Alaska Wildlife Alliance v. U.S. Fish and Wildlife Service

• Court: District Court, D. Alaska
• Decided: February 6, 2023
• Docket: 3:21-cv-00209
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT 3 FOR THE DISTRICT OF ALASKA 4

6 ALASKA WILDLIFE ALLIANCE, et al., 7 Plaintiffs, 8 v. Case No. 3:21-cv-00209-SLG-KFR

9 U.S. FISH AND WILDLIFE SERVICE et al., 10 Defendants. 11

13 REPORT AND RECOMMENDATION RE MOTIONS FOR SUMMARY JUDGMENT

14 The Court recommends Plaintiffs’ Motion for Summary Judgment at Docket 31

15 be DENIED. The Court further recommends Defendants’ Cross-Motions for Summary

16 Judgment at Dockets 38 and 43 be GRANTED. Plaintiffs argue that Defendant United

17 States Fish and Wildlife Service (“FWS”) unlawfully authorized the incidental take

18 by harassment of Southern Beaufort Sea (“SBS”) polar bears from oil and gas

19 activities in the 2021-2026 Beaufort Sea Incidental Take Regulation (hereinafter

20 “2021 BSITR”) in violation of the Marine Mammal Protection Act (“MMPA”), and

21 failed to conduct the necessary level of analysis under the National Environmental

22 Policy Act (“NEPA”), and the Endangered Species Act (“ESA”). The Court disagrees

23 and finds FWS’s 2021 BSITR issued pursuant to the MMPA, and its analysis under

24 NEPA and the ESA, to be to be reasonable and supported by relevant evidence and

25 precedent. The Court finds FWS’s actions in this case not to be arbitrary and

26 capricious.

28 1 I. Background1

2 a. Factual Background

3 The SBS polar bear population faces a threat to their existence due to climate

4 change, native subsistence harvest, scientific research, industrial activities,

5 including oil and gas development, defense of life, shipping, and placement of

6 orphaned cubs.2 In 2008, FWS listed SBS polar bears as a threatened species under

7 the ESA and published protective measures that apply to the stock.3 In 2011, FWS

8 designated critical habitat under the Enda ngered Species Act (“ESA”) for polar bears 9 in Alaska, which included barrier island habitat, sea-ice habitat, and terrestrial 10 denning habitat.4 The SBS stock currently consists of about 907 bears and has 11 remained largely stable since 2006.5 12 FWS first issued regulations in 1993 authorizing the incidental take of 13 walruses and polar bears in connection with oil and gas exploratory activities in the 14 Beaufort Sea region for a period of five years.6 FWS issued an additional six 15 16 17 18 19 1 The Background is limited to those facts necessary to decide the motions before the Court. 20 The Court does not intend for the Background to constitute binding findings of fact should this matter proceed to trial. 21 2 U.S. FISH & WILDLIFE SERV., POLAR BEAR: SOUTHERN BEAUFORT SEA STOCK 22 ASSESSMENT (2021), chrome- extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.fws.gov/sites/default/files/d 23 ocuments/polar-bear-southern-beaufort-sea-stock-assessment-report-may-2019.pdf. 3 Doc. 1 at 26. All reference to page numbers in filed documents are to the CM/ECF stamped 24 page number printed in the document footer after filing, and not to the page number printed on the original document by the parties. 25 4 Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States, 26 75 Fed. Reg. 76,086, 76,088–91 (Dec. 7, 2010); BSITR0002386. Consistent with the briefing of the parties, all record references to the Beaufort Sea Incidental Take Regulations are 27 abbreviated “BSITR.” 5 BSITR002386. 28 6 58 Fed. Reg. 60,402 (November 16, 1993). 1 | Incidental Take Regulations (“ITR/ITRs”) for the Beaufort Sea.”? The 2016 Beaufort 2 | Sea ITR was for a period of five years and expired on August 5, 2021.® 16g°w isg°w isg°w 145°W 140°wW 1i35°w 3 ae ans GS In December 2019, FWS ‘ (224 ITR Petition Area 4 cee so | National Petroleum Reserve-Alaska L7an = received a request from the 74°HN4 or aS i US. Exclusive Economic Zone 5 | sty ae ON i Alaska Oil and Gas Association on : ch, Li Wee San A -73°N 6 | ” ee ed \ (“AOGA”) to promulgate an ITR |, ====sasnemm \ 7" under the MMPA to regulate the 8 | ~~ oy Honlethal and unintentional take 71SN4 LAE 7 9 [Soe Ly _7 Yj i by harassment of small numbers 10 | HL 7% of wal d polar b □□□ LY of walruses an olar bears | Wildy 11 2 «sy incidental to oil and gas industry earn tin = % a 12 | piii3d) 60 ——-120Miles J activities in the Southern 13 Sew 150°W 145° “ew Beaufort Sea.9 In order to issue Figure 1—Map of the Beaufort Sea ITR region. □ 14 an ITR, an applicant must submit 15 || a request to FWS that conforms with eight specific MMPA requirements.’° FWS 16 || reviews the request to determine if it is adequate and complete. If it is incomplete 17 | FWS notifies and works with the applicant until it is complete. At that point, FWS 18 | makes its preliminary determinations, initiates NEPA and the ESA processes, 19 | prepares the proposed rule, and publishes notice of it in the Federal Register for a 20 || 30-60-day public comment period. After the close of the comment period, FWS 21 || reviews and addresses public comments, finalizes ESA and NEPA compliance, makes 22 23 24 | — SSS 25 7 60 Fed. Reg. 42,805 (Aug. 17, 1995); 64 Fed. Reg. 4,328 Gan. 28, 1999); 65 Fed. Reg. 5,275 (Feb. 3, 2000); 65 Fed. Reg. 16,828 (Mar. 30, 2000); 68 Fed. Reg. 66,744 (Nov. 28, 2003); 71 Fed. Reg. 43,926 (Aug. 2, 2006); 76 Fed. Reg. 47,009 (Aug. 3, 2011); 81 Fed. Reg. 52,275 (Aug. 5, 2016). 27 || ° 81 Fed. Reg. 52,275 (Aug. 5, 2016). ° BSITROO2386. Plaintiffs do not dispute the regulations as they pertain to walruses. 28 | °° 50 C.F.R. § 18.27(d)(1). Order re Motions for Summary Judgment Alaska Wildlife Alliance, et al., v. U.S. Fish and Wildlife Service, et al.

1 final determinations, and prepares the final rule. FWS then publishes the final ITR

2 in the Federal Register, and it generally becomes effective after 30 days.11

3 AOGA submitted its complete request in March 2021.12 On June 1, 2021, FWS

4 published its proposed ITR along with a draft Environmental Assessment.13 After

5 expiration of the 30-day comment period, FWS issued the final 2021 BSITR and EA

6 governing the non-lethal, incidental take of polar bears and Pacific walruses from

7 oil and gas activities in the Beaufort Sea nearshore areas of Alaska’s North Slope on

8 August 5, 2021.14 Pursuant to its authorit y under the Administrative Procedures Act 9 (“APA”), FWS found good cause for immediate promulgation of the ITR. The ITR 10 remains effective through August 5, 2026. 11 FWS determined that no more than 443 individual SBS polar bears would be 12 taken during the five-year 2021 BSITR.15 Dividing this total number over the five- 13 year ITR term, FWS concluded that up to 92 polar bears would be taken yearly by 14 Level B harassment, which, by FWS’s calculation represented roughly 10% of the 15 estimated population of 907 polar bears in the SBS stock.16 FWS concluded that this 16 volume would impact no more than “small numbers” of the SBS polar bear stock.17 17 FWS anticipated only Level B harassment would occur in its small numbers 18 determination, and that that level of harassment would have a negligible impact on 19 the health, reproduction, or survival of SBS polar bears.18 In assessing the amount 20 of Level A take anticipated, FWS broke down Level A harassment into two categories: 21 “serious,” meaning impacts likely to result in mortality, and “non-serious,” meaning 22

23 11 U.S. Fish and Wildlife Service, “Incidental Take Authorizations for Marine Mammals,” https://www.fws.gov/service/incidental-take-authorizations-marine-mammals. 24 12 BSITR002366; BSITR000878-1141; BSITR00853-877. 13 86 Fed. Reg. 79082 (June 1, 2021); see also BSITR002365; BSITR0001731-1802. 25 14 86 Fed. Reg. 42982 (Aug. 5, 2021); see also BSITR002365-2457; BSITR002289; 26 BSITR018535- 18601. 15 BSITR002422. 27 16 BSITR002429. 17 BSITR002422. 28 18 AOGA did not request or anticipate any Level A harassment. 1 take resulting from encounters that might cause early den departure but would not

2 likely to result in mortality, and concluded that no Level A take was likely.19

3 FWS also considered the means of effecting least practicable adverse impacts

4 (“LPAI”) on the SBS polar bears, and implemented a number of measure designed to

5 disturbances to polar bear denning sites.20 FWS also completed an EA assessing the

6 impacts under NEPA of the 2021BSITR. Finally, FWS consulted on the impacts of the

7 2021 BSITR pursuant to the ESA and completed a Biological Opinion (“BiOp”) that

8 determined that the proposed activities w ould only have a negligible effect on the 9 SBS polar bear stock, and was not likely to affect polar bear critical habitat.21 10 b. Procedural Background 11 On September 16, 2021, Plaintiffs22 filed suit against FWS, the United States 12 Department of Interior, and Shannon Estenoz and Debra Haaland in their official 13 capacities (collectively “Federal Defendants”) alleging that the five-year 2021 BSITR, 14 the accompanying Biological Opinion (“BiOp”), and the EA failed to comply with the 15 MMPA, ESA, and NEPA.23 Plaintiffs properly served Defendants.24 Alaska Oil and Gas 16 Association and the State of Alaska intervened as co-defendants.25 Defendants 17 answered the complaint.26 18 Plaintiffs seek declaratory and injunctive relief against Defendants for their 19 decision to issue a five-year 2021 BSITR under the MMPA approving the AOGA 20 petition to take SBS polar bears and Pacific walrus in the Beaufort Sea and adjacent 21 northern coast of Alaska (North Slope). Plaintiffs argue these animals are protected 22

23 19 BSITR0002438. 20 See e.g. BSITR0002384, BSITR0002393; BSITR0002412; BSITR0002424; and 24 BSITR0002455-56. 21 BSITR0002333-34; BSITR0002332-33. 25 22 Alaska Wildlife Alliance, Alaska Wilderness League, Center for Biological Diversity 26 Defenders of Wildlife, Environment America, Friends of the Earth, and Sierra Club. 23 Doc. 1. 27 24 Doc. 12. 25 Doc. 15 and Doc. 25. 28 26 Docs. 16, 20, 26. 1 from “take” by the MMPA,27 and polar bears are protected under the ESA as a

2 threatened species.28 Plaintiffs seek review under the Administrative Procedure Act

3 (“APA”).

