United States District Court, D. Columbia.
[Copyrighted Material Omitted]
OCEANA, INC., Plaintiff: Paul Anthony Werner, III, LEAD
ATTORNEY, Gardner Fordyce Gillespie, III, J. Aaron George,
SHEPPARD MULLIN RICHTER & HAMPTON LLP, Washington, DC.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL
MARINE FISHERIES SERVICE, REBECCA M. BLANK, Acting Secretary,
United States Department of Commerce, Defendants: James A.
Maysonett, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE
ENVIRONMENT & NATURAL RESOURCES DIVISION, Washington, DC.
FRIEDMAN, United States District Judge.
Oceana, Inc. challenges a Biological Opinion issued by the
National Marine Fisheries Service (" NMFS" ), in
which NMFS has determined that the combined operation of
seven fisheries is not likely to jeopardize the continued
existence of the Northwest Atlantic Distinct Population
Segment of loggerhead sea turtles. Oceana contends that the
Biological Opinion is arbitrary and capricious and therefore
seeks its vacatur. NMFS responds that its scientific judgment
is entitled to deference. Both sides have filed
motions for summary judgment. For the reasons explained in
this Opinion, the Court will grant in part and deny in part
each side's motion for summary judgment and it will
remand this matter to the agency for the limited purposes set
forth in the discussion below.
STATUTORY AND REGULATORY FRAMEWORK
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
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).
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, 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 Incidental Take Statement. 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).
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).
December of 2014, this Court issued an Opinion and an Order
addressing Oceana's challenge to a separate Biological
Opinion, in which NMFS had concluded that the operation of
the Atlantic Sea Scallop Fishery was not likely to jeopardize
the continued existence of the same loggerhead turtle
population at issue in the present case, the Northwest
Atlantic Distinct Population Segment. See Oceana, Inc. v.
Pritzker, 75 F.Supp.3d 469 (D.D.C. 2014). The Court
largely rejected Oceana's arguments, but agreed with
Oceana that the provisions of the BiOp's Incidental Take
Statement might not be sufficient to ensure that NMFS could
determine when the take limits had been exceeded. As a
result, the Court remanded the BiOp to NMFS for
reconsideration or further explanation of those provisions.
See id. 497-99.
issue in the present case is a Biological Opinion addressing
the impact of seven
other fisheries on the Northwest Atlantic Distinct Population
Segment of loggerheads. These seven fisheries are the: (1)
Northeast Multispecies; (2) Monkfish; (3) Spiny Dogfish; (4)
Atlantic Bluefish; (5) Northeast Skate Complex; (6) Mackerel,
Squid, and Butterfish; and (7) Summer Flounder, Scup, and
Black Sea Bass Fisheries. Oceana maintains that the BiOp is
deficient for a variety of reasons, and argues that this
Court should vacate the BiOp and direct NMFS to reinitiate
consultation under the Endangered Species Act with respect to
the seven fisheries. See Am. Compl. at 38 (prayer for
fisheries employ a variety of gear types that can cause harm
to loggerheads. " Sink gillnets and bottom otter trawls
are the two predominant gear types used in the seven
fisheries." AR 52253. Sink gillnets are panels of
netting " in which fish are incidentally snaggled or
entangled." Id. Gillnets are hung from a
floating line on the surface of the water and are weighted
down at their bottoms. Id. These gillnets also
entangle loggerhead turtles, which can cause serious injury
and death. AR 52455. In fact, " [g]illnets are so
effective at catching sea turtles they were commonly used in
the historical sea turtle fishery." Id. "
Bottom trawls are typically cone-shaped nets towed on the
bottom" of the seafloor, which feature " [l]arge,
rectangular doors" that keep the mouth of the net open
while it is towed. AR 52254. Like gillnets, bottom trawls can
entangle or capture loggerheads, leading to serious injury
and death. AR 52455. In addition to gillnets and trawls, the
fisheries utilize trap/pot gear and bottom longlines. AR
52254. Both of these gear types also are known to pose
threats of injury and death to loggerhead turtles. AR
BiOp assesses the impact of the seven fisheries together as a
" batch," AR 52252, which departs from NMFS'
prior practice of analyzing each fishery's effects in a
separate Section 7 consultation. See AR 52243-53. In 2010,
NMFS issued separate BiOps for each of these seven fisheries.
AR 52243-51. In 2012, NMFS reinitiated Section 7 consultation
and decided to use a " batched" approach instead.
