NATURAL RESOURCES DEFENSE COUNCIL, INC.; Humane Society of the United States; Cetacean Society International; Ocean Futures Society; Jean-Michel Cousteau; Michael Stocker, Plaintiffs-Appellants, v. Penny PRITZKER, Secretary, U.S. Department of Commerce; National Marine Fisheries Service; Eileen Sobeck, Assistant Administrator for Fisheries; Kathryn D. Sullivan, Administrator of the National Oceanic and Atmospheric Administration; Ray Mabus, Secretary of the Navy; Jonathan Greenert, Admiral, Chief of Naval Operations, Defendants-Appellees.
No. 14-16375
United States Court of Appeals, Ninth Circuit.
July 15, 2016
828 F.3d 1125
Argued and Submitted March 17, 2016 San Francisco, California
It is an open question whether
AFFIRMED in part; VACATED and remanded in part.
Michael E. Wall (argued), Natural Resources Defense Council, San Francisco,
Emily Polachek (argued), Kevin W. McArdle, Ty Bair, J. David Gunter II, and Andrew C. Mergen, Trial Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, Department of Justice, Washington, D.C.; for Defendants-Appellees.
Before: JOHN T. NOONAN, RONALD M. GOULD, and MICHELLE T. FRIEDLAND, Circuit Judges.
OPINION
GOULD, Circuit Judge:
This appeal presents a challenging question relating to the proper scope under the Marine Mammal Protection Act (MMPA) of mitigation measures required to protect marine mammals when the responsible federal agency, the National Marine Fisheries Service (NMFS), seeks to approve incidental “take” relating to military readiness activities. The appeal concerns the Navy‘s peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar (SURTASS LFA or “LFA sonar“).1 Congress has required that NMFS set limitations on activities that may cause “take“—i.e. harm to marine mammals—such as military readiness activities, to reduce their impacts to the least practicable level.2 The question here is
The district court granted summary judgment to Defendants on the issue of MMPA compliance. It held that “[e]ven if the impact on the population is negligible under
I
The Navy‘s plans for use оf LFA sonar, as approved by NMFS, have gone through several iterations, resulting in increased protection for marine mammals. We have every reason to believe that the Navy has been deliberate and thoughtful in its plans to follow NMFS guidelines and limit unnecessary harassment and harm to marine mammals. But the question is whether NMFS has satisfied the Congressional mandate that mitigation measures ensure the “least practicable adverse impact” on marine mammals.
The MMPA was enacted in response to Congressional concern that marine mammal species and population stocks were in danger of extinction or depletion due to human activity.
There are exceptions to the MMPA take prohibition. The MMPA allows NMFS to authorize take of “small numbers” of marine mammals, incidental to a specified activity, for up to five years.4
In connection with peacetime activities such as use of LFA sonar for training, testing, and routine operations, Congress struck a balance to permit incidental take of marine mammals caused by deployment of LFA sonar or other techniques that might incidentally harm whales and other marine mammals, so long as the incidental take from the activity has a negligible impact on the species or stock involved, and so long as mitigation measures were fashioned to limit harm to the marine mammals to the “least practicable adverse impact.” As the agency with delegated authority to implement the MMPA, NMFS is bound by these congressional mandates.
II
Whales, dolphins, walruses, and other marine mammals rely on perceptions of underwater sound for vital biological functions such as catching prey, navigating, and communicating. The United States Navy operates LFA sonar vessels around the world for another vital purpose: to protect the nation from increasingly quiet foreign submarines. The Navy has determined that LFA sonar is the most effective way to detect potentially hostile submarines.5 LFA sonar uses a set of transmitting projectors that are suspended by a cable from an ocean surveillance ship. The projectors produce low-frequency sоund pulses at an intensity of approximately 215 decibels (dB), in sequences that last 60 seconds on average. LFA sonar can detect enemy ships day and night in varied weather conditions over hundreds of miles.
