Native Village v. National Marine Fisheries Service
Native Village v. National Marine Fisheries Service
Opinion of the Court
ORDER RE MOTION FOR SUMMARY JUDGMENT
This action was initiated in May 2012 by the Native Village of Chickaloon, the Natural Resources Defense Council, the Center for Biological Diversity, and the Center for Water Advocacy and challenges the National Marine Fisheries Service’s (“NMFS”) issuance of an “Incidental Harassment Authorization” that allowed Apache Alaska Corporation to conduct
Several parties joined this action as in-tervenors in support of NMFS, including the American Petroleum Institute and International Association of Geophysical Contractors (collectively “API”), Apache, and the State of Alaska (“State”).
Before the Court is a Motion for Summary Judgment filed by Plaintiffs on October 1, 2012.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Cook Inlet.
Cook Inlet is a semi-enclosed tidal estuary located in Southcentral Alaska that is approximately 370 km long and 48 km wide. The inlet is a shallow body of water with its deepest areas near the mouth of the inlet. The three primary rivers that flow into the inlet are the Knik, Matanus-ka, and Susitna rivers. The semidiurnal tides and currents in the inlet are some of the most extreme in the world. During the winter, ice forms over much of the upper inlet, although the inlet rarely freezes over completely because of the extreme tides. This ice usually leaves the inlet by April, but sometimes lasts until May.
Cook Inlet is one of the most industrialized and urbanized regions of Alaska. High artificial noise levels in the inlet are caused by vessels; air traffic; construction equipment; and activities such as pile driving, oil and gas development, coastal development, dredging and filling. Natural sound sources in the inlet include earthquakes; tidal currents; substrate movement from tides, wind, and ice; and sounds from some animal species.
Cook Inlet supports a wide variety of marine wildlife ' and mammals.
There are five stocks of beluga whales in Alaska.
Although there were no systematic surveys or population estimates performed on the Cook Inlet beluga whale species before 1994, it is believed they numbered in the low thousands at that time.
Beginning in 1994, NMFS began annual comprehensive, systematic aerial surveys to document the population of Cook Inlet beluga whales. These surveys documented a population decline of nearly 50 percent between 1994 and 1998, from approximately 653 to 347 whales.
In 1999, NMFS received petitions to list the Cook Inlet beluga whale stock as an endangered species, but the agency rejected the requests as it determined the species’ decline was due to overharvest by Alaska Native subsistence hunters.
In 2006, NMFS received another petition to list the Cook Inlet beluga whale
III. The Apache Project and Request for 2012-2013 IHA.
Apache Alaska submitted its application for an IHA to NMFS on June 15, 2011.
“Take” is defined slightly differently by the MMPA and the ESA, but in broad terms means to disturb or attempt to disturb a marine mammal by conduct ranging from incidental harassment to killing.
Apache’s application indicated that it had acquired over 300,000 acres of oil and gas leases in Cook Inlet in 2010 and “proposed to conduct a phased 3D seismic survey program throughout Cook Inlet over the course of the next three to five years.”
Seismic surveys use high-energy, low-frequency sound in short pulse durations to determine substrates below the sea
During those portions of each day when the full array of airguns would not be conducting seismic surveying, a mitigation gun would typically be in continuous operation so as to deter marine mammals from approaching the vessels.
Apache proposed using thresholds of 180 dB for Level A (injury) harassment and 160 dB for Level B (disturbance) harassment for the beluga whales, and indicated it relied on NMFS for those threshold levels. Apache explained that “[s]ince 1997, NMFS has been using [these] generic sound exposure thresholds to determine when an activity in the ocean that produces sound might result in impacts to a marine mammal such that a take by harassment might occur.”
Apache’s IHA application included information about the hearing ability of beluga whales: “Although they are known to hear a wide range of frequencies, their greatest sensitivity is around 10 to 100 kHz, well above sounds produced by most industrial activities ... recorded in Cook Inlet.”
To estimate the number of marine mammals that could be disturbed by its seismic surveying, Apache determined the area that would be ensonified to 160 dB and the estimated density of marine mammals within that area.
To calculate the estimated number of “takes” by harassment of beluga whales, Apache “multiplied] the expection densities ... by the anticipated areas ensonified by levels [greater than or equal to] 160 dB ... by the number of expected days that will be surveyed seismically in Area 1.”
Away from river mouths: 4.7 2.4
Near river mouths: 41.0 16.3
From these estimates, Apache requested authorization from NMFS to “take” by harassment up to 30 beluga whales during its first year of seismic surveying. Noting its request was less than the maximum take it had estimated might occur at river mouths, Apache indicated it “will implement a rigorous monitoring program when conducting seismic operations near river mouths during periods of high potential for encountering beluga whales,” and further “commits to shutting down air guns when beluga whales are observed to be approaching the 160 dB threshold to minimize and avoid takes of beluga whales to the greatest extent possible.”
Apache’s application also addressed the effect of its planned operations on the subsistence use of the beluga whale. It concluded “[t]he project should [not] have any effect because no beluga harvest will take place in 2011 or 2012[.]”
Apache’s proposed mitigation measures included establishing safety radii; monitoring; and power down, shut down, and ramp up procedures.
180 dB 160 dB
2400 in3 airgun (nearshore) 1.42 km 6.41 km
2400 in3 airgun (offshore) .98 km 4.89 km
If whales approach the safety radii, Apache proposed to power down or shut down its operations.
Ramp up procedures would be utilized “at the start of air gun operations, including a power down, shut down, and after any period greater than 10 minutes in duration without air gun operations[.]” During ramp up, the number of guns operating is gradually increased. Ramp up would not be used at the start of each 2.5
Apache’s application proposed monitoring measures including visual boat-based monitoring. Two protected species observers (“PSOs”) would be present on each of the two source vessels and two PSOs would be present on one support vessel, and “would normally be on duty in shifts no longer than 4 hours with 2 hour minimum breaks to avoid observation fatigue.” During daytime operations, these six PSOs would watch to determine whether marine mammals “are about to enter or are sighted within designated safety zones.” They “will scan the area around the vessel systematically with reticle binoculars ... and with the naked eye.
Apache indicated that “[s]eismic operations will not be initiated or continue when adequate observation of the designated safety zone is not possible due to environmental conditions such as high sea state, fog, ice and low light.”
Apache also proposed to use a shore based monitoring station “when possible.”
Apache also proposed to use two passive acoustic monitoring (“PAM”) systems attached to surface buoys on anchored moorings. These recorders would send real-time acoustic data to PAM operators aboard the support vessels. These surface buoys are not deployable when ice is present. When the buoys are deployed, “[d]e-teetion ranges for beluga whales are nominally a maximum of 2 km for whistles and 500 m for clicks, although much greater ranges for whistle detections have been achieved [.]”
Apache’s application acknowledged that acoustic monitoring has limitations for detecting marine mammals because “it requires that the animals produce sounds ... [and] it requires those sounds to be of sufficient amplitude to be detected at the
Based on the foregoing, Apache’s application sought the issuance of an IHA from NMFS to permit the take by harassment of up to 30 beluga whales incidental to its first year of seismic survey operations in Cook Inlet.
IV. Agency Actions.
On September 21, 2011, NMFS issued a Federal Register Notice regarding Apache’s application with a request for comments.
On October 27, 2011, the Marine Mammal Commission (“MMC”) provided its recommendations to NMFS.
Several comments were submitted by environmental non-government organizations, which are substantially similar to the
On February 17, 2012, NMFS’ Alaska Region issued a Biological Opinion (“BiOp”) which set out the agency’s opinion on the effects of Apache’s proposed seismic surveying on endangered species.
In April 2012, NMFS issued an Environmental Assessment (“EA”) and a Finding of No Significant Impact (“FONSI”), rendering preparation of an Environmental Impact Statement (“EIS”) unnecessary.
On April 30, 2012, NMFS issued the IHA to Apache, which was “valid from April 30, 2012 through April 30, 2013.”
On May 11, 2012, NMFS published a final rule in the Federal Register regarding the issuance of the IHA.
On May 21, 2012, an amended BiOp was issued that made minor changes to the February opinion.
DISCUSSION
I. Jurisdiction.
A. Subject Matter Jurisdiction.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702
B. Standing.
In its opposition, Apache challenges Plaintiffs’ standing to bring this case.
