United States District Court, D. Columbia
October 6, 2005.
THE OCEAN CONSERVANCY and OCEANA, INC., Plaintiffs,
CARLOS M. GUTIERREZ,[fn1] Secretary, United States Department of Commerce, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION and NATIONAL MARINE FISHERIES SERVICE, Defendants, and BLUE WATER FISHERMEN'S ASSOCIATION, Intervenor-Defendant.
The opinion of the court was delivered by: RICHARD LEON, District Judge
*fn1 Secretary Gutierrez has been substituted as a party in
place of former Secretary Donald L. Evans. See FED. R. CIV. P.
This action for declaratory relief, brought by The Ocean
Conservancy and Oceana, Inc., two non-profit environmental
organizations, (collectively "plaintiffs"), challenges three
decisions of the National Marine Fisheries Service ("NMFS" or
"federal defendant"), a federal agency under the purview of the
National Oceanic and Atmospheric Administration, relating to the
treatment of sea turtles under a Fishery Management Plan ("FMP") for the Atlantic Highly Migratory Species
Pelagic Longline Fishery ("HMS-PLL Fishery" or "Atlantic
Fishery"). Plaintiffs specifically contend that: (1) the NMFS's
July 6, 2004 Final Rule ("2004 Final Rule") creating new
regulations governing the HMS-PLL Fishery fails to comply with
the substantive requirements established by the Magnuson-Stevens
Fishery Conservation and Management Act ("Magnuson-Stevens Act"
or "MSA"), 16 U.S.C. §§ 1801, et seq.; (2) the NMFS's June 1,
2004 Biological Opinion ("2004 BiOp") violates provisions of the
Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq.; and
(3) the NMFS's June 22, 2004 final Supplemental Environmental
Impact Statement ("final SEIS") fails to follow the mandate set
forth by the National Environmental Policy Act ("NEPA"),
42 U.S.C. § 4332.*fn2 Presently before the Court are
cross-motions for summary judgment. See Dkt. ## 44, 46, 48. The
Court, having considered the voluminous administrative record,
the parties' pleadings, and the arguments of counsel at the
September 14, 2005 hearing, GRANTS the federal defendants' motion
for summary judgment.*fn3 BACKGROUND
The Atlantic Fishery is a deep sea fishery that extends from
the Gulf of Mexico to the edge of the continental shelf, off the
east of coast of Newfoundland. AR Vol. 2, Doc. I-11 at
3-15.*fn4 As its name implies, the Atlantic Fishery targets
various "highly migratory species" of fish using a pelagic
longline fishing technique. Id. "Highly migratory species," as
defined by the Magnuson-Stevens Act, includes several types of
tuna, swordfish, marlin, and oceanic sharks.
16 U.S.C. § 1802(20). "Pelagic longline fishing" is a commercial fishing
method that involves deploying lines up to several miles long,
supported by floats. Fed. Def.'s Stmt. of Facts at 3. Hooks
baited with mackerel or squid are attached to these lines and
hung at precise depths depending on the targeted catch.
Pelagic longline fishing has proven to be an extremely
effective method for harvesting certain types of fish, but it is
also common in the course of long lining for untargeted species,
or "bycatch," to get caught in the line trailing behind vessels,
or even to hook themselves.*fn5 Bycatch is of particular
concern when, as here, it consists of species protected under the
ESA, like loggerhead and leatherback sea turtles, which are
prevalent throughout the Atlantic Fishery.*fn6 Although the severity of interactions between the protected sea
turtles and long liners vary from the relatively minor "foul
hooking" of a sea turtle's flipper, to a fatal hook swallowing,
since at least 1999 experts at the NMFS have concluded that the
Atlantic Fishery poses a threat to the survival of leatherback
and loggerhead sea turtles. Fed. Def.'s Concise Stmt. of Facts at
3-4. Indeed, since 1999, three BiOps have been issued addressing
the HMS pelagic long line fishery. AR Vol. 1, Doc. I-7 at 6622
(citing April 23, 1999 BiOp; June 30, 2000 BiOp; June 14, 2001
The June 14, 2001 BiOp ("2001 BiOp") helps illustrate the
evolution of the present controversy. See AR Vol. 2, Doc. I-11.
The 2001 BiOp concluded that continued operation of the Atlantic
Fishery was likely to jeopardize survival of the leatherback and
loggerhead sea turtles. Fed. Def.'s Stmt. of Facts at 4. The 2001
BiOp, however, included a Reasonable and Prudent Alternative
("RPA") requiring, among other things, an immediate and
indefinite closure of the Northeast Distant ("NED") section of
the fishery, and approving an intensive research experiment
("Northeast Distant experiment"). The Northeast Distant
experiment was charged with reducing sea turtle bycatch by
developing, or modifying, fishing gear and techniques, as well as
with evaluating safe-handling techniques to reduce post-release
sea turtle mortality. AR Vol. 1, Doc. I-11 at I; AR Vol. 1, Doc.
