Center For Biological Diversity v. Salazar

Aug 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35123. Appealed from the United States District Court for the District of Alaska. The case involves U.S. Department of Interior (DOI, Secretary Ken Salazar), 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 and the Appeals Court affirmed that decision.

 

    In background information, the Appeals Court explains that 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.

 

    Plaintiffs filed suit against the Service, alleging that the five-year incidental take regulations, the accompanying BiOp (Biological Opinion), and the EA fail to comply with the MMPA, ESA, and NEPA. The Alaska Oil and Gas Association intervened as co-defendants. Following a lengthy analysis, the Appeals Court concludes, "Section 101(a)(5)(A) of the MMPA requires the Service to determine separately that a specified activity will take only 'small numbers' of marine mammals, and that the take will have only a 'negligible impact' on the species or stock. We hold that the Service permissibly determined that only 'relatively small numbers' of polar bears and Pacific walruses would be taken in relation to the size of their larger populations, because the agency separately determined that the anticipated take would have only a 'negligible impact' on the mammals' annual rates of recruitment or survival. The 'small numbers' determination was consistent with the statute and was not arbitrary and capricious. We also hold that the Service's accompanying BiOp and EA comply with the ESA and NEPA."

 

    Access the complete opinion (click here). [#Wildlife, #Energy/OCS, #CA9]

 

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