Alaska Wildlife Alliance et al v. U.S. Fish and Wildlife Service et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA WILDLIFE ALLIANCE, et al.,
Plaintiffs,
v.
U.S. FISH AND WILDLIFE SERVICE et al.,
Defendants.
Case No. 3:21-cv-00209-SLG-KFR
REPORT AND RECOMMENDATION RE MOTIONS FOR SUMMARY JUDGMENT
The Court recommends Plaintiffs’ Motion for Summary Judgment at Docket 31
be DENIED. The Court further recommends Defendants’ Cross-Motions for Summary
Judgment at Dockets 38 and 43 be GRANTED. Plaintiffs argue that Defendant United
States Fish and Wildlife Service (“FWS”) unlawfully authorized the incidental take
by harassment of Southern Beaufort Sea (“SBS”) polar bears from oil and gas
activities in the 2021-2026 Beaufort Sea Incidental Take Regulation (hereinafter
“2021 BSITR”) in violation of the Marine Mammal Protection Act (“MMPA”), and
failed to conduct the necessary level of analysis under the National Environmental
Policy Act (“NEPA”), and the Endangered Species Act (“ESA”). The Court disagrees
and finds FWS’s 2021 BSITR issued pursuant to the MMPA, and its analysis under
NEPA and the ESA, to be to be reasonable and supported by relevant evidence and
precedent. 	The Court finds FWS’s actions in this case not to be arbitrary and
capricious.
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Order re Motions for Summary Judgment
Alaska Wildlife Alliance, et al., v. U.S. Fish and
Wildlife Service, et al.
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I. 	Background1
a. Factual Background
The SBS polar bear population faces a threat to their existence due to climate
change, 	native 	subsistence 	harvest, 	scientific 	research, 	industrial 	activities,
including oil and gas development, defense of life, shipping, and placement of
orphaned cubs.2 In 2008, FWS listed SBS polar bears as a threatened species under
the ESA and published protective measures that apply to the stock.3 In 2011, FWS
designated critical habitat under the Endangered Species Act (“ESA”) for polar bears
in Alaska, which included barrier island habitat, sea-ice habitat, and terrestrial
denning habitat.4 	The SBS stock currently consists of about 907 bears and has
remained largely stable since 2006.5
FWS first issued regulations in 1993 authorizing the incidental take of
walruses and polar bears in connection with oil and gas exploratory activities in the
Beaufort Sea region for a period of five years.6 	FWS issued an additional six
1 The Background is limited to those facts necessary to decide the motions before the Court.
The Court does not intend for the Background to constitute binding findings of fact should
this matter proceed to trial.
2 	U.S. 	FISH 	& 	WILDLIFE 	SERV., 	POLAR 	BEAR: 	SOUTHERN 	BEAUFORT 	SEA 	STOCK
ASSESSMENT 	(2021), 	chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.fws.gov/sites/default/files/d
ocuments/polar-bear-southern-beaufort-sea-stock-assessment-report-may-2019.pdf.
3 Doc. 1 at 26. All reference to page numbers in filed documents are to the CM/ECF stamped
page number printed in the document footer after filing, and not to the page number printed
on the original document by the parties.
4 Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States,
75 Fed. Reg. 76,086, 76,088–91 (Dec. 7, 2010); BSITR0002386. Consistent with the briefing
of the parties, all record references to the Beaufort Sea Incidental Take Regulations are
abbreviated “BSITR.”
5 BSITR002386.
6 58 Fed. Reg. 60,402 (November 16, 1993).
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Incidental Take Regulations (“ITR/ITRs”) for the Beaufort Sea.7 The 2016 Beaufort
Sea ITR was for a period of five years and expired on August 5, 2021.8
In 	December 	2019, 	FWS
received 	a 	request 	from 	the
Alaska Oil and Gas Association
(“AOGA”) to promulgate an ITR
under the MMPA to regulate the
nonlethal and unintentional take
by harassment of small numbers
of 	walruses 	and 	polar 	bears
incidental to oil and gas industry
activities 	in 	the 	Southern
Beaufort Sea.9 	In order to issue
an ITR, an applicant must submit
a request to FWS that conforms with eight specific MMPA requirements.10 FWS
reviews the request to determine if it is adequate and complete. If it is incomplete
FWS notifies and works with the applicant until it is complete. At that point, FWS
makes 	its 	preliminary 	determinations, 	initiates 	NEPA 	and 	the 	ESA 	processes,
prepares the proposed rule, and publishes notice of it in the Federal Register for a
30–60-day public comment period. After the close of the comment period, FWS
reviews and addresses public comments, finalizes ESA and NEPA compliance, makes
7 60 Fed. Reg. 42,805 (Aug. 17, 1995); 64 Fed. Reg. 4,328 (Jan. 28, 1999); 65 Fed. Reg. 5,275
(Feb. 3, 2000); 65 Fed. Reg. 16,828 (Mar. 30, 2000); 68 Fed. Reg. 66,744 (Nov. 28, 2003);
71 Fed. Reg. 43,926 (Aug. 2, 2006); 76 Fed. Reg. 47,009 (Aug. 3, 2011); 81 Fed. Reg. 52,275
(Aug. 5, 2016).
8 81 Fed. Reg. 52,275 (Aug. 5, 2016).
9 BSITR002386. Plaintiffs do not dispute the regulations as they pertain to walruses.
10 50 C.F.R. § 18.27(d)(1).
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final determinations, and prepares the final rule. FWS then publishes the final ITR
in the Federal Register, and it generally becomes effective after 30 days.11
AOGA submitted its complete request in March 2021.12 On June 1, 2021, FWS
published its proposed ITR along with a draft Environmental Assessment.13 	After
expiration of the 30-day comment period, FWS issued the final 2021 BSITR and EA
governing the non-lethal, incidental take of polar bears and Pacific walruses from
oil and gas activities in the Beaufort Sea nearshore areas of Alaska’s North Slope on
August 5, 2021.14 Pursuant to its authority under the Administrative Procedures Act
(“APA”), FWS found good cause for immediate promulgation of the ITR. 	The ITR
remains effective through August 5, 2026.
FWS determined that no more than 443 individual SBS polar bears would be
taken during the five-year 2021 BSITR.15 	Dividing this total number over the five-
year ITR term, FWS concluded that up to 92 polar bears would be taken yearly by
Level B harassment, which, by FWS’s calculation represented roughly 10% of the
estimated population of 907 polar bears in the SBS stock.16 FWS concluded that this
volume would impact no more than “small numbers” of the SBS polar bear stock.17
FWS anticipated only Level B harassment would occur in its small numbers
determination, and that that level of harassment would have a negligible impact on
the health, reproduction, or survival of SBS polar bears.18 In assessing the amount
of Level A take anticipated, FWS broke down Level A harassment into two categories:
“serious,” meaning impacts likely to result in mortality, and “non-serious,” meaning
11 U.S. Fish and Wildlife Service, “Incidental Take Authorizations for Marine Mammals,”
https://www.fws.gov/service/incidental-take-authorizations-marine-mammals.
12 BSITR002366; BSITR000878-1141; BSITR00853-877.
13 86 Fed. Reg. 79082 (June 1, 2021); see also BSITR002365; BSITR0001731-1802.
14 	86 	Fed. 	Reg. 	42982 	(Aug. 	5, 	2021); 	see 	also 	BSITR002365-2457; 	BSITR002289;
BSITR018535- 18601.
15 BSITR002422.
16 BSITR002429.
17 BSITR002422.
18 AOGA did not request or anticipate any Level A harassment.
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take resulting from encounters that might cause early den departure but would not
likely to result in mortality, and concluded that no Level A take was likely.19
FWS also considered the means of effecting least practicable adverse impacts
(“LPAI”) on the SBS polar bears, and implemented a number of measure designed to
disturbances to polar bear denning sites.20 FWS also completed an EA assessing the
impacts under NEPA of the 2021BSITR. Finally, FWS consulted on the impacts of the
2021 BSITR pursuant to the ESA and completed a Biological Opinion (“BiOp”) that
determined that the proposed activities would only have a negligible effect on the
SBS polar bear stock, and was not likely to affect polar bear critical habitat.21
b. Procedural Background
On September 16, 2021, Plaintiffs22 filed suit against FWS, the United States
Department of Interior, and Shannon Estenoz and Debra Haaland in their official
capacities (collectively “Federal Defendants”) alleging that the five-year 2021 BSITR,
the accompanying Biological Opinion (“BiOp”), and the EA failed to comply with the
MMPA, ESA, and NEPA.23 Plaintiffs properly served Defendants.24 Alaska Oil and Gas
Association and the State of Alaska intervened as co-defendants.25 Defendants
answered the complaint.26
Plaintiffs seek declaratory and injunctive relief against Defendants for their
decision to issue a five-year 2021 BSITR under the MMPA approving the AOGA
petition to take SBS polar bears and Pacific walrus in the Beaufort Sea and adjacent
northern coast of Alaska (North Slope). Plaintiffs argue these animals are protected
19 BSITR0002438.
20 	See 	e.g. 	BSITR0002384, 	BSITR0002393; 	BSITR0002412; 	BSITR0002424; 	and
BSITR0002455-56.
21 BSITR0002333-34; BSITR0002332-33.
22 Alaska Wildlife Alliance, Alaska Wilderness League, Center for Biological Diversity
Defenders of Wildlife, Environment America, Friends of the Earth, and Sierra Club.
23 Doc. 1.
24 Doc. 12.
25 Doc. 15 and Doc. 25.
26 Docs. 16, 20, 26.
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from “take” by the MMPA,27 and polar bears are protected under the ESA as a
threatened species.28 Plaintiffs seek review under the Administrative Procedure Act
(“APA”).
On 	April 	20, 	2022, 	Plaintiffs 	filed 	a 	Motion 	for 	Summary 	Judgment.29
Defendants 	responded 	in 	opposition 	asserting 	a 	cross-motion 	for 	summary
judgment,30 and Plaintiffs replied.31 Defendants argue that the 2021 BSITR complies
with the MMPA, NEPA, and ESA. Defendants ask the Court to uphold the 2021 BSITR,
and grant summary judgment in Defendants’ favor.32
The parties did not request oral argument. The Court deems the issues
sufficiently briefed and oral argument is not necessary. 33
II. 	Jurisdiction
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which
confers jurisdiction on federal courts to review an agency action.34 An aggrieved
party may seek review of an agency action in District Court pursuant to the APA.35
III. 	Legal Standard
The APA governs a court’s review of an agency's compliance with the MMPA,
NEPA, and ESA.36 A reviewing court can set aside an agency's decision if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
27 Doc. 1 at 3.
28 Id.
29 Doc. 31.
30 Docs. 38, 41, 42.
31 Doc. 46.
32 Doc. 38.
33 Inasmuch as the Court concludes the parties have submitted memoranda thoroughly
discussing the law and evidence in support of their positions, it further concludes oral
argument is neither necessary nor warranted with regard to the instant matter. See Mahon
v. Credit Bureau of Placer County Inc., 171 F.3d 1197, 1200 (9th Cir. 1999) (explaining that if
the parties provided the district court with complete memoranda of the law and evidence in
support of their positions, ordinarily oral argument would not be required).
34 5 U.S.C. § 702.
35 5 U.S.C. §§ 701–706.
36 Humane Soc'y v. Locke, 626 F.3d 1040, 1047 (9th Cir. 2010).
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law.”37 “Whether agency action is ‘not in accordance with law’ is a question of
statutory interpretation, rather than an assessment of reasonableness in the instant
case.”38
The Court follows the deferential two-step inquiry set out in Chevron U.S.A. v.
