Inletkeeper v. Raimondo

• Decision Date: 27 May 2021
• Docket Number: Case No. 3:19-cv-00238-SLG
• Citation: 541 F.Supp.3d 987
• Parties: COOK INLETKEEPER and Center for Biological Diversity, Plaintiffs, v. Gina RAIMONDO, Secretary of Commerce, et al., Defendants, and Hilcorp Alaska, LLC, et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Alaska

541 F.Supp.3d 987

COOK INLETKEEPER and Center for Biological Diversity, Plaintiffs,

v. Gina RAIMONDO, Secretary of Commerce, et al., Defendants,andHilcorp Alaska, LLC, et al., Intervenor-Defendants.

Case No. 3:19-cv-00238-SLG

United States District Court, D. Alaska.

Signed May 27, 2021

Julie Teel Simmonds, Pro Hac Vice, Center Biological Diversity, Denver, CO, Kassia Rhoades Siegel, Kristen Angela Monsell, Pro Hac Vice, Center for Biological Diversity, Oakland, CA, for Plaintiffs.

John H. Martin, U.S. Department of Justice, Denver, CO, for Defendants James Balsiger, National Marine Fisheries Service, Gina Raimondo.

James C. Feldman, Jason T. Morgan, Ryan P. Steen, Stoel Rives LLP, Seattle, WA, for Intervenor-Defendant Hilcorp Alaska, LLC.

Cheryl R. Brooking, Jeffrey G. Pickett, Attorney General's Office, Aaron Christian Peterson, Alaska Department of Law, Anchorage, AK, for Intervenor-Defendant State of Alaska.

ORDER ON REMEDY

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

On March 30, 2021, the Court entered an order holding that the Incidental Take Regulations ("ITR"), Biological Opinion ("BiOp"), and Environmental Assessment/Finding of No Significant Impact ("EA/FONSI") relating to Hilcorp Alaska, LLC's oil and gas activities in Cook Inlet over a period of five years violated the Marine Mammal Protection Act ("MMPA"), the Endangered Species Act ("ESA"), and the National Environmental Policy Act ("NEPA"), and were therefore "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," pursuant to § 706(2)(A) of the Administrative Procedure Act ("APA").¹ Specifically, the Court determined that NMFS's conclusion "that noise from Hilcorp's tugs towing the drill rig would not cause any take by harassment of Cook Inlet beluga whales is arbitrary and capricious ..., and the agency relied on this erroneous determination in its issuance of the Incidental Take Regulations, the Biological Opinion, and the Environmental Assessment."² The Court ordered supplemental briefing regarding the appropriate remedy.³ The parties have completed that briefing and the issue is now before the Court.⁴

LEGAL STANDARD

Vacatur is the normal remedy under the APA, which directs reviewing courts to "set aside" unlawful agency action.⁵ However, "[a] flawed rule need not be vacated."⁶ Instead, "when equity demands, the regulation can be left in place while the agency follows the necessary procedures" to correct its error.⁷ And yet, the Ninth Circuit has explained that remand without vacatur is appropriate "only in ‘limited circumstances.’ "⁸ To determine whether to remand an action without vacatur, a court is to "weigh the seriousness of the agency's errors against ‘the disruptive consequences of an interim change that may itself be changed.’ "⁹ "Put differently, ‘courts may decline to vacate agency decisions when vacatur would cause serious and irremediable harms that significantly outweigh the magnitude of the agency's error.’ "¹⁰ Partial vacatur is also an acceptable form of relief under the APA.¹¹

DISCUSSION

The parties disagree as to whether vacatur is appropriate here. Plaintiffs request complete vacatur of the ITR, BiOp, and EA/FONSI, while the Federal Defendants and Intervenor-Defendants request remand without vacatur.

A. Seriousness of the Violations

Plaintiffs assert that NMFS committed substantial errors by failing to consider take from tugs, which in turn affected NMFS's small numbers, negligible impact, and least practicable adverse impact analyses under the MMPA.¹² Plaintiffs also contend that the agency's failure to consider the effects from tug noise "permeates [NMFS's] ESA determination," and that "NMFS must issue a new biological opinion" that considers "the aggregate effects of the multiple noise sources from Hilcorp's activities, including tugs, together with other stressors that threaten this species."¹³ Plaintiffs also assert that the EA/FONSI should be vacated, and that "[t]o leave a faulty NEPA decision in place while ordering its re-evaluation contradicts NEPA's directive that an agency ‘look before it leaps’ and not engage in post-hoc rationalization of predetermined outcomes."¹⁴

