Oceana, Inc. v. Gutierrez , 75 F. Supp. 3d 469 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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OCEANA, INC., )
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Plaintiff, )
)
v. )
)
PENNY PRITZKER, )
1
United States Secretary of Commerce, et al., ) Civil Action No. 08-1881 (PLF)
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Defendants, )
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and )
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FISHERIES SURVIVAL FUND )
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Defendant-Intervenor. )
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_________________________________________ )
OPINION
This case involves a challenge to a Biological Opinion issued by the National
Marine Fisheries Service (“NMFS”), in which NMFS 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. This population segment is listed as
threatened under the Endangered Species Act (“ESA”). Plaintiff Oceana, Inc. (“Oceana”)
maintains that the agency’s no-jeopardy determination was arbitrary and capricious, and asks this
Court to vacate the Biological Opinion. Oceana argues that NMFS reached its no-jeopardy
determination by employing an interpretation of a key regulation that contravenes both the
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court
substitutes as defendant the current Secretary of Commerce, Penny Pritzker, for former Acting
Secretary Rebecca M. Blank.
regulatory text as well as the language and spirit of the underlying statute, the ESA. In addition,
Oceana contends that NMFS neglected in its analysis to take proper account of various factors
that harm loggerheads, instead focusing solely on the isolated effects of the Scallop Fishery.
Oceana specifically accuses NMFS of ignoring the effects of climate change, an issue which
Oceana had raised in comments that it submitted to the agency. Oceana further argues that
NMFS has failed to establish adequate monitoring processes to ensure that limits on the number
of loggerheads that lawfully can be harmed are not exceeded by the Fishery’s operation.
This matter is before the Court on cross-motions for summary judgment filed by
Oceana and NMFS, as well as by defendant-intervenor Fisheries Survival Fund. The Court
heard oral argument on these motions on November 25, 2014. Upon consideration of the parties’
papers, their arguments presented in open court, the relevant legal authorities, and pertinent
portions of the administrative record, the Court will grant in part and deny in part each party’s
motion for summary judgment and it will remand this matter to the agency for a limited
purpose. 2
2
The papers considered in connection with the pending motions include:
Oceana’s first amended complaint (“Am. Compl.”) [Dkt. No. 80]; the federal defendants’ answer
[Dkt. No. 82]; Fisheries Survival Fund’s answer [Dkt. No. 81]; Oceana’s motion for summary
judgment (“Oceana MSJ”) [Dkt. No. 87]; the federal defendants’ combined opposition to
Oceana’s motion and cross-motion for summary judgment (“NMFS Opp. & MSJ”) [Dkt. Nos. 88
and 88-1 (memorandum in support)]; Fisheries Survival Fund’s cross-motion for summary
judgment (“FSF MSJ”) [Dkt. No. 91]; Oceana’s combined reply in support of its motion for
summary judgment and in opposition to NMFS and FSF motions for summary judgment
(“Oceana Reply”) [Dkt. No. 93]; the federal defendants’ reply in support of their cross-motion
for summary judgment (“NMFS Reply”) [Dkt. No. 96]; Fisheries Survival Fund’s reply in
support of its cross-motion for summary judgment (“FSF Reply”) [Dkt. No. 97]; Oceana’s
motion for oral argument [Dkt. No. 101]; the federal defendants’ notice of supplemental
authority [Dkt. No. 105]; Oceana’s motion to strike federal defendants’ notice of supplemental
authority [Dkt. No. 106]; the federal defendants’ opposition to Oceana’s motion to strike [Dkt.
No. 107]; and the joint appendix of administrative record (“AR”) and supplemental
administrative record (“SAR”) materials.
2
I. STATUTORY AND REGULATORY FRAMEWORK
The Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seq., has
been regarded as “the most comprehensive legislation for the preservation of endangered species
ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). The ESA
“seeks to protect species of animals against threats to their continuing existence caused by man.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 558 (1992). Under the ESA, species may be listed
either as “endangered” or as “threatened.” See 16 U.S.C. § 1533. An endangered species is “any
species which is in danger of extinction throughout all or a significant portion of its range.”
16 U.S.C. § 1532(6). A threatened species is “any species which is likely to become an
endangered species within the foreseeable future throughout all or a significant portion of its
range.” 16 U.S.C. § 1532(20). The ESA is jointly administered by two federal agencies: the
Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service. 50 C.F.R.
§ 402.01(b). FWS administers the statute with respect to species under the jurisdiction of the
Secretary of the Interior, while NMFS covers those species under the jurisdiction of the
Secretary of Commerce. Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644,
651 (2007).
“Section 7 of the ESA prescribes the steps that federal agencies must take to
ensure that their actions do not jeopardize endangered wildlife and flora.” Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. at 652. Under Section 7(a)(2), “[e]ach Federal
agency shall, in consultation with and with the assistance of [FWS or NMFS], insure that any
action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the
continued existence of any endangered species or threatened species or result in the destruction
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or adverse modification of habitat of such species.” 16 U.S.C. § 1536(a)(2). 3 Formal
consultation under Section 7 is only required, however, where a federal agency has concluded
after an initial review that its action “may affect listed species or critical habitat.” See 50 C.F.R.
§ 402.14(a). At the conclusion of the Section 7 consultation process, FWS or NMFS must issue
a Biological Opinion (“BiOp”), “setting forth [its] opinion, and a summary of the information on
which the opinion is based, detailing how the agency action affects the species or its critical
habitat.” 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h).
When the BiOp concludes that jeopardy is likely to result from the action under
review, the consulting agency “shall suggest those reasonable and prudent alternatives which [it]
believes would not violate [Section 7(a)(2)] and can be taken by [the action agency].” 16 U.S.C.
§ 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h)(3). “Following the issuance of a ‘jeopardy’
opinion, the agency must either terminate the action, implement the proposed alternative, or seek
an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C.
§ 1536(e).” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. at 652. Where the
consulting agency concludes that the agency action is not likely to jeopardize the continued
existence of the species but is nonetheless likely to result in some “incidental take,” the BiOp
must set forth an Incidental Take Statement (“ITS”), which specifies the permissible “amount or
extent” of this impact on the species. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). “Take” is
defined by the ESA as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
3
The agency whose action is at issue is known as the “action agency,” while either
FWS or NMFS serves as the “consulting agency.” See Nat’l Wildlife Federation v. NMFS, 524
F.3d 917, 924 (9th Cir. 2007). In this case, NMFS is both the “action agency” and the
“consulting agency.” NMFS’ Sustainable Fisheries Division of its Northeast Regional Office
administers the fisheries management program that governs the Atlantic Sea Scallop Fishery,
which makes it the action agency here. Am. Compl. ¶ 19. The Protected Resources Division of
the same Regional Office served as the consulting agency and authored the Biological Opinion.
Id. ¶ 18.
4
or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). Although
Section 9 of the ESA prohibits takes of listed species, 16 U.S.C. § 1538(a)(1), incidental takes
are permissible if they occur in accordance with the conditions set forth in an ITS. 50 C.F.R.
§ 402.14(i)(5). These conditions include “reasonable and prudent measures” that are considered
“necessary or appropriate to minimize” the extent of incidental taking. 50 C.F.R.
§ 402.14(i)(1)(ii). The action agency is “required” to reinitiate Section 7 consultation
“immediately” if the amount or extent of taking specified in the Incidental Take Statement is
exceeded. 50 C.F.R. §§ 402.14(i)(4), 402.16(a).
In formulating a Biological Opinion, FWS and NMFS must “use the best
scientific and commercial data available.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8).
A BiOp constitutes final agency action subject to judicial review under the Administrative
Procedure Act. See Bennett v. Spear, 520 U.S. 154, 177-78 (1997).
II. BACKGROUND
Loggerhead sea turtles, or Caretta caretta, are the most abundant species of sea
turtle living in United States waters. SAR 13142. They are long-lived, and do not reach
reproductive maturity until between ages 32 to 35. SAR 13157. Loggerheads feed on mollusks
and crustaceans, among other things. SAR 13146. NMFS explains that “[i]n U.S. Atlantic
waters, loggerheads commonly occur throughout the inner continental shelf from Florida to Cape
Cod, Massachusetts and in the Gulf of Mexico from Florida to Texas, although their presence
varies with the seasons due to changes in water temperature.” SAR 13145. In 1978, loggerheads
were listed under the ESA as threatened throughout their global range. See SAR 13142.
On September 22, 2011, NMFS and FWS issued a final rule that divided the
worldwide population of loggerheads into nine distinct population segments (“DPSs”), each of
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which was separately listed as either endangered or threatened under the ESA. SAR 13144
(citing 76 Fed. Reg. 58,868 (Sept. 22, 2011)). This case concerns just one of these distinct
population segments: the Northwest Atlantic DPS (“NWA DPS”), whose range extends north of
the equator, south of 60° N latitude, and west of 40° W longitude. See SAR 13144-45. The
NWA DPS — which, in the proposed version of the rule, originally had been listed as
endangered — ultimately was listed as a threatened species in the final rule. SAR 13143-44;
see also 76 Fed. Reg. 58,868, 58,917-24, 58,945-46.
The BiOp under challenge here assesses the impact of the Atlantic Sea Scallop
Fishery on the NWA DPS of loggerheads. This Fishery’s operation is governed by the Scallop
Fishery Management Plan (“Scallop FMP”), pursuant to the Magnuson-Stevens Fishery
Conservation and Management Act (“MSA”). See 16 U.S.C. §§ 1854(a), (b). The MSA governs
domestic marine fisheries through eight regional fishery management councils that prepare
FMPs. 16 U.S.C. §§ 1801(b)(1)(B), 1852(h). The Scallop FMP was implemented on May 15,
1982 to manage scallop harvesting. See SAR 13129. “Scallops are found in the Northwest
Atlantic Ocean from North Carolina to Newfoundland, along the continental shelf, typically on
sand and gravel bottoms.” SAR 13126. The Fishery uses dredge and bottom trawl vessels to
capture scallops, operating year-round in U.S. waters. SAR 13125-26. The Fishery primarily
uses “dredge gear, a set of steel frames, usually fifteen feet in length, which are towed along the
sea floor,” but also uses “[t]rawl gear,” comprised of “a cone-shaped net equipped with steel
weights, also towed along the seabed.” Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 213
(D.D.C.), order clarified, 389 F. Supp. 2d 4 (D.D.C. 2005).
