Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________
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OCEANA, INC., )
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Plaintiff, )
)
v. )
)
PENNY PRITZKER, )
United States Secretary of Commerce, et al., [1] ) ) Civil Action No. 08-1881 (PLF)
Defendants, )
)
and )
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FISHERIES SURVIVAL FUND )
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Defendant-Intervenor. )
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_________________________________________ )
OPINION
This case involves a challenge to a Biological Opinion issued by the National Marine Fisheries Service (“NMFS”), in which NMFS determined that the operation of the Atlantic Sea Scallop Fishery would not jeopardize the continued existence of the Northwest Atlantic population segment of loggerhead sea turtles. This population segment is listed as threatened under the Endangered Species Act (“ESA”). Plaintiff Oceana, Inc. (“Oceana”) maintains that the agency’s no-jeopardy determination was arbitrary and capricious, and asks this Court to vacate the Biological Opinion. Oceana argues that NMFS reached its no-jeopardy determination by employing an interpretation of a key regulation that contravenes both the *2 regulatory text as well as the language and spirit of the underlying statute, the ESA. In addition, Oceana contends that NMFS neglected in its analysis to take proper account of various factors that harm loggerheads, instead focusing solely on the isolated effects of the Scallop Fishery. Oceana specifically accuses NMFS of ignoring the effects of climate change, an issue which Oceana had raised in comments that it submitted to the agency. Oceana further argues that NMFS has failed to establish adequate monitoring processes to ensure that limits on the number of loggerheads that lawfully can be harmed are not exceeded by the Fishery’s operation.
This matter is before the Court on cross-motions for summary judgment filed by Oceana and NMFS, as well as by defendant-intervenor Fisheries Survival Fund. The Court heard oral argument on these motions on November 25, 2014. Upon consideration of the parties’ papers, their arguments presented in open court, the relevant legal authorities, and pertinent portions of the administrative record, the Court will grant in part and deny in part each party’s motion for summary judgment and it will remand this matter to the agency for a limited purpose. [2]
*3
I. STATUTORY AND REGULATORY FRAMEWORK
The Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seq., has
been regarded as “the most comprehensive legislation for the preservation of endangered species
ever enacted by any nation.” Tenn. Valley Auth. v. Hill,
“Section 7 of the ESA prescribes the steps that federal agencies must take to
ensure that their actions do not jeopardize endangered wildlife and flora.” Nat’l Ass’n of Home
Builders v. Defenders of Wildlife,
When the BiOp concludes that jeopardy is likely to result from the action under
review, the consulting agency “shall suggest those reasonable and prudent alternatives which [it]
believes would not violate [Section 7(a)(2)] and can be taken by [the action agency].” 16 U.S.C.
§ 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h)(3). “Following the issuance of a ‘jeopardy’
opinion, the agency must either terminate the action, implement the proposed alternative, or seek
an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C.
§ 1536(e).” Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
§ 402.14(i)(1)(ii). The action agency is “required” to reinitiate Section 7 consultation “immediately” if the amount or extent of taking specified in the Incidental Take Statement is exceeded. 50 C.F.R. §§ 402.14(i)(4), 402.16(a).
In formulating a Biological Opinion, FWS and NMFS must “use the best
scientific and commercial data available.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8).
A BiOp constitutes final agency action subject to judicial review under the Administrative
Procedure Act. See Bennett v. Spear,
II. BACKGROUND
Loggerhead sea turtles, or Caretta caretta , are the most abundant species of sea turtle living in United States waters. SAR 13142. They are long-lived, and do not reach reproductive maturity until between ages 32 to 35. SAR 13157. Loggerheads feed on mollusks and crustaceans, among other things. SAR 13146. NMFS explains that “[i]n U.S. Atlantic waters, loggerheads commonly occur throughout the inner continental shelf from Florida to Cape Cod, Massachusetts and in the Gulf of Mexico from Florida to Texas, although their presence varies with the seasons due to changes in water temperature.” SAR 13145. In 1978, loggerheads were listed under the ESA as threatened throughout their global range. See SAR 13142.
On September 22, 2011, NMFS and FWS issued a final rule that divided the worldwide population of loggerheads into nine distinct population segments (“DPSs”), each of *6 which was separately listed as either endangered or threatened under the ESA. SAR 13144 (citing 76 Fed. Reg. 58,868 (Sept. 22, 2011)). This case concerns just one of these distinct population segments: the Northwest Atlantic DPS (“NWA DPS”), whose range extends north of the equator, south of 60° N latitude, and west of 40° W longitude. See SAR 13144-45. The NWA DPS — which, in the proposed version of the rule, originally had been listed as endangered — ultimately was listed as a threatened species in the final rule. SAR 13143-44; see also 76 Fed. Reg. 58,868, 58,917-24, 58,945-46.
The BiOp under challenge here assesses the impact of the Atlantic Sea Scallop
Fishery on the NWA DPS of loggerheads. This Fishery’s operation is governed by the Scallop
Fishery Management Plan (“Scallop FMP”), pursuant to the Magnuson-Stevens Fishery
Conservation and Management Act (“MSA”). See 16 U.S.C. §§ 1854(a), (b). The MSA governs
domestic marine fisheries through eight regional fishery management councils that prepare
FMPs. 16 U.S.C. §§ 1801(b)(1)(B), 1852(h). The Scallop FMP was implemented on May 15,
1982 to manage scallop harvesting. See SAR 13129. “Scallops are found in the Northwest
Atlantic Ocean from North Carolina to Newfoundland, along the continental shelf, typically on
sand and gravel bottoms.” SAR 13126. The Fishery uses dredge and bottom trawl vessels to
capture scallops, operating year-round in U.S. waters. SAR 13125-26. The Fishery primarily
uses “dredge gear, a set of steel frames, usually fifteen feet in length, which are towed along the
sea floor,” but also uses “[t]rawl gear,” comprised of “a cone-shaped net equipped with steel
weights, also towed along the seabed.” Oceana, Inc. v. Evans,
NMFS first initiated formal consultation under Section 7 for the Fishery on December 21, 2001. SAR 13121. This first consultation concluded with the issuance of the *7 February 2003 BiOp. As with every BiOp since, NMFS concluded that the Fishery’s operation would not jeopardize the continued existence of the loggerhead sea turtle. Id. NMFS reinitiated formal consultation later that year, in November 2003, due to the availability of relevant new information. Id. The reconsultation resulted in the February 2004 BiOp. Id. NMFS again reinitiated consultation in September 2004 to consider yet more new information, resulting in a new BiOP issued in December 2004. Id.
Plaintiff Oceana, an international advocacy group focused on ocean conservation,
brought a lawsuit challenging the December 2004 BiOp, beginning more than ten years of
litigation against NMFS’ BiOps relating to the Atlantic Sea Scallop Fishery’s effect on the
loggerhead sea turtle. Oceana’s challenge was unsuccessful, and the December 2004 BiOp was
upheld in an opinion by Judge Huvelle. Oceana v. Evans,
NMFS then reinitiated consultation and issued a new BiOp in September 2006, which Oceana also challenged in court. See Oceana, Inc. v. Gutierrez, Civil Action No. 1:07-cv-00142-RBW (D.D.C. filed Jan. 19, 2007). After the litigation was underway, however, in April 2007 NMFS yet again reinitiated consultation. See Notice re: Biological Opinion, Oceana v. Gutierrez, No. 1:07-cv-00142-RBW (May 4, 2007) [Dkt. No. 14]. Because consultation was continuing, the parties agreed to stay the litigation. Motion to Approve Joint Stipulation & Order, Oceana v. Gutierrez, No. 1:07-cv-00142-RBW (June 29, 2007) [Dkt. No. 21]. The parties then voluntarily dismissed the case after entering into a Joint Stipulation, whereby NMFS agreed to consider Oceana’s comments in developing the new BiOp. See Joint Stipulation & Order, Oceana v. Gutierrez, No. 1:07-cv-00142-RBW (Jan. 23, 2008) [Dkt. No. 25].
