Center for Biological Diversity v. Zinke et al

Filing 54

ORDER: IT IS ORDERED as follows:CBDs Motion for Summary Judgment at Docket 35 is DENIED and Defendants Motion for Summary Judgment at Docket 39 is GRANTED.The Clerk of Court is directed to enter a final judgment accordingly. (See Order for details). Signed by Judge Sharon L. Gleason on 09/26/2019. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

CENTER FOR
BIOLOGICAL DIVERSITY,
Plaintiff,
v.
Case No. 3:18-cv-00064-SLG
DAVID BERNHARDT, in his
official capacity as Secretary of
the United States Department of
the Interior, et al.,
Defendants.
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
Before the Court at Docket 35 is Plaintiff Center for Biological Diversity
(“CBD”)’s Motion for Summary Judgment Pursuant to Federal Rule of Civil
Procedure 56. Also before the Court at Docket 39 is Defendants’ Motion for
Summary Judgment.

Amici curiae Alaska Oil and Gas Association and the

American Petroleum Institute (“Amici”) filed a brief in support of Defendants’
position at Docket 51. Oral argument was not requested as to either motion and
was not necessary to the Court’s determinations.
STATUTORY AND REGULATORY BACKGROUND
The Endangered Species Act (“ESA”) requires the Secretary of the Interior
to “determine whether any species is an endangered species or a threatened

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species . . . .” 1 The Secretary may base this determination on any of the following
five factors affecting a species: “the present or threatened destruction,
modification, or curtailment of its habitat or range;” “overutilization for commercial,
recreational, scientific, or educational purposes;” “disease or predation;” “the
inadequacy of existing regulatory mechanisms;” or “other natural or manmade
factors affecting its continued existence.” 2 The Secretary must rely only on “the
best scientific and commercial data available to him after conducting a review of
the status of the species . . . .” 3
“To the maximum extent practicable, within 90 days after receiving” a
petition to list a species, “the Secretary shall make a finding as to whether the
petition presents substantial scientific or commercial information indicating that the
petitioned action may be warranted” (“90-day finding”). 4 If the Secretary finds that
action may be warranted, “the Secretary shall promptly commence a review of the
status of the species concerned” and, within 12 months of receiving the petition,

1

16 U.S.C. § 1533(a)(1). “The term ‘endangered species’ means any species which is in danger
of extinction throughout all or a significant portion of its range other than” certain insects. 16
U.S.C. § 1532(6). “The term ‘threatened species’ means any species which is likely to become
an endangered species within the foreseeable future throughout all or a significant portion of its
range.” 16 U.S.C. § 1532(20).
2

16 U.S.C. § 1533(a)(1).

3

16 U.S.C. § 1533(b)(1)(A).

4

16 U.S.C. § 1533(b)(3)(A).

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find that listing is warranted, not warranted, or warranted but precluded by pending
listing proposals (“12-month finding”). 5
FACTUAL BACKGROUND
On February 8, 2008, CBD filed with the Secretary a petition to list the Pacific
walrus as threatened or endangered. 6

On December 3, 2008, CBD filed a

complaint in the district court, seeking, in relevant part, a declaration that the
Secretary was in violation of the ESA for failing to make a 90-day finding and a
permanent injunction compelling the Secretary to make and publish a 90-day
finding. 7 On May 14, 2009, the parties filed a settlement agreement in that case
in which the U.S. Fish and Wildlife Service (“FWS”) agreed to publish a 90-day
finding as to the Pacific walrus by September 10, 2009. 8 On May 18, 2009, the
district court adopted the parties’ settlement agreement. 9
On September 10, 2009, FWS issued its 90-day finding, in which it
determined that “the petition presents substantial scientific or commercial

5

16 U.S.C. § 1533(b)(3)(A)–(B); 50 C.F.R. § 424.14(h)(2)(iii).

6

PW0000100 (Letter); PW0000001–99 (Petition).

7

Complaint at 12, Ctr. for Biological Diversity v. Kempthorne, 3:08-cv-00265-JWS (D. Alaska
Dec. 3, 2008), ECF No. 1.

8

Stipulated Settlement Agreement at 3, Ctr. for Biological Diversity v. Kempthorne, 3:08-cv00265-JWS (D. Alaska May 14, 2009), ECF No. 11. Although the ESA directs the Secretary of
the Interior to make the determination of whether a species is threatened or endangered, the
Secretary has delegated this responsibility to FWS. 50 C.F.R. § 402.01(b).
9

Judgment, Ctr. for Biological Diversity v. Kempthorne, 3:08-cv-00265-JWS (D. Alaska May 18,

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information indicating that listing this subspecies may be warranted.” FWS then
initiated “a status review to determine if listing the Pacific walrus [was]
warranted.” 10 On August 27, 2010, CBD and FWS filed an amended settlement
agreement that required FWS to submit its 12-month finding by January 31,
2011. 11 On September 1, 2010, the district court adopted the January 31, 2011
deadline. 12
On February 10, 2011, FWS issued a 12-month finding as to the Pacific
walrus (“2011 Listing Decision”). 13 FWS determined that listing the Pacific walrus
was warranted but precluded by pending listing proposals. 14 The 45-page decision
included subsections summarizing information pertaining to each of the five factors
enumerated in 16 U.S.C. § 1533(a)(1), upon which the Secretary may base a
determination as to the relevant species. 15 The agency “identif[ied] loss of sea ice

2009), ECF No. 12.
10

PW0000102 (90-Day Finding).

11

Stipulation to Amend Settlement Agreement at 5, Ctr. for Biological Diversity v. Kempthorne,
3:08-cv-00265-JWS (D. Alaska Aug. 27, 2010), ECF No. 13.

12

Order at 1, Ctr. for Biological Diversity v. Kempthorne, 3:08-cv-00265-JWS (D. Alaska Sept. 1,
2010), ECF No. 14.

13

PW0000106–51 (12-Month Finding on a Petition to List the Pacific Walrus as Endangered or
Threatened, 76 Fed. Reg. 7634 (Feb. 10, 2011)); see also PW0010524–10686 (Jan. 2011
Status Review of the Pacific Walrus).
14

PW0000106; 16 U.S.C. § 1533(b)(3)(A)–(B); 50 C.F.R. § 424.14(h)(2)(iii).

15

PW0000111–146. See supra at n. 2 and accompanying text (enumerating factors).

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in the summer and fall and associated impacts . . . and subsistence harvest . . . as
the primary threats to the Pacific walrus in the foreseeable future.” 16

It

characterized these threats as being “of sufficient imminence, intensity, and
magnitude to cause substantial losses of abundance and an anticipated population
decline of Pacific walrus that will continue into the foreseeable future.” 17 FWS also
explained the reasoning for its preclusion finding and its efforts to make
expeditious progress on listing-candidate species. 18 In making its findings, FWS
determined that the “foreseeable future” extended from 2011 to the year 2100. 19
On July 12, 2011, in the course of multidistrict litigation related to several
listing petitions, CBD and FWS reached a settlement, in which FWS agreed to
submit either a proposed rule or a not-warranted finding as to the Pacific walrus by
September 30, 2017. 20 On September 9, 2011, the district court adopted the
parties’ settlement agreement. 21

16

Id.

17

PW0000146.