NMFS first initiated formal consultation under Section 7 for the Fishery on
December 21, 2001. SAR 13121. This first consultation concluded with the issuance of the
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February 2003 BiOp. As with every BiOp since, NMFS concluded that the Fishery’s operation
would not jeopardize the continued existence of the loggerhead sea turtle. Id. NMFS reinitiated
formal consultation later that year, in November 2003, due to the availability of relevant new
information. Id. The reconsultation resulted in the February 2004 BiOp. Id. NMFS again
reinitiated consultation in September 2004 to consider yet more new information, resulting in a
new BiOP issued in December 2004. Id.Plaintiff Oceana, an international advocacy group focused on ocean conservation,
brought a lawsuit challenging the December 2004 BiOp, beginning more than ten years of
litigation against NMFS’ BiOps relating to the Atlantic Sea Scallop Fishery’s effect on the
loggerhead sea turtle. Oceana’s challenge was unsuccessful, and the December 2004 BiOp was
upheld in an opinion by Judge Huvelle. Oceana v. Evans, 384 F. Supp. 2d 203 (D.D.C.), order
clarified, 389 F. Supp. 2d 4 (D.D.C. 2005).
NMFS then reinitiated consultation and issued a new BiOp in September 2006,
which Oceana also challenged in court. See Oceana, Inc. v. Gutierrez, Civil Action No.
1:07-cv-00142-RBW (D.D.C. filed Jan. 19, 2007). After the litigation was underway, however,
in April 2007 NMFS yet again reinitiated consultation. See Notice re: Biological Opinion,
Oceana v. Gutierrez, No. 1:07-cv-00142-RBW (May 4, 2007) [Dkt. No. 14]. Because
consultation was continuing, the parties agreed to stay the litigation. Motion to Approve Joint
Stipulation & Order, Oceana v. Gutierrez, No. 1:07-cv-00142-RBW (June 29, 2007) [Dkt. No.
21]. The parties then voluntarily dismissed the case after entering into a Joint Stipulation,
whereby NMFS agreed to consider Oceana’s comments in developing the new BiOp. See Joint
Stipulation & Order, Oceana v. Gutierrez, No. 1:07-cv-00142-RBW (Jan. 23, 2008) [Dkt.
No. 25].
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In March 2008, NMFS issued a superseding BiOp (“the 2008 BiOp”) (later
amended on February 5, 2009). SAR 13120. Oceana then initiated the present action
challenging the 2008 BiOp, filing its complaint on October 31, 2008. See Dkt. No. 1. In
February 2012, NMFS reinitiated consultation once again, and the following month it filed a
motion seeking a stay of proceedings with respect to Oceana’s challenge to the 2008 BiOp.
See Dkt. No. 70. Over Oceana’s objection, the Court granted NMFS’ motion, see Dkt. No. 73,
and this action was stayed. NMFS issued the superseding BiOp on July 12, 2012, and the stay
was lifted on October 31 of that year. In the 2012 BiOp, NMFS estimated that the Scallop
Fishery would result in a total of 301 loggerhead takes annually. SAR 13245-48. Of those takes,
NMFS predicted that during the 2012 fishing year up to 195 would be fatal, and that in
subsequent years only up to 112 would be fatal due to the implementation of technological
improvements designed to protect loggerheads. SAR 13263. The 2012 BiOp concluded that
notwithstanding this loss of life, the continued operation of the Scallop Fishery would not be
likely to result in jeopardy to the NWA DPS of loggerheads. Following Oceana’s filing of an
Amended Complaint challenging this updated BiOp, the parties filed the three pending cross-
motions for summary judgment.
III. LEGAL STANDARD
“[W]hen an agency action is challenged[, t]he entire case on review is a question
of law, and only a question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d
1221, 1226 (D.C. Cir. 1993). While the general standard for summary judgment set forth in Rule
56 of the Federal Rules of Civil Procedure does not apply to a review of agency action, summary
judgment nonetheless “serves as the mechanism for deciding, as a matter of law, whether the
agency action is supported by the administrative record and otherwise consistent with the APA
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standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (citing
Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977)); accord Cottage Health Sys. v.
Sebelius, 631 F. Supp. 2d 80, 89-90 (D.D.C. 2009).
Under the APA, a reviewing court shall “hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The arbitrary and capricious
standard is deferential; it requires that agency action simply be ‘reasonable and reasonably
explained.’” Communities for a Better Environment v. EPA, 748 F.3d 333, 335 (D.C. Cir. 2014)
(quoting Nat’l Telephone Cooperative Ass’n v. FCC, 563 F.3d 536, 540 (D.C. Cir. 2009)); see
also Kennecott Greens Creek Min. Co. v. Mine Safety and 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.”). “An agency action will be upheld if the agency ‘articulate[d] a
satisfactory explanation for its action including a rational connection between the facts found and
the choice made.’” FirstEnergy Serv. Co. v. FERC, 758 F.3d 346, 352 (D.C. Cir. 2014) (quoting
Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983)) (internal quotation marks omitted). Furthermore, a court will “give an
extreme degree of deference to the agency when it is evaluating scientific data within its
technical expertise.” Communities for a Better Environment v. EPA, 748 F.3d at 336 (quoting
City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003)) (internal quotation marks
omitted); see also Troy Corp. v. Browner, 120 F.3d 277, 283 (D.C. Cir. 1997) (a federal court
should “review scientific judgments of the agency ‘not as the chemist, biologist, or statistician
that we are qualified neither by training nor experience to be, but as a reviewing court exercising
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our narrowly defined duty of holding agencies to certain minimal standards of rationality’”)
(quoting Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (en banc)).
“The Court’s review, however, must be ‘searching and careful.’” Colorado River
Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191, 199 (D.D.C. 2012) (quoting Nat’l Envtl. Dev.
Assn’s Clean Air Project v. EPA, 686 F.3d 803, 810 (D.C. Cir. 2012)). “An agency decision is
arbitrary and capricious if it ‘relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise.’” Cablevision Sys. Corp.
v. FCC, 649 F.3d 695, 714 (D.C. Cir. 2011) (quoting Motor Vehicle Mfrs. Ass’n of United
States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43); accord Agape Church, Inc. v.
FCC, 738 F.3d 397, 410 (D.C. Cir. 2013). Just as the Court may not “substitute [its] judgment
for that of the agency” to set aside an agency action, Rural Cellular Ass’n v. FCC, 588 F.3d
1095, 1105 (D.C. Cir. 2009), it also may not “affirm an agency decision on a ground other than
that relied upon by the agency.” Manin v. Nat’l Transp. Safety Bd., 627 F.3d 1239, 1243 (D.C.
Cir. 2011).
IV. DISCUSSION
A. Article III Standing
NMFS first asserts that Oceana lacks standing to challenge the 2012 BiOp.
Although Oceana has proffered the declarations of two of its members — who maintain that they
enjoy the study and observation of loggerheads and therefore would be injured by harm to the
species caused by interactions with the Scallop Fishery — NMFS contends that because the
“action area” does not extend to the specific North Carolinian island on which those declarants
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observe sea turtles, they cannot demonstrate a causal connection between the Fishery and their
asserted injuries. See NMFS Opp. & MSJ at 19-20; NMFS Reply at 2-3. 4
“Article III of the Constitution limits federal-court jurisdiction to ‘Cases’ and
‘Controversies.’” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). The requirement of
standing flows from this limitation. Lujan v. Defenders of Wildlife, 504 U.S. at 560. Standing
doctrine assures that “the litigant is entitled to have the court decide the merits of the dispute or
of particular issues,” Warth v. Seldin, 422 U.S. 490, 498 (1975), by demanding that he or she
“possess a ‘direct stake in the outcome’ of the case.” Hollingsworth v. Perry, 133 S. Ct. 2652,
2662 (2013) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)).
To possess standing, a plaintiff must have suffered an “injury in fact,” meaning
“an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. at 560(internal citations and quotation marks omitted). In addition, “there must be a causal connection
between the injury and the conduct complained of . . . [and] it must be likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Id. at 560-61(internal citations and quotation marks omitted). An organizational plaintiff, such as Oceana,
“may have standing to sue on its own behalf ‘to vindicate whatever rights and immunities the
association itself may enjoy’ or, under proper conditions, to sue on behalf of its members
asserting the members’ individual rights.” Common Cause v. Fed. Election Comm’n, 108 F.3d
413, 417 (D.C. Cir. 1997) (quoting Warth v. Seldin, 422 U.S. at 511). 5 When “an organization
4
The 2012 BiOp defines the action area as “the area to be directly and indirectly
affected by the scallop fishery,” which is “the area in which the scallop fishery operates.” SAR
13137.
5
Oceana asserts each of these forms of standing — “organizational” and
“representational” — both of which are contested by NMFS. Because the Court concludes that
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sues on behalf of its members, the organization must demonstrate ‘(a) its members would
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.’” Id. (quoting Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977)).
Oceana’s two declarants — Erica Grantmyre and Emily Fisher — observe and
study loggerheads on Bald Head Island, which lies off the coast of North Carolina. 6 Ms.
Grantmyre lives on Bald Head Island and volunteers with the Bald Head Island Conservancy.
Declaration of Erica Grantmyre (“Grantmyre Decl.”) ¶¶ 2-3 [Dkt. No. 93-1]. While
volunteering, she monitors and excavates loggerhead nests. Id. ¶¶ 4-6. Ms. Grantmyre states
that she would be “injured,” “devastated,” and “upset,” if she “were unable to monitor or
excavate nests on Bald Head Island because loggerhead sea turtles had gone extinct or their
populations were so depleted that they would not return to the island,” as well as if members of
the public such as her own grandchildren were “unable to observe the nests and baby turtles as a
result of depletion in the turtles’ population.” Id. ¶¶ 11, 13. She notes that she already has
observed “females arriving to nest whose carapaces are severely dented,” and opines that “[i]t
appears that these injuries have occurred from boat propellers or other heavy equipment.”
Oceana has standing to challenge the BiOp on behalf of two of its members, it does not reach the
question whether Oceana would have standing to pursue this action on its own behalf.
6
NMFS initially argues that because Oceana’s declarations “were executed in
2010, [they] thus fail to provide any evidence of the declarants’ present or planned future use of
areas frequented by sea turtles.” NMFS Opp. & MSJ at 19. In response to this argument,
Oceana has submitted new declarations virtually identical to the earlier ones — executed and
updated by the declarants in 2013 — along with its reply brief. See Oceana Reply at 2-3 n.2; see
also NMFS Reply 2 n.3 (acknowledging Oceana’s submission of updated declarations). The
Court refers to the versions of these declarations that were executed in 2013.
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Id. ¶ 10. Similarly, Ms. Fisher’s family owns a home on Bald Head Island that she plans to
continue visiting “on a yearly basis,” where she “derive[s] great pleasure from observing the
nesting and hatching of loggerhead turtles and from witnessing them interact with their natural
environment.” Declaration of Emily Fisher (“Fisher Decl.”) ¶ 12 [Dkt. No. 93-2]. Ms. Fisher
states that she would be “devastated” if she were “unable to witness a mature loggerhead turtle
nesting or a nest hatching because the sea turtles had gone extinct or their population was so
depleted that they would not return to the island.” Id. ¶ 13.