4 On April 20, 2022, Plaintiffs filed a Motion for Summary Judgment.29

5 Defendants responded in opposition asserting a cross-motion for summary

6 judgment,30 and Plaintiffs replied.31 Defendants argue that the 2021 BSITR complies

7 with the MMPA, NEPA, and ESA. Defendants ask the Court to uphold the 2021 BSITR,

8 and grant summary judgment in Defendan ts’ favor.32 9 The parties did not request oral argument. The Court deems the issues 10 sufficiently briefed and oral argument is not necessary. 33 11 II. Jurisdiction 12 The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which 13 confers jurisdiction on federal courts to review an agency action.34 An aggrieved 14 party may seek review of an agency action in District Court pursuant to the APA.35 15 III. Legal Standard 16 The APA governs a court’s review of an agency's compliance with the MMPA, 17 NEPA, and ESA.36 A reviewing court can set aside an agency's decision if it is 18 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 19

20 27 Doc. 1 at 3. 28 Id. 21 29 Doc. 31. 22 30 Docs. 38, 41, 42. 31 Doc. 46. 23 32 Doc. 38. 33 Inasmuch as the Court concludes the parties have submitted memoranda thoroughly 24 discussing the law and evidence in support of their positions, it further concludes oral argument is neither necessary nor warranted with regard to the instant matter. See Mahon 25 v. Credit Bureau of Placer County Inc., 171 F.3d 1197, 1200 (9th Cir. 1999) (explaining that if 26 the parties provided the district court with complete memoranda of the law and evidence in support of their positions, ordinarily oral argument would not be required). 27 34 5 U.S.C. § 702. 35 5 U.S.C. §§ 701–706. 28 36 Humane Soc'y v. Locke, 626 F.3d 1040, 1047 (9th Cir. 2010). 1 law.”37 “Whether agency action is ‘not in accordance with law’ is a question of

2 statutory interpretation, rather than an assessment of reasonableness in the instant

3 case.”38

4 The Court follows the deferential two-step inquiry set out in Chevron U.S.A. v.

5 Natural Resources Defense Council, Inc., in reviewing an agency's interpretation and

6 application of statutes for which it is responsible.39 First, the Court asks “whether

7 Congress has directly spoken to the precise question at issue. If the intent of

8 Congress is clear, that is the end of the m atter; for the court, as well as the agency, 9 must give effect to the unambiguously expressed intent of Congress.”40 Second, “if 10 the statute is silent or ambiguous with respect to the specific issue, the question for 11 the court is whether the agency's answer is based on a permissible construction of 12 the statute.”41 13 A court cannot substitute its judgment for that of the administrative agency, 14 therefore its review should be “searching and careful,” but “narrow.”42 [D]eference 15 to the agency’s decisions is especially warranted when “reviewing the agency’s 16 technical analysis and judgments, based on an evaluation of complex scientific data 17 within the agency’s technical expertise.”43 “Nevertheless, the agency must examine

18 37 5 U.S.C. § 706(2)(A). 19 38 City of Sausalito v. O'Neill, 386 F.3d 1186, 1206 (9th Cir. 2004); 5 U.S.C. § 706(2)(A) (1980). 20 39 467 U.S. 837, 843–44 (1984). Prior to undertaking the two-step Chevron inquiry, the Court must determine whether Congress intended “the agency to be able to speak with the force 21 of law when it addresses ambiguity in the statute or fills a space in the enacted law.” United 22 States v. Mead Corp., 533 U.S. 218, 229 (2001). This step is colloquially referred to as “Step Zero” of the Chevron analysis. See, e.g., Oregon Rest. & Lodging v. Solis, 948 F.Supp.2d 1217, 23 1222–23 (D. Or. 2013); see also Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1216–18 (9th Cir. 2015). 24 40 Chevron, 467 U.S. at 842–43. 41 Id. at 843. The Supreme Court and the Ninth Circuit sometimes describe the statutory 25 standard as “whether the agency's interpretation is reasonable.” See King v. Burwell, 576 26 U.S. 473 (2015); see also Alaska Wilderness League, 788 F.3d at 1220–21. 42 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989). 27 43 Envtl. Defense Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir. 2003) (citing Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103, (1983) and Chem. Mfrs. Ass'n v. EPA, 919 F.2d 158, 167 28 1 the relevant data and articulate a satisfactory explanation for its action including a

2 rational connection between the facts found and choice made.”44 Courts may reverse

3 an agency’s decision only if the agency depended on factors that Congress “did not

4 intend it to consider, entirely failed to consider an important aspect of the problem,

5 offered an explanation that runs counter to the evidence before the agency or is so

6 implausible that it could not be ascribed to a difference in view or the product of

7 agency expertise.”45

8 If an agency changes its policy, it i s “obligated to supply a reasoned analysis 9 for the change.”46 An agency change in position is arbitrary unless the agency (1) 10 displays “awareness that it is changing position,” (2) shows that “the new policy is 11 permissible under the statute,” (3) “believes” the new policy is better, and (4) 12 provides “good reasons” for the new policy.47 13 IV. Discussion 14 Plaintiffs allege that FWS’s 2021 BSITR and accompanying environmental 15 review documents fail to comply with the MMPA, NEPA, and ESA.48 Defendants 16 disagree, arguing that the 2021 BSITR was properly issued and is in compliance with 17 each of the statutes. The Court considers all pleadings by the parties and evaluates 18 the arguments under each statute in turn. 19 a. MMPA 20 i. Statutory and Regulatory Framework 21 “To prevent marine mammal species and population stocks from diminishing 22 ‘beyond the point at which they cease to be a significant functioning element in the 23 (D.C. Cir. 1990) (“It is not the role of courts to ‘second-guess the scientific judgments of the 24 EPA....’”)). 44 Envtl. Defense Ctr., 344 F.3d at 869. 25 45 Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009). 26 46 Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). 27 47 F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009); see also Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (en banc). 28 48 Doc. 31 at 11. 1 ecosystem,’” the MMPA generally prohibits the “take” of marine mammals. 49 The

2 term “take” is defined broadly and means “to harass, hunt, capture, or kill, or

3 attempt to harass, hunt, capture, or kill any marine mammal.”50 “Harassment” is

4 defined, in relevant part, to include any act of pursuit, torment, or annoyance which

5 (1) “has the potential to injure a marine mammal or marine mammal stock in the

6 wild” (“Level A harassment”), or (2) “has the potential to disturb a marine mammal

7 or marine mammal stock in the wild by causing disruption of behavioral patterns,

8 including, but not limited to, migration, breathing, nursing, breeding, feeding, or 9 sheltering” (“Level B harassment”).51 “Injury” is defined as “a wound or other 10 physical harm.”52 11 In the 2021 BSITR, FWS further broke down “Level A harassment” into two 12 subcategories, “serious” and “non-serious.” Neither of these subcategories are 13 defined in the statute or its implementing regulations. For purposes of the 2021 14 BSITR, FWS defined “serious injury Level A harassment” as injurious take “that is 15 likely to result in mortality.”53 “For dens where emergence was not classified as 16 early, if an exposure occurred during the post-emergence period and bears departed 17 the den site prior to their intended (i.e., undisturbed) departure date,” FWS assigned 18 a non-serious injury Level A harassment take for each cub that had to depart its den 19 “less than 8 days after the emergence date.”54 20 The MMPA includes several exceptions to its general taking prohibition. The 21 exception at issue in this case allows for “the incidental, but not intentional, taking 22 by citizens while engaging in [an activity such as oil exploration] ... of small numbers 23 of marine mammals of a species or population stock” when the Secretary of the 24 49 Natural Resources Defense Council, Inc. v. Pritzker, 828 F.3d 1125, 1129 (9th Cir. 2016) 25 (quoting 16 U.S.C. § 1361(2)) (hereinafter “Pritzker 1”); see also 16 U.S.C. § 1371(a). 26 50 Id. at § 1362(13). 51 16 U.S.C.A. § 1362(18). 27 52 50 C.F.R. 229.2. 53 BSITR0002396. 28 54 BSITR0002409. 1 Interior “finds that the total of such taking ... will have a negligible impact on such

2 species or stock....”55 “Small numbers” is defined as “a portion of a marine mammal

3 species or stock whose taking would have a negligible impact on that species or

4 stock.”56 “Negligible impact” is defined as an impact that “cannot be reasonably

5 expected to, and is not reasonably likely to, adversely affect the species or stock

6 through effects on annual rates of recruitment or survival.”57

7 If FWS makes the required findings relating to “small numbers” and

8 “negligible impact,” it may, after notice and comment, issue ITRs that authorize 9 incidental takes “during periods of not more than five consecutive year[s.]”58 The 10 regulations must

11 set[] forth permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such 12 species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on 13 the availability of such species of stock for subsistence users; and requirements pertaining to the monitoring and reporting of such 14 taking.59 15 “The ‘least practicable adverse impact’ standard applies both to ‘permissible 16 methods of taking pursuant to’ the activity causing incidental take and to ‘other 17 means’ of reducing incidental take.”60 The “least practicable impact” requirement 18 is a “stringent standard,” and “‘[a]lthough the agency has some discretion to choose 19 among possible mitigation measures, it cannot exercise that discretion to vitiate this 20 stringent standard.’”61 21 After an ITR is issued, citizens may apply for a letter of authorization (“LOA”) 22 that authorizes incidental takes of “small numbers of marine mammals incidental to 23 55 Id. at § 1371(a)(5)(A)(i). 24 56 50 C.F.R. § 18.27(c). 57 Id.; see also 54 Fed. Reg. 40,340 (citing 132 Cong. Rec. 16305 (Oct. 15, 1986)); Natural 25 Resources Defense Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1159 (N.D. Cal., 2003). 26 58 16 U.S.C.A. 1371(a)(5)(A)(i). 59 Id. at (II); see also Center for Biological Diversity v. Salazar, 695 F.3d 893, 899 (9th Cir. 27 2012 (hereinafter “CBD”). 60 Pritzker 1, 828 F.3d at 1130 (citing Evans, 279 F.Supp.2d at 1142 (citation omitted)). 28 61 Id. 1 a specified activity” consistent with the ITR.62 LOAs are issued after a non-public

2 process if FWS determines that the proposed activity is one described in the ITR and

3 concludes that the level of take caused by the activity will be consistent with the

4 findings made in the regulation.63 Notice of the issuance of a LOA must be published

5 in the Federal Register within 30 days of its issuance.64 The regulation also provides

6 that LOAs will specify “any additional terms and conditions appropriate for the

7 specific request.”65

8 ii. Plaintiffs’ Arguments under the MMPA 9 Plaintiffs make five arguments under the MMPA. First, Plaintiffs argue that 10 FWS’s small numbers finding improperly segments its analysis into annual 11 increments, an agency decision that failed to properly consider total authorized 12 takes for the entire five-year period and which amounted to an impermissible policy 13 reversal. Second, FWS’s Level A harassment categories of “serious” and “non- 14 serious” are contrary to the plain language of MMPA. Third, FWS’s negligible impact 15 finding improperly disregarded impacts of cub loss by serious Level A harassment 16 and lethal take, and failed to consider impacts of “non-serious” Level A harassment. 17 Fourth, FWS failed to account for Level A harassment or lethal take that was likely 18 to occur. Finally, FWS’s failure to consider timing and geographic restrictions on oil 19 and gas activities was improper because it did not ensure the least practicable 20 adverse impact to SBS polar bears.66 21 // 22 // 23 // 24 62 50 C.F.R. § 18.27(d). Citizens are defined, in pertinent part, as “individual U.S. citizens 25 or any corporation or similar entity if it is organized under the laws of the United States[.]” 26 Id. at § 18.27(c). 63 Id. at § 18.27(f)(1–2). 27 64 Id. at § 18.27(f)(3). 65 Id. 28 66 Doc. 31 at 16. 1 1. FWS’s Small Numbers Finding Did Not Violate the

2 MMPA and APA.

a. FWS’s Use of Annual Takes as Opposed to Five- 4 Year Total Takes in Making its Small Numbers

5 Finding Was a Reasonable Interpretation of the

6 Statute.

7 Plaintiffs argue that FWS’s small numbers finding violates the MMPA because

8 it segments its analysis into annual increm ents which fail to properly consider total 9 authorized takes. Plaintiffs state that the 2021 BSITR allows the take of up to 443 10 individual SBS polar bears over the course of the ITR’s five-year duration, which by 11 Plaintiffs’ calculation equates to 48.84%, or nearly half, of the estimated population 12 of 907 SBS polar bears.67 Plaintiffs assert that Defendants erred by basing their 13 small numbers finding on an annual take rate of 10.4%, a number generated by 14 dividing the 2021 BSITR’s total takes of 443 by five to calculate the number of takes 15 per year (92), and then considering that number against the total population of 16 907.68 17 Plaintiffs contend that FWS’s decision to consider annual take in its small 18 numbers determination, as opposed to total take is arbitrary and flouts Congress’ 19 clear intent.69 Plaintiffs argue that the MMPA’s plain language requires FWS to 20 determine whether the total take authorized for the oil and gas activities across all 21 five years constitutes a small number. Plaintiffs allege that FWS impermissibly 22 divided that analysis into lesser one-year increments, which contravenes the plain 23 language of the MMPA and makes the small numbers standard meaningless.70 24 Additionally, Plaintiffs allege that FWS impermissibly reversed its policy of 25 considering total takes for the five-year 2021 BSITR period and instead switched to 26 67 Doc. 31 at 20-21; see also BSITR0002386. 27 68 BSITR0002422; BSITR0002429; see also Doc. 31 at 21. 69 Doc. 31 at 20-21; BSITR0002422. 28 70 Doc. 31 at 22. 1 an annual calculation without supplying a reasoned analysis for the change.71 Per