Natural Resources Defense Council, Inc., in reviewing an agency's interpretation and
application of statutes for which it is responsible.39 First, the Court asks “whether
Congress has directly spoken to the precise question at issue. If the intent of
Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.”40 Second, “if
the statute is silent or ambiguous with respect to the specific issue, the question for
the court is whether the agency's answer is based on a permissible construction of
the statute.”41
A court cannot substitute its judgment for that of the administrative agency,
therefore its review should be “searching and careful,” but “narrow.”42 [D]eference
to the agency’s decisions is especially warranted when “reviewing the agency’s
technical analysis and judgments, based on an evaluation of complex scientific data
within the agency’s technical expertise.”43 “Nevertheless, the agency must examine
37 5 U.S.C. § 706(2)(A).
38 City of Sausalito v. O'Neill, 386 F.3d 1186, 1206 (9th Cir. 2004); 5 U.S.C. § 706(2)(A)
(1980).
39 467 U.S. 837, 843–44 (1984). Prior to undertaking the two-step Chevron inquiry, the Court
must determine whether Congress intended “the agency to be able to speak with the force
of law when it addresses ambiguity in the statute or fills a space in the enacted law.” United
States v. Mead Corp., 533 U.S. 218, 229 (2001). This step is colloquially referred to as “Step
Zero” of the Chevron analysis. See, e.g., Oregon Rest. & Lodging v. Solis, 948 F.Supp.2d 1217,
1222–23 (D. Or. 2013); see also Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1216–18
(9th Cir. 2015).
40 Chevron, 467 U.S. at 842–43.
41 Id. at 843. The Supreme Court and the Ninth Circuit sometimes describe the statutory
standard as “whether the agency's interpretation is reasonable.” See King v. Burwell, 576
U.S. 473 (2015); see also Alaska Wilderness League, 788 F.3d at 1220–21.
42 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989).
43 Envtl. Defense Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir. 2003) (citing Baltimore Gas &
Elec. Co. v. NRDC, 462 U.S. 87, 103, (1983) and Chem. Mfrs. Ass'n v. EPA, 919 F.2d 158, 167
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the relevant data and articulate a satisfactory explanation for its action including a
rational connection between the facts found and choice made.”44 Courts may reverse
an agency’s decision only if the agency depended on factors that Congress “did not
intend it to consider, entirely failed to consider an important aspect of the problem,
offered an explanation 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.”45
If an agency changes its policy, it is “obligated to supply a reasoned analysis
for the change.”46 An agency change in position is arbitrary unless the agency (1)
displays “awareness that it is changing position,” (2) shows that “the new policy is
permissible under the statute,” (3) “believes” the new policy is better, and (4)
provides “good reasons” for the new policy.47
IV. 	Discussion
Plaintiffs allege that FWS’s 2021 BSITR and accompanying environmental
review documents fail to comply with the MMPA, NEPA, and ESA.48 	Defendants
disagree, arguing that the 2021 BSITR was properly issued and is in compliance with
each of the statutes. The Court considers all pleadings by the parties and evaluates
the arguments under each statute in turn.
a. MMPA
i. 	Statutory and Regulatory Framework
“To prevent marine mammal species and population stocks from diminishing
‘beyond the point at which they cease to be a significant functioning element in the
(D.C. Cir. 1990) (“It is not the role of courts to ‘second-guess the scientific judgments of the
EPA....’”)).
44 Envtl. Defense Ctr., 344 F.3d at 869.
45 Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009).
46 Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42
(1983).
47 F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009); see also Organized
Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (en banc).
48 Doc. 31 at 11.
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ecosystem,’” the MMPA generally prohibits the “take” of marine mammals. 49 The
term “take” is defined broadly and means “to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal.”50 “Harassment” is
defined, in relevant part, to include any act of pursuit, torment, or annoyance which
(1) “has the potential to injure a marine mammal or marine mammal stock in the
wild” (“Level A harassment”), or (2) “has the potential to disturb a marine mammal
or marine mammal stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding, feeding, or
sheltering” (“Level B harassment”).51 “Injury” is defined as “a wound or other
physical harm.”52
In the 2021 BSITR, FWS further broke down “Level A harassment” into two
subcategories, “serious” and “non-serious.” 	Neither of these subcategories are
defined in the statute or its implementing regulations. 	For purposes of the 2021
BSITR, FWS defined “serious injury Level A harassment” as injurious take “that is
likely to result in mortality.”53 “For dens where emergence was not classified as
early, if an exposure occurred during the post-emergence period and bears departed
the den site prior to their intended (i.e., undisturbed) departure date,” FWS assigned
a non-serious injury Level A harassment take for each cub that had to depart its den
“less than 8 days after the emergence date.”54
The MMPA includes several exceptions to its general taking prohibition. The
exception at issue in this case allows for “the incidental, but not intentional, taking
by citizens while engaging in [an activity such as oil exploration] ... of small numbers
of marine mammals of a species or population stock” when the Secretary of the
49 Natural Resources Defense Council, Inc. v. Pritzker, 828 F.3d 1125, 1129 (9th Cir. 2016)
(quoting 16 U.S.C. § 1361(2)) (hereinafter “Pritzker 1”); see also 16 U.S.C. § 1371(a).
50 Id. at § 1362(13).
51 16 U.S.C.A. § 1362(18).
52 50 C.F.R. 229.2.
53 BSITR0002396.
54 BSITR0002409.
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Interior “finds that the total of such taking ... will have a negligible impact on such
species or stock....”55 “Small numbers” is defined as “a portion of a marine mammal
species or stock whose taking would have a negligible impact on that species or
stock.”56 “Negligible impact” is defined as an impact that “cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the species or stock
through effects on annual rates of recruitment or survival.”57
If 	FWS 	makes 	the 	required 	findings 	relating 	to 	“small 	numbers” 	and
“negligible impact,” it may, after notice and comment, issue ITRs that authorize
incidental takes “during periods of not more than five consecutive year[s.]”58 	The
regulations must
set[] forth permissible methods of taking pursuant to such activity, and
other means of effecting the least practicable adverse impact on such
species 	or 	stock 	and 	its 	habitat, 	paying 	particular 	attention 	to
rookeries, mating grounds, and areas of similar significance, and on
the availability of such species of stock for subsistence users; and
requirements pertaining to the monitoring and reporting of such
taking.59
“The 	‘least 	practicable 	adverse 	impact’ 	standard 	applies 	both 	to 	‘permissible
methods of taking pursuant to’ the activity causing incidental take and to ‘other
means’ of reducing incidental take.”60 	The “least practicable impact” requirement
is a “stringent standard,” and “‘[a]lthough the agency has some discretion to choose
among possible mitigation measures, it cannot exercise that discretion to vitiate this
stringent standard.’”61
After an ITR is issued, citizens may apply for a letter of authorization (“LOA”)
that authorizes incidental takes of “small numbers of marine mammals incidental to
55 Id. at § 1371(a)(5)(A)(i).
56 50 C.F.R. § 18.27(c).
57 Id.; see also 54 Fed. Reg. 40,340 (citing 132 Cong. Rec. 16305 (Oct. 15, 1986)); Natural
Resources Defense Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1159 (N.D. Cal., 2003).
58 16 U.S.C.A. 1371(a)(5)(A)(i).
59 Id. at (II); see also Center for Biological Diversity v. Salazar, 695 F.3d 893, 899 (9th Cir.
2012 (hereinafter “CBD”).
60 Pritzker 1, 828 F.3d at 1130 (citing Evans, 279 F.Supp.2d at 1142 (citation omitted)).
61 Id.
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a specified activity” consistent with the ITR.62 	LOAs are issued after a non-public
process if FWS determines that the proposed activity is one described in the ITR and
concludes that the level of take caused by the activity will be consistent with the
findings made in the regulation.63 Notice of the issuance of a LOA must be published
in the Federal Register within 30 days of its issuance.64 The regulation also provides
that LOAs will specify “any additional terms and conditions appropriate for the
specific request.”65
ii. 	Plaintiffs’ Arguments under the MMPA
Plaintiffs make five arguments under the MMPA. First, Plaintiffs argue that
FWS’s 	small 	numbers 	finding 	improperly 	segments 	its 	analysis 	into 	annual
increments, an agency decision that failed to properly consider total authorized
takes for the entire five-year period and which amounted to an impermissible policy
reversal. Second, FWS’s Level A harassment categories of “serious” and “non-
serious” are contrary to the plain language of MMPA. Third, FWS’s negligible impact
finding improperly disregarded impacts of cub loss by serious Level A harassment
and lethal take, and failed to consider impacts of “non-serious” Level A harassment.
Fourth, FWS failed to account for Level A harassment or lethal take that was likely
to occur. Finally, FWS’s failure to consider timing and geographic restrictions on oil
and gas activities was improper because it did not ensure the least practicable
adverse impact to SBS polar bears.66
//
//
//
62 50 C.F.R. § 18.27(d). Citizens are defined, in pertinent part, as “individual U.S. citizens
or any corporation or similar entity if it is organized under the laws of the United States[.]”
Id. at § 18.27(c).
63 Id. at § 18.27(f)(1–2).
64 Id. at § 18.27(f)(3).
65 Id.
66 Doc. 31 at 16.
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1. 	FWS’s 	Small 	Numbers 	Finding 	Did 	Not 	Violate 	the
MMPA and APA.
a. FWS’s Use of Annual Takes as Opposed to Five-
Year Total Takes in Making its Small Numbers
Finding Was a Reasonable Interpretation of the
Statute.
Plaintiffs argue that FWS’s small numbers finding violates the MMPA because
it segments its analysis into annual increments which fail to properly consider total
authorized takes. 	Plaintiffs state that the 2021 BSITR allows the take of up to 443
individual SBS polar bears over the course of the ITR’s five-year duration, which by
Plaintiffs’ calculation equates to 48.84%, or nearly half, of the estimated population
of 907 SBS polar bears.67 	Plaintiffs assert that Defendants erred by basing their
small numbers finding on an annual take rate of 10.4%, a number generated by
dividing the 2021 BSITR’s total takes of 443 by five to calculate the number of takes
per year (92), and then considering that number against the total population of
907.68
Plaintiffs contend that FWS’s decision to consider annual take in its small
numbers determination, as opposed to total take is arbitrary and flouts Congress’
clear intent.69 Plaintiffs argue that the MMPA’s plain language requires FWS to
determine whether the total take authorized for the oil and gas activities across all
five years constitutes a small number. Plaintiffs allege that FWS impermissibly
divided that analysis into lesser one-year increments, which contravenes the plain
language of the MMPA and makes the small numbers standard meaningless.70
Additionally, Plaintiffs allege that FWS impermissibly reversed its policy of
considering total takes for the five-year 2021 BSITR period and instead switched to
67 Doc. 31 at 20-21; see also BSITR0002386.
68 BSITR0002422; BSITR0002429; see also Doc. 31 at 21.
69 Doc. 31 at 20-21; BSITR0002422.
70 Doc. 31 at 22.
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an annual calculation without supplying a reasoned analysis for the change.71 Per
Plaintiffs, in issuing prior five-year ITRs, FWS considered the total take across all
given years in making its small numbers determinations.72 As evidence of this,
Plaintiffs cite to the 2016-2021 Beaufort Sea ITR73, the 2019-2024 Cook Inlet ITR74,
the 2013-2018 Chukchi Sea ITR75, and the 2008-2013 Chukchi Sea ITR.76
Defendants argue that its “small numbers” finding is rational, permissible,
and consistent with FWS’s past practice in its Beaufort Sea ITRs since 2011;
consistent with Congressional intent; and is a practice that has been previously
upheld in CBD.77 Defendants further state that there has been no policy reversal in
this case, and Plaintiffs’ reliance on prior ITRs as evidence of such a reversal is either
factually incorrect or misplaced.78
Defendant Intervenor State of Alaska repeats the above arguments, and
further contends that historical data suggests it is unlikely that 443 Level B
harassment takes of unique SBS polar bears will occur.79 	In support of this
conclusion 	they 	refer 	to 	2014-2018 	data 	illustrating 	that 	only 	264 	Level 	B
harassments occurred out of the 1,698 bears encountered by industry, resulting in
take of “only 15.5 percent of the observed bears.”80 Per the State of Alaska, these
71 Doc. 31 at 25.
72 Doc. 31 at 26-28.
73 Final Rule, Marine Mammals; Incidental Take During Specified Activities, 81 Fed. Reg.
52,276–77, 52,304 (Aug. 5, 2016). (“We conclude that over the 5-year period of these ITRs,
Industry activities will result in a similarly small number of Level B takes of polar bears.”);
id. at 52,306 (“Based on this information, we estimate that there will be no more than 340
Level B harassments takes of polar bears during the 5-year period of these ITRs.”). Courts
take judicial notice of the Federal Register. See 44 U.S.C. § 1507.