18

PW0000147–51.

19

PW0000113–16.

20

Joint Motion for Approval of Settlement Agreement at 4, In re: Endangered Species Act
Section 4 Deadline Litigation – MDL No. 2165, 1:10-mc-00377-EGS (D.D.C. July 12, 2011),
ECF No. 42.

21

Order, In re: Endangered Species Act Section 4 Deadline Litigation – MDL No. 2165, 1:10mc-00377-EGS (D.D.C. Sept. 9, 2011), ECF No. 56.

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In May 2017, FWS issued its Final Species Status Assessment for the
Pacific Walrus (“2017 Species Status Assessment” or “Assessment”). 22 The 297page Assessment includes six sections: an introduction, a description of the Pacific
walrus, analyses of current and future resource conditions, an analysis of the
viability of the Pacific walrus, and management recommendations. 23

The

Assessment, relying largely on studies published subsequent to the 2011 Listing
Decision, “found that environmental changes over the last several years such as
sea ice loss and associated stressors are impacting Pacific walruses, but that other
stressors that were identified in 2011 have declined in magnitude.” 24 It further
determined that “the population is currently under low levels of stress and
recovering from a population decline that started about 1980 . . . .” 25

The

Assessment also found that the “availability of preferred sea ice habitat for Pacific
walruses would decline in the future” and consequently increase stressor levels,
indicating likely “future population declines.” 26
However, the 2017 Species Status Assessment also explained that other
stressors, such as oil and gas exploration and subsistence harvesting, had

22

PW0000392–688 (2017 Species Status Assessment).

23

PW0000395–98.

24

PW0000399.

25

Id.

26

PW0000400.

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declined since 2011. It noted that Pacific walruses had “adapted to living in a
dynamic environment and have demonstrated the ability to adjust their distribution
and habitat use patterns in response to recent shifting patterns of sea ice,” but that
“increasing abundance stressors will negatively affect the population but to an
unknown extent.” 27

Regarding its “foreseeable future” conclusions, the 2017

Assessment noted that FWS “included projections out to 2100 but caution that
[FWS] had low confidence in [its] ability to predict how Pacific walruses will respond
to stressor levels projected for 2100.” 28
Although the 2017 Final Species Status Assessment acknowledged that
FWS’s 2011 Listing Decision “concluded that listing the Pacific walrus as
threatened or endangered was warranted but precluded,” it did not discuss the
2011 process other than to conclude that “[a]s identified in our 2011 assessment,
declining sea ice habitat has the greatest potential to negatively affect the Pacific
walrus population. Other stressors identified in our 2011 assessment as potentially
having a population-level effect have diminished over the last six years.” 29
On October 5, 2017, FWS issued a second 12-month finding as to the Pacific
walrus (“2017 Listing Decision”). 30 In contrast to the 2011 Listing Decision, the

27

PW0000399–400.

28

PW0000399.

29

PW0000399, PW0000514.

30

PW0000795–822 (12-Month Findings on Petitions to List 25 Species as Endangered or

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2017 Listing Decision contained only three pages of analysis related to the Pacific
walrus. 31 However, the 2017 Listing Decision stated that “[a] detailed discussion
of the basis for [FWS’s] finding can be found in the [2017 Species Status
Assessment] and other supporting documents.” 32 Also, in contrast to the 2011
Listing Decision, the 2017 Listing Decision did not include discrete subsections
addressing each of the five factors enumerated in 16 U.S.C. § 1533(a)(1). Instead,
the 2017 Listing Decision purported to “summarize . . . the information on which
[FWS] based its evaluation of the five factors . . . to determine whether
the . . . Pacific walrus . . . [met] the definition of ‘endangered species’ or
‘threatened species.’” 33 In the 2017 Listing Decision, FWS determined that “the
threats affecting the Pacific walrus are not, singly or in combination, of sufficient
imminence, intensity, or magnitude that the species is in danger of extinction or is
likely to become endangered in the foreseeable future throughout all or a
significant portion of its range.” 34 Although FWS concluded that “the Pacific walrus
will experience a future reduction in availability of sea ice,” the agency was “unable

Threatened Species, 82 Fed. Reg. 46,642–44 (Oct. 5, 2017)). The 2017 Listing Decision also
addressed several other species not relevant to this case.
31

PW0000819–21.

32

PW0000821.

33

PW0000796. The decision also indicated that “[m]ore-detailed information about [the Pacific
walrus] is presented in the [Assessment].” PW0000796.
34

PW0000821.

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to reliably predict the magnitude of the effect and the behavioral response of the
Pacific walrus to this change,” and determined that it lacked “reliable information
showing that the magnitude of this change could be sufficient to put the subspecies
in danger of extinction now or in the foreseeable future.” 35 FWS further found that
“sufficient resources remain to meet the subspecies’ physical and ecological needs
now and into the future.” 36 Also, in contrast to its determination in 2011 that the
foreseeable future extended to the year 2100, FWS determined that the
“foreseeable future” extended only to the year 2060. 37 Based on the foregoing,
FWS concluded that “listing the Pacific walrus as an endangered or threatened
species under the Act is not warranted at this time.” 38
On March 8, 2018, CBD initiated this action. The Complaint alleges five
claimed violations of the ESA and the Administrative Procedure Act (“APA”) in the
2017 Listing Decision: a failure to explain FWS’s change in position from the 2011
Listing Decision as to whether listing is appropriate as to the Pacific walrus (Claim
I); an improper foreseeable future analysis due to its defining the foreseeable
future as 2060 rather than 2100 (Claim II); lack of consideration of the best
available scientific data and reaching conclusions contrary to the best available

35

Id.

36

Id.

37

PW0000820.

38

PW0000821.

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scientific data (Claim III); improper and inconsistent treatment of scientific
uncertainty (Claim IV); and a failure to consider whether any distinct population
segment qualified for listing or whether the Pacific walrus might be threatened or
endangered “in a significant portion of its range” (Claim V). 39
On February 26, 2019, CBD filed its summary judgment motion. 40 On April
16, 2019, Defendants did the same. 41
JURISDICTION
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
LEGAL STANDARD
A court reviews an agency’s compliance with the ESA under the
Administrative Procedure Act. 42 A reviewing court may not set aside an agency's
decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 43 A court’s review of whether an agency action is arbitrary
and capricious should be “searching and careful,” but “narrow,” as a court may not

39

Docket 1 (Complaint) at 23–27, ¶¶ 97–122.

40

Docket 35 (CBD’s Mot. for Summ. J). CBD’s Memorandum in Support of its Motion for
Summary Judgment is at Docket 36.
41

Docket 39 (Defendants’ Mot. for Summ. J.). Defendants’ Memorandum in Support of their
Motion for Summary Judgment is at Docket 40.

42

Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1109 (9th Cir. 2012)
(“The Administrative Procedure Act (‘APA’) governs our review of agency decisions under the
ESA.”).
43

5 U.S.C. § 706(2)(A).

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substitute its judgment for that of the administrative agency. 44 “Where the agency
is acting on the frontiers of developing science, [a court’s] deference is at its
highest level.” 45

A court

will reverse a decision as arbitrary and capricious only if the agency
relied on factors Congress did not intend it to consider, entirely failed
to consider an important aspect of the problem, or offered an
explanation that runs counter to the evidence before the agency or is
so implausible that it could not be ascribed to a difference in view or
the product of agency expertise. 46
DISCUSSION
CBD asserts that FWS acted “arbitrar[ily], capricious[ly], and in violation of
the ESA and basic tenets of administrative law” in several respects. 47 Although
the parties’ briefing does not directly track the five claims set forth in CBD’s
Complaint, the Court addresses each claim in the Complaint in the context of the
applicable argument from the briefing.

