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

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,
and
ALASKA OIL AND GAS
ASSOCIATION, et al.,
Intervenor-Defendants.
Case No. 3:21-cv-00209-SLG-KFR
ORDER RE FINAL REPORT AND RECOMMENDATION
Before the Court at Docket 31 is Plaintiffs’ Motion for Summary Judgment.
Federal Defendants responded in opposition and with a cross-motion for summary
judgment at Docket 38. Intervenor-Defendant State of Alaska (“SOA”) responded
in opposition at Docket 41. Intervenor-Defendant Alaska Oil and Gas Association
(“AOGA”) responded in opposition and with a cross-motion for summary judgment
at Docket 43. 	Plaintiffs filed a reply in support of their motion at Docket 46. 	No
party 	requested 	oral 	argument 	and 	it 	was 	not 	necessary 	to 	the 	Court’s
determination.
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The 	motion 	was 	referred 	to 	the 	Honorable 	Magistrate 	Judge 	Kyle 	F.
Reardon. 	At Docket 53, Judge Reardon issued a Report and Recommendation
(“R&R”), in which he recommended that Plaintiffs’ Motion for Summary Judgment
be denied and that Federal Defendants and Intervenor-Defendant AOGA’s cross-
motions for summary judgment be granted. 	Plaintiffs filed objections to the R&R
at Docket 57. Intervenors SOA and AOGA responded to the objections at Docket
60 and Federal Defendants responded to the objections at Docket 61.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.”1 A court is
to “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”2 However, §
636(b)(1) does not “require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to
those findings.”3
Preliminarily, Intervenor-Defendants assert that this Court should summarily
approve the R&R and disregard Plaintiffs’ objections because they maintain that
the objections “are nothing more than a rehashing of the same arguments and
1 28 U.S.C. § 636(b)(1).
2 Id.
3 Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
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positions 	taken 	in 	the 	original 	papers 	submitted 	to 	the 	Magistrate 	Judge.”4
Intervenor-Defendants assert that Plaintiffs, by attempting to relitigate every claim
they pursued in their summary judgment briefing, did not lodge proper objections
and the Court therefore can summarily adopt the R&R in its entirety.5 While there
is considerable merit to this suggestion, the Court has in fact undertaken a
complete de novo review of the record and therefore will address the objections
on the merits.
I. 	Background, 	Jurisdiction, 	Legal 	Standard, 	and 	Plaintiff’s
Arguments Under the MMPA
At pages 1 through 11, the R&R sets forth the factual background regarding
incidental 	take 	regulations 	(“ITRs”) 	in 	the 	South 	Beaufort 	Sea 	(“SBS”), 	the
procedural background of this case, a statement setting forth the basis for this
Court’s subject matter jurisdiction, and the legal standard applicable to the review
of agency action under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
This portion of the R&R also discusses the statutory and regulatory framework of
the Marine Mammal Protection Act of 1972 (“MMPA”). 6 	No specific objections
4 Docket 60 at 3 (quoting Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp.
380, 382 (W.D.N.Y. 1992)).
5 Docket 60 at 5 (citing Hagberg v. Astrue, No. CV-09-01-BLG-RFC-CS, 2009 WL 3386595, at *1
(D. Mont. Oct. 14, 2009)).
6 16 U.S.C. § 1361, et seq.
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were raised with respect to these sections of the report, and the Court ADOPTS
these pages in their entirety.7
II. 	The Small Numbers Determination
Plaintiffs assert that the Magistrate Judge’s recommendation to uphold the
U.S. Fish and Wildlife Service’s (“Service”) small numbers determination was error
because the Service’s failure to aggregate the total take over the five-year ITR
period is at odds with the plain language of the MMPA and thus contrary to law.8
On de novo review, the Court disagrees with Plaintiffs’ analysis and adopts nearly
all of the R&R on this topic as set forth on pages 12 to 17 of the R&R. 9 The Court
does not read the MMPA to require that the small numbers determination must be
made by comparing the number of takes that could occur across multiple years to
a single year’s population estimate.10 	And in any event, the Service’s small
numbers determination considered the total take during the entire 5-year period
7 The Court notes that the Ninth Circuit has invalidated the regulatory definition of “small numbers”
quoted on page 10 of the R&R. See Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 904
(9th Cir. 2012) (holding that in order “[t]o effectuate Congress’ intent, ‘small numbers’ and
‘negligible impact’ must be defined so that each term has a separate meaning” (quoting Nat. Res.
