Cook Inlet beluga whales were listed Wednesday as depleted under the Marine Mammal Protection Act. That allows federal biologists to regulate the Native hunting they blame for the belugas' decline.
Meanwhile, development interests may intervene to block listing the whales as endangered under the Endangered Species Act. A Kenai Peninsula Borough task force promoting Nikiski as the terminus for a North Slope natural gas pipeline will discuss that possibility today at 11 a.m. at the borough building in Soldotna.
"I think it's something we definitely have to look at," said assembly president Bill Popp, who sits on the task force. "If there's an endangered species listing, it could prevent any kind of industry that in any shape, manner or form impinges on Cook Inlet belugas."
Popp said he has seen no evidence that anything but hunting has caused the belugas' decline, but an endangered listing could block the gas line from crossing Cook Inlet.
"They could restrict the time of year they can do construction," he said. "They're not going to try construction in the winter when there's ice moving through. They're going to construct it during summer, and that's when the beluga whales are coming into Cook Inlet."
John Schoen, chief scientist for the National Audubon Society in Anchorage, said the difference between the two listings is that the Marine Mammal Protection Act is focused primarily on harvest, while the Endangered Species Act looks more broadly and also takes habitat into account.
He said it is unlikely that an endangered listing would block pipeline construction.
"If you (built) it at a time that did not interfere with belugas feeding off the mouth of a stream, it would not appear that there would be any conflict," he said. "I don't know where the line would be laid, but to suggest that laying the line would be stopped by an endangered listing is inappropriate."
With an endangered listing, NMFS could identify critical beluga habitat, and any activity in critical habitat that requires federal approval or receives federal funding -- such as oil and gas development or waste water treatment -- would require consultation with NMFS.
NMFS generally can propose alternatives to minimize harm to endangered species, he said. However, it can veto projects that would jeopardize survival of an endangered species.
Native hunters estimate there were as many as 1,000 inlet belugas as recently as the 1980s. In 1994, NMFS estimated the population at 653. By 1998, it counted just 347.
In January 1999, the state petitioned for the Marine Mammal Protection Act listing. In March, environmental groups petitioned for the Endangered Species Act listing.
Last summer, Congress put a moratorium until Oct. 1 on subsistence hunting for inlet belugas, except under a cooperative agreement between NMFS and an authorized Alaska Native group. So far, there has been no such agreement.
By law, Commerce Secretary William Daley should have decided by March 3 whether to list inlet belugas as endangered. Audubon and other environmental groups sued last month to force a decision.
"We're thinking about potentially intervening in the lawsuit," said Ken Freeman, executive director of the Resource Development Council. "There's a concern that not only will the judge rule on having the agency make the decision, but he might even make the decision for the agency."
Freeman said he has discussed intervening with the Kenai Peninsula Borough and other communities. Interveners must file by June 8.
The borough's North Slope pipeline task force could recommend this morning that the borough should intervene in the case, said Betsy Arbelovsky, task force director. The borough assembly, which would have to approve, meets June 6.
Kenai Mayor John Williams said he will consult with the city attorney and may suggest that the city intervene, too, during the city council's June 7 meeting.
However, Mike Payne, Protected Resources Division chief for the National Marine Fisheries Service in Juneau, said he sees little logic to intervening before Daley makes a decision. He said he has never seen a judge decide an endangered species petition without first hearing the agency's decision.
If Daley rejects an endangered listing and environmental groups sue, then developers might more logically intervene, he said.
Freeman said NMFS will not consider economic factors, and that could be catastrophic.
"The agency must analyze shipping and construction. Is noise going to affect belugas?" he said. "Even if the agency does nothing, environmental groups are likely to sue to block development."
Payne said people often fear an endangered listing because they do not understand the law.
"The first step is to decide if there should be an endangered listing," he said. "The second step is to check if there are impacts (from a project) on the whales. If there aren't, they have nothing to fear. If there are, they should be doing something about it anyway."
The ability to regulate hunting should help belugas recover, he said. A decision on the endangered listing should come within a few weeks.
"No matter what happens, I don't think what I'd like to do will change much," he said. "We want a co-management agreement (with Native groups on hunting). We want to recover the belugas. We'll send letters to all those groups to try to make sure that ongoing activities don't impact the whales. I've never heard of those requests being turned down."
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