Center for Biological Diversity v. Deb Haaland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY ,
Plaintiff-Appellant,
v.
DEB HAALAND, in her official
capacity as Secretary, U.S.
Department of the Interior; M ARTHA
W ILLIAMS , in her official capacity as
Acting Director, U.S. Fish and
Wildlife Service; UNITED STATES
FISH AND W ILDLIFE SERVICE ,
Defendants-Appellees.
No. 19-35981
D.C. No.
3:18-cv-00064-
SLG
OPINION
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted February 9, 2021
San Francisco, California
Filed June 3, 2021
Before: Andrew D. Hurwitz and Daniel A. Bress, Circuit
Judges, and Clifton L. Corker,* District Judge.
Opinion by Judge Hurwitz
* The Honorable Clifton L. Corker, United States District Judge for
the Eastern District of Tennessee, sitting by designation.

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2 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
SUMMARY**
Endangered Species Act / Administrative Procedure Act
The panel reversed the district court’s grant of summary
judgment to the U.S. Fish & Wildlife Service (the “Service”)
in an action that challenged the Service’s decision reversing
its previous decision that the Pacific walrus qualified for
listing as an endangered or threatened species under the
Endangered Species Act (“ESA”).
The Service issued a 2011 Decision finding that listing
the Pacific walrus as a threatened or endangered species
under the ESA was warranted. In May 2017, in response to
a settlement of an earlier lawsuit, the Service completed a
final species status Assessment. In October 2017, after
reviewing the Assessment, the Service issued a 2017
Decision finding that the Pacific walrus no longer qualified
as a threatened species.
The panel held that the Service did not sufficiently
explain why it changed its prior position, and this constituted
a violation of the Administrative Procedures Act (“APA”).
Specifically, the panel held it was limited to the reasons
given by the agency for its action, and the essential flaw in
the 2017 Decision was the Service’s failure to offer more
than a cursory explanation of why the findings underlying its
2011 Decision no longer applied. The 2017 Decision’s
incorporation of the Assessment did not remedy the
deficiencies. Although the Assessment contained some new
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 3
information, the actual decision document did not explain
why this new information resulted in an about-face from the
Service’s 2011 conclusion that the Pacific walrus met the
statutory criteria for listing.
The panel reversed the summary judgment, with
directions to the district court to remand to the Service to
provide a sufficient explanation of its new position.
COUNSEL
Emily Jeffers (argued) and Kristen Monsell, Center for
Biological Diversity, Oakland, California, for Plaintiff-
Appellant.
Katelin Shugart-Schmidt (argued) and Avi Kupper,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; for Defendants-
Appellees.
Katherine Anne Meyer, Harvard Law School Law & Policy
Clinic, Cambridge, Massachusetts, for Amici Curiae
Scientific Experts Brendan Kelly, Don Perovich, Eric Post,
Timothy Ragen, Carleton Ray, and Mark Serreze.
Ryan P. Steen, Jason T. Morgan, and James C. Feldman,
Stoel Rives LLP, Seattle, Washington, for Amici Curiae
Alaska Oil and Gas Association and American Petroleum
Institute.
Tyson C. Kade, Van Ness Feldman LLP, Washington, D.C.;
Rachael L. Lipinski, Van Ness Feldman LLP, Seattle,
Washington; for Amicus Curiae North Slope Borough.

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4 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
OPINION
HURWITZ, Circuit Judge:
Before us is a challenge to a decision of the United States
Fish and Wildlife Service (“Service”) reversing its previous
decision that the Pacific walrus qualified for listing as an
endangered or threatened species under the Endangered
Species Act of 1973 (“ESA”). We find that the Service did
not sufficiently explain why it changed its prior position.
We therefore reverse the district court’s grant of summary
judgment to the Service.
I
A
The ESA is “the most comprehensive legislation for the
preservation of endangered species ever enacted by any
nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180
(1978). The Act directs the Secretary of the Interior to
protect any “threatened” or “endangered” species. 16 U.S.C.
§ 1533. A species is endangered if it is “in danger of
extinction throughout all or a significant portion of its
range,” and threatened if it 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(6), (20). The Service interprets “foreseeable future”
to mean the period through which it can reliably determine
the threats to a species and the likely consequences. U.S.
Dep’t of the Interior, Office of the Solicitor, Memorandum
on the Meaning of “Foreseeable Future” in Section 3(20) of
the Endangered Species Act, No. M-37021, at 13 (Jan. 16,
2009).