44

Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

45

Helping Hand Tools v. U.S. Envtl. Prot. Agency, 848 F.3d 1185, 1192 n.8 (9th Cir. 2016) (citing
Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).

46

Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009) (internal quotation marks
omitted) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008), overruled on other
grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)).

47

Docket 36 at 8.

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Claim I:

The adequacy of FWS’s explanation for the 2017 Listing
Decision’s reversal of the 2011 Listing Decision’s warrantedbut-precluded determination

In Claim I, CBD asserts that FWS “failed to provide the requisite explanation
for its reversal” from the warranted-but-precluded finding in the 2011 Listing
Decision to the not-warranted finding in the 2017 Listing Decision. 48 According to
CBD, FWS’s “abrupt reversal was not accompanied by any acknowledgment from
the Service that it was, in fact, changing course, nor by an explanation of how the
scientific rationale that underpinned the 2011 warranted determination was no
longer valid.” 49 Plaintiffs maintain that “[a]part from stating in the procedural history
section that the Service made a warranted determination in 2011, the 2017 Finding
does not acknowledge the 2011 warranted determination at all.” 50
a. Applicability of FCC v. Fox Television Stations, Inc.
In FCC v. Fox Television Stations, Inc., the Supreme Court set out a fourpart test to be used when determining whether an agency’s policy change complies
with the APA. 51 When an agency changes its policy, the
policy change complies with the APA if the agency (1) displays
“awareness that it is changing position,” (2) shows that “the new policy
is permissible under the statute,” (3) “believes” the new policy is
48

Docket 36 at 7.

49

Docket 36 at 18–19.

50

Docket 36 at 19.

51

556 U.S. 502, 515–16 (2009).

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better, and (4) provides “good reasons” for the new policy, which, if
the “new policy rests upon factual findings that contradict those which
underlay its prior policy,” must include “a reasoned explanation . . . for
disregarding facts and circumstances that underlay or were
engendered by the prior policy.” 52
As an initial matter, Defendants assert that “the 2011 finding was not a final
listing decision, and it therefore could not have been ‘reversed’ in 2017.” 53 Instead,
they maintain that “the 2011 warranted-but-precluded finding is properly viewed as
a step in an evolving deliberative process that culminated in FWS’s final decision
in 2017 that listing the species was not warranted.” 54 Defendants contend that
FCC v. Fox is not applicable, because “FWS has not reversed a final policy or
regulation”—rather, it “completed the next step in the listing process.” 55
The Ninth Circuit recently addressed the applicability of FCC v. Fox in a
similar context in Center for Biological Diversity v. Zinke, which involved FWS’s
decades-long consideration of the Arctic grayling’s listing status. 56

In relevant

part, FWS determined in 2010 that listing the Arctic grayling was warranted but

52

Organized Vill. of Kake v. U.S. Dep't of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (omission in
original) (quoting FCC v. Fox, 556 U.S. at 515–16).

53

Docket 40 at 15–16.

54

Docket 40 at 16.

55

Docket 40 at 16–17.

56

900 F.3d 1053, 1060–62 (9th Cir. 2018).

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precluded. 57 In 2014, FWS reached the opposite conclusion, finding that listing
the Arctic grayling was not warranted. 58 The Ninth Circuit applied the FCC v. Fox
standard to FWS’s 2014 listing determination in addressing this policy change. 59
In light of Center for Biological Diversity v. Zinke, the Court finds that FCC
v. Fox applies in addressing FWS’s 2017 Listing Decision for the Pacific walrus. 60
Because certain factual findings underlying FWS’s 2017 Listing Decision conflict
with factual findings used to support the 2011 Listing Decision, FWS was required
to provide a “reasoned explanation” for its change in position. 61 FWS may support
its policy reversal by citing factual circumstances that have changed since its prior

57

Id. at 1061.

58

Id. at 1062.

59

Id. at 1067–68 (“When an agency changes a policy based on factual findings that contradict
those on which the prior policy was based, an agency must provide a ‘reasoned explanation . . .
for disregarding facts and circumstances that underlay or were engendered by the prior policy.’”
(omission in original) (quoting FCC v. Fox, 556 U.S. at 515–16)); see also id. at 1070 (“Because
the 2010 Finding indicated that listing the arctic grayling was warranted irrespective of the
Vatland study and recognized the ability of arctic grayling to migrate to tributaries, the 2014
Finding was required to provide a reasoned explanation for FWS's change in position.” (citing
Organized Vill. of Kake v. U.S. Dep't of Agric., 795 F.3d 956, 966 (9th Cir. 2015))).

60

Although Defendants acknowledge that “the Ninth Circuit . . . applied the test from Fox
Television . . . to a 12-month finding” in CBD v. Zinke, they contend that their statutory
arguments were not presented to the Circuit in that case. Docket 40 at 17 n. 3. But this Court is
bound by the Ninth Circuit’s clear application of the FCC v. Fox test to an agency’s change in
position regardless of the underlying arguments that were presented, or not presented, to the
Circuit Court. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a [circuit]
panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless
overruled by the court itself sitting en banc, or by the Supreme Court.”).

61

FCC v. Fox, 556 U.S. at 515–16.

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action. 62
b. Whether FWS provided a “reasoned explanation” for its policy change
CBD maintains that FWS’s implicit “explanation [for its change in policy] is
inadequate and fails to rely upon the best available science.” 63 For example, CBD
maintains that FWS’s conclusion regarding the Pacific walrus’s adaptability to
coastal haulouts “contradicts the Service’s own conclusions in the [2017] Status
Assessment, where the Service itself acknowledged that increased use of land will
result in increased mortality, energetic stress, and prey depletion.” 64 CBD also
contends that “the science supporting the walrus listing has only grown stronger
since [FWS’s] 2011 Finding,” 65 including the accelerating impacts of sea ice loss
and ocean warming on the Pacific walrus population and its prey. 66
CBD maintains in its reply that the 2017 Species Status Assessment “cannot

62

See Ctr. for Biological Diversity v. Zinke, 900 F.3d at 1071–72 (determining that “increase in
population” of Arctic grayling subsequent to prior decision supported “sufficient ‘reasoned
explanation’ for FWS's change in position” (citing Organized Vill. of Kake, 795 F.3d at 968)); see
also New England Power Generators Ass'n, Inc. v. Fed. Energy Regulatory Comm'n, 879 F.3d
1192, 1201 (D.C. Cir. 2018) (“So long as any change is reasonably explained, it is not arbitrary
and capricious for an agency to change its mind in light of experience, or in the face of new or
additional evidence, or further analysis or other factors indicating that the agency's earlier
decision should be altered or abandoned.”).
63

Docket 36 at 20.

64

Docket 36 at 20 (citing PW0000435; PW0000470); see also Docket 49 at 12–13 (CBD’s
Reply).

