Ctr. for Biological Diversity v. Salazar

• Decision Date: 21 August 2012
• Docket Number: No. 10–35123.,10–35123.
• Citation: 695 F.3d 893
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Pacific Environment, Plaintiffs–Appellants, v. Kenneth Lee SALAZAR, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants–Appellees, Alaska Oil and Gas Association, Defendant–intervenor–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

695 F.3d 893

12 Cal. Daily Op. Serv. 9520

2012 Daily Journal D.A.R. 11,605

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

v. Kenneth Lee SALAZAR, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants–Appellees,Alaska Oil and Gas Association, Defendant–intervenor–Appellee.

No. 10–35123.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 28, 2012.

Filed Aug. 21, 2012.

Rebecca Noblin, Center For Biological Diversity, Anchorage, AK, Kassia Rhoades Siegel, Center For Biological Diversity, Joshua Tree, CA, for the appellants.

Dean Keith Dunsmore, Environment & Natural Resources, Anchorage, AK, Kristen L. Gustafson, David C. Shilton, United States Department of Justice, Washington, D.C., for the appellees.

Jeffrey Wayne Leppo, Ryan P. Steen, Jason T. Morgan, Stoel Rives, LLP, Seattle, Washington, for the intervenor-appellee.

Appeal from the United States District Court for the District of Alaska, Ralph R. Beistline, Chief District Judge, Presiding. D.C. No. 3:08–cv–00159–RRB.

Before: ALFRED T. GOODWIN, WILLIAM A. FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

This case involves U.S. Fish and Wildlife Service (“Service”) regulations under Section 101(a)(5)(A) of the Marine Mammal Protection Act (“MMPA”) that authorize incidental take of polar bears and Pacific walruses resulting from oil and gas exploration activities in the Chukchi Sea and on the adjacent coast of Alaska. The Center for Biological Diversity and Pacific Environment (collectively “Plaintiffs”) brought suit challenging the regulations and accompanying environmental review documents under the MMPA, Endangered Species Act (“ESA”), and National Environmental Policy Act (“NEPA”). The district court granted summary judgment to the Service. We affirm.

I. Background

The Chukchi Sea off the North Slope of Alaska is a promising location for oil and gas exploration and development. It also is home to polar bears and Pacific walruses, both of which are marine mammals protected under the MMPA. There are two polar bear stocks in Alaska, with a total estimated population of about 3,500 animals. Surveys taken between 1975 and 1990 estimated the total population of Pacific walruses in the area to be between 200,000 and 250,000 animals. Both polar bears and Pacific walruses migrate seasonally with the advance and retreat of the sea ice habitat on which they rely for survival. In May 2008, the Service listed the polar bear as a threatened species under the ESA because of projected reductions in sea ice caused by climate change. 73 Fed.Reg. 28,212 (May 15, 2008). The Pacific walrus is not presently listed as threatened or endangered under the ESA.

A. Incidental Take Under the MMPA

The MMPA generally prohibits the “take” of marine mammals. 16 U.S.C. § 1371(a). “Take” is defined broadly under the MMPA to encompass “harassment,” including any act of “torment” or “annoyance” that “has the potential to injure ... or ... disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.” Id. § 1362(13), (18)(A)(i)-(ii). Unlawful take is subject to a civil penalty of up to $10,000 for each violation. Id. § 1375(a)(1). A knowing violation is subject to a criminal penalty of up to a year in prison and a $20,000 fine. Id. § 1375(b).

The MMPA allows several exceptions to the general take prohibition, including take for scientific research and for public display, as well as incidental take in the course of commercial fishing. Id. § 1371(a)(1)-(2). At issue in this appeal is an exception under Section 101(a)(5)(A) for incidental, but not intentional, take of “small numbers” of marine mammals from “a specified activity (other than commercial fishing) within a specified geographical region.” Id. § 1371(a)(5)(A)(i). The Service will authorize such take of “small numbers” of mammals for up to five years if it determines that the total incidental take would have a “negligible impact” on the relevant species or stock and would not have an “unmitigable adverse impact” on availability for specified subsistence uses. Id. § 1371(a)(5)(A)(i)(I). If the Service makes the required findings, it may issue regulations—such as those challenged in this appeal—specifying permissible methods of take pursuant to the activity, specifying other means of effecting the least practicable adverse impact on the species, and specifying monitoring and reporting requirements for the authorized take. Id. § 1371(a)(5)(A)(i)(II).

