                                                                            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                           NOT FOR PUBLICATION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


                                            3
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




                                            4
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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