LFA sonar, while beneficial to national defense, can harm many marine mammal species, particularly “low-frequency hearing specialists” such as baleen whales, but also sperm whales and pinnipeds such as seals and walruses. LFA sonar disrupts the hearing of these animals and can cause physical injury at sound levels greater than 180 dB. Effects from exposures below 180 dB can cause short-term disruption or abandonment of natural behavior patterns. These behavioral disruptions can cause affected marine mammals to stop communicating with each other, to flee or avoid an ensonified area, to cease foraging for food,
The MMPA classifies such forms of harassment in two categories: “Level A” harassment and “Level B” harassment. With respect to “military readiness activit[ies],”6 such as the Navy‘s use of LFA sonar, the MMPA defines Level A harassment as “any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild.”
NMFS most recently authorized incidental take of marine mammals from LFA sonar use for five years beginning in 2012. See Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, 77 Fed. Reg. 50290 (Aug. 20, 2012) (2012 “Final Rule“). This authorization, and the accompanying mitigation measures, apply to the Navy‘s routine training and testing and use of LFA sonar during military operations in areas of the Pacific, Atlantic, and Indian Oceans and the Mediterranean Sea between 2012-2017. 77 Fed. Reg. at 50291. They do not constrict the Navy‘s operations during a war or active military engagement. The 2012 Final Rule provides guidelines for incidental take regulations for LFA sonar use on a maximum of four Navy vessels in 70-75% of the world‘s oceans, covering the Pacific, Atlantic, and Indian Oceans, and the Mediterranean Sea. Id. at 50303. Each LFA sonar vessel may perform up to 240 days per year of active sonar operations. Id. at 50292. The 2012 Final Rule allows
The 2012 Final Rule contains three mitigation measures intended to minimize the impact of this incidental take on marine mammal species, stock, and habitat. First, there is a requirement that the Navy shut down or delay LFA sonar use if it detects a marine mammal near a sonar vessel. This requirement instructs the Navy to use a combination of human lookouts and a dedicated marine mammal detection system (called the “High Frequency Marine Mammal Monitoring” system) to detect nearby marine mammals. If a marine mammal is detected within two kilometers of an LFA sonar vessel, the Navy must delay or suspend sonar transmissions. The intensity of an LFA sonar pulse drops from 215 dB at the source to 175 dB at two kilometers.7 Consequently, NMFS expects this two-kilometer shutdown zone to almost completely prevent Level A harassment, including physical injury, which occurs only at intensities of 180 dB or greater.
Second, the Final Rule prohibits the Navy from creating LFA sonar pulses of 180 dB or greater within a “coastal exclusion zone” extending 22 km, or about 12 nautical miles (nm), of any coastline. Continental shelf waters are recognized as biologically important to marine mammals, and the district court previously ordered NMFS to protect these waters even in areas without site-specific data. Evans, 279 F.Supp.2d at 1164.
Third, the Final Rule prohibits the Navy from creating LFA sonar pulses of 180 dB or greater within a kilometer of several designated “offshore biologically important areas” (OBIAs). OBIAs are marine protected areas providing marine mammals with relatively low-noise environments, as LFA sonar pulses moving in from the periphery of an OBIA gradually dissipate.
III
The key provisions of the Administrative Procedure Act (APA) require the court to hold unlawful and set aside a final order of an agency if the order is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See
Normally, an agency rule would be 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.
463 U.S. at 43, 103 S.Ct. 2856.
Further, if the agency itself did not provide reasons to satisfy the above
IV
The conflict in this case is about whether the mitigation measures set forth in NMFS‘s 2012 Final Rule achieve the required “least practicable adverse impact” on marine mammal species, stock, and habitat.
