FWS clarifies polar bear designation; Alaska considers suit

The US Fish and Wildlife Service clarified for a federal court its 2008 designation of the polar bear as a threatened but not endangered species after Alaska said it is considering a legal challenge to FWS’s designation of more than 187,000 sq miles in the state as critical polar bear habitat under the Endangered Species Act.

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, Dec. 27 -- The US Fish and Wildlife Service clarified for a federal court its 2008 designation of the polar bear as a threatened but not endangered species after Alaska said it is considering a legal challenge to FWS’s designation of more than 187,000 sq miles in the state as critical polar bear habitat under the Endangered Species Act.

The law defines an endangered species as one “in danger of extinction” and a threatened species as one likely to become endangered in the foreseeable future. Following a hearing in a suit brought by environmental organizations that challenged the designation, the US District Court for the District of Columbia asked in October for further explanation of how the US Department of the Interior agency interpreted the two definitions.

In its memorandum, FWS said its biologists concluded in 2008 that the polar bear was not facing sudden and catastrophic threats, was still a widespread species not restricted to a critically small range or critically low numbers, and was not suffering ongoing major reductions in numbers or range. It accordingly was not in danger of extinction when the listing was being determined and did not warrant listing as an endangered species, the agency said.

It added that FWS biologists also found in 2008 the polar bear faced serious threats in the foreseeable future from the projected destruction, modification, or curtailment of its sea ice habitat or range due to global climate change and a lack of sufficient regulations to curtail this threat.

FWS said it concluded the incremental sea ice habitat loss over time would limit polar bears’ ability to satisfy essential life-history requirements and result in their likely being in danger of extinction within the foreseeable future, making it appropriate to list them as threatened.

Not needed
Alaska Gov. Sean Parnell told US Interior Secretary Ken Salazar in a Dec. 21 letter the state considers FWS’s designation of critical polar bear habitat there excessive. “We already have state laws, the federal Marine Mammal Protection Act, and international agreements that provide strong conservation measure for polar bears,” the governor said as he released the letter. “The additional regulations and consultations and likely litigation that would be triggered by this habitat designation would simply delay jobs [and] increase the costs of, or even prevent, resource development projects that are crucial for the state.”

The designation, which FWS announced Nov. 24, covers nearly 200,000 square miles of barrier islands, onshore denning areas, and offshore sea ice as critical polar bear habitat under the Endangered Species Act. It includes areas of oil and gas where consultation with FWS now will be required before any activity occurs, the notice indicated.

The letter to Salazar triggered a 60-day period in which the secretary may withdraw the designation or correct violations of the ESA the state listed in its correspondence. Alaska can proceed with its litigation if no action is taken.

The state contended in its letter that FWS disregarded federal law by including geographical areas in the designation in which there is little or no evidence of physical or biological features that are essential to conservation of polar bears. It said mapping of Norton Sound, which was included as critical sea ice habitat, does not show the area even within the range of polar bears. By designating nearly the entire geographical area that can be occupied by the animal, FWS violated the ESA, according to the state.

“Federal officials also disregarded comments submitted by the state and failed to fully consider the economic impact and national security implications of the critical habitat designation,” Parnell said. “Once again, we are faced with federal overreach that threatens our collective prosperity. We don’t intend to let this stand.”

Contact Nick Snow at nicks@pennwell.com.

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