74 Final Rule, Marine Mammals; Incidental Take During Specified Activities: Cook Inlet,
Alaska, 84 Fed. Reg. 37,716 (Aug. 1, 2019).
75 Final Rule, Marine Mammals; Incidental Take During Specific Activities, 78 Fed. Reg.
35,364, 35,415 (June 12, 2013).
76 Final Rule, Marine Mammals; Incidental Take During Specific Activities, 73 Fed. Reg.
33,212 (June 11, 2008).
77 Doc. 38 at 15-23; see also Doc. 43 at 24-28.
78 Doc. 38 at 15-23; see also Doc. 43 at 28-30.
79 Doc. 41 at 17-18.
80 Doc. 41 at 13, 18-19; see also BSITR0002422.
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statistics necessarily include multiple takes of the same bear rather than each take
affecting a different bear since the SBS stock’s estimated population is 907, which
they claim has remained constant since 2015, and many bears remain on sea ice and
are never encountered by industry.81 Defendant State of Alaska therefore concludes
that FWS’s small numbers finding is rational because current industry activities are
expected to be similar to industry activities under past ITRs, which resulted in less
take than anticipated, but were still considered “small numbers” at the outset.82
Plaintiffs’ assertion that FWS’s small numbers finding based on an annual
accounting of potential Level B SBS polar bear takes violated the MMPA is without
merit. In this case, FWS considered, and rejected, a five-year analysis in favor of an
annual accounting of SBS polar bear takes, reasoning that such an accounting “best
enables the Service to assess whether the number of animals taken is small relative
to the species or stock.”83 This interpretation is consistent with the statute 	and is
not an unreasonable application of the law. 	It is therefore entitled to deference by
this Court. The relevant statutory language governing “small numbers” contains no
express provision for how this figure is to be determined, only that it may be for
“periods of not more than five consecutive years each.”84 	Had Congress meant to
absolutely require such granularity, it could have said so, as it has done in other
statutes.85 	When a “statute is silent or ambiguous on the precise question at issue,
81 Id. at 18.
82 Id. at 18.
83 BSITR0002428.
84 16 U.S.C. § 1371(a)(5)(A)(i).
85 See 16 U.S.C. 1386(a), (c) (requiring stock assessment reports to estimate the annual
human-caused mortality and serious injury of the stock, and annual review of stock
assessments when significantly new information is available that may indicate the stock
assessment should be revised); 16 U.S.C. 1362(26) (defining “net productivity rate” as the
annual per capita rate of increase in a stock resulting from additions due to reproduction,
less losses due to mortality); 16 U.S.C. 1383a(l)(ii) (requiring MMC's recommended
guidelines to govern the incidental taking of marine mammals in the course of commercial
fishing operations, to the maximum extent practicable, to include as a factor to be
considered and utilized in determining permissible Levels of taking “the abundance and
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Chevron commands that we accept the agency's interpretation so long as it is
reasonable, even if it is not the reading that we would have reached on our own.”86
FWS’s interpretation of the statute in this case was reasonable and creates “a
symmetrical and coherent regulatory scheme.”87 	As Federal Defendants argue,
FWS’s interpretation avoids the illogical result that would occur under Plaintiffs’
reading; namely, a statutory scheme in which FWS could promulgate ITRs for five
one-year periods that each rely on an annual assessment, but not a single five-year
ITR that does the same.88 	Furthermore, allowing an annualized assessment is
consistent with the mechanism that actually allows a take of small numbers of
marine mammals, the LOA, of which there could be multiple during the period of an
ITR so long as the “total of such taking during each five-year period or less…. will
have no more than a negligible impact on such species or stock.”89
Moreover, as the Ninth Circuit held in CBD, FWS need not provide any number
in its small number calculation.90 In providing a quantifiable estimate of take in this
case FWS relied on “historical data, plus modeling,”91 and concluded that based upon
past reported incidental take from 2014-2018 - an annual average of 53 Level B
annual net recruitment of such stocks”). 16 U.S.C. § 1387(f)(4)(B) (requiring that take
reduction plans include “an estimate of the total number … of animals from the stock that
are being incidentally lethally taken or seriously injured each year during the course of
commercial fishing operations, by fishery”) (emphasis added).
86 CBD, 695 F.3d at 893 (citing Chevron, 467 U.S. at 843 & n. 11).
87 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Gustafson v.
Alloyd Co., 513 U.S. 561, 569 (1995); FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)).
88 Doc. 38 at 17-18.
89 BSITR0002365. 	The Court also notes that FWS’s annual accounting is consistent
throughout the 2021 BSITR as applied to both polar bears and walruses. 	However, yet
Plaintiff does not challenge FWS’s small numbers determination as it relates to walruses,
which estimated a take of 15 walruses per year. It is incongruous for Plaintiffs to argue that
FWS misinterpreted the statute as it relates to SBS polar bears, but that the same
methodology was not objectionable when applied to the SBS walrus population.
90 CBD, 695 F.3d at 907 (“The Service need not quantify the number of marine mammals
that would be taken under the regulations, so long as the agency reasonably determines
through some other means that the specified activity will result in take of only “small
numbers” of marine mammals.”)
91 Doc. 41 at 14.
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harassments - a similarly small number of incidental harassments of polar bears
would occur over the 2021 BSITR period.92 Next, FWS considered results from its
predictive modeling exercise, which estimated based upon the forecasted SBS polar
bear population that “there will be no more than 443 Level B harassment takes of
polar bears during the five-year ITR period, with no more than 92 occurring within
a single year.”93
FWS concluded that 92 Level B harassment takes within a single year was a
small number. As FWS stated, this number was a conservative estimate because they
“could not reliably calculate how many of the anticipated Level B harassments would
accrue to the same animals,…[and therefore assumed] that each of the anticipated
takes would accrue to a different animal.”94 In making its determination, FWS stated
that they “consider[ed] whether the estimated number of marine mammals to be
subjected to incidental take is small relative to the population size of the species or
stock,” and determined that the “incidental Level B harassment of no more than 92
polar bears each year is unlikely to lead to significant consequences for the health,
reproduction, or survival of affected animals.”95
FWS explained in response to comments that the “SBS population estimate…is
calculated using a number of annual metrics, including annual survival probabilities,
annual number of dens, and annual denning success.”96 FWS “divided annual take
estimates by annual population estimate, to calculate a percentage of the population
potentially taken for its small numbers determination” which “best enables FWS to
assess whether the number of animals taken is small relative to the species or
stock.”97 The Ninth Circuit previously upheld this proportional analysis.98
92 BSITR002422.
93 Id.
94 BSITR0002427.
95 BSITR002422-23; BSITR002427.
96 BSITR0002428.
97 Id.
98 CBD, 695 F.3d at 905-07.
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FWS’s “small numbers” analysis further contrasted the limited geographic
area impacted by industrial activities with the larger range of SBS polar bears,
finding that “only seven percent of the ITR area is estimated to be impacted by the
proposed industry activities” and “the area of industry activity will be relatively
small compared to the range of [SBS] polar bears.”99 The Ninth Circuit has expressly
upheld an interpretation of the term “small numbers” which “focuses primarily on
the 	location 	of 	the 	exploration 	activities 	in 	relation 	to 	the 	mammals' 	larger
population.”100 It was not improper for FWS to rely on similar metrics in this case.101
b. FWS’s Use of Annual Takes to Make its Small
Numbers Finding Was Not a Policy Reversal.
Plaintiffs 	argue 	that the 	use 	of 	an 	annual 	accounting 	as 	opposed 	to 	a
cumulative five-year total amounts to a policy “reversal” that “FWS failed to
explain.”102 The Court finds this argument to be without merit as it is not apparent
FWS has changed its policy. Two previous Beaufort Sea ITRs show this to be true.
In the 2011-2016 Beaufort Sea ITR – an ITR Plaintiffs failed to cite to despite
its obvious similarities to the 2021 BSITR - FWS analyzed annual polar bear take
observed during the preceding ITR period to estimate the total number of future
takes by Level B harassment would not exceed 150 per year (out of a population of
900 polar bears), a figure it concluded was a “small number.”103 	In response to a
99 BSITR0002422.
100 Ctr. for Bio. Diversity, 695 F.3d at 907.
101 The Court notes that FWS’s small number calculation of approximately 10% in this case
is similar to the annual calculation upheld by the District Court in Native Village of
Chickaloon v. National Marine Fisheries Service, 947 F.Supp.2d 1031 (D. Alaska 2013). In that
case, the District Court held that Level B harassment, or taking, of up to 10% per year of the
Cook Inlet beluga whale population – up to 30 animals per year out of a total population of
approximately 284 animals 	for up to three years constituted a “small number” of the
population relative to the affected population size because “10% represent[ed] a relatively
limited or small portion of 100%,” and it was a figure supported by a “rational, albeit sparse,
basis.” 	Id. at 1053.
102 Doc. 31 at 16.
103 76 Fed. Reg. 47,010, 47,039-41, 47,045, 47,047 (Aug. 3, 2011).
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comment to the 2011 Beaufort Sea ITR, which complained that FWS was “treating
‘small numbers’ as being relative to population size,” FWS replied, “[t]he Service has
determined that the anticipated number of polar bears… that are likely to modify
their behavior as a result of oil and gas industry activity is small (150 takes per year
for polar bears[.])”104 And like the current 2021 BSITR, FWS based its small numbers
findings on distribution patterns and habitat use of the polar bears in proportion to
the footprint of the industry activity.105
FWS used the same method in the 2016-2021 Beaufort Sea ITR. In that ITR,
FWS estimated up to 338 total takes of polar bears by Level B harassment over the
five-year period, approximately 18 percent of the observed bears or 7.5 percent of
the SBS population, which annualized to 68 polar bears per year.106 FWS determined
Level B take of up to 7.5% of the SBS polar bear population constituted small
numbers, 	and 	repeated 	that 	percentage 	in 	rendering 	its 	small 	numbers
determination by dividing the number of bears expected to be taken over the ITR
term (338) by five, and then dividing the resulting estimate of annual take (68) by
the annual population estimate (900).107
The 2013-2018 Chukchi Sea ITR also uses a similar annual small numbers
calculation.108 Like the 2021 BSITR, this ITR assessed the take of walrus and polar
bears from oil and gas exploration in the Chukchi Sea, a body of water immediately
west of the Beaufort Sea. 	As FWS stated in that ITR, “the estimated total Level B
incidental take for polar bears is expected to be 25 animals per year[.]”109
104 Id. at 47045 (emphasis added).
105 BSITR002422-23.
106 BSITR0013791.
107 Id. at 13793.
108 78 Fed. Reg. 35,364 (June 12, 2013).
109 Id. at 35400 (emphasis added); see also id. at 35401 (“Overall, these takes (25 annually)
are 	not 	expected 	to 	result 	in 	adverse 	effects 	that 	will 	influence 	population-level
reproduction, recruitment, or survival.”)
