FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL DIVERSITY; 

PACIFIC ENVIRONMENT,

Plaintiffs-Appellants,

v. No. 08-35402

D D.C. No. IRK KEMPTHORNE, Secretary of the 

Interior; UNITED STATES FISH AND 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
COUNSEL

Brendan R. Cummings, Center for Biological Diversity,

Joshua Tree, California; Robert Clayton Jernigan and Eric P.

Jorgensen, Earthjustice, Juneau, Alaska, for the plaintiffsappellants.

David Shilton, Ellen J. Durkee, Kristen L. Gustafson, and

Lori Caramanian, United States Department of Justice, EnviCENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15763
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 Service promulgated five-year regulations under the Marine

Mammal Protection Act § 101(a)(5) that authorize for a fiveyear 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 authorization.” 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 summer 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 pregnant 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

15764 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
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 habitat; 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, development, and production along the Beaufort Sea and the Northern 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 walrus. With respect to bears, it found that past interaction has

been “minimal.” Most industry activity is conducted on land,

CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15765
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 causing 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 during previous periods of regulation. The impact would be negligible.

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 produced 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 industrial activities in the absence of such regulation. With this

understanding, and based on the same information, the Service 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

15766 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
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. Plaintiff Pacific Environment is a similar organization. Their members have viewed polar bears and walrus in the region, enjoy

doing so, and have plans to return. In February 2007, the Center, 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);

CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15767
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 outcome 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 individuals 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) (Stevens, 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 regulations 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 organizations provided a single affidavit. The affidavit cited an injury

that was unattached to any particular site in the National Forests, unrelated to the challenged regulations, and a past injury

15768 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
rather than the imminent injury the plaintiffs sought to enjoin.

Id. Thus, the plaintiffs lacked standing, as they failed to identify any application of the regulations that “threatens imminent 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’ allegations 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. Moreover, these regulations have been and continue to be implemented. 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 “regulation 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 waivable. 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 considering these elements, the “court must evaluate ‘[1] the fitness 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 challenge 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

CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15769
not ripe until the scope and facts of the controversy are identified “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 constitutional 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 regulation 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

15770 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
LOAs have been issued. If harm to the plaintiffs’ interests has

not resulted already, it is imminent. Furthermore, the regulation 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 Gambell, 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 regulations that allow the incidental take of marine mammals by

those “engage[d] in a specified activity (other than commercial 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 specified 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 continental 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

CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15771
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 activity 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 controlling weight unless [it is] arbitrary, capricious, or manifestly 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 anticipated 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 “manifestly contrary to the statute.” The MMPA’s parenthetical

exclusion of commercial fishing suggests that it would otherwise qualify as a “specified activity.” 16 U.S.C.

§ 1371(a)(5)(A)(i). The term “commercial fishing” is quite

15772 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
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 finding was arbitrary and capricious because it failed to consider

the combined effects of oil and gas operations on the weakened 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 regulation. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 765-66

(2004). 

[13] The plaintiffs did not forfeit the objection. The Center’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’ declining 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, during the five-year term of the regulation, will have a “negligible impact” on the affected polar bear population. 16 U.S.C.

§ 1371(a)(5)(A)(i)(I). A negligible impact finding is arbitrary

CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15773
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 “cumulative effects analysis” in which it purported to consider “habitat loss due to climate change, hunting, disease, oil spills,

contaminants, and effects on prey species within the geographic 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. 

15774 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
[15] Reduced physical fitness due to climate change likely

poses a serious threat to the Beaufort Sea polar bear population, 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).

CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15775
A. Finding of No Significant Impact

The plaintiffs argue that the Service’s finding of no significant 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 enumerated its long term effects on polar bears, including “increased

use of coastal environments, increased bear/human encounters, changes in polar bear body condition, decline in cub survival, 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 incomplete, but rather that the EA failed to synthesize these concerns 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 negative 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 regulations. 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

15776 CENTER FOR BIO. DIVERSITY v. KEMPTHORNE
impact of takes. LOAs include mitigating guidelines that minimize disturbances to, among other things, denning females.

These considerations, all explicitly analyzed in the EA, demonstrate that the Service took a “hard look” at the consequences 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 arbitrarily in failing to produce an Environmental Impact Statement. 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 anticipate 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 uncertainty. 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 nesting 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 quotient of uncertainty which is always present when making predictions about the natural world. 

CENTER FOR BIO. DIVERSITY v. KEMPTHORNE 15777
[23] Again, we grant the Service great deference as it made

a scientific prediction within the scope of its technical expertise. 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.

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