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CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 5
The Secretary must maintain a list of species that qualify
for protection. 16 U.S.C. § 1533(c). A species qualifies if it
is threatened or endangered by: “(A) the present or
threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial,
recreational, scientific, or educational purposes; (C) disease
or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors
affecting its continued existence.” Id. § 1533(a)(1). The
Secretary must make listing determinations “solely on the
basis of the best scientific and commercial data available,”
and “after conducting a review of the status of the species.”
Id. § 1533(b)(1)(A).
Any “interested person” may petition the Secretary to list
a species. Id. § 1533(b)(3)(A). Upon receiving a petition,
the Secretary must determine whether it presents sufficient
information to suggest that listing may be warranted. Id. If
so, the Secretary must review the species’ status and issue a
“12-month finding” that listing is either (1) warranted,
(2) not warranted, or (3) warranted but precluded by higher
priority listing actions. Id. § 1533(b)(3)(B). Species in the
third category become listing candidates, and their status is
reviewed annually pending a final “warranted” or “not
warranted” finding. Id. § 1533(b)(3)(C)(i). The Secretary
has delegated authority to administer the Act with respect to
certain species, including the Pacific walrus, to the Service.
See 50 C.F.R. § 402.01(b).
B
In 2008, the Center for Biological Diversity (“Center”)
petitioned the Service to list the Pacific walrus as threatened
or endangered, citing the claimed effects of climate change
on its habitat. Endangered & Threatened Wildlife and
Plants; 12-Month Finding on a Petition to List the Pacific

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6 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
Walrus as Endangered or Threatened, 76 Fed. Reg. 7,634,
7,634 (Feb. 10, 2011). The Pacific walrus, one of three
walrus subspecies, is the largest pinniped (fin or flipper-
footed marine mammal) in the Arctic. Id. at 7,635. Its
habitat mostly spans the shallow continental shelf waters of
the Bering and Chukchi Seas, where its prey (mostly benthic
invertebrates, like clams) is abundant. Id. at 7,636.
To perform essential life functions, Pacific walruses
must regularly “haul out” of the water, usually in groups
onto broken “pack ice.” Id. at 7,635. The ice provides a
platform from which to hunt prey and travel to new feeding
grounds; habitat on which to breed, birth, and nurse young;
a substrate on which to make long-distance movements; and
a means of avoiding predators. Id. at 7,635, 7,637.
Reflecting their dependence on sea ice, the Pacific
walrus’s distribution varies in response to changes in sea-ice
cover. Id. at 7,636. Walruses typically spend the winter in
the Bering Sea. Id. As sea ice in the Bering Sea deteriorates
in the spring, most walruses migrate north to feeding areas
in the Chukchi Sea, where sea ice has historically remained
year-round. Id. Some, however, remain in the Bering Sea
year-round, coming onto land in “coastal haulouts” when sea
ice is unavailable. Id.
C
In February 2011, after completing a species status
assessment, the Service issued a 45-page decision (the “2011
Decision”), with citations to supporting studies and data,
finding that listing of the Pacific walrus was warranted. Id.
at 7,634, 7,674. Examining the statutory listing factors, the
Service identified a number of threats to the Pacific walrus,
including sea-ice loss through 2100, that would “cause
substantial losses of abundance and an anticipated

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CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 7
population decline . . . that will continue in the foreseeable
future.” Id. at 7,642, 7,674.
First, the 2011 Decision found the loss of sea-ice habitat
threatened the Pacific walrus. Id. at 7,653–54. Climate
models projected a substantial decline in Bering Sea ice for
all months of the year by the late twenty-first century, and
an increasingly long ice-free season in the Chukchi Sea. Id.
at 7,643–44. Without sea ice, walruses would be required to
seek refuge on land, congregating at coastal haulouts. Id. at
7,645. The walrus population would therefore become more
concentrated, leading both to localized prey depletion and
increased energy expenditure as walruses traveled greater
distances to reach prey. Id. at 7,646–49. This would, in turn,
cause decreased body condition, calf abandonment, and
decreased survival. Id. The walruses would also experience
increased mortality and injuries from disturbance-caused
stampedes on land, and increased exposure to predation and
hunting. Id.
Second, the 2011 Decision found that subsistence
hunting threatened the Pacific walrus. Id. at 7,654, 7,658.
The Service estimated average harvests between 2000 and
2008 at 5,285 walruses per year and predicted they would
“continue at similar levels” in the foreseeable future. Id.
at 7,655, 7,658. Although those levels were sustainable
under the current walrus population, the Service predicted
they would continue “independent of future walrus
population trends.” Id. at 7,658. So, if the walrus population
declined for the other predicted reasons, harvests would
become unsustainable. Id.
Third, the 2011 Decision found that existing regulatory
mechanisms to reduce or limit greenhouse gas emissions to
stem sea-ice loss or ensure that harvests decrease at a level
commensurate to predicted population declines “are

