United States District Court, District of Columbia
N. McFADDEN, U.S.D.J.
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.
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.
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. 
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.
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
provides certain rights for applicants to participate in the
consultation process. See generally 16 U.S.C. §
1536. The Act does not define
“applicant.” 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.
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.
2006, the Service completed a consultation for “the
continued authorization” of the Fishery under current
and proposed regulations. 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.
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.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.
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.
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.
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).
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).
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).
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).
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.
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.
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