Opinion in CBD v. Salazar, 10-35123, affirming district court decision.
First paragraph, by Circuit Judge William Fletcher
“This case involves U.S. Fish and Wildlife Service (“Service”) regulations under Section 101(a)(5)(A) of the Marine Mammal Protection Act (“MMPA”) that authorize incidental take of polar bears and Pacific walruses resulting from oil and gas exploration activities in the Chukchi Sea and on the adjacent coast of Alaska. The Center for Biological Diversity and Pacific Environment brought suit challenging the regulations and accompanying environmental review documents under the MMPA, Endangered Species Act (“ESA”), and National Environmental Policy Act (“NEPA”). The district court granted summary judgment to the service. We affirm.”
Conclusion: Page 9560 (38)
“Section 101(a)(5)(A) of the MMPA requires the Service to determine separately that a specified activity will take only “small numbers” of marine mammals, and that the take will have only a “negligible impact” on the species or stock. We hold that the Service permissibly determined that only “relatively small numbers” of polar bears and Pacific walruses would be taken in relation to the size of their larger populations, because the agency separately determined that the anticipated take would have only a “negligible impact” on the mammals’ annual rates of recruitment or survival. The “small numbers” determination was consistent with the statute and was not arbitrary and capricious. We also hold that the Service’s accompanying BiOp and EA comply with the ESA and NEPA.”
Pages 9535-6 (13-14)
 Legislative history confirms our reading of the statute if such confirmation is needed. The House Report accompanying Section 101(a)(4)-(5) of the MMPA indicates that Congress intended “small numbers” and “negligible impact” to serve as two separate standards. The Report explains:
“The taking authorized under these new provisions is the taking of small numbers of marine mammals. The Committee recognizes the imprecision of the term ‘small numbers’, but was unable to offer a more precise formulation because the concept is not capable of being expressed in absolute numerical limits. The Committee intends that these provisions be available for persons whose taking of marine mammals is infrequent, unavoidable, or accidental.
“It should also be noted that these new provisions of the Act provide an additional and separate safeguard in that the Secretary must determine that the incidental takings of small numbers of marine mammals have a ‘negligible’ impact upon the species from which such takings occur. This additional test is meant to serve as a separate standard restricting the authority of the Secretary. . . . Unless a particular activity takes only small numbers of marine mammals, and that taking has a negligible impact on the species, the new provisions of sections 101(a)(4) and (5) are not applicable to that activity.”
Plaintiffs argue that “while ‘negligible impact’ may be a relative concept, ‘small numbers’ is an absolute limit that may not be defined in relation to population size, distribution, or other demographics.” They contend that the “small numbers” language in Section 101(a)(5)(A) requires the Service to quantify in absolute terms the number of mammals that would be taken by the covered activities pursuant to the incidental take regulations. The Service does not provide a numerical estimate of the take that would occur under the 2008 Chukchi Sea regulations. We agree with the Service that Congress has not spoken directly to the question whether “small numbers” can be analyzed in relative or proportional terms. As the Service observed in its brief, “ ‘Small numbers’ in this context does not have a plain meaning that unambiguously forbids use of a proportional approach.” Legislative history reveals that Congress recognized “the imprecision of the term ‘small numbers,’ but was unable to offer a more precise formulation because the concept is not capable of being expressed in absolute numerical limits.” H.R. Rep. No. 97-228, reprinted in 1981 U.S.C.C.A.N. at 1469 (emphasis added). Nor is there anything in Section 101(a)(5)(A) that requires the Service, when promulgating incidental take regulations, to quantify or estimate the number of mammals that would be taken. In contrast, Congress expressly required numerical estimates in other provisions of the MMPA.”
“Specifically, the “small numbers” determination focuses on the portion of a species or stock subject to incidental take, whereas the “negligible impact” analysis focuses on the impact of the anticipated take — that is, on whether the type and duration of take or harassment may adversely affect the species’ annual rates of recruitment or survival. The Service explains that “even if a proposed activity affects only a small number of animals, the Service could still find[ ] that the taking will have more than a negligible effect on the species or stock, particularly if the impact on those particular animals is severe, or if those animals are of great importance to the species or stock.”
