United States District Court, D. Columbia.
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For Oceana, Inc., Plaintiff: Eric A. Bilsky, LEAD ATTORNEY, OCEANA, INC., Washington, DC USA; Paul Anthony Werner, III, LEAD ATTORNEY, Gardner Fordyce Gillespie, III, J. Aaron George, SHEPPARD MULLIN RICHTER & HAMPTON LLP, Washington, DC USA.
For National Oceanic And Atmospheric Administration, National Marine Fisheries Service, Rebecca M. Blank, In her official capacity as Acting Secretary of the United States Department of Commerce, Defendants: Kristen Byrnes Floom, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.
For Fisheries Survival Fund, (FSF), Intervenor Defendant: David Earl Frulla, LEAD ATTORNEY, KELLEY, DRYE & WARREN, LLP, Washington, DC USA; Shaun Michael Gehan, LAW OFFICE OF SHAUN M. GEHAN, PLLC, Washington, DC USA.
PAUL L. FRIEDMAN, United States District Judge.
This case involves a challenge to a Biological Opinion issued by the National Marine Fisheries Service (" NMFS" ), in which NMFS determined that the operation of the Atlantic Sea Scallop Fishery would not jeopardize the continued existence of the Northwest Atlantic population segment of loggerhead sea turtles. This population segment is listed as threatened under the Endangered Species Act (" ESA" ). Plaintiff Oceana, Inc. (" Oceana" ) maintains that the agency's no-jeopardy determination was arbitrary and capricious, and asks this Court to vacate the Biological Opinion. Oceana argues that NMFS reached its no-jeopardy determination by employing an interpretation of a key regulation that contravenes both the regulatory text as well as the language and spirit of the underlying statute, the ESA. In addition, Oceana contends that NMFS neglected in its analysis to take proper account of various factors that harm loggerheads, instead focusing solely on the isolated effects of the Scallop Fishery. Oceana specifically accuses NMFS of ignoring the effects of climate change, an issue which Oceana had raised in comments that it submitted to the agency. Oceana further argues that NMFS has failed to establish adequate monitoring processes to ensure that limits on the number of loggerheads that lawfully can be harmed are not exceeded by the Fishery's operation.
This matter is before the Court on cross-motions for summary judgment filed by Oceana and NMFS, as well as by defendant-intervenor Fisheries Survival Fund. The Court heard oral argument on these motions on November 25, 2014. Upon consideration of the parties' papers, their arguments presented in open court, the
relevant legal authorities, and pertinent portions of the administrative record, the Court will grant in part and deny in part each party's motion for summary judgment and it will remand this matter to the agency for a limited purpose.
I. STATUTORY AND REGULATORY FRAMEWORK
The Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seq., has been regarded as " the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The ESA " seeks to protect species of animals against threats to their continuing existence caused by man." Lujan v. Defenders of Wildlife, 504 U.S. 555, 558, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Under the ESA, species may be listed either as " endangered" or as " threatened." See 16 U.S.C. § 1533. An endangered species is " any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A threatened species is " any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). The ESA is jointly administered by two federal agencies: the Fish and Wildlife Service (" FWS" ) and the National Marine Fisheries Service. 50 C.F.R. § 402.01(b). FWS administers the statute with respect to species under the jurisdiction of the Secretary of the Interior, while NMFS covers those species under the jurisdiction of the Secretary of Commerce. Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 651, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007).
" Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. at 652. Under Section 7(a)(2), " [e]ach Federal agency shall, in consultation with and with the assistance of [FWS or NMFS], insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2). Formal consultation
under Section 7 is only required, however, where a federal agency has concluded after an initial review that its action " may affect listed species or critical habitat." See 50 C.F.R. § 402.14(a). At the conclusion of the Section 7 consultation process, FWS or NMFS must issue a Biological Opinion (" BiOp" ), " setting forth [its] opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h).
