FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIVE VILLAGE OF POINT HOPE;

INUPIAT COMMUNITY OF THE ARCTIC

SLOPE; ALASKA WILDERNESS

LEAGUE; CENTER FOR BIOLOGICAL

DIVERSITY; NATIONAL AUDUBON

SOCIETY; NATURAL RESOURCES

DEFENSE COUNCIL; NORTHERN

ALASKA ENVIRONMENTAL CENTER;

OCEANA; PACIFIC ENVIRONMENT;

RESISTING ENVIRONMENTAL

DESTRUCTION ON INDIGENOUS

LANDS, A PROJECT OF THE

INDIGENOUS ENVIRONMENTAL

NETWORK (REDOIL); SIERRA CLUB;

THE WILDERNESS SOCIETY; WORLD

WILDLIFE FUND; DEFENDERS OF

WILDLIFE,

Plaintiffs-Appellants,

v.

SALLY JEWELL, Secretary of the

Interior; BUREAU OF OCEAN ENERGY

MANAGEMENT; TOMMY

BEAUDREAU, Director of the Bureau

of Ocean Energy Management,

Defendants-Appellees,

No. 12-35287

D.C. No.

1:08-cv-00004-

RRB

OPINION
2 NATIVE VILLAGE OF POINT HOPE V. JEWELL

SHELL GULF OF MEXICO, INC.;

CONOCOPHILLIPS COMPANY; STATE

OF ALASKA; STATOIL USA E&P,

INC.,

Intervenor-DefendantsAppellees.

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted

March 5, 2013—Seattle, Washington

Filed January 22, 2014

Before: Ferdinand F. Fernandez, William A. Fletcher,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge W. Fletcher;

Partial Concurrence and Partial Dissent by Judge

Rawlinson
NATIVE VILLAGE OF POINT HOPE V. JEWELL 3

SUMMARY*

Environmental Law

The panel reversed the district court’s summary judgment

entered in favor of federal defendants in an action challenging

the government’s environmental impact statements analyzing

the environmental effects of proposed leases for oil and gas

development in the Chukchi Sea off the northwest coast of

Alaska.

The panel held that the Final Environmental Impact

Statement and Supplemental Environmental Impact

Statement prepared by the federal defendants properly took

account of incomplete or unavailable information. The panel

held, however, that the reliance in the Final Environmental

Impact Statement on a one billion barrel estimate of total

economically recoverable oil was arbitrary and capricious. 

The panel remanded for further proceedings.

Judge Rawlinson concurred in part and dissented in part. 

Judge Rawlinson agreed with most of the majority opinion,

but she did not agree that the federal Bureau of Ocean Energy

Management, Regulation and Enforcement acted arbitrarily

in selecting one billion barrels of oil as the benchmark for

analyzing the environmental affects of the proposed leases.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 NATIVE VILLAGE OF POINT HOPE V. JEWELL

COUNSEL

Erik Clifford Grafe (argued), Earthjustice, Anchorage,

Alaska; EricPaul Jorgensen, Earthjustice, Juneau, Alaska, for

Plaintiffs-Appellants.

David C. Shilton (argued), United States Department of

Justice, Washington, D.C., for Defendants-Appellees.

Kyle W. Parker (argued), Crowell & Moring LLP,

Anchorage, Alaska; JeffreyWayne Leppo and Ryan P. Steen,

Stoel Rives, LLP, Seattle, Washington; Ken Diemer and

Rebecca Kruse, Office of Alaska Attorney General,

Anchorage, Alaska; and James Leik, Perkins Coie LLP,

Anchorage, Alaska, for Intervenor-Defendants-Appellees.

OPINION

W. FLETCHER, Circuit Judge:

The Bureau of Ocean EnergyManagement (“BOEM”)1of

the Department of the Interior has sought to lease “excellent

prospects” for oil and gas development in the Chukchi Sea off

the northwest coast of Alaska. The parcels available for lease

are cumulatively known as Lease Sale 193. Pursuant to the

National Environmental Policy Act (“NEPA”), BOEM

prepared a Final Environmental Impact Statement (“FEIS”)

analyzing the environmental effects of the proposed leases. 

1 Earlier incarnations of the agency have been the Minerals Management

Service and the Bureau of Ocean Energy Management, Regulation and

Enforcement. For simplicity, we refer to the agency, including its earlier

incarnations, as BOEM.
NATIVE VILLAGE OF POINT HOPE V. JEWELL 5

BOEM based its environmental analysis on the assumption

that if oil development actually occurs, one billion barrels of

oil will be economically recoverable.

Plaintiffs argued in the district court that BOEM abused

its discretion by failing to account for essential missing

information in the FEIS. Plaintiffs also argued that BOEM’s

estimate of one billion barrels is arbitrary and capricious. 

They contended that the potential economically recoverable

oil from the lease sale is far higher than one billion barrels,

and that BOEM had not given an adequate explanation for

using its lower estimate. The district court initially rejected

the FEIS for failing to account for the missing information. 

After remand, BOEM prepared a Supplemental EIS (“SEIS”)

addressing the missing information. Based on the FEIS and

SEIS, the district court granted summary judgment to

defendants.

We largely agree with the district court that the agency

did not abuse its discretion in its analysis of the missing

information. However, we agree with plaintiffs that the

agency’s estimate of one billion barrels was chosen

arbitrarily, and that this arbitrary decision meant that the

agencybased its decision on inadequate information about the

amount of oil to be produced pursuant to the lease sale.

I. Background

The Chukchi Sea is a southern arm of the Arctic Ocean

between Alaska and Russia. The Sea contains a wide variety

of animals, including bowhead whales, polar bears, pacific

walrus, seals, fish, and birds. Some of these animals provide

subsistence for native Inupiat communities along the Alaskan

coast. Some of the animals are listed under the Endangered
6 NATIVE VILLAGE OF POINT HOPE V. JEWELL

Species Act (“ESA”) as endangered or threatened. Five

exploratory wells were drilled in the Sea between 1989 and

1991. They had “positive shows” but did not lead to

commercial production.

The Outer Continental Shelf Lands Act (“OCSLA”)

prescribes four steps the federal government must take in

order to pursue offshore oil and gas development: “‘(1)

formulation of a five year leasing plan by the Department of

the Interior; (2) lease sales; (3) exploration by the lessees;

[and] (4) development and production.’” Edwardsen v. U.S.