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As it relates to the other ITRs identified by Plaintiffs, the Court does not find
that they are evidence of a policy reversal. In the 2008-2013 Chukchi Sea ITR, FWS
rendered a qualitative small numbers determination that did not estimate an
aggregate number of polar bear takes across the five-year period.110 	In the 2019-
2024 Cook Inlet ITR, FWS did compare five years of aggregated take with the annual
population estimates for two affected stocks.111 However, this ITR involved a
different species in a different location. 	The Court does not find that this ITR is
sufficient evidence of a policy reversal that would make FWS’s action in this case
arbitrary or require “a reasoned analysis for the change.”112
The 	Court 	finds 	that 	FWS’s 	small 	numbers 	finding 	is 	not 	arbitrary 	or
capricious. 	The Court finds FWS’s interpretation of the MMPA and its annualized
small numbers finding reasonable. 	Furthermore, the Court sees no policy reversal
in this annualized determination and finds it to be in accordance with prior ITRs.
2. FWS’s Division of Level A Harassment into “Serious”
and “Non-Serious” Harassment Was Not Contrary to
the Plain Language of the MMPA.
Plaintiffs claim that FWS’s division of Level A harassment into “serious” and
“non-serious” subcategories should be rejected because it contravenes the plain
language of the MMPA and fails to accurately consider the total likelihood of Level A
harassment by concealing the high probability of Level A harassment occurring.113
Plaintiffs argue that a distinction between “serious” and “non-serious” harassment
does not exist under the statute or FWS’s regulations, and the MMPA’s plain language
makes clear that any act with the potential to injure a marine mammal constitutes
Level A harassment.114
110 See 73 Fed. Reg. at 33,234; Doc. 38 at 22.
111 Doc. 38 at 22.
112 Motor Vehicles Mfrs. Ass’n of U.S., Inc., 463 U.S. at 42.
113 Doc. 31 at 29.
114 Id.
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In support of their arguments, Plaintiffs cite to 16 U.S.C. § 1371(a)(2), where
the MMPA uses the term “serious injury,” but only in the context of commercial
fisheries. In Plaintiffs’ view, this use of the term “serious injury” in another portion
of the statute governing the issuance of ITRs means that Congress understood how
to specify “serious injury” as a form of take, but declined to apply it outside of
commercial fishing activities.115 Plaintiffs argue that “agencies are not free to add
text to a statute that is not there.”116
Federal Defendants argue that FWS’s consideration of different types of Level
A harassment in its negligible impact analysis is consistent with the MMPA and
Congressional intent.117 Federal Defendants state, “[e]ven though the MMPA does
not define sub-categories of ‘Level A harassment,’ the statute does not preclude FWS
from using non-statutorily defined terms within its analysis, especially where the
terms have a sound biological basis and pertain to MMPA compliance.”118 Defendants
argue that Congress granted the agency discretion to determine “the potential
severity of harm to the species or stock when determining negligible impact.”119
Federal Defendants claim it reasonably segregated the potential types of Level A
harassment (serious and non-serious) in order to accurately determine whether or
not the total take would have a negligible impact on the SBS polar bears because
“[n]ot 	all 	Level 	A 	harassment 	events 	affect 	annual 	rates 	of 	recruitment 	or
survival.”120
Plaintiffs’ argument that FWS was not permitted to define Level A harassment
as either “serious” or “non-serious” is unavailing. Congress has not spoken directly
115 Id. citing Russello v. United States, 464 U.S. 16, 23 (1983).
116 United States v. Washington, 994 F.3d 994, 1016 (9th Cir. 2021).
117 Doc. 38 at 23-26; Doc. 43 at 30-42.
118 Doc. 38 at 23; 16 U.S.C. § 1362(18)(A)(i).
119 Doc. 38 at 23; see also BSITR002423 (summarizing Congressional instruction on
negligible harm inquiry at 132 Cong. Rec. S. 16305 (Oct. 15, 1986)).
120 Doc. 38 at 24 (citing BSITR002430; BSITR002423; and BSITR—2396); see also Doc. 43 at
32-44.
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to the issue of subdividing Level A harassment categories. As such, the Court must
defer to FWS’s reasonable interpretation of the statute.
FWS’s regulations define “negligible impact” as “an impact resulting from the
specified activity that cannot be reasonable expected to, and is not reasonably likely
to, adversely affect the species or stock through effects on the annual rates of
recruitment or survival.”121 	In light of the finding FWS was required to make as it
related to whether or not activities under the 2021 BSITR would have a negligible
impact on SBS polar bears, determining whether those activities would lead to
serious or non-serious injury was a reasonable action by FWS.
In evaluating levels of injury as serious or non-serious, FWS considered stages
in the polar bear denning process where take by Level A harassment or lethal take
might occur and differentiated between the likely biological responses of affected
polar bears in each of those scenarios: den establishment, early in the denning
period, late in the denning period, and after emergence from the den.122 It used this
information to formulate its modeling approach to quantifying take, including
evaluating probable biological responses 	based on exposure 	to project-related
disturbance.123 Relying on scientific and biological bases, FWS analyzed how the
timing of disturbances during the polar bear denning cycle effects the annual rates
of recruitment or survival, and thus the negligible impact standard, determining that
disturbances in the early denning period would likely lead to the death of polar bear
cubs (serious injury Level A harassment), with harassment at other times likely to
either not cause Level A harassment (den establishment period) or be not likely to
lead to serious injury resulting in mortality (non-serious Level A harassment).124
Based on its research, modeling approach, and review of “impacts of previous
industry activities on … polar bears,” FWS noted that “Level A harassment” to bears
121 50 C.F.R. § 18.27(c).
122 BSITR0002393.
123 BSITR002397.
124 BSITR002393-94; BSITR002434-37.
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on the surface is extremely rare within the ITR region,” with only one instance of
Level A harassment occurring in the region from 2012-2018, arising from defense to
human life while engaged in non-industry activity.125
The purpose of determining whether or not harassment was likely to be
“serious” or “non-serious” was to assess whether such harassment would be likely
to effect “annual rates of survival.” This purpose is consistent with determining the
impact of harassment. 	Moreover, the subcategorization in this case is consistent
with other sections of the MMPA126 and the categorization of serious injury has also
been used by the National Marine Fisheries Service to evaluate negligible impacts.127
In the context of determining whether Level A harassment will have a
“negligible 	impact” 	on 	SBS 	polar 	bear 	“recruitment 	and 	survival,” 	FWS’s
interpretation is reasonable and is not, as Plaintiffs argue, “add[ing] text to [the
MMPA] that is not there.”128 In drawing a distinction between “serious” and “non-
serious” injury, FWS appears to be supported by well-accepted standard practices in
the industry, a sound biological basis to the terms used which pertain to MMPA
compliance, careful quantitative modeling, review of past observations, qualitative
analysis, and overall sound scientific research.129
“Congress has made it clear that FWS has discretion in determining “the
potential severity of harm to the species or stock when determining negligible
impact.””130 The Court finds that FWS did precisely that here and it, not the Court or
125 BSITR0002396.
126 See 16 U.S.C. § 1386.
127 See BSITR0015685-86 (evaluating Liberty Project).
128 Doc. 31 at 30. The Court notes that Plaintiffs apply this quote to “agencies.” Id. However,
the case relied on for this quote, Washington, 994 F.3d at 1016, as well as the case relied on
by Washington for this language, Arizona State Bd. For Charter Schools v. U.S. Dept. of Educ.,
464 F.3d 1003 (9th Cir. 2006), make it clear that the language applies to the Courts and not
to agencies.
129 16 U.S.C. § 13629(18)(A)(i).
130 BSITR002423 (summarizing Congressional instruction on negligible harm inquiry at 132
Cong. Rec. S. 16305 (Oct. 15, 1986)); 68 FR 66744 (Nov. 28, 2003); 53 FR at 8474 (Mar. 15,
1988).
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Plaintiffs, is in the best position to determine the potential severity of harm to the
SBS population. Therefore, as required by Chevron, the Court defers to FWS’s well-
reasoned 	expertise.131 	While 	there 	is 	no 	prior 	precedent 	evidencing
subcategorization 	of 	Level 	A 	harassment 	used 	in 	this 	case, 	FWS 	reasonably
interpreted the MMPA and supported that interpretation with sound logic and
science.132 Applying the Chevron standard, the Court must accept Defendant FWS’s
construction of the statute and finds FWS’s construction not to be arbitrary or
capricious.
3. FWS’s Negligible Impact Finding Did Not Violate the
MMPA and APA.
Plaintiffs allege that FWS’s negligible impact findings violated the MMPA for
two reasons, both of which relate to Defendants’ sub-categorization of Level A
harassment, which the Court finds supra was reasonable and not arbitrary and
capricious.133 First, Plaintiffs argue that FWS “refused to consider” the impacts of
polar bear cub loss by serious Level A harassment and lethal take in any given year,
and across the five-year term of the ITR.134 Second, Plaintiffs allege FWS improperly
“classified take that would impair cubs’ fitness to survive as ‘non-serious’” and
arbitrarily 	failed 	to 	consider 	the 	impacts 	of 	that 	“non-serious” 	Level 	A
harassment.135 The result of these failures to consider by FWS, Plaintiffs allege, is a
negligible impact finding that is arbitrary.
Federal Defendants counter that the MMPA does not specify a particular
methodology 	that 	must 	be 	used 	“in 	determining 	whether 	the 	impacts 	of 	the
131 See Center for Biological Diversity v. Kempthorne, 588 F.3d 701, 710 (9th Cir. 2009)
(upholding the Service's “negligible impact” finding because the agency “made scientific
predictions within the scope of its expertise, the circumstance in which we exercise our
greatest deference”) (hereinafter “Kempthorne”).
132 Compare Humane Soc’y of U.S. v. Brown, 924 F.Supp.2d 1228, 1244-46 (D. Or. 2013)
(upholding use of NMFS use of undefined “significant negative impact” categorization).
133 See supra Section IV(a)(ii)(2).
134 Doc. 31 at 32.
135 Doc. 31 at 38.
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authorized taking on the species or stock will be negligible,” and that FWS “gave
proper effect to the ordinary meaning of [the] regulatory definition of” negligible
impact.136 As it concerns Plaintiffs’ allegation that FWS did not consider the impacts
of serious Level A harassment, Federal Defendants disagree, arguing that the record
demonstrates that FWS did in fact consider all of the available data and that
Plaintiffs disagreement with FWS’s reasonable interpretation is not a basis to find
FWS’s negligible impact finding arbitrary.137 Federal Defendants further argue that
its conclusions regarding the impacts of non-serious Level A harassment were
supported by the “best available science,” and were “manifestly based on evidence,
not an absence thereof as Plaintiffs contend.”138 	Defendant-Intervenor State of
Alaska adds that FWS claims that its approaches were conservative, in estimating
the harassment rate from surface encounters FWS used the 99 percent quantile of
its probability distributions, “meaning that there is a 99 percent chance that given
the data, the actual harassment rate will be lower.”139 	Additionally, Defendant-
Intervenor argues that FWS considered biological characteristics of the polar bear
species, including the information generated by the species’ listing and critical
habitat 	designation, 	the 	wide 	distribution 	of 	SBS 	polar 	bear 	stock 	across 	a
geographic range that exceeds the region covered by the 2021 BSITR, and numerous
mitigation measure, including seasonal restrictions, early detection monitoring
programs, den detection surveys for polar bears, and adaptive mitigation and
management 	responses 	based 	on 	real-time 	monitoring 	information 	to 	limit
disturbance of denning bears.140
//
//
136 Doc. 38 at 26-27; see also Doc. 41 at 28-29; Doc. 43 at 37.
137 Doc. 38 at 26-32; see also Doc. 41 at 30-31.
138 Doc. 38 at 40.
139 Doc. 41 at 30.
140 Doc. 41 at 30-31; see also Doc. 43 at 40-41.
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a. FWS Adequately Considered Potential Injury or
Mortality to Polar Bear Cubs.