[W]e held that, to satisfy Article Ill’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.101
The Supreme Court has held that the requisite “injury in fact” need not be economic harm, but may also reflect “aesthetic, con-servational, and recreational as well as economic values.”
Apache argues that although Plaintiffs have submitted the declarations of various individuals establishing their attachment to Cook Inlet or the Cook Inlet beluga whale population, Plaintiffs do not have injury-based standing because they have not demonstrated that the issuance of the IHA or Apache’s activities conducted pursuant to the IHA have harmed any beluga whales or any of the Plaintiffs. Apache asserts that its first year of seismic testing has concluded and resulted in “no instance of harassment of any Beluga or other type of whale.”
Plaintiffs refute Apache’s arguments, emphasizing that those arguments assume “that Apache’s visual and passive acoustic monitoring plan can detect any marine mammal that enters the survey’s vast harassment zone—a point that has no basis in the record or the scientific literature.”
Apache’s September 2012 monthly report indicates that 25 beluga whales were visually observed from Apache’s vessel or land based stations during that month’s monitoring effort.
II. Standard of Review.
The sufficiency of NMFS’ analysis included in the IHA, BiOp, and EA is reviewed pursuant to the Administrative Procedure Act (“APA”).
[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’114
Agency decisions are arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”
A reviewing court may not “supply a reasoned basis for the agency’s action that the agency itself has not given,” but it shall “uphold a decision of less than ideal clarity if the agency’s path may be reasonably discerned.”
III. Claim 1: Violation of the Marine Mammal Protection Act.
Congress enacted the MMPA in 1972 based on its finding that “marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic[.]” The MMPA’s stated purpose is “that [marine mammals] should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem.”
The MMPA contains a number of exceptions to the moratorium.
(1) the harassment “will have a negligible impact” on such species or stock; and
(2) the harassment “will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses[.]123
Plaintiffs assert that NMFS has violated the MMPA in four respects: (1) arbitrarily and capriciously concluding that the Apache project will take only “small numbers” of beluga whales; (2) erroneously calculating the estimated marine mammal take; (3) failing to ensure the least practicable adverse impact on beluga whales; and (4) failing to ensure no unmitigable adverse impact on subsistence use.
A. Small Numbers.
The MMPA directs the agency to authorize the incidental taking of “small numbers” of marine mammals. A separate part of the statute requires the agency to authorize such a taking if it finds that the taking “will have a negligible impact on such species or stock[.]”
(1) Small Numbers and Negligible Impact Analyses.
Plaintiffs assert that “NMFS failed to differentiate its cursory ‘small numbers’ analysis from its ‘negligible impact’ analysis and in doing so failed to explain how it reached its conclusion regarding small numbers.”
NMFS responds that even though small numbers and ■ negligible impact are discussed under the same heading in the final rule, it “did not conflate its small numbers and negligible impact analyses ... [but rather] performed its standard [small numbers] analysis, which is to examine the amount of take allowed for each species relative to each species’ or stock’s total population size.”
In CBD, the Ninth Circuit held that “to effectuate Congress’ intent, ‘small numbers’ and ‘negligible impact’ must be defined so that each term has a separate meaning.”
In this case, in its small numbers determination, NMFS considered the percentage of the population affected.
In its negligible impact determination, NMFS looked at the expected impact on animal behavior, whether crucial habitat would be affected, and the duration of any anticipated harassment.
As was the case in CBD, NMFS could have done a better job in this case of keeping these two standards more distinct in the final rule, including the use of separate headings for each topic. But although discussed under the same heading in the final rule, this Court concludes that the agency kept the two standards sufficiently distinct and adequately analyzed “small numbers” as a distinct, separate standard from the negligible impact standard.
(2) Quantification of Small Numbers.
Plaintiffs also maintain the agency improperly based its “small numbers find
Plaintiffs also fault NMFS’ small numbers determination for failing to consider the conservation status of the beluga whales.
More fundamentally, Plaintiffs contend that NMFS’ small numbers analysis is deficient because the agency “failed to demonstrate, with support from the record, that 10% take of this highly endangered, isolated, declining population or marine mammals constitutes ‘small numbers.’ ”
Here, Plaintiffs assert that the agency failed to articulate any rational basis for its determination that 10% of the beluga whale population constitutes a small number.
Mathematically speaking, 10% represents a relatively limited or small portion of 100%. And the agency presented a rational, albeit sparse, basis for its determination that 10% of the Cook Inlet beluga whale population constitutes “small numbers” of that total whale population. It looked at the nature of the activity in determining that 10% of the beluga whale population constituted small numbers, indicating that it had considered that the takes “were expected to be limited to short-term Level B harassment.”
B. Take Estimations.
Plaintiffs assert “NMFS made two fundamental errors in calculating the amount of ‘take’ Apache’s airgun surveys will cause” by using “erroneous density estimates and a scientifically invalid take threshold.”
(1) Density Estimations.
Plaintiffs first maintain that NMFS adopted Apache’s density estimates derived from ten years of Cook Inlet aerial surveys, and that “Apache mistakenly used the survey’s raw, ‘uncorrected’ numbers— numbers that do not account for whales that are swimming beneath the surface or are missed through human error.”
NMFS responds that Plaintiffs’ argument is flawed for two reasons: (1) Plaintiffs failed to raise the issue in their comments to NMFS on the IHA application, thereby waiving it on appeal; and (2) even if the beluga whale densities are incorrect, Apache’s monitoring efforts will ensure that take is limited to the 30 whales authorized and the “authorized take of 30 beluga whales is conservative and reasonable.”
On the waiver issue, NMFS asserts that the IHA application, which was “publicly noticed and available, included beluga density calculations that expressly relied upon the aerial survey data that Plaintiffs argue were not adjusted” and thus, their failure to comment means the argument is forfeited.
Plaintiffs argue that the numbers from NMFS’ aerial surveys must be corrected to “account for missed whales” because the “distinct environment of Cook Inlet renders beluga whales basically invisible when they are underwater” and “juveniles with their gray coats are ‘harder to detect.’ ”
NMFS maintains that “Apache’s take estimates are conservative overall and supported by the record.” Specifically, NMFS asserts that (1) the “take estimates do not take into account the full effect of the required protective measures;” (2) “the estimates assume that belugas appear in mid-inlet with the same density as in the upper Inlet, when in fact far fewer whales are present in mid-inlet during survey operations;” (3) “Apache overestimated surveying days near river mouths;” and (4) the “take estimates ... use Apache’s largest airgun array, when nearshore areas will be surveyed with a smaller airgun.” NMFS also notes that Apache used the maximum whales counted to calculate densities near river mouths, where most takes are expected to occur such that application of correction factors is unnecessary.
NMFS has conducted aerial surveys of the beluga whales in Cook Inlet since 1994.
In the final rule, NMFS determined the “population abundance” at 284 whales, using an abundance estimate that had been corrected through an upward adjustment the number of whales from the aerial survey to determine the estimated population.
NMFS asserts that any inaccuracies in the density estimates are immaterial because the agency has authorized a take of no more than 30 beluga whales and has required “ ‘real-time’ monitoring to insure that this authorized take amount is not exceeded.”
Significant mathematical errors can render an agency decision arbitrary and capricious. In Alabama Power Co. v. F.C.C., the D.C. Circuit “judge[d] the validity of the order by examining whether the [agency] in fact calculated that which it sought to calculate^]”
Here, NMFS’ take calculations are clearly erroneous because they inexplicably mix corrected population abundance figures with uncorrected survey density estimates, thereby failing to adequately calculate that which the agency was actually trying to calculate—the number and percentage of the beluga whale population
(2) Take Threshold.
Plaintiffs also challenge NMFS’ use of a take threshold of 160 decibels, asserting that the threshold is “no longer scientifically valid.”
Plaintiffs refer to Dr. Manolo Castellote, a bioacoustician at NMFS, who corn-
NMFS contends that the 160 dB level threshold is reasonable, supported by the record, and entitled to deference.
NMFS disputes the scientific evidence offered by Plaintiffs to justify a lower threshold. The agency notes that one study, Miller et al., analyzed beluga whales living in the Beaufort, Sea, which is a “less industrialized and sparsely populated area that is not subject to regular vessel traffic” so those whales “are not as experienced with the types and variety of sound sources as the belugas are in Cook Inlet.”