Dep’t of the Interior, 268 F.3d 781, 784 (9th Cir. 2001)

(quoting Sec’y of the Interior v. California, 464 U.S. 312, 337

(1984)). At the “lease sale” stage, the Secretary of the

Interior selects the parcels that will be offered for lease,

accepts bids from parties, and collects funds from parties with

winning bids. The Department of the Interior must review

and approve specific exploration and development plans

before winning bidders can “proceed with full exploration,

development, or production” of oil or gas. Sec’y of the

Interior, 464 U.S. at 339. However, successful bidders have

the right to undertake “ancillary activities” in the field such

as geological and geophysical surveys and studies that

“model potential oil and hazardous substance spills.” 30

C.F.R. § 550.207.

A. NEPA

NEPA “protect[s] the environment by requiring that

federal agencies carefully weigh environmental

considerations and consider potential alternatives to the

proposed action before the government launches any major

federal action.” Barnes v. U.S. Dep’t of Transp., 655 F.3d

1124, 1131 (9th Cir. 2011) (internal quotation marks
NATIVE VILLAGE OF POINT HOPE V. JEWELL 7

omitted). “‘NEPAimposes procedural requirements designed

to force agencies to take a “hard look” at environmental

consequences’” of major federal action. Id. (quoting Earth

Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th

Cir. 2003)). The statute requires federal agencies to

“consider every significant aspect of the environmental

impact of a proposed action” and to “inform the public that

[they] ha[ve] indeed considered environmental concerns in

[their] decisionmaking process.” Balt. Gas & Elec. Co. v.

Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)

(internal quotation marks omitted).

NEPA requires that federal agencies prepare an EIS for

any “major Federal actions significantly affecting the quality

of the human environment.” 42 U.S.C. § 4332(2)(C). An

agency must consider:

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be

implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the

maintenance and enhancement of long-term

productivity, and

(v) any irreversible and irretrievable

commitments of resources which would be
8 NATIVE VILLAGE OF POINT HOPE V. JEWELL

involved in the proposed action should it be

implemented.

Id. An agency must take into account all “reasonably

foreseeable significant adverse effects” ofthe proposed action

in its analysis of environmental effects. 40 C.F.R. § 1502.22;

see also id. § 1508.7. NEPA also requires an agency to

analyze missing and incomplete information. As we explain

in greater detail below, an agency must either obtain

information that is “essential to a reasoned choice among

alternatives” or explain why such information was too costly

or difficult to obtain. Id. § 1502.22.

An agency is required to comply with NEPA at various

stages of the oil and gas development process. An agency is

not required at the lease sale stage to analyze potential

environmental effects on a site-specific level of detail. N.

Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975–76 (9th

Cir. 2006). To some degree, lease sale analyses may be based

on information that is uncertain or missing at the time of the

sale when that information can be obtained at a “later stage[]

of the exploration process.” Tribal Vill. of Akutan v. Hodel,

869 F.2d 1185, 1192 (9th Cir. 1988). At the same time, the

agency cannot shirk its responsibility to “consider[] all

foreseeable direct and indirect impacts” of the proposed

action in its EIS. N. Alaska Envtl. Ctr., 457 F.3d at 975

(internal quotation marks omitted). The agency also must

“discuss[] . . . adverse impacts” without “improperly

minimiz[ing] negative side effects.” Id.

B. Lease Sale 193

After completing a five-year leasing plan for the Chukchi

Sea, BOEM decided to offer a large portion of the Sea for oil
NATIVE VILLAGE OF POINT HOPE V. JEWELL 9

and gas leasing. The FEIS analyzed four alternatives for the

lease sale: (1) a 34-million acre proposed lease option

covering 6,156 blocks of the Chukchi Sea; (2) a no-lease

option; (3) a proposed lease option excluding 1,765 blocks

extending along a corridor about 60 miles from the Alaskan

coast; and (4) a proposed lease option excluding 795 blocks

extending along a corridor between 25 and 50 miles from the

Alaskan coast.

The National Marine Fisheries Service recommended that

the Secretary of the Interior select the third alternative, under

which development would be farther from the coast, based on

its conclusion that numerous endangered and threatened

species living close to shore would be adversely affected by

oil development. The Secretary of the Interior accepted

BOEM’s recommendation and selected the fourth alternative,

under which development would be closer to the coast.

The lease sale occurred on February 6, 2008. The federal

government collected over $2.6 billion from the winning

bidders. At the time of the lease sale, there were no active

leases in the Sea.

C. Procedural History

Plaintiffs filed suit, alleging seven deficiencies in the

FEIS:

1. [The FEIS] does not adequately analyze

and present the impacts of Lease Sale 193 on

the environment and human communities;

2. [It] fails to include essential missing

information about the Chukchi Sea and the
10 NATIVE VILLAGE OF POINT HOPE V. JEWELL

potential impacts of the lease sale, or explain

why excluding this information is justified;

3. [It] fails to adequately analyze the impact

of the lease sale in the context of a warming

climate;

4. [It] understates the potential impacts of oil

and gas development pursuant to the leases by

analyzing a limited development scenario;

5. [It] understates the risks of an oil spill;

6. [It] fails to fully analyze the cumulative

impacts to threatened eiders of the lease sale

and other oil and gas development in

threatened eiders’ Arctic habitat; and

7. [It] provides a misleading analysis of the

effects of seismic surveying.

The parties cross-moved for summary judgment.

The district court agreed with defendants that much of the

FEIS complied with NEPA, including the FEIS’s assumption

that there would be one billion barrels of economically

recoverable oil. However, the court concluded that the

FEIS’s analysis was flawed in three respects: it “failed to

analyze the environmental impact of natural gas development,

despite industry interest and specific lease incentives for such

development”; it “failed to determine whether missing

information identified by the agency was relevant or essential

under 40 C.F.R § 1502.22”; and it “failed to determine

whether the cost of obtaining the missing information was
NATIVE VILLAGE OF POINT HOPE V. JEWELL 11

exorbitant, or the means of doing so unknown.” The district

court granted in part plaintiffs’ motion for summary

judgment, issued a limited injunction, and remanded to

BOEM for further proceedings.

After remand from the district court, BOEM prepared an

SEIS. The SEIS analyzed the consequences of natural gas

exploration and production. In the aftermath of the

Deepwater Horizon oil spill in the Gulf Coast, it also

analyzed the environmental impacts of a very large oil spill. 

Finally, BOEM prepared an appendix analyzing “whether the

information gaps that were identified in the Sale 193 FEIS

were relevant and necessary to evaluate reasonably

foreseeable significant adverse effects.” Based on the FEIS,

now supplemented by the SEIS, the Secretary of Interior

again chose the fourth alternative for oil and gas leasing.

Based on the FEIS and SEIS, the district court granted

BOEM’s motion for summary judgment. The court found

that “BOEM has identified missing or incomplete information

and has adequately evaluated it in a manner that is clearly

sufficient at this stage of the development process to satisfy

the requirements of 40 C.F.R. § 1502.22.” The court gave

“considerable deference . . . to BOEM’s expertise.” Plaintiffs

timely appealed.

