Center for Biological Diversity v. Ken Salazar
695 F.3d 893
| 9th Cir. | 2012Background
- The Service issued 2008 incidental take regulations under MMPA for small, nonlethal take of polar bears and Pacific walruses in the Chukchi Sea from oil/gas exploration.
- Polar bears were listed as threatened under the ESA in May 2008; the walrus was not listed.
- The regulations require LOAs with activity-specific mitigation, monitoring, and nonlethal take; rule duration through June 11, 2013.
- The Service prepared an EA under NEPA and a Biological Opinion; the BiOp concluded no jeopardy to polar bears.
- Plaintiffs alleged MMPA, ESA, and NEPA violations; the district court granted summary judgment for the Service; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Small numbers vs. negligible impact | Small numbers conflated with negligible impact violates statute. | Agency may interpret small numbers proportionally; separate standards exist. | Distinct standards maintained; proportional interpretation upheld under Chevron. |
| Necessity of numerical take quantified | Must quantify take in absolute numbers. | Numerical estimates not required; proportional analysis acceptable. | Numerical quantification not required; surrogate approach permissible when practicable. |
| ESA Incidental Take Statement adequacy | ITS lacks explicit numerical take limits or surrogate sufficiency. | ITS, with BiOp, provides a surrogate and triggers reinitiation; ESA aims met. | ITS reasonably communicates impact and triggers reinitiation; surrogate acceptable under the record. |
| NEPA adequacy of the EA and alternatives | EA failed to consider reasonable alternatives and large spill impacts. | EA discussed two alternatives; adequate under NEPA; spill analysis scoped to exploration. | EA satisfied NEPA; two alternatives suffice; spill considerations adequately scoped. |
Key Cases Cited
- Arizona Cattle GrowersAss'n v. U.S. Fish & Wildlife Service, 273 F.3d 1229 (9th Cir. 2001) (surrogate take in ITS must be measurable; not vague)
- Allen v. Nat. Resources Def. Council, 476 F.3d 1031 (9th Cir. 2007) (numerical ITS preferred but not always possible; surrogate allowed if explained)
- Evans v. U.S., 279 F. Supp. 2d 1129 (N.D. Cal. 2003) (facial challenge to 1983 regulation; application to plaintiff allowed)
- Kempthorne v. Center for Biological Diversity, 588 F.3d 701 (9th Cir. 2009) (upheld NEPA/ESA/MMPA analyses in Beaufort Sea context)
- Northwest Environmental Advocates v. U.S. Environmental Protection Agency, 537 F.3d 1006 (9th Cir. 2008) (statutory/agency interpretation under NEPA/APA deferential review)
- Native Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233 (9th Cir. 2005) (NEPA alternatives standard for EIS; broader context)