Alaska Wildlife All. v. U.S. Fish & Wildlife Serv.

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ALASKA WILDLIFE ALLIANCE, et al., Plaintiffs, v. U.S. FISH AND WILDLIFE SERVICE et al., Defendants.

No. 3:21-cv-00209-SLG-KFR

United States District Court, D. Alaska

February 6, 2023

REPORT AND RECOMMENDATION RE MOTIONS FOR SUMMARY JUDGMENT

KYLE F. REARDON UNITED STATES MAGISTRATE JUDGE

The Court recommends Plaintiffs' Motion for Summary Judgment at Docket 31 be DENIED. The Court further recommends Defendants' Cross-Motions for Summary Judgment at Dockets 38 and 43 be GRANTED. Plaintiffs argue that Defendant United States Fish and Wildlife Service (“FWS”) unlawfully authorized the incidental take by harassment of Southern Beaufort Sea (“SBS”) polar bears from oil and gas activities in the 2021-2026 Beaufort Sea Incidental Take Regulation (hereinafter “2021 BSITR”) in violation of the Marine Mammal Protection Act (“MMPA”), and failed to conduct the necessary level of analysis under the National Environmental Policy Act (“NEPA”), and the Endangered Species Act (“ESA”). The Court disagrees and finds FWS's 2021 BSITR issued pursuant to the MMPA, and its analysis under NEPA and the ESA, to be to be reasonable and supported by relevant evidence and precedent. The Court finds FWS's actions in this case not to be arbitrary and capricious.

I. Background^[1]

a. Factual Background

The SBS polar bear population faces a threat to their existence due to climate change, native subsistence harvest, scientific research, industrial activities, including oil and gas development, defense of life, shipping, and placement of orphaned cubs.^[2] In 2008, FWS listed SBS polar bears as a threatened species under the ESA and published protective measures that apply to the stock.^[3] In 2011, FWS designated critical habitat under the Endangered Species Act (“ESA”) for polar bears in Alaska, which included barrier island habitat, sea-ice habitat, and terrestrial denning habitat.^[4] The SBS stock currently consists of about 907 bears and has remained largely stable since 2006.^[5]

FWS first issued regulations in 1993 authorizing the incidental take of walruses and polar bears in connection with oil and gas exploratory activities in the Beaufort Sea region for a period of five years.^[6] FWS issued an additional six Incidental Take Regulations (“ITR/ITRs”) for the Beaufort Sea.^[7] The 2016 Beaufort Sea ITR was for a period of five years and expired on August 5, 2021.^[8]

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In December 2019, FWS received a request from the Alaska Oil and Gas Association (“AOGA”) to promulgate an ITR under the MMPA to regulate the nonlethal and unintentional take by harassment of small numbers of walruses and polar bears incidental to oil and gas industry activities in the Southern Beaufort Sea.^[9] In order to issue an ITR, an applicant must submit a request to FWS that conforms with eight specific MMPA requirements.^[10] FWS reviews the request to determine if it is adequate and complete. If it is incomplete FWS notifies and works with the applicant until it is complete. At that point, FWS makes its preliminary determinations, initiates NEPA and the ESA processes, prepares the proposed rule, and publishes notice of it in the Federal Register for a 30-60-day public comment period. After the close of the comment period, FWS reviews and addresses public comments, finalizes ESA and NEPA compliance, makes final determinations, and prepares the final rule. FWS then publishes the final ITR in the Federal Register, and it generally becomes effective after 30 days.^[11]

AOGA submitted its complete request in March 2021.^[12] On June 1, 2021, FWS published its proposed ITR along with a draft Environmental Assessment.^[13] After expiration of the 30-day comment period, FWS issued the final 2021 BSITR and EA governing the non-lethal, incidental take of polar bears and Pacific walruses from oil and gas activities in the Beaufort Sea nearshore areas of Alaska's North Slope on August 5, 2021.^[14] Pursuant to its authority under the Administrative Procedures Act (“APA”), FWS found good cause for immediate promulgation of the ITR. The ITR remains effective through August 5, 2026.