II. Standard of Review

Our review of an EIS is governed by the Administrative

Procedure Act (“APA”). “Under the APA, we may set aside

an agency decision if it is ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” Native

Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238

(9th Cir. 2005) (quoting 5 U.S.C. § 706(2)(A)). “Review
12 NATIVE VILLAGE OF POINT HOPE V. JEWELL

under the arbitrary and capricious standard is narrow, and we

do not substitute our judgment for that of the agency.” Lands

Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th

Cir. 2008) (en banc) (alterations and internal quotation marks

omitted). However, an agency’s decision can be set aside if:

the agency relied on factors Congress did not

intend it to consider, entirely failed to

consider an important aspect of the problem,

or offered an explanation that runs counter to

the evidence before the agency or is so

implausible that it could not be ascribed to a

difference in view or the product of agency

expertise.

Id.(internal quotation marks omitted). Such actions would be

“clear error[s] of judgment that would render [the agency’s]

action arbitrary and capricious.” Id. at 993 (internal quotation

marks omitted).

We “may affirm a summary judgment only if, viewing the

evidence in the light most favorable to the party against

whom it is granted, we find no genuine issue of material fact,

and we find that the prevailing party is clearly entitled to

judgment as a matter of law.” California v. Watt, 683 F.2d

1253, 1258 (9th Cir. 1982), rev’d on other grounds sub nom.

Sec’y of the Interior v. California, 464 U.S. 312 (1984).

III. Discussion

On appeal, plaintiffs argue that BOEM abused its

discretion in two respects. First, they argue that “essential”

information is missing from the FEIS and SEIS, in violation

of 40 C.F.R. § 1502.22. Second, they argue that the FEIS and
NATIVE VILLAGE OF POINT HOPE V. JEWELL 13

SEIS underestimate the adverse environmental impact of the

lease sale because they use an unrealistically low estimate of

the economically recoverable oil. We disagree with

plaintiffs’ first argument, but agree with their second

argument.

A. Essential Information

An agency’s obligation with respect to incomplete or

unavailable information is spelled out in 40 C.F.R. § 1502.22. 

The agency “shall always make clear that . . . information is

lacking.” Id. If the missing information is “relevant to

reasonably foreseeable significant adverse impacts” and is

“essential to a reasoned choice among alternatives and the

overall costs of obtaining it are not exorbitant,” the agency

must include that information in the EIS. Id. § 1502.22(a). 

If the missing information “cannot be obtained because the

overall costs of obtaining it are exorbitant or the means to

obtain it are not known,” the agency must include the

following in the EIS: (1) a statement that such information is

“incomplete or unavailable”; (2) a statement of the “relevance

of the incomplete or unavailable information to evaluating

reasonably foreseeable significant adverse impacts on the

human environment”; (3) a “summary of existing credible

scientific evidence . . . relevant to evaluating the reasonably

foreseeable adverse impacts”; and (4) the agency’s

“evaluation of such impacts based upon theoretical

approaches or research methods generally accepted in the

scientific community.” Id. § 1502.22(b). Section 1502.22(b)

clarifies that reasonably foreseeable effects “include[]

impacts which have catastrophic consequences, even if their

probability of occurrence is low.”
14 NATIVE VILLAGE OF POINT HOPE V. JEWELL

Much of the information missing from the EIS concerns

animal populations potentially affected by oil exploration and

production under the leases. The missing information

concerns such things as population levels of various species

of animals in the Chukchi Sea, including endangered or

threatened animals; the locations of various animal

populations during the year; the feeding and breeding habits

of various animal populations; and the vulnerability of

various animal populations to drilling and other exploration

and production-related activities.

With respect to the potential environmental harm from a

large oil spill, BOEM concluded that the missing information

was not essential to a reasoned choice among the alternatives. 

It wrote in the SEIS, “[I]n the unlikely event of a large oil

spill, it is well-understood that environmental impacts could

be severe. The severity of potential impacts would be nearly

identical under any action alternative; therefore, very specific

types of information relevant to species, particular life history

traits, or behavior do not help substantially in distinguishing

among alternatives.” With respect to other activities or

events with potential adverse impacts on the animal

populations in the Chukchi Sea, BOEM concluded that

sufficient protections would be provided by the requirements

of other environmental statutes, such as the Clean Air Act, the

Marine Mammal Protection Act (“MMPA”), and the ESA,

and by the requirement under NEPA to provide site-specific

analyses at later stages of development.

Based on these conclusions, BOEM stated in the SEIS

that it did not consider any of the incomplete or unavailable

information at issue to be “essential to a reasoned choice

among alternatives” at this stage of the development process. 

40 C.F.R. § 1502.22(a). BOEM therefore did not determine
NATIVE VILLAGE OF POINT HOPE V. JEWELL 15

whether the information was unobtainable “because the

overall costs of obtaining it are exorbitant or the means to

obtain it are not known.” Id. § 1502.22(b). Nor did BOEM

go through the steps required by § 1502.22(b) if it had found

“essential” information to be unobtainable. Instead, BOEM

specifically relied in the SEIS on what it characterized as its

“understanding that certain items of presently missing or

incomplete information will be known (and utilized to avoid

or minimize adverse impacts) at a later stage of OCS Lands

Act environmental review.” BOEM promised in the SEIS

that it “would thoroughly review specific development &

production plans at Step 4 [‘development and production’],

if and when a project proponent actually submits a plan. 

Thus, while certain information may, in fact, be essential at

a later stage of OCS Lands Act [review], such information

may not be essential to a reasoned choice among alternatives

at this lease sale stage.”

In Village of False Pass v. Clark, 733 F.2d 605 (9th Cir.

1984), we reviewed an EIS of an oil and gas lease sale under

OCSLA. The plaintiff had argued that the commitment made

by the government when entering into leases under OCSLA

is so substantial that a fully exhaustive environmental

analysis under NEPA had to be performed at the lease sale

stage. We disagreed, writing:

NEPA may require an environmental impact

statement at each stage: leasing, exploration,

and production and development. 

Furthermore, each stage remains separate. 

The completion of one stage does not entitle

a lessee to begin the next.
16 NATIVE VILLAGE OF POINT HOPE V. JEWELL

Id. at 614. We wrote to the same effect in Northern Alaska

Environmental Center:

[P]rojects [for the development of oil and gas

natural resources] generally entail separate

stages of leasing, exploration and

development. At the earliest stage, the leasing

stage we have before us, there is no way of

knowing what plans for development, if any,

may eventually materialize.