In March 2008, NMFS issued a superseding BiOp (“the 2008 BiOp”) (later amended on February 5, 2009). SAR 13120. Oceana then initiated the present action challenging the 2008 BiOp, filing its complaint on October 31, 2008. See Dkt. No. 1. In February 2012, NMFS reinitiated consultation once again, and the following month it filed a motion seeking a stay of proceedings with respect to Oceana’s challenge to the 2008 BiOp. See Dkt. No. 70. Over Oceana’s objection, the Court granted NMFS’ motion, see Dkt. No. 73, and this action was stayed. NMFS issued the superseding BiOp on July 12, 2012, and the stay was lifted on October 31 of that year. In the 2012 BiOp, NMFS estimated that the Scallop Fishery would result in a total of 301 loggerhead takes annually. SAR 13245-48. Of those takes, NMFS predicted that during the 2012 fishing year up to 195 would be fatal, and that in subsequent years only up to 112 would be fatal due to the implementation of technological improvements designed to protect loggerheads. SAR 13263. The 2012 BiOp concluded that notwithstanding this loss of life, the continued operation of the Scallop Fishery would not be likely to result in jeopardy to the NWA DPS of loggerheads. Following Oceana’s filing of an Amended Complaint challenging this updated BiOp, the parties filed the three pending cross- motions for summary judgment.
III. LEGAL STANDARD
“[W]hen an agency action is challenged[, t]he entire case on review is a question
of law, and only a question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d
1221, 1226 (D.C. Cir. 1993). While the general standard for summary judgment set forth in Rule
56 of the Federal Rules of Civil Procedure does not apply to a review of agency action, summary
judgment nonetheless “serves as the mechanism for deciding, as a matter of law, whether the
agency action is supported by the administrative record and otherwise consistent with the APA
*9
standard of review.” Sierra Club v. Mainella,
Under the APA, a reviewing court shall “hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The arbitrary and capricious
standard is deferential; it requires that agency action simply be ‘reasonable and reasonably
explained.’” Communities for a Better Environment v. EPA,
“The Court’s review, however, must be ‘searching and careful.’” Colorado River
Cutthroat Trout v. Salazar,
IV. DISCUSSION
A. Article III Standing
NMFS first asserts that Oceana lacks standing to challenge the 2012 BiOp.
Although Oceana has proffered the declarations of two of its members — who maintain that they
enjoy the study and observation of loggerheads and therefore would be injured by harm to the
species caused by interactions with the Scallop Fishery — NMFS contends that because the
“action area” does not extend to the specific North Carolinian island on which those declarants
*11
observe sea turtles, they cannot demonstrate a causal connection between the Fishery and their
asserted injuries. See NMFS Opp. & MSJ at 19-20; NMFS Reply at 2-3.
[4]
“Article III of the Constitution limits federal-court jurisdiction to ‘Cases’ and
‘Controversies.’” Massachusetts v. EPA,
To possess standing, a plaintiff must have suffered an “injury in fact,” meaning
“an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife,
Oceana’s two declarants — Erica Grantmyre and Emily Fisher — observe and study loggerheads on Bald Head Island, which lies off the coast of North Carolina. [6] Ms. Grantmyre lives on Bald Head Island and volunteers with the Bald Head Island Conservancy. Declaration of Erica Grantmyre (“Grantmyre Decl.”) ¶¶ 2-3 [Dkt. No. 93-1]. While volunteering, she monitors and excavates loggerhead nests. Id. ¶¶ 4-6. Ms. Grantmyre states that she would be “injured,” “devastated,” and “upset,” if she “were unable to monitor or excavate nests on Bald Head Island because loggerhead sea turtles had gone extinct or their populations were so depleted that they would not return to the island,” as well as if members of the public such as her own grandchildren were “unable to observe the nests and baby turtles as a result of depletion in the turtles’ population.” Id. ¶¶ 11, 13. She notes that she already has observed “females arriving to nest whose carapaces are severely dented,” and opines that “[i]t appears that these injuries have occurred from boat propellers or other heavy equipment.” Oceana has standing to challenge the BiOp on behalf of two of its members, it does not reach the question whether Oceana would have standing to pursue this action on its own behalf.
[6] NMFS initially argues that because Oceana’s declarations “were executed in 2010, [they] thus fail to provide any evidence of the declarants’ present or planned future use of areas frequented by sea turtles.” NMFS Opp. & MSJ at 19. In response to this argument, Oceana has submitted new declarations virtually identical to the earlier ones — executed and updated by the declarants in 2013 — along with its reply brief. See Oceana Reply at 2-3 n.2; see also NMFS Reply 2 n.3 (acknowledging Oceana’s submission of updated declarations). The Court refers to the versions of these declarations that were executed in 2013. *13 Id. ¶ 10. Similarly, Ms. Fisher’s family owns a home on Bald Head Island that she plans to continue visiting “on a yearly basis,” where she “derive[s] great pleasure from observing the nesting and hatching of loggerhead turtles and from witnessing them interact with their natural environment.” Declaration of Emily Fisher (“Fisher Decl.”) ¶ 12 [Dkt. No. 93-2]. Ms. Fisher states that she would be “devastated” if she were “unable to witness a mature loggerhead turtle nesting or a nest hatching because the sea turtles had gone extinct or their population was so depleted that they would not return to the island.” Id. ¶ 13.
These declarations from two of Oceana’s members are sufficient to ground
Oceana’s standing to challenge the 2012 BiOp. See In re Navy Chaplaincy,
NMFS argues that Oceana relies on the “animal nexus” theory of standing that
was rejected by the Supreme Court in Lujan, but this argument is unpersuasive. The Lujan Court
*14
characterized this discredited approach as maintaining that “anyone who observes or works with
an endangered [or threatened] species,
anywhere in the world
, is appreciably harmed by a single
project affecting
some portion
of that species with which he has no more specific connection.”
Lujan v. Defenders of Wildlife,
The Court also rejects NMFS’ related assertion that “Oceana errs in focusing on the range of the species rather than the action area defined in the 2012 BiOp.” NMFS Reply at 3 & n.4; see also NMFS Opp. & MSJ at 19-20. As Oceana’s counsel demonstrated at oral argument, Bald Head Island lies a mere 100 miles south of the lower boundary of the Fishery. Loggerheads that nest on Bald Head, therefore, quickly enter the Fishery upon leaving their nesting sites and spend much of the year traversing the Fishery before eventually returning to their nests the following year. And as Oceana persuasively explains, “[i]f a turtle is killed off the coast of Long Island on its way to its nesting beach in North Carolina, a resident of North Carolina would plainly suffer an injury when the turtle does not appear at its normal nesting *15 site.” Oceana Reply at 5. NMFS’ decision to circumscribe the scope of the action area, for purposes of its Section 7 consultation, to the area in which the Scallop Fishery operates has no bearing on the constitutional principles of injury in fact, causation, and redressability that govern this Court’s standing inquiry. Moreover, NMFS fails to acknowledge that the relevant injury here is not injury to loggerheads, but, rather, injury to the plaintiffs’ members. For the reasons just explained, Ms. Grantmyre and Ms. Fisher each would have standing to challenge the 2012 BiOp.
Oceana must also show that the interests it seeks to protect by this lawsuit are
germane to its organizational purpose, and that “neither the claim asserted nor the relief
requested requires the participation” of Ms. Grantmyre or Ms. Fisher as individuals. See Hunt v.
Wash. State Apple Adver. Comm’n,
B. Is NMFS’ Interpretation of 50 C.F.R. § 402.02 Arbitrary and Capricious? Oceana’s principal argument is that NMFS, in determining whether the Scallop Fishery would “jeopardize the continued existence of” loggerheads within the NWA DPS, see 16 U.S.C. § 1536(a)(2), applied an unlawful construction of the regulation that defines this pivotal statutory phrase. The regulation at issue provides that the statutory phrase “[j]eopardize the continued existence of” means
to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the *16 survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.