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currently inadequate to address [the] threats” of sea-ice loss
and subsistence harvest. Id. at 7,674; see also 7,660–65.1
Although the Pacific walrus qualified for listing, the
need to prioritize more urgent listing actions led the Service
to conclude that listing was presently precluded. Id. at 7,634,
7,676. So, the Service added the Pacific walrus to a list of
candidate species, id. at 7,676, and reviewed its status
annually through 2016, each time again finding listing
warranted but precluded, see, e.g., 81 Fed. Reg. 87,246,
87,256 (Dec. 2, 2016).
D
A settlement of an earlier lawsuit by the Center required
the Service to submit a proposed rule or not-warranted
finding for the Pacific walrus by September 30, 2017.
Endangered and Threatened Wildlife & Plants; 12-Month
Findings on Petitions to List 25 Species as Endangered or
Threatened Species, 82 Fed. Reg. 46,618, 46,642 (Oct. 5,
2017). So, in May 2017, the Service completed a final
species status assessment (“Assessment”). The Assessment
“identif[ied] vital needs of the species and evaluat[ed] the
current and future conditions affecting those needs.” The
Assessment expressly did “not constitute a decision
document”; it was intended only to inform the Service’s
listing decision and “form[ed] the scientific basis from
which the [Service] will draw conclusions and make a
decision.”
1 The Service examined other potential stressors to the Pacific
walrus but did not deem any a population-level threat. See 76 Fed. Reg.
at 7,639–74.

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CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 9
The Assessment concluded 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.” The review team believed that “Pacific
walruses are 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.” The team acknowledged, however, that the species’
ability “to adapt to or cope with increasing stress in the future
is uncertain.”
The Assessment did not offer a comparison between its
findings and those in the 2011 Decision, only mentioning the
2011 process on limited occasions, and indicated uncertainty
in several critical conclusions. For example, the review team
cited evidence that the impact of sea-ice loss might be less
severe than previously forecast. But, the team also
recognized that sea-ice loss will continue to impose stressors
on the Pacific walrus, among them “increasingly negative
effects on the population manifested through increased
energy expenditure and disturbance related mortality
events.” “These factors suggest that increased stress on
abundance of the Pacific walrus population will likely result
in future population declines,” although “the magnitude of
the decline is unknown.” The team similarly cited evidence
of declining harvests but recognized its inability to reliably
predict future hauls.
The team also explained that “[s]tressors acting on a
species and the species response to those stressors are not, in
general, equally predictable.” Even recent “observed
responses have changed as Pacific walruses have adapted
their behaviors,” so “it is likely that further changes in
Pacific walrus behaviors will occur as they refine responses,

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10 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
as stressors intensify, or new stressors emerge.” The team
had “less confidence in [its] ability to predict the 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.”
E
In October 2017, after reviewing the Assessment, the
Service issued a terse 3-page final decision that the Pacific
walrus no longer qualified as a threatened species (“2017
Decision”). Id. at 46,642. The 2017 Decision referred to the
2011 Decision only in its procedural history. See id.
Like the 2011 Decision, the 2017 Decision identified the
primary threat to the Pacific walrus as the loss of sea-ice
habitat, and the resulting increase in use of coastal haulouts.
Id. at 46,644. But, in contrast to the earlier decision, the
2017 Decision did not discuss each statutory listing factor in
detail and cited few supporting studies. Instead, it simply
incorporated the Assessment by reference. See id. The 2017
Decision concluded that, although the Pacific walrus will see
a future reduction in available sea ice,
resulting in reduced resiliency and
redundancy, we are unable to reliably predict
the magnitude of the effect and the behavioral
response of the Pacific walrus to this change,
and we therefore do not have 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.

