Alaska Wilderness League et al v. Jewell et al

Filing 59

ORDER: re Cross-Motions for Summary Judgment 47 ; 54 ; 57 . Signed by Judge Sharon L. Gleason on 07/02/2015. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ALASKA WILDERNESS LEAGUE,
CENTER FOR BIOLOGICAL
DIVERSITY, GREENPEACE, INC.,
NATURAL RESOURCES DEFENSE
COUNCIL, RESISTING
ENVIRONMENTAL DESTRUCTION ON
INDIGENOUS LANDS, and SIERRA
CLUB,
Plaintiffs,
v.
SALLY JEWELL, Secretary of the
Interior, and UNITED STATES FISH
AND WILDLIFE SERVICE,
Defendants,
and

Case No. 3:15-cv-00067-SLG

ALASKA OIL AND GAS ASSOCIATION,
Intervenor-Defendant.
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
Before the Court at Docket 47 is Plaintiffs’ Motion for Summary Judgment. The
Federal Defendants and Alaska Oil and Gas Association both opposed and cross-moved
for summary judgment. 1 Oral argument was not requested by any party and was not
necessary to the Court’s determination. For the reasons set forth below, Plaintiffs’ motion

1

Docket 55 (Federal Opp.) and Docket 53 (Intervenor-Defendant’s Opp.); see D.Ak LR 16.3(c)(2)
(in administrative appeals, a defendant’s brief in opposition is deemed a cross-motion for
summary judgment).

will be denied and the Federal Defendants’ and Intervenor-Defendant’s cross-motions will
be granted.
Plaintiffs, six environmental organizations, challenge an incidental take regulation
(“ITR”) promulgated by the U.S. Fish and Wildlife Service (“the Service”) that is effective
from June 12, 2013 to June 12, 2018. The ITR sets out the permissible methods for the
incidental taking of small numbers of Pacific walruses in the Chukchi Sea in connection
with oil and gas exploration activities. 2 The Chukchi Sea is located off the North Slope of
Alaska. It is a promising location for oil and gas exploration and development. It is also
an important habitat for the Pacific walrus, particularly in the Hanna Shoal region within
the sea.

Plaintiffs assert that the ITR violates the Marine Mammal Protection Act

(“MMPA”), the National Environmental Policy Act (“NEPA”), and the Administrative
Procedure Act (“APA”).

Plaintiffs’ claims all relate to the manner in which the ITR

addresses mitigation measures for walruses in the Hanna Shoal area.
I.

The Marine Mammal Protection Act

The MMPA generally prohibits the taking of marine mammals. 3 The term “take” is
defined broadly under the Act and means “to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal.” 4 The MMPA defines harassment to
include “any act of pursuit, torment, or annoyance” which “has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing disruption of behavioral

2

The ITR also permits the incidental taking of small numbers of polar bears, but that portion of
the regulation is not at issue in this litigation, and is not addressed in this Order.
3

16 U.S.C. § 1371(a).

4

Id. at § 1362(13).

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patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or
sheltering.” 5
The MMPA includes several exceptions to the general taking prohibition. The
exception at issue in this case allows for “the incidental, but not intentional, taking by
citizens while engaging in [an activity such as oil exploration] . . . of small numbers of
marine mammals of a species or population stock” when the Secretary of the Interior
“finds that the total of such taking . . . will have a negligible impact on such species or
stock . . . .” 6 After notice and comment, the Secretary may then prescribe regulations
that authorize such take for up to five years. The regulations must “set forth permissible
methods of taking pursuant to such activity, and other means of effecting the least
practicable adverse impact on such species or stock and its habitat, paying particular
attention to rookeries, mating grounds, and areas of similar significance.”7 This type of
regulation is known as an incidental take regulation, and is the type of regulation that is
challenged here.
After an ITR is issued, a citizen may apply for a letter of authorization (“LOA”) that
authorizes incidental take consistent with the ITR. LOAs are issued after a non-public
process if the Service determines that the proposed activity is one described in the
incidental take regulation and concludes that the level of take caused by the activity will

5

Id. at § 1362(18)(A)(i–ii).

6

Id. at § 1371(a)(5)(A)(i).

7

Id.

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be consistent with the findings made in the regulation. 8 Notice of the issuance of an LOA
is to be published in the Federal Register within 30 days of its issuance. 9 The regulation
also provides that LOAs will specify “any additional terms and conditions appropriate for
the specific request.” 10
In 1991, the Service first issued regulations authorizing the incidental take of
walruses and polar bears in connection with oil and gas exploratory activities in the
Chukchi Sea for a period of five years. 11

Another set of five-year incidental take

regulations were issued for the Chukchi Sea for the period from 2008 through 2013. A
legal challenge was brought regarding those regulations that was rejected by the Alaska
District Court and affirmed on appeal to the Ninth Circuit. 12
II.