50 C.F.R. § 402.02. In the 2008 BiOp, NMFS indicated that it construed the term “reduce appreciably” to mean that there be a “ considerable or material reduction in the likelihood of survival and recovery” of the species. See AR 16839-40 (emphases added). Although the 2012 BiOp pointedly declines to restate this definition, see SAR 13116, Oceana contends that NMFS has again required a “considerable” or “material” reduction in the likelihood of loggerheads’ survival and recovery. It argues that such construction of the regulation contravenes the plain text of the regulation as well as the language and purpose of the Endangered Species Act itself, resulting in an erroneous determination that the Fishery is not likely to jeopardize the continued existence of the NWA DPS of loggerheads.
Although the 2012 BiOp does not explicitly define “reduce appreciably,” Oceana infers that NMFS’ analysis in the 2012 BiOp employed the same standard as it had applied in the 2008 BiOp, where NMFS did define the regulatory language as requiring a “considerable” or “material” reduction in order to trigger a finding of jeopardy. See Oceana MSJ at 1-2, 17-18 & n.13; Oceana Reply at 6-7. NMFS appears to concede that Oceana’s inference is accurate. See NMFS Opp. & MSJ at 25-26 (“NMFS does not dispute that the underlying approach to the jeopardy analysis in the 2012 BiOp was largely the same as that in the 2008 BiOp.”); id. at 26 (“In both [BiOps], the agency considered the impact of takes from the fishery on the future survival and recovery of the species, and whether any difference was both capable of being considered and meaningful from a biological perspective .”) (emphasis added). Thus, despite NMFS’ decision not to define “reduce appreciably” in the 2012 BiOp, the parties seem to agree that NMFS applied a construction of the phrase that aligns with the definition that it articulated in the 2008 BiOp. Accordingly, contrary to the suggestion of intervenor-defendant Fisheries *17 Survival Fund, see FSF MSJ at 24 n.17; FSF Reply at 4, Oceana’s challenge to the propriety of this construction of the regulation is not moot. [7]
1. Consistency with Regulatory Text
Oceana argues that the language of 50 C.F.R. § 402.02 is unambiguous and that NMFS’ interpretation of its key phrase — “reduce appreciably” — is plainly inconsistent with the regulatory text. According to Oceana, the word “appreciably” means “‘capable of being perceived’ or measured.” Oceana MSJ at 24 (quoting W EBSTER ’ S T HIRD N EW I NT ’ L D ICTIONARY 105 (1993)). Thus, says Oceana, NMFS has unlawfully imported a heightened requirement that any reduction in the likelihood of loggerheads’ survival and recovery be “considerable” or “material,” rather than simply being perceptible. Id. at 24-26; Oceana Reply at 9-10. And Oceana contends that if the regulation’s text is construed according to its ordinary meaning, “there can be no question that . . . the Fishery will cause an ‘appreciable’ reduction in Loggerheads,” given the evidence in the administrative record. Oceana MSJ at 25; see also id. at 17 (stating that NMFS applied “the same definition in 2012 that it had invented in 2008; otherwise, it could not have found that the Fishery would not” cause jeopardy); Oceana Reply at 12-13. NMFS and FSF both maintain that the agency’s interpretation of its own regulation is consonant with the regulatory text, and that its interpretation therefore is entitled to deference *18 from this Court. NMFS Opp. & MSJ at 29-31; NMFS Reply at 6-8; FSF MSJ at 25-31; FSF Reply at 7-9. [8]
“An agency’s interpretation of its own regulations is entitled to ‘substantial
deference’ and is given ‘controlling weight unless it is plainly erroneous or inconsistent with the
regulation.’” Shieldalloy Metallurgical Corp. v. Nuclear Regulatory Comm’n,
*19
The Court concludes that NMFS’ construction of the phrase “reduce appreciably”
does not contravene the text of 50 C.F.R. § 402.02, which, contrary to Oceana’s contention, is far
from unambiguous. As noted, Oceana relies on
Webster’s
for the “common dictionary
definition” of “appreciable” as meaning “capable of being perceived or measured.” Oceana MSJ
at 15, 24.
[9]
But as NMFS points out, see NMFS Reply at 7 n.10, this is not the only available
definition of the word. See T HE N EW O XFORD A MERICAN D ICTIONARY 1724 (2d ed. 2005)
(“Something that is appreciable is large enough to be measured, valued, estimated,
or considered
significant
.”) (emphasis added) (boldface type omitted); cf. United States v. Wells,
Although an agency’s interpretation of an ambiguous regulation generally receives substantial deference, Oceana contends that NMFS’ interpretation of “reduce appreciably” does not merit such deference because it conflicts with a prior interpretation *20 employed by the agency. Specifically, Oceana points to materials created by the Fish and Wildlife Service and used by NMFS to train its Section 7 biologists, in which “appreciable” is defined to mean “capable of being perceived,” and “[m]easureable, detectable, perceptible.” Oceana MSJ at 25. NMFS responds by noting that its preferred interpretation of “appreciably” is consistent with the interpretation given by FWS and NMFS to a related regulation under the ESA, an interpretation that is set forth in the agencies’ shared Endangered Species Consultation Handbook . See NMFS Opp. & MSJ at 30 n.9; NMFS Reply at 8 n.11 (noting that the agencies interpret “appreciably diminish the value of” critical habitat as “to considerably reduce the capability” of the habitat to support the species). NMFS also contends that even if its definition of “appreciably” is viewed as a departure from the interpretation provided in the FWS training materials, the explanation provided in the 2008 BiOp “reasonably explained that departure.” NMFS Opp. & MSJ at 30 n.9.
The Court need not resolve this conflict regarding the applicability of Auer
deference in these circumstances, because even under a less deferential standard, see Christopher
v. SmithKline Beecham Corp.,
Finally, Oceana argues that NMFS’ interpretation of “reduce appreciably” leads the agency to ignore the Fishery’s effects on the loggerhead’s likelihood of recovery from its threatened status — as opposed merely to its survival — in contravention of the regulation’s mandate to consider both survival and recovery. “Recovery means improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in [the ESA].” 50 C.F.R. § 402.02. Oceana emphasizes that the plain language of the controlling regulation requires NMFS to assess whether the Fishery’s operation “reasonably would be expected . . . to reduce appreciably the likelihood of both the survival and recovery ” of loggerheads in the NWA DPS. 50 C.F.R. § 402.02 (emphases added). According to Oceana, “in considering the effect of the Fishery based on a ‘material or considerable’ reduction in chances of survival using tests of ‘statistical significance,’ the Fisheries Service ignored the impact of the Fishery on Loggerheads’ recovery.” Oceana MSJ at 27; see also Oceana Reply at 16 (“The Fisheries Service’s interpretation does not even require it to consider recovery impacts . . . .”). *22 The Court agrees with Oceana that the agency must address both the survival and recovery prospects of the loggerhead. But its argument based on that premise extends no further than the conclusory statements that the Court has quoted above; if there is some logic to its contention that NMFS’ construction of “reduce appreciably” necessarily reads “recovery” out of the regulation, Oceana does not elucidate that linkage.
Nor is the Court persuaded by Oceana’s related contention, advanced in its reply
brief, that the agency’s analysis of the Fishery’s effect on loggerheads’ recovery prospects is
“perfunctory,” and, in effect, no different than its analysis of the Fishery’s effects on survival.
See Oceana Reply at 9-10. The BiOp includes a fairly extensive discussion of recovery impacts,
centered on the recovery criteria established in the 2008 Recovery Plan for the Northwest
Atlantic Population of the Loggerhead Sea Turtle. See SAR 13148-49, 13265-68. NMFS
specifically finds in the BiOp that interactions between loggerheads and the Fishery will not
lessen the species’ genetic heterogeneity, see SAR 13268, and it further determines that the
continued operation of the Fishery will not affect two of the loggerheads’ recovery criteria — the
number of nests and nesting females, and trends in abundance on foraging grounds — to such an
extent that there would be an appreciable reduction in their likelihood of recovery. SAR 13270.
