U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   04/10/2003
Sen. Lisa Murkowski, of Alaska
Critical habitat designations under the Endangered Species Act

Thank you, Mr. Chairman. I want to begin by saying I’m very grateful that you are willing to address this issue in the subcommittee. It is one that has desperately needed attention for many years.

While the Subcommittee has jurisdiction to address all of the issues surrounding the Endangered Species Act, it does not normally deal with marine fisheries. However, in Alaska, by far the most damaging experience we’ve had with critical habitat issues has involved just that.

As you may know, my State’s largest private industry is the fishing industry, which occurs almost exclusively in salt water. In recent years, with salmon prices down, the mainstay of many towns and villages has become the fishery for Alaska pollock, and for similar species such as Pacific cod.

In many cases, these fisheries occur in the same waters that are used by the Steller sea lion, a listed marine mammal species in the jurisdiction of the National Marine Fisheries Service.

To make a long story short, the threat of litigation forced the Service to designate critical habitat without adequate information, and from that designation came a lawsuit that has done untold millions of dollars of damage to the economy of the State, and to the lives of the people who depend on fishing – and in the end, has done nothing to improve the sea lion population.

That lawsuit suggested that because fishing is a human activity occurring in sea lion habitat, and fishermen catch fish that sea lions are known to eat, it must be a foregone conclusion that fishing has an effect on sea lions. As it ran its course, it forced managers to adopt incredibly burdensome and impossibly complicated fishing closures and related regulations, even though there was – and is – absolutely no proof that fishing has any effect on the sea lion population. In fact, there are plenty of strong indications that fishing is NOT at fault for the problems of the sea lion population.

But the facts of the case didn’t matter. What mattered was the law – a law that has been interpreted so that nothing less than absolute proof can demonstrate that a human activity is harmless, while even the vaguest of unproven suspicion is accepted as a basis for draconian restrictions.

In the case of our sea lions, it now seems far more likely that they were affected not by fishermen, but by a natural cycle in the environment of the North Pacific which scientists call the Pacific Decadal Oscillation. That is Mother Nature’s doing, not man’s.

The ancient Greeks had a term – “hubris.” Very loosely defined, it means when man gets too big for his britches. In our case, the britches in question are being worn by Mother Nature, and we are not nearly big enough to fill them.

The current law is flawed, and deeply so. It carries a presumption of man’s guilt that requires that action be taken against activities that may actually be harmless, or even beneficial. It requires no scientific proof to indict … and absolute proof to rebut.

Currently, we in Alaska are waiting for what may be round two – the Fish and Wildlife Service is considering whether to list Alaska sea otters, whose population has fallen dramatically in recent years. If sea otters are listed, you can be absolutely sure that there will be groups waiting in the wings to file a lawsuit if a critical habitat designation is not made right away. And, although the Service has made it clear that it believes predation by killer whales is the likely cause of the sea otters’ problems, not fishing or any other human activity, you can also bet that those same groups will be eager to file a lawsuit to shut down any other activity they may find distasteful, whether or not there is any evidence that it is part of the problem.

While I accept that the Endangered Species Act was adopted with the very best of intentions, and I support those intentions wholeheartedly, it would be foolish to suggest that it cannot be improved. The critical habitat provisions would be a good place to start.