Defendants on appeal advance several arguments for why NMFS was not required to comply with this stringent standard in authorizing the Final Rule. First, they contend that once NMFS makes a negligible impact finding, it “must allow the activity,” and the “only question at that point is what mitigation measures will be required for the proposed activity to go forward.” We disagree. To ascertain the meaning of the “least practicable adverse impact” standard, we look to the statutory text, and we must “presume that [the] legislature says in a statute what it means and means in a statute what it says there.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (alteration in original) (quoting Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)). It is clear from the statute‘s text—which sets forth a two-part requirement for authorization of incidental take, see
Defendants next contend that the mitigation requirement is superfluous; in
We conсlude that NMFS is required to prescribe regulations to achieve the “least practicable adverse impact” before it can authorize incidental take. While NMFS‘s finding that LFA sonar operations will have a “negligible impact” on marine mammal populations is a required element for approval of incidental take, it is not a substitute for an analysis of whether the proposed mitigation measures in the 2012 Final Rule reduce the impact of incidental take on marine mammals to the lowest level practicable. Compliance with the “negligible impact” requirement does not mean there was compliance with the “least practicable adverse impact” standard during rulemaking. Moreover, NMFS did not in agency proceedings contend that its finding of negligible impact on populations meant it satisfied the “least practicable adverse impact” standard for mitigation. NMFS makes that argument only in its briefing on appeal, “underscor[ing] the absence of an adequate explanation in the administrative record itself.” Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1050 (9th Cir.2010); see also Chenery, 332 U.S. at 196; State Farm, 463 U.S. at 50 (explaining that “post hoc rationalizations for agenсy action” are no substitute for “the basis articulated by the agency itself“).
Having determined that NMFS was required to promulgate regulations to effect the “least practicable adverse impact,” we turn to examining what that standard requires and whether the 2012 Final Rule complied with it. In seeking the meaning of “least practicable adverse impact,” we naturally start with the language of the statute. United States v. Am. Trucking Ass‘ns, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940) (“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.“). “Practicable” normally means that something is capable of being done, or practical and effective. Practicable, OED Online, http://www.oed.com/view/Entry/149217; Practicable, Merriam-Webster, http://www.merriam-webster.com/dictionary/practicable. In context, a mitigation measure that is practicable in reducing the impact of military readiness activities on marine mammals must be both effective in reducing impact, but also not so restrictive of military activity as to unduly interfere with the government‘s legiti-
NMFS in its Final Rule did not appear to disagree with this formulation of thе “least practicable adverse impact” standard. In discussing its evaluation of the standard, it stated:
We have reviewed the Navy‘s proposed SURTASS LFA sonar activities and the proposed mitigation measures in the Navy‘s application to determine whether the resulting activities and mitigation measures would effect the least practicable adverse impact on marine mammals which includes a careful balancing of the likely degree to which the measure is expected to minimize adverse impacts to marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact of the effectiveness of the military readiness activity (i.e., minimizing adverse impacts to the lowest level practicable with mitigation measures).
77 Fed. Reg. at 50294.
This formulation makes sense so far as it is stated literally, but the problem arises that the Final Rule does not meaningfully discuss how the mitigation measures meet that “stringent standard.” Evans, 279 F.Supp.2d at 1159. See 77 Fed. Reg. at 50295, 50303. Similarly, the Final Rule states that “[o]ur responsibility under
NMFS was required to analyze whether its proposed mitigation measures reduce the effects of LFA sonar to the “least practicable adverse impact.”
V
Reviewing the evidence before the agency, we conclude that the “least practicable adverse impact” standard for mitigation measures was not satisfied. The facts before NMFS do not support its unexplained conclusion that the Final Rule‘s mitigation measures achieve the “least
We consider the practical impacts of mitigation measures adopted by NMFS and the likely practical impact of mitigation measures that were not adopted. Plaintiffs, while acknowledging that the three chosen mitigation measures reduce incidental take to some extent, contend that the measures are not sufficient to effect the least practicable adverse impact on marine mammal species, stock, and habitat, as the MMPA requires. Plaintiffs do not challenge the shutdown protocol and the coastal exclusion zone, two of the three mitigation measures discussed in Part II above. They do, however, contend that these measures taken as a whole are inadequate to make up for deficiencies in the third mitigation measure, the designation of OBIAs.