AR 52251. Under this approach, the BiOp defines the "
proposed action" under review as " the continued
operation of the [seven] fisheries managed under seven
[Fisheries Management Plans]." AR 52251. NMFS has
estimated that this action will result in up to 483
loggerhead " takes" per year, of which up to 239
may be lethal. AR 52478-81, 52508. NMFS ultimately concludes,
however, that these effects of the operation of the seven
fisheries are not likely to
jeopardize the continued existence of the species. AR
52510-15; see 16 U.S.C. § 1536(a)(2). This "
no-jeopardy determination" is the ultimate target of
Oceana's challenge to the BiOp. Although NMFS found no
jeopardy, it did, as noted above, estimate that several
hundred loggerhead takes would occur annually in the seven
fisheries, and the agency therefore included an Incidental
Take Statement in the BiOp. Oceana also challenges the
sufficiency of the measures included in that portion of the
BiOp, arguing that NMFS has not demonstrated its ability to
monitor the number of loggerhead takes occurring on an annual
present suit, Oceana raises certain arguments that this Court
already considered in connection with Oceana's earlier
challenge to the Sea Scallop BiOp. In particular, Oceana
challenges NMFS' interpretation of a regulatory phrase
that defines a key statutory term. The Endangered Species Act
obligates federal agencies to ensure that their actions are
" not likely to jeopardize the continued existence of
any endangered species or threatened species," 16 U.S.C.
§ 1536(a)(2), but the statute does not define the phrase
" jeopardize the continued existence of." NMFS and
FWS define that phrase by regulation as meaning " to
engage in an action that reasonably would be expected,
directly or indirectly, to reduce appreciably the likelihood
of both the survival and recovery of a listed species in the
wild by reducing the reproduction, numbers, or distribution
of that species." 50 C.F.R. § 402.02. And in this
BiOp, as it did in the Sea Scallop BiOp, NMFS applied an
interpretation of " reduce appreciably" that
examined whether the action would cause a " considerable
or material reduction in the likelihood of survival and
recovery" of the species. See Oceana MSJ at 3 n.2, 29;
NMFS MSJ at 18-24. The Court previously upheld this
interpretation as consistent both with the regulation and
with the underlying statute, see Oceana, Inc. v.
Pritzker, 75 F.Supp.3d at 481-87, and the Court stands
by that analysis. Consequently, the Court will say no more on
that point in this Opinion.
[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).
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. Ass'n'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. Nat'l Transp. Safety
Bd., 627 F.3d 1239, 1243 (D.C. Cir. 2011).
Article III Standing
NMFS does not challenge Oceana's standing to bring this
suit, the issue implicates this Court's subject matter
jurisdiction and the Court therefore bears an "
independent obligation" to assess it. See Arbaugh v.
Y& H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163
L.Ed.2d 1097 (2006).
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).
" To enforce this limitation, [federal courts] demand
that litigants demonstrate a 'personal stake' in the
suit." Camreta v. Greene, 563 U.S. 692, 131
S.Ct. 2020, 2028, 179 L.Ed.2d 1118 (2011) (quoting
Summers v. Earth Island Institute, 555 U.S. 488, 493,
129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)). " The party
invoking the Court's authority has such a stake when
three conditions are satisfied: The [plaintiff] must show
that he has 'suffered an injury in fact' that is
caused by 'the conduct complained of' and that
'will be redressed by a favorable decision.'"
(quoting Lujan v. Defenders of Wildlife, 504 U.S. at
organizational plaintiff, such as Oceana, " may have
standing to sue on its own behalf 'to vindicate whatever
rights and immunities the association itself may enjoy'
or, under proper conditions, to sue on behalf of its members
asserting the members' individual rights."
Common Cause v. Fed. Election Comm'n, 108 F.3d
413, 417, 323 U.S. App.D.C. 359 (D.C. Cir. 1997) (quoting
Warth v. Seldin,422 U.S. 490, 511, 95 S.Ct. 2197,
45 L.Ed.2d 343 (1975)); see also People for the Ethical
Treatment of Animals v. U.S. Dep't of Agriculture,
No. 14-5157, 797 F.3d 1087, 2015 WL 4727327, at *4 (D.C.
Cir. Aug. 11, 2015) (" As an organization, PETA 'can
assert standing on its own behalf, on behalf of its members
or both.'" ) (quoting Equal Rights Ctr. v. Post
Properties, Inc.,633 F.3d 1136, 1138, 394 U.S. App.D.C.
239 (D.C. Cir. 2011)). When " an organization sues on
behalf of its members, the organization must demonstrate
'(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are
germane to the organization's purpose; and (c) neither
the claim ...