Alaska Oil and Gas Association; v. WILBUR ROSS, U.S. Secretary of Commerce;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALASKA OIL AND GAS ASSOCIATION;
et al.,
Plaintiffs-Appellees,
v.
WILBUR ROSS, ** U.S. Secretary of
Commerce; et al.,
Defendants-Appellants,
and
CENTER FOR BIOLOGICAL
DIVERSITY,
Intervenor-Defendant.
No. 16-35380
D.C. Nos. 4:14-cv-00029-RRB
4:15-cv-00002-RRB
4:15-cv-00005-RRB
MEMORANDUM*
ALASKA OIL AND GAS ASSOCIATION;
et al.,
Plaintiffs-Appellees,
v.
No. 16-35382
D.C. Nos. 4:14-cv-00029-RRB
4:15-cv-00002-RRB
4:15-cv-00005-RRB
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** Wilbur Ross is substituted for his predecessor, Penny Pritzker, as U.S.
Secretary of Commerce. Fed. R. App. P. 43(c)(2).
FILED
FEB 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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WILBUR ROSS, ** U.S. Secretary of
Commerce; et al.,
Defendants,
and
CENTER FOR BIOLOGICAL
DIVERSITY,
Intervenor-Defendant-
Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted December 4, 2017
Submission Vacated December 5, 2017
Resubmitted February 12, 2018
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and BOULWARE, ***
District Judge.
This appeal arises from the National Marine Fisheries Service’s (“NMFS”)
decision to list the Arctic subspecies of the ringed seal (the Phoca hispida hispida)
as threatened under the Endangered Species Act (“ESA”). The NMFS and other
defendants (collectively “Defendants”) appeal the district court’s grant of summary
judgment in favor of Alaska Oil and Gas Association and other plaintiffs
*** The Honorable Richard F. Boulware II, United States District Judge
for the District of Nevada, sitting by designation.

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(collectively “Plaintiffs”). Defendants argue the district court: (1) misapplied
Section 4 of the ESA by requiring long range quantitative data that is not available;
(2) erred by considering the agency’s decision not to adopt a protective regulation
under Section 4(d) of the ESA; and (3) mistakenly ruled that the NMFS finding
that the Arctic ringed seal is likely to be in danger of extinction by 2100 because of
sea ice loss and other climate change impacts was not supported by the record and
was too speculative. We have jurisdiction under 28 U.S.C. § 1291, and now
reverse.
1. Our recent decision in Alaska Oil & Gas Ass’n et al. v. Pritzker, 840 F.3d
671 (9th Cir. 2016), cert. denied, — S.Ct. —, 2018 WL 491542 (“AOGA I”),
controls the outcome of this case. “[U]nder the law-of-the-circuit rule, we are
bound by decisions of prior panels unless an en banc decision, Supreme Court
decision, or subsequent legislation undermines those [prior] decisions.” Miranda
v. Selig, 860 F.3d 1237, 1243 (9th Cir. 2017) (citation and quotation marks
omitted). AOGA I addressed the ESA listing of the closely related bearded seals
and adjudicated the same issues on appeal in this case. Though we may have
reached a different conclusion, we are bound by our court’s precedent.
2. The district court misapplied ESA § 4 by requiring quantitative data that
is not available. The district court cannot require the agency to “wait until it ha[s]
quantitative data reflecting the species’ decline, its population tipping point, and

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the exact year in which that tipping point would occur before it could adopt
conservation policies to prevent that species’ decline.” AOGA I, 840 F.3d at 683.
The Arctic ringed seal is “more likely than not” to become endangered in the
foreseeable future. Id. at 684. “Uncertainty regarding the speed and magnitude of
that adverse impact, however, does not invalidate data presented in the
administrative record that reasonably supports the conclusion that loss of habitat at
key life stages will likely jeopardize the [Arctic ringed seal’s] survival over the
next 85 years.” Id. at 683. It was an error to require more definitive quantitative
data about the Arctic ringed seal population and an extinction threshold which
misapplied ESA § 4.
3. The NMFS’s finding—that the Arctic ringed seal was likely to become
endangered within the foreseeable future—was reasonable and supported by the
record. Like the bearded seals in AOGA I, climate change models show the habitat
of the Arctic ringed seals to be diminishing as sea ice recedes. Id. “[T]he IPCC
climate models constitut[e] the best available science and reasonably suppor[t] the
determination that a species reliant on sea ice likely would become endangered in
the foreseeable future.” Id. at 679 (citations and quotation marks omitted).
The NMFS’s reliance on climate change models that project until 2100 was
not arbitrary or capricious. The Final Rule “provided a reasonable and
scientifically supported methodology for addressing volatility in its long-term

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climate projections, and it represented fairly the shortcomings of those
projections—that is all the ESA requires.” Id. at 680 (citation omitted). Bound by
AOGA I, we hold the decision here to list the Arctic ringed seal as threatened was
also supported by the record and was not speculative.
REVERSED and REMANDED.

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