Ctr. For Biological Diversity v. Nat'l Marine Fisheries Serv.
| Decision Date | 14 September 2022 |
| Docket Number | Civil Action 21-930 (BAH) |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
In the 1980s, the National Marine Fisheries Service (“NMFS”), which is tasked under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., with protecting endangered and threatened species of sea turtles in U.S. waters, developed a tool to combat the incidental capture by vessels trawling for shrimp of sea turtles, which must swim to the water's surface to breathe. Known as a turtle excluder device (“TED”), this tool prevents sea turtles from getting caught in shrimp nets and drowning.[1] By all accounts, TEDs have been successful in reducing the rate of sea turtle mortality due to shrimping, and many sea turtle populations across multiple species have rebounded since the species were listed as endangered or threatened in the early 1970s. See Compl. ¶¶ 53, 57, 72, ECF No 1. Despite this rebound, however, out of the five species of sea turtles found in U.S. waters, three remain endangered and the other two are threatened. Id. ¶¶ 49, 50, 55, 58, 61.
In 2016, as part of a stipulated agreement in a suit before another Judge on this Court, see Stipulated Agreement & Mot. Stay Case at 2-3, Oceana, Inc. v Pritzker, No. 15-cv-555 (PLF) (D.D.C. Sept. 7, 2016) ECF No. 11, NMFS issued a proposed rule that would have required all shrimp trawlers to use TEDs to “reduce incidental bycatch and mortality of sea turtles in the southeastern U.S. shrimp fisheries,” thereby “aid[ing] in the protection and recovery of listed sea turtle populations,” Sea Turtle Conservation; Shrimp Trawling Requirements, 81 Fed.Reg. 91097, 91097 (proposed Dec. 16, 2016) (to be codified at 50 C.F.R. pt. 223) (the “2016 NPRM”). When the final rule was promulgated in 2019, however, the requirement to use TEDs extended only to certain classes of trawlers, “exempt[ing] over 80 percent of the targeted shrimp vessels and more than halv[ing] its sea turtle protections.” Pls.' Mem. Supp. Mot. Summ. J. ( ) at 9, ECF No. 23-1. See Sea Turtle Conservation; Shrimp Trawling Requirements, 84 Fed.Reg. 70048 (Dec. 20, 2019) () (the “2019 Rule”). Specifically, while NMFS estimated that the proposed rule would affect 5,837 vessels and avoid 1,730-2,500 sea turtle deaths annually, 2016 NPRM, 81 Fed.Reg. at 910991100, the promulgated 2019 Rule extends the TED requirements to only 1,062 vessels, and is only anticipated to protect 801-1,158 turtles from drowning in shrimp nets annually. See Admin. Record (“AR”) at 1653-2069 ().
In light of the 2019 Rule's reduced anticipated effects on sea turtle mortality compared to the 2016 NPRM, plaintiffs Center for Biological Diversity, Defenders of Wildlife, and Turtle Island Restoration Network (“TIRN”), all nonprofit conservation and environmental organizations, filed the instant suit against NMFS and U.S. Secretary of Commerce Gina Raimondo, challenging the 2019 Rule as arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and unlawfully promulgated under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Compl. ¶ 9.
The parties have cross-moved for summary judgment. See Pls.' Mot. Summ. J. and Request for a Hearing ( ), ECF No. 23; Defs.' Cross-Mot. Summ. J. ( ), ECF No. 27. For the reasons set forth below, plaintiffs' motion for summary judgment is denied and defendants' cross-motion is granted.