“We hold that “small numbers” and “negligible impact” are distinct standards that the Service must satisfy when promulgating incidental take regulations under Section 101(a)(5)(A) of the MMPA. The Service need not quantify the number of marine mammals that would be taken under the regulations, so long as the agency reasonably determines through some other means that the specified activity will result in take of only “small numbers” of marine mammals. The Service can analyze “small numbers” in relation to the size of the larger population, so long as the “negligible impact” finding remains a distinct, separate standard. Because the Service analyzed it as a distinct standard in the 2008 final rule, we uphold the agency’s “small numbers” interpretation as applied in the challenged regulations.”
Page 9559 (NEPA)
“Plaintiffs argue that the EA “fails to analyze the significant foreseeable impacts of oil spills.” The EA discusses the possible severe, even lethal, impacts of oil spills on polar bears, Pacific walruses, and their prey. However, the EA focuses primarily on the risk of “small operational spills” because it considers the likelihood of a large spill to be very low. Plaintiffs point to a comment from the Marine Mammal Commission, citing a Minerals Management Service (“MMS”) estimate that the likelihood of a large oil spill in the Chukchi Sea was somewhere between 33 to 51 percent “over the life of the development and production activity.” The Service discussed this estimate in its rule listing the polar bear, but explains in the EA that the scope of its analysis was more narrow because the Chukchi Sea incidental take regulations cover only exploration activities and only for a period of five years.”
Plaintiffs’ arguments under the ESA echo some of their arguments under the MMPA. First, Plaintiffs fault the Service’s BiOp for relying on allegedly unproven and ineffective mitigation. In its conclusion that the 2008 Chukchi Sea regulations are not likely to jeopardize the continued existence of the polar bear, the BiOp notes, “Although Industry activities may adversely affect a small number of polar bears within the action area, mitigating measures included in the proposed action reduce the potential for exposure to adverse effects. . . .” Plaintiffs’ argument fails here for the same reason it failed under the MMPA: the record supports the Service’s determination that the mitigation measures are effective.
Second, Plaintiffs argue that the Incidental Take Statement (“ITS”) included in the Service’s BiOp fails to comply with the ESA because it does not provide a numerical limit on the amount of permissible take or provide an adequate surrogate measure for such a limit. Because the relevant ESA provisions differ from those in the MMPA, we briefly review the statutory and regulatory background before addressing this argument.
The ESA contains both substantive and procedural requirements. Substantively, Section 9 of the ESA prohibits “take” of endangered species. 16 U.S.C. § 1538(a)(1)(B). The ESA’s definition of “take” is similarly broad, but slightly different from, the MMPA’s definition. For example, whereas harassment under the ESA requires a “likelihood of injury to [a listed species] by annoying it to such an extent as to significantly disrupt normal behavioral patterns,” 50 C.F.R. § 17.3 (emphasis added), the MMPA requires only that harassment have the “potential to injure . . . or . . . disturb a marine mammal . . . by causing disruption of behavioral patterns,” 16 U.S.C. § 1362(18)(A)(i)-(ii) (emphasis added).
Procedurally, Section 7 of the ESA requires that federal agencies consult with the Service or NMFS for any agency action that “may affect” a listed species or its critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). Formal consultation results in a BiOp that determines whether the proposed action is likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h). If the BiOp concludes that the action is not likely to jeopardize the species, but is likely to result in some take, the Service will provide an ITS along with the BiOp. 50 C.F.R. § 402.14(i). An ITS specifies the impact (i.e., the “amount or extent”) of the incidental take on the listed species, contains terms and conditions designed to minimize the impact, and, in the case of marine mammals, specifies measures that are necessary to comply with Section 101(a)(5) of the MMPA. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(1). Take that complies with the terms and conditions of an ITS is not a prohibited take under Section 9. 16 U.S.C. § 1536(o)(2); 50 C.F.R. § 402.14(i)(5). If the amount or extent of take specified in the ITS is exceeded, the Service reinitiates Section 7 consultation to ensure that the “no jeopardy” determination remains valid. 50 C.F.R. §§ 402.14(i)(4), 402.16(a).
