Center for Biological Diversity v. Gina Raimondo, et al.Center for Biological Diversity v. Gina Raimondo, et al.
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plаintiff Center for Biological Diversity (CBD) has sued defendants National Marine Fisheries Service and Secretary of Commerce Gina Raimondo (collectively, NMFS) under the Marine Mammal Protection Act (MMPA),
The case presents a straightforwаrd challenge by CBD to the issuance of a permit by NMFS in 2021 that authorized the incidental taking of ESA-listed humpback whales in the pot fishery, a challenge that both parties agree is timely under the MMPA. See Dkt. No. 283 at 7 n.5; Dkt. No. 284 at 1 n.1. CBD says that the permit was unlawful because NMFS did not first ensure that a take reduction plan for the whales hаd been developed or was being developed, as required by the MMPA. See Dkt. No. 282 at 11. NMFS says that it simply lacks the funding to develop and implement take reduction plans for all marine mammal species and stocks that are entitled to one, and consequently a statutory exception applies to relieve the agency of its obligation to develop a plan in this case. See Dkt. No. 283 at 22.
The parties have filed cross-motions for summary judgment, which the Court found suitable for decision without oral argument under Civil Local Rule 7-1(b). Dkt. Nos. 282, 283, 287. The parties’ familiarity with the record is assumed, and CBD‘s motion is granted in part. The Court defеrs consideration of the appropriate remedy, as well as CBD‘s challenge to the 2020 biological opinion that NMFS relied upon in issuing the incidental take permit, pending further proceedings.1
Under the deferential standard of the Administrative Procedure Act (APA), an agency action will be upheld unless it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
An agency action is arbitrary and capricious “if the agency has: 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.” Ctr. for Cmty. Action & Env‘t Just. v. FAA, 61 F.4th 633, 2023 WL 2213470, at *4 (9th Cir. Feb. 24, 2023); see also Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “The Court‘s deference extends to less than stellar work by an agency, so long as its analytical path and reasoning can be reasonably discerned.” Ecological Rts. Found. v. FEMA, 384 F. Supp. 3d 1111, 1119 (N.D. Cal. 2019) (citing San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 627 (9th Cir. 2014)); see also Friends of Del Norte v. Cal. Dep‘t of Transp., No. 18-cv-00129-JD, 2023 WL 2351649, at *5 (N.D. Cal. Mar. 3, 2023).
Summary judgment is an appropriate procedure for resolving plaintiffs’ challenges. See Nw. Motorcycle Ass‘n v. USDA, 18 F.3d 1468, 1471-72 (9th Cir. 1994); Friends of Del Norte, 2023 WL 2351649, at *5. Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Ecological Rts. Found., 384 F. Supp. 3d at 1119; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
DISCUSSION
Two statutory regimes, the ESA and the MMPA, frame the analysis. The ESA was еnacted to protect and conserve endangered and threatened species and their habitats, and embodies “a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies.” Ctr. for Biological Diversity v. EPA, 847 F.3d 1075, 1084 (9th Cir. 2017) (quoting TVA v. Hill, 437 U.S. 153, 185 (1978)); see also Friends of Gualala River v. Gualala Redwood Timber, LLC, 552 F. Supp. 3d 924, 931 (N.D. Cal. 2021). It authorizes the Secretaries of Commerce and the Interior, through their agencies, to list plants and animals for protection and to designate critical habitats. See Ecological Rts. Found., 384 F. Supp. 3d at 1115 (citing
The MMPA “generally prohibits any individual from ‘taking’ a marine mammal, defined as harassing, hunting, capturing, or killing it.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 15 (2008) (citing
ESA-listed marine mammals enjoy enhanced protection under the MMPA. Before issuing a permit to authorize for up to three years the incidental taking of listed marine mammals in commercial fishing operations, the MMPA requires NMFS to make the following determinations after a notice-and-comment period:
- the incidental mortality and serious injury from commercial fisheries will have a negligible impact on such species or stock;
- a recovery plan has been developed or is being developed for such species or stock pursuant to the [ESA]; and
- where required under section 1387 of this title, a monitoring program is established under subsection (d) of such section, vessels engaged in such fisheries are registered in accordance with such section, and a take reduction plan has beеn developed or is being developed for such species or stock.
At issue here are the take reduction plans. Under Section 1387(f)(1), NMFS is required to “develop and implement a take reduction plan” for all “strategic stocks” -- which by definition includes all ESA-listed marine mammal stocks, see id.
There is no dispute that NMFS issued the 2021 incidental take permit for the sablefish pot fishery without developing, or even starting to work on, a take reduction plan for the humpback whales. See Dkt. No. 284 at 3; Dkt. No. 285 at 12-14. NMFS‘s own assessment of its compliance with Seсtion 1371(a)(5)(E) concluded that the take reduction plan requirements were satisfied because a plan was “on the priority list for development,” even though it was not “complete” or “underway.” MMPA 000022.
