State of Alaska v. Jane Lubchenco , 723 F.3d 1043 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF ALASKA, No. 12-35201
Plaintiff-Appellant,
D.C. Nos.
and 3:10-cv-00271-TMB
3:11-cv-00001-TMB
FREEZER LONGLINE COALITION; 3:11-cv-00004-TMB
ALASKA SEAFOOD
COOPERATIVE; THE GROUNDFISH
FORUM; ALASKA GROUNDFISH
COOPERATIVE; CASCADE
FISHING, INC.; M/V SAVAGE
INC.; OCEAN PEACE, INC.; THE
FISHING COMPANY OF ALASKA,
INC.; ALASKA JURIS, INC.;
ALASKA SPIRIT, INC.,
Washington corporations;
UNITED STATES SEAFOODS, LLC;
ALASKA ALLIANCE, LLC;
ALASKA LEGACY, LLC;
SEAFREEZE ALASKA 1, LLC;
ALASKA VAERDAL, LLC;
IQUIQUE U.S., LLC; UNIMAK
VESSEL, LLC; CAPE HORN
VESSEL, LLC; REBECCA IRENE
VESSEL, LLC; TREMONT VESSEL,
LLC; ARICA VESSEL, LLC,
Washington limited liability
companies; FCA HOLDINGS,
INC., an Alaska corporation;
2 STATE OF ALASKA V. LUBCHENCO
O’HARA CORPORATION, a Maine
corporation; AK VICTORY, INC.,
a Washington corporation,
Plaintiffs,
v.
JANE LUBCHENCO, in her official
capacity as Administrator,
National Oceanic and
Atmospheric Administration;
NATIONAL MARINE FISHERIES
SERVICE; JAMES W. BALSIGER, in
his official capacity as NMFS
Alaska Region Administrator;
PENNY PRITZKER, in her official
capacity as United States
Secretary of Commerce,*
Defendants-Appellees,
OCEANA; GREENPEACE INC.,
Intervenor-Defendants–
Appellees.
*
*
Secretary of Commerce Penny Pritzker is substituted for her
predecessor, Gary Locke, pursuant to Federal Rule of Appellate Procedure
43(c)(2).
STATE OF ALASKA V. LUBCHENCO 3
STATE OF ALASKA; FREEZER No. 12-35203
LONGLINE COALITION,
Plaintiffs, D.C. Nos.
3:10-cv-00271-TMB
and 3:11-cv-00001-TMB
3:11-cv-00004-TMB
ALASKA SEAFOOD
COOPERATIVE; THE GROUNDFISH
FORUM; ALASKA GROUNDFISH
COOPERATIVE; CASCADE
FISHING, INC.; M/V SAVAGE
INC.; OCEAN PEACE, INC.; THE
FISHING COMPANY OF ALASKA,
INC.; ALASKA JURIS, INC.;
ALASKA SPIRIT, INC.,
Washington corporations;
UNITED STATES SEAFOODS, LLC;
ALASKA ALLIANCE, LLC;
ALASKA LEGACY, LLC;
SEAFREEZE ALASKA 1, LLC;
ALASKA VAERDAL, LLC;
IQUIQUE U.S., LLC; UNIMAK
VESSEL, LLC; CAPE HORN
VESSEL, LLC; REBECCA IRENE
VESSEL, LLC; TREMONT VESSEL,
LLC; ARICA VESSEL, LLC,
Washington limited liability
companies; FCA HOLDINGS,
INC., an Alaska corporation;
O’HARA CORPORATION, a Maine
corporation; AK VICTORY, INC.,
a Washington corporation,
Plaintiffs-Appellants,
4 STATE OF ALASKA V. LUBCHENCO
v.
JANE LUBCHENCO, in her official
capacity as Administrator,
National Oceanic and
Atmospheric Administration;
NATIONAL MARINE FISHERIES
SERVICE; JAMES W. BALSIGER, in
his official capacity as NMFS
Alaska Region Administrator;
PENNY PRITZKER, in her official
capacity as United States
Secretary of Commerce,
Defendants-Appellees,
OCEANA; GREENPEACE INC.,
Intervenor-Defendants–
Appellees.
STATE OF ALASKA; ALASKA No. 12-35204
SEAFOOD COOPERATIVE; THE
GROUNDFISH FORUM; ALASKA D.C. Nos.
