Native Village of Chickaloon et al v. National Marine Fisheries Service et al
Filing
74
ORDER: re Motion for Summary Judgment 48 . Signed by Judge Sharon L. Gleason on 05/28/2013. (AEM, CHAMBERS STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
NATIVE VILLAGE OF CHICKALOON, et
al.,
Plaintiffs,
v.
NATIONAL MARINE FISHERIES
SERVICE, et al.
Case No. 3:12-cv-00102-SLG
Defendants.
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.
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
1
Pursuant to Local Rule of Civil Procedure 16.3(c)(1), Plaintiffs’ opening brief is labeled a
Motion for Summary Judgment. Docket 48. Plaintiffs later filed a Notice of Errata correcting
one citation in each of their briefs. Docket 66.
2
Docket 51; Docket 52; Docket 53; Docket 54.
3
Docket 56.
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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
4
B 877.
5
B 877-879.
6
B 881.
7
B 882.
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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’
8
B 882; BiOp 170-171. For purposes of this Order, when “B” is used in a citation followed by a
number, it refers to the page or pages within the administrative record for the Biological Opinion.
When “BiOp” is used, it refers to the Biological Opinion itself issued in May 2012, and located in
the record at B 142-272. The Environmental Assessment is also included in that portion of the
administrative record. See B 843-984.
9
BiOp 172.
10
BiOp 175.
11
B 882.
12
B 882; BiOp 176. “Carrying capacity is the largest number of a species that a given
ecosystem can sustain.” Anderson v. Evans, 371 F.3d 475, 481 n.2 (9th Cir. 2002).
13
B 882; BiOp 176.
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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
km2. 18 The 2011 population estimate for Cook Inlet beluga whales was 284. 19
14
B 882.
15
BiOp 176.
16
BiOp 176-77.
17
B 882.
18
B 883.
19
BiOp 177.
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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
20
A 1242; A 1572. Citations to “A” followed by a page number refer to that portion of the
administrative record that contains the IHA and some NEPA documents. See Docket 52 at 11
n.1.
21
A 1332; A 1572.
22
A 1362, 1371.
23
16 U.S.C. § 1362(13) (Marine Mammal Protection Act); 16 U.S.C. § 1532(19) (Endangered
Species Act).
24
A 1363; 16 U.S.C. § 1362(18)(A)(i).
25
Id.
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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
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
26
A 1338.
27
A 1338, 1346.
28
A 1346; see BiOp 157 (Figure 6: Apache’s seasonal windows of opportunity to conduct
seismic surveys across the entire project area).
29
B 900.
30
A 1339. Unlike many seismic surveys that operate airguns continuously for 24 hours each
day, Apache’s “in-water airguns will only be active for approximately 2.5 hours during each of
the slack tide periods. . . . Seismic operations are not conducted in ebb and flood tides because
the signal-to-noise ratio of the seismic data are extremely poor due to the high ambient noise
from the tidal flow. Furthermore, actual towing of the array by the vessel in the high tidal flows .
. . is difficult and potentially unsafe for the vessel, people, and equipment.” BiOp 156, 158.
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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 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
31
A 1343-44.
32
BiOp 161.
33
A 1384; BiOp 158.
34
A 1363. These are the thresholds for cetaceans, including the beluga whale. The application
also includes a 190 dB injury threshold for pinnipeds, such as seals and sea lions.
35
A 1363.
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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
36
A 1375 (citing Southall et al. (2007)).
37
A 1376.
38
A 1355 (citing Richardson et al. (1995)).
39
BiOp 216.
40
A 1362.
41
A 1372 (citing Richardson et al. (1995)).
42
A 1363.
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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
43
A 1364-1368.
44
A 1385; A 1417; BiOp 164.
45
A 1366.
46
A 1367.
47
A 1368.
48
See, e.g., Doc. A 150 at 11 (Table 1, Whale Counts); NMFS researchers note counts are
uncorrected at: Doc. A 139 at 5 (2000), Doc. A 141 at 7 (2001), Doc. A 142 at 7 (2002), Doc. A
143 at 7 (2003), Doc. A 145 at 7 (2004), Doc. A 148 at 8 (2005), BiOp 2581 (2006), Doc. A 150
at 8 (2007), Doc. A 154 at 13 (2008), Doc. A 155 at 12 (2009), Doc. A 156 at 13 (2010).
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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”
Away from river mouths:
Near river mouths:
Average “Take”
4.7
2.4
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
49
Doc A 154 at 17.
50
A 1369.
51
A 1369. When the mitigation gun alone is operating, the boundary of the area ensonified to
160dB was estimated at 330 meters from the vessel. A 1385.
52
I.e., the estimated number of beluga whales that would be exposed to 160 dB of sound.
53
A 1371.
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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
(nearshore)
1.42 km
6.41 km 58
2400 in3 airgun
(offshore)
.98 km
4.89 km
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
54
A 1370.
55
A 1380.
56
A 1384.
57
A 1417, 1385. Apache’s application also included radii for the 190 dB ensonified area, the
Steller sea lion injury threshold. A 1363.
58
Apache conducted a sound source verification study to confirm these safety radii distances
before beginning its in-water seismic operations. A 1802; BiOp 254. The study adjusted the
160 dB threshold distance to 9.5 km. Docket 55 at 4.
59
A 1384.
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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
60
A 1385.
61
A 1384.
62
A 1386.
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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
63
A 1388.
64
A 1388.
65
A 1384.
66
A 1384.
67
A 1388.
68
A 1389.
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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 realtime 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
69
A 1389.
70
A 1390.
71
BiOp 167.
72
A 1393.
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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
73
A 1337, A1371.
74
A 1572-1586 (Federal Register Notice, Vol. 76, No. 183, 58473-58487, September 21, 2011).
75
A 1572-1586.
76
A 1579-1581. For example, the Notice proposed three mitigation measures for support
vessels that are not directly relevant to this appeal. Cf. A 1386 and A 1579.
77
A 1586.
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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
78
MMC is an independent commission of three members appointed by the President with the
advice and consent of the Senate. It was established by the MMPA and is charged with making
reports and recommendations on marine mammal matters. 16 U.S.C.A. §§ 1401-02.
79
B 13307.
80
B 13307-13308.
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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
81
B 412-538; see also Amended BiOp, BiOp 142-272.
82
BiOp 250.
83
A 1723 (emphasis in original); also see BiOp 222.
84
A 1750; also see BiOp 250.
85
BiOp 253-255; A 1754. The BiOp also included conservation recommendations, which “are
discretionary agency activities to minimize or avoid adverse effects of a proposed action on
listed species or critical habitat, to help implement recovery plans, or to develop information.”
BiOp 251. These recommendations included: (1) consider using new research and techniques
for reducing the horizontal spread of airgun noise; (2) conduct aerial surveys to verify there are
no groups of 5 or more marine mammals in an area before beginning surveying in a noncontiguous patch; (3) to reduce the total acoustic energy added to the marine environment, do
not use the mitigation gun in between surveying periods, but rather use the ramp-up procedure
at the start of each new shooting period; (4) extend the ramp up procedure from 30 to 45
minutes to provide beluga whales enough time to swim beyond the 6.41 km harassment radius
before shooting begins; (5) conduct a sound source verification study at both nearshore and
offshore areas so a harassment/harm zone can be identified for each depth category as used in
the acoustic model. Id. These discretionary recommendations were not included in the ITS.
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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
86
BiOp 10.
87
B 843-969, B 970-78.
88
A 1783. A new IHA is now in place that is effective from March 1, 2013 to March 1, 2014.
Docket 73-1.
89
A 1791.
90
A 1792-1808 (Federal Register Notice Vol. 77, No. 92, 27720-27736, May 11, 2012).
91
A 1793.
92
A 1798-1803.
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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
93
A 1803-1805. The Notice slightly changed the restriction regarding groups of whales and
cow-calf pairs approaching the harassment sound level zone and added three mitigation
measures for support vessels. A 1783-1790, 1801.
94
A 1790. The BiOp contains two area restrictions:
There shall be no marine seismic activity within 10 miles of the mean higher high
water (MHHW) line of the Susitna Delta (the area from Beluga River to Little
Susitna River) from mid-April to mid-October so as to avoid any effects to
belugas and their prey in this critical feeding and potential breeding area. If the
results of the SSV study indicate that noise over 160 dB travels further than 6.41
km (~4 mi), Apache will work with NMFS AKR to establish a new minimum
setback distance for this area during this time.
There shall be no airguns used as an energy source within 1.6 km (1 mi) of the
mouth of any stream listed by the ADF&G on the Catalogue of Waters Important
for the Spawning, Rearing, or Migration of Anadromous Fishes, unless approved
by ADF&G on a case-by-case basis.
Although the applicant identifies this as a mitigation measure, NMFS does not
consider the 1.6 km (1 mi) setback from river mouths in the analysis of impacts to
beluga whales, beluga critical habitat . . . because there is the possibility of
exemptions to this setback by ADF&G. NMFS has no authority to determine
exemptions allowed or denied by ADF&G, and thus must assume in this opinion
that airguns will occur within 1 mile of the mouths of all anadromous streams.
BiOp 168-169 (emphasis in original).
95
A 1796.
96
A 1807.
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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
97
A 1806-1808.
98
BiOp 143.
99
BiOp 143, 253-255. In 2013, NMFS Alaska Region requested that consultation be reinitiated
and a new BiOp has since been issued. Docket 73-3 at 3.
100
Docket 54 at 7-8.
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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
101
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977)).
102
Sierra Club v. Morton, 405 U.S. 727, 738 (1972) (internal citation omitted).
103
Docket 54 at 8 (emphasis omitted); Docket 55 at 3-4 ¶¶ 9-10 (Ex. A: Hendrix Decl.).
Although the administrative record is closed and this declaration cannot be considered in this
Court’s review of the agency’s decision, the parties agree that it may be considered for
purposes of evaluating Plaintiffs’ standing. Docket 72 at 8-9, 28.
104
Docket 54 at 8.
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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 established an injury in fact that is sufficiently
105
Docket 56 at 9.
106
Docket 56 at 10 (citing Friends of the Earth, Inc. 528 U.S. at 180-81; Cent. Delta Water
Agency v. U.S., 306 F.3d 938, 947-48 (9th Cir. 2002)).
107
Docket 56 at 11.
108
Docket 55-1 at 5 (Sept. 2012 Monthly Report).
109
Friends of the Earth, 528 U.S. at 183 (citing Sierra Club 405 U.S. at 735; Lujan, 504 U.S. at
562-63).
110
See Docket 49-1 at 5 ¶¶ 13-14; Docket 49-2 at 2-3, 7 ¶¶ 7, 9-11, 23.
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“concrete and particularized” and “actual or imminent,” and not merely “conjectural or
hypothetical,” such that they have standing to bring this suit. 111
II.
Standard of Review.
The sufficiency of NMFS’ analysis included in the IHA, BiOp, and EA is reviewed
pursuant to the Administrative Procedure Act (“APA”). 112 The APA directs a court to
overturn agency action if the action is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 113 In this regard, the Supreme Court has held:
[t]he scope of review under the ‘arbitrary and capricious’ standard is
narrow and a court is not to substitute its judgment for that of the agency.
Nevertheless, the agency must examine the relevant data and articulate a
satisfactory explanation for its action including a ‘rational connection
between the facts found and the choice made.’ 114
Agency decisions are arbitrary and capricious “if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider an important aspect
of the problem, offered an explanation for its decision 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.” 115
111
See Friends of the Earth, 528 U.S. at 180-81. Additionally, a new IHA has been issued for
the next year of surveying so the anticipated threat of injury is ongoing. Docket 73 (Notice of
Issuance of New IHA to Apache on February 15, 2013).
112
Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1047 (9th Cir. 2010) (MMPA review subject
to APA); Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (ESA
review subject to APA); Pac. Rivers Council v. U.S. Forest Serv., 689 F.3d 1012, 1020 (9th Cir.
2012) (NEPA review subject to APA).
113
5 U.S.C. § 706(2)(A).
114
Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (quoting Burlington Truck Lines v. U.S., 371 U.S. 156, 168 (1962)).
115
Motor Vehicles Mfrs., 463 U.S. at 43.
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The Ninth Circuit directs a court “to conduct a ‘particularly deferential review’ of
an ‘agency's predictive judgments about areas that are within the agency's field of
discretion and expertise . . . as long as they are reasonable.’” 116 In such cases, a court
must “treat [the agency’s] decision with great deference because [it is] reviewing the
agency's technical analysis and judgments, based on an evaluation of complex scientific
data within the agency's technical expertise.”117
A reviewing court may not “supply a reasoned basis for the agency’s action that
the agency itself has not given,” but it shall “uphold a decision of less than ideal clarity if
the agency’s path may be reasonably discerned.” 118
III.