The National Environmental Policy Act

Pursuant to NEPA, an agency must prepare an Environmental Impact Statement
(“EIS”) “in every recommendation or report on proposals for . . . major Federal actions
significantly affecting the quality of the human environment.” 13 NEPA’s implementing
regulations provide that an agency shall prepare an Environmental Assessment (“EA”) to
determine whether a proposed federal action will have a significant impact on the human

8

50 C.F.R. § 18.27(f)(1–2).

9

Id. at § 18.27(f)(3).

10

Id. at § 18.27(f)(4).

11

56 Fed. Reg. 27,443 (June 14, 1991).

12

73 Fed. Reg. 33,212 (June 11, 2008); Ctr. for Biological Diversity v. Salazar, 695 F.3d 893 (9th
Cir. 2012); Ctr. for Biological Diversity v. Salazar, No. 3:08-cv-00159-RRB, Docket No. 58 (D.
Alaska Jan. 8, 2010).
13

42 U.S.C § 4332(C).

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environment such that an EIS is warranted. 14 An EA is a ‘concise public document” that
“include[s] brief discussions of the need for the proposal, of alternatives as required by
[42 U.S.C. § 4332(2)(E)], of the environmental impacts of the proposed action and
alternatives, and a listing of agencies and persons consulted.” 15 If the agency concludes
in the EA that there is no significant environmental impact from the proposed project, the
federal agency issues a finding of no significant impact (“FONSI”) in lieu of preparing an
EIS. 16 “In reviewing an agency’s decision not to prepare an EIS under NEPA, the Court
employs an arbitrary and capricious standard that requires it to determine whether the
agency has taken a ‘hard look’ at the consequences of its actions, based [its decision] on
a consideration of the relevant factors, and provided a convincing statement of reasons
to explain why a project’s impacts are insignificant.”17
III.

The 2013 Chukchi Sea Regulations

On January 31, 2012, the Alaska Oil and Gas Association (“AOGA”) requested that
the Service promulgate an incidental take regulation allowing the incidental take of Pacific
walruses and polar bears in the Chukchi Sea during oil and gas exploration activities for
a period of five years. The Secretary published a proposed incidental take regulation on

14

40 C.F.R. § 1508.9.

15

40 C.F.R. §§ 1508.9(a), (b).

16

40 C.F.R. § 1508.9(a)(1).

17

Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005) (citations
omitted). While many Ninth Circuit decisions treat the “hard look” requirement as another
formulation of the arbitrary and capricious standard, some address it separately as a measure of
the overall adequacy of an EA or EIS. Compare In Def. of Animals, Dreamcatcher Wild Horse &
Burro Sanctuary v. U.S. Dep’t of Interior, 751 F.3d 1054, 1068 (9th Cir. 2014) with KlamathSiskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 992-93 (9th Cir. 2004).

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January 9, 2013, seeking comment from the public. 18 The proposed rule included the
delineation of a specific area in the Chukchi Sea that it defined as the Hanna Shoal Walrus
Use Area. And it stated that “[b]ased on the significant biological value of Hanna Shoal
to walrus foraging, and the likelihood of encountering large groups of foraging walruses
in that area through September, we do not anticipate issuing any [letters of authorization]
for seismic or drilling activity in the Hanna Shoal region during the 5-year span of these
proposed regulations.”19
On May 14, 2013, the Service issued an EA for the proposed regulation that
evaluated whether a full EIS was needed pursuant to NEPA. The EA concluded that “the
effects of the rule are not significant because it only authorizes incidental take of small
numbers that will have only negligible impacts on trust species populations and no
unmitigable impact on subsistence use of those species.” 20 The Service also issued a
Finding of No Significant Impact (“FONSI”), which concluded that the preparation of an
EIS was not required by NEPA. 21
On June 12, 2013, the Service promulgated the final incidental take regulation. 22
The Final Rule allows the industry to apply for letters of authorization to permit the
incidental take of Pacific walruses in connection with oil and gas exploration activities in

18

78 Fed. Reg. 1,942 (Jan. 9, 2013) (Proposed Rule).

19

78 Fed. Reg. at 1,975.

20

Docket 47-3 (EA) at 71.

21

Docket 47-2 (FONSI).

22

78 Fed. Reg. 35,364 (June 12, 2013) (hereinafter “Final Rule” or “ITR”) (also located in the
Administrative Record at ARITR00053869 and at Docket 47-1).

