Federal appeals court upholds polar bear habitat protection

 Eric Regehr, U.S. Fish and Wildlife Service
Eric Regehr, U.S. Fish and Wildlife Service

Panel says designation was based on ‘a thorough evaluation of the available science’

By Bob Berwyn

Acknowledging that polar bear populations in Alaska have been declining for many years, a federal appeals court this week reinstated critical habitat protections across more than 120 million acres — more than 95 percent of it sea ice — in the Alaskan Arctic.

The 9th Circuit Court of Appeals ruling reverses a 2013 lower court decision that shot down the habitat designation, finding that the U.S. Fish and Wildlife Service designation met all required legal standards.

The critical habitat designation was challenged by fossil fuel companies, several Alaska Native corporations and villages and the State of Alaska, all of which “seek to utilize the natural resources in Alaska’s waters and North Slope that make up much of the designated habitat,” according to the appeals court ruling.

In seeking to uphold its designation USFWS said the lower court misconstrued the ESA’s requirements by holding FWS to proof that existing polar bears actually use the designated area, rather than to proof that the area is critical to the future recovery and conservation of the species.

Polar bears have been listed as a threatened species under the Endangered Species Act since 2008, primarily due to the threat that global warming poses to critical sea ice habitat. In 2009, the agency proposed the critical habitat designation based on “a thorough evaluation of the available science” and consultation with polar bear experts, according to the new appeals court ruling.

The critical habitat plan was finalized in late 2010 when the USFWS  designatedabout 187,000 square miles as critical polar bear habitat, broken down into three parts. Unit 1, the sea ice habitat, included the sea ice that polar bears use as a platform for hunting, resting, short- and long-distance movements, and denning. Unit 1 comprised 95.9 percent of the total area designated as critical habitat, reflecting both the polar bears’ large range and the primacy of sea ice to the species’ success.

The rest of the critical habitat designation covered terrestrial denning habitat and barrier island habitat — areas with steep, stable slopes, access to the coast, proximity to sea ice, and freedom from human disturbance — all essential physical or biological features needed to give polar bears the space they need to reproduce successfully.

The appeals court rejected arguments that the USFWS made substantive and procedural errors in the designation, and that the agency failed to adequately consult with the State of Alaska.

“This is a critical victory for polar bears at a time when there’s huge momentum on fighting climate change,” said Center for Biological Diversity attorney Kassie Siegel, who filed the original legal petition that gained Endangered Species Act protection for the bear. “The ruling strengthens the Endangered Species Act and affirms the commonsense idea that you can’t protect imperiled animals without protecting the places they live,” Siegel said.

The appeals court also took a detailed look at the question of how climate change will affect polar bears in the future. By doing so, the panel potentially helped lay legal groundwork for similar cases by legitimizing the science-based approach used by the USFWS to assess global warming impacts.

Despite protecting great swaths of the Arctic Ocean as polar bear habitat, the Department of the Interior has moved forward with plans to allow oil companies to drill in that habita

Royal Dutch Shell announced last year that it was ending its Arctic offshore oil exploration “for the foreseeable future,” but the Obama administration still plans to offer lease sales in sensitive waters off Alaska.

“Polar bears are a keystone species of climate change impacts and we are glad to see the court recognize that the federal government was acting appropriately to protect them,” said Greenpeace Arctic campaign specialist John Deans. “However, this important species will only truly be protected if it means that these sensitive areas will be properly safeguarded from oil and gas development and coupled with strong policies to combat climate change.”

Critical habitat designation does not impact subsistence activities by Alaska Native communities.

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