Claim 1: Violation of the Marine Mammal Protection Act.
Congress enacted the MMPA in 1972 based on its finding that “marine mammals
have proven themselves to be resources of great international significance, esthetic and
recreational as well as economic[.]”
The MMPA’s stated purpose is “that [marine
mammals] should be protected and encouraged to develop to the greatest extent
feasible commensurate with sound policies of resource management and that the
primary objective of their management should be to maintain the health and stability of
the marine ecosystem.” 119
To effectuate this purpose, the MMPA imposes a
moratorium on the taking and importation of marine mammals. Within the context of the
116
The Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008).
117
Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 869 (9th Cir. 2003) (citing Baltimore Gas &
Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983); Chem. Mfrs. Ass'n v. EPA, 919 F.2d 158, 167
(D.C.Cir. 1990)).
118
Motor Vehicles Mfrs., 463 U.S. at 43.
119
16 U.S.C. § 1361.
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MMPA, “taking” means “to harass, hunt, capture, or kill, or attempt to harass, hunt,
capture, or kill any marine mammal.” 120 The MMPA divides responsibility for its
enforcement between two agencies. The National Oceanic and Atmospheric
Administration, which contains NMFS, is responsible for enforcing the MMPA with
regard to “members of the order Cetacea [which includes beluga whales] and members,
other than walruses, of the order Pinnipedia.”121
The MMPA contains a number of exceptions to the moratorium. 122
The
exception relevant here applies to activities other than commercial fishing and requires
NMFS to authorize “for periods of not more than 1 year, subject to such conditions as
[NMFS] may specify, the incidental, but not intentional, taking by harassment of small
numbers of marine mammals[,]” if NMFS makes the following two findings:
(1) the harassment “will have a negligible impact” on such species or
stock; and
(2) the harassment “will not have an unmitigable adverse impact on the
availability of such species or stock for taking for subsistence
uses[.] 123
120
16 U.S.C. § 1362(13).
121
16 U.S.C. §§ 1362(12)(A)(i), 1371. The Secretary of the Interior is responsible for “all other
marine mammals covered by” the MMPA (such as walruses, sea otters, polar bears, and sea
cows). 16 U.S.C. § 1362(12)(A)(ii).
122
16 U.S.C. § 1371(a)(1).
123
16 U.S.C. § 1371(a)(5)(D)(i) (I)-(II). Much of the case law on the MMPA reviews an agency’s
harassment authorization for up to five years issued under different provisions of the act. See
16 U.S.C. § 1371(a)(5)(A)(i)(I)-(II). However, the same statutory standards apply (small
numbers, negligible impact, unmitigable adverse impact, and least practicable impact) such that
those cases are relevant to the Court’s analysis under the one-year provision of the MMPA at
issue in this case.
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If NMFS authorizes an incidental taking, its authorization must prescribe (1)
“permissible methods of taking by harassment pursuant to such activity, and other
means of effecting the least practicable impact on such species or stock and its habitat”;
(2) the measures determined by NMFS to be “necessary to ensure no unmitigable
adverse impact on the availability of the species or stock for taking for subsistence
uses”; and (3) “requirements pertaining to the monitoring and reporting of such taking by
harassment[.]”124
Plaintiffs assert that NMFS has violated the MMPA in four respects: (1) arbitrarily
and capriciously concluding that the Apache project will take only “small numbers” of
beluga whales; (2) erroneously calculating the estimated marine mammal take; (3)
failing to ensure the least practicable adverse impact on beluga whales; and (4) failing
to ensure no unmitigable adverse impact on subsistence use. 125
A. Small Numbers.
The MMPA directs the agency to authorize the incidental taking of “small
numbers” of marine mammals. A separate part of the statute requires the agency to
authorize such a taking if it finds that the taking “will have a negligible impact on such
species or stock[.]” 126 Plaintiffs challenge the NMFS’ small numbers determination on
two grounds: (1) that the agency improperly conflated its small numbers analysis with its
negligible impact analysis; and (2) that the agency improperly quantified 10% of the
beluga whale population as small numbers.
124
16 U.S.C. § 1371(a)(5)(D)(ii)(I)-(III).
125
Docket 48 at 23-38 (Pl’s Mot.).
126
16 U.S.C. § 1371(a)(5)(D)(i).
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(1) Small Numbers and Negligible Impact Analyses.
Plaintiffs assert that “NMFS failed to differentiate its cursory ‘small numbers’
analysis from its ‘negligible impact’ analysis and in doing so failed to explain how it
reached its conclusion regarding small numbers.”127
Plaintiffs cite to Center for
Biological Diversity v. Salazar, 128 and assert that in that case, “[c]entral to the [Ninth
Circuit’s] finding that the two terms were applied legally was the fact that the rule
“analyzes the ‘small numbers’ and ‘negligible impact’ standards separately under
different headings.” 129 In contrast, Plaintiffs assert that here “NMFS neither separated
its small numbers analysis from its negligible impact analysis nor identified different
factors for each concept.” 130
NMFS responds that even though small numbers and negligible impact are
discussed under the same heading in the final rule, it “did not conflate its small numbers
and negligible impact analyses . . . [but rather] performed its standard [small numbers]
analysis, which is to examine the amount of take allowed for each species relative to
each species’ or stock’s total population size.” 131 NMFS maintains it “applied a different
standard for its negligible impact finding, using its regulatory definition” that takes into
account the “‘number, nature, intensity, and duration’ of the takes and the context in
127
Docket 48 at 24.
128
695 F.3d 893 (9th Cir. 2012).
129
Docket 48 at 25 (citing CBD v. Salazar, 695 F.3d at 905).
130
Docket 48 at 26.
131
Docket 52 at 19-20.
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which they occur.” 132 Given the “distinct, separate standards for the two analyses,”
NMFS argues that the fact that the two analyses are under the same heading in the final
rule does not render the final rule arbitrary and capricious. 133
In CBD, the Ninth Circuit held that “to effectuate Congress' intent, ‘small
numbers' and ‘negligible impact’ must be defined so that each term has a separate
meaning.” 134 The final rule at issue in CBD did address “small numbers” and “negligible
impact” under separate headings. But the Circuit Court did not expressly hold that the
“small numbers” and “negligible impact” analyses must be placed under separate
headings.
Rather, it held that “[t]he key interpretative requirement of the Section
101(a)(5)(A) language is that ‘small numbers’ and ‘negligible impact’ remain distinct
standards.” 135 The Ninth Circuit also recognized that “there will inevitably be ‘some
overlap’ between the two standards” and that “[t]he Service can (and should) do a better
job of keeping the standards distinct when promulgating future incidental take
regulations.” 136
In this case, in its small numbers determination, NMFS considered the
percentage of the population affected. 137 It indicates the requested take of 30 beluga
whales “represent[s] 10 percent of the Cook Inlet beluga whale population of
132
Docket 52 at 20 (quoting A 1806-07); 50 C.F.R. § 216.103.
133
Docket 52 at 20-22.
134
CBD, 695 F.3d at 904 (internal citations omitted).
135
CBD, 695 F.3d at 906.
136
CBD, 695 F.3d at 907.
137
Cf. CBD, 695 F.3d at 907 (small numbers analysis properly focused on the number of
mammals affected).
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approximately 284 animals . . . These percentage estimates represent small numbers
relative to the affected population sizes[.]” 138
In its negligible impact determination, NMFS looked at the expected impact on
animal behavior, whether crucial habitat would be affected, and the duration of any
anticipated harassment. 139 The agency identified several reasons for its conclusion that
the requested take would have a negligible impact on the species, including: “no injuries
or mortalities are anticipated to occur”; the “takes that are anticipated are expected to
be limited to short-term Level B behavioral harassment”; few beluga whales are likely to
be affected by the surveying due to their dispersed distribution during the months
surveying will occur; “any behaviors that are interrupted during the survey are expected
to resume once the activity ceases”; and “the area where the survey will take place is
not known to be an important location where beluga whale[s] congregate for feeding,
calving, or nursing.” 140
As was the case in CBD, NMFS could have done a better job in this case of
keeping these two standards more distinct in the final rule, including the use of separate
headings for each topic. But although discussed under the same heading in the final
rule, this Court concludes that the agency kept the two standards sufficiently distinct
and adequately analyzed “small numbers” as a distinct, separate standard from the
negligible impact standard.
138
A 1807.
139
Cf. CBD, 695 F.3d at 907 (negligible impact analysis properly considered the likely effects on
the mammals’ recruitment and survival).
140
A 1807.
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(2) Quantification of Small Numbers.
Plaintiffs also maintain the agency improperly based its “small numbers finding
on a conclusion that take will be smaller than the amount authorized due to mitigation
measures” because the “MMPA requires analysis of the actual level of take
authorized.” 141 But it is clear that in the final rule, the agency determined that 10% of
the population constituted “small numbers” before consideration of any mitigation
measures.
The final rule sets out the 10% figure for beluga whales, as well as
percentages for other species, and states “these percentage estimates represent small
numbers[.]” Only then does it state, “In addition, mitigation measures are expected to
reduce even further these numbers.” 142
Thus, NMFS determined that 10% of the
beluga population represented “small numbers,” without reliance on mitigation
measures.
Plaintiffs also fault NMFS’ small numbers determination for failing to consider the
conservation status of the beluga whales. 143 NMFS responds that the conservation
status was properly considered in its negligible impact analysis. 144 This Court agrees
with NMFS on this issue—to consider the species’ conservation status in the small
numbers analysis might well run afoul of CBD’s directive to maintain sufficiently distinct
analyses of “small numbers” and “negligible impact.”
141
Docket 48 at 27 (emphasis in original).
142
A 1807.
143
Docket 52 at 23-24; Docket 56 at 14.
144
See A 1794 (“The status of the Cook Inlet beluga population (i.e., the fact that it is an
isolated, endangered populations) has been carefully considered in NMFS’ negligible impact
analysis.”).
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More fundamentally, Plaintiffs contend that NMFS’ small numbers analysis is
deficient because the agency “failed to demonstrate, with support from the record, that
10% take of this highly endangered, isolated, declining population or marine mammals
constitutes ‘small numbers.’”145
The final rule at issue in CBD did not quantify or
estimate the number of mammals that would be taken. But the Ninth Circuit held that
quantification was not required under the statute. Rather, it held the key requirement is
that “the ‘small numbers’ determination focuses on the portion of a species or stock
subject to incidental take[.]”146 The Court of Appeals also held that in determining
whether an activity directly affects only a small number of animals, the nature of the
activity must be considered. As the Ninth Circuit explained, the agency’s small numbers
determination in that case, although unquantified, was upheld because the agency “in
making its ‘small numbers’ determination . . . concludes that ‘given the spatial
distribution, habitat requirements, and observed and reported data, the number of
animals coming in contact with the industry activity will be small by an order of
magnitude to the . . . polar bear populations.’” 147
Here, Plaintiffs assert that the agency failed to articulate any rational basis for its
determination that 10% of the beluga whale population constitutes a small number. 148
But NMFS responds that its quantification approach is consistent with the Ninth Circuit’s
145
Docket 48 at 24.
146
695 F.3d at 906.
147
695 F.3d at 907.
148
Docket 48 at 26.
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reasoning in CBD. 149 And it maintains that here, it did not categorically establish 10%
as a small number; rather, it determined, through consideration of the available data,
that 10% was a small number in the specific context of the Cook Inlet beluga whale and
the nature of the proposed activity. 150
Mathematically speaking, 10% represents a relatively limited or small portion of
100%. And the agency presented a rational, albeit sparse, basis for its determination
that 10% of the Cook Inlet beluga whale population constitutes “small numbers” of that
total whale population. It looked at the nature of the activity in determining that 10% of
the beluga whale population constituted small numbers, indicating that it had considered
that the takes “were expected to be limited to short-term Level B harassment.” 151 In
CBD, the Ninth Circuit upheld the agency’s “small numbers” determination even though
the agency had not quantified the number of anticipated takes. Here, where the agency
has quantified the number of authorized takes, its “small numbers” determination that 30
authorized takes by incidental harassment constitute small numbers relative to the
population as a whole is not arbitrary and capricious. 152
149
Docket 52 at 22.
150
Docket 52 at 23.
151
A 1806.