NMFS concludes that the “proposed action would not impede progress on carrying out any
aspect of the recovery program or achieving the overall recovery strategy.” Id. Thus, NMFS has
identified the reasons underlying its conclusion that the likelihood of loggerheads’ recovery
would not be appreciably reduced by the operation of the Fishery, and it has articulated a rational
connection between these reasons and that conclusion. This is all that the APA requires.
[10]
*23
2. Consistency with the Endangered Species Act
Oceana contends that even “if [NMFS] correctly construed its regulation, then it
impermissibly construed the Endangered Species Act because [NMFS’] interpretation inverts its
conservation mandate under that statute, conflicting with its text, structure, and purpose.”
Oceana MSJ at 23; see Stinson v. United States,
Oceana’s only support for this textual argument is the Ninth Circuit’s decision in Nat’l Wildlife Federation v. NMFS. But Oceana has presented the language of that opinion out of context. The Ninth Circuit there was explaining that the word “jeopardize” indicates an element of causation, meaning that even if “background conditions [already have] place[d] a species in jeopardy,” the agency action under review “can only ‘jeopardize’ a species’ existence if that agency action causes some deterioration in the species’ pre-action condition.” Nat’l likelihood of survival and recovery.” Oceana Reply at 11 (emphasis added) (paraphrasing 50 C.F.R. § 402.02). The Court is unpersuaded that the regulatory language requires NMFS to forego use of this common statistical tool.
Wildlife Federation v. NMFS,
Oceana further argues that NMFS’ approach contravenes the design and purpose
of the ESA. Oceana MSJ at 28-30; Oceana Reply at 14-16. The Supreme Court has emphasized
that the statute’s “language, history, and structure . . . indicates beyond doubt that Congress
intended endangered species to be afforded the highest of priorities.” Tenn. Valley Auth. v. Hill,
But just because Oceana’s approach may be more protective than the agency’s
does not mean that NMFS’ interpretation of 50 C.F.R. § 402.02 — and, in turn, its construction
*25
of “jeopardize the continued existence of” — is in conflict with the Endangered Species Act.
NMFS, as an expert agency charged with administering the ESA, may reasonably conclude that a
given agency action, although likely to reduce the likelihood of a species’ survival and recovery
to some degree, would not be likely to jeopardize the continued existence of the species. Of
course, this does not mean that NMFS has unfettered discretion to permit
any
degree of reduction
in the likelihood of a species’ survival and recovery. In a given case, NMFS’ determination that
a particular reduction is not “material” may be unreasonable in light of the data on which the
agency relied, and therefore arbitrary and capricious. See Motor Vehicle Mfrs. Ass’n of United
States, Inc. v. State Farm Mut. Auto. Ins. Co.,
C. Is the 2012 BiOp’s No-Jeopardy Determination Arbitrary and Capricious for Other Reasons?
Apart from Oceana’s focus on NMFS’ interpretation of the words “reduce appreciably,” Oceana levels other attacks against the agency’s no-jeopardy determination. The Court first considers Oceana’s contention that NMFS did not adequately account for so-called “cumulative effects” and “aggregate effects” in conducting its jeopardy analysis. Next, the Court examines Oceana’s argument that NMFS specifically failed to consider the potential effects of climate change. This latter argument is made in the context of a broader claim relating to Oceana’s submission of comments to NMFS, which, Oceana says, the agency ignored. Oceana’s comments were offered during the Section 7 consultation that led to issuance of the 2008 BiOp, pursuant to a stipulation between the parties in the civil action involving Oceana’s challenge to *26 the 2006 BiOp. In its comments, Oceana highlighted the potential effects of climate change on loggerheads’ survival and recovery. According to Oceana, NMFS’ failure to incorporate serious consideration of climate change in the 2012 BiOp constitutes a violation of the stipulation, as well as a violation of the agency’s statutory duty to “use the best scientific and commercial data available” in formulating the BiOp. See 16 U.S.C. § 1536(a)(2).
1. Cumulative Effects and Aggregate Effects
Oceana maintains that the BiOp is arbitrary, capricious, and contrary to law because it fails to take account of so-called (1) “cumulative effects” and (2) “aggregate affects.”
The term “cumulative effects” is defined in the regulations as “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.” 50 C.F.R. § 402.02. In formulating its Biological Opinion, NMFS is obligated to determine “whether the action, taken together with cumulative effects , is likely to jeopardize the continued existence of listed species.” 50 C.F.R. § 402.14(g)(4) (emphasis added). Oceana contends that NMFS ignored these effects in performing its jeopardy analysis. See Oceana MSJ at 30-31.
The term “aggregate effects” is not found in the regulations. Oceana draws the term from the Endangered Species Consultation Handbook (“Handbook”), which NMFS and FWS both use to guide their performance of Section 7 consultations under the ESA. The Handbook states that a jeopardy determination is reached by assessing “whether the aggregate effects of the factors analyzed under [1] ‘environmental baseline,’ [2] ‘effects of the action,’ and [3] ‘cumulative effects’ in the action area — when viewed against the status of the species . . . — are likely to jeopardize the continued existence of the species.” Id. (quoting Handbook at 4-33 *27 (AR 2,277)). [11] Oceana employs the term “aggregate effects” in two ways. First, Oceana uses the term “aggregate effects” to refer specifically to the impact of more than 600 loggerhead takes that NMFS has authorized to occur in other federally regulated fisheries — besides the Scallop Fishery — which, says Oceana, the agency failed to consider in reaching its no-jeopardy determination in the 2012 BiOp. [12] Second, Oceana invokes the concept of “aggregate effects” to advance a broader methodological point, arguing that NMFS evaluated the Scallop Fishery’s effects in isolation, rather than in conjunction with the other factors identified in the regulations as contributors to jeopardy. See Oceana MSJ at 30-31. Thus, claims Oceana, no matter how dire the straits faced by the loggerhead due to the myriad factors that harm the species, NMFS will conclude that the Scallop Fishery does not cause jeopardy so long as the number of takes caused by the Scallop Fishery alone are not “too much.” See id. (quoting SAR 13264).
NMFS maintains that it did account for the cumulative effects of future state and private actions that affect loggerheads, as well as for the impact of the more than 600 loggerhead *28 takes caused by other federally authorized fisheries. See NMFS Opp. & MSJ at 31-34; NMFS Reply at 11-12. NMFS also disputes Oceana’s contention that the agency erroneously evaluated the Scallop Fishery’s impact on loggerheads in isolation, rather than in conjunction with the effects of the other factors identified in the regulations as contributors to jeopardy. NMFS maintains that its analysis of whether the effects of Scallop Fishery takes on loggerheads’ survival and recovery are “too much” occurs “in the context of” those other factors enumerated in the regulations, including cumulative effects and the effects of takes caused by other federally authorized fisheries. See NMFS Opp. & MSJ at 32-34; NMFS Reply at 11-12.
To support these assertions, NMFS points to various sections of the 2012 BiOp that set forth narrative discussions of the factors that Oceana has accused it of failing to consider. With respect to cumulative effects, Section 7 of the BiOp — entitled Cumulative Effects — identifies several future private and state activities affecting loggerheads, including fishing activities in state waters; the travels of seagoing vessels, which can collide with sea turtles; and human-caused pollution and contamination of the environment. See SAR 13259-61. NMFS states, however, that it lacks quantitative information regarding how many loggerheads might be negatively affected by these factors and therefore assumes them to be consistent with previous trends. Id. And with respect to the effects of other federally authorized fisheries, in Section 4 of the BiOp — entitled Environmental Baseline — NMFS presents information on these fisheries and the extent of takes occurring in them. See SAR 13208-10. NMFS includes a table that lists estimated loggerhead takes for a number of fisheries that recently have undergone Section 7 consultations, including the specific fisheries that Oceana cites in its motion, which together account for 610 takes, of which 257 are expected to be fatal. See SAR 13210. It is evident, then, that NMFS was aware of and discussed those factors that Oceana has accused it of failing to *29 consider. Indeed, Oceana does not point to any additional data that NMFS should have had in its sights. Rather, Oceana contends that in conducting its jeopardy analysis, NMFS did not actually consider the information regarding cumulative effects and the impact of takes occurring in other federally authorized fisheries.
