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

• Decision Date: 05 February 2016
• Docket Number: Civil No. 12–1281 (SEC)
• Citation: 191 F.Supp.3d 157
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

191 F.Supp.3d 157

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

Civil No. 12–1281 (SEC)

United States District Court, D. Puerto Rico.

Signed February 5, 2016

Miguel Sarriera–Roman, Miguel Sarriera Roman Law Office, Quebradillas, PR, Andrea A. Treece, Earthjustice, San Francisco, CA, Stephen Elston Roady, Earthjustice, Washington, DC, for Plaintiffs Center for Biological Diversity, Mary Adele Donnelly, Coralations.

Mark Arthur Brown, Sr., United States Department of Justice, Washington, DC, for Defendants National Marine Fisheries Service, John E. Bryson.

OPINION AND ORDER

SALVADOR E. CASELLAS, United States Senior District Judge

Before the Court is Plaintiffs' motion to "clarify the court's order regarding remand," Docket # 76—which the Court construes as a motion to enforce its previous remand order. After reviewing the parties' briefs, Dockets ## 84–87, and the applicable law, Plaintiffs' motion is DENIED.

I. Factual and Procedural Background

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 plaintiffs¹ (Plaintiffs) brought this suit under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 706. They challenged the National Marine Fisheries Service (NMFS)² Biological Opinion (BiOp) concluding that the incidental take³ on elkhorn and staghorn coral (collectively, Acropora)—which are listed a "threatened species" under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. —resulting from continued but reduced fishing levels for parrotfish and surgeonfish in the U.S. Caribbean Reef Fishery would not jeopardize Acropora's continued existence or adversely affect their critical habitat.

In a previous opinion granting in part both parties' cross-motions for summary judgment, this Court recounted the factual and procedural background, and detailed the legal framework governing this dispute. See Ctr. for Biological Diversity v. Nat'l Marine Fisheries Serv., 977 F.Supp.2d 55, 57–69 (D.P.R. 2013), as amended(Oct. 23, 2013). For the sake of brevity, the Court will provide only the background necessary to dispose of the issues pending.

As explained in the opinion, macroalgae competes with Acropora "for space on the reef." Id. at 65. Parrotfish grazes macroalgae thereby augmenting the reef space for Acropora to thrive. In short, because Parrotfish feeds off Acropora's ecological competitor, a take on Parrotfish produces an incidental take on Acropora.

On summary judgment, the Court validated the BiOp's conclusion that the reduced level of fishing would not jeopardize Acropora or adversely modify its critical habitat because it was based on the best available scientific evidence and because it considered the Fishery's cumulative adverse impacts in the context of existing threats to Acropora and their habitat. But the Court remanded the BiOp's Incidental Take Statement (ITS) to NMFS because its terms and conditions failed to include a meaningful trigger for reinitiating consultation as mandated by the regulatory framework of the ESA. 50 C.F.R § 402.14. On this point, the Court deferred to NMFS's explanation regarding the impracticality of setting a numerical take, but held that its chosen surrogate—monitoring the biomass of unspecified herbivorous fish—was too vague and broad. Therefore, the ITS did not provide a viable method to detect the Fishery's future effect. Specifically, the surrogate was inadequate because NMFS did not have current baseline estimates of herbivorous fish biomass and thus, there were no measures against which future measurements could be compared with. Further, measuring undifferentiated herbivorous fish biomass could not account for the fact that larger grazing fish—such as parrotfish—are needed to regulate macroalgae growth. The surrogate thus could not accurately measure the level of allowable take on Acropora. In short, because NMFS could not measure its chosen surrogate, and because the ITS failed to articulate a causal link between the surrogate and the take on Acropora, there was no meaningful trigger for reinitiating section 7 consultation.

After several procedural nuances, the Court entered judgment closing the case administratively, without prejudice, "pending the filing of the Revised Incidental Take Statement." Docket # 74. NMFS then filed a Revised ITS stating that it had completed censuses of parrotfish biomass around the St. Croix and St. Thomas/St. John areas, and that Puerto Rico would be surveyed in 2014. Docket # 75–1 at 6. Also, instead of measuring undifferentiated herbivorous fish, the Revised ITS used the biomass and length of ten specific parrotfish species and particular parrotfish grazing groups as the surrogate or proxy to measure the Fishery's incidental take on Acropora. Id. at 5.

