In May 2012, the Native Village of Chickaloon and several NGOs challenged the National Marine Fisheries Service’s (“NMFS”) issuance of an “Incidental Harassment Authorization” that allowed Apache Alaska Corporation to conduct seismic surveys in Cook Inlet, Alaska. The plaintiffs alleged that the issuance of the Incidental Harassment Authorization (“IHA”) and associated documents to Apache violated the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. §§ 1361-1421; the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544; and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4231-4370.
The plaintiffs filed a motion for summary judgment, and on May 28, 2013, a federal district court in Alaska ruled against the plaintiffs on most of their arguments. The court’s decision affirms NMFS’ position on several contentious issues.
For example, the plaintiffs challenged NMFS’ MMPA small numbers determination on two grounds: “(1) that the agency improperly conflated its small numbers analysis with its negligible impact analysis; and (2) that the agency improperly quantified 10% of the beluga whale population as small numbers.”
The court rejected this challenge, explaining that “NMFS could have done a better job in this case of keeping these two standards more distinct in the final rule, including the use of separate headings for each topic. But although discussed under the same heading in the final rule, this Court concludes that the agency kept the two standards sufficiently distinct and adequately analyzed ‘small numbers’ as a distinct, separate standard from the negligible impact standard.”
The court further stated, “In this case, in its small numbers determination, NMFS considered the percentage of the population affected. It indicates the requested take of 30 beluga whales ‘represent[s] 10 percent of the Cook Inlet beluga whale population of approximately 284 animals . . . These percentage estimates represent small numbers relative to the affected population sizes[.]’”
In other words, the MMPA’s small numbers requirement for IHAs does not require a numerical ceiling. Population percentage is an acceptable standard.
As another example of deference to NMFS’ judgment on contentious issues, the court rejected the plaintiffs’ challenge to NMFS’ use of 160 dB SPL as the acoustic criterion for MMPA Level B behavioral effects in marine mammals. In the court’s own words: “This Court has independently reviewed the record on this topic and is satisfied that NMFS
made a reasoned decision to use the 160 dB sound threshold level for Cook Inlet Level B take based on the evidence before the agency. Accordingly, the agency is entitled to deference on this finding.”
The court did, however, agree with the plaintiffs that NMFS made arithmetical errors in some of its take estimates.
The court’s opinion is available online at http://thecre.com/pdf/mmihachallenge.pdf .