Ctr. for Biological Diversity v. Nat'l Marine Fisheries Serv.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: PER CURIAM
• Docket Number: 22-529
• Decision Date: 21 June 2024
• Parties: Center for Biological Diversity, et al., Appellants v. National Marine Fisheries Service and Gina Raimondo, in her official capacity as Secretary of Commerce, Appellees

1

Center for Biological Diversity, et al., Appellants v. National Marine Fisheries Service and Gina Raimondo, in her official capacity as Secretary of Commerce, Appellees

No. 22-529

United States Court of Appeals, District of Columbia Circuit

June 21, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:21-cv-00930)

Before: Henderson, Walker and Pan, Circuit Judges

JUDGMENT

PER CURIAM

We heard this appeal on the record from the United States District Court for the District of Columbia and the parties' briefs and arguments. We fully considered the issues and determined that a published opinion is unnecessary. See D.C. Cir. R. 36(d).

For the reasons set forth below, we AFFIRM the district court's grant of summary judgment.

* * *

In 2019, the National Marine Fisheries Service issued a new rule to protect sea turtles. Three environmental groups challenged it. Contrary to their arguments related to the Administrative Procedure Act, the rule was reasonably explained and was a logical outgrowth of the proposal that preceded it. In addition, their argument related to the National Environmental Policy Act fails. We therefore affirm the district court's decision to grant summary judgment to the Fisheries Service.

I. Background

The Endangered Species Act protects "endangered" and "threatened" species. See 16 U.S.C. § 1531(b). One way the Act protects covered species is by making it unlawful to "take" those species. Id. § 1538(a)(1)(B). So, as a general matter, no one can "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a protected animal, or "attempt to engage in any such conduct." Id. § 1532(19).

Federal agencies may "promulgate such regulations as may be appropriate" to protect against the unlawful taking of a protected animal. Id. § 1540(f); see also 50 C.F.R. § 222.101(a).^[1] For protected marine animals like the sea turtles at issue in this case, a relevant agency is the National Marine Fisheries Service. Its regulations clarify that "otherwise prohibited" takings are permissible if they are "incidental to . . . an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B).

One such lawful activity is commercial fishing, including shrimping. See 50 C.F.R. § 223.206(d) (allowing the "incidental" taking of protected sea turtles "during fishing" so long as the fishers are in compliance with certain regulations). Incidental takings occur when shrimpers cast trawl nets into the sea and accidentally ensnare sea turtles. If the sea turtles cannot escape, they drown. But trawl nets can be fitted with a "turtle excluder device," which "is a grid . . . that mechanically separates sea turtles . . . from the net through an escape opening." JA 311.

The Fisheries Service regulations have never required every shrimper to use a turtle exclusion device. Before 2019, deep-water shrimpers using "otter trawls" were required to install turtle excluder devices, but shallower-water shrimpers using "skimmer trawls," "pusher-head trawls," and "butterfly trawls" were not.^[2] Center for Biological Diversity v. National Marine Fisheries Service, 628 F.Supp.3d 189, 196 (D.D.C. 2022).

The Fisheries Service proposed a new rule about turtle excluder devices in 2016. The proposal considered seven regulatory options. The options ranged from preserving the status quo; to requiring additional shrimpers to use turtle excluder devices based on vessel length, type of trawl used, and fishing location; to requiring all shrimpers to use turtle excluder devices. Among those options, the Fisheries Service preferred one of the most expensive, which required all shrimpers using skimmer trawls, pusher-head trawls, or butterfly trawls to use turtle excluder devices.

After commenters expressed concern about the economic impact of the proposed rule, the Fisheries Service promulgated a more modest final rule in 2019. That final rule required only shrimpers using skimmer trawls on vessels at least 40 feet in length to use turtle excluder devices.

In the view of three environmental organizations, the 2019 final rule should have covered at least as many shrimpers as the 2016 proposed rule. They sued the Fisheries Service, arguing that (1) the rule was arbitrary and capricious because it was inadequately explained; (2) it was not a logical outgrowth of the proposed rule that preceded it; and (3) the Fisheries Service was required by the National Environmental Protection Act to conduct a species-by-species analysis of the protected turtle populations, rather than an analysis of the aggregate population of protected turtles. Id. at 208-09.

