Conservation Law Found. v. Ross

422 F.Supp.3d 12

CONSERVATION LAW FOUNDATION, Plaintiff,

v. Wilbur ROSS, in His Official Capacity as Secretary of Commerce, et al., Defendants,andFisheries Survival Fund, Defendant-Intervenor.

Civil Action No. 18-1087 (JEB)

United States District Court, District of Columbia.

Signed October 28, 2019

Emily K. Green, Conservation Law Foundation, Portland, MA, Stephen D. Mashuda, Earthjustice, Seattle, WA, Erica A. Fuller, Pro Hac Vice, Conservation Law Foundation, Boston, MA, for Plaintiff.

Hao-Chin Hubert Yang, Kristen Byrnes Floom, U.S. Department of Justice Environmental and Natural Resources, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Demonstrating that "there is no folly of the beasts of the earth which is not infinitely outdone by the madness of men," Herman Melville, Moby Dick 262 (W.W. Norton & Co. 1967) (1851), humans have brought the North Atlantic right whale to the brink of extinction. As of the release of this Opinion, only about 400 of these leviathans remain. In April 2018, the National Marine Fisheries Service promulgated a comprehensive Habitat Amendment, which altered rules governing New England's fisheries. Among other measures, the Amendment opened two large swaths of the whales' feeding grounds to one of their most dangerous predators: gillnet fishing gear. Plaintiff Conservation Law Foundation challenged this final rule, contending that NMFS implemented it in dereliction of its Congressional mandate to "insure that any action authorized, funded, or carried out by [any federal] agency ... is not likely to jeopardize the continued existence of any endangered species." 16 U.S.C. § 1536(a)(2). In what is ultimately not a close call, the Court concludes that NMFS has violated not only the Endangered Species Act but also the Magnuson-Stevens Act. The Court further finds that the appropriate remedy for this violation is an injunction restoring prohibitions on gillnet gear in the two formerly closed areas.

I. Background

Because a violation of Section 7(a)(2) of the Endangered Species Act would give rise to causes of action under not only the ESA but also the Magnuson-Stevens Act — indeed, CLF alleges both, see ECF No. 38 (Plaintiff Renewed Motion for Summary Judgment) at 1; ECF No. 1 (Complaint), ¶ 1 — the Court begins by laying out the statutory framework before proceeding to the factual background. While Plaintiff also brings a claim under the Administrative Procedure Act, "the APA permits courts to review ‘final agency action for which there is no other adequate remedy in a court,’ " and "[h]ere, the ESA's citizen-suit provision provides an adequate remedy." Conservation Force v. Salazar, 715 F. Supp. 2d 99, 104 n.6 (D.D.C. 2010) (quoting 5 U.S.C. § 704 ); accord Bennett v. Spear, 520 U.S. 154, 161–62, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ("Although petitioners contend that their claims lie both under the ESA and the APA, ... the APA by its terms independently authorizes review only when ‘there is no other adequate remedy in a court.’ ") (quoting 5 U.S.C. § 704 ). The Court, consequently, need not separately address the APA.

A. Statutory Framework

1. Endangered Species Act

Congress enacted the ESA in 1973 "to halt and reverse the trend toward species extinction, whatever the cost.’ " Nat'l Ass'n of Home Builders v. U.S. Fish and Wildlife Serv., 786 F.3d 1050, 1052 (D.C. Cir. 2015) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ). Section 7(a)(2) of the Act requires that "[e]ach Federal agency ... insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species." 16 U.S.C. § 1536(a)(2). The accompanying regulations specify:

Each Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such determination is made, formal consultation is required, except ... if, as a result of informal consultation with the Service under § 402.13, the Federal agency determines ... that the proposed action is not likely to adversely affect any listed species or critical habitat.

50 C.F.R. § 402.14(a) – (b). (As an aside, there are other, limited escape hatches from formal consultation not relevant to this case. Id. § 402.14(b)(1)–(2).)

In other words, the first step is for the "action agency" — in this case, the Sustainable Fisheries Division (SFD) of NMFS — to determine whether its action "may affect" a listed species (or critical habitat). If the answer to that question is yes, the action agency must engage in either informal or formal consultation with the "expert agency" — in this case, the Protected Resources Division (PRD) of NMFS — as to the effects of the proposed action on the listed species. If, through informal consultation, the expert agency can determine "that the action is not likely to adversely affect listed species," it may issue a "written concurrence" to that effect, thus ending the action agency's ESA-consultation duties. Id. § 402.13. If, however, the expert agency does not so find, formal consultation is required. Id. § 402.14(c).