65

Docket 36 at 20–21 (citing PW0000231–58).

66

Docket 36 at 21–22 (citing PW0017911–28; PW0016104–19; PW0011259; PW0019817;
PW0013776; PW0019520–29).

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provide the rationale for [FWS’s] change in position.” 67 The Court has found no
case law indicating that a court’s determination of whether an agency has
explained its change in position cannot include a document incorporated by
reference into a listing decision, such as the 2017 Species Status Assessment.
Accordingly, in determining whether FWS adequately explained its 2017 Listing
Decision, the Court will consider not only the 2017 Listing Decision but also the
2017 Species Status Assessment. 68
Both FWS’s position in 2011 and its position in 2017 are based on FWS’s
analysis of the five factors enumerated in 16 U.S.C. § 1533(a)(1). In the 2011
Listing Decision, FWS concluded that three of the five factors—“the present or
threatened destruction, modification, or curtailment of its habitat or range;”
“overutilization for commercial, recreational, scientific, or educational purposes;”
and “the inadequacy of existing regulatory mechanisms”—supported a warrantedbut-precluded finding. 69 In contrast to the 2011 Listing Decision, the 2017 Listing
Decision does not include subsections explicitly addressing each of the factors.
However, the 2017 Listing Decision identified the factual considerations FWS took

67

Docket 49 at 11.

68

The 2017 Listing Decision expressly incorporates the 2017 Species Status Assessment: “A
detailed discussion of the basis for this finding can be found in the pacific walrus speciesspecific assessment form and other supporting documents . . . .” PW0000821.

69

PW0000112–46.

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into account in its analysis which addressed each of the factors. 70 Moreover, the
2017 Assessment that was incorporated into the 2017 Listing Decision contains
analyses of those same five factors, both current and into the future. 71

By

comparing FWS’s factual findings as to the three statutory factors underlying its
2011 position with the factual findings used to support the 2017 Listing Decision,
the Court can determine whether FWS has provided a “reasoned explanation” for
its change in policy. The Court addresses each of those factors in turn.
In its 2011 Listing Decision, FWS determined that the first 16 U.S.C.
§ 1533(a)(1) factor—“the present or threatened destruction, modification, or
curtailment of its habitat or range”—constituted “a threat to the Pacific walrus.” 72
The 2011 Listing Decision analyzed the effects of loss of sea ice, ocean warming,
and ocean acidification on the Pacific walrus’s habitat or range. 73 The 2011 Listing
Decision concluded that ocean warming or acidification did not constitute threats
to the Pacific walrus now or in the foreseeable future. 74 However, it concluded that

70

PW0000819–21.

71

PW0000424–37 (current habitat conditions); PW0000437–41 (current harvest rates);
PW0000441–44 (current disease and predation); PW0000459 (current regulatory mechanisms);
PW0000444–000059 (current other natural or manmade factors); PW0000478–95 (future
habitat conditions); PW0000495 (future harvest rates); PW0000495–97 (future disease and
predation); PW0000497–501 (future other natural or manmade factors).
72

PW0000121.

73

PW0000112–26.

74

PW0000125. (“[W]e conclude that ocean warming and ocean acidification are not threats to
the Pacific walrus now or in the foreseeable future, although we acknowledge that the general

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“the loss of sea-ice habitat creates several stressors on the Pacific walrus
population,” including “localized prey depletion; increased energetic costs to reach
prey, resulting in decreased body condition; calf abandonment; increased mortality
from stampedes, especially to females, juveniles, and calves; and increased
exposure to predation and hunting.” 75 Accordingly, the 2011 Listing Decision
found that “[i]ncreased direct and indirect mortality, particularly of calves, juveniles,
and females, will result in a declining population over time.” 76
The 2017 Assessment and the 2017 Listing Decision also address the
effects of the loss of sea-ice habitat and corresponding increases in the use of
coastal haulouts by the Pacific walrus. In the Assessment, FWS found that “the
probability of direct mortality or injury due to trampling during stampedes is greater
at coastal haulouts than it is on pack ice.” 77 It also noted that hunting and predation
at haulouts could increase Pacific walrus mortality. 78 The 2017 Assessment found
that if “[l]arge, sustained calf mortality events” occurred “in combination with a large
harvest of adult females,” the Pacific walrus would likely suffer “significant

indications are that impacts appear more likely to be negative than positive or neutral.”).
75

PW0000121.

76

Id.

77

PW0000435.

78

PW0000435–36.

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population-level effects.” 79 It also found, however, that haulout mortality trends
“suggest that management programs in the US and Russia have been effective at
reducing disturbances and haulout related mortalities in recent years.” 80

In

reaching this conclusion, the 2017 Assessment relied on recent studies and data,
including minimum estimates of Chukchi sea haulout mortalities from 2007 to
2016. 81 It also cited a non-binding resolution adopted by the Eskimo Walrus
Commission in 2008 that advised hunters to exercise “extreme caution” when
hunting at haulouts. 82 Additionally, the 2017 Assessment found that “it is difficult
to determine whether or not overall predation rates of Pacific walruses by polar
bears have increased” and that “population-level effects remain uncertain.” 83 With
respect to the effect of projected future losses of sea-ice habitat, the 2017
Assessment found “that as the ice free season increases in the future, Pacific
walruses will spend more time at coastal haulouts resulting in increasingly negative
effects on the population manifested through increased energy expenditure and
disturbance related mortality events.” 84 It also found, however, that the magnitude

79

PW0000437.

80

Id.

81

PW0000436–37.

82

PW0000435–36.

83

PW0000444.

84

PW0000495.

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of the predicted effect on energy expenditure remains unknown. 85 Additionally,
the 2017 Assessment concluded that “Pacific walruses habitat needs will be met
during the core breeding and birthing portions of the annual cycle” through 2060. 86
These conclusions were based on recent studies and data, including models
incorporating data collected after 2011. 87
Based on the foregoing, the Court finds that FWS has provided a reasoned
explanation for its change of position as to the “present or threatened destruction,
modification, or curtailment of its habitat or range” factor. Even though FWS did
not expressly acknowledge or articulate that it was changing its position, the 2017
Assessment contains a detailed analysis of the same considerations that FWS
relied upon in its 2011 analysis. Furthermore, much of FWS’s 2017 analysis relies
on data and studies that were developed after the 2011 Listing Decision was
issued; this new information reflected that some relevant factual circumstances
had changed since FWS’s 2011 Listing Decision. 88
In its 2011 Listing Decision, FWS also determined that the second 16 U.S.C.

85

PW0000494.

86

See PW0000487–88.

87

See PW0000486, 494.

88

See Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1071–72 (9th Cir. 2018) (holding that
reliance on recent population data and new scientific opinions about local water temperature
“provide[d] a sufficient ‘reasoned explanation’ for FWS’s change in position” regarding available
Arctic Grayling habitat in the Centennial Valley).

