                                                                                   FILED
                               NOT FOR PUBLICATION                                 SEP 27 2013

                                                                               MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT



THE HUMANE SOCIETY OF THE                           No. 13-35195
UNITED STATES; WILD FISH
CONSERVANCY; BETHANIE                               D.C. No. 3:12-cv-00642-SI
O’DRISCOLL; ANDREA KOZIL,

               Plaintiffs - Appellants,             MEMORANDUM*

       v.

PENNY PRITZKER, Secretary of Commerce;
SAMUEL D RAUCH, III, Acting Assistant
Administrator for NOAA Fisheries; HELEN
GOLDE, Acting Director, Office of Protected
Resources, NOAA Fisheries,

               Defendants - Appellees,

       and

STATE OF WASHINGTON, by and through
its Department of Fish and Wildlife; STATE
OF OREGON, by and through its Department
of Fish and Wildlife; STATE OF IDAHO, by
and through its Department of Fish and
Wildlife,

               Intervenor-Defendants -
               Appellees.


        *
         This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
                       Appeal from the United States District Court
                                for the District of Oregon
                       Michael H. Simon, District Judge, Presiding

                        Argued and Submitted September 20, 2013
                                San Francisco, California

Before: FISHER and PAEZ, Circuit Judges, and FOGEL, District Judge.**

       The plaintiffs appeal the judgment entered in favor of the defendants on their

claims under the Marine Mammal Protection Act (MMPA) and National Environmental

Policy Act (NEPA). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       1.     In a previous appeal, we vacated the National Marine Fisheries Services’

(NMFS) action and remanded for the agency to “adequately explain[] its finding that sea

lions are having a ‘significant negative impact’ on the decline or recovery of listed

salmonid populations given earlier factual findings by NMFS that fisheries that cause

similar or greater mortality among these populations are not having significant negative

impacts.” Humane Soc’y of U.S. v. Locke (Humane Society I), 626 F.3d 1040, 1048

(2010). NMFS has now included in its new decision memorandum a 13-page explanation

for these seemingly disparate factual findings. This explanation discusses, among other

things, the qualitative differences between regulated and managed fisheries and

hydropower operations on the one hand and pinniped predation on the other. The


        **
           The Honorable Jeremy D. Fogel, United States District Judge for the Northern
District of California, sitting by designation.

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decision memorandum also discusses the difficulty in estimating actual sea lion predation

and the socio-economic and cultural benefits that factored into the agency’s fisheries’

analyses. In reviewing the new record, we cannot say that the agency has failed to

“examine the relevant data” or “articulate a satisfactory explanation for its action

including a ‘rational connection between the facts found and the choice made.’” Motor

Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

       2.      The 2008 authorization limited the number of sea lions that could be killed

to the lesser of 85 sea lions per year or “the number required to reduce the observed

predation rate to 1 percent of the salmonid run at Bonneville Dam.” 73 Fed. Reg. 15,483,

15,486 (Mar. 24, 2008). In Humane Society I, we construed this as an implicit finding

that “California sea lion predation greater than 1 percent would have a significant

negative impact on the decline or recovery of the listed salmonid populations.” 626 F.3d

at 1052. We held that NMFS had not “adequately explained why a California sea lion

predation rate of 1 percent would have a significant negative impact on the decline or

recovery of these salmonid populations,” id. at 1048, and we “echo[ed] the concerns of

the Marine Mammal Commission,” which had “repeatedly emphasized to NMFS the need

to ‘identify the level at which predation of salmonids by pinnipeds no longer would be




                                              3
considered significant,’ because ‘the taking authority should lapse once predation is

reduced to a level where it no longer is having a significant impact,’” id. at 1052.

       In the new authorization, NMFS has limited the number of sea lions that can be

killed to 92 animals per year but has altogether eliminated the 1 percent predation rate

threshold for suspending sea lion removals, deeming it both unnecessary for the

protection of the California sea lion population and impractical in light of the potential for

predation rates to fluctuate. Instead, NMFS has relied upon seven qualitative factors,

which are discussed below, to justify its determination of “significant negative impact,”

and it has decided “at the conclusion of the 5-year authorization to assess predation trends

to determine whether the lethal removal authorization should continue.”

       The plaintiffs contend that this action fails to respond to concerns raised in

Humane Society I and, more broadly, that with the elimination of the 1 percent threshold

the agency’s authorization would permit the states’ to lethally remove sea lions even if

sea lion predation dropped well below 1 percent (observed predation was only 1.1 percent

in 2011) and, indeed, even if predation ceased entirely. They contend that the agency’s

approach cannot be reconciled with the plain language of the MMPA, which does not

authorize the taking of any sea lion unless pinnipeds “are having a significant negative

impact on the decline or recovery of salmonid fishery stocks.” 16 U.S.C. § 1389(b)(1).

They further contend that NMFS’s failure to establish a specific threshold at which sea


                                              4
lion predation will no longer be considered “significant” under the MMPA – at which

point authorization to kill sea lions would have to lapse – is indicative of the agency’s

larger failure to adopt any quantitative or objective, measurable standard for determining

when sea lion predation does and does not constitute a significant negative impact on

salmonid recovery.

