Oceana, Inc. v. National Marine Fisheries Service, 705 F. App'x 577

Plaintiffs Oceana and Greenpeace challenged NMFS’s 2014 Biological Opinion (BiOp) and Final Environmental Impact Statement assessing effects of proposed fishing regulations on the western DPS of Steller sea lions; district court granted summary judgment to NMFS and other federal defendants; plaintiffs appealed.
The 2014 BiOp concluded the proposed regulations were "not likely to jeopardize" the species or to destroy/adversely modify designated critical habitat under the ESA.
NMFS relied on post-2010 scientific analyses, stringent catch limits, evidence of partitioning (depth for pollock; space for Atka mackerel), and studies showing no clear link between fishing and sea lion population declines.
Plaintiffs argued the agency: ignored a prior 2010 jeopardy conclusion, failed to identify a species "tipping point," improperly treated and omitted significant internal scientific critiques, and relied on imperfect data.
The panel reviewed de novo the district court’s summary-judgment grant and evaluated whether NMFS’s actions complied with the ESA and APA, including use of the best scientific data available and discussion of opposing views.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 2014 BiOp lawfully concluded action "not likely to jeopardize" species	2014 BiOp is arbitrary given 2010 jeopardy finding and scientific uncertainty	2014 BiOp relied on new, reasoned scientific analyses and explained differing conclusion	Affirmed: BiOp rationally assessed uncertainty and reached supported no-jeopardy conclusion
Whether agency had to calculate a "tipping point" for population recovery	Agency must identify tipping point when actions have significant negative effects	No significant population/habitat effect here, so tipping-point calc not required	Affirmed: tipping-point duty not triggered because NMFS found no significant adverse effect
Whether partitioning findings (depth/space) were supported by record	Partitioning conclusions rest on imperfect/insufficient data	Agency used best available data, acknowledged limits, exercised scientific judgment	Affirmed: deference owed; record supports partitioning determinations
Whether agency failed to disclose and address responsible opposing views in EIS/BiOp	Plaintiffs point to internal critiques of draft that were not disclosed in final documents	Final BiOp adopted some critique points and explained limited use of data; nondisclosure of critiques not reversible error	Affirmed: agency adequately addressed criticisms and disclosure omission was not fatal

Nat. Res. Def. Council, Inc. v. Pritzker, 828 F.3d 1125 (9th Cir. 2016) (standard of review; prior decision discussing BiOp review)
Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (agency must resolve competing scientific opinions; deference to agency judgment)
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (U.S. 2008) (overruling aspects of injunctive-relief jurisprudence referenced)
Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010) (when significant negative effects exist, agency must consider species recovery and tipping points)
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) (agency required to calculate tipping point where proposed operation would have significant negative impacts)
Alaska Oil & Gas Ass’n v. Pritzker, 840 F.3d 671 (9th Cir. 2016) (courts defer to agency’s scientific judgments when reasonably explained)
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) ("best scientific data available" does not require perfection; agency must use available better data when present)
Greater Yellowstone Coal. v. Lewis, 628 F.3d 1143 (9th Cir. 2011) (agency need not always disclose every uncertainty in models)
Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157 (9th Cir. 2003) (agency erred by failing to disclose significant scientific disagreement with key conclusions)