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§ 1533(a)(1) factor—“overutilization for commercial, recreational, scientific, or
educational purposes”—was “likely to threaten the Pacific walrus in the
foreseeable future.” 89

FWS analyzed the effects of recreation, scientific, and

educational uses of the Pacific walrus; U.S. import and export; commercial harvest;
and subsistence harvest. 90 FWS concluded in 2011 that of these activities, only
subsistence harvesting would be likely to threaten the Pacific walrus in the
foreseeable future. 91 FWS predicted that future subsistence harvest of Pacific
walruses would “continue at similar levels”; that as the Pacific walrus population
declines “the proportion of animals harvested will increase relative to the overall
population”; and that “this continued level of subsistence harvest will become
unsustainable.” 92
The 2017 Assessment also analyzed the impact of subsistence harvesting
on the Pacific walrus. In the Assessment, FWS concluded that “[t]he subsistence
harvest of Pacific walruses has been declining since 1990 with the greatest
declines in the US harvest since 2013.” 93

89

PW0000130.

90

PW0000126–130.

91

PW0000129–30.

92

FWS also noted that the current

PW0000130.

93

PW0000469. For example, in its 2011 Listing Decision, the FWS found that the average
harvest from 2000 to 2008 was 5,285 walruses per year. PW0000127. In its 2017 Assessment,
FWS found that from 2010 to 2014 the annual harvest ranged from 2,723 to 4,927 walruses per

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subsistence harvest was at the “[l]owest level[] on record.” 94 It further noted that
changing weather patterns and ice conditions may have negatively impacted
hunters’ ability to harvest Pacific walruses for subsistence purposes. 95

FWS

expressly acknowledged that in 2011 it had “assumed that total harvest levels
would remain the same as observed at that time and that with a declining
population, harvest rates may become unsustainable in the future,” and that in
2017 it had altered its analytical approach in light of the “great deal of uncertainty
surrounding predictions of Pacific walrus harvest levels into the future.” 96
In summary, FWS has provided a reasoned explanation for its 2017
assessment of the “overutilization for commercial, recreational, scientific, or
educational purposes” factor. FWS explicitly acknowledged that it had changed
its methodology for evaluating the effect of subsistence harvesting, and explained
its rationale for doing so. The 2017 Assessment relied on recent observations and
data, including data collected after the 2011 Listing Decision was issued. Recent
developments suggest that at least one of FWS’s 2011 predictions—that
subsistence harvests of the Pacific walrus would continue at similar levels—was

year. PW0000439–440.
94

PW0000467; see also PW0000514 (“[S]ubsistence harvest levels are at historically low levels
and not considered to be a significant abundance stressor at the present time.”).
95

PW0000514.

96

PW0000495.

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erroneous. 97 Accordingly, FWS has adequately explained its change in position
as to this factor.
In its 2011 Listing Decision, FWS also determined that the fourth 16 U.S.C.
§ 1533(a)(1) factor—“the inadequacy of existing regulatory mechanisms”—
weighed in favor of a warranted-but-precluded determination. 98 FWS then found
that “[w]hile laws and regulations exist that help to minimize the effect of other
stressors on the Pacific walrus, there are no regulatory mechanisms in place that
address the primary threats of habitat loss due to sea-ice declines . . . and
subsistence harvest.” 99 Accordingly, in 2011 FWS found that “existing regulatory
mechanisms do not remove or reduce the threats to the Pacific walrus from the
loss of sea-ice habitat and overutilization.” 100
The 2017 Assessment contains a brief analysis of existing regulatory
protections for the Pacific walrus. 101

Like the 2011 Listing Decision, the

Assessment noted that both international and domestic laws and regulations
“provide conservation benefits and protections to the Pacific walrus population.” 102

97

See PW0000467.

98

PW0000132–37.

99

PW0000137.

100

Id.

101

PW0000459.

102

Id. (noting the Marine Mammal Protection Act, 16 U.S.C. §§ 1361–1423h).

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But the 2017 Assessment did not contradict the 2011 Listing Decision’s findings
that “there are no existing regulatory mechanisms to effectively address loss of
sea-ice habitat,” or that “there are currently no tribal, Federal, or State regulations
in place to ensure that, as the population of walrus declines in response to
changing sea-ice conditions, the subsistence harvest of walrus will occur at a
reduced and sustainable level.” 103
Taken as a whole, however, the 2017 Listing Decision and Assessment
nevertheless provide a “reasoned explanation” for FWS’s implicit conclusion that
this factor does not weigh in favor of a conclusion that listing is warranted. From
the 2011 Listing Decision, it is clear that FWS’s conclusion that existing regulatory
mechanisms are inadequate was contingent upon its finding that the first and
second statutory factors also constituted threats to the Pacific walrus. 104 And as
noted above, FWS has adequately explained its 2017 conclusion that those two
factors do not constitute threats to the Pacific walrus.
In summary, the 2017 Listing Decision constitutes a change in policy from
the 2011 Listing Decision, and the change rests in part on “upon factual findings

103

PW0000136, 137. The 2017 Assessment does note that “in 2009–2015 haulout
management programs in Russia and the U.S. reduced the number of [Pacific walrus]
mortalities range wide,” but does not explain what these programs were. PW0000436.
104

See PW0000137 (“[W]e conclude that the existing regulatory mechanisms do not remove or
reduce the threats to the Pacific walrus from the loss of sea-ice habitat and overutilization.”
(emphasis added)).

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that contradict those which underlay [FWS’s] prior policy.” 105

Accordingly,

pursuant to FCC v. Fox, FWS was required to provide “good reasons” for the
policy, including “a reasoned explanation . . . for disregarding facts and
circumstances that underlay or were engendered by the prior policy.” 106 FWS has
met that burden. The 2017 Assessment and 2017 Listing Decision contain a
detailed analysis of the ESA factors relevant to the 2017 determination, including
many of the same underlying factual considerations that FWS took into account
when issuing the 2011 Listing Decision. Although FWS certainly could have
provided a more explicit recognition and discussion of the policy change, the Court
is able to discern the basis for the agency’s 2017 listing determination. 107
Accordingly, the Court finds that FWS has provided the requisite “reasoned
explanation” for its change in policy.
c. The remaining FCC v. Fox elements
In addition to a “reasoned explanation” for a policy change, FCC v. Fox
requires that an agency “(1) display[] ‘awareness that it is changing position,’ (2)
show[] that ‘the new policy is permissible under the statute,’ [and] (3) ‘believe[]’ the

105

Organized Vill. of Kake v. U.S. Dep't of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (quoting
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009)).

106

Id. (omission in original) (quoting FCC v. Fox, 556 U.S. at 515–16).

107

Cf. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (“We will . . . ‘uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.’” (quoting Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974))).

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new policy is better.” 108 FWS’s 2017 Listing Decision acknowledged its 2011
“finding that listing the Pacific walrus as an endangered or threatened species was
warranted.” 109 FWS’s 2017 Listing Decision is also permissible under the ESA,
and it is clear that FWS believes its new policy is better. 110
Based on the foregoing, the Court will grant summary judgment to
Defendants on Claim I, as FWS has adequately explained its change in position
on the listing of the Pacific walrus.
Claim II: Defining the “foreseeable future” as 2060, rather than 2100
In Claim II, CBD alleges that FWS “arbitrarily defined the ‘foreseeable future’
for determining the walrus’s risk of extinction from climate change as 2060,” rather
than 2100. 111 CBD also maintains that FWS’s decision represents a change from
its 2011 decision, in which it characterized the “foreseeable future” as the year
2100, but that the agency provided no explanation for that change in position. 112
Defendants explain that “FWS does not dispute that the best available science on

108

Id. (quoting FCC v. Fox, 556 U.S. at 515–16).

