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Federal judge tosses incidental take appeal Says Fish & Wildlife regulations for Chukchi Sea oil exploration are legal under federal statutes for protecting marine mammals ALAN BAILEY Petroleum News
Federal District Court Judge Sharon Gleason has rejected 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.
The regulations at issue are those under which Fish and Wildlife recently issued a letter of authorization to Shell for the minor disturbance of walrus and polar bears during the company’s Chukchi Sea drilling program. Essentially, the agency can issue a letter of authorization for an activity, provided that the activity complies with the regulations.
At issue in the appeal is 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.
Arguments rejected In a July 2 ruling Judge Gleason tossed out all of the plaintiffs arguments, saying that the terms of the Marine Mammal Protection Act can be interpreted as allowing an agency to impose specific mitigation measures additional to those spelled out in advance by regulation. Moreover, under a precedent set in a 9th Circuit Court of Appeals case, the development of incidental take regulations does not require an estimation of the number of animal “takes” that might result from implementation of the regulations, instead requiring a finding that the cumulative impact of the regulations would be negligible, Gleason wrote.
Fish and Wildlife has presented a reasoned analysis for its determination that only a small portion of the walrus population would be impacted by activities conducted under the terms of the incidental take regulations, Gleason wrote.
The court has concluded that Fish and Wildlife’s determination of negligible impacts on the walrus population was not “arbitrary and capricious,” and that the agency met its obligation to impose mitigation measures to ensure no significant impact on the animals, both through general measures spelled out in the regulations and through a commitment to apply additional measures as necessary in the Hanna Shoal region, Gleason wrote.
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