If NMFS had done nothing more than to list and describe data that it purported to
incorporate into its jeopardy analysis — without indicating how that data actually factors into the
analysis — the Court might well have found the BiOp deficient for such opacity. See Tex Tin
Corp. v. U.S. EPA,
NMFS’ no-jeopardy determination appears to be centered largely on its identification of four population-level characteristics of the Northwest Atlantic Distinct Population Segment of loggerheads: a large nesting population; a nesting population that is geographically widespread; a nesting population trend that recently has been in decline, but which now appears to be stabilizing; and the fact that “substantial conservation efforts are underway to address threats” to loggerheads’ survival and recovery. See SAR 13158, 13270. [13] The BiOp cites a variety of data sources in support of its identification of these features. With respect to population size, the BiOp relies primarily on an estimate that places the adult female population in the NWA DPS at about 30,500. See SAR 13151, 13264. NMFS also cites other estimates, including a “much less robust” estimate of the total female population that ranges *30 from 60,000 to 700,000 individuals, SAR 13264, as well as a 2011 study drawing on aerial surveys of the Atlantic coast, which yielded a total population estimate of 588,000 loggerheads. SAR 13151. Regarding nesting trends, NMFS states that “[w]hile several [earlier] documents reported [a] decline in nesting numbers in the NWA DPS, when nest counts through 2010 are analyzed, the nesting trends from 1989-2010 are not significantly different than zero.” SAR 13158. In addition, “[t]he 2010 Florida index nesting number was the largest since 2000,” and “[n]esting in the Northwest Atlantic in 2011 was on par with 2010, providing further evidence that the nesting trend may have stabilized.” SAR 13267.
The essential logic underlying NMFS’ no-jeopardy determination is that, based on
the current estimated size of the NWA DPS, its wide dispersion, the seemingly promising recent
nesting trends, and the ongoing implementation of conservation measures, the species stands
strong enough that the takes caused by the Scallop Fishery are not likely to jeopardize its
continued existence. See SAR 13270. And NMFS reaches this conclusion while considering the
Scallop Fishery takes “within the context of” the effects of those factors comprising the
environmental baseline and included within cumulative effects. See SAR 13263. Although
NMFS has not applied a specific quantitative formula to account for all of these factors, the
agency’s logic is both discernible and rational: it weighed the impact of Scallop Fishery takes,
as well as takes caused by other sources, against the four positive attributes that characterize the
NWA DPS of loggerheads, and it concluded that the population’s continued existence would not
be jeopardized by these impacts.
[14]
NMFS’ conclusion, based on the agency’s evaluation of data
*31
within its realm of technical expertise, is entitled to substantial deference from this Court. See
Communities for a Better Environment v. EPA,
In the few pages of briefing that it devotes to its arguments on this topic, Oceana seems to focus entirely on NMFS’ use of the Population Viability Analysis (“PVA”). See Oceana MSJ at 30-31; Oceana Reply at 17-18. The PVA is a technical paper relied upon by NMFS in both the 2008 and 2012 BiOps, see SAR 13268-70, 13346-71, which “was used to estimate quasi-extinction (the point at which so few animals remain that the species/population will inevitably become extinct) likelihoods under conditions with and without fishery effects.” SAR 13269. Its authors established a baseline population trajectory using the rate of change in the adult female loggerhead population from 1989-2005. SAR 13351. The rate was then adjusted by adding back the level of take attributable to the Scallop Fishery (converted to adult female equivalents), and re-running the PVA. SAR 13269. The results of these two analyses were compared, and the comparison showed that both the baseline and adjusted baseline (which imagined a world with no Scallop Fishery takes) had quasi-extinction probabilities of zero at 25, 50, and 75 years, and a probability of 1% at 100 years. Id. [15]
SAR 13208. The implicit assumption, then, is that the level of loggerhead takes occurring in
other federally authorized fisheries is on par with the extent of takes that has been occurring in
recent years. See id. Although this point could have been established with better clarity — such
as through an explicit comparison of take numbers occurring in federally authorized fisheries
during the years from which NMFS draws its population trend data, as against those projected to
occur in the present and coming years — this lack of precision is not fatal to the BiOp. See
Colorado River Cutthroat Trout v. Salazar,
[15] Oceana focuses on another finding produced by the PVA’s model, namely that the “median time to quasi-extinction” was predicted to be sooner (207 years versus 240 years) with Fishery takes compared to a world without them. See Oceana MSJ at 16; Oceana Reply at 9-10, 12, 14-15 & n.14, 18. Oceana states that this finding shows that the Fishery will “hasten Loggerheads’ demise by 33 years.” Oceana Reply at 14 n.14. In actuality, the median time to
According to Oceana, “[b]y adopting the PVA model from the 2008 BiOp, the
2012 BiOp . . . lumped together cumulative impact, the status of the species, and the
environmental baseline to establish
a new baseline
against which the effects of the Fishery were
analyzed.” Oceana MSJ at 30. This approach, says Oceana, has the effect of isolating the
Scallop Fishery’s impacts from those of other sources of harm to loggerheads. See id. at 30-31.
But a Section 7 consultation must determine whether the specific agency action under review
actually causes some additional harm to the species, beyond that which the species may suffer
due to other factors. See Nat’l Wildlife Federation v. NMFS,
Consequently, if baseline conditions are already dire, then even a small additional impact due to Scallop Fishery takes may require a jeopardy determination. The PVA’s methodology is not inconsistent with this framework. Moreover, as NMFS emphasizes, the PVA quasi-extinction refers to “[t]he time when the quasi-extinction probability is 0.50,” SAR 13356 n.3, not to the time when quasi-extinction is predicted to occur. In any event, interpretation of the PVA’s various measures — and the relative weight to be given to each of these different measures — is a matter that falls within the purview of the expert agency, subject to review only for reasonableness. Contrary to Oceana’s view of the data, the PVA’s authors considered the median times to quasi-extinction with and without Fishery effects to be “similar.” SAR 13357. And NMFS discounted the value of this finding due to its long distance into an unknown future. See SAR 13116.
does not constitute the entirety of its analysis; as explained above, the jeopardy determination rests in large part on the qualitative assessment of population indicators and the estimated extent of Scallop Fishery takes, considered in light of takes occurring in other fisheries as well as the impact of other sources of harm to loggerheads. See NMFS Opp. & MSJ at 34. The Court concludes that NMFS has sufficiently demonstrated its consideration of these factors.
2. Climate Change
In comments submitted to NMFS pursuant to the Joint Stipulation and Order entered in Civil Action No. 07-0142, Oceana urged the agency to consider the effects of climate change in conducting its jeopardy analysis with respect to the NWA DPS of loggerheads. The 2012 BiOp includes a separate section entitled Climate Change , SAR 13228-33, and the topic of climate change is discussed in other portions of the BiOp as well. See SAR 13155-57. Nonetheless, Oceana contends that NMFS has failed to actually consider the effects of climate change in reaching its jeopardy determination, and it maintains that this failure violates the agency’s obligation to “use the best scientific and commercial data available” in formulating the BiOp. 16 U.S.C. § 1536(a)(2). [16] In particular, Oceana argues that NMFS’ choice to limit the scope of the action under review to only ten years, see SAR 13156, effectively “wrote out of the equation the effect of climate change on the status and recovery of the species.” Oceana MSJ at 40-41. NMFS responds that it “did not limit its consideration of climate change to a ten-year period,” as both its “narrative discussion on climate change and the PVA model consider long- term effects.” NMFS Opp. & MSJ at 41.
