Center for Biological Diversity v. Dirk Kempthorne ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY; 
PACIFIC ENVIRONMENT,
Plaintiffs-Appellants,
v. No. 08-35402
DIRK KEMPTHORNE, Secretary of the
Interior; UNITED STATES FISH AND
 D.C. No.
3:07-cv-00141-RRB
WILDLIFE SERVICE, OPINION
Defendants-Appellees,
ALASKA OIL & GAS ASSOCIATION,
Defendant-intervenor-Appellee.

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
August 4, 2009—Anchorage, Alaska
Filed December 2, 2009
Before: Jerome Farris, David R. Thompson and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Farris
15759
CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15763
COUNSEL
Brendan R. Cummings, Center for Biological Diversity,
Joshua Tree, California; Robert Clayton Jernigan and Eric P.
Jorgensen, Earthjustice, Juneau, Alaska, for the plaintiffs-
appellants.
David Shilton, Ellen J. Durkee, Kristen L. Gustafson, and
Lori Caramanian, United States Department of Justice, Envi-
15764 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
ronmental and Natural Resources Division, Washington,
D.C.; Ronald J. Tenpas, Assistant Attorney General; Holly
Wheeler, Office of the Solicitor, United States Department of
the Interior, for the defendants-appellees.
Jeffrey W. Leppo, Stoel Rives, Seattle, Washington, for the
intervenor-appellee.
OPINION
FARRIS, Circuit Judge:
I. Background
In August 2006, the United States Fish and Wildlife Ser-
vice promulgated five-year regulations under the Marine
Mammal Protection Act § 101(a)(5) that authorize for a five-
year period the non-lethal “take” of polar bears and Pacific
walrus by oil and gas activities in and along the Beaufort Sea
on the Northern Coast of Alaska. 50 C.F.R. § 18. The term
“take” means “to harass, hunt, capture, or kill, or to attempt
to harass, hunt, capture, or kill any marine mammal.” 16
U.S.C. § 1362 (13). Under the regulations, individual oil and
gas operators may apply to the Service for a “letter of authori-
zation.” The LOA, if granted, lasts for up to a year.
As of 2002, there were an estimated 2,200 polar bears in
the South Beaufort Sea. Polar bears move according to the
location of sea ice and prey, migrating south in the winter
with the advance of the sea ice and returning north in the sum-
mer with the sea ice’s retreat. They spend most of their time
far offshore in the active ice zone, spending only a limited
time on land to feed, to den, or to travel elsewhere. The preg-
nant females enter “maternity dens” in November, give birth
to about two cubs around the new year and emerge from the
den in March or April. A premature departure endangers the
CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15765
underdeveloped cubs. Most dens are located on pack ice, but
some are located on land. Ringed seal pups are an essential
source of food for polar bears, especially because adult polar
bears require large quantities of seal fat to survive.
Polar bears are vulnerable to climate change. Acute threats
posed by a warming climate include the loss of sea ice habi-
tat; the resulting increased use of coastal environments and
therefore more frequent encounters with humans; changes in
body fitness, particularly reduction of fat stores in denning
females; a decline in cub survival rate; reduction in available
prey such as ringed seals; and increased energetic needs in
hunting for seals as well as traveling and swimming longer
distances due to reduced ice pack. Changes to the polar bear
population have been observed. Distribution has shifted, with
more frequent terrestrial denning, and there have been
declines in physical condition, reproductive success, survival,
and population.
A warming climate poses similar threats to Pacific walrus,
but these threats are not emphasized in the record or in the
party briefs.
The oil and gas industry has conducted exploration, devel-
opment, and production along the Beaufort Sea and the North-
ern coast of Alaska since 1968. The 2006 incidental take
regulations were preceded by similar regulations published in
1993, 1995, 1999, 2000 (twice), and 2003. 58 Fed. Reg. 60,
402 (1993); 60 Fed. Reg. 42, 805 (1995); 64 Fed. Reg. 4, 328
(1999); 65 Fed. Reg. 5, 275 (2000); 65 Fed. Reg. 16, 828
(2000); and 68 Fed. Reg. 66, 744 (2003). Such past regulation
yielded much information about the industry’s interactions
with polar bears and walrus.
