TURTLE ISLAND RESTORATION NETWORK; Center for Biological Diversity, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF COMMERCE; National Marine Fisheries Service; Wilbur L. Ross, in His Official Capacity as Secretary of Commerce; U.S. Department of the Interior; U.S. Fish & Wildlife Service; Ryan Zinke, in His Official Capacity as Secretary of the Interior, Defendants-Appellees, and Hawaii Longline Association, Intervenor-Defendant-Appellee.
No. 13-17123
United States Court of Appeals, Ninth Circuit.
December 27, 2017
878 F.3d 725
Argued and Submitted June 14, 2016 Honolulu, Hawaii
Brian C. Toth (argued), Ellen J. Durkee, Dean K. Dunsmore, and Kristen L. Gustafson, Attorneys; Jeffrey H. Wood, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Philip Kline, Office of the Solicitor, United States Department of the Interior, Portland, Oregon; Elena Onaga, Office of General Counsel, National Oceanic & Atmospheric Administration, United States Department of Commerce, Honolulu, Hawaii; for Defendants-Appellees.
Ryan P. Steen (argued) and Jeffrey W. Leppo, Stoel Rives LLP, Seattle, Washington, for Intervenor-Defendant-Appellee.
Before: SIDNEY R. THOMAS, Chief Judge, and CONSUELO M. CALLAHAN and MARY H. MURGUIA, Circuit Judges.
Dissent by Judge Callahan
OPINION
MURGUIA, Circuit Judge:
Plaintiffs Turtle Island Restoration Network and the Center for Biological Diversity challenge the decision of the National Marine Fisheries Service (“NMFS“) to allow a Hawaii-based swordfish fishery to increase its fishing efforts, which may result in the unintentional deaths of endangered sea turtles. Plaintiffs also challenge the decision of the U.S. Fish and Wildlife Service (“FWS“) to issue a “special purpose” permit to the NMFS, which authorizes the fishery to incidentally kill migratory birds.
Plaintiffs brought suit against the agencies under various environmental statutes that the NMFS and the FWS are charged with administering, including the Magnuson-Stevens Fishery Conservation and Management Act (the “Magnuson-Stevens Act“), the Endangered Species Act of 1973 (“ESA“), the Migratory Bird Treaty Act (“MBTA“), and the National Environmental Policy Act (“NEPA“). The Hawaii Longline Association subsequently intervened to represent the interests of the swordfish fishery in defense of the agencies’ actions. We have jurisdiction under
BACKGROUND
I. Regulatory Framework
In response to concerns about overfishing, Congress enacted the Magnuson-Ste
The ESA provides for the conservation of fish, wildlife, and plant species that are at risk of extinction by requiring federal agencies to ensure that actions they authorize, fund, or carry out are “not likely to jeopardize the continued existence” of any ESA-listed species.
The FWS also has authority to enforce the MBTA,
In addition to the substantive mandates of the ESA and the MBTA, both the NMFS and the FWS are subject to NEPA‘s procedural requirements. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). NEPA is concerned with process alone and “merely prohibits uninformed—rather than unwise—agency action.” Id. at 351. NEPA requires federal agencies to prepare environmental impact statements (“EIS“) detailing the effects of any proposed action that stands to have a significant impact on the environment. See
II. The Hawaii-Based Longline Fishing Industry
“Longline” fishing is a commercial fishing method that involves reeling out—or “setting“—a single, horizontal mainline to which shorter “branchlines” are attached at intervals. Each dangling branchline carries baited hooks. A typical longline set
The NMFS collects bycatch statistics by tracking the number of times a non-target animal is hooked or entangled by fishing gear. The most commonly observed non-target animal interactions are with Northern Pacific loggerhead and leatherback sea turtles, both of which are currently listed under the ESA as “endangered.” See
There are two separately regulated longline fisheries based out of Hawaii: the deep-set fishery—which targets tuna—and the shallow-set fishery, which targets swordfish. The two fisheries are managed by the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region (“Pelagics FMP“), developed by the Western Pacific Fishery Management Council (“Council“) in accordance with the Magnuson-Stevens Act and implemented by the NMFS. In 2001, the shallow-set fishery was closed by court order due to the NMFS‘s failure to prepare an EIS analyzing the impact of longline fishing on the sea turtle population, which the court found was a violation of the agency‘s NEPA obligations. See Leatherback Sea Turtle v. Nat‘l Marine Fisheries Serv., No. 99-00152, 1999 WL 33594329 (D. Haw. Oct. 18, 1999). In response, the NMFS issued an EIS and a BiOp in which the agency concluded that the shallow-set fishery was adversely affecting several species of sea turtles. In 2002, the NMFS issued regulations prohibiting all Hawaii-based swordfish longlining.
The Council subsequently developed various measures to minimize turtle bycatch, and in 2004 the NMFS reauthorized shallow-set longlining subject to new restrictions designed to reduce the number and severity of interactions between protected turtles and fishing gear. In part, the NMFS strictly limited the number of interactions the fishery could have with leatherback and loggerhead sea turtles to a maximum of 16 and 17, respectively, per fishing season. Further, the NMFS imposed an annual limit of 2,120 shallow sets, which represents fifty percent of the average number of sets deployed prior to the fishery‘s closure in 2001.
In 2008, the NMFS proposed an amendment to the Pelagics FMP (“Amendment 18“) that would remove the 2,120 annual set limit, allowing gear deployments to increase to their pre-2001 maximums, and also increase the number of sea turtle interactions allowed each year. After consulting internally pursuant to the ESA, the NMFS produced a BiOp concluding that Amendment 18 would not jeopardize the sea turtles. The NMFS issued a final rule implementing Amendment 18 in December 2009. 74 Fed. Reg. 65,640 (Dec. 10, 2009).
