Ctr. for Biological Diversity v. Ross

349 F.Supp.3d 38

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.Wilbur ROSS, et al., Defendants.

Civil Action Nos. 18-112 (JEB)

18-283 (JEB)

United States District Court, District of Columbia.

Signed October 4, 2018

Kristen Monsell, Pro Hac Vice, Center for Biological Diversity, Oakland, CA, Jane P. Davenport, Defenders of Wildlife, Laura Friend, Humane Society of the United States, Roger M. Fleming, Earthjustice, Washington, DC, Sarah Uhlemann, Center for Biological Diversity, Seattle, WA, Emily K. Green, Pro Hac Vice, Sean Mahoney, Pro Hac Vice, Conservation Law Foundation, Portland, MA, Erica A. Fuller, Pro Hac Vice, Conservation Law Foundation, Boston, MA, for Plaintiffs.

John B. Grosko, U.S. Department of Justice, Environment and Natural Resource, Wildlife and Marine Resources Section, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Alarmed by the continued decline in the population of the North Atlantic right whale, four environmental and conservation groups have brought these two consolidated cases seeking to reverse that trend. They do so by challenging the National Marine Fisheries Service's oversight and authorization of the American lobster fishery, an industry Plaintiffs contend contributes heavily to the whale's demise. Specifically, Plaintiffs bring suit against the Secretary of Commerce, NMFS, and the Assistant Administrator for Fisheries at the National Oceanic and Atmospheric Administration, alleging that these Defendants have violated the Administrative Procedure Act, the Marine Mammal Protection Act, and the Endangered Species Act.

Plaintiffs currently seek discovery and the admission of extra-record evidence pursuant to their two ESA counts. Defendants counter that such materials should not be considered by the Court, contending that all of Plaintiffs' claims must be examined solely on the basis of the current administrative record. The Court attempted to assist the parties in reaching a compromise on this issue, but apparently to no avail, as they continue to hold fast to their respective positions. See ECF No. 40 (Status Report).

Thus forced to address the merits of the discovery dispute, the Court concludes that while Plaintiffs' two APA-based counts are confined to the record, evaluation of the two ESA counts may be based on evidence beyond that scope. It will, accordingly, grant Plaintiffs' Motion for Discovery.

I. Background

Many of the facts underlying this case have been described in depth in this Court's prior Opinion, see Ctr. for Biological Diversity v. Ross, 310 F.Supp.3d 119 (D.D.C. 2018), and most are not relevant to the discovery question presented here. A brief stage-setting is all that is required.

Two statutes — the Endangered Species Act, 16 U.S.C. § 1531 et seq. , and the Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq. — seek to protect species in danger of extinction, such as the right whale. The Secretary of Commerce is responsible for administering and enforcing the statutes. For most marine species, including the right whale, the Secretary has delegated this responsibility to the National Marine Fisheries Service, a line office within the National Oceanic and Atmospheric Administration, which itself sits in the Department of Commerce. See 50 C.F.R. § 402.01(b).

In order to determine the effects of the American lobster fishery on threatened and endangered species, NMFS must prepare biological opinions (BiOps) stating whether the proposed action is likely to jeopardize listed species or their habitat. See 16 U.S.C. § 1536(b) ; 50 C.F.R. § 402.14 ; CBD Compl., ¶¶ 90-91. In 2014, the Agency issued a BiOp to analyze the effects on the North Atlantic right whale. Id., ¶ 98. The opinion estimated that right-whale entanglements from the lobster fishery would be unlikely to increase above 3.25 per year and concluded that the fishery does not threaten the survival of the whale. Id., ¶¶ 102-04.

In January 2018, the Center for Biological Diversity, Defenders of Wildlife, and the Humane Society of the United States brought suit, alleging that agency actions, including the 2014 BiOp, do not comply with the ESA, the MMPA, or the Administrative Procedure Act. Id., ¶ 1. The following month, the Conservation Law Foundation followed suit by filing a Complaint with substantially similar claims and requests for relief. See CLF Compl. Together, Plaintiffs set forth four causes of action alleging that Defendants are falling short in their duties to protect the right whale. See Mot. at 1. Their first and fourth counts arise under the APA, alleging that the 2014 BiOp regarding the authorization and management of the lobster fishery and its continued authorization under the MMPA are arbitrary, capricious, and not in accordance with the law. See CBD Compl., ¶¶ 117-125, 135-39; CLF Compl., ¶¶ 118-126, 140-48.

