947 F. Supp. 2d 1031
D. Alaska2013Background
- Plaintiffs challenge NMFS's issuance of an Incidental Harassment Authorization (IHA) to Apache Alaska for 3D seismic surveys in Cook Inlet, citing MMPA, ESA, and NEPA violations.
- The IHA authorized Level B harassment of up to 30 Cook Inlet belugas per year for three years, with mitigation and monitoring requirements.
- Cook Inlet belugas are a small, isolated, declining population with an ESA-listed status and a designated critical habitat; NMFS previously designated the population as depleted under the MMPA.
- Apache proposed a multi-year seismic program (first-year roughly 160 days of surveying in Area 1) with airguns, thresholds (180 dB for Level A, 160 dB for Level B), and several mitigation measures (safety radii, ramp-up, shutdowns, PSOs, PAM, etc.).
- NMFS's 2012 BiOp and ITS, and the May 2012 final rule, approved the IHA conditioned on these mitigation measures and concluded negligible impact and no unmitigable subsistence impact.
- The district court granted in part and denied in part; it found NMFS erred in calculating take by harboring mathematical errors mixing corrected population abundance with uncorrected density estimates, and ordered further briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NMFS properly analyzed small numbers and negligible impact under the MMPA. | NMFS conflated small numbers with negligible impact and used a contested 10% take as small numbers. | NMFS kept the analyses distinct despite sharing a heading; 10% was a context-specific, reasonable small numbers finding. | Small numbers analysis upheld; confusion acknowledged but not reversible on this issue. |
| Whether NMFS's take calculations were arbitrary and capricious due to density estimates and take thresholds. | NMFS used uncorrected density figures with corrected population, yielding flawed take estimates; 160 dB threshold is outdated. | Take estimates conservative; 160 dB threshold appropriate; density corrections and new data are not determinative for the outcome. | Take calculations arbitrary and capricious due to mixing corrected/uncorrected data; threshold upheld but requires reconsideration of take numbers. |
| Whether NMFS properly complied with NEPA in approving the IHA (EA vs. EIS; hard look and cumulative impacts). | The EA inadequately analyzes cumulative impacts and mitigation; an EIS was required. | No significant environmental impact; EA provides hard look; EIS not required; chosen alternatives and mitigation suffice. | NEPA analysis deemed sufficient; no EIS required at this stage. |
| Whether the BiOp's ESA jeopardy analysis and recovery considerations were adequate. | BiOp failed to analyze recovery prospects and to determine jeopardy baseline; used outdated fish prey data and over-authorized take. | BiOp adequately considers recovery and jeopardy in context; uses best available science and takes a broader view of recovery. | BiOp's jeopardy and recovery analysis deemed adequate; ESA considerations not warranting reversal on this record. |
| Whether the BiOp's best available science considerations (including 160 dB threshold and prey effects) were properly weighed. | Experts criticized 160 dB; Engas cod study shows prey impacts; threshold is outdated. | Agency weighed conflicting data; 160 dB is scientifically reasonable and conservative for Cook Inlet belugas. | Agency’s use of 160 dB threshold affirmed; best available science weighed, with deference to NMFS. |
Key Cases Cited
- CBD v. Salazar, 695 F.3d 917 (9th Cir. 2012) (small numbers vs negligible impact must remain distinct standards)
- Alabama Power Co. v. F.C.C., 773 F.2d 362 (D.C. Cir. 1985) (arbitrary and capricious review of agency calculations with ‘clear error’)
- Natl. Wildlife Fedn. v. NMFS, 524 F.3d 917 (9th Cir. 2008) (jeopardy analysis and context in ESA review; recovery considerations)
- River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) (deference to agency technical judgments within expertise)
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (hard look standard and NEPA considerations)