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the Chukchi Sea. The ITR contains a number of specified mitigation, monitoring and
reporting requirements, including minimum distances that aircraft and vessels must
maintain from walruses on land, water and sea ice, on-board marine mammal observers,
and reporting requirements. 23 It also specifies that “[n]o more than two simultaneous
seismic operations and three offshore exploratory drilling operations will be authorized in
the Chukchi Sea region at any time.” 24 And the ITR specifies that “[o]perators must
maintain a minimum spacing of 24 km (15 mi) between all active seismic source vessels
and/or drill rigs during exploration activities to avoid significant synergistic or cumulative
effects from multiple oil and gas exploration activities on foraging or migrating walruses.” 25
The Final Rule establishes a Hanna Shoal Walrus Use Area (“HSWUA”) and
recognizes that “it is critical to minimize disturbance in this area of highly concentrated
[walrus] use during July through September.” 26 But the Final Rule does not preclude all
exploratory activity in the HSWUA. Rather, it finds that from “July through September,
additional mitigation measures may be applied to activities within the HSWUA on a caseby-case basis. These mitigation measures include, but may not be limited to, seasonal
restrictions, reduced vessel traffic, or rerouting of vessels.” 27

The Final Rule also

recognizes that the mitigation measures may be necessary in the HSWUA “to minimize

23

Id. at 35,422–23, 35,426 (codified at 50 C.F.R. §§ 18.118(a)(2)(i–ii, vi), (3)(i), 18.118(c)).

24

Final Rule at 35,423.

25

Id.

26

Final Rule at 35,399.

27

Final Rule at 35,423.

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potential disturbance and ensure consistency with the MMPA mandates that only small
numbers of walruses be affected with a negligible impact on the stock.” 28 Apart from an
aircraft altitude restriction, the Final Rule does not impose specified additional mitigation
for the HSWUA distinct from the rest of the Chukchi Sea. 29 Rather, the ITR explains that
On a case-by-case basis, as individual LOA applications are
received, we will examine the proposed activities in light of the
boundaries of the HSWUA, the nature and timing of the
proposed activities, and other available information at the
time. If the Service determines that the proposed activity is
likely to negatively impact more than small numbers of
walruses, we will consider whether additional mitigation and
monitoring measures could reduce any potential impacts to
meet the small numbers and negligible impact standards. The
Service will make those determinations on a case-by-case
basis. 30

As noted above, the 2013 ITR was preceded by a 2008 ITR regulation for the Chukchi
Sea.

Overall, the 2013 ITR contains more stringent mitigation measures than its

predecessor. The principal changes in the mitigation measures are set out in bold in the
following chart:
//
//
//
//
//

28

Final Rule at 35,371.

29

See Final Rule at 35,424 (codified as 50 C.F.R. § 18.118(a)(4)(v)).

30

Id.

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Comparison of Mitigation Measures for Walruses in 2008 and 2013
Chukchi Incidental Take Regulations
Mitigation Type
Vessel Approach
Limitations
Vessel Operation
Restrictions

Aircraft Restrictions

Limited Offshore
Exploration Period
Minimum Spacing

2008 Regulation 31
½ mile on land or ice

2013 Regulation 32
½ mile on ice, 1 mile
groups on land
Yes, near feeding walrus Yes, near groups of 12 or
groups (reduced speeds, more walruses (reduced
minimum distance, no speeds, minimum distance,
separating of walruses)
no separating of walruses)
Aircraft minimum of 1,000
Helicopter minimum of
ft. flying altitude within ½
3,000 ft. flying altitude
mile of walruses on land or within 1 mile of walrus
ice, no hovering or circling groups on land, no
near walruses
hovering or circling near
walruses
July 1-November 30
July 1-November 30
15 miles between active
seismic-source vessels or
drilling rigs, no more than
four simultaneous seismic
operations, no limit
specified on simultaneous
offshore drilling operations
Yes

Wildlife Population
Estimate Surveys
Hanna Shoal Additional None
Mitigation

15 miles between active
seismic-source vessels or
drilling rigs, no more than
two simultaneous seismic
operations and three
simultaneous offshore
drilling operations
Yes
Additional measures
applied on a case-bycase basis, including but
not limited to seasonal
restrictions, reduced
vessel traffic, or
rerouting of vessels.
Aircraft to avoid
operating below 1,500
feet between July 1 and
September 30

31

73 Fed. Reg. 33,212 (June 11, 2008) (50 C.F.R. § 18.118(a)(1–3) (2008)).

32

50 C.F.R. § 18.118(a)(2–6).

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DISCUSSION
I.