These declarations from two of Oceana’s members are sufficient to ground
Oceana’s standing to challenge the 2012 BiOp. See In re Navy Chaplaincy, 697 F.3d 1171, 1178
(D.C. Cir. 2012). “The Supreme Court has repeatedly made clear that injury to an aesthetic
interest in the observation of animals is sufficient to satisfy the demands of Article III standing.”
Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 432 (D.C. Cir. 1998) (en banc).
Oceana’s declarants claim injury to this interest, and they allege a “fairly traceable” connection
between their injury and the Scallop Fishery’s operation — a connection that is supported by the
administrative record. It is undisputed that the operation of the Atlantic Sea Scallop Fishery
leads to the deaths of loggerhead sea turtles within the NWA DPS, and that those loggerheads
nesting on Bald Head Island are members of this specific population of turtles. See, e.g., SAR
13145-46, 13149-50, 13267-68. Consequently, loggerhead takes resulting from the BiOp’s
alleged infirmities could lead directly to the injuries asserted by Ms. Grantmyre and Ms. Fisher.
And, for this reason, Oceana’s challenge to the BiOp’s adequacy could, if successful, redress
these injuries.
NMFS argues that Oceana relies on the “animal nexus” theory of standing that
was rejected by the Supreme Court in Lujan, but this argument is unpersuasive. The Lujan Court
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characterized this discredited approach as maintaining that “anyone who observes or works with
an endangered [or threatened] species, anywhere in the world, is appreciably harmed by a single
project affecting some portion of that species with which he has no more specific connection.”
Lujan v. Defenders of Wildlife, 504 U.S. at 567 (emphases added). Here, by contrast, Ms.
Grantmyre and Ms. Fisher state that they study and observe loggerheads who belong to the
specific population segment that is adversely affected by the Atlantic Sea Scallop Fishery. This
is sufficient to support standing. See Japan Whaling Ass’n v. American Cetacean Soc’y, 478
U.S. 221, 230 n.4 (1986) (whale conservation groups had standing because “the whale watching
and studying of their members will be adversely affected by continued whale harvesting”);
Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 923-25 (D.C. Cir. 2008) (plaintiffs, having
proffered declarations from individuals who “engage in whale watching and the studying of
whales,” had standing to challenge agency actions concerning the protection of right whales from
mortalities caused by ship strikes) (citing Japan Whaling Ass’n v. American Cetacean Soc’y, 478
U.S. at 230 n.4).
The Court also rejects NMFS’ related assertion that “Oceana errs in focusing on
the range of the species rather than the action area defined in the 2012 BiOp.” NMFS Reply at 3
& n.4; see also NMFS Opp. & MSJ at 19-20. As Oceana’s counsel demonstrated at oral
argument, Bald Head Island lies a mere 100 miles south of the lower boundary of the Fishery.
Loggerheads that nest on Bald Head, therefore, quickly enter the Fishery upon leaving their
nesting sites and spend much of the year traversing the Fishery before eventually returning to
their nests the following year. And as Oceana persuasively explains, “[i]f a turtle is killed off the
coast of Long Island on its way to its nesting beach in North Carolina, a resident of North
Carolina would plainly suffer an injury when the turtle does not appear at its normal nesting
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site.” Oceana Reply at 5. NMFS’ decision to circumscribe the scope of the action area, for
purposes of its Section 7 consultation, to the area in which the Scallop Fishery operates has no
bearing on the constitutional principles of injury in fact, causation, and redressability that govern
this Court’s standing inquiry. Moreover, NMFS fails to acknowledge that the relevant injury
here is not injury to loggerheads, but, rather, injury to the plaintiffs’ members. For the reasons
just explained, Ms. Grantmyre and Ms. Fisher each would have standing to challenge the 2012
BiOp.
Oceana must also show that the interests it seeks to protect by this lawsuit are
germane to its organizational purpose, and that “neither the claim asserted nor the relief
requested requires the participation” of Ms. Grantmyre or Ms. Fisher as individuals. See Hunt v.
Wash. State Apple Adver. Comm’n, 432 U.S. at 343. These two elements are easily satisfied.
The protection of marine life is central to the organization’s purpose, and the litigation of this
challenge to the 2012 BiOp does not require the participation of Oceana’s individual members,
nor would the relief requested implicate Ms. Grantmyre or Ms. Fisher individually. The Court
therefore concludes that Oceana has Article III standing to pursue this action.
B. Is NMFS’ Interpretation of 50 C.F.R. § 402.02 Arbitrary and Capricious?
Oceana’s principal argument is that NMFS, in determining whether the Scallop
Fishery would “jeopardize the continued existence of” loggerheads within the NWA DPS, see 16
U.S.C. § 1536(a)(2), applied an unlawful construction of the regulation that defines this pivotal
statutory phrase. The regulation at issue provides that the statutory phrase “[j]eopardize the
continued existence of” means
to engage in an action that reasonably would be expected, directly
or indirectly, to reduce appreciably the likelihood of both the
15
survival and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of that species.
50 C.F.R. § 402.02. In the 2008 BiOp, NMFS indicated that it construed the term “reduce
appreciably” to mean that there be a “considerable or material reduction in the likelihood of
survival and recovery” of the species. See AR 16839-40 (emphases added). Although the 2012
BiOp pointedly declines to restate this definition, see SAR 13116, Oceana contends that NMFS
has again required a “considerable” or “material” reduction in the likelihood of loggerheads’
survival and recovery. It argues that such construction of the regulation contravenes the plain
text of the regulation as well as the language and purpose of the Endangered Species Act itself,
resulting in an erroneous determination that the Fishery is not likely to jeopardize the continued
existence of the NWA DPS of loggerheads.
Although the 2012 BiOp does not explicitly define “reduce appreciably,” Oceana
infers that NMFS’ analysis in the 2012 BiOp employed the same standard as it had applied in the
2008 BiOp, where NMFS did define the regulatory language as requiring a “considerable” or
“material” reduction in order to trigger a finding of jeopardy. See Oceana MSJ at 1-2, 17-18 &
n.13; Oceana Reply at 6-7. NMFS appears to concede that Oceana’s inference is accurate. See
NMFS Opp. & MSJ at 25-26 (“NMFS does not dispute that the underlying approach to the
jeopardy analysis in the 2012 BiOp was largely the same as that in the 2008 BiOp.”); id. at 26(“In both [BiOps], the agency considered the impact of takes from the fishery on the future
survival and recovery of the species, and whether any difference was both capable of being
considered and meaningful from a biological perspective.”) (emphasis added). Thus, despite
NMFS’ decision not to define “reduce appreciably” in the 2012 BiOp, the parties seem to agree
that NMFS applied a construction of the phrase that aligns with the definition that it articulated
in the 2008 BiOp. Accordingly, contrary to the suggestion of intervenor-defendant Fisheries
16
Survival Fund, see FSF MSJ at 24 n.17; FSF Reply at 4, Oceana’s challenge to the propriety of
this construction of the regulation is not moot. 7
1. Consistency with Regulatory Text
Oceana argues that the language of 50 C.F.R. § 402.02 is unambiguous and that
NMFS’ interpretation of its key phrase — “reduce appreciably” — is plainly inconsistent with
the regulatory text. According to Oceana, the word “appreciably” means “‘capable of being
perceived’ or measured.” Oceana MSJ at 24 (quoting WEBSTER’S THIRD NEW INT’L
DICTIONARY 105 (1993)). Thus, says Oceana, NMFS has unlawfully imported a heightened
requirement that any reduction in the likelihood of loggerheads’ survival and recovery be
“considerable” or “material,” rather than simply being perceptible. Id. at 24-26; Oceana Reply at
9-10. And Oceana contends that if the regulation’s text is construed according to its ordinary
meaning, “there can be no question that . . . the Fishery will cause an ‘appreciable’ reduction in
Loggerheads,” given the evidence in the administrative record. Oceana MSJ at 25; see also id. at
17 (stating that NMFS applied “the same definition in 2012 that it had invented in 2008;
otherwise, it could not have found that the Fishery would not” cause jeopardy); Oceana Reply at
12-13. NMFS and FSF both maintain that the agency’s interpretation of its own regulation is
consonant with the regulatory text, and that its interpretation therefore is entitled to deference
7
By contrast, the Court does find moot Oceana’s requests for relief that relate
specifically to the 2008 BiOp. See Am. Compl., Prayer for Relief ¶¶ (1), (5). The 2008 BiOp is
no longer in force, having been superseded by the 2012 BiOp. NMFS Opp. & MSJ at 21-22; see
American Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123-24 (9th Cir. 1997) (new
BiOp generally renders moot any challenges to the validity of its predecessor).
17
from this Court. NMFS Opp. & MSJ at 29-31; NMFS Reply at 6-8; FSF MSJ at 25-31; FSF
Reply at 7-9. 8
“An agency’s interpretation of its own regulations is entitled to ‘substantial
deference’ and is given ‘controlling weight unless it is plainly erroneous or inconsistent with the
regulation.’” Shieldalloy Metallurgical Corp. v. Nuclear Regulatory Comm’n, 768 F.3d 1205,
1208 (D.C. Cir. 2014) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994));
see Auer v. Robbins, 519 U.S. 452 (1997); see also Christensen v. Harris County, 529 U.S. 576,
588 (2000) (Auer deference warranted only where regulation is ambiguous). A federal court will
temper this measure of deference, however, where the agency’s interpretation of its own
ambiguous regulation “conflicts with a prior interpretation, or when it appears that the
interpretation is nothing more than a convenient litigating position, or a post hoc rationalizatio[n]
advanced by an agency seeking to defend past agency action against attack.” Christopher v.
SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-67 (2012) (citations and internal quotation
marks omitted) (alteration in original). Where a court finds reason not to afford the normally
strong degree of deference to an agency’s regulatory interpretation, it “instead accord[s] the
[agency’s] interpretation a measure of deference proportional to the ‘thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later pronouncements,
and all those factors which give it power to persuade.’” Id. at 2168-69 (quoting United States v.
Mead Corp., 533 U.S. 218, 228 (2001)) (internal quotation marks omitted).
8
NMFS also contends that the Court need not reach this question at all, given
evidence in the administrative record that, according to NMFS, demonstrates the correctness of
its no-jeopardy determination even under Oceana’s preferred construction of the regulation. See
NMFS Opp. & MSJ at 26-29; NMFS Reply at 5-6. The Court is not persuaded that the record is
so unequivocal on this point that it obviates the need to resolve the parties’ dispute over NMFS’
regulatory interpretation.