Plaintiffs recognize that while “an agency may use discretion in assessing the scientific evidence and in relying on its own experts, ‘courts must independently review the record in order to satisfy themselves that the agency has made a reasoned decision based on its evaluation of the evidence.’ ”
C. Least Practicable Impact.
An IHA must include “permissible methods of taking by harassment pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat[.]”
Plaintiffs assert that NMFS improperly ruled out “important time-area restrictions” and failed to properly consider the “specific habitat that might be restricted during the project’s first year.”
Plaintiffs next contend that the one time-area closure that NMFS prescribed near the Beluga River was inadequate because it only applied from mid-April to mid-October. Plaintiffs maintain evidence in the record indicated that area was important for foraging beginning in mid-February.
Plaintiffs also assert that additional time-area restrictions should have been imposed in areas in the upper Cook Inlet. NMFS responds that it did consider additional time-area restrictions, but concluded in the final rule that they were unnecessary as “the timing and location of the seismic survey, as proposed, will avoid areas and seasons that overlap with important beluga whale behavioral patterns.” Further, it concluded that the upper inlet areas where the whales are regularly sighted “are well outside of the area where Apache will be conducting seismic surveying.”
If an agency’s approval of an incidental take was based on certain key assumptions of when and where the activity was scheduled to occur, and those times and locations were not included within the agency’s IHA, such an oversight might constitute an agency action that was arbitrary and capricious. But on the record before this Court, Plaintiffs have not demonstrated that that this occurred with respect to Apache’s IHA. Rather, the record reflects that the agency did consider additional time-area restrictions and exercised its expertise to determine that they were not necessary.
D. Effects on Subsistence Use.
Plaintiffs next assert that NMFS failed in its statutory duty to ensure that
The applicable regulation defines “unmi-tigable adverse impact” as an impact “likely to reduce the availability of the species” to levels insufficient for subsistence needs by “(i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters[.]”
NMFS asserts that Plaintiffs never argued at the agency level that the agency failed “to consider [beluga] population levels, trends, or the fact that it is likely that subsistence use of whales will be prohibited for many years” so these arguments are waived.
The State of Alaska adds that NMFS did consider the subsistence whale hunt and “acknowledged the traditional importance of beluga whale subsistence harvest both for nutritional and economic contributions as well as its cultural importance.”
IV. Claim 2: Violation of the Endangered Species Act.
Congress enacted the ESA “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate” to meet the United States’ obligations under certain international agreements to conserve species facing extinction.
In this case, the NMFS Office of Protected Resources, Permits, and Conservation Division, in conjunction with the U.S. Army Corps of Engineers, engaged in formal consultation with NMFS Alaska Region.
A. Effects on Recovery of the Species.
By regulation, the statutory phrase “to jeopardize the continued existence of a species” means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.”
Plaintiffs allege that the “BiOp fails to properly evaluate the recovery prospects of the Cook Inlet beluga whale and how this action affects those prospects.” Plaintiffs posit that “[Recovery is a separate concept from survival and requires a separate analysis,” but the BiOp “contains no detailed analysis of how this action will impact recovery” and “only focuses on the effects of the' project on survival and reproduction.”
NMFS maintains that Ninth Circuit precedent makes “clear that a ‘separate analysis’ of recovery is not required.”
A significant issue with regard to the seismic program’s effect on beluga whale concerns changes in their behavior (which may not rise to the level of take) when confronted with acoustic disturbance during the surveys.... High levels of predation risk (or human disturbance) may indirectly effect survival and reproduction by causing prey (in this case, beluga whales) to divert a large proportion of time and energy away from resource acquisition, so that body condition deteriorates and survival and reproductive success are reduced. We considered this effect in our evaluation. Such a theory is consistent with the lack of recovery by this population despite the fact that hunting has not been a significant factor since 1999.... Since the survey areas are not primary feeding areas, any diminished use of these areas is not likely to result in significant effects to individual fitness.253
Another discussion regarding species recovery in the BiOp is as follows:
The baseline condition experienced by the Cook Inlet beluga whale DPS is characterized by its very low abundance, no observable recovery within the population ..., and a high (26%) probability of extinction within the next 100 years____Although NMFS believes past excessive harvest removals are largely responsible for the decline of this DPS, we are not able to identify the present cause(s) for the lack of recovery. While coastal development in the upper inlet and oil and gas development in the mid*1065 inlet have been extensive, and are important aspects of the baseline condition, we have no evidence such work has had any significant detrimental impact to individual whales, nor to this population.254
The BiOp adequately evaluates the effects of the proposed agency action on the recovery of Cook Inlet beluga whales, and rationally concludes, based on the scope and location of the project, that it would not appreciably reduce the odds of success for the species’ future recovery.
B. Analyzing Whether the Species Is in Jeopardy.
Plaintiffs contend that “NMFS also erred by failing to analyze whether the species is already at such a risk of extinction that it is already in jeopardy.” Plaintiffs maintain that if the beluga whale population is already in jeopardy, any “additional action that ‘causes some deterioration in the species’ pre-action condition’ is illegal.”
NMFS asserts that “Plaintiffs’ arguments fundamentally misconstrue the ESA” and that statute “does not require NMFS to determine whether a species is ‘in jeopardy’ ” at its baseline level.
In National Wildlife Federation v. National Marine Fisheries Service, the Ninth Circuit emphasized that NMFS may not “conduct the bulk of its jeopardy analysis in a vacuum[,]” but rather must “consider the proposed ... operations in their actual context[.]”
Here, the BiOp acknowledges that “the Cook Inlet beluga DPS exists at a highly precarious state” and explains, “[o]ur best population model places the risk of extinction at 26 percent within the next 100 years.”
C. Rational Connection Between Facts Found and Conclusion Reached.
Plaintiffs next assert that the BiOp “appears to assume that Apache’s surveys will not actually impact the beluga whale population in any serious way[.]” Plaintiffs maintain there “is a tension, if not an outright conflict, between NMFS’ conclusion that almost one-third of an endangered population will be harassed in a way that will significantly disrupt behaviors like feeding, breeding, or sheltering and its conclusion that the activity will have no consequences on the survival and reproductive capacity of the species.”
NMFS argues Plaintiffs misunderstand the BiOp and the associated ITS. It asserts that the agency did not find that significant disruption to behavior patterns would occur to any beluga whales.
Contrary to Plaintiffs’ assertions, the ESA itself does not define harassment.
D. Best Available Science.
Plaintiffs allege that NMFS failed to consider the best available science with regard to two issues: (1) the 160 decibel take threshold; and (2) the effects of seismic activity on prey species.
(1) 160 dB Threshold.
The ESA requires NMFS to “use the best scientific and commercial data available.”
NMFS responds that it “is entitled to decide between conflicting scientific evidence” and “the manner in which an agency resolves conflicting evidence is entitled to deference so long as it is not arbitrary and capricious.”
“The NMFS cannot ignore available biological information when formulating a BiOp or ITS ... [but] it has some discretion in deciding which scientific data is the ‘best available’ because that determination, in and of itself, is scientific in nature and accordingly deserves deference.”
This Court finds that NMFS adequately weighed and considered the best scientific data available in determining that the 160 dB take threshold was appropriate.
(2) Cod.
Plaintiffs assert that NMFS improperly ignored a 1993 study concerning the impact of seismic activity on cod in Norway (the Engas study). Plaintiffs assert that NMFS’ conclusion that “it is unlikely that significant numbers of fish would be impaired to the point that it would impact the feeding success of Cook Inlet beluga whales” is contradicted by the Engas study, which found that “cod catch rates fell 45-70% during seismic activity,” declines occurred up to “18 nautical miles from the shooting area,” and the catch did not increase within five days after the surveys were completed.
NMFS responds that Plaintiffs’ claim regarding the Engas study “is wholly without merit” because “[t]he Engas study ... is not the only, or most recent, information on the potential effects to beluga whale prey species, and Plaintiffs cannot meet their burden of citing a scientific study that indicates the agency’s analysis is outdated or flawed.”
E. Take Authorization.
Plaintiffs assert that NMFS erred by issuing an ITS authorizing the take of 30 beluga whales per year for each of the three years of the project, but focusing its jeopardy analysis only on the 30 beluga whales expected to be taken during the first year of surveying. Plaintiffs claim that the BiOp authorizes “three times the amount of take that it appears to have considered in its analysis.”