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CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 11
Id. The 2017 Decision also recharacterized the “foreseeable
future”:
While we have high certainty that sea-ice
availability will decline as a result of climate
change, we have less certainty, particularly
further into the future, about the magnitude of
effect that climate change will have on the
full suite of environmental conditions . . . or
how the species will respond to those
changes. We find that beyond 2060 the
conclusions concerning the impacts of the
effects of climate change and other stressors
on the Pacific walrus population are based on
speculation, rather than reliable prediction.
Id. at 46,643.
As to the stressors on the Pacific walrus resulting from
increased use of coastal haulouts, the Service stated:
Although Pacific walruses prefer sea ice
habitat, they also use land habitat during the
summer and fall, but likely not without
tradeoffs related to energetic costs and other
risks of using coastal haulouts (e.g.,
trampling events, predation, and disease).
Nonetheless, if land habitat proves to be
comparable in quality to ice habitat,
including access to foraging sites, then it is
likely that their habitat needs will be met. If
land habitat is inferior to ice habitat for
Pacific walruses in summer and fall, then
survival and recruitment of Pacific walruses
will likely decline and population-level
effects would occur. However, while it is

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likely that the increased use of land habitat
will have some negative effects on the
population, the magnitude of effect is
uncertain given the demonstrated ability of
Pacific walruses to change their behavior or
adapt to greater use of land.
Id. As to the stress from subsistence hunting, the 2017
Decision noted only that “harvest levels have . . . decreased.”
Id.
II
The Center filed this action in 2018, alleging that the
2017 Decision violated the Administrative Procedure Act
(“APA”) and the ESA. In particular, the Center argued that
the Service violated the APA by failing to sufficiently
explain its change in position from the 2011 Decision.
The district granted summary judgment to the Service.
Ctr. for Biological Diversity v. Bernhardt, No. 3:18-cv-
00064-SLG, 2019 WL 4725124, at *14 (D. Alaska Sept. 26,
2019). This timely appeal followed.2
III
We review the district court’s grant of summary
judgment de novo and must determine whether the Service’s
decision was “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” Alaska Oil & Gas
Ass’n v. Pritzker, 840 F.3d 671, 675 (9th Cir. 2016) (quoting
2 The Service filed and later voluntarily dismissed a cross-appeal.
Ctr. for Biological Diversity v. Bernhardt, No. 19-36031 (9th Cir. Aug.
17, 2020), ECF No. 27.

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CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 13
5 U.S.C. § 706(2)). Although our review is “narrow,” we
conduct a “searching and careful” consideration of the
agency’s decision-making process. Japanese Vill., LLC v.
Fed. Transit Admin., 843 F.3d 445, 453 (9th Cir. 2016)
(cleaned up). We must determine whether the “agency
considered the relevant factors and articulated a rational
connection between the facts found and the choices made.”
Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d at 675 (cleaned
up). If the agency did not meet its burden, we “should not
attempt . . . to make up for such deficiencies” and “may not
supply a reasoned basis for the agency’s action that the
agency itself has not given.” Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (cleaned up).
When an agency changes its position, it must
(1) “display[] awareness that it is changing position,”
(2) show “the new policy is permissible under the statute,”
(3) “believe[]” the new policy is better, and (4) provide
“good reasons” for the new policy. Org. 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)). Moreover, if a “new policy rests upon factual
findings that contradict those which underlay its prior
policy,” the agency must provide “a reasoned explanation
. . . for disregarding facts and circumstances that underlay or
were engendered by the prior policy.” Fox, 556 U.S. at 515–
16. This framework applies to a change in position on
whether a species warrants protection under the ESA. Ctr.
for Biological Diversity v. Zinke, 900 F.3d 1053, 1070 (9th
Cir. 2018).
IV
The Center first argues that our review is limited to the
four corners of the 3-page 2017 Decision. We disagree. Our

