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Soundings Archive

Government Responds in Alaska Polar Bear and Walrus Incidental Take Case
On October 10, 2008, the U.S. Fish and Wildlife Service filed its answer to the plaintiffs' amended complaint in the case Center for Biological Diversity et al. v. FWS. This case is filed in the United States District Court for Alaska. The plaintiffs challenge FWS' issuance of incidental take regulations for oil and gas exploration activities that may affect polar bears and pacific walruses in the Chukchi Sea. The plaintiffs' amended complaint alleges that the regulations violate the Marine Mammal Protection Act, the Endangered Species Act, and the National Environmental Policy Act.

In their answer to the amended complaint, FWS denies most of the plaintiffs' factual and allegations. FWS also repeatedly avers that "required monitoring and mitigation measures will eliminate or reduce" any adverse impacts on bears or walruses. The FWs answer also pleads the following affirmative defenses:

    "1. Plaintiffs fail to state a claim upon which relief can be granted.

    2. To the extent plaintiffs raise issues or claims in this action which were not previously presented to the agency, those issues or claims are barred by reason of the failure to exhaust administrative remedies.

    3. To the extent plaintiffs present to the Court any issue or contention which is now contrary to any position taken by plaintiffs in the administrative proceedings, plaintiffs have waived the right to present any such issue, contention or claim.

    4. Plaintiffs have not suffered any injury as a result of the regulations promulgated at 73 Federal Register 33250-255(June 11, 2008), to be codified as 50 C.F.R. 18-111 thru 18.119; therefore, they lack standing to commence this action and the Court lacks jurisdiction over this action.

    5. Plaintiffs' claims are not ripe.

    6. Plaintiffs cannot meet their burden on a facial challenge to regulations of establishing that there is no set of circumstances wherein the regulations would be valid."
This type of case is usually decided on some type of motion rather than after a trial.

On October 15, 2008, FWS relied on the challenged regulations to issue several Letters of Authorization for oil and gas companies to take polar bears and walruses during their exploratory activities in the Chukchi.
  • Click here to read answer to amended complaint
  • Click here to read FWS notice of LOAs for Chukchi

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