When the BiOp concludes that jeopardy is likely to result from the action under review, the consulting agency " shall suggest those reasonable and prudent alternatives which [it] believes would not violate [Section 7(a)(2)] and can be taken by [the action agency]." 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h)(3). " Following the issuance of a 'jeopardy' opinion, the agency must either terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e)." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. at 652. Where the consulting agency concludes that the agency action is not likely to jeopardize the continued existence of the species but is nonetheless likely to result in some " incidental take," the BiOp must set forth an Incidental Take Statement (" ITS" ), which specifies the permissible " amount or extent" of this impact on the species. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). " Take" is defined by the ESA as meaning " to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Although Section 9 of the ESA prohibits takes of listed species, 16 U.S.C. § 1538(a)(1), incidental takes are permissible if they occur in accordance with the conditions set forth in an ITS. 50 C.F.R. § 402.14(i)(5). These conditions include " reasonable and prudent measures" that are considered " necessary or appropriate to minimize" the extent of incidental taking. 50 C.F.R. § 402.14(i)(1)(ii). The action agency is " required" to reinitiate Section 7 consultation " immediately" if the amount or extent of taking specified in the Incidental Take Statement is exceeded. 50 C.F.R. § § 402.14(i)(4), 402.16(a).
In formulating a Biological Opinion, FWS and NMFS must " use the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). A BiOp constitutes final agency action subject to judicial review under the Administrative Procedure Act. See Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
Loggerhead sea turtles, or Caretta caretta, are the most abundant species of sea turtle living in United States waters. SAR 13142. They are long-lived, and do not reach reproductive maturity until between ages 32 to 35. SAR 13157. Loggerheads feed on mollusks and crustaceans, among other things. SAR 13146. NMFS explains that " [i]n U.S. Atlantic waters, loggerheads commonly occur throughout the inner continental shelf from Florida to Cape Cod, Massachusetts and in the Gulf
of Mexico from Florida to Texas, although their presence varies with the seasons due to changes in water temperature." SAR 13145. In 1978, loggerheads were listed under the ESA as threatened throughout their global range. See SAR 13142.
On September 22, 2011, NMFS and FWS issued a final rule that divided the worldwide population of loggerheads into nine distinct population segments (" DPSs" ), each of which was separately listed as either endangered or threatened under the ESA. SAR 13144 (citing 76 Fed.Reg. 58,868 (Sept. 22, 2011)). This case concerns just one of these distinct population segments: the Northwest Atlantic DPS (" NWA DPS" ), whose range extends north of the equator, south of 60° N latitude, and west of 40° W longitude. See SAR 13144-45. The NWA DPS -- which, in the proposed version of the rule, originally had been listed as endangered -- ultimately was listed as a threatened species in the final rule. SAR 13143-44; see also 76 Fed.Reg. 58,868, 58,917-24, 58,945-46.
The BiOp under challenge here assesses the impact of the Atlantic Sea Scallop Fishery on the NWA DPS of loggerheads. This Fishery's operation is governed by the Scallop Fishery Management Plan (" Scallop FMP" ), pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (" MSA" ). See 16 U.S.C. § § 1854(a), (b). The MSA governs domestic marine fisheries through eight regional fishery management councils that prepare FMPs. 16 U.S.C. § § 1801(b)(1)(B), 1852(h). The Scallop FMP was implemented on May 15, 1982 to manage scallop harvesting. See SAR 13129. " Scallops are found in the Northwest Atlantic Ocean from North Carolina to Newfoundland, along the continental shelf, typically on sand and gravel bottoms." SAR 13126. The Fishery uses dredge and bottom trawl vessels to capture scallops, operating year-round in U.S. waters. SAR 13125-26. The Fishery primarily uses " dredge gear, a set of steel frames, usually fifteen feet in length, which are towed along the sea floor," but also uses " [t]rawl gear," comprised of " a cone-shaped net equipped with steel weights, also towed along the seabed." Oceana, Inc. v. Evans, 384 F.Supp.2d 203, 213 (D.D.C.), order clarified, 389 F.Supp.2d 4 (D.D.C. 2005).
