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Oceana, Inc. v. Pritzker

United States District Court, D. Columbia.

August 31, 2015

OCEANA, INC., Plaintiff,
PENNY PRITZKER, United States Secretary of Commerce, et al., Defendants

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[Copyrighted Material Omitted]

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          For OCEANA, INC., Plaintiff: Paul Anthony Werner, III, LEAD ATTORNEY, Gardner Fordyce Gillespie, III, J. Aaron George, SHEPPARD MULLIN RICHTER & HAMPTON LLP, Washington, DC.



         PAUL L. FRIEDMAN, United States District Judge.

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          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

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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.[1]


         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).[2] Formal consultation under Section 7 is only required, however, where a federal agency has concluded

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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, 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).

         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).


         In 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.

         At issue in the present case is a Biological Opinion addressing the impact of seven

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other fisheries on the Northwest Atlantic Distinct Population Segment of loggerheads.[3] 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.[4] 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 relief).

         The 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 52455-56, 52463-64.

         The 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

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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 basis.

         In the 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).

         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

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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).


         A. Article III Standing

         Although 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.'" Id.

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(quoting Lujan v. Defenders of Wildlife, 504 U.S. at 560-61).

         An 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)).[5] 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 ...

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