This assessment overtly conflicts with the statutory requirement that “a take reduction
If there is insufficient funding available to develop and implement a take reduction plan for all such stocks that interact with commercial fisheries [that cause at least occasional incidental mortality and serious injury of marine mammals], the Secretary shall give highest priority to the development and implementation of take reduction plans for species or stocks whose level of incidental mortality and serious injury exceeds the potential biological removal level, those that have a small population size, and those which are declining most rapidly.
respond that the “‘where required under section 1387’ phrase . . . refers only to the limited situation in which section [1387] does not require a take reduction plan for ESA-listed marine mammals -- when fisheries interact with them ‘infrequently.‘” Dkt. No. 284 at 5-6.
This is a question of statutory interpretation, and as in all such cases, “[o]ur analysis begins and ends with the text.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 553 (2014); see also Michigan v. DeVos, 481 F. Supp. 3d 984, 991 (N.D. Cal. 2020). “The Court gives Congress‘s words their ordinary and everyday meaning, and may consult dictionary definitions to ensure a plain interpretation.” Nat. Grocers, 2022 WL 4227248, at *9 (citing City of Los Angeles v. Barr, 941 F.3d 931, 940 (9th Cir. 2019)). The “inquiry must cease if the statutory language is unambiguous” and “the statutory scheme is coherent and consistent.” Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 412 (2011) (internal quotations and citation omitted). “When construing a statute, a virtuoso feat of analysis is neither required nor particularly useful.” DeVos, 481 F. Supp. 3d at 991. The ultimate goal of statutory construction is to effectuate Congress‘s intent in enacting the statute. “In every case, ‘it is the intent of Congress that is the ultimate touchstone.‘” Barr, 941 F.3d at 940 (quoting Arizona v. United States, 567 U.S. 387, 453 (2012) (Alito, J., concurring in part and dissenting in part)). The Court bears “the conventional judicial duty to give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question.” Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 298 (2010) (internal quotations and citation omitted); see also Nat. Grocers, 2022 WL 4227248, at *9.
CBD has the better reading of the MMPA. Section 1387 directs that NMFS “shall develop and implement a take reduction plan” for strategic stocks in commercial fisheries that involve occasional incidental mortality or serious injury to marine mammals.
The difference between the mandatory “shall” and the discretionary “may” in Section 1387(f)(1) is obvious. See Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 172 (2016) (“When a statute distinguishes between ‘may’ and ‘shall,’ it is generally clear that ‘shall’ imposes a mandatory duty.“). Consequеntly, under the plain language of Section 1387(f)(1), a take reduction plan was “required” in this case.
The fact that NMFS has some room for prioritizing the order in which to develop and implement take reduction plans does not point to a different conclusion. The statute uses the phrase, “shall give highеst priority,” which means in ordinary usage “to deal with or do (something) first.” See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/give%20priority (last visited Mar. 13, 2023). It may be that several mandatory tasks can be ranked in order of completion, but the mandatory quality remains unchanged. Nothing about the prioritization process transforms a mandatory duty into a discretionary one.
NMFS‘s reading of Section 1387 would also create unnecessary conflicts within the statute. For example, another provision in Section 1387 authorizes NMFS to create “take reduction teams.”
plans called for in Section 1387(f)(1) are “required,” and
Because the “where required under section 1387” condition in the ESA-listed incidental take permit provision was satisfied, NMFS could have lawfully issued the 2021 permit only if it determined that a take reduction plan “has been develoрed or is being developed” for the humpback whales. Id.
Consequently, NMFS‘s conclusion that the requirements of Section 1371(a)(5)(E) were satisfied without a take reduction plan being under development was arbitrary and capricious. The authorization of the 2021 permit for the incidental taking of humpback whales at the pot fishery was unlawful.
CONCLUSION
Summary judgment is granted to CBD on its second claim that NMFS violated the MMPA and APA by issuing the 2021 incidental take permit.
The parties’ briefing suggested a question of whether CBD may challenge NMFS‘s 2020 biological opinion independent of the 2021 permit. See Dkt. No. 283 at 9; Dkt. No. 284 at 8. NMFS has also requested the opрortunity to provide separate briefing on remedies if CBD prevailed on any of its claims, as is the case here. See Dkt. No. 283 at 25; Dkt. No. 285 at 15. A status conference is set for April 20, 2023, at 10:00 a.m., to discuss these issues and the next steps in this case.
IT IS SO ORDERED.
Dated: March 14, 2023
JAMES DONATO
United States District Judge