Defenders of Wildlife v. United States Department of the Navy , 733 F.3d 1106 ( 2013 )

Case: 12-15680 Date Filed: 10/01/2013 Page: 1 of 41
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15680
________________________
D.C. Docket No. 2:10-cv-00014-LGW-JEG
DEFENDERS OF WILDLIFE, et al.,
Plaintiffs/Appellants,
versus
UNITED STATES DEPARTMENT OF THE NAVY, et al.,
Defendants/Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(October 1, 2013)
Before TJOFLAT and WILSON, Circuit Judges, and COOGLER, * District Judge.
COOGLER, District Judge:
I. INTRODUCTION
*
Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
Case: 12-15680 Date Filed: 10/01/2013 Page: 2 of 41
Appellants, Defenders of Wildlife, the Humane Society of the United States,
Whale and Dolphin Conservation Society, Natural Resources Defense Council,
Center for a Sustainable Coast, Florida Wildlife Federation, South Carolina
Coastal Conservation League, North Carolina Wildlife Federation, Animal Welfare
Institute, Ocean Mammal Institute, Citizens Opposing Active Sonar Threats, and
Cetacean Society International (hereinafter, “Appellants”), appeal the district
court’s grant of summary judgment in favor of Appellees, the United States
Department of the Navy, Secretary of the Navy, National Oceanic and
Atmospheric Administration, National Marine Fisheries Service, and Secretary,
United States Department of Commerce. In this appeal, Appellants challenge the
United States Department of the Navy’s (“the Navy’s”) decision to install and
operate an instrumented Undersea Warfare Training Range (“USWTR” or “the
range”) fifty nautical miles offshore of the Florida/Georgia border in waters
adjacent to the only known calving grounds of the endangered North Atlantic right
whale, and the National Marine Fisheries Service’s (“NMFS’s”) biological opinion
assessing the impacts of the USWTR on threatened and endangered species. This
action is predicated on alleged violations of the National Environmental Policy
Act, 42 U.S.C. §§ 4321 et seq. (“NEPA”), the Endangered Species Act, 16 U.S.C.
§§ 1531 et seq. (“ESA”), and the Administrative Procedure Act, 5 U.S.C. §§ 701-
2
Case: 12-15680 Date Filed: 10/01/2013 Page: 3 of 41
706 (“APA”), in analyzing and approving the USWTR. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we AFFIRM.
II. BACKGROUND
A. The Navy’s Need for the USWTR
The Navy has used instrumented undersea ranges to train its personnel since
the 1960s. These ranges allow shore-based operators to evaluate the performance
of the participants and to provide feedback in both real time and later replays of the
exercises. In 1996, the Navy published a Notice of Intent to build such a range
somewhere in the Atlantic to more effectively train its personnel in shallow-water
anti-submarine warfare. Training in shallow water is important because the
Navy’s Atlantic fleet is deployed to many shallow-water environments worldwide,
and this range would be the first designed especially for shallow-water training.
B. The National Environmental Policy Act
The Navy then began the process of complying with its statutory mandates,
including the two environmental statutes relevant here, NEPA and the ESA.
NEPA was designed to infuse environmental considerations into government
decision-making. See 40 C.F.R. § 1501.1 (explaining NEPA’s purpose). See also
Wilderness Watch & Pub. Emps. for Envtl. Responsibility v. Mainella, 375 F.3d
1085, 1094 (11th Cir. 2004) (“NEPA essentially forces federal agencies to
document the potential environmental impacts of significant decisions before they
3
Case: 12-15680 Date Filed: 10/01/2013 Page: 4 of 41
are made, thereby ensuring that environmental issues are considered by the agency
and that important information is made available to the larger audience that may
help to make the decision or will be affected by it.”) (citing Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 349, 109 S. Ct. 1835, 1845, 104 L.Ed.2d
351 (1989)). “NEPA imposes procedural requirements rather than substantive
results, and so long as an agency has taken a ‘hard look’ at the environmental
consequences, a reviewing court may not impose its preferred outcome on the
agency.” Wilderness Watch, 375 F.3d at 1094 (citing Fund for Animals, Inc. v.
Rice, 85 F.3d 535, 546 (11th Cir. 1996)).
To ensure a well-considered decision, NEPA requires that when a federal
agency proposes a “major Federal action[] significantly affecting the quality of the
human environment,” it must prepare and file an environmental impact statement
(“EIS”) that examines the environmental impact or impacts of the proposed action,
compares the action to other alternatives, and discusses means to mitigate any
adverse environmental impacts. 42 U.S.C. § 4332(C). Preparing an EIS requires
several steps, the first of which is determining whether one is needed. If the
agency finds, based on a less formal “environmental assessment,” that the
proposed action will not significantly affect the environment, the agency is
permitted to issue a “Finding of No Significant Impact” in lieu of an EIS. 40
C.F.R. §§ 1501.4, 1508.9, 1508.13. However, when an EIS is required, the federal
4
Case: 12-15680 Date Filed: 10/01/2013 Page: 5 of 41
agency first prepares a draft EIS and solicits public comments. Id. § 1503.1. The
agency must then “assess and consider” the comments in drafting the final EIS and
publish a notice of availability of the final EIS in the Federal Register. Id. §§
1503.4, 1506.10(b). When the agency makes its final decision regarding the
proposed action and alternatives discussed in the final EIS, the agency prepares “a
concise public record of decision” identifying the agency’s action and the
alternatives it considered. Id. § 1505.2. The record of decision (“ROD”) states
what the decision was, identifies all alternatives considered by the agency, and
states whether all practicable means to avoid or minimize environmental harm
from the alternative selected have been adopted, and if not, why not. Id. After
issuing the ROD, the agency is then authorized to implement its decision. Id. §
1506.1.
C. The Navy’s NEPA Compliance
The Navy originally considered four alternative sites for the range: the Gulf
of Maine, near Wallops Island, Virginia, off the coast of North Carolina, and
offshore of Charleston, South Carolina. Pursuant to NEPA, the Navy released a
draft EIS in 2005 proposing to build the USWTR off the coast of North Carolina
but then issued a revised draft EIS three years later, changing the proposed range
site to fifty nautical miles offshore of Jacksonville, Florida, in a Navy training area
known as the Jacksonville Operating Area. Several factors prompted the Navy’s
5
Case: 12-15680 Date Filed: 10/01/2013 Page: 6 of 41
decision to relocate the proposed site for the range. The Navy had closed the
Naval Air Station in Brunswick, Maine and had relocated several maritime aircraft
squadrons to Naval Air Station Jacksonville in 2005, with the result that five fleet
squadrons, one fleet replacement squadron, and all of the East Coast anti-
submarine warfare helicopters were then based at either Naval Air Station
Jacksonville or Naval Station Mayport. Further, Florida has been a fleet
concentration area since before World War II and has one of the largest Atlantic
fleet assemblages of ships, aircraft and personnel.