1010 at 1-4. The 2001 BiOp also included an Incidental Take
Statement ("ITS") that authorized the otherwise prohibited "take"
of 438 leatherback and 402 loggerhead sea turtles
annually.*fn7 Id. If these incidental take levels were exceeded, the BiOp required re-initiation of consultation,
and a review of the RPA. AR Vol. 1, Doc. I-7. Although the 2001
BiOp closed the Northeast Distant section of the Atlantic
Fishery, this was widely believed to be only a temporary measure
that would remain only until the prescribed scientific study was
complete and its findings adopted through the formal rulemaking
process. Fed. Def's Mot. for Sum. Judg. at 4.
Between 2001 and 2003, the NMFS compiled and analyzed the data
received from the Northeast Distant experiment, along with other
scientific information relevant to bycatch of sea turtles in
pelagic longline fisheries. AR Vol. 1, Doc. I-7 at 6622. Although
no single solution emerged, NMFS experts interpreting the data
from the experiment concluded that certain changes to hook and
bait combinations in the fishery's regulation would substantially
improve fishery conservation. More precisely, results from the
experiment indicated that loggerhead and leatherback sea turtle
interactions could be significantly reduced by replacing the
industry-wide standard J-hook with 18/0 circle hooks.*fn8
Id. at 6623; AR Vol. 1, Doc. I-10 at 4-21 (data showing a sea
turtle bycatch reduction rate of between 50% and 90.4% depending
on the type of hook, bait, and turtle involved).*fn9 The research also indicated, however, that
this same combination of hook and bait could negatively affect
desirable catch, like bigeye tuna. Id.
Findings from the Northeast Distant experiment were supported
by international research efforts. A study conducted in the
Azores in 2002 concluded that compared to J-hooks, the 16/0
circle hook had an excellent potential to reduce sea turtle
bycatch and overall mortality. AR Vol. 8, Doc. II-A-20 at 3.
Similarly, a study conducted in Nova Scotia, where 16/0 circle
hooks were more commonly used than in the U.S. fishery, found
that J-hooks increased the capture of leatherback sea turtles
when compared to circle hooks. AR Vol. 9, Doc. II-A-23 at 9.
Although the NMFS did not have substantial data comparing the
relative effectiveness of circle hooks of different sizes, NMFS
experts inferred from the information available that the primary
benefit of the circle hook over the traditional J-hook with
regards to reducing bycatch derived from its shape more than its
size. AR Vol. 13, Doc. II-A-54, at 1-2.
After the Northeast Distant experiment had concluded, the NMFS
published a notice of intent to prepare a supplemental
environmental impact statement ("SEIS") reassessing the potential
affects of the Atlantic HMS-PLL on the environment. AR Vol. 2,
Doc. I-11 at I. Among the comments received during the public
comment period were suggestions from the commercial fishing industry that the NMFS
hold regional workshops for fishermen on methods for safely
removing gear from captured turtles.*fn10 AR Vol. 2, Doc.
I-11 at 1-4.
On February 11, 2004, the NMFS released a draft of its revised
FMP for the Atlantic Fishery in the form of a proposed rule and
draft SEIS. AR Vol. 1, Doc. I-7; Vol. 2, Doc. I-12 at 2.
Together, the proposed rule and the draft SEIS summarized the
available research in the Northeast Distant experiment and
outlined several alternatives that could potentially reduce
bycatch while also minimizing, to the extent practicable, the
economic impact on individual fishermen in the fishery. AR Vol.
1, Doc. I-8 at 1-5. The NMFS considered numerous alternatives for
achieving these objectives, including modifications to hook and
bait requirements, time and area closures, and new rules
requiring the use of sea turtle handling and release gear. Id.
at 2-1 to 2-6. In the draft SEIS, the NMFS indicated a preference
for an alternative that would require use of the larger 18/0
circle hooks throughout the entire Atlantic Fishery. AR Vol. 1,
Doc. I-7 at 6625; Doc. I-8 at 2-1 to 2-6.
As undoubtedly expected, many formal responses were recorded
during the public-comment period from members of the fishing
industry. Two concerns, in particular, were frequently expressed:
(1) that requiring the larger 18/0 circle hook would reduce the
catch of desirable species to unprofitable levels, thereby
rendering the fishery non-viable; and (2) that the strict
requirements would not be "exportable" to fishermen from other
nations who, in fact, represented a majority of participants in the
fishery.*fn11 AR Vol. 2, Doc. I-11 at 4-13. Other responses,
including those from many environmental groups, commended the
proposal as moving in the right direction and advocated its
timely adoption. AR Vol. 2, Doc. I-11 at C1-24.