1. Whether an ITS Was Required
As a preliminary matter, the Service and Association assert that the agency was not required to issue an ITS in this case. The Service, citing Arizona Cattle Growers’ Association v. U.S. Fish & Wildlife Service, 273 F.3d 1229, 1243 (9th Cir. 2001), argues that an ITS need not have accompanied the BiOp for the Chukchi Sea incidental take regulations because it was not “reasonably certain” that take would occur until the Service issued LOAs. The Service states that it issued an ITS along with the BiOp in this case “out of an abundance of caution.”
This argument fails for at least two reasons. First, Arizona Cattle Growers is inapposite. We held in that case that the Service could not attach binding conditions on permittees via an ITS where no listed species were present in the area and thus the agency “ha[d] no rational basis to conclude that a take will occur incident to the otherwise lawful activity.” 273 F.3d at 1242-44. Here, threatened polar bears are present in the Chukchi Sea area, and the oil and gas exploration activities are reasonably certain to result in at least some nonlethal harassment. Indeed, that is the very purpose of issuing incidental take regulations under the MMPA.
Second, the Evans court considered and rejected a similar argument that NMFS did not have to prepare an ITS along with its BiOp for incidental take regulations until it issued LOAs. 279 F. Supp. 2d at 1182-83. That court noted that the ITS provision in Section 7(b)(4) of the ESA specifically references Section 101(a)(5) of the MMPA, rather than the MMPA implementing regulations referring to LOAs, and thus “clearly contemplates the promulgation of a Final Rule, not letters of authorization,” as the trigger for producing an ITS. Id. at 1182. We agree with this reasoning.
The Association argues further that an ITS was not required in this case because the ESA Section 9 take prohibitions do not apply here. The Section 9 prohibitions apply expressly to endangered, rather than threatened, species. 16 U.S.C. § 1538(a)(1)(B). For threatened species like the polar bear, Section 4(d) provides that the Service or NMFS shall promulgate regulations that they deem “necessary and advisable to provide for the conservation of such species,” including, possibly, applying some or all of the Section 9 prohibitions to the threatened species. Id. § 1533(d); see also id. § 1538(a)(1)(G) (making it unlawful for any person to violate regulations promulgated under Section 4(d) for threatened species). When the Service listed the polar bear as threatened in 2008, it issued a Section 4(d) rule that applied most of the Section 9 prohibitions to the polar bear. 73 Fed. Reg. 28,306, 28,306 (May 15, 2008) (interim final rule); 50 C.F.R. § 17.40(q)(1).
However, because the Service concluded that MMPA restrictions are at least as protective as those under the ESA, it exempted from those prohibitions “any activity conducted in a manner that is consistent with the requirements of the Marine Mammal Protection Act.” 50 C.F.R. § 17.40(q)(2). Accordingly, the ITS accompanying the BiOp for the Chukchi Sea regulations notes that “the activities covered by this consultation are exempt from any take prohibitions that might otherwise apply under the ESA.”
 Plaintiffs contend that exemption from Section 9 take liability is irrelevant to the Service’s Section 7 obligations to prepare a BiOp and ITS. We agree. The ESA requires an ITS for “the taking of an endangered species or a threatened species incidental to the agency action,” 16 U.S.C. § 1536(b)(4)(B) (emphasis added), not the prohibited taking. The polar bear Section 4(d) rule expressly states that “[n]othing in this special rule affects the issuance or contents of the biological opinions for polar bears or the issuance of an incidental take statement, although incidental take resulting from activities that occur outside of the current range of the polar bear is not subject to the taking prohibition of the ESA.” 73 Fed. Reg. at 76,252. The Association’s argument fails to recognize that exemption from Section 9 take liability “is not the sole purpose of the ITS. If the amount or extent of taking specified in the ITS is exceeded, reinitiation of formal consultation is required. . . . Thus, the ITS serves as a check on the agency’s original decision that the incidental take of listed species resulting from the proposed action will not [jeopardize the continued existence of the species].” Evans, 279 F. Supp. 2d at 1182. Accordingly, exemption from Section 9 take prohibitions does not negate the separate requirement that the Service “will provide” an ITS along with its BiOp. 50 C.F.R. § 402.14(i)(1).