Plaintiffs initiated suit against the NMFS on the grounds that the 2009 rule violated the ESA and the MBTA. See Turtle Island Restoration Network v. U.S. Dep‘t of Commerce, 834 F.Supp.2d 1004, 1007 (D. Haw. 2011). Plaintiffs’ MBTA claim was based on the fishery‘s incidental take of migratory seabirds without an MBTA permit. The parties settled the case, and the NMFS entered into a consent decree that required it to withdraw its no jeopardy BiOp, reinstate the 2004 annual turtle-interaction caps, and issue a new BiOp after deciding whether to reclassify various population segments of sea turtles
The NMFS later proposed raising the shallow-set fishery‘s annual turtle interaction cap to 26 (with leatherbacks), and 34 (with loggerheads) and otherwise continuing to operate the fishery in accordance with the provisions of Amendment 18 to the Pelagics FMP. In January 2012, the NMFS issued a new BiOp concluding that the shallow-set fishery would not jeopardize the continued existence of either the loggerhead or leatherback turtles if it operated under higher caps on turtle interactions.
While it was engaged in the re-consultation process, the NMFS submitted an application to the FWS for a special purpose permit that would allow the shallow-set fishery to take migratory seabirds in connection with swordfish longlining. The FWS issued a final EA in which it considered denying the permit, granting the permit as requested, and granting the permit while requiring the NMFS to conduct new research on additional ways to avoid seabird interactions. See 77 Fed. Reg. 1501 (Jan. 10, 2012). The FWS ultimately concluded that none of the alternatives would have a significant adverse impact on the seabirds’ population levels. Accordingly, the FWS issued a finding of “no significant impact.” In August 2012, the FWS granted a three-year special purpose permit authorizing the shallow-set fishery to kill a maximum of 191 black-footed albatross, 430 Laysan albatross, 30 northern fulmars, 30 sooty shearwaters, and one short-tailed albatross. Of those birds, only the short-tailed albatross is listed under the ESA,
Plaintiffs subsequently filed this lawsuit under the ESA, the MBTA, and their implementing regulations, challenging the NMFS‘s final rule approving the continued operation of the shallow-set fishery and the FWS‘s issuance of a migratory bird permit to the NMFS. After the parties moved for summary judgment, the district court ruled in the agencies’ favor on all of Plaintiffs’ claims. Plaintiffs timely appealed.
STANDARD OF REVIEW
We review challenges to final agency action decided on summary judgment de novo and pursuant to Section 706 of the Administrative Procedure Act (“APA“). Turtle Island Restoration Network v. Nat‘l Marine Fisheries Serv., 340 F.3d 969, 973 (9th Cir. 2003). Review is based on the administrative record. Camp v. Pitts, 411 U.S. 138, 142 (1973).
The APA requires courts to “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,” “in excess of statutory jurisdiction,” or “without observance of procedure required by law.”
Separate from the APA, we also give deference to an agency‘s interpretation of the statutes and regulations that define the scope of its authority. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. compels us to defer to an agency‘s reasonable interpretation of its enabling legislation. 467 U.S. 837, 843 (1984). Under the Chevron analysis, we must first exhaust the traditional tools of statutory construction to determine whether Congress has “directly spoken to the precise question at issue.” Id. at 842. If we determine that the statute is silent or ambiguous on the question at hand, then at Chevron step two we must respect the agency‘s interpretation so long as it “is based on a permissible construction of the statute.” Id. at 843. A permissible construction is one that is not “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844; see also Judulang v. Holder, 565 U.S. 42, 483 n.7 (2011) (recognizing that Chevron step two is equivalent to the APA‘s arbitrary and capricious standard).
Chevron deference applies only to agency decisions rendered through formal procedures. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). However, under Auer v. Robbins, we must also defer to an agency‘s interpretation of its own ambiguous regulations, which controls unless “plainly erroneous or inconsistent with the regulation,” or where there are grounds to believe that the interpretation “does not reflect the agency‘s fair and considered judgment of the matter in question.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 2159 (2012) (quoting Auer v. Robbins, 519 U.S. 452, 461-62 (1997)). Similarly, “we must ensure that the interpretation is not inconsistent with a congressional directive; a court need not accept an agency‘s interpretation of its own regulations if that interpretation is inconsistent with the statute under which the regulations were promulgated.” Marsh v. J. Alexander‘s LLC, 869 F.3d 1108, 1116-17 (9th Cir. 2017). Our review of an agency‘s construction of a statute or regulation that does not qualify for either Chevron or Auer deference is de novo, although we may still accord the agency‘s opinion some weight. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952-53 (9th Cir. 2009) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
DISCUSSION
I. “Special Purpose” Permit
Plaintiffs argue that the FWS acted arbitrarily and capriciously by issuing a special purpose permit to the NMFS on behalf of a commercial operation—the shallow-set fishery—that provides no benefit to migratory birds. Plaintiffs specifically contend that, in issuing this permit, the FWS ignored or violated its obligations under the MBTA.
The MBTA is a strict liability criminal statute that Congress enacted for the “object and purpose ... to aid in the restoration of [game and other wild] birds.”
Pursuant to the MBTA, the FWS has enacted a permitting program for narrow categories of migratory bird takings, such as scientific collecting, rehabilitation, hunting, and depredation control. See
Here, the FWS interpreted
We conclude that the FWS‘s decision to issue a special purpose permit to the NMFS on behalf of a commercial fishery was arbitrary and capricious. Although the FWS‘s interpretation of
The FWS unpersuasively argues that the phrase “related to migratory birds” is not a restriction on its permitting authority, but merely a description of what can be permitted. The FWS specifically maintains that longline fishing is “related to migratory birds” because it incidentally interacts with them. Although nothing in the regulation requires that the permitted activity directly concern migratory birds, it nevertheless strains reason to say that every activity that risks killing migratory birds “relate[s] to” those birds. See
The FWS‘s interpretation of
II. 2012 “No Jeopardy” BiOp
Plaintiffs also argue that the NMFS violated the ESA by failing to properly assess the shallow-set fishery‘s impacts on endangered sea turtles. The ESA permits federal agencies to authorize actions that will result in the taking of endangered or threatened species only if the projected take “is not likely to jeopardize the continued existence of” any listed species.