The Navy concluded that co-locating the range facility in the same area as
the primary user represented the greatest efficiency in applying limited resources to
support training. The Navy also concluded that locating the proposed range in the
Jacksonville Operating Area would provide the required shallow-water
environment and would be available for training given the climate. Finally, the
Navy has conducted anti-submarine warfare training in the Jacksonville Operating
Area for more than sixty years with its training there already the subject of
previous comprehensive environmental review and analyses pursuant to NEPA and
the ESA.
After soliciting and receiving public comment on the revised draft EIS, the
Navy issued its final EIS in 2009 for the installation and operation of the range at
the Jacksonville Operating Area. The range will consist of undersea, fiber optic
6
Case: 12-15680 Date Filed: 10/01/2013 Page: 7 of 41
telecommunications cables and up to 300 nodes over a 500-square-nautical-mile
area of ocean. The nodes will transmit and receive acoustic signals from ships and
submarines operating within the range, thus allowing the position of exercise
participants to be determined and stored electronically for real-time feedback and
future evaluation. The latest projections are that construction will begin in fiscal
year 2014, with the range partially functional in 2018 and fully operational in
2023.
The Navy’s final EIS fully analyzed the environmental impacts of both
constructing and operating the range. In analyzing the impacts of constructing the
range, the Navy took a hard look at that portion of the critical habitat for the North
Atlantic right whale, an endangered species, which is located off the coast of
Florida, 35 nautical miles inshore of the proposed range. Only 300 to 400 North
Atlantic right whales remain, and each fall, females return to the waters off
Georgia and Florida to give birth to their calves before migrating north to their
feeding grounds in the spring. Because the area offshore Georgia and Florida is
the species’ only known calving ground, regulations have been adopted in adjacent
waters to protect right whales from threats of fishing gear entanglement and ship
collisions. The Navy’s EIS noted that the only construction that will take place in
the right whale’s critical habitat is installation of the trunk cable connecting the
range with the onshore cable termination facility at Mayport. Cable installation
7
Case: 12-15680 Date Filed: 10/01/2013 Page: 8 of 41
will be suspended during the right whale calving season, and the trunk cable will
be buried. The Navy thus concluded that any impacts of constructing the range
will be minimal, and none of the Navy’s analyses of that part of the range project is
challenged in this appeal.
The EIS also fully analyzed the expected impacts of operating the range for
anti-submarine warfare training when deciding when and where to build it. A wide
range of ships, submarines, and aircraft that already conduct anti-submarine
warfare training in the Jacksonville Operating Area will be the users of the range.
The most frequent expected users of the range will be Navy helicopters and aircraft
based in Mayport and Jacksonville, not submarines or surface vessels. The Navy
analyzed the expected environmental impacts of the 470 exercises expected to
occur annually on the range, including the impacts to endangered and threatened
species such as right whales and various species of sea turtles.
The Navy examined the risks of operating the range at each of the four
alternative sites studied, 1 including the impacts from ship strikes, entanglements,
and the use of sonar. The Navy’s analysis of the impacts from operations was
informed by its previous analyses of the impacts of its ongoing anti-submarine
warfare training in the Jacksonville Operating Area. For example, with respect to
1
Specifically, the Navy compared the Jacksonville Operating Area location with sites off
the coast of South Carolina, off the coast of North Carolina, and off the coast of Virginia. The
Maine location that was originally proposed was abandoned after the Navy closed its air station
there.
8
Case: 12-15680 Date Filed: 10/01/2013 Page: 9 of 41
ship strikes, the Navy determined that because the range will be used by vessels
and aircraft that already conduct anti-submarine warfare training in the
Jacksonville Operating Area, the range is not expected to increase ship traffic in
the area, including traffic across right whale habitat. Appellants do not challenge
these substantive conclusions in the Navy’s EIS in this appeal.
D. The Endangered Species Act
In addition to submitting its EIS pursuant to NEPA, the Navy also was
required to comply with the ESA in planning for the USWTR. The policy of
Congress in enacting the ESA was to ensure “that all Federal departments and
agencies . . . seek to conserve endangered species and threatened species . . .” 16
U.S.C. § 1531(c)(1). See also Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.
Ct. 2279, 2297, 57 L.Ed.2d 117 (1978) (“The plain intent of Congress in enacting
this statute was to halt and reverse the trend toward species extinction, whatever
the cost.”). In accordance with this policy, the ESA provides for the listing of
species as threatened or endangered and the designation of their critical habitat. 16
U.S.C. § 1533. The Secretary of Commerce has responsibility for listed marine
species (including marine mammals and sea turtles when in the marine
environment) and administers the ESA through the NMFS, while the Secretary of
the Interior is responsible for listed terrestrial species, inland fish species, and
9
Case: 12-15680 Date Filed: 10/01/2013 Page: 10 of 41
manatees, and administers the ESA through the U.S. Fish and Wildlife Service
(“FWS”). Id. §§ 1532(15), 1533(c); 50 C.F.R. §§ 17.11, 402.01(b).
The ESA protects listed species in several ways. Section 9 establishes a
prohibition on the “taking” of any member of a listed endangered or threatened
species. 16 U.S.C. § 1538(a)(1)(B). The ESA defines the term “take” broadly, as
“to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.” Id. § 1532(19). Section 7 of the ESA
directs federal agencies to “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 destroy critical habitat. Id. §
1536(a)(2). To comply with this provision, the ESA requires that a federal agency
consult with the appropriate expert agency, either the NMFS or the FWS, under
certain circumstances. In determining whether formal consultation with the FWS
or NMFS is necessary, the federal agency first prepares a biological assessment to
evaluate the potential effects of its proposed action “on listed and proposed species
and designated and proposed critical habitat and determine whether any such
species or habitat are likely to be adversely affected by the action . . . .” 50 C.F.R.
§ 402.12(a). If the biological assessment determines that an action “may affect” a
listed species or critical habitat, formal consultation is required. Id. § 402.14(a).
Formal consultation is not required when the biological assessment determines that
10
Case: 12-15680 Date Filed: 10/01/2013 Page: 11 of 41
the proposed action is not likely to adversely affect any listed species or critical
habitat. Id. § 402.14(b)(1).
If formal consultation is necessary, the NMFS or the FWS is then
responsible for formulating a “biological opinion as to whether the action, taken
together with cumulative effects, is likely to jeopardize the continued existence of
listed species or result in the destruction or adverse modification of critical
habitat.” Id. § 402.14(g)(4). The biological opinion must include a “detailed
discussion of the effects of the action on listed species or critical habitat” in
addition to the expert agency’s ultimate opinion on jeopardy. Id. § 402.14(h)(2).
In preparing the biological opinion, the NMFS or the FWS is to use “the best
scientific and commercial data available.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. §
402.14(g)(8). If the NMFS or the FWS concludes the action is likely to jeopardize
the continued existence of listed species, it must suggest “reasonable and prudent
alternatives” which can be taken by the federal agency to ensure that its action
does not jeopardize the continued existence of the species. 16 U.S.C. §
1536(b)(3)(A).