The end product of formal consultation is a "biological opinion" by the expert agency, which offers its determination as to "whether the action is likely to jeopardize the continued existence of a listed species ... (a ‘jeopardy’ biological opinion); or, the action is not likely to jeopardize the continued existence of a listed species ... (a ‘no jeopardy’ biological opinion)." Id. § 402.14(h)(3). If the opinion is a "jeopardy" one, it must either set out "reasonable and prudent alternatives" to the agency action or otherwise "indicate that to the best of [the agency's] knowledge there are no reasonable and prudent alternatives." Id. If the opinion is a "no jeopardy" one, the agency action may proceed.

The ESA also contains a citizen-suit provision "of remarkable breadth." Bennett, 520 U.S. at 164, 117 S.Ct. 1154. It authorizes "any person ... to enjoin any person, including the United States and any other governmental instrumentality or agency[,] ... who is alleged to be in violation of any provision of [the ESA] or regulation issued under the authority thereof." 16 U.S.C. § 1540(g)(1)(A).

2. Magnuson-Stevens Act

Plaintiff's second cause of action falls under the Magnuson-Stevens Act. The MSA was passed in 1976 to "balance[ ] the twin goals of conserving our nation's aquatic resources and allowing U.S. fisheries to thrive." Oceana, Inc. v. Pritzker, 26 F. Supp. 3d 33, 36 (D.D.C. 2014). In service of those ends, the Act delegates to the Secretary of Commerce, who has delegated to NMFS, the responsibility of managing the eight regional Fishery Management Councils created by the MSA and charged with creating Fishery Management Plans (FMPs). Id. at 36–37. As explained in more detail below, it was the promulgation by SFD of a final rule implementing changes recommended by the New England Fishery Management Council that constitutes the "agency action" in this case. See 83 Fed. Reg. 15,240, 15,240 (Apr. 9, 2018).

As relevant here, Section 304(a)(1)(A) of the MSA requires the Secretary to "immediately commence a review" of any "fishery management plan or plan amendment" in order to "determine whether it is consistent with ... any ... applicable law." 16 U.S.C. § 1854(a)(1)(A) (emphasis added). So if, in promulgating an FMP amendment, NMFS fails to determine whether the amendment is consistent with Section 7(a)(2) of the ESA — i.e. , by failing to consult as to the effects of the amendment on an endangered species — then NMFS necessarily violates Section 304(a)(1)(A) of the MSA.

B. Factual History

Although the Court will provide more detail as to NMFS's consultation process in the Analysis Section, infra , it briefly offers some general background here. In 2004, the New England Fishery Management Council announced its intent to begin work on an amendment affecting all seven FMPs within its region. See 69 Fed. Reg. 8,367, 8,367 (Feb. 24, 2004). One of these FMPs governs the Northeast multispecies fishery, id., which is also known as the groundfish fishery. Conservation Law Found. v. Ross, 374 F. Supp. 3d 77, 87 (D.D.C. 2019). The groundfish fishery employs a type of gear known as gillnets, which are "wall[s] of netting that hang[ ] in the water column," each between two vertical lines. Fishing Gear: Gillnets, NOAA Fisheries, https://www.fisheries.noaa.gov/national/bycatch/fishing-gear-gillnets (last visited Oct. 28, 2019). At the time, several areas in New England waters were designated as groundfish-closure areas, meaning that "fishing gear capable of catching groundfish," like gillnets, was prohibited. Conservation Law Found., 374 F. Supp. 3d at 87. As described in more detail below, gillnet fishing creates a serious risk of entanglement for North Atlantic right whales.

While the final Habitat Amendment, promulgated by final rule in April 2018, made many changes to the New England FMPs, see 83 Fed. Reg. 15,240 (Apr. 9, 2018), most relevant to this proceeding is that it opened two areas — the Nantucket Lightship Groundfish Closure Area and the Closed Area 1 Groundfish Closure Area — that had been closed to groundfish fishing gear for over 20 years. Id.; ESA 5035. (The Court cites to the administrative record, which is filed in three volumes under ECF No. 48, using the parties' convention of "ESA ####," referring to the Bates numbers). This means that gillnet fishing is now permitted in those waters. NMFS approved this measure despite (1) a finding in SFD's December 2016 Environmental Impact Statement (EIS) for the Habitat Amendment that the Amendment "may affect" North Atlantic right whales, see ESA 27763 tbl.61; and (2) public comments suggesting that, by failing to complete formal or informal consultation with PRD as to the effects of the Habitat Amendment on these whales, SFD had violated Section 7(a)...