Prior to issuing the 2006 regulations, the Service evaluated
the impact of the oil and gas industry on polar bears and wal-
rus. With respect to bears, it found that past interaction has
been “minimal.” Most industry activity is conducted on land,
15766 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
away from the ice floes that polar bears prefer. Therefore,
most encounters are only short-term behavioral disturbances.
It is unlikely that oil and gas activities will physically obstruct
or impede polar bear movement. Since 1993, there have been
no bears killed by industrial activities.
Nevertheless, from 1993 to 2004, there were more than 700
sightings of polar bears related to industrial activities. More
recently, sightings have increased. Production facilities may
negatively affect denning females, with industrial noise caus-
ing females to abandon their dens prematurely and endanger
their offspring. However, industrial noise-producing activity
may need to be very close to the den to cause such a response,
and bears may even acclimate to such noises. The Service
found that the impact would likely be consistent with that dur-
ing previous periods of regulation. The impact would be neg-
ligible.
With respect to walrus, the Service also predicted that the
impact would be negligible. Walrus are uncommon in the
Beaufort Sea. Between 1993 and 2004, only nine were
observed in the area, and there is no evidence that a walrus
has been injured directly during an interaction with the oil and
gas industry.
Pursuant to the National Environmental Policy Act, and
before issuing the final 2006 regulations, the Service pro-
duced an environmental assessment but not an environmental
impact statement. The purpose of the Service’s EA in this
context was not to evaluate “the impact of industry on polar
bears and Pacific walrus”—the regulations themselves serve
that purpose—but rather to “evaluate[ ] the impact of issuing
incidental take regulations” as opposed to permitting indus-
trial activities in the absence of such regulation. With this
understanding, and based on the same information, the Ser-
vice concluded that the incidental take regulation was likely
to have no significant impact on the populations, recruitment,
or survival of polar bears and walrus in the Beaufort Sea
CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15767
region. The EA acknowledged that climate change could
affect the degree of impact on polar bears, but resolved that
the magnitude of this effect was unclear.
Plaintiff Center for Biological Diversity is an organization
devoted to protecting the habitat of endangered species. Plain-
tiff Pacific Environment is a similar organization. Their mem-
bers have viewed polar bears and walrus in the region, enjoy
doing so, and have plans to return. In February 2007, the Cen-
ter, along with Pacific Environment, filed this action alleging
that the Service regulations violate the MMPA and NEPA.
Venue was transferred to the District of Alaska.
Following counter motions for summary judgment and
briefing on the merits, the district court granted summary
judgment to the defendants, upholding the regulations. The
plaintiffs appeal.
II. Standard of Review
Actions of the Secretary of the Interior are reviewed under
the Administrative Procedure Act. Under the Act, we disturb
an agency action only if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” City
of Sausalito v. O’Neill, 386 F.3d 1186, 1206 (9th Cir. 2004);
5 U.S.C. § 706(2)(A) (1980).
Review under this standard is “searching and careful” but
“narrow”; we do not substitute our judgment for that of the
agency. Marsh v. Oregon Natural Resources Council, 490
U.S. 360, 378 (1989). Rather, we are “highly deferential [to
the agency and] presume[ ] the agency action to be valid.”
Independent Acceptance Co. v. California, 204 F.3d 1247,
1251 (9th Cir. 2000) (citation omitted). Such deference is
especially warranted when “reviewing the agency’s technical
analysis and judgments, based on an evaluation of complex
scientific data within the agency’s technical expertise.” Envtl.
Defense Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir. 2003);
15768 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
see also Lands Council v. McNair, 537 F.3d 981, 993 (9th
Cir. 2008).
III. Standing
[1] On the basis of the Supreme Court’s recent decision in
Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009), the
government challenges the Center’s standing to bring suit.
The government did not challenge standing at the district
court, nor did it originally brief the issue of standing before
this court. Nevertheless, “the jurisdictional issue of standing
can be raised at any time.” See United States v. Viltrakis, 108
F.3d 1159, 1160 (9th Cir. 1997).