GROUNDFISH COOPERATIVE; 3:10-cv-00271-TMB
CASCADE FISHING, INC.; M/V 3:11-cv-00001-TMB
SAVAGE INC.; OCEAN PEACE, 3:11-cv-00004-TMB
INC.; THE FISHING COMPANY OF
ALASKA, INC.; ALASKA JURIS, OPINION
INC.; ALASKA SPIRIT, INC.,
Washington corporations;
UNITED STATES SEAFOODS, LLC;
ALASKA ALLIANCE, LLC;
ALASKA LEGACY, LLC;
STATE OF ALASKA V. LUBCHENCO 5
SEAFREEZE ALASKA 1, LLC;
ALASKA VAERDAL, LLC;
IQUIQUE U.S., LLC; UNIMAK
VESSEL, LLC; CAPE HORN
VESSEL, LLC; REBECCA IRENE
VESSEL, LLC; TREMONT VESSEL,
LLC; ARICA VESSEL, LLC,
Washington limited liability
companies; FCA HOLDINGS,
INC., an Alaska corporation;
O’HARA CORPORATION, a Maine
corporation; AK VICTORY, INC.,
a Washington corporation,
Plaintiffs,
and
FREEZER LONGLINE COALITION,
Plaintiff-Appellant,
v.
JANE LUBCHENCO, in her official
capacity as Administrator,
National Oceanic and
Atmospheric Administration;
NATIONAL MARINE FISHERIES
SERVICE; JAMES W. BALSIGER, in
his official capacity as NMFS
Alaska Region Administrator;
PENNY PRITZKER, in her official
6 STATE OF ALASKA V. LUBCHENCO
capacity as United States
Secretary of Commerce,
Defendants-Appellees,
OCEANA; GREENPEACE INC.,
Intervenor-Defendants–
Appellees.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted
December 4, 2012—Seattle, Washington
Filed July 23, 2013
Before: Mary M. Schroeder, M. Margaret McKeown,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Schroeder
STATE OF ALASKA V. LUBCHENCO 7
SUMMARY**
Environmental Law
The panel affirmed the district court’s judgment rejecting
the claims of fishing industry representatives and the State of
Alaska in an action challenging limitations to the commercial
fishing industry the National Marine Fisheries Services
placed on sub-regions of the Pacific Ocean inhabited by the
endangered western Distinct Population Segment of Stellar
sea lions.
The panel held that use of sub-regions did not violate the
Endangered Species Act and that the agency utilized
appropriate standards to find that continuing previous fishing
levels in those sub-regions would adversely modify the
critical habitat and jeopardize the continued existence of the
entire population. The panel also held that the district court
did not err by refusing to order preparation of a Record of
Decision pursuant to the National Environmental Policy Act
because it would be premature in the absence of the agency’s
proposed action based on the Environmental Impact
Statement record it develops.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
8 STATE OF ALASKA V. LUBCHENCO
COUNSEL
Bradley E. Meyen and Andrew R. Naylor, Assistant
Attorneys General, State of Alaska, Department of Law,
Anchorage, Alaska; Murray D. Feldman, Holland & Hart
LLP, Boise, Idaho; Christina F. Gomez, Holland & Hart LLP,
Denver, Colorado, for Plaintiff-Appellant State of Alaska.
Linda R. Larson (argued) and Jessica K. Ferrell, Marten Law
PLLC, Seattle, Washington, for Plaintiffs-Appellants Alaska
Seafood Cooperative, et al.
Ryan P. Steen and Jeffrey W. Leppo, Stoel Rives LLP,
Seattle, Washington, for Plaintiff-Appellant Freezer Longline
Coalition.
Ignacia S. Moreno, Assistant Attorney General, Dean
Dunsmore, John H. Martin, Daniel Pollak, Joan M. Pepin,
and J. David Gunter II (argued), United States Department of
Justice, Environment & Natural Resources Division,
Washington, D.C., for Defendants-Appellees Jane
Lubchenco, et al.
Colin C. O’Brien (argued), Earthjustice, Anchorage, Alaska;
Shawn Eisele and Eric P. Jorgensen, Earthjustice, Juneau,
Alaska, for Intervenor-Appellees Oceana, Inc. and
Greenpeace, Inc.
STATE OF ALASKA V. LUBCHENCO 9
OPINION
SCHROEDER, Circuit Judge:
The western Distinct Population Segment of the Steller
sea lions (“wDPS”) live in the great northern Pacific Ocean
region off Alaska, and they were declared endangered in
1997. More recently, in two of the seven sub-regions they
inhabit, they have been experiencing population declines
because they have been showing signs of nutritional stress.
In 2010, the National Marine Fisheries Service (“NMFS” or
“the agency”) therefore limited commercial fishing in those
waters, causing representatives of the fishing industry and the
State of Alaska (“Plaintiffs”) to file this action challenging
the limitations.
The plaintiffs’ principal argument is that the NMFS
violated the Endangered Species Act (“ESA”) because it
based the fishing restrictions on declines in sub-regions rather
than in the entire population of the endangered species.
