?
COMMISSIONER VINCENT-LANG displayed the map on slide 22 of the
current or proposed critical habitat in Alaska. He noted almost
the entirety of Alaska's coastline is designated as critical
habitat for one species or another. He pointed out that this map
differs considerably from the East Coast map for whales. Rather
than designating the entire eastern coastline as critical
habitat for whales, very discrete areas that are important for
feeding and migration were designated as critical habitat, but
not the entire range. He said Alaska is being singled-out for a
differential application of critical habitat.
4:22:01 PM
COMMISSIONER VINCENT-LANG pointed out that it is easier to list
a species than to de-list a species. He paraphrased the
following points on slide 23:
• About 2,000 plants and animals are currently
listed as threatened or endangered under ESA
• An additional 300+ species are being considered
for listing
• To delist, the agency must determine that:
a species must be no longer in danger of
becoming extinct
threats facing it have been eliminated and are
monitored
• Since inception, only 46 species de-listed, of
which only 20 have been recovered (~1%)
4:22:44 PM
VICE CHAIR MICCICHE asked how the MMPA and the ESA work when
they conflict with "no diminishment" under ANILCA.
COMMISSIONER VINCENT-LANG answered the federal government argued
the Endangered Species Act and the Marine Mammal Protection Act
supersede ANILCA through the Commerce Clause.
4:23:13 PM
CHAIR REVAK asked if ADF&G was prepared to have a conversation
with the federal government regarding the excessive critical
habitat designations up and down Alaska's coastline. He also
asked what the state needed to do better research.
COMMISSIONER VINCENT-LANG answered ADF&G has been developing a
record of both the ringed seal and the humpback whale to
determine which occupied areas are critically important habitat
to those species.
4:25:48 PM
VICE CHAIR MICCICHE mentioned that Alaska did not challenge its
rights under ANILCA and asked if it had created a precedent
since states without agreements, such as ANILCA, had fared far
better than Alaska. He also asked about the possibility of
litigating previous critical habitat listings.
COMMISSIONER VINCENT-LANG answered that the state was poised to
have that discussion about ringed seals and humpback whales. He
said an administrative record is being compiled to show Alaska
has been treated differently.
4:27:25 PM
CHAIR REVAK asked if ADFG had a division specifically focused on
marine mammals and suggested that if not, would it be
beneficial.
COMMISSIONER VINCENT-LANG answered that a section in the
Division of Wildlife Conservation is dedicated to marine
mammals. The governor's proposed budget had $4 million earmarked
to collect marine mammal science that will hopefully be used to
better inform decisions of the USFWS. The state learned that
backed by science, it could challenge decisions in federal
court. Without sound science, it was limited by the
discretionary decisions of federal agencies.
4:28:37 PM
VICE CHAIR MICCICHE asked Senator Revak if he was satisfied with
the commissioner's answer.
CHAIR REVAK responded that it is imperative the State of Alaska
be on top of the science.
4:29:14 PM
SENATOR BISHOP stated support for an adequately funded division
to argue the state's case in federal court.
4:30:05 PM
COMMISSIONER VINCENT-LANG noted the ringed seal decision was not
challenged. Instead, five years was spent to collect ringed seal
demographics, health data, body condition and other data. Not a
single impact to ringed seals was evidenced. Rather than
challenge the listing, a request to de-list was submitted.
He said the federal government recently denied the de-listing
petition, arguing that despite the current health of the
population, there was a 1 percent probability the species might
be impacted in the next 100 years.
4:31:26 PM
VICE CHAIR MICCICHE referred to the Columbia River predator
control program executed on the Steller sea lion. He asked if
state or federal science was used to make the decision.
COMMISSIONER VINCENT-LANG answered he thought it was a
combination.
VICE CHAIR MICCICHE requested more information, specifically,
whether the program resulted from a federal and state
partnership. If so, he said it would support standing up a
division in Alaska to work with the federal government on
similar issues, like the beluga orca issue in Cook Inlet.
4:32:29 PM
COMMISSIONER VINCENT-LANG displayed the current status of
endangered and threatened species listed in Alaska on slides 24-
25.
Current Status of Listings
In Alaska
ESA:
Endangered Species
• Short-tailed albatross - USFWS
• Eskimo curlew - USFWS (presumed extinct)
• Aleutian shield fern - USFWS
•
• Steller sea lion (western stock) - NMFS
• Bowhead whale - NMFS
• Fin whale NMFS
• Cook Inlet beluga whale - NMFS
• Humpback whale (Western NP DPS) - NMFS
• Other rare species: North Pacific right whale,
Blue whale, Sei whale, Sperm whale, and the
Leatherback sea turtle NMFS
ESA:
Threatened Species
• Spectacled eider - USFWS
• Steller's eider (AK breeding pop) USFWS
• Polar bear - USFWS
• Northern sea otter, southwest Alaska DPS - USFWS
• Steller sea lion, eastern pop. NMFS
• Green, loggerhead and olive ridley sea turtles
NMFS
• Wood bison (less the E/NS population) USFWS
• Mexican DPS humpback whale - NMFS
COMMISSIONER VINCENT-LANG recounted the process to obtain a
nonessential and experimental population designation and the
reason it was requested for the wood bison.