*34 The Court concludes that NMFS sufficiently addressed the potential impacts of climate change in the 2012 BiOp. In its discussion, NMFS reviews the current state of scientific data regarding climate change, and essentially determines that these data are too inconclusive to provide a basis for accurate predictions regarding impacts on loggerheads. As the agency explains in the BiOp, “current scientific methods are not able to reliably predict the future magnitude of climate change, associated impacts, whether and to what extent some impacts will offset others, or the adaptive capacity of this species.” SAR 13156. The agency does draw on existing studies to make some predictions about the types of factors that might affect loggerheads as a result of climate change — such as “increasing sand temperatures at nesting beaches which in turn would result in increased female:male sex ratio among hatchlings, sea level rise which could result in reduction in available nesting beach habitat, increased risk of nest inundation, and changes in the abundance and distribution of forage species which could result in changes in the foraging behavior and distribution of sea turtle species.” SAR 13231-32. According to NMFS, however, the available science only enables it to offer these predictions at such a general, qualitative, and relatively speculative level. See SAR 13231-33. Due to the agency’s stated inability to quantify these predicted impacts — a contention that Oceana fails to refute with citation to any overlooked scientific evidence — the Court finds that the agency’s consideration of climate change impacts in the 2012 BiOp satisfies NMFS’ burden to “use the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2).
Oceana cites cases in which courts have rejected an agency’s contention that
consideration of climate change was unwarranted because of the uncertain state of the available
data, see Oceana MSJ at 42-43, but those cases — unlike this one — involved wholesale failures
to even address the issue. See Center for Biological Diversity v. Salazar,
Another aspect of Oceana’s climate change argument is its complaint that NMFS limits its definition of the scope of the action under review (that is, the continued operation of the Scallop Fishery) to a ten-year time frame. It contends that “where the agency expects to see some effects of climate change on a ‘century scale,’ the decision to restrict the analysis to 10 years and assume no significant change during that period makes no sense.” Oceana MSJ at 44 (quoting SAR 13157). But as the Court already has described, the agency adequately explained that due to the lack of precise data — including the lack of long-term data — NMFS cannot offer more than general predictions at this point regarding the potential impact of climate change on loggerheads. Even though NMFS articulated its conclusion regarding climate change in the context of a ten-year time frame, Section 5 of the BiOp nonetheless discusses the long-term *36 impact of climate change, and the agency makes clear why it lacks the capability to quantify the magnitude of climate change impacts on loggerheads in the long term. Oceana also argues that the ten-year scope of review regarding climate change is discordant with NMFS’ reliance on the PVA model’s prediction of population trajectories out to 100 years. See Oceana MSJ at 43. But there is no necessary discord in using the PVA’s predictions at the 100-year mark to inform a jeopardy analysis that, at least with respect to climate change, is expressed by reference to predicted effects within the next ten years. As already explained, the Court finds that the BiOp provides sufficient discussion of the anticipated long-term effects of climate change, within the constraints of available data. The Court therefore concludes that NMFS adequately discharged its obligation to consider climate change in the 2012 BiOp.
D. Incidental Take Statement
Finally, Oceana challenges the Incidental Take Statement issued as a part of the
2012 BiOp. As explained supra at 4-5, an ITS is required where, as here, NMFS concludes that
agency action will not jeopardize a species’ continued existence, yet will cause some takes
incidental to that action. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i); Arizona Cattle Growers’
Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt.,
1. Dredge
A scallop dredge attaches behind a commercial fishing vehicle and essentially consists of a toothed bar on a frame with an attached bag on the backside of it. Dredges vary in size, with a “standard 15-dredge frame weigh[ing] approximately 4,500 pounds.” SAR 13235. As the frame drags along near to the sea bottom, the toothed bar dislodges scallops that then collect in the bag. SAR 13234. The dredge bag is made of “metal rings with twine mesh on the top and, sometimes, chafing gear on the bottom.” Id. The ITS anticipates “the annual average take of up to 161 [loggerheads] in dredge gear, of which up to 129 per year may be lethal in 2012 and up to 46 per year may be lethal in 2013 and beyond.” SAR 13295.
To determine whether this incidental take limit of 161 turtles annually has been exceeded, NMFS states that it will employ a “combination” of two monitoring approaches: a “dredge hour surrogate as a measure of actual takes,” and “the methods to estimate sea turtle/dredge interactions as described in [a 2011 scientific paper authored by Kimberly T. Murray].” SAR 13302. Both of these methods are aimed at addressing the inadequacy of “observer coverage” as a means of monitoring loggerhead takes. Traditionally, NMFS-trained observers have accompanied fishing vessels on some of their outings, and these observers record loggerhead takes when they occur. See SAR 13301. Since implementing gear modifications to *38 mitigate harm to loggerheads interacting with dredge gear, however, many loggerhead takes are now unobservable, as the turtles are deflected away from the dredge and therefore are not captured in the dredge bag and hauled up onto the vessel. [17]
The two major modifications to dredge gear are (1) Turtle Deflector Dredges (“TDDs”) and (2) chain mats. A TDD is “designed to deflect sea turtles over the dredge rather than underneath it,” because “keeping sea turtles from going underneath the dredge and keeping them out of the dredge bag is expected to reduce the severity of some interactions that occur.” SAR 13252; see also SAR 13132. Chain mats provide a similar benefit by “act[ing] as a barrier to prevent the capture of [sea turtles] in the ring of the bag.” SAR 13235. While the “gear modifications are not expected to reduce the actual number of sea turtle interactions with scallop dredge gear,” SAR 13134, “the severity of sea turtle injuries as a result of scallop dredge interactions will be less if the turtle is interacting with a TDD or dredge equipped with chain mats as compared to a standard dredge.” SAR 13249; see also SAR 13252. Both modifications are required throughout the majority of the Fishery during the months when loggerhead presence peaks. See SAR 13132 (TDDs); SAR 13235 (chain mats).
Although these technologies are meant to benefit loggerheads, they make the observation of loggerhead takes more difficult. As a consequence, NMFS plans to rely primarily on a monitoring “surrogate” to measure when the numerical take limit of 161 turtles has been reached. [18] The surrogate chosen by NMFS is the “dredge hour” — that is, the number of hours spent dredge fishing. NMFS will consider the ITS “exceeded,” thus re-triggering consultation, if *39 the “two-year running average of dredge hours in Mid-Atlantic waters . . . during the period of May through November of any scallop fishing year is greater than the average of the total number of dredge hours from Mid-Atlantic waters . . . during the same period of 2007 and 2008.” SAR 13302. The two-year running average for 2007-2008 was 252,323 hours. SAR 11599. The calculation and comparison of the two-year running averages will be performed on an annual basis. SAR 13297.
Oceana challenges two aspects of the ITS with respect to dredge fishing, arguing that (1) NMFS’ use of a surrogate for monitoring incidental takes is arbitrary and capricious because there are viable options for direct monitoring of these takes; and that (2) even if employing a surrogate is not unlawful, NMFS’ choice of the dredge hour surrogate in particular is arbitrary and capricious, because the method fails to serve as a meaningful trigger for reconsultation. Oceana MSJ at 33-36; Oceana Reply at 18-26.
The Court first addresses whether NMFS’ decision to use a surrogate — rather than to directly monitor loggerhead takes — is arbitrary and capricious. Oceana maintains that two alternative methods could feasibly be employed to monitor takes, despite the observation difficulties caused by the implementation of TDDs and chain mats. Oceana argues that NMFS could rely upon either underwater video monitoring, or the estimation methodologies set forth in the 2011 paper authored by Murray. Oceana MSJ at 34-35. [19] According to Oceana, NMFS failed to explain why the dredge hour surrogate was necessary in light of these methods, which, according to Oceana, are available and superior to any surrogate.
*40 The Court disagrees with Oceana. NMFS explained that the Fishery’s gear modifications obscure observers’ ability to count actual takes, making observer coverage “less effective.” SAR 13301. In light of this obscurity, NMFS considered alternatives for monitoring takes, including underwater video monitoring and removing chain mats from some hauls. Id. With respect to underwater video monitoring, NMFS determined, “[b]ased on the information currently available as well as the hardships experienced during previous use of this technology in studies of sea turtle interactions with scallop dredge gear,” that its use for monitoring “remains infeasible.” Id. Likewise, NMFS concluded that because “removal of the [chain mats] will likely increase the number of serious injuries and mortalities of sea turtles,” using this method to bolster observer coverage is not reasonable. Id. NMFS also considered using the Murray (2011) framework on its own — rather than in combination with the dredge hour surrogate — to numerically estimate takes, but reasonably (albeit briefly) explained that the approach has “a number of caveats,” particularly given certain limitations on the availability of data needed by the model. See SAR 13302.