Plaintiffs also contend the agency utilized the wrong
standards in measuring the effects of continued fishing and
failed to find a sufficient causal link between authorizing
fisheries and the population decline. We hold that use of sub-
regions did not violate the ESA and that the agency utilized
appropriate standards to find that continuing previous fishing
levels in those sub-regions would adversely modify the
critical habitat and jeopardize the continued existence of the
entire population. We therefore affirm the district court’s
judgment rejecting plaintiffs’ claims.
10 STATE OF ALASKA V. LUBCHENCO
I. BACKGROUND
A. Statutory Framework
This case involves the interaction of three statutes: the
Magnuson-Stevens Fisheries Conservation Act (“MSA”), the
ESA, and the National Environmental Policy Act (“NEPA”).
The first concerns management of fisheries, and the others
concern more generally the environmental consequences of
government actions. Plaintiffs claim NMFS violated all three
in its promulgation of a 2010 Biological Opinion (“BiOp”)
reducing commercial fishing in wDPS habitat.
The MSA governs the federal management of fisheries in
various waters off the United States and establishes regional
councils that are responsible for the sustainable management
of fisheries. 16 U.S.C. § 1852(h). These councils create
fishery management plans, which are prepared using
scientific evidence and are geared toward ensuring
conservation of the fisheries. Id. § 1853. The Secretary of
Commerce must approve the management plans, which can
include, among other things, limitations on or closure of
fishing in designated zones. Id.
The ESA requires the Secretaries of Interior and
Commerce to list endangered species and designate their
critical habitats. 16 U.S.C. § 1533(c). Section 4(f) of the
ESA requires the Secretary of Commerce to design and carry
out “recovery plans” and to implement programs to conserve
the species under section 7(a)(1). 16 U.S.C. §§ 1533(f),
1536(a)(1). Section 7(a)(2) of the ESA mandates that federal
agencies ensure that actions they take will not “jeopardize the
continued existence of any endangered species or threatened
STATE OF ALASKA V. LUBCHENCO 11
species or result in the destruction or adverse modification of
habitat of such species.” 16 U.S.C. § 1536(a)(2).
Under the ESA, when a governmental entity plans to take
action that may impact an endangered species, it must consult
with the agency that has authority over the species. The
consulted agency must then prepare a BiOp to determine
whether the planned action will either likely jeopardize the
species’s continued existence or adversely modify its critical
habitat. See id.; Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., 524 F.3d 917, 924 (9th Cir. 2008). If either
of those criteria is met, the agency may suggest a “reasonable
and prudent alternative” (“RPA”), which is designed to avoid
jeopardy or adverse habitat modification. 16 U.S.C.
§ 1536(b)(3)(A); Nat’l Wildlife Fed’n, 524 F.3d at 925.
The NMFS in this case stands at the intersection of the
MSA and the ESA. Its duty is to ensure that actions taken by
the regional councils, including fishery management plans, do
not jeopardize the continued existence of a threatened or
endangered species or adversely modify critical habitat of an
endangered species. See Greenpeace v. Nat’l Marine
Fisheries Serv. (“Greenpeace IV”), 237 F. Supp. 2d 1181,
1185 (W.D. Wash. 2002). In this case it must evaluate the
effect of the fishing plans on the wDPS and its habitat.
The third statute, NEPA, requires study of the
environmental effects of any government action. 42 U.S.C.
§ 4332(C). Under NEPA, an agency planning an action may
use an Environmental Assessment (“EA”) to determine
whether the proposed action, including an RPA, would have
a significant environmental impact. 40 C.F.R. § 1501.4. If
the action would have such an effect, the agency must prepare
an Environmental Impact Statement (“EIS”). Id. If it would
12 STATE OF ALASKA V. LUBCHENCO
not, no EIS is required. An EIS must describe the
environmental consequences of the governmental action and
the alternatives that were considered by the agency. When an
agency makes a decision after preparation of an EIS, it must
prepare a Record of Decision (“ROD”), stating its decision,
the alternatives it considered, and how its decision minimizes
environmental harms. 40 C.F.R. § 1505.2.
In this case, the operation of these statutes has a profound
impact on both the Steller sea lions and on fishing interests
because the statutes deal with the habitat in which sea lions
live. This habitat includes their food sources, and, as a result,
the resources available for commercial fishing.
Environmental groups, the State of Alaska, and fishing
industries, therefore, have all long been concerned about how
the federal government applies these statutes in the waters off
Alaska, and their concerns have led to a decade of litigation
concerning the scope of federal regulation of these fisheries.
B. History of Regulation of Fisheries and wDPS
The regulation at issue in this case has centered on the
Bering Sea/Aleutian Islands and Gulf of Alaska regions,
which are home to Steller sea lions and to commercial
fisheries that are governed by the MSA. See Greenpeace v.