4:35:25 PM
SENATOR KAWASAKI asked about the current status of the herd.
COMMISSIONER VINCENT-LANG said the population is slowly growing.
4:36:15 PM
SENATOR KIEHL asked him to describe department prevention
activities that helped species currently under consideration, to
recover and prevent further decline.
COMMISSIONER VINCENT-LANG displayed slide 26 and the roster of
species currently under consideration for ESA listing to answer
the question.
He said that the department allowed the harvest of the Alexander
Archipelago wolf to get out of hand for a year, but they learned
from that misstep. They put timely reporting in place so seasons
could be shut down to avoid overharvest and actively watched the
population and how it interacted with the management regime.
4:38:31 PM
SENATOR KIEHL noted that some of these species are harvested,
some are not, but they are all contemplated under the Alaska
Endangered Species Act.
COMMISSIONER VINCENT-LANG agreed and referenced the USFWS listed
Pacific walrus and Kittlitz's murrelet to respond. He advised
that as long as the department continues to receive federal
grants, it would closely monitor the Pacific walrus population.
If it appears at-risk of extinction within the next twenty
years, the department will work with the federal government to
list that species.
He said the risk of extinction for the Kittlitz's murrelet is
not very high over the next 100 years. The department has worked
closely with the statewide wildlife grant programs to assess
populations and genetic variation across the state. The state's
science probably influenced the USFWS to refrain from
immediately listing the species and instead provide close
monitoring over the next several years. He noted that through
the Exxon Valdez oil spill, the department gave $250,000 to
study the Kittlitz's murrelet, so a more informed decision could
be made.
4:40:27 PM
VICE CHAIR MICCICHE announced 20 minutes until adjournment.
COMMISSIONER VINCENT-LANG acknowledged the time warning and
continued to review the species currently under consideration
for ESA listing. He stated that the Lynn Canal herring is
actively studied. He noted that the [NMFS] listing was proposed
by an opponent of a nearby Lynn Canal mine, not out of concern
that the Lynn Canal population would go extinct.
COMMISSIONER VINCENT-LANG mentioned that Suckley's bumblebee is
listed by USFWS and said he had no idea how to estimate the
bumblebee population in the state, but he needed to figure out
where they are on the landscape.
4:41:25 PM
COMMISSIONER VINCENT-LANG reviewed the highly migratory species
outside Alaska that are ESA listed by NMFS, all of which affect
Alaska's fisheries. The list on slide 27 was as follows:
• Southern resident killer whales- NMFS
• Mexican humpback whales- NMFS
• Puget Sound Chinook salmon NMFS
• Snake River Fall Chinook NMFS
• Willamette River Chinook NMFS
• Lower Columbia Fall Chinook- NMFS
COMMISSIONER VINCENT-LANG said he did not believe that
harvesting up to 200,000 king salmon in Southeast Alaska affects
the reproduction of killer whales in Puget Sound, Washington as
much as the water quality in the sound itself, but the
management of Alaska's fishery is tremendously affected,
nonetheless. The same situation applies to Mexican humpback
whales. The reproductive health of the species is likely
affected by what is happening off the Mexican coastline, but if
Alaska waters are designated critical habitat, cruise ship
travel could be affected. Similarly, Southeast Alaska treaty
fisheries are affected by the Snake River fall Chinook salmon.
COMMISSIONER VINCENT-LANG discussed slide 28 and the sections of
the Endangered Species Act that become relevant when a species
is listed. The slide read as follows:
• Section 9: Prohibits the "take" of a listed
species. Under Section 3 take includes "harass,
harm, pursue, hunt, shoot, wound, kill, trap,
capture or collect or attempt to engage in any
such conduct".
• Section 7: For projects that have a federal
"nexus", federal agencies need to consult with
NMFS or USFWS on any project that may affect a
listed species or its critical habitat.
• Biological assessment ("likelihood to
effect" decision)
• BiOp (with "JAM" finding and resultant
incidental take statement and minimization
measures).
• Section 10: For projects that have "incidental take"
but no federal nexus.
• Habitat Conservation Plans (HCP) to minimize and
mitigate impact of incidental take
• Incidental take permits w/ approved HCP
COMMISSIONER VINCENT-LANG expressed concern that the definition
of "take" is modeled because it is not clear which of the
activities in Section 3 is affecting the animal's behavior.