2. Numerical or Surrogate Take in the ITS
As discussed above, Section 101(a)(5)(A) of the MMPA does not require that the Service quantify in absolute terms the number of marine mammals that would be taken pursuant to incidental take regulations, so long as the agency reasonably determines through some other means that the specified activity would result in take of only “small numbers” of mammals. Legislative history of the MMPA reveals that Congress recognized that the “small numbers” concept “is not capable of being expressed in absolute numerical limits.” H.R. Rep. No. 97-228, reprinted in 1981 U.S.C.C.A.N. at 1469. By contrast, the legislative history of the ESA reveals that Congress “clearly declared a preference for expressing take in numerical form” with respect to ITSs under Section 7. Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1037 (9th Cir. 2007) (citing H.R. Rep. No. 97-567, at 27 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2827). Section 7(b)(4) of the ESA requires that an ITS specify the “impact” of the incidental take on the listed species. 16 U.S.C. § 1536(b)(4)(C)(i). ESA implementing regulations clarify that “impact” in this context means the “amount or extent” of incidental take. 50 C.F.R. § 402.14(i)(1)(i). The House Report accompanying Section 7(b)(4) states, “Where possible, the impact should be specified in terms of a numerical limitation . . . .” H.R. Rep. No. 97-567, at 27, reprinted in 1982 U.S.C.C.A.N. at 2827. “Accordingly, we have recognized that the permissible level of take [in an ITS] ideally should be expressed as a specific number.” Allen, 476 F.3d at 1037 (citing Ariz. Cattle Growers, 273 F.3d at 1249); accord Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1274-75 (11th Cir. 2009). However, “while Congress indicated its preference for a numerical value, it anticipated situations in which [the amount of take] could not be contemplated in terms of a precise number.” Ariz. Cattle Growers, 273 F.3d at 1250; see also H.R. Rep. No. 97-567, at 27, reprinted in 1982 U.S.C.C.A.N. at 2827 (“The Committee does not intend that the Secretary will, in every instance, interpret the word ‘impact’ to be a precise number. . . . [I]t may not be possible for the Secretary to specify a number in every instance.”). As a result, we have held that the Service need not specify numerical take in an ITS if it establishes “that no such numerical value could be practically obtained.” Ariz. Cattle Growers, 273 F.3d at 1250. In such circumstances, an ITS may “utilize[ ] a surrogate instead of a numerical cap on take,” so long as it “explain[s] why it was impracticable to express a numerical measure of take.” Allen, 476 F.3d at 1037. The chosen surrogate “must be able to perform the functions of a numerical limitation” by “set[ting] forth a ‘trigger’ that, when reached, results in an unacceptable level of incidental take . . .
and requir[es] the parties to re-initiate consultation.” Id. at 1038 (internal quotation marks omitted). The ITS also “must articulate a rational connection between the surrogate and the taking of the species.” Wild Fish Conservancy v. Salazar, 628 F.3d 513, 531 (9th Cir. 2010) (citing Ariz. Cattle Growers, 273 F.3d at 1250-51).
