ELR Citation: 53 ELR 20024
No(s). 3:21-cv-00209-SLG-KFR (D. Alaska Feb 6, 2023) (Reardon, J.)

A magistrate judge recommended that environmental groups' motion for summary judgment be denied in a challenge to FWS' authorization of oil and gas drilling on the northern coast of Alaska. The groups argued that FWS' five-year incidental take regulation, accompanying biological opinion, and EA unlawfully authorized take by harassment of Southern Beaufort Sea polar bears in violation of the Marine Mammal Protection Act (MMPA), NEPA, and the ESA. The magistrate judge found that FWS' use of annual take as opposed to five-year total takes was a reasonable interpretation of the MMPA, that its division of Level A harassment into "serious" and "non-serious" was not contrary to the plain language of the Act, that the Service adequately considered potential injury or mortality to polar bear cubs, and that its consideration of "non-serious" Level A harassment was not arbitrary. He further found that FWS sufficiently studied, developed, and described appropriate alternatives in accordance with NEPA and provided a rational basis for its conclusion that no Level A harassment was likely to occur. He recommended that the groups' motion for summary judgment be denied and FWS' cross-motion granted.