In 1982, the ESA was amended “to resolve the situation in which a federal
agency . . . has been advised that the proposed action will not violate Section
7(a)(2) of the Act [i.e., the prohibition on jeopardizing the continued existence of
listed species] but . . . will result in the taking of some species incidental to that
11
Case: 12-15680 Date Filed: 10/01/2013 Page: 12 of 41
action.” H.R. Rep. No. 97-567 at 26 (1982), reprinted in 1982 U.S.C.C.A.N. 2807,
2826. In that situation, the NMFS’s or the FWS’s biological opinion must include
an incidental take statement specifying the amount or extent of anticipated take.
16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). The incidental take statement must
discuss reasonable and prudent measures necessary or appropriate to minimize the
impact of the incidental take. 16 U.S.C. § 1536(b)(4). The incidental take
statement thus provides an exception to the ESA’s take prohibition; as any take in
compliance with the terms and conditions of an incidental take statement is lawful.
Id. § 1536(o)(2). If the NMFS or the FWS decides that no take is likely from the
implementation of a proposed federal action, no incidental take statement is
required in the biological opinion. Ariz. Cattle Growers’ Ass’n v. U.S. Fish &
Wildlife, 273 F.3d 1229, 1240 (9th Cir. 2001) (“Absent an actual or prospective
taking under Section 9, there is no ‘situation’ that requires a Section 7 safe harbor
provision.”).
Where a proposed action is likely to result in take of listed marine mammals,
such as right whales in this case, the NMFS is prohibited from issuing an incidental
take statement until the incidental take has first been authorized under the Marine
Mammal Protection Act (“MMPA”). 16 U.S.C. § 1536(b)(4)(C) (“If after
consultation under subsection (a)(2) of this section, the Secretary concludes that if
an endangered species or threatened species of a marine mammal is involved, the
12
Case: 12-15680 Date Filed: 10/01/2013 Page: 13 of 41
taking is authorized pursuant to section 1371(a)(5) of this title; the Secretary shall
provide the Federal agency and the applicant concerned, if any, with a written
[incidental take statement] . . . .”). In relevant part, the MMPA generally prohibits
the take of listed marine mammals but provides for several exceptions to the
general take prohibition, including “incidental, but not intentional” take of “small
numbers” of marine mammals by persons “engage[d] in a specified activity”
during periods of “not more than five consecutive years.” Id. § 1371(a)(5)(A).
Any incidental take statement for listed marine mammals must also include the
mitigation measures prescribed by the MMPA take authorization. Id. §
1536(b)(4)(C)(iii).
E. The Navy’s and the NMFS’s ESA Compliance
To comply with Section 7(a)(2) of the ESA, the Navy prepared a biological
assessment and initiated formal consultation with the NMFS about the impacts to
endangered species of installing and operating the USWTR. The NMFS then
issued a biological opinion on July 28, 2009, concluding that installation of the
USWTR is not likely to adversely affect listed species, and that while expected
operations on the USWTR are likely to adversely affect listed species, including
some species of sea turtles and ESA-listed marine mammals such as right whales,
expected operations are not likely to jeopardize their continued existence or
13
Case: 12-15680 Date Filed: 10/01/2013 Page: 14 of 41
destroy or adversely modify their critical habitat. See AR001731-001967. 2
Because USWTR operations are likely to adversely affect listed species and some
take is expected to occur during operations, the Navy must obtain an incidental
take statement from the NMFS prior to commencing operations on the USWTR in
order to avoid potential take liability under Section 9 of the ESA. See 16 U.S.C. §
1536(b)(4); 50 C.F.R. § 402.14(i). However, the NMFS explained in the
biological opinion that the document does not include an incidental take statement
for the operations phase of the USWTR at this point because the ESA requires that
the take of listed marine mammals must first be authorized under the MMPA
before an incidental take statement may be issued, and any such MMPA take
authorization issued in 2009, which is only effective for five year periods, would
expire before operations ever commenced. See AR001731. See also 16 U.S.C. §
1536(b)(4)(C). Because the NMFS’s proposed issuance of any MMPA take
authorization would thus trigger a new consultation under ESA Section 7(a)(2), the
biological opinion states, “If and when such regulations or authorizations are
issued, the [NMFS] will prepare a new biological opinion to include an incidental
take statement for the endangered and threatened species that have been considered
in [the biological opinion] as appropriate.” AR001930.
2
“AR______” refers to the NMFS’s Administrative Record for its Biological Opinion.
14
Case: 12-15680 Date Filed: 10/01/2013 Page: 15 of 41
Based on the Navy’s final EIS and the NMFS’s biological opinion, the Navy
announced its decision to construct the USWTR at the Jacksonville site in a July
31, 2009 ROD, stating that construction is expected to take at least five years to
complete and thus operations are not anticipated to occur until at least 2014. See
DON185885.3 The ROD made a final decision only regarding “a portion of the
proposed action, a decision to move forward with installation of the USWTR.” Id.Because no take is expected to occur during range construction, and due to the
“anticipated four-to five-year period between now and completion of installation
and the five-year limit on the period of NMFS’ MMPA rulemaking,” the ROD
explains that “a MMPA rule related to training would likely expire before training
could commence.” Id. The ROD continues: “Therefore Navy and NMFS[] have
determined that their resources would be better utilized by the Navy delaying its
application for appropriate take authorizations under the MMPA and ESA until the
Navy has identified with greater specificity the time period for commencement of
training on the USWTR.” Id. As a result, the Navy authorized construction of the
range in the ROD, but it deferred authorization of operations on the range until
closer in time to those operations occurring and until the requisite MMPA take
authorization has been obtained, which could potentially impose conditions on
activities.
3
“DON______” refers to the Navy’s Administrative Record for its Record of Decision.
15
Case: 12-15680 Date Filed: 10/01/2013 Page: 16 of 41
III. PROCEDURAL HISTORY
Appellants filed this case on January 28, 2010, in the United States District
Court for the Southern District of Georgia, challenging the Navy’s EIS and ROD
and the NMFS’s biological opinion as arbitrary and capricious under the APA
because, they claimed, the agencies had failed to comply with various requirements
of NEPA and the ESA. The parties filed cross motions for summary judgment on
all claims. The district court held a hearing on the motions on March 15, 2012.
On September 6, 2012, the district court denied Appellants’ motion for summary
judgment and granted summary judgment to all defendants, concluding that the
Navy and the NMFS complied fully with NEPA, the ESA, and the APA. Shortly
after the district court’s ruling, the Navy signed a contract to begin construction of
the USWTR. Appellants now appeal the district court’s grant of summary
judgment, narrowing their arguments on appeal to the following three claims: 1)
the Navy violated NEPA and its implementing regulations by signing a contract for
construction of the USWTR prior to signing an ROD to operate the USWTR; 2)
the NMFS violated the ESA and the APA by issuing a biological opinion that
failed to “meaningfully” analyze impacts from operations on the USWTR; and 3)
the NMFS violated the ESA and the APA by failing to include in its biological
opinion a required incidental take statement predicting, assessing the impact of,
and taking measures to minimize the impact of incidental take of threatened and
16
Case: 12-15680 Date Filed: 10/01/2013 Page: 17 of 41
endangered species that is expected to occur in connection with operation of the
USWTR.
