Ctr. for Biological Diversity v. Raimondo

661 F.Supp.3d 964

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. Gina RAIMONDO, et al., Defendants.

Case No. 3:22-cv-00117-JD

United States District Court, N.D. California

Signed March 14, 2023

Catherine Cain Ware Kilduff, Kristen Monsell, Miyoko Sakashita, Center for Biological Diversity, Oakland, CA, for Plaintiff.

Kaitlyn Poirier, United States Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendants.

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT

JAMES DONATO, United States District Judge

Plaintiff Center for Biological Diversity (CBD) has sued defendants National Marine Fisheries Service and Secretary of Commerce Gina Raimondo (collectively, NMFS) under the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361 et seq., and the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. The case concerns commercial fishing operations in the Washington/Oregon/California sablefish pot fishery. Sablefish is a bottom-dwelling species that is valued as a consumer delicacy. To harvest the fish, approximately 150 commercial fishing vessels deploy tens of thousands of pots that "sit on the bottom of the ocean and are connected to each other in approximately two-mile-long strings of 15 to 50 pots." Dkt. No. 1 ¶¶ 4, 69-70. Local populations of humpback whales, including ESA-listed endangered and threatened populations, can become entangled with the fishing gear used in the pot fishery, which causes injury and on occasion death. See id. ¶¶ 60-61, 75; see also MMPA 000453; BiOp 000124-25.

The case presents a straightforward challenge by CBD to the issuance of a permit by NMFS in 2021 that authorized the incidental taking of ESA-listed humpback whales in the pot fishery, a challenge that both parties agree is timely under the MMPA. See Dkt. No. 283 at 7 n.5; Dkt. No. 284 at 1 n.1. CBD says that the permit was unlawful because NMFS did not first ensure that a take reduction plan for the whales had been developed or was being developed, as required by the MMPA. See Dkt. No. 282 at 11. NMFS says that it simply lacks the funding to develop and implement take reduction plans for all marine mammal species and stocks that are entitled to one, and consequently a statutory exception applies to relieve the agency of its obligation to develop a plan in this case. See Dkt. No. 283 at 22.

The parties have filed cross-motions for summary judgment, which the Court found suitable for decision without oral argument under Civil Local Rule 7-1(b). Dkt. Nos. 282, 283, 287. The parties' familiarity with the record is assumed, and CBD's motion is granted in part. The Court defers consideration of the appropriate remedy, as well as CBD's challenge to the 2020 biological opinion that NMFS relied upon in issuing the incidental take permit, pending further proceedings.¹

LEGAL STANDARDS

Under the deferential standard of the Administrative Procedure Act (APA), an agency action will be upheld unless it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1256-57 (9th Cir. 2017). The ESA and MMPA allow citizens to sue, but "lack independent judicial review provisions." Ctr. for Biological Diversity v. Bernhardt, 982 F.3d 723, 733 (9th Cir. 2020). Consequently, the Court reviews these claims under Section 706 of the APA. See id.; see also Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012).

An agency action is arbitrary and capricious "if the agency has: relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Ctr. for Cmty. Action & Env't Just. v. FAA, 61 F.4th 633, 639 (9th Cir. 2023); see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). "The Court's deference extends to less than stellar work by an agency, so long as its analytical path and reasoning can be reasonably discerned." Ecological Rts. Found. v. FEMA, 384 F. Supp. 3d 1111, 1119 (N.D. Cal. 2019) (citing San Luis v. Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 627 (9th Cir. 2014)); see also Friends of Del Norte v. Cal. Dep't of Transp., No. 18-cv-00129-JD, 2023 WL 2351649, at *5 (N.D. Cal. Mar. 3, 2023).