Where listed marine species are concerned, the NMFS prepares a BiOp evaluating the effects of the proposed action on the survival and recovery of the listed species.
When formulating a BiOp, the NMFS must base its conclusions on evidence supported by “the best scientific and commercial data available.”
In 2012, the NMFS issued a BiOp concluding that the removal of the annual limit of 2,120 shallow-set lines in the fishery might result in the incidental “take” of Northern Pacific loggerhead and leatherback sea turtles, but would not jeopardize the continued existence of either species for the next 25 years. To establish the environmental baseline, the NMFS used existing studies on loggerhead and leatherback interactions with all Pacific longline fisheries (domestic and international) from 2000 to 2009. The NMFS ultimately found that the Hawaii-based shallow-set fishery is currently responsible for killing two to three loggerheads and leatherbacks (each) per year. The NMFS also determined that the impacts associated with anthropogenic climate change were likely beginning to affect both sea turtle species, but lacked sufficient data to quantify the threat that climate change posed to the turtles.
The NMFS then attempted to predict the impact that allowing the fishery to deploy 5,500 longline sets per year—the approximate maximum annual number of sets before the fishery was first closed out of concern for the sea turtle populations—would have on the loggerheads and leatherbacks. The NMFS ultimately projected that setting 5,500 lines would kill no more than one adult, female loggerhead turtle and four adult, female leatherback turtles. The NMFS then employed population viability assessment models to forecast the risk that killing small numbers of adult, female sea turtles would lead to the species’ extinction. The NMFS concluded from the results that the proposed action could not reasonably be expected to appreciably reduce the likelihood of survival of either the loggerhead or the leatherback turtles.
The NMFS‘s “no jeopardy” conclusion was not affected by the agency‘s consideration of the cumulative effects of worsening climates. And, the NMFS‘s analysis of “spillover” trends suggested that the proposed increase in Hawaii-based swordfishing would benefit sea turtles overall. Because domestic fisheries operate under more stringent conservation measures than foreign fleets that compete to provide swordfish to U.S. consumers, the NMFS predicted that increasing domestic fishery yields would displace foreign fishing activities in the same area that the Hawaii-based shallow-set fishery operates, resulting in a net decrease in mortalities for the affected turtle species. However, because the NMFS concluded that the projected decrease in turtle deaths from this “spillover” effect was not precise enough to incorporate into its population assessment models, the NMFS did not incorporate these benefits into its no jeopardy finding.
A. Population Viability Assessment Models
Plaintiffs argue that the 2012 BiOp‘s conclusion that the proposed action would not appreciably impact loggerhead and leatherback sea turtles is unsupported by the scientific methods the FWS relied on. To project the impact of the shallow-set fishery‘s operations on the sea turtle spe
Based on the results from the model, the NMFS decided that it did not “believe that the small effect posed by the lethal takes in this fishery, when considered together with the environmental baseline and the cumulative effects, will be detectable or appreciable” and “that the additional risk to the [loggerhead turtles] that would result from loss of one adult female annually is considered negligible.” Similarly, the NMFS concluded “that the proposed action would have a negligible impact on the risk to ... the western Pacific leatherback population as a whole.” Therefore, the NMFS opined that increasing the maximum annual number of sets at the fishery would not jeopardize either species.
1. Loggerhead Turtles
With respect to the loggerhead turtles, the NMFS violated the APA‘s requirement that the agency articulate a rational connection between the population viability model upon which the NMFS relied and its no jeopardy conclusion. The BiOp acknowledged that the climate-based model predicted a decline in loggerhead populations to a level that “represents a heightened risk of extinction,” but still upheld a finding of “no jeopardy” on the grounds that there was “little to no difference in the extinction risk when the annual removal of one adult female loggerhead resulting from the proposed action is considered in the model.” We rejected similar logic in National Wildlife Federation, holding that “where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.” 524 F.3d at 930 (noting that listed species’ “slow slide into oblivion is one of the very ills the ESA seeks to prevent“). In National Wildlife Federation, the NMFS had prepared a BiOp in which it determined that hydropower dam operations would not jeopardize threatened and endangered salmon populations. Id. at 925. NMFS, however, had already determined that baseline environmental conditions posed a risk of jeopardy to the species. Id. Therefore, to reach a conclusion of “no jeopardy,” the agency completely excluded from the environmental baseline all impacts from “nondiscretionary” federal activities such as operations relating to irrigation, flood control, and power generation. We held that this exclusion was improper and that baseline conditions must be factored into the jeopardy analysis, cumulatively with the entirety of agency actions. The relevant inquiry is therefore whether the “action effects, when added to the underlying baseline
Here, the NMFS improperly minimized the risk of bycatch to the loggerheads’ survival by only comparing the effects of the fishery against the baseline conditions that have already contributed to the turtles’ decline. The BiOp‘s no jeopardy opinion is premised on the proportionally low risk that the shallow-set fishery poses to the loggerheads relative to other threats, such as international fishing and climate change: the NMFS specifically found that although “any level of take and mortality can have an adverse effect on the overlying population ... the expected level of take from the action, including a small number of mortalities, is extremely small when considered together with all impacts considered in the Status of the Species, Baseline and Cumulative Effects sections, including other federally authorized fisheries and foreign fisheries.” As in National Wildlife Federation, the agency reached an arbitrary conclusion by only comparing the prospective harm to the loggerheads that is attributable to the proposed action—the death of a single adult, female loggerhead per year—to the much greater harm resulting from factors beyond the fishery. Based on this impermissible comparison, the agency concluded that the proposed action‘s adverse impacts would not appreciably reduce the loggerheads’ likelihood of survival. See Nat‘l Wildlife Fed‘n, 524 F.3d at 930.