IV. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo and use
the same standard of review utilized by the district court. Miccosukee Tribe of
Indians of Florida v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). The
Navy’s ROD and the NMFS’s biological opinion are final agency actions subject
to judicial review under the APA, 5 U.S.C. §§ 701-706. See id. Specifically, the
standard under the APA is whether the agency’s action is “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 “exceedingly deferential.”
Fund for Animals, Inc., 85 F.3d at 541. “We are not authorized to substitute our
judgment for the agency’s as long as its conclusions are rational.” Miccosukee
Tribe of Indians, 566 F.3d at 1264 (citing Sierra Club v. Van Antwerp, 526 F.3d
1353, 1360 (11th Cir. 2008)). “The court’s role is to ensure that the agency came
to a rational conclusion, ‘not to conduct its own investigation and substitute its
own judgment for the administrative agency’s decision.’” Van Antwerp, 526 F.3d
at 1360 (quoting Pres. Endangered Areas of Cobb’s History, Inc. (“PEACH”) v.
U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir. 1996)). However, an
agency action may be found arbitrary and capricious:
17
Case: 12-15680 Date Filed: 10/01/2013 Page: 18 of 41
where the agency has 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.
Miccosukee Tribe of Indians, 566 F.3d at 1264 (quoting Alabama–Tombigbee
Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th Cir. 2007)).
V. DISCUSSION
A. Appellants’ NEPA Claim
Appellants confine their NEPA claim on appeal to the argument that the
Navy violated 40 C.F.R. § 1506.1(a) by signing a contract for construction of the
USWTR before it has issued an ROD for operations on the USWTR. Appellants
make this argument even though the Navy had issued an ROD for its construction
of the USWTR. Section 1506.1(a) forbids an agency from taking certain actions
before the issuance of its ROD, as follows:
(a) Until an agency issues a record of decision as
provided in § 1505.2 (except as provided in paragraph (c)
of this section), no action concerning the proposal shall
be taken which would:
(1) Have an adverse environmental impact; or
(2) Limit the choice of reasonable alternatives.
40 C.F.R. § 1506.1(a).
18
Case: 12-15680 Date Filed: 10/01/2013 Page: 19 of 41
Under the plain language of Section 1506.1(a), Appellants’ argument fails.
The action taken by the Navy that Appellants challenge as violative of Section
1506.1(a)—signing a contract for construction of the USWTR— did not occur
before the Navy signed an ROD concerning that construction, but after, and
Section 1506.1(a) only precludes agency action taken before the agency signs an
ROD. Although Appellants challenged the Navy’s EIS before the district court,4
they no longer dispute that the EIS fully analyzed the environmental impacts of
both installation and future operations on the USWTR, including ruling out
alternative sites for the range. Having issued an ROD deciding to construct the
USWTR, the decision to proceed with the very construction authorized by the
ROD could not have violated Section 1506.1(a), which only prohibits actions taken
before signing an ROD.
Yet, Appellants take issue with the fact that the ROD only authorized half of
the entire proposal for the range. Indeed, the ROD states that “[a]t this time the
Navy is implementing only a portion of the proposed action, a decision to move
forward with installation of the USWTR.” DON185885. The ROD further states
4
Before the district court, Appellants claimed that the Navy’s EIS failed to take a hard
look at the environmental impacts of constructing and operating the USWTR and that the
analysis was impermissibly segmented in violation of 40 C.F.R. § 1508.25(a)(1) because it only
considered the installation phase of the USWTR and not the operations phase. Section
1508.25(a)(1) addresses the scope of an EIS and requires connected actions, which are defined as
those that are “closely related,” to be discussed in the same EIS. 40 C.F.R. § 1508.25(a)(1). The
district court held that the Navy’s EIS was not impermissibly segmented, and Appellants do not
renew their segmentation argument on appeal.
19
Case: 12-15680 Date Filed: 10/01/2013 Page: 20 of 41
that any “decision to implement training” at the USWTR “will be based on the
updated analysis of environmental effects in a future [EIS] in conjunction with
appropriate coordination and consultation with the [NMFS] and after compliance
with applicable laws and executive orders including the [MMPA], the [ESA], the
[NEPA] and the Coastal Zone Management Act (CZMA) as they relate to the
operation of the proposed USWTR.” Id. The Navy has stated that it will prepare a
second ROD that specifically authorizes operations based on updated
environmental data, prior to operations ever commencing on the USWTR.
In Appellants’ view, the Navy prejudiced its future decision to approve
operations on the USWTR by proceeding with the $127 million construction of the
USWTR prior to an ROD approving operations. Once construction starts,
Appellants argue, the Navy’s future NEPA process will become nothing more than
an attempt to “rationalize or justify decisions already made.” Andrus v. Sierra
Club, 442 U.S. 347, 351 n.3, 99 S. Ct. 2335, 2338 n.3, 60 L.Ed.2d 943 (1979). But
Appellants have presented no authority mandating that an agency must authorize
all stages of a project in one ROD. Indeed, the EIS is “[a]t the heart of NEPA,”
Dept. of Transp. v. Pub. Cit., 541 U.S. 752, 757, 124 S. Ct. 2204, 2209, 159
L.Ed.2d 60 (2004), rather than the ROD, which is merely a means of documenting
the agency’s final decision on a proposed action that required an EIS. While a
fundamental NEPA principle is that connected actions be analyzed together in one
20
Case: 12-15680 Date Filed: 10/01/2013 Page: 21 of 41
EIS, see 40 C.F.R. § 1508.25(a), Appellants have conceded that the Navy’s EIS
analyzed both phases of the USWTR, and nothing in NEPA reiterates this “anti-
segmentation” principle with regard to an ROD. 5
Nor are the cases cited by Appellants persuasive, as each case involved an
agency’s commitment of resources to a project prior to any environmental analysis
being conducted. Andrus, cited by Appellants, merely explains NEPA’s policy
that federal agencies must “commence preparation of an environmental impact
statement as close as possible to the time the agency is developing or is presented
with a proposal” so that the EIS will “serve practically as an important contribution
to the decisionmaking process . . . .” 442 U.S. at 351-52 n.3, 99 S. Ct. at 2338 n.3.
Similarly in Metcalf v. Daley, the Ninth Circuit Court of Appeals held that because
a federal agency had committed to support an Indian tribe’s whaling plan long
before even beginning to prepare the NEPA documents to support that decision,
including the environmental assessment and EIS, the agency violated 40 C.F.R. §
5Appellants point out that NEPA refers to the ROD in the singular form. See 40 C.F.R.
§§ 1506.1 (referencing “a record of decision”), 1505.2 (“each agency shall prepare a concise
public record of decision” that must “[s]tate what the decision was”). We decline to interpret
these discrete references as foreclosing an agency from signing an ROD authorizing only part of
an action. There is no doubt that an ROD is required to finalize an EIS under NEPA. See id. §
1502.2(f). The ROD did that here, and the Navy has stated that a second ROD will be generated,
one that finalizes an updated environmental study pertaining to operations, closer in time to
operations commencing. The Navy analyzed both phases of the USWTR in its EIS, and that was
all that was required of it under NEPA. See id. § 1508.25(a). See also Strycker’s Bay
Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S. Ct. 497, 499-500, 62
L.Ed.2d 433 (1980) (per curiam) (noting that the agency considered the environmental effects of
its decision and that “NEPA requires no more”).