Plaintiffs argue that Defendants FWS’s negligible impact finding is arbitrary
and capricious because the impact of Level A harassment or lethal take of newborn
cubs is “reasonably likely” to occur, both annually and over the five-year 2021
BSITR.141 Plaintiffs claim that “FWS’s calculations show a 45% to 46% yearly
probability of cub death by ‘serious’ Level A harassment or lethal take in each year
of the five-year ITR,” a 94% probability of cub death in at least one year of the ITR,
and a 70% probability of a cub death occurring in at least two years.142 	Such high
likelihoods, Plaintiffs argue, are inconsistent with FWS’s conclusion that lethal Level
A take was not reasonably likely to occur during the 2021 BSITR and would therefore
have a negligible impact on SBS polar bears.143
FWS 	maintains 	that 	it 	reasonably 	applied 	its 	longstanding 	regulatory
definition of “negligible impact,” giving credence to the ordinary meaning of the
regulatory definition and “reasonably determined that authorizing a finite number
of Level B harassment of SBS polar bears would have a negligible impact on that
stock.”144 	FWS also asserts that its decision to employ the median probability of
lethal Level A take – which was zero – as opposed the mean, which leads to Plaintiffs’
higher probabilities, demonstrates that the probability of lethal Level A take was
considered.145 In addition, Plaintiffs assert that use of a median value as opposed to
the mean was a valid and appropriate interpretation of the modeling data that
warrants deference.146
141 Doc. 31. at 32.
142 Doc. 31 at 33.
143 Doc. 31. at 33-35.
144 50 C.F.R. § 18.27(c); Doc. 38 at 26-27.
145 Doc. 38 at 30.
146 BSITR002427-28; Doc. 38 at 31.
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The MMPA does not define the term “reasonably likely.” The Court therefore
applies a generally accepted meaning to the term. Likely means that there is “a
strong tendency, reasonably expected.”147 “Reasonably” modifies likely, an adjective,
to define the likeliness as reasonable under the circumstances.148 Reasonably likely
means “there is a real chance of an event occurring; it is not fanciful or remote,” it
is “more probable than not, based in reason or experience.”149 More probable than
not means that upon consideration of all of the relevant evidence and materials, a
preponderance 	of 	the 	evidence 	and 	materials 	supports 	the 	finding.150Proving
a proposition by the preponderance of the evidence requires demonstrating that
the proposition is more likely true than not true.151
Although generally lower percentages such as 10% and 12% have been found
to be not reasonably likely percentages,152 FWS’s interpretation of “reasonably
likely” gives effect to the ordinary meaning of the term “likely,”153 and conforms
with the Ninth Circuit’s interpretation of a related act, the ESA, which does not
mandate “specific quantitative targets.”154 FWS’s interpretation is also consistent
with other rules and situations whereby both FWS and the National Marine Fisheries
Service (“NMFS”), with whom it jointly administers both the ESA and MMPA,
147 Black's Law Dictionary (11th ed. 2019).
148 Id.
149 	Law 	Insider 	“reasonably 	likely” 	definition,
https://www.lawinsider.com/dictionary/reasonably-
likely#:~:text=Reasonably%20likely%20means%20there%20is,based%20in%20reason%
20or%20experience.
150 Law Insider "more probably than not" definition, https://www.lawinsider.com/dictionary/more-
probable-than-
not#:~:text=Related%20Definitions&text=More%20probable%20than%20not%20means,and%20
materials%20supports%20the%20finding.
151 Cornell Law, “preponderance” definition, https://www.law.cornell.edu/wex/preponderance.
152 Evans, 279 F.Supp.2d at 1159.
153 Trout Unlimited v. Lohn, 645 F. Supp. 2d 929, 945 (D. Or. 2007) (explaining that agency’s
interpretation of “likely” in ESA context as “more likely than not” was consistent with
dictionary definition); Doc. 38 at 33.
154 Alaska Oil and Gas Association v. Pritzker, 840 F.3d 671, 684 (9th Cir. 2016) (hereinafter
“Pritzker 2”).
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appropriately defined “likely” in related contexts as “more likely than not,” “greater
than 50% likelihood,” and “probable.”155
Using the discretion Congress conveyed to FWS in conducting its technical
analysis, FWS relied on its best professional judgment and included qualitative
analysis 	to 	understand 	“what 	effects 	are 	sufficiently 	uncertain 	as 	to 	not 	be
reasonably likely.”156 The Court defers to the agency’s profession judgment in this
matter.157 	The Court sees no evidence to suggest FWS misapplied the regulatory
definition of “negligible impact.”
Furthermore, contrary to Plaintiffs’ assertions, FWS did not refuse to consider
or evaluate the impact of serious Level A harassment on polar bear cubs, or the
impact of non-serious harassment on that group. Indeed, the record shows that FWS
explored the potential for lethal or Level A harassment, but ultimately “anticipated
no lethal or injurious take that would remove individual polar bears…from the
population or prevent their successful reproduction.”158
In reaching this conclusion, FWS relied on predictive modeling techniques to
conclude that “the majority [54%] of [FWS’s] model runs result in no serious injury
Level A harassment or lethal takes and the median of such take in the model runs is
155 Kempthorne, 588 F.3d at 710; Pritzker 2, 840 F.3d at 684 (Service interpretation of
“likely” under ESA section 4 regarding listing of species); In re Polar Bear Endangered Species
Act Listing & Section 4(d) Rule Litig. V. Salazar, 709 F.3d 1, 14 (D.C. Cir. 2013) (finding that
FWS interpreted statutory reference to “likely” as having its “ordinary meaning” or
“dictionary definition” for purposes of ESA listing decision); Lohn, 645 F. Supp. 2d at 945
(“likely” is greater than 50%); W. Watersheds Project v. U.S. Forest Serv., 535 F. Supp. 2d
1173, 1184 (D. Idaho 2007) (same); see also Or. Cal. Trails Ass’n v. Walsh, 467 F. Supp. 3d
1007, 1037–38 (D. Colo. 2020) (upholding FWS’s assessment of risk of take of whooping
cranes).
156 Doc. 38 at 34; Kempthorne, 588 F.3d at 710.
157 Envtl. Def. Ctr., Inc., 344 F.3d at 869 (agency's determination is entitled to “great
deference” 	when 	evaluating 	“complex 	scientific 	data 	within 	the 	agency's 	technical
expertise”) (citing Baltimore Gas & Elec. Co., 462 U.S. at 103; Chem. Mfrs. Ass'n, 919 F.2d at
167).
158 Doc. 38 at 27; compare Cook Inletkeeper v. Raimondo, 533 F.Supp.3d 739, 754 (D. Alaska
March 30, 2021) (finding arbitrary and capricious MNFS’ take determination where agency
failed to consider a source of Level B harassment.)
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0.0.”159 FWS employed modeling techniques that predicted both potential injury or
cub mortality annually and across the five-year span. 	In choosing to use a median
probability (as opposed to the mean proposed by Plaintiffs), FWS explained that the
median probability was the more appropriate informative measure of the central
tendency in the data. This was so because, according to FWS, the mean distribution
results were “non-normal and heavily skewed,” as indicated by markedly different
mean and median values and because the “median is less influenced by statistical
outliers that are inconsistent with past observed impacts and what is reasonably
expected to occur in the future.”160
Plaintiffs’ five-year probability calculations assume “that takes in one year do
not influence the probability of takes in subsequent years (i.e. that the operators do
not ‘learn’ to avoid takes in subsequent years).”161 However, FWS contends that
operators do learn and explained that it evaluates the probabilities of take annually
to “give effect to the term ‘annual’ as it appears” in the regulations.162 FWS’s “median
modeling result suggest[ing] that zero Level A harassment or lethal take is the most
likely result in any given year, and the fact that Level A harassment to bears is
extremely rare in the ITR region over many years of reporting history” also weighed
heavily in favor of its negligible impact finding. 163
Additionally, FWS focused on annual rates of recruitment and survival to
remain consistent with the one-year duration of the LOAs necessary to authorize
159 BSITR002423.
160 BSITR0002427; BSITR0002414. FWS explained that the “heavily skewed nature of these
distributions has led to a mean value that is not representative of the most common model
result (i.e., the median value), which for both non-serious Level A and serious Level A/
Lethal takes is 0.0 takes. Due to the low (<0.29 for non-serious Level A/Lethal takes)
probability 	of 	greater 	than 	or 	equal 	to 	1 	non-serious 	or 	serious 	injury 	Level 	A
harassment/Lethal take each year of the proposed ITR period, combined with the median of
0.0 for each, we do not estimate the proposed activities will result in non-serious or serious
injury Level A harassment or lethal take of polar bears.”
161 BSITR0017969; Doc. 38 at 36.
162 See 50 C.F.R § 18.27(c); BSITR0002430.
163 BSITR0002430.
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incidental take.164 FWS reasoned that focusing on annual probabilities of injurious
or lethal take sufficiently accounts for the “total” take in each of the given years
contemplated by the 2021 BSITR.165
Defendants are correct that Plaintiffs do not allege that FWS did not consider
data in making its negligible impact finding. 	Rather, Plaintiffs disagree with how
FWS interpreted the data before it. However, this disagreement is not a basis upon
which to find an agency’s action arbitrary and capricious. 	“[U]nder the arbitrary
and capricious standard, ‘our deference to the agency is greatest when reviewing
technical matters within its area of expertise, particularly its choice of scientific data
and statistical methodology.’”166
In addition to reliance upon it model, FWS’s determination was also in line
with FWS’s consideration of past observations and qualitative analysis.167 FWS
conclusion relied, in part, on “documented impacts of previous industry activities
on…polar bears.”168 Because only one incident, unrelated to industry-activity, of
Level A harassment occurred in the region from 2012-2018, FWS deemed that
sufficient evidence in itself to support the conclusion that no Level A harassment to
polar bears would occur in the current 2021 BSITR.169
164 BSITR0002430.
165 Id.
166 Colorado Wild, Heartwood v. U.S. Forest Service, 435 F.3d 1204, 1217 (10th Cir. 2006
(citing Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 329 (5th Cir. 1988) (noting that we do
not review an agency's decision as statisticians, but “as a reviewing court exercising our
narrowly defined duty of holding agencies to certain minimal standards of rationality”));
see also Southern California Edison Co. v. F.E.R.C., 717 F.3d 177 (9th Cir. 2013) (denying after
“highly deferential review” arbitrary and capricious challenge to Commission’s rate increase
that was based on median value over average because “the Commission's orders so long as
[it] examined the relevant data and articulated a ... rational connection between the facts
found and the choice made.”)
167 See CBD, 695 F.3d at 907 (noting that the “behavioral response observed [from prior
interactions]” is a factor appropriately considered in a negligible impact finding).
168 BSITR002423.
169 BSITR002396, BSITR002433, BSITR002396.
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Though some of FWS’s modeling prediction percentages inch close to 50%,
FWS had a rational basis to decide that the median value was a valid and preferable
measure that best summarizes its modeling results, and that using the mean, as
Plaintiff would prefer, was a less accurate measure. Plaintiffs fail to persuade the
Court that FWS’s negligible impact finding lacks a discernible path of analysis, that
the agency “entirely failed to consider an important aspect of the problem,”170 or is
“so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.”171 Ninth Circuit precedent grants its “greatest deference” to
FWS’s “scientific predictions within the scope of its expertise,” as the Court likewise
does here.172
Despite Plaintiffs’ allegations to the contrary, the Court finds that FWS
properly considered Level A harassment or lethal take in accordance with the MMPA,
and properly applied the generally accepted meaning of “reasonably likely” in its
negligible impact finding. “FWS, as the expert scientific agency, is owed deference
in weighing its modeling results and in its negligible impact findings”173 and the
Court grants it such deference given the rational explanations FWS has provided for
its determination. The Court finds that FWS’s finding that the total take number
would have a negligible impact on SBS polar bears was not arbitrary and capricious,
170 CBD, 695 F.3d at 906; see also Kempthorne, 588 F.3d at 710 (“A negligible impact finding
is arbitrary and capricious under the MMPA only if the agency, inter alia, ... entirely failed
to consider an important aspect of the problem ....” (internal citations and quotation marks
omitted)).