In Arizona Cattle Growers, we rejected a surrogate as too vague because it did not contain measurable guidelines and thus failed to “provide a clear standard for determining when the authorized level of take has been exceeded.” 273 F.3d at 1250-51. In Allen, we struck down an ITS that “offer[ed] no explanation of why the [Service] was unable numerically to quantify the level of take.” 476 F.3d at 1038. In that case, the BiOp for timber sales in suitable habitat for the threatened northern spotted owl noted that owl survey data was out of date, and that surveys had been discontinued or reduced. Id. We noted that the Service “never states that it is not possible to update the survey data in order to estimate the number of takings, only that it has not actually done the surveys. This does not establish the numerical measure’s impracticality.” Id. We also rejected the ITS for using an improper surrogate that authorized the take of all spotted owls associated with the project and thus did not set forth an adequate trigger for reinitiating consultation. Id. at 1038-39. We explained that “[e]ven if the actual number of takings of spotted owls that occurred during the project was considerably higher than anticipated [in the BiOp], the Incidental Take Statement would not permit the [Service] to halt the project and reinitiate consultation.” Id. at 1039.
Here, the ITS does not specify a numerical measure of the “amount or extent” of anticipated incidental take. The ITS states:
In the accompanying [BiOp], the Service determined that total take anticipated as a result of the issuance of the Regulations under section 101(a)(5)(A) of the MMPA is not likely to result in jeopardy to the polar bear. No lethal take is anticipated. While the Service cannot anticipate the specific amount or extent of other types of take that may result from activities that may be authorized under the Regulations until they are proposed and the specific activities and location is known, the negligible effects finding and the small numbers determination articulates the anticipated amount of take with respect to effect on the population. Borrowing from a draft of the Chukchi Sea final rule, the Service explains elsewhere in the BiOp that The dynamic nature of sea ice habitats and its influence on the seasonal and annual distribution and abundance of polar bears and walruses in the specified geographical region (eastern Chukchi Sea), limits the Service’s ability to provide a priori numerical estimates of the number of Pacific walruses and polar bears that might potentially be impacted in any given year.
The final rule elaborates on this explanation in its response to comments. See 73 Fed. Reg. at 33,243-44.  The ITS is not very illuminating regarding the feasibility of providing a specific numerical estimate of take under the ESA. The Service at oral argument contended that the explanation, while short, adequately summarizes the reasons, described in greater detail in the final rule, why a numerical measure was impracticable. Although it is a close question, we conclude that the ITS, as supplemented by the explanation elsewhere in the BiOp, sufficiently “explain[s] why it was impracticable to express a numerical measure of take.” Allen, 476 F.3d at 1037. This is not a case, as in Allen, where “the BiOp offers no explanation of why the [Service] was unable numerically to quantify the level of take.” Id. at 1038. A surrogate measure of take in an ITS “must be able to perform the functions of a numerical limitation” by setting forth “a clear standard for determining when the authorized level of take ha[s] been exceeded.” Id. at 1038-39 (an adequate surrogate must contain “measurable guidelines to determine when incidental take would be exceeded” and “not be so general that the applicant or the action agency cannot gauge its level of compliance”). Here, the ITS states that the “negligible effects finding and the small numbers determination [in the 2008 Chukchi Sea rule] articulates the anticipated amount of take with respect to effect on the population.” In most circumstances, such a statement in an ITS would not serve as an adequate surrogate because it does not specify a clear standard for determining when the anticipated level of take would be exceeded. See Ctr. for Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115, 1138-39 (N.D. Cal. 2006) (“To the extent this sentence is meant to act as a surrogate for a numerical estimate of take, it is too vague and confusing to act as any meaningful standard upon which compliance with the ITS can be measured.”). However, given the interplay between the ESA and MMPA in this case, we conclude that the ITS, incorporating by reference the 2008 Chukchi Sea rule, satisfies the requirement that it specify “the impact, i.e., the amount or extent,” of the incidental take. 50 C.F.R. § 402.14(i)(1)(i).