21
Case: 12-15680 Date Filed: 10/01/2013 Page: 22 of 41
1501.2, which requires a federal agency to integrate the NEPA planning process
with other planning at the earliest possible time. 214 F.3d 1135, 1142-45 (9th Cir.
2000). The court stated that at the point that the agency signed the contract with
the tribe it made an “irreversible and irretrievable commitment of resources,” such
that any environmental assessment prepared by the agency subsequently under
those circumstances would be “subject to at least a subtle pro-whaling bias.” Id. at
1143-44. See also Save the Yaak Comm. v. Block, 840 F.2d 714, 718-19 (9th Cir.
1988) (finding that the agency violated 40 C.F.R. § 1501.2’s timeliness
requirement because construction contracts were awarded prior to the agency’s
preparation of an environmental assessment); Nat’l Audubon Soc’y v. Dep’t of the
Navy, 422 F.3d 174, 206 (4th Cir. 2005) (allowing the Navy to conduct certain
preliminary activities while it completed its EIS because none of the activities
“include cutting even a single blade of grass in preparation for construction” of the
project). The difference is clear here: the Navy did not sign the contract for
construction of the USWTR until after it issued its EIS and ROD and after those
documents had been upheld by the district court.
Although not in their briefs, counsel for Appellants named at oral argument
Sensible Traffic Alternatives & Resources, Ltd. v. Federal Transit Administration
of U.S. Department of Transportation, 307 F. Supp. 2d 1149 (D. Haw. 2004), as
the only known case directly addressing the legal question of whether, when an
22
Case: 12-15680 Date Filed: 10/01/2013 Page: 23 of 41
EIS is issued and approved for an entire multiphase project and that EIS admittedly
examines all of the necessary environmental concerns, an agency can issue an
ROD that accepts only the first phase of the project, leaving acceptance of the
remainder of the EIS for a later time. Id. at 1166. The district court in that case
answered the question in the affirmative, stating that “[g]iven the purposes of
NEPA, there is no categorical bar to the procedure followed here and it was
reasonable for the agency to employ it.” Id. However, the district court then stated
that it must examine whether the construction of the project limits the choice of
reasonable alternatives as to the remainder of the project for which no ROD had
yet issued. Id. (citing 40 C.F.R. § 1506.1). In this case, that question has already
been answered. The Navy has already fully analyzed reasonable alternative sites
for the range in its EIS, an analysis upheld by the district court and no longer
challenged on appeal. Mere construction on the already decided-upon site cannot
somehow compromise a future analysis of unidentified additional reasonable
alternative locations for the range. Having decided, in its EIS and subsequent
ROD, where to locate the range after considering the impacts of both installation
and operation in the EIS, the Navy has no obligation to revisit or reanalyze its
decision in its EIS as to the range’s location. Further, nothing in the record
indicates that the Navy will not consider and implement other kinds of alternatives
to minimize negative environmental impacts from operations on the range, should
23
Case: 12-15680 Date Filed: 10/01/2013 Page: 24 of 41
operations be found in the already-planned future consultation to pose a threat to
listed species. See Brief of Appellees at 50 (“[I]f jeopardy is determined to be
likely [during the future consultation on operations], having installed the Range
will not limit the reasonable and prudent measures available for structuring
operations to avoid jeopardy, including abandonment of the Range.”).
In sum, Appellants have not pointed to any provision in NEPA requiring an
agency to authorize all phases of a proposed action evaluated in an EIS at the time
it issues an ROD. We thus find that it is not an independent violation of NEPA,
warranting reversal of the district court’s judgment, for the Navy to enter into a
construction contract after it signs an ROD authorizing construction and after
having its NEPA analysis upheld by the district court. The district court’s
judgment that the Navy complied with NEPA is due to be affirmed.
B. Appellants’ ESA Claims
i. “Meaningful” Analysis of the Entire Action
Appellants also contend that the NMFS’s biological opinion is arbitrary and
capricious in violation of the ESA because it did not “meaningfully” analyze the
“entire action” proposed by the Navy—including both the installation and the
operation phases of the USWTR. In support, Appellants first point to statements in
the Navy’s ROD and the NMFS’s cover page to its biological opinion that they
claim indicate that the biological opinion only considered installation. See
24
Case: 12-15680 Date Filed: 10/01/2013 Page: 25 of 41
DON185919 (“[T]he Navy’s [S]ection 7 consultation under the ESA is only with
regard to the installation of the [R]ange. Navy will initiate another formal
consultation under Section 7 of the ESA to address A[nti] S[ubmarine] W[arfare]
training on the USWTR in the 2014/2015 timeframe.”); AR001731 (stating that
“[e]nclosed is the National Marine Fisheries Service’s (NMFS) Biological Opinion
on the effects of the U.S. Navy’s proposal to install an Undersea Warfare Training
Range . . .” and noting that “[t]his Opinion concludes that the U.S. Navy’s proposal
to install an Undersea Warfare Training Range (USWTR) is not likely to adversely
affect endangered or threatened species under NMFS[’s] jurisdiction or critical
habitat that has been designated for those species . . .”). However, Appellants
ignore the very next sentence of the cover page which states, “We have concluded
that anti-submarine warfare training activities the U.S. Navy plans to conduct on
[the] USWTR are likely to adversely affect endangered whales, but [are] not likely
to jeopardize the continued existence of those whales.” AR001731 (emphasis
added). Appellants also overlook that the Navy’s ROD explains that the “NMFS
provided Navy with a Biological Opinion (BO) on July 28, 2009, in which it
analyzed the effects of both installation and use of the USWTR” and characterizes
the biological opinion as concluding that “activities associated with the [anti-
submarine] training on [the USWTR] are likely to adversely affect but are not
25
Case: 12-15680 Date Filed: 10/01/2013 Page: 26 of 41
likely to jeopardize the continued existence of endangered and threatened species.”
DON185885-185886 (emphasis added).
Irrespective of these statements as to whether the biological opinion
analyzed only the installation phase or both the installation phase and operation
phase of the USWTR, the content of the over 100-page biological opinion itself
confirms that it analyzed both installation and operation. The biological opinion
defines the proposed action for purposes of analysis to include both USWTR
installation and operations. It then discloses the nature of the anti-submarine
warfare training to occur on the USWTR, and it specifies the “operating
procedures” to be used in anti-submarine warfare activities to protect endangered
species. The biological opinion also specifically identifies “stressors . . .
potentially associated with the Operations Phase” of the USWTR, such as ship
strikes, the effects of sonar, and the risk of entanglement from small parachutes,
analyzes the likelihood that listed species will be exposed to such stressors
associated with operations, and analyzes the likely response of listed species that
are exposed to such stressors.