FWS determined that no more than 443 individual SBS polar bears would be taken during the five-year 2021 BSITR.^[15] Dividing this total number over the five-year ITR term, FWS concluded that up to 92 polar bears would be taken yearly by Level B harassment, which, by FWS's calculation represented roughly 10% of the estimated population of 907 polar bears in the SBS stock.^[16] FWS concluded that this volume would impact no more than “small numbers” of the SBS polar bear stock.^[17]

FWS anticipated only Level B harassment would occur in its small numbers determination, and that that level of harassment would have a negligible impact on the health, reproduction, or survival of SBS polar bears.^[18] In assessing the amount of Level A take anticipated, FWS broke down Level A harassment into two categories: “serious,” meaning impacts likely to result in mortality, and “non-serious,” meaning take resulting from encounters that might cause early den departure but would not likely to result in mortality, and concluded that no Level A take was likely.^[19]

FWS also considered the means of effecting least practicable adverse impacts (“LPAI”) on the SBS polar bears, and implemented a number of measure designed to disturbances to polar bear denning sites.^[20] FWS also completed an EA assessing the impacts under NEPA of the 2021BSITR. Finally, FWS consulted on the impacts of the 2021 BSITR pursuant to the ESA and completed a Biological Opinion (“BiOp”) that determined that the proposed activities would only have a negligible effect on the SBS polar bear stock, and was not likely to affect polar bear critical habitat.^[21]

b. Procedural Background

On September 16, 2021, Plaintiffs^[22] filed suit against FWS, the United States Department of Interior, and Shannon Estenoz and Debra Haaland in their official capacities (collectively “Federal Defendants”) alleging that the five-year 2021 BSITR, the accompanying Biological Opinion (“BiOp”), and the EA failed to comply with the MMPA, ESA, and NEPA.^[23] Plaintiffs properly served Defendants.^[24] Alaska Oil and Gas Association and the State of Alaska intervened as co-defendants.^[25] Defendants answered the complaint.^[26]

Plaintiffs seek declaratory and injunctive relief against Defendants for their decision to issue a five-year 2021 BSITR under the MMPA approving the AOGA petition to take SBS polar bears and Pacific walrus in the Beaufort Sea and adjacent northern coast of Alaska (North Slope). Plaintiffs argue these animals are protected from “take” by the MMPA,^[27] and polar bears are protected under the ESA as a threatened species.^[28] Plaintiffs seek review under the Administrative Procedure Act (“APA”).

On April 20, 2022, Plaintiffs filed a Motion for Summary Judgment.^[29]Defendants responded in opposition asserting a cross-motion for summary judgment,^[30] and Plaintiffs replied.^[31] Defendants argue that the 2021 BSITR complies with the MMPA, NEPA, and ESA. Defendants ask the Court to uphold the 2021 BSITR, and grant summary judgment in Defendants' favor.^[32]

The parties did not request oral argument. The Court deems the issues sufficiently briefed and oral argument is not necessary.^[33]

II. Jurisdiction

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which confers jurisdiction on federal courts to review an agency action.^[34] An aggrieved party may seek review of an agency action in District Court pursuant to the APA.^[35]

III. Legal Standard

The APA governs a court's review of an agency's compliance with the MMPA, NEPA, and ESA.^[36] A reviewing court can set aside an agency's decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”^[37] “Whether agency action is ‘not in accordance with law' is a question of statutory interpretation, rather than an assessment of reasonableness in the instant case.”^[38]

The Court follows the deferential two-step inquiry set out in Chevron U.S.A. v. Natural Resources Defense Council, Inc., in reviewing an agency's interpretation and application of statutes for which it is responsible.^[39] 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.”^[40] 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.”^[41]

A court cannot substitute its judgment for that of the administrative agency, therefore its review should be “searching and careful,” but “narrow.”^[42] [D]eference to the agency's decisions is especially warranted when “reviewing the agency's technical analysis and judgments, based on an evaluation of complex scientific data within the agency's technical expertise.”^[43] “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 choice made.”^[44] Courts may reverse an agency's decision only if the agency depended on factors that Congress “did not intend it to consider, entirely failed to consider an important aspect of the problem, 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.”^[45]

If an agency changes its policy, it is “obligated to supply a reasoned analysis for the change.”^[46] An agency change in position is...