2 Plaintiffs, in issuing prior five-year ITRs, FWS considered the total take across all

3 given years in making its small numbers determinations.72 As evidence of this,

4 Plaintiffs cite to the 2016-2021 Beaufort Sea ITR73, the 2019-2024 Cook Inlet ITR74,

5 the 2013-2018 Chukchi Sea ITR75, and the 2008-2013 Chukchi Sea ITR.76

6 Defendants argue that its “small numbers” finding is rational, permissible,

7 and consistent with FWS’s past practice in its Beaufort Sea ITRs since 2011;

8 consistent with Congressional intent; an d is a practice that has been previously 9 upheld in CBD.77 Defendants further state that there has been no policy reversal in 10 this case, and Plaintiffs’ reliance on prior ITRs as evidence of such a reversal is either 11 factually incorrect or misplaced.78 12 Defendant Intervenor State of Alaska repeats the above arguments, and 13 further contends that historical data suggests it is unlikely that 443 Level B 14 harassment takes of unique SBS polar bears will occur.79 In support of this 15 conclusion they refer to 2014-2018 data illustrating that only 264 Level B 16 harassments occurred out of the 1,698 bears encountered by industry, resulting in 17 take of “only 15.5 percent of the observed bears.”80 Per the State of Alaska, these

18 71 Doc. 31 at 25. 19 72 Doc. 31 at 26-28. 73 Final Rule, Marine Mammals; Incidental Take During Specified Activities, 81 Fed. Reg. 20 52,276–77, 52,304 (Aug. 5, 2016). (“We conclude that over the 5-year period of these ITRs, Industry activities will result in a similarly small number of Level B takes of polar bears.”); 21 id. at 52,306 (“Based on this information, we estimate that there will be no more than 340 22 Level B harassments takes of polar bears during the 5-year period of these ITRs.”). Courts take judicial notice of the Federal Register. See 44 U.S.C. § 1507. 23 74 Final Rule, Marine Mammals; Incidental Take During Specified Activities: Cook Inlet, Alaska, 84 Fed. Reg. 37,716 (Aug. 1, 2019). 24 75 Final Rule, Marine Mammals; Incidental Take During Specific Activities, 78 Fed. Reg. 35,364, 35,415 (June 12, 2013). 25 76 Final Rule, Marine Mammals; Incidental Take During Specific Activities, 73 Fed. Reg. 26 33,212 (June 11, 2008). 77 Doc. 38 at 15-23; see also Doc. 43 at 24-28. 27 78 Doc. 38 at 15-23; see also Doc. 43 at 28-30. 79 Doc. 41 at 17-18. 28 80 Doc. 41 at 13, 18-19; see also BSITR0002422. 1 statistics necessarily include multiple takes of the same bear rather than each take

2 affecting a different bear since the SBS stock’s estimated population is 907, which

3 they claim has remained constant since 2015, and many bears remain on sea ice and

4 are never encountered by industry.81 Defendant State of Alaska therefore concludes

5 that FWS’s small numbers finding is rational because current industry activities are

6 expected to be similar to industry activities under past ITRs, which resulted in less

7 take than anticipated, but were still considered “small numbers” at the outset.82

8 Plaintiffs’ assertion that FWS’s sm all numbers finding based on an annual 9 accounting of potential Level B SBS polar bear takes violated the MMPA is without 10 merit. In this case, FWS considered, and rejected, a five-year analysis in favor of an 11 annual accounting of SBS polar bear takes, reasoning that such an accounting “best 12 enables the Service to assess whether the number of animals taken is small relative 13 to the species or stock.”83 This interpretation is consistent with the statute and is 14 not an unreasonable application of the law. It is therefore entitled to deference by 15 this Court. The relevant statutory language governing “small numbers” contains no 16 express provision for how this figure is to be determined, only that it may be for 17 “periods of not more than five consecutive years each.”84 Had Congress meant to 18 absolutely require such granularity, it could have said so, as it has done in other 19 statutes.85 When a “statute is silent or ambiguous on the precise question at issue, 20 81 Id. at 18. 21 82 Id. at 18. 22 83 BSITR0002428. 84 16 U.S.C. § 1371(a)(5)(A)(i). 23 85 See 16 U.S.C. 1386(a), (c) (requiring stock assessment reports to estimate the annual human-caused mortality and serious injury of the stock, and annual review of stock 24 assessments when significantly new information is available that may indicate the stock assessment should be revised); 16 U.S.C. 1362(26) (defining “net productivity rate” as the 25 annual per capita rate of increase in a stock resulting from additions due to reproduction, 26 less losses due to mortality); 16 U.S.C. 1383a(l)(ii) (requiring MMC's recommended guidelines to govern the incidental taking of marine mammals in the course of commercial 27 fishing operations, to the maximum extent practicable, to include as a factor to be considered and utilized in determining permissible Levels of taking “the abundance and 28 1 Chevron commands that we accept the agency's interpretation so long as it is

2 reasonable, even if it is not the reading that we would have reached on our own.”86

3 FWS’s interpretation of the statute in this case was reasonable and creates “a

4 symmetrical and coherent regulatory scheme.”87 As Federal Defendants argue,

5 FWS’s interpretation avoids the illogical result that would occur under Plaintiffs’

6 reading; namely, a statutory scheme in which FWS could promulgate ITRs for five

7 one-year periods that each rely on an annual assessment, but not a single five-year

8 ITR that does the same.88 Furthermor e, allowing an annualized assessment is 9 consistent with the mechanism that actually allows a take of small numbers of 10 marine mammals, the LOA, of which there could be multiple during the period of an 11 ITR so long as the “total of such taking during each five-year period or less…. will 12 have no more than a negligible impact on such species or stock.”89 13 Moreover, as the Ninth Circuit held in CBD, FWS need not provide any number 14 in its small number calculation.90 In providing a quantifiable estimate of take in this 15 case FWS relied on “historical data, plus modeling,”91 and concluded that based upon 16 past reported incidental take from 2014-2018 - an annual average of 53 Level B 17 18 annual net recruitment of such stocks”). 16 U.S.C. § 1387(f)(4)(B) (requiring that take reduction plans include “an estimate of the total number … of animals from the stock that 19 are being incidentally lethally taken or seriously injured each year during the course of commercial fishing operations, by fishery”) (emphasis added). 20 86 CBD, 695 F.3d at 893 (citing Chevron, 467 U.S. at 843 & n. 11). 87 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Gustafson v. 21 Alloyd Co., 513 U.S. 561, 569 (1995); FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)). 22 88 Doc. 38 at 17-18. 89 BSITR0002365. The Court also notes that FWS’s annual accounting is consistent 23 throughout the 2021 BSITR as applied to both polar bears and walruses. However, yet Plaintiff does not challenge FWS’s small numbers determination as it relates to walruses, 24 which estimated a take of 15 walruses per year. It is incongruous for Plaintiffs to argue that FWS misinterpreted the statute as it relates to SBS polar bears, but that the same 25 methodology was not objectionable when applied to the SBS walrus population. 26 90 CBD, 695 F.3d at 907 (“The Service need not quantify the number of marine mammals that would be taken under the regulations, so long as the agency reasonably determines 27 through some other means that the specified activity will result in take of only “small numbers” of marine mammals.”) 28 91 Doc. 41 at 14. 1 harassments - a similarly small number of incidental harassments of polar bears

2 would occur over the 2021 BSITR period.92 Next, FWS considered results from its

3 predictive modeling exercise, which estimated based upon the forecasted SBS polar

4 bear population that “there will be no more than 443 Level B harassment takes of

5 polar bears during the five-year ITR period, with no more than 92 occurring within

6 a single year.”93

7 FWS concluded that 92 Level B harassment takes within a single year was a

8 small number. As FWS stated, this numbe r was a conservative estimate because they 9 “could not reliably calculate how many of the anticipated Level B harassments would 10 accrue to the same animals,…[and therefore assumed] that each of the anticipated 11 takes would accrue to a different animal.”94 In making its determination, FWS stated 12 that they “consider[ed] whether the estimated number of marine mammals to be 13 subjected to incidental take is small relative to the population size of the species or 14 stock,” and determined that the “incidental Level B harassment of no more than 92 15 polar bears each year is unlikely to lead to significant consequences for the health, 16 reproduction, or survival of affected animals.”95 17 FWS explained in response to comments that the “SBS population estimate…is 18 calculated using a number of annual metrics, including annual survival probabilities, 19 annual number of dens, and annual denning success.”96 FWS “divided annual take 20 estimates by annual population estimate, to calculate a percentage of the population 21 potentially taken for its small numbers determination” which “best enables FWS to 22 assess whether the number of animals taken is small relative to the species or 23 stock.”97 The Ninth Circuit previously upheld this proportional analysis.98 24 92 BSITR002422. 25 93 Id. 26 94 BSITR0002427. 95 BSITR002422-23; BSITR002427. 27 96 BSITR0002428. 97 Id. 28 98 CBD, 695 F.3d at 905-07. 1 FWS’s “small numbers” analysis further contrasted the limited geographic

2 area impacted by industrial activities with the larger range of SBS polar bears,

3 finding that “only seven percent of the ITR area is estimated to be impacted by the

4 proposed industry activities” and “the area of industry activity will be relatively

5 small compared to the range of [SBS] polar bears.”99 The Ninth Circuit has expressly

6 upheld an interpretation of the term “small numbers” which “focuses primarily on

7 the location of the exploration activities in relation to the mammals' larger

8 population.”100 It was not improper for FW S to rely on similar metrics in this case.101 9 b. FWS’s Use of Annual Takes to Make its Small 10 Numbers Finding Was Not a Policy Reversal. 11 Plaintiffs argue that the use of an annual accounting as opposed to a 12 cumulative five-year total amounts to a policy “reversal” that “FWS failed to 13 explain.”102 The Court finds this argument to be without merit as it is not apparent 14 FWS has changed its policy. Two previous Beaufort Sea ITRs show this to be true. 15 In the 2011-2016 Beaufort Sea ITR – an ITR Plaintiffs failed to cite to despite 16 its obvious similarities to the 2021 BSITR - FWS analyzed annual polar bear take 17 observed during the preceding ITR period to estimate the total number of future 18 takes by Level B harassment would not exceed 150 per year (out of a population of 19 900 polar bears), a figure it concluded was a “small number.”103 In response to a 20

21 99 BSITR0002422. 22 100 Ctr. for Bio. Diversity, 695 F.3d at 907. 101 The Court notes that FWS’s small number calculation of approximately 10% in this case 23 is similar to the annual calculation upheld by the District Court in Native Village of Chickaloon v. National Marine Fisheries Service, 947 F.Supp.2d 1031 (D. Alaska 2013). In that 24 case, the District Court held that Level B harassment, or taking, of up to 10% per year of the Cook Inlet beluga whale population – up to 30 animals per year out of a total population of 25 approximately 284 animals for up to three years constituted a “small number” of the 26 population relative to the affected population size because “10% represent[ed] a relatively limited or small portion of 100%,” and it was a figure supported by a “rational, albeit sparse, 27 basis.” Id. at 1053. 102 Doc. 31 at 16. 28 103 76 Fed. Reg. 47,010, 47,039-41, 47,045, 47,047 (Aug. 3, 2011). 1 comment to the 2011 Beaufort Sea ITR, which complained that FWS was “treating

2 ‘small numbers’ as being relative to population size,” FWS replied, “[t]he Service has

3 determined that the anticipated number of polar bears… that are likely to modify

4 their behavior as a result of oil and gas industry activity is small (150 takes per year

5 for polar bears[.])”104 And like the current 2021 BSITR, FWS based its small numbers

6 findings on distribution patterns and habitat use of the polar bears in proportion to

7 the footprint of the industry activity.105

8 FWS used the same method in the 2016-2021 Beaufort Sea ITR. In that ITR, 9 FWS estimated up to 338 total takes of polar bears by Level B harassment over the 10 five-year period, approximately 18 percent of the observed bears or 7.5 percent of 11 the SBS population, which annualized to 68 polar bears per year.106 FWS determined 12 Level B take of up to 7.5% of the SBS polar bear population constituted small 13 numbers, and repeated that percentage in rendering its small numbers 14 determination by dividing the number of bears expected to be taken over the ITR 15 term (338) by five, and then dividing the resulting estimate of annual take (68) by 16 the annual population estimate (900).107 17 The 2013-2018 Chukchi Sea ITR also uses a similar annual small numbers 18 calculation.108 Like the 2021 BSITR, this ITR assessed the take of walrus and polar 19 bears from oil and gas exploration in the Chukchi Sea, a body of water immediately 20 west of the Beaufort Sea. As FWS stated in that ITR, “the estimated total Level B 21 incidental take for polar bears is expected to be 25 animals per year[.]”109 22 23