Nat’l Marine Fisheries Serv. (“Greenpeace I”), 55 F. Supp.
2d 1248, 1252 (W.D. Wash. 1999). By 1990, there had been
a decline in the sea lion population over a thirty-year period,
so the NMFS listed the entire Steller sea lion population as
“threatened” under the ESA. Id. at 1254. Seven years later,
because of new research, the agency divided the population
of the Steller sea lions into the eastern Distinct Population
Segment and the wDPS. Id. The new research revealed
genetic differences between the two populations. Id. There
STATE OF ALASKA V. LUBCHENCO 13
were also markedly different survival rates in the two
populations. Therefore, the agency changed the wDPS’s
status to “endangered,” because of the “precipitous, large
population decline” among this segment, contrasted with the
more stable population trend among the eastern population
segment. 62 Fed. Reg. 24,345, 24,354 (May 5, 1997).
The regional council responsible under the MSA for the
areas affected by the agency actions in this case is the North
Pacific Fishery Management Council. It has been preparing
fishery management plans on an annual basis since the MSA
was passed in 1976. These plans set limits on the total
amount of fishing permitted as well as times and areas of
fishery closure, and they allocated the allowable catch among
vessels. Pursuant to the ESA, the Council consulted with
NMFS on the plans, and NMFS prepared BiOps. Up until
1998, NMFS had found that the Council’s fishery
management plans adequately took into account the needs of
the Steller sea lions and that there was no jeopardy to the
species or adverse modification of its habitat as a result of the
fisheries.
In 1998, however, NMFS issued a BiOp that concluded
that the fishing was causing some jeopardy to the species and
adversely modifying its critical habitat. This led to a first
round of litigation concerning regulation of fishing in the
Alaskan waters. Environmental groups, including groups
who are intervenor-defendants in this case, and fishing
industry interests all challenged NMFS’s conclusions
contained in the 1998 BiOp. That earlier litigation resulted
in several district court opinions, Greenpeace I, 55 F. Supp.
2d at 1276; Greenpeace v. Nat’l Marine Fisheries Serv.
(“Greenpeace II”), 80 F. Supp. 2d 1137, 1152 (W.D. Wash.
2000); Greenpeace v. Nat’l Marine Fisheries Serv.
14 STATE OF ALASKA V. LUBCHENCO
(“Greenpeace III”), 106 F. Supp. 2d 1066, 1080 (W.D. Wash.
2000); Greenpeace IV, 237 F. Supp. 2d at 1204, which led to
revisions of the BiOp with respect to fishery management.
In addition to reviewing fishery management pursuant to
the ESA and MSA, NMFS was also required by the ESA to
plan for sea lion population recovery. In 1992, NMFS
promulgated a recovery plan for Steller sea lions pursuant to
section 4 of the ESA. The agency did so using scientific
experts working with interested parties, including fishing
interests.
When, in 1997, NMFS divided the sea lion population
into eastern and western distinct population segments,
separate recovery plans were required for each of the two
species. The most recent Recovery Plan for the wDPS was
published in 2008 and divided the wDPS into seven sub-
regions to monitor the species’s progress. NMFS concluded
in the Plan that “it was important to consider sub-population
vital rates and demographic characteristics when considering
the status of recovery of the western DPS” because sub-
regional impacts “could indicate that extinction risk may still
be high.”
The Plan further established specific criteria that had to be
met before the wDPS could be downlisted or delisted. To
downlist the wDPS to “threatened” or to delist it entirely, the
Plan required progress in growth of the wDPS population as
a whole, and stable or increasing populations in five of the
seven sub-regions. The Plan further mandated that the
species could not be delisted if the wDPS population in any
two adjacent sub-regions declined “significantly” or if the
population in a single sub-region declined more than 50%.
The Recovery Plan itself is not challenged here, nor is there
STATE OF ALASKA V. LUBCHENCO 15
any dispute that the wDPS as a whole is not meeting the
recovery criteria set forth in the Plan and therefore remains
endangered.
The decline in the wDPS population and the lack of
robust recovery, despite the extensive efforts since 1990, has
led to concerns about the health of the species and hence to
federally funded research studying possible causes of the
decline, including fishing. The North Pacific Fishery
Management Council, in 2005, cited this new research in
requesting that the NMFS initiate a new consultation pursuant
to the ESA to determine the impact of continued fishing at the
rates authorized by the then-existing fishery management
plans. The Protected Resources Division of NMFS
conducted the study using the new research on the impact of
commercial fishing and other factors on the wDPS
population. During its study, it took into account the 2008
Recovery Plan to determine whether continued fishing would
jeopardize the wDPS or adversely modify the species’s
critical habitat.
