Natural Resources Defense Council, Inc. v. Pritzker
2016 U.S. App. LEXIS 13021
| 9th Cir. | 2016

Background

  • The Navy sought NMFS authorization for incidental "take" of marine mammals from peacetime use of long-range SURTASS LFA sonar; NMFS issued a five-year Final Rule (2012) authorizing take subject to mitigation.
  • MMPA requires two independent prerequisites to authorize incidental take: (1) a negligible impact finding; and (2) regulations prescribing "permissible methods of taking" and "other means of effecting the least practicable adverse impact" on species, stock, and habitat.
  • The 2012 Final Rule included three mitigation measures: (a) a 2 km shutdown/delay upon detection of marine mammals; (b) a 22 km coastal exclusion zone (no ≥180 dB pulses); and (c) designation of Offshore Biologically Important Areas (OBIAs) where ≥180 dB pulses are prohibited within 1 km.
  • NMFS flagged 73 candidate OBIAs but designated only 22, rejecting many data-poor areas despite internal subject-matter expert recommendations (the White Paper) favoring a precautionary approach to protect shelf/slope, islands, and high productivity regions.
  • Plaintiffs (NRDC, et al.) challenged only the adequacy of NMFS’s mitigation under the MMPA; district court granted summary judgment to defendants; Ninth Circuit reversed, finding NMFS failed to show the Final Rule effected the "least practicable adverse impact."

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether NMFS must independently satisfy the MMPA "least practicable adverse impact" requirement before authorizing take "Least practicable" is a separate, threshold statutory requirement distinct from the negligible-impact finding Once NMFS finds negligible impact, the only remaining task is to choose mitigation necessary to allow the activity; negligible finding suffices practically Court: "Least practicable" is an independent statutory requirement; NMFS must analyze and prescribe mitigation achieving that standard prior to authorization
Whether NMFS’s Final Rule provided a reasoned explanation showing mitigation meets the "least practicable" standard NMFS failed to meaningfully analyze how chosen measures meet the stringent statutory standard NMFS contends it considered practicability and balanced military readiness; relied on deference and adaptive management Court: NMFS gave cursory explanations and conflated negligible-impact analysis with the least-practicable requirement; post-hoc briefing insufficient; arbitrary and capricious
Adequacy of OBIA designation process (data-poor regions) NMFS’s criteria systematically underprotect data-poor but potentially important habitats; agency ignored its experts recommending a precautionary default NMFS chose a different, reasonable policy ("pure" over "precautionary") and relied on best available information; choice entitled to deference Court: NMFS’s underinclusive OBIA selection—cutting ~70% of candidates without explaining practicability tradeoffs—was arbitrary and capricious and inconsistent with the MMPA mandate
Whether "adaptive management" in the Final Rule cures present deficiencies Adaptive management cannot substitute for required advance measures; future adjustments do not satisfy current statutory duty NMFS argued adaptive management and LOAs allow adding protections as data arise; thus overall scheme is sufficient Court: Adaptive management cannot remedy failure to adopt necessary mitigation up front; open-ended future possibilities insufficient

Key Cases Cited

  • Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Ass'n, 463 U.S. 29 (1983) (standard for "arbitrary and capricious" agency action)
  • BedRoc Ltd., LLC v. United States, 541 U.S. 176 (2004) (statutory text must be given effect)
  • SEC v. Chenery Corp., 332 U.S. 194 (1947) (courts may not uphold agency action on post hoc rationalizations)
  • Corley v. United States, 556 U.S. 303 (2009) (avoid rendering statutory provisions superfluous)
  • Connecticut National Bank v. Germain, 503 U.S. 249 (1992) (interpretive presumption that statute means what it says)
  • Ocean Advocates v. United States Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005) (courts will not rubber-stamp agency decisions inconsistent with statutory mandates)
  • Humane Soc. of the U.S. v. Locke, 626 F.3d 1040 (9th Cir. 2010) (agency must explain administrative record; deference to expertise has limits)
  • League of Wilderness Defs./Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122 (9th Cir. 2010) (deference to agency technical judgments but not when inconsistent with statute)
  • San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) (agency's choice among scientific methods reviewed for rational relation to data)
  • W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) (agency action contrary to its experts can be arbitrary)
  • Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011) (adaptive management is not an automatic cure for inadequate mitigation analysis)
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