Oceana, Inc. v. Ross

• Decision Date: 17 August 2018
• Docket Number: Civil Action No. 08-1881 (PLF)
• Parties: OCEANA, INC., Plaintiff, v. Wilbur L. ROSS, United States Secretary of Commerce, et al., Defendants, and Fisheries-Survival Fund, Defendant-Intervenor.
• Court: U.S. District Court — District of Columbia

321 F.Supp.3d 128

OCEANA, INC., Plaintiff,

v.Wilbur L. ROSS, United States Secretary of Commerce, et al.,¹ Defendants,andFisheries-Survival Fund, Defendant-Intervenor.

Civil Action No. 08-1881 (PLF)

United States District Court, District of Columbia.

Signed August 17, 2018

Eric A. Bilsky, Oceana, Inc., Paul Anthony Werner, III, Gardner Fordyce Gillespie, III, J. Aaron George, Sheppard Mullin Richter & Hampton LLP, Washington, DC, for Plaintiff.

Kristen Byrnes Floom, U.S. Department of Justice, Washington, DC, for Defendants.

David Earl Frulla, Kelley, Drye & Warren, LLP, Shaun Michael Gehan, Law Office of Shaun M. Gehan, PLLC, Washington, DC, for Defendant-Intervenor.

OPINION

PAUL L. FRIEDMAN, United States District Judge

This matter comes before the Court on defendants' notice that the National Marine Fisheries Service ("NMFS") had revised its Incidental Take Statement, thus completing its remand in response to the Court's December 17, 2014 Opinion and Order. Plaintiff Oceana, Inc. filed a response to the notice, challenging the adequacy of the agency's revisions on remand, and the parties proceeded to brief the matter. Upon consideration of the revised Incidental Take Statement, the parties' briefs, the relevant legal authorities, and the entire record in this case, the Court will remand to the agency for a limited purpose.²

I. FACTUAL AND PROCEDURAL BACKGROUND

This case involves a challenge to the 2012 Biological Opinion ("BiOp") issued by NMFS that pertains to the operation of the Atlantic Sea Scallop Fishery and its impact on a threatened species under the Endangered Species Act – the Northwest Atlantic population segment of loggerhead sea turtles. The Court previously issued an opinion granting in part and denying in part the parties' cross-motions for summary judgment and, in turn, remanding the case to the agency for the limited purpose of addressing two deficiencies in the 2012 BiOp. See Oceana, Inc. v. Pritzker, 75 F.Supp.3d 469 (D.D.C. 2014). In its prior opinion, the Court described the relevant statutory and regulatory framework and recounted the factual and procedural history of this case. The Court thus recites here only those matters relevant to resolving the parties' instant dispute.

The Endangered Species Act ("ESA") of 1973, as amended, 16 U.S.C. § 1531 etseq., created a comprehensive legislative and regulatory scheme that seeks to preserve and protect species of animals facing man-made threats to their continued existence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 558, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). As part of this scheme, Section 7 of the ESA sets forth "the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora." See Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 652, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). In particular, Section 7(a)(2) requires that each federal agency, "in consultation with and with the assistance of [NMFS or the U.S. Fish and Wildlife Service ("FWS") ], 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 or result in the destruction or adverse modification of habitat of such species ...." See 16 U.S.C. § 1536(a)(2).³

The Section 7 consultation process culminates in the issuance of a Biological Opinion, or BiOp, in which the consulting agency sets forth its "opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." See 16 U.S.C. § 1536(b)(3)(A) ; see also 50 C.F.R. § 402.14(h). Where the consulting agency concludes that the agency action is not likely to jeopardize the continued existence of the species but is nonetheless likely to result in some "incidental take," the BiOp must include an Incidental Take Statement ("ITS") specifying the permissible extent of this impact on the species. See 16 U.S.C. § 1536(b)(4) ; 50 C.F.R. § 402.14(i). The ITS must set forth conditions that include "reasonable and prudent measures" considered "necessary or appropriate to minimize" the extent of any incidental takings. See 50 C.F.R. § 402.14(i)(1)(ii).⁴ And if the amount or extent of incidental taking ever exceeds that specified in the ITS, the action agency must reinitiate Section 7 consultation "immediately." See 50 C.F.R. § 402.14(i)(4) ; see also 50 C.F.R. § 402.16(a). As a result, incidental take monitoring is a key component of any ITS – without the ability to monitor incidental takes, these regulatory requirements become meaningless.