The NMFS relies heavily on the conservative nature of its calculations to support the difference between its conclusion and the climate-based model‘s results. The NMFS asserts that it rounded up its calculation of maximum adult female mortality, modeled the viability of turtle populations using the maximum potential number of annual interactions opposed to the average number of interactions reported in previous years, and estimated the number of sea turtle deaths based on the assumption that the shallow-set fishery would immediately operate at 5,500 sets each year. In reality, the increase in sets is expected to be gradual over many years. The ESA, however, requires agencies to rigorously ensure their actions will not “tip [the loggerhead] species from a state of precarious survival into a state of likely extinction.” See Nat‘l Wildlife Fed‘n, 524 F.3d at 930. The agency may not reject the “best scientific data” in favor of its belief that “incidental take ... would be reduced to the best extent possible” and “the vast majority of the loggerhead sea turtle takes from the proposed action are expected to be non-lethal.”
The NMFS also notes that the climate-based model used an assumed fraction of the current turtle population size (50%) as a proxy for extinction, and explains that “population decline below that” number “does not necessarily mean that” the species is “unrecoverable” or “functionally extinct.” But, given the agency‘s endorsement of the climate-based model and its expert‘s decision to use a “quasi-extinction threshold” to reflect a decline in the turtle population to numbers insufficient to ensure the population‘s viability, this logic does not support the NMFS‘s determination that the projected population declines would not appreciably threaten the loggerheads’ survival.
Another rationale presented in the BiOp is that “spillover effect is reasonably certain to contribute to a reduction in loggerhead mortalities ... due to reduced effort in foreign fisheries.” Shortly thereafter, however, the NMFS noted that data on foreign fishery bycatch are “likely incomplete or inaccurate.” The NMFS went on to state that “mortality reduction data associated with spillover effects are not as robust as those analyzed for the direct
The NMFS‘s model showed the loggerhead species are on a path toward extinction, which accords with the fact that the NMFS recently raised the Pacific loggerhead‘s ESA listing from “threatened” to “endangered.” The NMFS also found that “effects” to the loggerhead “are likely to occur as a result of worsening climate change,” which the NMFS “expect[s] to continue and therefore may impact sea turtles and their habitats in the future.” Rising levels of marine debris “could also increase entanglements.” Even though the NMFS was unable to quantify the risks of climate change and its associated impacts, the agency recognized that they would be detrimental to the loggerheads.
The climate-based model predicted that the proposed action would exacerbate the loggerheads’ decline, and the BiOp is structurally flawed to the extent the NMFS failed to incorporate those findings into its jeopardy analysis. Nat‘l Wildlife Fed‘n, 524 F.3d at 927. Because the NMFS has not articulated a rational connection between the best available science and its conclusion that the loggerhead sea turtles would not be affected by the increased fishing efforts, the agency‘s determination that the loggerhead “population will remain large enough to retain the potential for recovery” is arbitrary and capricious.
2. Leatherback Turtles
Plaintiffs also argue that the 2012 BiOp improperly concluded that the fishery would have no appreciable impact on the leatherback turtle population. Unlike its conclusion concerning the loggerheads, however, the NMFS‘s no jeopardy conclusion regarding the leatherback turtles finds support in the scientific record and, therefore, is sufficient to withstand judicial review.
Plaintiffs specifically argue that the NMFS erred in limiting the “temporal scale” of its analysis to 25 years, despite the fact that the fishery‘s operations have no related limitation and the NMFS determined that impacts on the sea turtles due to increasing temperatures “are expected to occur slowly over the next century.” However, the NMFS was entitled to rely on the climate-based population assessment model, even though that model could only predict changes in the turtle population for 25 years. See San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 997 (9th Cir. 2014) (“[T]he agency has substantial discretion to choose between available scientific models, provided that it explains its choice.“); The Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008) (explaining that the court may not “act as a panel of scientists that instructs the [agency] how to ... choose[] among scientific studies“), overruled on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). The constraints in the available data supply a reasonable justification for the NMFS to limit its analysis. Accordingly, we cannot conclude that the 2012 BiOp violated the ESA or that the NMFS otherwise acted arbitrarily and capriciously in determining that the fishery would have no appreciable effect on the leatherback turtle population.
B. Consideration of the Effects of Climate Change
Lastly, Plaintiffs argue that the 2012 BiOp failed to evaluate the impacts of global climate change. Plaintiffs specifically maintain that the NMFS acted arbitrarily by dismissing the effects of global
In the 2012 BiOp, the NMFS explained that the effects from climate change on listed turtle species include rising sand temperatures and sea levels, beach erosion, increased storm activity, and changes in ocean temperature and chemistry. The BiOp also summarized studies anticipating that climate change will impact, among other traits and behaviors, turtle gender ratios, nesting habitat, and reproductive capacity. However, the NMFS determined that there was no available data from which it could credibly project the impacts that climate change would have on the loggerhead or leatherback turtle survival rates. With respect to the loggerhead turtles, the NMFS explained that “current scientific methods are not able to reliably predict the future magnitude of climate change and associated impacts or the adaptive capacity of this species.” The NMFS also stated that “leatherbacks are probably already beginning to be affected by impacts associated with anthropogenic climate change in several ways,” but noted that it did “not have information to predict what the population would do” or “what impact other climate-related changes may have such as increasing sand temperatures, sea level rise, and increased storm events.” As the NMFS observed elsewhere in the BiOp, the effects of climate change will not be globally uniform, and the uncertainty of the rate, magnitude, and distribution of such effects on different temporal and spatial scales—not to mention the turtles’ ability to adapt to these effects—have not been comprehensively studied. Consequently, the NMFS decided that climate change effects could not be “reliably quantified” nor “qualitatively described or predicted” by the agency at the time.