On April 20, 2004, the NMFS asked its own Southeast Regional
Office ("SERO") to prepare a Biological Opinion ("2004 BiOp")
assessing the effects of reopening the Northeast Distant segment
of the fishery subject to an 18/0 circle hook restriction, while
imposing a general 16/0 circle hook restriction for the remainder
of the Atlantic HMS-PLL, which was contrary to the proposed rule
and draft SEIS.*fn12 AR Vol. 1, Doc. I-9 at 1-2. NMFS was
considering revising its actions in the Final Rule from those
described in the proposed rule based upon the public comments
received during the comment period, as well as new information
regarding sea turtle mortalities and a "reexamination of data
pertaining to reductions in bycatch and bycatch mortality
associated with various hook and bait combinations." AR Vol. 1,
Doc. I-10 at 1-6.
On June 1, 2004, SERO completed its analysis and issued the
2004 BiOp. AR Vol. 1, Doc. I-10. The 2004 BiOp, one of the
primary documents challenged by the plaintiffs in this case, made two particularly relevant findings.
First, it concluded that continued operation of the longline
fishery would not jeopardize the continued existence of the
loggerhead sea turtle. AR Vol. 1, Doc. I-10 at 7-1. Second, it
found that the conservation rule would jeopardize the continued
existence of the leatherback sea turtle. Id. The 2004 BiOp,
however, went on to identify RPAs necessary to avoid jeopardizing
the leatherback turtle while allowing the new conservation rule
to take effect.*fn13 On June 22, 2004, the NMFS released a
final SEIS, see AR Vol. 2, Doc. 1-11, followed, on July 6,
2004, by a Final Rule adopting the RPAs proposed in the 2004
BiOp, AR Vol. 2, Doc. 1-12. The Final Rule removed all J-shaped
"J-hooks" from the fishery, required the larger 18/0 gauge
circle-shaped hooks in the NED, and required 16/0, or larger
circle hooks, elsewhere in the fishery. AR Vol. 2, Doc. I-14 at
I. Standard of Review
Summary judgment is appropriate when the pleadings and the
record demonstrate that "there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." FED. R. CIV. P. 56(C). The moving party
bears the initial burden of demonstrating the absence of a
genuine dispute of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). In this case, where cross-motions for
summary judgment are at issue, the Court draws all reasonable
inferences regarding the assertions made in a light favorable to the non-moving party.
Flynn v. Dick Corp., 2005 WL 1904018, *2 (July 29, 2005
D.D.C.). The Court will "grant summary judgment only if one of
the moving parties is entitled to judgment as a matter of law
upon material facts that are not genuinely disputed."*fn14
Consumer Fed'n of Am. v. U.S. Dep't of Agric., 2005 WL 1773851,
*2 (July 28, 2005 D.D.C.).
II. Standard of Review for Agency Actions Pursuant to MSA,
ESA, and NEPA
NMFS's actions are reviewed by this Court in accordance with
the judicial review provisions of the Administrative Procedure
Act. NRDC v. Daley, 209 F.3d 747, 752 (D.C. Cir. 2000); Gerber
v. Norton, 294 F.3d 173, 178 n. 4 (D.C. Cir. 2002); Tulare
County v. Bush, 306 F.3d 1138, 1143 (D.C. Cir. 2002). When doing
so, the Court must determine whether the challenged decision is
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." 5 U.S.C. § 706(2)(A). In making this
inquiry, the Court "consider[s] whether the [agency's] decision
was based on a consideration of the relevant factors and whether
there has been a clear error of judgment." Citizens to Preserve
Overton Park, 401 U.S. at 415-16. At a minimum, the agency must
have weighed the relevant data and articulated an explanation
that establishes a "rational connection between the facts found
and the choice made." Bowen v. Am. Hosp. Ass'n, 476 U.S. 610,
626 (1986). In the final analysis, an agency decision is
arbitrary and capricious if the agency:
has relied on factors which Congress has not intended
it to consider, entirely failed to consider an
important aspect of the problem, offered an
explanation for its decision that runs counter to evidence before the
agency, or is so implausible that it could not be
ascribed to a difference in view or the product of
Motor Veh. Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29
, 43 (1983); see also County of L.A. v. Shalala,
192 F.3d 1005
, 1021 (D.C. Cir. 1999) ("Where the agency has failed to
provide a reasoned explanation, or where the record belies the
agency's conclusion, [the court] must undo its action.").
As noted previously, plaintiffs challenge the following three
decisions made by the NMFS: (1) the July 6, 2004 Final Rule,
which allowed 16/0 circle hooks outside the Northeast Distant
area without time and area restrictions; (2) the June 1, 2004
BiOp, which concluded that the proposed action will not
jeopardize loggerhead sea turtles and that RPAs will avoid
jeopardy to leatherback sea turtles; and (3) the June 22, 2004
final SEIS, which plaintiffs allege contain a different analysis
of the potential alternatives and their environmental affects
than the earlier, draft SEIS. Plaintiffs' Opposition to
Defendants' Motions for Summary Judgment ("Pls.' Opp'n") at 3.
