NOAA Fisheries

National Marine Fisheries Service had designated more than 160 million acres of the Bering, Chukchi, Beaufort and East Siberian seas critical habitat for the Beringia distinct population segments of the bearded seal and the Arctic ringed seal.

The federal district court has come to the rescue of the state with regard to unwarranted closure of millions of acres of arctic waters.

On April 1, 2022, the National Marine Fisheries Service (NMFS) issued a final rule designating in excess of 160 million acres of the Bering, Chukchi, Beaufort and East Siberian seas critical habitat for the Beringia distinct population segments of the bearded seal and the Arctic ringed seal.

In February 2023, the state of Alaska initiated litigation against the NMFS, challenging the final rules alleging the designations violate the Endangered Species Act (ESA) requirement that critical habitat designations be limited to those "specific areas that are essential to the conservation of the species."

On Sept. 26, 2024, the federal district court for the District of Alaska ruled that specific areas designated as critical habitat must be essential to the seals' conservation. Among other things, the court pointed out that the NMFS did not consider foreign nation efforts in determining what habitat in the United States would be indispensable to the seals.

The court noted that the NMFS could not identify where essential sea ice features are located because the sea ice is dynamic and variable, and identifying exactly where essential features are found demands "greater scientific specificity than the available data could provide."

The state argued that the ESA requires the NMFS to take into consideration the economic impact, the impact on national security, and other relevant impacts for specifying any particular area as critical habitat and exclude such areas if they outweigh the benefits of including them.

The state and the North Slope Borough specifically requested that certain areas be excluded, contending that economic activity such as oil and gas exploration, development and production are critical to the economy of Alaska's north slope and the state in general.

The court ruled that "given the [NMFS] 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 finds the NMFS abused its discretion in deciding not to consider exclusion of any areas from critical habitat."

The matter was remanded to the agency for further action.

Although this case does not specifically touch on mining directly, it underscores how, once again, the federal government is wantonly disregarding the state's rights and interests in maintaining its land and adjacent waters.

First, of course, is the protection of fish and wildlife in the adjacent waters that, by the equal footing doctrine, belong to the state.

Next is the obligation of the federal government to respect the economic opportunities represented by the Statehood Act, the Native Claims Settlement Act and the Alaska National Interest Lands Conservation Act.

The fact that this assault on Alaska's integrity comes out of NMFS, an agency of the Department of Commerce, instead of the Department of the Interior, is collateral to the underlying principle that Alaska not only has special and unique issues but also the capacity to address those issues effectively.

The legitimate argument for protecting the bearded seal and the Arctic ring seal is not precipitated by onshore economic activities in Alaska or by offshore activities in Alaskan waters; it is a function of disappearing habitat throughout the Arctic.

Nonetheless, the administrative state, believing its only tool is a hammer, responds to every problem as if it is a nail.