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Center For Biological Diversity; Pacific Environment v. Kenneth Lee Salazar

August 21, 2012

CENTER FOR BIOLOGICAL DIVERSITY; PACIFIC ENVIRONMENT, PLAINTIFFS-APPELLANTS,
v.
KENNETH LEE SALAZAR, SECRETARY OF THE INTERIOR; U.S. FISH AND WILDLIFE SERVICE,
DEFENDANTS-APPELLEES, ALASKA OIL AND GAS ASSOCIATION, DEFENDANT-INTERVENOR-APPELLEE.



Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, Chief District Judge, Presiding D.C. No. 3:08-cv-00159-RRB Argued and Submitted June 28, 2012-Fairbanks, Alaska

The opinion of the court was delivered by: W. Fletcher, Circuit Judge:

FOR PUBLICATION

OPINION

Before: Alfred T. Goodwin, William A. Fletcher, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge William A. Fletcher

OPINION

This case involves U.S. 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 judgment to the Service. We affirm.

I. Background

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 esti- mated 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.

A. Incidental Take Under the MMPA

The MMPA generally prohibits the "take" of marine mammals. 16 U.S.C. § 1371(a). "Take" is defined broadly under the MMPA to encompass "harassment," including any act of "torment" or "annoyance" that "has the potential to injure . . . or . . . 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." Id. § 1362(13), (18)(A)(i)-(ii). Unlawful take is subject to a civil penalty of up to $10,000 for each violation. Id. § 1375(a)(1). A knowing violation is subject to a criminal penalty of up to a year in prison and a $20,000 fine. Id. § 1375(b).

The MMPA allows several exceptions to the general take prohibition, including take for scientific research and for public display, as well as incidental take in the course of commercial fishing. Id. § 1371(a)(1)-(2). At issue in this appeal is an exception under Section 101(a)(5)(A) for incidental, but not intentional, take of "small numbers" of marine mammals from "a specified activity (other than commercial fishing) within a specified geographical region." Id. § 1371(a)(5)(A)(i). The Service will authorize such take of "small numbers" of mammals for up to five years if it determines that the total incidental take would have a "negligible impact" on the relevant species or stock and would not have an "unmitigable adverse impact" on availability for specified subsistence uses. Id. § 1371(a)(5)(A)(i)(I). If the Service makes the required findings, it may issue regulations - such as those challenged in this appeal - specifying permissible methods of take pursuant to the activity, specifying other means of effecting the least practicable adverse impact on the species, and specifying monitoring and reporting requirements for the authorized take. Id. § 1371(a)(5)(A)(i)(II).

In 1983, the Service promulgated regulations implementing Section 101(a)(5) of the MMPA. 48 Fed. Reg. 31,220 (July 7, 1983) (codified at 50 C.F.R. § 18.27). The implementing regulations establish a two-step process: first, the Service issues incidental take regulations that govern a specified activity in a specified geographic region for up to five years; second, the Service issues letters of authorization ("LOAs") to individual applicants authorizing their incidental take under the regulations. 50 C.F.R. § 18.27(e)-(f). Before issuing an LOA, the Service must determine that the level of anticipated incidental take is consistent with the five-year regulations. Id. § 18.27(f)(2). The implementing regulations define "small numbers" as "a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock." Id. § 18.27(c). They define "negligible impact" as an impact that is not reasonably likely or expected to "adversely affect the species or stock through effects on annual rates of recruitment or survival." Id.

The oil and gas industry for more than two decades has requested and received incidental take authorization for its exploration, development, and production activities off the coast of northwestern Alaska. Between 1993 and 2006, the Service issued a series of regulations authorizing incidental take of polar bears and Pacific walruses in the Beaufort Sea.

58 Fed. Reg. 60,402 (Nov. 16, 1993); 60 Fed. Reg. 42,805 (Aug. 17, 1995); 64 Fed. Reg. 4,328 (Jan. 28, 1999); 65 Fed. Reg. 5,275 (Feb. 3, 2000); 65 Fed. Reg. 16,828 (Mar. 30, 2000); 68 Fed. Reg. 66,744 (Nov. 28, 2003); 71 Fed. Reg. 43,926 (Aug. 2, 2006). In 1991, the Service issued regulations authorizing incidental take in the adjacent Chukchi Sea. 56 Fed. Reg. 27,443 (June 14, 1991). Little to no oil and gas exploration occurred in the Chukchi Sea over the next fifteen years. However, new opportunities for exploration and development in the Chukchi Sea prompted the Alaska Oil and Gas Association ("Association") to request another set of five-year incidental take regulations in 2005.

B. 2008 Chukchi Sea Regulations

In response to the Association's request, the Service in June 2007 published proposed regulations authorizing incidental, nonlethal take of polar bears and Pacific walruses resulting from oil and gas exploration activities in the Chukchi Sea. 72 Fed. Reg. 30,670 (June 1, 2007). Previous incidental take regulations in the Beaufort and Chukchi Seas covered oil and gas exploration, development, and production. The new regulations cover only exploration activities - such as onshore and offshore seismic surveys, exploratory drilling, and associated support operations.

In July 2007, Plaintiffs filed comments with the Service criticizing the proposed incidental take regulations. The Marine Mammal Commission, an independent federal agency created under the MMPA to advise the Service, submitted comments recommending that the Service defer issuing final regulations until it developed more effective monitoring and mitigation strategies and gathered more information about the effects of exploration activities on the mammals.

