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American Tunaboat Association v. Ross

United States District Court, District of Columbia

July 31, 2019

WILBUR ROSS et al., Defendants.


          TREVOR N. McFADDEN, U.S.D.J.

         The Endangered Species Act consultation process ensures that federal agencies take no action that would jeopardize the continued existence of endangered or threatened species or adversely affect critical habitat. The Act also grants certain rights for “applicants” to participate in this process. This case is about whether the National Marine Fisheries Service wrongly denied the American Tunaboat Association applicant status regarding the Service's ongoing review of the U.S. purse seine fishery in the Western and Central Pacific Ocean.

         The Association sued, claiming the denial was arbitrary and capricious. Both the Association and the Service have moved for summary judgment. For the following reasons, the Court finds that the Service's denial decision was reasonable. So the Association's motion will be denied, and the Service's motion will be granted.



         The Endangered Species Act (“the Act”), 16 U.S.C. § 1531 et seq., is “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 (1978). The Service lists species that it determines are at risk of extinction as endangered or threatened. 16 U.S.C. § 1533; 50 C.F.R. § 402.01(b). The Act prohibits federal agencies from taking actions that are likely to jeopardize these listed species or destroy or adversely modify designated critical habitat. 16 U.S.C. § 1536(a)(2). So federal agencies must consult with the Service before taking an action that may adversely affect these species or their critical habitats. Id. [1]

         If an agency's action is likely to adversely affect a listed species or critical habitat, the agency must engage in formal consultation. 50 C.F.R. § 402.14. As part of the formal consultation process, the Service prepares a biological opinion. See Id. §§ 402.12(k)(1), 402.14(a)-(b). A biological opinion includes, among other things, the Service's opinion “on whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(h)(3). If the Service concludes that the action is likely to jeopardize the continued existence of a listed species, it must offer “reasonable and prudent alternatives” that would not jeopardize the species. 16 U.S.C. § 1536(b)(3)(a); 50 C.F.R. § 402.02.

         The Service then prepares an Incidental Take Statement that sets levels for the taking of the species that will not jeopardize its existence. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). “Take” means any conduct that could harm, kill, or capture the creature. See 16 U.S.C § 1532(19).

         The Act provides certain rights for applicants to participate in the consultation process. See generally 16 U.S.C. § 1536. The Act does not define “applicant.”[2] But 50 C.F.R. § 402.02 does: “any person . . . who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action.” Applicant status conveys certain valuable rights. Applicants can submit information during the consultation, 50 C.F.R. § 402.14(d); approve agency-requested extensions of time to complete formal consultation, id. § 402.14(e); participate in discussions on the Service's review and findings in a biological opinion, including the availability of any reasonable and prudent alternatives, id. § 402.14(g)(5); and request a copy of and submit comments on a draft biological opinion, id.


         The U.S. purse seine fishery operating in the Western and Central Pacific Ocean (“the Fishery”) is a large tuna fishery. A.R. 29. It generally operates in the waters off several Pacific Island states, the high seas, and the U.S. Exclusive Economic Zone surrounding the U.S. Pacific Island territories and possessions. See A.R. 26. Several different international treaties and domestic authorities govern the Fishery. See, e.g., the South Pacific Tuna Act of 1998, 16 U.S.C. § 973; the Western and Central Pacific Fisheries Convention Implementation Act, 16 U.S.C. § 6901 et seq.; the High Seas Fishing Compliance Act of 1955, 16 U.S.C. § 5501 et seq. The Service issues various permits, licenses, endorsements, and other authorizations to allow the Association's members to operate in the Fishery. A.R. 5.

         In 2006, the Service completed a consultation for “the continued authorization” of the Fishery under current and proposed regulations.[3] A.R. 22. The biological opinion included an Incidental Take Statement that authorized the annual incidental take of about 60 individual turtles across five different species. A.R. 161. The Service required some “reasonable and prudent measures, ” as implemented by terms and conditions, mainly focused on sea turtle take mitigation measures. See, e.g., A.R. 162-64. These measures became binding when incorporated into regulations issued through notice and comment rulemaking. See 50 C.F.R. § 300.223(f); 74 Fed. Reg. 38, 544.