[2] To demonstrate standing, the plaintiff must allege an
injury in fact to show he has “such a personal stake in the out-
come of the controversy as to warrant his invocation of
federal-court jurisdiction.” Summers, 129 S.Ct. at 1149(emphasis in original) (citation omitted). An organization can
assert the interests of its members. Id. The interest that indi-
viduals have in observing a species or its habitat, “whether
those individuals are motivated by esthetic enjoyment, an
interest in professional research, or an economic interest in
preservation of the species” is sufficient to confer standing.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 582 (1992) (Ste-
vens, J., concurring) (citing Japan Whaling Ass’n v. Am.
Cetacean Soc’y, 478 U.S. 221 (1986)). “[G]eneralized harm
to . . . the environment” is not. Summers, 129 S.Ct. at 1149.
In Summers, conservation organizations challenged regula-
tions that eliminated certain notice and appeal rights with
respect to projects in U.S. National Forests nationwide. 129
S.Ct. at 1147-48. A portion of the suit was settled, but the
organizations continued to challenge the “regulation in the
abstract.” Id. at 1150. In support of standing, the organiza-
tions provided a single affidavit. The affidavit cited an injury
that was unattached to any particular site in the National For-
ests, unrelated to the challenged regulations, and a past injury
CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15769
rather than the imminent injury the plaintiffs sought to enjoin.
Id. Thus, the plaintiffs lacked standing, as they failed to iden-
tify any application of the regulations that “threatens immi-
nent and concrete harm.” Id.[3] Here, the plaintiff members allege that they have
viewed polar bears and walrus in the Beaufort Sea region,
enjoy doing so, and have plans to return. If the plaintiffs’ alle-
gations are true, the Service’s incidental take regulations
threaten imminent, concrete harm to these interests by
destroying polar bears and walrus in the Beaufort Sea. More-
over, these regulations have been and continue to be imple-
mented. Unlike the alleged injury in Summers, this injury is
geographically specific, is caused by the regulations at issue,
and is imminent. The plaintiffs do not challenge the “regula-
tion in the abstract.” The plaintiffs have standing.
IV. Ripeness
[4] The government argues for the first time that the claims
are not ripe for review because they challenge the regulations
on their face and not in the context of any application. Like
standing, ripeness can be raised at any time and is not waiv-
able. See Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 58
n.18 (1993).
[5] A claim is usually ripe “if the issues raised are primarily
legal, do not require further factual development, and the
challenged action is final.” U.S. West Commc’n v. MFS
Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999). In con-
sidering these elements, the “court must evaluate ‘[1] the fit-
ness of the issues for judicial decision and [2] the hardship to
the parties of withholding court consideration.’ ” Id.[6] The government argues that the plaintiffs should chal-
lenge specific LOAs if and when they are promulgated. In
Lujan v. National Wildlife Federation, 497 U.S. 871, 891
(1990), the Supreme Court held that a regulation is usually
15770 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
not ripe until the scope and facts of the controversy are identi-
fied “by some concrete action applying the regulation to the
claimant’s situation in a fashion that harms or threatens to
harm him.”
[7] In spite of the Lujan rule, we have found purely legal
facial challenges of regulations to be ripe. Freedom to Travel
Campaign v. Newcomb, 82 F.3d 1431, 1434-36 (9th Cir.
1996). In Alaska Dep’t of Envtl. Conservation v. EPA, 244
F.3d 748, 750-51 (9th Cir. 2001) we held that whether an
agency action is arbitrary and capricious is a legal question
that would not benefit from further factual development.
Likewise, in Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d
835, 856-57 (9th Cir. 2002), surrounding facts would not have
been beneficial to an organization’s statutory and constitu-
tional challenges to a ban on animal body-gripping traps.
[8] The plaintiffs challenge the incidental take regulations
on their face based on the administrative record as it existed
when the regulations were adopted. As in Alaska Dep’t of
Envtl. Conservation and Nat’l Audobon Soc’y, further factual
development would be of little or no assistance. The Service’s
arbitrariness and capriciousness is a legal question fit for
review.
The government contends that failure to review will cause
no hardship because the regulation does not force the Center
to choose between costly adjustment and the risk of penalty.