18
The Court concludes that NMFS’ construction of the phrase “reduce appreciably”
does not contravene the text of 50 C.F.R. § 402.02, which, contrary to Oceana’s contention, is far
from unambiguous. As noted, Oceana relies on Webster’s for the “common dictionary
definition” of “appreciable” as meaning “capable of being perceived or measured.” Oceana MSJ
at 15, 24. 9 But as NMFS points out, see NMFS Reply at 7 n.10, this is not the only available
definition of the word. See THE NEW OXFORD AMERICAN DICTIONARY 1724 (2d ed. 2005)
(“Something that is appreciable is large enough to be measured, valued, estimated, or considered
significant.”) (emphasis added) (boldface type omitted); cf. United States v. Wells, 706 F.3d 908,
915 (8th Cir. 2013) (referring to “the purchase of an appreciable amount of pills”); Savin Corp.
v. Savin Group, 391 F.3d 439, 456 (2d Cir. 2004) (test for trademark infringement asks whether
an “appreciable number of ordinarily prudent purchasers” are likely to be misled or confused);
Scott v. Hubert, Civil Action No. 08-11-FJP-SCR, 2012 WL 3016244, at *4 (M.D. La. May 14,
2012) (referring to “appreciable time in prison”). NMFS therefore is within the bounds of its
discretion to construe the word “appreciably” as entailing more than a bare reduction in the
likelihood of loggerheads’ survival and recovery to result in a finding of jeopardy. Rather, the
agency construes its regulation to afford its scientists the discretion to determine whether a given
reduction in those likelihoods is “meaningful from a biological perspective.” NMFS Opp. &
MSJ at 26. This construction is neither plainly erroneous nor inconsistent with the regulatory
text, which, instead of commanding only one interpretation, is ambiguous.
Although an agency’s interpretation of an ambiguous regulation generally
receives substantial deference, Oceana contends that NMFS’ interpretation of “reduce
appreciably” does not merit such deference because it conflicts with a prior interpretation
9
Appreciably, as the adverbial form of appreciable, generally does not enjoy its
own dictionary entry. Accordingly, Oceana cites the definition for the adjective, not the adverb.
19
employed by the agency. Specifically, Oceana points to materials created by the Fish and
Wildlife Service and used by NMFS to train its Section 7 biologists, in which “appreciable” is
defined to mean “capable of being perceived,” and “[m]easureable, detectable, perceptible.”
Oceana MSJ at 25. NMFS responds by noting that its preferred interpretation of “appreciably” is
consistent with the interpretation given by FWS and NMFS to a related regulation under the
ESA, an interpretation that is set forth in the agencies’ shared Endangered Species Consultation
Handbook. See NMFS Opp. & MSJ at 30 n.9; NMFS Reply at 8 n.11 (noting that the agencies
interpret “appreciably diminish the value of” critical habitat as “to considerably reduce the
capability” of the habitat to support the species). NMFS also contends that even if its definition
of “appreciably” is viewed as a departure from the interpretation provided in the FWS training
materials, the explanation provided in the 2008 BiOp “reasonably explained that departure.”
NMFS Opp. & MSJ at 30 n.9.
The Court need not resolve this conflict regarding the applicability of Auer
deference in these circumstances, because even under a less deferential standard, see Christopher
v. SmithKline Beecham Corp., 132 S. Ct. at 2168-69, NMFS has the more sound reading of the
regulation. Oceana insists that an “appreciable” reduction means any “perceptible” reduction in
the likelihood of loggerheads’ survival and recovery. But this approach saps any function from
the word “appreciable,” which modifies the verb “reduce.” An imperceptible reduction in the
likelihood of loggerheads’ survival and recovery would be invisible, and thus indistinguishable
from a finding of no reduction at all. It is a basic rule of textual construction that each word
should be given meaning. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.
at 668-69 (applying canon against surplusage in interpretation of regulation). The Court
therefore agrees with NMFS that its construction of “appreciably” is more in accord with the text
20
of the regulation than is the approach advocated by Oceana. See NMFS Reply at 7-8. And this
conclusion is in line with the reading given to this language by the Ninth Circuit, which has
recognized that the word appreciable, as employed in 50 C.F.R. § 402.02, implicates some
measure of the extent of a reduction in species’ likelihood of survival and recovery. See Wild
Fish Conservancy v. Salazar, 628 F.3d 513, 523 (9th Cir. 2010) (“There could be some impact,
but not an appreciable impact, in each of several subdivided periods of operation that, in
cumulation, have an undeniably appreciable impact.”) (emphases added); cf. In re Consolidated
Salmonid Cases, 791 F. Supp. 2d 802, 872-73 (E.D. Cal. 2011) (inquiry under related provision
of ESA is whether record demonstrates that agency action “will have a significant (i.e.,
appreciable or considerable) impact on the critical habitat” of listed species).
Finally, Oceana argues that NMFS’ interpretation of “reduce appreciably” leads
the agency to ignore the Fishery’s effects on the loggerhead’s likelihood of recovery from its
threatened status — as opposed merely to its survival — in contravention of the regulation’s
mandate to consider both survival and recovery. “Recovery means improvement in the status of
listed species to the point at which listing is no longer appropriate under the criteria set out in
[the ESA].” 50 C.F.R. § 402.02. Oceana emphasizes that the plain language of the controlling
regulation requires NMFS to assess whether the Fishery’s operation “reasonably would be
expected . . . to reduce appreciably the likelihood of both the survival and recovery” of
loggerheads in the NWA DPS. 50 C.F.R. § 402.02 (emphases added). According to Oceana, “in
considering the effect of the Fishery based on a ‘material or considerable’ reduction in chances
of survival using tests of ‘statistical significance,’ the Fisheries Service ignored the impact of the
Fishery on Loggerheads’ recovery.” Oceana MSJ at 27; see also Oceana Reply at 16 (“The
Fisheries Service’s interpretation does not even require it to consider recovery impacts . . . .”).
21
The Court agrees with Oceana that the agency must address both the survival and recovery
prospects of the loggerhead. But its argument based on that premise extends no further than the
conclusory statements that the Court has quoted above; if there is some logic to its contention
that NMFS’ construction of “reduce appreciably” necessarily reads “recovery” out of the
regulation, Oceana does not elucidate that linkage.
Nor is the Court persuaded by Oceana’s related contention, advanced in its reply
brief, that the agency’s analysis of the Fishery’s effect on loggerheads’ recovery prospects is
“perfunctory,” and, in effect, no different than its analysis of the Fishery’s effects on survival.
See Oceana Reply at 9-10. The BiOp includes a fairly extensive discussion of recovery impacts,
centered on the recovery criteria established in the 2008 Recovery Plan for the Northwest
Atlantic Population of the Loggerhead Sea Turtle. See SAR 13148-49, 13265-68. NMFS
specifically finds in the BiOp that interactions between loggerheads and the Fishery will not
lessen the species’ genetic heterogeneity, see SAR 13268, and it further determines that the
continued operation of the Fishery will not affect two of the loggerheads’ recovery criteria — the
number of nests and nesting females, and trends in abundance on foraging grounds — to such an
extent that there would be an appreciable reduction in their likelihood of recovery. SAR 13270.
NMFS concludes that the “proposed action would not impede progress on carrying out any
aspect of the recovery program or achieving the overall recovery strategy.” Id. Thus, NMFS has
identified the reasons underlying its conclusion that the likelihood of loggerheads’ recovery
would not be appreciably reduced by the operation of the Fishery, and it has articulated a rational
connection between these reasons and that conclusion. This is all that the APA requires. 10
10
Oceana puts forth an additional argument that appears principally in its reply
brief, contending that the agency’s use of statistical significance tests — by way of its reliance
on a technical paper, the Population Viability Analysis — “elevates statistical certainty above the
obligation to protect Loggerheads from actions that reasonably can be expected to reduce their
22
2. Consistency with the Endangered Species Act
Oceana contends that even “if [NMFS] correctly construed its regulation, then it
impermissibly construed the Endangered Species Act because [NMFS’] interpretation inverts its
conservation mandate under that statute, conflicting with its text, structure, and purpose.”
Oceana MSJ at 23; see Stinson v. United States, 508 U.S. 36, 47 (1993) (interpretation of
regulation may not “run afoul of the Constitution or a federal statute”). Oceana first suggests
that the ESA’s mandate — requiring federal agencies to “insure that any action authorized,
funded, or carried out by [the agency] . . . is not likely to jeopardize the continued existence of
any [listed species]” — means that NMFS must conclude that jeopardy is likely where the action
under review causes any perceptible reduction in the likelihood of a species’ survival and
recovery. It therefore argues that NMFS’ interpretation of “reduce appreciably” — which
reaches only “considerable” or “material” reductions — is out of step with the plain language of
Section 7 of the statute. Oceana MSJ at 28. More specifically, Oceana maintains that for an
agency action to “jeopardize the continued existence of” a listed species, that action must only
cause “some deterioration in the species’ pre-action condition.” Id. (quoting Nat’l Wildlife
Federation v. NMFS, 524 F.3d 917, 930 (9th Cir. 2007)) (internal quotation marks omitted).
Oceana’s only support for this textual argument is the Ninth Circuit’s decision in
Nat’l Wildlife Federation v. NMFS. But Oceana has presented the language of that opinion out
of context. The Ninth Circuit there was explaining that the word “jeopardize” indicates an
element of causation, meaning that even if “background conditions [already have] place[d] a
species in jeopardy,” the agency action under review “can only ‘jeopardize’ a species’ existence
if that agency action causes some deterioration in the species’ pre-action condition.” Nat’l
likelihood of survival and recovery.” Oceana Reply at 11 (emphasis added) (paraphrasing 50
C.F.R. § 402.02). The Court is unpersuaded that the regulatory language requires NMFS to
forego use of this common statistical tool.
23
Wildlife Federation v. NMFS, 524 F.3d at 930 (emphasis added). The Ninth Circuit was not
addressing the issue presented here, namely whether NMFS may consider the extent of any such
deterioration as a factor in determining whether the action is likely to jeopardize the species’
continued existence. Thus, the Court does not agree with Oceana’s suggestion that the ESA’s
plain language is unambiguous — equating “jeopardize the continued existence” with any degree
of reduction in the likelihood of a species’ survival and recovery. To the contrary, the statutory
text simply does not speak directly to the question of how jeopardy to a species’ continued
existence is to be assessed.