24 104 Id. at 47045 (emphasis added). 105 BSITR002422-23. 25 106 BSITR0013791. 26 107 Id. at 13793. 108 78 Fed. Reg. 35,364 (June 12, 2013). 27 109 Id. at 35400 (emphasis added); see also id. at 35401 (“Overall, these takes (25 annually) are not expected to result in adverse effects that will influence population-level 28 reproduction, recruitment, or survival.”) 1 As it relates to the other ITRs identified by Plaintiffs, the Court does not find

2 that they are evidence of a policy reversal. In the 2008-2013 Chukchi Sea ITR, FWS

3 rendered a qualitative small numbers determination that did not estimate an

4 aggregate number of polar bear takes across the five-year period.110 In the 2019-

5 2024 Cook Inlet ITR, FWS did compare five years of aggregated take with the annual

6 population estimates for two affected stocks.111 However, this ITR involved a

7 different species in a different location. The Court does not find that this ITR is

8 sufficient evidence of a policy reversal th at would make FWS’s action in this case 9 arbitrary or require “a reasoned analysis for the change.”112 10 The Court finds that FWS’s small numbers finding is not arbitrary or 11 capricious. The Court finds FWS’s interpretation of the MMPA and its annualized 12 small numbers finding reasonable. Furthermore, the Court sees no policy reversal 13 in this annualized determination and finds it to be in accordance with prior ITRs. 14 2. FWS’s Division of Level A Harassment into “Serious” 15 and “Non-Serious” Harassment Was Not Contrary to 16 the Plain Language of the MMPA. 17 Plaintiffs claim that FWS’s division of Level A harassment into “serious” and 18 “non-serious” subcategories should be rejected because it contravenes the plain 19 language of the MMPA and fails to accurately consider the total likelihood of Level A 20 harassment by concealing the high probability of Level A harassment occurring.113 21 Plaintiffs argue that a distinction between “serious” and “non-serious” harassment 22 does not exist under the statute or FWS’s regulations, and the MMPA’s plain language 23 makes clear that any act with the potential to injure a marine mammal constitutes 24 Level A harassment.114 25

26 110 See 73 Fed. Reg. at 33,234; Doc. 38 at 22. 111 Doc. 38 at 22. 27 112 Motor Vehicles Mfrs. Ass’n of U.S., Inc., 463 U.S. at 42. 113 Doc. 31 at 29. 28 114 Id. 1 In support of their arguments, Plaintiffs cite to 16 U.S.C. § 1371(a)(2), where

2 the MMPA uses the term “serious injury,” but only in the context of commercial

3 fisheries. In Plaintiffs’ view, this use of the term “serious injury” in another portion

4 of the statute governing the issuance of ITRs means that Congress understood how

5 to specify “serious injury” as a form of take, but declined to apply it outside of

6 commercial fishing activities.115 Plaintiffs argue that “agencies are not free to add

7 text to a statute that is not there.”116

8 Federal Defendants argue that FWS ’s consideration of different types of Level 9 A harassment in its negligible impact analysis is consistent with the MMPA and 10 Congressional intent.117 Federal Defendants state, “[e]ven though the MMPA does 11 not define sub-categories of ‘Level A harassment,’ the statute does not preclude FWS 12 from using non-statutorily defined terms within its analysis, especially where the 13 terms have a sound biological basis and pertain to MMPA compliance.”118 Defendants 14 argue that Congress granted the agency discretion to determine “the potential 15 severity of harm to the species or stock when determining negligible impact.”119 16 Federal Defendants claim it reasonably segregated the potential types of Level A 17 harassment (serious and non-serious) in order to accurately determine whether or 18 not the total take would have a negligible impact on the SBS polar bears because 19 “[n]ot all Level A harassment events affect annual rates of recruitment or 20 survival.”120 21 Plaintiffs’ argument that FWS was not permitted to define Level A harassment 22 as either “serious” or “non-serious” is unavailing. Congress has not spoken directly 23

24 115 Id. citing Russello v. United States, 464 U.S. 16, 23 (1983). 116 United States v. Washington, 994 F.3d 994, 1016 (9th Cir. 2021). 25 117 Doc. 38 at 23-26; Doc. 43 at 30-42. 26 118 Doc. 38 at 23; 16 U.S.C. § 1362(18)(A)(i). 119 Doc. 38 at 23; see also BSITR002423 (summarizing Congressional instruction on 27 negligible harm inquiry at 132 Cong. Rec. S. 16305 (Oct. 15, 1986)). 120 Doc. 38 at 24 (citing BSITR002430; BSITR002423; and BSITR—2396); see also Doc. 43 at 28 32-44. 1 to the issue of subdividing Level A harassment categories. As such, the Court must

2 defer to FWS’s reasonable interpretation of the statute.

3 FWS’s regulations define “negligible impact” as “an impact resulting from the

4 specified activity that cannot be reasonable expected to, and is not reasonably likely

5 to, adversely affect the species or stock through effects on the annual rates of

6 recruitment or survival.”121 In light of the finding FWS was required to make as it

7 related to whether or not activities under the 2021 BSITR would have a negligible

8 impact on SBS polar bears, determining whether those activities would lead to 9 serious or non-serious injury was a reasonable action by FWS. 10 In evaluating levels of injury as serious or non-serious, FWS considered stages 11 in the polar bear denning process where take by Level A harassment or lethal take 12 might occur and differentiated between the likely biological responses of affected 13 polar bears in each of those scenarios: den establishment, early in the denning 14 period, late in the denning period, and after emergence from the den.122 It used this 15 information to formulate its modeling approach to quantifying take, including 16 evaluating probable biological responses based on exposure to project-related 17 disturbance.123 Relying on scientific and biological bases, FWS analyzed how the 18 timing of disturbances during the polar bear denning cycle effects the annual rates 19 of recruitment or survival, and thus the negligible impact standard, determining that 20 disturbances in the early denning period would likely lead to the death of polar bear 21 cubs (serious injury Level A harassment), with harassment at other times likely to 22 either not cause Level A harassment (den establishment period) or be not likely to 23 lead to serious injury resulting in mortality (non-serious Level A harassment).124 24 Based on its research, modeling approach, and review of “impacts of previous 25 industry activities on … polar bears,” FWS noted that “Level A harassment” to bears 26 121 50 C.F.R. § 18.27(c). 27 122 BSITR0002393. 123 BSITR002397. 28 124 BSITR002393-94; BSITR002434-37. 1 on the surface is extremely rare within the ITR region,” with only one instance of

2 Level A harassment occurring in the region from 2012-2018, arising from defense to

3 human life while engaged in non-industry activity.125

4 The purpose of determining whether or not harassment was likely to be

5 “serious” or “non-serious” was to assess whether such harassment would be likely

6 to effect “annual rates of survival.” This purpose is consistent with determining the

7 impact of harassment. Moreover, the subcategorization in this case is consistent

8 with other sections of the MMPA126 and th e categorization of serious injury has also 9 been used by the National Marine Fisheries Service to evaluate negligible impacts.127 10 In the context of determining whether Level A harassment will have a 11 “negligible impact” on SBS polar bear “recruitment and survival,” FWS’s 12 interpretation is reasonable and is not, as Plaintiffs argue, “add[ing] text to [the 13 MMPA] that is not there.”128 In drawing a distinction between “serious” and “non- 14 serious” injury, FWS appears to be supported by well-accepted standard practices in 15 the industry, a sound biological basis to the terms used which pertain to MMPA 16 compliance, careful quantitative modeling, review of past observations, qualitative 17 analysis, and overall sound scientific research.129 18 “Congress has made it clear that FWS has discretion in determining “the 19 potential severity of harm to the species or stock when determining negligible 20 impact.””130 The Court finds that FWS did precisely that here and it, not the Court or 21

22 125 BSITR0002396. 126 See 16 U.S.C. § 1386. 23 127 See BSITR0015685-86 (evaluating Liberty Project). 128 Doc. 31 at 30. The Court notes that Plaintiffs apply this quote to “agencies.” Id. However, 24 the case relied on for this quote, Washington, 994 F.3d at 1016, as well as the case relied on by Washington for this language, Arizona State Bd. For Charter Schools v. U.S. Dept. of Educ., 25 464 F.3d 1003 (9th Cir. 2006), make it clear that the language applies to the Courts and not 26 to agencies. 129 16 U.S.C. § 13629(18)(A)(i). 27 130 BSITR002423 (summarizing Congressional instruction on negligible harm inquiry at 132 Cong. Rec. S. 16305 (Oct. 15, 1986)); 68 FR 66744 (Nov. 28, 2003); 53 FR at 8474 (Mar. 15, 28 1988). 1 Plaintiffs, is in the best position to determine the potential severity of harm to the

2 SBS population. Therefore, as required by Chevron, the Court defers to FWS’s well-

3 reasoned expertise.131 While there is no prior precedent evidencing

4 subcategorization of Level A harassment used in this case, FWS reasonably

5 interpreted the MMPA and supported that interpretation with sound logic and

6 science.132 Applying the Chevron standard, the Court must accept Defendant FWS’s

7 construction of the statute and finds FWS’s construction not to be arbitrary or

8 capricious. 9 3. FWS’s Negligible Impact Finding Did Not Violate the 10 MMPA and APA. 11 Plaintiffs allege that FWS’s negligible impact findings violated the MMPA for 12 two reasons, both of which relate to Defendants’ sub-categorization of Level A 13 harassment, which the Court finds supra was reasonable and not arbitrary and 14 capricious.133 First, Plaintiffs argue that FWS “refused to consider” the impacts of 15 polar bear cub loss by serious Level A harassment and lethal take in any given year, 16 and across the five-year term of the ITR.134 Second, Plaintiffs allege FWS improperly 17 “classified take that would impair cubs’ fitness to survive as ‘non-serious’” and 18 arbitrarily failed to consider the impacts of that “non-serious” Level A 19 harassment.135 The result of these failures to consider by FWS, Plaintiffs allege, is a 20 negligible impact finding that is arbitrary. 21 Federal Defendants counter that the MMPA does not specify a particular 22 methodology that must be used “in determining whether the impacts of the 23 131 See Center for Biological Diversity v. Kempthorne, 588 F.3d 701, 710 (9th Cir. 2009) 24 (upholding the Service's “negligible impact” finding because the agency “made scientific predictions within the scope of its expertise, the circumstance in which we exercise our 25 greatest deference”) (hereinafter “Kempthorne”). 26 132 Compare Humane Soc’y of U.S. v. Brown, 924 F.Supp.2d 1228, 1244-46 (D. Or. 2013) (upholding use of NMFS use of undefined “significant negative impact” categorization). 27 133 See supra Section IV(a)(ii)(2). 134 Doc. 31 at 32. 28 135 Doc. 31 at 38. 1 authorized taking on the species or stock will be negligible,” and that FWS “gave

2 proper effect to the ordinary meaning of [the] regulatory definition of” negligible

3 impact.136 As it concerns Plaintiffs’ allegation that FWS did not consider the impacts

4 of serious Level A harassment, Federal Defendants disagree, arguing that the record

5 demonstrates that FWS did in fact consider all of the available data and that

6 Plaintiffs disagreement with FWS’s reasonable interpretation is not a basis to find

7 FWS’s negligible impact finding arbitrary.137 Federal Defendants further argue that

8 its conclusions regarding the impacts o f non-serious Level A harassment were 9 supported by the “best available science,” and were “manifestly based on evidence, 10 not an absence thereof as Plaintiffs contend.”138 Defendant-Intervenor State of 11 Alaska adds that FWS claims that its approaches were conservative, in estimating 12 the harassment rate from surface encounters FWS used the 99 percent quantile of 13 its probability distributions, “meaning that there is a 99 percent chance that given 14 the data, the actual harassment rate will be lower.”139 Additionally, Defendant- 15 Intervenor argues that FWS considered biological characteristics of the polar bear 16 species, including the information generated by the species’ listing and critical 17 habitat designation, the wide distribution of SBS polar bear stock across a 18 geographic range that exceeds the region covered by the 2021 BSITR, and numerous 19 mitigation measure, including seasonal restrictions, early detection monitoring 20 programs, den detection surveys for polar bears, and adaptive mitigation and 21 management responses based on real-time monitoring information to limit 22 disturbance of denning bears.140 23 // 24 // 25

