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

Decision Date30 September 2013
Docket NumberCivil No. 12-1281 (SEC)
PartiesCENTER FOR BIOLOGICAL DIVERSITY, ET AL., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, ET AL., Defendants.
CourtU.S. District Court — District of Puerto Rico
OPINION AND ORDER

Before the Court are the parties' cross-motions for summary judgment (Dockets # 44 & 47), and their consolidated response and reply memoranda. Dockets # 51 & 53. After reviewing the filings and the applicable law, each party's motion is GRANTED in part and DENIED in part.

Factual and Procedural Background

Members of the Acropora family, elkhorn and staghorn (collectively, Acropora or Corals) are two of the major reef-building corals that inhabit the Caribbean. Yet in the past three decades their populations have declined at an alarming rate, so in 2006 they were listed as "threatened species" under the Endangered Species Act of 1973 (ESA), 16 U.S.C. § 151 et seq. This dispute centers on the scope of the protections the ESA confers on Acropora.

Algae growth adversely affects elkhorn and staghorn. And in an interesting glance at the cycle of life in the U.S. Caribbean, it turns out that parrotfish — and to a lesser extent, surgeonfish — have become ecologically significant to Acropora: They graze algae and mitigate the spread of algae cover. Further distorting this balance, overfishing of parrotfish increases, at least minimally, the persistence of macroalgae thereby injuring, to some extent, the Corals. Thus shaped by the delicate but arresting ecological interrelation between Acropora, algae, and herbivorous fish, this ESA action showcases the myriad challenges that arise when federal environmental law and complex fishery regulations meet at the frontiers of science.

The Center for Biological Diversity, "a non-profit organization that is actively involved in species and habitat protection issues throughout the United States," Docket # 44-4, and related plaintiffs (collectively, Plaintiffs) bring this suit under the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. § 706.1 The defendants (Defendants) are the Secretary of Commerce, and the National Marine Fisheries Service (NMFS), the federal agency in charge of the management, conservation, and protection of living marine resources within the U.S. Caribbean's Exclusive Economic Zone (EEZ).2 In a nutshell, Plaintiffs challenge NMFS's recent agency action on the Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands (Fishery), arguing that it jeopardizes Acropora and adversely affects their critical habitat, thereby contravening the ESA.

Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. §§ 1801-1884, the Caribbean Fishery Management Council (Caribbean Council), along with NMFS, regulates the commercial and recreational harvest of Caribbean reef fish, including parrotfish and surgeonfish. It does so primarily through the Caribbean Fishery Management Plan (Fishery Plan). Now, the Magnuson-Stevens Act was recently amended by the Magnuson-Stevens Fishery Conservation and ManagementReauthorization Act of 2006 (Reauthorization Act), Pub. L. No. 109-479, 120 Stat. 3575 (2007), which "introduced a suite of stringent protections for depleted fisheries." Lovgren v. Locke, 701 F.3d 5, 12 (1st Cir. 2012)

The present dispute is an offshoot of the Caribbean Council's adjustments to the Fishery Plan. As mandated by the Reauthorization Act, the Caribbean Council proposed several important changes to the Fishery Plan. The process ultimately resulted in NMFS's adoption of the proposed changes, and its subsequent issuance of final regulations to implement what became Amendments 5 and 6 to the Fishery Plan (collectively, the "Amendments"). NMFS's decision to promulgate the regulations implementing the Amendments was supported by a 2011 biological opinion (the "BiOp") that concluded that the proposed action will neither jeopardize the Corals's continued existence nor adversely modify their critical habitat in the U.S. Caribbean. See AR 10415.3

Disagreeing with these conclusions, Plaintiffs have mounted a comprehensive legal challenge at the BiOp's conclusions. Because some of its determinations are capricious and arbitrary, Plaintiffs maintain, the BiOp violates the ESA and APA. See generally Docket # 32.4 Broadly speaking, Plaintiffs claim that Defendants' reliance on the BiOp violates their duty to Acropora under the ESA of avoiding (1) the "likelihood of jeopardy" to the existence of the Corals; and (2) an "adverse modification" of their critical habitat. Id. ¶ 2. They request, amongother remedies, that Defendants be ordered to "reinitiate ESA Section 7 consultation on the Fishery and complete a new legally valid biological opinion by a date certain." See, e.g., id., p. 39. To be clear, Plaintiffs do not directly challenge the merits (and hence the findings) of the regulations implementing the Amendments under the Magnuson-Stevens Act. Nor could they, because, as fully discussed later, they brought no suit under that statute. They instead question whether continued fishing under the Fishery Plan's Amendments adversely affects Acropora to an extent that contravenes the ESA.