457 F.3d at 977.

A lease sale under OCSLA is analogous to a

“programmatic” plan. The required level of analysis in an

EIS is different for programmatic and site-specific plans. We

wrote in Friends of Yosemite Valley v. Norton, 348 F.3d 789

(9th Cir. 2003):

An agency’s planning and management

decisions may occur at two distinct

administrative levels:

(1) the “programmatic level” at which

the [agency] develops alternative

management scenarios responsive to

public concerns, analyzes the costs,

benefits and consequences of each

alternative in an [EIS], and adopts an

amendable [management] plan to guide

management of multiple use resources;

and (2) the implementation stage during

which individual site specific projects,
NATIVE VILLAGE OF POINT HOPE V. JEWELL 17

consistent with the [management] plan,

are proposed and assessed.

Ecology Ctr., Inc. v. United States Forest

Serv., 192 F.3d 922, 923, [n.2] (9th Cir.

1999). An EIS for a programmatic plan . . .

must provide ‘sufficient detail to foster

informed decision-making,’ but ‘site-specific

impacts need not be fully evaluated until a

critical decision has been made to act on site

development.’ N. Alaska Envtl. Ctr. v. Lujan,

961 F.2d 886, 890–91 (9th Cir. 1992).

Id. at 800 (alterations in original).

Regardless of whether a programmatic or site-specific

plan is at issue, NEPA requires that an EIS analyze

environmental consequences of a proposed plan as soon as it

is “reasonably possible” to do so. We wrote in Kern v. U.S.

Bureau of Land Management, 284 F.3d 1062 (9th Cir. 2002),

with respect to a programmatic plan:

Once an agency has an obligation to

prepare an EIS, the scope of its analysis of

environmental consequences in that EIS must

be appropriate to the action in question. 

NEPA is not designed to postpone analysis of

an environmental consequence to the last

possible moment. Rather, it is designed to

require such analysis as soon as it can

reasonably be done. If it is reasonably

possible to analyze the environmental

consequences in an EIS for [a Resource
18 NATIVE VILLAGE OF POINT HOPE V. JEWELL

Management Plan], the agency is required to

perform that analysis.

Id. at 1072 (citation omitted); see also Pac. Rivers Council v.

U.S. Forest Serv., 689 F.3d 1012, 1025–27, 1029–30 (9th Cir.

2012), dismissed as moot, 133 S. Ct. 2843 (2013). This is not

to say that an agency must provide the most extensive

environmental analysis possible at the earliest possible

moment, for an agency has some flexibility in deciding the

level of analysis to be performed at a particular stage. We

will defer to the agency’s judgment about the appropriate

level of analysis so long as the EIS provides as much

environmental analysis as is reasonably possible under the

circumstances, thereby “provid[ing]sufficient detail to foster

informed decision-making” at the stage in question. Friends

of Yosemite Valley, 348 F.3d at 800 (internal quotation marks

omitted).

In the case before us, we conclude that BOEM has

reasonably concluded that the missing information from the

FEIS and SEIS is not “essential” to informed decisionmaking

at the lease sale stage. We agree with BOEM that compliance

with statutes such as the MMPA and the ESA will provide

protection for animals covered by those statutes. The MMPA

generallyprohibits the “take” of marine mammals. 16 U.S.C.

§ 1371(a). A “take” encompasses any act of “torment” or

“annoyance” that “has the potential to injure . . . or . . . disturb

a marine mammal or marine mammal stock in the wild by

causing disruption of natural behavioral patterns, including,

but not limited to, migration, surfacing, nursing, breeding,

feeding, or sheltering.” Id. § 1362(13), (18)(A)(i)–(ii). 

Unlawful “takes” trigger civil and criminal penalties. Id.

§ 1375(a)(1), (b). Further, under the ESA § 7(a)(2),

16 U.S.C. § 1536(a)(2), BOEM must consult with the
NATIVE VILLAGE OF POINT HOPE V. JEWELL 19

National Marine Fisheries Service and the U.S. Fish and

Wildlife Service to “insure that anyaction authorized, funded,

or carried out by such agency . . . is not likely to jeopardize

the continued existence of any endangered species or

threatened species.” If an action is likely to jeopardize a

species, the acting agency must determine whether any

“reasonable and prudent alternatives” exist that will avoid

jeopardizing that species. 16 U.S.C. § 1536(b)(3)(A). We

recognize that BOEM has already consulted with these

agencies at the lease sale stage. It may well have to consult

with them again at the development and production stage

when specific plans have been proposed and site-specific

activities are contemplated. (We note that it may also have to

consult again at the lease sale stage, once it has performed a

proper analysis of the estimated overall oil production.) 

Because these statutes provide additional protections for

animals in the Chukchi Sea, theysupport BOEM’s conclusion

that missing information about these animals was not

“essential” at this stage.

We also agree with BOEM that further environmental

analysis will be appropriate at a later stage. In BOEM’s

words, “certain items of presently missing or incomplete

information will be known (and utilized to avoid or minimize

adverse impacts) at a later stage of OCS Lands Act

environmental review.” That is, “when a project proponent

actually submits a plan,” BOEM will be required under

NEPA to perform a plan- or site-specific environmental

analysis of that proposed plan. At that stage, missing or

incomplete information that has not been “essential to a

reasoned choice among alternatives” at the lease sale stage

may later become essential. If there is “essential”

information at the plan- or site-specific development and

production stage, BOEM will be required to perform the
20 NATIVE VILLAGE OF POINT HOPE V. JEWELL

analysis under § 1502.22(b) that it has not performed in the

FEIS and SEIS now before us.

Of course, we recognize that our discussion and decision

in the next Section regarding BOEM’s one billion barrel

estimate may have some effects upon the remainder of the

FEIS. But we will not at this time speculate about the extent

of those effects, if any. The Defendants are in the best

position to analyze those effects, if any, and have the duty to

analyze them in the first instance.

B. One Billion Barrel Estimate

Plaintiffs contend that BOEM chose an arbitrary number

for the total barrels of economically recoverable oil from

Lease Sale 193. The FEIS estimated the amount of

recoverable oil by estimating production from the “first

offshore oil field” that would be developed within the area of

the leases. BOEM did not make any estimate of recoverable

oil from additional fields that might be developed. The FEIS

specified that the “recoverable oil resources from this field

are assumed to be 1 billion barrels (Bbbl).” The FEIS then

used the one billion barrel estimate as the basis for its

environmental analysis.

