PORTLAND, Ore. (CN) — A coalition of conservation groups appealed to the Ninth Circuit on Thursday in hopes of revoking a five-year authorization granted to gas and oil companies allowing them to harass threatened polar bears on Alaska’s North Slope.
The authorization — issued under the Marine Mammal Protection Act — is a five-year incidental take regulation that the U.S. Fish and Wildlife 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.
But these activities come with the potential to disturb, harm or kill certain animals. In this case, the association needed authorization for the potential “take” of the Southern Beaufort stock of polar bears and Pacific walrus.
The service designated polar bears as a threatened species under the Endangered Species Act in both 2008 and 2023, citing the Arctic’s shrinking sea ice habitat as a major contributor to the species’ decline. For the Southern Beaufort population, specifically, the service’s 2021 estimation reached a low of 780 individuals.
The Marine Mammal Protection Act prohibits the take of protected species like polar bears with narrow exemptions that rely on a scientific analysis into how likely certain activities will harass animals and affect their survival up to five years. For this analysis, the service must analyze the potential of harassment through the act’s criteria of harassment.
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.
Notably, the association only requested polar bear authorization via nonlethal, incidental “Level B harassment” — which would allow disturbances that could lead mother bears to abandon cubs or force them out of dens before they acquire vision, fur or adequate fat storage.
The service granted the petition — despite finding a 95% probability of serious polar bear injury or death, according to Alaska Wildlife Alliance, which joined six other conservation groups in suing the service in Alaska’s federal court after the approval.
Thursday’s appeal looks to revive this claim after U.S. Magistrate Judge Kyle Reardon tossed the case last February. U.S. District Judge Sharon Gleason adopted his findings in March 2023. Thursday's hearing, however, focused on the service’s initial projection of a 75% chance of annual Level A harassment.
Alaska Wildlife attorney Bridget Psarianos argued that the service considered the chance of Level A take too low to consider impacts or ways to mitigate it. She also said that the service avoided the high probability by splitting 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 administrating the act for polar bears and issuing regulations.
For the higher probability, Psarianos explained that the service applied a standard that ignores probabilities of lethal take under 50%. Instead, the service applied a medium probability of 0% for each subsequent year instead of all five.
This argument stirred up U.S. Senior Circuit Judge Jay Bybee, who questioned government attorney Rebecca Jaffee on why only half of the Level A figures constituted as Level A harassment.
“Level A is what Congress said requires certain kinds of actions or calculations by the service,” the George W. Bush appointee said. “It seems to me that when you only look at the 46% of A1, you’ve completely ignored A2. But A2 is a part of A, so I don’t understand what the service has done here.”
In response, Jaffee explained that the 29% portion of Level A harassment represented fitness costs and that the service determined that there would be no impacts to polar bear survival or recruitment.
U.S. Circuit Judge Daniel Bress — a Trump appointee — similarly questioned the methodology of splitting the Level A category. However, the topic soon changed to why the service reached a 0% probability of serious take over five years if they found a 46.2% annual chance of serious injury.
“We do agree that the service has to look at the total of such taking over the five-year term,” Jaffee said. “But we disagree that the service has to use the probability output specifically.”
While the plaintiffs prefer the 96% output that their experts reached, Jaffee said the service reasonably focused on the median output of 0% for each year.
“But if you have a 46% each year over five years, it seems to me that during that five-year period, there’s a pretty good chance that in at least one year, there’s likely to be a taking,” Bybee said. “And that doesn’t seem to be rocket science to me.”
Attorney Ryan Steen, representing Alaska Oil and Gas Association as an intervening defendant, defended the service’s methodology and explanation.
“They said, we think when the data are significantly skewed like the data we have, we, the service, think the median is the most informative,” Steen said. “And that’s all they’re required to do. That’s the agency’s explanation. Plaintiffs disagree with that but that’s the agency’s explanation.”
And while the service’s assumptions are conservative and model a 99 percentile of impact probability, Steen argued they don’t reflect what actually happens on the ground.
To this, Psarianos reminded the panel that the service developed its quantitative model after realizing its prior reported take underestimated harm to denning cubs and that service scientists question whether any Level A take is consistent with the regulating act.
“This is a really significant question that the service would need to consider on remand as to whether it could even allow Level B harassment for these activities where Level A is essentially certain to occur,” Psarianos said.
The panel — rounded out by U.S. Senior Circuit Judge M. Margaret McKeown, a Clinton appointee — adjourned the hearing without indicating how or when they would rule.
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