NEPA declares a federal policy “to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony” and “recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.”
“Whether there may be a significant effect on the environment requires consideration of two broad factors: ‘context and intensity.’ ”
Here, NMFS prepared an EA and concluded that no EIS was necessary. It therefore issued a FONSI.
A. NEPA and the “Hard Look” Standard.
In reviewing an agency’s decision under NEPA, a court applies the arbitrary and capricious standard “to determine whether the agency has taken a ‘hard look’ at the consequences of its actions, ‘based [its decision] on a consideration of the relevant factors,’ ... and provided a ‘convincing statement of reasons to explain why a project’s impacts are insignificant.’ ”
B. The EA’s Determination.
Plaintiffs contend that the issuance of the IHA will “significantly affect” the environment, such that an EIS was required.
• The degree to which the effects on the quality of the human environment are likely to be highly controversial.308
• The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.309
• The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
• Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.310
• The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.311
*1071 • Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.312
Plaintiffs initially asserted in their motion that “[a]ny one of these factors standing alone is sufficient to require preparation of an EIS,”
(1) Highly Controversial.
In the context of NEPA, “ ‘controversial’ is ‘a substantial dispute [about] the size, nature, or effect of the major Federal action rather than the existence of opposition to a use.’ ”
Although Plaintiffs are clearly strongly opposed to this seismic surveying project, the record does not demonstrate the degree to which the Apache project will affect the human environment is highly controversial.
(2) Highly Uncertain Effects.
Plaintiffs assert that there is substantial uncertainty regarding the effects of seismic surveying on Cook Inlet beluga whales and that “NMFS admits it does not know why the Cook Inlet beluga population continues to decline[.]”
The Ninth Circuit has held that an uncertainty analysis requires specificity; “general statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.”
Here, as API points out, here “NMFS had available separate analyses of three Cl seismic surveys conducted as recently as 2007, each of which concluded that the projects ‘appeared to have no more than negligible effect on the species of marine mammals in the survey area[.]’ ”
(3) Precedent for Future Actions.
Plaintiffs assert that NMFS’ negligible impact determination “could have a significant precedential impact on future decisions to permit the harassment of marine mammals incidental to seismic exploration in Cook Inlet under the MMPA[.]”
NMFS responds that the agency explicitly noted in the EA that its decision would not have a precedential effect on future actions and that, by law, each action must be considered individually.
This Court finds that the agency’s consideration of this intensity factor, which determined that the issuance of an authorization for Apache’s surveying was unique and independent from future actions, was adequate and the factor did not warrant an EIS.
Plaintiffs assert that the EA is inadequate because it failed to take a “hard look” at the cumulative impact of Apache’s proposed surveying.
Most of the existing gas and oil development occurs in the action area and it is likely that future gas and oil development will continue to take place in the action area. Impacts from gas and oil development include increased noise from seismic activity, vessel and air traffic and well drilling; discharge of wastewater; habitat loss from the construction of oil and gas facilities; and contaminated food sources and/or injury from a natural gas blowout or oil spill. The risk of these impacts may increase as oil and gas development increases; however, new development will undergo consultation prior to exploration and development.
Support vessels are required for gas and oil development to transport supplies and products to and from the facilities. Not only will the support vessels from increased gas and oil development likely increase noise in the action area, there is a potential for a slightly increased risk of ship strikes with beluga whales; however, ship strikes have not been definitively confirmed in a Cook Inlet beluga whale death, and monitoring measures should reduce this risk by placing visual monitors on ships to look out for whales and by deploying acoustic monitors to listen for vocalizing marine mammals.332
After this discussion, as well as what the EA describes as a “brief summary” of other human-related activities, the EA then states that Apache’s seismic surveying “would not be expected to result in a cumulative significant impact,” reasoning that “[t]he potential impacts to marine mammals, their habitats, and the human environment in general are expected to be minimal based on the limited and temporary noise footprint and mitigation and monitoring requirements of the IHA.”
Plaintiffs assert this discussion of oil and gas activity is inadequate in the cumulative impact analysis. They state that “Apache is one of about a dozen oil and gas companies currently exploring and developing oil and gas in Cook Inlet, and there are currently 391 active oil and gas leases totaling almost 1 million acres of State leased land in Cook Inlet.”
An EA “must fully assess the cumulative impacts of a project.”
The EA here adequately addresses the past, present and future projects in the inlet. In addition to the above-quoted discussion of oil and gas development, the EA addressed the effects of pollution; fisheries interaction; coastal zone development including the Port of Anchorage and Port Mackenzie ■ expansions, the Chuitna Coal Project, and the ORPC Alaska Tidal Energy projects; marine mammal research; and climate change. After discussing each of these categories of activity, the EA concluded that “the incremental impact of an IHA for the proposed Apache seismic survey in Cook Inlet would not be expected to result in a cumulative significant impact to the human environment from past, present, and future activities” and that “[t]he potential impacts to marine mammals, their habitats, and the human environment in general are expected to be minimal based on the limited and temporary noise footprint and mitigation and monitoring requirements of the IHA.”
Based on the foregoing, this Court finds that the cumulative impacts of Apache’s surveying activities did not require the agency to prepare an EIS and that the agency took the requisite hard look at those impacts.
(5) Adverse Effect on Endangered Species and Threatened Legal Violation.
Plaintiffs address these two intensity factors together, relying on their prior arguments that “NMFS’ IHA may adversely affect endangered Cook Inlet beluga whales and designated critical habitat in violation of both the MMPA and ESA.”
NMFS maintains that “preparation of an EIS is not required just because an agency identifies adverse impacts on wildlife species or their habitat, or acknowledges information favorable to a different outcome ... even if the impacts are to an endangered species.”
Although it appears that the agency did give the requisite hard look on this topic, it did so with inaccurate assumptions with respect to the percent of the population that would be subjected to takes by harassment.
Plaintiffs assert the EA is deficient because its alternatives analysis failed to take a “hard look” at mitigation measures.
The EA considered three alternatives: (1) “No Action Alternative,” (2) “Issuance of IHA with Required Mitigation, Monitoring and Reporting Measures (Preferred Alternative), and (3) “Issuance of an IHA with Additional Mitigation and Monitoring Measures.”
NMFS maintains this statement is sufficient given the “limited temporal and physical limitations of the activities permitted by the IHA.”
Section 102(2)(E) of NEPA directs federal agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources[.]”
In Akiak Native Community v. U.S. Postal Service, the Ninth Circuit explicitly held that “NEPA does not require that Environmental Assessments include a discussion of mitigation strategies.”
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is GRANTED in part and DENIED in part. This Court finds that the National Marine Fisheries Services’ use of the 160 dB threshold for determining when incidental take by harassment would occur, together with many other aspects of the agency’s decision-making as discussed herein, is affirmed. But this Court finds that the agency erroneously determined the number and percentage of Cook Inlet beluga whales that would be subject to take by Level B incidental harassment during Apache’s seismic surveying activities under year one of its permit, and it appears that the agency arbitrarily and capriciously relied upon this erroneous determination in
In light of the foregoing, IT IS ORDERED that within 21 days of the date of this Order, the parties shall file and serve, either jointly or separately, a motion(s) or stipulation that proposes the further proceedings that should occur in this matter, taking into account the fact that the Initial Harassment Authorization issued by the NMFS to Apache at issue in this proceeding expired with the issuance of the amended IHA in February 2013.
.Pursuant to Local Rule of Civil Procedure 16.3(c)(1), Plaintiffs' opening brief is labeled a Motion for Summary Judgment. Docket 48. Plaintiffs later filed a Notice of Errata correcting one citation in each of their briefs. Docket 66.
. Docket 51; Docket 52; Docket 53; Docket 54.
. Docket 56.
. B 877.
. B 877-879.
. B 881.
. B 882.
. B 882; BiOp 170-171. For purposes of this Order, when "B” is used in a citation followed by a number, it refers to the page or pages within the administrative record for the Biological Opinion. When "BiOp” is used, it refers to the Biological Opinion itself issued in May 2012, and located in the record at B 142-272. The Environmental Assessment is also included in that portion of the administrative record. See B 843-984.
. BiOp 172.
. BiOp 175.
. B 882.
. B 882; BiOp 176. "Carrying capacity is the largest number of a species that a given ecosystem can sustain.” Anderson v. Evans, 371 F.3d 475, 481 n. 2 (9th Cir. 2002).
