SAN FRANCISCO (CN) - Mootness was the main issue on the table at the Ninth Circuit's hearing Monday of a case challenging federal regulations protecting Pacific walruses in the Chukchi Sea.
Monday's hearing stemmed from a 2014 lawsuit brought by the Alaska Wilderness League and five other environmental groups against the Secretary of the Interior and the U.S. Fish and Wildlife Service.
The groups are protesting the government's approval of the offshore oil industry's plans to encroach on the walrus's vital habitat, arguing that drilling, seismic surveying and vessel and aircraft traffic harasses and harms the animals.
A federal judge found for the government, but the environmental groups appealed the decision.
At the hearing of the appeal before a three-judge panel, Circuit Judge Andrew Kleinfeld asked whether the case was moot since Shell, the corporation that had intended to drill in the area, canceled their plans to do so.
"It looks like we don't need to do anything addressing incidental take, and neither does anyone else because there's no one there with the walrus anymore," Kleinfeld said.
Arguing for the plaintiffs, Erik Grafe replied that although Shell has said it will not drill in 2016, "it's left the door open for future activities."
"The threat remains notwithstanding Shell's announcement, and this court can still grant meaningful relief," he said.
But Kleinfeld was not immediately convinced, pointing out that Shell pulled out because the government's authorization process gave the corporation doubts about, in the wake of falling oil prices, whether the trouble would be worth the money.
"Can we act on a case where there will only be a genuine case of control if the price of oil goes up enough so that a company will ask for a letter of authorization?" he said.
"It seems like it's speculation piled on speculation. I don't think we have the authority under standing and mootness law to do anything."
Circuit Judge Kim McLane Wardlaw asked whether Grafe was suggesting that the case comes within an exception to mootness by the rule that a party cannot moot a case by taking action itself - in this case, Shell's cancellation of its drilling plans.
"We reply that there doesn't need to be an exception to mootness because the case is not moot," Grafe replied.
In her argument for the government, Thekla Hansen-Young also held a position that the case was not moot.
"The point about Shell pulling out goes to show that impacts, if anything, will be less than what was expected in the regulations because fewer people will be out there," she said. "The fact that Shell has pulled out doesn't in the government's view moot the case."
But Kleinfeld said that continuing with the case "seemed like the regulation of a product that's no longer made."
"The last company quit making it, and no company proposes to make it again," he said.
As to the merits of the case, Grafe argued that the government's proposed mitigating measures for drilling's impact on the walruses - such as seasonal restrictions and rerouting of vessels - were problematic because "the agency has said that it's not sure if those will be enough, and because there's no standards or criteria attached."
"There's nothing to comment on, and there's nothing to evaluate whether these will work," he said.
"So your beef is that your organization did not get to participate in the letter of authorization process," Kleinfeld said.
As relief, Grafe said, the organizations would like to have the government's authorization rule vacated.
Circuit Judge Richard Paez asked him why a preliminary injunction would not be sufficient.
"The reasons not to vacate are not present here," Grafe replied. "We think vacating the rule so that the agency can determine the total take is the most appropriate remedy."
Hansen-Young argued that the government ensured that the walruses would be protected by "keeping vessels and aircraft separate from the walruses both temporally and spatially," which "allows the walruses to finish their migration and to get to the areas that are important for them."
"What I don't understand is how you can make a finding of negligent taking if you are going to decide later what mitigation will be good or won't be good," Wardlaw said.
"There's so much uncertainty in all of this. The Secretary of the Interior doesn't even know when she's making this representation what obstacles are going to arise."
Kleinfeld said that he took the government's argument to say that it was "making a kind of fence around the law."
"You can make a finding of no significant impact because you've already got a regulation in place," he said.
Hansen-Young said that the problem with the plaintiffs' argument is that "it ignores all mitigation measures that are required in the letters of authorization."
"So this isn't about killing walruses," Kleinfeld said. "It's about making noise that annoys them, so they move to another table in a restaurant."
"That's right," Hansen-Young said.
Grafe is a staff attorney with the environmental law firm Earthjustice.
Hansen-Young is with the U.S. Department of Justice.
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