After due consideration of the pleadings and record, the Court,
for the following reasons, finds the NMFS's decisions entirely
reasonable, supported by the record, and in full compliance with
the MSA, ESA, and NEPA.
I. Claims Arising Under the Magnuson-Stevens Act
Fisheries of the United States are regulated by the MSA. The
Magnuson-Stevens Act gives the Secretary of Commerce "broad
authority to manage and [to] conserve coastal fisheries," to
develop the nation's maritime resources in a coherent and sustainable manner. Kramer v. Mosbacher, 878 F.2d 134, 135 (4th
Cir. 1989); see 16 U.S.C. § 1801(a). Fishery regulations are
implemented through Fishery Management Plans ("FMPs"), which are
prepared by either a regional fishery council or the NMFS.
16 U.S.C. § 1852(b)(2)(A).*fn15
In preparing a FMP, the Magnuson-Stevens Act allows the NMFS to
set quotas, to impose gear restrictions, and even to close
certain fisheries when doing so is necessary to protect a
fishery's long term viability. 18 U.S.C. § 1853(a). This broad
discretion is tempered by substantive elements of the
Magnuson-Stevens Act that require all regulations to be
"necessary and appropriate for the conservation and management of
the fishery," and consistent with ten National Standards defined
by the statute.*fn16 16 U.S.C. § 1851(a)(1)-(10). These
National Standards require each FMP to attempt, among other
things, to minimize bycatch and adverse economic impact on
fishing communities to the extent practicable. See id. Accordingly, each FMP must balance
competing environmental and economic considerations. See id.
Plaintiffs contend that the July 6, 2004 Final Rule issued by
the NMFS modifying the FMP for the Atlantic Fishery violates
National Standards 2 and 9 of the Magnuson-Stevens Act because
the rule was not based on the "best scientific information
available" and failed to minimize bycatch. Pl.'s Mot. For Summ.
Judg. at 9. I disagree and will address each claim seriatim.
A. National Standard 2
National Standard 2 provides that "conservation and management
measures shall be based upon the best scientific information
available." 16 U.S.C. § 1851(a)(2). This standard requires that
rules issued by the NMFS be based on a thorough review of all the
relevant information available at the time the decision was made,
Blue Water Fishermen's Ass'n of Superior Ca. v. Nat. Marine
Fisheries Service, 226 F. Supp. 2d. 330, 338 (D. Mass. 2002);
see also Bennett v. Spear, 520 U.S. 154, 176 (1998), and
insures that the NMFS does not "disregard superior data" in
reaching its conclusions, Building Industry Ass'n v. Norton,
247 F.3d 1241, 1246-47 (D.C. Cir. 2001).
National Standard 2, however, does not require the NMFS to rely
upon perfect or entirely consistent data. Blue Water Fishermen's
Ass'n., 226 F. Supp. 2d. at 338; see also Building Industry
Ass'n, 247 F.3d at 1246 ("[T]he [NMFS must] utilize the best
scientific data available, not the best scientific data
possible.") (internal quotations omitted). The "best
information" standard is a practical standard requiring only that
fishery regulations be diligently researched and based on sound science. Moreover,
Courts defer to NMFS decisions that are supported in the record
and reflect reasoned decision making, especially where, as here,
the dispute involves technical issues that implicate substantial
agency expertise. See Sierra Club v. United States Dep't. of
Transp., 753 F.2d 120, 129 (D.C. Cir. 1985); see also Oregon
Natural Resources Council, 490 U.S. at 376-77.
Plaintiffs specifically contend that the NMFS ignored the
"undisputed best scientific information available" by failing to
adopt the findings from the Northeast Distant experiment in its
2004 Final Rule for the Atlantic Fishery. Pl.'s Mot. for Summ.
Judg. at 13, 15. Because the Northeast Distant experiment
concluded that 18/0 circle hooks significantly reduced bycatch of
both loggerhead and leatherback sea turtles, plaintiffs contend
that National Standard 2, in effect, required the NMFS to adopt
this rule for the entire fishery. Id. at 13. Thus, by
considering additional sources of information and ultimately
adopting a different rule for outside the Northeast Distant
experiment, plaintiffs argue that the NMFS's decision is
arbitrary and capricious. Id. at 15. Would that it were that
National Standard 2 neither requires NMFS to rely exclusively
on the results from the Northeast Distant experiment in preparing
the Final Rule, nor does it require NMFS to adopt the most
protective measure throughout the fishery. While the findings of
the Northeast Distant experiment are relevant to the issue of
bycatch regulations in the fishery, they are not dispositive.