171 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (1983).
172 Kempthorne, 588 F.3d at 710–11; see also San Luis & Delta-Mendota Water Auth. v. Jewell,
747 F.3d 581, 603–04 (9th Cir. 2014) (“When specialists express conflicting views, an agency
must have discretion to rely on the reasonable opinions of its own qualified experts even if,
as an original matter, a court might find contrary views more persuasive.”) (quoting Marsh
v. Ore. Nat. Res. Council, 490 U.S. 360, 378 (1989)); Pritzker 1, 828 F.3d at 1139 (same);
Pritzker 2, 840 F.3d at 679 (same).
173 Doc. 38 at 30.
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rather it is supported by analysis of its quantitative modeling, review of past
observations, and qualitative analysis of issues.174
b. FWS’s Consideration of “non-serious” Level A
Harassment Was Not Arbitrary.
Plaintiffs contend that FWS failed to consider how the take authorized would
affect polar bears’ recruitment or survival rates because FWS arbitrarily excluded
the impacts from “non-serious” Level A harassment in its negligible impact finding.
Plaintiffs cite to FWS’s acknowledgement of the importance of the post-emergence
period for cubs to develop and survive, and that early departure from the den site,
curtailing that period, “may hinder the ability of cubs to travel, thereby increasing
the chances for cub abandonment or susceptibility to predation.”175
Defendants claim that Plaintiffs wrongly conflate a potential reduction in
fitness with likely mortality, while ignoring other biological factors and data FWS
considered regarding the difference in effects of early den emergence and early den
site departure.176 Per FWS, it utilized the best available science in its modeling of
estimated take and assigned a “serious” Level A harassment to all cubs subjected to
early den emergence and a “non-serious” Level A harassment to all cubs subjected
to early den site departure.177 Defendants contend that Plaintiffs’ assumption would
unduly overestimate impacts in a manner not supported by the “best scientific
evidence available” standard applicable to ITRs.178
FWS explained that in ultimately treating impact to post-emergence cubs as
“non-serious” Level A harassment it considered factors such as distribution and
habitat use patterns of polar bears, the well-documented impacts of previous
Industry activities on polar bears, and the extensive monitoring and mitigation
174 Doc. 38 at 29.
175 Doc. 31 at 39 citing BSITR002394.
176 Doc. 38 at 40.
177 BSITR002394; BSITR0002438; BSITR002346.
178 50 C.F.R. § 18.27(b).
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requirements imposed on LOA holders.179 FWS’s explanation and considerations for
its classification are rational and sufficiently detailed.
FWS’s responsibility is to “show that information exists in the administrative
record to support a negligible impact finding” and to base its ITR findings on the
“best scientific evidence available.”180 FWS met its burden by explaining why the
best available science did not support the modeling assumption that a departure
from a simulated den less than eight days after cub emergence would cause cub
mortality and specified the information in the administrative record (i.e. data
concerning the extreme rarity of any Level A harassment from prior ITR activities,
the results of the predictive modeling exercise finding early departure unlikely to
occur, the ITR’s mitigation requirements, etc.) to support its finding of negligible
impact. The Court therefore finds FWS’s negligible impact findings to be rationally
based on the “best scientific evidence available” and not arbitrary or capricious.
The Court finds that Defendant FWS properly considered impacts of cub loss
by serious Level A harassment and lethal take, both annually and over the five-year
2021 BSITR. 	The Court further finds that FWS properly considered the impacts of
“non-serious” Level A harassment in its evaluation. FWS’s negligible impact finding
in this case was not arbitrary and capricious.
4. FWS’s Authorization of Level B Harassment Did Not
Violate the MMPA by Also Permitting Likely Level A
Takes.
Plaintiffs claim that Defendant FWS violated the MMPA by authorizing Level
B harassment when it is “highly likely that the specified activities will also result in
unauthorized Level A harassment or lethal take.”181 To support their argument,
Plaintiffs cite to Kokechik, where the court found that allowing incidental taking of
179 BSITR0002423-24. C.F.R. §§ 18.122-18.128.
180 54 Fed. Reg. at 40,343; 50 C.F.R. § 18.27(b).
181 Doc. 31 at 40.
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one 	protected 	marine 	mammal 	species 	knowing 	that 	other 	protected 	marine
mammal species would be taken as a result was at odds with MMPA requirements182
that prohibit FWS from authorizing only part of the take that will occur when the
covered activities will cause other, unauthorized take.183
Defendants argue that Plaintiffs’ reliance on Kokechik is misplaced and that
its evaluation was proper considering AOGA did not request authorization of any
Level A harassment or lethal take, and neither AOGA’s petition nor FWS’s subsequent
analysis anticipated that any such take would occur.184 Federal Defendants further
argues that “Plaintiffs’ argument that Level A harassment is actually likely to occur
(contrary to FWS’s specific findings) based solely on the combined mean probability
of either a non-serious or serious Level A harassment” is unavailing because it
“impermissibly supplants FWS’s reasonable professional judgment that such take is
not estimated to occur, based on the agency’s entire record including both qualitative
and quantitative analyses.”185
The Court agrees with Defendant FWS that Plaintiffs’ reliance on Kokechik is
misplaced. In Kokechik the relevant issue was the agency’s issuance of a permit that
allowed for “the incidental taking of 1,750 Dall's porpoise during 1987 with a 5%
yearly 	reduction 	over 	the 	following 	four 	years, 	and 	45 	northern 	fur 	seals
annually.”186 	The D.C. Circuit held that the Secretary’s decision to disregard these
incidental taking as “negligible” was improper, because “[t]he MMPA,…does not
provide for a ‘negligible impact’ exception to its permitting requirements where
incidental takings are not merely a remote possibility but a certainty.”187
182 Kokechik Fishermen's Ass'n v. Secretary of Commerce, 839 F.2d 795, 800 (D.C. Cir. 1988).
183 Id. at 801-02.
184 Doc. 38 at 41; see also Doc. 43 at 42-45.
185 Doc. 38 at 42; see also BSITR002407; BSITR002423.
186 839 F.2d at 798.
187 839 F.2d 802.
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Shortly 	after 	its 	issuance, 	Congress 	abrogated 	the 	Kokechik 	decision,
implementing a new statutory scheme governing the incidental take of marine
mammals in commercial fisheries.188 	Moreover, even if Kokechik remained viable,
it would not apply in this case. 	This is not a case in which unauthorized Level A
takes of SBS polar are “sufficiently ‘certain’” to occur as Plaintiffs assert.189 	First
and foremost, unlike in Kokechik, the applicant in this case has not requested
permission for any Level A harassment and lethal take of any protected marine
species. 	Moreover, as detailed above, and contrary to Plaintiffs’ assertions, such
takings are not a certainty. 	As FWS states, takes of SBS polar bears are “almost
never observed in the Beaufort ITR region and are not predicted in the majority of
FWS’s modeling results.”190
As detailed supra, FWS analyzed and explained its science-based, qualitative,
and quantitative reasoning for evaluating the probability of Level A harassment of
cubs in different factual settings (late denning period and pos-emergence period)
and why cubs might suffer different injuries in those two different circumstances if
disturbed. It used this rationale to ultimately determine that no Level A harassment
of lethal take would occur.191 For the reasons previously stated, the Court defers to
FWS’s expertise and finds that its evaluation of Level A harassment is not arbitrary
and capricious.
5. FWS’s Least Practicable Adverse Impact Analysis Did
Not Violate the MMPA.
Plaintiffs allege that FWS failed to meet the MMPA’s requirement to ensure
the least practicable adverse impact (“LPAI”) to SBS polar bears because FWS failed
to consider restrictions on the timing and geographic scope of authorized activities
188 See H.R. Rep. No. 100-970 at 18-20, reprinted in 1988 U.S.C.C.A.N. 6154, 6159-61, 6178-
79.
189 Doc. 31 at 41-42.
190 Doc. 38 at 41. BSITR0002430.
191 BSITR0002333; BSITR0002333.
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such as seismic exploration.192 Plaintiffs argue that FWS did not properly consider
their suggestion during the comment period that “FWS consider closing sensitive
areas to new activities, restricting dates for seismic exploration, and imposing a
buffer 	around 	suitable 	denning 	habitat.”193 	Instead, 	Plaintiffs 	allege 	FWS
“summarily 	stated 	spatial 	and 	temporal 	measures 	were 	impracticable 	due 	to
unspecified ‘regulatory and safety requirements’194 without the required meaningful
consideration or reasonable explanation that the MMPA requires.195
Federal Defendants argues that it did consider a range of restrictions during
the administrative process and provided adequate reasoning and explanation for
measures it did not accept or that were impracticable.196 Federal Defendants also
argues that Plaintiffs’ argument is undermined by their “failure to explain how any
additional, specific temporal or spatial restriction could be practicably imposed on
the activities contemplated in AOGA’s Petition[.]”197
FWS is not obligated to accept all suggestions, rather an ITR must prescribe
methods and means of effecting the “least practicable adverse impact (“LPAI”) on
such species or stock and its habitat.”198 “Practicable normally means that something
is 	capable 	of 	being 	done, 	or 	practical 	and 	effective.”199 	The 	MMPA 	requires
practicable 	restrictions, 	but 	that 	limitation 	does 	not 	extend 	to 	categorically
foreclosing, i.e., make impracticable, activities that must occur, if at all, in certain
locations or at certain times of the year. A determination that an effective mitigation
192 Doc. 31 at 42-50.
193 Doc. 31 at 42 n. 152 (citing BSITR0018034, 18074–75 (Alaska Wilderness League ITR
Comments); BSITR0017762–63, 17766–67 (Center for Biological Diversity ITR Comments);
BSITR0017921–23 (Sierra Club ITR Comments)).
194 Doc. 31 at 43 n. 153.
195 Doc. 31 at 43.
196 Doc. 38 at 43-44; see also Doc. 41 at 37-39; Doc. 43 at 46-47.
197 Doc. 38 at 47.
198 16 U.S.C. § 1371(a)(5)(A)(i)(II).
199 Cook Inletkeeper, 533 F. Supp. 3d at 759 (quoting Pritzker 1, 828 F.3d at 1134).
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measure 	is 	not 	practicable 	must 	be 	rationally 	articulated 	and 	supported 	by
“meaningful discussion.”200
Plaintiffs 	argue 	that 	“FWS 	deemed 	timing 	and 	geographic 	restrictions
impracticable based on AOGA’s unsupported assertions and conclusory statements
that it would not be possible to comply with them.”201 The Court finds that the record
does not support this assertion. Indeed, in this case, it appears as if FWS considered
numerous time and space restrictions. As Defendants note, the 2021 BSITR includes
a number of mitigation measures designed to address some of Plaintiffs’ suggestions
intended to protect denning bears, including: an increased number of polar bear den
surveys using aerial infrared imagery (“AIR”), a one-mile exclusion zone around all
known dens, restrictions on the timing and types of activities in the vicinity of dens,
human reconnaissance of denning habitat in advance of seismic surveys, and flight
restrictions around known polar bear dens.202 In addition, the ITR limits the overall
area of denning habitat that may be subject to seismic surveys in a given year,
“incorporates later start dates” for seismic surveys, with no surveys to occur until
the operator has completed three den surveys during the “ideal temporal window
for 	maternal 	denning 	surveys.”203 	In 	this 	case, 	FWS’s 	explanations 	for 	the
restrictions it chose are reasonable and illustrate how it proactively applied the LPAI
standard through coordination with AOGA and in further analysis during the
rulemaking process.