The district court awarded summary judgment to the Fisheries Service. Id. at 219.

The environmental organizations appealed.

II. The Final Rule Is Not Arbitrary and Capricious

Courts shall set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The Administrative Procedure Act's "arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained." FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021). We do not set aside agency action when the agency has adequately "explained its logic and the policies underlying its choices." North America's Building Trades Unions v. OSHA, 878 F.3d 271, 303 (D.C. Cir. 2017) (cleaned up). Nor do we penalize an agency simply because it first proposed a broad rule and then later adopted a narrower rule. See Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 950-51 (D.C. Cir. 2004).

The 2019 final rule was not arbitrary and capricious. Although it did not cover as many shrimpers as the 2016 proposed rule that preceded it, that 2016 proposal was "preliminary." And it was followed by comments urging the Fisheries Service to impose a smaller economic burden on the fishing industry. Agencies "are free - indeed, they are encouraged - to modify proposed rules as a result of the comments they receive." Id. at 951.

The Fisheries Service's final rule reflects a policy choice, which was adequately explained by its consideration of the rule's costs and benefits. See North America's Building Trades Unions, 878 F.3d at 302-03. Under the final rule, up to 1,158 sea turtles will be saved each year, at an annual cost of $3.7 million. While the proposed rule was projected to save more than twice as many sea turtles, it would have imposed nearly four times the cost on the shrimping industry.

When balancing those projected costs and benefits, the final rule explains that the covered vessels are "expected to encounter sea turtles on the fishing grounds more frequently than smaller, part-time vessels." JA 323. The rule also explains that the shrimpers on those full-time, larger vessels can better absorb compliance costs. And it explains that a rule reaching only certain vessels "can be implemented in far less time than the proposed rule, allowing for more focused and expedient sea turtle conservation." JA 427. Considered together, those explanations were reasonable.^[3]

To be sure, the environmental groups believe more sea turtles should be protected even at the expense of shrimpers. But the environmental groups concede that the Fisheries Service was allowed to consider the industry's compliance costs. Oral Arg. Tr. 5 ("we don't disagree that economic impacts are relevant"). And our role is not to decide who has the better policy argument. The Fisheries Service's reasonable explanation of its reasonable decision leaves this court with "no basis for second-guessing" the final rule. North America's Building Trades Unions, 878 F.3d at 303.^[4]

III. The Final Rule Is A Logical Outgrowth of the Proposed Rule

We next address whether the 2019 final rule was a logical outgrowth of the 2016 proposed rule. See 5 U.S.C. § 553(b)(3). Under the logical-outgrowth rule, "the final rule the agency adopts must be a logical outgrowth of the rule proposed." Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007) (cleaned up). But agencies are not required "to select a final rule from among the precise proposals under consideration during the comment period." Sierra Club v. Costle, 657 F.2d 298, 352 (D.C. Cir. 1981). Rather, it "is entirely proper and often necessary for the agency to continue its deliberations and internal decisionmaking process after the close of public comment in order to assimilate those comments and arrive at a policy choice." Id. at 352-53.

The 2019 final rule was a logical outgrowth of the 2016 proposed rule. The Fisheries Service's proposal made clear that it intended to account for both sea turtle conservation and the economic impact of its proposed regulations, and it sought comments. By listing alternative regulations based on vessel length or type of trawl used, the 2016 proposed rule put interested parties on notice that the Fisheries Service was considering those two factors as relevant. And the final rule fell squarely within the range of options in the proposed rule, which contemplated anything from maintaining the status quo to requiring all shrimpers to use turtle excluder devices.

That is all the Fisheries Service needs to show. It requires "no great leap of logic or imagination to contemplate that the ultimate outcome of [a] rulemaking might be no rule, or only partial adoption of the proposed comprehensive rule." Association of American Railroads v. DOT, 38 F.3d 582, 589 (D.C. Cir. 1994). Because the final rule was a "partial adoption of the proposed comprehensive rule" within the scope of the alternatives set forth by the proposed rule, it is a logical outgrowth of the proposed rule. Id.; see also Arizona Publishing Service Co. v. EPA, 211 F.3d 1280, 1299-300 (D.C....