The parties’ dispute over OBIA designation dates to the beginning of the Navy‘s LFA sonar program. In the two previous iterations of LFA sonar rulemaking, many of the same Plaintiffs in this case challenged NMFS‘s OBIA designations as underinclusive. Plaintiffs first challenged the 2002 Final Rule‘s designation of only three OBIAs. Evans, 279 F.Supp.2d at 1162. The district court concluded that NMFS acted arbitrarily and capriciously in refusing to designate more OBIAs despite knowing of potentially sensitive areas, and that NMFS improperly shifted the burden to members of the public to prove that more OBIAs were necessary. Id. at 1163. Five years later, the 2007 Final Rule prescribed 10 OBIAs, which Plaintiffs again challenged, and which the district court again concluded were inadequate to meet the MMPA‘s least practicable adverse impact standard. Nat. Res. Def. Council v. Gutierrez, No. C-07-04771 EDL, 2008 WL 360852 at *10 (N.D. Cal. Feb. 6, 2008).
For its 2012 rulemaking, the most recent in the series, NMFS flagged 73 candidate OBIAs by consulting prior designated OBIAs, the Wоrld Database on Protected Areas, the First and Second Editions of Marine Protected Areas for Whales, Dolphins, and Porpoises by Dr. Erich Hoyt, and senior NMFS scientists identified as “subject matter experts.” 77 Fed. Reg. at 50300. Four subject matter experts, all senior NMFS scientists, raised concerns about OBIA selection to NMFS‘s Office of Protected Resources in a 2010 White Paper titled Identifying Areas of Biological Importance to Cetaceans in Data-Poor Regions. The White Paper authors were concerned that identifying OBIAs based only on known data would be difficult because in many instances, “relevant cetacean data are lacking for the appropriate region or spatial scale.” The White Paper recommended against equating data-poor regions with “zero population density” or “no biological importance.” Stated another way, the White Paper cautioned that NMFS should not assume that no or minimal data meant there were no or minimal cetacean populations in those areas.
The subject matter experts concluded that “proven ecological principles” suggеst a precautionary approach that protects three types of areas as OBIAs: (1) continental shelf waters and waters within 100 km of the continental slope; (2) 100 km around all islands and seamounts that rise within 500 meters of the ocean surface; and (3) regions of high primary productivity, known to correspond to higher sperm whale presence, as explained in a 2009 monograph that the White Paper cites. Michael A. Huston & Steve Wolverton, The Global Distribution of Net Primary Production: Resolving the Paradox, 79 Ecological Monographs 343 (2009). Separate from the White Paper, but consistent with its recommendations, the Marine Mammal Commission urged that it was
None of the subject matter experts who wrote the White Paper was involved in drafting the Final Rule. The White Paper appears to have played no role in the drafting of the Final Rule until less than two months before the Final Rule was finalized, when one of the rule drafters told the Navy that she had “unearthed” the subject matter exрerts’ “guidelines for selecting OBIAs in data-poor areas.” Even still, NMFS only responded to the White Paper in the Final Rule preamble‘s response-to-comments section, which referred to the White Paper‘s authors as “several other commenters” rather than as NMFS subject matter experts specifically convened to provide their expertise to the selection process. 77 Fed. Reg. at 50303.
NMFS‘s chosen OBIA designation criteria differ significantly from the White Paper‘s recommendations. The agency employed a multiple-step designation process that required for designation presence of one or more of the following attributes: high densities of animals, known breeding/calving grounds, foraging grounds, migration routes, or small distinct populations with limited distributions. NMFS evaluated these criteria based on what it termed the “best available information.” This designation method resulted in NMFS cutting nearly 70% of the candidate OBIAs. 77 Fed. Reg. at 50299-300.
