ELR Citation: 54 ELR 20042
No(s). 23-35299 (9th Cir. Mar 19, 2024)

In an unpublished opinion, the Ninth Circuit affirmed in part and reversed in part summary judgment for FWS in a challenge to the Service's issuance of an incidental take regulation for polar bears living along Alaska's Beaufort Sea. Environmental groups argued FWS failed to satisfy the Marine Mammal Protection Act's requirements that the take be of "small numbers" of bears and have a "negligible impact" on the Beaufort Sea population. The court found FWS' decision to subdivide Level A harassment into two categories when making its negligible impact determination was reasonable, but that its failure to offer an aggregate figure was not. It further found FWS erred by not examining the five-year risk of Level A take, but that it satisfied the "least practicable adverse impact" standard and that the groups' other claims concerning the take calculations were unpersuasive. It reversed summary judgment with respect to FWS' failure to determine five-year cumulative risk of Level A take in assessing "negligible impact" and failure to address the high likelihood of unauthorized Level A take, and remanded to the Service to 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 "reasonably likely" to occur.