Jurisdiction
The Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §

1331 because the case arises under the laws of the United States. An aggrieved party
may seek review of this agency action in the federal district court pursuant to the
Administrative Procedure Act. 33
Plaintiffs assert that they have associational standing in this case because their
members have standing in their own right, the interests at stake are germane to Plaintiffs’
organizational purposes, and this suit does not require the participation of individual
members of the Plaintiff organizations. 34 Defendants do not challenge Plaintiffs’ standing.
After reviewing the declarations submitted by Plaintiffs, the Court concludes that one or
more of the Plaintiffs have the requisite associational standing to maintain this suit. 35
II.

Standards of Review
A court reviews an agency’s compliance with the MMPA and NEPA under the

Administrative Procedure Act. 36 “The reviewing court may not set aside an agency’s
decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 37 A court’s review of whether an agency action is arbitrary and

33

5 U.S.C. § 702.

34

Docket 47 (Motion) at 25–26 (citing Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167,
181 (2000)).
35

See Docket 47-25 to 47-33 (Declarations).

36

Humane Soc’y v. Locke, 626 F.3d 1040, 1047 (9th Cir. 2010).

37

5 U.S.C. § 706(2)(A).

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capricious should be “searching and careful,” but “narrow,” as a court may not substitute
its judgment for that of the administrative agency. 38 “[A court] will reverse a decision as
arbitrary and capricious only if the agency relied on factors Congress did not intend it to
consider, ‘entirely failed to consider an important aspect of the problem,’ or offered an
explanation ‘that runs counter to the evidence before the agency or is so implausible that
it could not be ascribed to a difference in view or the product of agency expertise.’” 39
In reviewing an agency’s interpretation and application of statutes for which it is
responsible, this Court follows the deferential two-step inquiry set out in Chevron U.S.A.
v. Natural Resources Defense Council, Inc. 40 First, the Court asks “whether Congress
has directly spoken to the precise question at issue. If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” 41 Second, “if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the statute.” 42

38

Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989).

39

Ecology Ctr. v. Castaneda, 574 F.3d 652,656 (9th Cir. 2009).

40

467 U.S. 837, 843–44 (1984). Prior to undertaking the two-step Chevron inquiry, the Court
must determine whether Congress intended “the agency to be able to speak with the force of law
when it addresses ambiguity in the statute or fills a space in the enacted law.” United States v.
Mead Corp., 533 U.S. 218, 229 (2001). This step is colloquially referred to as “Step Zero” of the
Chevron analysis. See, e.g., Oregon Rest. & Lodging v. Solis, 948 F. Supp. 2d 1217, 1222-23
(D. Or. 2013). See also Alaska Wilderness League v. Jewell, --- F.3d ---, 2015 WL 3620115 at
*3-4 (9th Cir. June 11, 2015).
41

Chevron, 467 U.S. at 842–43.

42

Id. at 843. The Supreme Court and the Ninth Circuit sometimes describe the statutory standard
as “whether the agency’s interpretation is reasonable.” See King v. Burwell, No. 14-114, -- S. Ct.
--, 2015 WL 2473448, *8 (2015); Alaska Wilderness League, 2015 WL 3620115 at *7.

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III.

The Incidental Take Regulation’s Compliance with the MMPA
Plaintiffs assert that the ITR violates the MMPA in two ways: (1) it fails to set forth

the means of effecting the least practicable adverse impact on walruses, and (2) it fails to
make a negligible impact finding based on “total” take.
a. The least practicable adverse impact finding.
The MMPA permits the Service to allow for the incidental take of the Pacific walrus
only if the Secretary, among other steps, “prescribes regulations setting forth permissible
methods of taking pursuant to such activity, and other means of effecting the least
practicable adverse impact on such species or stock and its habitat.”43
Plaintiffs cite to portions of the ITR that indicate that additional mitigation measures
beyond those set out in the regulation might be required in the HSWUA to minimize
potential disturbance to walruses but observe that the Service intends to adopt these
additional measures through the LOA process. 44 Plaintiffs maintain that the “MMPA
forbids this approach: it requires the Secretary to ‘set forth’ at the outset—in the regulation
and subject to public comment—the means of effecting the least practicable adverse
impact to marine mammal stock and habitat.” 45 Plaintiffs vigorously protest the Service’s
approach to “relegate to private negotiation with industry operators the determination of
essential protections that the MMPA requires be forged through notice-and-comment

43

16 U.S.C. § 1371(a)(5)(A)(i)(II).

44

Docket 47 (Motion) at 30.

45

Id.