Similarly, modeled results are used for polar bear incidental
take requirements (ITRs) because documented cases on the North
Slope are no longer verifiable. The current thinking is that
flying a survey at a low-level has a five percent chance of
"taking" a polar bear denning under the ice. ADF&G is not seeing
these carcasses and is increasingly worried about estimating
"take" on a model versus what is actually happening.
COMMISSIONER VINCENT-LANG directed attention to the map on slide
29 of the range of listed or candidate species. He highlighted
how much of Alaska is within the range of a listed species.
COMMISSIONER VINCENT-LANG briefly reviewed the consultation
process issues outlined on slide 30. It read as follows:
As more species are listed the more likely:
minimization & mitigation efforts will conflict
recovery objectives will conflict
critical habitat needs will conflict
climate impacts will be considered
COMMISSIONER VINCENT-LANG discussed the following legal
considerations listed on slide 31:
• All agency decisions are subject to citizen
litigation, from listing decisions to critical
habitat designations, to [jeopardy and adverse
modification (JAM)] authorizations.
• This has the real potential to slow resource
development projects, and place decisions in the
hands of judges.
He stated his preference was to place decisions regarding
recovery in the hands of biologists.
COMMISSIONER VINCENT-LANG summarized that the Steller sea lion
mitigation measures and polar bear incidental take requirements
are clear evidence that listing will affect resource development
in Alaska. He highlighted ADF&G's position that listing
decisions and implementation should be based on reasonable time
frames for population projections; reasonable recovery
objectives and goals; and reasonable establishment of critical
habitat.
4:47:29 PM
COMMISSIONER VINCENT-LANG concluded the presentation
highlighting the current state strategy to address ESA listings.
He paraphrased the list on slides 33-34 that read as follow:
• Challenge unwarranted or unjustified listing
decisions (e.g., polar bear)
• Intervene in court cases in which the state has
an interest (e.g., ribbon seal)
• Initiate down- or de-listing petitions for
recovered species (e.g., Eastern DPS of SSL)
• Conduct research on at-risk or listed species to
improve knowledge (e.g., Section 6 funds)
• Help Alaskans navigate thru the ESA processes
• Governor's budget includes a capital request for
ADF&G to fund data collection and engage in legal
challenges.
• Governor's budget also includes an increment for
the Department of Law to engage in legal
challenges of unwarranted actions.
4:48:33 PM
VICE CHAIR MICCICHE announced a few minutes remained for
questions.
4:48:42 PM
SENATOR KAWASAKI asked if the State of Alaska had determined any
species to be endangered that USFWS or NOAA had not.
COMMISSIONER VINCENT-LANG answered that the state supports
listing the North Pacific right whale and many whale species as
threatened. The primary threat to these whale species has been
overharvesting. Because this was primarily due to
overharvesting, he did not believe the critical habitat
designation was needed. He noted that since the International
Whaling Commission was created, that risk has been mitigated and
many of the populations have grown. He said the issue with the
Aleutian Canada goose was similar. Critical habitat was not
designated because the primary threat was predation.
4:50:31 PM
VICE CHAIR MICCICHE interjected to ask whether the question was
answered.
4:50:38 PM
SENATOR KAWASAKI rephrased the question and asked if the state
had determined a species to be endangered under the four areas
of concern and the federal government did not agree.
COMMISSIONER VINCENT-LANG apologized for the confusion and
answered no.
4:50:55 PM
SENATOR STEVENS asked if a regime change might affect the
Endangered Species Act.
COMMISSIONER VINCENT-LANG answered that the state would probably
monitor species affected by natural population changes, but not
list them. He noted that the issue might be treated differently
by the federal government.
4:52:47 PM
VICE CHAIR MICCICHE asked if the Aleutian shield fern was the
only plant listed under the ESA in Alaska.
COMMISSIONER VINCENT-LANG answered that is correct.
VICE CHAIR MICCICHE asked if yellow cedar was listed.
COMMISSIONER VINCENT-LANG answered no.
4:53:17 PM
VICE CHAIR MICCICHE thanked Commissioner Vincent-Lang. He stated
it is not only the Resources Committee's responsibility to
protect natural resources, but also to defend the right to
extract, produce, and harvest resources for sustenance and
economic survival as guaranteed under the Alaska Statehood Act
and ANILCA.
4:54:06 PM
There being no further business to come before the committee,
Vice Chair Micciche adjourned the Senate Resources Standing
Committee meeting at 4:54 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| (S)RES ADFG ESA Presentation 3.1.21.pdf |
SRES 3/1/2021 3:30:00 PM |
ADFG ESA Presentation |
| (S)RES ADFG ESA Presentation Acronyms 3.1.21.pdf |
SRES 3/1/2021 3:30:00 PM |
ADFG ESA Acronyms list |