The Ninth Circuit Court of Appeals has upheld so-called “incidental take” regulations that the U.S. Fish and Wildlife Service (FWS ) issued in 2008. Ctr. for Biological Diversity v. Salazar, No. 10-35123 (9th Cir. 8/21/12).  

Applying to oil and gas exploration in the Chuckhi Sea and the adjacent coast of Alaska, the regulations allow the incidental take of polar bears and Pacific walruses during such operations. The regulations define “take” as “harassment,” including any act of “torment” or “annoyance” with the potential to injure or disturb a mammal. An unlawful take is subject to civil or criminal penalty. The regulations allow exceptions to a general take prohibition for “small numbers” of mammals having a “negligible impact” on a species.  

Plaintiffs asserted that FWS “relied on an impermissible regulatory definition that conflates the question whether an authorized take is for ‘small numbers’ of mammals with the separate question whether the take will result in a ‘negligible impact’ on the species or stock.” Calling it a “close question,” the Ninth Circuit found nevertheless that FWS demonstrated its adherence to the Marine Mammal Protection Act which requires that any exploratory activity effects be limited to small numbers of animals and negligible impacts. The court also held that the Endangered Species Act, while applicable, did not impose more stringent requirements on this particular regulatory process and that FWS ’s finding of no significant impact was proper under the National Environmental Policy Act.