NMFS‘s stated reason for cutting so many potential OBIAs was that there were insufficient data proving at least one of the chosen criteria above, even though such data do not exist for most of the world‘s oceans. NMFS alsо cut some areas that its subject matter experts had nominated for protection based on their judgment, regional expertise, or non-peer-reviewed literature, stating that those areas “require[d] more justification.” As the district court observed in its review of the 2007 Final Rule‘s OBIA selection, the current list of OBIAs once again shows what the Marine Mammal Commission deemed a “bias toward U.S. waters.” Only one OBIA was designated in each of the Caribbean Sea, Mediterranean Sea, Antarctic Convergence Zone, Southeast Atlantic, northwest Pacific, and southeast Pacific, and no area was designated on the Pacific Coast of South America. By contrast, NMFS designated four OBIAs each in the northwest Atlantic and the Northeast Pacific.
Plaintiffs contend that the resulting list of 22 OBIAs was an arbitrary and capricious policy choice. Defendants respond that NMFS considered the White Paper‘s recommendations for data-poor regions but properly chose a different approach, to which this court must defer. First, Defendants contend that NMFS was under no obligation to follow the White Paper‘s guidelines, because the White Paper itsеlf acknowledged the existence of a policy choice between a “precautionary” approach that “minimize[s] the chances of overlooking biologically important areas,” or a “pure” approach that “minimize[s] the chances of nominating sites that are of marginal biological importance and, therefore risk[s] overlooking biologically important areas.” Defendants contend that NMFS‘s resulting policy choice is entitled to deference, in essence that NMFS‘s explaining its decision not to adopt the White
The district court agreed with Defendants. First, the district court found that the White Paper acknowledged that the “precautionary” approach that it advanced “risked designating OBIAs in areas of ‘marginal biological importance’ that did not meet NMFS‘s criteria.” The district court concluded that because the White Paper refrained from choosing between the “precautionary” and “pure” approaches, it was inappropriate for the district court to substitute its judgment for that of the agency. The district court was satisfied that “NMFS chose the pure apprоach and explained its decision in the record, including reference to the White Paper and reasons for choosing a different approach.” Second, the district court found it probative that the White Paper did not recommend specific OBIAs, but only provided guidelines for inferring biological significance.
Although review under the APA is deferential, here we evaluate the agency‘s choices in the context not just of the APA, but also of the MMPA‘s least practicable adverse impact requirement, which sets a “stringent standard.” Evans, 279 F.Supp.2d at 1159. We conclude that NMFS erred because the measures adopted do not result in the “least practicable adverse impact” on marine mammal species, stock, and habitat.
OBIAs are a central component of the Final Rule‘s mitigation measures. The White Paper recommended a “precautionary” approach toward OBIA designation. The subject matter experts made clear that given the state of the science, particularly the many data-poor areas of the world‘s oceans, NMFS faced a choice whether to protect areas likely tо have biological importance based on “proven ecological principles,” or instead to “minimize the chances of nominating sites that are of marginal biological importance and, therefore, risk overlooking biologically important areas.” These competing options would either risk overprotection, or risk underprotection. NMFS chose the latter option without evaluating whether its choice satisfied the least practicable adverse impact standard. It should have considered whether the precautionary approach would give more protection to marine mammals, and then whether that protection would impede military training to a degree making that mitigation not practicable.
For areas of potentially high biological importance, NMFS‘s protocol made nondesignation the default, and required specific data to overturn that conclusion. This default is directly adverse to the subject matter experts’ recommended principle that shelf and slope areas should be protected absent “specific data to the cоntrary.” NMFS identified no science to support its conclusion that protecting data-poor areas of potential importance as OBIAs would not reduce adverse impacts on marine mammal species and habitat. In fact, Defendants themselves, as well as the district court, seem to agree with Plaintiffs that the Final Rule chose to forego some protections that would have further reduced the impact on marine mammals. For example, Defendants accept that there may be alternative OBIA criteria or mitigation measures that NMFS could have reasonably selected, but argue that the agency‘s choice should still be given deference. Yet the MMPA requires the “least practicable adverse impact,” and the agency has offered no explanation why it meets that standard—in fact, as explained above, it instead argues that it does not have to meet that standard.
