By Margaret Bauman
Alaska Journal of Commerce

A federal District Court judge has granted ConocoPhillips Alaska Inc. a stay, pending review of extended monitoring requirements imposed on oil seismic exploration in the Chukchi Sea off of Alaska's North Slope.

The decision allows ConocoPhillips to conduct seismic exploration under older rules that regulate monitoring for whales while exploration work takes place.

The ruling Sept. 18 in Anchorage from District Court Judge Ralph Beistline came in a case brought by ConocoPhillips against the National Marine Fisheries Service.

Beistline said that while it appears that all parties are well intended, the plaintiff oil giant "has raised a 'serious question' regarding the propriety of these additional testing requirements, which is sufficient to justify the interim relief requested."

Beistline agreed with ConocoPhillips that "the 'best science' currently available seems to support (ConocoPhillips') argument with regard to the impact on the bowhead whales. Moreover, a 'balancing of the hardships,' including the danger associated with additional monitoring requirements, tips clearly in (ConocoPhillips') favor," Beistline wrote in the motion granting a stay pending final resolution of the matter.

ConocoPhillips spokeswoman Dawn Patience said the company was pleased with the ruling.

"We appealed the permit conditions because we did not believe there was scientific support to monitor an area that was about 2,000 times the size of monitoring zones that been imposed in the past," Patience said. "We will condition to work with North Slope Borough and other agencies to gather other research data that we hope will improve our understanding of the Arctic environment."

ConocoPhillips, the largest producer of Alaska North Slope crude oil, filed suit against NMFS in late August, arguing that under an authorization issued by NMFS in July, the oil company would be required to monitor a vast and remote 3,030-square mile area of the Chukchi Sea for bowhead whales for the duration of its seismic program.

ConocoPhillips asked the court to find that NMFS had violated the Marine Mammal Protection Act and imposed conditions which are arbitrary, capricious, an abuse of discretion and contrary to law.

Attorneys for ConocoPhillips said the new monitoring requirements would impair the company's ability to carry out its planned 2006-2007 Chukchi Sea seismic exploration program and ability to effectively participate in the Outer Continental Shelf lease sale planned by the Minerals Management Service scheduled for late 2007 or early 2008.

ConocoPhillips argued that the incidental harassment authorization requirements would cost the company several million dollars, and also cited safety risks.

NMFS attorneys said that while ConocoPhillips initially proceeded with seismic operations in compliance with the directed incidental harassment authorization, the company waited seven weeks to bring this action on the federal permit, which expires Nov. 30.

While the bowhead whale population in the Bering, Chukchi and Beaufort seas is robust and well on its way to recovery from depletion due to commercial whaling, exposing the whale population to seismic activities is significant to the long-term viability of the species as a whole, NMFS attorneys said.

The accepted standard for underwater noise levels that impact whales is 120 decibels, according to Rick Steiner, a professor and conservation specialist with the University of Alaska Fairbanks. The lower the frequency, the greater distance it travels. Since baleen whales, including bowheads, hear and communicate on these low frequencies, loud, low frequency pulses are disruptive to them, Steiner said.

NOAA spokeswoman Connie Barclay said the federal agency will be looking at the judge's stay in relation to the ConocoPhillips lawsuit and trying to figure out what it means in the next few days and weeks. "We do expect bowhead whale cow and calf pairs will enter the Chukchi Sea in the area of the seismic surveys by Sept. 25, Barclay said. "That's all we know at this point."

An attorney for the whaling community of Point Hope, which filed a motion to intervene in the case, said the decision was, albeit temporary, disappointing. Point Hope, an Inupiat Eskimo whaling community, relies on whale hunts as part of its subsistence economy and culture.

"Point Hope from the beginning was unhappy with the mitigation that the government required of ConocoPhillips and others," said Demian Schane, an attorney with Earthjustice's Juneau office.

"It is disappointing and disturbing that rather than spend a couple of million dollars to protect the subsistence lifestyle and bowhead whales, ConocoPhillips brought a lawsuit to get out of those conditions," Schane said.

Margaret Bauman can be reached at

margie.bauman@alaskajournal.com.