In due course, both parties filed and fully briefed cross-motions for summary judgment. Plaintiffs' cross-motion for summary judgment contains — and the court will therefore only consider, see, e.g., Hainey v. U.S. Dep't of the Interior, 925 F. Supp. 2d 34, 44 n. 8 (D.D.C. 2013) — four legal challenges. See Docket # 44, p. 2. First, Plaintiffs argue that Defendants failed to base their jeopardy and habitat modification determinations on the best available science and did not establish a rational connection between the facts found and the conclusions made. Id. Second, they aver that Defendants did not consider the Fishery's cumulative adverse impacts in the context of severe existing threats to Acropora and their habitat. Id. Third, Plaintiffs contend that Defendants also failed to establish a meaningful trigger for reinitiating consultation on the Fishery's effects should those effects exceed the level predicted by NMFS. Id. Finally, Plaintiffs posit that Defendants violated their substantive duty to ensure that the Fishery would not jeopardize Acropora or adversely modify their critical habit.

Defendants opposed each of these grounds. Docket # 45. In June 2013 oral argument was heard at the Plaintiffs' behest (Docket # 58), while a certified copy of the complete administrative record was filed in August. Dockets # 61 & 62. For the reasons laid out below, the court agrees, in part, with both parties. The court concurs with Defendants that the first two assignments of error are meritless, but also agrees with Plaintiffs that their last two claims have merit, and that some of the BiOp's conclusions therefore offend the ESA.

I.

Because this ESA action arises within the complex statutory and regulatory system governing the Fishery and Acropora, it is appropriate to begin with the relevant statutory framework.

A. Statutory Framework: The Magnuson-Stevens Act and the ESA

Over three decades ago, and because of the mounting concerns about depleted fisheries, Congress enacted the Magnuson-Stevens Act (also called Sustainable Fisheries Act) "to conserve and manage the fishery resources found of the coasts off the United States." 16 U.S.C. § 1801(b)(1). The federal government, through the NMFS, exercises "exclusive fishery management authority" within the EEZ. Id. § 1811(a); see also note 2 above; Little Bay Lobster Co. v. Evans, 352 F.3d 462, 464 (1st Cir. 2003).5 To that end, the Magnuson-Stevens Act creates regional councils that are responsible for the sustainable management of fisheries. 16 U.S.C. § 1852(h).6

As noted above, the regional council with jurisdiction over the areas affected by NMFS's actions is the Caribbean Council, which consists of the "Virgin Islands and the Commonwealth of Puerto Rico," having "authority over the fisheries in the Caribbean Sea and Atlantic Ocean seaward of such States and of commonwealths, territories, and possessions of the United States in the Caribbean Sea . . . . " § 1852(a)(1)(D). Through the Fishery Plan (and amendments thereto), the Carribean Council regulates Caribbean reef fishing, including parrotfish andsurgeonfish. See id. § 1852(h)(1).7 The Caribbean Council is composed of state and federal fishery officials and other private individuals appointed by the Secretary of Commerce. See id. § 1852(a)-(b).8

The ESA, for its part, was enacted "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). In the landmark decision of Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978), the Supreme Court made clear that federal agencies must "afford first priority to the declared national policy of saving endangered species."9 In furtherance of its objectives, the ESA requires the Secretary to list threatened or endangered species and designate their critical habitat. 16 U.S.C. § 1533(c).10 Once a species is listed, several important protections apply.Section 7, as tersely described by the Ninth Circuit, is "the heart of the ESA . . ." W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir.), cert. denied, 132 S. Ct. 366 (2011); see 16 U.S.C. § 1536(a)(2). Among other things, it prescribes the steps that federal agencies must take to ensure that their actions do not (1) jeopardize endangered or threatened species; or (2) adversely modify their critical habitat. See, e.g., Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1018 (9th Cir. 2009).11 These overlapping yet distinct concepts of jeopardy and adverse modification are later discussed.

Under Section 7, when a federal agency (here the NMFS in its capacity as the Fishery's operator) plans to take action that may impact a...

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