In March 2008, the Service issued an Environmental Assessment ("EA") for the proposed regulations pursuant to NEPA. 40 C.F.R. § 1508.9. The EA concludes that the incidental take regulations, along with accompanying mitigation measures, "would result in no measurable impacts o[n] the physical environment," and "the overall impact would be negligible on polar bear and Pacific walrus populations."

Because promulgation of the regulations would constitute "agency action" under Section 7 of the ESA, the Service's Marine Mammal Office consulted internally with the Fairbanks Fish and Wildlife Field Office regarding the regulations' effects on the threatened polar bear. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02. In May 2008, the Fairbanks office issued a Biological Opinion ("BiOp") concluding that the incidental take regulations were not likely to jeopardize the continued existence of the polar bear. The BiOp notes that "(1) the Regulations do not authorize[ ] lethal take, (2) the Chuckchi Sea Regulations will be implemented in a similar manner to the Beaufort Sea Regulations, which have been in place almost continuously since 1993, and (3) few bears are likely to be encountered, and those that are encountered are likely to alter their behavior only temporarily if at all." The BiOp does not consider effects on the Pacific walrus because the species is not listed as threatened or endangered under the ESA.

In June 2008, the Service issued a final rule for the Chukchi Sea incidental take regulations. 73 Fed. Reg. 33,212 (June 11, 2008) (codified at 50 C.F.R. §§ 18.111-18.119). The regulations encompass a geographic area of about 90,000 square miles, including the waters and seabed of the Chukchi Sea, as well as adjacent coastal land extending about 25 miles inland. The regulations anticipate up to four offshore seismic survey vessels operating in a given year, each accompanied by three support vessels, and up to three drill ships, each drilling as many as four wells and accompanied by icebreakers, barges, helicopters, and supply ships. Id. at 33,215-16. Onshore, the regulations anticipate the drilling of as many as six wells and the construction of up to 100 miles of roads and four airfield runways. Id. at 33,216. The final rule acknowledges that non-lethal, incidental harassment of polar bears and Pacific walruses is reasonably likely or expected to occur as a result of the proposed activities. Id. at 33,223-32. However, it notes that onshore activities are not expected to occur near known polar bear denning areas or walrus haulouts, and that offshore activities will occur during the open water season (July through November) to avoid disturbing pack ice on which the mammals rely. Id. at 33,214. The rule incorporates into its analysis mitigation measures that would be imposed on the activities, such as restrictions on the location and spacing of offshore seismic surveys. See, e.g., id. at 33,216-18.

The final rule concludes, with "a high level of confidence," that "any incidental take reasonably likely to result from the effects of the proposed activities, as mitigated through this regulatory process, will be limited to small numbers of walruses and polar bears." Id. at 33,234-36. The Service explains that

the number of animals likely to be affected is small, because: (1) A small portion of the Pacific walrus population or the Chukchi Sea and Southern Beau-fort Sea polar bear populations will be present in the area of Industry activities, (2) of that portion, a small percentage will come in contact with Industry activities, and (3) the response by those animals will likely be minimal changes in behavior.

Id. at 33,236.

The final rule also concludes that the incidental take authorized under the regulations would have only a "negligible impact" on the polar bears and Pacific walruses. It concludes that "any incidental take reasonably likely to result from the effects of oil and gas related exploration activities during the period of the rule, in the Chukchi Sea and adjacent western coast of Alaska[,] will have no more than a negligible effect on the rates of recruitment and survival of polar bears and Pacific walruses in the Chukchi Sea Region." Id.

The regulations require a separate LOA for each proposed exploration activity. Applicants for an LOA must submit an operations plan, a polar bear interaction plan, and a site-specific mitigation and monitoring plan. 50 C.F.R. §§ 18.114, 18.118. The Service will tailor its mitigation and monitoring requirements based on the location, timing, and nature of the proposed activity. Id. § 18.116(b). The regulations do not authorize lethal or intentional take. Id. § 18.117(a). In July 2008, the Service began issuing LOAs for exploration activities in the Chukchi Sea under the incidental take regulations. The regulations are valid through June 11, 2013. Id. § 18.113.

C. Procedural Background

Plaintiffs filed suit against the Service, alleging that the five-year incidental take regulations, the accompanying BiOp, and the EA fail to comply with the MMPA, ESA, and NEPA. The Association intervened as co-defendants.

Plaintiffs had previously challenged the Service's 2006 regulations authorizing incidental take of polar bears and Pacific walruses from oil and gas activities in and along the Beaufort Sea. In December 2009, we upheld the Service's 2006 Beau-fort Sea regulations under the MMPA and NEPA. Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009). Among other things, we let stand the Service's determinations that the authorized incidental take would have only a "negligible impact" on the marine mammal populations, and that the regulations would not have a significant impact on the environment. Id. at 710-12.

A month after our decision in Kempthorne, the district court in this case granted summary judgment to the Service and the Association. Plaintiffs timely appealed.

II. Standard of Review

We review de novo a district court's grant or denial of summary judgment. Humane Soc'y v. Locke, 626 F.3d 1040, 1047 (9th Cir. 2010). We review an agency's compliance with the MMPA, ESA, and NEPA under the Administrative Procedure Act. Id. (MMPA and NEPA); City of Sausalito v. O'Neill, 386 F.3d 1186, 1205-06 (9th Cir. 2004) (NEPA and ESA). We may not set aside an agency decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). A decision is arbitrary and capricious if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (internal quotation marks omitted), overruled on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).

We review an agency's interpretation of a statute it is charged with administering under the familiar two-step framework set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). We first determine whether "Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. "If a statute is ambiguous, and if the implementing agency's construction is reasonable, Chevron requires a federal court to accept the agency's ...


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