Nor did NMFS consider more protected areas only to conclude that more protection was not practicable. Al-
We owe “[o]ur highest deference” to the agency‘s “technical analyses and judgments within its area of expertise.” League of Wilderness Defs. Blue Mountains Biodiversity Proj. v. Allen, 615 F.3d 1122, 1131 (9th Cir.2010). But we do not “rubber-stamp ... administrative decisions that [we] deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 859 (9th Cir.2005) (alterations in original) (citation omitted). The agency decision here conflicts with the statutory mandate requiring mitigation at levels that yield the least practicable аdverse impact. An agency conclusion that is in “direct conflict with the conclusion of its own experts,“—here, the agency‘s drastic reduction of OBIAs by eliminating candidate OBIAs in data-poor waters against the recommendations of its subject matter experts—is arbitrary and capricious. W. Watersheds Proj. v. Kraayenbrink, 632 F.3d 472, 492 (9th Cir.2011).
Defendants also urge us to defer to the agency‘s chosen OBIA selection criteria, which differed from the White Paper‘s, on the ground that we should not second-guess an agency‘s reasonable treatment of scientific data. Defendants rely on this court‘s decision in San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir.2014), in which we stated that we will “reject an agency‘s choice of a scientific model ‘only when the model bears no rational relationship to the characteristics of the data to which it is applied.‘” Id. at 621 (first quoting Nat‘l Wildlife Fed‘n v. EPA, 286 F.3d 554, 565 (D.C.Cir.2002); then quoting Appalachian Power Co. v. EPA, 135 F.3d 791, 802 (D.C.Cir.1998)). In San Luis, experts differed on which of two methods was best suited to assess the effect of certain water projects on the endangered delta smelt. Id. The U.S. Fish and Wildlife Service (FWS) chose the more conservative method, and the court found that the choice was supрorted by the record and within FWS‘s discretion. Id. at 610. But here, NMFS did not choose between competing methods designed to answer the same question; it made a policy choice not to protect areas—composing most of the world‘s oceans—for which little scientific data exist.
This policy choice is underprotective compared to the alternative proposed by the agency‘s subject matter experts. Although NMFS considered the White Paper‘s discussion of data-poor regions, the record does not show that NMFS critiqued the White Paper‘s scientific analysis or
First, NMFS said that areas identified using the White Paper‘s ecological principles did “not meet the criteria we established” for designating such areas. 77 Fed. Reg. at 50303-04. But this distinction is tautological. The White Paper‘s criteria were different than those NMFS ultimately chose, but the difference itself does not explain why NMFS‘s criteria were equally or more capable of meeting the statutory standard, particularly in areas where site-specific data do not exist.
Defendants contend that NMFS need not consider mitigation measures that are not supported by the best available information because federal regulations provide that the Final Rule and its mitigation measures are to be based on the “best available information.”
This selection of screening criteria, in our view, was a policy choice, not a scientific determination. We review it according to the standard voiced by the Suprеme Court in State Farm, and hold that NMFS “failed to consider an important aspect of the problem,” namely the underprotection that accompanies making conclusive data an indispensable component of OBIA designation. 463 U.S. at 43, 103 S.Ct. 2856. This systematic underprotection of marine mammals cannot be consistent with the requirement that mitigation measures result in the “least practicable adverse impact” on marine mammals.
