75 F.Supp.3d 469 (D.D.C. 2014), C. A. 08-1881 (PLF), Oceana, Inc. v. Pritzker

Docket Nº:Civil Action 08-1881 (PLF)
Citation:75 F.Supp.3d 469
Opinion Judge:PAUL L. FRIEDMAN, United States District Judge.
Party Name:OCEANA, INC., Plaintiff, v. PENNY PRITZKER, United States Secretary of Commerce, et al.,[1] Defendants, and FISHERIES SURVIVAL FUND, Defendant-Intervenor
Attorney:Civil Action No. 08-1881 (PLF) For Oceana, Inc., Plaintiff: Eric A. Bilsky, LEAD ATTORNEY, OCEANA, INC., Washington, DC USA; Paul Anthony Werner, III, LEAD ATTORNEY, Gardner Fordyce Gillespie, III, J. Aaron George, SHEPPARD MULLIN RICHTER & HAMPTON LLP, Washington, DC USA. For National Oceanic An...
Case Date:December 17, 2014
Court:United States District Courts, District of Columbia
 
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Page 469

75 F.Supp.3d 469 (D.D.C. 2014)

OCEANA, INC., Plaintiff,

v.

PENNY PRITZKER, United States Secretary of Commerce, et al., 1 Defendants,

and

FISHERIES SURVIVAL FUND, Defendant-Intervenor

Civil Action No. 08-1881 (PLF)

United States District Court, D. Columbia

December 17, 2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Oceana, Inc., Plaintiff: Eric A. Bilsky, LEAD ATTORNEY, OCEANA, INC., Washington, DC USA; Paul Anthony Werner, III, LEAD ATTORNEY, Gardner Fordyce Gillespie, III, J. Aaron George, SHEPPARD MULLIN RICHTER & HAMPTON LLP, Washington, DC USA.

For National Oceanic And Atmospheric Administration, National Marine Fisheries Service, Rebecca M. Blank, In her official capacity as Acting Secretary of the United States Department of Commerce, Defendants: Kristen Byrnes Floom, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.

For Fisheries Survival Fund, (FSF), Intervenor Defendant: David Earl Frulla, LEAD ATTORNEY, KELLEY, DRYE & WARREN, LLP, Washington, DC USA; Shaun Michael Gehan, LAW OFFICE OF SHAUN M. GEHAN, PLLC, Washington, DC USA.

OPINION

PAUL L. FRIEDMAN, United States District Judge.

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This case involves a challenge to a Biological Opinion issued by the National Marine Fisheries Service (" NMFS" ), in which NMFS determined that the operation of the Atlantic Sea Scallop Fishery would not jeopardize the continued existence of the Northwest Atlantic population segment of loggerhead sea turtles. This population segment is listed as threatened under the Endangered Species Act (" ESA" ). Plaintiff Oceana, Inc. (" Oceana" ) maintains that the agency's no-jeopardy determination was arbitrary and capricious, and asks this Court to vacate the Biological Opinion. Oceana argues that NMFS reached its no-jeopardy determination by employing an interpretation of a key regulation that contravenes both the regulatory text as well as the language and spirit of the underlying statute, the ESA. In addition, Oceana contends that NMFS neglected in its analysis to take proper account of various factors that harm loggerheads, instead focusing solely on the isolated effects of the Scallop Fishery. Oceana specifically accuses NMFS of ignoring the effects of climate change, an issue which Oceana had raised in comments that it submitted to the agency. Oceana further argues that NMFS has failed to establish adequate monitoring processes to ensure that limits on the number of loggerheads that lawfully can be harmed are not exceeded by the Fishery's operation.

This matter is before the Court on cross-motions for summary judgment filed by Oceana and NMFS, as well as by defendant-intervenor Fisheries Survival Fund. The Court heard oral argument on these motions on November 25, 2014. Upon consideration of the parties' papers, their arguments presented in open court, the

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relevant legal authorities, and pertinent portions of the administrative record, the Court will grant in part and deny in part each party's motion for summary judgment and it will remand this matter to the agency for a limited purpose.2

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. 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).3 Formal consultation

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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. 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 (" ITS" ), 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 ITS. 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

Loggerhead sea turtles, or Caretta caretta, are the most abundant species of sea turtle living in United States waters. SAR 13142. They are long-lived, and do not reach reproductive maturity until between ages 32 to 35. SAR 13157. Loggerheads feed on mollusks and crustaceans, among other things. SAR 13146. NMFS explains that " [i]n U.S. Atlantic waters, loggerheads commonly occur throughout the inner continental shelf from Florida to Cape Cod, Massachusetts and in the Gulf

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of Mexico from Florida to Texas, although their presence varies with the seasons due to changes in water temperature." SAR 13145. In 1978, loggerheads were listed under the ESA as threatened throughout their global range. See SAR 13142.

On September 22, 2011, NMFS and FWS issued a final rule that divided the worldwide population of loggerheads into nine distinct population segments (" DPSs" ), each of which was separately listed as either endangered or threatened under the ESA. SAR 13144 (citing 76 Fed.Reg. 58,868 (Sept. 22, 2011)). This case concerns just one of these distinct population segments: the Northwest Atlantic DPS (" NWA DPS" ), whose range extends north of the equator, south of 60° N latitude, and west of 40° W longitude. See SAR 13144-45. The NWA DPS -- which, in the proposed version of the rule, originally had been listed as endangered -- ultimately was listed as a threatened species in the final rule. SAR 13143-44; see also 76 Fed.Reg. 58,868, 58,917-24, 58,945-46.

The BiOp under challenge here assesses the impact of the Atlantic Sea Scallop Fishery on the NWA DPS of loggerheads. This Fishery's operation is governed by the Scallop Fishery Management Plan (" Scallop FMP" ), pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (" MSA" ). See 16 U.S.C. § § 1854(a), (b). The MSA governs domestic marine fisheries through eight regional fishery management councils that prepare FMPs. 16 U.S.C. § § 1801(b)(1)(B),...

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