(CN) — It’s back to the drawing board for the federal agency tasked with designating critical habitat for ringed and bearded seals in Alaska after a federal judge sided on Thursday with the state, which said the agency overreached in the protections.
In 2022, the National Marine Fisheries Service designated over 160 million acres of water spanning from the Alaska shoreline to the international dateline in much of the Bering Sea, as well as the shelf of the Beaufort Sea and all of the Chukchi Sea, as critical habitat for the seals.
Alaska sued the agency and the Center for Biological Diversity which intervened in the case, in early 2023, describing the designation as unprecedented and accusing the agency of violating environmental laws.
U.S. District Judge Sharon L. Gleason agreed with the state that the National Marine Fisheries Service didn’t act in accordance with the Endangered Species Act when making the designations.
“Simply because NMFS is unable to identify a less extensive, specific geographic location for breeding or molting does not explain why the 160-million-plus-acre areas it identified as critical habitat are ‘necessary’ or ‘indispensable,’” the Barack Obama appointee wrote of ensuring the seals’ survival and recovery.
The service listed both subspecies of seals — the Arctic ringed seals and the Beringia distinct population segment of bearded seals — as threatened under the Endangered Species Act in 2012. The listing granted the seals more protections, including the designation of critical habitat.
Under the act, the agency is permitted to designate occupied or unoccupied critical habitat, but is required to limit critical habitat to only those “specific areas that are essential to the conservation of the species.”
As the state argued, and to which Gleason agreed, the service didn’t explain why each area was necessary to the seals’ recovery and survival or why a smaller area wouldn’t suffice.
The service argued that since it only designated occupied areas as critical habitat, it wasn’t required to determine that the entirety of those designated areas was essential.
Gleason wasn’t convinced.
“In effect, the service implicitly acknowledges that only a fraction of the designated areas may be indispensable to the seals’ conservation at any one time,” Gleason wrote about a statement from the service describing the seals’ habitats as static.
“NMFS made these designations, however, without explaining why the entirety of each designated area is necessary to the seals’ survival and recovery, or why a smaller area would be inadequate for their conservation,” Gleason wrote, mentioning that a large portion of both seals’ habitats extends beyond U.S. territory and waters.
The Center for Biological Diversity argued that the seals’ habitat requirements are “extensive and dynamic,” justifying the large habitat designation, but Gleason again brought up the seals’ range.
“It is error to consider a species’ survival and recovery within the United States only,” Gleason wrote.
While the Endangered Species Act doesn’t allow the service to designate critical habitats outside of the United States’ jurisdiction, the federal judge questioned why the service didn’t consider the effort of foreign nations in creating critical habitats for the seals.
“Although the court acknowledges the challenging nature of designating critical habitat for threatened species that inhabit Arctic waters, the court does not read the ESA to permit the service to designate nearly all of the seals’ occupied habitat within the United States as indispensable to the seals’ conservation,” Gleason said.
Alaska accused the service of failing to consider the economic impacts of its designations, particularly given the state’s oil and gas exploration, to which Gleason agreed it was an abuse of discretion.
Gleason did agree with the service that it properly identified areas with essential habitat features for the seals and its determination the habitat may need special protection in the future.
The court remanded the service’s critical habitat demand with vacatur, meaning the seals will be left without designated critical habitat until the agency develops new rules consistent with the order.