Despite these details pertaining to operations on the USWTR, Appellants
still contend that while the biological opinion purports to consider operations, its
analysis with regard to operations was not “meaningful” because it does not reflect
the “unique nature” of the USWTR. Appellants say that this failure is apparent
26
Case: 12-15680 Date Filed: 10/01/2013 Page: 27 of 41
from portions of the biological opinion that appear to be cut-and-pasted from the
biological opinions of the Navy’s other anti-submarine warfare training projects
along the eastern seaboard, including the biological opinions from the much-larger
Jacksonville Operating Area. The NMFS admits that portions of the biological
opinion contain summaries of the “results of the analyses” from existing biological
opinions on the Navy’s anti-submarine warfare training on the eastern seaboard
and in the Jacksonville Operating Area, where the USWTR will be located. The
Navy’s stated reason for this overlap is that ongoing anti-submarine warfare
training operations in the Jacksonville Operating Area are already covered by the
required NEPA and ESA documentation and permits, and operations at the
USWTR are not expected to significantly change training already occurring in the
area.
We agree with the NMFS and the Navy that the summary of impacts of the
same level of training from other biological opinions does not undermine the
analysis in the biological opinion for the USWTR because the biological opinion
also clearly considered the specific types of training proposed for the USWTR.
For example, in the biological opinion’s actual conclusions, it discusses impacts to
listed species from operations on the USWTR itself. The section of the biological
opinion entitled “Integration and Synthesis of Effects” contains ultimate
conclusions of the analysis as to each listed species. For right whales, it notes that
27
Case: 12-15680 Date Filed: 10/01/2013 Page: 28 of 41
the Navy has likely overestimated the number that will be exposed to sonar
because of the “relatively short duration” of the planned exercises on the USWTR,
“the small number of surface and submarine vessels” associated with the training
and the “very small probabilities [of right whales] occurring in any particular 500
square mile area.” AR001925. For each affected species of sea turtle, the
biological opinion notes the “relatively small size of the proposed [USWTR]
relative to the density of sea turtles that might occur on the training range” in
determining the impact from operations. AR001926. In addition, it is clear from
the biological opinion that the NMFS’s analysis was also informed by the Navy’s
final EIS and biological assessment, two documents not challenged by Appellants
in this appeal. These documents are part of the administrative record for the
biological opinion, and each considered the USWTR-specific environmental
impacts compared with the other four locations that the Navy proposed for the
USWTR. For example, the biological opinion discloses that “NMFS relied solely
on the results of models the U.S. Navy conducted for their NEPA compliance
documents for the [USWTR]” when evaluating the exposure of marine mammals
and sea turtles to stressors associated with operating the USWTR. AR001753.
Those Navy models include modeling of acoustic effects at each of the four
alternative locations for the USWTR studied, and Appendix D to the EIS contains
detailed model results for each training scenario at each alternative site. The
28
Case: 12-15680 Date Filed: 10/01/2013 Page: 29 of 41
model results were different for each location studied, demonstrating that the Navy
considered impacts on the USWTR site selected. The NMFS relied on the Navy’s
data in the biological opinion, as it discusses the data specifically in the
“Integration and Synthesis of Effects” section. See AR001923-001928. The
NMFS therefore adequately considered impacts of operations on the USWTR as
opposed to some broader area. 6
As further evidence that the biological opinion did not consider the unique
characteristics of the USWTR as compared with the larger Jacksonville Operating
Area, Appellants point to a statement made in the Navy’s recent application for an
MMPA take authorization for marine mammals connected with other Navy
training on the Atlantic coast, as follows: “[S]onar activities could be concentrated
on the [USWTR] after it is constructed. Potential acoustic impacts from major
6
Contrary to Appellants’ assertions, it makes no difference to our review that some of the
data supporting the NMFS’s analysis in the biological opinion appears in the Navy’s final EIS
and biological assessment rather than in the biological opinion itself. The NMFS was a
cooperating agency in preparing the Navy’s EIS, and the ESA regulations envision agency
coordination on ESA and NEPA compliance. See 50 C.F.R. § 402.06 (providing that
consultation, conference, and biological assessment procedures under Section 7 of the ESA may
be consolidated with interagency cooperation procedures required by other statutes, such as
NEPA). Moreover, our judicial review under the APA is based on the “whole record.” 5 U.S.C.
§ 706. There is “no requirement that every detail of the agency’s decision be stated expressly in
the [biological opinion]” as long as the “rationale is present in the administrative record
underlying the document.” In re Operation of Mo. River Sys. Litig., 421 F.3d 618, 634 (8th Cir.
2005) (citations omitted). See also Miller v. Lehman, 801 F.2d 492, 497 (D.C. Cir. 1986) (“[W]e
are required to uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned. In addition, if the necessary articulation of basis for administrative action can be
discerned by reference to clearly relevant sources other than a formal statement of reasons, we
will make the reference.”) (citations and quotation marks omitted).
29
Case: 12-15680 Date Filed: 10/01/2013 Page: 30 of 41
training exercises, especially behavioral impacts, could be more pronounced given
the duration and scale of the events.” See Navy Request for Regulations and
Letters of Authorization for the Incidental Taking of Marine Mammals Resulting
from U.S. Navy Training and Testing Activities in the Atlantic Fleet Training and
Testing Study Area, available at http://nmfs.noaa.gov/pr/pdfs/permits
/aftt_navy_loa_application2012.pdf. This communication by the Navy to the
NMFS was made after the briefing before the district court in this case and over
three years after the EIS, biological opinion, and ROD were issued. The Court will
not consider it because it is not part of the administrative record and is thus not
grounds for setting aside NMFS’s “no jeopardy” opinion, which had to be based on
the best information available at the time regarding the likely effects of USWTR
operations. See 16 U.S.C. § 1536(a)(2) (purpose of consultation is to insure that
proposed action is “not likely” to result in jeopardy and biological opinion must be
based on the “best scientific and commercial data available”). See also Pres.
Endangered Areas of Cobb’s History, Inc., 87 F.3d at 1246 (“The focal point for
judicial review of an administrative agency’s action should be the administrative
record.”) (citing Camp v. Pitts, 411 U.S. 138, 142, 93 S. Ct. 1241, 1244, 36
L.Ed.2d 106 (1973)); Sierra Club v. Bosworth, 510 F.3d 1016, 1026 (9th Cir.
2007) (“Post-decision information may not be advanced as a new rationalization
either for sustaining or attacking an agency’s decision.”) (internal alterations,
30
Case: 12-15680 Date Filed: 10/01/2013 Page: 31 of 41
quotation marks, and citation omitted). Even if the Court were to consider this
evidence, and to the extent that information does become available indicating that
the USWTR location has unique characteristics not already considered, or that the
Navy’s decision to further “concentrate” training on the range results in some
changes to impacts on listed species, those impacts will be considered in the
already-planned future consultations before there will actually be any operations
resulting in impacts. See 50 C.F.R. § 402.16(c) (providing for reinitiation of
consultation if “the identified action is subsequently modified in a manner that
causes an effect to the listed species or critical habitat that was not considered in
the biological opinion”).
