588 F.3d 701 (9th Cir. 2009), 08-35402, Center For Biological Diversity v. Kempthorne

Docket Nº:08-35402.
Citation:588 F.3d 701
Opinion Judge:FARRIS, Circuit Judge:
Party Name:CENTER FOR BIOLOGICAL DIVERSITY; Pacific Environment, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, Secretary of the Interior; United States Fish and Wildlife Service, Defendants-Appellees, Alaska Oil & Gas Association, Defendant-intervenor-Appellee.
Attorney:Brendan R. Cummings, Center for Biological Diversity, Joshua Tree, CA; Robert Clayton Jernigan and Eric P. Jorgensen, Earthjustice, Juneau, AK, for the plaintiffs-appellants. David Shilton, Ellen J. Durkee, Kristen L. Gustafson, and Lori Caramanian, United States Department of Justice, Environmen...
Judge Panel:Before: JEROME FARRIS, DAVID R. THOMPSON and JOHNNIE B. RAWLINSON, Circuit Judges.
Case Date:December 02, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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588 F.3d 701 (9th Cir. 2009)

CENTER FOR BIOLOGICAL DIVERSITY; Pacific Environment, Plaintiffs-Appellants,

v.

Dirk KEMPTHORNE, Secretary of the Interior; United States Fish and Wildlife Service, Defendants-Appellees,

Alaska Oil & Gas Association, Defendant-intervenor-Appellee.

No. 08-35402.

United States Court of Appeals, Ninth Circuit.

December 2, 2009

Argued and Submitted Aug. 4, 2009.

Page 702

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Brendan R. Cummings, Center for Biological Diversity, Joshua Tree, CA; Robert Clayton Jernigan and Eric P. Jorgensen, Earthjustice, Juneau, AK, for the plaintiffs-appellants.

David Shilton, Ellen J. Durkee, Kristen L. Gustafson, and Lori Caramanian, United States Department of Justice, Environmental and Natural Resources Division, Washington, DC; Ronald J. Tenpas, Assistant Attorney General; Holly Wheeler, Office of the Solicitor, United States Department of the Interior, for the defendants-appellees.

Jeffrey W. Leppo, Stoel Rives, Seattle, WA, for the intervenor-appellee.

Appeal from the United States District Court for the District of Alaska, Ralph R. Beistline, District Judge, Presiding. D.C. No. 3:07-cv-00141-RRB.

Before: JEROME FARRIS, DAVID R. THOMPSON and JOHNNIE B. RAWLINSON, Circuit Judges.

FARRIS, Circuit Judge:

I. Background

In August 2006, the United States Fish and Wildlife Service promulgated five-year regulations under the Marine Mammal Protection Act § 101(a)(5) that authorize for a five-year period the non-lethal " take" of polar bears and Pacific walrus by oil and gas activities in and along the Beaufort Sea on the Northern Coast of Alaska. 50 C.F.R. Part 18. The term " take" means " to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(13). Under the regulations, individual oil and gas operators may apply to the Service for a " letter of authorization." The LOA, if granted, lasts for up to a year.

As of 2002, there were an estimated 2,200 polar bears in the South Beaufort Sea. Polar bears move according to the location of sea ice and prey, migrating south in the winter with the advance of the sea ice and returning north in the summer with the sea ice's retreat. They spend most of their time far offshore in the active ice zone, spending only a limited time on land to feed, to den, or to travel elsewhere. The pregnant females enter " maternity dens" in November, give birth to about two cubs around the new year and emerge from the den in March or April. A premature departure endangers the underdeveloped cubs. Most dens are located on pack ice, but some are located on land. Ringed seal pups are an essential source of food for polar bears, especially because adult polar bears require large quantities of seal fat to survive.

Polar bears are vulnerable to climate change. Acute threats posed by a warming climate include the loss of sea ice habitat; the resulting increased use of coastal environments and therefore more frequent encounters with humans; changes in body fitness, particularly reduction of fat stores in denning females; a decline in cub survival rate; reduction in available prey such as ringed seals; and increased energetic needs in hunting for seals as well as traveling and swimming longer distances due to reduced ice pack. Changes to the polar bear population have been observed. Distribution has shifted, with more frequent terrestrial denning, and there have been declines in physical condition, reproductive success, survival, and population.

A warming climate poses similar threats to Pacific walrus, but these threats are not

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emphasized in the record or in the party briefs.

The oil and gas industry has conducted exploration, development, and production along the Beaufort Sea and the Northern coast of Alaska since 1968. The 2006 incidental take regulations were preceded by similar regulations published in 1993, 1995, 1999, 2000 (twice), and 2003. 58 Fed.Reg. 60, 402 (1993); 60 Fed.Reg. 42, 805 (1995); 64 Fed.Reg. 4, 328 (1999); 65 Fed.Reg. 5, 275 (2000); 65 Fed.Reg. 16, 828 (2000); and 68 Fed.Reg. 66, 744 (2003). Such past regulation yielded much information about the industry's interactions with polar bears and walrus.

Prior to issuing the 2006 regulations, the Service evaluated the impact of the oil and gas industry on polar bears and walrus. With respect to bears, it found that past interaction has been " minimal." Most industry activity is conducted on land, away from the ice floes that polar bears prefer. Therefore, most encounters are only short-term behavioral disturbances. It is unlikely that oil and gas activities will physically obstruct or impede polar bear movement. Since 1993, there have been no bears killed by industrial activities.

Nevertheless, from 1993 to 2004, there were more than 700 sightings of polar bears related to industrial activities. More recently, sightings have increased. Production facilities may negatively affect denning females, with industrial noise causing females to abandon their dens prematurely and endanger their offspring. However, industrial noise-producing activity may need to be very close to the den to cause such a response, and bears may even acclimate to such noises. The Service found that the impact would likely be consistent with that during previous periods of regulation. The impact would be negligible.

With respect to walrus, the Service also predicted that the impact would be negligible. Walrus are uncommon in the Beaufort Sea. Between 1993 and 2004, only nine were observed in the area, and there is no evidence that a walrus has been injured directly during an interaction with the oil and gas industry.

Pursuant to the National Environmental Policy Act, and before issuing the final 2006 regulations, the Service produced an environmental assessment but not an environmental impact statement. The purpose of the Service's EA in this context was not to evaluate " the impact of industry on polar bears and Pacific walrus" -the regulations themselves serve that purpose-but rather to " evaluate [ ] the impact of issuing incidental take regulations" as opposed to permitting industrial activities in the absence of such regulation. With this understanding, and based on the same information, the Service concluded that the incidental take regulation was likely to have no significant impact on the populations, recruitment, or survival of polar bears and walrus in the Beaufort Sea region. The EA acknowledged that climate change could affect the degree of impact on polar bears, but resolved that the magnitude of this effect was unclear.

Plaintiff Center for Biological Diversity is an organization devoted to protecting the habitat of endangered species. Plaintiff Pacific Environment is a similar organization. Their members have viewed polar bears and walrus in the region, enjoy doing so, and have plans to return. In February 2007, the Center, along with Pacific Environment, filed this action alleging that the Service regulations violate the MMPA and NEPA. Venue was transferred to the District of Alaska.

Following counter motions for summary judgment and briefing on the...

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