In 1983, the Service promulgated regulations implementing Section 101(a)(5) of the MMPA. 48 Fed.Reg. 31,220 (July 7, 1983) (codified at 50 C.F.R. § 18.27). The implementing regulations establish a two-step process: first, the Service issues incidental take regulations that govern a specified activity in a specified geographic region for up to five years; second, the Service issues letters of authorization (“LOAs”) to individual applicants authorizing their incidental take under the regulations. 50 C.F.R. § 18.27(e)-(f). Before issuing an LOA, the Service must determine that the level of anticipated incidental take is consistent with the five-year regulations. Id. § 18.27(f)(2). The implementing regulations define “small numbers” as “a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock.” Id. § 18.27(c). They define “negligible impact” as an impact that is not reasonably likely or expected to “adversely affect the species or stock through effects on annual rates of recruitment or survival.” Id.

The oil and gas industry for more than two decades has requested and received incidental take authorization for its exploration, development, and production activities off the coast of northwestern Alaska. Between 1993 and 2006, the Service issued a series of regulations authorizing incidental take of polar bears and Pacific walruses in the Beaufort Sea. 58 Fed.Reg. 60,402 (Nov. 16, 1993); 60 Fed.Reg. 42,805 (Aug. 17, 1995); 64 Fed.Reg. 4,328 (Jan. 28, 1999); 65 Fed.Reg. 5,275 (Feb. 3, 2000); 65 Fed.Reg. 16,828 (Mar. 30, 2000); 68 Fed.Reg. 66,744 (Nov. 28, 2003); 71 Fed.Reg. 43,926 (Aug. 2, 2006). In 1991, the Service issued regulations authorizing incidental take in the adjacent Chukchi Sea. 56 Fed.Reg. 27,443 (June 14, 1991). Little to no oil and gas exploration occurred in the Chukchi Sea over the next fifteen years. However, new opportunities for exploration and development in the Chukchi Sea prompted the Alaska Oil and Gas Association (“Association”) to request another set of five-year incidental take regulations in 2005.

B. 2008 Chukchi Sea Regulations

In response to the Association's request, the Service in June 2007 published proposedregulations authorizing incidental, nonlethal take of polar bears and Pacific walruses resulting from oil and gas exploration activities in the Chukchi Sea. 72 Fed.Reg. 30,670 (June 1, 2007). Previous incidental take regulations in the Beaufort and Chukchi Seas covered oil and gas exploration, development, and production. The new regulations cover only exploration activities—such as onshore and offshore seismic surveys, exploratory drilling, and associated support operations.

In July 2007, Plaintiffs filed comments with the Service criticizing the proposed incidental take regulations. The Marine Mammal Commission, an independent federal agency created under the MMPA to advise the Service, submitted comments recommending that the Service defer issuing final regulations until it developed more effective monitoring and mitigation strategies and gathered more information about the effects of exploration activities on the mammals.

In March 2008, the Service issued an Environmental Assessment (“EA”) for the proposed regulations pursuant to NEPA. 40 C.F.R. § 1508.9. The EA concludes that the incidental take regulations, along with accompanying mitigation measures, “would result in no measurable impacts o[n] the physical environment,” and “the overall impact would be negligible on polar bear and Pacific walrus populations.”

Because promulgation of the regulations would constitute “agency action” under Section 7 of the ESA, the Service's Marine Mammal Office consulted internally with the Fairbanks Fish and Wildlife Field Office regarding the regulations' effects on the threatened polar bear. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02. In May 2008, the Fairbanks office issued a Biological Opinion (“BiOp”) concluding that the incidental take regulations were not likely to jeopardize the continued existence of the polar bear. The BiOp notes that “(1) the Regulations do not authorize[ ] lethal take, (2) the Chukchi Sea Regulations will be implemented in a similar manner to the Beaufort Sea Regulations, which have been in place almost continuously since 1993, and (3) few bears are likely to be encountered, and those that are encountered are likely to alter their behavior only temporarily if at all.” The BiOp does not consider effects on the Pacific walrus because the species is not listed as threatened or endangered under the ESA.

In June 2008, the Service issued a final rule for the Chukchi Sea incidental take regulations. 73 Fed.Reg. 33,212 (June 11, 2008) (codified at 50 C.F.R. §§ 18.111–18.119). The regulations encompass a geographic area of about 90,000 square miles, including the waters and seabed of the Chukchi Sea, as well as adjacent coastal land extending about 25 miles inland. The regulations anticipate up to four offshore seismic survey vessels operating in a given year, each accompanied by three support vessels, and up to three drill ships, each drilling as many as four wells and accompanied by icebreakers, barges, helicopters, and supply ships. Id. at 33,215–16. Onshore, the regulations anticipate the drilling of as many as six wells and the construction...