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Native Village of Chickaloon v. National Marine Fisheries Service

United States District Court, Ninth Circuit

May 28, 2013

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

ORDER RE MOTION FOR SUMMARY JUDGMENT

SHARON L. GLEASON, District Judge.

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. 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 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 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' 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 km2.[18] The 2011 population estimate for Cook Inlet beluga whales was 284.[19]

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]

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 km2 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 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 thresholds of 180 dB for Level A (injury) harassment and 160 dB for Level B (disturbance) harassment for the beluga whales, and indicated it relied on NMFS for those threshold levels. Apache explained that "[s]ince 1997, NMFS has been using [these] generic sound exposure thresholds to determine when an activity in the ocean that produces sound might result in impacts to a marine mammal such that a take by harassment might occur."[34] Apache indicated that NMFS is "developing new science-based thresholds to improve and replace the current generic exposure level thresholds, " but the criteria have not been finalized, " so Apache relied on the generic thresholds.[35] Apache opined that the generic thresholds are likely lower than necessary and are intended to be precautionary estimates below which no physical injury will occur."[36] But it added, "[n]o data are available for any free ranging marine mammals or for exposure to multiple pulses of sound during seismic surveys."[37]

Apache's IHA application included information about the hearing ability of beluga whales: "Although they are known to hear a wide range of frequencies, their greatest sensitivity is around 10 to 100 kHz, well above sounds produced by most industrial activities... recorded in Cook Inlet."[38] Apache indicated that its seismic activities would be at a frequency considerably below the 10 to 100 kHz range.[39] It also indicated that "[t]emporary disturbance or localized displacement reactions are most likely to occur" from its seismic operations although the "implementation of the mitigation and monitoring measures" should result in "no takes by injury or mortality (Level A)" and the minimization of "takes by disturbance (Level B)."[40] "The effects of sounds from air guns on marine mammals might include one or more of the following: tolerance, masking of natural sounds, behavioral disturbance, and temporary or permanent hearing impairment, or non-auditory physical effects."[41] Apache proposed "mitigation measures to be implemented during the survey... based on Level B harassment criteria using the 160 dB... threshold[.]"[42]

To estimate the number of marine mammals that could be disturbed by its seismic surveying, Apache determined the area that would be ensonified to 160 dB and the estimated density of marine mammals within that area.[43] Apache hired a consultant, Jasco, to estimate the area that would be ensonified to 160 dB when the full airgun array was operating.[44] Apache used the density figures for beluga whales gathered "from the annual aerial surveys conducted by NMFS for Cook Inlet beluga whale between 2000 and 2010 in June."[45] To account for the increased density of beluga whales at river mouths, Apache used "the highest number of beluga whales observed for each year... to provide a density for river mouths, " while "the average number of beluga whales observed for each year was used to provide density away from river mouths."[46] However, Apache used only the whales that were actually seen in the aerial surveys for its density estimates.[47] NMFS has adjusted the aerial survey results upward each year to determine its population abundance estimates in order to account for submerged and other whales that were undetected in the aerial surveys.[48] NMFS' annual adjustments in this regard have been significant: in most years the uncorrected count from the aerial surveys has been between 50%-70% of the total population abundance estimate.[49]

To calculate the estimated number of "takes" by harassment of beluga whales, Apache "multipl[ied] the expection densities... by the anticipated areas ensonified by levels [greater than or equal to] 160 dB... by the number of expected days that will be surveyed seismically in Area 1."[50] Apache then divided this amount by two to calculate the takes, reasoning that its "operations would occur over 12 hours per day."[51] With these calculations Apache estimated the "take" by harassment[52] of beluga whales as follows:[53]

Total Maximum "Take" Average "Take" Away from river mouths: 4.7 2.4 Near river mouths: 41.0 16.3