109

PW0000819.

110

PW0000821. Organized Village of Kake, 795 F.3d at 967 (assuming the Department of
Agriculture believed its new policy was better “because it decided to adopt it”).

111

Docket 36 at 7–8; see also Docket 49 at 11–12.

112

Docket 49 at 11–12.

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sea-ice loss allows FWS to foresee the threat out to 2100.” 113 Rather, FWS was
uncertain “about the magnitude of effect that climate change will have on the full
suite of environmental conditions (e.g., benthic productivity) or how the species will
respond to those changes,” particularly after 2060. 114
The Ninth Circuit appears to have adopted the FCC v. Fox analysis when
considering whether an agency’s change in its determination of the timeframe of
the “foreseeable future” complies with the APA. In Alaska Oil & Gas Association
v. Pritzker, the Circuit considered whether the National Marine Fisheries Service’s
“use of longer-term climate projections diverge[d] from its previous practice of
setting the year 2050 as the outer boundary of its ‘foreseeable future’ analysis’”
when making a listing decision regarding a subspecies of the Pacific bearded
seal. 115 In finding that the Service’s foreseeable-future policy change was neither
arbitrary nor capricious, the Pritzker Court reasoned that the Service
“acknowledge[d] that its interpretation represent[ed] a change in agency policy,”
“provide[d] a thorough and reasoned explanation,” and the new policy was
“consistent with the ESA’s mandate.” 116 The elements addressed by the Ninth

113

Docket 40 at 21.

114

PW0000820; see also id. (“We find that beyond 2060 the conclusions concerning the impacts
of the effects of climate change on the Pacific walrus population are based on speculation,
rather than reliable prediction.”).

115

Alaska Oil & Gas Ass'n v. Pritzker, 840 F.3d 671, 681 (9th Cir. 2016).

116

Id. at 682. The Circuit also noted that it applies “the same standard of review whether an

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Circuit in Pritzker track the elements set forth in FCC v. Fox. 117 Accordingly, the
Court considers whether FWS, in changing its interpretation of the “foreseeable
future” from 2100 to 2060 for the Pacific walrus listing decision, met the standards
set forth in FCC v. Fox. 118
The Court finds that FWS displayed some awareness that it was changing
position as to the cutoff date for the “foreseeable future.” Although neither the
2017 Species Assessment nor 2017 Listing Decision expressly states that FWS
had changed its position on this topic, the Listing Decision acknowledges that FWS
“included projections out to 2100 in our analysis, [but] considered 2060 as the
foreseeable future timeframe for this analysis.” 119
The Court also finds that FWS showed that the policy of using 2060 as the
foreseeable future timeframe is permissible under the ESA.

An Interior

Department internal guidance document, to which the Ninth Circuit has recently
cited, specifies that FWS’s “interpretation of the ‘foreseeable future’ must be
supported by reliable data regarding ‘threats to the species, how the species is

agency issues a new policy or changes a previous policy position,” referencing the FCC v. Fox
standard. Id. at 681.
117

Compare id. at 681–82 with FCC v. Fox, 556 U.S. at 515–16.

118

Alaska Oil & Gas Ass’n, 840 F.3d at 681–82.

119

PW0000821; see also PW0000476 (2017 Assessment noting that “[t]he Science Team
generally felt that forecasts of Pacific walrus’s responses to various environmental changes up
to 2060 were more reliable tha[n] those beyond that time period.”).

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affected by those threats, and how the relevant threats operate over time.’” 120
Here, the 2017 Listing Decision explained that FWS was uncertain “about the
magnitude of effect that climate change will have on the full suite of environmental
conditions (e.g., benthic productivity) or how the [Pacific walrus] will respond to
those changes” after 2060. 121 In short, FWS’s “foreseeable future” determination
is species-specific, and tied to the agency’s ability to predict the effect of
environmental change on the Pacific walrus.
Nor is FWS’s use of the year 2100 as the “foreseeable future” in its 2011
Listing Decision as to the Pacific walrus determinative. The ESA requires the
Secretary to make listing determinations “solely on the basis of the best scientific
and commercial data available . . . .” 122 This standard allows FWS to consider data
that has become available subsequent to a previous listing decision as to that
species. As discussed throughout this order, FWS’s 2017 Listing Decision relied
on post-2011 data from varied sources regarding the Pacific walrus’s adaptability

120

Alaska Oil & Gas Ass'n, 840 F.3d at 682 (emphasis added) (quoting U.S. Dep’t of the Interior,
Memorandum on the Meaning of “Foreseeable Future” in Section 3(20) of the Endangered
Species Act, No. M–37021 (Jan. 16, 2009)). But see Docket 49 at 12 (“The Service’s citation to
the “M-Opinion”—a memo from the Office of the Solicitor regarding the meaning of “foreseeable
future”—in its briefing . . . cannot save the agency’s failure to explain its change in position,
especially since the M-Opinion existed at the time of the Service’s 2011 Finding.”).

121

PW0000820 (emphasis in original). In its 2017 Assessment, FWS “made projections at a 15year time step, which is roughly a Pacific walrus generation length . . . .” PW0000476.

122

16 U.S.C. § 1533(b)(1)(A); see also Alaska Oil & Gas Ass'n, 840 F.3d at 681 (“[T]he agency
may determine the timeframe for its ‘foreseeable future’ analysis based upon the best data
available for a particular species and its habitat.”).

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and population status. 123 And the 2017 Listing Decision stated that FWS scientists
“generally felt that forecasts of Pacific walrus’s responses to various environmental
changes up to 2060 were more reliable tha[n] those beyond that time period.” 124
In light of FWS’s reliance on new data and scientific opinions as to the Pacific
walrus, its decision to select the year 2060 as the “foreseeable future” was
permissible under the ESA under any deference standard. 125
The Court also finds that FWS believes that using the year 2060 as the
foreseeable future is better than using the year 2100. 126 FWS recognized in the
2017 Listing Decision that its scientists believed forecasts to 2060 were more
reliable than those to 2100. 127 FWS found that using the year 2060 allowed it to
make better predictions, since it had “less confidence in [its] ability to predict the

123

See supra at 18–23.

124

PW0000476.

125

District courts in this Circuit have applied different levels of deference to an agency’s
determination of the “foreseeable future.” See, e.g., W. Watersheds Project v. Ashe, 948 F.
Supp. 2d 1166, 1177 (D. Id. 2013) (applying Chevron deference); Ctr. for Biological Diversity v.
Lubchenco, 758 F. Supp. 2d 945, 963–64 (N.D. Cal. 2010) (determining that Skidmore, rather
than Chevron, is appropriate standard). However, a court need not determine which standard to
apply when the result would be the same under any standard. State of Hawaii ex rel. Attorney
Gen. v. Fed. Emergency Mgmt. Agency, 294 F.3d 1152, 1158 (9th Cir. 2002) (“Deciding how
much deference to grant often presents difficult problems for courts. In this case, however, we
need not make such a determination. Even under the standard that grants maximum deference
to an agency's statutory interpretation[,] . . . FEMA's interpretation of § 5155(c) cannot stand.”
(internal citations omitted)).

