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January 2016

Vol. 21, No. 2 Week of January 10, 2016

Court says incidental take appeal moot

9th Circuit judges dismiss appeal against Fish and Wildlife Chukchi Sea walrus regulations because no exploration planned in region

ALAN BAILEY

Petroleum News

The U.S. Court of Appeals for the 9th Circuit has dismissed as moot an appeal against U.S. Fish and Wildlife regulations governing the authorization of the unintended minor disturbance of walruses in the Chukchi Sea during offshore oil and gas exploration. A group of six environmental organizations had launched the appeal against the regulations, which Fish and Wildlife introduced in 2013. The Alaska Oil and Gas Association, representing a number of companies in the Alaska oil industry, had intervened in the appeal, in support of Fish and Wildlife.

In July the federal District Court in Alaska rejected the appeal, which was subsequently elevated to the 9th Circuit Court. A panel of three 9th Circuit judges has found the appeal to be moot, given the facts that Shell has discontinued its Chukchi Sea oil exploration and that no other companies anticipate exploring in the region in the foreseeable future.

“The threat of harm on which the foundation of this action rests, the USFWS-countenanced disturbance of walruses by oil and gas firms, has melted away like so much Chukchi ice,” the judges wrote in a Dec. 31 court order.

The judges also pointed out that the disputed regulations expire on June 12, 2018, and that there are no impending applications for oil and gas exploration activities in the region to which the regulations apply.

Hanna Shoal

At issue in the appeal was a provision within the regulations that distinguishes the Hanna Shoal region of the Chukchi, a region commonly used by foraging walruses. Under the regulations, Fish and Wildlife reserves the right to specify some mitigation measures for this region on a case-by-case basis, based on a determination of how a specific activity may impact the walruses.

The environmental organizations claimed that, by not spelling out all mitigation measures up front and by not, therefore, subjecting these measures to public review, Fish and Wildlife was infringing the Marine Mammal Protection Act, the National Environmental Policy Act and the Administrative Procedures Act. Moreover, by leaving uncertainty in what mitigation measures might be applied in any particular instance, Fish and Wildlife could not substantiate its claim that the regulations would ensure a negligible impact of industry activities on walruses during the five-year period that the regulations would be in place, the plaintiffs in the appeal argued.

In dismissing the appeal in July, District Court Judge Sharon Gleason said that Fish and Wildlife had acted appropriately, within the law, in issuing the Chukchi Sea regulations.

The 9th Circuit judges now say that, with the only firm in a position to operate in or near the Hanna Shoal region having withdrawn from Chukchi Sea exploration and no firm appearing poised to take its case, the case is “no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.”

“Offshore oil exploration in the Arctic is a daunting, costly activity that is not economically feasible when, as now, the price of oil has plummeted to new lows,” the judges wrote.






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