. B 882; BiOp 176.
. B 882.
. BiOp 176.
. BiOp 176-77.
. B 882.
. B 883.
. BiOp 177.
. A 1242; A 1572. Citations to “A" followed by a page number refer to that portion of the administrative record that contains the IHA and some NEPA documents. See Docket 52 at 11 n. 1.
. A 1332; A 1572.
. A 1362, 1371.
. 16 U.S.C. § 1362(13) (Marine Mammal Protection Act); 16 U.S.C. § 1532(19) (Endangered Species Act).
. A 1363; 16 U.S.C. § 1362(18)(A)(i).
. Id.
. A 1338.
. A 1338, 1346.
. A 1346; see BiOp 157 (Figure 6: Apache’s seasonal windows of opportunity to conduct seismic surveys across the entire project area).
. B 900.
. A 1339. Unlike many seismic surveys that operate airguns continuously for 24 hours each day, Apache’s “in-water airguns will only be active for approximately 2.5 hours during each of the slack tide periods.... Seismic operations are not conducted in ebb and flood tides because the signal-to-noise ratio of the seismic data are extremely poor due to the high ambient noise from the tidal flow. Furthermore, actual towing of the array by the vessel in the high tidal flows ... is difficult and potentially unsafe for the vessel, people, and equipment.” BiOp 156, 158.
. A 1343-44.
. BiOp 161.
. A 1384; BiOp 158.
. A 1363. These are the thresholds for cetaceans, including the beluga whale. The application also includes a 190 dB injury threshold for pinnipeds, such as seals and sea lions.
. A 1363.
. A 1375 (citing Southall et al. (2007)).
. A 1376.
. A 1355 (citing Richardson et al. (1995)).
. BiOp 216.
. A 1362.
. A 1372 (citing Richardson et al. (1995)).
. A 1363.
. A 1364-1368.
. A 1385; A 1417; BiOp 164.
. A 1366.
. A 1367.
. A 1368.
. See, e.g., Doc. A 150 at 11 (Table 1, Whale Counts); NMFS researchers note counts are uncorrected at: Doc. A 139 at 5 (2000), Doc. A 141 at 7 (2001), Doc. A 142 at 7 (2002), Doc. A 143 at 7 (2003), Doc. A 145 at 7 (2004), Doc. A 148 at 8 (2005), BiOp 2581 (2006), Doc. A 150 at 8 (2007), Doc. A 154 at 13 (2008), Doc. A 155 at 12 (2009), Doc. A 156 at 13 (2010).
. Doc A 154 at 17.
. A 1369.
. A 1369. When the mitigation gun alone is operating, the boundary of the area ensonified to 160dB was estimated at 330 meters from the vessel. A 1385.
. I.e., the estimated number of beluga whales that would be exposed to 160 dB of sound.
.A 1371.
. A 1370.
. A 1380.
. A 1384.
. A 1417, 1385. Apache’s application also included radii for the 190 dB ensonified area, the Steller sea lion injury threshold. A 1363.
. Apache conducted a sound source verification study to confirm these safety radii distances before beginning its in-water seismic operations. A 1802; BiOp 254. The study adjusted the 160 dB threshold distance to 9.5 km. Docket 55 at 4.
. A 1384.
. A 1385.
. A 1384.
. A 1386.
. A 1388.
. A 1388.
. A 1384.
. A 1384.
. A 1388.
. A 1389.
. A 1389.
. A 1390.
. BiOp 167.
. A 1393.
. A 1337, A1371.
. A 1572-1586 (Federal Register Notice, Vol. 76, No. 183, 58473-58487, September 21, 2011).
. A 1572-1586.
. A 1579-1581. For example, the Notice proposed three mitigation measures for support vessels that are not directly relevant to this appeal. Cf. A 1386 and A 1579.
. A 1586.
. MMC is an independent commission of three members appointed by the President with the advice and consent of the Senate. It was established by the MMPA and is charged with making reports and recommendations on marine mammal matters. 16 U.S.C.A. §§ 1401-02.
. B 13307.
.B 13307-13308.
. B 412-538; see also Amended BiOp, BiOp 142-272.
. BiOp 250.
. A 1723 (emphasis in original); also see BiOp 222.
. A 1750; also see BiOp 250.
. BiOp 253-255; A 1754. The BiOp also included conservation recommendations, which "are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information.” BiOp 251. These recommendations included: (1) consider using new research and techniques for reducing the horizontal spread of airgun noise; (2) conduct aerial surveys to verify there are no groups of 5 or more marine mammals in an area before beginning surveying in a noncon-tiguous patch; (3) to reduce the total acoustic energy added to the marine environment, do not use the mitigation gun in between surveying periods, but rather use the ramp-up procedure at the start of each new shooting period; (4) extend the ramp up procedure from 30 to 45 minutes to provide beluga whales enough time to swim beyond the 6.41 km harassment radius before shooting begins; (5) conduct a sound source verification study at both nearshore and offshore areas so a harassmenVharm zone can be identified for each depth category as used in the acoustic model. Id. These discretionary recommendations were not included in the ITS.
. BiOp 10.
. B 843-969, B 970-78.
. A 1783. A new IHA is now in place that is effective from March 1, 2013 to March 1, 2014. Docket 73-1.
. A 1791.
. A 1792-1808 (Federal Register Notice Vol. 77, No. 92, 27720-27736, May 11, 2012).
. A 1793.
. A 1798-1803.
. A 1803-1805. The Notice slightly changed the restriction regarding groups of whales and cow-calf pairs approaching the harassment sound level zone and added three mitigation measures for support vessels. A 1783-1790, 1801.
. A 1790. The BiOp contains two area restrictions:
There shall be no marine seismic activity within 10 miles of the mean higher high water (MHHW) line of the Susitna Delta (the area from Beluga River to Little Susit-na River) from mid-April to mid-October so as to avoid any effects to belugas and their prey in this critical feeding and potential breeding area. If the results of the SSV study indicate that noise over 160 dB travels further than 6.41 km (~4 mi), Apache will work with NMFS AKR to establish a new minimum setback distance for this area during this time.
There shall be no airguns used as an energy source within 1.6 km (1 mi) of the mouth of any stream listed by the ADF & G on the Catalogue of Waters Important for the Spawning, Rearing, or Migration of Ana-dromous Fishes, unless approved by ADF & G on a case-by-case basis.
Although the applicant identifies this as a mitigation measure, NMFS does not consider the 1.6 km (1 mi) setback from river mouths in the analysis of impacts to beluga whales, beluga critical habitat ... because there is the possibility of exemptions to this setback by ADF & G. NMFS has no authority to determine exemptions allowed or denied by ADF & G, and thus must assume in this opinion that airguns will occur within 1 mile of the mouths of all anadromous streams.
BiOp 168-169 (emphasis in original).
. A 1796.
. A 1807.
. A 1806-1808.
. BiOp 143.
. BiOp 143, 253-255. In 2013, NMFS Alaska Region requested that consultation be rein-itiated and a new BiOp has since been issued. Docket 73-3 at 3.
. Docket 54 at 7-8.
. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
. Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (internal citation omitted).
. Docket 54 at 8 (emphasis omitted); Docket 55 at 3-4 ¶¶ 9-10 (Ex. A: Hendrix Deck). Although the administrative record is closed and this declaration cannot be considered in this Court's review of the agency’s decision, the parties agree that it may be considered for purposes of evaluating Plaintiffs' standing. Docket 72 at 8-9, 28.
. Docket 54 at 8.
. Docket 56 at 9.
. Docket 56 at 10 (citing Friends of the Earth, Inc., 528 U.S. at 180-81, 120 S.Ct. 693; Cent. Delta Water Agency v. U.S., 306 F.3d 938, 947-48 (9th Cir. 2002)).
. Docket 56 at 11.
. Docket 55-1 at 5 (Sept. 2012 Monthly Report).
. Friends of the Earth, 528 U.S. at 183, 120 S.Ct. 693 (citing Sierra Club, 405 U.S. at 735, 92 S.Ct. 1361; Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130).
. See Docket 49-1 at 5 ¶¶ 13-14; Docket 49-2 at 2-3, 7 ¶¶ 7, 9-11, 23.