152
See Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 869 (9th Cir. 2003) (agency’s
determination is entitled to “great deference” when evaluating “complex scientific data within the
agency's technical expertise”) (citing Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103
(1983); Chem. Mfrs. Ass'n v. EPA, 919 F.2d 158, 167 (D.C.Cir. 1990)). However, as discussed
more below, the Court has determined that NMFS erred in its density estimates; thus, the small
numbers and negligible impact analyses, which relied on an estimated take of 30 beluga whales
out of a total population of 284 whales, should have analyzed the impact of the action using a
corrected figure that may be well above 30.
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B. Take Estimations.
Plaintiffs assert “NMFS made two fundamental errors in calculating the amount of
‘take’ Apache’s airgun surveys will cause” by using “erroneous density estimates and a
scientifically invalid take threshold.”153
(1) Density Estimations.
Plaintiffs first maintain that NMFS adopted Apache’s density estimates derived
from ten years of Cook Inlet aerial surveys, and that “Apache mistakenly used the
survey’s raw, ‘uncorrected’ numbers – numbers that do not account for whales that are
swimming beneath the surface or are missed through human error.” 154
NMFS responds that Plaintiffs’ argument is flawed for two reasons: (1) Plaintiffs
failed to raise the issue in their comments to NMFS on the IHA application, thereby
waiving it on appeal; and (2) even if the beluga whale densities are incorrect, Apache’s
monitoring efforts will ensure that take is limited to the 30 whales authorized and the
“authorized take of 30 beluga whales is conservative and reasonable.” 155
On the waiver issue, NMFS asserts that the IHA application, which was “publicly
noticed and available, included beluga density calculations that expressly relied upon
the aerial survey data that Plaintiffs argue were not adjusted” and thus, their failure to
comment means the argument is forfeited. 156
However, an argument may be
considered by this Court as long as the agency had an opportunity to consider it during
153
Docket 48 at 28.
154
Docket 48 at 20.
155
Docket 52 at 25.
156
Docket 52 at 26.
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the notice and comment period. 157 “This is true even if the issue was considered sua
sponte by the agency or was raised by someone other than the petitioning party.” 158
Here, MMC’s comments to the agency identified “uncertainty in the estimation of marine
mammal takes,” and added “the Commission is not sure how the [non-river mouth]
density estimates were derived and was not able to replicate them.” 159 In the final rule,
NMFS responded that the “abundance estimate for belugas was derived from the
highest daily mean count acquired during the annual surveys . . . [but t]he applicant
used the average number of belugas for the non-river mouths as a conservative
estimate.”160 It added that “in response to the Commission’s recommendation, Apache
has removed the Chickaloon Bay and Susitna Delta highest daily mean counts and recalculated the maximum number of belugas observed, which results in higher
abundance estimates for non-river mouths.”161 Thus, NMFS had ample opportunity to
correct any error in its density estimates in light of the MMC’s comments, and did in fact
make some slight adjustments in the final rule based on MMC’s comments on this
issue. Accordingly, the Court finds this issue has not been waived.
Plaintiffs argue that the numbers from NMFS’ aerial surveys must be corrected to
“account for missed whales” because the “distinct environment of Cook Inlet renders
157
Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d 1009, 1024 (9th Cir. 2007) (“In
general, we will not invoke the waiver rule in our review of a notice-and-comment proceeding if
an agency has had an opportunity to consider the issue.” (internal citation omitted)).
158
Id. at 1024 (internal citation omitted).
159
A 1793; B 13311.
160
A 1793.
161
Id.
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beluga whales basically invisible when they are underwater” and “juveniles with their
gray coats are ‘harder to detect.’”162
Plaintiffs emphasize that the survey’s own
researchers have made these corrections each year when determining the abundance
of the population, but NMFS did not make those corrections here.
They add,
“[i]ncredibly, NMFS did not include a single one of the researchers’ papers correcting
their survey data . . . in the administrative record for the IHA.” 163
NMFS maintains that “Apache’s take estimates are conservative overall and
supported by the record.” Specifically, NMFS asserts that (1) the “take estimates do not
take into account the full effect of the required protective measures;” (2) “the estimates
assume that belugas appear in mid-Inlet with the same density as in the upper Inlet,
when in fact far fewer whales are present in mid-Inlet during survey operations;” (3)
“Apache overestimated surveying days near river mouths;” and (4) the “take estimates .
. . use Apache’s largest airgun array, when nearshore areas will be surveyed with a
smaller airgun.” NMFS also notes that Apache used the maximum whales counted to
calculate densities near river mouths, where most takes are expected to occur such that
application of correction factors is unnecessary. 164
NMFS has conducted aerial surveys of the beluga whales in Cook Inlet since
1994. 165
For each of those years, NMFS has adjusted the counts from the aerial
surveys substantially upward to determine the population abundance of beluga whales:
162
Docket 48 at 29.
163
Docket 48 at 30.
164
Docket 52 at 27.
165
Doc. A150 at 2 (2007); BiOp 176.
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“The annual calculated abundance will include corrections for whales missed within the
viewing range of observers, whales missed because they were beneath the surface.”166
The adjustments each year are significant. For example, in 2005, a total of 192 beluga
whales were counted in the aerial survey. 167 The adjusted population estimate for that
year after correction was 278. In 2006, 153 beluga whales were counted; the adjusted
population estimate for that year was 302. 168
NMFS has fully explained the
methodology that it has consistently used to adjust the aerial survey counts to
determine population abundance in a pair of papers prepared in 2000. 169 One paper
notes that “wide ranges in counts from one aerial pass to the next" occur, “even when
other variables (observer, visibility, etc.) have not changed.”170
It explains that
submerged beluga whales are invisible to observers “[b]ecause the waters in upper
Cook Inlet are extremely turbid and essentially opaque,” and added that even when
beluga whales are at or above the surface, “the gray color of young belugas is harder to
detect” than the white bodies of the adult whales. 171 The paper sets out a mathematical
model to correct the survey counts that “produce[s] abundance estimates with relatively
166
Doc. A150 at 9 (2007).
167
Doc. A150 (“Aerial Surveys of Belugas in Cook Inlet, Alaska, June 2007” (Rugh, et al.)).
168
Id.
169
B 1347; B 1349 (referencing Hobbs et al. 2000a and 2000b); B 10719 (“Abundance of
Belugas, Delphinapterus Ieucas, in Cook Inlet, Alaska, 1994-2000” (Hobbs et al.) (“Hobbs
2000a”).]
170
B 10725 (Hobbs 2000a).
171
B 10719 (Hobbs 2000a).
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high accuracy,” 172 which NMFS has used each year thereafter to determine population
abundance estimates for the Cook Inlet beluga whale.
In the final rule, NMFS determined the “population abundance” at 284 whales,
using an abundance estimate that had been corrected through an upward adjustment
the number of whales from the aerial survey to determine the estimated population. 173
In responding to MMC’s comment “that NMFS require the applicant to describe and
provide the rationale for the method used to determine the density estimate for beluga
whales away from river mouths,” the final rule stated that “The abundance estimate for
belugas was derived from the highest daily mean count acquired during the annual
surveys.” 174 But it is undisputed that NMFS had simply adopted, without explanation,
the uncorrected survey count that Apache had used in its application to compute the
density estimates for the survey area. 175 Certainly an individual reading the final rule
would expect that the same methodology that was used to compute the total population
abundance would be used to compute the number of whales that would be subject to
incidental take by harassment, and particularly when there is no indication to the
contrary. But even with a direct inquiry from MMC as to the rationale for the survey
density estimates, the final rule is silent as to why uncorrected visual survey figures
172
B 10726 (Hobbs 2000a).
173
A 1806 (table 5 uses population abundance figure of 284 whales); BiOp 176-177 (population
estimated at 284 whales using abundance estimates derived from corrected figures from aerial
surveys (citing Hobbs et al., “Estimated abundance of belugas in Cook Inlet, Alaska, from aerial
surveys conducted in June 2011”));
174
A 1793.
175
A 1368-69, 1804 (density estimates derived from raw figures from aerial surveys (citing Rugh
et al. 2000-2007, Sheldon et al. 2008-2010, “Aerial surveys of belugas in Cook Inlet, Alaska”));
also see Docket 48 at 21 n.9 (citations that show aerial surveys contained uncorrected data).
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were used for the project’s density estimate, which were then applied to the corrected
population abundance figure in small numbers analysis. Applying the uncorrected
survey data to the corrected total population abundance resulted in an underestimation
of the percentage of the beluga whale population that would be encountered in the
survey area. 176
NMFS asserts that any inaccuracies in the density estimates are immaterial
because the agency has authorized a take of no more than 30 beluga whales and has
required “‘real-time’ monitoring to insure that this authorized take amount is not
exceeded.”177 But NMFS has not shown that Apache’s monitoring will detect all beluga
whales in the safety radii. In particular, NMFS did not require any nighttime observers,
and the required nighttime acoustic monitoring efforts only detect beluga whales up to a
maximum distance of 3 km, while the 160 dB threshold distance is over three times
further at 9.5 km. 178 Moreover, the amount of correction has been significant. In most
years, the aerial survey count has been approximately one-half or two-thirds of the total
population abundance estimate after correction. 179
176
API asserts that “it is not true that the aerial researchers always ‘correct’ the number of
whales that were visually counted.” Docket 53 at 39. But the source quoted for this proposition
explains that uncorrected figures only yield minimum density estimates and do not represent the
abundance of whales in an area. “In some cases, those were the sums of maximum visual
counts and therefore represent minimum estimates. In other cases, estimates of total
abundance were made by multiplying the counts by ad hoc correction factors to account for
whales that were presumed to have been missed.” B 10719 (Hobbs 2000a). Moreover, this
does not address the problem that the uncorrected figures for the survey area were then applied
to the higher, corrected figures used for the total population in the small numbers analysis.
177
Docket 52 at 26.
178
Docket 72 at 11, 71-72; Docket 55 at 4; A 1390; BiOp 167.
179
Doc A 154 at 17.
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Significant mathematical errors can render an agency decision arbitrary and
capricious. In Alabama Power Co. v. F.C.C., the D.C. Circuit “judge[d] the validity of the
order by examining whether the [agency] in fact calculated that which it sought to
calculate[.]” 180 The Court of Appeals determined that the agency had made several
errors, including applying a “wholly irrelevant percentage figure” to a sum, erroneously
excluding certain items in calculating net pole costs, and using a fraction that bore “no
rational relationship to the determination it purport[ed] to make.” 181
Finding that the
agency’s “somewhat casual calculations exhibit at several points the sort of ‘clear
error[s] of judgment,’ . . . and absence of ‘rational connection[s] between the facts found
and the choice[s] made,’” that court held that the order was arbitrary and capricious. 182
Here, NMFS’ take calculations are clearly erroneous because they inexplicably
mix corrected population abundance figures with uncorrected survey density estimates,
thereby failing to adequately calculate that which the agency was actually trying to
calculate—the number and percentage of the beluga whale population that are
estimated to be exposed to the 160 dB take threshold within the survey areas. 183 The
180
Alabama Power Co. v. F.C.C., 773 F.2d 362, 367 (D.C. Cir. 1985).
181
773 F.2d 362, 368-370 (D.C. Cir. 1985).
182
Alabama Power Co. v. F.C.C., 773 F.2d 362, 372 (D.C. Cir. 1985) (quoting Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971); Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962)). Cf. Salt River Project Agr. Imp. and Power Dist. v.
U.S., 762 F.2d 1053, 1060 (D.C. Cir. 1985) (Even where an agency’s decision rests on
erroneous findings, the court must reverse “only when there is a significant chance that but for
the errors the agency might have reached a different result.”).
183
Although NMFS’ density estimates appear to include other mathematical errors, these issues
were not expressly raised by Plaintiffs in this appeal, and thus are not directly before this court.
But this Court will observe that NMFS adopted Apache’s calculations for its density estimates,
and Apache had relied on the numbers provided in the modeling study prepared by Jasco
Applied Sciences, and attached as Appendix A to its application. A 1363-1368; A 1419-1420.
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fact that NMFS maintains that other aspects of the density estimates may cancel out
this inaccuracy does not render the agency action less erroneous, as the agency has
not persuasively demonstrated, nor has it asserted, that it would have authorized the
IHA with a take estimate that would have been significantly higher had corrected density
estimates been used. As such, the agency’s incidental take calculations are arbitrary
and capricious. 184
(2) Take Threshold.