Here, we cannot conclude from the NMFS‘s lack of precision that it failed to adequately consider the effects of climate change on the sea turtles. On the whole, the BiOp demonstrated that the NMFS considered a variety of ways in which climate change may affect the sea turtles, but simply concluded that the data available was too indeterminate for the agency to evaluate the potential sea-turtle impacts with any certainty. Cf. Greenpeace Action v. Franklin, 14 F.3d 1324, 1326-27, 1336 (9th Cir. 1993) (holding that the agency‘s no jeopardy conclusion was not arbitrary because the BiOp at issue demonstrated that the agency had based its no jeopardy decision on the best available scientific data, even though the data was “uncertain“); Stop H-3 Ass‘n v. Dole, 740 F.2d 1442, 1460 (9th Cir. 1984) (sustaining a BiOp that stated “we have very little data for providing an opinion, but feel it would be unreasonable to request [an additional] study which would be unlikely to provide definitive results.... Based on the available information, which we grant is weak, it is our opinion the proposed project is not likely to jeopardize the continued existence of the Oahu Creeper“). Plaintiffs have failed to sufficiently refute the NMFS‘s stated inability to offer more specific predictions on the effects of climate change, and they have not alleged that less speculative scientific information is available that the agency overlooked. San Luis & Delta-Mendota, 747 F.3d at 602 (“[W]here [superior] information is not readily available, we cannot insist on perfection: [T]he ‘best scientific ... data available,’ does not mean the best scientific data possible.” (citation and internal quotation marks omitted)). Accordingly, the NMFS‘s consideration of climate change in the BiOp was neither arbitrary, capricious, nor contrary to the NMFS‘s obligation to base its jeopardy decision on the best scientific data it could obtain. See
CONCLUSION
We conclude that the FWS‘s grant of an incidental take permit to the NMFS in reliance on the “special purpose permit” provision in
We also conclude that NMFS‘s 2012 BiOp‘s no jeopardy finding as to the loggerhead sea turtles was arbitrary and capricious because the scientific data suggested that the loggerhead population would significantly decline, and the agency failed to sufficiently explain the discrepancy in its opinion and the record evidence. We therefore reverse the district court‘s grant of summary judgment upholding this portion of the BiOp. We otherwise affirm the district court‘s grant of summary judgment to Defendants.
AFFIRMED in part; REVERSED in part; and REMANDED. Each party shall bear its own costs on appeal.
CALLAHAN, Circuit Judge, dissenting in part:
I agree with the majority that the 2012 Biological Opinion (“BiOp“) is not arbitrary and capricious in determining that the Hawaii-based shallow-set fishery expansion would have no appreciable effect on the leatherback sea turtle population, and that the 2012 BiOp adequately considers the impact of global climate change. However, I dissent from the remainder of the majority opinion.
First, the majority errs in rejecting the U.S. Fish and Wildlife Service‘s (“FWS“) issuance of a special purpose permit (the “Permit“) under the Migratory Bird Treaty Act (“MBTA“) to the National Marine Fisheries Service (“NMFS“) for the incidental take of migratory birds. The majority determines that issuing the Permit runs afoul of the pertinent regulation‘s plain language and the MBTA‘s conservation-oriented purpose. That conclusion, however, reflects a misapplication of our deferential standard of review under Auer v. Robbins, 519 U.S. 452 (1997), because both the regulation—
Second, the majority errs in rejecting the 2012 BiOp‘s assessment of the proposed shallow-set fishery expansion‘s effects on the endangered loggerhead sea turtle. NMFS‘s BiOp concludes that the proposed action would not jeopardize the continued survival and recovery of the loggerhead, as is required to green-light the project under the Endangered Species Act (“ESA“). The majority dismisses the BiOp as arbitrary and capricious because, among other things, it concludes that the scientific evidence does not support NMFS‘s no-jeopardy conclusion, and it perceives a conflict with our case law. I disagree. While the record data shows that the loggerhead is in decline, NMFS reasonably concluded that the fishery expansion would not appreciably reduce the likelihood of the loggerhead‘s survival and recovery. Nor did NMFS misapply our decision in National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2008) (“NWF“): it considered the incremental impact of the pro
The majority‘s contrary conclusion is a classic example of the judiciary exceeding its authority by substituting an agency‘s judgments with its own. This complex case relies on the technical and scientific findings of experts tasked with the responsibility of protecting our Nation‘s species-in-peril. It is in this context that our respect for a coordinate branch of government is at its zenith. Indeed, we are “‘at our most deferential’ when reviewing scientific judgments and technical analyses within the agency‘s expertise,” Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010) (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103 (1983)) (adjustment omitted) (“Lands Council II“), and should only reject an agency‘s action if it is plainly arbitrary and capricious, see Motor Vehicle Mfrs. Ass‘n, 463 U.S. 29, 42-43 (1983). Yet instead of anchoring its analysis in well-established principles of agency deference, the majority sets sail on a voyage of discovery, leaving in its wake our precedent and the doctrinal moorings of Auer v. Robbins. I dissent, respectfully.
I.
A.
Under Auer v. Robbins, we must defer to an agency‘s reasonable interpretation of its own regulation. See Christopher, 132 S.Ct. at 2166. Deference is not warranted, however, “when the agency‘s interpretation is plainly erroneous or inconsistent with the regulation,” or when it does not reflect the agency‘s “considered judgment.” Id. (internal quotation marks omitted). A lack of “considered judgment” may be evidenced by (i) an “agency[] interpretation [that] conflicts with a prior interpretation;” (ii) “when it appears that the interpretation is nothing more than a convenient litigating position,” or (iii) when the interpretation amounts to a “post hoc rationalization advanced by an agency seeking to defend past agency action against attack.” Id.1
At issue is FWS‘s issuance of a special purpose permit allowing NMFS to authorize incidental take of migratory birds that are protected under the MBTA.
