United States District Court, District of Columbia
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendants' notice that
the National Marine Fisheries Service (“NMFS”)
had revised its Incidental Take Statement, thus completing
its remand in response to the Court's December 17, 2014
Opinion and Order. Plaintiff Oceana, Inc. filed a response to
the notice, challenging the adequacy of the agency's
revisions on remand, and the parties proceeded to brief the
matter. Upon consideration of the revised Incidental Take
Statement, the parties' briefs, the relevant legal
authorities, and the entire record in this case, the Court
will remand to the agency for a limited
FACTUAL AND PROCEDURAL BACKGROUND
case involves a challenge to the 2012 Biological Opinion
(“BiOp”) issued by NMFS that pertains to the
operation of the Atlantic Sea Scallop Fishery and its impact
on a threatened species under the Endangered Species Act -
the Northwest Atlantic population segment of loggerhead sea
turtles. The Court previously issued an opinion granting in
part and denying in part the parties' cross-motions for
summary judgment and, in turn, remanding the case to the
agency for the limited purpose of addressing two deficiencies
in the 2012 BiOp. See Oceana, Inc. v. Pritzker, 75
F.Supp.3d 469 (D.D.C. 2014). In its prior opinion, the Court
described the relevant statutory and regulatory framework and
recounted the factual and procedural history of this case.
The Court thus recites here only those matters relevant to
resolving the parties' instant dispute.
Endangered Species Act (“ESA”) of 1973, as
amended, 16 U.S.C. § 1531 et seq., created a
comprehensive legislative and regulatory scheme that seeks to
preserve and protect species of animals facing man-made
threats to their continued existence. See Lujan v. Defs.
of Wildlife, 504 U.S. 555, 558 (1992); Tenn. Valley
Auth. v. Hill, 437 U.S. 153, 180 (1978). As part of this
scheme, Section 7 of the ESA sets forth “the steps that
federal agencies must take to ensure that their actions do
not jeopardize endangered wildlife and flora.” See
Nat'l Ass'n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 652 (2007). In particular,
Section 7(a)(2) requires that each federal agency, “in
consultation with and with the assistance of [NMFS or the
U.S. Fish and Wildlife Service (“FWS”)], 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 . . . .” See 16 U.S.C. §
Section 7 consultation process culminates in the issuance of
a Biological Opinion, or BiOp, in which the consulting agency
sets 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.” See 16 U.S.C. § 1536(b)(3)(A);
see also 50 C.F.R. § 402.14(h). 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 include an Incidental Take
Statement (“ITS”) specifying the permissible
extent of this impact on the species. See 16 U.S.C.
§ 1536(b)(4); 50 C.F.R. § 402.14(i). The ITS must
set forth conditions that include “reasonable and
prudent measures” considered “necessary or
appropriate to minimize” the extent of any incidental
takings. See 50 C.F.R. §
402.14(i)(1)(ii).And if the amount or extent of incidental
taking ever exceeds that specified in the ITS, the action
agency must reinitiate Section 7 consultation
“immediately.” See 50 C.F.R. §
402.14(i)(4); see also 50 C.F.R. § 402.16(a).
As a result, incidental take monitoring is a key component of
any ITS - without the ability to monitor incidental takes,
these regulatory requirements become meaningless.
earlier opinion, the Court reviewed NMFS' 2012 BiOp, in
which the agency 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. See Oceana, Inc. v.
Pritzker, 75 F.Supp.3d at 473. The Court found that the
2012 BiOp survived Oceana's challenges in large part, but
remanded to the agency for two discrete purposes. See
id. at 499.
the Court remanded to allow the agency to better explain its
reliance on a monitoring surrogate to measure loggerhead
turtle takes caused by dredge fishing. See Oceana, Inc.
v. Pritzker, 75 F.Supp.3d at 494-97. Because
technologies meant to benefit loggerheads have also made
direct observations of takes more difficult, NMFS had chosen
to measure takes by a surrogate - namely, by “dredge
hour, ” or the number of hours spent dredge fishing.
See id. at 494-95. Specifically, the agency had
considered a variety of monitoring mechanisms, but ultimately
decided to monitor takes by using the number of hours spent
dredge fishing in Mid-Atlantic waters from May through
November as a surrogate for actual takes. See id. at
496. The Court, however, found that “the 2012 BiOp
fail[ed] to sufficiently explain how the specific number of
dredge hours that NMFS ha[d] chosen as a monitoring surrogate
adequately serve[d] as a proxy for the numerical take limit
of 161 loggerheads.” See id. at 497. And
because NMFS had not adequately explained whether and how
252, 323 hours spent dredge fishing equated to 161 takes, it
had not shown that the dredge hour surrogate would serve as
an adequate “trigger” for requiring reinitiation
of consultation when actual takes surpassed the take limit.
See id. at 496-97. The Court thus remanded the ITS
in order for NMFS to “more clearly explain the
connection, ” or, if unable to do so, to choose a
monitoring mechanism that “does align with the
numerical take limit.” See id. at 497. In
doing so, the Court directed the agency to “address
Oceana's valid concern regarding the effectiveness of
linking an hour-based surrogate to a numerical take limit, in
the context of a Fishery where conditions change on a
continuous basis.” See id.
the Court remanded with regard to the agency's decision
to evaluate loggerhead takes resulting from trawl gear
fishing only once every five years. See Oceana, Inc. v.
