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Court concurs with most of Cook Inlet best interest finding Beluga issue remanded to DNR; state told to develop its own studies, analysis, before any of 126 withdrawn tracts offered for leasing Kristen Nelson PNA News Editor
The Department of Natural Resources Cook Inlet final best interest finding and consistency determination have been affirmed on appeal except for beluga whale issues, which have been remanded for further study by DNR.
Superior Court Judge Sigurd Murphy, in a July 28 decision, said the final best interest finding “adequately examined the cumulative effects on wildlife and fish habitat and populations in the lease sale area, properly assessed the likely transportation methods and relative risks of each method and adequately assessed the risks of oil spills in the lease area.”
DNR’s Alaska Coastal Management Plan “consistency determination was not unreasonable or arbitrary in its conclusion that generation of revenue and enhancement of economic opportunity remain significant public need, that there is no feasible alternative for the same, and feasible and prudent steps to maximize conformance with habitat standards will be taken.” The court also held that DNR did conduct an independent “hard look” at the Kenai Borough Coastal Management Plan standards “and correctly determined that the sale is consistent with the same.”
The judge affirmed DNR’s work, “exclusive of the Cook Inlet beluga whale population issues…” which were remanded “to DNR to take whatever steps are reasonable and necessary, to include developing their own study and analysis, gathering facts from all sources, and to abide by the requirements of the law for a hard look at the issue before offering any of the subject 126 tracts.” The 126 tracts are those withdrawn by the court in 1999 and earlier this year.
“My staff worked intensively with the National Marine Fisheries Service to develop measures that would both protect the belugas and allow oil and gas development,” said DNR Commissioner John Shively in May when he announced withdrawal of the tracts from the Cook Inlet areawide sales.
“The measures were acceptable to NMFS. Nonetheless, as a result of litigation, our ability to offer these tracts has been stayed pending a final decision in the case.” Hunters, industry singled out “So far only Native hunters and the oil and gas industry have been singled out, which is unfair and without scientific justification,” Shively said in May. “It creates the false impression that curtailing these two activities will protect the whales.”
Shively said the Cook Inlet Regional Citizens Advisory Council industry monitoring programs from 1993 through 1997 and other recent studies by the U.S. Environmental Protection Agency and the U.S. Minerals Management Service have found no evidence of contamination from oil industry activities in Cook Inlet.
DNR proposed protective measures, agreed to by the National Marine Fisheries Service, which would have required the director of the Division of Oil and Gas to consider recent information on belugas and to consult with NMFS before allowing drilling or development on offshore portion of tracts important to belugas. Boyd defends best interest finding Director of the Division of Oil and Gas Ken Boyd said at the state’s 2000 areawide Cook Inlet oil and gas lease sale Aug. 16 that the division did not do a poor job on belugas in its best interest finding, but consulted with NMFS.
“We are not an agency that goes out and does individual studies,” Boyd said. “We are not biologists. We are certainly not marine biologists and we certainly have not studied marine mammals.” Marine mammals, he said, are under the auspices of NMFS, and he said the division “worked very closely with NMFS to develop some mitigation measures that would protect the beluga whale habitat.” And, he said, the division had an agreement with NMFS.
“But the judge said no. That you have to go out and study the whales yourself. Independently. And I don’t know how we’re going to do that, quite frankly.” Boyd said he intends to suggest to Commissioner Shively that DNR ask for a capital budget project and outsource a study to fulfill the judge’s wishes.
Boyd said he believes DNR produced a good best interest finding. “We compile the information from many sources. I’m proud of our best interest finding. I think it’s come a long way in the last few years. It’s a good document. I think it’s a useful document. And I think the fact that we’ve worked with NMFS to solve a problem and then are criticized for the fact that we should have studied the whales independently is not right.”
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