Federal Defendants assert that "[v]acatur of the ITR, BiOp, and EA would be inequitable here where the Court upheld significant parts of NMFS's analysis in those documents regarding the impacts of seismic surveys and other of Hilcorp's activities."¹⁵ Federal Defendants maintain that "it is entirely reasonable ... that NMFS could remedy its analysis under the MMPA, as well as ... under the ESA and NEPA, with further evaluation and discussion of the potential impact of ... noise from tugboats towing drill rigs, as well as additional mitigation measures for this activity."¹⁶ Hilcorp adds that remanding without vacatur would present no risk to the Cook Inlet beluga whale because "[t]he Year 3 [Letter of Authorization ("LOA")] activities—including the limited use of towing tugs—will have, at most, a negligible impact on the Cook Inlet beluga whale."¹⁷ In support of this assertion, "Hilcorp has prepared estimates of potential beluga whales exposure to MMPA harassment levels from the rig-towing activity associated" with the Year 3 LOA, which "shows that approximately one beluga whale is predicted to be exposed to sound at Level B harassment levels from the rig-towing activity."¹⁸ Hilcorp also states that it plans to implement numerous mitigation measures focused on the tug boats that will render "the potential for incidental Level B harassment of beluga whales ... to be at or near zero."¹⁹

Plaintiffs respond that "[i]f vacatur could be avoided wherever there is some possibility of reaching the same result, it would virtually never be imposed," thus upending the APA's "presumptive remedy of vacatur."²⁰ Plaintiffs also rebut Defendants’ characterization of the violations as "narrow," stressing that NMFS's error "embodies one of the most significant threats to one of the world's most endangered marine mammals."²¹

In its March 30, 2021 order, this Court concluded that "NMFS failed to provide a reasoned explanation or identify adequate support in the record for its determination that tug noise from Hilcorp's activities would not take beluga whales," an error that was reflected in its ITR, BiOp, and EA/FONSI.²² NMFS's failure to consider the noise from Hilcorp's tug boats in issuing the ITR is a serious error that is particularly troublesome because Cook Inlet beluga whales are listed as an endangered species and have a declining population despite ongoing efforts, as detailed in that order.²³ Moreover, NMFS's own Recovery Plan for Cook Inlet beluga whales identified noise from tug boats as a major threat to beluga whales, and Hilcorp's tugs were slated to travel through the Cook Inlet beluga whale's critical habitat.²⁴

NMFS's errors are distinguishable from the "technical" violation at issue in National Family Farm Coalition v. U.S. EPA , cited by Federal Defendants.²⁵ There, the EPA registered a pesticide to kill weeds on various crops without considering whether its use to kill milkweed targeted by farmers would unreasonably adversely impact monarch butterflies pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). In litigation, the EPA contended that "it was not required to do so because ‘farmers will control the same amount of milkweed on their crops through the use of ... other means, ... with or without" the challenged pesticide.²⁶ "Despite the intuitive appeal of EPA's argument," the Ninth Circuit rejected that justification because the EPA had not invoked that reasoning when it took the challenged action.²⁷ Nonetheless, the Ninth Circuit remanded without vacatur, holding that the error was not serious, "especially in light of EPA's full compliance with the ESA and substantial compliance with FIFRA."²⁸ The court additionally reasoned that "given the technical nature of EPA's error, EPA will ‘likely be able to offer better reasoning’ and ‘adopt the same rule on remand.’ "²⁹ The same is not true here. While it is possible that NMFS may reach the same conclusion regarding the effects of tugs towing the drill rig, NMFS has not offered convincing reasoning for its determination that Hilcorp's tugs would not cause any take.³⁰ NMFS may well need to require additional mitigation measures for authorized tug activities in order to meet its statutory obligations. Thus, it does not appear "likely," as opposed to possible, that NMFS will produce the exact same determinations on remand. Moreover, NMFS violated several statutes, whereas the agency in National Family Farm Coalition only violated one statute that it otherwise substantially complied with.³¹ As such, the seriousness of NMFS's violations weighs toward vacatur of the ITR, BiOp, and EA/FONSI.

However, while NMFS's error permeated each of the challenged documents, it pertained only to a limited set of activities authorized in the ITR. For example, the error did not affect Hilcorp's seismic operations; indeed, the Court specifically upheld the mitigation measures required in the ITR for seismic surveys.³² Thus, while the violations are serious, they are also limited in scope. This is distinguishable from the errors in Klamath-Siskiyou Wildlands Center v. NOAA , cited by Plaintiffs, that were central to the agency's analyses.³³ The agency errors there involved "the very factors FWS chose to use as the basis for its conservation-value calculation" and the agency "failed to perform a cumulative impacts analysis ... of its proposed actions in three different areas" as required by NEPA.³⁴ In contrast, NMFS's errors here affect only a discrete set of tug operations. Plaintiffs correctly point out that on remand, further analysis of the effects of Hilcorp's tug operations may affect NMFS's evaluation of the aggregate effects of Hilcorp's activities as a whole and whether those activities as a whole will have a negligible impact. In the interim, the Court...