The Alaska Oil and Gas Association (AOGA) is suing the federal government for designating more than 187,000 square miles of the state as critical habitat for the polar bear under the Endangered Species Act (ESA).

The critical habitat designation by the Department of Interior's U.S. Fish and Wildlife Service (FWS) was published as a final rule last December in the Federal Register. The ruling restricts activity in large areas of sea ice offshore Alaska, including in the Chukchi and Beaufort seas, where some producers had planned to explore. Designation of critical habitat does not automatically block development, but it requires the FWS to consider whether a proposed action would adversely affect the polar bear's habitat and interfere with its recovery.

However, the designation covers too much territory and could cost Alaska millions in economic effects, the AOGA stated in its complaint, which was filed last Tuesday in U.S. District Court in Anchorage (Alaska Oil and Gas Association v. Kenneth L. Salazar, Secretary of the Interior; and the U.S. Fish and Wildlife Service, No. 11-cv-00025-RRB). The plaintiffs asked the court to declare the final rule unlawful and to vacate and remand it to the FWS for further consideration.

"This is an area larger than 48 of the 50 states, exceeding the size of the State of California by nearly 25,000 square miles," the lawsuit said. "This critical habitat designation is unprecedented not only because it is the largest area set aside in the history of the ESA, but also because the designation arises in the context of an abundant species (20,000-25,000 polar bears in 19 recognized subpopulations) that occupies its entire historical range."

The industry group called the designation "arbitrary and capricious" for several reasons, including that it "excessively designates vast areas that (a) lack the physical and biological features 'essential to the conservation of the species' and that (b) the Service has admitted to not currently, or in the foreseeable future, requiring special management measures."

The AOGA represents 15 oil and gas companies that account for most of Alaska's exploration, production, refining and marketing. It claimed in the lawsuit that there is no evidence of an overall decline in the global polar bear population or its historical range.

The Interior Department under former President George W. Bush declared polar bears a threatened species in 2008 because of diminishing sea ice, and in 2009 the Obama administration retained the ESA declaration -- with support from the American Petroleum Institute (see Daily GPI, May 12, 2009).

The AOGA lawsuit is the first filed in opposition to the critical habitat designation but other lawsuits are expected. The state of Alaska and a coalition of Alaska Native groups have given the federal government a required 60-day notice that they intend to file a lawsuit over the federal recovery plan for polar bears.

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