Court Orders U.S. Fish & Wildlife Service To Fix Regulation That Allows Oil Companies To Harass Polar Bears In Alaska

The 9th U.S. Circuit Court of Appeals ruled this week that the U.S. Fish and Wildlife Service must correct legal errors in a regulation that allows oil and gas companies to harass Southern Beaufort Sea polar bears on the North Slope of Alaska.

The rule allows oil operators to harass and disturb a significant number of bears while they’re denning, feeding, hunting, and interacting with other bears, further imperiling a population already threatened by climate change. Trustees for Alaska filed a lawsuit to challenge the incidental take regulation in 2021 and later filed an appeal in the Ninth Circuit Court in 2023.

“If you took all the Beaufort Sea Polar Bears to an Anchorage Wolverines hockey game, their entire population wouldn’t even fill the home-team section since there are fewer than 900 of these polar bears left,” said Nicole Schmitt, executive director of Alaska Wildlife Alliance. “Each bear, especially the sows and cubs, are incredibly important to keeping this population afloat. We are grateful that the court agreed with our findings that The Service must provide a scientific explanation to justify this incidental take program and are confident that Fish and Wildlife will agree with the science and find this incidental take program completely unwarranted.”

The Marine Mammal Protection Act prohibits unauthorized harassment of marine mammal populations like polar bears. A narrow exception to this prohibition allows The U.S. Fish and Wildlife Service to authorize an unintentional “take” of small numbers of marine mammals for five years or less if it will have a negligible impact on the population. These authorizations are called “incidental take regulations,” where the term “take” means to harass or injure bears.

In Tuesday’s ruling, the court found that The U.S. Fish and Wildlife Service can’t invent subcategories of polar bear “take” that cause injuries without acknowledging that those injuries could occur. It also found that the agency failed to evaluate the cumulative impacts of five years of oil and gas activities on polar bears by attempting to look at each year in isolation and concluding that oil activities would cause a negligible impact on their population. This violated the Marine Mammal Protection Act’s plain language, which requires the agency to consider the “total” take that the agency is authorizing. The court upheld some portions of the agency’s analysis and orders the agency to address these legal issues promptly, but it does not vacate the rule.

“It’s great news that the Ninth Circuit held that Fish and Wildlife Service’s regulations were legally flawed,” said Bridget Psarianos, attorney with Trustees for Alaska. “The agency’s failure to consider the highly probable death and deadly injury to polar bear cubs not only violated the law’s plain language, but it goes against the intent of the MMPA itself. The law’s entire purpose is to protect marine mammals like polar bears from harmful human activities. We will continue doing everything we can to protect polar bears in an already vulnerable population impacted by the climate crisis and industrialization.”

The regulation allows oil and gas companies to harass polar bears while carrying out broad and intensive industrial activities for five years, starting in 2021. Harassment can include scaring bears off with noise, equipment or vehicles, which can compel the animals to delay or stop feeding, hunting, tending to their young, interacting with other bears, or generally focusing on survival. For denning cubs who are weak and need time in their dens with their mothers, this harassment can be fatal. The U.S. Fish and Wildlife Service’s own science showed a 95% probability that the North Slope’s oil and gas activities will be lethal to polar bears over the regulation’s five-year period. The failure to consider this high probability was one of the legal problems identified by the court in yesterday’s ruling.

The administration issued the regulation after Alaska Oil and Gas Association asked the U.S. Fish and Wildlife Service to allow oil and gas operators in Alaska to harass polar bears and walruses along the Beaufort Sea coast and on the North Slope.

The law firm Trustees for Alaska filed the lawsuit on behalf of seven groups and represents five clients in the case: The Alaska Wildlife Alliance, Alaska Wilderness League, Defenders of Wildlife, Environment America, and the Sierra Club, which also represents itself. Trustees is co-counseling with Sierra Club’s Environmental Law Program, and the Center for Biological Diversity, which represents itself and Friends of the Earth.