NMFS first initiated formal consultation under Section 7 for the Fishery on December 21, 2001. SAR 13121. This first consultation concluded with the issuance of the February 2003 BiOp. As with every BiOp since, NMFS concluded that the Fishery's operation would not jeopardize the continued existence of the loggerhead sea turtle. Id. NMFS reinitiated formal consultation later that year, in November 2003, due to the availability of relevant new information. Id. The reconsultation resulted in the February 2004 BiOp. Id. NMFS again reinitiated consultation in September 2004 to consider yet more new information, resulting in a new BiOP issued in December 2004. Id.
Plaintiff Oceana, an international advocacy group focused on ocean conservation, brought a lawsuit challenging the December 2004 BiOp, beginning more than ten years of litigation against NMFS' BiOps relating to the Atlantic Sea Scallop Fishery's effect on the loggerhead sea turtle. Oceana's challenge was unsuccessful, and the December 2004 BiOp was upheld in an opinion by Judge Huvelle. Oceana v. Evans, 384 F.Supp.2d 203 (D.D.C.), order clarified, 389 F.Supp.2d 4 (D.D.C. 2005).
NMFS then reinitiated consultation and issued a new BiOp in September 2006, which Oceana also challenged in court. See
Oceana, Inc. v. Gutierrez, Civil Action No. 1:07-cv-00142-RBW (D.D.C. filed Jan. 19, 2007). After the
litigation was underway, however, in April 2007 NMFS yet again reinitiated consultation. See Notice re: Biological Opinion, Oceana v. Gutierrez, No. 1:07-cv-00142-RBW (May 4, 2007) [Dkt. No. 14]. Because consultation was continuing, the parties agreed to stay the litigation. Motion to Approve Joint Stipulation & Order, Oceana v. Gutierrez, No. 1:07-cv-00142-RBW (June 29, 2007) [Dkt. No. 21]. The parties then voluntarily dismissed the case after entering into a Joint Stipulation, whereby NMFS agreed to consider Oceana's comments in developing the new BiOp. See Joint Stipulation & Order, Oceana v. Gutierrez, No. 1:07-cv-00142-RBW (Jan. 23, 2008) [Dkt. No. 25].
In March 2008, NMFS issued a superseding BiOp (" the 2008 BiOp" ) (later amended on February 5, 2009). SAR 13120. Oceana then initiated the present action challenging the 2008 BiOp, filing its complaint on October 31, 2008. See Dkt. No. 1. In February 2012, NMFS reinitiated consultation once again, and the following month it filed a motion seeking a stay of proceedings with respect to Oceana's challenge to the 2008 BiOp. See Dkt. No. 70. Over Oceana's objection, the Court granted NMFS' motion, see Dkt. No. 73, and this action was stayed. NMFS issued the superseding BiOp on July 12, 2012, and the stay was lifted on October 31 of that year. In the 2012 BiOp, NMFS estimated that the Scallop Fishery would result in a total of 301 loggerhead takes annually. SAR 13245-48. Of those takes, NMFS predicted that during the 2012 fishing year up to 195 would be fatal, and that in subsequent years only up to 112 would be fatal due to the implementation of technological improvements designed to protect loggerheads. SAR 13263. The 2012 BiOp concluded that notwithstanding this loss of life, the continued operation of the Scallop Fishery would not be likely to result in jeopardy to the NWA DPS of loggerheads. Following Oceana's filing of an Amended Complaint challenging this updated BiOp, the parties filed the three pending cross-motions for summary judgment.
