Ga. Aquarium, Inc. v. Pritzker, Civil Action No. 1:13–CV–3241–AT.

• Decision Date: 28 September 2015
• Docket Number: Civil Action No. 1:13–CV–3241–AT.
• Citation: 135 F.Supp.3d 1280
• Parties: GEORGIA AQUARIUM, INC., Plaintiff, v. Penny PRITZKER, in her Official Capacity as Secretary of Commerce, National Oceanic and Atmospheric Administration, and National Marine Fisheries Service, Defendants, Animal Welfare Institute, Whale and Dolphin Conservation, Whale and Dolphin Conservation, Inc. (North America), Cetacean Society International, and Earth Island Institute, Intervenor–Defendants.
• Court: U.S. District Court — Northern District of Georgia

135 F.Supp.3d 1280

GEORGIA AQUARIUM, INC., Plaintiff,
v.
Penny PRITZKER, in her Official Capacity as Secretary of Commerce, National Oceanic and Atmospheric Administration, and National Marine Fisheries Service, Defendants,

Animal Welfare Institute, Whale and Dolphin Conservation, Whale and Dolphin Conservation, Inc. (North America), Cetacean Society International, and Earth Island Institute, Intervenor–Defendants.

Civil Action No. 1:13–CV–3241–AT.

United States District Court, N.D. Georgia, Atlanta Division.

Signed Sept. 28, 2015.

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George John Mannina, Jr. (argued), Ashley J. Remillard, Nossaman, LLP; Daniel Francis Diffley, Meaghan Goodwin Boyd, Alston & Bird, LLP, for Plaintiff Georgia Aquarium, Inc.

Clifford Eugene Stevens, Jr. (argued), U.S. Department of Justice; Lisa D. Cooper, Lori M. Beranek, U.S. Attorney's Office, Northern District of Georgia, for Federal Defendants.

Tyler Joseph Sniff (argued), Donald D.J. Stack, Stack & Associates, P.C., for Intervenor–Defendants Animal Welfare Institute, Whale and Dolphin Conservation, Whale and Dolphin Conservation, Inc. (North America), Earth Island Institute, Inc., and Cetacean Society International, Inc.

ORDER

AMY TOTENBERG, District Judge.

"The oceans deserve our respect and care, but you have to know something

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before you can care about it." This quotation from Dr. Sylvia Earle,¹ the former chief scientist of the National Oceanic and Atmospheric Administration, is inscribed on the entry wall of the Georgia Aquarium's Ocean Voyager exhibit. Georgia Aquarium is before this Court on an administrative appeal of the denial of its application for a permit under the Marine Mammal Protection Act to import eighteen beluga whales from Russia for use in a United States breeding cooperative and for public display.

The Aquarium, as the applicant for a permit under the MMPA, bears the burden of showing that it satisfied the necessary criteria for issuance under the Act and that its requested import is consistent with the statute's protective purposes. Enacted in light of the grave uncertainties as to whether marine mammal populations are in danger of extinction or depletion as a result of man's activities, the House Committee report on the MMPA notes:

In the teeth of this lack of knowledge of specific causes, and of the certain knowledge that these animals are almost all threatened in some way, it seems elementary common sense to the Committee that legislation should be adopted to require that we act conservatively—that no steps should be taken regarding these animals that might prove to be adverse or even irreversible in their effects until more is known.

Comm. for Humane Legislation, Inc. v. Richardson, 414 F.Supp. 297, 309 (D.D.C.1976), aff'd, 540 F.2d 1141, 1148 (D.C.Cir.1976) (citing H.R.Rep. No.92–707, at 15, 1972 U.S.C.C.A.N. 4148.)

Defendants denied the permit because the Aquarium failed in its burden under the Act to demonstrate that salient statutory and regulatory criteria necessary to issue the permit had been met. In essence, there were too many material unknowns about the potential negative impacts of the removal of these beluga whales from the wild left open by the Aquarium's permit application, despite their significance to the required criteria for permitting.

