(CN) — A federal magistrate judge has recommended summary judgment in favor of the U.S. Fish and Wildlife in a lawsuit over its authorization of oil and gas drilling on the northern coast of Alaska that conservationists say will harass threatened polar bears and walruses.
The case centers around a 2021 lawsuit led by Alaska Wildlife Alliance and the Center for Biological Diversity against Fish and Wildlife for issuing a five-year incidental take regulation under the Marine Mammal Protection Act. The regulation allows intervenor Alaska Oil and Gas Association to request to take — bother, harm or even kill — Southern Beaufort stock polar bears and Pacific walrus in the Beaufort Sea and adjacent northern coast of Alaska.
Polar bears and walruses are protected by the Marine Mammal Protection Act, a policy established in 1972 to protect marine species and implemented by Fish and Wildlife, NOAA Fisheries and Marine Mammal Commission. Polar bears won threatened species protection under the Endangered Species Act in 2008, and in 2011 Fish and Wildlife designated critical habitat for the species in Alaska, including barrier island habitat, sea-ice habitat and terrestrial denning habitat.
According to Alaska Wildlife’s complaint, Fish and Wildlife’s incidental take regulation — along with its environmental assessment “finding of no significant impact” and biological opinion — violated the Marine Mammal Protection Act, the National Environmental Policy Act, the Endangered Species Act and the Administrative Procedure Act.
The permit, Alaska Wildlife claims, enables entities conducting “oil and gas exploration, development and production activities on the North Slope to request a letter of authorization to take polar bears via nonlethal, incidental, ‘Level B harassment’” — an activity defined as “an act with the potential to disturb a marine mammal.”
Alaska Wildlife says the regulation authorizes such harassment of up to 443 polar bears over five years, affecting a population of roughly 907 polar bears, or 50% in due course. The group pointed out Fish and Wildlife’s modeling of activities indicated there was 46% annual chance of injuring or killing at least one polar bear cub over the five years, meaning “it is more than 94% likely that a ‘serious’ Level A harassment/lethal take will occur in at least one of the five years due to the covered activities,” the conservationists say.
Yet, according to U.S. Magistrate Judge Kyle Reardon’s 48-page recommendation on Monday night, Fish and Wildlife addressed these figures by referring to historical data that illustrated how unlikely it is that harassment of 443 bears will occur. For example, between 2014 and 2018, only 264 “Level B harassments” occurred out of 1,698 bears encountered by the oil industry, or 15.5% of observed bears.
Therefore, the agency concluded that up to 92 polar bears, or 10%, would experience Level B harassment, which would “impact no more than ‘small numbers’ of the SBS polar bear stock.”
“FWS anticipated only Level B harassment would occur in its small numbers determination, and that that level of harassment would have a negligible impact on the health, reproduction, or survival of SBS polar bears,” Reardon wrote.
To assess the amount of “Level A” take expected, Fish and Wildlife broke down Level A harassment into two categories: “serious” — likely to result in morality — and “non-serious, encounters that may cause early den departure but aren't likely to result in morality. According to Reardon, the agency concluded that no Level A take was likely.
Reardon found Fish and Wildlife had considered and implemented measures to limit den disturbances, completed the necessary environmental assessment and consulted as required the Endangered Species Act to complete a biological opinion finding there would be negligible effects to the animals from the oil and gas activities and not likely to affect critical polar bear habitat.
For these findings, Reardon found that Fish and Wildlife adequately considered potential injury or mortality to polar bear cubs, and that the agency’s consideration or authorization of harassment was not arbitrary or in violation of the Marine Mammal Commission, Endangered Species Act or National Environmental Policy Act.
U.S. District Judge Sharon Gleason may accept, reject or modify Reardon’s recommendations.
Alaska Wildlife attorney Bridget Psarianos said by phone her clients haven't decided on their next steps. A Fish and Wildlife spokesperson declined to comment, citing pending litigation.
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