Oceana, Inc. v. Bryson ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
OCEANA, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 12-0041 (PLF)
)
WILBUR ROSS, )
United States Secretary of Commerce, et al., )
)
Defendants. )
_________________________________________ )
OPINION
This matter comes before the Court on defendants’ notice that the National
Marine Fisheries Service has revised its Incidental Take Statement, thus completing its remand
in response to the Court’s August 31, 2015 Opinion and Order. Plaintiff Oceana, Inc. filed a
response to the notice, challenging the adequacy of the agency’s revisions on remand, and the
parties proceeded to brief the matter. Upon consideration of the revised Incidental Take
Statement, the parties’ briefs and representations at oral argument, the relevant legal authorities,
and the entire record in this case, the Court will enter final judgment in this case for the
defendants. 1
1
In reaching its decision, the Court has reviewed the following filings, including
the exhibits attached thereto: Notice of Lodging Joint Appendix of Administrative Record
Material (“AR”) [Dkt. No. 46]; Defendants’ Notice of Completion of Remand (“Notice of
Completion”) [Dkt. No. 55]; Defendants’ Notice of Filing Supplemental Administrative Record
(“SAR”) [Dkt. No. 56]; Oceana’s Response to Notice of Completion of Remand (“Oceana
Response”) [Dkt. No. 58]; Defendants’ Response in Support of Notice of Completion of Remand
(“NMFS Response”) [Dkt. No. 59]; Oceana’s Reply to Notice of Completion of Remand
(“Oceana Reply”) [Dkt. No. 60]; Defendant’s Corrected Notice of Reinitiation of Consultation
I. STATUTORY AND REGULATORY FRAMEWORK
In its 2015 Opinion, the Court described the relevant statutory and regulatory
framework and recounted the factual and procedural history of this case. See Oceana, Inc. v.
Pritzker, 125 F. Supp. 3d 232, 235-39 (D.D.C. 2015). The Court thus recites here only those
matters relevant to resolving the parties’ instant dispute.
The Endangered Species Act (“ESA”) of 1973, as amended, 16 U.S.C.
§ 1531 et seq., created a comprehensive legislative and regulatory scheme that seeks to preserve
and protect species of animals facing man-made threats to their continued existence. See Lujan
v. Defs. of Wildlife, 504 U.S. 555, 558 (1992); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180
(1978). As part of this scheme, Section 7 of the ESA sets forth “the steps that federal agencies
must take to ensure that their actions do not jeopardize endangered wildlife and flora.” See Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 652 (2007). In particular,
Section 7(a)(2) requires that each federal agency, “in consultation with and with the assistance of
[the National Marine Fisheries Service (“NMFS”) or the U.S. Fish and Wildlife Service
(“FWS”)], insure that any action authorized, funded, or carried out by such agency . . . is not
likely to jeopardize the continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of habitat of such species . . . .” See 16 U.S.C.
2
§ 1536(a)(2).
(“Notice of Reinitiation”) [Dkt. No. 62]; and Oceana’s Response and Opposition to Notice of
Reinitiation of Consultation (“Oceana Resp. to Notice”) [Dkt. No. 63].
2
FWS and NMFS jointly administer the ESA. See 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. See Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. at 651. 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 Fed’n v. Nat’l Marine Fisheries Serv., 524
F.3d 917, 924 (9th Cir. 2008). In this case, NMFS serves as both the “action agency” and the
2
The Section 7 consultation process culminates in the issuance of a Biological
Opinion, or BiOp, in which the consulting agency sets forth its “opinion, and a summary of the
information on which the opinion is based, detailing how the agency action affects the species or
its critical habitat.” See 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h). Where the
consulting agency concludes that the agency action is not likely to jeopardize the continued
existence of the species but is nonetheless likely to result in some “incidental take,” the BiOp
must include an Incidental Take Statement (“ITS”) specifying the permissible extent of this
impact on the species. See 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). The ITS must set
forth conditions that include “reasonable and prudent measures” considered “necessary or
appropriate to minimize” the impact of any incidental takings. See 50 C.F.R.
§ 402.14(i)(1)(ii). 3 And if the amount or extent of incidental taking ever exceeds that specified
in the ITS, the action agency must reinitiate Section 7 consultation “immediately.” See 50
C.F.R. § 402.14(i)(4); see also 50 C.F.R. § 402.16(a). As a result, incidental take monitoring is a
key component of any ITS – without the ability to monitor incidental takes, these regulatory
requirements become meaningless.