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rulemaking (and NEPA requires be vetted for their environmental consequences)” and
not deferred to a later, non-public LOA stage. 46
The Service responds that because neither the MMPA nor its enabling regulations
define what “other means of effecting the least practicable adverse impact” means, “it is
left to [the Service] to apply its unique expertise to the facts and circumstances presented
to give meaning to these terms on a case-by-case basis.” 47 The Service asserts that the
mitigation requirements in the Final Rule “fall into two categories: mitigation measures
applicable to all LOAs and additional mitigation measures that can be imposed on a caseby-case basis to a particular LOA.” 48 The Service maintains that “[r]equiring U.S. citizens
to apply for and obtain an LOA with additional customized mitigation, monitoring, and
reporting requirements also is one ‘other means of effecting the least practicable adverse
impact.’” 49

It maintains that this “flexible approach accounts for the inherent and

unavoidable limits of the available information on when and where any particular activity
may occur in relation to where exactly walruses will be in a given year.” 50
The Intervenor-Defendant asserts that the “adaptive mitigation” approach created
in the ITR allows for more protective mitigation measures than the 2008 ITR, which was
upheld by the courts. 51 The parties all agree that “additional mitigation measures . . . may

46

Docket 56 (Reply) at 12.

47

Docket 55 (Federal Opp.) at 26; see also Docket 53 (Intervenor-Defendant’s Opp.) at 26-32.

48

Docket 55 (Federal Opp.) at 27.

49

Id. (citing 50 C.F.R. 18.27(b), (f)(4)).

50

Docket 55 (Federal Opp.) at 27.

51

Docket 53 (Intervenor-Defendant’s Opp.) at 24.

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be necessary for HSWUA to . . . ensure consistency with the MMPA mandates that . . .
walruses be affected with a negligible impact on the stock.” 52
Both the Service and the Intervenor-Defendant cite to decisions of numerous
federal trial and appellate courts that they assert have approved similar adaptive
management measures. 53 And Defendants assert that Plaintiffs’ citations to the sonar
cases from the Northern District of California are inapplicable, because unlike in those
cases, the Service here “included a mitigation provision specific to the [Hanna Shoal] in
its regulations.”54
Although presented in different ways, the core of this dispute is whether the MMPA
permits the Service to apply an adaptive management approach through the LOA process
instead of specifying each mitigation measure in the incidental take regulation that will be
applied in the Chukchi Sea and particularly in the Hanna Shoal. In promulgating an
incidental take regulation, the MMPA requires the Service to set forth “permissible
methods of taking” and “other means of effecting the least practicable adverse impact on
such species or stock and its habitat.”55 The parties disagree on whether the statutory
directive to set forth “other means” requires a comprehensive list of mitigation measures
in the incidental take regulation itself. When an agency interprets a statute, a court

52

Docket 56 (Reply) at 14 (quoting Final Rule at 35,371).

53

Docket 55 (Federal Opp.) at 28; Docket 53 (Intervenor-Defendant’s Opp.) at 30 n.79. See also
J. B. Ruhl & Robert L. Fischman, Adaptive Management in the Courts, 95 Minn. L. Rev. 424
(2010).
54

Docket 55 (Federal Opp.) at 31; see also Docket 53 (Intervenor-Defendant’s Opp.) at 30 n. 81.

55

16 U.S.C. § 1371(a)(5)(A)(i)(II).

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applies the Chevron analysis to determine whether to defer to the agency’s interpretation.
Here, the Court finds that Congress intended the Service to speak with the force of law in
regulations implementing the MMPA, and that § 1371(a)(5)(A)(i)(II) is ambiguous as to
whether all mitigation measures must be included in an incidental take regulation.
Therefore, the Court must determine whether the Service’s interpretation of the statutory
text is a permissible one. 56
Of the arguments raised by Plaintiffs, the Court took particular note of the assertion
that allowing the Service to conduct mitigation decision-making through the LOA process
violates the MMPA because the MMPA envisions a public decision-making process. The
Court recognizes that the LOA process may move some important environmental
decision-making from a public notice-and comment regime into a less public case-bycase process. 57 But the Court finds that the statute does not unambiguously require the
Service to enact every mitigation measure in the incidental take regulation itself. Further,
the Court finds that it is not an impermissible construction of the statute for the Service to
conclude that the LOA process may be used to impose additional mitigation measures
that are not subject to notice and comment, particularly when such agency decisions
would presumably themselves be subject to judicial review. 58 The Court therefore holds
that the Service’s interpretation of the MMPA to allow it to impose specific additional

56

Chevron, 467 U.S. at 843.

57

See, e.g., 16 U.S.C. § 1374.

58

See Bennett v. Spear, 520 U.S. 154, 177-78 (1997). See also Ctr. for Bio. Diversity v.
Kempthorne, 588 F.3d 701, 712 (9th Cir. 2009) (upholding 2008–2013 Chukchi ITR and
recognizing that “LOAs include mitigating guidelines . . . .”).