We must determine whether BOEM has articulated a

rational basis for its decision to use the one billion barrel

estimate. Mora-Meraz v. Thomas, 601 F.3d 933, 939 (9th

Cir. 2010). We must reverse a decision as arbitrary and

capricious if

the agency relied on factors Congress did not

intend it to consider, entirely failed to

consider an important aspect of the problem,
NATIVE VILLAGE OF POINT HOPE V. JEWELL 21

or offered an explanation that runs counter to

the evidence before the agency or is so

implausible that it could not be ascribed to a

difference in view or the product of agency

expertise.

Lands Council II, 537 F.3d at 987 (internal quotation marks

omitted). For the reasons that follow, we conclude that

BOEM’s one billion barrel estimate is arbitrary and

capricious.

1. The Selection of One Billion Barrels

BOEM first announced it was developing an EIS in

preparation for Lease Sale 193 in July 2005. According to

internal BOEM emails, BOEM analyst Jim Craig was

assigned to provide “resource estimates and a scenario”

which other BOEM scientists would use to analyze

environmental effects. Craig emailed his supervisor, Deborah

Cranswick, stating that he believed that “[t]he reasonably

foreseeable scenario” should include “oil production from the

first field only, not the full economic potential.” Craig’s

reason for focusing on the first field production was practical;

he would have to wait for about two months to have

information that would allow him to develop a scenario for

the entire area covered by the lease sale. Craig stated in his

email, “You realize that we won’t have the 2005 resource

assessment numbers until Sept, so we must base the scenario

on the ‘first development’ not the total economic potential.” 

Craig also indicated that this emphasis on the first oil field

was a “departure from previous work.”

Craig asked Cranswick whether the scenario should

employ a single estimate of oil production from that first
22 NATIVE VILLAGE OF POINT HOPE V. JEWELL

field, or whether it should employ a range. Cranswick

responded by email that she preferred a range. Craig then

suggested, in a July 29 email, a range from 500 million

barrels to 1.5 billion barrels. Craig emphasized in his email

that the scenario should assume “equal probability for any

volume within the range” so that one billion barrels “does not

become the de facto most-likely” outcome. Craig’s draft

scenario also noted, with respect to recoverable oil in the

Chukchi Sea, that “[o]ur current petroleum assessment

indicates that recoverable oil resources could range from 3.6

to 11.8 billion barrels.”

There is a gap in the email chain in our record, so we do

not know Cranswick’s next response to Craig. But we do

know that in a subsequent email from Craig to Cranswick on

August 2, Craig proposed a single one billion barrel estimate

as an alternative to using a range that was “too broad”:

Attached is a table with E&D data. If this

represents too broad of a range, then I think

we should fall back to a single volume (1.0

Bbbl) for the EIS analysis with a

corresponding set of single E&D numbers. 

It’s hard to have it both ways (very narrow

range) when these figures are entirely

speculative.

There are two clear options:

1) 500-1500 MMbbl, as a uniform

distribution (every point in range is

equally likely). This will require a low and

high case analysis.
NATIVE VILLAGE OF POINT HOPE V. JEWELL 23

2) 1.0 Bbbl as a single point estimate with

no confidence interval. This will require

a mostly likely case analysis only.

Although it would be nice to propose a

recoverable oil volume of 932 MMbbl +/- 134

MMbbl in a 90% confidence interval, we

don’t have any data to support it.

Pick (1) or (2), but not (1) and (2).

On August 3, Cranswick emailed Craig a data chart reflecting

Craig’s second option. It contained only a single one billion

barrel estimate.

On that same day, Craig emailed to Cranswick a draft

scenario relying on the one billion barrel estimate of oil

production. This draft explained:

The scenario assumed for environmental

analysis involves the discovery, development,

and production of the first oil field in the

Chukchi sale area. Ultimately recoverable oil

resources from this field are assumed to be 1

billion barrels (Bbbl). Smaller oil volumes are

not likely to be economic to produce and

single pools containing larger volumes are

increasingly rare. If oil prices drop below

$30.00 per barrel (they are above $50.00

when this scenario was written), exploration

in the Chukchi OCS is expected to be minimal

and oil discoveries may not be developed.
24 NATIVE VILLAGE OF POINT HOPE V. JEWELL

The draft also pointed out that “the mean recoverable oil

resource [in the Chukchi Sea] is 12 Bbbl with a 5%

probability of 29 Bbbl.” Craig also prepared a chart for

Cranswick comparing the numbers Craig had selected for the

Lease Sale 193 EIS to an EIS prepared for the Chukchi Sea

and Hope Sea Basin for the 2002–2007 Five Year Oil and

Gas Leasing Program. That previous EIS had estimated a

range for economical oil production from 0.96 billion barrels

to 2.42 billion barrels.

On August 10, Cranswick circulated the Lease Sale 193

EIS scenario to other BOEM scientists who would be

working on the EIS. The scenario contained the one billion

barrel estimate. Cranswick explained in an email that

[t]he scenario is based on a one mid-range

economic resource number (note - this is not

necessarily the most likely. A lower volume is

more likely to occur but less likely to be

developed from an economic standpoint; a

higher volume is less likely to occur but more

likely to be developed).

Several BOEM employees expressed concern with the

agency’s proposed scenario. For example, one NEPA analyst

employed by BOEM, Dee Williams, wrote, “I don’t

understand why [the agency] doesn’t use their sophisticated

assessment indices to impose a more definitive likely

scenario. Clearly, it is impossible to predict ‘with certainty’,

but the narrative needs to inspire greater public confidence by

explaining the parameters of reasonable expectations.” 

Williams further stated:
NATIVE VILLAGE OF POINT HOPE V. JEWELL 25

If it becomes economical to build one

platform to produce an estimated 1 billion

barrels, and there is between 12 and 29 billion

barrels that are recoverable, why is the

scenario not compelled to imagine more than

one platform (i.e. is a single platform always

the initial scenario, in which case maybe we

should just explain that)?

Cranswick responded that “the initial scenario is one platform

because we can’t have only a partial platform if that is all that

the resource estimate support[s].” At the same time,

Cranswick suggested that smaller oil developments would be

associated with the first oil platform. “Once the first platform

goes in, it is likely that additional satellite subsea completions

would be developed before another host platform would be

considered.”

Once the draft EIS was completed, BOEM sought

comments from other agencies and from the public. 

