Lake Iliamna is the largest fresh water body in Alaska, and the second largest lake wholly within the United States, after Lake Michigan. Located in southwest Alaska, it’s connected to Bristol Bay by the Kvichak River, a 50-mile long river. Lake Iliamna is unique in the United States by hosting a population of Harbor Seals, Phoca vitulina richardii.
In 2012, the Center for Biological Diversity petitioned to have the harbor seals in Lake Iliamna listed as a threatened or endangered species under the Endangered Species Act, and to designate critical habitat concurrent with listing. Five years along, the National Marine Fisheries Service (NMFS, usually pronounced “nymphs”) finally got around to making a determination.
And NMFS concluded the Iliamna Harbor Seals were not entitled to protection under the Endangered Species Act. But the finding, published recently in the Federal Register, is riddled with inconsistencies, logical errors and non sequiturs that it is pretty unlikely to withstand review by a federal court.
Why would WC say that NMFS botched the review? To explain, we have to look at what makes a species “endangered” or “threatened” under the Endangered Species Act.
The analysis starts with asking whether or not the Iliamna Harbor Seals are in fact a “species.” Only then do you ask if the species is “endangered.”
The law protects not just a “species” but a “distinct population segment.” A “distinct population segment” must meet two criteria:
(1) The population segment must be discrete in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the population segment must be significant to the remainder of the species (or subspecies) to which it belongs.
In this case, Iliamna harbor seals have to be both discrete from and significant to the eastern North Pacific subspecies of harbor seals (P. v. richardii), to be designated as a “distinct population segment. You’d think that living in freshwater, 60 miles upriver from Bristol Bay might be “distinct.” And, after a lot of waffling, hemming and hawing, NMFS concedes that’s so.
But then NMFS jumps to the conclusion that these freshwater dwelling marine mammals don’t qualify as “significant” to the Eastern Pacific subspecies. The local traditional knowledge that was reliable enough to support the “discreteness” criterion is suddenly not reliable to support the “significance.” criterion. Never mind that they are genetically different. Never mind that they have behavioral differences, including learning to live and forage under Lake Iliamna’s ice when it freezes over. Never mind that all available data suggest the freshwater seals look different and taste different in the judgment of Alaska Native subsistence hunters.
NMFS claims to apply four criteria in determining the “significance” of the population:
(1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
Unique ecological setting? Check. Loss of the population would result in a significant gap? Yeah, all the freshwater seals in the U.S. Check. Only surviving population of freshwater seals? Check. Differs markedly? Yes, per traditional local knowledge.
Yet NMFS concludes the population is not significant. And therefore not a “species”. And therefore not qualified for protection under the Endangered Species Act.
It’s a doubtful conclusion, as the Ninth Circuit has said in other cases.
WC has no idea whether the Center for Biological Diversity, the NGO that filed the petition will appeal the decision. With Pebble Mine in the economic tank for the time being, the urgency of protection is somewhat diminished. You have to pick your fights. This one is likely winnable, but has less urgency than it might have.