ELR Citation: 54 ELR 20066
No(s). 23-1736 (1st Cir. Apr 25, 2024)

The First Circuit affirmed summary judgment for NMFS in a challenge to the Service's issuance of an incidental harassment authorization (IHA) for construction of a wind power project off the coast of Massachusetts. A part-time Martha's Vineyard resident argued NMFS' determination that the IHA, which found that incidental harassment of up to 20 North Atlantic right whales constituted a "small number" under the Marine Mammal Protection Act, was arbitrary, capricious, and unlawful. He also argued NMFS' consideration of "specified activity . . . within a specific geographic region" where incidental harassment may occur was impermissibly narrow in scope. The appellate court found the record clearly showed that NMFS applied its scientific expertise to consider the nature of the project's activities and the type of harassment expected to occur, to quantify the proposed take based on pile-driving noise relative to the right whale population, and to make a separate finding that the proposed take would have a "negligible impact," and thus found no fault with the "small numbers" determination. It further found NMFS' delineation of the "specific geographic region" was proper. The court affirmed summary judgment for NMFS.