FWS stated that it “also considered the use of additional time and space
restrictions for oil and gas activities to limit the impact on denning bears. These
restrictions were not determined to be practicable as they may interfere with human
200 Pritzker 1, 828 F.3d at 1139 n. 12.
201 Doc. 31 at 44.
202 BSITR002455-56; BSITR002424; BSITR002443. See Chickaloon, 947 F. Supp. 2d at 1059-
1060 (upholding NMFS’s LPAI analysis based in part on plaintiffs’ failure to demonstrate
any incorrect assumptions or oversights in the agency’s analysis).
203 BSITR 002448; BSITR002413; BSITR002455.
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health and safety as well as the continuity of oil and gas operations.”204 As it
concerns a one-mile buffer around all suitable denning sites, FWS explained that a
uniform buffer “is not practicable as many existing operations occur within denning
habitat and it would not be able to shut down all operations based on other
regulatory and safety requirements.”205 FWS gave the example of existing facilities
and roads near “potential denning habitat” that “must be utilized during winter to
ensure the continuity of operations and protection of tundra and wetlands.”206 FWS
also noted that requiring a one-mile buffer around all suitable polar bear habitat
within the 20-million acre SBS ITR area would be impractical “prior to operations”
as “denning habitat requires the creation of snow drifts, which can differ from year-
to-year.”207 FWS need not impose restrictions on areas in which polar bear denning
activity is unlikely.208
The record indicates that FWS considered, and rejected, additional mitigation
measures. In response to a request for closing sensitive areas to new activities. FWS
noted that it lacked the authority to impose blanket restrictions such as closing
sensitive areas to new activities to achieve the LPAI.209 	Additional temporal and
spatial restrictions were similarly considered and deemed not practicable.210
In addition to including numerous measures with the 2021 BSITR designed to
achieve the LPAI, FWS’s reliance on future mitigation measures through LOAs was
not improper. 	Such a practice is consistent with a reasonable interpretation of the
204 BSITR0001703.
205 BSITR0002424.
206 Id. (“One mile buffer around all known polar bear denning habitat is not practicable as
many existing operations occur within denning habitat and it would not be able to shut down
all operations based on other regulatory and safety requirements.”
207 BSITR0002448; see also BSITR0002447.
208 See Chickaloon, 947 F.Supp.2d at 1031.
209 BSITR002447 (noting that FWS does not approve or disapprove industrial activities).
210 BSITR002424.
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MMPA 	and 	recognizes 	the 	many 	variables 	that 	be 	present 	when 	activity
contemplated in the 2021 BSITR is undertaken.211
Plaintiffs argue that FWS imposed more stringent spatial and temporal
restrictions in another Arctic region, thereby undermining FWS’s assertion that such
restrictions are not practicable for the SBS polar bears. 	However, as Defendants
note, the proposed measures were in draft form, were unissued, and were intended
to address a request by one company, for one season, in one region with a higher
polar bear density and higher proportion of polar bear denning habitat. 	As FWS
explained, the parameters of the one-year proposal are markedly different than the
five-year 2021 BSITR at issue in this case, which involve unknown activities in
unknown years across a large area with existing infrastructure and facilities.212
The Court finds that Plaintiffs have not established that it would be practicable
to impose additional geographic and temporal restrictions relevant to SBS polar
bears beyond those already imposed.213 	Plaintiffs argue that FWS did not consider
reasonable alternatives, but do not articulate why the proposed exclusion zones and
temporal 	restrictions 	are 	insufficient. 	Indeed, 	prior 	approved 	LPAIs 	which
incorporate many of the same measure as the 2021 BSITR “have proven to be highly
successful in providing for polar bear conservation in Alaska.”214
The mitigation measures contained with the 2021 BSITR may not be precisely
or entirely what Plaintiffs believe should be required in this case. 	However, the
measures imposed, and the explanations offered for those rejected, are reasonable,
rational, and sufficiently articulated, and the Court is not permitted to “substitute
211 Alaska Wilderness League v. Jewell, 116 F.Supp.3d 958, 967 (D. Alaska July 2, 2015).
212 See BSITR0001002, 2414, 2392-93, 0630.
213 See Cook Inletkeeper, 533 F.Supp.2d at 760.
214 BSITR0008266; see also CBD, 695 F.3d at 908; 75 Fed. Reg. 76,086, 76,118-19 (Dec. 7.
2010) (“These mitigation measures are implemented to limit human-bear interactions and
disturbances to bears and have ensured that industry effects on polar bears have remained
at the negligible level.”)
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its judgment [or Plaintiffs’] for that of the agency.”215 The LPAI analysis in this case
did not violate the MMPA.
b. NEPA
NEPA requires that federal agencies prepare an EIS for any “major Federal
actions significantly affecting the quality of the human environment.”216 An agency
may first prepare a less exhaustive EA, which is a “concise public document” that
“[b]riefly provide[s] sufficient evidence and analysis for determining whether to
prepare an [EIS].”217 If the agency concludes in an EA that the federal action will not
have significant environmental impacts, it may issue a Finding of No Significant
Impact (“FONSI”) in lieu of preparing an EIS.218 When evaluating an agency's
decision not to prepare an EIS under NEPA, courts use an arbitrary and capricious
standard that “requires it 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.”219
Plaintiffs challenge FWS’s EA for the 2021 BSITR for failing to consider a
reasonable range of alternatives. Specifically, Plaintiffs alleges that in adopting the
final 2021 BSITR, FWS improperly dismissed consideration of timing and geographic
restrictions that could reduce impacts to polar bears. According to Plaintiffs,
“[b]ecause FWS did not meaningfully consider these measures or reasonably explain
215 Gaule v. Meade, 402 F.Supp.2d 1078, 1087 (D. Alaska 2005)
216 42 U.S.C. § 4332(2)(C).
217 40 C.F.R. § 1508.9(a).
218 Id. §§ 1508.9(a)(1), 1508.13.
219 	Native 	Ecosystems 	Council 	v. 	U.S. 	Forest 	Serv., 428 	F.3d 	1233, 	1239 	(9th 	Cir.
2005) (citations omitted). While many Ninth Circuit decisions treat the “hard look”
requirement as another formulation of the arbitrary and capricious standard, some address
it separately as a measure of the overall adequacy of an EA or EIS. Compare In Def. of
Animals, Dreamcatcher Wild Horse & Burro Sanctuary v. U.S. Dep't of Interior, 751 F.3d 1054,
1068 (9th Cir. 2014) with Klamath–Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387
F.3d 989, 992–93 (9th Cir. 2004).
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why they were excluded from consideration, the agency violated the MMPA and
NEPA.”220
Federal Defendants argue that Plaintiffs improperly “fault FWS for preparing
an EA that discusses in detail two alternatives – the proposed action and a no-action
alternative – claiming 	that FWS 	wrongly 	ignored 	alternatives 	involving more
restrictions on the timing and locations of industry activities.”221 Defendants claim
that “an agency’s obligation to consider alternatives under an EA is a lesser one than
under an EIS,”222 and that it does not inherently “violate[] the regulatory scheme”
for an EA to focus on “two final alternatives.”223 Rather, in Defendants’ view, FWS’s
consideration of two alternatives is in line with Ninth Circuit precedent.224
NEPA requires federal agencies to “study, develop, and describe appropriate
alternatives to recommended courses of action.”225 This provision applies whether
an agency is preparing an EIS or an EA.226 However, as Defendants pointed out “an
agency's obligation to consider alternatives under an EA is a lesser one than under
an EIS.”227 “[W]hereas with an EIS, an agency is required to ‘[r]igorously explore
and objectively evaluate all reasonable alternatives,’ with an EA, an agency only is
required to include a brief discussion of reasonable alternatives.”228
220 Doc. 31 at 44.
221 Doc. 38 at 47.
222 CBD, 695 F.3d at 915 (quoting Native Ecosystems, 428 F.3d 1233, 1246).
223 Id. (quoting Native Ecosystems, 428 F.3d at 1246); see also N. Idaho Cmty. Action Network
v. U.S. Dep’t of Transp., 545 F.3d 1147, 1153–54 (9th Cir. 2008) (per curiam) (upholding EA
that evaluated two alternatives).
224 Doc. 38 at 47.
225 42 U.S.C. § 4332(2)(E).
226 Native Ecosystems Council, 428 F.3d at 1245; see also Bob Marshall Alliance v. Hodel, 852
F.2d 1223, 1228–29 (9th Cir. 1988) (“[C]onsideration of alternatives is critical to the goals
of NEPA even where a proposed action does not trigger the EIS process.”).
227 Native Ecosystems, 428 F.3d at 1246.
228 N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008)
(comparing 40 C.F.R. § 1502.14(a) with 40 C.F.R. § 1508.9(b)) (second alteration in
original).
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The Court finds that FWS’s alternatives analysis here is not arbitrary and
capricious. 	Rather, the decision to prepare an EA with two alternatives was
reasonable. 	The 	record 	demonstrates 	that 	FWS 	took 	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 the project’s
impacts are insignificant.229
Reflecting on past SBS ITRs, AOGA's initial request included mitigation
measures previously identified as necessary to effect the least practicable adverse
impact on the SBS polar bears. 	As detailed above, FWS worked with AOGA
throughout the ITR process to identify additional effective and practicable mitigation
measures, including polar bear den detection surveys, observers, and interaction
plans.230 After reviewing comments, FWS added an additional restriction to the ITR
to minimize potential disturbance to polar bears – an area-wide minimum flight
altitude, subject to safety and operational constraints mandating that aircrafts fly
above 1.500 feet when safe and operationally possible.231
FWS was not wrong in its understanding that where only an EA is required,
as is the case here, evaluating two alternatives, the proposed activity and the no-
action alternative, complies with NEPA’s requirement that the agency consider
alternatives.232 Agencies are also not required to evaluate alternatives in an EA that
they explained were not feasible both in the EA and the final incidental take rule.233
229 Native Ecosystems Council, 428 F.3d at 1239 (citations omitted). While many Ninth
Circuit decisions treat the “hard look” requirement as another formulation of the arbitrary
and capricious standard, some address it separately as a measure of the overall adequacy of
an EA or EIS. Compare In Def. of Animals, Dreamcatcher Wild Horse & Burro Sanctuary v.
U.S. Dep't of Interior, 751 F.3d 1054, 1068 (9th Cir. 2014) with Klamath–Siskiyou Wildlands
Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 992–93 (9th Cir. 2004).
230 BSITR0002424. See supra Section IV(a)(ii)(5).
231 BSITR0018588-89, BSITR 0002424.
232 CBD, 695 F.3d at 915-16.
233 Id.
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Likewise, agencies are not required to evaluate alternatives that are not consistent
with the proposed action’s purpose.234
FWS 	concedes 	that 	commenters 	suggested 	further 	potential 	mitigation
measures, which FWS considered but deemed impracticable and gave detailed
reasoning as to why. The Court identified thirteen such examples of FWS responding
to comments specifically related to least practical adverse impact under NEPA which
were included in the final 2021 BSITR.235 For example, commenters suggested
grounding 	all flights 	if 	they 	must fly below 	1,500 	feet. FWS 	responded 	that
“[r]equiring all aircraft to maintain an altitude of 1,500 ft is not practicable as some
necessary 	operations 	may 	require 	flying 	below 	1,500 	ft 	in 	order 	to 	perform
inspections or maintain safety of flight crew.”236 Commenters suggested requiring
the use of den detection dogs. FWS explained that it was not practicable to require
scent trained dogs to detect dens due to the large spatial extent that would need to
be surveyed each year.237 Commenters also suggested prohibiting driving over high
relief areas, embankments, or stream and river crossings, to which FWS agreed that
the denning habitat must be considered in tundra travel activities, but explained that
“complete prohibition of travel across such areas is not practicable because it would
preclude necessary access to various operational areas and pose potential safety
concerns. Moreover, not all high relief areas, embankments, and stream and river
crossing constitute suitable polar bear denning habitat.”238 Like the agency in CBD,
FWS “initially considered other action alternatives, but explain[ed] in the EA
234 Wyoming v. U.S. Dept. of Agriculture, 661 F.3d 1209, 1244 (10th Cir. 2011); Citizens'
Comm. to Save Our Canyons, 297 F.3d at 1031; see also BioDiversity Conservation Alliance,
608 F.3d at 714–15 (“An environmental impact statement must study reasonable alternatives
in detail.... The Bureau may eliminate alternatives that are ‘too remote, speculative,
impractical, or ineffective,’ or that do not meet the purposes and needs of the project.”) but
see Utah Envtl. Cong. v. Bosworth, 439 F.3d at 1184 (stating that an agency cannot “define
the project so narrowly that it foreclose[s] a reasonable consideration of alternatives.”