Oceana further argues that NMFS’ approach contravenes the design and purpose
of the ESA. Oceana MSJ at 28-30; Oceana Reply at 14-16. The Supreme Court has emphasized
that the statute’s “language, history, and structure . . . indicates beyond doubt that Congress
intended endangered species to be afforded the highest of priorities.” Tenn. Valley Auth. v. Hill,
437 U.S. at 174. According to Oceana, NMFS’ interpretation of 50 C.F.R. § 402.02 “gives ‘the
benefit of the doubt’ to the action, not the species.” Oceana MSJ at 30 (quoting language that
originated in a House Conference Report). Such an approach, says Oceana, “would permit
Loggerheads to be ‘gradually destroyed, so long as each step on the path to destruction is
sufficiently modest.’” Id. (quoting Nat’l Wildlife Federation v. NMFS, 524 F.3d at 930). In
essence, it seems, Oceana maintains that because Congress intended the ESA to weigh heavily in
favor of species’ protection — and as NMFS’ interpretation of “reduce appreciably” could lead
to more harm to a species than would Oceana’s approach — NMFS’ construction of the
regulation must contravene the statute.
But just because Oceana’s approach may be more protective than the agency’s
does not mean that NMFS’ interpretation of 50 C.F.R. § 402.02 — and, in turn, its construction
24
of “jeopardize the continued existence of” — is in conflict with the Endangered Species Act.
NMFS, as an expert agency charged with administering the ESA, may reasonably conclude that a
given agency action, although likely to reduce the likelihood of a species’ survival and recovery
to some degree, would not be likely to jeopardize the continued existence of the species. Of
course, this does not mean that NMFS has unfettered discretion to permit any degree of reduction
in the likelihood of a species’ survival and recovery. In a given case, NMFS’ determination that
a particular reduction is not “material” may be unreasonable in light of the data on which the
agency relied, and therefore arbitrary and capricious. See Motor Vehicle Mfrs. Ass’n of United
States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43. The Court cannot say, however,
that NMFS’ reading of “jeopardize the continued existence of” is inconsistent with the ESA.
The statute does not define how the concept is to be measured, and the agency therefore has
discretion to make this determination on the basis of its own expertise.
C. Is the 2012 BiOp’s No-Jeopardy Determination
Arbitrary and Capricious for Other Reasons?
Apart from Oceana’s focus on NMFS’ interpretation of the words “reduce
appreciably,” Oceana levels other attacks against the agency’s no-jeopardy determination. The
Court first considers Oceana’s contention that NMFS did not adequately account for so-called
“cumulative effects” and “aggregate effects” in conducting its jeopardy analysis. Next, the Court
examines Oceana’s argument that NMFS specifically failed to consider the potential effects of
climate change. This latter argument is made in the context of a broader claim relating to
Oceana’s submission of comments to NMFS, which, Oceana says, the agency ignored. Oceana’s
comments were offered during the Section 7 consultation that led to issuance of the 2008 BiOp,
pursuant to a stipulation between the parties in the civil action involving Oceana’s challenge to
25
the 2006 BiOp. In its comments, Oceana highlighted the potential effects of climate change on
loggerheads’ survival and recovery. According to Oceana, NMFS’ failure to incorporate serious
consideration of climate change in the 2012 BiOp constitutes a violation of the stipulation, as
well as a violation of the agency’s statutory duty to “use the best scientific and commercial data
available” in formulating the BiOp. See 16 U.S.C. § 1536(a)(2).
1. Cumulative Effects and Aggregate Effects
Oceana maintains that the BiOp is arbitrary, capricious, and contrary to law
because it fails to take account of so-called (1) “cumulative effects” and (2) “aggregate affects.”
The term “cumulative effects” is defined in the regulations as “those effects of
future State or private activities, not involving Federal activities, that are reasonably certain to
occur within the action area of the Federal action subject to consultation.” 50 C.F.R. § 402.02.
In formulating its Biological Opinion, NMFS is obligated to determine “whether the action,
taken together with cumulative effects, is likely to jeopardize the continued existence of listed
species.” 50 C.F.R. § 402.14(g)(4) (emphasis added). Oceana contends that NMFS ignored
these effects in performing its jeopardy analysis. See Oceana MSJ at 30-31.
The term “aggregate effects” is not found in the regulations. Oceana draws the
term from the Endangered Species Consultation Handbook (“Handbook”), which NMFS and
FWS both use to guide their performance of Section 7 consultations under the ESA. The
Handbook states that a jeopardy determination is reached by assessing “whether the aggregate
effects of the factors analyzed under [1] ‘environmental baseline,’ [2] ‘effects of the action,’ and
[3] ‘cumulative effects’ in the action area — when viewed against the status of the species . . . —
are likely to jeopardize the continued existence of the species.” Id. (quoting Handbook at 4-33
26
(AR 2,277)). 11 Oceana employs the term “aggregate effects” in two ways. First, Oceana uses
the term “aggregate effects” to refer specifically to the impact of more than 600 loggerhead takes
that NMFS has authorized to occur in other federally regulated fisheries — besides the Scallop
Fishery — which, says Oceana, the agency failed to consider in reaching its no-jeopardy
determination in the 2012 BiOp. 12 Second, Oceana invokes the concept of “aggregate effects” to
advance a broader methodological point, arguing that NMFS evaluated the Scallop Fishery’s
effects in isolation, rather than in conjunction with the other factors identified in the regulations
as contributors to jeopardy. See Oceana MSJ at 30-31. Thus, claims Oceana, no matter how dire
the straits faced by the loggerhead due to the myriad factors that harm the species, NMFS will
conclude that the Scallop Fishery does not cause jeopardy so long as the number of takes caused
by the Scallop Fishery alone are not “too much.” See id. (quoting SAR 13264).
NMFS maintains that it did account for the cumulative effects of future state and
private actions that affect loggerheads, as well as for the impact of the more than 600 loggerhead
11
The regulation provides: “Effects of the action refers to the direct and indirect
effects of an action on the species or critical habitat, together with the effects of other activities
that are interrelated or interdependent with that action, that will be added to the environmental
baseline. The environmental baseline includes the past and present impacts of all Federal, State,
or private actions and other human activities in the action area, the anticipated impacts of all
proposed Federal projects in the action area that have already undergone formal or early section
7 consultation, and the impact of State or private actions which are contemporaneous with the
consultation in process. Indirect effects are those that are caused by the proposed action and are
later in time, but still are reasonably certain to occur. Interrelated actions are those that are part
of a larger action and depend on the larger action for their justification. Interdependent actions
are those that have no independent utility apart from the action under consideration.” 50 C.F.R.
§ 402.02 (emphases added).
12
These takes fall within the scope of the “environmental baseline,” which, as noted
supra note 11, “includes the past and present impacts of all Federal, State, or private actions and
other human activities in the action area, the anticipated impacts of all proposed Federal projects
in the action area that have already undergone formal or early section 7 consultation, and the
impact of State or private actions which are contemporaneous with the consultation in process.”
See 50 C.F.R. § 402.02.
27
takes caused by other federally authorized fisheries. See NMFS Opp. & MSJ at 31-34; NMFS
Reply at 11-12. NMFS also disputes Oceana’s contention that the agency erroneously evaluated
the Scallop Fishery’s impact on loggerheads in isolation, rather than in conjunction with the
effects of the other factors identified in the regulations as contributors to jeopardy. NMFS
maintains that its analysis of whether the effects of Scallop Fishery takes on loggerheads’
survival and recovery are “too much” occurs “in the context of” those other factors enumerated
in the regulations, including cumulative effects and the effects of takes caused by other federally
authorized fisheries. See NMFS Opp. & MSJ at 32-34; NMFS Reply at 11-12.
To support these assertions, NMFS points to various sections of the 2012 BiOp
that set forth narrative discussions of the factors that Oceana has accused it of failing to consider.
With respect to cumulative effects, Section 7 of the BiOp — entitled Cumulative Effects —
identifies several future private and state activities affecting loggerheads, including fishing
activities in state waters; the travels of seagoing vessels, which can collide with sea turtles; and
human-caused pollution and contamination of the environment. See SAR 13259-61. NMFS
states, however, that it lacks quantitative information regarding how many loggerheads might be
negatively affected by these factors and therefore assumes them to be consistent with previous
trends. Id. And with respect to the effects of other federally authorized fisheries, in Section 4 of
the BiOp — entitled Environmental Baseline — NMFS presents information on these fisheries
and the extent of takes occurring in them. See SAR 13208-10. NMFS includes a table that lists
estimated loggerhead takes for a number of fisheries that recently have undergone Section 7
consultations, including the specific fisheries that Oceana cites in its motion, which together
account for 610 takes, of which 257 are expected to be fatal. See SAR 13210. It is evident, then,
that NMFS was aware of and discussed those factors that Oceana has accused it of failing to
28
consider. Indeed, Oceana does not point to any additional data that NMFS should have had in its
sights. Rather, Oceana contends that in conducting its jeopardy analysis, NMFS did not actually
consider the information regarding cumulative effects and the impact of takes occurring in other
federally authorized fisheries.
If NMFS had done nothing more than to list and describe data that it purported to
incorporate into its jeopardy analysis — without indicating how that data actually factors into the
analysis — the Court might well have found the BiOp deficient for such opacity. See Tex Tin
Corp. v. U.S. EPA, 935 F.2d 1321, 1324 (D.C. Cir. 1991) (per curiam) (court “cannot defer to
agency expertise that was never explained”). But the BiOp offers more than this; when read as a
whole, the BiOp features sufficient explication of NMFS’ reasoning in reaching its no-jeopardy
determination — as well as sufficient indication of its consideration of cumulative effects and the
impact of other fishery takes — to satisfy its burden under the Administrative Procedure Act.
NMFS’ no-jeopardy determination appears to be centered largely on its
identification of four population-level characteristics of the Northwest Atlantic Distinct
Population Segment of loggerheads: a large nesting population; a nesting population that is
geographically widespread; a nesting population trend that recently has been in decline, but
which now appears to be stabilizing; and the fact that “substantial conservation efforts are
underway to address threats” to loggerheads’ survival and recovery. See SAR 13158, 13270. 13
The BiOp cites a variety of data sources in support of its identification of these features. With
respect to population size, the BiOp relies primarily on an estimate that places the adult female
population in the NWA DPS at about 30,500. See SAR 13151, 13264. NMFS also cites other
estimates, including a “much less robust” estimate of the total female population that ranges
13
These are the same factors relied upon by NMFS in its decision to list the NWA
DPS of loggerheads as threatened rather than endangered. See SAR 13158.
29
from 60,000 to 700,000 individuals, SAR 13264, as well as a 2011 study drawing on aerial
surveys of the Atlantic coast, which yielded a total population estimate of 588,000 loggerheads.