26 136 Doc. 38 at 26-27; see also Doc. 41 at 28-29; Doc. 43 at 37. 137 Doc. 38 at 26-32; see also Doc. 41 at 30-31. 27 138 Doc. 38 at 40. 139 Doc. 41 at 30. 28 140 Doc. 41 at 30-31; see also Doc. 43 at 40-41. 1 a. FWS Adequately Considered Potential Injury or

2 Mortality to Polar Bear Cubs.

3 Plaintiffs argue that Defendants FWS’s negligible impact finding is arbitrary

4 and capricious because the impact of Level A harassment or lethal take of newborn

5 cubs is “reasonably likely” to occur, both annually and over the five-year 2021

6 BSITR.141 Plaintiffs claim that “FWS’s calculations show a 45% to 46% yearly

7 probability of cub death by ‘serious’ Level A harassment or lethal take in each year

8 of the five-year ITR,” a 94% probability o f cub death in at least one year of the ITR, 9 and a 70% probability of a cub death occurring in at least two years.142 Such high 10 likelihoods, Plaintiffs argue, are inconsistent with FWS’s conclusion that lethal Level 11 A take was not reasonably likely to occur during the 2021 BSITR and would therefore 12 have a negligible impact on SBS polar bears.143 13 FWS maintains that it reasonably applied its longstanding regulatory 14 definition of “negligible impact,” giving credence to the ordinary meaning of the 15 regulatory definition and “reasonably determined that authorizing a finite number 16 of Level B harassment of SBS polar bears would have a negligible impact on that 17 stock.”144 FWS also asserts that its decision to employ the median probability of 18 lethal Level A take – which was zero – as opposed the mean, which leads to Plaintiffs’ 19 higher probabilities, demonstrates that the probability of lethal Level A take was 20 considered.145 In addition, Plaintiffs assert that use of a median value as opposed to 21 the mean was a valid and appropriate interpretation of the modeling data that 22 warrants deference.146 23 24

25 141 Doc. 31. at 32. 26 142 Doc. 31 at 33. 143 Doc. 31. at 33-35. 27 144 50 C.F.R. § 18.27(c); Doc. 38 at 26-27. 145 Doc. 38 at 30. 28 146 BSITR002427-28; Doc. 38 at 31. 1 The MMPA does not define the term “reasonably likely.” The Court therefore

2 applies a generally accepted meaning to the term. Likely means that there is “a

3 strong tendency, reasonably expected.”147 “Reasonably” modifies likely, an adjective,

4 to define the likeliness as reasonable under the circumstances.148 Reasonably likely

5 means “there is a real chance of an event occurring; it is not fanciful or remote,” it

6 is “more probable than not, based in reason or experience.”149 More probable than

7 not means that upon consideration of all of the relevant evidence and materials, a

8 preponderance of the evidence and m aterials supports the finding.150Proving 9 a proposition by the preponderance of the evidence requires demonstrating that 10 the proposition is more likely true than not true.151 11 Although generally lower percentages such as 10% and 12% have been found 12 to be not reasonably likely percentages,152 FWS’s interpretation of “reasonably 13 likely” gives effect to the ordinary meaning of the term “likely,”153 and conforms 14 with the Ninth Circuit’s interpretation of a related act, the ESA, which does not 15 mandate “specific quantitative targets.”154 FWS’s interpretation is also consistent 16 with other rules and situations whereby both FWS and the National Marine Fisheries 17 Service (“NMFS”), with whom it jointly administers both the ESA and MMPA, 18

19 147 Black's Law Dictionary (11th ed. 2019). 148 Id. 20 149 Law Insider “reasonably likely” definition, https://www.lawinsider.com/dictionary/reasonably- 21 likely#:~:text=Reasonably%20likely%20means%20there%20is,based%20in%20reason% 22 20or%20experience. 150 Law Insider "more probably than not" definition, https://www.lawinsider.com/dictionary/more- 23 probable-than- not#:~:text=Related%20Definitions&text=More%20probable%20than%20not%20means,and%20 24 materials%20supports%20the%20finding. 151 Cornell Law, “preponderance” definition, https://www.law.cornell.edu/wex/preponderance. 25 152 Evans, 279 F.Supp.2d at 1159. 26 153 Trout Unlimited v. Lohn, 645 F. Supp. 2d 929, 945 (D. Or. 2007) (explaining that agency’s interpretation of “likely” in ESA context as “more likely than not” was consistent with 27 dictionary definition); Doc. 38 at 33. 154 Alaska Oil and Gas Association v. Pritzker, 840 F.3d 671, 684 (9th Cir. 2016) (hereinafter 28 “Pritzker 2”). 1 appropriately defined “likely” in related contexts as “more likely than not,” “greater

2 than 50% likelihood,” and “probable.”155

3 Using the discretion Congress conveyed to FWS in conducting its technical

4 analysis, FWS relied on its best professional judgment and included qualitative

5 analysis to understand “what effects are sufficiently uncertain as to not be

6 reasonably likely.”156 The Court defers to the agency’s profession judgment in this

7 matter.157 The Court sees no evidence to suggest FWS misapplied the regulatory

8 definition of “negligible impact.” 9 Furthermore, contrary to Plaintiffs’ assertions, FWS did not refuse to consider 10 or evaluate the impact of serious Level A harassment on polar bear cubs, or the 11 impact of non-serious harassment on that group. Indeed, the record shows that FWS 12 explored the potential for lethal or Level A harassment, but ultimately “anticipated 13 no lethal or injurious take that would remove individual polar bears…from the 14 population or prevent their successful reproduction.”158 15 In reaching this conclusion, FWS relied on predictive modeling techniques to 16 conclude that “the majority [54%] of [FWS’s] model runs result in no serious injury 17 Level A harassment or lethal takes and the median of such take in the model runs is 18

19 155 Kempthorne, 588 F.3d at 710; Pritzker 2, 840 F.3d at 684 (Service interpretation of “likely” under ESA section 4 regarding listing of species); In re Polar Bear Endangered Species 20 Act Listing & Section 4(d) Rule Litig. V. Salazar, 709 F.3d 1, 14 (D.C. Cir. 2013) (finding that FWS interpreted statutory reference to “likely” as having its “ordinary meaning” or 21 “dictionary definition” for purposes of ESA listing decision); Lohn, 645 F. Supp. 2d at 945 22 (“likely” is greater than 50%); W. Watersheds Project v. U.S. Forest Serv., 535 F. Supp. 2d 1173, 1184 (D. Idaho 2007) (same); see also Or. Cal. Trails Ass’n v. Walsh, 467 F. Supp. 3d 23 1007, 1037–38 (D. Colo. 2020) (upholding FWS’s assessment of risk of take of whooping cranes). 24 156 Doc. 38 at 34; Kempthorne, 588 F.3d at 710. 157 Envtl. Def. Ctr., Inc., 344 F.3d at 869 (agency's determination is entitled to “great 25 deference” when evaluating “complex scientific data within the agency's technical 26 expertise”) (citing Baltimore Gas & Elec. Co., 462 U.S. at 103; Chem. Mfrs. Ass'n, 919 F.2d at 167). 27 158 Doc. 38 at 27; compare Cook Inletkeeper v. Raimondo, 533 F.Supp.3d 739, 754 (D. Alaska March 30, 2021) (finding arbitrary and capricious MNFS’ take determination where agency 28 failed to consider a source of Level B harassment.) 1 0.0.”159 FWS employed modeling techniques that predicted both potential injury or

2 cub mortality annually and across the five-year span. In choosing to use a median

3 probability (as opposed to the mean proposed by Plaintiffs), FWS explained that the

4 median probability was the more appropriate informative measure of the central

5 tendency in the data. This was so because, according to FWS, the mean distribution

6 results were “non-normal and heavily skewed,” as indicated by markedly different

7 mean and median values and because the “median is less influenced by statistical

8 outliers that are inconsistent with past o bserved impacts and what is reasonably 9 expected to occur in the future.”160 10 Plaintiffs’ five-year probability calculations assume “that takes in one year do 11 not influence the probability of takes in subsequent years (i.e. that the operators do 12 not ‘learn’ to avoid takes in subsequent years).”161 However, FWS contends that 13 operators do learn and explained that it evaluates the probabilities of take annually 14 to “give effect to the term ‘annual’ as it appears” in the regulations.162 FWS’s “median 15 modeling result suggest[ing] that zero Level A harassment or lethal take is the most 16 likely result in any given year, and the fact that Level A harassment to bears is 17 extremely rare in the ITR region over many years of reporting history” also weighed 18 heavily in favor of its negligible impact finding. 163 19 Additionally, FWS focused on annual rates of recruitment and survival to 20 remain consistent with the one-year duration of the LOAs necessary to authorize 21

22 159 BSITR002423. 160 BSITR0002427; BSITR0002414. FWS explained that the “heavily skewed nature of these 23 distributions has led to a mean value that is not representative of the most common model result (i.e., the median value), which for both non-serious Level A and serious Level A/ 24 Lethal takes is 0.0 takes. Due to the low (<0.29 for non-serious Level A/Lethal takes) probability of greater than or equal to 1 non-serious or serious injury Level A 25 harassment/Lethal take each year of the proposed ITR period, combined with the median of 26 0.0 for each, we do not estimate the proposed activities will result in non-serious or serious injury Level A harassment or lethal take of polar bears.” 27 161 BSITR0017969; Doc. 38 at 36. 162 See 50 C.F.R § 18.27(c); BSITR0002430. 28 163 BSITR0002430. 1 incidental take.164 FWS reasoned that focusing on annual probabilities of injurious

2 or lethal take sufficiently accounts for the “total” take in each of the given years

3 contemplated by the 2021 BSITR.165

4 Defendants are correct that Plaintiffs do not allege that FWS did not consider

5 data in making its negligible impact finding. Rather, Plaintiffs disagree with how

6 FWS interpreted the data before it. However, this disagreement is not a basis upon

7 which to find an agency’s action arbitrary and capricious. “[U]nder the arbitrary

8 and capricious standard, ‘our deference to the agency is greatest when reviewing 9 technical matters within its area of expertise, particularly its choice of scientific data 10 and statistical methodology.’”166 11 In addition to reliance upon it model, FWS’s determination was also in line 12 with FWS’s consideration of past observations and qualitative analysis.167 FWS 13 conclusion relied, in part, on “documented impacts of previous industry activities 14 on…polar bears.”168 Because only one incident, unrelated to industry-activity, of 15 Level A harassment occurred in the region from 2012-2018, FWS deemed that 16 sufficient evidence in itself to support the conclusion that no Level A harassment to 17 polar bears would occur in the current 2021 BSITR.169 18 19

20 164 BSITR0002430. 165 Id. 21 166 Colorado Wild, Heartwood v. U.S. Forest Service, 435 F.3d 1204, 1217 (10th Cir. 2006 22 (citing Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 329 (5th Cir. 1988) (noting that we do not review an agency's decision as statisticians, but “as a reviewing court exercising our 23 narrowly defined duty of holding agencies to certain minimal standards of rationality”)); see also Southern California Edison Co. v. F.E.R.C., 717 F.3d 177 (9th Cir. 2013) (denying after 24 “highly deferential review” arbitrary and capricious challenge to Commission’s rate increase that was based on median value over average because “the Commission's orders so long as 25 [it] examined the relevant data and articulated a ... rational connection between the facts 26 found and the choice made.”) 167 See CBD, 695 F.3d at 907 (noting that the “behavioral response observed [from prior 27 interactions]” is a factor appropriately considered in a negligible impact finding). 168 BSITR002423. 28 169 BSITR002396, BSITR002433, BSITR002396. 1 Though some of FWS’s modeling prediction percentages inch close to 50%,

2 FWS had a rational basis to decide that the median value was a valid and preferable

3 measure that best summarizes its modeling results, and that using the mean, as

4 Plaintiff would prefer, was a less accurate measure. Plaintiffs fail to persuade the

5 Court that FWS’s negligible impact finding lacks a discernible path of analysis, that

6 the agency “entirely failed to consider an important aspect of the problem,”170 or is

7 “so implausible that it could not be ascribed to a difference in view or the product of

8 agency expertise.”171 Ninth Circuit prec edent grants its “greatest deference” to 9 FWS’s “scientific predictions within the scope of its expertise,” as the Court likewise 10 does here.172 11 Despite Plaintiffs’ allegations to the contrary, the Court finds that FWS 12 properly considered Level A harassment or lethal take in accordance with the MMPA, 13 and properly applied the generally accepted meaning of “reasonably likely” in its 14 negligible impact finding. “FWS, as the expert scientific agency, is owed deference 15 in weighing its modeling results and in its negligible impact findings”173 and the 16 Court grants it such deference given the rational explanations FWS has provided for 17 its determination. The Court finds that FWS’s finding that the total take number 18 would have a negligible impact on SBS polar bears was not arbitrary and capricious, 19 20 21

22 170 CBD, 695 F.3d at 906; see also Kempthorne, 588 F.3d at 710 (“A negligible impact finding is arbitrary and capricious under the MMPA only if the agency, inter alia, ... entirely failed 23 to consider an important aspect of the problem ....” (internal citations and quotation marks omitted)). 24 171 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (1983). 172 Kempthorne, 588 F.3d at 710–11; see also San Luis & Delta-Mendota Water Auth. v. Jewell, 25 747 F.3d 581, 603–04 (9th Cir. 2014) (“When specialists express conflicting views, an agency 26 must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”) (quoting Marsh 27 v. Ore. Nat. Res. Council, 490 U.S. 360, 378 (1989)); Pritzker 1, 828 F.3d at 1139 (same); Pritzker 2, 840 F.3d at 679 (same). 28 173 Doc. 38 at 30. 1 rather it is supported by analysis of its quantitative modeling, review of past

2 observations, and qualitative analysis of issues.174

b. FWS’s Consideration of “non-serious” Level A 4 Harassment Was Not Arbitrary.