Numerous outside commentators expressed concern aboutthe

scenario BOEM had developed. For example, the

Environmental Protection Agency wrote that

the hypothetical development scenario that is

used in the document add[s] additional layers

of uncertainty regarding the probabilities of

exploration, production and development

activities and the risks associated with those

activities. . . . EPA is concerned that, overall,

the depth and diversity of uncertainties

presented in the document resulted in the lack

of adequate support for many of the

document’s conclusions.
26 NATIVE VILLAGE OF POINT HOPE V. JEWELL

The Division of MigratoryBird Management at the U.S. Fish

and Wildlife Service (“FWS”) similarly challenged the one

billion barrel estimate as inaccurate:

The basic assumptions used in the analysis of

effects are flawed with regards to the size of

development scenarios. The [Draft EIS

(“DEIS”)] states that the current petroleum

assessment indicates a mean recoverable oil

resource of 12 billion barrels; yet all

environmental analyses reported in the DEIS

are based on a development of 1 billion

barrels, thereby significantly underestimating

likely scenarios.

The Division recommended that BOEM not proceed with the

lease sale until problems with the EIS were corrected. Public

commentators similarly pointed to flaws in employing a one

billion barrel production estimate, including that such an

estimate was “based on a price of oil at half the current

market value,” that the estimate “severelyunderstates the true

cumulative impacts” of oil production, and that it was

“nowhere . . . justified with scientific analysis.” Despite these

criticisms, BOEM continued to rely on its one billion barrel

estimate. The one billion barrel estimate was the basis for the

entire FEIS, including its analysis of the risk of a large oil

spill. For example, BOEM instructed the FWS to rely on that

estimate in that agency’s analysis of whether the lease sale

would jeopardize listed threatened species such as the

spectacled and Steller’s eiders. Had FWS made a jeopardy

finding, BOEM either would not have been able to proceed

with the Lease Sale under the ESA or would have had to

obtain an exemption from the “no jeopardy” rule. 16 U.S.C.

§ 1536(a)(2).
NATIVE VILLAGE OF POINT HOPE V. JEWELL 27

2. Arbitrary and Capricious

Plaintiffs contend that the one billion barrel estimate was

chosen arbitrarily, and that BOEM did not provide an

adequate explanation for its selection. We agree for three

reasons.

First, BOEM has not justified its choice of the lowest

possible amount of oil that was economical to produce as the

basis for its analysis. The draft EIS scenario stated that the

agency chose to focus on a one billion barrel estimate in part

because any volume lower than one billion barrels would not

be economical to produce. At the same time, BOEM was

well aware that if any oil was produced from Lease Sale 193,

the economically recoverable oil was very likely to exceed

one billion barrels. In an August 18, 2005, email

commenting on the in-progress draft EIS, Jim Craig wrote,

“We assume 1 billion bbl for the first field, but there is

another 11 Bbbl that is economic at $70.” Craig attached a

table to a December 2005 email, listing “Estimates for

Speculative Oil and Gas Reserves,” specifying a range

between 1.0 and 6.1 billion barrels for the “Chukchi Shelf.” 

Finally, in a May 2006 email Craig wrote, “The ‘1-billion

barrel, first field’ assumption is subjective (‘for purposes of

analysis’) and represents only a fraction of the full economic

resource potential in the Chukchi (which was recently

published).”

The mean estimate of economical oil production, at the

center of the distribution curve, is by definition a more likely

occurrence than is the lowest estimate of viable oil

production. Previous EISes in the Chukchi Sea had used the

mean estimate of oil production as the basis for their

analyses, and those EISes had also included low and high
28 NATIVE VILLAGE OF POINT HOPE V. JEWELL

estimates. For example, BOEM previously leased portions of

the Chukchi Sea in now-expired Lease Sale 109. The parcels

leased in Lease Sale 109 overlap substantially with the

parcels leased in Lease Sale 193. Documents prepared in

advance of Lease Sale 109 stated that “[t]he mean resource

estimate . . . is 2.68 billion barrels of oil with a 20 percent

chance of a discovery of commercially recoverable oil.” In

estimating the effects of oil spills from Lease Sale 109,

BOEM “assume[d] the full development of the resource

estimate of 2.68 billion barrels.” In contrast, while estimates

in the record about the economically recoverable amount of

oil from Lease Sale 193 vary, nowhere is the mean amount of

economical production calculated to be less than 2.37 billion

barrels. But the FEIS for Lease Sale 193 uses one billion

rather than 2.37 billion barrels as the basis for its analysis of

environmental consequences.

BOEM’s primary explanation for using its low-end

estimate for oil production is that this scenario overestimates

the likely amount of production. BOEM emphasizes that

because of the remoteness of the area and the risk of

economic failure, any oil production activity is an unlikely

result of the lease sale. More specifically, BOEM estimates

that there is a less than 10 percent likelihood that oil

development in the region will occur. Defendants argue that

since the most likely foreseeable outcome is no oil

development at all, one billion barrels of oil production is

actually a generous estimate.

This analysis is flawed. The assumption that there is a 10

percent chance of commercial oil development is itself

without a rational basis in the record. Jim Craig first

developed the estimate “off the top of [his] head” in an email

exchange. That calculation contradicts estimates used earlier
NATIVE VILLAGE OF POINT HOPE V. JEWELL 29

in the EIS, as well as estimates used in past EISes for the

Chukchi Sea. Further, BOEM conflates the likelihood of oil

and gas production with the likelihood of environmental

effects if such production occurs. Based on its responsibility

to “‘consider[] all foreseeable direct and indirect impacts’” of

the proposed action, N. Alaska Envtl. Ctr., 457 F.3d at 975

(citation omitted), BOEM concluded that oil production was

“reasonably foreseeable.” There is a substantial basis for this

in the record because, as noted by BOEM, “the area has high

oil resource potential and there is existing transportation

infrastructure to move oil from northern Alaska to distant

markets.” Once BOEM made the determination that

production is reasonably foreseeable, it was required to

consider the full cumulative impact of that production. See

40 C.F.R. § 1508.7. Put differently, BOEM might well be

right that the most likely outcome is that there will be no oil

development in the Chukchi Sea. But that fact should have

made no difference to BOEM’s analysis of the reasonably

foreseeable environmental effects of oil development, if such

development does occur.

Second, the FEIS did not take into account variation in oil

prices in arriving at the estimate that one billion barrels of oil

are economicallyrecoverable. An assumption of stable prices

ignores the fact that the amount of economically recoverable

oil varies substantially depending on oil prices. This may be

seen, for example, in a 2006 report of the Minerals

Management Service (a prior incarnation of BOEM), which

estimated economically recoverable oil from the Chukchi

Shelf at different prices. At $30 per barrel, the mean estimate

was 0 barrels; at $46 per barrel, the mean estimate was 2.37

billion barrels; at $60 per barrel, the mean estimate was 8.38

billion barrels; at $80 dollars per barrel, the mean estimate

was 12 billion barrels.
30 NATIVE VILLAGE OF POINT HOPE V. JEWELL

Third, BOEM has not provided an adequate explanation

for its decision to base its EIS only on the amount of oil

expected to be produced from the first field in the leased area

of the Chukchi Sea. It is unclear from the record how BOEM

initially estimated that the first field would produce one

billion barrels of oil. Jim Craig himself suggested that his

calculations regarding that first development were “entirely

speculative.” But even assuming that one billion barrels is an

accurate estimate of the amount of oil to be produced from

the first field, it is unclear why BOEM assumed that only one

oil field would be developed in the lease area. The FEIS

itself acknowledges that “[w]hen the first project overcomes

the cost, logistical, and regulatory hurdles, more projects are

. . . likely to follow.”