Def. Council, Inc. v. Evans, 279 F. Supp. 2d 1129, 1153 (N.D. Cal. 2003))). The Service did not
apply that definition in the ITR at issue here. 	See BSITR0002422 (“For our small numbers
determination, we consider 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.”). All references
to the Administrative Record for the 2021 Beaufort Sea ITR are abbreviated “BSITR.”
8 Docket 57 at 3-4.
9 The Court does not adopt the sentence regarding walruses set out in footnote 89 of the R&R.
10 See generally Salazar, 695 F.3d at 905-06 (holding that the MMPA does not require FWS to
quantify the number of mammals that would be taken when making a small numbers
determination).
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(“we estimate that there will be no more than 443 Level B harassment takes of
polar bears during the 5-year period of this ITR”) and the Service also considered
the estimated annual take as a percentage of the estimated population in the stock
(“we note that take of 92 animals [within a single year] is 10.14 percent of the best
available estimate of the current stock size of 907 animals”).11 The Service’s small
numbers 	determination 	was 	not 	arbitrary, 	capricious, 	or 	otherwise 	not 	in
accordance with the law.
III. 	Consistency with Prior Agency Practice
Plaintiffs have asserted that the small numbers determination for this ITR
represents a departure from prior agency determinations. As a preliminary matter,
the Court acknowledges that Plaintiffs did cite the 2011-2016 Beaufort Sea ITR in
its merits briefing, and the R&R’s statement to the contrary is not adopted.12
Plaintiffs reference again the Cook Inlet ITR, which the R&R found was not
“sufficient evidence of a policy reversal,” as the ITR in the instant case “involved a
different species in a different location.”13 And given the relative abundance of sea
otters 	in 	Cook 	Inlet, 	Federal 	Defendants 	maintain 	that 	the 	small 	numbers
determination for sea otters in that ITR “did not present a debatable question.”14
11 BSITR0002422.
12 Docket 53 at 17, lines 15-16. See Docket 31 at 28 n.94; Docket 46 at 17.
13 Docket 53 at 19.
14 Docket 61 at 5.
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On de novo review, the Court agrees with the R&R that to the extent FCC v. Fox
Television Stations, Inc.15 would even apply to a small numbers determination, the
current ITR’s reference to both cumulative and annual take in its small numbers
determination does not constitute a policy reversal by the agency from the Cook
Inlet ITR.16
Plaintiffs also take issue with the R&R’s interpretation of the small numbers
determination in the 2016-2021 ITR. 	Although the Court acknowledges that the
agency’s mathematical path is not the clearest to discern on this issue,17 when the
ITR is read as a whole, it is clear that the agency had determined that the best
estimate of the SBS polar bear population for that ITR was 900 bears.18 	7.5% of
900 equals 68, which is precisely the annual take that the Service had estimated
for that ITR.
Plaintiffs also reference the 2013-2018 Chukchi Sea ITR and maintain that
the agency there “relied on total five-year take when making the small numbers
findings.”19 	Plaintiffs cite to a portion of the ITR in which a commentator stated,
15 556 U.S. 502 (2009).
16 See Salazar, 695 F.3d at 907 (holding that “[t]he 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”).
17 See BSITR0013791.
18 See BSITR0013773, 13781.
19 Docket 57 at 9 (citing Marine Mammals; Incidental Take During Specified Activities, 78 Fed.
Reg. 35,364, 35,415 (June 12, 2013) (“we find that the total expected taking of . . . polar bears
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“The Service fails to explain how 125 polar bears is a ‘small number,’” to which the
Service responded that “[t]he Service’s determination that 125 polar bears (25
bears annually) constitutes a small number within the meaning of the MMPA is
based on the fact [that] 125 polar bears is small relative to the total abundance of
the Chukchi-Bering Sea and Southern Beaufort Sea polar bear populations, which
consists of approximately 3,500 total bears collectively.”20 Plaintiffs assert that the
R&R erred in “fail[ing] to account for FWS’s statement that it was relying on total
take” for the five-year period in making the small numbers determination.21 Rather,
the R&R cited to portions of that ITR that referenced the incidental take at 25
animals per year.22 	The Court finds that similar to the current ITR, the Service
considered both the number of takes per year and the total takes over the five-year
period in making its small numbers determination in the 2013-2018 Chukchi Sea
ITR.
In sum, Plaintiffs’ objection to the R&R that rejected Plaintiffs’ policy change
argument 	on 	the 	small 	numbers 	determination 	is 	overruled, 	and 	the 	Court
ADOPTS that portion of the R&R.
during Industry exploration activities will impact small numbers of animals”)).