From these estimates, Apache requested authorization from NMFS to "take" by harassment up to 30 beluga whales during its first year of seismic surveying. Noting its request was less than the maximum take it had estimated might occur at river mouths, Apache indicated it "will implement a rigorous monitoring program when conducting seismic operations near river mouths during periods of high potential for encountering beluga whales, " and further "commits to shutting down air guns when beluga whales are observed to be approaching the 160 dB threshold to minimize and avoid takes of beluga whales to the greatest extent possible."[54]

Apache's application also addressed the effect of its planned operations on the subsistence use of the beluga whale. It concluded "[t]he project should [not] have any effect because no beluga harvest will take place in 2011 or 2012[.]"[55]

Apache's proposed mitigation measures included establishing safety radii; monitoring; and power down, shut down, and ramp up procedures.[56] The safety radii is the estimated distance that Apache computed that a whale must be to the vessels to encounter sounds above the 160 dB or 180 dB thresholds. The safety radii distances are as follows for the 2400 airguns:[57]

180 dB 160 dB 2400 in3 airgun 1.42 km 6.41 km[58] (nearshore) 2400 in3 airgun.98 km 4.89 km (offshore)

If whales approach the safety radii, Apache proposed to power down or shut down its operations.[59] During a power down, the number of airguns in use is reduced until "the radius of the 180 dB... zone is decreased to the extent that marine mammals are not in the safety zone." During a shut down, "all air gun activity is suspended." "[I]f a marine mammal is already within the harassment safety zone when first detected, the air guns will be powered down immediately if this is a reasonable alternative to a complete shut down."[60] Apache proposed to shut down its operations "if a group of more than five beluga whales is sighted within the 160 dB harassment sound level zone, " or "if a beluga whale calf is sighted approaching or within the 160 dB harassment zone."[61]

Ramp up procedures would be utilized "at the start of air gun operations, including a power down, shut down, and after any period greater than 10 minutes in duration without air gun operations[.]" During ramp up, the number of guns operating is gradually increased. Ramp up would not be used at the start of each 2.5 hour seismic surveying period so long as "the mitigation gun has been operating during the interruption of seismic survey operations."[62]

Apache's application proposed monitoring measures including visual boat-based monitoring. Two protected species observers ("PSOs") would be present on each of the two source vessels and two PSOs would be present on one support vessel, and "would normally be on duty in shifts no longer than 4 hours with 2 hour minimum breaks to avoid observation fatigue." During daytime operations, these six PSOs would watch to determine whether marine mammals "are about to enter or are sighted within designated safety zones." They "will scan the area around the vessel systematically with reticle binoculars... and with the naked eye.[63]

Apache indicated that "[s]eismic operations will not be initiated or continue when adequate observation of the designated safety zone is not possible due to environmental conditions such as high sea state, fog, ice and low light."[64] However, the PSOs would only work during the daytime hours of airgun operations. "PSOs will not monitor during seismic operations at night."[65] Instead, Apache proposed that the "[v]essel captain and crew will watch for marine mammals (insofar as practical at night) and will call for the air gun(s) to be shut down if marine mammals are observed in or about to enter the safety radii."[66] Apache's application added, "vessel crew will also be instructed to assist in detecting marine mammals and implementing mitigation requirements (if practical)."[67]

Apache also proposed to use a shore based monitoring station "when possible."[68] The observer located there would use "big-eye binoculars" to "scan the area prior to, during, and after the air gun operations." A shore-based observer would be able to communicate with the PSOs on the vessels to alert them of any marine mammal sightings. In addition, "[w]hen practicable, Apache proposes to utilize the crew helicopter to conduct aerial surveys near river mouths prior to the commencement of operations in order to identify locations of congregations of beluga whales."[69]