. See Friends of the Earth, 528 U.S. at 180-SI, 120 S.Ct. 693. Additionally, a new IHA has been issued for the next year of surveying so the anticipated threat of injury is ongoing. Docket 73 (Notice of Issuance of New IHA to Apache on February 15, 2013).
. Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1047 (9th Cir. 2010) (MMPA review subject to APA); Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (ESA review subject to APA); Pac. Rivers Council v. U.S. Forest Serv., 689 F.3d 1012, 1020 (9th Cir. 2012) (NEPA review subject to APA).
. 5 U.S.C. § 706(2)(A).
. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. U.S., 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)).
. Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856.
. The Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008).
. Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 869 (9th Cir. 2003) (citing Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); Chem. Mfrs. Ass'n v. EPA, 919 F.2d 158, 167 (D.C.Cir. 1990)).
. Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856.
. 16 U.S.C. § 1361.
. 16 U.S.C. § 1362(13).
. 16 U.S.C. §§ 1362(12)(A)(i), 1371. The Secretary of the Interior is responsible for "all other marine mammals covered by” the MMPA (such as walruses, sea otters, polar bears, and sea cows). 16 U.S.C. § 1362(12)(A)(ii).
. 16 U.S.C. § 1371(a)(1).
. 16 U.S.C. § 1371 (a)(5)(D)(i)(I)-(II). Much of the case law on the MMPA reviews an agency's harassment authorization for up to five years issued under different provisions of the act. See 16 U.S.C. § 1371(a)(5)(A)(i)(I)-(II). However, the same statutory standards apply (small numbers, negligible impact, un-mitigable adverse impact, and least practica
. 16U.S.C. § 137l(a)(5)(D)(ii)(I)-(III).
. Docket 48 at 23-38 (Pi's Mot.).
. 16U.S.C. § 1371(a)(5)(D)(i).
. Docket 48 at 24.
. 695 F.3d 893 (9th Cir. 2012).
. Docket 48 at 25 (citing CBD v. Salazar, 695 F.3d at 905).
. Docket 48 at 26.
. Docket 52 at 19-20.
. Docket 52 at 20 (quoting A 1806-07); 50 C.F.R. § 216.103.
. Docket 52 at 20-22.
. CBD, 695 F.3d at 904 (internal citations omitted).
. CBD, 695 F.3d at 906.
. CBD, 695 F.3d at 907.
. Cf. CBD, 695 F.3d at 907 (small numbers analysis properly focused on the number of mammals affected).
. A 1807.
. Cf. CBD, 695 F.3d at 907 (negligible impact analysis properly considered the likely effects on the mammals' recruitment and survival).
. A 1807.
. Docket 48 at 27 (emphasis in original).
. A 1807.
. Docket 52 at 23-24; Docket 56 at 14.
. See A 1794 (“The status of the Cook Inlet beluga population (i.e., the fact that it is an isolated, endangered populations) has been carefully considered in NMFS’ negligible impact analysis.”).
. Docket 48 at 24.
. 695 F.3d at 906.
. 695 F.3d at 907.
. Docket 48 at 26.
. Docket 52 at 22.
. Docket 52 at 23.
. A 1806.
. See Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 869 (9th Cir. 2003) (agency’s determination is entitled to "great deference” when evaluating "complex scientific data within the agency’s technical expertise”) (citing Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); Chem. Mfrs. Ass’n v. EPA, 919 F.2d 158, 167 (D.C.Cir. 1990)). However, as discussed more below, the Court has determined that NMFS erred in its density estimates; thus, the small numbers and negligible impact analyses, which relied on an estimated take of 30 beluga whales out of a total population of 284 whales, should have analyzed the impact of the action using a corrected figure that may be well above 30.
. Docket 48 at 28.
. Docket 48 at 20.
. Docket 52 at 25.
. Docket 52 at 26.
. Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d 1009, 1024 (9th Cir. 2007) ("In general, we will not invoke the waiver rule in our review of a notice-and-comment
. Id. at 1024 (internal citation omitted).
. A 1793; B 13311.
. A 1793.
. Id.
. Docket 48 at 29.
. Docket 48 at 30.
. . Docket 52 at 27.
. Doc. A150 at 2 (2007); BiOp 176.
. Doc. A150 at 9 (2007).
. Doc. A150 (“Aerial Surveys of Belugas in Cook Inlet, Alaska, June 2007” (Rugh, et al.)).
. Id.
. B 1347; B 1349 (referencing Hobbs et al. 2000a and 2000b); B 10719 (“Abundance of Belugas, Delphinapterus leucas, in Cook Inlet, Alaska, 1994-2000” (Hobbs et al.) ("Hobbs 2000a”).)
. B 10725 (Hobbs 2000a).
. B 10719 (Hobbs 2000a).
. B 10726 (Hobbs 2000a).
. A 1806 (table 5 uses population abundance figure of 284 whales); BiOp 176-177 (population estimated at 284 whales using abundance estimates derived from corrected figures from aerial surveys (citing Hobbs et al., "Estimated abundance of belugas in Cook Inlet, Alaska, from aerial surveys conducted in June 2011”));
. A 1793.
. A 1368-69, 1804 (density estimates derived from raw figures from aerial surveys (citing Rugh et al. 2000-2007, Sheldon et al. 2008-2010, "Aerial surveys of belugas in Cook Inlet, Alaska”)); also see Docket 48 at 21 n. 9 (citations that show aerial surveys contained uncorrected data).
. API asserts that "it is not true that the aerial researchers always 'correct' the number of whales that were visually counted.” Docket 53 at 39. But the source quoted for this proposition explains that uncorrected figures only yield minimum density estimates and do not represent the abundance of whales in an area. "In some cases, those were the sums of maximum visual counts and therefore represent minimum estimates. In other cases, estimates of total abundance were made by multiplying the counts by ad hoc correction factors to account for whales that were presumed to have been missed.” B 10719 (Hobbs 2000a). Moreover, this does not address the problem that the uncorrected figures for the survey area were then applied to the higher, corrected figures used for the total population in the small numbers analysis.
. Docket 52 at 26.
. Docket 72 at 11, 71-72; Docket 55 at 4; A 1390; BiOp 167.
. Doc A 154 at 17.
. Alabama Power Co. v. F.C.C., 773 F.2d 362, 367 (D.C.Cir. 1985).
. 773 F.2d 362, 368-370 (D.C.Cir. 1985).
. Alabama Power Co. v. F.C.C., 773 F.2d 362, 372 (D.C.Cir. 1985) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). Cf. Salt River Project Agr. Imp. and Power Dist. v. U.S., 762 F.2d 1053, 1060 (D.C.Cir. 1985) (Even where an agency's decision rests on erroneous findings, the court must reverse "only when there is a significant chance that but for the errors the agency might have reached a different result.”).
.Although NMFS' density estimates appear to include other mathematical errors, these issues were not expressly raised by Plaintiffs in this appeal, and thus are not directly before this court. But this Court will observe that NMFS adopted Apache’s calculations for its density estimates, and Apache had relied on the numbers provided in the modeling study prepared by Jasco Applied Sciences, and attached as Appendix A to its application. A 1363-1368; A 1419-1420. In calculating its number of takes, Apache divided the Jasco figures by two on the assumption that operations would occur over 12 hours per day rather than a full 24-hour period. A 1369. But Jasco's proposed survey area was based off of the number of tracklines surveyed, the length of each trackline, and the distance between tracklines, not the amount of time it would take to survey a particular area. A 1415. Since Jasco's calculations were based on distance traveled each day, and not on the amount of time spent surveying, this additional 50% reduction appears unwarranted. MMC noted this issue to NMFS in its comments, but the agency rejected that concern. See A 1793-94. Also, Apache's estimated tracklines surveyed each day and length of trackline appear to differ considerably from the ones used in Jasco’s modeling, but Apache used the same figures from Jasco’s modeling method to estimate its daily acoustic footprint and calculate take. Compare A 1344 (noting tracklines would be “approximately 12.9 km” long and that each vessel can acquire a source line in approximately an hour, leading to approximately 20-24 tracklines surveyed each day); A 1363 (noting anticipated survey line length is 16.1 km and approximately 12-14 survey lines will be completed each day). Using these figures, Jasco assumed Apache would survey approximately 16.1 km x 13 km (209.30 km) per day, while Apache assumed it would survey considerably more—12.9 km x 22 km (283.80 km per day. Then Apache compounded this error by only using one-half of Jasco's daily surveying amount in its density calculation. These apparent mathematical errors in Apache’s take estimations were subsequently adopted by NMFS. See B 13311; A 1793-94.
