(CN) — The U.S. Fish and Wildlife Service must reevaluate its authorization of polar bear harassment in Alaska after a Ninth Circuit panel disagreed with how the agency determined oil and gas companies would have a negligible impact on the threatened species.
The unpublished opinion issued Tuesday partially revives a federal challenge involving a five-year authorization for gas and oil companies to harass threatened polar bears on Alaska’s North Slope.
The authorization — issued under the Marine Mammal Protection Act — is an incidental take regulation that the service issued to the Alaska Oil and Gas Association in 2021. The regulation allows oil and gas companies to continue development in northern Alaska with other explorative activities, including ConocoPhillips’ Willow Project and other expansions into the state’s National Petroleum Reserve.
In early February, Alaska Wildlife Alliance led an appeal to the Ninth Circuit following the 2023 dismissal of its federal lawsuit over the authorization. The conservation group reiterated that the service approved the association’s permit without properly analyzing how oil and gas activities would affect polar bears under the Marine Mammal Protection Act’s criteria of harassment.
Under the act’s harassment criteria, Level A harassment involves any “act of pursuit, torment or annoyance that has the potential to injure” a marine mammal. Level B harassment is anything that potentially disturbs marine mammals by disrupting behavioral patterns like migration, breathing, nursing, breeding, feeding or sheltering.
Alliance attorney Bridget Psarianos argued that the service granted the petition despite initially finding a 75% chance of annual Level A harassment.
To avoid the high probability, Psarianos argued that the service split the Level A category into a 29% chance of non-serious take and a 46% chance of serious take — categories the service has never used before while administering the act and issuing regulations for polar bears. For the higher probability, Psarianos explained that the service applied a standard that ignored probabilities of lethal take under 50%. Instead, the service applied a medium probability of 0% for each subsequent year instead of all five.
The appellate hearing elicited lengthy questioning from U.S. Senior Circuit Judges M. Margaret McKeown and Jay Bybee and U.S. Circuit Judge Daniel Bress — appointed by former U.S. presidents Bill Clinton, George W. Bush and Donald Trump, respectively. By Tuesday, those questions led to a partial remand without vacating the service’s authorization.
“The service offers two principal counterarguments, neither of which is compelling,” the judges wrote in the opinion in which McKeown and Bybee concurred.
While the service argued that its 29% and 46% probabilities for Level A harassment cannot be added because they are not independent of each other, the judges reasoned that it never denied that its annual likelihood Level A harassment exceeds 50%, provided its own aggregate figure nor claimed to have calculated the number before issuing its authorization.
“Crediting the service’s unsupported reasoning would allow Level A harassment to be subdivided however much is necessary to reduce it to less than a ‘majority of model runs,’ at which point it can be discounted as ‘[un]likely,” the judges wrote.
The judges further disagreed with how the service deprioritized its model’s probability and mean outputs to avoid skewed results. They also found that the service never calculated the risk of Level A take over five years.
“Since the service either did not calculate the five-year cumulative risk of Level A take as the MMPA requires or unreasonably discounted a high likelihood of such take, we once more find that it ‘entirely failed to consider an important aspect of the problem,’” the judges concluded.
U.S. Circuit Judge Daniel Bress provided a partial dissent, writing that the majority’s criticism “misapprehends the service’s obligations under the MMPA” and overlook the service’s qualitative reasoning for its “negligible impact” finding.
“In short, especially when considering the service’s qualitative determinations, the service did not act arbitrarily or capriciously by failing to perform the majority’s desired calculations,” Bress wrote. “That is even more apparent where — as the majority admits — the service was not obligated to conduct any quantitative analysis in the first place.”
Moving forward, the service must provide a “fuller explanation for its determination that no Level A incidents are expected during the period covered by the 2021 ITR.” In doing so, it must determine whether aggregating serious and non-serous Level A take yields a “reasonably likely” result and whether the five-year risk of taking a denning cub is likely to occur.
“To the extent that it is,” the judges wrote, “the service must then evaluate whether the five-year impact of Level A take is ‘negligible’ and whether such take will be of ‘small numbers’ of bears and possibly amend or reverse the 2021 ITR.”
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