20 Marine Mammals; Incidental Take During Specified Activities, 78 Fed. Reg. at 35,415.
21 Docket 57 at 9 (citing Marine Mammals; Incidental Take During Specified Activities, 73 Fed.
Reg. 33,212 (June 11, 2008)).
22 Docket 53 at 18 (citing Marine Mammals; Incidental Take During Specified Activities, 78 Fed.
Reg. at 35,400-01).
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IV. 	Categorization of Level A Take
At pages 19 through 23, the R&R concluded that the Service’s division of
Level A Harassment into “Serious” and “Non-serious” categories is not contrary to
the plain language of the MMPA. Plaintiffs assert this finding is erroneous, as they
maintain that the “sub-categories unreasonably conceal the high probability of
Level A harassment occurring.”23
On de novo review, the Court agrees with and adopts the Magistrate Judge’s
analysis on this point. Categorizing Level A harassment as serious or non-serious
is a permissible construction of the statute, particularly as the Service is tasked
with determining whether Level A harassment will have a “negligible impact” on
the SBS polar bear’s “recruitment and survival.”24 Accordingly, Plaintiffs’ objection
to this section of the R&R is overruled and the Court ADOPTS this portion of the
R&R.
V. 	Whether the Service’s Negligible Impact Finding Violated the
MMPA
Preliminarily, Plaintiffs did not object to that portion of the report that detailed
the parties’ positions with regards to the Service’s negligible impact finding at
pages 23 and 24 of the R&R, and the Court ADOPTS that portion of the R&R here.
23 Docket 57 at 10.
24 	See 	50 	C.F.R. 	§ 	18.27(c) 	(definition 	of 	“negligible 	impact”); 	see 	also 	16 	U.S.C. 	§
1371(a)(5)(A)(i)(I) (tasking agency with making negligible impact finding).
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Plaintiffs did object to the Magistrate Judge’s determination upholding the
Service’s finding that the impact of the activity specified in the ITR was “not
reasonably likely to[] adversely affect the species or stock through effects on
annual rates of recruitment or survival.”25 	The Magistrate Judge adopted a
definition of “reasonably likely” to require a preponderance of the evidence. 	The
Court does not adopt this portion of the R&R as set forth on page 26 through the
top of page 31. 	Rather, on de novo review, the Court affirms the agency’s
negligible impact determination for the following reasons:
The agency explained its interpretation of the modeling results on Level A
take as follows:
The distributions of both non-serious Level A and serious Level
A/Lethal possible takes were non-normal and heavily skewed,
as indicated by markedly different mean and median values.
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 and ≤0.462 for
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. 26
25 50 C.F.R. § 18.27(c).
26 BSITR0002414.
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Later in the ITR, in making its negligible impacts determination, the agency
identified and discussed the following factors that it considered: (1) that there are
relatively few animals in the proposed areas of industry activity, such that “few
animals are likely to be affected”; (2) that documented impacts of previous industry
activity demonstrated that “[t]he vast majority of reported polar bear observations
have been of polar bears moving through the Beaufort Sea ITR region, undisturbed
by the Industry activity”; (3) that the footprint of proposed industry activity is
expected to be small relative to the range of the polar bear stock; (4) that the
Service “does not anticipate any lethal or injurious take that would remove
individual 	polar 	bears 	. 	. 	. 	from 	the 	population 	or 	prevent 	their 	successful
reproduction”; and (5) that “[m]itigation measures will limit potential effects of
Industry activities.” 27 	Based on its consideration of each of these factors, the
Service 	concluded 	that 	“the 	impacts 	of 	these 	specified 	activities 	cannot 	be
reasonably expected to, and are not reasonably likely to, adversely affect . . . SBS
polar bears through effects on annual rates of recruitment or survival,” and hence