5 Plaintiffs contend that FWS failed to consider how the take authorized would

6 affect polar bears’ recruitment or survival rates because FWS arbitrarily excluded

7 the impacts from “non-serious” Level A harassment in its negligible impact finding.

8 Plaintiffs cite to FWS’s acknowledgement of the importance of the post-emergence 9 period for cubs to develop and survive, and that early departure from the den site, 10 curtailing that period, “may hinder the ability of cubs to travel, thereby increasing 11 the chances for cub abandonment or susceptibility to predation.”175 12 Defendants claim that Plaintiffs wrongly conflate a potential reduction in 13 fitness with likely mortality, while ignoring other biological factors and data FWS 14 considered regarding the difference in effects of early den emergence and early den 15 site departure.176 Per FWS, it utilized the best available science in its modeling of 16 estimated take and assigned a “serious” Level A harassment to all cubs subjected to 17 early den emergence and a “non-serious” Level A harassment to all cubs subjected 18 to early den site departure.177 Defendants contend that Plaintiffs’ assumption would 19 unduly overestimate impacts in a manner not supported by the “best scientific 20 evidence available” standard applicable to ITRs.178 21 FWS explained that in ultimately treating impact to post-emergence cubs as 22 “non-serious” Level A harassment it considered factors such as distribution and 23 habitat use patterns of polar bears, the well-documented impacts of previous 24 Industry activities on polar bears, and the extensive monitoring and mitigation 25

26 174 Doc. 38 at 29. 175 Doc. 31 at 39 citing BSITR002394. 27 176 Doc. 38 at 40. 177 BSITR002394; BSITR0002438; BSITR002346. 28 178 50 C.F.R. § 18.27(b). 1 requirements imposed on LOA holders.179 FWS’s explanation and considerations for

2 its classification are rational and sufficiently detailed.

3 FWS’s responsibility is to “show that information exists in the administrative

4 record to support a negligible impact finding” and to base its ITR findings on the

5 “best scientific evidence available.”180 FWS met its burden by explaining why the

6 best available science did not support the modeling assumption that a departure

7 from a simulated den less than eight days after cub emergence would cause cub

8 mortality and specified the information in the administrative record (i.e. data 9 concerning the extreme rarity of any Level A harassment from prior ITR activities, 10 the results of the predictive modeling exercise finding early departure unlikely to 11 occur, the ITR’s mitigation requirements, etc.) to support its finding of negligible 12 impact. The Court therefore finds FWS’s negligible impact findings to be rationally 13 based on the “best scientific evidence available” and not arbitrary or capricious. 14 The Court finds that Defendant FWS properly considered impacts of cub loss 15 by serious Level A harassment and lethal take, both annually and over the five-year 16 2021 BSITR. The Court further finds that FWS properly considered the impacts of 17 “non-serious” Level A harassment in its evaluation. FWS’s negligible impact finding 18 in this case was not arbitrary and capricious. 19 4. FWS’s Authorization of Level B Harassment Did Not 20 Violate the MMPA by Also Permitting Likely Level A 21 Takes. 22 Plaintiffs claim that Defendant FWS violated the MMPA by authorizing Level 23 B harassment when it is “highly likely that the specified activities will also result in 24 unauthorized Level A harassment or lethal take.”181 To support their argument, 25 Plaintiffs cite to Kokechik, where the court found that allowing incidental taking of 26

27 179 BSITR0002423-24. C.F.R. §§ 18.122-18.128. 180 54 Fed. Reg. at 40,343; 50 C.F.R. § 18.27(b). 28 181 Doc. 31 at 40. 1 one protected marine mammal species knowing that other protected marine

2 mammal species would be taken as a result was at odds with MMPA requirements182

3 that prohibit FWS from authorizing only part of the take that will occur when the

4 covered activities will cause other, unauthorized take.183

5 Defendants argue that Plaintiffs’ reliance on Kokechik is misplaced and that

6 its evaluation was proper considering AOGA did not request authorization of any

7 Level A harassment or lethal take, and neither AOGA’s petition nor FWS’s subsequent

8 analysis anticipated that any such take w ould occur.184 Federal Defendants further 9 argues that “Plaintiffs’ argument that Level A harassment is actually likely to occur 10 (contrary to FWS’s specific findings) based solely on the combined mean probability 11 of either a non-serious or serious Level A harassment” is unavailing because it 12 “impermissibly supplants FWS’s reasonable professional judgment that such take is 13 not estimated to occur, based on the agency’s entire record including both qualitative 14 and quantitative analyses.”185 15 The Court agrees with Defendant FWS that Plaintiffs’ reliance on Kokechik is 16 misplaced. In Kokechik the relevant issue was the agency’s issuance of a permit that 17 allowed for “the incidental taking of 1,750 Dall's porpoise during 1987 with a 5% 18 yearly reduction over the following four years, and 45 northern fur seals 19 annually.”186 The D.C. Circuit held that the Secretary’s decision to disregard these 20 incidental taking as “negligible” was improper, because “[t]he MMPA,…does not 21 provide for a ‘negligible impact’ exception to its permitting requirements where 22 incidental takings are not merely a remote possibility but a certainty.”187 23 24

25 182 Kokechik Fishermen's Ass'n v. Secretary of Commerce, 839 F.2d 795, 800 (D.C. Cir. 1988). 26 183 Id. at 801-02. 184 Doc. 38 at 41; see also Doc. 43 at 42-45. 27 185 Doc. 38 at 42; see also BSITR002407; BSITR002423. 186 839 F.2d at 798. 28 187 839 F.2d 802. 1 Shortly after its issuance, Congress abrogated the Kokechik decision,

2 implementing a new statutory scheme governing the incidental take of marine

3 mammals in commercial fisheries.188 Moreover, even if Kokechik remained viable,

4 it would not apply in this case. This is not a case in which unauthorized Level A

5 takes of SBS polar are “sufficiently ‘certain’” to occur as Plaintiffs assert.189 First

6 and foremost, unlike in Kokechik, the applicant in this case has not requested

7 permission for any Level A harassment and lethal take of any protected marine

8 species. Moreover, as detailed above, an d contrary to Plaintiffs’ assertions, such 9 takings are not a certainty. As FWS states, takes of SBS polar bears are “almost 10 never observed in the Beaufort ITR region and are not predicted in the majority of 11 FWS’s modeling results.”190 12 As detailed supra, FWS analyzed and explained its science-based, qualitative, 13 and quantitative reasoning for evaluating the probability of Level A harassment of 14 cubs in different factual settings (late denning period and pos-emergence period) 15 and why cubs might suffer different injuries in those two different circumstances if 16 disturbed. It used this rationale to ultimately determine that no Level A harassment 17 of lethal take would occur.191 For the reasons previously stated, the Court defers to 18 FWS’s expertise and finds that its evaluation of Level A harassment is not arbitrary 19 and capricious. 20 5. FWS’s Least Practicable Adverse Impact Analysis Did 21 Not Violate the MMPA. 22 Plaintiffs allege that FWS failed to meet the MMPA’s requirement to ensure 23 the least practicable adverse impact (“LPAI”) to SBS polar bears because FWS failed 24 to consider restrictions on the timing and geographic scope of authorized activities 25

26 188 See H.R. Rep. No. 100-970 at 18-20, reprinted in 1988 U.S.C.C.A.N. 6154, 6159-61, 6178- 79. 27 189 Doc. 31 at 41-42. 190 Doc. 38 at 41. BSITR0002430. 28 191 BSITR0002333; BSITR0002333. 1 such as seismic exploration.192 Plaintiffs argue that FWS did not properly consider

2 their suggestion during the comment period that “FWS consider closing sensitive

3 areas to new activities, restricting dates for seismic exploration, and imposing a

4 buffer around suitable denning habitat.”193 Instead, Plaintiffs allege FWS

5 “summarily stated spatial and temporal measures were impracticable due to

6 unspecified ‘regulatory and safety requirements’194 without the required meaningful

7 consideration or reasonable explanation that the MMPA requires.195

8 Federal Defendants argues that it d id consider a range of restrictions during 9 the administrative process and provided adequate reasoning and explanation for 10 measures it did not accept or that were impracticable.196 Federal Defendants also 11 argues that Plaintiffs’ argument is undermined by their “failure to explain how any 12 additional, specific temporal or spatial restriction could be practicably imposed on 13 the activities contemplated in AOGA’s Petition[.]”197 14 FWS is not obligated to accept all suggestions, rather an ITR must prescribe 15 methods and means of effecting the “least practicable adverse impact (“LPAI”) on 16 such species or stock and its habitat.”198 “Practicable normally means that something 17 is capable of being done, or practical and effective.”199 The MMPA requires 18 practicable restrictions, but that limitation does not extend to categorically 19 foreclosing, i.e., make impracticable, activities that must occur, if at all, in certain 20 locations or at certain times of the year. A determination that an effective mitigation 21 22

23 192 Doc. 31 at 42-50. 193 Doc. 31 at 42 n. 152 (citing BSITR0018034, 18074–75 (Alaska Wilderness League ITR 24 Comments); BSITR0017762–63, 17766–67 (Center for Biological Diversity ITR Comments); BSITR0017921–23 (Sierra Club ITR Comments)). 25 194 Doc. 31 at 43 n. 153. 26 195 Doc. 31 at 43. 196 Doc. 38 at 43-44; see also Doc. 41 at 37-39; Doc. 43 at 46-47. 27 197 Doc. 38 at 47. 198 16 U.S.C. § 1371(a)(5)(A)(i)(II). 28 199 Cook Inletkeeper, 533 F. Supp. 3d at 759 (quoting Pritzker 1, 828 F.3d at 1134). 1 measure is not practicable must be rationally articulated and supported by

2 “meaningful discussion.”200

3 Plaintiffs argue that “FWS deemed timing and geographic restrictions

4 impracticable based on AOGA’s unsupported assertions and conclusory statements

5 that it would not be possible to comply with them.”201 The Court finds that the record

6 does not support this assertion. Indeed, in this case, it appears as if FWS considered

7 numerous time and space restrictions. As Defendants note, the 2021 BSITR includes

8 a number of mitigation measures designed to address some of Plaintiffs’ suggestions 9 intended to protect denning bears, including: an increased number of polar bear den 10 surveys using aerial infrared imagery (“AIR”), a one-mile exclusion zone around all 11 known dens, restrictions on the timing and types of activities in the vicinity of dens, 12 human reconnaissance of denning habitat in advance of seismic surveys, and flight 13 restrictions around known polar bear dens.202 In addition, the ITR limits the overall 14 area of denning habitat that may be subject to seismic surveys in a given year, 15 “incorporates later start dates” for seismic surveys, with no surveys to occur until 16 the operator has completed three den surveys during the “ideal temporal window 17 for maternal denning surveys.”203 In this case, FWS’s explanations for the 18 restrictions it chose are reasonable and illustrate how it proactively applied the LPAI 19 standard through coordination with AOGA and in further analysis during the 20 rulemaking process. 21 FWS stated that it “also considered the use of additional time and space 22 restrictions for oil and gas activities to limit the impact on denning bears. These 23 restrictions were not determined to be practicable as they may interfere with human 24