Plaintiffs also challenge NMFS’ use of a take threshold of 160 decibels, asserting
that the threshold is “no longer scientifically valid.” 185 Plaintiffs assert that NMFS relied
on two sets of studies from the mid-1980s, but “the copious size of the scientific
literature that has emerged over the last twenty years . . . render that literature out of
In calculating its number of takes, Apache divided the Jasco figures by two on the assumption
that operations would occur over 12 hours per day rather than a full 24-hour period. A 1369.
But Jasco’s proposed survey area was based off of the number of tracklines surveyed, the
length of each trackline, and the distance between tracklines, not the amount of time it would
take to survey a particular area. A 1415. Since Jasco’s calculations were based on distance
traveled each day, and not on the amount of time spent surveying, this additional 50% reduction
appears unwarranted. MMC noted this issue to NMFS in its comments, but the agency rejected
that concern. See A 1793-94. Also, Apache’s estimated tracklines surveyed each day and
length of trackline appear to differ considerably from the ones used in Jasco’s modeling, but
Apache used the same figures from Jasco’s modeling method to estimate its daily acoustic
footprint and calculate take. Compare A 1344 (noting tracklines would be “approximately 12.9
km” long and that each vessel can acquire a source line in approximately an hour, leading to
approximately 20-24 tracklines surveyed each day); A 1363 (noting anticipated survey line
length is 16.1 km and approximately 12-14 survey lines will be completed each day). Using
these figures, Jasco assumed Apache would survey approximately 16.1 km x 13 km (209.30
km) per day, while Apache assumed it would survey considerably more—12.9 km x 22 km
(283.80 km) per day. Then Apache compounded this error by only using one-half of Jasco’s
daily surveying amount in its density calculation. These apparent mathematical errors in
Apache’s take estimations were subsequently adopted by NMFS. See B 13311; A 1793-94.
184
Alabama Power, 773 F.2d at 368-370, 372.
185
Docket 48 at 30-31.
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date” as “[m]any of these new studies document airgun impacts at noise levels well
below 160 decibels.”186 Plaintiffs state that “[f]ive leading bioacousticians . . . sent
NMFS a letter specifically criticizing the 160 decibel threshold as ‘overly simplified,
scientifically outdated, and artificially rigid’ and stating that the threshold has been
‘repeatedly demonstrated to be incorrect.’” 187
Plaintiffs assert that the experts
recommended a “risk curve centered at 140 decibels,” but NMFS ignored these experts
and instead used the 160 decibel threshold. 188
Plaintiffs refer to Dr. Manolo Castellote, a bioacoustician at NMFS, who
commented that “behavioral changes (such as displacement) might well occur at much
greater distances than the 160 dB radii.” 189 Plaintiffs also contend that NMFS’ reliance
on a 2007 synthesis paper (Southall et al. 2007) is misplaced because NMFS
mischaracterizes the findings of that study. Plaintiffs maintain that reliance on the 160
dB threshold is “significant” because “an impact threshold between 140 and 160
decibels means that marine mammals could be affected well beyond 10 kilometers from
the source . . . [which is] much farther than the furthest distances in Apache’s present
impact zone.”190 Plaintiffs also reject NMFS’ assertion that the 160 dB threshold is
“species and context-specific,” noting it “has been applied to every airgun survey the
186
Docket 48 at 31.
187
Docket 48 at 31 (quoting A 744).
188
Docket 48 at 31-32 (emphasis omitted).
189
Docket 48 at 32 (quoting B 13338). The full sentence there by Dr. Castellote reads: “I don’t
think we can do much about it since 160 dB & 180 dB are the legal thresholds, but behavioral
changes (such as displacement) might occur at much greater distances than the 160 dB radii.”
190
Docket 48 at 33.
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agency has authorized over the last decade.” 191 Thus, Plaintiffs assert that NMFS’
reliance on the 160 dB threshold is arbitrary and capricious as the agency failed to
justify why it adhered to an outdated inaccurate standard and ignored the concerns of
its own expert and other leading scientists in the field.
NMFS contends that the 160 dB level threshold is reasonable, supported by the
record, and entitled to deference. 192 NMFS claims it appropriately considered the issue
and “specifically explained that the 160 dB threshold was appropriate in this case.”193
NMFS asserts its reliance on the 2007 Southall study was warranted, as that study
“comprehensively reviews and synthesizes the studies and data from over a more than
20-year period regarding the levels at which marine mammals are impacted by
manmade sound.”194 NMFS states that the “degree to which marine mammal behavior
is affected by sound is highly species- and context-specific” and since beluga whales
are mid-frequency cetaceans, the 160 dB threshold is appropriate, 195 and adds
“information from prior seismic surveys show that many marine mammals do not react
to seismic sound at audible levels[.]” NMFS also notes that the Marine Mammal
Commission accepted its use of the 160 dB threshold. 196
191
Docket 56 at 17.
192
Docket 52 at 28.
193
Docket 52 at 29. The BiOp noted that “[t]here is new research to suggest that the 160 dB
behavioral harassment and 180 dB injury levels currently accepted by NMFS might be
significantly below the noise levels that actually harass or injure beluga whales.” BiOp 209.
194
Docket 52 at 29 (citing B 2959-3075).
195
Docket 52 at 29 (emphasis omitted).
196
Docket 52 at 30.
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NMFS disputes the scientific evidence offered by Plaintiffs to justify a lower
threshold. The agency notes that one study, Miller et al., analyzed beluga whales living
in the Beaufort Sea, which is a “less industrialized and sparsely populated area that is
not subject to regular vessel traffic” so those whales “are not as experienced with the
types and variety of sound sources as the belugas are in Cook Inlet.” 197 NMFS also
contests Plaintiffs’ reliance on the bioacousticians’ letter as it was filed late, applies to
exploration in the Arctic Ocean, and does not, in the agency’s view, support a lower
take threshold. 198 NMFS further asserts its use of the 160 dB threshold was appropriate
because it did not merely rely on past practice, but cited “species, population, and
context-specific evidence indicating that use of [that] threshold was conservative and
reasonable for estimating Level B take for Cook Inlet marine mammal populations.”199
NMFS disputes Dr. Castellote’s findings because he did not cite supporting literature,
and even if his findings are contrary to those of the agency, “that is not dispositive.” 200
API adds that “[a] recent exhaustive review of all available, relevant scientific
information . . . led by NMFS itself—relied on data relating specifically to beluga whales
in concluding that the criteria for Level A takes should in fact be 230 dB[.]”201
197
Docket 52 at 31.
198
Docket 52 at 32-33. But see A 745 (bioacousticians’ letter) (“A risk function with a 50%
midpoint at 140 dB (RMS) that accounts, even qualitatively, for contextual issues likely affecting
response probability, come much closer to reflecting the existing data for marine
mammals . . .”).
199
Docket 52 at 33 (citing A1803, 1806).
200
Docket 52 at 34.
201
Docket 53 at 42 (citing A 157 at 442-44).
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Plaintiffs recognize that while “an agency may use discretion in assessing the
scientific evidence and in relying on its own experts, ‘courts must independently review
the record in order to satisfy themselves that the agency has made a reasoned decision
based on its evaluation of the evidence.’” 202 This Court has independently reviewed the
record on this topic and is satisfied that NMFS made a reasoned decision to use the
160 dB sound threshold level for Cook Inlet Level B take based on the evidence before
the agency. 203 Accordingly, the agency is entitled to deference on this finding.
C. Least Practicable Impact.
An IHA must include “permissible methods of taking by harassment pursuant to
such activity, and other means of effecting the least practicable impact on such species
or stock and its habitat[.]”204 While the MMPA sets out the factors that should be
considered when determining the “least practicable impact” in the context of a military
readiness activity, it does not elaborate on that standard in other contexts. 205 In Natural
Resources Defense Council v. Evans, the Northern District of California held the
purpose of this statutory requirement is “to assure that the take allowed under the
202
Docket 48 at 28 (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1160 (9th
Cir. 2006)).
203
See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010); Ariz. Cattle
Growers’ Ass’n v. U.S. Fish and Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1236 (9th Cir.
2001) (“Deference is particularly important ‘when the agency is making predictions, within its
area of special expertise, at the frontiers of science.”) (quoting Central Ariz. Water Conservation
Dist. v. EPA, 990 F.2d 1531, 1539-40 (9th Cir. 1993)).
204
16 U.S.C. § 1371(a)(5)(D)(ii)(I)-(III).
205
16 U.S.C. § 1371(a)(5)(D)(vi).
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permit is, in fact, small, and also has only a negligible impact on affected species.”206
The district court added that while the agency “has some discretion to choose among
possible mitigation measures, it cannot exercise that discretion to vitiate this stringent
standard.” 207
Plaintiffs assert that NMFS improperly ruled out “important time-area restrictions”
and failed to properly consider the “specific habitat that might be restricted during the
project’s first year.” 208
They claim that NMFS improperly relied on Apache’s
expectations of when and where it would survey and failed to include restrictions that
would require “Apache to avoid offshore surveys during the late fall and winter months
when, NMFS acknowledges, belugas concentrate in deeper waters of the mid-Inlet.” 209
To this, NMFS responds that the whales are never “concentrated” in the deep waters of
the inlet. 210 Rather, as the final rule indicates, the whales “tend to disperse offshore and
move to mid-Inlet in the winter.” 211 This finding is consistent with the record before the
Court. 212 In light of this finding, the fact that the IHA did not specify when Apache could
conduct offshore seismic activities was not arbitrary and capricious.
206
Nat. Resources Def. Council, Inc. v. Evans, 279 F. Supp. 2d 1129, 1159 (N.D. Cal. 2003)
(citing H. Rpt. No. 228, 97th Cong., 1st Sess. 18–20 (1981)).
207
NRDC v. Evans, 279 F. Supp. 2d at 1159.
208
Docket 48 at 34; Docket 66-1 at 1.
209
Docket 66-1 at 1 (internal citation omitted).
210
Docket 52 at 35.
211
A 1796.
212
See supra at 11 regarding the take estimates for river mouths versus non-river mouths.
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Plaintiffs next contend that the one time-area closure that NMFS prescribed near
the Beluga River was inadequate because it only applied from mid-April to mid-October.
Plaintiffs maintain evidence in the record indicated that area was important for foraging
beginning in mid-February. 213
NMFS maintains that the Beluga River area is not
included within the area set for the project’s first year. 214 The final rule states that Area
1 consists of an area “along the west coast of Cook Inlet from the McArthur River up
and to the south of the Beluga River.” 215 Although the cited reference is not a model of
clarity, it does appear that NMFS is correct and that the area designated for surveying in
the first season of operations does not reach to the Beluga River. 216
Plaintiffs also assert that additional time-area restrictions should have been
imposed in areas in the upper Cook Inlet. NMFS responds that it did consider additional
time-area restrictions, but concluded in the final rule that they were unnecessary as “the
timing and location of the seismic survey, as proposed, will avoid areas and seasons
that overlap with important beluga whale behavioral patterns.” Further, it concluded that
the upper inlet areas where the whales are regularly sighted “are well outside of the
area where Apache will be conducting seismic surveying.” 217 This Court finds that
Plaintiffs have not demonstrated that Apache’s planned year one operations fall within
areas where whales are regularly sighted in the upper Cook Inlet.
213
Docket 48 at 36; see B 16603.
214
Docket 52 at 36 (citing Doc A 69 at A 1434, Fig. 2).
215
A 1793.
216
See Figure 2 at BiOp 153.
217
A 1796.
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If an agency’s approval of an incidental take was based on certain key
assumptions of when and where the activity was scheduled to occur, and those times
and locations were not included within the agency’s IHA, such an oversight might
constitute an agency action that was arbitrary and capricious. But on the record before
this Court, Plaintiffs have not demonstrated that that this occurred with respect to
Apache’s IHA. Rather, the record reflects that the agency did consider additional timearea restrictions and exercised its expertise to determine that they were not
necessary. 218
D. Effects on Subsistence Use.
Plaintiffs next assert that NMFS failed in its statutory duty to ensure that the
proposed incidental take will not have an “unmitigable adverse impact on the availability
of such species or stock for taking for subsistence uses[.]”219
Plaintiffs claim that
“NMFS failed to consider the current population levels, trends, or the fact that it is likely
that subsistence use of whales will be prohibited for many years into the future[.]” 220
They add that NMFS’ statement that “the taking will not ‘reduce the availability of the
species to a level insufficient for a harvest to meet subsistence needs’ is simply
incorrect in light of the regulatory background” of subsistence hunting in the area.
Plaintiffs contend that as the beluga population numbers are already insufficient to meet
subsistence needs, “NMFS’ failure to properly assess the future status of [the]
218
See A at 1796.
