Oceana, Inc. v. Pritzker

125 F.Supp.3d 232

Oceana, Inc., Plaintiff,

v.Penny Pritzker, United States Secretary of Commerce, et al., Defendants.

Civil Action No. 12–0041 (PLF)

United States District Court, District of Columbia.

Signed August 31, 2015

Paul Anthony Werner, III, Gardner Fordyce Gillespie, III, J. Aaron George, Sheppard Mullin Richter & Hampton LLP, Washington, DC, for Plaintiff.

James A. Maysonett, U.S. Department of Justice Environment &, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, United States District Judge

Oceana, Inc. challenges a Biological Opinion issued by the National Marine Fisheries Service ("NMFS"), in which NMFS has determined that the combined operation of seven fisheries is not likely to jeopardize the continued existence of the Northwest Atlantic Distinct Population Segment of loggerhead sea turtles. Oceana contends that the Biological Opinion is arbitrary and capricious and therefore seeks its vacatur. NMFS responds that its scientific judgment is entitled to deference. Both sides have filed motions for summary judgment. For the reasons explained in this Opinion, the Court will grant in part and deny in part each side's motion for summary judgment and it will remand this matter to the agency for the limited purposes set forth in the discussion below.¹

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, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The ESA "seeks to protect species of animals against threats to their continuing existence caused by man." Lujan v. Defenders of Wildlife, 504 U.S. 555, 558, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Under the ESA, species may be listed either as "endangered" or as "threatened." See 16 U.S.C. § 1533. An endangered species is "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A threatened species is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). The ESA is jointly administered by two federal agencies: the Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service. 50 C.F.R. § 402.01(b). FWS administers the statute with respect to species under the jurisdiction of the Secretary of the Interior, while NMFS covers those species under the jurisdiction of the Secretary of Commerce. Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 651, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007).

"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, 551 U.S. at 652, 127 S.Ct. 2518. Under Section 7(a)(2), "[e]ach Federal agency shall, in consultation with and with the assistance of [FWS or NMFS], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2).² Formal consultation under Section 7 is only required, however, where a federal agency has concluded after an initial review that its action "may affect listed species or critical habitat." See 50 C.F.R. § 402.14(a). At the conclusion of the Section 7 consultation process, FWS or NMFS must issue a Biological Opinion ("BiOp"), "setting forth [its] opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." 16 U.S.C. § 1536(b)(3)(A) ; see also 50 C.F.R. § 402.14(h).

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, 551 U.S. at 652, 127 S.Ct. 2518. Where the consulting agency concludes that the agency action is not likely to jeopardize the continued existence of the species but is nonetheless likely to result in some "incidental take," the BiOp must set forth an Incidental Take Statement, which specifies the permissible "amount or extent" of this impact on the species. 16 U.S.C. § 1536(b)(4) ; 50 C.F.R. § 402.14(i). "Take" is defined by the ESA as meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Although Section 9 of the ESA prohibits takes of listed species, 16 U.S.C. § 1538(a)(1), incidental takes are permissible if they occur in accordance with the conditions set forth in an Incidental Take Statement. 50 C.F.R. § 402.14(i)(5). These conditions include "reasonable and prudent measures" that are considered "necessary or appropriate to minimize" the extent of incidental taking. 50 C.F.R. § 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, 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).

II. BACKGROUND

In December of 2014, this Court issued an Opinion and an Order addressing Oceana's challenge to a separate Biological Opinion, in which NMFS had concluded that the operation of the Atlantic Sea Scallop Fishery was not likely to jeopardize the continued existence of the same loggerhead turtle population at issue in the present case, the Northwest Atlantic Distinct Population Segment.See Oceana, Inc. v. Pritzker, 75 F.Supp.3d 469 (D.D.C.2014). The Court largely rejected Oceana's arguments, but agreed with Oceana that the provisions of the BiOp's Incidental Take Statement might not be sufficient to ensure that NMFS could determine when the take limits had been exceeded. As a result, the Court remanded the BiOp to NMFS for reconsideration or further explanation of those provisions. See id. at 497–99.

At issue in the present case is a Biological Opinion addressing the impact of seven other fisheries on the Northwest Atlantic Distinct Population Segment of loggerheads.³ These seven fisheries are the: (1) Northeast Multispecies; (2) Monkfish; (3) Spiny Dogfish; (4) Atlantic Bluefish; (5) Northeast Skate Complex; (6) Mackerel, Squid, and Butterfish; and (7) Summer Flounder, Scup, and Black Sea Bass Fisheries.⁴ Oceana maintains that the BiOp is deficient for a variety of reasons, and argues that this Court should vacate the BiOp and direct NMFS to reinitiate consultation under the Endangered Species Act with respect to the seven fisheries. See Am. Compl. at 38 (prayer for relief).

The fisheries employ a variety of gear types that can cause harm to loggerheads. "Sink gillnets and bottom otter trawls are the two predominant gear types used in the seven fisheries." AR 52253. Sink gillnets are panels of netting "in which fish are incidentally snaggled or entangled." Id. Gillnets are hung from a floating line on the surface of the water and are weighted down at their bottoms. Id. These gillnets also entangle loggerhead turtles, which can cause serious injury and death. AR 52455. In fact, "[g]illnets are so effective at catching sea turtles they were commonly used in the historical sea turtle fishery." Id. "Bottom trawls are typically cone-shaped nets towed on the bottom" of the seafloor, which feature "[l]arge, rectangular doors" that keep the mouth of the net open while it is towed. AR 52254. Like gillnets, bottom trawls can entangle or capture loggerheads, leading to serious injury and death. AR 52455. In addition to gillnets and trawls, the fisheries utilize trap/pot gear and bottom longlines. AR 52254. Both of these gear types also are known to pose threats of injury and death to loggerhead turtles. AR 52455–56, 52463–64.

The BiOp assesses the impact of the seven fisheries together as a "batch," AR 52252, which departs from NMFS' prior practice of analyzing each fishery's effects in a separate Section 7 consultation. See AR 52243–53. In 2010, NMFS issued separate BiOps for each of these seven fisheries. AR 52243–51. In 2012, NMFS reinitiated Section 7 consultation and decided to use a "batched" approach instead. AR 52251. Under this approach, the BiOp defines the "proposed action" under review as "the continued operation of the [seven] fisheries managed under seven [Fisheries Management Plans]." AR 52251. NMFS has estimated that this action will result in up to 483 loggerhead "takes" per year, of which up to 239 may be lethal. AR 52478–81, 52508. NMFS ultimately concludes, however, that these effects of the operation of the seven fisheries are not likely to jeopardize the continued existence of the species. AR 5251015; see 16 U.S.C. § 1536(a)(2). This "no-jeopardy determination" is the ultimate target of Oceana's challenge to the BiOp. Although NMFS found no jeopardy, it did, as noted above, estimate that several hundred loggerhead takes would occur annually in the seven fisheries, and the agency therefore...