126

See Organized Village of Kake v. U.S. Dept. Agriculture, 795 F.3d 956, 967 (9th Cir. 2015)
(assuming the Department of Agriculture believed its new policy was better “because it decided
to adopt it”).
127

PW0000476.

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potential behavioral and physiological adaptations of Pacific walruses, and the
resulting consequences for reproduction and survival under the sea ice conditions
projected for 2100 because of the extensive time between now and 2100.” 128
Finally, the Court finds that FWS provided good reasons to end the
foreseeable future at the year 2060 in its 2017 Listing Decision. The 2017 Listing
Decision states that FWS found “that beyond 2060 the conclusions concerning the
impacts other effects of climate change on the Pacific walrus population are based
on speculation, rather than reliable prediction.” 129 The 2017 Species Assessment
reviews model projections for future global warming trends, sea ice seasons,
Pacific walrus habitat access, ocean warming, benthic productivity, and ocean
acidification. 130 Many of the models project out through the years 2060 and
2100. 131 In its discussion of concerns about speculation related to projections
about the effects of climate change on the benthos, FWS noted that “variation
among Science Team members (uncertainty) also increased with time, particularly

128

Id.

129

PW0000820, 821.

130

PW0000476–493 (citing studies from 2011, 2012, 2013, 2014, 2015, 2016, and 2017, along
with previous studies).

131

See, e.g., PW0000478 (estimating greenhouse gas concentrations through 2060 and 2100);
PW 0000480 (estimating mean number of ice-free months in Bering and Chukchi Seas through
2060 and 2100). But see PW0000492 (estimating Bering Sea benthic infauna mass through
2040).

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in 2100.” 132 And the 2017 Assessment specifically addresses uncertainty, stating
that “model uncertainty in [sea surface temperature] projections arising from the
internal variability of the climate system and initializing conditions outweighs
uncertainties associated with the alternative scenarios to about mid-century, but
by late century scenario uncertainly takes over.” 133
FWS adequately explained its decision to use the year 2060 as the
timeframe for its foreseeable future analysis. The Court finds that determination
was neither arbitrary nor capricious.

In addition, the Court finds that FWS

adequately complied with Fox v. FCC in making this policy change, although the
agency could have been far more explicit in acknowledging and explaining its
decision. 134 Based on the foregoing, the Court will grant summary judgment to
Defendants on Claim II.
Claim III:

The adequacy of FWS’s consideration of the Best Available
Scientific Data

In Claim III, CBD alleges that FWS “reached unfounded conclusions
contrary to the available evidence.” 135

132

PW0000493.

133

CBD asserts that FWS “irrationally

PW0000507 (citing a 2016 study).

134

Cf. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins., Co., 463 U.S. 29, 43
(1983) (“We will . . . ‘uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.’” (quoting Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974))).
135

Docket 36 at 8.

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concluded that the Pacific walrus could adapt to massive losses of habitat.” 136
CBD points to evidence “that the walrus will not be able to adapt” to sea ice loss,
including the lack of observations of breeding from coastal haulouts, and a risk of
“increased mortality, decreased prey availability, increased energetic costs, and
decreased calf survival.” 137
As discussed elsewhere in this order, recent studies support the conclusion
that the Pacific walrus has thus far adapted to its changing circumstances. 138 FWS
acted neither arbitrarily nor capriciously in drawing that conclusion.
CBD also relies on the 2011 Species Status Report and peer reviews of the
draft 2017 status report to assert that Pacific walruses are dependent on sea ice. 139
But these sources do not undermine FWS’s conclusion that Pacific walruses have
so far adapted sufficiently to coastal haulouts. 140 CBD’s speculation about the
possible future impact of stressors on the Pacific walrus population is insufficient
to require a different conclusion than that drawn by FWS based on the best

136

Docket 36 at 32, 32–35 (some capitalizations omitted).

137

Docket 36 at 32 (emphasis in original) (citing PW0000411, PW0000470, PW0029476).

138

Supra, at 18–20.

139

Docket 36 at 36 (citing PW0010553–54; PW0029736; PW0029846; PW0029520;
PW0029504).

140

FWS acknowledged that “population level consequences of the changes in behavior
associated with the use of coastal haulouts needs to be determined.” PW0000422.

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available science.
CBD also maintains that FWS’s “arbitrary conclusions regarding Pacific
walrus population trends and subsistence harvest levels render its decision
unlawful.” 141 CBD relies on two cases to support this point. CBD cites Tucson
Herpetological Society v. Salazar for the proposition that “[i]f the science on
population size and trends is underdeveloped and unclear, the [Service] cannot
reasonably infer that the absence of evidence of population decline equates to
evidence of persistence.” 142 And in its reply, CBD cites to Center for Biological
Diversity v. U.S. Fish & Wildlife Service, which, it asserts, “reject[ed] reliance on
inconclusive data to determine population was ‘basically stable’ and does not
warrant ESA protection.” 143
In Tucson, the Ninth Circuit held that a FWS listing decision was not
supported by the administrative record because the agency had impermissibly
relied on a “single attenuated finding” of population viability to draw a “sweeping
conclusion that viable lizard populations persist throughout most of the species’
current range.” 144

In this case, FWS relied on a relatively strong base of

141

Docket 36 at 37, 37–39 (some capitalizations omitted).

142

Docket 36 at 37 (alterations in original) (quoting 566 F.3d 870, 879 (9th Cir. 2009)).

143

Docket 49 at 22 (quoting 342 F. Supp. 3d 968, 978 (N.D. Cal. 2018), amended in part, No. C
16-06040 WHA, 2018 WL 6067546 (N.D. Cal. Nov. 20, 2018), appeal dismissed, No. 19-15102,
2019 WL 1762190 (9th Cir. Apr. 10, 2019)).

144

Tucson Herp. Soc’y, 566 F.3d at 879.

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information in reaching its 2017 Listing Decision: reduced harvest levels, few
observations of malnourished animals, relatively high reproduction and survival
rates, an apparently adequate prey base, and positive feedback about the Pacific
walrus’s status from Alaska Native hunters. 145 Although uncertainty persists for
the Pacific walrus, the administrative record contains a substantial amount of data
that support FWS’s conclusions.
Center for Biological Diversity v. U.S. Fish & Wildlife Service is also
inapposite. There, the district court vacated FWS’s withdrawal of the Pacific fisher
after concluding that the agency’s assessment of the toxicant exposure stressor
was contrary to the evidence in the administrative record and the agency had
applied “flawed logic regarding population stability.” 146 Pacific fisher populations
had been severely diminished, 147 and the court found that FWS had misinterpreted
the data and ignored contrary scientific evidence when it concluded that the
species’ population levels had stabilized. 148
In this case, FWS considered several sources of data in making its 2017
listing determination as to the Pacific walrus. More importantly, the Pacific walrus

145

PW0000820; PW0000463–70.

146

Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 342 F. Supp. 3d at 976.

147

See id. at 970 (“The Service does not dispute that the Pacific fisher population has declined
dramatically and that it remains notably small.”).

148

Id. at 976–79.