219
Docket 48 at 37 (citing 16 U.S.C. § 1371(a)(5)(D)(i)(II)).
220
Docket 48 at 38.
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subsistence harvest of the Cook Inlet beluga whale was a serious error that requires
reversal.” 221
The applicable regulation defines “unmitigable adverse impact” as an impact
“likely to reduce the availability of the species” to levels insufficient for subsistence
needs by “(i) Causing the marine mammals to abandon or avoid hunting areas; (ii)
Directly displacing subsistence users; or (iii) Placing physical barriers between the
marine mammals and the subsistence hunters[.]” 222 The regulation also provides that
the impact is one that “cannot be sufficiently mitigated by other measures to increase
the availability of marine mammals to allow subsistence needs to be met.” 223
NMFS asserts that Plaintiffs never argued at the agency level that the agency
failed “to consider [beluga] population levels, trends, or the fact that it is likely that
subsistence use of whales will be prohibited for many years” so these arguments are
waived. 224 And even if this argument is reviewed, NMFS asserts it did consider each of
these points. 225 It maintains its finding that there would be no unmitigable adverse
impact on the subsistence hunt is appropriate and consistent with its regulations
because “the surveying would not cause abandonment or avoidance of hunting areas,
and that belugas would return to areas once surveying was done,” “the survey would
not directly displace subsistence uses[, and it] would not place barriers between animals
221
Docket 48 at 38.
222
50 C.F.R. § 216.103.
223
Id.
224
Docket 52 at 37.
225
Docket 52 at 37.
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and hunters.” 226
Additionally, NMFS alleges Apache’s surveying would not reduce
beluga numbers for a future subsistence harvest because no injuries or mortalities are
authorized and any effects on marine mammals would be “short-term, site-specific, and
limited to inconsequential changes in behavior and mild stress responses.” 227
The State of Alaska adds that NMFS did consider the subsistence whale hunt
and “acknowledged the traditional importance of beluga whale subsistence harvest both
for nutritional and economic contributions as well as its cultural importance.” 228 The
State also notes that “Apache Alaska itself met with many Alaska Native communities to
discuss the potential impact of the proposed activity on subsistence needs.” 229
Plaintiffs acknowledge that “[i]t is . . . unlikely that any subsistence harvest of
belugas will be allowed through 2017.”230 In these circumstances, even if considered
on its merits, Plaintiffs have not demonstrated that NMFS’ consideration of this statutory
factor was arbitrary and capricious.
IV.
Claim 2: Violation of the Endangered Species Act.
Congress enacted the ESA “to provide a means whereby the ecosystems upon
which endangered species and threatened species depend may be conserved, to
provide a program for the conservation of such endangered species and threatened
species, and to take such steps as may be appropriate” to meet the United States’
226
Docket 52 at 38.
227
Docket 52 at 38 (citing A 1807-08).
228
Docket 51 at 29 (citing B 897).
229
Docket 51 at 29 (citing B 898).
230
Docket 48 at 38.
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obligations under certain international agreements to conserve species facing
extinction. 231 NMFS, as part of the Department of Commerce, shares responsibility for
administering the act with the Department of the Interior’s U.S. Fish and Wildlife Service
(“FWS”). NMFS bears responsibility for most marine species, including the Cook Inlet
beluga whale, while the FWS is responsible for most terrestrial species. 232 Under the
ESA, if an agency authorizing a major federal action determines it “may affect listed
[endangered] species or critical habitat,” it must pursue formal consultation with NMFS
(or FWS, as applicable). 233
After formal consultation, NMFS prepares a biological
opinion that sets forth its expert opinion on whether the proposed action is (1) “likely to
jeopardize the continued existence of a listed species” or (2) “result in the destruction or
adverse modification of critical habitat.” 234 The statute requires that NMFS “shall use
the best scientific and commercial data available” in preparing the biological opinion. 235
In this case, the NMFS Office of Protected Resources, Permits, and
Conservation Division, in conjunction with the U.S. Army Corps of Engineers, engaged
in formal consultation with NMFS Alaska Region. 236
NMFS Alaska Region first
prepared the BiOp for this IHA in February 2012, which it later revised and reissued in
231
16 U.S.C. § 1531.
232
Westlands Water Dist. v. U.S. Dept. of Int., 376 F.3d 853, 873 (9th Cir. 2004).
233
50 C.F.R. §§ 402.14(a), (g).
234
50 C.F.R. § 402.14; 16 U.S.C. § 1536(a)(2).
235
16 U.S.C. § 1536(a)(2).
236
BiOp 142. The Court does not distinguish between the two NMFS offices elsewhere in this
decision, as the distinction is largely procedural and has no apparent bearing on the merits of
this case.
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May 2012. The BiOp concluded “[a]fter reviewing the current status of beluga whales . .
. the environmental baseline, the effects of the proposed action, and the cumulative
effects, . . . that the implementation of the proposed action, as described in this opinion,
is not likely to jeopardize the continued existence of the Cook Inlet beluga whale . . .
populations, nor to destroy or adversely modify Cook Inlet beluga whale critical
habitat.” 237
The BiOp is effective for the full three-year project period unless
consultation is reinitiated. 238 The Incidental Take Statement (“ITS”) at the end of the
BiOp permitted the “non-lethal incidental take of no more than 30 Cook Inlet beluga
whales . . . per year for three operational years.” 239
Plaintiffs claim NMFS violated the ESA by issuing a BiOp that contained five
errors: (1) the BiOp failed to adequately evaluate the effects of the proposed action on
the recovery of the Cook Inlet beluga whale; (2) the BiOp failed to analyze whether the
Cook Inlet beluga whale is already in jeopardy; (3) the BiOp failed to articulate a rational
connection between the facts found and its conclusion that the Cook Inlet beluga
whale’s survival or reproductive capacity will not be affected; (4) the BiOp did not use
the best scientific data both in adopting a 160 dB threshold and in failing to consider a
study on cod; and (5) the BiOp authorized three times more take than it analyzed. 240
237
BiOp 250.
238
BiOp 143. In this case, consultation was reinitiated in early 2013. See Docket 73-3.
239
BiOp 253.
240
Docket 48 at 40-47 (Pl’s Mot.).
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A. Effects on Recovery of the Species.
By regulation, the statutory phrase “to jeopardize the continued existence of a
species” means “to engage in an action that reasonably would be expected, directly or
indirectly, to reduce appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or distribution of that
species.”241
Plaintiffs allege that the “BiOp fails to properly evaluate the recovery prospects of
the Cook Inlet beluga whale and how this action affects those prospects.” Plaintiffs
posit that “[r]ecovery is a separate concept from survival and requires a separate
analysis,” but the BiOp “contains no detailed analysis of how this action will impact
recovery” and “only focuses on the effects of the project on survival and
reproduction.”242 Plaintiffs claim that “NMFS did not discuss how the Cook Inlet beluga
whale might be recovered, what the rate of recovery might be, when recovery might
occur, or how this action would affect the whale’s recovery prospects.” 243 Plaintiffs also
challenge the BiOp because it omits any “analysis of ‘roughly at what point’ recovery will
be at risk,” and argue this omission is particularly significant because the beluga whale
population has already “‘collapsed’ and is in the ‘small dynamics’ phase of the extinction
process.” 244
241
50 C.F.R. § 402.02 (emphasis added).
242
Docket 48 at 40-41.
243
Docket 56 at 24.
244
Docket 48 at 41 (citing BiOp 238-39). On this point, in National Wildlife Federation v. National
Marine Fisheries Service, the Ninth Circuit did state “[i]t is only logical to require that the agency
know roughly at what point survival and recovery will be placed at risk before it may conclude
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NMFS maintains that Ninth Circuit precedent makes “clear that a ‘separate
analysis’ of recovery is not required.” 245 Rather, it notes that the Ninth Circuit has
explicitly recognized that survival and recovery are “intertwined concepts” to be
considered in the jeopardy analysis. 246 NMFS also asserts that it did not ignore or fail to
analyze the impacts of recovery because it directly incorporated information on the
viability and recovery needs of the beluga whale population from the 2008 Conservation
Plan into the BiOp. 247 And it maintains that the BiOp “identified factors that have the
potential to impact recovery,” and “found that none of these risks are increased by
survey operations.”248 NMFS contends “a significant component of [the BiOp’s] analysis
included a focus on the population’s growth rate . . . which is critical for a species’
recovery.” 249
And the BiOp found Apache’s seismic surveying was not likely to
influence “the fitness of the individual animals” and thus concluded it was “unlikely that
non-injurious takes . . . would elicit consequences to the survival or reproductive
that no harm will result from ‘significant’ impairments to habitat” caused by the agency action.
Natl. Wildlife Fedn. v. NMFS, 524 F.3d 917, 936 (9th Cir. 2008). At issue in that case was the
management of the Columbia River System. There, the BiOp “explicitly found that the proposed
[dam] operations would have significant negative impacts on each affected species' critical
habitat[.]” Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 934-35. It was in light of that finding that
the Ninth Circuit found that a rough analysis of the point of recovery was warranted. In contrast,
no such finding of significant negative impact was made in the BiOp here with respect to
Apache’s proposed operation; hence an analysis of the point of recovery is not required.
245
Docket 52 at 43.
246
Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 932.
247
Docket 52 at 43-44.
248
Docket 52 at 44 (citing B 322, 342, 350-53, 363).
249
Docket 52 at 44-45 (citing B 317; B 10075 at 9).
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capacity of the Cook Inlet beluga whale.” 250 The State points to applicable Ninth Circuit
precedent that requires the BiOp’s recovery analysis to “simply provide[] some
reasonable assurance that the agency action in question will not appreciably reduce the
odds of success for future recovery planning, by tipping a listed species too far into
danger.” 251
This Court finds that Plaintiffs have not demonstrated that the BiOp failed to
adequately consider the effects of the IHA’s issuance on the recovery of the Cook Inlet
beluga whale and whether the proposed permit issuance would appreciably reduce the
species’ chances of recovery. 252 Specifically, the BiOp states:
A significant issue with regard to the seismic program’s effect on
beluga whale concerns changes in their behavior (which may not
rise to the level of take) when confronted with acoustic disturbance
during the surveys. . . . High levels of predation risk (or human
disturbance) may indirectly effect survival and reproduction by
causing prey (in this case, beluga whales) to divert a large
proportion of time and energy away from resource acquisition, so
that body condition deteriorates and survival and reproductive
success are reduced. We considered this effect in our evaluation.
Such a theory is consistent with the lack of recovery by this
population despite the fact that hunting has not been a significant
factor since 1999. . . .Since the survey areas are not primary
feeding areas, any diminished use of these areas is not likely to
result in significant effects to individual fitness. 253
Another discussion regarding species recovery in the BiOp is as follows:
250
Docket 52 at 45 (citing B 387)(emphasis omitted).
251
Docket 51 at 33 (quoting Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 936).
252
Rock Creek Alliance v. U.S. Fish and Wildlife Serv., 663 F.3d 439, 443 (9th Cir. 2011); cf.
Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 933 (While an agency will not be overturned for failing
to address recovery impacts in “separate, distinct sections of the biological opinion[,]” a fair
reading of the opinion must indicate that the agency “adequately considered the impact” the
proposed action would have on the protected species’ recovery.).
253
BiOp 244.
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The baseline condition experienced by the Cook Inlet beluga whale
DPS is characterized by its very low abundance, no observable
recovery within the population . . ., and a high (26%) probability of
extinction within the next 100 years. . . . Although NMFS believes
past excessive harvest removals are largely responsible for the
decline of this DPS, we are not able to identify the present cause(s)
for the lack of recovery. While coastal development in the upper
inlet and oil and gas development in the mid inlet have been
extensive, and are important aspects of the baseline condition, we
have no evidence such work has had any significant detrimental
impact to individual whales, nor to this population. 254
The BiOp adequately evaluates the effects of the proposed agency action on the
recovery of Cook Inlet beluga whales, and rationally concludes, based on the scope and
location of the project, that it would not appreciably reduce the odds of success for the
species’ future recovery. 255
B. Analyzing Whether the Species Is in Jeopardy.
Plaintiffs contend that “NMFS also erred by failing to analyze whether the species
is already at such a risk of extinction that it is already in jeopardy.” Plaintiffs maintain
that if the beluga whale population is already in jeopardy, any “additional action that
‘causes some deterioration in the species’ pre-action condition’ is illegal.” 256
They
maintain that “NMFS recognized that the whale is extremely endangered and at high
risk of extinction, yet it failed to take the essential next step to determine whether it is
254
BiOp 247.
