FILED
NOT FOR PUBLICATION
AUG 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OCEANA, INC.; GREENPEACE, INC., No. 15-35940
Plaintiffs-Appellants, D.C. No. 3:14-cv-00253-TMB
v.
MEMORANDUM*
NATIONAL MARINE FISHERIES
SERVICE; UNITED STATES
DEPARTMENT OF COMMERCE; et al.,
Defendants-Appellees,
ADAK COMMUNITY DEVELOPMENT
CORPORATION; et al.,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief Judge, Presiding
Argued and Submitted August 17, 2017
Anchorage, Alaska
Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Plaintiffs Oceana, Inc., and Greenpeace, Inc., timely appeal the district
court’s grant of summary judgment to the National Marine Fisheries Service ("the
Service") and other defendants in this action, which challenges the Service’s 2014
biological opinion and final environmental impact statement assessing the effect of
proposed fishing regulations on the western distinct population segment of Steller
sea lions.1 Reviewing de novo the district court’s grant of summary judgment, Nat.
Res. Def. Council, Inc. v. Pritzker, 828 F.3d 1125, 1133 n.8 (9th Cir. 2016), we
affirm.
1. The Service violated neither the Endangered Species Act of 1973 nor the
Administrative Procedure Act when it concluded, in its 2014 biological opinion,
that the proposed fishing regulations were "not likely to jeopardize the continued
existence of" the Steller sea lions and were not likely to "result in the destruction or
adverse modification of [designated critical] habitat" of the Steller sea lions. 16
U.S.C. § 1536(a)(2). In making that determination, the Service rationally assessed
many factors, including the scientific uncertainty of the effect, if any, of fisheries
on Steller sea lion populations and the extent of expected overlap between
commercial fishing and the foraging of Steller sea lions. Although the Service had
1
For simplicity, we will use the term "Steller sea lions" to refer exclusively
to the western distinct population segment.
2
concluded, four years earlier, that fishing regulations were likely to jeopardize the
Steller sea lions, the 2014 biological opinion explained, in detail and by reference
to significant expert analyses that post-dated the 2010 opinion, why the Service
reached a different conclusion this time.
The 2014 biological opinion acknowledged that the plight of Steller sea
lions is the subject of significant scientific uncertainty and debate. But the
Endangered Species Act requires the Service to determine whether the proposed
action is "likely to jeopardize the continued existence of" the Steller sea lions. 16
U.S.C. § 1536(a)(2). By its nature, a "likelihood" analysis necessarily requires a
consideration of probabilities. Indeed, one can never be certain about
consequences, especially in situations involving complex food chains and a swirl
of competing scientific theories and data. Here, the Service properly assessed
whether allowing fishing under specific conditions—at certain times, depths,
locations, etc.—is likely to jeopardize the species’ existence.
In answering that question, the Service looked to the voluminous scientific
record and concluded that—because the overall fish populations appear adequate
for recovery, because the regulations impose stringent catch limits, because the
regulations will result in some partitioning, and because many studies have shown
no connection between fishing and the population of Steller sea lions—the
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proposed regulations are not likely to jeopardize the species. To the extent that the
Service disagreed with some scientific opinions and agreed with other opinions, its
choice is not arbitrary: "experts in every scientific field routinely disagree," and
resolving scientific uncertainty is the agency’s task. Lands Council v. McNair, 537
F.3d 981, 1001 (9th Cir. 2008) (en banc), overruled on other grounds by Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).
2. The Service did not err by failing to identify a tipping point beyond
which the species cannot recover. We have held that, when a proposed action will
have significant negative effects on the species’ population or habitat, the duty to
consider the recovery of the species necessarily includes the calculation of the
species’ approximate tipping point. Wild Fish Conservancy v. Salazar, 628 F.3d
513 (9th Cir. 2010); Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d
917 (9th Cir. 2008). But, here, the Service rationally concluded that there would
be no significant effect on the Steller sea lions’ population or habitat, in the
Western Aleutian Islands or elsewhere. See, e.g., Nat’l Wildlife Fed’n, 524 F.3d at
934–35 ("[T]he 2004 BiOp explicitly found that the proposed [agency] operations
would have significant negative impacts on each affected species’ critical habitat
through 2010, in spite of planned mitigation efforts."). In the circumstances, the
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Service was not required to calculate a tipping point for the species as a whole or in
any sub-region.
3. The Service’s determination of some amount of partitioning between the
commercial fishing and the Steller sea lions’ foraging—in depth for pollock and in
space for Atka mackerel—was supported by the record. "[W]e generally must be
at our most deferential when reviewing scientific judgments and technical analyses
within the agency’s expertise." Lands Council v. McNair, 629 F.3d 1070, 1074
(9th Cir. 2010) (internal quotation marks and brackets omitted). "We have stressed
that we must defer to the agency’s interpretation of complex scientific data so long
as the agency provides a reasonable explanation for adopting its approach and
discloses the limitations of that approach." Alaska Oil & Gas Ass’n v. Pritzker,
840 F.3d 671, 679 (9th Cir. 2016) (internal quotation marks omitted), petitions for
cert. filed, ___ U.S.L.W. ___ (U.S. July 21, 2017) (Nos. 17-118, 17-133). "The
determination of what constitutes the ‘best scientific data available’ belongs to the
agency’s special expertise. When examining this kind of scientific determination,
as opposed to simple findings of fact, a reviewing court must generally be at its
most deferential." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d
581, 602 (9th Cir. 2014) (internal quotation marks and ellipsis omitted).
5
The Service’s determinations here survive that scrutiny. The data used by
the Service were imperfect, but no other data exist, and the Service acknowledged
the limitations of the data and used its best scientific judgment.2 When better
information exists, the Service must use that information or explain why it did not
use it. Id. But "where the information is not readily available, we cannot insist on
perfection: The ‘best scientific data available,’ does not mean ‘the best scientific
data possible.’" Id. (some internal quotation marks, alteration, and ellipsis
omitted).
4. The Service did not fail to discuss "responsible opposing view[s]" in its
final environmental impact statement. 40 C.F.R. § 1502.9(b). Plaintiffs point to
two internal critiques of a draft of a document that became, after editing, the 2014
biological opinion. Those critiques questioned the draft’s reliance on certain data
and the draft’s reaching of broad conclusions from the data. The final 2014
biological opinion adopted some of the points raised by the critiques, and it
explained why a limited, cautious use of the data was warranted. Neither the 2014
biological opinion nor the final environmental impact statement disclosed that
2
In Natural Resources Defense Council, 828 F.3d at 1140, we held that the
Service’s decision not to use the precautionary principle when faced with no data
from which to draw conclusions "was a policy choice, not a scientific
determination." Here, the Service’s reasoned decision to use the available
scientific data in a limited fashion was a scientific judgment, not a policy choice.
6
some scientists had criticized the earlier draft. But we find no error in that lack of
disclosure. Compare Greater Yellowstone Coal. v. Lewis, 628 F.3d 1143, 1151–52
(9th Cir. 2011) (holding that the agency did not err by failing to disclose "some
uncertainty" about the model), with Ctr. for Biological Diversity v. U.S. Forest
Serv., 349 F.3d 1157, 1166–69 (9th Cir. 2003) (holding that the agency erred
because it failed to mention significant scientific disagreement with the agency’s
key conclusion).
AFFIRMED.
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