SAR 13151. Regarding nesting trends, NMFS states that “[w]hile several [earlier] documents
reported [a] decline in nesting numbers in the NWA DPS, when nest counts through 2010 are
analyzed, the nesting trends from 1989-2010 are not significantly different than zero.” SAR
13158. In addition, “[t]he 2010 Florida index nesting number was the largest since 2000,” and
“[n]esting in the Northwest Atlantic in 2011 was on par with 2010, providing further evidence
that the nesting trend may have stabilized.” SAR 13267.
The essential logic underlying NMFS’ no-jeopardy determination is that, based on
the current estimated size of the NWA DPS, its wide dispersion, the seemingly promising recent
nesting trends, and the ongoing implementation of conservation measures, the species stands
strong enough that the takes caused by the Scallop Fishery are not likely to jeopardize its
continued existence. See SAR 13270. And NMFS reaches this conclusion while considering the
Scallop Fishery takes “within the context of” the effects of those factors comprising the
environmental baseline and included within cumulative effects. See SAR 13263. Although
NMFS has not applied a specific quantitative formula to account for all of these factors, the
agency’s logic is both discernible and rational: it weighed the impact of Scallop Fishery takes,
as well as takes caused by other sources, against the four positive attributes that characterize the
NWA DPS of loggerheads, and it concluded that the population’s continued existence would not
be jeopardized by these impacts. 14 NMFS’ conclusion, based on the agency’s evaluation of data
14
In a related vein, the BiOp seems to indicate that the positive measures of
loggerheads’ population status — particularly population size and stabilizing nesting trends —
reflect both cumulative effects and the impact of other fishery takes. Cumulative effects are
assumed to be consistent with prior trends and therefore incorporated into those measures. SAR
13259-61. With respect to takes occurring in other fisheries, the BiOp states that the impacts of
those takes “are reflected in the status and trends of sea turtles” reported elsewhere in the BiOp.
30
within its realm of technical expertise, is entitled to substantial deference from this Court. See
Communities for a Better Environment v. EPA, 748 F.3d at 336.
In the few pages of briefing that it devotes to its arguments on this topic, Oceana
seems to focus entirely on NMFS’ use of the Population Viability Analysis (“PVA”). See
Oceana MSJ at 30-31; Oceana Reply at 17-18. The PVA is a technical paper relied upon by
NMFS in both the 2008 and 2012 BiOps, see SAR 13268-70, 13346-71, which “was used to
estimate quasi-extinction (the point at which so few animals remain that the species/population
will inevitably become extinct) likelihoods under conditions with and without fishery effects.”
SAR 13269. Its authors established a baseline population trajectory using the rate of change in
the adult female loggerhead population from 1989-2005. SAR 13351. The rate was then
adjusted by adding back the level of take attributable to the Scallop Fishery (converted to adult
female equivalents), and re-running the PVA. SAR 13269. The results of these two analyses
were compared, and the comparison showed that both the baseline and adjusted baseline (which
imagined a world with no Scallop Fishery takes) had quasi-extinction probabilities of zero at 25,
50, and 75 years, and a probability of 1% at 100 years. Id. 15
SAR 13208. The implicit assumption, then, is that the level of loggerhead takes occurring in
other federally authorized fisheries is on par with the extent of takes that has been occurring in
recent years. See id. Although this point could have been established with better clarity — such
as through an explicit comparison of take numbers occurring in federally authorized fisheries
during the years from which NMFS draws its population trend data, as against those projected to
occur in the present and coming years — this lack of precision is not fatal to the BiOp. See
Colorado River Cutthroat Trout v. Salazar, 898 F. Supp. 2d at 204-05 (“[A] court should ‘uphold
a decision of less than ideal clarity if the agency’s path may reasonably be discerned,’ as it may
be here.”) (quoting Building Industry Ass’n of Superior Cal. v. Babbitt, 979 F. Supp. 893, 898
(D.D.C. 1997)).
15
Oceana focuses on another finding produced by the PVA’s model, namely that the
“median time to quasi-extinction” was predicted to be sooner (207 years versus 240 years) with
Fishery takes compared to a world without them. See Oceana MSJ at 16; Oceana Reply at 9-10,
12, 14-15 & n.14, 18. Oceana states that this finding shows that the Fishery will “hasten
Loggerheads’ demise by 33 years.” Oceana Reply at 14 n.14. In actuality, the median time to
31
According to Oceana, “[b]y adopting the PVA model from the 2008 BiOp, the
2012 BiOp . . . lumped together cumulative impact, the status of the species, and the
environmental baseline to establish a new baseline against which the effects of the Fishery were
analyzed.” Oceana MSJ at 30. This approach, says Oceana, has the effect of isolating the
Scallop Fishery’s impacts from those of other sources of harm to loggerheads. See id. at 30-31.
But a Section 7 consultation must determine whether the specific agency action under review
actually causes some additional harm to the species, beyond that which the species may suffer
due to other factors. See Nat’l Wildlife Federation v. NMFS, 524 F.3d at 930. The PVA singled
out the Scallop Fishery to make such a determination, but this does not mean that the broader
jeopardy analysis does not also account for the impact of cumulative effects and the takes
occurring in other fisheries. This is because the significance of the impact caused by Scallop
Fishery takes will differ depending on the impacts caused by other factors, to which the Fishery’s
impact is added. See id. (“[A]n agency may not take action that will tip a species from a state of
precarious survival into a state of likely extinction. Likewise, even where baseline conditions
already jeopardize a species, an agency may not take action that deepens the jeopardy by causing
additional harm.”).
Consequently, if baseline conditions are already dire, then even a small additional
impact due to Scallop Fishery takes may require a jeopardy determination. The PVA’s
methodology is not inconsistent with this framework. Moreover, as NMFS emphasizes, the PVA
quasi-extinction refers to “[t]he time when the quasi-extinction probability is 0.50,” SAR 13356
n.3, not to the time when quasi-extinction is predicted to occur. In any event, interpretation of
the PVA’s various measures — and the relative weight to be given to each of these different
measures — is a matter that falls within the purview of the expert agency, subject to review only
for reasonableness. Contrary to Oceana’s view of the data, the PVA’s authors considered the
median times to quasi-extinction with and without Fishery effects to be “similar.” SAR 13357.
And NMFS discounted the value of this finding due to its long distance into an unknown future.
See SAR 13116.
32
does not constitute the entirety of its analysis; as explained above, the jeopardy determination
rests in large part on the qualitative assessment of population indicators and the estimated extent
of Scallop Fishery takes, considered in light of takes occurring in other fisheries as well as the
impact of other sources of harm to loggerheads. See NMFS Opp. & MSJ at 34. The Court
concludes that NMFS has sufficiently demonstrated its consideration of these factors.
2. Climate Change
In comments submitted to NMFS pursuant to the Joint Stipulation and Order
entered in Civil Action No. 07-0142, Oceana urged the agency to consider the effects of climate
change in conducting its jeopardy analysis with respect to the NWA DPS of loggerheads. The
2012 BiOp includes a separate section entitled Climate Change, SAR 13228-33, and the topic of
climate change is discussed in other portions of the BiOp as well. See SAR 13155-57.
Nonetheless, Oceana contends that NMFS has failed to actually consider the effects of climate
change in reaching its jeopardy determination, and it maintains that this failure violates the
agency’s obligation to “use the best scientific and commercial data available” in formulating the
BiOp. 16 U.S.C. § 1536(a)(2). 16 In particular, Oceana argues that NMFS’ choice to limit the
scope of the action under review to only ten years, see SAR 13156, effectively “wrote out of the
equation the effect of climate change on the status and recovery of the species.” Oceana MSJ at
40-41. NMFS responds that it “did not limit its consideration of climate change to a ten-year
period,” as both its “narrative discussion on climate change and the PVA model consider long-
term effects.” NMFS Opp. & MSJ at 41.
16
Oceana also complains that NMFS ignored other comments it had placed before
the agency, concerning the implementation of “reasonable conservation efforts.” See Oceana
MSJ at 19-20, 44; Oceana Reply at 28-29. But it offers effectively no detail or argument to
support these additional claims. Accordingly, the Court will deny these claims for relief.
33
The Court concludes that NMFS sufficiently addressed the potential impacts of
climate change in the 2012 BiOp. In its discussion, NMFS reviews the current state of scientific
data regarding climate change, and essentially determines that these data are too inconclusive to
provide a basis for accurate predictions regarding impacts on loggerheads. As the agency
explains in the BiOp, “current scientific methods are not able to reliably predict the future
magnitude of climate change, associated impacts, whether and to what extent some impacts will
offset others, or the adaptive capacity of this species.” SAR 13156. The agency does draw on
existing studies to make some predictions about the types of factors that might affect loggerheads
as a result of climate change — such as “increasing sand temperatures at nesting beaches which
in turn would result in increased female:male sex ratio among hatchlings, sea level rise which
could result in reduction in available nesting beach habitat, increased risk of nest inundation, and
changes in the abundance and distribution of forage species which could result in changes in the
foraging behavior and distribution of sea turtle species.” SAR 13231-32. According to NMFS,
however, the available science only enables it to offer these predictions at such a general,
qualitative, and relatively speculative level. See SAR 13231-33. Due to the agency’s stated
inability to quantify these predicted impacts — a contention that Oceana fails to refute with
citation to any overlooked scientific evidence — the Court finds that the agency’s consideration
of climate change impacts in the 2012 BiOp satisfies NMFS’ burden to “use the best scientific
and commercial data available.” 16 U.S.C. § 1536(a)(2).
Oceana cites cases in which courts have rejected an agency’s contention that
consideration of climate change was unwarranted because of the uncertain state of the available
data, see Oceana MSJ at 42-43, but those cases — unlike this one — involved wholesale failures
to even address the issue. See Center for Biological Diversity v. Salazar, 804 F. Supp. 2d 987,
34
1008 (D. Ariz. 2011) (“The BiOp does not analyze or even mention climate change.”); South
Yuba River Citizens League v. Nat’l Marine Fisheries Serv., 723 F. Supp. 2d 1247, 1274 (E.D.
Cal. 2010) (“The court cannot conclude that global warming’s potential impacts are so slight that
NMFS could ignore them without discussion.”); Pacific Coast Federation Fishermen’s Ass’ns v.
Gutierrez, 606 F. Supp. 2d 1122, 1184 (E.D. Cal. 2008) (“The BiOp does not discuss this global
climate change data or mention that NMFS, at a minimum, considered this data.”); Nat’l
Resources Defense Council v. Kempthorne, 506 F. Supp. 2d 322, 370 (E.D. Cal. 2007) (“FWS
acted arbitrarily and capriciously by failing to address the issue of climate change in the BiOp.
This absence of any discussion in the BiOp of how to deal with any climate change is a failure to
analyze a potentially ‘important aspect of the problem.’”). Here, by contrast, NMFS has offered
qualitative predictions based on the available data, which it says it has considered in evaluating
loggerheads’ survival and recovery prospects. Oceana does not explain how climate change-
related data might have been more thoroughly evaluated with respect to the jeopardy analysis.