255
However, the fact that the BiOp was premised upon inaccurate take estimates may well call
into question the validity of its analysis and conclusions. See discussion supra at 34-41.
256
Docket 48 at 42.
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already in jeopardy.” 257
Maintaining that this “in jeopardy” determination is critical,
Plaintiffs assert the failure to undertake it is arbitrary and capricious. 258
NMFS asserts that “Plaintiffs’ arguments fundamentally misconstrue the ESA”
and that statute “does not require NMFS to determine whether a species is ‘in jeopardy’”
at its baseline level. 259
In National Wildlife Federation v. National Marine Fisheries Service, the Ninth
Circuit emphasized that NMFS may not “conduct the bulk of its jeopardy analysis in a
vacuum[,]” but rather must “consider the proposed . . . operations in their actual
context[.]”260 However, the Ninth Circuit also held this consideration of context does not
require the agency to consider the proposed action as if that action included “all
independent or baseline harms to listed species.” 261 Because the verb “to jeopardize . .
. implies causation, and thus some new risk of harm[,]” the agency need only assess the
risk of new jeopardy posed by the proposed action. 262 Thus, while NMFS was required
in the BiOp in this case to consider the effects of Apache’s surveying “within the context
of other existing human activities that impact” the beluga whale, 263 it was not required to
257
Docket 56 at 25.
258
Docket 48 at 42.
259
Docket 52 at 40-1 (citing Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 930).
260
Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 929-930.
261
Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 930.
262
Id.
263
Id. (citation omitted).
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specifically determine whether the beluga whale, at that baseline, was already in
jeopardy.
Here, the BiOp acknowledges that “the Cook Inlet beluga DPS exists at a highly
precarious state” and explains, “[o]ur best population model places the risk of extinction
at 26 percent within the next 100 years.” 264 The BiOp contains a discussion entitled
“Population Viability Analysis and Extinction Risk Assessment.” 265
And the BiOp
considers several distinct baseline factors affecting the beluga whale, including “coastal
development; ship strikes; noise pollution; water pollution; prey reduction; direct
mortalities; research; and environmental change.” 266 It concludes Apache’s seismic
surveying would, “at most,” result in “a temporary, short-term (matter of days)
displacement from habitat to a small number of belugas” and that the seismic program
is “unlikely to have significant impacts on the whales’ essential life functions.” 267 This
Court finds that the BiOp provides an adequate analysis to support its conclusion that
the issuance of the IHA to Apache, when added to the existing baseline, will not further
jeopardize the continued existence of the Cook Inlet beluga whale.
C. Rational Connection Between Facts Found and Conclusion Reached.
Plaintiffs next assert that the BiOp “appears to assume that Apache’s surveys will
not actually impact the beluga whale population in any serious way[.]”
Plaintiffs
maintain there “is a tension, if not an outright conflict, between NMFS’ conclusion that
264
BiOp 238.
265
BiOp 177-178.
266
BiOp 189-190 (full discussion at 190-207).
267
BiOp 218, 247.
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almost one-third of an endangered population will be harassed in a way that will
significantly disrupt behaviors like feeding, breeding, or sheltering and its conclusion
that the activity will have no consequences on the survival and reproductive capacity of
the species.”268 Plaintiffs claim this incongruity between the facts presented and the
BiOp’s conclusion warrants reversal.
NMFS argues Plaintiffs misunderstand the BiOp and the associated ITS.
It
asserts that the agency did not find that significant disruption to behavior patterns would
occur to any beluga whales. 269
Contrary to Plaintiffs’ assertions, the ESA itself does not define harassment. 270
Rather, the FWS has promulgated a regulation that defines the term as “an intentional
or negligent act or omission which creates the likelihood of injury to wildlife by annoying
it to such an extent as to significantly disrupt normal behavioral patterns which include,
but are not limited to, breeding, feeding, or sheltering.” 271 NMFS maintains it did not
rely on FWS’s definition of the term. Rather, it asserts the BiOp “used the MMPA Level
B harassment take estimates as a proxy for identifying how many ‘takes’ could occur
under the ESA[.]” 272 In this regard, the BiOp stated “Available information indicates that
incidental acoustic harassment of small numbers of Cook Inlet beluga whales . . . may
occur during Apache’s Cook Inlet 3D Seismic Program. NMFS does not expect beluga
268
Docket 48 at 43.
269
See Docket 52 at 48 (citing B 383-84).
270
Docket 48 at 43 (“The ESA defines harassment . . .) (citing 50 C.F.R. § 17.3).
271
50 C.F.R. § 17.3.
272
Docket 52 at 48; BiOp 241 (“[T]his opinion considers all potential takes associated with this
action, including the ones covered under the more inclusive MMPA definition of harassment.”).
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whales . . . to be injured or killed by the Apache marine surveys.” 273 Further, the BiOp
concluded that the only takes that would occur would be the takes authorized under the
IHA—Level B harassment. 274 Reliance on the MMPA harassment take estimates in a
BiOp has been expressly approved by the Ninth Circuit. 275 Here, the BiOp did not find
that beluga whales would be harassed under the FWS definition to such an extent as to
significantly disrupt normal behavior patterns. Plaintiffs have failed to show a lack of a
rational connection between the facts found and conclusions reached in the agency’s
analysis on this issue.
D. Best Available Science.
Plaintiffs allege that NMFS failed to consider the best available science with
regard to two issues: (1) the 160 decibel take threshold; and (2) the effects of seismic
activity on prey species.
(1) 160 dB Threshold.
The ESA requires NMFS to “use the best scientific and commercial data
available.” 276 Plaintiffs assert that NMFS failed to do so in its BiOp. As discussed
above, Plaintiffs claim that the 160 decibel threshold is scientifically outdated and
contrary to the opinion of five leading bioacousticians. 277 Plaintiffs contend that in the
273
BiOp 253.
274
BiOp 241.
275
CBD, 695 F.3d at 913 (“[T]he relevant MMPA standard at issue here is more conservative
than the ESA standard. . . [S]o long as the amount and extent of take remains consistent with
the Service's small numbers’ and ‘negligible impact’ findings in the MMPA incidental take
regulations, there should be no need for reinitiating consultation under the ESA.”).
276
16 U.S.C. § 1536(a)(2).
277
Docket 48 at 44; see discussion supra at 41-45.
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BiOp, “NMFS failed to adequately address these expert comments or explain why its
reliance on the ‘incorrect’ threshold was reasonable.” 278
And Plaintiffs assert that
“NMFS’ repeated belief that it is actually using a threshold that underestimates harm to
beluga whales from a multiple pulse source like seismic is . . . based on a misreading of
Southall.” 279 Plaintiffs assert that “Southall recommends the 224 decibel threshold as
the behavioral disturbance criteria for single pulse sources only – not multiple pulse
sources like seismic.” 280
NMFS responds that it “is entitled to decide between conflicting scientific
evidence” and “the manner in which an agency resolves conflicting evidence is entitled
to deference so long as it is not arbitrary and capricious.” 281 And NMFS contends that
“Plaintiffs miss the entire point of [the BiOp’s threshold] discussion, which is that the
body of available scientific data—including Southall 2007—shows that the 160 dB
threshold used by NMFS for behavioral impacts are appropriately conservative and
precautionary.” 282
“The NMFS cannot ignore available biological information when formulating a
BiOp or ITS . . . [but] it has some discretion in deciding which scientific data is the ‘best
available’ because that determination, in and of itself, is scientific in nature and
278
Docket 48 at 45.
279
Docket 48 at 45.
280
Docket 56 at 27-28 (citing B 3006, Table 5).
281
Docket 52 at 46 (citing Trout Unlimited v. Lohn, 559 F.3d 946, 958-59 (9th Cir. 2006)).
282
Docket 52 at 47.
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accordingly deserves deference.”283 As discussed above, Plaintiffs have failed to show
that the dispute over the appropriate take threshold is anything other than a
disagreement over the interpretation of the available scientific evidence. 284 The letter
by the five bioacousticians does not change the Court’s conclusion. Indeed, although
that letter refers to a 140 dB threshold, it primarily contends that the use of sound levels
to predict marine mammal behavioral response from surveying is limited, and instead
encourages predicting response based on several contextual factors. 285
This Court finds that NMFS adequately weighed and considered the best
scientific data available in determining that the 160 dB take threshold was appropriate.
(2) Cod.
Plaintiffs assert that NMFS improperly ignored a 1993 study concerning the
impact of seismic activity on cod in Norway (the Engas study). Plaintiffs assert that
NMFS’ conclusion that “it is unlikely that significant numbers of fish would be impaired
to the point that it would impact the feeding success of Cook Inlet beluga whales” is
contradicted by the Engas study, which found that “cod catch rates fell 45-70% during
283
Oregon Natural Desert Ass’n v. Tidwell, 716 F.Supp.2d 982, 996 (D. Or. 2010) (internal
citations omitted); also see Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir. 2009) (“An
agency’s decision may be based on the best scientific evidence available even if the
administrative record contains evidence for and against its decision.”).
284
See discussion supra at 41-45.
285
A 744-745 (Bioacousticians Letter) (“The clear point of these observations is that behavioral
response in nature clearly follows more probabilistic function that changes based on the species
in question, behavioral state and other contextual issues. It has become painfully obvious that
the use of received level alone is seriously limited in terms of reliably predicting impacts of
sound exposure.”).
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seismic activity,” declines occurred up to “18 nautical miles from the shooting area,” and
the catch did not increase within five days after the surveys were completed. 286
NMFS responds that Plaintiffs’ claim regarding the Engas study “is wholly without
merit” because “[t]he Engas study . . . is not the only, or most recent, information on the
potential effects to beluga whale prey species, and Plaintiffs cannot meet their burden of
citing a scientific study that indicates the agency’s analysis is outdated or flawed.”287
And NMFS notes that the BiOp did explicitly consider a 2005 study on how noise affects
fish, as well as a 2004 study prepared by the Canadian Department of Fisheries and
Oceans, each of which considered Engas’s later works. 288 This Court concludes that
Plaintiffs have failed to establish that the studies the agency relied on in the BiOp on the
impact of seismic activity on fish were “outdated and flawed.” 289
E. Take Authorization.
Plaintiffs assert that NMFS erred by issuing an ITS authorizing the take of 30
beluga whales per year for each of the three years of the project, but focusing its
jeopardy analysis only on the 30 beluga whales expected to be taken during the first
year of surveying. Plaintiffs claim that the BiOp authorizes “three times the amount of
take that it appears to have considered in its analysis.” 290 This assertion is without
286
Docket 48 at 46 (citing Doc A097 at 4).
287
Docket 52 at 47 (citing Ecology Ctr. v. Castaneda, 574 F.3d 652, 659 (9th Cir. 2009) (internal
citation marks omitted)).
288
See BiOp 228 (citing Hastings and Popper, Effects of Sound on Fish (2005); Department of
Fisheries and Oceans, Review of scientific information on impacts of seismic sound on fish
invertebrates, marine turtles and marine mammals (2004)). See B 2100.
289
Ecology Ctr. v. Castaneda, 574 F.3d 652, 659 (9th Cir. 2009).
290
Docket 48 at 47.
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merit. The BiOp reviewed and analyzed Apache’s entire project, not just the proposed
year one activities. The resultant ITS was issued for a three-year period and thus
included three years of takes of 30 beluga whales per year. 291
V.
Claim 3: Violation of the National Environmental Policy Act.
NEPA declares a federal policy “to use all practicable means and measures . . .
to create and maintain conditions under which man and nature can exist in productive
harmony” and “recognizes that each person should enjoy a healthful environment and
that each person has a responsibility to contribute to the preservation and enhancement
of the environment.”292 Unlike the other environmental laws at issue in this action,
“NEPA itself does not mandate particular results, but simply prescribes the necessary
process.” 293
NEPA operates “simply by focusing the agency's attention on the
environmental consequences of a proposed project,” thereby ensuring “that important
effects will not be overlooked or underestimated only to be discovered after resources
have been committed or the die otherwise cast.” 294
291
“This biological opinion will be valid upon issuance and remain in force until January 31,
2015, unless re-initiation becomes necessary.” BiOp 143. “Thus, this biological opinion will
review the proposed action of the applicant in its full scope (three-year project, not just the first
year activities).” BiOp 150. Also see BiOp 253 (NMFS AKR anticipates that 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[.]”).
292
42 U.S.C. §§ 4331(1)(a), (c).
293
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).