the total take authorized by the ITR would have a negligible impact on SBS polar
bears.28
27 BSITR0002423.
28 BSITR0002424.
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Plaintiffs take issue with several aspects of this determination. 	First, they
assert that the Service’s determination that a 45% to 46% annual probability of at
least one “serious Level A/lethal” cub take was not reasonably likely to occur was
arbitrary.29 	Stated differently, they assert “it is arbitrary for [the Service] to assert
that such a substantial probability is not within the meaning of ‘reasonably likely.’” 30
They assert that just because the median was zero “does not rationally explain
why one or more takes occurring 46% of the time was not considered reasonably
likely.”31 	But the Service explained that its negligible impact determination was
based on a consideration of multiple factors, including the 46% annual probability
of serious Level A/lethal take, “combined with the median of 0.0” for any Level A
take. 	In essence, Plaintiffs disagree with the Service’s interpretation of the
modeling data and how the Service factored that data into its negligible impact
determination. The Court does not find that Plaintiffs have demonstrated that the
Service’s interpretation of that data and its consideration in the negligible impact
determination was arbitrary and capricious. 	Rather, the Service “examined the
relevant data and articulated a . . . rational connection between the facts found and
the choice made.”32 “Mere differences in opinion . . . are not sufficient grounds for
29 Docket 57 at 13; Docket 46 at 26-27.
30 Docket 46 at 33.
31 Docket 46 at 26.
32 S. Cal. Edison Co. v. F.E.R.C., 717 F.3d 177, 181 (D.C. Cir. 2013) (denying arbitrary and
capricious challenge to Commission’s rate increase that was based on median value instead of
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rejecting the analysis of agency experts.”33 	In sum, the Service did not disregard
the 46% probability; rather, it rationally explained how its consideration of this data,
together with its assessment of the other factors it identified, resulted in its
determination that the planned activities would have a negligible impact on the
SBS polar bear stock.
Plaintiffs also assert that the Service improperly dismissed their assertion
that there is a 94% or greater probability that at least one serious Level A cub take
would occur over the five-year ITR period.34 	A commentator to the Service
suggested that the Service “should account for take by Level A harassment for the
duration of the 5-year regulation period in order to determine whether there would
be more than a negligible impact.”35 	In its response to this comment, the Service
cited to the regulatory definition of negligible impact, which looks at “effects on
annual rates of recruitment and survival,”36 as well as the fact that Letters of
Authorization are of 1-year duration.37 And the Service again stated its expectation
that the numerous mitigation measures it had adopted would “further reduce the
average).
33 Ctr. for Biological Diversity v. Bureau of Land Mgmt., 833 F.3d 1136, 1148 (9th Cir. 2016).
34 Docket 57 at 13; Docket 46 at 27.
35 BSITR0002430. See also BSITR0017857, 17878, 17970.
36 50 C.F.R. § 18.27(c).
37 BSITR0002430.
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potential for such events.”38 That the Service did not specifically evaluate the effect
on annual recruitment and survival of the polar bear stock in light of the estimated
94% probability of at least one serious Level A/lethal take occurring during the five-
year period does not mean that the Service’s negligible impact determination was
arbitrary and capricious or contrary to the law. 	While Plaintiffs assert that the
Service failed to consider the impacts of the full five years of authorized activities
in its negligible impact determination, the determination itself states otherwise. At
the conclusion of its extended discussion of the factors listed above, it states, “[W]e
have concluded that the authorized taking of . . . polar bears during the activities
proposed by Industry during this 5-year rule will not adversely impact the survival
of these species and will have no more than negligible effects.” 39
Plaintiffs also assert that the Service arbitrarily “ignored potential survival-
impairing impacts to cubs from early den departure in its negligible impact
determination.”40 	Plaintiffs maintain that the Service erred by summarily labeling
this risk as a non-serious Level A take that would not affect the annual rates of
recruitment or survival.41 	But the Service adequately addressed this issue in its
ITR. It noted that there was “[c]onsiderable variation” in the duration of times that
38 BSITR0002430.
39 BSITR0002424.
40 Docket 57 at 14.
41 Docket 57 at 14; see BSITR0002408, Table 7, post-emergence data.
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bears spend at dens post-emergence and that “the relationship between the
duration and cub survival has not been formally evaluated.”42 	Plaintiffs omit the
next sentences of the Service’s analysis on this topic: “However, a maternal female
should be highly motivated to return to the sea ice to begin hunting and replenish
her energy stores to support lactation, thus, time spent at the den site post
emergency likely confers some fitness benefit to cubs. 	A disturbance that leads
the family group to depart the den site early during this period therefore is likely to
lead to a non-serious Level A harassment for the cubs and a Level B harassment
for the adult female.”43 	In addition, the Service noted that “[s]urvival of cubs-of-
the-year is often low, and this is especially true in the Southern Beaufort Sea
subpopulation, even for those cubs from undisturbed dens.”44 	As this discussion
indicates, and contrary to Plaintiffs’ assertion, the Service did not classify the early
den departure risk as a non-serious Level A take due solely to the fact that the
impact of the disturbance had not been evaluated. 	In sum, the Service used the
best 	available 	science 	and 	its 	modeling 	in 	assigning 	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 an early den site departure.45 	The
42 BSITR0002394.
43 BSITR0002394.
44 BSITR0002438.
45 BSITR0002394, 2438, 2436.
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Service’s explanation and considerations for the classification are rational and
sufficiently detailed.