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mitigation measures through LOAs as “other means of effecting the least practicable
adverse impact” is a permissible construction of the statute. 59
b. The total take determination.
The MMPA authorizes the Service to allow for the incidental taking of protected
mammals if, after notice and comment, it finds “that the total of such taking during each
five-year (or less) period concerned will have a negligible impact on such species or
stock.” 60 Plaintiffs assert that the ITR’s “failure to identify all of the mitigation measures
necessary to limit impacts from activities in the Hanna Shoal area violated the MMPA’s
requirement that the Service assess the ‘total of such taking during each five-year (or
less) period concerned’ and assure it will have no more than ‘a negligible impact’ on
walrus stocks or the species.”61

Plaintiffs assert that because the amount of any

additional mitigation that would be required to ensure that only negligible impact would
occur in connection with walrus use in the HSWUA was unknown when the ITR was
promulgated, the Service did not “make a valid finding for the ‘total of such taking during’
the five-year life of the regulation throughout the ‘specified geographical region.’” 62

59

The Court has reviewed the Northern District of California cases cited by the Plaintiffs and finds
them inapposite. In those cases, the Court found that the National Marine Fisheries Service erred
under the MMPA when it recognized in its regulation that sensitive habitat required exclusion from
sonar use, but left the determination of additional exclusion zones to a later post-rulemaking
process. Here, the Service has delineated the HSWUA area in the ITR and retained the authority
to impose additional mitigation within that area as an “other means of effecting the least
practicable adverse impact” on the Pacific walrus.
60

16 U.S.C. § 1371(5)(A)(i)(1).

61

Docket 47 (Motion) at 31 (quoting 16 U.S.C. § 1371(a)(5)(A)(i)(I) (emphasis in original)).

62

Docket 47 (Motion) at 31–32 (internal citations and quotation marks omitted).

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Plaintiffs argue that the “piecemeal letter of authorization process cannot provide such a
cumulative assessment for the full five-year period.” 63
The Federal Defendants respond that the ITR’s factual finding of negligible impact
was made based “on the best scientific evidence available and a consideration of
numerous factors and specific Congressional direction.”64 They assert that “[b]y retaining
the ability to add mitigation measures, [the Service] can quickly adapt its approach to
account for future unknowns and ensure that the level of activity and potential take is
consistent with its findings.” 65 Accordingly, the Service argues that its ability to add
additional mitigation via an LOA “supports rather than undermines [the Service’s]
negligible impact finding.” 66 Likewise, AOGA maintains that the Service “is not required
to quantify the number of animals to be taken” when making its negligible impact
determination. 67 Plaintiffs reply that the Defendants’ position “hinges on the premise that
the MMPA allows the Secretary to promulgate a take regulation without knowing that the
total take will be negligible, as long as she makes it true later. But it does not. Rather,
the statute requires an up-front finding . . . that total, cumulative take over the course of
the five-year regulation will be negligible.” 68

63

Docket 47 (Motion) at 32.

64

Docket 55 (Federal Opp.) at 33.

65

Docket 55 (Federal Opp.) at 34 (internal quotation marks omitted).

66

Docket 55 (Federal Opp.) at 34.

67

Docket 53 (Intervenor-Defendant’s Opp.) at 34–35.

68

Docket 56 (Reply) at 12–13.

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In effect, Plaintiffs are asserting that the total take must be quantified in the ITR.
But the Ninth Circuit has considered this argument and held that there is nothing “in
Section 101(a)(5)(A) that requires the Service, when promulgating incidental take
regulations, to quantify or estimate the number of mammals that would be taken. In
contrast, Congress expressly required numerical estimates in other provisions of the
MMPA.” 69
IV.

The Challenge to the Service’s Factual Findings
Plaintiffs next challenge two of the central factual findings in the ITR as arbitrary

and capricious under the APA, asserting that these findings lack support in the record.”70
First, Plaintiffs argue that the Service lacked the necessary factual basis for finding
that “the total expected takings of Pacific walruses . . . during Industry exploration
activities will impact small numbers” of walruses. 71 Plaintiffs cite to a portion of the Final
Rule that found that large numbers of walruses could be encountered in the Hanna Shoal
area from July through September and that therefore “additional mitigation measures”
such as seasonal restrictions may be necessary for activities within the HSWUA. 72
Plaintiffs assert that because the Service failed to specify in the Final Rule the precise
mitigation measures necessary for the Hanna Shoal, its “unequivocal finding that ‘no more

69

Ctr. for Bio. Diversity, 695 F.3d at 906. See also Ctr. for Bio. Diversity v. Kempthorne, 588 F.3d
701, 710 (9th Cir. 2009) (“A negligible impact finding is arbitrary and capricious under the MMPA
only if the agency, inter alia, . . . entirely failed to consider an important aspect of the problem . .
. .” (internal citations and quotation marks omitted)).
70

Docket 47 (Motion) at 33.

