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Alaska Oil and Gas Association v. Pritzker

United States Court of Appeals, Ninth Circuit

October 24, 2016

Alaska Oil and Gas Association; American Petroleum Institute; State of Alaska; North Slope Borough; Inupiat Community of the Arctic Slope; Northwest Arctic Borough; Arctic Slope Regional Corporation; NANA Regional Corporation, Inc., Plaintiffs-Appellees,
v.
Penny Pritzker, U.S. Secretary of Commerce; National Marine Fisheries Service; National Oceanic and Atmospheric Administration; Kathryn D. Sullivan, in her official capacity as the Acting Under Secretary of Commerce for Oceans and Atmosphere and the Acting Administrator, National Oceanic and Atmospheric Administration; Samuel D. Rauch, III, in his official capacity as the Acting Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, Defendants-Appellants. Alaska Oil and Gas Association; American Petroleum Institute; State of Alaska; North Slope Borough; Inupiat Community of the Arctic Slope; Northwest Arctic Borough; Arctic Slope Regional Corporation; NANA Regional Corporation, Inc., Plaintiffs-Appellees,
v.
Penny Pritzker, U.S. Secretary of Commerce; National Marine Fisheries Service; National Oceanic and Atmospheric Administration; Kathryn D. Sullivan, in her official capacity as the Acting Under Secretary of Commerce for Oceans and Atmosphere and the Acting Administrator, National Oceanic and Atmospheric Administration; Samuel D. Rauch, III, in his official capacity as the ActingAssistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, Defendants, and Center for Biological Diversity, Intervenor-Defendant-Appellant.

          Presiding Argued and Submitted August 4, 2016 Anchorage, Alaska

         Appeal from the United States District Court for the District of Alaska D.C. Nos. 4:13-cv-00018-RRB, 4:13-cv-00018-RRB Ralph R. Beistline, District Judge,

          Robert Parke Stockman (argued), Meredith L. Flax, Mary E. Hollingsworth, and Katherine W. Hazard, Attorneys; John C. Cruzen, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Demian Schane, Office of the General Counsel, United States Department of Commerce, Juneau, Alaska; for Defendants-Appellants.

          Kristen Monsell (argued), Emily Jeffers, and Miyoko Sakashita, Oakland, California; Rebecca Noblin, Anchorage, Alaska; as and for Intervenor-Defendant-Appellant.

          Jeffrey W. Leppo (argued) and Ryan P. Steen, Stoel Rives LLP, Seattle, Washington, for Plaintiffs-Appellees Alaska Oil and Gas Association, and American Petroleum Institute.

          Bradley E. Meyen, Senior Assistant Attorney General, Alaska Department of Law, Anchorage, Alaska; Murray D. Feldman, Holland & Hart LLP, Boise, Idaho; Christina F. Gomez, Holland & Hart LLP, Denver, Colorado; for Plaintiff-Appellee State of Alaska.

          Tyson C. Kade (argued), Van Ness Feldman LLP, Washington, D.C.; Matthew A. Love, Van Ness Feldman LLP, Seattle, Washington; for Plaintiffs-Appellees North Slope Borough, Inupiat Community of the Arctic Slope, Northwest Arctic Borough, Arctic Slope Regional Corporation, and NANA Regional Corporation, Inc.

          Before: Raymond C. Fisher, Richard A. Paez and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY[*]

         Environmental Law

         The panel reversed the district court's summary judgment in favor of plaintiffs in their action challenging federal officials' listing decision under the Endangered Species Act, concerning certain "sea ice seal" species; and held that the National Marine Fisheries Service's ("NMFS") listing decision was reasonable.

         The NMFS concluded that the Okhotsk and Beringia distinct population segments of the Pacific bearded seal subspecies were likely to become endangered within the foreseeable future. NMFS used climate projections to determine that the loss of sea ice over shallow waters in the Arctic would leave the Pacific bearded seal subspecies endangered by the year 2095. Plaintiffs filed lawsuits challenging the listing decision under the ESA's citizen suit provision and the Administrative Procedure Act.

         The panel held that in light of the NMFS's robust rulemaking process, and pursuant to a highly deferential standard of review, the NMFS's final rule listing the Beringia distinct population segment as threatened was not arbitrary or capricious, and its listing was supported by substantial evidence. Specifically, the panel held that the NMFS did not act arbitrarily or capriciously in concluding that the effects of global climate change on sea ice would endanger the Beringia distinct population segment in the foreseeable future. The panel further held that the administrative record demonstrated that NMFS provided a reasonable and evidence-based justification for its mid-century and end-of-century sea ice projections.

         The panel held that NMFS clearly fulfilled its procedural and substantive obligations under Section 4(i) of the Endangered Species Act, 16 U.S.C. § 1533(i), to provide the State of Alaska with a written justification.

          OPINION

          PAEZ, Circuit Judge.