For the foregoing reasons, the Court finds that the Service’s negligible
impact finding in this case was not arbitrary and capricious.
VI. 	The Likelihood of Level A Take
At pages 32 through 34 of the R&R, the Magistrate Judge rejected Plaintiffs’
argument that the ITR violates the MMPA because it also permits likely Level A
takes. 	On de novo review, the Court ADOPTS the first, second, and fourth
paragraphs of the R&R on this topic. The Court does not adopt the third paragraph
of the R&R in this section. Instead, the Court finds as follows:
The 	Court 	agrees 	with 	Federal 	Defendants 	that Plaintiffs’ reliance 	on
Kokechik 	Fishermen’s 	Ass’n 	v. 	Secretary 	of 	Commerce46 	is 	misplaced. 	In
Kokechik, the agency issued a permit authorizing the incidental taking of Dall’s
porpoise. But the permit prohibited the incidental taking of northern fur seals and
other mammals.47 	The Circuit Court held that the permit was invalid because it
was clear that there would be an incidental take of the fur seals, and held that “[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
46 839 F.2d 795 (D.C. Cir. 1988). 	Congress subsequently abrogated Kokechik’s holding by
implementing a new statutory scheme governing the incidental take of marine mammals in
commercial fisheries. See H.R. Rep. No. 100-970, at 18-20 (1988).
47 Kokechik, 839 F.2d at 799.
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certainty.”48 Unlikely the taking of the fur seals in Kokechik, the unauthorized Level
A taking of SBS polar bears is not at all certain to occur as Plaintiffs assert. 49
Rather, the Service rationally concluded that “Level A harassment (either non-
serious or serious) to bears on the surface is extremely rare within the ITR region”
and further found that “the fact [that] zero Level A harassment or lethal takes is the
most likely result in any given year precludes a reasonable expectation that such
take will, in fact, occur.”50 While the Court agrees with Plaintiffs’ assertion that “the
applicant’s choice not to apply for Level A take authorization is not controlling,”51
the Court affirms the Service’s determination that Level A take, if any were to occur,
is not reasonably likely to cause more than a negligible impact on the recruitment
and survival of the SBS polar bear stock.
VII. 	Geographic and Timing Restrictions
Plaintiffs object to the Magistrate Judge’s finding at pages 34 to 39 that the
Service’s least practicable adverse impact (“LPAI”) analysis did not violate the
MMPA. Specifically, Plaintiffs object to the Magistrate Judge’s finding that it would
be impracticable to locate and require a buffer around all suitable denning habitat
48 Kokechik, 839 F.2d at 802.
49 Docket 31 at 41-42.
50 BSITR0002430.
51 Docket 57 at 15.
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within the 20-million acres covered by the SBS ITR.52 Plaintiffs maintain that this
finding “repeats Defendant’s post hoc arguments and conflicts with the ITR’s
requirements that operators locate suitable denning habitat prior to operations.” 53
But the ITR itself explained that because “[p]roper denning habitat requires the
creation of snow drifts, which can differ from year-to-year, . . . [t]he ability to identify
areas in which these snow drifts may occur each year prior to operations is not
practicable.”54 	And the fact that the ITR requires den-detection surveys and
establishes a 1-mile exclusion zone around all known polar bear dens for certain
activities is not inconsistent with a decision not to require such a buffer around all
suitable denning habitat.55 	Accordingly, Plaintiffs’ objection to this portion of the
R&R is overruled.
To the extent Plaintiffs object because they were not advocating for a
suitable 	denning 	habitat 	around 	existing 	facilities, 	the 	Magistrate 	Judge’s
discussion of the impracticality of that is not incorrect, but simply surplusage, as is
the reference in the R&R to restrictions for areas in which polar bear denning
activity is unlikely. 	And this Court disagrees with Plaintiffs’ assertion that the ITR
gave only “one reason for dismissing timing and geographic mitigation measures—
52 Docket 57 at 15.
53 Docket 57 at 16.
54 BSITR0002448; see also BSITR0002447.
55 See BSITR0002424.
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industry said they were impracticable.”56 	Rather, the Service’s LPAI analysis
reflects a considered evaluation of additional mitigation measures containing
explanations of why the agency determined each one not to be practicable.57
Further, as the agency noted, many “[t]emporal and geographic constraints were
incorporated 	into 	AOGA’s 	revised 	request 	in 	light 	of 	collaboration 	with 	the
Service.”58
For the foregoing reasons, on de novo review, the Court ADOPTS the
Magistrate Judge’s LPAI analysis.
