Natural Res. Def. Council, Inc. v. Coit
| Decision Date | 31 March 2022 |
| Docket Number | Case No. 20-cv-1150 (CRC) |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Janet COIT, in her official capacity as Assistant Administrator for Fisheries, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Alexander Tom, Katherine K. Desormeau, Natural Resources Defense Council, San Francisco, CA, Jared Eldridge Knicley, Sharon Buccino, Natural Resources Defense Council, Washington, DC, Samuel D. Eisenberg, Pro Hac Vice, Natural Resources Defense Council, Chicago, IL, for Plaintiff Natural Resources Defense Council, Inc.
Sharon Buccino, Natural Resources Defense Council, Washington, DC, for Plaintiffs Anglers Conservation Network, Great Egg Harbor River Council, Great Egg Harbor Watershed Association.
Robert Mark Norway, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.
CHRISTOPHER R. COOPER, United States District Judge River herring inhabit most of North America's Atlantic coast. These shimmering fish were once so abundant that, when they spawned, the water was said to "run silver." Not anymore. Their populations, while stable, are now at historic lows. Seeking to stem further declines, the Natural Resources Defense Council ("NRDC") and several other conservation groups petitioned to have two species of river herring—the alewife and blueback herring—listed as threatened under the Endangered Species Act ("ESA"). This case is the latest chapter in that ten-plus year effort.
In 2013, the National Marine Fisheries Service ("the Service") determined that listing the two species "as threatened or endangered under the ESA is not warranted at this time." Endangered Species Act Listing Determination for Alewife and Blueback Herring, 78 Fed. Reg. 48,944 (Aug. 12, 2013) ("2013 Listing Decision"). The petitioners challenged that determination in a case before the Honorable Randolph Moss of this Court. Although Judge Moss found "much of what the Service did" to be "unobjectionable," he nonetheless concluded that the 2013 Listing Decision fell short in certain respects. See Nat. Res. Def. Council v. Rauch, 244 F. Supp. 3d 66, 87 (D.D.C. 2017). The court vacated that listing decision and remanded the matter to the agency. Id.
After another full round of review and analysis, the Service reached the same finding in 2019 as it did before—a threatened or endangered listing was not warranted. See Endangered Species Act Listing Determination for Alewife and Blueback Herring, 84 Fed. Reg. 28,630 (June 19, 2019) ("2019 Listing Decision"); Administrative Record ("AR") 7–45. Plaintiffs are now back, raising fresh challenges to various aspects of the Service's 2019 Listing Decision.
As will be explained, the Court finds the Service's work to be thorough and, once again, largely unobjectionable. The Court will thus grant the Service's motion for summary judgment, except in two limited respects. For the blueback herring population in Southern New England, the Service failed to adequately explain (a) its finding that this group was not a distinct population segment, and (b) why it did not assess that population under the agency's "significant portion of its range" policy. The remedy will be correspondingly limited; the listing decision will be left in place while this matter is remanded for further explanation on these two points.
Before diving in on the fishes’ background, the Court will summarize the relevant statutory and regulatory framework.
Congress enacted the ESA to conserve endangered and threatened species and the ecosystems on which they depend. 16 U.S.C. § 1531(b). The Act defines an "endangered" species as one that "is in danger of extinction throughout all or a significant portion of its range," id. § 1532(6), and a "threatened" species as one that "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The term "species" "includes any subspecies" and "any distinct population segment." Id. § 1532(16). A species can be endangered or threatened based on any one of five factors: (1) "the present or threatened destruction, modification, or curtailment of its habitat or range;" (2) "overutilization for commercial, recreational, scientific, or educational purposes;" (3) "disease or predation;" (4) "the inadequacy of existing regulatory mechanisms;" or (5) "other natural or manmade factors affecting its continued existence." Id. § 1533(a)(1). The determination of whether a species is endangered or threatened must be made "solely on the basis of the best scientific and commercial data available." Id. § 1533(b)(1)(A).