The FEIS explains that it is unlikely that “all

economically viable resources will be developed” in the Sea

due to the difficulties in operating in a frontier area of oil

production. But the FEIS does not explain why production

would be expected to stop if the first oil field is developed. 

The primary explanation for that assumption suggested by the

record is that data to analyze “the full economic potential” of

the lease sale would not be available until about two months

after Jim Craig initially proposed an estimate based on the

first field. Previous evaluations of Chukchi Sea oil

development had assumed that multiple oil fields would

develop once commercial development was viable. In a

technology assessment of Chukchi Sea petroleum

development performed in 1983 for BOEM, the Bureau of

Land Management had used a 1.5 billion barrel estimate to

measure prospects in “the central Chukchi shelf.” That

assessment assumed that two oil fields would be developed:

one of one billion barrels and one of 0.5 billion barrels. On

the record before us, it remains unclear why BOEM chose to
NATIVE VILLAGE OF POINT HOPE V. JEWELL 31

analyze the lowest amount of oil that could be produced in

the Chukchi Sea from the smallest number of oil fields that

could be developed.

Defendants contend that any error resulting from using

the one billion barrel estimate can be corrected through sitespecific EISes later in the development process. We disagree. 

An agency is required to analyze the environmental effects in

an EIS as soon as it is “reasonably possible” to do so. Kern,

284 F.3d at 1072. An appropriate time to estimate the total

oil production from the lease sale is the time of the lease sale

itself. Under NEPA, BOEM is required to take into account

the full environmental effects of its actions when deciding

whether and in what manner to pursue the lease sale. 

42 U.S.C. § 4332(2)(C). A later project or site-specific

environmental analysis is an inadequate substitute for an

estimate of total production from the lease sale as a whole. 

It is only at the lease sale stage that the agency can adequately

consider cumulative effects of the lease sale on the

environment, including the overall risk of oil spills and the

effects of the sale on climate change. It is also only at the

lease sale stage that the agency can take into account the

effects of oil production in deciding which parcels to offer for

lease.

We also disagree with defendants that our decisions in

Akutan, 869 F.2d at 1191–92, False Pass, 733 F.2d at 617,

and Watt, 683 F.2d at 1267–68, compel a contrary result. In

False Pass, plaintiffs challenged the agency for failing to

consider the worst case scenario for oil development. 

773 F.2d at 614. In the circumstances presented there, we

held that there was a rational explanation for not considering

the worst case at the lease sale stage. Here, in contrast, the

BOEM considered only the best case scenario for
32 NATIVE VILLAGE OF POINT HOPE V. JEWELL

environmental harm, assuming oil development. A best case

scenario “skew[s]” the data toward fewer environmental

impacts, and thus impedes a “full and fair discussion of the

potential effects of the project.” Native Ecosystems Council

v. U.S. Forest Serv., 418 F.3d 953, 965 (9th Cir. 2005)

(citation and internal quotation marks omitted).

Unlike in Akutan, BOEM’s estimate did not merely

inform an assessment of the likelihood of an oil spill. 

869 F.2d at 1192. Among other things, its estimate informed

an assessment of seismic effects, habitat effects, oil

production, and the cumulative effects of the sale on global

warming. BOEM’s estimate also informed FWS’s

determination that Lease Sale 193 would not jeopardize listed

species. The record suggests that FWS was close to finding,

even under the one billion barrel assumption, that the lease

sale would jeopardize the spectacled and Steller’s eiders. 

Had BOEM not selected the least amount of oil necessary for

production, FWS may well have concluded that the listed

species were in jeopardy. See 16 U.S.C. § 1536(a)(2).

Finally, the degree of error in the estimation of total oil

production is greater here than in our earlier cases. In Watt,

the agency was ready to publish its EIS when newly available

figures suggested that oil reserves were “roughly twice those

originally estimated.” 683 F.2d at 1267. We held in Watt

that the agency had acted reasonably when it decided not to

supplement its EIS with last-minute analysis of the risk of an

oil spill based on the new figures. Id. at 1267–68. In the case

before us, BOEM was fully aware from the very beginning

that if one billion barrels could be economically produced,

many more barrels could also be economically produced. 

Indeed, at current oil prices, it would be economical to
NATIVE VILLAGE OF POINT HOPE V. JEWELL 33

recover twelve times the one billion barrel estimate used by

BOEM. This is a far more dramatic difference than in Watt.

We do not criticize BOEM’s decision to estimate the total

amount of economically recoverable oil from the lease sale. 

Given the uncertainties involved in the Chukchi Sea, BOEM

had no choice but to make an estimate. But having decided

that oil production was reasonably foreseeable, NEPA

required BOEM to base its analysis on the full range of likely

production if oil production were to occur. It did not do so

here.

Conclusion

We conclude that the FEIS and SEIS properly took

account of incomplete or unavailable information. However,

we conclude that reliance in the FEIS on a one billion barrel

estimate of total economically recoverable oil was arbitrary

and capricious.

We REVERSE and REMAND to the district court for

further proceedings consistent with this opinion.

RAWLINSON, Circuit Judge, concurring in part and

dissenting in part:

I agree with most of the majority opinion, including that

the missing information from the final environmental impact

statement (FEIS) and the Supplemental Impact Statement

(SEIS) is not essential to informed decisionmaking at the

lease sale stage, and that further environmental analysis will

be more appropriate at a later stage. However, I do not agree
34 NATIVE VILLAGE OF POINT HOPE V. JEWELL

that the Bureau of Ocean Energy Management, Regulation

and Enforcement (BOEM) acted arbitrarily in selecting one

billion barrels of oil as the benchmark for analyzing the

environmental affects of the proposed leases.

I begin with a reminder that our review of the agency’s

analysis of technical data is extremely limited. See Lands

Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en

banc), overruled on other grounds as recognized by Am.

Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052

(9th Cir. 2009) (“Review under the arbitrary and capricious

standard is narrow, and we do not substitute our judgment for

that of the agency. . . .”) (citation, alteration and internal

quotation marks omitted). We should also keep in mind that

the National Environmental Policy Act (NEPA) “does not

mandate particular results.” Dep’t of Transp. v. Pub. Citizen,

541 U.S. 752, 756 (2004). Rather, the statute “imposes only

procedural requirements on federal agencies . . .” Id. Under

NEPA, “[w]e review an [Environmental Impact Statement]

under a rule of reason to determine whether it contains a

reasonably thorough discussion” of the potential

environmental effects of a planned federal action. Edwardsen

v. Department of the Interior, 268 F.3d 781, 784 (9th Cir.

2001) (citation omitted).

The majority opinion takes issue with the agency’s

selection of one billion barrels of oil as the benchmark

amount for assessing potential environmental effects of the

oil leases. However, our review is at its most deferential

when we consider a predictive estimate such as BOEM’s

estimate of the amount of oil recoverythat should be included

in the environmental effects analysis. See Lands Council,

537 F.3d at 993 (“[W]e are to conduct a particularly

deferential review of an agency’s predictive judgments about
NATIVE VILLAGE OF POINT HOPE V. JEWELL 35

areas that are within the agency’s field of discretion and

expertise . . .) (citations and internal quotation marks

omitted). Our task is only to ensure that the agency has not:

relied on factors which Congress has not

intended it to consider, entirely failed to

consider an aspect of the problem, offered an

explanation for its decision that runs counter

to the evidence before the agency, or an

explanation that is so implausible that it could

not be ascribed to a difference in view or the

product of agency expertise.

Id. (citations, alteration, and internal quotation marks

omitted).

The majority does not intimate that BOEM relied on

factors Congress did not intend it to consider, or that BOEM

entirely failed to consider an aspect of the problem. The

majority opinion also cannot be fairly read to describe

BOEM’s benchmark choice as so implausible that it could not

be ascribed to a difference in view or the product of agency

expertise. In fact, the majority opinion discusses the different

view and agency expertise brought to bear on this issue. See

Majority Opinion, pp. 21–26 (discussing the differing views

from within and without the agency). So it appears that the

basis for the majority’s ruling is that BOEM’s benchmark

estimate runs counter to the evidence before the agency. But

it doesn’t.

The potential size of commercially extractable oil

deposits in the Chukchi Sea is a quintessential example of a

predictive judgment uniquely within BOEM’s area of

expertise. Indeed, we have previously recognized that
36 NATIVE VILLAGE OF POINT HOPE V. JEWELL

“[p]rior to exploration, it is difficult to make so much as an

educated guess as to the volume of oil likely to be produced

. . . Without this information, an oil spill risk analysis can

never be more than speculative, regardless of what

methodology is used. . . .” Tribal Village of Akutan v. Hodel,

869 F.2d 1185, 1192 (9th Cir. 1989), as amended.

It is beyond dispute that the Chukchi Sea contains oil

deposits well in excess of one billion barrels. But that is not

the point. The point is whether the selection of one billion

barrels as the benchmark was the product of agencyexpertise. 

See Lands Council, 537 F.3d at 993. After considering the

available evidence, BOEM concluded that substantial

obstacles to oil development in the region made it unlikely

that future production would “ever reach the full economic

potential” in the Chukchi Sea. Five explorations had already

tested some of the largest prospective sites without

discovering a “commercial-size” oil source. With these

circumstances in mind, BOEM ultimatelyselected one billion

barrels as the benchmark estimate because lower oil volumes

were not likely to be economically feasible. Rather than

relying on general resource assessments as was done

previously, BOEM opted for the more “realistic” benchmark

tied to the discovery/development of the initial commercially

viable offshore oil field. BOEM explained that the unique,

remote, and previously unexplored nature of the Chukchi

region required analysis of the “statistically most-likely

development activity associated with a reasonable range of

resources . . . given the uncertainties of geology, engineering,

and economics that exist now” and the “streamlined”

environmental impact statement (EIS) undertaken at the

leasing stage of the process. See Akutan, 869 F.2d at 1192

(“We are the least troubled by what may seem to be

incomplete or speculative data at the lease sale stage. . . .”).
NATIVE VILLAGE OF POINT HOPE V. JEWELL 37

The majority is of the view that BOEM’s “analysis is

flawed.” Majority Opinion, p. 28. But we do not sit as a

panel of super scientists to dissect the agency’s analysis. 

Rather, we only review the process for reasonable

thoroughness. See Edwardsen, 268 F.3d at 784 (establishing

the role of the reviewing court to determine whether the

agency’s environmental impact statement “contains a

reasonably thorough discussion”). Not only was BOEM’s

discussion of the selected benchmark “reasonably thorough,”

id., its selection of the benchmark was within the range of

alternatives contained in the record. As the majority opinion

acknowledges, a previous EIS had estimated a range of

economical oil production from 0.96 billion barrels to 2.42

billion barrels. See Majority Opinion, p. 24. One billion

barrels is certainly within that range. The same is true for the

“range between 1.0 and 6.1 billion barrels” referenced at page

27 of the Majority Opinion and for the 10 percent estimate of

the chance of commercial oil development. See Majority

Opinion, p. 28 (noting the EIS’s earlier reference to a 10–20

percent estimate and past estimates of 20 percent likely).

I readily acknowledge that there was disagreement in the

scientific community concerning the selected benchmark. 

But disagreement does not render the chosen estimate

irrational. Rather, it typifies the “difference in view” that we

have established as a safe harbor against successful attack

under NEPA. See Lands Council, 537 F.3d at 993. There is

no such thing as a perfect estimate and BOEM was not

required to adopt a different benchmark in the face of its

critics. See Environmental Defense Center, Inc. v. EPA,

344 F.3d 832, 872 (9th Cir. 2003) (“We defer to an agency

decision not to invest the resources necessary to conduct the

perfect study . . .”). BOEM explained its reasons for

selecting its benchmark estimate, and we are uniquely
38 NATIVE VILLAGE OF POINT HOPE V. JEWELL

unqualified to second-guess that selection. As the D.C.

Circuit recognized in City of L.A. v. Dep’t of Transp.,

165 F.3d 972, 977 (D.C. Cir. 1999): “[That some or many

[experts] would disapprove of [BOEM’s] approach does not

answer the question presented to us. In reviewing [BOEM’s

EIS], we do not sit as a panel of referees on a professional

[scientific] journal, but as a panel of generalist judges obliged

to defer to a reasonable judgment by an agency acting

pursuant to congressionally delegated authority. . . .”)

(citations omitted).

Because of the deference due the agency, and because

BOEM’s chosen benchmark was reasonably selected and

adequately explained, our work here is done. We should

afford BOEM’s EIS the deference due and affirm the district

court’s order of dismissal.

I respectfully dissent.