[p]ermits may be issued for special purpose activities related to migratory birds, their parts, nests, or eggs, which are otherwise outside the scope of the standard form permits of this part. A special purpose permit for migratory bird related activities not otherwise provided for in this part may be issued to an applicant who submits a written application containing the general information and certification required by part 13 and makes a sufficient showing of benefit to the migratory bird resource, important research reasons, reasons of human concern for individual birds, or other compelling justification.
1.
Appellants Center for Biological Diversity, et al. (“CBD“) argue that FWS‘s Permit should not be accorded Auer deference because, CBD asserts, it does not align with FWS‘s past practice.
To determine whether an agency has departed from past practice, the first step is—manifestly—to define the practice. Christopher, 132 S.Ct. at 2167-68. A practice is a policy or mode of operating that is defined by articulable parameters; simply showing that a current action differs from a prior one in some way does not establish a departure from past practice. Cf. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 538 (2009) (agency departed from past practice by deeming broadcasts of non-literal uses of expletives as actionable only upon repetition); Dillmon v. Nat‘l Transp. Safety Bd., 588 F.3d 1085, 1090-91 (D.C. Cir. 2009) (agency departed from past practice of deferring to an ALJ‘s credibility determinations).
CBD argues that by issuing the Permit, FWS has changed course from its prior position that it lacks authority to grant permits to allow unintentional bird taking—i.e., incidental taking—for an activity that is not directed at migratory birds. The majority does not base its decision on this rationale and for good reason: FWS has long-issued incidental take permits for all manner of activities whose only relationship to migratory birds is that they affect the birds. For example, since at least 1996, FWS has authorized incidental take of migratory birds for commercial activities through Endangered Species Act (“ESA“) Habitat Conservation Plans (“HCPs“).2 A benefit of entering into an HCP is that it comes with an ESA § 10 incidental take permit. See
FWS has also issued incidental take permits for bald and golden eagles—which are migratory birds—for activities that, too, are not directed at migratory birds. See
Identifying one error in CBD‘s consistency-with-past-practice argument reveals another. CBD asserts that, “until [FWS] issued to NMFS the permit at issue exempting commercial longline fishing from the MBTA‘s take prohibition, the only Special Use Permits FWS had ever issued authorizing incidental take of non-endangered migratory birds were specifically intended to promote migratory bird conservation ....” If CBD means to say that past permits were always associated with activities that had as their purpose bird conservation, then the preceding paragraph refutes this contention. But if CBD means something more capacious—i.e., that such activities must incorporate bird conservation strategies—then the Permit addresses this concern. NMFS regulates the Hawaii-based shallow-set longline fishery under a program that is expressly geared at reducing seabird bycatch. See
2.
CBD insists that FWS‘s past statements belie the agency‘s assertion that the Permit accords with historical practice. CBD points to a 2009 regulation governing take under the Bald and Golden Eagle Protection Act (“BGEPA“). See Dep‘t of the Interior, Eagle Permits; Take Necessary to Protect Interests in Particular Localities, 74 Fed. Reg. 46,836, 46,862 (Sept. 11, 2009). BGEPA allows for the take of bald and golden eagles—which species also fall under the purview of the MBTA—pursuant to an MBTA permit.
CBD‘s argument proves too much. If the cited statement means that FWS does not issue incidental take permits for migratory birds as a categorical rule, then all other instances of such permits would be unlawful. Yet CBD spills pages of ink distinguishing the Permit here from other take permits granted under the aegis of
A more natural reading of FWS‘s statements—and one that comports with FWS‘s past practice—is that the agency recognizes that the MBTA lacks a programmatic framework for issuing incidental take permits. To be sure, a comprehensive regulation governing incidental take would be preferable. It could set forth uniform criteria for issuing permits, thereby offering predictability for the regulated and environmental communities.4 But the fact that there exists a better way to authorize incidental take does not mean that it is the only lawful way of doing so. Neither the majority nor CBD provides a persuasive explanation for why
Undeterred, CBD takes aim at yet another non-MBTA regulation. This one—the so-called “No Surprises Rule“—implements the HCP provision of the ESA. See 63 Fed. Reg. at 8862-63. The rule explains that an ESA § 10 incidental take permit, issued in conjunction with an HCP, may “double” as a special purpose permit under the MBTA for ESA-listed species. FWS explains that issuing an ESA § 10 permit in lieu of an MBTA
CBD‘s reasoning founders on a logical fallacy. The No Surprises Rule provides that, because an ESA take permit comes with greater protections than an MBTA permit, a party need not also apply for an MBTA permit: the latter is subsumed under the former. See id. at 8862-63. But that does not mean that ESA-level protections are necessary to authorize take under the MBTA. Put another way, the No Surprises Rule says nothing about whether it is appropriate to issue a special purpose permit for incidental take under the MBTA for non-ESA-listed species.6
By analogy, consider a hypothetical state‘s labeling requirements for perishable foodstuffs. The default regulation for all perishable foods requires the use-by date to be no more than thirty days from the sell-by date. But certain perishable foods are on a “highly perishable” list, and are subject to stricter regulations requiring the affixed use-by date to be no more than a week from the sell-by date. Now consider a particular perishable food that is not subject to the stricter regulations because it is not on the applicable list. Does this mean it is not governed by the laxer default rule? Not at all. Yet that is CBD‘s logic here: that because the ESA‘s heightened protections apply to some migratory birds, other non-ESA birds are not subject to the MBTA‘s take provision. In fact, nothing about FWS‘s incidental take policy toward ESA-listed migratory birds forecloses the agency from issuing incidental take permits for non-ESA-listed migratory birds.
B.
While FWS‘s issuance of the shallow-set fishery incidental take permit reflects its considered judgment and is consistent with its past practice, we may still be compelled to withhold deference if its interpretation of
1.