Such a choice is the “major exception” to the rule that the reg-
ulation must have applied to the claimant’s detriment, Lujan,
497 U.S. at 891, but not the only exception. Hardship may
result from past or imminent harm caused by the agency’s
adoption of the regulations. See Reno, 509 U.S. at 63 (fact
that plaintiff “would have felt the effects of the [challenged]
regulation” satisfies ripeness).
[9] The Service’s regulation authorizes incidental take that
is contrary to the Center’s interest. The plaintiffs allege that
CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15771
LOAs have been issued. If harm to the plaintiffs’ interests has
not resulted already, it is imminent. Furthermore, the regula-
tion lasts for only five years. 16 U.S.C. § 1371(a)(5)(A)(i).
Given the inherent delay of litigation and the irreparable
nature of environmental impact, the Service’s adoption of the
take regulation would constitute hardship to the Center if
review were withheld. See Amoco Prod. Co. v. Vill. of Gam-
bell, 480 U.S. 531, 545 (1987).
V. Marine Mammal Protection Act
A. “Specified activity” under the MMPA
[10] The MMPA authorizes the Fish and Wildlife Service
(and the National Marine Fisheries Service) to issue regula-
tions that allow the incidental take of marine mammals by
those “engage[d] in a specified activity (other than commer-
cial fishing) within a specified geographic region.” 16 U.S.C.
§ 1371(a)(5)(A)(i). The 2006 regulations permit “oil and gas
exploration, development, and production activities” in the
Beaufort Sea. 50 C.F.R. § 18.123. The plaintiffs argue that
these are too broad to qualify as a “specified activity” under
the MMPA.
[11] The legislative history of MMPA makes clear that the
purpose of the “specified activity” language was to ensure
that the impact of marine mammal takes from a single activity
are “substantially similar.” H.R. Rep. No. 97-228, at 19,
reprinted in 1981 U.S.C.C.A.N. at 1469 (“It is the intention
of the committee that both the specified activity and the speci-
fied region [ ] referred to in section 101(a)(5) be narrowly
identified so that the anticipated effects will be substantially
similar.”). The committee then expressed that “outer conti-
nental shelf oil and gas development” is too broad a term for
purposes of the legislation and should be specified separately
“as, for example, seismic exploration or core drilling.” Id.The committee’s example of outer shelf development was
premised on the notion that the impact on marine mammals
15772 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
of seismic exploration was not substantially similar to the
impact of core drilling. To the extent an impact is similar,
more specific description is unnecessary; the described activ-
ity is sufficiently “specified.”
Congress did not define “specified,” but rather left to the
appropriate agencies the duty to implement the legislation.
Under such circumstances, agency construction is “given con-
trolling weight unless [it is] arbitrary, capricious, or mani-
festly contrary to the statute.” Chevron v. NRDC, 467 U.S.
837, 844 (1984).
The Service defines “specified activity” to mean “[a]ny
activity, other than commercial fishing, which takes place in
a specified geographical region and potentially involves the
taking of small numbers of marine mammals.” 50 C.F.R.
§ 18.27(c). It adds: “[t]he specified activity . . . should be
identified so that the anticipated effects on marine mammals
will be substantially similar.” Id. The Service definition is
neither arbitrary nor capricious. Rather, it strives to match the
purpose of the statute, by defining activities “so that the antic-
ipated effects are substantially similar.” 48 Fed. Reg. 31220,
31224 (July 7, 1983).
Here, the Service found that the impact of all gas and oil
development in the Beaufort Sea is substantially similar; the
impact is negligible. The plaintiffs dispute the merits of the
Service’s conclusion, but have presented no evidence that any
more specifically defined oil and gas activity (such as seismic
exploration or offshore drilling) in the Beaufort Sea has an
impact dissimilar to that of any other more specifically
defined oil and gas activity.
[12] The Service’s regulatory interpretation is not “mani-
festly contrary to the statute.” The MMPA’s parenthetical
exclusion of commercial fishing suggests that it would other-
wise qualify as a “specified activity.” 16 U.S.C.
§ 1371(a)(5)(A)(i). The term “commercial fishing” is quite
CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15773
broad. The term “gas and oil exploration, exploration, and
production activities” is not manifestly broader. It is not too
broad to qualify as a “specified activity” under the MMPA.