71

Docket 47 (Motion) at 34 (quoting Final Rule at 35,364).

72

Final Rule at 35,371.

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than small numbers will be taken’ [is] devoid of the needed factual support in the record.”73
The Service responds that it “did not need to know whether additional mitigation will be
required or what that additional mitigation might be in order to make a valid small numbers
finding.” 74 Rather, the Service asserts that through the LOA process, it can assure that
actual industry activities in the HSWUA conform to its small numbers determination. 75
But Plaintiffs reply that “to avoid being rendered arbitrary and capricious, agency factual
findings must be reasoned determinations on the record, not aspirational statements
about future proceedings.” 76
In the ITR, the Service interpreted the term “small numbers” to focus on the
proportion of walruses that would be impacted by the industry activity “both within the
specified geographical region and at the broader population scale.”77 The Ninth Circuit
has expressly upheld this interpretation of the term “small numbers” which “focuses
primarily on the location of the exploration activities in relation to the mammals’ larger
population.” 78
Here, the Service determined, based on scientific surveys in the record, that the
walruses in the Chukchi Sea represent only a portion of the overall Pacific walrus

73

Docket 47 (Motion) at 35 (citing Final Rule at 35,406).

74

Docket 55 (Federal Opp.) at 38.

75

Id.

76

Docket 56 (Reply) at 16 (citing Wild Fish Conservancy v. Salazar, 628 F.3d 513, 521 (9th Cir.
2010)).
77

Final Rule at 35,400.

78

Center for Biological Diversity v. Salazar, 695 F.3d 893, 907 (9th Cir. 2012).

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population. The Service further concluded that the current “active lease area” in which
industry activity might occur represents two percent of the Chukchi Sea, and that in any
given year industry activity will only occur in a portion of that active lease area. 79 And the
Service found that during the open water season in which authorized exploration could
occur, “most walruses in the [eastern Chukchi Sea] migrate out of the region beyond the
scope of Industry activities . . . or relocate to coastal haulouts where they can rest on land
between foraging excursions.” 80 The Service also noted that because of regulatory
coastal buffer zones and lease area exclusions, the Service does “not expect that any
takes will occur at coastal haulouts from Industry activities.” 81
As for offshore walrus activities, the Service stated that it “expect[s] that the density
of walruses in offshore, open water environments, where most exploration activities are
expected to occur, will be relatively low” based on historical walrus movements and
distribution patterns. 82 The Service acknowledges that some coastal walruses make
“long foraging excursions from coastal haulouts” to the Hanna Shoal and that it expects
“the density of walruses in the [Hanna Shoal] could be relatively high compared with other
offshore regions, even during periods of minimal sea ice cover.” 83 But the Service adds:
The timing and movement routes [of the walruses] are not
known, and are likely to vary from year to year. . . . [M]onitoring
requirements and adaptive mitigation measures are expected
79

Final Rule at 35,397.

80

Id. at 35,398.

81

Id.

82

Id.

83

Id. (emphasis added).

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to limit interactions with groups of walruses encountered in
open water habitats. 84
The Service concludes that “in consideration of the habitat characteristics where most
exploration activities are expected to occur (open-water environments) and specific
mitigation measures designed to reduce potential interactions with walruses and other
marine mammals, we expect that interactions will be limited to relatively small numbers
of animals compared to the number of walruses in the specified geographic region as well
as the overall population.” 85
The Court finds that the Service presented a reasoned analysis for its small
numbers determination based on the record before it. It has demonstrated the requisite
“rational connection between the facts found and the choice made.” 86

Plaintiffs’

argument, that the Service per se lacks the factual support necessary to make a small
numbers determination when it did not specify each mitigation measure that it might
require for any industry activity in the Hanna Shoal, is unpersuasive where the Service
has put in place extensive science-based general mitigation measures and seeks to
increase the efficacy of those measures with additional, adaptive measures for Hanna
Shoal on an as-needed basis. Accordingly, the Court finds that the Service’s “small
numbers” determination was not arbitrary and capricious.

84

Id. at 35,399.

85

Id.

86

El Comite Para el Bienestar de Earlimart v. U.S. EPA, 786 F.3d 688, 698 (9th Cir. 2015) (quoting
Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); see
Docket 55 (Federal Opp.) at 33.

