NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 12 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA OIL AND GAS ASSOCIATION; No. 16-35380 et al., D.C. Nos. 4:14-cv-00029-RRB Plaintiffs-Appellees, 4:15-cv-00002-RRB 4:15-cv-00005-RRB v.

WILBUR ROSS,** U.S. Secretary of MEMORANDUM * Commerce; et al.,

Defendants-Appellants,

and

CENTER FOR BIOLOGICAL

DIVERSITY,

Intervenor-Defendant.

ALASKA OIL AND GAS ASSOCIATION; No. 16-35382 et al., D.C. Nos. 4:14-cv-00029-RRB Plaintiffs-Appellees, 4:15-cv-00002-RRB 4:15-cv-00005-RRB v.

* 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). 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.

2 (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

3 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

4 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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