Appellants also rely on a series of decisions from the Ninth Circuit Court of
Appeals holding that biological opinions must be “coextensive in scope” with the
agency action. See, e.g., Conner v. Buford, 848 F.2d 1441, 1457-58 (9th Cir.
1988) (holding that “biological opinions must be coextensive with agency action”
and rejecting the argument that a federal agency could meet its ESA obligations by
addressing portions of the agency action incrementally as each portion went into
effect); Greenpeace v. Nat’l Marine Fisheries Serv., 80 F. Supp. 2d 1137, 1150
(W.D. Wash. 2000) (“A biological opinion which is not coextensive in scope with
the identified agency action necessarily fails to consider important aspects of the
problem and is, therefore, arbitrary and capricious.”); Nat’l Wildlife Fed’n v. Nat’l
31
Case: 12-15680 Date Filed: 10/01/2013 Page: 32 of 41
Marine Fisheries Serv., 524 F.3d 917, 930 (9th Cir. 2008) (finding that allowing
segmentation under the ESA would mean that “a listed species could be gradually
destroyed, so long as each step on the path to destruction is sufficiently modest”).
As an initial matter, the rule that biological opinions must be coextensive in scope
with the “entire action” or else violate the ESA is nowhere to be found in the
language of the ESA and we decline to adopt that rule here. In any event, the cases
relied on by Appellants addressed situations where federal agencies
compartmentalized the analysis of actions and thereby avoided discussing the
entire scope of the action. In contrast here, the NMFS’s biological opinion
analyzed both installation and operations and is therefore “coextensive in scope”
with the Navy’s entire proposed action. So even if this Court were to adopt the
Ninth Circuit’s test, the biological opinion in this case would satisfy it.
In sum, the Court is convinced that the biological opinion and supporting
administrative record, including the biological assessment and EIS prepared by the
Navy, sufficiently considered, not only installation, but also the operations that are
expected to occur on the USWTR, in reaching the ultimate conclusion that no take
of listed species is likely from installation and that “activities associated with the
Operations Phase of the [USWTR] are likely to adversely affect but are not likely
to jeopardize the continued existence of” listed species. See AR001929. Section
7(a)(2) of the ESA required nothing more of the NMFS.
32
Case: 12-15680 Date Filed: 10/01/2013 Page: 33 of 41
Indeed, while Appellants assert that the Navy’s and the NMFS’s decision to
structure their EPA consultation the way that they did, i.e., deciding to study
operational impacts again in a new biological opinion before operations are
authorized, undermines the Navy’s initial consultation with the NMFS or the
NMFS’s biological opinion, Section 7(a)(2) of the ESA does not require that
consultation under the act take place in any particular manner. Section 7(a)(2)
simply directs the federal agency to “insure” in consultation with the NMFS or the
FWS that its actions are not likely to jeopardize the existence of listed species or
their critical habitat. See 16 U.S.C. § 1536(a)(2). It is for the agencies to
determine how best to structure consultation to fulfill Section 7(a)(2)’s mandate.
The United States Supreme Court has recognized on numerous occasions that “the
formulation of procedures was basically to be left within the discretion of the
agencies to which Congress has confided the responsibility for substantive
judgments.” See, e.g., Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,
Inc. 435 U.S. 519, 524, 98 S. Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). The Court
has described this principle as “an outgrowth of the congressional determination
that administrative agencies and administrators will be familiar with the industries
which they regulate and will be in a better position than federal courts or Congress
itself to design procedural rules adapted to the peculiarities of the industry and the
tasks of the agency involved.” FCC v. Schreiber, 381 U.S. 279, 290, 85 S. Ct.
33Case: 12-15680 Date Filed: 10/01/2013 Page: 34 of 41
1459, 1467, 14 L.Ed.2d 383 (1965). Utilizing their administrative discretion, the
Navy and the NMFS decided that since expected operations on the USWTR will
have essentially the same impact as ongoing submarine warfare training operations
that have already been analyzed in previous consultations and biological opinions,
and that since expected operations on the USWTR are not likely to jeopardize
listed species, they would analyze the known impacts of expected operations now,
but in the future consider those impacts again in a new consultation before
operational activities commence. That decision is due deference by this Court
because there is no statutory basis for ordering that the consultation be carried out
in some other manner. If anything, it appears that the Navy’s future consultation
with the NMFS regarding operations on the USWTR will ensure that any adverse
impacts to listed species will be considered closer in time to when operations will
actually commence. See DON185885-185886 (“Delaying the application for
incidental take authorizations will also allow for incorporation of the best available
science, as required by the MMPA and ESA, at that time in the analysis of
potential environmental effects.”). After all, the ESA’s requirement that the
federal agency avoid jeopardy remains in force throughout the life of a project, and
the project must be abandoned or reasonable and prudent measures to avoid
jeopardy must be adopted, if later stages of a project result in jeopardy to listed
species. See 50 C.F.R. §§ 402.14(i)(4), 402.16(a). As long as the initial stage of
34
Case: 12-15680 Date Filed: 10/01/2013 Page: 35 of 41
the project does not foreclose the adoption of these reasonable and prudent
measures, see 16 U.S.C. § 1536(d), and as long as the conclusions of the biological
opinion are not arbitrary, a staged structuring of consultation may comply fully
with Section 7’s mandate. Here, the Navy has expressed that if jeopardy from
operations is determined to be likely during the future consultation; having
installed the range will not limit the reasonable and prudent measures available for
structuring operations to avoid jeopardy, including abandonment of the range.
The record indicates that the NMFS analyzed the entire action, including
both the installation and operation phases of the USWTR, in its biological opinion,
and the Navy’s and the NMFS’s decision to analyze impacts from operations again
in a future consultation does not undermine their existing consultation or the
resulting biological opinion. Therefore, the Court cannot say that the Navy and the
NMFS acted arbitrarily and capriciously in this regard and summary judgment with
regard to this issue is due to be affirmed.
ii. Lack of an Incidental Take Statement for Operations
Appellants also claim that the biological opinion is arbitrary and capricious
for an entirely independent reason: it fails to include an incidental take statement
for operations on the USWTR. As an initial matter, NMFS’s biological opinion
concluded that no take of listed species is likely to occur from installation of the
USWTR. Thus, no incidental take statement was required regarding the
35
Case: 12-15680 Date Filed: 10/01/2013 Page: 36 of 41
construction phase of the project. See Ariz. Cattle Growers Ass’n, 273 F.3d at
1240. Appellants do not challenge the biological opinion on this point. However,
the biological opinion also concluded that take of listed species may occur in
connection with operations on the USWTR, but that no jeopardy to listed species
would occur pursuant to operations. Pursuant to the ESA, then, the NMFS is
required to issue an incidental take statement that relates to operations on the
USWTR, lest the Navy incur take liability pursuant to Section 7 of the ESA. See
50 C.F.R. §§ 402.14(g)(7) (providing that during formal consultation, the expert
agency must “[f]ormulate a statement concerning incidental take, if such take may
occur”), 402.14(i)(1) (requiring that an incidental take statement specifying the
amount or extent of take, reasonable and prudent measures to minimize such
impact, required terms and conditions, and measures necessary to comply with the
MMPA be provided “with the biological opinion”).