NMFS was thus entitled to consider, as it did, other studies and
expert opinions as part of the rule-making process. The
comprehensive approach adopted by the NMFS, therefore, was entirely reasonable
because it considered not only its own data, but also other
studies, expert opinions, and considerations raised by the public
at large. See, e.g., AR Vol. 12, Doc. II-A-40; Doc. II-A-54; AR
Vol. 8, Doc. II-A-20 (Bolten/Azores 2002 Project Summary); AR
Vol. 9, Doc. II-A-23 (Javitech/Nova Scotia 2002 Report). The
NMFS's deliberative process, as reflected in the record, clearly
evinces the type of diligent research and healthy debate Congress
intended by adopting National Standard 2.
Finally, plaintiffs also argue that the NMFS abandoned its own
"best information" when it changed its position on gear
regulations after the draft SEIS public comment period. However,
contrary to the plaintiffs' contention that the NMFS was
capitulating to the fishing industry, the Court concludes the
NMFS's decision reflects a balanced and rational decision-making
process with fully informed public comment. Indeed, the NMFS
conducted a vigorous and fair process in which the public was
able to inform and influence regulations, as intended, through an
open dialog with a wide range of decision makers. Accordingly,
the Court concludes the challenged portions of the 2004 Final
Rule are consistent with National Standard 2 and that the NMFS's
decision was not arbitrary and capricious.
B. National Standard 9
National Standard 9 provides that "conservation and management
measures shall, to the extent practicable, (A) minimize bycatch
and (B) to the extent bycatch cannot be avoided, minimize the
mortality of such bycatch." 16 U.S.C. § 1851(a)(9). As the
statute expressly states, National Standard 9 only requires the NMFS to
minimize bycatch to the extent practicable. Id. Where bycatch
cannot be eliminated, however, the NMFS must enact regulations
that minimize the mortality of the undesirable catch. Id.
Notwithstanding plaintiffs' arguments to the contrary, NMFS did
Plaintiffs first argue that the NMFS violated National Standard
9 by rejecting a gear regulation that promised a greater
reduction in sea turtle interactions than the alternative
ultimately chosen. Pl.'s Mot. for Summ. Judg. at 11. Based on
findings from the Northeast Distant experiment that indicated
that the 18/0 circle hooks could dramatically decrease the number
of loggerhead sea turtles that were "foul hooked" by longline
fishermen, plaintiffs assert that National Standard 9 requires
the NMFS to adopt the most protective measure available with
regards to minimizing bycatch. Id. I disagree.
Plaintiffs' argument is flawed in two respects. First, they
mistakenly read National Standard 9 in a vacuum, rather than in
relation to the other national standards contained in the MSA.
All ten of the national standards were promulgated to influence
and shape the NMFS rule-making process. When viewed in this
context, fishery regulations issued by the NMFS must undoubtedly
minimize bycatch, but also promote safety on the high seas
(National Standard 10) and minimize the economic impact of
regulations on fishing communities (National Standard 8).
16 U.S.C. §§ 1851(a)(1)-(9); see also 50 C.F.R. § 600.350(d).
Simply stated, National Standard 9 is not entitled to greater
weight than any of these other standards. See Nat'l Coalition
for Marine Conservation v. Evans, 231 F. Supp. 2d 119, 137
(D.D.C. 2002) (noting that because bycatch could only be entirely avoided by eliminating all commercial activity in the fishery,
National Standard 9 only made sense within the larger context of
the Magnuson-Stevens Act if it was interpreted as requiring the
NMFS to find the combination of regulations that would best meet
the statute's various objectives). In this Court's judgment,
NMFS's 2004 Final Rule balanced competing interests by
reconciling the economic needs of fishermen with the conservation
goal of reducing bycatch to the lowest level possible. In doing
so, it thoroughly reviewed the relevant scientific data on
bycatch and consulted with participants in the fishery to
determine whether the proposed regulations would be effective and
Second, plaintiffs' argument understates that the Atlantic
Fishery FMP was amended in the first instance to address bycatch
minimization. Indeed, closure of the NED and the scientific
experiment that followed were a direct result of the 2001 BiOp's
report of unacceptable levels of bycatch throughout the fishery.
Based on its research, the NMFS concluded that one significant
cause of this bycatch was continued use of traditional J-hooks
that indiscriminately ensnared protected sea turtles. Thus, in an
effort to deal with these concerns, the 2004 Final Rule
prohibited the use of J-hooks throughout the Atlantic Fishery.
Although the NMFS might have done more to reduce bycatch,
"more" is not the standard that NMFS must follow.
Plaintiffs lastly contend the 8% on-board observer level target
set by the Final Rule is legally insufficient to meet NMFS's
bycatch assessment duties under National Standard 9. Pl.'s Mot.
SJ at 16-17. I disagree. National Standard 9 provides that each
FMP must include "a standardized reporting methodology to assess the
amount and type of bycatch occurring in the fishery."