We base this conclusion on several factors. First, as discussed above, a primary purpose of the ITS and its measure of permissible take is to provide a trigger for reinitiating consultation under Section 7(a)(2) of the ESA. See Allen, 476 F.3d at 1040; Evans, 279 F. Supp. 2d at 1182 (“[T]he ITS serves as a check on the agency’s original decision that the incidental take of listed species resulting from the proposed action will not violate section 7(a)(2) of the ESA.”). However, the relevant MMPA standard at issue here is more conservative than the ESA standard. The Service, when promulgating incidental take regulations under Section 101(a)(5) of the MMPA, must determine that the specified activity will have no more than a “negligible impact” on the relevant stock of polar bears, 16 U.S.C. § 1371(a)(5)(A)(i)(I), whereas the standard under Section 7(a)(2) of the ESA is whether the agency action would “jeopardize the continued existence” of the species as a whole, id. § 1536(a)(2). As the BiOp explains [I]f an action meets the MMPA standard of negligible impact . . . , there should be little potential for the action to jeopardize the species. . . . It is reasonable to expect that a proposed action being independently evaluated under the MMPA and the ESA would be determined to have more than a negligible impact before, and in some cases well before, a jeopardy determination would be made.
Thus, so long as the amount and extent of take remains consistent with the Service’s “small numbers” and “negligible impact” findings in the MMPA incidental take regulations, there should be no need for reinitiating consultation under the ESA.
Second, Section 101(a)(5)(B) of the MMPA provides that the Service “shall withdraw, or suspend[,]” its incidental take authorization if the agency finds that take from the specified activity “is having, or may have, more than a negligible impact on the species or stock concerned.” Id. § 1371(a)(5)(B). The Service highlighted this provision in its response to comments in the final rule. See 73 Fed. Reg. at 33,240. The “may have[ ] more than a negligible impact” standard would necessarily operate as a trigger to reinitiate consultation under the ESA. See 50 C.F.R. § 402.16(b) (“Reinitiation of formal consultation is required . . . [i]f new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered.”). Accordingly, this is not a case, as in Allen, where “[e]ven if the actual number of takings . . . was considerably higher than anticipated [in the BiOp], the Incidental Take Statement would not permit the [Service] to halt the project and reinitiate consultation.” 476 F.3d at 1039.
The Service will not always be able to rely on findings under Section 101(a)(5)(A) of the MMPA to specify the “amount or extent” of take permitted under the ESA. Such reliance is permissible only where, as here, the Service first establishes that it is impracticable to quantify a numerical measure of take. If the Service fails to establish that a numerical measure is impracticable, then the ESA requires that the agency provide a numerical limit in the ITS, even though Section 101(a)(5)(A) of the MMPA does not require it in the incidental take regulations themselves. Such reliance is also permissible only where, as with the polar bear here, the listed Species at issue is also a marine mammal subject to the incidental take regulations under the MMPA. If the specified activity pursuant to the incidental take regulations could affect other listed species, like threatened or endangered fish, as in Evans, 279 F. Supp. 2d at 1180-81, a “small numbers” and “negligible impact” finding as to marine mammals under the MMPA would be irrelevant to the Service’s obligations to protect those other species under the ESA. In such an instance, the Service could not rely on findings in the MMPA incidental take regulations to provide a surrogate for the “amount or extent” of take under the ESA.
Third, Plaintiffs have failed to articulate a feasible, alternative surrogate measure of take. Given the nature of the species, the geographic region, and the proposed activities at issue here, we recognize that it may be impossible for the Service to develop an adequate surrogate based on other potential measures, such as habitat or ecological conditions. Here, the Service is dealing with about 3,500 widely distributed polar bears that travel thousands of miles per year, a dynamically changing geographic area of about 90,000 square miles, proposed oil and gas activities without specific locations, and a type of anticipated take that results in only short-term, minimal changes in behavior. We do not hold that it is generally a plaintiff’s burden to propose alternative, surrogate measures of take. But Plaintiffs’ inability to propose such measures here — even when specifically questioned about it at oral argument — influences our view of the adequacy of the Service’s proffered surrogate in the ITS.
 In sum, although it is a close question, we agree with the Service that “[t]he ITS in this case reasonably relies on the negligible impact and small numbers findings of the MMPA incidental take regulation to articulate the anticipated amount of take and the effect on the polar bear population.”