However, the NMFS provided a valid reason for its failure to include an
incidental take statement for operations in the biological opinion. Because an
MMPA take authorization for listed marine mammal species, such as right whales
in this case, must precede the NMFS’s issuance of an incidental take statement, see
16 U.S.C. § 1536(b)(4)(C), and because MMPA take authorizations are only
effective for five year periods, see 16 U.S.C. § 1371(a)(5)(A), the NMFS and the
Navy rationally concluded that any MMPA take authorization pertaining to
36
Case: 12-15680 Date Filed: 10/01/2013 Page: 37 of 41
operations on the USWTR that the NMFS obtained at the time the biological
opinion was issued in 2009 would expire long before the USWTR’s operational
date expected to be sometime between 2018 and 2023. To avoid redundant
authorizations and wasting resources, the NMFS and the Navy chose to postpone
the process of obtaining the MMPA take authorization and the resulting incidental
take statement until the Navy reinitiates formal consultation with the NMFS on
operations prior to authorizing training.
In response to the NMFS’s reasoning, Appellants do not dispute that an
incidental take statement, at least for marine mammals, must be predicated on an
MMPA authorization of such taking pursuant to 16 U.S.C. § 1371(a)(5). See 16
U.S.C. § 1536(b)(4)(C). Instead, they restate their argument that in order for the
biological opinion to be complete it had to “meaningfully” analyze the effects of
operations on the USWTR as well as installation. See Reply Brief of Appellants p.
25 (“But if Defendants had performed a comprehensive analysis of the entire
action, rather than segmenting their decision-making, such permit [e.g., the MMPA
authorization] could have—and indeed should have—already issued.”). Indeed,
the dispute between the parties is not whether an incidental take statement must
issue, but when. Appellants say that the Navy could and should have waited to
authorize both construction and operations until after it had obtained an MMPA
take authorization, just as it did with the construction and operation of a training
37
Case: 12-15680 Date Filed: 10/01/2013 Page: 38 of 41
range off the coast of Southern California. See MMPA Take Authorization, 74
Fed. Reg. 3882 (Jan. 21, 2009).
Irrespective of whether the West Coast range referenced by Appellants also
complies with the ESA, we find that it was not arbitrary or capricious for the
NMFS to postpone the issuance of an incidental take statement for right whales in
this situation. As an initial matter, no incidental take statement is required now, as
the USWTR is still in the installation phase where no take of any listed species is
expected. See Ariz. Cattle Growers Ass’n, 273 F.3d at 1240. The biological
opinion can be upheld on that ground alone. Moreover, an MMPA take
authorization and corresponding incidental take statement, which will pertain
solely to operations on the range, will serve no purpose while the USWTR is still
in the installation phase and no operations are actually occurring. These permits
will certainly not serve their statutory purpose of creating a safe harbor from take
liability, and obtaining them now would be a meaningless exercise. In any event,
the Navy has repeatedly committed to obtaining the required MMPA take
authorization and incidental take statement during a future consultation with the
NMFS, prior to operations on the range commencing.
We also reject Appellants’ argument that the current lack of an incidental
take statement cannot be remedied in the course of a subsequent formal
consultation because, they claim, without an incidental take statement, the
38
Case: 12-15680 Date Filed: 10/01/2013 Page: 39 of 41
biological opinion omits the important “trigger” of the amount of take of listed
species necessary to cause the Navy to reinitiate consultation with the NMFS. See
50 C.F.R. §§ 402.14(i)(4) (“If during the course of the action the amount or extent
of incidental taking . . . is exceeded, the Federal agency must reinitiate consultation
immediately.”), 402.16(a) (providing for same). See also Miccosukee Tribe of
Indians of Fla., 566 F.3d at 1271-72, 1275 (“An incidental take statement may
lawfully authorize harm to an endangered species as long as the statement sets a
‘trigger’ for further consultation at the point where the allowed incidental take is
exceeded, a point at which there is a risk of jeopardizing the species.”) (citing 50
C.F.R. § 402.14(i)(4)). Appellants’ concern is unwarranted because the current
biological opinion provides that its lack of an incidental take statement for
operations means that the Navy must reinitiate consultation with the NMFS if even
a single take of a listed species occurs. See Biological Opinion, 001931 (“because
this Biological Opinion did not exempt any ‘take’ of endangered or threatened
species, the U.S. Navy would be required to reinitiate formal consultation if one or
more individuals of an endangered or threatened species is ‘taken’”). Thus the
current lack of an incidental take statement means that the “trigger” for reinitiating
consultation is set to its strictest setting, not that there is no trigger.
Finally, we must address Appellants’ argument that certain listed species of
sea turtles are not marine mammals and are thus not covered by the MMPA, so the
39
Case: 12-15680 Date Filed: 10/01/2013 Page: 40 of 41
NMFS has no statutorily-based argument that the biological opinion did not have
to include an incidental take statement for sea turtles during operations. The
NMFS responds that it rationally concluded that since the Navy will have to
engage in further consultation with the NMFS to obtain the MMPA take
authorization for marine mammals, an incidental take statement for all species,
including sea turtles as well as right whales, would issue at that time in the new
biological opinion pertaining to operations. The biological opinion thus provides,
“If and when such [MMPA] regulations or authorizations are issued, the [NMFS]
will prepare a new biological opinion to include an incidental take statement for
the endangered and threatened species that have been considered in the biological
Opinion, as appropriate.” AR001930 (emphasis added). The Navy’s rationale is
supported by the record and is due deference by this Court. Thus, we do not find
that it was arbitrary or capricious for the NMFS to postpone the issuance of an
incidental take statement for sea turtles in this situation.
To be clear, this Court is not condoning the lack of an incidental take
statement in a biological opinion, if one is warranted. The incidental take
statement serves important purposes of measuring conservation and monitoring
take to ensure both that the agency really does ensure against jeopardy and that any
take that occurs in minimized. See 50 C.F.R. § 402.14(i). But we read the ESA as
only requiring the incidental take statement to be included in the biological opinion
40
Case: 12-15680 Date Filed: 10/01/2013 Page: 41 of 41
if take of listed species is likely in the first place. Here, no take is likely because
no take is expected from installation and because the Navy will not operate the
range without first engaging in further environmental analysis with the NMFS. In
other words, there is no possibility that operations will occur on the USWTR that
may take a listed species that will not be covered by a new biological opinion.
That new biological opinion will include any necessary incidental take statements
and MMPA take authorizations. Under the facts of this case, the NMFS’s decision
to postpone the issuance of the incidental take statement for all listed species until
closer in time to when the operations that warrant it actually occur was not
inconsistent with the ESA’s statutory scheme or otherwise arbitrary or capricious.
The judgment of the district court is due to be affirmed on Appellants’ ESA claims.
VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary
judgment.
AFFIRMED.
41