16 U.S.C. § 1853(a). Notably, the standard does not mandate on-board observer
coverage or establish absolute levels of coverage. Furthermore,
even if it did, the 8% coverage mandated in this case exceeds the
5% coverage upheld in National Coalition for Marine Conservation
v. Evans, 231 F. Supp. 2d 119, 139 (D.D.C 2002) ("NCMC").
While NCMC is not binding on this Court, its holding and
reasoning are persuasive, particularly because that Court relied,
in part, on the fact that 5% coverage was the level of coverage
recommended by the International Commission for the Conservation
of Atlantic Tuna. Id. Accordingly, the Court concludes that the
NMFS's standardized reporting methodology comports with National
Standard 9 and is not arbitrary and capricious under the APA.
II. Claims Arising Under the ESA
Prior to engaging in any action that "may affect" a protected
species or its habitat, the ESA requires each federal agency to
consult with either the Fish and Wildlife Service or the NMFS "to
insure that [its] action . . . is not likely to jeopardize the
continued existence" of the listed species. 16 U.S.C. 1536(a)(2);
50 C.F.R. §§ 402.01(a), 402.14(a). If it is determined that the
proposed action is likely to jeopardize the continued existence
of any endangered or threatened species, section 7 of the ESA
requires the two agencies to enter into a "formal consultation"
and to issue a BiOp. 50 C.F.R. § 402.14(h). The BiOp, based on
extensive analysis of the best scientific data available,
represents a complete and final review of the agency's proposed
action. The BiOp must include a summary of the data supporting the
NMFS's conclusions, a "detailed discussion" of the projected
effect of the agency action on the listed species, and a
determination as to whether the proposed agency action will
"jeopardize the continued existence of a listed species." Id.
If the BiOp concludes that the proposed action is likely to
jeopardize a protected species, the ESA requires an examination
of whether any RPAs exist that are capable of accomplishing the
same general purpose as the proposed action, but without
compromising the threatened species, and which could be
implemented feasibly. Id. Alternatively, if the BiOp concludes
that the proposed action is not likely to jeopardize any
protected species, or if an RPA is available that could
reasonably avoid that jeopardy, an ITS authorizing the proposed
action will be issued and the agency will be permitted to proceed
without violating section 9 of the ESA's taking prohibitions.
16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(I).
Plaintiffs' overarching criticism regarding the 2004 BiOp is
that it violates section 7 of the ESA. As discussed supra, NMFS
concluded in the 2004 BiOp that the fishery would not jeopardize
the continued existence of the loggerhead and leatherback sea
turtles, provided the fishery was operated in accordance with the
conservation rule (requiring the 18/0 circle hooks in the NED and
the 16/0 circle hooks elsewhere) and the RPAs. AR Vol. 1, Doc.
I-10 at 7-1, 8-1. Although they raise a number of more specific
criticisms to support this overarching criticism, the plaintiffs'
primary concern is that the NMFS failed to base the 2004 BiOp on
the "best scientific and commercial data available." See Pl.'s Mot. For Summ. Judg. at 20-24, 33-38. In
essence, plaintiffs' "best scientific and commercial data"
argument parallels the argument they similarly raised in relation
to National Standard 2 of the MSA. Contrary to plaintiffs'
contentions, the Court concludes, for the following reasons, that
the 2004 BiOp is fundamentally sound, comports with section 7 of
the ESA, and, therefore, is not arbitrary and capricious.
The NMFS considered the "best scientific and commercial data
available" in reaching its conclusions in the 2004 BiOp. With
respect to the no jeopardy finding concerning the loggerhead sea
turtles, the NMFS relied upon an abundance of reliable
information, including data demonstrating that: interactions with
loggerheads were typically with the juvenile age class rather
than breeding females, AR Vol. 1, Doc. I-10 at 6-3 to 6-5;
nesting subpopulations were not in decline, Id.; and when
compared against the J-hook, the 16/0 circle hooks actually
improve post-mortem survival rates because the circle hook is
generally not swallowed and, therefore, more hooks can be removed
without fatality, AR Vol. 13, Doc. II-A-34 at 2 ("Rationale"
report for rule making submitted by the scientists for NMFS's
Southeast Fisheries Science Center).
With respect to the leatherback sea turtles, the NMFS found the
conservation rule would cause jeopardy to their continued
existence.*fn17 AR Vol. 1, Doc. 1-10 at 7-1. Given the
jeopardy finding, the NMFS included a four-pronged RPA designed
to reduce post-release mortality. Id. at 8-1. The RPA included: 1. Reducing the post-release mortality of
leatherbacks by requiring more effective gear
2. Increasing on-board observer coverage;
3. Confirming the environmental and economic
feasibility of 16/0 circle hooks; and
4. Implementing management strategy to prevent
long-term elevated take and mortality.
AR Vol. 1, Doc. I-10 at 8-1. The NMFS anticipated that the RPAs
would be implemented incrementally from 2004 to 2007 and that
post-release mortality rates would decline each year. Id. at
8-18, and Table 8.2. The NMFS also anticipated ultimate
post-release mortality reductions of leatherback sea turtles from
32.8% to 13.1% Id. at 8-18.
