From ANIMAL PEOPLE, May 1997:
MIDWAY––If anyone wants a courtroom Second
Battle of Midway, the short-tailed albatross could become a
mighty obstacle to tourism development. Owned by the U.S.
Navy since 1903, Midway was deeded over to the U.S. Fish
and Wildlife Service on April 5, which intends to open the
newly created refuge to the public soon, for the first time
since before World War II.
The problem isn’t that the uniquely all-white shorttailed
albatross is on the Endangered Species List: it’s that it
isn’t. Because it isn’t, critical habitat has not been designated.
Yet the short-tailed albatross drew protection from Japan
more than 60 years ago, when the population dipped to just
100, and the U.S. Fish and Wildlife Service has treated the
short-tailed albatross as endangered since 1969, four years
before the present Endangered Species Act was passed.
“Due to an inadvertant oversight,” the F e d e r a l
Register for July 25, 1980 explained, “U.S. individuals are
not officially listed as endangered––although all individuals
who occur in foreign countries are listed,” because they were
originally protected under the 1969 Endangered Species
Conservation Act, which had separate procedures and lists
for foreign and domestic species. “When the current 1973
Endangered Species Act repealed the 1969 Act,” the Federal
Register continued, “these species were carried forward onto
the 1973 combined list, but without completing the procedures”
for listing U.S. native species.
According to a September 1994 news release by
Steven Pennoyer, Alaska director for the National Marine
Fisheries Service, the short-tailed albatross “is a very large
pelagic sea bird who nests colonially on two small islands
along the Japanese chain. Historically, this species was a
common forager from the Bering Sea to waters as far south as
Baja California,” before being hunted to the verge of extinction
in the known nesting habitat.
The issue at Midway is whether all or part of the
island, 1,250 miles north of Hawaii, should be deemed critical
habitat for the short-tailed albatross. One short-tailed
albatross was a documented Midway resident in 1938-1939,
when the species was at low ebb, and others have been
observed and even banded at Midway during the years since.
The legal issue to be decided first is whether the
USFWS acted properly in failing to complete the listing procedures,
17 years after noting the need. The USFWS might
argue that the short-tailed albatross is recovering without a
listing, as the current count is circa 700, but as Pennoyer
acknowledged in 1994, “The population is still considered to
be detrimentally affected by commercial fishing activities due
to lethal entanglements with hooks, nets, and other gear.”
Seeking the voluntary cooperation of fishers to protect
short-tailed albatrosses, Pennoyer stated, “The species is
protected under the U.S. Endangered Species Act.” But a
November 1994 memo from Jerry Leinecke of the USFWS
Pacific Islands Ecoregion office in Hawaii attests to ongoing
interagency confusion as to who is to complete the ESA listing
procedure. Subsequent memos between the USFWS and
NMFS indicate that the ongoing delay might have helped the
growth of Hawaiian and Alaskan longline fishing.