The majority claims that the “special purpose activit[y]” exception to the general ban on permitting take does not apply here because fishing lacks an “articulable special purpose.” What qualifies a purpose as “special“? The majority never quite answers this question, except to obliquely note that “special purpose” must be read “in the context of the regulation‘s other requirements ....” Those requirements are, according to the majority, that the activity authorized by the permit “relate[] to migratory birds,” be paired with a “compelling justification,” and have a conservation purpose.7 But the majority never
The Auer inquiry is more straightforward. We consider the agency‘s interpretation relative to the regulation and the governing statute. Marsh, 869 F.3d at 1116-17. We must assure ourselves that the agency has fairly construed its own regulation, while also keeping one eye trained on Congress’ intent. Id. at 1117. To that end, “[we] need not accept an agency‘s interpretation of its own regulations if that interpretation is ... inconsistent with the statute under which the regulations were promulgated.” Id. (quoting Mines v. Sullivan, 981 F.2d 1068, 1070 (9th Cir. 1992)).
My analysis proceeds as follows: I disaggregate
- “Permits may be issued for special purpose activities ... which are otherwise outside the scope of the standard form permits of this part.” The regulation does not define “special purpose activit[y].”8 It is also a regulatory term of art that is not susceptible to interpretation by reference to dictionary definitions.
Deploying a wider net, we expand our analysis to the regulation‘s structure and context. The latter part of the sentence is instructive. It indicates that a “special purpose activit[y]” is one that is not covered by an expressly identified permitting scheme. Contrary to CBD‘s assertion, nothing in the context of the regulation indicates that to be “special” an activity‘s purpose must be directed at migratory birds. See Klem, 208 F.3d at 1092. - Special purpose permits must be “related to migratory birds ....” The term “relate” has several dictionary definitions, including, as is pertinent here: “[t]o refer to,” “[t]o have reference to,” “[t]o have some connection with; to stand in relation to,” or “[t]o connect, to link; to establish a relation between.” Oxford English Dictionary (3d ed. 2009) (goo.gl/grzBqC) (last accessed Dec. 8, 2017). Whether the first two definitions could flex to embrace an activity whose purpose is not directed at migratory birds is debatable. But we need not parse those definitions because the last two plainly do: an activity like commercial fishing indisputably has “some connection with” migratory birds.
- An applicant for a special purpose permit must “make[] a sufficient showing of benefit to the migratory bird resource, important research reasons, reasons of human concern for individual birds, or other compelling justifi-
The majority concludes that FWS‘s rationale is inadequate, observing that FWS fails to “read the ‘special purpose’ provision in the context of the regulation‘s other requirements that, taken together, fail to turn
Lest there be any doubt, the immediately following subsection makes clear that permits may be issued for non-conservation-related purposes. Section 21.27(a) describes the criteria for issuing a special purpose permit. See
In sum, the catch-all category “other compelling justification” is not limited to activities whose purpose is conserving migratory birds. And the majority provides no other limiting condition, except to warn against transforming
2.
The Permit also comports with the MBTA‘s conservation purpose. The majority is correct that in passing the MBTA Congress sought to promote migratory bird conservation.11 But the statute also expressly provides for non-conservation-related take of migratory birds. As is relevant here, the MBTA allows FWS to consider economic factors in determining whether to permit, among other things, the taking, killing, possessing, or sale of migratory birds or their parts.
Subject to the provisions and in order to carry out the purposes of the [migratory bird treaty] conventions ... the [FWS] is authorized and directed, from time to time, having due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds, to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, taking, capture, killing, possession, sale, purchase shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof, and to adopt suit-
able regulations permitting and governing the same ....
But how—the reader may ask—can we reconcile the statute‘s conservation-oriented focus with its provisions allowing for the killing of migratory birds? One way is to interpret
The Permit is consistent with this accommodation of competing statutory directives: it allows for the take of migratory birds when paired with measures designed to minimize such take. Neither CBD nor the majority contends that, if such measures are followed, the MBTA‘s broad goal of conserving migratory birds is threatened.
3.
The majority has one lure left in its tackle box, but I decline to take the bait. The majority suggests that because the MBTA generally prohibits take, a presumption attaches against reading
While it is true that the MBTA generally prohibits taking migratory birds, the majority‘s observation is a red herring because the statute and regulations provide for numerous exceptions to the general rule.12 The pertinent question turns on the scope of the exception to the prohibition, not the existence of the general prohibition in the first place. As discussed,
*
*
*
Because issuing the Permit follows FWS‘s past practice, is not plainly erroneous or inconsistent with
II.
The majority also errs in rejecting NMFS‘s loggerhead turtle BiOp as arbitrary and capricious. The majority‘s analysis rests on a misapprehension of both binding case law and the administrative record in this case.
Section 7(a)(2) of the ESA requires all federal agencies to ensure that any discretionary “action” they authorize, fund, or implement does not “jeopardize the continued existence” of an ESA-listed species.
To “jeopardize” means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.”
[e]ither of these [terms] implies causation, and thus some new risk of harm. Likewise, the suffix “-ize” in “jeopardize” indicates some active change of status: an agency may not “cause a species to be or to become” in a state of jeopardy or “subject a species to” jeopardy
*
*
*
[A]n agency may not take action that will tip a species from a state of precarious survival into a state of likely extinction. Likewise, even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm.
Id. (emphasis added).
Our discussion of “jeopardy” in NWF must be read in the context of the regulatory standard. To “deepen[] the jeopardy” of a species is to “reduce appreciably” a species’ chance at continued survival and recovery. See
In NWF, we rejected a BiOp that excluded certain discretionary agency actions from the jeopardy analysis, and which also failed to consider degraded baseline conditions. Id. at 933. The BiOp assessed the effects of dam operations on the Chinook salmon, an ESA-listed species. Id. at 925-26. We faulted NMFS for departing from its past practice and taking a novel approach in evaluating dam operation impacts. First, NMFS labeled several operations as nondiscretionary, thereby “excluding them from the requisite ESA jeopardy analysis.” Id. at 928-29. Second, NMFS considered only the marginal impact of certain discretionary dam operations in its jeopardy analysis. Id. at 929-30. As concerns the second error, NMFS considered only whether those actions were “‘appreciably worse’ than baseline conditions.” Id. at 930. Only if they were would NMFS then conduct a jeopardy analysis. Id.
