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CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE

No. 08-35402.

588 F.3d 701 (2009)

CENTER FOR BIOLOGICAL DIVERSITY; Pacific Environment, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, Secretary of the Interior; United States Fish and Wildlife Service, Defendants-Appellees, Alaska Oil & Gas Association, Defendant-intervenor-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed December 2, 2009.

Attorney(s) appearing for the Case

Brendan R. Cummings, Center for Biological Diversity, Joshua Tree, CA; Robert Clayton Jernigan and Eric P. Jorgensen, Earthjustice, Juneau, AK, for the plaintiffs-appellants.

David Shilton, Ellen J. Durkee, Kristen L. Gustafson, and Lori Caramanian, United States Department of Justice, Environmental and Natural Resources Division, Washington, DC; Ronald J. Tenpas, Assistant Attorney General; Holly Wheeler, Office of the Solicitor, United States Department of the Interior, for the defendants-appellees.

Jeffrey W. Leppo, Stoel Rives, Seattle, WA, for the intervenor-appellee.

Before: JEROME FARRIS, DAVID R. THOMPSON and JOHNNIE B. RAWLINSON, Circuit Judges.

FARRIS, Circuit Judge:

I. Background

In August 2006, the United States Fish and Wildlife Service 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. § Part 18. The term "take" means "to harass, hunt, capture, or kill, or to...

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