In NRDC v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit confirmed that the Marine Mammal Protection Act’s (MMPA) incidental take authorizations will be construed narrowly and conservatively, giving the benefit of doubt to marine mammal species.  This decision is the most recent in a long line of cases between environmental groups and the U.S. Navy over the impact of the Navy’s Low Frequency Active (LFA) sonar activity on marine mammals.  Going forward, incidental take authorizations issued by the National Marine Fisheries Service (NMFS), such as the authorization for the LFA sonar program and other peacetime military activities, must demonstrate that mitigation measures achieve the “least practicable adverse impact” in addition to finding that the authorization has a “negligible impact” to marine mammals.  Even though the Navy has a more lenient standard for incidental take authorization compared to other applicants under the MMPA, the Ninth Circuit concluded that the Navy could not meet the MMPA’s criteria and thus must revisit its mitigation strategy for LFA sonar use. 

MMPA Prohibits Incidental Take of Marine Mammals

The MMPA broadly prohibits the “take” of marine mammals.  “Take” is defined to mean “to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammals.”  Take authorization is available for “small numbers” of marine mammals incidental to a specified activity in a specified geographical area for up to five years.  When a military readiness activity is involved, however, the “small numbers” and “specified geographic area” criteria do not apply. 

Any incidental take authorization for military readiness activities must meet two requirements: (1) NMFS must find that the total authorized take will have a negligible impact on such species or stock during the take authorization’s five-year period; and (2) NMFS must prescribe regulations setting forth “permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance” for a take involving more than harassment.  Five-year incidental take authorization involving lethal or injurious takes must be implemented through rulemaking.  One-year incidental harassment authorizations may be issued when lethal or injurious take is not involved.

U.S. Navy’s LFA Sonar Activity and Incidental Take of Marine Mammals

The U.S. Navy operates LFA sonar vessels around the world for the purpose of detecting potentially hostile submarines.  While beneficial to national defense, LFA sonar can harm many marine mammal species, in particular “low-frequency hearing specialists” such as baleen whales, sperm whales and pinnipeds such as seals and walruses.  Evidence suggests that the sonar disrupts the hearings of these animals and can cause physical injury at sound levels greater than 180 decibels.

In a 2012 Final Rule, NMFS authorized incidental take of marine mammals from LFA sonar use for five years, beginning in 2012 for the Navy’s routine use of LFA sonar worldwide.  The Navy may injure up to six baleen whales, 25 toothed whales and 25 pinnipeds annually, and may “disturb” up to 12% of the entire stock of every affected marine mammal species annually.

At issue here were the Final Rule’s three mitigation measures aimed at minimizing the impact of incidental take.  These mitigation measures required the Navy to shut down or delay LFA sonar use if it detects a marine mammal near a sonar vessel, and they also prohibited LFA sonar pulses greater than 180 decibels within certain “coastal exclusion zones” and other designated “offshore biologically important areas.”  Environmental organizations challenged these measures as failing to achieve the required “least practicable adverse impact” on marine mammal species, stock and habitat.

Mitigation to Achieve “Least Practicable Adverse Impact” Is Independent, Threshold Statutory Requirement

The government argued that once NMFS makes a negligible impact finding under the MMPA, it “must allow the activity,” and that the “only question at that point is what mitigation measures will be required for the proposed activity to go forward.”  The Ninth Circuit disagreed, holding instead that “mitigation sufficient to achieve the ‘least practicable adverse impact’ is . . . an independent, threshold statutory requirement.”  The Ninth Circuit held that NMFS must find negligible impact and set forth regulations to minimize adverse impact in order to authorize incidental take.  A finding that the activity will have a “negligible impact” cannot, without explanation by the agency, also demonstrate compliance with the “least practicable adverse impact” standard.

Navy’s Mitigation Measures Do Not Result in “Least Practicable Adverse Impact” on Marine Mammals

The court then examined what the least practicable adverse impact standard requires and whether the Final Rule was in compliance.  The plaintiff’s challenge focused on the sufficiency of the “offshore biologically important areas” (OBIAs).  In its 2012 rulemaking, NMFS flagged 73 candidate OBIAs by consulting subject matter experts and existing data.  This approach conflicted with the opinion of several senior NMFS scientists that identifying OBIAs based only on known data could overlook significant populations of marine mammals.  The agency’s chosen OBIA designation criteria led it to cut nearly 70% of the candidate OBIAs in the 2012 Final Rule.  The plaintiffs contended that the resulting list of 22 OBIAs was an arbitrary and capricious policy choice.

The Ninth Circuit found that NMFS should have considered whether the alternative approach put forward by agency scientists would give more protection to marine mammals and then “whether that protection would impede military training to a degree making that mitigation not practicable.”  The court added that balancing the equities between military readiness and conservation needed to have been made explicit in the rulemaking.

The court also took note of NRDC v. Evans, 279 F.Supp.2d 1129 (N.D. Cal. 2003), which held that “[a]lthough the agency has some discretion to choose among possible mitigation measures, it cannot exercise that discretion to vitiate this stringent standard.”  Reviewing the administrative record, the Ninth Circuit concluded that NMFS had not meaningfully discussed how the LFA sonar mitigation measures met the statute’s “stringent standard” and that the Final Rule was arbitrary and capricious as a result.  Also significant to the court’s reasoning was that NMFS’s choice between competing OBIA designation methodologies was a policy choice and not a scientific determination entitled to greater deference.  

“Adaptive Management” Strategy Did Not Satisfy MMPA Mitigation Requirement

The government contended further that the agency’s plans to engage in “adaptive management” would, in time, allow the 2012 Final Rule to achieve the least practicable adverse impact standard.  The Ninth Circuit ruled that “the mere possibility of changing the rules to accommodate new information does not satisfy the MMPA’s strict requirements for mitigating the effects of incidental take.”

Decision Confirms  Stringent Nature of MMPA Incidental Take Authorizations

The Ninth Circuit’s decision confirms that the MMPA’s incidental take authorizations are construed narrowly and conservatively to give the benefit of the doubt to the species.  To be defensible, incidental take authorization requests will need to demonstrate that the MMPA’s criteria have been satisfied and that the best scientific information available has been used. 

© 2016 Perkins Coie LLP