. Alabama Power, 773 F.2d at 368-370, 372.
. Docket 48 at 30-31.
. Docket 48 at 31.
. Docket 48 at 31 (quoting A 744).
. Docket 48 at 31-32 (emphasis omitted).
. Docket 48 at 32 (quoting B 13338). The full sentence there by Dr. Castellote reads: “I don’t think we can do much about it since 160dB&180dB are the legal thresholds, but behavioral changes (such as displacement) might occur at much greater distances than the 160 dB radii."
. Docket 48 at 33.
. Docket 56 at 17.
. Docket 52 at 28.
. Docket 52 at 29. The BiOp noted that ”[t]here is new research to suggest that the 160 dB behavioral harassment and 180 dB injury levels currently accepted by NMFS might be significantly below the noise levels that actually harass or injure beluga whales.” BiOp 209.
. Docket 52 at 33 (citing A1803, 1806).
. Docket 52 at 34.
. Docket 53 at 42 (citing A 157 at 442-44).
. Docket 52 at 29 (citing B 2959-3075).
. Docket 52 at 29 (emphasis omitted).
. Docket 52 at 30.
. Docket 52 at 31.
. Docket 52 at 32-33. But see A 745 (bioa-cousticians' letter) ("A risk function with a 50% midpoint at 140 dB (RMS) that accounts, even qualitatively, for contextual issues likely affecting response probability, come much closer to reflecting the existing data for marine mammals ...").
. Docket 48 at 28 (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1160 (9th Cir. 2006)).
. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010); Ariz. Cattle Growers' Ass’n v. U.S. Fish and Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1236 (9th Cir. 2001) (“Deference is particularly important 'when the agency is making predictions, within its area of special expertise, at the frontiers of science.’ ”) (quoting Central Ariz. Water Conservation Dist. v. EPA, 990 F.2d 1531, 1539-40 (9th Cir. 1993)).
. 16U.S.C. § 1371 (a)(5)(D)(ii)(I)-(III).
. 16 U.S.C. § 1371 (a)(5)(D)(vi).
. Nat. Resources Def. Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1159 (N.D.Cal. 2003) (citing H. Rpt. No. 228, 97th Cong., 1st Sess. 18-20 (1981)).
. NRDC v. Evans, 279 F.Supp.2d at 1159.
. Docket 48 at 34; Docket 66-1 at 1.
. Docket 66-1 at 1 (internal citation omitted).
. Docket 52 at 35.
. A 1796.
. See supra at 11 regarding the take estimates for river mouths versus non-river mouths.
. Docket 48 at 36; see B 16603.
. Docket 52 at 36 (citing Doc A 69 at A 1434, Fig. 2).
. A 1793.
. See Figure 2 at BiOp 153.
. A 1796.
. See A at 1796.
. Docket 48 at 37 (citing 16 U.S.C. § 1371(a)(5)(D)(i)(II))-
. Docket 48 at 38.
. Docket 48 at 38.
. 50 C.F.R. § 216.103.
. Id.
. Docket 52 at 37.
. Docket 52 at 37.
. Docket 52 at 38.
. Docket 52 at 38 (citing A 1807-08).
. Docket 51 at 29 (citing B 897).
. Docket 51 at 29 (citing B 898).
. Docket 48 at 38.
. 16 U.S.C. § 1531.
. Westlands Water Dist. v. U.S. Dept, of Int., 376 F.3d 853, 873 (9th Cir. 2004).
. 50 C.F.R. §§ 402.14(a), (g).
. 50 C.F.R. § 402.14; 16 § 1536(a)(2). U.S.C.
.16 U.S.C. § 1536(a)(2).
. BiOp 142. The Court does not distinguish between the two NMFS offices elsewhere in this decision, as the distinction is largely procedural and has no apparent bearing on the merits of this case.
. BiOp 250.
. BiOp 143. In this case, consultation was reinitiated in early 2013. See Docket 73-3.
. BiOp 253.
. Docket 48 at 40-47 (Pl’s Mot.).
. 50 C.F.R. § 402.02 (emphasis added).
. Docket 48 at 40-41.
. Docket 56 at 24.
. Docket 48 at 41 (citing BiOp 238-39). On this point, in National Wildlife Federation v. National Marine Fisheries Service, the Ninth Circuit did state "[i]t is only logical to require that the agency know roughly at what point survival and recovery will be placed at risk before it may conclude that no harm will result from ‘significant’ impairments to habitat” caused by the agency action. Natl. Wildlife Fedn. v. NMFS, 524 F.3d 917, 936 (9th Cir. 2008). At issue in that case was the management of the Columbia River System. There, the BiOp "explicitly found that the proposed [dam] operations would have significant negative impacts on each affected species' critical habitat[.]” Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 934-35. It was in light of that finding that the Ninth Circuit found that a rough analysis of the point of recovery was warranted. In contrast, no such finding of significant negative impact was made in the BiOp here with respect to Apache’s proposed operation; hence an analysis of the point of recovery is not required.
. Docket 52 at 43.
. Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 932.
. Docket 52 at 43-44.
. Docket 52 at 44 (citing B 322, 342, 350-53, 363).
. Docket 52 at 44-45 (citing B 317; B 10075 at 9).
. Docket 52 at 45 (citing B 387) (emphasis omitted).
. Docket 51 at 33 (quoting Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 936).
. Rock Creek Alliance v. U.S. Fish and Wildlife Serv., 663 F.3d 439, 443 (9th Cir. 2011); cf. Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 933 (While an agency will not be overturned for failing to address recovery impacts in "separate, distinct sections of the biological opinion!,]” a fair reading of the opinion must indicate that the agency "adequately considered the impact” the proposed action would have on the protected species' recovery.).
. BiOp 244.
. BiOp 247.
. However, the fact that the BiOp was premised upon inaccurate take estimates may well call into question the validity of its analysis and conclusions. See discussion supra at 34-41.
. Docket 48 at 42.
. Docket 56 at 25.
. Docket 48 at 42.
. Docket 52 at 40-1 (citing Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 930).
. Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 929-930.
. Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 930.
. Id.
. Id. (citation omitted).
. BiOp 238.
. BiOp 177-178.
. BiOp 189-190 (full discussion at 190-207).
. BiOp 218, 247.
. Docket 48 at 43.
. See Docket 52 at 48 (citing B 383-84).
. Docket 48 at 43 ("The ESA defines harassment ...) (citing 50 C.F.R. § 17.3).
. 50 C.F.R. § 17.3.
. Docket 52 at 48; BiOp 241 ("|T]his opinion considers all potential takes associated with this action, including the ones covered under the more inclusive MMPA definition of harassment.”).
. BiOp 253.
. BiOp 241.
. CBD, 695 F.3d at 913 ("[T]he relevant MMPA standard at issue here is more conservative than the ESA standard ... [S]o long as
. 16U.S.C. § 1536(a)(2).
. Docket 48 at 44; see discussion supra at 1057-59.
. Docket 48 at 45.
. Docket 48 at 45.
. Docket 56 at 27-28 (citing B 3006, Table 5).
. Docket 52 at 46 (citing Trout Unlimited v. Lohn, 559 F.3d 946, 958-59 (9th Cir. 2006)).
. Docket 52 at 47.
. Oregon Natural Desert Ass’n v. Tidwell, 716 F.Supp.2d 982, 996 (D.Or. 2010) (internal citations omitted); also see Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir. 2009) (“An agency's decision may be based on the best scientific evidence available even if the administrative record contains evidence for and against its decision.”).
. See discussion supra at 1057-59.
. A 744-745 (Bioacousticians Letter) ("The clear point of these observations is that behavioral response in nature clearly follows more probabilistic function that changes based on the species in question, behavioral state and other contextual issues. It has become painfully obvious that the use of received level alone is seriously limited in terms of reliably predicting impacts of sound exposure.”).
. Docket 48 at 46 (citing Doc A097 at 4).
. Docket 52 at 47 (citing Ecology Ctr. v. Castaneda, 574 F.3d 652, 659 (9th Cir. 2009) (internal citation marks omitted)).
. See BiOp 228 (citing Hastings and Popper, Effects of Sound on Fish (2005); Department of Fisheries and Oceans, Review of scientific information on impacts of seismic sound on fish invertebrates, marine turtles and marine mammals (2004)). See B 2100.