To understand the implications of the 2019 Rule and properly evaluate the parties' claims, a brief introduction to the shrimping industry is helpful.[2] From the Gulf of Mexico to the Atlantic seaboard as far north as North Carolina, in the same waters where migratory sea turtles are also found, shrimp boats use nets to harvest wild shrimp for sale for human consumption and as bait. Final EIS at 28-30, 33. Some portion of this industry operates out of large, commercial vessels in deeper waters offshore; these vessels predominantly fish using nets called otter trawls, on which their captains have long been required to install TEDs. Id. at 30; 2019 Rule, 84 Fed.Reg. at 70058. Other vessels fish for shrimp from smaller boats in shallower waters, using any of three different types of nets. Final EIS at 30-32. The most common is a skimmer trawl, which is a “trawl that is fished alongside of the vessel,” 50 C.F.R. § 222.102, using a skimmer net that is elevated out of the water while being towed, to prevent shrimp from jumping over the top of the net and escaping, 2016 NPRM, 81 Fed.Reg. at 91098. Skimmer trawls increase “shrimp catch rates” and effectively avoid underwater debris, id., and account for upwards of 90% of “non-otter trawl landings” in the Gulf of Mexico and South Atlantic, Final EIS at 157. Less common are pusher-head trawls, where the V-shaped net frame is “mounted on the bow [front] of the boat” and is “fished by pushing the net along the bottom,” and wing nets, also known as butterfly trawls, which are mounted on the sides of a shrimp boat or on a stationary platform, 2016 NPRM, 81 Fed.Reg. at 91099, and “held open by a four-sided, rigid frame attached to the outrigger of the vessel,” 50 C.F.R. § 222.102. Historically, vessels with these three types of nets, i.e., skimmer nets, pusher-head nets, and wing nets, have been exempted from the TED requirements. 2016 NPRM, 81 Fed.Reg. at 91098.
The statutory framework governing plaintiffs' claims is discussed first, followed by the NMFS actions at issue in this case, and the procedural history of this litigation.
Enacted in 1973 to protect those “species of fish, wildlife, and plants . . . in danger of or threatened with extinction” and “of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people,” 16 U.S.C. § 1531(a), the ESA is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation” in the world, Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). The statute has three purposes: (1) “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved;” (2) “to provide a program for the conservation of such endangered species and threatened species;” and (3) “to take such steps as may be appropriate to achieve the purposes of the treaties and conventions” for the protection of wildlife to which the United States is a signatory. 16 U.S.C. § 1531(b). Under the ESA, a species is endangered when it “is in danger of extinction throughout all or a significant portion of its range,” id. § 1532(6), and threatened when it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range,” id. § 1532(20).
To effectuate the statute's purposes, Congress has authorized the Secretaries of Commerce and of the Interior variously to “promulgate regulations listing those species of animals that are ‘threatened' or ‘endangered' under specified criteria, and to designate their ‘critical habitat.'” Bennett v. Spear, 520 U.S. 154, 157-58 (1997) (quoting 16 U.S.C. § 1533).[3]Such decisions must be made “solely on the basis of the best scientific and commercial data available” to the agencies. 16 U.S.C. § 1533(b)(1)(A). Once a species is listed as threatened or endangered, “it is then subject to a host of protective measures designed to conserve the species.” Friends of Animals v. Jewell, 824 F.3d 1033, 1037 (D.C. Cir. 2016) (citation omitted). Such listing triggers, for example, ESA § 9, which makes unlawful “for any person subject to the jurisdiction of the United States” to, inter alia, “take any such species within the United States or the territorial sea of the United States,” 16 U.S.C. § 1538(a)(1)(B); “possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species,” id. § 1538(a)(1)(D); or “deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species,” id. § 1538(a)(1)(E). The “take” prohibition renders it unlawful “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). Moreover, ESA § 7 imposes on federal agencies a duty to “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,” id. § 1536(a)(2), which mandate “reflect[s] a ‘conscious decision by Congress to give endangered species priority over the primary missions of federal agencies,'” Growth Energy v. EPA, 5 F.4th 1, 26 (D.C. Cir. 2021) (quoting Tenn. Valley Auth., 437 U.S. at 185).
While the ESA provides strict guidelines for the preservation of animal species, this statute also provides the designated agencies some flexibility in how they regulate species once they are designated as endangered or threatened. See 16 U.S.C. § 1539(a)(1). For example, while the “taking” of an endangered or threatened species is generally prohibited, an agency may permit, subject to terms and conditions, the “taking” of endangered or threatened species “if such taking is incidental to and not the purpose of, the carrying out of an otherwise lawful activity[,]” id. ...
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