Seeking Anchor Handling Ice Class Vessels

Docket Clerk U.S. DOT Dockets Room PL–401 Department of Transportation 1200 New Jersey Avenue, SE. Washington, DC 20590–0001 RE: [Docket Number: MARAD 2008 0029] Use of Foreign-Flag Anchor Handling Vessels in the Beaufort Sea or Chukchi Sea Adjacent to Alaska (73 Fed. Reg. 16955, March 31, 2008) These comments on the Secretary of Transportation and MARAD's proposed finding allowing foreign-flagged vessels to operate in the Chukchi and Beaufort seas as part of oil and gas exploration and drilling operations are sent on behalf of the Center for Biological Diversity and Pacific Environment. We believe that MARAD cannot lawfully issue such a determination and authorization until and unless it has complied with the provisions of the Endangered Species Act ("ESA")(16 U.S.C. § 1531 et seq.), Marine Mammal Protection Act ("MMPA")(16 U.S.C. § 1361 et seq.), Migratory Bird Treaty Act ("MBTA")(16 U.S.C. § 706 et seq.), Coastal Zone Management Act ("CZMA") (16 U.S.C. § 1451 et seq.), and the National Environmental Policy Act ("NEPA") (42 U.S.C. § 4321 et seq.). Because there is no evidence that MARAD has complied with these laws, any such finding must be withheld. 1.Endangered Species Act Section 2(c) of the ESA establishes that it is "…the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act." 16 U.S.C. § 1531(c)(1). The ESA defines "conservation" to mean "…the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary." 16 U.S.C. § 1532(3). Similarly, Section 7(a)(1) of the ESA directs that all agencies "utilize their authorities in furtherance of the purposes of the [ESA]." 16 U.S.C. § 1536(a)(1). As MARAD is or should be aware, the Beaufort and Chukchi seas are home to numerous imperiled species, including species listed under the ESA such as the bowhead, humpback and fin whales, and the Steller's and spectacled eiders. MARAD's proposed authorizations allowing foreign-flagged vessels to operate in this area would violate Sections 2(c) and 7(a)(1) of the ESA because the agency refuses to use its authorities to further the purpose of listed species conservation. Section 7(a)(2) of the ESA requires federal agencies to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the adverse modification of habitat of such species . . .determined . . . to be critical . . . ." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). To accomplish this goal, agencies must consult with the delegated agency of the Secretary of Commerce or Interior whenever their actions "may affect" a listed species. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). At the completion of consultation NMFS and/or FWS issue a Biological Opinion that determines if the agency action is likely to jeopardize the species. If so the opinion must specify a Reasonable and Prudent Alternative ("RPA") that will avoid jeopardy and allow the agency to proceed with the action. 16 U.S.C. § 1536(b). Clearly, authorization of these vessels in endangered species habitat meets the standards triggering consultation. The ESA also prohibits any "person" from "taking" threatened and endangered species. 16 U.S.C.§ 1538. The definition of "take", found at 16 U.S.C.§ 1532(19), states, The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Courts have ruled that "the statute not only prohibits the acts of those parties that directly exact the taking, but also bans those acts of a third…