. Ecology Ctr. v. Castaneda, 574 F.3d 652, 659 (9th Cir. 2009).
. Docket 48 at 47.
. “This biological opinion will be valid upon issuance and remain in force until January 31, 2015, unless re-initiation becomes necessary.” BiOp 143. "Thus, this biological opinion will review the proposed action of
. 42 U.S.C. §§ 4331 (l)(a), (c).
. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).
. Robertson, 490 U.S. at 349, 109 S.Ct. 1835; see also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgt., 387 F.3d 989, 992-93 (9th Cir. 2004) (internal omissions, citations, and substitutions omitted) ("Through the NEPA process, federal agencies must ‘carefully consider detailed information concerning significant environmental impacts,’ but they are 'not required to do the impractical.’ ”); Inland Empire Public Lands Council v. United States Forest Serv., 88 F.3d 754, 764 (9th Cir. 1996); Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001).
. 42 U.S.C. § 4332(C).
. Natl. Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) abrogated on other grounds by Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) (citing 40 C.F.R. § 1501.4).
. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (citing 40 C.F.R. § 1508.9).
. 40 C.F.R. § 1501.4(e).
. Natl. Parles v. Babbitt, 241 F.3d at 731; 42 U.S.C. § 4332(2)(C); Sierra Club v. United States Forest Serv., 843 F.2d 1190, 1193 (9th Cir. 1988).
. Natl. Parks v. Babbitt, 241 F.3d at 731.
. 40 C.F.R. § 1508.27(b).
. 40 C.F.R. § 1508.9.
. B 970.
. Docket 48 at 47.
. Natl. Parles v. Babbitt, 241 F.3d at 730 (quoting Blue Mountains v. Blackwood, 161 F.3d at 1211; Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000)); Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) ("[t]he only role for a court is to insure that the agency has taken a "hard look” at environmental consequences!.]”) (quoting Nat. Resources Def. Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C.Cir. 1972)).
. Docket 56 at 29 (quoting Blue Mountains v. Blackwood, 161 F.3d at 1212).
. Docket 48 at 47.
. 40 C.F.R. § 1508.27(b)(4).
. 40 C.F.R. § 1508.27(b)(5).
. 40 C.F.R. § 1508.27(b)(7).
. 40 C.F.R. § 1508.27(b)(9).
. 40C.F.R. § 1508.27(b)(10).
. Docket 48 at 48 (citing Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 865 (9th Cir. 2005)).
. Docket 56 at 29 (quoting Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1140 (9th Cir. 2011) (internal quotation marks omitted)).
. Docket 48 at- 51 (citing Robertson, 490 U.S. at 350, 109 S.Ct. 1835). Plaintiffs separated their NEPA argument into two sections—one asserting that the intensity factors warranted an EIS, and one asserting that NMFS failed to take a "hard look” at mitigation and cumulative impact. This Court has combined those arguments in its analysis herein. The purpose of NEPA’s process requirements is to ensure that agencies take a "hard look” at potential consequences; thus, the "hard look” issue is implicated in each factor the agency must consider. See Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgt., 387 F.3d 989, 992-93 (9th Cir. 2004) "Alternatively phrased, [NEPA's] task is to ensure that the agency has taken a ‘hard look' at the potential environmental consequences of the proposed action.”).
. Blue Mountains v. Blackwood, 161 F.3d at 1212 (citing Greenpeace Action v. Franklin, 14 F.3d 1324, 1335 (9th Cir. 1993); Sierra Club v. United States Forest Service, 843 F.2d 1190 (9th Cir. 1988)).
. Docket 48 at 49.
. Docket 52 at 52-53.
. Docket 53 at 26.
. Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105, 1120-21 (9th Cir. 2000), abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011).
. An "outpouring of public protest” can render an action highly controversial, but the
. Docket 48 at 49 (quoting B 882-83).
. Docket 52 at 53.
. Blue Mountains v. Blackwood, 161 F.3d at 1213 (quoting Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1380 [9th Cir. 1998)).
. 40 C.F.R. § 1508.27(b)(5).
. Docket 53 at 28 (quoting A091 at 3; A092 at 6; A093 at 6).
. B 913-28.
. Docket 48 at 50-51 (citing Anderson v. Evans, 371 F.3d 475, 493 (9th Cir. 2004)).
. Docket 52 at 54 (quoting FONSI at B 976).
. Cf. Presidio Golf Club v. Natl. Park Serv., 155 F.3d 1153, 1163 (9th Cir. 1998) (“The public golf clubhouse is a unique, indepen
. Docket 48 at 51-52. See 40 C.F.R. § 1508.7. Although this is a separate regulation from the one listing the intensity factors, courts construe the two together as requiring the same analysis. See Blue Mountains v. Blackwood, 161 F.3d at 1214 (citing 40 C.F.R. § 1508.7 and 40 C.F.R. § 1508.27(b)(7) together in prefacing its cumulative impact analysis).
. B 937.
. B 940. Additional information regarding the scope of oil and gas development is set forth in another section of the EA, and states that there are "16 oil and gas production platforms located in upper Cook Inlet, 12 of which are active today. There are no platforms in the lower Inlet, and no permits have been issued for the construction of a new permanent platform anywhere within the Inlet.” B 900.
. Docket 48 at 52.
. Docket 56 at 32.
. CBD v. Salazar, 695 F.3d at 917 (citing Barnes v. U.S. Dept. of Transp., 655 F.3d 1124, 1141 (9th Cir. 2011); Te-Moak Tribe of W.
. Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 959 (9th Cir. 2003) (quoting Neighbors of Cuddy Mt. v. Alexander, 303 F.3d 1059, 1071 (9th Cir. 2002)).
. CBD v. Salazar, 695 F.3d at 917.
. B 937-940.
. And yet here again, this Order does not address the extent to which corrected take estimates may impact the agency's determination.
. Docket 48 at 51.
. Docket 52 at 54 (citing Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005); Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1010-11 (9th Cir. 2006)).
. Docket 53 at 26 (quoting Ctr. For Biological Diversity v. Kempthome, 588 F.3d 701, 712 (9th Cir. 2009)).
. See B 936.
. Docket 48 at 53-54.
. Docket 48 at 53-54 (citing B867).
. B 866.
. B 902-31.
. B 867.
. Docket 52 at 54 (citing B975-76); id. at 53-54 (referencing the “limited and temporary footprint and required mitigation measures of the IHA” to conclude any cumulative impacts would be minimal).
. Docket 52 at 55.
. 42 U.S.C. § 4332(E).
. 40 C.F.R. § 1508.9.
. Docket 48 at 53 (citing Methow Valley, 490 U.S. 332, 333, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)).
. Robertson, 490 U.S. at 351-52, 109 S.Ct. 1835 ("[0]ne important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences ... Implicit in NEPA's demand that an agency prepare a detailed statement on 'any adverse environmental effects which cannot be avoided should the proposal be implemented,’ 42 U.S.C. § 4332(C)(ii), is an understanding that the EIS will discuss the extent to which adverse effects can be avoided.”).
. Docket 48 at 54 (citing Oregon, 52 F.3d 1499, 1507 (9th Cir. 1995)).
. Akiak Native Community v. U.S. Postal Sen/., 213 F.3d 1140, 1147 (9th Cir. 2000).
.Akiak v. USPS, 213 F.3d at 1147; cf. Bering Strait Citizens for Responsible Resource Dev. v. U.S. Army Corps of Engineers, 524 F.3d 938, 955 (9th Cir. 2008) (“Under NEPA, an agency’s consideration of alternatives is sufficient if it considers an appropriate range of alternatives, even if it does not consider every available alternative. An agency need not, therefore, discuss alternatives similar to alternatives actually considered, or alternatives which are infeasible, ineffective, or inconsistent with the basic policy objectives for the management of the area[.]”) (quoting Northern Alaska Env'l Center v. Kempthome, 457 F.3d 969, 978 (9th Cir. 2006)); Envtl. Protec. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1016 (9th Cir. 2006) ("an agency’s obligation to consider alternatives under an EA is a lesser one than under an EIS”) (quoting Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005)).
Reference
- Full Case Name
- NATIVE VILLAGE OF CHICKALOON v. NATIONAL MARINE FISHERIES SERVICE
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- 7 cases
- Status
- Published