Native Vill. of Chickaloon v. Nat'l Marine Fisheries Serv., Case No. 3:12-cv-00102-SLG

• Court: United States District Courts. 9th Circuit. District of Alaska
• Writing for the Court: Sharon L. Gleason
• Docket Number: Case No. 3:12-cv-00102-SLG
• Parties: NATIVE VILLAGE OF CHICKALOON, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al. Defendants.
• Decision Date: 29 May 2013

NATIVE VILLAGE OF CHICKALOON, et al., Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE, et al. Defendants.

Case No. 3:12-cv-00102-SLG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

DATED: May 29, 2013

ORDER RE MOTION FOR SUMMARY JUDGMENT

This action was initiated in May 2012 by the Native Village of Chickaloon, the Natural Resources Defense Council, the Center for Biological Diversity, and the Center for Water Advocacy and challenges the National Marine Fisheries Service's ("NMFS") issuance of an "Incidental Harassment Authorization" that allowed Apache Alaska Corporation to conduct seismic surveys in Cook Inlet, Alaska. The inlet has been designated as critical habitat for certain marine mammals, including the endangered Cook Inlet beluga whale. Apache applied for the authorization and, after a public notice and comment period, NMFS issued the requested authorization for a one-year period. The authorization imposed certain operating restrictions on Apache's seismic operations and permitted the incidental "take" by harassment of up to 30 beluga whales by exposure to noise generated by the seismic activity. Plaintiffs' Complaint alleges that the issuance of the Incidental Harassment Authorization ("IHA") and associated documents to Apache violated the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361-1421; the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544; and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4231-4370.

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Several parties joined this action as intervenors in support of NMFS, including the American Petroleum Institute and International Association of Geophysical Contractors (collectively "API"), Apache, and the State of Alaska ("State").

Before the Court is a Motion for Summary Judgment filed by Plaintiffs on October 1, 2012.¹ On November 7, 2012, NMFS and all the intervenors responded.² Plaintiffs replied on November 21, 2012.³ Oral argument was held on February 1, 2013. For the reasons set forth below, Plaintiffs' motion is GRANTED in part and DENIED in part. Although this Court denies the Plaintiffs' motion for summary judgment with respect to the agency's decision-making on many of the challenged issues, the Court concludes the agency erred in one significant respect when it made mathematical errors in computing its take estimates for the Cook Inlet beluga whale. This Order does not resolve the extent to which those mathematical errors may impact other aspects of the agency's decision-making, but requests further briefing from the parties as warranted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. Cook Inlet.

Cook Inlet is a semi-enclosed tidal estuary located in Southcentral Alaska that is approximately 370 km long and 48 km wide. The inlet is a shallow body of water with its deepest areas near the mouth of the inlet. The three primary rivers that flow into the

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inlet are the Knik, Matanuska, and Susitna rivers. The semidiurnal tides and currents in the inlet are some of the most extreme in the world. During the winter, ice forms over much of the upper inlet, although the inlet rarely freezes over completely because of the extreme tides. This ice usually leaves the inlet by April, but sometimes lasts until May.

Cook Inlet is one of the most industrialized and urbanized regions of Alaska. High artificial noise levels in the inlet are caused by vessels; air traffic; construction equipment; and activities such as pile driving, oil and gas development, coastal development, dredging and filling. Natural sound sources in the inlet include earthquakes; tidal currents; substrate movement from tides, wind, and ice; and sounds from some animal species.

II. The Cook Inlet Beluga Whale.

Cook Inlet supports a wide variety of marine wildlife and mammals.⁴ Fish include multiple species of salmon, trout, and eulachon.⁵ Marine mammals include beluga whales, harbor seals, killer whales, harbor porpoises, and Steller sea lions.⁶ Although all these mammal species are covered by the IHA, Plaintiffs' arguments are focused on NMFS' findings on beluga whales, so this Order is also focused on that species.