In reaching these conclusions, the NMFS relied upon the
following two premises: (1) that 16/0 circle hooks will reduce
leatherback captures by 50%, and (2) that increased gear removal
rates will dramatically reduce post-release mortality. Pl.'s Mot.
For Summ. Judg. at 34. Plaintiffs argue that the RPAs do not
achieve a "reasonable certainty of avoiding jeopardy" to the
leatherbacks and, therefore, the RPAs violate the ESA. Id. at
33. I disagree.
The first premise was based upon the analysis of a gear expert,
who concluded that 16/0 circle hooks will reduce leatherback
captures by 50%. AR Vol. 1, Doc. I-10 at 4-19. Indeed, the expert
based his conclusion on the data indicating that the 16/0 circle
hooks were "just as effective . . . if not more so" in reducing
leatherback captures by foul hooking as the 18/0 circle hooks,
which the Northeast Distant experiment had demonstrated reduced
leatherback capture rates between 50% to 90%. Id. The second
premise, that longline fishermen will achieve high levels of gear
removal and thus a corresponding reduction in post-release mortality, was based upon reliable
scientific data compiled during the Northeast Distant experiment.
AR Vol. 1, Doc. I-10 at 4-25. More precisely, the NMFS compared
the experiment circle hook data to the levels of gear removal
that occurred outside the NED. Id.
Great deference must be given to the NMFS when assessing the
sufficiency of the scientific data the agency relied upon to
reach its conclusions. E.g., Bennett, 520 U.S. at 176 (noting
that the best scientific data requirement exists to prevent an
agency from implementing the ESA "haphazardly" or "on the basis
of speculation or surmise"); Blue Water Fishermen's Ass'n,
226 F. Supp. 2d at 339 ("The agency's conclusion need not be airtight
and indisputable."). Stated simply, the Court should not
"pretend" to have greater expertise than the NMFS in scientific
matters concerning sea turtle viability in the fishery. Bays'
Legal Fund v. Browner, 828 F. Supp. 102, 107 (D. Mass. 1993).
Accordingly, the Court concludes that the NMFS's conclusions
reasonably follow from the "best scientific and commercial data
available," and, therefore, the 2004 BiOp is not arbitrary or
capricious.*fn18 III. Claims Arising under NEPA
The third and final statutory basis upon which plaintiffs rest
their challenge is NEPA. See Pl.'s Mot. For Summ. Judg. at
40-45. As the Supreme Court has stated, "NEPA itself does not
mandate particular results, but simply prescribes the necessary
process." Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 399 (1989). Because NEPA is procedural rather than
substantive, the statutory scheme exists only to insure the
agency has made "a fully informed and well-considered decision."
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, 435 U.S. 519, 558 (1978). Consequently, judicial
review, though "searching and careful," is ultimately limited in
scope. Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971). Deference is particularly warranted in
cases such as this involving complex scientific or technical
matters where the agency's expertise is clear. See Izaak Walton
League of America v. Marsh, 665 F.2d 346, 372 (D.C. Cir. 1981)
("In particular, [courts] should not attempt to resolve
conflicting scientific opinions. . . . So long as the agency's
conclusions have a substantial basis in fact, the mandate of NEPA
has been satisfied."). For the following reasons, none of the
plaintiffs' NEPA contentions are meritorious.
A. Adequacy of the Public Comment
Plaintiffs first contend that the NMFS should have issued a
supplemental draft SEIS after deciding to propose a general 16/0
circle hook restriction for areas outside the NED. Pl.'s Mot. For
Summ. Judg. at 41. More precisely, plaintiffs argue that the NMFS violated NEPA because the public did not have an adequate
opportunity to review and comment on the 16/0 circle hook
alternative before the NMFS released the final SEIS and Final
Rule. I disagree.
The NMFS issued a draft SEIS in February 2004, analyzing the
effectiveness of various combinations of hook size and shape,
bait type, and time/area closures in an effort to reduce long
line turtle bycatch. A.R. Vol. 1, Doc. 1-8, at 4-1 to 4-39. The
draft SEIS considered sixteen alternatives, including various
circle and/or J-hook options. Id. at 2-1 to 2-6. Significantly,
one such alternative (i.e., A5) considered a 16/0 circle hook
option for areas outside of the NED, id. at 4-2, while
ultimately noting that the alternative "would not by itself
reduce sea turtle interactions in the Atlantic pelagic longline
fishery to levels that would allow compliance with the ESA,"
id. at 4-31. After the public comment period on the draft SEIS
expired, the NMFS issued the 2004 BiOp and the final SEIS. The
final SEIS concluded that, notwithstanding its previous
determination to the contrary in the draft SEIS, the 16/0 circle
hook option for areas outside the NED was the preferred
alternative. Thus, NMFS based its decision upon the relevant
scientific information, in addition to comments offered during
the public comment period on the draft SEIS. AR Vol. 2, Doc. I-11
at I-11 and 4-2.