Summary judgment is an appropriate procedure for resolving plaintiffs' challenges. See Nw. Motorcycle Ass'n v. USDA, 18 F.3d 1468, 1471-72 (9th Cir. 1994); Friends of Del Norte, 2023 WL 2351649, at *5. Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Ecological Rts. Found., 384 F. Supp. 3d at 1119; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

DISCUSSION

Two statutory regimes, the ESA and the MMPA, frame the analysis. The ESA was enacted to protect and conserve endangered and threatened species and their habitats, and embodies "a conscious decision by Congress to give endangered species priority over the 'primary missions' of federal agencies." Ctr. for Biological Diversity v. EPA, 847 F.3d 1075, 1084 (9th Cir. 2017) (quoting TVA v. Hill, 437 U.S. 153, 185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)); see also Friends of Gualala River v. Gualala Redwood Timber, LLC, 552 F. Supp. 3d 924, 931 (N.D. Cal. 2021). It authorizes the Secretaries of Commerce and the Interior, through their agencies, to list plants and animals for protection and to designate critical habitats. See Ecological Rts. Found., 384 F. Supp. 3d at 1115 (citing 16 U.S.C. § 1533). "The ESA imposes a variety of procedural and substantive requirements to ensure that the actions of federal agencies do not harm listed species or critical habitats." Id. (citing, e.g., Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 652, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007)). The relevant stock of humpback whales in this case includes two distinct population segments that are listed as endangered or threatened. See MMPA 000022.

The MMPA "generally prohibits any individual from 'taking' a marine mammal, defined as harassing, hunting, capturing, or killing it." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 15, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing 16 U.S.C. §§ 1362(13), 1372(a)). The take prohibition admits of several exceptions, including one for "incidental take in the course of commercial fishing," which is relevant here. Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 899 (9th Cir. 2012) (citing 16 U.S.C. § 1371(a)(1)-(2)).

ESA-listed marine mammals enjoy enhanced protection under the MMPA. Before issuing a permit to authorize for up to three years the incidental taking of listed marine mammals in commercial fishing operations, the MMPA requires NMFS to make the following determinations after a notice-and-comment period:

(I) the incidental mortality and serious injury from commercial fisheries will have a negligible impact on such species or stock;

(II) a recovery plan has been developed or is being developed for such species or stock pursuant to the [ESA]; and

(III) where required under section 1387 of this title, a monitoring program is established under subsection (d) of such section, vessels engaged in such fisheries are registered in accordance with such section, and a take reduction plan has been developed or is being developed for such species or stock.

16 U.S.C. § 1371(a)(5)(E)(i).

At issue here are the take reduction plans. Under Section 1387(f)(1), NMFS is required to "develop and implement a take reduction plan" for all "strategic stocks" -- which by definition includes all ESA-listed marine mammal stocks, see id. § 1362(19)(C) -- that interact with commercial fisheries that cause at least "occasional incidental mortality and serious injury of marine mammals," id. § 1387(c)(1)(A)(ii). These fisheries are classified as Category I or II fisheries, and the sablefish pot fishery is in Category II. See MMPA 000001. The MMPA sets a goal of reducing, within five years of implementing a take reduction plan, "the incidental mortality or serious injury of marine mammals incidentally taken in the course of commercial fishing operations to insignificant levels approaching a zero mortality and serious injury rate, taking into account the economics of the fishery, the availability of existing technology, and existing State or regional fishery management plans." 16 U.S.C. § 1387(f)(2).

There is no dispute that NMFS issued the 2021 incidental take permit for the sablefish pot fishery without developing, or even starting to work on, a take reduction plan for the humpback whales. See Dkt. No. 284 at 3; Dkt. No. 285 at 12-14. NMFS's own assessment of its compliance with Section 1371(a)(5)(E) concluded that the take reduction plan requirements were satisfied because a plan was "on the priority list for development," even though it was not "complete" or "underway." MMPA 000022.

This assessment overtly conflicts with the statutory requirement that "a take reduction plan has been developed or is being developed for" the ESA-listed humpback whales. 16 U.S.C. § 1371(a)(5)(E)(i)(III). The main point of contention between the parties is whether Section 1387(f) lets NMFS off the hook. The parties agree that the phrase "where required under section 1387" applies to all the provisions in Section 1371(a)(5)(E)(i)(III). See Dkt. No. 284 at 5-6; Dkt. No. 285 at 12. NMFS says that it was not required under Section 1387 to develop a take reduction plan because it lacked the funding to do so. See Dkt. No. 283 at 22. It says that the MMPA expressly contemplates this situation:

If there is insufficient funding available to develop and implement a take reduction

...