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Center for Biological Diversity v. Salazar

ELR Citation: 42 ELR 20178
Nos. 10-35123, (9th Cir., 08/21/2012)

The Ninth Circuit upheld FWS regulations issued under the Marine Mammal Protection Act (MMPA) that authorize the incidental take of polar bears and Pacific walruses resulting from oil and gas exploration activities in the Chukchi Sea and on the adjacent coast of Alaska. MMPA §101(a)(5)(A) requires FWS to determine that a specified activity will take only "small numbers" of marine mammals and that the take will have only a "negligible impact" on the species or stock. FWS need not quantify in absolute terms the number of marine mammals that would be taken pursuant to incidental take regulations so long as the agency reasonably determines through some other means that the specified activity would result in take of only small numbers of mammals. The "small numbers" and "negligible impact" determinations are distinct standards that FWS must satisfy when promulgating incidental take regulations under §101(a)(5)(A), and FWS can analyze "small numbers" in relation to the size of the larger population as long as the "negligible impact" finding remains a distinct, separate standard. Here, FWS permissibly determined that only relatively small numbers of polar bears and Pacific walruses would be taken in relation to the size of their larger populations because it separately determined that the anticipated take would have only a negligible impact on the mammals' annual rates of recruitment or survival. The regulations, therefore, comply with the MMPA. The court also held that the FWS' accompanying biological opnion and EA complied with the ESA and NEPA.