This consultation process culminated in NMFS’s
promulgation of a new BiOp in 2010. That BiOp concluded
that continued fishing would have deleterious impacts on the
species and the habitat in which it lives and that, therefore,
greater limitations on commercial fishing were required. The
plaintiffs challenge that BiOp in this action.
C. The Challenged Agency Actions: The 2010 BiOp,
EA and Interim Final Rule
In November 2010, after surveying the new research on
the causes of wDPS’s lack of recovery, NMFS issued the
BiOp pursuant to the ESA and an EA pursuant to NEPA. The
16 STATE OF ALASKA V. LUBCHENCO
BiOp was promulgated after review by the Council and
public comment, including feedback from the fishing industry
plaintiffs here. The BiOp concluded that continuing to
authorize fisheries at the levels previously authorized in the
fishery management plans would both jeopardize the
continued existence of the wDPS and adversely modify its
critical habitat. Relying on the Plan’s geographic divisions,
the BiOp found that the wDPS was experiencing population
declines in two of the sub-regions, although the population
was increasing in four others. The BiOp concluded that these
sub-regional declines caused the entire wDPS population to
fall short of the Recovery Plan’s goal of a statistically
significant increase of the species’s population as a whole.
The agency’s critical finding was that natality rates were
lower for the wDPS than for the eastern population, and that
the most likely explanation for the difference was that
portions of the wDPS were experiencing nutritional stress.
The BiOp concluded that nutritional stress had directly or
indirectly contributed to the reduction in population growth.
It observed that although the nutritional stress hypothesis had
been questioned by some experts, fishery presence in the two
wDPS sub-regions was nevertheless negatively correlated
with population numbers. In other words, as fishing
increased, the wDPS population fell.
With respect to the standard for measuring or determining
adverse habitat modification, the BiOp noted that we had
previously held part of the agency’s regulatory definition of
adverse modification conflicted with the statute. See Gifford
Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d
1059, 1070 (9th Cir. 2004). The agency therefore relied on
the statutory language of the ESA, 16 U.S.C. § 1536(a)(2),
framing the critical question to be whether “the action
STATE OF ALASKA V. LUBCHENCO 17
reduces the value of critical habitat for the conservation of the
species.” Applying this standard, the BiOp found the weight
of evidence suggested that continued authorization of the
fisheries was likely to adversely modify the critical habitat of
the wDPS and jeopardize its continued existence. The BiOp
acknowledged there were potentially multiple factors
contributing to the decline in the wDPS population, but it
found nutritional stress was one contributing cause. Thus the
agency concluded it was mandated by the ESA to take steps
to prevent continued fishing from likely reducing or
negatively affecting the survival and recovery of the wDPS.
The BiOp therefore proposed an RPA that restricted the
activity of several fisheries and closed other fisheries in the
Aleutian Islands region. The RPA recommended closure of
all mackerel and cod fishing in one part of the region and
reducing the catch allowed in others. The RPA recommended
swift implementation to “support the recovery of” the wDPS
population, which so far had not met the criteria outlined in
the Recovery Plan.
Pursuant to NEPA, NMFS also prepared an EA, which
considered various alternatives. NMFS found that of the
various legally permissible alternatives, the RPA was the
least likely to disrupt fishing or reduce the number of jobs
and that the RPA’s fishing restrictions would have no
significant impact on the environment. NMFS therefore
promulgated an interim final rule, implementing the new
restrictions, as described in the RPA. The likelihood of
adverse economic consequences to the fishing industry,
however, prompted this litigation.
18 STATE OF ALASKA V. LUBCHENCO
D. District Court Proceedings
The plaintiffs challenged the agency’s actions under the
Administrative Procedure Act (“APA”), contending that the
BiOp, EA, and finding of no significant impact ran afoul of
the MSA, ESA, and NEPA. The district court granted a
motion by non-profit environmental groups Oceana, Inc. and
Greenpeace, Inc., who had participated in the previous
litigation, to intervene as defendants.
The district court held that the agency applied the correct
standards under the ESA. It ruled that the agency’s
consideration of population declines in two sub-regions was
permissible because these declines implicated the survival
and recovery of the species as a whole. It further held that the
agency properly relied on the statutory definition of adverse
modification and that the agency’s consideration of the
impact of continued fishing on the wDPS’s recovery was
appropriate. The district court rejected plaintiffs’ other ESA
contentions as well, concluding that the RPA was supported
by the record and that the agency was not required to show a
definitive causal connection between authorization of
fisheries and harm to the wDPS.
With respect to NEPA, however, the district court found
that the agency should not have summarily concluded the
restrictions would cause no significant impact, and it ordered
the agency to prepare an EIS. The court refused to enter a
broader injunction that would have also required the agency
to suspend the new restrictions or prepare a ROD.
