United States District Court, D. Alaska
ALASKA WILDERNESS LEAGUE, CENTER FOR BIOLOGICAL DIVERSITY, GREENPEACE, INC., NATURAL RESOURCES DEFENSE COUNCIL, RESISTING ENVIRONMENTAL DESTRUCTION ON INDIGENOUS LANDS, and SIERRA CLUB, Plaintiffs,
SALLY JEWELL, Secretary of the Interior, and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants, and ALASKA OIL AND GAS ASSOCIATION, Intervenor-Defendant.
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
SHARON L. GLEASON, District Judge.
Before the Court at Docket 47 is Plaintiffs' Motion for Summary Judgment. The Federal Defendants and Alaska Oil and Gas Association both opposed and cross-moved for summary judgment. Oral argument was not requested by any party and was not necessary to the Court's determination. For the reasons set forth below, Plaintiffs' motion will be denied and the Federal Defendants' and Intervenor-Defendant's cross-motions will be granted.
Plaintiffs, six environmental organizations, challenge an incidental take regulation ("ITR") promulgated by the U.S. Fish and Wildlife Service ("the Service") that is effective from June 12, 2013 to June 12, . The ITR sets out the permissible methods for the incidental taking of small numbers of Pacific walruses in the Chukchi Sea in connection with oil and gas exploration activities. The Chukchi Sea is located off the North Slope of Alaska. It is a promising location for oil and gas exploration and development. It is also an important habitat for the Pacific walrus, particularly in the Hanna Shoal region within the sea. Plaintiffs assert that the ITR violates the Marine Mammal Protection Act ("MMPA"), the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA"). Plaintiffs' claims all relate to the manner in which the ITR addresses mitigation measures for walruses in the Hanna Shoal area.
I. The Marine Mammal Protection Act
The MMPA generally prohibits the taking of marine mammals. The term "take" is defined broadly under the Act and means "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." The MMPA defines harassment to include "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."
The MMPA includes several exceptions to the general taking prohibition. The exception at issue in this case allows for "the incidental, but not intentional, taking by citizens while engaging in [an activity such as oil exploration]... of small numbers of marine mammals of a species or population stock" when the Secretary of the Interior "finds that the total of such taking... will have a negligible impact on such species or stock...." After notice and comment, the Secretary may then prescribe regulations that authorize such take for up to five years. The regulations must "set forth permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance." This type of regulation is known as an incidental take regulation, and is the type of regulation that is challenged here.
After an ITR is issued, a citizen may apply for a letter of authorization ("LOA") that authorizes incidental take consistent with the ITR. LOAs are issued after a non-public process if the Service determines that the proposed activity is one described in the incidental take regulation and concludes that the level of take caused by the activity will be consistent with the findings made in the regulation. Notice of the issuance of an LOA is to be published in the Federal Register within 30 days of its issuance. The regulation also provides that LOAs will specify "any additional terms and conditions appropriate for the specific request."
In 1991, the Service first issued regulations authorizing the incidental take of walruses and polar bears in connection with oil and gas exploratory activities in the Chukchi Sea for a period of five years. Another set of five-year incidental take regulations were issued for the Chukchi Sea for the period from 2008 through 2013. A legal challenge was brought regarding those regulations that was rejected by the Alaska District Court and affirmed on appeal to the Ninth Circuit.
II. The National Environmental Policy Act
Pursuant to NEPA, an agency must prepare an Environmental Impact Statement ("EIS") "in every recommendation or report on proposals for... major Federal actions significantly affecting the quality of the human environment." NEPA's implementing regulations provide that an agency shall prepare an Environmental Assessment ("EA") to determine whether a proposed federal action will have a significant impact on the human environment such that an EIS is warranted. An EA is a concise public document" that "include[s] brief discussions of the need for the proposal, of alternatives as required by [42 U.S.C. § 4332(2)(E)], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." If the agency concludes in the EA that there is no significant environmental impact from the proposed project, the federal agency issues a finding of no significant impact ("FONSI") in lieu of preparing an EIS. "In reviewing an agency's decision not to prepare an EIS under NEPA, the Court employs an arbitrary and capricious standard that requires it to determine whether the agency has taken a hard look' at the consequences of its actions, based [its decision] on a consideration of the relevant factors, and provided a convincing statement of reasons to explain why a project's impacts are insignificant."
III. The 2013 Chukchi Sea Regulations
On January 31, 2012, the Alaska Oil and Gas Association ("AOGA") requested that the Service promulgate an incidental take regulation allowing the incidental take of Pacific walruses and polar bears in the Chukchi Sea during oil and gas exploration activities for a period of five years. The Secretary published a proposed incidental take regulation on January 9, 2013, seeking comment from the public. The proposed rule included the delineation of a specific area in the Chukchi Sea that it defined as the Hanna Shoal Walrus Use Area. And it stated that "[b]ased on the significant biological value of Hanna Shoal to walrus foraging, and the likelihood of encountering large groups of foraging walruses in that area through September, we do not anticipate issuing any [letters of authorization] for seismic or drilling activity in the Hanna Shoal region during the 5-year span of these proposed regulations."
On May 14, 2013, the Service issued an EA for the proposed regulation that evaluated whether a full EIS was needed pursuant to NEPA. The EA concluded that "the effects of the rule are not significant because it only authorizes incidental take of small numbers that will have only negligible impacts on trust species populations and no unmitigable impact on subsistence use of those species." The Service also issued a Finding of No Significant Impact ("FONSI"), which concluded that the preparation of an EIS was not required by NEPA.
On June 12, 2013, the Service promulgated the final incidental take regulation. The Final Rule allows the industry to apply for letters of authorization to permit the incidental take of Pacific walruses in connection with oil and gas exploration activities in the Chukchi Sea. The ITR contains a number of specified mitigation, monitoring and reporting requirements, including minimum distances that aircraft and vessels must maintain from walruses on land, water and sea ice, on-board marine mammal observers, and reporting requirements. It also specifies that "[n]o more than two simultaneous seismic operations and three offshore exploratory drilling operations will be authorized in the Chukchi Sea region at any time." And the ITR specifies that "[o]perators must maintain a minimum spacing of 24 km (15 mi) between all active seismic source vessels and/or drill rigs during exploration activities to avoid significant synergistic or cumulative effects from multiple oil and gas exploration activities on foraging or migrating walruses."
The Final Rule establishes a Hanna Shoal Walrus Use Area ("HSWUA") and recognizes that "it is critical to minimize disturbance in this area of highly concentrated [walrus] use during July through September." But the Final Rule does not preclude all exploratory activity in the HSWUA. Rather, it finds that from "July through September, additional mitigation measures may be applied to activities within the HSWUA on a case-by-case basis. These mitigation measures include, but may not be limited to, seasonal restrictions, reduced vessel traffic, or rerouting of vessels." The Final Rule also recognizes that the mitigation measures may be necessary in the HSWUA "to minimize potential disturbance and ensure consistency with the MMPA mandates that only small numbers of walruses be affected with a negligible impact on the stock." Apart from an aircraft altitude restriction, the Final Rule does not impose specified additional mitigation for the HSWUA distinct from the rest of the Chukchi Sea. Rather, the ITR explains that
On a case-by-case basis, as individual LOA applications are received, we will examine the proposed activities in light of the boundaries of the HSWUA, the nature and timing of the proposed activities, and other available information at the time. If the Service determines that the proposed activity is likely to negatively impact more than small numbers of walruses, we will consider whether additional mitigation and monitoring measures could reduce any potential impacts to meet ...