294
Robertson, 490 U.S. at 349; see also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land
Mgt., 387 F.3d 989, 992-93 (9th Cir. 2004) (internal omissions, citations, and substitutions
omitted) (“Through the NEPA process, federal agencies must ‘carefully consider detailed
information concerning significant environmental impacts,’ but they are “not required to do the
impractical.’”); Inland Empire Public Lands Council v. United States Forest Serv., 88 F.3d 754,
764 (9th Cir.1996); Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001)).
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NEPA requires the preparation of an environmental impact statement (“EIS”) for
all “major federal actions significantly affecting the quality of the human environment.” 295
When “an agency's regulations do not categorically require the preparation of an EIS,
then the agency must first prepare an Environmental Assessment (EA) to determine
whether the action will have a significant effect on the environment.” 296 An EA is a
“concise public document that briefly provide[s] sufficient evidence and analysis for
determining whether to prepare an EIS[.]” 297 If the agency determines in the EA that an
EIS is not necessary, it issues a finding of no significant impact (“FONSI”). 298
“Whether there may be a significant effect on the environment requires
consideration of two broad factors: ‘context and intensity.’” 299 “Context simply delimits
the scope of the agency's action, including the interests affected. Intensity relates to the
degree to which the agency action affects the locale and interests identified in the
context part of the inquiry.” 300
The applicable regulation lists ten factors to be
considered when evaluating intensity. 301
295
In addition, an EA must “include brief
42 U.S.C. § 4332(C).
296
Natl. Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) abrogated on
other grounds by Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) (citing 40
C.F.R. § 1501.4).
297
Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998)
(citing 40 C.F.R. § 1508.9).
298
40 C.F.R. § 1501.4(e).
299
Natl. Parks v. Babbitt, 241 F.3d at 731; 42 U.S.C. § 4332(2)(C); Sierra Club v. United States
Forest Serv., 843 F.2d 1190, 1193 (9th Cir.1988)).
300
Natl. Parks v. Babbitt, 241 F.3d at 731.
301
40 C.F.R. § 1508.27(b).
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discussions . . . of alternatives as required by section 102(2)(E) [and] of the
environmental impacts of the proposed action and alternatives[.]” 302
Here, NMFS prepared an EA and concluded that no EIS was necessary.
therefore issued a FONSI. 303
It
Plaintiffs assert that NMFS’ analysis in the EA that
authorization of Apache’s surveying would not have a significant effect on the
environment was inadequate and that NMFS should have prepared an EIS. 304
A. NEPA and the “Hard Look” Standard.
In reviewing an agency’s decision under NEPA, a court applies the arbitrary and
capricious standard “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.’” 305 Plaintiffs note that they “need not show that significant
effects will in fact occur, but instead must only raise ‘substantial questions whether a
project may have a significant effect on the environment.’”306
302
40 C.F.R. § 1508.9.
303
B 970.
304
Docket 48 at 47.
305
Natl. Parks v. Babbitt, 241 F.3d at 730 (quoting Blue Mountains v. Blackwood, 161 F.3d at
1211; Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000)); Kleppe v. Sierra Club, 427 U.S.
390, 410 (1976) (“[t]he only role for a court is to insure that the agency has taken a “hard look”
at environmental consequences[.]”) (quoting Nat. Resources Def. Council, Inc. v. Morton, 458
F.2d 827, 838 (D.C. Cir. 1972)).
306
Docket 56 at 29 (quoting Blue Mountains v. Blackwood, 161 F.3d at 1212).
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Order Re Motion for Summary Judgment
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B. The EA’s Determination.
Plaintiffs contend that the issuance of the IHA will “significantly affect” the
environment, such that an EIS was required. 307 They assert that the following intensity
factors contained within the applicable regulation warrant an EIS:
•
The degree to which the effects on the quality of the human
environment are likely to be highly controversial. 308
•
The degree to which the possible effects on the human
environment are highly uncertain or involve unique or
unknown risks. 309
•
The degree to which the action may establish a precedent
for future actions with significant effects or represents a
decision in principle about a future consideration.
•
Whether the action is related to other actions with
individually insignificant but cumulatively significant impacts.
Significance exists if it is reasonable to anticipate a
cumulatively significant impact on the environment.
Significance cannot be avoided by terming an action
temporary or by breaking it down into small component
parts. 310
•
The degree to which the action may adversely affect an
endangered or threatened species or its habitat that has
been determined to be critical under the Endangered
Species Act of 1973. 311
307
Docket 48 at 47.
308
40 C.F.R. § 1508.27(b)(4).
309
40 C.F.R. § 1508.27(b)(5).
310
40 C.F.R. § 1508.27(b)(7).
311
40 C.F.R. § 1508.27(b)(9).
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Order Re Motion for Summary Judgment
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•
Whether the action threatens a violation of Federal, State, or
local law or requirements imposed for the protection of the
environment. 312
Plaintiffs initially asserted in their motion that “[a]ny one of these factors standing
alone is sufficient to require preparation of an EIS,”313 but tempered this assertion in
their reply, stating instead that any of these factors “may be sufficient to require
preparation of an EIS in appropriate circumstances.”314 Plaintiffs also assert that even if
an EIS was not required, NMFS failed to take the requisite “hard look” at mitigation
measures and the cumulative impact of Apache’s surveying. 315
(1) Highly Controversial.
In the context of NEPA, “‘controversial’ is ‘a substantial dispute [about] the size,
nature, or effect of the major Federal action rather than the existence of opposition to a
use.’” 316 Plaintiffs assert that an EIS is warranted by this intensity factor, as “substantial
312
40 C.F.R. § 1508.27(b)(10).
313
Docket 48 at 48 (citing Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 865
(9th Cir. 2005)).
314
Docket 56 at 29 (quoting Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1140 (9th Cir.
2011) (internal quotation marks omitted).
315
Docket 48 at 51 (citing Robertson, 490 U.S. at 350). Plaintiffs separated their NEPA
argument into two sections—one asserting that the intensity factors warranted an EIS, and one
asserting that NMFS failed to take a “hard look” at mitigation and cumulative impact. This Court
has combined those arguments in its analysis herein. The purpose of NEPA’s process
requirements is to ensure that agencies take a “hard look” at potential consequences; thus, the
“hard look” issue is implicated in each factor the agency must consider. See Klamath-Siskiyou
Wildlands Ctr. v. Bureau of Land Mgt., 387 F.3d 989, 992-93 (9th Cir. 2004) “Alternatively
phrased, [NEPA’s] task is to ensure that the agency has taken a ‘hard look’ at the potential
environmental consequences of the proposed action.”).
316
Blue Mountains v. Blackwood, 161 F.3d at 1212 (citing Greenpeace Action v. Franklin, 14
F.3d 1324, 1335 (9th Cir.1993); Sierra Club v. United States Forest Service, 843 F.2d 1190 (9th
Cir.1988)).
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Order Re Motion for Summary Judgment
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dispute exists concerning the significance of adverse environmental effects from the use
of seismic airguns.”317
They point to MMC’s criticisms of the project and the
bioacousticians’ letter of February 28, 2012 as demonstrative of this substantial dispute.
NMFS responds that the untimely letter from the bioacousticians and MMC’s comments
do not demonstrate that Apache’s seismic survey plan is “highly controversial.” 318 API
adds that “[t]he mere existence of scientific dispute or opposition . . . is not enough to
mandate an EIS.” 319 The Ninth Circuit has “held that when the record reveals that an
agency based a finding of no significant impact upon relevant and substantial data, the
fact that the record also contains evidence supporting a different scientific opinion does
not render the agency's decision arbitrary and capricious.” 320
Although Plaintiffs are clearly strongly opposed to this seismic surveying project,
the record does not demonstrate the degree to which the Apache project will affect the
human environment is highly controversial. 321 The Court finds that this intensity factor
did not require the agency to issue an EIS.
317
Docket 48 at 49.
318
Docket 52 at 52-53.
319
Docket 53 at 26.
320
Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105, 1120-21 (9th Cir.
2000), abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th
Cir. 2011).
321
An “outpouring of public protest” can render an action highly controversial, but the number of
comments submitted here—14—falls far short of that level. A 1793-96; cf. Sierra Club v.
Bosworth, 510 F.3d 1016, 1032 (9th Cir. 2007) (39,000 public comments and strong criticism
satisfied “highly controversial” factor); Natl. Parks v. Babbitt, 241 F.3d at 728 (450 comments,
85% of which were negative, mandated preparation of an EIS), abrogated on other grounds by
Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010).
3:12-cv-00102-SLG, Native Village of Chickaloon, et al. v. NMFS, et al.
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(2) Highly Uncertain Effects.
Plaintiffs assert that there is substantial uncertainty regarding the effects of
seismic surveying on Cook Inlet beluga whales and that “NMFS admits it does not know
why the Cook Inlet beluga population continues to decline[.]”322 NMFS maintains that
despite the uncertainty as to the reason for the decline in the beluga population, NMFS
“reasonably concluded that given the location of the permitted activities and the location
and habits of the beluga whales, there will not be any significant impact.” 323
The Ninth Circuit has held that an uncertainty analysis requires specificity;
“general statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard
look’ absent a justification regarding why more definitive information could not be
provided.” 324 And yet the analysis is to be focused on the uncertainty concerning the
effect of the particular agency action. 325
Here, as API points out, here “NMFS had available separate analyses of three CI
seismic surveys conducted as recently as 2007, each of which concluded that the
projects ‘appeared to have no more than negligible effect on the species of marine
mammals in the survey area[.]’” 326 Although some degree of uncertainty with respect to
the project’s effects on the environment has been demonstrated, the Court finds that the
effects of Apache’s surveying on the beluga whales, as considered by NMFS in the EA,
322
Docket 48 at 49 (quoting B 882-83).
323
Docket 52 at 53.
324
Blue Mountains v. Blackwood, 161 F.3d at 1213 (quoting Neighbors of Cuddy Mountain v.
United States Forest Service, 137 F.3d 1372, 1380 (9th Cir.1998)).
325
40 C.F.R. § 1508.27(b)(5).
326
Docket 53 at 28 (quoting A091 at 3; A092 at 6; A093 at 6).
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Order Re Motion for Summary Judgment
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were not “highly uncertain” such as to require an EIS and that the EA took the requisite
“hard look” at those effects. 327
(3) Precedent for Future Actions.
Plaintiffs assert that NMFS’ negligible impact determination “could have a
significant precedential impact on future decisions to permit the harassment of marine
mammals incidental to seismic exploration in Cook Inlet under the MMPA[.]” 328
NMFS responds that the agency explicitly noted in the EA that its decision would
not have a precedential effect on future actions and that, by law, each action must be
considered individually. 329
This Court finds that the agency’s consideration of this intensity factor, which
determined that the issuance of an authorization for Apache’s surveying was unique
and independent from future actions, was adequate and the factor did not warrant an
EIS. 330
(4) Cumulative Impact.
Plaintiffs assert that the EA is inadequate because it failed to take a “hard look”
at the cumulative impact of Apache’s proposed surveying. 331 Plaintiffs focus on the
EA’s discussion of gas and oil development in Cook Inlet, which states as follows:
327
B 913-28.
328
Docket 48 at 50-51 (citing Anderson v. Evans, 371 F.3d 475, 493 (9th Cir. 2004)).
329
Docket 52 at 54 (quoting FONSI at B 976).
330
Cf. Presidio Golf Club v. Natl. Park Serv., 155 F.3d 1153, 1163 (9th Cir. 1998) (“The public
golf clubhouse is a unique, independent project, however, and does not serve to establish any
precedent.”).
331
Docket 48 at 51-52. See 40 C.F.R. § 1508.7. Although this is a separate regulation from the
one listing the intensity factors, courts construe the two together as requiring the same analysis.
3:12-cv-00102-SLG, Native Village of Chickaloon, et al. v. NMFS, et al.
Order Re Motion for Summary Judgment
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Most of the existing gas and oil development occurs in the action area and
it is likely that future gas and oil development will continue to take place in
the action area. Impacts from gas and oil development include increased
noise from seismic activity, vessel and air traffic and well drilling;
discharge of wastewater; habitat loss from the construction of oil and gas
facilities; and contaminated food sources and/or injury from a natural gas
blowout or oil spill. The risk of these impacts may increase as oil and gas
development increases; however, new development will undergo
consultation prior to exploration and development.