“consulting agency.” NMFS’ Sustainable Fisheries Division of its Northeast Regional Office
administers the fisheries management program governing the seven fisheries, which makes it the
action agency here. Am. Compl. ¶ 22; see AR 52237, 52243. The Protected Resources Division
of the same Regional Office served as the consulting agency and authored the Biological
Opinion. Am. Compl. ¶ 21; see AR 52337, 52243.
3
As defined by the ESA, to “take” means “to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” See 16
U.S.C. § 1532(19). Although Section 9 of the ESA generally prohibits any taking of a listed
species, see 16 U.S.C. § 1538(a)(1), incidental takes are permissible if they occur in accordance
with the conditions set forth in an ITS, see 50 C.F.R. § 402.14(i)(5).
3
II. FACTUAL AND PROCEDURAL BACKGROUND
At issue in the present case is a Biological Opinion (“BiOp”), issued by NMFS on
December 16, 2013, that addresses the impact of seven fisheries on the Northwest Atlantic
Distinct Population Segment (“NWA DPS”) of loggerhead sea turtles. Oceana, Inc. (“Oceana”),
an international advocacy group focused on ocean conservation, filed a complaint challenging
the BiOp for a variety of reasons. See Amended Complaint [Dkt. No. 33]. On August 31, 2015,
this Court issued an opinion granting in part and denying in part the parties’ cross-motions for
summary judgment and, in turn, remanding the case to the agency for the limited purpose of
addressing two deficiencies in the 2013 BiOp. See Oceana, Inc. v. Pritzker, 125 F. Supp. 3d
at 252, 255.
First, the Court remanded with regard to the BiOp’s treatment of climate change
in its jeopardy analysis. See Oceana, Inc. v. Pritzker, 125 F. Supp. 3d at 250-52. The Court
directed the agency to “more clearly explain the connection between the record evidence of
present and short-term effects caused by climate change, and the agency’s conclusion that
climate change will not result in any significant effects on the species in the short-term future.”
Id. at 252. The BiOp had “discount[ed] the likelihood of short-term effects by maintaining that
climate change is occurring on a ‘century scale.’” Id. at 251 (citing AR 52497). On a high-level,
the Court found that this explanation “failed to take full account of the record evidence of short-
term effects caused by climate change” because the BiOp described “clear evidence that climate
change is exerting significant environmental impacts right now, as well as evidence that these
impacts will persist or accelerate in the immediately approaching decades.” Id. at 252.
Specifically, the Court took issue with the agency’s conclusions in the BiOp
pertaining to warming temperatures and rising sea levels. The record included evidence that
temperature rise was already occurring and would “persist or accelerate in the immediately
4
approaching decades.” Oceana, Inc. v. Pritzker, 125 F. Supp. 3d at 252 (citing to places in the
administrative record that described both recent and upcoming temperature rise). NMFS
maintained that the “effects of this [temperature] increase are not known.” Id. Thus, the Court
held that the agency had failed to sufficiently explain the “link between the substantial evidence
of significant short-term climate change effects” and “the agency’s ultimate conclusion that any
short-term impacts on loggerheads will be negligible.” Id. Similarly, the BiOp included
evidence of sea-level rise, which is “expected to result in increased erosion rates along nesting
beaches,” including a “620-mile ‘hot spot’ along the East Coast” where sea levels are “rising
three to four times faster than the global average.” Id. (citing AR 32563, 52438). Again, the
Court said that this evidence required the agency to “provide further explanation” for its
“conclusion that climate change will not result in any significant effects on [loggerheads] in the
short-term future.” Id.
The second issue that the Court instructed NMFS to address on remand was the
“sufficiency of its monitoring mechanisms.” Oceana, Inc. v. Pritzker, 125 F. Supp. 3d at 255.
The BiOp’s ITS set forth the permissible “impact on the species,” estimating that, “on an annual
basis in the seven fisheries, 269 loggerheads will be taken by gillnet gear . . . 213 loggerheads
will be taken by bottom trawl gear . . . and up to one loggerhead will be taken by trap/pot
gear . . . .” Id. at 253 (citing AR 52543). While the ITS established annual numerical take
limits, the monitoring mechanism stated that NMFS would produce a new loggerhead take
estimate every five years. Id. (citing AR 52548). Without holding that a five-year monitoring
cycle is per se arbitrary and capricious, the Court noted that it was “not clear how the agency can
discharge its responsibility to reinitiate Section 7 consultation immediately once an annual take
limit has been exceeded, when take estimates are produced no more frequently than every five
5
years,” and therefore, “this dissonance places an onus on the agency to adequately explain the
reasonableness of its approach.” Id. The Court specifically noted that the agency’s defense of its
five-year monitoring mechanism – that it was constrained by data needs – “leaves far too much
unexplained.” Id. The Court added that NMFS neglected to address why it could not simply
increase observer coverage in order to collect more data to develop take estimates – a
“commonsense solution to its data problems” – given that the record indicated that “observer
coverage is the primary means of collecting incidental take information.” Id. at 253-54
(alterations omitted) (citing AR 52548). The Court also asked NMFS to better explain how the
monthly and annual take reports described in the ITS could be useful in determining whether an
annual take limit had been exceeded when the agency said that it needs five years’ worth of data
to estimate annual take levels. Id. at 254.
NMFS revised the BiOp and now contends that it has completed its required task
on remand by more thoroughly addressing the deficiencies that the Court had identified. See
Notice of Completion. Oceana filed a response arguing that the revised BiOp remains defective
and, as a result, NMFS has failed to comply with the Court’s directives on remand. See Oceana
Response.
III. LEGAL STANDARD
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). “[W]hen a
party seeks review of agency action under the APA . . . the district judge sits as an appellate
tribunal.” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (quoting Am. Bioscience,
Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). The general standard for summary
judgment set forth in Rule 56 of the Federal Rules of Civil Procedure does not apply to a review
6
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 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
UPMC Braddock v. Harris, 934 F. Supp. 2d 238, 245 (D.D.C. 2013); Cottage Health Sys. v.
Sebelius, 631 F. Supp. 2d 80, 89-90 (D.D.C. 2009). In other words, “[t]he entire case on review
is a question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C.
Cir. 1993).
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.’” Cmtys. for a Better Env’t 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.”). “[A] court is not to substitute its judgment for that of the
agency” if the agency “examine[d] the relevant data and “articulate[d] a satisfactory explanation
for its action including a rational connection between the facts found and the choice made.’”
Airmotive Eng’g Corp. v. Fed. Aviation Admin., 882 F.3d 1157, 1159 (D.C. Cir. 2018) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (internal
quotation marks omitted).
7
Furthermore, a court will “give an extreme degree of deference to the agency
when it is evaluating scientific data within its technical expertise.” Cmtys. for a Better Env’t 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). A court must remain mindful that it reviews an agency’s
scientific judgments “not as the chemist, biologist, or statistician that [the court is] qualified
neither by training nor experience to be,” and thus it may exercise only the “narrowly defined
duty of holding agencies to certain minimal standards of rationality.” Troy Corp. v. Browner,
120 F.3d 277, 283 (D.C. Cir. 1997) (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 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).
8
In addition, where an administrative agency has been ordered to reconsider or
explain an earlier decision on remand, as is the case here, the agency has an “affirmative duty to
respond to the specific issues remanded” by the Court. See Defs. of Wildlife v. Kempthorne,
No. 04-1230, 2006 WL 2844232, at *12 (D.D.C. Sept. 29, 2006) (first citing Tex Tin Corp. v.
Envtl. Prot. Agency, 992 F.2d 353, 355 (D.C. Cir. 1993); then citing Ass’n of Civilian
Technicians v. Fed. Labor Relations Auth., 370 F.3d 1214, 1223 (D.C. Cir. 2004)). The agency
“retains some discretion to determine how it ‘may best proceed to develop the needed evidence
and how its prior decision should be modified in light of such evidence as develops.’” See id.
at *11 (quoting Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 423 U.S. 326, 333-34
(1976)). And the remanding court “may not dictate to the agency the ‘methods, procedures, [or]
time dimension,’ for its reconsideration.” See id. (alteration in original) (quoting SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947)). Nor may the court demand that an agency reach any
particular result. See id. (citations omitted). But the Court retains jurisdiction to enforce the
terms of its remand order where the agency does fail to adequately respond. See id. at *12
(citing Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v.
Occupational Safety & Health Admin., 976 F.2d 749, 750 (D.C. Cir. 1992)).
IV. ANALYSIS
A. Notice of Reinitiation of Consultation
The Court will first address a threshold issue raised about mootness. On October
20, 2017, NMFS filed a notice of reinitiation of consultation. See Notice of Reinitiation. In this
notice, NMFS explained that the agency had reinitiated consultation (1) based on new
information indicating that the number of North Atlantic right whales had been in decline since
2010, and (2) because the reinitiation trigger in the 2013 BiOp for large whales had been
9
exceeded. See id. at 3. NMFS said that during this reinitiated consultation process it would also
review new information on other listed species that had become available since the 2013 BiOp,
including information regarding sea turtles and impacts from the seven fisheries. See id. In its
notice, NMFS explained that once the reinitiated consultation was complete, the new BiOp
would supersede the 2013 BiOp and render moot any remaining claims challenging that opinion.
See id.
Oceana filed a response to the agency’s notice. See Oceana Resp. to Notice.
Oceana noted that NMFS had neither withdrawn the 2013 BiOp nor suspended the operation of
the seven fisheries while the agency reinitiated consultation. See id. at 3-4. It argued, therefore,
that the reinitiation of consultation did not render Oceana’s litigation challenging the 2013 BiOp
moot. See id. But Oceana’s argument misunderstands the agency’s representations in its notice.
NMFS has not argued that the case is currently moot; only that it would become moot once a
new, superseding BiOp is issued. See Notice of Reinitiation at 3. The Court has not received
any notice that the NMFS has completed its reinitiation of consultation and issued a new BiOp
that would supersede the 2013 BiOp. The parties are thus in agreement that, at present, this case
is not moot. Issues remain in this case for the Court to resolve – particularly, whether NMFS has
responded adequately to the specific issues previously remanded by the Court.
B. Short-Term Effects of Climate Change
When the Court remanded this matter to the agency, it instructed the agency to
“more clearly explain the connection between the record evidence of present and short-term
effects caused by climate change, and the agency’s conclusion that climate change will not result
in any significant effects on the species in the short-term future.” Oceana, Inc. v. Pritzker, 125 F.
Supp. 3d at 252. The Court held that the agency had not provided a reasoned basis for
10
concluding that climate-related impacts are unlikely to have a significant effect on the status of
sea turtles in the short-term future. See id. The reasoning provided by the agency – that the
effects of climate change will be seen primarily on a century scale – seemed to ignore evidence
in the record of present and short-term effects caused by climate change. Id. In reaching this
conclusion, the Court specifically referenced the record evidence of either present or imminent
temperature rise, increased magnitude and frequency of ecosystem changes, and sea-level rise.
See id. In its Decision Memorandum, issued in response to this Court’s remand order, NMFS
provided additional reasoning to support its conclusion that climate change will not result in any
significant effects on the species in the short-term future. SAR 52713-15. NMFS says that this
explanation satisfies its obligations on remand. Notice of Completion at 2-3; NMFS Response at
4-8. Oceana disagrees. See Oceana Response at 9-15; Oceana Reply at 2-5.
1. The Agency’s Clarification of its Conclusion About Short-Term Effects from Climate
Change on Sea Turtles
Oceana maintains that, on remand, the agency has still failed to account for the
effects of climate change reflected in the record. See Oceana Response at 9-10; Oceana Reply
at 3. Oceana cites to record evidence of past and expected short-term climate change, generally.
See Oceana Response at 10. And it cites to record evidence that discusses the expected impacts
from climate change on sea turtles, specifically. See id. at 9-10. NMFS does not dispute the
record evidence that Oceana cites, arguing instead that it considered the evidence in the
administrative record and concluded that in the short-term, effects from climate change will not
have a significant negative effect on sea turtles in the action area. See NMFS Response at 8.
The agency’s Decision Memorandum, issued on March 10, 2016, in response to
this Court’s remand, clarifies that when NMFS considered the effects of climate change, it
11
analyzed whether the “past and predicted future effects” of climate change would have a
significant effect on sea turtles, specifically. SAR 52713. The agency considered the evidence
of past and predicted temperature rise, for instance. See id. It noted that in the short-term – the
ten-year time period that the 2013 BiOp covered – sea surface temperatures are expected to rise
less than one degree Celsius. See id; see also AR 52437. The 2013 BiOp discussed the expected
impacts from temperature rise on sea turtles, generally, such as a potential northward shift in the
seasonal distribution of sea turtles in the action area, or a potential change in the foraging
behavior of sea turtles at some point. See AR 52438. But in the short-term, the agency
concluded that the “small increase” in temperature over the next ten years is “unlikely to cause
significant effects to sea turtles” or a significant modification to the number of sea turtles likely
to be present in the action area. See SAR 52713. The agency reasoned that it is “unknown”
whether an expected temperature increase of less than one degree Celsius over the next decade is
“enough” to cause any shifts in the range or distribution of sea turtles, and it therefore concluded
that it is “unlikely” that the expected small increase in temperature would cause “significant
effects to sea turtles or a significant modification to the number of sea turtles likely to be present
in the action area.” Id. (emphasis added). In other words, on remand, NMFS has clarified that
while there is record evidence of past and expected future climate change, in the short-term these
effects from climate change will not result in a “significant effect” on sea turtles in the action
area, specifically. The Court concludes that the agency has provided a reasoned basis to support
its conclusion about the short-term effects of climate change on sea turtles, that goes beyond the
original rationale it provided.
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2. Sea-Level Rise
The Decision Memorandum also addressed the particular problem that this Court
found with the agency’s conclusions about sea-level rise. A study in the record by the U.S.
Geological Survey, (the “USGS study”) found a 620-mile “hot spot” along the East Coast where
sea levels are rising three to four times faster than the global average. See Oceana, Inc. v.
Pritzker, 125 F. Supp. 3d at 252 (citing AR 52438). The administrative record indicated that sea-
level rise was relevant to sea turtles in the present and near-term future because it is expected to
result in increased erosion rates along nesting beaches. See id. (citing AR 32563). This Court
held, therefore, that there was a “need for the agency to provide further explanation” for how its
conclusion – that any short-term effects on loggerheads would be negligible – is a reasonable
one, given the relevance of sea-level rise to turtles, and the evidence that sea levels are rising
rapidly. See id.
On remand, NMFS explained that the “hot spot” identified in the USGS study is
specific to an area along the East Coast north of Cape Hatteras, North Carolina. See SAR 52714.
Because the beaches north of Cape Hatteras are rarely used by loggerheads for nesting, the
agency explained that the erosion of those beaches would not eliminate a significant amount of
nesting habitat. See id; Notice of Completion at 2; NMFS Response at 4 n.2 (citing AR 52437).
Oceana cites to places in the administrative record that indicate loggerheads do, in fact, nest on
beaches north of Cape Hatteras annually. See Oceana Response at 13. NMFS agrees, but
reiterates that the current data shows that nesting in the Mid-Atlantic is “extremely rare,” and
points out that the records cited by Oceana are outdated. See NMFS Response at 4 n.2, 5.
To further support its conclusion, NMFS also pointed to evidence in the
administrative record that in Florida – the species’ most important nesting area in the Atlantic –
there is a “future positive trend” for loggerhead nesting. See SAR 52714 (citing the Van Houtan
13
and Halley (2011) study); see also NMFS Response at 7-8 (citing AR 45685). NMFS concluded,
therefore, that any impacts on loggerheads from the sea level rise described in the USGS study
are likely to be offset by the expected increase of loggerhead nesting in Florida over the next few
decades. See SAR 52714.
NMFS also acknowledged that warming temperatures in the Northwest Atlantic
Ocean could ultimately cause a shift in nesting sites northward. See SAR 52714. In that
scenario, the rise in sea level described by the USGS study would constrain the availability of
nesting sites on existing beaches. Id. But, the agency concluded, any such shift would likely
occur on a much longer time scale of several sea turtle generations, rather than in the short-term
future. Id. The agency’s conclusions, based on the agency’s evaluation of data within its realm
of technical expertise, are entitled to substantial deference from this Court. See Cmtys. for a
Better Env’t v. EPA, 748 F.3d at 336. On remand, NMFS has adequately responded to the
deficiencies that this Court identified in the agency’s climate change analysis. The agency has
more clearly explained the connection between the record evidence of present and short-term
effects caused by climate change and the agency’s conclusion that climate change will not result
in any significant effects on the species in the short-term future.
3. Newer Studies Not in the Administrative Record
In their briefing on the Notice of Completion of Remand, both NMFS and Oceana
have cited to studies that were published after the 2013 BiOp was issued. Oceana argues that by
failing to address more recent studies, NMFS has ignored the best available science. See Oceana
Response at 11; Oceana Reply at 3-4. NMFS cited to a study by Arendt (the “Arendt study”)
that further supported the evidence it had relied on from the Van Houtan and Halley (2011)
14
analysis. See SAR 52714; NMFS Response at 7-8. But NMFS has explained that its reference
to the Arendt study is not necessary for its conclusions on remand. See NMFS Response at 7-8.
“In cases brought under the APA, the Court’s review is confined to the
administrative record.” Ad Hoc Metals Coalition v. Whitman, 227 F. Supp. 2d 134, 136 (D.D.C.
2002). This is because “[i]f a court is to review an agency’s action fairly, it should have before it
neither more nor less information than did the agency when it made its decision.” Walter O.
Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984). A court sometimes may,
however, permit supplementation of the administrative record or consider extra-record evidence
in reviewing agency action. See Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir.
2008); IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997); Am. Wild Horse Pres.
Campaign v. Salazar, 859 F. Supp. 2d 33, 43 n.6 (D.D.C. 2012). 4 Resort to extra-record
evidence is “the exception, not the rule.” Theodore Roosevelt Conservation Partnership v.
Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010). The D.C. Circuit has identified at least four
instances where extra-record evidence may be considered: “the agency (1) acted in bad faith in
reaching its decision, (2) engaged in improper behavior in reaching its decision, (3) failed to
examine all relevant factors, or (4) failed to adequately explain its grounds for decision.”
Oceana, Inc. v. Locke, 674 F. Supp. 2d 39, 45 (D.D.C. 2009) (citing IMS, P.C. v. Alvarez, 129
F.3d at 624); see also Am. Wildlands v. Kempthorne, 530 F.3d at 1002 (summarizing these
4
As other judges of this Court have recognized, there is an important distinction
between “supplementing” an administrative record, on the one hand, and considering “extra-
record evidence,” on the other. See, e.g., Oceana, Inc. v. Locke, 674 F. Supp. 2d 39, 44-45
(D.D.C. 2009); Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 667 F. Supp. 2d
111, 113 (D.D.C. 2009). The studies cited by Oceana were not before the agency while it
completed its Decision Memorandum on remand, so they fall into the category of extra-record
evidence.
15
categories in a somewhat different fashion, in reliance on James Madison Ltd. by Hecht v.
Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996)).
In a footnote, Oceana argues that this Court should look beyond the
administrative record to the studies cited by Oceana because NMFS has failed to examine all the
relevant factors when reaching its decision. See Oceana Response at 12 n.6. But NMFS is
correct that this Court remanded to the agency only to “more clearly explain” its conclusion
about the short-term effects of climate change, and that this limited directive did not require the
administrative record to be updated. See NMFS Response at 6 (citing Oceana, Inc. v. Pritzker,
125 F. Supp. 3d at 252). The Court has found the agency’s supplemental explanations of its
conclusion about the short-term effects of climate change to be responsive to its remand order.
See supra sections IV(B)(1)-(2). There therefore is no need for the Court to assess the impact of
these newer studies on the agency’s conclusion. Nor should the Court be the one to do so in the
first instance. Incidentally, NMFS has already reinitiated consultation and is reviewing new
information that has become available since the 2013 BiOp. See Notice of Reinitiation at 3;
supra section IV(A). The Court expects, therefore, that the agency is already in the process of
assessing the climate change studies cited by Oceana that have been published since the 2013
BiOp and how they may change the jeopardy analysis for sea turtles.
C. Monitoring Take Limits
When the Court remanded this matter to the agency, it also instructed the agency
to “provide further explanation regarding the sufficiency of its monitoring mechanisms,” and
highlighted multiple logical gaps in the 2013 ITS where NMFS had failed to provide a rational
explanation in support of its monitoring mechanism. Oceana, Inc. v. Pritzker, 125 F. Supp. 3d
at 255; id. at 252-55.
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 The revised ITS provides a much more robust discussion of gillnet and bottom
trawl gear monitoring than the 2013 ITS, and includes a more fulsome explanation of why
loggerhead bycatch estimates can only be calculated every five years and why no better
monitoring alternatives exist. Compare AR 52548 (“Sea Turtle Monitoring” in the 2013 ITS)
with SAR 52724-28 (“Sea Turtle Monitoring” in the 2016 revised ITS). Oceana argues,
however, that the agency’s explanations remain inadequate. See Oceana Response at 15-20.
1. Five Year Monitoring
The primary concern that the Court instructed the agency to address on remand
regarding its monitoring mechanism was how the agency could reinitiate consultation
immediately once an annual take limit had been exceeded, given that take estimates are produced
no more frequently than every five years. Oceana, Inc. v. Pritzker, 125 F. Supp. 3d at 253. The
revised ITS differs from the 2013 ITS in that it expresses the numerical take limit of loggerheads
from gillnet and trawl gear in terms of individual loggerheads over a five-year period. Compare
SAR 52718 with AR 52543 (expressing the numerical take limit of loggerheads from gillnet and
trawl gear in terms of individual loggerheads annually). NMFS explains that the five-year
numerical take limits in the revised ITS “equate” to the annual take limits in the 2013 ITS, see
SAR 52718 n.1, and are simply the annual bycatch estimates from the 2013 ITS multiplied by
five, because that is how often the agency can reassess the bycatch estimate with available
statistical methods, see NMFS Response at 12; see also id. at n.4.
Oceana argues that reframing the take estimate to cover five years is merely
cosmetic. See Oceana Response at 15-16. It maintains that this change fails to address the
fundamental question that the Court posed of how the agency can reinitiate consultation
immediately if the take limit is only calculated every five years. Id. at 16; see also Oceana, Inc.
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v. Pritzker, 125 F. Supp. 3d at 253. In response, NMFS highlights that Oceana’s criticism
ignores the fact that on remand, the agency has better “explained why it cannot quantify take on
an annual basis” and therefore “reasonably adopted a five-year take limit and monitoring period”
based on the best available scientific information for loggerhead bycatch estimation. NMFS
Response at 13.
The Court agrees with NMFS. The revised ITS provides a detailed explanation
for why the agency can only produce a “statistically robust” bycatch estimate of loggerhead takes
from gillnet and bottom trawl gear on a five-year rotational basis. SAR 52724-26. NMFS notes
that “data needs; length of time to develop, review, and finalize the estimates; and methodology”
prevent the agency from generating take estimates on an annual basis. SAR 52724. More
specifically, the revised ITS notes that “observed loggerhead interactions are rare,” and depend
on a wide range of both human and natural factors that vary greatly over a short time period. Id.
at 52725. The model that the agency uses requires twenty to thirty observed bycatch events, but
it is uncommon to have that many observed loggerhead interactions in a single year. Id. Thus,
the agency must pool data across years to have sufficient information to produce a robust, model-
based estimate of total interactions with reliable confidence intervals. Id. at 52724-25. In
addition, it normally takes a year to process, clean, and analyze the collected data. Id. at 52725.
The agency did consider whether annual estimates might be preferable. But in light of the
practical constraints on data collection and the existing scholarship on how best to employ sparse
data in a reliable manner, the agency decided to undertake “[l]ess frequent but more
comprehensive assessments, which explicitly address uncertainty” and that “may provide more
reliable information.” Id. Thus, the agency determined that, for loggerheads, re-estimating
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loggerhead takes from gillnet and bottom trawl gear from the batched fisheries approximately
every five years amounts to the best available monitoring option. See id.
The agency has provided a reasoned explanation for why it can only calculate the
bycatch estimate of loggerhead takes from gillnet and bottom trawl gear every five years. In
doing so, the agency has sufficiently addressed the Court’s concern about how NMFS could
comply with its regulatory obligations to reinitiate consultation immediately if the take limits
were only produced every five years. If the bycatch estimates calculated every five years exceed
the numerical take limits in the revised ITS for loggerheads – take of 1,345 loggerheads over a
five-year period from gillnet gear and take of 1,020 loggerheads over a five-year period from
trawl gear, see SAR 52718 – then NMFS can and must reinitiate consultation immediately.
2. Consideration of Alternatives
When it remanded this matter to the agency, this Court also criticized the 2013
ITS for not offering “any indication that [the agency] ha[d] considered alternative methodologies
or techniques that might produce take estimates on a shorter timeline.” Oceana, Inc. v. Pritzker,
125 F. Supp. 3d at 253. Oceana argues that in the revised ITS, the agency has again failed to
consider any alternatives that would allow the agency to monitor takes on a shorter timeframe.
See Oceana Response at 17. First, Oceana suggests that NMFS could estimate annual bycatch
by using a rolling average of data collected over the previous five years. See id. But the revised
ITS includes a sufficient explanation as to why NMFS did not adopt this alternative. The leading
scholarship recommends “comparing” average annual estimates derived from five-year averages.
SAR 52724. See also id. at 52725 (explaining that “when we pool data over five years to report
an annual average, we need another five years to compare averages”); NMFS Response at 11
(same). In addition, the agency explains that the number of observed takes cannot be reliably
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extrapolated to quantify an estimate for total takes over shorter time periods because “observed
turtle takes are rare events dependent on a wide range of both human and natural factors that
vary greatly over short time periods (i.e., less than a year).” See SAR 52725; see also NMFS
Response at 11.
Next, Oceana suggests that the agency should have considered using other
statistical models. See Oceana Response at 17. It highlights annual monitoring mechanisms that
the agency has employed for other fisheries, despite, according to Oceana, “similarly scarce take
data.” Id. at 17-18. But the agency concluded that “no other monitoring alternatives exist for
gillnet and bottom trawl fisheries that are feasible on a shorter term than the five-year period
required to produce an updated bycatch estimate” for loggerheads. SAR 52726. In response to
the extra-record examples that Oceana provided, NMFS explains that those other fisheries have
more observed takes and different variables that are relevant to bycatch models, emphasizing the
“unique” data limitations for the batched fisheries. See NMFS Response at 11 n.3.
Finally, Oceana suggests that the agency should rely instead on the raw data of
observed takes – as it does to monitor the incidental takes of leatherback, Kemp’s ridley, and
green sea turtles from gillnet and bottom trawl gear. See Oceana Response at 17. But the
revised ITS explains that the only reason NMFS relies on raw observer data for those other
species is because the agency does not have five-year bycatch estimates for those sea turtles “due
to so few recorded interactions,” so “the raw annual numbers of observed takes are the best
available scientific information.” SAR 52725. The agency explains that raw counts are “less
informative,” and that it prefers to use a “higher level metric such as a bycatch estimate,” when
possible, because it is “more informative.” Id. at 52726.