25 200 Pritzker 1, 828 F.3d at 1139 n. 12. 26 201 Doc. 31 at 44. 202 BSITR002455-56; BSITR002424; BSITR002443. See Chickaloon, 947 F. Supp. 2d at 1059- 27 1060 (upholding NMFS’s LPAI analysis based in part on plaintiffs’ failure to demonstrate any incorrect assumptions or oversights in the agency’s analysis). 28 203 BSITR 002448; BSITR002413; BSITR002455. 1 health and safety as well as the continuity of oil and gas operations.”204 As it

2 concerns a one-mile buffer around all suitable denning sites, FWS explained that a

3 uniform buffer “is not practicable as many existing operations occur within denning

4 habitat and it would not be able to shut down all operations based on other

5 regulatory and safety requirements.”205 FWS gave the example of existing facilities

6 and roads near “potential denning habitat” that “must be utilized during winter to

7 ensure the continuity of operations and protection of tundra and wetlands.”206 FWS

8 also noted that requiring a one-mile buf fer around all suitable polar bear habitat 9 within the 20-million acre SBS ITR area would be impractical “prior to operations” 10 as “denning habitat requires the creation of snow drifts, which can differ from year- 11 to-year.”207 FWS need not impose restrictions on areas in which polar bear denning 12 activity is unlikely.208 13 The record indicates that FWS considered, and rejected, additional mitigation 14 measures. In response to a request for closing sensitive areas to new activities. FWS 15 noted that it lacked the authority to impose blanket restrictions such as closing 16 sensitive areas to new activities to achieve the LPAI.209 Additional temporal and 17 spatial restrictions were similarly considered and deemed not practicable.210 18 In addition to including numerous measures with the 2021 BSITR designed to 19 achieve the LPAI, FWS’s reliance on future mitigation measures through LOAs was 20 not improper. Such a practice is consistent with a reasonable interpretation of the 21 22 23 204 BSITR0001703. 24 205 BSITR0002424. 206 Id. (“One mile buffer around all known polar bear denning habitat is not practicable as 25 many existing operations occur within denning habitat and it would not be able to shut down 26 all operations based on other regulatory and safety requirements.” 207 BSITR0002448; see also BSITR0002447. 27 208 See Chickaloon, 947 F.Supp.2d at 1031. 209 BSITR002447 (noting that FWS does not approve or disapprove industrial activities). 28 210 BSITR002424. 1 MMPA and recognizes the many variables that be present when activity

2 contemplated in the 2021 BSITR is undertaken.211

3 Plaintiffs argue that FWS imposed more stringent spatial and temporal

4 restrictions in another Arctic region, thereby undermining FWS’s assertion that such

5 restrictions are not practicable for the SBS polar bears. However, as Defendants

6 note, the proposed measures were in draft form, were unissued, and were intended

7 to address a request by one company, for one season, in one region with a higher

8 polar bear density and higher proportion of polar bear denning habitat. As FWS 9 explained, the parameters of the one-year proposal are markedly different than the 10 five-year 2021 BSITR at issue in this case, which involve unknown activities in 11 unknown years across a large area with existing infrastructure and facilities.212 12 The Court finds that Plaintiffs have not established that it would be practicable 13 to impose additional geographic and temporal restrictions relevant to SBS polar 14 bears beyond those already imposed.213 Plaintiffs argue that FWS did not consider 15 reasonable alternatives, but do not articulate why the proposed exclusion zones and 16 temporal restrictions are insufficient. Indeed, prior approved LPAIs which 17 incorporate many of the same measure as the 2021 BSITR “have proven to be highly 18 successful in providing for polar bear conservation in Alaska.”214 19 The mitigation measures contained with the 2021 BSITR may not be precisely 20 or entirely what Plaintiffs believe should be required in this case. However, the 21 measures imposed, and the explanations offered for those rejected, are reasonable, 22 rational, and sufficiently articulated, and the Court is not permitted to “substitute 23 24 211 Alaska Wilderness League v. Jewell, 116 F.Supp.3d 958, 967 (D. Alaska July 2, 2015). 25 212 See BSITR0001002, 2414, 2392-93, 0630. 26 213 See Cook Inletkeeper, 533 F.Supp.2d at 760. 214 BSITR0008266; see also CBD, 695 F.3d at 908; 75 Fed. Reg. 76,086, 76,118-19 (Dec. 7. 27 2010) (“These mitigation measures are implemented to limit human-bear interactions and disturbances to bears and have ensured that industry effects on polar bears have remained 28 at the negligible level.”) 1 its judgment [or Plaintiffs’] for that of the agency.”215 The LPAI analysis in this case

2 did not violate the MMPA.

b. NEPA 4 NEPA requires that federal agencies prepare an EIS for any “major Federal

5 actions significantly affecting the quality of the human environment.”216 An agency

6 may first prepare a less exhaustive EA, which is a “concise public document” that

7 “[b]riefly provide[s] sufficient evidence and analysis for determining whether to

8 prepare an [EIS].”217 If the agency conclud es in an EA that the federal action will not 9 have significant environmental impacts, it may issue a Finding of No Significant 10 Impact (“FONSI”) in lieu of preparing an EIS.218 When evaluating an agency's 11 decision not to prepare an EIS under NEPA, courts use an arbitrary and capricious 12 standard that “requires it to determine whether the agency has taken a ‘hard look’ 13 at the consequences of its actions, based [its decision] on a consideration of the 14 relevant factors, and provided a convincing statement of reasons to explain why a 15 project's impacts are insignificant.”219 16 Plaintiffs challenge FWS’s EA for the 2021 BSITR for failing to consider a 17 reasonable range of alternatives. Specifically, Plaintiffs alleges that in adopting the 18 final 2021 BSITR, FWS improperly dismissed consideration of timing and geographic 19 restrictions that could reduce impacts to polar bears. According to Plaintiffs, 20 “[b]ecause FWS did not meaningfully consider these measures or reasonably explain 21

22 215 Gaule v. Meade, 402 F.Supp.2d 1078, 1087 (D. Alaska 2005) 23 216 42 U.S.C. § 4332(2)(C). 217 40 C.F.R. § 1508.9(a). 24 218 Id. §§ 1508.9(a)(1), 1508.13. 219 Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 25 2005) (citations omitted). While many Ninth Circuit decisions treat the “hard look” 26 requirement as another formulation of the arbitrary and capricious standard, some address it separately as a measure of the overall adequacy of an EA or EIS. Compare In Def. of 27 Animals, Dreamcatcher Wild Horse & Burro Sanctuary v. U.S. Dep't of Interior, 751 F.3d 1054, 1068 (9th Cir. 2014) with Klamath–Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 28 F.3d 989, 992–93 (9th Cir. 2004). 1 why they were excluded from consideration, the agency violated the MMPA and

2 NEPA.”220

3 Federal Defendants argue that Plaintiffs improperly “fault FWS for preparing

4 an EA that discusses in detail two alternatives – the proposed action and a no-action

5 alternative – claiming that FWS wrongly ignored alternatives involving more

6 restrictions on the timing and locations of industry activities.”221 Defendants claim

7 that “an agency’s obligation to consider alternatives under an EA is a lesser one than

8 under an EIS,”222 and that it does not inh erently “violate[] the regulatory scheme” 9 for an EA to focus on “two final alternatives.”223 Rather, in Defendants’ view, FWS’s 10 consideration of two alternatives is in line with Ninth Circuit precedent.224 11 NEPA requires federal agencies to “study, develop, and describe appropriate 12 alternatives to recommended courses of action.”225 This provision applies whether 13 an agency is preparing an EIS or an EA.226 However, as Defendants pointed out “an 14 agency's obligation to consider alternatives under an EA is a lesser one than under 15 an EIS.”227 “[W]hereas with an EIS, an agency is required to ‘[r]igorously explore 16 and objectively evaluate all reasonable alternatives,’ with an EA, an agency only is 17 required to include a brief discussion of reasonable alternatives.”228 18 19

20 220 Doc. 31 at 44. 221 Doc. 38 at 47. 21 222 CBD, 695 F.3d at 915 (quoting Native Ecosystems, 428 F.3d 1233, 1246). 22 223 Id. (quoting Native Ecosystems, 428 F.3d at 1246); see also N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1153–54 (9th Cir. 2008) (per curiam) (upholding EA 23 that evaluated two alternatives). 224 Doc. 38 at 47. 24 225 42 U.S.C. § 4332(2)(E). 226 Native Ecosystems Council, 428 F.3d at 1245; see also Bob Marshall Alliance v. Hodel, 852 25 F.2d 1223, 1228–29 (9th Cir. 1988) (“[C]onsideration of alternatives is critical to the goals 26 of NEPA even where a proposed action does not trigger the EIS process.”). 227 Native Ecosystems, 428 F.3d at 1246. 27 228 N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008) (comparing 40 C.F.R. § 1502.14(a) with 40 C.F.R. § 1508.9(b)) (second alteration in 28 original). 1 The Court finds that FWS’s alternatives analysis here is not arbitrary and

2 capricious. Rather, the decision to prepare an EA with two alternatives was

3 reasonable. The record demonstrates that FWS took a “hard look” at the

4 consequences of its actions, based its decision on a consideration of the relevant

5 factors, and provided a convincing statement of reasons to explain why the project’s

6 impacts are insignificant.229

7 Reflecting on past SBS ITRs, AOGA's initial request included mitigation

8 measures previously identified as necess ary to effect the least practicable adverse 9 impact on the SBS polar bears. As detailed above, FWS worked with AOGA 10 throughout the ITR process to identify additional effective and practicable mitigation 11 measures, including polar bear den detection surveys, observers, and interaction 12 plans.230 After reviewing comments, FWS added an additional restriction to the ITR 13 to minimize potential disturbance to polar bears – an area-wide minimum flight 14 altitude, subject to safety and operational constraints mandating that aircrafts fly 15 above 1.500 feet when safe and operationally possible.231 16 FWS was not wrong in its understanding that where only an EA is required, 17 as is the case here, evaluating two alternatives, the proposed activity and the no- 18 action alternative, complies with NEPA’s requirement that the agency consider 19 alternatives.232 Agencies are also not required to evaluate alternatives in an EA that 20 they explained were not feasible both in the EA and the final incidental take rule.233 21 22

23 229 Native Ecosystems Council, 428 F.3d at 1239 (citations omitted). While many Ninth Circuit decisions treat the “hard look” requirement as another formulation of the arbitrary 24 and capricious standard, some address it separately as a measure of the overall adequacy of an EA or EIS. Compare In Def. of Animals, Dreamcatcher Wild Horse & Burro Sanctuary v. 25 U.S. Dep't of Interior, 751 F.3d 1054, 1068 (9th Cir. 2014) with Klamath–Siskiyou Wildlands 26 Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 992–93 (9th Cir. 2004). 230 BSITR0002424. See supra Section IV(a)(ii)(5). 27 231 BSITR0018588-89, BSITR 0002424. 232 CBD, 695 F.3d at 915-16. 28 233 Id. 1 Likewise, agencies are not required to evaluate alternatives that are not consistent

2 with the proposed action’s purpose.234

3 FWS concedes that commenters suggested further potential mitigation

4 measures, which FWS considered but deemed impracticable and gave detailed

5 reasoning as to why. The Court identified thirteen such examples of FWS responding

6 to comments specifically related to least practical adverse impact under NEPA which

7 were included in the final 2021 BSITR.235 For example, commenters suggested

8 grounding all flights if they must fly below 1,500 feet. FWS responded that 9 “[r]equiring all aircraft to maintain an altitude of 1,500 ft is not practicable as some 10 necessary operations may require flying below 1,500 ft in order to perform 11 inspections or maintain safety of flight crew.”236 Commenters suggested requiring 12 the use of den detection dogs. FWS explained that it was not practicable to require 13 scent trained dogs to detect dens due to the large spatial extent that would need to 14 be surveyed each year.237 Commenters also suggested prohibiting driving over high 15 relief areas, embankments, or stream and river crossings, to which FWS agreed that 16 the denning habitat must be considered in tundra travel activities, but explained that 17 “complete prohibition of travel across such areas is not practicable because it would 18 preclude necessary access to various operational areas and pose potential safety 19 concerns. Moreover, not all high relief areas, embankments, and stream and river 20 crossing constitute suitable polar bear denning habitat.”238 Like the agency in CBD, 21 FWS “initially considered other action alternatives, but explain[ed] in the EA

