Center for Bio. Divrsty. v. Kempthorne


Oral Argument
08/04/09 – 08/04/09

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ANCHORAGE: 1 of two hearings on an appeal of the decision to de-list the polar bar as threatened under the Endangered Species Act (second hearing is 8/5).

Case Description: The oil and gas industry has conducted exploration, development, and production along the Beaufort Sea and the Northern coast of Alaska since 1968. The 2006 incidental take regulations were preceded by similar regulations published in1993, 1995, 1999, 2000 (twice), and 2003. 58 Fed. Reg. 60,402 (1993); 60 Fed. Reg. 42, 805 (1995); 64 Fed. Reg. 4, 3281999); 65 Fed. Reg. 5, 275 (2000); 65 Fed. Reg. 16, 828 (2000); and 68 Fed. Reg. 66, 744 (2003). Such past regulation yielded much information about the industry’s interactions
with polar bears and walrus. Prior to issuing the 2006 regulations, the Service evaluated
the impact of the oil and gas industry on polar bears and walrus. With respect to bears, it found that past interaction has been “minimal.” Most industry activity is conducted on land,
CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15765 away from the ice floes that polar bears prefer. Therefore, most encounters are only short-term behavioral disturbances. It is unlikely that oil and gas activities will physically obstructer impede polar bear movement. Since 1993, there have been no bears killed by industrial activities. Nevertheless, from 1993 to 2004, there were more than 700 sightings of polar bears related to industrial activities. More recently, sightings have increased. Production facilities may negatively affect denning females, with industrial noise causing females to abandon their dens prematurely and endanger their offspring. However, industrial noise-producing activity may need to be very close to the den to cause such a response, and bears may even acclimate to such noises. The Service found that the impact would likely be consistent with that during previous periods of regulation. The impact would be negligible. With respect to walrus, the Service also predicted that the impact would be negligible. Walrus are uncommon in the Beaufort Sea. Between 1993 and 2004, only nine were observed in the area, and there is no evidence that a walrus has been injured directly during an interaction with the oil and gas industry. Pursuant to the National Environmental Policy Act, and before issuing the final 2006 regulations, the Service produced an environmental assessment but not an environmental impact statement. The purpose of the Service’s EA in this context was not to evaluate “the impact of industry on polar bears and Pacific walrus”—the regulations themselves serve that purpose—but rather to “evaluate[ ] the impact of issuing incidental take regulations” as opposed to permitting industrial activities in the absence of such regulation. With this understanding, and based on the same information, the Service concluded that the incidental take regulation was likely to have no significant impact on the populations, recruitment, or survival of polar bears and walrus in the Beaufort Sea 15766 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE region. The EA acknowledged that climate change could affect the degree of impact on polar bears, but resolved that the magnitude of this effect was unclear.

Procedural Description: Plaintiff Center for Biological Diversity is an organization devoted to protecting the habitat of endangered species. Plaintiff Pacific Environment is a similar organization. Their members have viewed polar bears and walrus in the region, enjoy doing so, and have plans to return. In February 2007, the Center, along with Pacific Environment, filed this action alleging that the that the Service regulations violate the MMPA and NEPA. Venue was transferred to the District of Alaska. Following counter motions for summary judgment and briefing on the merits, the district court granted summary judgment to the defendants, upholding the regulations. The plaintiffs appeal.

Outcome: Court affirms the lower court’s ruling.


Court affirms the lower court’s ruling


Recording Disclaimer: This proceeding was recorded in full.

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