Oceana contends that NMFS’ rejection of the video monitoring option “is not
based on current or complete information regarding the practicality of underwater camera use.”
Oceana MSJ at 34. Oceana points out that NMFS appears to have based its decision on the
authority of a single intra-agency memorandum issued in 2007, which, Oceana says, is both
unreliable and outdated. See id. And Oceana cites parts of the record indicating that researchers
have actually performed studies employing video monitoring on dredge gear, and that NMFS has
relied on these studies to inform some of its decision making. See id. at 34-35; see also id. at 35
n.23 (citing studies in the record involving the use of video monitoring on scallop dredges, and
citing YouTube videos taken by cameras mounted on dredges). The fact that video monitoring
*41
has been used in some scientific studies, however, does not refute NMFS’ assessment that it is
not feasible to use underwater video as the method for monitoring dredge interactions in the
Fishery. As stated in the 2007 memorandum cited in the BiOp, the use of video in various
studies has been conducted not under normal fishing conditions, but under preferable weather,
sea state, and lighting conditions. See AR 87-88. Oceana asserts, however, that advances in
technology since 2007 render NMFS’ rationale for rejecting video monitoring outdated. See
Oceana MSJ at 34-35; Oceana Reply at 24 (“Current capabilities of underwater cameras were not
discussed in the ITS, and it is beyond dispute that technology has dramatically advanced since
then.”). But Oceana does not back up this contention with support specific to the question at
hand: whether video monitoring could feasibly serve as the primary means of monitoring dredge
takes. Moreover, the Court will defer to an agency’s judgment on a technical matter such as this
one, provided that the agency has explained its reasoning. See Communities for a Better
Environment v. EPA,
Nor is the Court persuaded that NMFS’ rejection of the Murray estimation framework was arbitrary and capricious. Oceana’s brief argument on this point does not demonstrate that this method by itself feasibly could be used to monitor dredge takes on an ongoing basis. See Oceana MSJ at 35-36. The agency considered this option and decided against employing it as its primary means of monitoring loggerhead takes in the dredge fishery, and the Court defers to this judgment.
In sum, the Court concludes that NMFS’ decision to monitor dredge takes by way of a surrogate is not arbitrary or capricious. What remains, then, is Oceana’s challenge to the *42 particular monitoring surrogate chosen by NMFS: the number of hours spent dredge fishing in Mid-Atlantic waters from May through November. Oceana maintains that the dredge hour surrogate fails to function in a manner that will gives effect to the ITS’ dredge take limit of 161 loggerheads. See Oceana MSJ at 36-38; Oceana Reply at 24-26.
The provision of a monitoring mechanism in an ITS enables the take limit to
operate as “a ‘trigger’ that, when reached, results in an unacceptable level of incidental take,
invalidating the safe harbor provision, and requiring the parties to re-initiate consultation.”
Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d at
1249; see also Wild Fish Conservancy v. Salazar,
But the Incidental Take Statement here simply fails to explain how 252,323
dredge hours equals 161 takes. Instead, NMFS explains that it chose this particular number of
dredge hours because 2007 and 2008 “are the first two years after chain mats were required and
the last two years included in the Murray [2011] analysis,” from which NMFS drew its estimate
of 161 dredge gear takes. SAR 13302; see also SAR 13245 (describing the Murray study in
*43
further detail). As Oceana points out, however, recording the fact that an hour of dredge fishing
has taken place is not automatically equivalent to observing the occurrence or non-occurrence of
a specific number of loggerhead takes. In actuality, any number of takes might occur during a
given time period spent dredge fishing. See Oceana MSJ at 38 n.24. A surrogate is only as
useful as its fit with the actual object of study for which the surrogate is substituting. See Wild
Fish Conservancy v. Salazar,
2. Trawl
Somewhat similar to a dredge, trawl gear consists of a wide-mouthed net that drags behind a vessel. While the trawl component of the Fishery consists of only eleven vessels, SAR 13131, the ITS still estimates “the annual average take of up to 140 individuals in trawl gear, of which up to 66 per year may be lethal.” SAR 13295. To monitor this take limit, NMFS *44 will “continue to use observer coverage as the primary means of collecting incidental take information.” SAR 13302. This is because, “[u]nlike for dredges, chain mats are not required on trawl gear. Therefore if a turtle were unable to avoid an oncoming trawl, it would likely be captured in the trawl and, when the gear was hauled to the vessel, an observer could spot and record the incidental take.” NMFS Opp. & MSJ at 39-40. The agency explains that it created the numerical take limit of 140 turtles “using a statistical estimate that is not feasible to conduct on an annual basis . . . due to the data needs; length of time to develop, review, and finalize the estimates; and methodology used.” SAR 13303. Consequently, NMFS proposes re-estimating takes by trawl gear “approximately every five years.” Id. Although not explicitly stated in the BiOp, NMFS presumably will compare this re-estimate against the 140 turtle take limit to determine whether that limit has been exceeded during each of the five years preceding calculation of the estimate.
Oceana contends that re-estimating trawl takes on a five-year schedule rather than more frequently renders the monitoring mechanism ineffective. See Oceana MSJ at 38-39; Oceana Reply at 21. Oceana emphasizes that NMFS’ track record over the past decade indicates that new BiOps are issued much more frequently than every five years, and therefore it is unlikely that the take limit actually will be monitored “during the life of the BiOp.” Oceana Reply at 21; see also Oceana MSJ at 39 (“The trawl-gear component of the Fishery can expect to operate with impunity because it is unlikely that any measure of its compliance would be taken before a new BiOp issues . . . .”). Oceana “believes that such estimation could reasonably be done on a monthly basis utilizing monthly observer reports, but should be done at least on an annual basis to ensure that the limit has not been exceeded.” Oceana Reply at 21 n.21. Oceana does not, however, support this belief with citation to any evidence or authority. Nor does it *45 request the placement of more observers on trawl vessels, and the parties’ briefing does not address whether such a solution would be feasible.
The Court shares Oceana’s concerns regarding the effectiveness of a monitoring mechanism that is only able to assess every five years whether an annual take limit has been exceeded. NMFS is required under its own regulations to reinitiate Section 7 consultation “immediately” if “during the course of the action the amount or extent of incidental taking . . . is exceeded.” 50 C.F.R. § 402.14(i)(4); see also id. § 402.16(a). Thus, as Oceana argues, “there may be no recourse even if the scallop trawl take exceeds the estimate for five straight years.” Oceana Reply at 21. Nonetheless, the Court is unwilling to conclude at this point that NMFS’ trawl take monitoring mechanism necessarily is arbitrary and capricious for this reason. The agency’s primary explanation for the five-year estimation period — a lack of data — may result from constraints over which NMFS has little to no control. In particular, the BiOp suggests that the lack of data results from a dearth of observer coverage, see SAR 13135, 13231, 13238, a point also made in the agency’s briefing, NMFS Opp. & MSJ at 39-40, and reiterated by counsel for NMFS at oral argument. The five-year timetable may reflect very real limitations on NMFS’ data collection capabilities; consequently, it is possible that NMFS’ monitoring system for trawl takes represents the best available option for measuring trawl takes in the Fishery.