Support vessels are required for gas and oil development to transport
supplies and products to and from the facilities. Not only will the support
vessels from increased gas and oil development likely increase noise in
the action area, there is a potential for a slightly increased risk of ship
strikes with beluga whales; however, ship strikes have not been
definitively confirmed in a Cook Inlet beluga whale death, and monitoring
measures should reduce this risk by placing visual monitors on ships to
look out for whales and by deploying acoustic monitors to listen for
vocalizing marine mammals. 332
After this discussion, as well as what the EA describes as a “brief summary” of other
human-related activities, the EA then states that Apache’s seismic surveying “would not
be expected to result in a cumulative significant impact,” reasoning that “[t]he potential
impacts to marine mammals, their habitats, and the human environment in general are
expected to be minimal based on the limited and temporary noise footprint and
mitigation and monitoring requirements of the IHA.” 333
See Blue Mountains v. Blackwood, 161 F.3d at 1214 (citing 40 C.F.R. § 1508.7 and 40 C.F.R. §
1508.27(b)(7) together in prefacing its cumulative impact analysis).
332
B 937.
333
B 940. Additional information regarding the scope of oil and gas development is set forth in
another section of the EA, and states that there are “16 oil and gas production platforms located
in upper Cook Inlet, 12 of which are active today. There are no platforms in the lower Inlet, and
no permits have been issued for the construction of a new permanent platform anywhere within
the Inlet.” B 900.
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Order Re Motion for Summary Judgment
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Plaintiffs assert this discussion of oil and gas activity is inadequate in the
cumulative impact analysis. They state that “Apache is one of about a dozen oil and
gas companies currently exploring and developing oil and gas in Cook Inlet, and there
are currently 391 active oil and gas leases totaling almost 1 million acres of State
leased land in Cook Inlet.” 334 Plaintiffs assert that “the EA summarized – but did not
actually analyze – cumulative impacts” and its failure to do so is arbitrary and capricious
and unsupported by the record evidence. 335
An EA “must fully assess the cumulative impacts of a project.”336 However,
“under NEPA [courts] defer to an agency's determination of the scope of its cumulative
effects review.” 337 In Center for Biological Diversity v. Salazar, the plaintiffs challenged
an EA related to incidental take regulations that were issued for a five-year plan limited
to oil and gas exploration activities. The EA only assessed the impact of small spills,
concluding that the likelihood of a large spill during the exploratory stage was very low.
Plaintiffs asserted that the EA should have considered the likelihood of large spill that
might occur in future development and production activity in its cumulative impacts
analysis. But the Ninth Circuit said that the agency’s failure to analyze the effects of a
potential oil spill as a result of future development and production activities outside the
334
Docket 48 at 52.
335
Docket 56 at 32.
336
CBD v. Salazar, 695 F.3d at 917 (citing Barnes v. U.S. Dept. of Transp., 655 F.3d 1124,
1141 (9th Cir. 2011); Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep't of Interior, 608 F.3d
592, 602–03 (9th Cir.2010)).
337
Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 959 (9th Cir. 2003) (quoting
Neighbors of Cuddy Mt. v. Alexander, 303 F.3d 1059, 1071 (9th Cir. 2002)).
3:12-cv-00102-SLG, Native Village of Chickaloon, et al. v. NMFS, et al.
Order Re Motion for Summary Judgment
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scope of the authorized activity was not “arbitrary and capricious given the relatively
narrow scope of the activity contemplated in the incidental take regulations.”338
The EA here adequately addresses the past, present and future projects in the
inlet. In addition to the above-quoted discussion of oil and gas development, the EA
addressed the effects of pollution; fisheries interaction; coastal zone development
including the Port of Anchorage and Port Mackenzie expansions, the Chuitna Coal
Project, and the ORPC Alaska Tidal Energy projects; marine mammal research; and
climate change. After discussing each of these categories of activity, the EA concluded
that “the incremental impact of an IHA for the proposed Apache seismic survey in Cook
Inlet would not be expected to result in a cumulative significant impact to the human
environment from past, present, and future activities” and that “[t]he potential impacts to
marine mammals, their habitats, and the human environment in general are expected to
be minimal based on the limited and temporary noise footprint and mitigation and
monitoring requirements of the IHA.” 339
Based on the foregoing, this Court finds that the cumulative impacts of Apache’s
surveying activities did not require the agency to prepare an EIS and that the agency
took the requisite hard look at those impacts. 340
338
CBD v. Salazar, 695 F.3d at 917.
339
B 937-940.
340
And yet here again, this Order does not address the extent to which corrected take estimates
may impact the agency’s determination.
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Order Re Motion for Summary Judgment
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(5) Adverse Effect on Endangered Species and Threatened Legal Violation.
Plaintiffs address these two intensity factors together, relying on their prior
arguments that “NMFS’ IHA may adversely affect endangered Cook Inlet beluga whales
and designated critical habitat in violation of both the MMPA and ESA.” 341
NMFS maintains that “preparation of an EIS is not required just because an
agency identifies adverse impacts on wildlife species or their habitat, or acknowledges
information favorable to a different outcome . . . even if the impacts are to an
endangered species.” 342
API adds that NMFS’ conclusion “that Apache’s seismic
activities would have no substantial impact on marine mammals, but at most short-term
and localized changes in behavior” is “precisely the kind of agency assessment of the
effects of proposed action that implicates ‘a scientific prediction within the scope of its
technical expertise’ and hence qualifies for judicial deference.” 343
Although it appears that the agency did give the requisite hard look on this topic,
it did so with inaccurate assumptions with respect to the percent of the population that
would be subjected to takes by harassment. 344 Given the agency’s reliance on these
inaccurate assumptions, the adverse effect on the endangered species and threatened
legal violation must be set aside to be revisited by the agency as warranted in light of
the determinations reached by this Court in this Order.
341
Docket 48 at 51.
342
Docket 52 at 54 (citing Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240
(9th Cir. 2005); Envtl Prot. Info, Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1010-11 (9th Cir.
2006)).
343
Docket 53 at 26 (quoting Ctr. For Biological Diversity v. Kempthorne, 588 F.3d 701, 712 (9th
Cir. 2009)).
344
See B 936.
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Plaintiffs assert the EA is deficient because its alternatives analysis failed to take
a “hard look” at mitigation measures. 345 They assert that “the EA summarily rejects
time-area restrictions on the assumption that the survey’s ‘timing and location’ makes
restrictions unnecessary” but this “assumption is patently inconsistent with the scope of
the authorization and NMFS’ own science.” 346
The EA considered three alternatives: (1) “No Action Alternative,” (2) “Issuance
of IHA with Required Mitigation, Monitoring and Reporting Measures (Preferred
Alternative), and (3) “Issuance of an IHA with Additional Mitigation and Monitoring
Measures.”347 It briefly evaluated the alternative of no action, and thoroughly evaluated
the alternative of permitting Apache to proceed with its proposal alternative. 348 With
respect to the third alternative, the EA simply stated that “an alternative that would have
included time/area restrictions was considered but eliminated from consideration
because such measures were unnecessary given the timing and location of the seismic
survey.” 349
NMFS maintains this statement is sufficient given the “limited temporal and
physical limitations of the activities permitted by the IHA.”350 Additionally, NMFS alleges
345
Docket 48 at 53-54.
346
Docket 48 at 53-54 (citing B867).
347
B 866.
348
B 902-31.
349
B 867.
350
Docket 52 at 54 (citing B975-76); id. at 53-54 (referencing the “limited and temporary
footprint and required mitigation measures of the IHA” to conclude any cumulative impacts
would be minimal).
3:12-cv-00102-SLG, Native Village of Chickaloon, et al. v. NMFS, et al.
Order Re Motion for Summary Judgment
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its “discussion of the mitigation measures in the EA . . . is both adequate and self
explanatory” and “fully complied with the requirements of NEPA.” 351
Section 102(2)(E) of NEPA directs federal agencies to “study, develop, and
describe appropriate alternatives to recommended courses of action in any proposal
which involves unresolved conflicts concerning alternative uses of available
resources[.]” 352
Regulations requires an EA to “include brief discussions . . . of
alternatives as required by section 102(2)(E) [and] of the environmental impacts of the
proposed action and alternatives[.]”353
But neither NEPA itself nor its regulations
explicitly requires consideration of mitigation measures. Plaintiffs cite to the Supreme
Court’s ruling in Robertson v. Methow Valley Citizens Council to support their assertion
that “NEPA requires an agency to sufficiently analyze reasonable mitigation alternatives
that would lessen environmental impacts.” 354 However, in that case, the Supreme Court
addressed the need for a discussion of mitigation alternatives as an “important
ingredient” of an EIS—not an EA. 355
Thus, that authority is inapposite.
Similarly,
Plaintiffs’ citation to the Ninth Circuit case Oregon Natural Res. Council v. Harrell for the
351
Docket 52 at 55.
352
42 U.S.C. § 4332(E).
353
40 C.F.R. § 1508.9.
354
Docket 48 at 53 (citing Methow Valley, 490 U.S. 332, 333 (1989)).
355
Robertson, 490 U.S. at 351-52 (“[O]ne important ingredient of an EIS is the discussion of
steps that can be taken to mitigate adverse environmental consequences. . . Implicit in NEPA's
demand that an agency prepare a detailed statement on ‘any adverse environmental effects
which cannot be avoided should the proposal be implemented,’ 42 U.S.C. § 4332(C)(ii), is an
understanding that the EIS will discuss the extent to which adverse effects can be avoided.”).
3:12-cv-00102-SLG, Native Village of Chickaloon, et al. v. NMFS, et al.
Order Re Motion for Summary Judgment
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proposition that an agency’s failure to discuss mitigation requires remand is not
persuasive, as that case also analyzed an EIS, not an EA. 356
In Akiak Native Community v. U.S. Postal Service, the Ninth Circuit explicitly held
that “NEPA does not require that Environmental Assessments include a discussion of
mitigation strategies.”357 The Ninth Circuit explained that “[a]lthough NEPA regulations
do require a discussion of the “[m]eans to mitigate adverse environmental impacts,” 40
C.F.R. § 1502.16(h), this provision governs the preparation of an Environmental Impact
Statement, not an Environmental Assessment[,]”and emphasized that “[t]his distinction
is critical.” 358 Here, NMFS’ analysis in the EA followed the correct procedure and took
the requisite “hard look” in making its determination that an EIS was not required. But
here again, the extent to which the agency’s erroneous percentage take estimations
may influence the appropriate mitigation alternatives has not been addressed by the
parties nor addressed in this Order.
356
Docket 48 at 54 (citing Oregon, 52 F.3d 1499, 1507 (9th Cir. 1995)).
357
Akiak Native Community v. U.S. Postal Serv., 213 F.3d 1140, 1147 (9th Cir. 2000).
358
Akiak v. USPS, 213 F.3d at 1147; cf. Bering Strait Citizens for Responsible Resource Dev.
v. U.S. Army Corps of Engineers, 524 F.3d 938, 955 (9th Cir. 2008) ((“Under NEPA, an
agency's consideration of alternatives is sufficient if it considers an appropriate range of
alternatives, even if it does not consider every available alternative. An agency need not,
therefore, discuss alternatives similar to alternatives actually considered, or alternatives which
are infeasible, ineffective, or inconsistent with the basic policy objectives for the management of
the area[.]”) (quoting Northern Alaska Env'l Center v. Kempthorne, 457 F.3d 969, 978 (9th Cir.
2006)); Envtl. Protec. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1016 (9th Cir. 2006) (“an
agency's obligation to consider alternatives under an EA is a lesser one than under an EIS”)
(quoting Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005)).
3:12-cv-00102-SLG, Native Village of Chickaloon, et al. v. NMFS, et al.
Order Re Motion for Summary Judgment
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CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is GRANTED
in part and DENIED in part.
This Court finds that the National Marine Fisheries
Services’ use of the 160 dB threshold for determining when incidental take by
harassment would occur, together with many other aspects of the agency’s decisionmaking as discussed herein, is affirmed.
But this Court finds that the agency
erroneously determined the number and percentage of Cook Inlet beluga whales that
would be subject to take by Level B incidental harassment during Apache’s seismic
surveying activities under year one of its permit, and it appears that the agency
arbitrarily and capriciously relied upon this erroneous determination in the issuance of
the Incidental Harassment Authorization, the Biological Opinion, and the Environmental
Assessment.
In light of the foregoing, IT IS ORDERED that within 21 days of the date of this
Order, the parties shall file and serve, either jointly or separately, a motion(s) or
stipulation that proposes the further proceedings that should occur in this matter, taking
into account the fact that the Initial Harassment Authorization issued by the NMFS to
Apache at issue in this proceeding expired with the issuance of the amended IHA in
February 2013.
DATED this 28th day of May, 2013.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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Order Re Motion for Summary Judgment
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