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obligation is to discern whether the agency offered a
reasoned explanation for its change in position. This does
not call for a formalistic approach. If an agency’s decision
document explains the reasons for a change in position, we
may be able to adequately review that decision by looking to
see whether the record supports the reasons offered. See
Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544, 563 (9th
Cir. 2016) (rejecting a “one document” requirement where
the statute does not prevent an agency “from referencing
other publicly-available documents in support of its
justifications”). Similarly, if a published decision
incorporates by reference a separate, fully reasoned
document explaining why the agency changed positions, that
may suffice.
We are, however, limited to the reasons given by the
agency for its action. Zinke, 900 F.3d at 1069. “[A] policy
change violates the APA if the agency ignores or
countermands its earlier factual findings without reasoned
explanation for doing so.” Organized Vill. of Kake, 795 F.3d
at 966. And an agency must provide its “reasoned
explanation” in a form that can adequately be examined on
judicial review, not simply present arguments in its briefing
how the decision might have been reached. See Zinke,
900 F.3d at 1069 (“FWS cannot rely on its briefing in this
case to explain why the 2014 Finding relied on the Leary
study rather than the DeHaan study. The explanation must
be evidenced from the listing decision itself.”); Greater
Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1027 n.4
(9th Cir. 2011) (“If the Service relied on this study in making
its determination, it did not adequately connect the dots in
the Rule such that its path may reasonably be discerned.”)
(cleaned up).

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CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 15
The essential flaw in the 2017 Decision is its failure to
offer more than a cursory explanation of why the findings
underlying its 2011 Decision no longer apply. If, as is the
case here, the agency’s “new policy rests upon factual
findings that contradict those which underlay its prior
policy,” a sufficiently detailed justification is required. Fox,
556 U.S. at 515. “In such cases it is not that further
justification is demanded by the mere fact of policy change;
but that a reasoned explanation is needed for disregarding
facts and circumstances that underlay or were engendered by
the prior policy.” Id. at 515–16.
The 2011 Decision, 45 pages in length, contained
specific findings, replete with citations to scientific studies
and data, that detailed the multiple stressors facing the
Pacific walrus and explained why those findings justified
listing. See generally 76 Fed. Reg. at 7,634–79. The 2017
Decision, by contrast, is a spartan document, simply
containing a general summary of the threats facing the
Pacific walrus and the agency’s new uncertainty on the
imminence and seriousness of those threats. See 82 Fed.
Reg. at 46,642–44. Because the 2017 Decision inherently
rejects the specific findings underlying the 2011 Decision,
more is needed.
The 2017 Decision’s incorporation of the Assessment
does not remedy the deficiencies. The Assessment does not
purport to be a decision document; it provides information
but does not explain the Service’s reasons for its change in
position in the 2017 Decision. Unlike the 2011 Decision,
which arrived at specific conclusions as to each of the
identified threats, the Assessment reflects substantial
disagreement and uncertainty—both among the team and
with respect to the relevant threats—and does not identify
the agency’s rationale for concluding that the specific

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stressors identified as problematic in the 2011 Decision no
longer pose a threat to the species within the foreseeable
future.
Diligently parsing the record, the district court identified
reasons why the Service could have rationally decided to
alter its position. Ctr. for Biological Diversity, 2019 WL
4725124, at *6–11. The Service also offers some in its
appellate brief, noting that the Assessment “re-examined the
very stressors that led the agency to conclude that the species
warranted listing in 2011.” Had the 2017 Decision offered
such explanations, they might have been sufficient to
support the Service’s change in position. See Zinke,
900 F.3d at 1071–72 (finding reliance on recent population
data and new scientific opinions on local water temperature
“a sufficient ‘reasoned explanation’ for FWS’s change in
position” (quoting Organized Vill. of Kake, 795 F.3d
at 968)).
But, although the Assessment contains some new
information, the actual decision document does not explain
why this new information resulted in an about-face from the
Service’s 2011 conclusion that the Pacific walrus met the
statutory criteria for listing. Indeed, a review of the reasons
offered by the Service in its appellate briefing shows why we
cannot conduct the required appellate review unless the
decision document offers the agency’s own reasoned
explanation.
First, with respect to localized prey depletion, the
Service’s briefing cites a study that foraging trips by tagged
walruses are shorter than expected and suggests that “prey
near costal haulouts may be more abundant than previous
surveys estimated.” But, the Service merely cites the
location of that study in the Assessment’s appendix, while
identifying no part of the document relevant to the agency’s