235 BSITR0002424-25.
236 BSITR0002424.
237 BSITR0002425.
238 BSITR0002425.
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why…they were not feasible.”239 FWS clearly considered alternatives, accepting one,
and rejecting others with sufficient reasoning.240
In accordance with NEPA requirements, FWS sufficiently studied, developed,
and described appropriate alternatives to recommended courses of action.241 Here,
as in CBD, FWS’s consideration of two alternatives is sufficient. The Court finds that
FWS “adequately developed and analyzed its proposed mitigation measures in the
EA 	to 	a 	reasonable 	degree 	as 	required 	by 	law.”242 	FWS’s 	consideration 	of
alternatives in the EA were not arbitrary or capricious and did not violate NEPA.
c. 	ESA
The ESA provides for listing species as threatened or endangered, and it
protects listed species in several ways.243 The ESA contains both substantive and
procedural requirements. Substantively, Section 9 of the ESA prohibits “take” of
endangered 	species.244 	The 	ESA's 	definition 	of 	“take” 	resembles 	the 	MMPA's
definition, 	though with 	notable 	differences. For 	example, whereas the 	MMPA
requires only that harassment have the “potential to injure ... or ... disturb a marine
mammal ... by causing disruption of behavioral patterns,”245 the ESA imposes a
239 CBD, 695 F.3d at 916.
240 Compare BSITR0000013 (original petition geographic scope), with BSITR0000624 (final
petition 	excising 	portions 	of 	the 	scope 	adjacent 	to 	the 	Outer 	Continental 	Shelf);
BSITR0000050 (original petition providing neither dates nor locations for any operations),
with BSITR0000737, BSITR0000821 (identifying “general areas” where seismic surveys
would occur, and committing to conduct multiple infrared surveys during specific time
windows before conducting seismic surveys); see also BSITR000411 (email from AOGA
removing numerous sites from the scope of its specified activities); BSITR002443 (observing
in final ITR that there is “a short period of the winter when AIR surveys can reliably be
done”).
241 42 U.S.C. § 4332(2)(E).
242 Alaska Wilderness League, 116 F.Supp.3d at 971 (internal quotation marks and citation
omitted).
243 16 U.S.C. § 1533.
244 16 U.S.C. § 1538(a)(1)(B).
245 16 U.S.C. § 1362(18)(A)(i)-(ii) (emphasis added).
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higher threshold - a “likelihood of injury to [a listed species] by annoying it to such
an extent as to significantly disrupt normal behavioral patterns.”246
Procedurally, Section 7 of the ESA requires that federal agencies consult with
the FWS or NMFS for any agency action that “may affect” a listed species or its
critical habitat.247 Formal consultation results in a BiOp that determines whether the
proposed action is likely to jeopardize the continued existence of a listed species or
adversely modify its critical habitat.248 If the BiOp concludes that the action is not
likely to jeopardize the species, but is likely to result in some take, FWS provides an
Incidental Take Statement (“ITS”) along with the BiOp.249
An ITS specifies the impact (i.e., the “amount or extent”) of the incidental take
on the listed species, contains terms and conditions designed to minimize the impact,
and, in the case of marine mammals, specifies measures that are necessary to comply
with Section 101(a)(5) of the MMPA.250 Take that complies with the terms and
conditions of an ITS is not a prohibited take under Section 9.251 If the amount or
extent of take specified in the ITS is exceeded, the Service reinitiates Section 7
consultation to ensure that the “no jeopardy” determination remains in force.252
i. 	The BiOp Concluding that No Level A Harassment Was Likely
to Occur Did Not Violate the ESA.
Because the 2021 BSITR authorized certain adverse effects on polar bears, a
species listed as threatened under the ESA, FWS consulted on the impact of those
effects pursuant to Section 7(a)(2) of the ESA in a BiOp.253 Plaintiffs argue that FWS
violated the ESA because its BiOp did not account for take that was reasonably
246 50 C.F.R. § 17.3 (emphasis added).
247 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).
248 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h).
249 50 C.F.R. § 402.14(i).
250 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(1).
251 16 U.S.C. § 1536(o)(2); 50 C.F.R. § 402.14(i)(5).
252 50 C.F.R. §§ 402.14(i)(4), 402.16(a).
253 BSITR0002289-357; Doc. 41 at 44. 16 U.S.C. § 1536(a)(2).
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certain 	to 	occur 	and 	allowed 	for 	discretionary 	reinitiation 	of 	consultation.
Specifically, Plaintiffs argue that the ITS in the BiOp failed to include Level A
harassment and lethal take, and that the BiOp contains a defective retention notice.
Federal Defendants argue that it reasonably excluded Level A harassment and
lethal take because the ITR does not allow any Level A harassment or lethal take, nor
did it authorize the underlying conduct of oil and gas activities. Federal Defendants
rely on 50 C.F.R. § 402.02, defining “effects of action” to argue that “take that is not
anticipated is not ‘reasonably certain to occur’ and is not an ‘effect of the action.’”
Despite Plaintiffs’ continued objection to FWS’s finding that no Level A
harassment and lethal take are reasonably likely to occur, the Court reiterates its
finding supra that FWS has a rational basis, supported by science and historical data,
for its conclusion and finds it is entitled to deference.254 Therefore, the Court finds
that Defendant FWS’s BiOp does not violate the ESA.
ii. 	The Reinitiation Notice in this Case Was Not Defective.
Plaintiffs contend that FWS’s BiOp contains a defective reinitiation notice that
violates the ESA because it uses discretionary language, thereby failing to require
immediate and nondiscretionary reinitiation of formal consultation.255 Plaintiffs
argue that the BiOp’s statement that formal consultation “‘may be required’” if the
amount of Level B harassment authorized in the ITS is exceeded or if injury or lethal
take of polar bears occurs [is] plainly inconsistent with the ESA’s requirements.”256
Federal Defendants counters that FWS has no mandatory duty to include any
specific language in the reinitiation notice.257 	Defendant argues that Plaintiffs’
complaints ignore FWS’s obligations under the regulations.258 Further, Defendants
254 See supra Section IV(a)((ii)(3).
255 Doc. 31 at 43.
256 Doc. 31 at 52.
257 Doc. 38 at 52; see also Doc. 50 C.F.R. §402.14(h),(i)(specifying contents of BiOp).
258 Doc. 38 at 52; see also Doc. 41 at 46; Doc. 43 at 52 (citing generally to 50 C.F.R. §§
402.14(h) and (i), which specify contents of the BiOp, and 50 C.F.R. §§ 402.16(a)(1) and
402.14(i)(4) which explain the duty to reinitiate consultation.)
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argue that its BiOp also repeats this obligation with text stating FWS “shall reinitiate
section 7 consultation within 7 days if the amount of MMPA “Level B harassment
takes” anticipated is exceeded or if a Level A harassment or injurious or lethal take
of a polar bear occurs.”259
The parties do not seem to disagree that reinitiation is in fact required, and is
not discretionary. They seem to only dispute whether the requirement is sufficiently
stated in the BiOp. A review of the plain language of the BiOp confirms that it is.
The governing ESA regulation, 50 C.F.R. § 402.16.11, states, in relevant part,
[r]einitiation of formal consultation is required and shall be requested
by the Federal agency or by the Service, where discretionary Federal
involvement 	or 	control 	over 	the 	action 	has 	been 	retained 	or 	is
authorized by law and:
...
(b) If new information reveals effects of the action that may affect
listed species or critical habitat in a manner or to an extent not
previously considered;
..., or
(d) If a new species is listed or critical habitat designated that may be
affected by the identified action.
In this case, the relevant portion of the BiOp reads as follows:
Additionally, required monitoring and reporting will allow the Service
to determine if/when the level of authorized take is exceeded, and
whether subsequent reinitiation is necessary. The Services Marine
Mammal's Management Office will provide annual reports on the
amount of reported take, and shall reinitiate section 7 consultation
within 7 days if the amount of MMPA "Level B harassment takes"
anticipated is exceeded or if a Level A harassment or injurious or lethal
take of a polar bear occurs. These mitigation measures are non-
discretionary, and LOAs will be conditioned with these measures in
order for the exemption in section 7( o )(2) of the ESA to apply. As
provided in 50 C.F.R. § 402.16, re-initiation of formal consultation is
required where discretionary Federal agency involvement or control
over the action has been retained ( or is authorized by law), and re-
initiation may be required if:
1. 	The amount or extent of incidental take for listed species is exceeded
(i.e., more than 92 Level B harassment in any given year, or any
injurious or lethal take);
259 Doc. 41 at 52; see also Doc. 43 at 46; Doc. 43 at 52 (citing BSITR0002334-35).
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2. New information reveals effects of the action that may affect listed
species in a manner or to an extent not considered in this opinion;
3. 	The agency action is subsequently modified in a manner that causes
an effect to listed species or critical habitat not considered in this
opinion; or
4. A new species is listed or critical habitat is designated that may be
affected by the action.260
The BiOp clearly states that FWS “[s]hall reinitiate section 7 consultation
within 7 days in the event that the amount of authorized take is exceeded.”261 It is
true that the BiOp does include the discretionary language complained of by Plaintiff,
and FWS does not explain their reason for including the “may be required” language
in the section immediately after its statement that it “shall reinitiate” consultation
in the event of excessive authorized take. Nonetheless, the implementing regulations
require reinitiation, a fact FWS clearly acknowledges in the BiOp, which accurately
states the law - that reinitiation is “non-discretionary” when take is exceeded.262
This language suffices under ESA. The Court finds that Defendants’ reinitiation
notice complies with the ESA.
V. 	CONCLUSION
For the reasons stated above, the Court finds the 2021-2026 Beaufort Sea ITR
complies with MMPA, NEPA, and ESA. 	The Court therefore recommends that
Plaintiffs’ Motion for Summary Judgment be DENIED and Defendants’ cross-motions
for summary judgment be GRANTED.
DATED at Anchorage, Alaska this 6th day of February 2023.
/s/ Kyle F. Reardon__________
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
260 BSITR0002335 (emphasis added).
261 BSITR0002335 (emphasis added).
262 BSITR0002335.
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NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate
judge to hear and determine matters pending before the Court. For dispositive
matters, a magistrate judge reports findings of fact and provides recommendations
to the presiding district court judge.263 A district court judge may accept, reject, or
modify, in whole or in part, the magistrate judge’s order.264
A party may file written objections to the magistrate judge’s order within 14
fourteen days.265 Objections and responses are limited to five (5) pages in length
and should not merely reargue positions previously presented. Rather, objections
and responses should specifically identify the findings or recommendations
objected to, the basis of the objection, and any legal authority in support. Reports
and recommendations are not appealable orders. Any notice of appeal pursuant to
Fed. R. App. P. 4(a)(1) should not be filed until entry of the district court’s
judgment.266
263 28 U.S.C. § 636(b)(1)(B).
264 28 U.S.C. § 636(b)(1)(C).
265 Id.
266 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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