ELR Citation: ELR 20280
No(s). 08-35402 (9th Cir. Dec 2, 2009)

The Ninth Circuit held that FWS regulations authorizing the non-lethal take of polar bears and Pacific walrus by oil and gas activities in and along the Beaufort Sea on the Northern Coast of Alaska do not violate the Marine Mammal Protection Act (MMPA) or NEPA. The term “gas and oil exploration, exploration, and production activities” as set forth in the incidental take regulations is not too broad to qualify as a “specified activity” under the MMPA. Nor was the FWS' negligible impact finding arbitrary and capricious under the MMPA for failing to account for the increased vulnerability of polar bears due to climate change. Reduced physical fitness due to climate change likely poses a serious threat to the Beaufort Sea polar bear population, but the FWS could reasonably conclude that such a threat could not be “reasonably expected” to manifest itself in the context of regional oil and gas activities. The court also rejected claims that the FWS' FONSI was arbitrary and capricious because it failed to address "the impacts to polar bears from disturbance by oil and gas activities in the context of a warming climate." The FWS' EA did acknowledge climate change and enumerated its long-term effects on polar bears. Furthermore, the EA provides convincing reasons to believe that the incidental take regulations will ameliorate the impact of takes. And the FWS committed no clear error in deciding not to produce an EIS. Although climate change makes the FWS' prediction less certain than it would be otherwise, such uncertainty was not "highly uncertain" and its predictions were reasonable.