Pritzker, 75 F.Supp.3d at 497-99. In reaching this
decision, the Court acknowledged that “[t]he five-year
timetable may reflect very real limitations on NMFS' data
collection capabilities, ” thus rendering the NMFS'
proposed monitoring system for trawl takes “the best
available option for measuring trawl takes in the
Fishery.” See id. at 498. But because NMFS had
given only “terse treatment” to trawl take
monitoring in the 2012 BiOp, the Court remanded in order to
allow the agency to “either provide a more thorough
explanation of its choice, or, if unable to do so, reach a
different conclusion.” See id. at 499.
thereafter revised the ITS for the 2012 BiOp and now contends
that it has completed its required tasks on remand by more
thoroughly explaining its chosen monitoring methods.
See Notice of Completion. Oceana filed a response
arguing that the ITS remains defective and, as a result, NMFS
still has failed to demonstrate that its monitoring methods
are not arbitrary and capricious. See Pl. Resp. In
support of this position, Oceana attached to its response the
declaration of professional statistician George Weaver, Ph.D.
NMFS moved to strike Dr. Weaver's declaration, as well as
those portions of Oceana's response that relied on his
declaration. The Court denied this motion, ruling that Oceana
would be permitted to rely on Dr. Weaver's expertise and
that NMFS would be permitted to proffer a rebuttal expert.
The parties thereafter submitted briefs, with supplemental
expert declarations, arguing the merits of whether the agency
had in fact completed its remand in accordance with the
Court's December 17, 2014 Opinion and Order.
the Administrative Procedures Act, 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.” See 5 U.S.C. § 706(2)(A). This
“arbitrary and capricious” standard is a
deferential one - “it requires that agency action
simply be ‘reasonable and reasonably
explained.'” See Cmtys. for a Better Env't
v. Envtl. Prot. Agency, 748 F.3d 333, 335 (D.C. Cir.
2014) (quoting Nat'l Tel. Coop. Ass'n v. Fed.
Commc'ns Comm'n, 563 F.3d 536, 540 (D.C. Cir.
2009)); see also Kennecott Greens Creek Mining Co. v.
Mine Safety & Health Admin., 476 F.3d 946, 954 (D.C.
Cir. 2007) (“[The] standard of review under the
arbitrary and capricious test is only reasonableness, not
perfection.”). As a result, a reviewing court will
uphold an agency action so long as the agency has
“articulated a satisfactory explanation for its action
including a rational connection between the facts found and
the choice made.” See FirstEnergy Serv. Co. v.
FERC, 758 F.3d 346, 352 (D.C. Cir. 2014) (quoting
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)).
courts “give an extreme degree of deference to the
agency when it is evaluating scientific data within its
technical expertise.” See Cmtys. for a Better
Env't v. Envtl. Prot. Agency, 748 F.3d at 336
(quoting City of Waukesha v. Envtl. Prot. Agency,
320 F.3d 228, 247 (D.C. Cir. 2003)). A court must remain
mindful that it reviews an agency's scientific judgments
“not as the chemist, biologist, or statistician that
[the court is] qualified neither by training nor experience
to be, ” and thus it may exercise only the
“narrowly defined duty of holding agencies to certain
minimal standards of rationality.” See Troy Corp.
v. Browner, 120 F.3d 277, 283 (D.C. Cir. 1997) (quoting
Ethyl Corp. v. Envtl. Prot. Agency, 541 F.2d 1, 36
(D.C. Cir. 1976) (en banc)).
the Court's review must be “searching and
careful.” See Colo. 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. Envtl. Prot. Agency, 686 F.3d 803, 810 (D.C. Cir.
2012)). A decision may be deemed arbitrary and capricious
where an agency “relied on factors which Congress has
not intended it to consider, entirely failed to consider an
important aspect of the problem, [or] 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.” See Cablevision Sys. Corp. v. Fed.
Commc'ns Comm'n, 649 F.3d 695, 714 (D.C. Cir.
2011) (quoting Motor Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. at 43); accord
Agape Church, Inc. v. Fed. Commc'ns Comm'n, 738
F.3d 397, 410 (D.C. Cir. 2013). Therefore, just as the Court
may not “substitute [its] judgment for that of the
agency, ” see Rural Cellular Ass'n v. Fed.
Commc'ns Comm'n, 588 F.3d 1095, 1105 (D.C. Cir.
2009), it also generally may not “affirm an agency
decision on a ground other than that relied upon by the
agency, ” see Manin v. Nat'l Transp. Safety
Bd., 627 F.3d 1239, 1243 (D.C. Cir. 2011).
addition, where an administrative agency has been ordered to
reconsider or explain an earlier decision on remand, as is
the case here, the agency has an “affirmative duty to
respond to the specific issues remanded” by the Court.
See Defs. of Wildlife v. Kempthorne, No. 04-1230,
2006 WL 2844232, at *12 (D.D.C. Sept. 29, 2006) (first citing
Tex Tin Corp. v. Envtl. Prot. Agency, 992 F.2d 353,
355 (D.C. Cir. 1993); then citing Ass'n of Civilian
Technicians v. Fed. Labor Relations Auth., 370 F.3d
1214, 1223 (D.C. Cir. 2004)). The agency “retains some
discretion to determine how it ‘may best proceed to
develop the needed evidence and how its prior decision should
be modified in light of such evidence as
develops.'” See id. at *11 (quoting
Fed. Power Comm'n v. Transcon. Gas Pipe Line
Corp., 423 U.S. 326, 333-34 (1976)). And the remanding
court “may not dictate to the agency the
‘methods, procedures, or time dimension,' for its
reconsideration.” See id. (quoting SEC v.
Chenery Corp., 318 U.S. 194, 196 (1947)). Nor may the
court demand that an agency reach any particular result.
See id. (citations omitted). But the ...