A proposal to expand federal protections for the endangered Hawaiian monk seal is facing major push back from the state.

In documents filed with the federal government, the Hawaii Department of Land and Natural Resources says that plans to designate large swaths of the state’s coastlines as critical habitat for the mammals would create an unnecessary layer of bureaucratic red tape and do little if anything to promote the species’ survival.

The stance puts DLNR at odds with environmental groups that have pushed for the designation, arguing it’s a critical step for a seal population that is heading toward extinction.

And it leaves the federal officials in charge of making a final determination on the proposed rule walking a legal tight rope. If the National Oceanic and Atmospheric Administration bows to state pressure to significantly amend or discard the designation, it could be sued by environmental groups who have not hesitated to use the courts elsewhere to win protection under the Endangered Species Act.

Environmental Groups Force the Hand of NOAA

The Center for Biological Diversity, Honolulu-based KAHEA and Ocean Conservancy petitioned NOAA to expand the critical habitat designation around the main Hawaiian Islands in 2008. The northwest Hawaiian Islands are already designated as critical habitat.

Marti Townsend director of KAHEA said that the groups acted because NOAA wasn’t “fulfilling its mandate to protect the species from extinction.” Monk seals are declining at a rate of 4 percent a year and less than 1,100 are believed to remain in Hawaii, according to NOAA.

“The federal government has really fallen down on its responsibility to actively manage monk seals, and that’s part of the reason why the population has declined so severely,” said Townsend.

The petition forced NOAA to review the proposal. The agency determined it had merit and has since conducted further studies and outlined areas around the islands that would be subject to the designation. The area would extend about 16 feet inland and out to a water depth of 1,640 feet. The majority of Hawaii’s coastlines are included, with exceptions for harbors and military reservations.

If approved, it would be the first time that ocean shorelines in the main Hawaiian Islands would be designated as critical habitat. The designation means that NOAA officials must review any activity that requires a federal permit, involves federal funding or a federal action, to ensure that it won’t harm monk seals.

The seals are already listed as endangered, which means that harming or killing them can result in criminal charges, fines and jail time.

The State Pushes Back

In written testimony submitted to NOAA, DLNR calls for a major scaling back of the area that would be designated as critical habitat.

The rule “is overly broad, is not consistent with the actual physical and biological needs of the endangered monk seal, and is an extraordinary regulatory burden on government officials unrelated to the management activities that would actually promote recovery of the seal population,” wrote DLNR.

The department’s stance echoes criticism from other local officials, including Rep. Sharon Har, former Gov. Linda Lingle and Rep. Cynthia Thielen. The proposal has also angered local fishermen, who in heated public meetings with NOAA officials argued that the protections could hurt their fishing operations because the seals were aggressive and a threat to their catch.

DLNR stressed the need to protect the seals, but said that the critical habitat designation isn’t the way to do it. The seals have been prospering in the main Hawaiian Islands, where their numbers have been steadily increasing. In the northwest Hawaiian Islands, the seals struggle to find food, are often eaten by sharks and in some cases are attacked and killed by other aggressive male seals.

This isn’t the case in the main Hawaiian Islands, where DLNR says pup survival is already good and seals have access to more food and there’s less predation by sharks.

DLNR’s testimony calls for a much smaller area to be designated as critical habitat that would include “carefully defined ‘target areas,’” that are remote and have intact coral beds for feeding.

William Aila, director of DLNR, has strongly supported marine conservation efforts in the past and was a strong proponent of designating Papahanaumokuakea as a marine national monument site despite protests from commercial fishermen. He told Civil Beat that it was important to find a balance.

“DLNR is trying to find this balance that has to occur between protecting monk seals and allowing community and customary practices to continue and that allow seals and people to coexist peacefully,” he said.

Navigating a Legal Landscape

Doug Codiga, a local environmental attorney, pointed out that NOAA’s handling of the monk seal designation “is all done in the context of potential litigation.”

If NOAA sides with DLNR, it could be on shaky legal ground.

The agency’s current proposal is supposed to reflect the “best scientific evidence” on what is needed to protect the seal population. If NOAA backs down, environmental groups can argue that the agency is not following federal law.

“If we made changes and actually revised the area to make it smaller, there could be a lawsuit if we don’t support the decision-making process,” said Jean Higgins, who has been leading NOAA’s monk seal efforts.

She said the agency would need to show there are significant economic reasons to exclude an area, or that the designation would pose a national security risk.

But such evidence would have to trump hundreds of pages of studies that have already been completed by NOAA.

Miyoko Sakashita, an attorney and oceans director for the Center for Biological Diversity, said that concerns about critical habitat designation tended to be exaggerated and that if NOAA was to scale back the proposed area, the organization would take a hard look.

“In terms of what the monk seals need to recover, the beaches and marinas proposed for critical habitat are what the science tells us are essential areas for the endangered monk seal,” said Sakashita.

“Without going ahead and saying ‘yes, we will sue them if they change it,’ it’s certainly an option that would be under review if the federal rule differs from what the science says.”

NOAA is required to make a final determination in June, unless it requests a six-month extension.

You can read DLNR’s testimony here: