Center for Biological Diversity v. Gina Raimondo, et al., 661 F.Supp.3d 964

Background

Plaintiff Center for Biological Diversity (CBD) sued NMFS and the Secretary of Commerce over a 2021 incidental take permit authorizing take of ESA‑listed humpback whales in the Washington/Oregon/California sablefish pot fishery.
The pot fishery uses long strings of bottom pots; humpback whales can become entangled, causing injury or death.
The permit was issued without a take reduction plan having been developed or actively under development for the ESA‑listed humpback stocks.
MMPA requires, before issuing multi‑year incidental take permits for ESA‑listed marine mammals, that NMFS determine a take reduction plan “has been developed or is being developed”; Section 1387(f)(1) generally requires NMFS to develop and implement take reduction plans for strategic (including ESA‑listed) stocks.
NMFS relied on a prioritization/insufficient‑funding provision in §1387(f)(3) to justify not having a plan in development; CBD argued that the statutory text requires a plan be developed or being developed before permit issuance.
The court granted CBD summary judgment on the MMPA claim, holding NMFS’s issuance of the 2021 permit without a take reduction plan in development was arbitrary and capricious; remedies and CBD’s separate challenge to the 2020 biological opinion were deferred for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether NMFS had to have a take reduction plan developed or being developed for ESA‑listed humpback stocks before issuing the §1371 incidental take permit	§1371(a)(5)(E)(i)(III) requires a plan developed or being developed; §1387(f)(1) mandates development for strategic/ESA stocks	Funding constraints under §1387(f)(3) allow NMFS to defer or not develop plans; priority scheme permits not developing all plans	Court: §1387(f)(1) is mandatory for strategic/ESA stocks and §1371 requires a plan developed or being developed; issuing permit without such plan was arbitrary and capricious
Scope of the phrase “where required under section 1387” in §1371	Limits §1371’s plan requirement only where §1387 does not require a plan (e.g., infrequent interactions)	Allows §1371’s plan condition to be excused where §1387’s funding/prioritization prevents plan development	Court: “where required” refers to the statutory requirement in §1387; here §1387 required a plan, so §1371’s plan condition applied
Whether §1387(f)(3) prioritization language converts a mandatory duty into discretionary nonperformance when funds are insufficient	Prioritization does not change mandatory “shall” duties; NMFS must still develop plans for required stocks	Prioritization and insufficient funding permit NMFS to decline developing some plans	Court: Prioritization ranks mandatory tasks but does not make the duty discretionary; insufficient‑funding provision does not permit indefinite nondevelopment
Whether NMFS’s statutory interpretation merits deference and whether its permit decision was arbitrary and capricious	Agency interpretation unlawful; permit unlawful without plan	NMFS relied on statutory text and resource realities; argued deference warranted	Court: Statute unambiguous so Chevron deference not needed; NMFS’s contrary conclusion was arbitrary and capricious and unlawful

Key Cases Cited

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (arbitrary and capricious standard)
Kingdomware Techs., Inc. v. United States, 579 U.S. 162 (distinguishing “shall” and “may”)
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (statutory interpretation starts with text)
Corrigan v. Haaland, 12 F.4th 901 (courts give effect to unambiguous congressional intent)
Center for Biological Diversity v. Bernhardt, 982 F.3d 723 (APA review of ESA/MMPA matters)
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (MMPA take prohibition explained)
National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (ESA procedural/substantive obligations)
Defenders of Wildlife v. Zinke, 856 F.3d 1248 (APA review standards in the Ninth Circuit)