75 F. Supp. 3d 1
D.D.C.2014Background
- HSUS filed the petition on August 4, 2011 to list porbeagle sharks under the ESA; WildEarth Guardians joined later in related cases.
- The matter was consolidated with two related suits and later transferred to Judge Barbara Rothstein.
- Two petitions sought listing of the Northwest Atlantic population and of porbeagles generally; NMFS denied the petitions at the 90‑day stage, deeming no substantial information warranted further action.
- NMFS relied on the 2009 ICES/ICCAT joint stock assessment, which suggested some stocks were stable or increasing but recommended measures for recovery in several regions.
- The court is evaluating cross‑motions for summary judgment under the APA, focusing on whether NMFS used the correct 90‑day standard and whether its evidence analysis was proper.
- The court grants in part the plaintiffs’ summary judgment motions and remands, vacating NMFS’s 90‑day finding due to error in applying the evidentiary standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NMFS used the correct 90‑day standard | May-be-warranted standard applies at 90 days, not the 12‑month standard. | NMFS may apply higher evidentiary standards consistent with later steps. | NMFS erred by applying a too-stringent standard at 90 days. |
| Whether DPS existence analysis was correctly handled at 90 days | Conflicting evidence on DPS existence should not bar a may-be-warrant finding. | Need conclusive DPS determinations before listing decisions. | Error in requiring conclusive DPS evidence at 90 days; NMFS could consider DPS and full species. |
| Whether ICES/ICCAT data supported a 90‑day finding | Assessment indicates potential declines and recovery needs; evidence supports may-warrant. | Data show some stocks stable or increasing; does not show may-warrant at 90 days. | NMFS failed to articulate why the data did not trigger a positive 90‑day finding; arbitrary and capricious. |
| Remedy for the improper 90‑day finding | Vacate and remand for proper ESA/SMF2 standards or status review. | Limit to setting aside the 90‑day finding without remand. | Remand to reconsider petitions consistent with corrected legal standards; vacate 90‑day finding. |
Key Cases Cited
- Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency must articulate a satisfactory explanation for its action)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (U.S. 2009) (requires reasoned decision-making under APA; rational explanation)
- Arent v. Shalala, 70 F.3d 610 (D.C. Cir. 1995) (agency decisions must be based on relevant data and reasoning)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (U.S. 1989) (narrow but searching judicial review of agency action)
- Cutthroat Trout v. Kempthorne, 448 F. Supp. 2d 170 (D.D.C. 2006) (90-day ESA findings require less-than-conclusive evidence)