         The National Marine Fisheries Service ("NMFS") used climate projections to determine that the loss of sea ice over shallow waters in the Arctic would leave the Pacific bearded seal subspecies (Erignathus barbatus nauticus) endangered by the year 2095. This case turns on one issue: When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act? The district court answered in the negative, ruling that NMFS's listing decision was arbitrary and capricious. We hold that on the basis of the administrative record, NMFS's listing decision is reasonable. Accordingly, we reverse the district court's grant of summary judgment in favor of Plaintiffs.

         I.

         In 2008, the Center for Biological Diversity ("CBD") filed a petition requesting that the Secretary of Commerce list three "sea ice seal" species as endangered or threatened under the Endangered Species Act ("ESA" or "the Act"), 16 U.S.C. §§ 1531-44. See 16 U.S.C. § 1533(b)(1)(3) (citing 5 U.S.C. § 553(e)) (relating to the process for consideration of a petition for rulemaking); Final Listing Rule: Threatened Status for the Beringia & Okhotsk Distinct Population Segments of the Erignathus barbatus nauticus Subspecies of the Bearded Seal, 77 Fed. Reg. 76, 740 (Dec. 28, 2012) ("Listing Rule"). After a lengthy administrative process that included two rounds of peer review, several rounds of public notice and comment, and public hearings, NMFS concluded that the Okhotsk and Beringia distinct population segments ("DPS") of the Pacific bearded seal subspecies (Erignathus barbatus nauticus) were "likely to become . . . endangered species within the foreseeable future throughout . . . a significant portion of [their] range." 16 U.S.C. § 1532(20); Listing Rule, 77 Fed. Reg. at 76, 740.

         Plaintiffs Alaska Oil and Gas Association ("AOGA"), the State of Alaska, and North Slope Borough (collectively, "Plaintiffs") filed separate lawsuits challenging the listing decision under the ESA's citizen suit provision, 16 U.S.C. § 1540(g), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706.[1] Plaintiffs alleged, inter alia, that the listing decision was not based on the "best scientific and commercial data available" in violation of 16 U.S.C. § 1533(b)(1)(A); the population of bearded seals was plentiful; a lack of reliable population data made it impossible to determine an extinction threshold; NMFS's use of predictive climate projections beyond 2050 were speculative; NMFS had unreasonably "changed tack" from its previous Arctic sea-ice listing decisions; and NMFS had failed to demonstrate a causal connection between the loss of sea ice and the impact of that loss to the Okhotsk and Beringia DPS's viability. In addition, the State of Alaska alleged that NMFS failed to adequately respond to its public comments and failed to comply with the ESA's state cooperation provisions. See id. § 1533(i); 50 C.F.R. § 424.18(c).

         The district court denied relief with respect to the Okhotsk DPS for lack of Article III standing. Alaska Oil & Gas Ass'n v. Pritzker, No. 4:13-cv-18-RRB, 2014 WL 3726121, at *3-4 (D. Alaska July 25, 2014) ("Pritzker"). The district court, however, granted summary judgment to Plaintiffs on their challenge to NMFS's decision to list the Beringia DPS as a threatened species. The court concluded that NMFS's decision was arbitrary and capricious because NMFS's long-term climate projections were volatile and the agency lacked data on the bearded seal's adaptability and population trends, including "a specified time" at which the seal would reach an extinction threshold. Id. The district court also concluded that the ESA required NMFS to provide Alaska with a separate written justification for rejecting the State's comments and granted summary judgment to Alaska on that claim. Id. at *10 (citing Alaska Oil & Gas Ass'n v. Salazar, 916 F.Supp.2d 974, 1003 (D. Alaska 2013), rev'd sub nom., Alaska Oil & Gas Ass'n v. Jewell, 815 F.3d 544 (9th Cir. 2016) ("Jewell")). The district court vacated the Listing Rule, explaining that NMFS's attempt to predict the bearded seal's viability beyond 50 years was "too speculative and remote to support a determination that the bearded seal is in danger of becoming extinct." Id. at *15.

         NMFS and CBD timely appealed. As we explain below, NMFS's decision to list the Beringia DPS as threatened was not arbitrary, capricious, or otherwise in contravention of applicable law. Accordingly, we reverse the district court's grant of summary judgment in favor of Plaintiffs.

         II.

         We review de novo the district court's grant of summary judgment to determine whether NMFS's ESA listing decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2); Jewell, 815 F.3d at 554. Our review is "deferential and narrow, " requiring a "high threshold for setting aside agency action" following public notice and comment. Id. (internal quotation marks omitted). We presume an agency's action is valid, and we will affirm that action "so long as the agency 'considered the relevant factors and articulated a rational connection between the facts found and the choices made.'" Id. (quoting Nw. Ecosys. All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007)).

         III.

         In October 2009, NMFS established a Biological Review Team of eight marine mammal biologists, a fishery biologist, a marine chemist, and a climate scientist to review the status of the "best scientific and commercial data available" regarding bearded seals.[2] Listing Rule, 77 Fed. Reg. at 76, 740. NMFS solicited four scientists to conduct independent peer reviews of the Review Team's report. Id. at 76, 740 & 76, 750. Based on the Review Team's assessment and the peer reviewers' comments, NMFS published a proposed rule listing the ...


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