In this appeal, plaintiffs argue the agency violated the
ESA and that the district court’s NEPA injunction was too
narrow. Plaintiffs contend that the BiOp violated the ESA in
STATE OF ALASKA V. LUBCHENCO 19
relying on trends in two sub-regions rather than considering
population trends of the whole species. They further contend
that the agency should have applied the regulatory definition
of adverse habitat modification that this court has partially
rejected. They additionally argue the agency should have
limited its consideration to possible affirmative harm to the
existing population rather than focusing on the adverse effect
of fishing on the species’s recovery. Plaintiffs also contend
there must be a definitive causal link shown between
authorization of commercial fishing and injury to the wDPS
population or habitat. Plaintiffs finally contend the court
abused its discretion under NEPA by not requiring the agency
to prepare a ROD in addition to requiring an EIS.
Our review of agency actions, including the promulgation
of a BiOp, is narrow. Under the APA, we must determine
only if the agency’s action was arbitrary or capricious—that
is, whether the agency based its decision on the relevant
factors and stated a rational connection between its factual
findings and conclusions. 5 U.S.C. § 706(2)(A); Gifford
Pinchot Task Force, 378 F.3d at 1065.
II. DISCUSSION
A. The Agency’s Reliance on Data in Two of the
Recovery Plan’s Sub-regions Was Not Contrary to
the ESA Because That Data Implicated Recovery
and Survival of the Species as a Whole.
NMFS found in the BiOp that the wDPS population was
declining in two of the Recovery Plan’s seven sub-regions
and that while the population as a whole had experienced
some increase between 2000 and 2008, that increase was not
statistically significant. Plaintiffs challenge the agency’s
20 STATE OF ALASKA V. LUBCHENCO
reliance on population trends in two sub-regions rather than
in the species as a whole.
We have consistently held that the ESA permits agencies
to consider the impact of actions on sub-populations, as long
as such impact would affect the population as a whole. Wild
Fish Conservancy v. Salazar, 628 F.3d 513, 529 (9th Cir.
2010); Gifford Pinchot Task Force, 378 F.3d at 1075. We
recognized that trends with regard to a subset of a species can
provide important indicators about the health of the entire
species. Wild Fish Conservancy, 628 F.3d at 529. Our law
thus supports the agency’s looking to sub-regional declines in
reaching its conclusions that continued fishing would
jeopardize the survival of the wDPS and adversely modify the
wDPS’s critical habitat.
Wild Fish Conservancy illustrates the importance of
considering declining sub-populations. We there held that a
Fish and Wildlife Service BiOp that did not consider the
impact of sub-populational decline on a species as a whole
was inadequate, and therefore arbitrary. The BiOp in that
case dealt with the impact of the Leavenworth National Fish
Hatchery on endangered bull trout population. Id. at 516.
We held that the agency contradicted itself when it suggested
that the declining Icicle Creek sub-population was of
particular importance due to its separation from other parts of
the species but nevertheless found that the decline of this sub-
population would not jeopardize the survival or recovery of
the species as a whole. Id. at 529. Where trends in a sub-
population may affect the entire population, the ESA requires
the agency to consider the effects of the declining sub-
population. Id.STATE OF ALASKA V. LUBCHENCO 21
We also stressed the importance of analysis of the sub-
regional impacts of agency actions in Gifford Pinchot. In that
case, environmental groups objected to three Fish and
Wildlife Service BiOps analyzing the effects of timber
harvests on the Northern Spotted Owl, arguing that the BiOps
did not sufficiently consider local impacts. Gifford Pinchot
Task Force, 378 F.3d at 1075. We held the agency had
adequately taken the local impacts into account. Id. Far from
suggesting that local impacts were irrelevant, we emphasized
the importance of considering such impacts when they are
relevant to the species or habitat as a whole. We stated,
“[f]ocusing solely on a vast scale can mask multiple
site-specific impacts that, when aggregated, do pose a
significant risk to a species.” Id. Plaintiffs’ contention that
the agency should not have considered sub-regional declines
of wDPS is fundamentally at odds with our holding in Gifford
Pinchot.
Plaintiffs nevertheless contend that the agency did not
establish any nexus between the two sub-regions in which
there was population decline and the species as a whole to
justify analysis based on sub-regions. Yet, agency findings
in the BiOp and Recovery Plan provide a clear basis for the
conclusion that sub-regional declines have a profound effect
on the future of the entire species. The Plan explained that
the wDPS’s viability depended on the maintenance of healthy
populations in each of the seven sub-regions in order to
prevent concentration in a smaller area where a single
isolated destructive force could endanger the entire
population. The Recovery Plan concluded that maintaining
independently viable populations is vital because it ensures
that the species will “persist through normal population
variations, as well as through unexpected catastrophic
events.” The Recovery Plan additionally stressed the
22 STATE OF ALASKA V. LUBCHENCO
importance of monitoring on a sub-regional basis because a
declining sub-population could indicate an unpredicted threat
to the species that could spread to other sub-regions. The
Recovery Plan therefore established a goal of no more than
50% decline in any single sub-region before the species could
be delisted.