Second, in response to the White Paper‘s conclusion that it is “not acceptable to proceed in the decision making process as if the ‘no data’ scenario were equivalent to ... ‘no biological importance,‘” NMFS reasoned that OBIAs are but one component of a “suite” of mitigation measures. 77 Fed. Reg. at 50304. However, the other two mitigation measures, the shutdown zone and coastal exclusion zone, apply regardless of whether an area is considered potentially biologically important or not. Relative to these mitigation measures, the only heightened protection possible under the agency‘s plan is designation as an OBIA. Defendants repeatedly emphasize that NMFS‘s decision not to designate an area as an OBIA did not mean that the agency assumed the area was biologically unimportant. But this is exactly how NMFS treated data-poor areas when it categorically barred their designation as OBIAs.
Furthermore, the MMPA‘s mitigation requirement applies to marine mammal “species or stock and its habitat,” and NMFS must “pay[] particular attention to rookeries, mating grounds, and areas of similar significance[.]”
Relying on the other two mitigation measures—shutdown upon detection of a marine mammal and a coastal exclusion zone—in all areas of the ocean not designаted as OBIAs ignores that OBIAs are one of only two mitigation measures capable of measurably reducing Level B harassment. The shutdown zone around LFA sonar vessels is not large enough to protect marine mammals from Level B effects between 165 and 175 dB. As a result, unless an area is designated as an OBIA or lies within 22 km of the coast, there is minimal mitigation of Level B harassment. Although Defendants emphasize that OBIAs are not the core component of the Final Rule‘s “suite” of mitigation measures, the record does not show that the other mitigation measures achieve the least practicable adverse impact.14
Defendants contend, and the district court was persuaded, that NMFS‘s plans to engage in “adaptive management” will in time allow the Final Rule to achieve the least practicable adverse impact standard. For example, the Final Rule allows NMFS and the Navy to specify additional OBIAs or other forms of mitigation in annual letters of authorization (LOAs), based on new information. Responding to the problem of data-poor oceanic regions, the Final Rule notes: “Recognizing that many areas throughout the world‘s oceans currently have few data to support an OBIA designation at this time, we and the Navy will continue to conduct literature reviews under the adaptive management provision of this regulation.” 77 Fed. Reg. at 50303. Moreover, “information regarding data poor areas is likely to evolve over the five year course of the final rule and beyond, and NMFS will consider new information to continue identifying OBIAs for [LFA sonar] operations.” Id. at 50304. Similarly, although the Final Rule did not designate any OBIAs for sperm whales, it promised to consider designating such OBIAs “through the adaptive management process.” Id. at 50309.
Despite these nods to the future, the Final Rule does not require that any specific mitigation measure be taken as a result of adaptive management activities. The mere possibility of changing the rules to accommodate new information does not satisfy the MMPA‘s strict requirements for mitigating the effects of incidental take. The district court observed that “the duty to adopt in advance measures to ensure the least practicable adverse impact cannot be met simply by deferring to potential unknown future measures.” See also Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1029 (9th Cir.2011) (“Just as it is not enough simply to invoke ‘scientific uncertainty’ to justify an agency action, it is not enough to invoke ‘adaptive management’ as an answer to scientific uncertainty.“). We agree with these principles and conclude that “adaptive management” is not an answer to the failure to adopt mitigation measures effecting the least practicable adverse impact on those marine mammal species, stocks, and habitats.
VII
The 2012 Final Rule does not establish means of “effecting the least practicable adverse impact on” marine mammal species, stock, and habitat, as is specifically required by the MMPA. NMFS impermissibly conflated the “least practicable adverse impact” standard with the required “negligible impact” finding. The statute‘s text makes clear that to authorize incidental take, NMFS must achieve the “least practicable adverse impact” standard in addition to finding a negligible impact. NMFS also did not give adequate protection to areas of the world‘s oceans flagged by its own experts as biologically important, based on the present lack оf data sufficient to meet NMFS‘s designation criteria, even though NMFS‘s own experts acknowledged that “[f]or much of the world‘s oceans, data on cetacean distribution or density do not exist.”
The district court‘s grant of summary judgment to Defendants is REVERSED and the matter is REMANDED to the district court for further proceedings.