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 Accordingly, the Court finds that Oceana’s argument that NMFS could have
considered alternative monitoring mechanisms for loggerheads takes from gillnet and bottom
trawl gear provides no basis to question the agency’s reasoned judgment. See Cmtys. for a
Better Env’t v. EPA, 748 F.3d at 336 (“[Courts] must respect both Congress’ decision and the
Agency’s ability to rely on the expertise that it develops. . . . [We look] only to ensure that [the
Agency] adheres to certain minimal standards of rationality.”). The agency did consider
alternatives and adequately explained why it found them wanting. It has selected the best
monitoring mechanism currently available in light of the best scientific information available, the
practical data constraints, and the agency’s technical expertise.
3. Increasing At-Sea Observers
In its prior discussion of the monitoring mechanism, this Court also noted that
“NMFS does not explain why data collection cannot be expanded through the placement of
additional at-sea observers on fishing vessels,” and that “by neglecting to directly address this
common-sense solution to its data need problems . . . NMFS cannot rely on a lack of data to
justify the infrequency of its ability to generate take estimates.” Oceana, Inc. v. Pritzker, 125 F.
Supp. 3d at 253-54. The revised ITS now makes clear that the “lack of data” discussed in the
ITS refers to the “lack of observed sea turtle interactions, not a lack of observer data in general.”
SAR 52726. This is because, despite NMFS having “an abundance of observer data,” observers
witness “very few interactions because they are naturally rare events.” Id. at 52726-27.
Accordingly, the agency concluded that “[e]ven if more observers were placed on vessels, it
most likely would not yield a sufficient number of observed interactions between sea turtles and
fishing gear to permit us to estimate the number of takes on an annual basis.” Id. at 52727; see
also id. at 52726 (“[S]imply increasing observer coverage throughout the seven fisheries would
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not address the limitations that prevent us from accurately estimating loggerhead bycatch and
exceedances of the ITS over a shorter time scale.”).
The agency has further explained that NMFS must make observer coverage
decisions “globally.” SAR 52727; see Notice of Completion at 4. In other words, increasing
observer coverage in gillnet and bottom trawl fisheries would come at the expense of observer
coverage for other fisheries managed under the Magnuson-Stevens Fishery Conservation and
Management Act of 2007. SAR 52727. And, as this Court has recognized in a related case, the
agency’s determinations regarding observer coverage “do not occur in a silo.” See Oceana, Inc.
v. Ross, 321 F. Supp. 3d 128, 141 (D.D.C. 2018). See also Oceana, Inc. v. Ross, 920 F.3d 855
(D.C. Cir. 2019). This Court will defer to the agency’s reasonable decision that increased
observer coverage would not alter its broader take monitoring capabilities. It therefore will
uphold the agency’s adoption of a five-year timetable for monitoring loggerhead takes from
gillnet and bottom trawl gear.
4. Monthly and Annual Summaries of Observer Takes
Another aspect of the monitoring mechanism that the Court instructed NMFS to
better explain on remand was its treatment of the monthly and annual summaries of observed
loggerhead takes. See Oceana, Inc. v. Pritzker, 125 F. Supp. 3d at 254-55. The 2013 ITS said
that the agency would perform an “annual ‘review [of] observed takes of loggerhead turtles to
consider trends in takes and look for patterns and changes in take levels.’” Id. at 254 (citing
AR 52548). The Court questioned how “monthly and annual reports of observed takes” could be
“usefully compared against annual take limits established in the ITS” when NMFS had asserted
that “it needs five years’ worth of data to estimate annual take levels.” Id. (citing AR 52548).
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Accordingly, the Court directed the agency to provide a “rational response to this question” if
one could be provided. Id.
Oceana asserts that the revised ITS fails to respond to the Court’s question. See
Oceana Response at 18-19. It highlights that the revised ITS “provides no explanation” because
in the revised ITS, “the agency eliminat[ed] annual take limits altogether.” Id. at 18. NMFS
agrees in its briefing that “[b]ecause NMFS has adopted 5-year take limits in the revised ITS, on
remand it has not provided an explanation for how monthly and annual reports could be
compared to the annual take limits in the 2013 Opinion.” Notice of Completion at 4 n.3. The
agency concluded that additional measures for monitoring the numerical take limit for
loggerheads from gillnet and bottom trawl gear – beyond recalculating the loggerhead bycatch
estimate every five years – are “not reasonable due to the data and statistical methods available.”
SAR 52712. The Court accepts this explanation as reasonable and concludes that the revised ITS
has eliminated the concern previously expressed by the Court.
V. CONCLUSION
NMFS has sufficiently responded to the two issues that this Court directed it to
address on remand. An order entering final judgment for the defendants shall issue this same
day.
SO ORDERED.
/s/
________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: October 1, 2020
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