22 234 Wyoming v. U.S. Dept. of Agriculture, 661 F.3d 1209, 1244 (10th Cir. 2011); Citizens' 23 Comm. to Save Our Canyons, 297 F.3d at 1031; see also BioDiversity Conservation Alliance, 608 F.3d at 714–15 (“An environmental impact statement must study reasonable alternatives 24 in detail.... The Bureau may eliminate alternatives that are ‘too remote, speculative, impractical, or ineffective,’ or that do not meet the purposes and needs of the project.”) but 25 see Utah Envtl. Cong. v. Bosworth, 439 F.3d at 1184 (stating that an agency cannot “define 26 the project so narrowly that it foreclose[s] a reasonable consideration of alternatives.” 235 BSITR0002424-25. 27 236 BSITR0002424. 237 BSITR0002425. 28 238 BSITR0002425. 1 why…they were not feasible.”239 FWS clearly considered alternatives, accepting one,

2 and rejecting others with sufficient reasoning.240

3 In accordance with NEPA requirements, FWS sufficiently studied, developed,

4 and described appropriate alternatives to recommended courses of action.241 Here,

5 as in CBD, FWS’s consideration of two alternatives is sufficient. The Court finds that

6 FWS “adequately developed and analyzed its proposed mitigation measures in the

7 EA to a reasonable degree as required by law.”242 FWS’s consideration of

8 alternatives in the EA were not arbitrary or capricious and did not violate NEPA. 9 c. ESA 10 The ESA provides for listing species as threatened or endangered, and it 11 protects listed species in several ways.243 The ESA contains both substantive and 12 procedural requirements. Substantively, Section 9 of the ESA prohibits “take” of 13 endangered species.244 The ESA's definition of “take” resembles the MMPA's 14 definition, though with notable differences. For example, whereas the MMPA 15 requires only that harassment have the “potential to injure ... or ... disturb a marine 16 mammal ... by causing disruption of behavioral patterns,”245 the ESA imposes a 17 18 19 239 CBD, 695 F.3d at 916. 20 240 Compare BSITR0000013 (original petition geographic scope), with BSITR0000624 (final petition excising portions of the scope adjacent to the Outer Continental Shelf); 21 BSITR0000050 (original petition providing neither dates nor locations for any operations), 22 with BSITR0000737, BSITR0000821 (identifying “general areas” where seismic surveys would occur, and committing to conduct multiple infrared surveys during specific time 23 windows before conducting seismic surveys); see also BSITR000411 (email from AOGA removing numerous sites from the scope of its specified activities); BSITR002443 (observing 24 in final ITR that there is “a short period of the winter when AIR surveys can reliably be done”). 25 241 42 U.S.C. § 4332(2)(E). 26 242 Alaska Wilderness League, 116 F.Supp.3d at 971 (internal quotation marks and citation omitted). 27 243 16 U.S.C. § 1533. 244 16 U.S.C. § 1538(a)(1)(B). 28 245 16 U.S.C. § 1362(18)(A)(i)-(ii) (emphasis added). 1 higher threshold - a “likelihood of injury to [a listed species] by annoying it to such

2 an extent as to significantly disrupt normal behavioral patterns.”246

3 Procedurally, Section 7 of the ESA requires that federal agencies consult with

4 the FWS or NMFS for any agency action that “may affect” a listed species or its

5 critical habitat.247 Formal consultation results in a BiOp that determines whether the

6 proposed action is likely to jeopardize the continued existence of a listed species or

7 adversely modify its critical habitat.248 If the BiOp concludes that the action is not

8 likely to jeopardize the species, but is like ly to result in some take, FWS provides an 9 Incidental Take Statement (“ITS”) along with the BiOp.249 10 An ITS specifies the impact (i.e., the “amount or extent”) of the incidental take 11 on the listed species, contains terms and conditions designed to minimize the impact, 12 and, in the case of marine mammals, specifies measures that are necessary to comply 13 with Section 101(a)(5) of the MMPA.250 Take that complies with the terms and 14 conditions of an ITS is not a prohibited take under Section 9.251 If the amount or 15 extent of take specified in the ITS is exceeded, the Service reinitiates Section 7 16 consultation to ensure that the “no jeopardy” determination remains in force.252 17 i. The BiOp Concluding that No Level A Harassment Was Likely 18 to Occur Did Not Violate the ESA. 19 Because the 2021 BSITR authorized certain adverse effects on polar bears, a 20 species listed as threatened under the ESA, FWS consulted on the impact of those 21 effects pursuant to Section 7(a)(2) of the ESA in a BiOp.253 Plaintiffs argue that FWS 22 violated the ESA because its BiOp did not account for take that was reasonably 23

24 246 50 C.F.R. § 17.3 (emphasis added). 247 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). 25 248 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h). 26 249 50 C.F.R. § 402.14(i). 250 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(1). 27 251 16 U.S.C. § 1536(o)(2); 50 C.F.R. § 402.14(i)(5). 252 50 C.F.R. §§ 402.14(i)(4), 402.16(a). 28 253 BSITR0002289-357; Doc. 41 at 44. 16 U.S.C. § 1536(a)(2). 1 certain to occur and allowed for discretionary reinitiation of consultation.

2 Specifically, Plaintiffs argue that the ITS in the BiOp failed to include Level A

3 harassment and lethal take, and that the BiOp contains a defective retention notice.

4 Federal Defendants argue that it reasonably excluded Level A harassment and

5 lethal take because the ITR does not allow any Level A harassment or lethal take, nor

6 did it authorize the underlying conduct of oil and gas activities. Federal Defendants

7 rely on 50 C.F.R. § 402.02, defining “effects of action” to argue that “take that is not

8 anticipated is not ‘reasonably certain to o ccur’ and is not an ‘effect of the action.’” 9 Despite Plaintiffs’ continued objection to FWS’s finding that no Level A 10 harassment and lethal take are reasonably likely to occur, the Court reiterates its 11 finding supra that FWS has a rational basis, supported by science and historical data, 12 for its conclusion and finds it is entitled to deference.254 Therefore, the Court finds 13 that Defendant FWS’s BiOp does not violate the ESA. 14 ii. The Reinitiation Notice in this Case Was Not Defective. 15 Plaintiffs contend that FWS’s BiOp contains a defective reinitiation notice that 16 violates the ESA because it uses discretionary language, thereby failing to require 17 immediate and nondiscretionary reinitiation of formal consultation.255 Plaintiffs 18 argue that the BiOp’s statement that formal consultation “‘may be required’” if the 19 amount of Level B harassment authorized in the ITS is exceeded or if injury or lethal 20 take of polar bears occurs [is] plainly inconsistent with the ESA’s requirements.”256 21 Federal Defendants counters that FWS has no mandatory duty to include any 22 specific language in the reinitiation notice.257 Defendant argues that Plaintiffs’ 23 complaints ignore FWS’s obligations under the regulations.258 Further, Defendants 24 254 See supra Section IV(a)((ii)(3). 25 255 Doc. 31 at 43. 26 256 Doc. 31 at 52. 257 Doc. 38 at 52; see also Doc. 50 C.F.R. §402.14(h),(i)(specifying contents of BiOp). 27 258 Doc. 38 at 52; see also Doc. 41 at 46; Doc. 43 at 52 (citing generally to 50 C.F.R. §§ 402.14(h) and (i), which specify contents of the BiOp, and 50 C.F.R. §§ 402.16(a)(1) and 28 402.14(i)(4) which explain the duty to reinitiate consultation.) 1 argue that its BiOp also repeats this obligation with text stating FWS “shall reinitiate

2 section 7 consultation within 7 days if the amount of MMPA “Level B harassment

3 takes” anticipated is exceeded or if a Level A harassment or injurious or lethal take

4 of a polar bear occurs.”259

5 The parties do not seem to disagree that reinitiation is in fact required, and is

6 not discretionary. They seem to only dispute whether the requirement is sufficiently

7 stated in the BiOp. A review of the plain language of the BiOp confirms that it is.

8 The governing ESA regulation, 50 C .F.R. § 402.16.11, states, in relevant part, 9 [r]einitiation of formal consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal 10 involvement or control over the action has been retained or is authorized by law and: 11 ... 12 (b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not 13 previously considered; ..., or 14 (d) If a new species is listed or critical habitat designated that may be 15 affected by the identified action.

16 In this case, the relevant portion of the BiOp reads as follows: 17 Additionally, required monitoring and reporting will allow the Service to determine if/when the level of authorized take is exceeded, and 18 whether subsequent reinitiation is necessary. The Services Marine Mammal's Management Office will provide annual reports on the 19 amount of reported take, and shall reinitiate section 7 consultation within 7 days if the amount of MMPA "Level B harassment takes" 20 anticipated is exceeded or if a Level A harassment or injurious or lethal take of a polar bear occurs. These mitigation measures are non- 21 discretionary, and LOAs will be conditioned with these measures in order for the exemption in section 7( o )(2) of the ESA to apply. As 22 provided in 50 C.F.R. § 402.16, re-initiation of formal consultation is required where discretionary Federal agency involvement or control 23 over the action has been retained ( or is authorized by law), and re- initiation may be required if: 24 1. The amount or extent of incidental take for listed species is exceeded 25 (i.e., more than 92 Level B harassment in any given year, or any injurious or lethal take); 26 27

28 259 Doc. 41 at 52; see also Doc. 43 at 46; Doc. 43 at 52 (citing BSITR0002334-35). 1 2. New information reveals effects of the action that may affect listed species in a manner or to an extent not considered in this opinion; 2 3. The agency action is subsequently modified in a manner that causes 3 an effect to listed species or critical habitat not considered in this 4 opinion; or

5 4. A af fn ee cw te dsp be yc i te hs e i as cl ti is ot ned .2 6o 0r critical habitat is designated that may be

6 The BiOp clearly states that FWS “[s]hall reinitiate section 7 consultation 7

8 within 7 days in the event that the amoun t of authorized take is exceeded.”261 It is true that the BiOp does include the discretionary language complained of by Plaintiff, 9 and FWS does not explain their reason for including the “may be required” language 10 in the section immediately after its statement that it “shall reinitiate” consultation 11 in the event of excessive authorized take. Nonetheless, the implementing regulations 12 require reinitiation, a fact FWS clearly acknowledges in the BiOp, which accurately 13 states the law - that reinitiation is “non-discretionary” when take is exceeded.262 14 This language suffices under ESA. The Court finds that Defendants’ reinitiation 15 notice complies with the ESA. 16 17 V. CONCLUSION For the reasons stated above, the Court finds the 2021-2026 Beaufort Sea ITR 18 19 complies with MMPA, NEPA, and ESA. The Court therefore recommends that Plaintiffs’ Motion for Summary Judgment be DENIED and Defendants’ cross-motions 20 for summary judgment be GRANTED. 21 22 DATED at Anchorage, Alaska this 6th day of February 2023.

23 /s/ Kyle F. Reardon__________ 24 KYLE F. REARDON United States Magistrate Judge 25 District of Alaska 26

27 260 BSITR0002335 (emphasis added). 261 BSITR0002335 (emphasis added). 28 262 BSITR0002335. 1 NOTICE OF RIGHT TO OBJECT

2 Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate

3 judge to hear and determine matters pending before the Court. For dispositive

4 matters, a magistrate judge reports findings of fact and provides recommendations

5 to the presiding district court judge.263 A district court judge may accept, reject, or

6 modify, in whole or in part, the magistrate judge’s order.264

7 A party may file written objections to the magistrate judge’s order within 14

8 fourteen days.265 Objections and respons es are limited to five (5) pages in length 9 and should not merely reargue positions previously presented. Rather, objections 10 and responses should specifically identify the findings or recommendations 11 objected to, the basis of the objection, and any legal authority in support. Reports 12 and recommendations are not appealable orders. Any notice of appeal pursuant to 13 Fed. R. App. P. 4(a)(1) should not be filed until entry of the district court’s 14 judgment.266 15 16 17 18 19 20 21 22 23 24 25 26 263 28 U.S.C. § 636(b)(1)(B). 27 264 28 U.S.C. § 636(b)(1)(C). 265 Id. 28 266 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).