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appears to be in a much stronger position than the Pacific fisher, even by the most
conservative estimates. 149 And FWS recognized the “low precision” of current
Pacific walrus population estimates; it does not appear to have relied on the
population estimates in reaching its 2017 decision. 150
CBD also asserts that recent studies on which FWS relied do not support
the agency’s conclusions.

Specifically, some studies show populations

decreasing. 151 But an author of those studies concluded that “the population
growth rate either increased during 1999–2015 or stabilized at a lesser level of
decline than seen in the 1980s.” 152 Particularly in light of the deference owed to
agencies in making scientific determinations, the Court finds that the administrative
record contains sufficient evidence to support FWS’s conclusions. 153 Based on

149

PW0000416 (citing studies showing an estimated 2006 Pacific walrus population of 129,000,
with 95-percent confidence interval lower endpoint of 55,000, and an estimated 2014 population
of 283,213, with a 95-percent confidence interval lower endpoint of 93,000).

150

PW0000819–20 (“[T]his abundance estimate should be interpreted with extreme caution due
to the preliminary nature of the estimate and the low precision estimates in the model.”).
151

Docket 36 at 38 (citing PW0020841, PW0020857, PW0020865).

152

PW0020841.

153

PW0000417–24. See also Helping Hand Tools v. U.S. Envtl. Prot. Agency, 848 F.3d 1185,
1192 n.8 (9th Cir. 2016) (“Where the agency is acting on the frontiers of developing science, our
deference is at its highest level.” (citing Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council,
Inc., 462 U.S. 87, 103 (1983))).

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the foregoing, the Court will grant summary judgment to Defendants on Claim III.
Claim IV:

FWS’s treatment of uncertainty

In Claim IV, CBD alleges that FWS “treated scientific uncertainty
inconsistently” by “dismissing the negative impacts of sea ice loss beyond 2060
because of uncertainly, while relying on uncertainty to conclude that the walrus
would be able to adapt to the loss of its sea ice habitat, that the population is
approaching stability, and that subsistence harvest would remain sustainable.” 154
As discussed above, FWS had substantial information to support its
conclusion that the current Pacific walrus population has either increased or
stabilized. 155

And FWS’s reliance on that information to determine that the

population had demonstrated resilience, was likely stable, and that survival rates
are increasing, is not irrational.
CBD also maintains that although FWS “repeatedly recognized the
uncertainty regarding future harvest levels,” it “relied on modeling that assumed
harvest levels would be ‘low’ . . . in concluding that future harvest levels would be
sustainable and not threaten the population.” 156 CBD cites to National Wildlife

154

Docket 1 at 26, ¶ 115; see also Docket 36 at 39–41.

155

Supra at 34–37; PW0020841; PW0000417–24; PW0000463–70; but see PW000819–820
(2017 Listing Decision noting that “this abundance estimate should be interpreted with extreme
caution due to the preliminary nature of the estimate and the low precision estimates in the
model.”).

156

Docket 36 at 40 (citing PW0000119; PW0000400; PW0000495; PW0000589); see also
Docket 49 at 22–23.

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Federation v. National Marine Fisheries Service, in which the District of Oregon
found that the NMFS’s treatment of uncertainty was “inconsistent” and selective in
support of NMFS’s conclusion. 157 But here, while recognizing that predicting future
harvest levels was uncertain, 158 FWS relied on the most recent data to draw its
conclusion that harvest levels would remain low: “The Science Team agreed that
it was not possible to predict future harvest levels and therefore decided to set
harvest levels at the current level (low) . . . .” 159 Although FWS could have chosen
a higher estimate for future harvest levels, it was neither arbitrary nor capricious
to take an optimistic approach based on the existing data, particularly when its
2011 prediction that harvest levels would remain stable was proven incorrect. 160
CBD also maintains that FWS improperly relied on uncertainty in limiting the
foreseeable future to 2060. 161 However, the administrative record supports FWS’s
determination that “while it is likely that the increased use of land habitat will have
some negative effects on the population, the magnitude of effect is uncertain given

157

184 F. Supp. 3d 861, 928 (D. Or. 2016).

158

PW0000495.

159

Id.; see also PW0000439 (showing recent decline in harvest levels of Pacific walrus);
PW0000437–40 (discussing harvest levels and relevant data); PW0010577 (describing recent
conservation efforts).
160

See PW0000130 (predicting that subsistence harvest would “continue at similar levels” into
the future).

161

Docket 36 at 7–8.

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the demonstrated ability of Pacific walruses to change their behavior or adapt to
greater use of land.” 162 Based on the foregoing, the Court will grant summary
judgment to Defendants on Claim IV.
Claim V:

The adequacy of FWS’s Listing Analysis

In Claim V, CBD alleges that FWS “did not consider whether the Pacific
walrus might be threated or endangered ‘in a significant portion of its range.’” 163
CBD takes issue with FWS’s abundance model—the pooling of land and ice
habitats—and asserts that FWS should have analyzed land habitats and ice
habitats separately. 164

But the record demonstrates that FWS considered

projections regarding sea-ice habitat and land habitat both individually and
collectively. 165
CBD also maintains that FWS “failed to consider the destruction of land
habitat due to coastal erosion and sea level rise.” 166 CBD has shown that “[c]oastal

162

PW0000820.

163

Docket 1 at 27, ¶ 120.

164

Docket 36 at 35–36 (citing PW0029846 (draft of the 2017 Assessment annotated by FWS)).

165

See PW0000479–87. FWS “defined potential habitat to be marine water, sea ice, or land
within the study area that could be access and used by Pacific walruses within a particular
season.” PW0000483. FWS then presented “results both pooled across potential habitat types
(ice-accessible and land-accessible) and separated by potential habitat type.” Id. FWS
“present[ed] selected pooled results here for simplicity, especially when results varied little
between habitat types” but included in an appendix a “more comprehensive presentation of
results.” Id; see also PW0000616–641 (Appendix B to 2017 Assessment).
166

Docket 36 at 35, 36–37; see also Docket 49 at 21.

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erosion rates in the Arctic are among the highest in the world,” but CBD has not
shown that this coastal erosion will reduce Pacific walrus habitat. 167

Absent

evidence in the record that coastal erosion is an “important aspect” of the Pacific
walrus’s listing status, FWS’s failure to address the issue was not arbitrary or
capricious. 168
Accordingly, the Court will grant summary judgment to Defendants as to
Claim V.
CONCLUSION
In light of the foregoing, IT IS ORDERED as follows:
CBD’s Motion for Summary Judgment at Docket 35 is DENIED and
Defendants’ Motion for Summary Judgment at Docket 39 is GRANTED.
The Clerk of Court is directed to enter a final judgment accordingly.

DATED this 26th day of September, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

167

Docket 36 at 37 (citing PW0026257). FWS argues that “CBD does not identify any evidence
that erosion and sea-level rise will do anything more than just move the coastline and the
location of land-based habitat.” Docket 40 at 39.

168

See Motor Vehicle Mfrs. Assn. of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (agency action is arbitrary and capricious if agency “entirely fail[s] to consider an
important aspect of the problem”). As FWS argues, CBD did not address coastal erosion in its
comments to the agency ahead of the 2017 Listing Decision. Docket 40 at 39; see also
PW0000231–58 (Dec. 21, 2016 Comments); PW0000727–31 (July 28, 2017 Comments).

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