Mayor all wrong about Cook Inlet beluga whales

As a lawyer who participated in the drafting of the petition that led to the listing of the Cook Inlet beluga whale as endangered under the federal Endangered Species Act (ESA), I feel compelled to respond to Mat-Su Mayor Talis Colberg’s recent Spectrum (Jan. 25) concerning the whale. The column is riddled with legal and factual errors, unsubstantiated claims and unhelpful political rhetoric.

Mayor Colberg first erroneously conflated listing the beluga with designation of critical habitat for it. He is a lawyer, the former attorney general, and should know better. Listing and designation are separate processes. The National Marine Fisheries Service first listed the beluga as “depleted” under the Marine Mammal Protection Act in 2000 (65 Fed. Reg. 34595; May 31, 2000). The state and borough governments participated in federal court litigation, Cook Inlet Beluga Whale v. Daley, which unsuccessfully challenged this listing decision. Contrary to the state and borough predictions at that time, the beluga whale population has not recovered; it has declined further. Consequently, in 2008 NMFS listed the beluga whale as endangered under the ESA. While listing is now over and done with, NMFS has since proposed designation of critical habitat, which, contrary to another statement the mayor made, includes more than just river estuaries in 74 Fed. Reg. 63080 (Dec. 2, 2009).

Mayor Colberg’s legal training also should have led him to know better than to misuse the word “species” so as to equate the beluga whale population with the four other stocks of beluga whales resident in Alaska. The distinction between genus and species dates to the 17th century, when Carl Linneaus invented the five-part scientific classification system for plants and animals, long before science had any knowledge of genes or how animals that might be classified by appearance as the same species could differ from each other in remarkable ways. Species is defined within the ESA to reflect current scientific knowledge. The ESA definition of species ultimately can lead to protections for genetically distinct and geographically isolated populations of animals like the Cook Inlet beluga whale. While the five Alaska stocks of beluga whales may look similar, NMFS’s sampling of hundreds of whales has proved that the stocks are “significantly different” from each other and that the Cook Inlet stock is the “most distinct” (65 Fed. Reg. 34595 – 96; May 31, 2000). Furthermore, NMFS’s “genetic samples suggest these (Cook Inlet beluga) whales have been isolated (from the four other stocks) for several thousand years” (nmbs.noaa.gov/pr/species/mammals/setaceans/belugawhale).

With respect to the Cook Inlet beluga whale’s isolation, Mayor Colberg suggested the stock might migrate and intermingle with other Alaska stocks. NMFS recently stated, however, that “there are few beluga sightings in the Gulf of Alaska outside of Cook Inlet,” that the “present range of the listed belugas is limited to waters north of line from Cape Douglas to Cape Elizabeth,” and that since the 1970s the population of beluga whales has been confined mainly to central and north (74 Fed. Reg. 63080, 63083; Dec. 2, 2009).

If Mayor Colberg has credible scientific evidence to the contrary, he should immediately reveal it to the public and NMFS. Mayor Colberg also claimed that because NMFS has not determined what is causing the beluga whale’s endangerment, this uncertainty will “all but guarantee expensive and extraordinary measures in any activities near ‘critical habitat.’” Whatever might be the cause of the endangerment, the ESA requires that before an otherwise federally authorized activity may be prohibited, there must be a showing that the proposed activity may jeopardize the continued existence of the species.

Jeopardy occurs when an action is reasonably expected, directly or indirectly, to diminish a species’ numbers, reproduction or distribution so the likelihood of survival and recover in the wild is appreciably reduced. This is only very rarely shown. As a consequence, government statistics collected over the years show that while thousands of projects across the nation have been subject to inter-agency biological consultations under the ESA, only a tiny percentage of these projects have been found to create jeopardy.

U.S. Gen. Accounting Office, Endangered Species: Limited Effect of Consultation Requirements on Western Water Projects, Doc. No. GAO/RCED-87-78 (March 1987) between 1987 and 1995, approximately 600 jeopardy or adverse modification of critical habitat findings were made in consultations on 186,000 projects (U.S. Fish & Wildlife Consultations with Federal Agencies: Section 7 of the Endangered Species Act (De2005). Between 1998 and 2000, only 420 projects resulted in a jeopardy opinion out of more than 300,000 consultations.

Thus, the main point of Mayor Colberg’s article, that providing protection to the beluga whale will inevitably stop development and prevent the creation of jobs in Mat-Su, is simply unsupported by the history of the ESA. Moreover, Mayor Colberg’s thesis insidiously favors polluters over environmentally clean jobs, long-term sustainability and the preservation of all species for use by future generations. We do not need, however, to choose between human welfare and the environment, between the beluga whale and a sustainable Mat-Su economy.

The health of both are not in conflict but are of one piece.

Mayor Colberg began his column by quoting the French philosopher Rousseau. In his 1754 Discourse on Inequality, Rousseau renounced the very attitude the mayor’s opinion reflects, saying:

“The first man who, having fenced in a piece of land, said, ‘This is mine,’ and found people naive enough to believe him, that man was the true founder of civil society. From how many crimes, wars and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: ‘Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.’”

Michael J. Frank is an attorney living in Anchorage.