BACKGROUND

On June 15, 2012 Georgia Aquarium submitted an application to the National Marine Fisheries Service ("NMFS" or "the Agency") under the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq., for a permit to import eighteen beluga whales from Russia for public display. Georgia Aquarium sought to import the beluga whales "to enhance the North American beluga breeding cooperative by increasing the population base of captive belugas to a self-sustaining level and to promote conservation and education." (Permit Application, AR 8927 at 14283.) The whales were previously captured and collected in the Sakhalin Bay of the Sea of Okhotsk² in 2006, 2010, and 2011 by a team led by Dr. Lev Mukhametov, Director of Utrish Dolphinarium, Ltd. (Id. at 10, 12.) Since their capture, the whales have been held at the Utrish Marine Mammal Research Station (UMMRS) on the Russian coast of the Black Sea. Upon arrival in the U.S., the whales would be distributed among six different aquaria facilities including the Georgia Aquarium in Atlanta, Sea World Orlando, Sea World San Antonio, Sea World San Diego, Mystic Aquarium, and Shedd Aquarium pursuant to breeding loans. (AR 8927 at 14444.)

Following a lengthy notice and comment period, Georgia Aquarium's hopes were

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sunk on August 5, 2013, when NMFS denied Georgia Aquarium's permit application. At the outset of its "Findings and Considerations" in support of the denial of Georgia Aquarium's permit, NMFS states:

In reviewing this application through the lens of the purposes of the MMPA, we must consider the environmental impacts of the importation of these 18 beluga whales—not only the effects on the individual marine mammals, but also the current and future effects to the ecosystem from which they were collected. According to statutory and regulatory language, it is the applicant's responsibility, not that of NMFS, to demonstrate that the MMPA criteria have been met. This is outlined specifically in the statute at Section [1374](d)(3), which states a permit applicant "must demonstrate to the Secretary that the taking or importation of any marine mammal under such permit will be consistent with the purposes of this Act," and in the regulations at 216.34, which states that "the applicant must demonstrate that" the proposed activities satisfy the statutory and regulatory criteria. NMFS' review and consideration of the ongoing beluga capture operation and the information available regarding the population status in the Sea of Okhotsk indicates that the requested action is not consistent with the purposes of the MMPA and NMFS' implementing regulations.

(AR 8998 at 17421.)

NMFS cited three reasons why Georgia Aquarium's application failed to satisfy the MMPA's permit issuance criteria. First, NMFS determined that Georgia Aquarium did not demonstrate that the proposed import "by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock" in accordance with 50 C.F.R. § 216.34(a)(4) :

We cannot discount the likelihood that total removals from this stock have exceeded the total net production on an annual basis resulting in a small, but steady and significant decline over the past two decades. Further, the ongoing live-capture trade since 1989 may have contributed to a cumulative decline over the past two decades, and we considered this in combination with other past, present, and foreseeable future actions. Therefore, we are unable to make the determination that the proposed activity, by itself or in combination with other activities, would not likely have had a significant adverse impact on the species or stock.

(AR 8998 at 17440.)

Second, NMFS denied the permit application because Georgia Aquarium did not demonstrate that the proposed import would not likely result in the taking of marine mammals beyond those authorized by the proposed permit in accordance with 50 C.F.R. § 216.34(a)(7) :

We have determined that the requested import will likely result in the taking of marine mammals beyond those authorized by the permit. There are ongoing, legal marine mammal capture operations in Russia that are expected to continue, and we believe that issuance of this permit would contribute to the demand to capture belugas from this stock for the purpose of public display worldwide, resulting in the future taking of additional belugas from this stock.

(AR 8998 at 17440.)

Third, NMFS found that Georgia Aquarium did not demonstrate that some of the whales proposed for importation were not nursing at the time of taking in accordance with 16 U.S.C. § 1372(b)(2) and 50 C.F.R. § 216.12(c) :

We have determined that five of the [18] beluga whales proposed for import, estimated to be approximately 1.5 years old at the time of capture, were potentially

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still nursing and not yet independent [of their mothers]. This would only result in the inability to import these five specific animals, if not for the other criteria that [Georgia Aquarium] did not meet.

(AR 8998 at 17440.)

On September 30, 2013, Georgia Aquarium filed this appeal, pursuant to the Administrative Procedures Act ("APA"), asserting that NMFS's permit denial was arbitrary, capricious, and not in accordance with the law. The parties have briefed the issues on appeal through cross-motions for summary judgment [Docs. 55, 59, & 61]. The Court reviewed the hefty administrative record and heard oral argument on August 14, 2015.

I. Parties

Plaintiff Georgia Aquarium Inc. is a private 501(c)(3) corporation that operates an aquarium in Atlanta, Georgia that is open to the public and which offers education and...