We held that NMFS‘s methodology collided with the plain text of the regulations. Section 402.02 explains that an agency action “jeopardizes” a species if it “reduce[s] appreciably the likelihood of” the species’ “survival and recovery,” when considering the action‘s direct, indirect, and cumulative impacts measured against the environmental baseline.
By way of example, consider a hypothetical scenario in which a residential subdivision is planned for an area inhabited by the endangered arroyo toad. See Rancho Viejo, LLC v. Norton, 334 F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts, J., dissenting from denial of rehearing en banc). The development requires a federal permit, thereby triggering ESA § 7 consultation. Sierra Club v. Bureau of Land Mgmt., 786 F.3d 1219, 1224 (9th Cir. 2015) (consultation required where a private project is “funded, authorized, or constructed by any federal agency“). The toad is already threatened by the combined effects of climate change and habitat fragmentation.14 Existing developments have substantially reduced the toad‘s habitat, and it teeters on the precipice between survival and extinction. The proposed development would reduce the toad‘s habitat by an additional 10 percent, which, in the agency‘s estimation, does not amount to an “appreciable” negative impact when compared to the habitat destruction that has already taken place. Thus, under the methodology rejected by this court in NWF, the agency would not have engaged in a jeopardy analysis.
Turning to the matter before us, NMFS undertook the analysis required by NWF. NMFS considered, among other things, the (i) the current status of the loggerhead sea turtle, (ii) the direct effects of the proposed action on the loggerhead based on climate-based and classical modeling, (iii) the impact of climate change and other cumulative effects, and (iv) whether the proposed action would result in an appreciable reduction in the likelihood of the loggerhead‘s survival and recovery. The majority arrives at a contrary conclusion by fixating on the BiOp‘s statement that the incremental harm of the proposed action is “the death of a single adult, female loggerhead per year,” which is an “‘extremely small ... level of take from the action.‘” The majority insists that NMFS ran afoul of NWF by comparing the marginal impact of the fishery “to the much greater harm resulting from factors beyond the fishery.” But NMFS‘s consideration of the marginal impact of the fishery did not drive its jeopardy analysis à la NWF. Instead, NMFS considered the “adverse effect on the overlying population ... when considered together with all impacts considered in the Status of the Species, Baseline and Cumulative Effects sections, including other federally authorized fisheries and foreign fisheries.”15 NMFS explained that,
[d]espite the projected population decline over one generation, we expect the overall population to remain large enough to maintain genetic heterogeneity, broad demographic representation, and successful reproduction. The proposed action will have a small effect on the overall size of the population, and we do not expect it to affect the loggerheads’ ability meet their lifecycle requirements and to retain the potential for recovery.
Thus, unlike in NWF, where NMFS failed to consider direct, indirect, and cumulative effects, here, NMFS incorporated the marginal impact of the fishery in assessing whether the action—combined with baseline conditions—would “tip [the loggerhead] from a state of precarious survival into a state of likely extinction.” See NWF, 524 F.3d at 930. It concluded it would not, and we owe that determination deference. See Lands Council v. McNair
The majority also criticizes NMFS for relying on “the conservative nature of its calculations to support the difference between its conclusion and the climate-based model‘s results.” As a first matter, the majority does not explain where the model results diverge from NMFS‘s finding of no-jeopardy. Nor could it plausibly do so: an analysis of the record data in the BiOp supports NMFS‘s conclusion. The climate-based model showed that, in 99.5 percent of the tests, the loggerhead would fall below the quasi-extinction threshold (“QET“) in 25 years without the proposed action. NMFS similarly found that “[w]hen the same model is run with the proposed action, the mortality of 1 adult female, the results are similar with 99.5% to 100% of the runs falling below the QET.”16 Indeed, the model showed that while the proposed action would have a “detectable influence on the loggerhead population, there is no significant difference in the risk of extinction between the default, climate-based trends and the forecast considering the direct effects of the proposed action.” In other words, the risk of extinction is virtually the same whether or not the shallow-set fishery is expanded. Accordingly, NMFS reasonably concluded that the proposed action would not “reduce appreciably the likelihood” of the loggerheads’ “survival and recovery.” See
At any rate, the majority is simply wrong that NMFS relied on its conservative estimates to arrive at its no-jeopardy conclusion. In fact, NMFS relied on (i) the results of the climate change model showing no statistically significant difference in the risk of extinction to the loggerhead with or without the proposed agency action; and (ii) a “qualitative analysis” reflecting that the loss of one additional female loggerhead per year would still allow the loggerhead population to “remain large enough to maintain genetic heterogeneity, broad demographic representation, and successful reproduction.”17
CONCLUSION
FWS acted within its authority when it issued a special purpose permit to NMFS under the MBTA. Its decision aligns with past practice, is not “plainly erroneous or inconsistent with
As discussed, NMFS‘s no-jeopardy conclusion is not unreasonable even without considering the conservative nature of its inputs. Recognizing that those inputs are more conservative than actual conditions warrant therefore only weakens the majority‘s erroneous conclusion that NMFS‘s action is arbitrary and capricious. See George v. Bay Area Rapid Transit, 577 F.3d 1005, 1011 (9th Cir. 2009) (“The party challenging an agency‘s action as arbitrary and capricious bears the burden of proof....“).
Notes
This data amply supports NMFS‘s no-jeopardy conclusion. However, NMFS did not incorporate its findings into the jeopardy analysis because it concluded that “data on foreign fisheries is likely incomplete or inaccurate.” Thus, while the “spillover” effects data is compelling, I—like the agency—do not rely on it in assessing the reasonableness of NMFS‘s ultimate determination.