The Court believes NMFS has clearly complied with NEPA's
procedural requirements and has made a fully informed decision.
The regulation governing draft environmental impact statements
was complied with here and more than sufficient to provide
"meaningful analysis" and to ensure adequate public comment.
40 C.F.R. § 1502.9(a).*fn19 The draft included the 16/0 circle hook as
an alternative and, though it was preliminarily determined not to
be effective on its own, NMFS never precluded comment on the 16/0
circle hook alternative. See Kettle Range Conservation Group v.
U.S. Forest Serv., 148 F. Supp. 2d 1107, 1119 (E.D. Wash. 2001).
In the final analysis, the regulation simply does not require
NMFS to "rework its draft if it later realizes an alternative it
preliminarily rejected should be more fully developed." Id.
Accordingly, the Court concludes that the final SEIS allowed for
adequate public comment and, thus, it does not violate NEPA.
B. Adequacy of the Cumulative Impacts Analysis
Finally, plaintiffs contend that NMFS violated NEPA by failing
to properly analyze the cumulative impacts of the Final Rule in
its final SEIS. Pl.'s Mot. For Summ. Judg. at 43. Not so, in this
NEPA regulations define "cumulative impacts" as:
[T]he impact on the environment which results from
the incremental impact of the action when added to
other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or
non-Federal) or person undertakes such other actions.
Cumulative impacts can result from individually minor
but collectively significant actions taking place
over a period of time.
40 C.F.R. § 1508.7.
The final SEIS in this case includes a section specifically
addressing the "cumulative ecological, economic and social
impacts of past, present, and reasonably foreseeable future actions" with regard to the fishery. AR Vol.
2, Doc. I-11, at 4-57 to 462 (addressing the "cumulative
ecological impacts" and the "cumulative economic and social
impacts" of the proposed action). Among the cumulative impacts
considered were: past and future rules governing the conservation
of sea turtles and other species in the fishery, id. at 4-57;
the implementation of VMS requirements for pelagic longline
vessels, id. at 4-58; and future proposed rules relating to
international trade permits, import prohibitions, quotas, and
additional bycatch reduction measures, id. Furthermore, the
final SEIS also considered the impact of loggerhead and
leatherback sea turtle takes by non-U.S. fleets fishing in the
Atlantic Ocean, id. at 3-37 to 3-38, in addition to takes by
foreign longline fleets outside the fishery, id. at 4-41. NMFS
concluded these past, present, and future actions would inure to
the sea turtles' benefit, as they would help to replenish sea
turtle stocks and reduce bycatch and bycatch mortality rates.
Id. at 4-60.
Plaintiffs contend that NMFS's analysis is too narrow in scope
and that it should have calculated the total number of "takes" in
other U.S. and foreign fisheries. Pl.'s Mot. For Summ. Judgm. at
44-45. But plaintiffs' interpretation and application of the
cumulative impacts misreads or overlooks the "rule of reason."
See, e.g., Potomac Alliance v. U.S. Nuclear Regulatory Comm'n,
682 F.2d 1030, 1035 (D.C. Cir. 1985) ("The starting point in any
analysis of an agency's compliance with . . . NEPA is the `rule
of reason,' under which a federal agency proposing a major action
must consider only the reasonably foreseeable environmental
effects of the action."). That NMFS could have conducted a more
comprehensive cumulative impacts analysis does not render its
analysis violative of NEPA. So. Utah Wilderness Alliance v. Norton,
326 F. Supp. 2d 102 (D.D.C. 2004). To the contrary, as our Circuit
Court has observed, an agency need only consider those
environmental effects that are "reasonably foreseeable." Potomac
Alliance, 682 F.2d at 1035 (emphasis added). Indeed, "NEPA does
not mandate that every conceivable possibility which someone
might dream up must be explored in an EIS." Concerned About
Trident v. Rumsfeld, 555 F.2d 817, 829 (D.C. Cir. 1977)
(emphasis added). Thus, having found that NMFS adequately
identified the cumulative impacts in the final SEIS, this Court
defers to its cumulative impacts analysis, Hammond v. Norton,
370 F. Supp. 2d 226, 245 (D.D.C. 2004) (noting the task of
identifying the "cumulative impacts" is "committed `to the
special competency' of the agency preparing the EIS") (quoting
Kleppe v. Sierra Club, 427 U.S. 390, 413 (1976)), and concludes
that the final SEIS comports with NEPA.
For the reasons stated above, the plaintiffs' motion for
summary judgment is DENIED, federal defendant's cross-motion for
summary judgment is GRANTED, and intervernor defendant's
cross-motion for summary judgment is DENIED as moot. An
appropriate order will issue simultaneously herewith.
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