       Although the plaintiffs raise valid concerns, we cannot agree that NMFS acted

arbitrarily or capriciously by failing to adopt a more quantitative measure of significance.

The plaintiffs point out that in 2008 the Marine Mammal Commission recommended that

NMFS adopt a quantitative measure of significance and offered three suggested measures.

In its 2008 final environmental assessment, however, NMFS considered the

Commission’s recommendations and provided a reasoned explanation for not adopting

them. In its 2012 decision memorandum, moreover, NMFS explained that at the present

time the results from modeling “are too preliminary and inconclusive to provide reliable

estimates on the absolute impact of pinniped predation.” Although the plaintiffs contend

that more objective measures of significance are available and workable, we cannot say

that the agency’s conclusions to the contrary are arbitrary or capricious.

       We reach the same conclusion with respect to the agency’s determination to rely

on a reassessment of the situation at the end of five years to determine whether lethal

removal authorization should continue. Although the current authorization does not


                                              5
include any mechanism by which the states will be required to suspend removals if sea

lion predation continues to diminish during the five-year life of the authorization, we

were informed by counsel during oral argument that the states would exercise discretion

to suspend removals if predation fell to acceptable levels, taking the totality of

circumstances into account. Given NMFS’s determination that there is no quantitative

measure of significance that could serve as a bright-line threshold for suspending

removals, we cannot say that the path adopted by NMFS is arbitrary or capricious.

       3.     The plaintiffs challenge NMFS’s interpretation of the statutory term

“significant negative impact” as well as the seven factors NMFS used to determine that

pinnipeds were having a significant negative impact on the recovery of at-risk salmonid

populations at Bonneville Dam.

       NMFS’s interpretation of “significant negative impact” as an impact that is

“meaningful” and “not insignificant,” 76 Fed. Reg. 56,167, 56,170 (Sept. 12, 2011), is

consistent with the common and ordinary meaning of the word significant. See American

Heritage Dictionary of the English Language 1630 (5th ed. 2011) (“Having or likely to

have a major effect . . . .”); Webster’s Third New International Dictionary 2116 (2002)

(“having or likely to have influence or effect : deserving to be considered : important,

weighty, notable . . . .”). The agency’s interpretation, therefore, is permissible under

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43


                                              6
(1984). See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,

980 (2005).

       As noted earlier, NMFS has relied upon seven factors to determine that pinnipeds

are having a significant negative impact on at-risk salmonid populations at Bonneville

Dam: (1) the predation is measurable, has grown since 2002, and could continue to

increase if not addressed; (2) nonlethal deterrence efforts have been unsuccessful at

reducing the number of sea lions or amount of predation; (3) the level of adult salmonid

mortality is sufficiently large to have a measurable effect on the numbers of listed adult

salmonids contributing to the productivity of the affected populations; (4) in 2010,

California sea lions reached their highest numbers since 2004, thereby demonstrating that

their numbers are as yet unpredictable and can easily grow; (5) the predation rate from

California sea lions increases when salmonid run sizes decrease; (6) California sea lion

and Steller sea lion predation on at-risk salmonids at Bonneville Dam has a combined

effect; and (7) the mortality rate for listed salmonids is comparable to mortality rates from

other sources that have resulted in the agency using its authority under the Endangered

Species Act (ESA) to reduce the impact. In the absence of a reliable basis for adopting a

quantitative standard, we cannot fault the agency for adopting a qualitative standard. See

Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 905-07 (9th Cir. 2012); Ranchers




                                             7
Cattlemen Action Legal Fund v. U.S. Dep’t of Agric., 415 F.3d 1078, 1096-97 (9th Cir.

2005).

         We agree with the plaintiffs that at least in theory, some of these factors – e.g., that

“predation is measurable” or that the “level of adult salmonid mortality is sufficiently

large to have a measurable effect on the numbers of listed adult salmonids contributing to

the productivity of the affected” populations (emphases added) – could be applied in

ways that would eviscerate the MMPA statutory standard, confer virtually limitless

discretion on the agency to make a finding of significant impact and preclude effective

judicial review. However, we do not understand the factors considered as a whole to

permit such an application. The seventh factor in particular looks to whether the

mortality rate caused by sea lions is comparable to mortality rates from other sources –

i.e., dams and fisheries – that have resulted in the agency using its ESA authority to

reduce the impact. This factor places a meaningful constraint on the agency’s discretion

to find sea lion predation to have a significant negative impact. We doubt, for example,

that NMFS could reasonably conclude that sustained predation below 1 percent could

constitute a significant negative impact under the MMPA standard and these seven

factors, at least absent evidence of a disproportionately adverse impact on a particular at-

risk salmonid population. Thus, on the existing record, we hold that neither the agency’s

reliance on these seven factors nor its application of them was arbitrary or capricious.


                                                8
       4.     An agency is required to undertake a supplemental NEPA analysis when it

makes “substantial changes in the proposed action that are relevant to environmental

concerns” or there are “significant new circumstances or information relevant to

environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R.

§ 1502.9(c)(1). NMFS prepared a Supplemental Information Report and concluded that

preparing a supplemental environmental assessment was unnecessary. Because those

findings are neither arbitrary nor capricious, we hold that the agency’s actions did not

violate NEPA.

       AFFIRMED.




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