The ESA directs the Secretary of Commerce to make this determination. Id. § 1533(a). Interested parties may petition the Secretary "to add a species to, or to remove a species from," the list of endangered and threatened species. Id. § 1533(b)(3)(A). Once the Secretary receives a petition, "[t]o the maximum extent practicable, within 90 days ... the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. This determination is called a "90-day finding." When, as here, the Secretary finds there is substantial information supporting the petition, the petition advances to further review and, within twelve months and following public comment, the Secretary must determine whether the requested action is warranted or not. Id. § 1533(b)(3)(B). This determination is called a "12-month finding." Listed species receive heightened protections under the Act. See generally id. §§ 1533–1538. For fish like river herring, the Secretary has delegated her ESA responsibilities to the National Marine Fisheries Service. 50 C.F.R. § 402.01(b).
At the end of this process, the Service publishes its findings in a listing decision. A determination that listing a species is not warranted—a "negative finding"—terminates the petition process and triggers judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii).
River herring live up and down North America's east coast. The alewife can be found from Newfoundland and Labrador to North Carolina; blueback herring from Nova Scotia to Florida. AR 2056. Both fish are " ‘anadromous,’ meaning [they] are born in inland rivers, then spend most of their adult lives at sea," but return inland to spawn. See Rauch, 244 F. Supp. 3d at 68 ; AR 2057. They are about a foot long and provide a source of food for a range of other fish, aquatic mammals, and birds. AR 355, 1449, 5501, 15240.
To spawn, river herring often return to the rivers in which they were born (their "natal rivers"). But they also exhibit "straying" behavior, meaning that they migrate to a different river to reproduce. Evidence in the record suggests this "straying" can occur 100–200 kilometers (62–124 miles) from natal rivers. AR 12; AR 2068. The fish are also very fecund, producing an estimated 30,000 to 400,000 eggs throughout their spawning season. AR 10. Both species spawn three to four times each year, AR 10, and their spawning migrations are cued by ocean temperatures. AR 2057. River herring grow and mature quickly, with new generations appearing every four to six years. AR 18.
Although they were once extremely abundant, the river herring population saw stark declines over the last half of the 20th century and is now "near historic lows." AR 13. Among the culprits are overfishing, dams, predation, pollution, changing ocean conditions, and climate change. AR 5542. But over the past decade, while still near historic lows, river herring levels have stabilized. AR 13; AR 5542–43.
In 2011, NRDC petitioned the Secretary of Commerce to list the blueback herring as threatened. The Service made a positive 90-day finding, concluding that the petition was supported by substantial scientific evidence, and initiated a status review that also included the alewife. See Rauch, 244 F. Supp. 3d at 70–71. As part of that process, the Service collaborated with the Atlantic States Marine Fisheries Commission ("ASMFC"), which had recently prepared a "River Herring Benchmark Stock Assessment" that collected data on population levels. See id. at 71. In 2013, the Service determined that listing river herring "as threatened or endangered under the ESA is not warranted at this time." See 2013 Listing Decision, 78 Fed. Reg. 48,944 (Aug. 12, 2013).
NRDC and others successfully challenged the agency's decision with respect to the blueback herring in a case before Judge Randolph Moss of this Court. See Rauch, 244 F. Supp. 3d 66. While noting that "much of what the Service did is unobjectionable," Judge Moss concluded that the 2013 Listing Decision suffered from faulty analysis in certain key respects. See id. at 87. He further concluded the Service failed to consider one prong of its "Distinct Population Segment Policy." See id. at 100 ; see also 16 U.S.C. § 1532(16) (). Finding the agency's action arbitrary and capricious, the court vacated the 2013 Listing Decision and remanded the matter to the agency for further consideration. See Rauch, 244 F. Supp. 3d at 100.
On remand, the Service re-initiated a status review of both species. AR 7–8. The Service assembled a status review team of experts from the Fisheries Service itself, the Fish and Wildlife Service, and various environmental agencies from east coast states. AR 8. This team had three tasks: (1) assess the risk of extinction facing river herring currently and in the foreseeable future; (2) identify any distinct population segments within the species and assess the risk of extinction facing each segment currently and in the foreseeable future; and (3) assess,...
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