         Since then, the Service has listed additional species near the Fishery, like the oceanic whitetip shark and the scalloped hammerhead shark, as threatened or endangered. A.R. 493-94. Because of these new listings, the Service reinitiated consultation in October 2014. A.R. 205.[4]The subject of the consultation is “the continued operation of [the Fishery], as currently managed under [the Service's] regulations implementing the South Pacific Tuna Treaty and decisions of the Western and Central Pacific Fisheries Commission.” A.R. 495.

         South Pacific Tuna Corporation, a member of the Association, first requested applicant status from the Service so that it could participate in this ongoing consultation. A.R. 15-18. The Service denied its request for applicant status but offered to work with the Corporation to develop a framework for its involvement in the consultation. A.R. 8-10. Then, the Association, which represents all U.S. large purse seine vessels participating in the Fishery, requested applicant status. A.R. 5. The Service also denied this request but similarly offered to extend some participation opportunities to the Association without formally designating the Association an applicant. A.R. 1-3. The denial was transmitted in a formal, three-page letter signed by the Regional Administrator of the Service's Pacific Islands Region Office. See id.

         The Association filed a Complaint and a Motion for Preliminary Injunction. See ECF Nos. 1, 2. The Court heard oral argument on the motion. Afterwards, the Association withdrew its Motion for Preliminary Injunction, and the parties agreed to expedited summary judgment briefing. See Joint Motion, ECF No. 15.


         Summary judgment is usually only appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56. But when a court is reviewing an administrative agency's decision, the standard set out in Federal Civil Procedure Rule 56 does not apply. See Richards v. I.N.S., 554 F.2d 1173, 1177 (D.C. Cir. 1977). Instead, as both parties acknowledge, courts review an agency's decision under the deferential standard provided in the Administrative Procedure Act. See Ramaprakash v. Fed. Aviation Admin., 346 F.3d 1121, 1124 (D.C. Cir. 2003).

         A court must set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). “The arbitrary and capricious standard is deferential; it requires that agency action simply be reasonable and reasonably explained.” Comtys. for a Better Env't v. E.P.A., 748 F.3d 333, 335 (D.C. Cir. 2014) (cleaned up). An agency action is arbitrary and capricious if an agency fails to “comply with its own regulations.” Nat'l Envtl. Dev. Ass'n's Clean Air Project v. E.P.A., 752 F.3d 999, 1009 (D.C. Cir. 2014) (cleaned up).



         The first issue here is whether the Association has standing to sue. “Article III of the Constitution limits federal courts' jurisdiction to certain ‘Cases' and ‘Controversies.'” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013) (quoting U.S. Const. art. III, § 2). “No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies, ” and “[t]he concept of standing is part of this limitation.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976) (cleaned up). To establish Article III standing, the Association “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).

         Perhaps naturally, the Association argues that it has associational standing. See generally Pl.'s Mot. for Summ. J. (“Pl.'s Br.”) at 14-23, ECF No. 19-2. “[A]n association has standing to bring suit on behalf of its members when: (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 asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977).

         The Service does not contest that the Association meets the latter two elements of associational standing. See generally Defs.' Cross-Mot. for Summ. J. (“Defs.' Br.”), ECF No. 20-1. The Association, an organization dedicated to “a robust, sustainable, fairly managed, and economically strong Fishery, ” Pl.'s Br. at 15, has an “obvious interest in challenging” the Service's refusal to allow it or its members to participate as applicants in the consultation process. Am. Trucking Ass'ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 247 (D.C. Cir. 2013). “[C]onsultation is designed as an integral check on federal agency action . . . .” Ctr. for Bio. Diversity v. E.P.A., 861 F.3d 174, 182 (D.C. Cir. 2017) (cleaned up). And neither the claim asserted, nor the relief requested, requires any of the Association's members to participate as a named plaintiff in the lawsuit. See id.

         The remaining question, then, is whether at least one of Association's members has standing to sue. See Am. Trucking Ass'ns, Inc., 724 F.3d at 247. The Association argues that the South Pacific Tuna Corporation, one of its members, has suffered a procedural injury. Pl.'s Br. at 17.

         Courts relax the redressability and imminence requirements for a plaintiff claiming a procedural injury, but “the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). The Supreme Court “has never freed a plaintiff alleging a procedural violation from showing a causal connection between the government action that supposedly required the disregarded procedure and some reasonably ...

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