Center for Biological Diversity v. Dirk Kempthorne

I. Background

In August 2006, the United States Fish and Wildlife Ser- vice promulgated five-year regulations under the Marine Mammal Protection Act § 101(a)(5) that authorize for a five- year period the non-lethal “take” of polar bears and Pacific walrus by oil and gas activities in and along the Beaufort Sea on the Northern Coast of Alaska. 50 C.F.R. § 18. The term “take” means “to harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. § 1362 (13). Under the regulations, individual oil and gas operators may apply to the Service for a “letter of authori- zation.” The LOA, if granted, lasts for up to a year.

As of 2002, there were an estimated 2,200 polar bears in the South Beaufort Sea. Polar bears move according to the location of sea ice and prey, migrating south in the winter with the advance of the sea ice and returning north in the sum- mer with the sea ice’s retreat. They spend most of their time far offshore in the active ice zone, spending only a limited time on land to feed, to den, or to travel elsewhere. The preg- nant females enter “maternity dens” in November, give birth to about two cubs around the new year…