VACATED— A federal judge vacated the critical habitat boundaries for bearded and ringed seals.

Judge vacates ringed, bearded seal habitat designation

Last week, a federal judge in Anchorage vacated a protected bearded and ringed seal habitat along the entire coastline from the Canadian border in the north along the entire western Alaska coastline down to Nunivak Island, including St. Lawrence Island and Little Diomede.  
In 2023, the State of Alaska sued the National Marine Fisheries Service, or NMFS, for alleged violations of the Endangered Species Act. The state claimed that the habitat protections for bearded seals and ringed seals were too large and impeded economic activity without enough benefit to the seals. On September 26, U.S. District Court Judge Sharon Gleason agreed, thus overturning the protected area for now.
In her ruling Judge Gleason said, “Given the Service’s lack of explanation for why the entire 160-million-plus acres it designated as critical habitat for the seals is essential to their conservation, the Court also finds that NMFS abused its discretion in deciding not to consider exclusion of any areas from critical habitat, including its decision to not consider exclusion of a ‘20-mile buffer zone around communities and along the Beaufort Sea coast’ as requested by the State, and ‘a 10-mile buffer zone around all North Slope villages and all lands conveyed to the Borough or to Alaskan Native corporations, along with shipping lanes needed for the transportation of good[s] and services to and from North Slope communities,” as requested by the North Slope Borough.”
When the ringed and bearded seals were listed as threatened under the ESA, the Secretary of Commerce was tasked also “to the maximum extent prudent and determinable designate any habitat of such species which is then considered to be critical habitat.” Until last week, the critical habitat designation for bearded seal and ringed seal covered the entire northern and western Alaska coastline to Nunivak Island. While the protected habitats were designated, ESA requires each federal agency to ensure “that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [the critical] habitat of such species,” unless the agency has been granted an exemption. For example, if a company were to apply for a permit to deep-sea trawl in the critical habitat, the agency giving that permit would need to consult with NMFS.
NMFS and NOAA declined to speak with the Nugget, citing ongoing litigation.
Ice seals are an essential food source for many villages across the Bering Strait.
“You got to remember; we don’t have an alternative other than buying really expensive store-bought stuff. That’s the whole reason they are reliant on seals,” said Charles Menadelook, director of subsistence at Kawerak. “Outside of Nome, there’s really no way to get fresh food out reliably.”  
While the habitat protections limited oil drilling and deep-sea trawling, they did not prevent subsistence seal hunting by Alaska Native populations.
“These Endangered Species Act protections, they’re unique,” said Cooper Freeman, Alaska Director at the Center for Biological Diversity, which intervened in this case. “There’s no other law that provides the same kinds of protection, and they’re essential to ensuring that, again, these seals can persist in this place and be available as a critical subsistence resource for people across the region.”
Under the ESA, indigenous seal hunting is protected and allowed.
“The success of an ESA listing is not just ensuring that ice seal populations avoid serious declines but that subsistence harvest can continue indefinitely,” Freeman said.  
The push to remove protections for ice seals has been ongoing for years.
In a legal brief, the state argued that the designated critical habitat was not specific enough, as it encompassed almost all the territory the seals roam. The state claimed that there were parts of the state where the economic benefits of activities like oil and gas drilling would outweigh the benefits of habitat protection.
“The North Slope of Alaska and the adjacent offshore areas of the Beaufort and Chukchi seas are the location of nationally strategic oil and gas exploration,” the state wrote in the brief. It noted that NMFS had listed oil and gas and marine shipping as significant threats to the ice seal habitats. “The sovereign interests of Alaska are injured by the designation of critical habitat for the ringed seal and the beaded seal, including unnecessary delays and restrictions on oil and gas development, mining, and marine transportation.
In the brief, the state called the critical habitat designations “arbitrary, capricious, an abuse of discretion, and not in accordance with the law.”
Freeman argued that because sea ice moves every year, it is impossible to designate small, specific areas as long-term critical habitats—after all, if the ice is in one place this year, it may not be in the same place the following year.
“We all know how dynamic the ice is in the Bering Strait region, especially as climate change is causing so much unpredictability,” said Freeman. “The seals need ice, and they go where the ice is. So, the seals need a big, protected area to ensure that wherever the ice is, it will be protected for them.”
Menadelook said he is not sure whether the habitat protections get to the heart of the problems with ice seals. In his opinion, the biggest threat to ice seals, other than climate change, is shipping. He said that big ships break up the ice, further shrinking the seals habitat.
“If we had more stringent regulations on shipping through our areas, then that might mitigate some of that,” said Menadelook. “But Russia owns half of the Bering Strait and half of the Bering Sea and we can’t make them change that regulation.”
The State of Alaska also filed a petition to delist ringed seals as an endangered species, but it was denied in court and on appeal.
“We’re going to keep fighting for the seals and their habitat,” said Freeman. “Meanwhile, the state is trying to—not only working to destroy their habitat, but also removing their protections that are going to keep them around for generations to come.”     
Now that the protected habitat designation has been vacated, there are currently no protections for the seals’ habitat, although the seals themselves are still protected under the Endangered Species Act.  
NMFS, which is a subset of NOAA, has sixty days to appeal the decision.
The judge remanded the habitat designation back to NMFS “for further proceedings consistent” with the judge’s order. Jennifer Angelo, Public Affairs Officer for Alaska a NOAA Fisheries said in an email to the Nugget that this means that the district court sent the rulemaking back to NMFS. “NMFS can either redo the rulemaking that designated the critical habitats to address the deficiencies that the district court identified, or NMFS can appeal the decision to the Ninth Circuit,” Angelo wrote. “The former does not necessarily mean that NMFS will redo the boundaries, although that is certainly a possible outcome. At this time, NMFS has not decided which next step it will pursue.”

 

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