There are five stocks of beluga whales in Alaska.⁷ The Cook Inlet stock is the most isolated of these stocks; it resides year-round in the inlet and does not migrate to

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other locations.⁸ However, Cook Inlet beluga whales do migrate within the inlet; they concentrate in the upper inlet at rivers and bays in summer and fall, and then disperse offshore to the mid to lower inlet during the winter.⁹ Beluga whales show high site fidelity and may stay in an area with fluctuating fish runs or disturbance from boats or other anthropogenic activity.¹⁰

Although there were no systematic surveys or population estimates performed on the Cook Inlet beluga whale species before 1994, it is believed they numbered in the low thousands at that time.¹¹ NMFS has adopted 1,300 whales as the "carrying capacity" for the species in Cook Inlet.¹²

Beginning in 1994, NMFS began annual comprehensive, systematic aerial surveys to document the population of Cook Inlet beluga whales. These surveys documented a population decline of nearly 50 percent between 1994 and 1998, from approximately 653 to 347 whales.¹³

In 1999, NMFS received petitions to list the Cook Inlet beluga whale stock as an endangered species, but the agency rejected the requests as it determined the species'

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decline was due to overharvest by Alaska Native subsistence hunters.¹⁴ As a result, beginning in 1999, the subsistence harvest of beluga whales became regulated. These regulations were expected to result in a yearly population growth rate of two to six percent.¹⁵ But that yearly growth has never materialized. Instead, population estimates from 2011 to 2011 have shown a yearly population decline of 1.1 percent.¹⁶ In May 2000, the Cook Inlet beluga whale population was designated as "depleted" under the MMPA.¹⁷

In 2006, NMFS received another petition to list the Cook Inlet beluga whale species as endangered. On April 20, 2007, NMFS issued a proposed rule to list the species as a distinct population segment ("DPS") in danger of extinction. A notice and comment period followed and on October 17, 2008, NMFS announced its decision to list the species as endangered under the ESA. On April 11, 2011, NMFS announced two areas of critical habitat for the Cook Inlet beluga whale within the inlet totaling 7,800 km ².¹⁸ The 2011 population estimate for Cook Inlet beluga whales was 284.¹⁹

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III. The Apache Project and Request for 2012-2013 IHA.

Apache Alaska submitted its application for an IHA to NMFS on June 15, 2011.²⁰ After receiving initial comments from NMFS, Apache submitted a revised application on July 19, 2011.²¹ Apache sought an IHA allowing the incidental take by Level B harassment of 30 beluga whales during its first year of seismic surveying, as Apache acknowledged that its proposed activities "have the potential to result in takes by harassment of marine mammals by acoustic disturbance during seismic operations."²²

"Take" is defined slightly differently by the MMPA and the ESA, but in broad terms means to disturb or attempt to disturb a marine mammal by conduct ranging from incidental harassment to killing.²³ The MMPA specifies two levels of harassment. Level A harassment is defined as "any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild."²⁴ Level B harassment means "any act of pursuit, torment, or annoyance which has the potential to 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."²⁵

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Apache's application indicated that it had acquired over 300,000 acres of oil and gas leases in Cook Inlet in 2010 and "propose[d] to conduct a phased 3D seismic survey program throughout Cook Inlet over the course of the next three to five years."²⁶ Apache proposed to begin surveying in the fall of 2011, completing approximately 829 km ² within an area it labeled Area 1, which is "located along the western coast of upper Cook Inlet."²⁷ Apache proposed to conduct seismic surveying for approximately 160 days during an eight to nine month period in the program's first year.²⁸

Seismic surveys use high-energy, low-frequency sound in short pulse durations to determine substrates below the sea floor, such as gas and oil deposits.²⁹ Apache stated that its proposed "[i]n-water air gun activity will average 10-12 hours per day and will generally occur around the slack tide or low current periods."³⁰ Apache proposed using two synchronized source vessels that would operate in parallel lines and use a

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ping/pong method that alternates the firing of airguns every 12 seconds.³¹ Each vessel would be equipped with 16 high-volume airguns.³²

During those portions of each day when the full array of airguns would not be conducting seismic surveying, a mitigation gun would typically be in continuous operation so as to deter marine mammals from approaching the vessels.³³

Apache proposed using...