The analysis of sub-regions in the BiOp yielded
significant information that, in light of the Recovery Plan’s
concerns, led to the conclusion that sub-regional declines
indicated that the entire species was in jeopardy. The agency
found that between 2001 and 2009, there had been a 7%
decline in wDPS’s pup population in the central Aleutian
Islands sub-region and a 43% decline in the western sub-
region. These declines in two sub-regions explained the lack
of a statistically significant increase in the overall wDPS
population and led to the BiOp’s finding that if current
declines in pup population were to continue, wDPS would be
extirpated in these sub-regions. Such extirpation would
render the Recovery Plan’s goals unattainable.
The Recovery Plan thus set a goal of a stable population
to be accomplished through sub-regional monitoring. The
BiOp furnished the supporting statistical analysis, thereby
establishing a nexus between population trends in the sub-
regions and the health of the species as a whole. Therefore
the agency was not arbitrary or capricious in relying on sub-
regional declines to determine whether continued fishing
would jeopardize the species as a whole or adversely modify
its critical habitat.
STATE OF ALASKA V. LUBCHENCO 23
B. The Agency Was Not Required to Utilize a
Partially Discredited Regulatory Standard.
Plaintiffs contend that the agency used the wrong
definition of adverse habitat modification and should have
applied its regulation stating that there is an adverse habitat
modification where there is a “direct or indirect alteration that
appreciably diminishes the value of critical habitat for both
the survival and recovery of a listed species.” 50 C.F.R.
§ 402.02.
The agency did not apply the regulatory definition,
however, because in Gifford Pinchot Task Force, 378 F.3d at1069–72, we held that a portion of the regulation was invalid
as contrary to the statutory language. NMFS stopped using
the regulatory definition after our opinion in 2004 and began
relying on the statute itself. As the agency explained in the
BiOp, “NMFS does not rely on the regulatory definition of
‘destruction or adverse modification’ of critical habitat at 50
CFR 402.02. Instead, we have relied upon the statutory
provisions of the ESA to complete the analysis with respect
to the critical habitat.” We have previously considered and
specifically upheld an agency’s reliance on the statutory
language of the ESA itself when faced with uncertainty about
the vitality of the regulatory definition in light of Gifford
Pinchot. See Butte Envtl. Council v. U.S. Army Corps of
Eng’rs., 620 F.3d 936, 947–48 (9th Cir. 2010). There is no
reason to hold the agency should have gone back to the
questionable regulation here. NMFS asked and answered the
critical question under both the statute and the portion of the
regulation that was not at issue in Gifford Pinchot: whether
reauthorization of the fisheries would adversely modify the
habitat.
24 STATE OF ALASKA V. LUBCHENCO
C. The Agency Properly Considered the Prospects for
the Species’s Recovery in Determining Whether
the wDPS Would be Jeopardized by Continued
Fishing.
Plaintiffs contend that the agency, in the BiOp and RPA,
should not have considered the impact of the proposed action
on the wDPS’s prospects of recovery, and instead should
have focused exclusively on whether continued fishing would
affirmatively harm the existing species and its likelihood of
survival. Under the ESA, the agency must ensure against
government action jeopardizing the continued existence of an
endangered species or harming its habitat. 16 U.S.C.
§ 1536(a)(2). We have held that recovery considerations are
an important component of both the jeopardy and adverse
habitat modification determinations. See Gifford Pinchot
Task Force, 378 F.3d at 1070; Nat’l Wildlife Fed’n, 524 F.3d
at 931–33. The goal of the ESA is not just to ensure survival,
but to ensure that the species recovers to the point that it can
be delisted. Gifford Pinchot Task Force, 378 F.3d at 1070.
Survival and recovery are intertwined and are the
complementary goals of the consultation process. Id.; Nat’l
Wildlife Fed’n, 524 F.3d at 932.
NMFS therefore had to consider whether the proposed
action, continued fishing, could prevent the species from
achieving the Recovery Plan’s goals for delisting. That is
what NMFS did. Relying on the Recovery Plan, the agency
concluded that the fishery reauthorizations would appreciably
diminish the wDPS’s chances of recovery as the fishery could
fully extirpate the species in at least one sub-region. The
agency found that “the extirpation of Steller sea lions in the
western Aleutians would be significant to the western DPS,
STATE OF ALASKA V. LUBCHENCO 25
and is expected to appreciably reduce the likelihood of both
their survival and recovery in the wild.”