Their second and third counts, by contrast, relate to Defendants' "mandatory substantive obligations under the ESA." Mot. at 1. Specifically, Plaintiffs contend that Defendants are violating their ongoing duty under ESA § 7 to ensure against jeopardy of endangered right whales and their obligation under § 9 of the Act to prevent unauthorized "take" of the cetaceans. See CBD Compl., ¶¶ 126-34; CLF Compl., ¶¶ 128-32, 134-39. Both of these claims are brought pursuant to the "citizen-suit provision" of the ESA, which provides that any individual may bring a civil suit "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 this [Act] or regulation issued under the authority thereof." 16 U.S.C. § 1540(g)(1)(A). As relief, Plaintiffs seek to compel the Government to comply with its substantive duties to avoid jeopardy and to refrain from committing unauthorized take. In pursuit of these ends, they seek declaratory and injunctive relief, including an order directing Defendants to implement mitigation measures to protect the whales from entanglements in lobster gear. See CBD Compl. at 32; CLF Compl. at 38-39.

On June 8, 2018, Plaintiffs filed a Joint Motion on the Scope of Review, requesting that the court permit discovery on their two ESA claims. In an attempt to narrow or resolve the dispute, the Court – as is its practice in non-APA cases – held a conference call and a status hearing. See Minute Orders of July 19, 2018 & Sept. 5, 2018. Its efforts did not bear fruit. See Status Report of Sept. 18, 2018.

II. Analysis

As both sides agree, the Court need not address Plaintiffs' APA and MMPA claims, the adjudication of which is confined to the administrative record. See Mot. at 3 n.2, 7. Where the sides part ways, however, is over whether Plaintiffs are entitled to discovery on the citizen-suit ESA counts. Because their Motion is in large part based upon the specific provisions of the ESA under which those counts arise – namely, §§ 7 and 9 – the Court will provide a brief statutory background before analyzing the availability of discovery.

A. Statutory Background

The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation" and "reveals a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 185, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Pursuant to that prioritization, the citizen-suit provision of the Act, 16 U.S.C. § 1540(g)(1)(A), allows parties to file suit against actors – including federal agencies – to "enforce the substantive provisions of the ESA." Nat'l Ass'n of Home Builders v. Norton, 298 F.Supp.2d 68, 72 (D.D.C. 2003), aff'd, 415 F.3d 8 (D.C. Cir. 2005). This provision "provides a cause of action to enjoin ongoing violations or to prevent imminent future violations," Yurok Tribe v. United States Bureau of Reclamation, 231 F.Supp.3d 450, 463–64 (N.D. Cal. 2017), and is "frequently used to compel agency action."

Nw. Coal. for Alternatives to Pesticides v. U.S. EPA, 920 F.Supp.2d 1168, 1170 (W.D. Wash. 2013).

In pursuit of the ESA's conservation goals, § 7(a)(2) of the Act prohibits federal agencies from taking actions that are "likely to jeopardize the continued existence of any endangered species." 16 U.S.C. § 1536(a)(2). Jeopardy exists when it is reasonable to expect that an agency action would "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." 50 C.F.R. § 402.02. To comply with this prohibition, the ESA requires agencies to consult with and obtain the opinion of the relevant wildlife consulting agency, either the U.S. Fish and Wildlife Service or NMFS, prior to taking any discretionary action that may affect an endangered species. See 16 U.S.C. § 1536(a)(2) ; 50 C.F.R. § 402.14(a). After such consultation, the wildlife agency provides a biological opinion analyzing whether the proposed agency action is likely to cause jeopardy and, if so, identifying alternatives to avoid such an outcome. See 16 U.S.C. § 1536(b)(3)(A) ; 50 C.F.R. §§ 402.02, 402.14(g), (h). Agencies' obligations under § 7, however, are not fulfilled merely by engaging in this procedural consultation process. Rather, the ESA also imposes substantive requirements pursuant to the "no-jeopardy" provision. Under § 7, the agency has an ongoing duty to avoid jeopardy that continues regardless of the status of consultation, so long as the agency retains discretionary control over the action. See, e.g., Cottonwood Envtl. Law Ctr. v. U.S. Forest Service, 789 F.3d 1075, 1087-88 (9th Cir. 2015). The provision thus contains a procedural, consultative requirement and a substantive obligation to insure against jeopardy. See Defs. of Wildlife v. Martin, 454 F.Supp.2d 1085, 1094 (E.D. Wash. 2006) ("Section 7(a)(2) of the ESA imposes a substantive duty in addition to its procedural consultation...