B. The Service’s finding of negligible impact under the
MMPA
The Center argues that the Service’s negligible impact find-
ing was arbitrary and capricious because it failed to consider
the combined effects of oil and gas operations on the weak-
ened physical fitness of polar bears due to climate change.
The government argues that the plaintiffs failed to raise this
increased vulnerability argument during the administrative
process. A participant in an administrative process must
“alert[ ] the agency to [their] position and contentions.” Vt.
Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553
(1978). Failure to raise such “particular objections” may
result in “forfeit[ure of] any objection” to the resulting regula-
tion. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 765-66
(2004).
[13] The plaintiffs did not forfeit the objection. The Cen-
ter’s letter to the Service, dated April 21, 2006, incorporated
the Service’s finding that inclusion of the polar bear under the
Endangered Species Act “may be warranted,” and expressly
incorporated the listing petition’s request for protection of the
polar bear. The petition raised the issue of polar bears’ declin-
ing physical fitness due to climate change precisely. Thus, the
Center provided the Service adequate opportunity to consider
the issue. See Portland Gen. Elec. v. Bonneville Power
Admin., 501 F.3d 1009, 1023-24 (9th Cir. 2007).
[14] To authorize incidental takes pursuant to § 101(a)(5)
of the MMPA, the Service must determine that the takes, dur-
ing the five-year term of the regulation, will have a “negligi-
ble impact” on the affected polar bear population. 16 U.S.C.
§ 1371(a)(5)(A)(i)(I). A negligible impact finding is arbitrary
15774 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
and capricious under the MMPA “only if the agency[, inter
alia,] . . . entirely failed to consider an important aspect of the
problem . . . .” See Lands Council, 537 F.3d at 987; Cf. Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983). The plaintiffs claim the Service entirely
failed to consider polar bears’ increased vulnerability due to
climate change.
The government alleges that the Service did analyze the
weakened state of polar bears because it conducted a “cumu-
lative effects analysis” in which it purported to consider “hab-
itat loss due to climate change, hunting, disease, oil spills,
contaminants, and effects on prey species within the geo-
graphic region.” An agency’s blanket statement that it has
considered all evidence is ineffective where the analysis
makes clear that a crucial issue has been overlooked. Cf. Or.
Natural Res. Council Fund v. Goodman, 505 F.3d 884, 893
(9th Cir. 2007).
Here, we need not determine whether the Service actually
analyzed the effects of weakened physical fitness of bears, as
the relationship between such fitness and industrial activities
was speculative. Under the Service’s regulations, to find a
“negligible impact” requires the analysis of those effects that
are “reasonably expected” and “reasonably likely,” but not
those effects that are speculative or uncertain. 50 C.F.R.
§ 18.27(c).
The Center alleges that the bears’ weakened state—such as
the reduced body fat of denning females—makes them more
vulnerable to disturbance impacts from oil and gas activities.
However, the seriousness of industrial disturbance impacts is
subject to legitimate scientific dispute. Industrial noise may
cause females to abandon their dens prematurely, endangering
their offspring. Then again, noise-producing activity may
need to be very close to the den to cause such a response.
Bears may even acclimate to such noises.
CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15775
[15] Reduced physical fitness due to climate change likely
poses a serious threat to the Beaufort Sea polar bear popula-
tion, but the Service could reasonably conclude that such a
threat could not be “reasonably expected” to manifest itself in
the context of regional oil and gas activities. In so concluding,
the Service made scientific predictions within the scope of its
expertise, the circumstance in which we exercise our greatest
deference. Lands Council, 537 F.3d at 993. The Service did
not act arbitrarily and capriciously.
[16] The finding was not arbitrary and capricious for failing
to account for the increased vulnerability of polar bears due
to climate change.
VI. National Environmental Policy Act
NEPA requires the production of an environmental impact
statement for “major Federal actions significantly affecting
the quality of the human environment.” 42 U.S.C. § 4332(C).
An environmental assessment is a “concise public document”
that “[b]riefly provide[s] sufficient evidence and analysis for
determining whether to prepare an [EIS] or a finding of no
significant impact.” 40 C.F.R. § 1508.9 (a); Anderson v.
Evans, 371 F.3d 475, 488 (9th Cir. 2004).