D. Plaintiffs’ Specific Criticisms of the Agency’s
Analysis Lack Support in the Record.
Plaintiffs raise a number of criticisms with the agency’s
analytical methodology, claiming each demonstrates the
agency conclusions in the RPA lacked a rational basis. None
of these criticisms is supported by the record.
The first criticism is that the agency used forage
ratios—the ratio of prey required by sea lions to available
fish—to determine the areas in which fishing should be
closed. The use of forage ratios would have been
problematic, because such ratios were already higher in the
areas that were to be affected by the RPA. The agency,
however, did not rely on such ratios, finding that they were
“very difficult to interpret.” The agency instead determined
fishery closures and limitations based on actual population
decline in two sub-regions.
Plaintiffs’ second criticism is that the agency failed to
account for the fact that restrictions on cod fishing could
decrease the number of mackerel, since cod prey on
mackerel, and mackerel are a food source for the wDPS. In
essence, plaintiffs contend the agency should have used a
“multi-species” model in its analysis. The agency, however,
looked to studies that relied on multi-species models, which
took into account this inter-species predation, and single-
species models, which did not. The agency concluded that
the multi-species models were theoretically more accurate but
that they introduced more variables leading to uncertainty.
Faced with competing interests of theoretical accuracy and
26 STATE OF ALASKA V. LUBCHENCO
analytical uncertainty, the agency made a rational choice.
This court will not second guess the agency’s determination,
which is supported by the record. See Ariz. Cattle Growers’
Ass’n v. Salazar, 606 F.3d 1160, 1164 (9th Cir. 2010).
Third, plaintiffs contend that the fact that the areas with
more fishing have had slower wDPS growth does not show
that further fishery restrictions can cause growth to increase.
Yet, the agency did not point to the slower growth in fishing
areas in order to establish causation, but instead used it as an
illustrative example of the correlation between fishing and
population decline. The plaintiffs nevertheless suggest that
even if there is a correlation between increased fishing and
slowing wDPS growth, there is no correlation between the
authorization of increased fishing and slower wDPS growth.
The agency, however, appropriately pointed to the correlation
between areas with more fishing and slower wDPS
population growth to illustrate its larger theory that the
fisheries and the wDPS were in competition for the same
prey.
Plaintiffs’ final criticism is that the agency did not
properly account for killer whale predation. The agency,
however, considered the effect of killer whales, but did not
find it strong enough to outweigh the effect of fishing. Citing
a number of studies regarding killer whales, the agency
specifically looked to the long-term historical trends and
concluded that the studies “argue against the hypothesis that
killer whale predation alone was responsible for the decline”
in population.
Plaintiffs’ specific criticisms of the RPA are therefore not
well taken. They do not undermine the RPA’s analysis in any
way.
STATE OF ALASKA V. LUBCHENCO 27
E. NMFS Was Not Arbitrary or Capricious in
Concluding the Removal of Sea Lion Prey was an
Indirect Effect of Fishery Reauthorization.
Plaintiffs fault the agency denying the reauthorizations
without finding that fisheries were the direct cause of wDPS
nutritional stress. They point to the BiOp’s statement that the
agency did not have the data to demonstrate the extent of
nutritional stress or that such stress was caused by the
fisheries.
The agency was required to ensure that its actions would
not have direct or indirect effects that would jeopardize the
wDPS or adversely modify its critical habitat. 50 C.F.R.
§ 402.02. Applying its regulation, the agency indisputably
found that the fisheries were removing prey species of the
wDPS. It also found evidence of nutritional stress. While the
agency admitted it could not find a direct link between the
fisheries and the species’s decline, it found that the indirect
effect of the fisheries was the removal of wDPS’s food. The
agency was not required to find that the fisheries were the
direct cause of the species’s decline.
F. The District Court Did Not Need to Require a
ROD In Its NEPA Injunction.
The district court granted summary judgment to the
plaintiffs on their claim that the agency violated NEPA by not
issuing an EIS. The district court entered an injunction
requiring the agency to prepare an EIS. On appeal, plaintiffs
seek a broader injunction ordering the agency to also prepare
a ROD. Plaintiffs argue that the ROD is necessary to ensure
that the agency actually considers the information in the EIS.
28 STATE OF ALASKA V. LUBCHENCO
The problem is that because the agency has not yet
prepared the EIS, we do not yet know what final action, if
any, it will propose to take. An injunction ordering a ROD
would be premature in the absence of the agency’s proposed
action based on the EIS record it develops. 40 C.F.R.
§ 1505.2; Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th
Cir. 2009) (requiring injunctions to be narrowly tailored).
The district court did not err in refusing to order a ROD at
this stage.
CONCLUSION
The district court’s order granting summary judgment to
the defendants on the ESA claims and injunction on the
NEPA claims are AFFIRMED.