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Plaintiffs assert that the Service similarly lacked a basis in the record for its
determination that “[t]he total expected takings of Pacific walruses . . . will have a
negligible impact on th[at] species.”87 “[T]he negligible impact analysis considers the
likely effects of interactions on the mammals’ recruitment and survival.” 88 Here again,
Plaintiffs focus on the ITR’s failure to specify the additional mitigation measures that may
be required within the Hanna Shoal. 89 But similar to its small numbers determination, the
Service carefully set forth the bases of its negligible impact determination in the Final
Rule. 90 And again, based on the overall record, the Service’s adaptive management
approach to the Hanna Shoal does not render its “negligible impact” finding arbitrary and
capricious.
V.

The Service’s Finding of No Significant Impact
Plaintiffs argue that the FONSI finding under NEPA is “unconvincing because the

agency expressly predicated it on the Secretary’s supposed small numbers and negligible
impact findings that the record shows were unwarranted.” 91 Plaintiffs maintain that “the
Service’s failure to prepare an EIS for the incidental take regulation is lawful only if the
agency provided a convincing explanation of how the mitigation measures described in

87

Docket 47 (Motion) at 35 (quoting Final Rule at 35,364).

88

Center for Biological Diversity v. Salazar, 695 F.3d 893, 908 (9th Cir. 2012); see id. (finding
small numbers determination that relied in part on additional mitigation imposed through LOAs
was not arbitrary and capricious).

89

Docket 47 (Motion) at 36.

90

See Final Rule at 35,403–05.

91

Docket 47 (Motion) at 36.

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its EA are sufficient to reduce the impact on walruses foraging in and around the Hanna
Shoal region to a level that will ensure there is no potential for significant effects.” 92
The Service responds that the Council on Environmental Quality (“CEQ”), the
entity responsible for coordinating federal environmental policy and NEPA, has
specifically approved of “mitigated FONSIs.” The Service cites to CEQ’s guidance that
“when such mitigation measures are available and an agency commits to perform or
ensure the performance of them, then these mitigation commitments can be used to
support a FONSI, allowing the agency to conclude the NEPA process and proceed with
its action without preparing an EIS.”93
The Court has concluded, for the reasons discussed above, that the Service’s
small numbers and negligible impact findings were not arbitrary and capricious.
According, the Service could properly rely on those findings in its EA to conclude that “the
effects of the [incidental take regulation] are not significant because it only authorizes
incidental take of small numbers that will have only negligible impacts on trust species
populations.” 94 The Court also finds that the Service met its obligation to describe the
mitigation necessary to meet its finding of no significant impact, because the EA describes
both the general mitigation measures that would be applied throughout the Chukchi Sea

92

Docket 47 (Motion) at 37.

93

Docket 55 (Federal Opp.) at 40 (quoting Final Guidance for Federal Departments and Agencies
on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of
Mitigated Findings of No Significant Impact, 76 Fed. Reg. 3843-01, 3848 (Jan. 21, 2011)).
94

Docket 47-3 (EA) at 71.

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as well as the additional mitigation measures that might be applied to the Hanna Shoal. 95
The Service adequately developed and analyzed its proposed mitigation measures in the
EA “to a reasonable degree” as required by law. 96 And the discretionary nature of the
additional mitigation measures does not render the EA arbitrary, capricious, or in violation
of NEPA. 97 Accordingly, the Court finds that the Service’s issuance of a FONSI was not
in violation of NEPA or the APA.

CONCLUSION
For the reasons stated above, Plaintiffs’ Motion for Summary Judgment at Docket
47 is DENIED and Defendants’ Cross-Motions for Summary Judgment at Docket 53 and
55 are GRANTED. 98
DATED this 2nd day of July, 2015.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

95

ARITR00050405–424.

96

Tillamook Cnty. v. U.S. Army Corps. of Eng’rs, 288 F.3d 1140, 1144 (9th Cir. 2002) (quoting
Wetlands Action Network v. U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1121 (9th Cir.2000)
(abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir.
2011))).
97

See Pac. Coast Fed’n of Fishermen’s Assocs. v. Blank, 693 F.3d 1084, 1103–04 (9th Cir. 2012)
(“The plaintiffs also argue that there is no assurance that adaptive management reserve shares
will be allocated to fishing communities. However, an ‘assurance’ that a particular number of
privileges will go to a particular purpose at a particular time is not only inconsistent with the notion
of “adaptive management,” it is not required by NEPA: ‘a mitigation plan need not be legally
enforceable, funded or even in final form to comply with NEPA's procedural requirements.’”)
(quoting Nat’l Parks & Conservation Ass’n v. U.S. Dep’t of Transp., 222 F.3d 677, 681 n.4 (2000)).

98

The Motions for Judicial Notice at Dockets 54 and 57 are GRANTED and no further briefing
shall be submitted on the motions.

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