[17] If an agency issues a finding of no significant impact,
“it must supply a ‘convincing statement of reasons’ to explain
why a project’s impacts are insignificant.” Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th
Cir. 1998). Such a statement is necessary to show that the
agency took the requisite “ ‘hard look’ at the consequences of
its action.” Environmental Protection Information Center v.
U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006). A
finding of no significant impact violates NEPA if it “fail[s] to
address certain crucial factors, consideration of which [is]
essential to a truly informed decision.” Found. for N. Am.
Wild Sheep v. U.S. Dept. of Agr., 681 F.2d 1172, 1178 (9th
Cir. 1982).
15776 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
A. Finding of No Significant Impact
The plaintiffs argue that the Service’s finding of no signifi-
cant impact was arbitrary and capricious because it failed to
address “the impacts to polar bears from disturbance by oil
and gas activities in the context of a warming climate.” The
Service’s EA did acknowledge climate change and enumer-
ated its long term effects on polar bears, including “increased
use of coastal environments, increased bear/human encoun-
ters, changes in polar bear body condition, decline in cub sur-
vival, and increased potential for stress and mortality, and
energetic needs in hunting for seals, as well as traveling and
swimming to denning sites and feeding areas.”
[18] The plaintiffs do not allege that the EA’s list is incom-
plete, but rather that the EA failed to synthesize these con-
cerns with the multiplying effects of oil and gas activities.
However, the plaintiffs point merely to evidence that global
warming poses a generalized threat to polar bear populations.
Such evidence does not demonstrate that non-lethal takes
within a particular industry and during a particular period of
time are likely to have significant impact.
[19] The plaintiffs next argue that the Service’s conclusion
“runs counter to the evidence before the agency” because neg-
ative impacts to the South Beaufort Sea polar bears were
already well-documented. Assuming that such impacts were
well-documented, their relationship to oil and gas activities
was not. To the contrary, the administrative record tends to
show that the oil and gas industry has little impact on polar
bears. Not one polar bear death associated with Industry has
occurred during the period covered by incidental take regula-
tions. Interactions between bears and people associated with
Industry have been rare. A typical incidental take provokes
only short-term change and pose little threat to survival and
recruitment.
[20] Furthermore, the EA provides convincing reasons to
believe that incidental take regulations will ameliorate the
CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15777
impact of takes. LOAs include mitigating guidelines that min-
imize disturbances to, among other things, denning females.
These considerations, all explicitly analyzed in the EA, dem-
onstrate that the Service took a “hard look” at the conse-
quences of its actions. Its conclusion was reasonable and not
arbitrary.
B. Failure to produce an EIS
[21] Next, the plaintiffs argue that the Service acted arbi-
trarily in failing to produce an Environmental Impact State-
ment. Such statements are necessary where effects are “highly
uncertain or involve unique or unknown risks.” 40 C.F.R.
§ 1508.27(b)(5). We have held that “regulations do not antici-
pate the need for an EIS anytime there is some uncertainty,
but only if the effects of the project are ‘highly’ uncertain.”
EPIC, 451 F.3d at 1011. The plaintiffs argue that effects of
the incidental take regulation on polar bears were highly
uncertain, because, compared to the circumstances of prior
regulation, bears will be more vulnerable.
We have upheld agency predictions in spite of some uncer-
tainty. In EPIC, predicted harm to spotted owls was not so
uncertain as to require an EIS where the U.S. Forest Service
forecasts were based on the extrapolation of existing owl nest-
ing data. 451 F.3d at 1010. In Native Ecosystems Council v.
U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005), the effects
of forest management projects could be reasonably predicted
based on prior data.
[22] Here, the Service made reasonable predictions on the
basis of prior data, as did the agencies in EPIC and Native
Ecosystems. Although the specter of climate change made the
Service’s prediction less certain than it would be otherwise,
such uncertainty is not “high uncertainty,” but only that quo-
tient of uncertainty which is always present when making pre-
dictions about the natural world.
15778 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
[23] Again, we grant the Service great deference as it made
a scientific prediction within the scope of its technical exper-
tise. Lands Council, 537 F.3d at 993. The Service committed
no clear error in deciding not to produce an EIS. See Wetlands
Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105,
1114-15 (9th Cir. 2000).
AFFIRMED.