Apache also proposed to use two passive acoustic monitoring ("PAM") systems attached to surface buoys on anchored moorings. These recorders would send real-time acoustic data to PAM operators aboard the support vessels. These surface buoys are not deployable when ice is present. When the buoys are deployed, "[d]etection ranges for beluga whales are nominally a maximum of 2 km for whistles and 500 m for clicks, although much greater ranges for whistle detections have been achieved[.]"[70] When the buoys are not deployable, Apache proposed to use a hydrophone attached to its support vessel.[71]

Apache's application acknowledged that acoustic monitoring has limitations for detecting marine mammals because "it requires that the animals produce sounds... [and] it requires those sounds to be of sufficient amplitude to be detected at the monitoring location." The "received levels of the biological sounds [also must] exceed background noise and other measurement noise, " and "[f]low noise could be significant for this study due to high tidal currents in Cook Inlet." Apache estimated the maximum detection range of the PAM for beluga whales would be from two to three kilometers.[72]

Based on the foregoing, Apache's application sought the issuance of an IHA from NMFS to permit the take by harassment of up to 30 beluga whales incidental to its first year of seismic survey operations in Cook Inlet.[73]

IV. Agency Actions.

On September 21, 2011, NMFS issued a Federal Register Notice regarding Apache's application with a request for comments.[74] The Notice included a summary of Apache's application, made preliminary determinations regarding a proposed IHA, and noted the applicability of the MMPA and ESA.[75] It noted the mitigation, monitoring, and reporting requirements that Apache had proposed in its application, and proposed minor changes and additions.[76] It also noted that NMFS is "currently preparing an Environmental Assessment, pursuant to NEPA, to determine whether or not this proposed activity may have a significant effect on the human environment." The Notice concluded that on the basis of "these preliminary determinations, NMFS proposes to authorize the take of marine mammals incidental to Apache's seismic survey in Cook Inlet, Alaska, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated."[77]

On October 27, 2011, the Marine Mammal Commission ("MMC") provided its recommendations to NMFS.[78] MMC recommended that NMFS "defer issuance of the proposed incidental harassment authorization until such time as the Service can, with reasonable confidence, support a conclusion that the proposed activities would have no more than a negligible impact on the Cook Inlet beluga whale population."[79] But "if the National Marine Fisheries Service decides to issue the requested authorization notwithstanding possible significant impacts to the Cook Inlet population of beluga whales, " MMC made several recommendations, including that NMFS (1) require Apache "to recalculate the estimated number of takes for all species based on the modeled areas of ensonification for each sound threshold... using the full number of survey days rather than half that number"; and (2) "ensure that the monitoring measures included in the authorization are sufficient to account for all takes of marine mammals[.]"[80]

Several comments were submitted by environmental non-government organizations, which are substantially similar to the arguments presented by Plaintiffs in this action and discussed below.

On February 17, 2012, NMFS' Alaska Region issued a Biological Opinion ("BiOp") which set out the agency's opinion on the effects of Apache's proposed seismic surveying on endangered species.[81] The BiOp found that most aspects of Apache's proposed seismic activity would not adversely any endangered species.[82] But with respect to the expected noise of the operation, the BiOp concluded that "[d]ue to the potential for exposure of beluga whales and sea lions to noises at or above 160 dB... NMFS agrees with [Apache's] determination that noise from the use of airguns associated with the proposed seismic program may affect, and is likely to adversely affect the Cook Inlet beluga whales[.]"[83] The BiOp concluded that Apache's proposed seismic surveying with its proposed mitigation measures "is not likely to jeopardize the continued existence of the Cook Inlet beluga whale... nor to destroy or adversely modify Cook Inlet beluga whale critical habitat."[84] An Incidental Take Statement ("ITS") concluded the BiOp, which incorporated the mitigation measures set forth in the BiOp, [85] and authorized the "non-lethal incidental take of no more than 30 Cook Inlet beluga whales... per year for three operational years as a result of exposure to impulsive sounds with received levels = 160 dB[.]"[86]

In April 2012, NMFS issued an Environmental Assessment ("EA") and a Finding of No Significant Impact ("FONSI"), rendering preparation of an Environmental Impact Statement ("EIS") unnecessary.[87]