Another aspect of Oceana’s climate change argument is its complaint that NMFS
limits its definition of the scope of the action under review (that is, the continued operation of the
Scallop Fishery) to a ten-year time frame. It contends that “where the agency expects to see
some effects of climate change on a ‘century scale,’ the decision to restrict the analysis to 10
years and assume no significant change during that period makes no sense.” Oceana MSJ at 44
(quoting SAR 13157). But as the Court already has described, the agency adequately explained
that due to the lack of precise data — including the lack of long-term data — NMFS cannot offer
more than general predictions at this point regarding the potential impact of climate change on
loggerheads. Even though NMFS articulated its conclusion regarding climate change in the
context of a ten-year time frame, Section 5 of the BiOp nonetheless discusses the long-term
35
impact of climate change, and the agency makes clear why it lacks the capability to quantify the
magnitude of climate change impacts on loggerheads in the long term. Oceana also argues that
the ten-year scope of review regarding climate change is discordant with NMFS’ reliance on the
PVA model’s prediction of population trajectories out to 100 years. See Oceana MSJ at 43. But
there is no necessary discord in using the PVA’s predictions at the 100-year mark to inform a
jeopardy analysis that, at least with respect to climate change, is expressed by reference to
predicted effects within the next ten years. As already explained, the Court finds that the BiOp
provides sufficient discussion of the anticipated long-term effects of climate change, within the
constraints of available data. The Court therefore concludes that NMFS adequately discharged
its obligation to consider climate change in the 2012 BiOp.
D. Incidental Take Statement
Finally, Oceana challenges the Incidental Take Statement issued as a part of the
2012 BiOp. As explained supra at 4-5, an ITS is required where, as here, NMFS concludes that
agency action will not jeopardize a species’ continued existence, yet will cause some takes
incidental to that action. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i); Arizona Cattle Growers’
Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1241-42 (9th Cir. 2001).
The ITS sets forth the permissible “impact on the species” as expressed by the “incidental take”
of loggerheads in the NWA DPS. See 16 U.S.C. § 1536(b)(4). In the 2012 BiOp, NMFS
estimated that 161 loggerheads would be taken by dredge gear annually, with another 140 taken
by trawl gear each year. In the ITS — located in Section 10 of the 2012 BiOp — those numbers
constitute limits on the number of loggerhead takes that can occur in the Fishery annually. The
ITS thus provides a safe harbor that exempts the specified amount of incidental take from the
take prohibition set forth in Section 9 of the ESA. See 16 U.S.C. § 1536(o)(2). If the allowable
36
level of incidental take is exceeded, however, the agency is “required” to reinitiate Section 7
consultation “immediately.” 50 C.F.R. §§ 402.14(i)(4), 402.16(a). Oceana challenges the
adequacy of the ITS with respect to both dredge and trawl fishing, and specifically maintains that
due to inadequate monitoring of fishing activities in the Scallop Fishery, the take limits
established in the ITS do not serve as meaningful triggers for the reinitiation of consultation.
The Court addresses each of these challenges in turn.
1. Dredge
A scallop dredge attaches behind a commercial fishing vehicle and essentially
consists of a toothed bar on a frame with an attached bag on the backside of it. Dredges vary in
size, with a “standard 15-dredge frame weigh[ing] approximately 4,500 pounds.” SAR 13235.
As the frame drags along near to the sea bottom, the toothed bar dislodges scallops that then
collect in the bag. SAR 13234. The dredge bag is made of “metal rings with twine mesh on the
top and, sometimes, chafing gear on the bottom.” Id. The ITS anticipates “the annual average
take of up to 161 [loggerheads] in dredge gear, of which up to 129 per year may be lethal in 2012
and up to 46 per year may be lethal in 2013 and beyond.” SAR 13295.
To determine whether this incidental take limit of 161 turtles annually has been
exceeded, NMFS states that it will employ a “combination” of two monitoring approaches: a
“dredge hour surrogate as a measure of actual takes,” and “the methods to estimate sea
turtle/dredge interactions as described in [a 2011 scientific paper authored by Kimberly T.
Murray].” SAR 13302. Both of these methods are aimed at addressing the inadequacy of
“observer coverage” as a means of monitoring loggerhead takes. Traditionally, NMFS-trained
observers have accompanied fishing vessels on some of their outings, and these observers record
loggerhead takes when they occur. See SAR 13301. Since implementing gear modifications to
37
mitigate harm to loggerheads interacting with dredge gear, however, many loggerhead takes are
now unobservable, as the turtles are deflected away from the dredge and therefore are not
captured in the dredge bag and hauled up onto the vessel. 17
The two major modifications to dredge gear are (1) Turtle Deflector Dredges
(“TDDs”) and (2) chain mats. A TDD is “designed to deflect sea turtles over the dredge rather
than underneath it,” because “keeping sea turtles from going underneath the dredge and keeping
them out of the dredge bag is expected to reduce the severity of some interactions that occur.”
SAR 13252; see also SAR 13132. Chain mats provide a similar benefit by “act[ing] as a barrier
to prevent the capture of [sea turtles] in the ring of the bag.” SAR 13235. While the “gear
modifications are not expected to reduce the actual number of sea turtle interactions with scallop
dredge gear,” SAR 13134, “the severity of sea turtle injuries as a result of scallop dredge
interactions will be less if the turtle is interacting with a TDD or dredge equipped with chain
mats as compared to a standard dredge.” SAR 13249; see also SAR 13252. Both modifications
are required throughout the majority of the Fishery during the months when loggerhead presence
peaks. See SAR 13132 (TDDs); SAR 13235 (chain mats).
Although these technologies are meant to benefit loggerheads, they make the
observation of loggerhead takes more difficult. As a consequence, NMFS plans to rely primarily
on a monitoring “surrogate” to measure when the numerical take limit of 161 turtles has been
reached. 18 The surrogate chosen by NMFS is the “dredge hour” — that is, the number of hours
spent dredge fishing. NMFS will consider the ITS “exceeded,” thus re-triggering consultation, if
17
Of course, even when a turtle is merely deflected away from a dredge, the
interaction with the dredge gear still constitutes a “take” under the ESA. See 16 U.S.C.
§ 1532(19).
18
For the limited dredging that occurs without the use of TDDs or chain mats, the
Fishery will continue to rely on observer coverage. SAR 13301.
38
the “two-year running average of dredge hours in Mid-Atlantic waters . . . during the period of
May through November of any scallop fishing year is greater than the average of the total
number of dredge hours from Mid-Atlantic waters . . . during the same period of 2007 and
2008.” SAR 13302. The two-year running average for 2007-2008 was 252,323 hours. SAR
11599. The calculation and comparison of the two-year running averages will be performed on
an annual basis. SAR 13297.
Oceana challenges two aspects of the ITS with respect to dredge fishing, arguing
that (1) NMFS’ use of a surrogate for monitoring incidental takes is arbitrary and capricious
because there are viable options for direct monitoring of these takes; and that (2) even if
employing a surrogate is not unlawful, NMFS’ choice of the dredge hour surrogate in particular
is arbitrary and capricious, because the method fails to serve as a meaningful trigger for
reconsultation. Oceana MSJ at 33-36; Oceana Reply at 18-26.
The Court first addresses whether NMFS’ decision to use a surrogate — rather
than to directly monitor loggerhead takes — is arbitrary and capricious. Oceana maintains that
two alternative methods could feasibly be employed to monitor takes, despite the observation
difficulties caused by the implementation of TDDs and chain mats. Oceana argues that NMFS
could rely upon either underwater video monitoring, or the estimation methodologies set forth in
the 2011 paper authored by Murray. Oceana MSJ at 34-35. 19 According to Oceana, NMFS
failed to explain why the dredge hour surrogate was necessary in light of these methods, which,
according to Oceana, are available and superior to any surrogate.
19
As the Court noted supra at 37, NMFS claims to use the dredge hour surrogate in
combination with the estimation method developed in the Murray (2011) paper. But the ITS
seems to indicate that any plans to employ the so-called “Murray framework” on an ongoing
basis are merely speculative. See SAR 13302. Accordingly, the Court focuses on NMFS’
reliance on the dredge hour surrogate as its mechanism for monitoring loggerhead takes
attributable to dredge gear.
39
The Court disagrees with Oceana. NMFS explained that the Fishery’s gear
modifications obscure observers’ ability to count actual takes, making observer coverage “less
effective.” SAR 13301. In light of this obscurity, NMFS considered alternatives for monitoring
takes, including underwater video monitoring and removing chain mats from some hauls. Id.
With respect to underwater video monitoring, NMFS determined, “[b]ased on the information
currently available as well as the hardships experienced during previous use of this technology in
studies of sea turtle interactions with scallop dredge gear,” that its use for monitoring “remains
infeasible.” Id. Likewise, NMFS concluded that because “removal of the [chain mats] will
likely increase the number of serious injuries and mortalities of sea turtles,” using this method to
bolster observer coverage is not reasonable. Id. NMFS also considered using the Murray (2011)
framework on its own — rather than in combination with the dredge hour surrogate — to
numerically estimate takes, but reasonably (albeit briefly) explained that the approach has “a
number of caveats,” particularly given certain limitations on the availability of data needed by
the model. See SAR 13302.
Oceana contends that NMFS’ rejection of the video monitoring option “is not
based on current or complete information regarding the practicality of underwater camera use.”
Oceana MSJ at 34. Oceana points out that NMFS appears to have based its decision on the
authority of a single intra-agency memorandum issued in 2007, which, Oceana says, is both
unreliable and outdated. See id. And Oceana cites parts of the record indicating that researchers
have actually performed studies employing video monitoring on dredge gear, and that NMFS has
relied on these studies to inform some of its decision making. See id. at 34-35; see also id. at 35
n.23 (citing studies in the record involving the use of video monitoring on scallop dredges, and
citing YouTube videos taken by cameras mounted on dredges). The fact that video monitoring
40
has been used in some scientific studies, however, does not refute NMFS’ assessment that it is
not feasible to use underwater video as the method for monitoring dredge interactions in the
Fishery. As stated in the 2007 memorandum cited in the BiOp, the use of video in various
studies has been conducted not under normal fishing conditions, but under preferable weather,
sea state, and lighting conditions. See AR 87-88. Oceana asserts, however, that advances in
technology since 2007 render NMFS’ rationale for rejecting video monitoring outdated. See
Oceana MSJ at 34-35; Oceana Reply at 24 (“Current capabilities of underwater cameras were not
discussed in the ITS, and it is beyond dispute that technology has dramatically advanced since
then.”). But Oceana does not back up this contention with support specific to the question at
hand: whether video monitoring could feasibly serve as the primary means of monitoring dredge
takes. Moreover, the Court will defer to an agency’s judgment on a technical matter such as this
one, provided that the agency has explained its reasoning. See Communities for a Better
Environment v. EPA, 748 F.3d at 336. Here, NMFS has shown that it considered the option of
employing underwater video monitoring, yet reasonably rejected its feasibility. The Court will
not upset NMFS’ decision on this point.