Partially unsatisfied with the Revised ITS, Plaintiffs filed a "motion to re-open this case and clarify the court's order regarding remand." Docket # 76. This time, Plaintiffs challenged the Revised ITS on a very narrow issue: that its terms and conditions do not include monitoring requirements in St. Thomas/St. Johns and Puerto Rico.⁴ They argue that this omission violates the ESA.

The issue of whether monitoring is required in all places where incidental take occurs was initially raised at the summary-judgment stage. There, Defendants argued that given its limited funding levels, NMFS elected to monitor biomass in St. Croix because parrotfish are not strongly targeted in Puerto Rico or in St. Thomas/St. John. Therefore, the reduced level of fishing in these areas was less likely to "significantly change stock size." Ctr. for Biological Diversity, 977 F.Supp.2d at 90. On this point, the Court stated that

[a]t first blush, and given the deference owed to NMFS, these explanations appear to be reasonable. But Plaintiffs rightly point to NMFS's admission that the Fishery will continue to degrade Acropora habitat in Puerto Rico and St. Thomas/St. John, and that this continued habitat degradation will result in incidental take throughout all three island areas. That NMFS admitted that such take will occur would normally result in the agency having to monitor that take. Still, given Defendants' explanations, this shortcoming, without more, should not result in the ITS's invalidation. But when added together to the other flaws discussed above, it tips the scale in favor of Plaintiffs .

Id.(emphasis added) (internal quotations and citations omitted).

Plaintiffs now contend that by failing to include monitoring requirements in Puerto Rico and St. Thomas/St. John, the Revised ITS violates the Court's order. But Plaintiffs misconstrue the Court's remarks. Concededly, this was one of several deficiencies in the original ITS that contributed to the Court's decision to remand. But now that the Revised ITS cured the other deficiencies, the Court must decide whether this factor in isolation is sufficient to invalidate the Revised ITS under the ESA as a matter of law.

II. Standard of Review

A court may set aside an agency action only when the administrative record shows that the agency decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) ; Massachusetts v. U.S. Nuclear Regulatory Comm'n, 708 F.3d 63, 73 (1st Cir. 2013). "An agency decision fails to pass this test if the administrative record reveals that ‘the agency relied on improper factors, failed to consider pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency expertise.’ " Atieh v. Riordan, 727 F.3d 73, 76 (1st Cir. 2013) (quoting Assoc'd Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997) ).

Because the APA standard affords great deference to agency decision making and because the Secretary's action is presumed valid, judicial review... is narrow." Lovgren v. Locke, 701 F.3d 5, 20 (1st Cir. 2012) (quoting Assoc'd Fisheries of Me., 127 F.3d at 107 ). These principles retain considerable bite where, as here, the action impugned falls within the agency's technical and scientific expertise. See, e.g., Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377–78, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Barring, of course, violation of federal law, policy choices are the agency's providence, so "even if a reviewing court disagrees with the agency's conclusions, it cannot substitute its judgment for that of the agency." Assoc'd Fisheries of Me., 127 F.3d 104 at 109.

III. Applicable Law and Analysis

Under ESA regulations, an ITS must set forth the impact of the incidental take on the listed species, specify reasonable and prudent measures necessary or appropriate to minimize such impact, and set forth terms and conditions—including reporting requirements to implement those reasonable and prudent measures. 50 C.F.R. § 402.14 (i). The ITS must also set "a clear standard for determining when the level of anticipated take has been exceeded." Id. That is, it must "set forth a ‘trigger’ that, when reached, results in an unacceptable level of incidental take, [thus] invalidating the safe harbor provision, and requiring the parties to re-initiate consultation." Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1249 (9th Cir. 2001). The agency must also monitor the incidental take to ensure that the trigger has not been met. "If during the course of the action, the amount or extent of incidental taking...is exceeded, [NMFS] must reinitiate consultation immediately." 50 C.F.R. § 402.14(i)(4). See also id., § 402.16 (listing all circumstances when agencies must reinitiate consultation).

Ideally, the trigger should be a specific number of take from the species. See Ariz. Cattle...