VIII. 	The NEPA Alternatives Analysis
Plaintiffs 	next 	assert 	that 	the 	Magistrate 	Judge 	erred 	in 	the 	National
Environmental Policy Act (“NEPA”) analysis by “absolving [the Service] of the duty
to provide a reasonable, non-cursory explanation for rejecting an entire category
of alternatives the agency previously considered practicable and effective,” an
apparent reference to alternative restrictions the Service had considered for a
seismic activity proposal in the Arctic National Wildlife Refuge. 59
56 Docket 57 at 16 (citing BSITR0002424).
57 BSITR0002424-25.
58 BSITR0002446. See generally Docket 38 at 48-49 (citing to record regarding iterative process).
59 Docket 57 at 18; Docket 31 at 49.
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Plaintiffs cite to an unpublished Ninth Circuit disposition, Environmental
Protection Information Center v. United States Forest Service.60 	In that case, the
Circuit Court remanded to the agency after determining that the Service had failed
to undertake full and meaningful consideration of alternatives. 	The Circuit Court
explained that the Service had improperly “defined the objectives of the [forest
thinning] project so narrowly that the proposed project was the only alternative that
would serve those objectives,” by including as a purpose of the project “pay[ing]
for the thinning by selling the trees cut.”61 	Here, the stated goal of the project is
broad: the authorization of the incidental, nonlethal and unintentional take of polar
bears and Pacific Walruses in the Beaufort Sea area in a manner that is consistent
with the Marine Mammal Protection Act. The agency did not define its objectives
in unreasonably narrow terms. 	And while the Environmental Assessment (“EA”)
focused 	on 	two 	final 	alternatives, 	the 	Service 	did 	initially 	consider 	other
alternatives, including temporal and geographic restrictions.62 	In 	Center for
Biological Diversity v. Salazar, the Ninth Circuit held that the Service did not violate
the regulatory scheme for an EA when it focused on “two final alternatives” when
issuing an ITR for the Chukchi Sea.63 That holding applies with equal force here.
60 234 F. App’x 440 (9th Cir. 2007); Docket 57 at 17.
61 Env’t Prot. Info. Ctr., 234 F. App’x at 443.
62 See Docket 38 at 48-49 (citing to record regarding iterative process).
63 695 F.3d at 916 (citing Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1246
(9th Cir. 2005)).
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For the foregoing reasons, as well as those articulated by the Magistrate
Judge, which on de novo review the Court incorporates herein, the Court finds that
the ITR comports with NEPA.
IX. 	The Endangered Species Act
Plaintiffs’ last objection to the R&R asserts that the Magistrate Judge
“incorrectly rejected [Plaintiffs’] claim that the incidental take statement for the ITR
failed to account for reasonably certain Level A harassment/lethal take.”64 For the
reasons discussed above, the Court overrules this objection. The agency did not
act arbitrarily or capriciously when it concluded, “we do not estimate the proposed
activities will result in non-serious or serious injury Level A harassment or lethal
take of polar bears.”65 	In addition, the Court ADOPTS the R&R’s finding that the
reinitiation notice in this case was not defective.66
CONCLUSION
The Magistrate Judge recommended that the Court deny Plaintiffs’ Motion
for Summary Judgment and that the Court grant Federal Defendants’ and AOGA’s
cross-motions for summary judgment. On de novo review, the Court has in large
part adopted that R&R, with the modifications and additional rulings as set forth
herein.
64 Docket 57 at 18.
65 BSITR0002414.
66 See Docket 53 at 45-47.
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For the foregoing reasons, IT IS ORDERED that Plaintiffs’ Motion for
Summary Judgment at Docket 31 is DENIED; that Federal Defendants’ cross-
motion for summary judgment at Docket 38 is GRANTED; and that Intervenor-
Defendant 	AOGA’s 	cross-motion 	for 	summary 	judgment 	at 	Docket 	43 	is
GRANTED.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 29th day of March, 2023, at Anchorage, Alaska.
/s/SHARON L. GLEASON
UNITED STATES DISTRICT JUDGE
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