Lawsuit Challenges Designation of 187,157 Square Miles of Land and Sea as Polar Bear Critical Habitat

As explained in a previous posting, in November 2010, the U.S. Fish and Wildlife Service designated 187,157 square miles of land in, and sea ice adjacent to, Alaska as critical habitat for polar bear.

Shortly after the final rule was published in the Federal Register, the Alaska Oil and Gas Association (AOGA) sent a sixty-day notice of intent to sue (PDF) the Service, alleging that the designation violates the Endangered Species Act (ESA).

Making good on its notice, on March 1, 2011, AOGA filed a complaint (PDF) in federal court seeking to invalidate the designation, which the trade association claims will cost tens of millions to billions of dollars in project delays and administrative costs--costs that AOGA says the Service unlawfully failed to take into consideration in the final rule.

Specifically, AOGA claims that the Service violated the ESA by:

  • Improperly designated areas that lack the physical and biological features "essential to the conservation of the species";
  • Improperly including in critical habitat vast areas that lack any present or foreseeable need for special management;
  • Underestimating the economic impact of the designation by tens of millions, if not billions of dollars;
  • Failing to exclude areas from the designation where the relative benefits of exclusion outweigh the relative benefits of inclusion;
  • Failing to base the designation on the best scientific data available; and
  • Enacting a "no disturbance zone" extending one mile around all designated barrier island habitat.

Similar suits are expected to follow, since the State of Alaska and a coalition of Native American groups also filed 60-day notices to sue the Service over the designation.

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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