But the BiOp’s terse treatment of trawl take monitoring makes it difficult for the
Court to discern NMFS’ rationale in this regard. As noted, the long gap in measuring trawl takes
stands in marked tension with the regulatory requirement that NMFS reinitiate Section 7
consultation “immediately” if “during the course of the action the amount or extent of incidental
taking . . . is exceeded.” 50 C.F.R. § 402.14(i)(4). The single paragraph that NMFS devotes in
the BiOp to explaining its monitoring choice is insufficient to allay this concern. Nor does the
*46
paragraph addressing trawl take monitoring discuss in any detail the nature of NMFS’ statistical
model and its data needs. NMFS also fails to address whether any monitoring alternatives exist
that might be operable on a shorter timetable. Given these serious uncertainties about the
effectiveness of the five-year monitoring framework, the Court must remand to the agency so
that it can either provide a more thorough explanation of its choice, or, if unable to do so, reach a
different conclusion. Cf. Delta Air Lines, Inc. v. Export-Import Bank,
V. CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part each party’s motion for summary judgment and it will remand this matter to NMFS for the limited purpose of addressing the deficiencies in the Incidental Take Statement, as identified in this Opinion. The Court also directs the parties to meet and confer regarding an appropriate schedule for NMFS to follow in its revision of the ITS.
The Court rejects Oceana’s argument that the BiOp should be vacated. Vacatur of
the BiOp or even just of the ITS would not be an appropriate remedy in this case. “The
appropriateness of vacating an inadequately explained agency action depends on whether (1) the
agency’s decision is so deficient as to raise serious doubts whether the agency can adequately
justify its decision at all; and (2) vacatur would be seriously disruptive or costly.” Northern Air
Cargo v. U.S. Postal Serv.,
SO ORDERED.
/s/_______________________ PAUL L. FRIEDMAN United States District Judge DATE: December 17, 2014
Notes
[1] Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes as defendant the current Secretary of Commerce, Penny Pritzker, for former Acting Secretary Rebecca M. Blank.
[2] The papers considered in connection with the pending motions include: Oceana’s first amended complaint (“Am. Compl.”) [Dkt. No. 80]; the federal defendants’ answer [Dkt. No. 82]; Fisheries Survival Fund’s answer [Dkt. No. 81]; Oceana’s motion for summary judgment (“Oceana MSJ”) [Dkt. No. 87]; the federal defendants’ combined opposition to Oceana’s motion and cross-motion for summary judgment (“NMFS Opp. & MSJ”) [Dkt. Nos. 88 and 88-1 (memorandum in support)]; Fisheries Survival Fund’s cross-motion for summary judgment (“FSF MSJ”) [Dkt. No. 91]; Oceana’s combined reply in support of its motion for summary judgment and in opposition to NMFS and FSF motions for summary judgment (“Oceana Reply”) [Dkt. No. 93]; the federal defendants’ reply in support of their cross-motion for summary judgment (“NMFS Reply”) [Dkt. No. 96]; Fisheries Survival Fund’s reply in support of its cross-motion for summary judgment (“FSF Reply”) [Dkt. No. 97]; Oceana’s motion for oral argument [Dkt. No. 101]; the federal defendants’ notice of supplemental authority [Dkt. No. 105]; Oceana’s motion to strike federal defendants’ notice of supplemental authority [Dkt. No. 106]; the federal defendants’ opposition to Oceana’s motion to strike [Dkt. No. 107]; and the joint appendix of administrative record (“AR”) and supplemental administrative record (“SAR”) materials.
[3] The agency whose action is at issue is known as the “action agency,” while either FWS or NMFS serves as the “consulting agency.” See Nat’l Wildlife Federation v. NMFS, 524 F.3d 917, 924 (9th Cir. 2007). In this case, NMFS is both the “action agency” and the “consulting agency.” NMFS’ Sustainable Fisheries Division of its Northeast Regional Office administers the fisheries management program that governs the Atlantic Sea Scallop Fishery, which makes it the action agency here. Am. Compl. ¶ 19. The Protected Resources Division of the same Regional Office served as the consulting agency and authored the Biological Opinion. Id. ¶ 18.
[4] The 2012 BiOp defines the action area as “the area to be directly and indirectly affected by the scallop fishery,” which is “the area in which the scallop fishery operates.” SAR 13137.
[5] Oceana asserts each of these forms of standing — “organizational” and “representational” — both of which are contested by NMFS. Because the Court concludes that
[7] By contrast, the Court does find moot Oceana’s requests for relief that relate
specifically to the 2008 BiOp. See Am. Compl., Prayer for Relief ¶¶ (1), (5). The 2008 BiOp is
no longer in force, having been superseded by the 2012 BiOp. NMFS Opp. & MSJ at 21-22; see
American Rivers v. Nat’l Marine Fisheries Serv.,
[8] NMFS also contends that the Court need not reach this question at all, given evidence in the administrative record that, according to NMFS, demonstrates the correctness of its no-jeopardy determination even under Oceana’s preferred construction of the regulation. See NMFS Opp. & MSJ at 26-29; NMFS Reply at 5-6. The Court is not persuaded that the record is so unequivocal on this point that it obviates the need to resolve the parties’ dispute over NMFS’ regulatory interpretation.
[9] Appreciably, as the adverbial form of appreciable, generally does not enjoy its own dictionary entry. Accordingly, Oceana cites the definition for the adjective, not the adverb.
[10] Oceana puts forth an additional argument that appears principally in its reply brief, contending that the agency’s use of statistical significance tests — by way of its reliance on a technical paper, the Population Viability Analysis — “elevates statistical certainty above the obligation to protect Loggerheads from actions that reasonably can be expected to reduce their
[11] The regulation provides: “ Effects of the action refers to the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline. The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration.” 50 C.F.R. § 402.02 (emphases added).
[12] These takes fall within the scope of the “environmental baseline,” which, as noted supra note 11, “includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.” See 50 C.F.R. § 402.02.
[13] These are the same factors relied upon by NMFS in its decision to list the NWA DPS of loggerheads as threatened rather than endangered. See SAR 13158.
[14] In a related vein, the BiOp seems to indicate that the positive measures of loggerheads’ population status — particularly population size and stabilizing nesting trends — reflect both cumulative effects and the impact of other fishery takes. Cumulative effects are assumed to be consistent with prior trends and therefore incorporated into those measures. SAR 13259-61. With respect to takes occurring in other fisheries, the BiOp states that the impacts of those takes “are reflected in the status and trends of sea turtles” reported elsewhere in the BiOp.
[16] Oceana also complains that NMFS ignored other comments it had placed before the agency, concerning the implementation of “reasonable conservation efforts.” See Oceana MSJ at 19-20, 44; Oceana Reply at 28-29. But it offers effectively no detail or argument to support these additional claims. Accordingly, the Court will deny these claims for relief.
[17] Of course, even when a turtle is merely deflected away from a dredge, the interaction with the dredge gear still constitutes a “take” under the ESA. See 16 U.S.C. § 1532(19).
[18] For the limited dredging that occurs without the use of TDDs or chain mats, the Fishery will continue to rely on observer coverage. SAR 13301.
[19] As the Court noted supra at 37, NMFS claims to use the dredge hour surrogate in combination with the estimation method developed in the Murray (2011) paper. But the ITS seems to indicate that any plans to employ the so-called “Murray framework” on an ongoing basis are merely speculative. See SAR 13302. Accordingly, the Court focuses on NMFS’ reliance on the dredge hour surrogate as its mechanism for monitoring loggerhead takes attributable to dredge gear.
[20] Although the Court finds insufficient NMFS’ explanation regarding how its surrogate, as set forth in the BiOp, can function as a trigger with respect to the dredge take limit, the Court rejects Oceana’s broader argument that the use of dredge hours as a surrogate for loggerhead takes necessarily is arbitrary and capricious because it is “co-extensive with the scope of the Fishery’s dredge operation.” See Oceana MSJ at 37-38; see also Oceana Reply at 23-25.
[21] In its briefing and at oral argument, NMFS suggested that monthly reporting by observers on trawl vessels may provide a mechanism for more timely monitoring, see NMFS Opp. & MSJ at 40, but the BiOp itself does not explain how this reporting system might play any role in serving as the mechanism for determining when the take limit has been exceeded. Nor is it clear to the Court how periodic reporting could lead to a finding that the trawl take limit has been exceeded, given NMFS’ description of the paucity of its sample size. See id.