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CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 17
prior findings. Moreover, the Service did not explain why
prey would not be depleted in the foreseeable future in light
of predicted coastal haulout usage, as the 2011 Decision
expressly found. 76 Fed. Reg. at 7,648–49.
Second, the Service’s brief cites a study showing that
female walruses can travel longer distances than expected to
forage. The Service says that this undercuts its prior findings
that female walruses might be at greater risk as they cannot
travel as far to forage. Yet, the Service again just cites the
study’s location in the appendix to the Assessment, without
explaining how the ability to travel further relates to the risk
of increased energy expenditure due to increased forage trip
length, which the Assessment again identifies as potentially
problematic.
Third, with respect to stampede-related mortalities, the
Service’s brief cites the Assessment’s statement “that
management programs in the U.S. and Russia have been
effective at reducing disturbances and haulout related
mortalities in recent years.” But, the Assessment’s next
sentence reads: “[I]n spite of these efforts, it is likely that
mortalities among younger animals at coastal haulouts will
always occur where large aggregations form on land and the
number of mortalities is likely a function of the duration of
time spent hauled out.” The Assessment does not explain
why mortalities, especially of juveniles, will no longer be an
issue amid the still-expected increase in use of coastal
haulouts, and why the impact, even if somewhat reduced, is
no longer problematic.
Fourth, with respect to habitat loss generally, the Service
points to “the potential for walruses to change behavior to
adapt to the loss of sea ice.” But, the 2017 Decision
expresses uncertainty as to whether the Pacific walrus will

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actually find land habitat to be equivalent to sea ice. See
82 Fed. Reg. at 46,643.
Finally, with respect to subsistence harvest, the Service’s
appellate brief cites new information in the Assessment
showing that harvest levels are the “lowest” on record, which
the Service argues contradicts its 2011 expectation that
harvests would continue at similar levels. See 76 Fed. Reg.
at 7,658. But, this does not explain, for instance, why the
finding in the 2011 Decision that hunting may increase as
use of coastal haulouts increases no longer applies, id., or
whether this level of hunting will remain sustainable given
that the Assessment still predicted a decline in the Pacific
walrus population.
The agency’s change in position on the scope of the
foreseeable future presents a closer question, but it
ultimately fares no better. In the 2011 Decision, the Service
expressly found it could reliably predict the extent of sea-ice
loss in the Arctic through 2100, see, e.g., 76 Fed. Reg. at
7,641–44, 7,672, and, as the Service acknowledges in its
briefing, at least implicitly held it could predict the walrus’s
response to sea-ice loss through the same date.3 Yet, the
2017 Decision found the effects of climate change on the
Pacific walrus beyond 2060 to be “based on speculation,
rather than reliable prediction.” 82 Fed. Reg. 46,643. The
new decision noted only that the Service had “less certainty”
on “how the species will respond” to changes in
environmental conditions, without explaining why it now
3 The Service “acknowledge[s] its modification of the appropriate
‘foreseeable future’ timeframe” in the 2017 Decision, but elsewhere it
appears to suggest that 2100 was a timeframe relevant only to the sea-
ice loss analysis.

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CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 19
found 2060 (rather than some other time period) to be the
appropriate window. See id.
The Assessment again adds little clarity to that
conclusion. The document notes that observations of the
Pacific walrus’s “responses to the effects of climate change
from 2007 . . . to the present are likely the most realistic
information when evaluating the future,” and that “even
these observed responses have changed as Pacific walruses
have adapted their behaviors.” But, the review team then
stated only that it had “less confidence in [its] ability to
predict the potential behavioral and physiological
adaptations of Pacific walruses . . . because of the extensive
time between now and 2100.”
But, of course, the amount of time until 2100 was known
at the time of the 2011 Decision. Simply reiterating generic
uncertainty that was known at the time of the prior finding
does not meet the agency’s burden to explain its change in
position. This is particularly so here, because even
projections with some degree of uncertainty can have value
in the ESA-listing process. See Alaska Oil & Gas Ass’n v.
Pritzker, 840 F.3d at 680.
The Service’s brief marshals evidence suggesting
potential adaptation and argues that it would be rational to
conclude that predictions could accordingly not be made
beyond 2060. But, the detailed explanation it offers is in
neither the 2017 Decision nor the Assessment. See id. at
681–82; Zinke, 900 F.3d at 1072–73 (finding decision
insufficient where Service did not explain why uncertainty
of climate change impacts on species meant not listing was
appropriate).

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20 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
V
The Service may be able to issue a decision sufficiently
explaining the reasons for its change in position. But, the
2017 Decision does not do so, and we may not ourselves
come up with those reasons from the large and complex
record. We therefore reverse the summary judgment below,
with directions to the district court to remand to the Service
to provide a sufficient explanation of its new position.
REVERSED and REMANDED.

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