Nor is the Court persuaded that NMFS’ rejection of the Murray estimation
framework was arbitrary and capricious. Oceana’s brief argument on this point does not
demonstrate that this method by itself feasibly could be used to monitor dredge takes on an
ongoing basis. See Oceana MSJ at 35-36. The agency considered this option and decided
against employing it as its primary means of monitoring loggerhead takes in the dredge fishery,
and the Court defers to this judgment.
In sum, the Court concludes that NMFS’ decision to monitor dredge takes by way
of a surrogate is not arbitrary or capricious. What remains, then, is Oceana’s challenge to the
41
particular monitoring surrogate chosen by NMFS: the number of hours spent dredge fishing in
Mid-Atlantic waters from May through November. Oceana maintains that the dredge hour
surrogate fails to function in a manner that will gives effect to the ITS’ dredge take limit of 161
loggerheads. See Oceana MSJ at 36-38; Oceana Reply at 24-26.
The provision of a monitoring mechanism in an ITS enables the take limit to
operate as “a ‘trigger’ that, when reached, results in an unacceptable level of incidental take,
invalidating the safe harbor provision, and requiring the parties to re-initiate consultation.”
Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d at
1249; see also Wild Fish Conservancy v. Salazar, 628 F.3d at 532 (“[A] numerical cap is useful
only insofar as the action agency is capable of quantifying take to determine when the trigger has
been met.”). According to NMFS, the theory behind the dredge hour monitoring surrogate is
simple — the more hours spent dredge fishing, the more turtles will interact with dredge gear.
See SAR 13296, 13299. NMFS contends that by counting dredge hours and comparing them, on
an annual basis, against the average number of dredge hours fished in 2007 and 2008, the agency
has implemented a monitoring system capable of functioning as a trigger to determine when the
dredge take limit of 161 turtles has been exceeded. See SAR 13302. And as already noted, if the
allowable level of incidental take is exceeded, NMFS is “required” to reinitiate Section 7
consultation “immediately.” 50 C.F.R. §§ 402.14(i)(4), 402.16(a).
But the Incidental Take Statement here simply fails to explain how 252,323
dredge hours equals 161 takes. Instead, NMFS explains that it chose this particular number of
dredge hours because 2007 and 2008 “are the first two years after chain mats were required and
the last two years included in the Murray [2011] analysis,” from which NMFS drew its estimate
of 161 dredge gear takes. SAR 13302; see also SAR 13245 (describing the Murray study in
42
further detail). As Oceana points out, however, recording the fact that an hour of dredge fishing
has taken place is not automatically equivalent to observing the occurrence or non-occurrence of
a specific number of loggerhead takes. In actuality, any number of takes might occur during a
given time period spent dredge fishing. See Oceana MSJ at 38 n.24. A surrogate is only as
useful as its fit with the actual object of study for which the surrogate is substituting. See Wild
Fish Conservancy v. Salazar, 628 F.3d at 531 (“If a surrogate is used, the agency must articulate
a rational connection between the surrogate and the taking of the species.”). The Court
concludes that the 2012 BiOp fails to sufficiently explain how the specific number of dredge
hours that NMFS has chosen as a monitoring surrogate adequately serves as a proxy for the
numerical take limit of 161 loggerheads. As a consequence, the Court will remand the ITS to
NMFS so that it can either more clearly explain the connection, or, if unable to do so, so that it
can choose a number of hours that does align with the numerical take limit. In doing so, the
agency must 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. 20
2. Trawl
Somewhat similar to a dredge, trawl gear consists of a wide-mouthed net that
drags behind a vessel. While the trawl component of the Fishery consists of only eleven vessels,
SAR 13131, the ITS still estimates “the annual average take of up to 140 individuals in trawl
gear, of which up to 66 per year may be lethal.” SAR 13295. To monitor this take limit, NMFS
20
Although the Court finds insufficient NMFS’ explanation regarding how its
surrogate, as set forth in the BiOp, can function as a trigger with respect to the dredge take limit,
the Court rejects Oceana’s broader argument that the use of dredge hours as a surrogate for
loggerhead takes necessarily is arbitrary and capricious because it is “co-extensive with the
scope of the Fishery’s dredge operation.” See Oceana MSJ at 37-38; see also Oceana Reply at
23-25.
43
will “continue to use observer coverage as the primary means of collecting incidental take
information.” SAR 13302. This is because, “[u]nlike for dredges, chain mats are not required on
trawl gear. Therefore if a turtle were unable to avoid an oncoming trawl, it would likely be
captured in the trawl and, when the gear was hauled to the vessel, an observer could spot and
record the incidental take.” NMFS Opp. & MSJ at 39-40. The agency explains that it created
the numerical take limit of 140 turtles “using a statistical estimate that is not feasible to conduct
on an annual basis . . . due to the data needs; length of time to develop, review, and finalize the
estimates; and methodology used.” SAR 13303. Consequently, NMFS proposes re-estimating
takes by trawl gear “approximately every five years.” Id. Although not explicitly stated in the
BiOp, NMFS presumably will compare this re-estimate against the 140 turtle take limit to
determine whether that limit has been exceeded during each of the five years preceding
calculation of the estimate.
Oceana contends that re-estimating trawl takes on a five-year schedule rather than
more frequently renders the monitoring mechanism ineffective. See Oceana MSJ at 38-39;
Oceana Reply at 21. Oceana emphasizes that NMFS’ track record over the past decade indicates
that new BiOps are issued much more frequently than every five years, and therefore it is
unlikely that the take limit actually will be monitored “during the life of the BiOp.” Oceana
Reply at 21; see also Oceana MSJ at 39 (“The trawl-gear component of the Fishery can expect to
operate with impunity because it is unlikely that any measure of its compliance would be taken
before a new BiOp issues . . . .”). Oceana “believes that such estimation could reasonably be
done on a monthly basis utilizing monthly observer reports, but should be done at least on an
annual basis to ensure that the limit has not been exceeded.” Oceana Reply at 21 n.21. Oceana
does not, however, support this belief with citation to any evidence or authority. Nor does it
44
request the placement of more observers on trawl vessels, and the parties’ briefing does not
address whether such a solution would be feasible.
The Court shares Oceana’s concerns regarding the effectiveness of a monitoring
mechanism that is only able to assess every five years whether an annual take limit has been
exceeded. NMFS is required under its own regulations to reinitiate Section 7 consultation
“immediately” if “during the course of the action the amount or extent of incidental taking . . . is
exceeded.” 50 C.F.R. § 402.14(i)(4); see also id. § 402.16(a). Thus, as Oceana argues, “there
may be no recourse even if the scallop trawl take exceeds the estimate for five straight years.”
Oceana Reply at 21. Nonetheless, the Court is unwilling to conclude at this point that NMFS’
trawl take monitoring mechanism necessarily is arbitrary and capricious for this reason. The
agency’s primary explanation for the five-year estimation period — a lack of data — may result
from constraints over which NMFS has little to no control. In particular, the BiOp suggests that
the lack of data results from a dearth of observer coverage, see SAR 13135, 13231, 13238, a
point also made in the agency’s briefing, NMFS Opp. & MSJ at 39-40, and reiterated by counsel
for NMFS at oral argument. The five-year timetable may reflect very real limitations on NMFS’
data collection capabilities; consequently, it is possible that NMFS’ monitoring system for trawl
takes represents the best available option for measuring trawl takes in the Fishery.
But the BiOp’s terse treatment of trawl take monitoring makes it difficult for the
Court to discern NMFS’ rationale in this regard. As noted, the long gap in measuring trawl takes
stands in marked tension with the regulatory requirement that NMFS reinitiate Section 7
consultation “immediately” if “during the course of the action the amount or extent of incidental
taking . . . is exceeded.” 50 C.F.R. § 402.14(i)(4). The single paragraph that NMFS devotes in
the BiOp to explaining its monitoring choice is insufficient to allay this concern. Nor does the
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paragraph addressing trawl take monitoring discuss in any detail the nature of NMFS’ statistical
model and its data needs. NMFS also fails to address whether any monitoring alternatives exist
that might be operable on a shorter timetable. Given these serious uncertainties about the
effectiveness of the five-year monitoring framework, the Court must remand to the agency so
that it can either provide a more thorough explanation of its choice, or, if unable to do so, reach a
different conclusion. Cf. Delta Air Lines, Inc. v. Export-Import Bank, 718 F.3d 974, 978 (D.C.
Cir. 2013). 21
V. CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part each
party’s motion for summary judgment and it will remand this matter to NMFS for the limited
purpose of addressing the deficiencies in the Incidental Take Statement, as identified in this
Opinion. The Court also directs the parties to meet and confer regarding an appropriate schedule
for NMFS to follow in its revision of the ITS.
The Court rejects Oceana’s argument that the BiOp should be vacated. Vacatur of
the BiOp or even just of the ITS would not be an appropriate remedy in this case. “The
appropriateness of vacating an inadequately explained agency action depends on whether (1) the
agency’s decision is so deficient as to raise serious doubts whether the agency can adequately
justify its decision at all; and (2) vacatur would be seriously disruptive or costly.” Northern Air
Cargo v. U.S. Postal Serv., 674 F.3d 852, 860-61 (D.C. Cir. 2012). As the Court’s analysis of
the ITS indicates, NMFS may be able to justify its choices regarding the monitoring of dredge
21
In its briefing and at oral argument, NMFS suggested that monthly reporting by
observers on trawl vessels may provide a mechanism for more timely monitoring, see NMFS
Opp. & MSJ at 40, but the BiOp itself does not explain how this reporting system might play any
role in serving as the mechanism for determining when the take limit has been exceeded. Nor is
it clear to the Court how periodic reporting could lead to a finding that the trawl take limit has
been exceeded, given NMFS’ description of the paucity of its sample size. See id.46
and trawl takes through more thorough and informative explanation. Moreover, because the
Court has concluded that the BiOp’s no-jeopardy determination and its associated take limits are
not arbitrary and capricious, the Scallop Fishery will continue to operate under these limits. This
means that NMFS must continue to use its existing monitoring tools in the interim even while it
revises the ITS. An appropriate Order accompanies this Opinion.
SO ORDERED.
/s/_______________________
PAUL L. FRIEDMAN
United States District Judge
DATE: December 17, 2014
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