Court finds determination on tug noise arbitrary and capricious
In a March 30 decision U.S. District Judge Sharon L. Gleason upheld the National Marine Fisheries Service mitigation and monitoring measures for seismic surveying in Cook Inlet but found arbitrary and capricious the agency’s determination that noise from tugs towing a drilling rig would not cause take or harassment of Cook Inlet beluga whales.
Gleason granted a request from defendants for supplemental briefing on an appropriate remedy with briefs due from each party within 14 days of the March 30 order and responses to the other parties’ proposed remedies with seven days after that.
Plaintiffs Cook Inletkeeper and the Center for Biological Diversity challenged NMFS’ incidental take regulations authorizing Hilcorp Alaska to conduct oil and gas exploration and production activities in Cook Inlet from 2019 to 2024. Defendants are the U.S. Secretary of Commerce and the National Marine Fisheries Service. Hilcorp Alaska and the State of Alaska are intervenors in the case.
Hilcorp’s applicationIn background Gleason said NMFS received an application from Hilcorp in 2018 for authorization under the Marine Mammal Protection Act to take marine mammals by harassment caused by noise generated by oil and gas activities, including 2D seismic exploration throughout Cook Inlet and drilling of exploration and development wells from a rig to be transported by tugboats - activities that would produce significant underwater noise. She said the company planned two to four exploration wells in lower Cook Inlet and one to two exploration wells in the Trading Bay area, with the rig towed to drilling sites by up to three ocean-going tugs. The company also planned to plug and abandon a discovery well in the North Cook Inlet unit, also requiring up to three ocean-going tugs to tow a jack-up rig.
Gleason said the Marine Mammal Protection Act “places a moratorium on the ‘take’ of marine mammals, including by harassment, however, it also directs the Secretary of Commerce to authorize takes of ‘small numbers’ of marine mammals incidental to specified activities for up to five-year periods, provided that the Secretary finds that the takes will have a ‘negligible impact’ on the species and prescribes regulations ‘effecting the least practicable adverse impact’ on the species, along with monitoring and reporting requirements.”
NMFS granted Hilcorp’s request in July 2019, estimating that with mitigation and monitoring measures the activities would harass some 31 beluga whales each year. The incidental take regulations authorized the taking by harassment of up to 35 Cook Inlet beluga whales a year.
“NMFS’s take estimate did not include any take resulting from tug operations,” Gleason said.
NMFS prepared a biological opinion under the Endangered Species Act which determined the activities would not jeopardize the existence of any endangered marine mammal or destroy or adversely modify any critical habitat and an environmental assessment under the National Environmental Policy Act which determined the activities would not significantly impact the quality of the human environment.
Issues in suitPlaintiffs sued the federal defendants in September 2019, Gleason said, “alleging violations of the MMPA, ESA, National Environmental Policy Act … and the Administrative Procedure Act.” Hilcorp moved to intervene that same month; the State of Alaska moved to intervene in November 2019.
One issue raised by plaintiffs was an objection to the annualized approach taken by NMFS in making its determination on the numbers of beluga whales which might be harassed. Gleason said plaintiffs did not raise the issue with methodology with the agency and could not raise the objection for the first time before the court.
What the court did consider was objections to consideration of tug vessel noise by NMFS. The court considered those claims on the merits.
Plaintiffs content, Gleason said, that NMFS “disregarded take caused by tugs towing the drill rig and other vessel noise” in determining that take is not likely from that cause.
“The Court finds that NMFS failed to provide a reasoned explanation or identify adequate support in the record for its determination that tug noise from Hilcorp’s activities would not take beluga whales,” Gleason said.
“On remand, NMFS should consider whether any additional mitigation measures for tugs towing the drill rig are necessary to comport with the MMPA’s lease practicable adverse impact requirement,” she said.
Gleason also ruled that the biological opinion “failed to adequately consider the potential effects of tugboat noise on Cook Inlet beluga whales,” and said, “on remand NMFS should include any such effects in considering the cumulative effects of the action.”
She also found that the environmental assessment “failed to take the requisite hard look at the effects of Hilcorp’s tugs towing the drill rig on Cool Inlet beluga whales.”
“On remand, NMFS should consider the cumulative effects of Hilcorp’s tug operations in the contest of past, present, and future activities in Cook Inlet,” Gleason said.
She granted in part and denied in part plaintiff’s motion for summary judgment, upheld the NMFS’s mitigation and monitoring measures for seismic surveying but found “the agency’s determination that noise from Hilcorp’s tugs towing the drill rig would not cause any take by harassment of Cook Inlet beluga whales is arbitrary and capricious” and said NMFS “relied on this erroneous determination in its issuance of the Incidental Take Regulations, the Biological Opinion, and the Environmental Assessment.”
- KRISTEN NELSON