On April 30, 2012, NMFS issued the IHA to Apache, which was "valid from April 30, 2012 through April 30, 2013."[88] The IHA authorized the take by Level B harassment of 30 beluga whales.[89]

On May 11, 2012, NMFS published a final rule in the Federal Register regarding the issuance of the IHA.[90] The final rule summarized and responded to the comments that NMFS had received from MMC, ADFG, non-governmental organizations, and one member of the public.[91] The final rule also summarized Apache's intended survey operations and discussed the potential effects of the airgun sounds on marine mammals, anticipated effects on marine mammal habitat, mitigation measures, and monitoring and reporting requirements.[92] By and large, NMFS adopted the mitigation measures that Apache had proposed and indicated that "NMFS used Apache's take estimates in its analyses."[93] NMFS also required Apache to comply with the terms and the conditions in the ITS issued with the BiOp, including its time/area restrictions.[94] The final rule indicated NMFS would not impose any other specific time/area restrictions in the IHA because it "believes that the timing and location of the seismic survey, as proposed, will avoid areas and seasons that overlap with important beluga whale behavioral patterns."[95] The final rule also determined that the amount of Level B take authorized would have a negligible impact on the beluga whale and represented a small number (10%) of the Cook Inlet beluga whale population.[96] NMFS also concluded the IHA would not have an unmitigable adverse impact on the subsistence use of the beluga whale.[97]

On May 21, 2012, an amended BiOp was issued that made minor changes to the February opinion.[98] However, the agency's conclusions and the ITS remained the same.[99]

DISCUSSION

I. Jurisdiction.

A. Subject Matter Jurisdiction.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 (Administrative Procedure Act), and 28 U.S.C. § 1361 (mandamus).

B. Standing.

In its opposition, Apache challenges Plaintiffs' standing to bring this case.[100] The Supreme Court has enumerated the requirements for standing:

[W]e held that, to satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.[101]

The Supreme Court has held that the requisite "injury in fact" need not be economic harm, but may also reflect "aesthetic, conservational, and recreational as well as economic values."[102]

Apache argues that although Plaintiffs have submitted the declarations of various individuals establishing their attachment to Cook Inlet or the Cook Inlet beluga whale population, Plaintiffs do not have injury-based standing because they have not demonstrated that the issuance of the IHA or Apache's activities conducted pursuant to the IHA have harmed any beluga whales or any of the Plaintiffs. Apache asserts that its first year of seismic testing has concluded and resulted in "no instance of harassment of any Beluga or other type of whale."[103] Thus, it maintains the "injury alleged by the Plaintiffs was - and remains - purely conjectural and hypothetical."[104]

Plaintiffs refute Apache's arguments, emphasizing that those arguments assume "that Apache's visual and passive acoustic monitoring plan can detect any marine mammal that enters the survey's vast harassment zone - a point that has no basis in the record or the scientific literature."[105] Moreover, even if Apache's monitoring efforts were adequate and no harm to any beluga whales occurred, Plaintiffs maintain they have standing "because a threatened injury is sufficient to satisfy the injury-in-fact requirement."[106] Plaintiffs assert that "NMFS and Apache both predicted that the seismic survey is likely to take 90 Cook Inlet beluga whales over its three-year duration" and this predicted harm establishes standing.[107]

Apache's September 2012 monthly report indicates that 25 beluga whales were visually observed from Apache's vessel or land based stations during that month's monitoring effort.[108] This Court finds that the presence of these animals in the survey area indicates the harm that Plaintiffs are concerned with could have occurred or is likely to occur, particularly given Plaintiffs' challenge to certain aspects of Apache's monitoring techniques and NMFS' take calculations. "[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity."[109] Here, Plaintiffs, through their declarations, have made such a showing.[110] Plaintiffs have adequately ...


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