Boroughs, industry groups challenge beluga suit

Cook Inlet whales could be listed as endangered

Posted: Sunday, November 05, 2000

The Resource Development Council, the Alaska Oil and Gas Association and three municipalities filed papers last week to intervene in a lawsuit that could bring Endangered Species Act protection for Cook Inlet beluga whales.

"It's important to take a step back and look at what's behind the decline. There is no dispute that it's over-hunting," said Ken Freeman, executive director of the Resource Development Council.

The National Marine Fisheries Service gained the authority to regulate Native hunting when it listed Cook Inlet belugas last spring as depleted under the Marine Mammal Protection Act.

"What is the environmental community after with the Endangered Species Act listing?" Freeman asked. "It's the ability to regulate all those other human activities that the National Marine Fisheries Service and all those other studies say are not linked to the decline. "

NMFS determined after the depleted listing that additional protection under the Endangered Species Act was unnecessary. In September, a coalition of environmental groups asked the U.S. District Court for the District of Columbia to find that NMFS had failed to use the best available information and to order it to make a new determination.

On Monday, the development council and oil and gas association filed to intervene on behalf of NMFS. The Kenai Peninsula Borough, the Matanuska-Susitna Borough and the Municipality of Anchorage joined in a second filing, also to intervene on behalf of NMFS. Attorney Jack Sterne of the Trustees for Alaska, who represents the environmental groups, said he does not expect the court to rule until December whether those parties have standing to intervene.

An Endangered Species Act listing would force NMFS to designate critical beluga habitat and require anyone applying for federal permits for projects in critical habitat to consult with NMFS. Sterne said developers would have to demonstrate that their actions would not jeopardize belugas or injure critical habitat.

Freeman said hundreds of projects are stalled pending such consultations in the Pacific Northwest, where salmon and trout are listed for Endangered Species Act protection.

Such delays can break a project, he said, and the prospect that belugas could be listed as endangered worry supporters of expansions to Port MacKenzie and of a pipeline to bring North Slope natural gas to Nikiski.

"Why should we be putting projects off a year or more when there's no link to the decline of the whales?" he asked.

Sterne said such fears are overblown.

"The Endangered Species Act, in the vast majority of cases, has not stopped any of these development projects," he said.

Steve Silver, the attorney representing the three municipalities, questioned that.

"Those statistics are based on the projects where people persevere on the permit applications," he said. "Many people withdraw their permit applications or are required to relocate."

Sterne said developers have nothing to fear if, as they claim, activities such as oil and gas development, shipping and municipal discharges have no effect on the belugas.

However, he said, if they must modify their proposals to protect belugas, that should be a normal cost of doing business.

The belugas now are so few that a catastrophe could push them to extinction, he said.

"The way belugas congregate at the mouths of rivers to feed makes them much more vulnerable to a shipping accident, an oil spill or a stranding," he said.

Native hunters estimate there were as many as 1,000 Cook Inlet belugas as recently as the 1980s. By 1998, NMFS estimated there were just 347. In January 1999, the state petitioned for the Marine Mammal Protection Act listing.

In March 1999, environmental groups petitioned for the Endangered Species Act listing. That summer, Sen. Ted Stevens, R-Alaska, won passage of legislation that banned subsistence hunting of Cook Inlet belugas until Oct. 1 this year, except under a cooperative agreement between NMFS and an authorized Alaska Native group. There was no hunting in 1999, and NMFS said its 1999 survey suggested the beluga population had grown by 10 animals.

"We think the beluga population is capable of increasing if we control the hunting activity," NMFS spokeswoman Carol Tocco said last spring.

In May 2000, NMFS established the depleted listing. It reached an agreement with the Cook Inlet Marine Mammal Council that allowed the village of Tyonek to take one beluga last summer, Freeman said, but villagers took none.

Brad Smith, NMFS supervisor of protected resources, said NMFS is writing regulations to limit hunters to two Cook Inlet belugas per year. Those should be in place by spring.

Stevens has attached a rider to a pending appropriations bill that would extend the moratorium on hunting, except under a cooperative management agreement, indefinitely.

Smith said the environmental impact statement analyzing NMFS' beluga management plan concluded that factors such as oil and gas development, noise from ships, competition with commercial fishers for food and municipal discharges were insufficient to explain the decline.

In their September brief, environmental groups said existing rules cannot prevent a catastrophic accident in critical beluga habitat. A 1987 spill dumped more than 600,000 gallons of oil into Cook Inlet, they wrote. The increase last year in the estimated Cook Inlet beluga population was not statistically significant.

NMFS "admits that it needs at least 3 -5 more years of data to provide 'conclusive evidence of recovery,'" they wrote.

Freeman said development already is strictly regulated.

"How is an Endangered Species Act listing going to prevent a catastrophe, whether it's an oil spill, a tsunami or a stranding?" he asked.

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