III. LEGAL STANDARD
" [W]hen an agency action is challenged[, t]he entire case on review is a question of law, and only a question of law." Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226, 300 U.S.App.D.C. 263 (D.C. Cir. 1993). While the general standard for summary judgment set forth in Rule 56 of the Federal Rules of Civil Procedure does not apply to a review of agency action, summary judgment nonetheless " serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006) (citing Richards v. INS, 554 F.2d 1173, 1177, 180 U.S.App.D.C. 314 & n.28 (D.C. Cir. 1977)); accord Cottage Health Sys. v. Sebelius, 631 F.Supp.2d 80, 89-90 (D.D.C. 2009).
Under the APA, a reviewing court shall " hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). " The arbitrary and capricious standard is deferential; it requires that agency action simply be 'reasonable and reasonably explained.'" Communities for a Better Environment v. EPA, 748 F.3d 333, 335, 409 U.S.App.D.C. 184 (D.C. Cir. 2014) (quoting Nat'l Telephone Cooperative Ass'n v. FCC, 563 F.3d 536, 540, 385 U.S.App.D.C. 327 (D.C. Cir. 2009)); see also Kennecott Greens Creek Min. Co. v. Mine Safety and Health Admin., 476 F.3d 946, 954, 375 U.S.App.D.C. 13 (D.C. Cir. 2007) (" [The] standard of review under the arbitrary and capricious
test is only reasonableness, not perfection." ). " An agency action will be upheld if the agency 'articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'" FirstEnergy Serv. Co. v. FERC, 758 F.3d 346, 352, 411 U.S.App.D.C. 155 (D.C. Cir. 2014) (quoting Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)) (internal quotation marks omitted). Furthermore, a court will " give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise." Communities for a Better Environment v. EPA, 748 F.3d at 336 (quoting City of Waukesha v. EPA, 320 F.3d 228, 247, 355 U.S.App.D.C. 100 (D.C. Cir. 2003)) (internal quotation marks omitted); see also Troy Corp. v. Browner, 120 F.3d 277, 283, 326 U.S.App.D.C. 249 (D.C. Cir. 1997) (a federal court should " review scientific judgments of the agency 'not as the chemist, biologist, or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality'" ) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 36, 176 U.S.App.D.C. 373 (D.C. Cir. 1976) (en banc)).
" The Court's review, however, must be 'searching and careful.'" Colorado River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 199 (D.D.C. 2012) (quoting Nat'l Envtl. Dev. Assn's Clean Air Project v. EPA, 686 F.3d 803, 810, 402 U.S.App.D.C. 5 (D.C. Cir. 2012)). " An agency decision is arbitrary and capricious if it '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 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.'" Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 714, 396 U.S.App.D.C. 314 (D.C. Cir. 2011) (quoting Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43); accord Agape Church, Inc. v. FCC, 738 F.3d 397, 410, 407 U.S.App.D.C. 408 (D.C. Cir. 2013). Just as the Court may not " substitute [its] judgment for that of the agency" to set aside an agency action, Rural Cellular Ass'n v. FCC, 588 F.3d 1095, 1105, 388 U.S.App.D.C. 421 (D.C. Cir. 2009), it also may not " affirm an agency decision on a ground other than that relied upon by the agency." Manin v. NTSB, 627 F.3d 1239, 1243, 393 U.S.App.D.C. 299 (D.C. Cir. 2011).
A. Article III Standing
NMFS first asserts that Oceana lacks standing to challenge the 2012 BiOp. Although Oceana has proffered the declarations of two of its members -- who maintain that they enjoy the study and observation of loggerheads and therefore would be injured by harm to the species caused by interactions with the Scallop Fishery -- NMFS contends that because the " action area" does not extend to the specific North Carolinian island on which those declarants observe sea turtles, they cannot demonstrate a causal connection between the Fishery and their asserted injuries. See NMFS Opp. & MSJ at 19-20; NMFS Reply at 2-3.
" Article III of the Constitution limits federal-court jurisdiction to 'Cases' and 'Controversies.'" Massachusetts v. EPA,549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). The requirement of ...