In its earlier opinion, the Court reviewed NMFS' 2012 BiOp, in which the agency determined that the operation of the Atlantic Sea Scallop Fishery would not jeopardize the continued existence of the Northwest Atlantic population segment of loggerhead sea turtles. See Oceana, Inc. v. Pritzker, 75 F.Supp.3d at 473. The Court found that the 2012 BiOp survived Oceana's challenges in large part, but remanded to the agency for two discrete purposes. See id. at 499.

First, the Court remanded to allow the agency to better explain its reliance on a monitoring surrogate to measure loggerhead turtle takes caused by dredge fishing. See Oceana, Inc. v. Pritzker, 75 F.Supp.3d at 494-97. Because technologies meant to benefit loggerheads have also made direct observations of takes more difficult, NMFS had chosen to measure takes by a surrogate – namely, by "dredge hour," or the number of hours spent dredge fishing. See id. at 494-95. Specifically, the agency had considered a variety of monitoring mechanisms, but ultimately decided to monitor takes by using the number of hours spent dredge fishing in Mid-Atlantic waters from May through November as a surrogate for actual takes. See id. at 496. The Court, however, found that "the 2012 BiOp fail[ed] to sufficiently explain how the specific number of dredge hours that NMFS ha[d] chosen as a monitoring surrogate adequately serve[d] as a proxy for the numerical take limit of 161 loggerheads." See id. at 497. And because NMFS had not adequately explained whether and how 252,323 hours spent dredge fishing equated to 161 takes, it had not shown that the dredge hour surrogate would serve as an adequate "trigger" for requiring reinitiation of consultation when actual takes surpassed the take limit. See id. at 496-97. The Court thus remanded the ITS in order for NMFS to "more clearly explain the connection," or, if unable to do so, to choose a monitoring mechanism that "does align with the numerical take limit." See id. at 497. In doing so, the Court directed the agency to "address Oceana's valid concern regarding the effectiveness of linking an hour-based surrogate to a numerical take limit, in the context of a Fishery where conditions change on a continuous basis." See id.

Second, the Court remanded with regard to the agency's decision to evaluate loggerhead takes resulting from trawl gear fishing only once every five years. See Oceana, Inc. v. Pritzker, 75 F.Supp.3d at 497-99. In reaching this decision, the Court acknowledged that "[t]he five-year timetable may reflect very real limitations on NMFS' data collection capabilities," thus rendering the NMFS' proposed monitoring system for trawl takes "the best available option for measuring trawl takes in the Fishery." See id. at 498. But because NMFS had given only "terse treatment" to trawl take monitoring in the 2012 BiOp, the Court remanded in order to allow the agency to "either provide a more thorough explanation of its choice, or, if unable to do so, reach a different conclusion." See id. at 499.

NMFS thereafter revised the ITS for the 2012 BiOp and now contends that it has completed its required tasks on remand by more thoroughly explaining its chosen monitoring methods. See Notice of Completion. Oceana filed a response arguing that the ITS remains defective and, as a result, NMFS still has failed to demonstrate that its monitoring methods are not arbitrary and capricious. See Pl. Resp. In support of this position, Oceana attached to its response the declaration of professional statistician George Weaver, Ph.D. NMFS moved to strike Dr. Weaver's declaration, as well as those portions of Oceana's response that relied on his declaration. The Court denied this motion, ruling that Oceana would be permitted to rely on Dr. Weaver's expertise and that NMFS would be permitted to proffer a rebuttal expert. The parties thereafter submitted briefs, with supplemental expert declarations, arguing the merits of whether the agency had in fact completed its remand in accordance with the Court's December 17, 2014 Opinion and Order.

II. LEGAL STANDARD

Under the Administrative Procedures Act, a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2)(A). This "arbitrary and capricious" standard is a deferential one – "it requires that agency action simply be 'reasonable and reasonably explained.' " See Cmtys. for a Better Env't v. Envtl. Prot. Agency, 748 F.3d 333, 335 (D.C. Cir. 2014) (quoting Nat'l Tel. Coop. Ass'n v. Fed. Commc'ns Comm'n, 563 F.3d 536, 540 (D.C. Cir. 2009) ); see also Kennecott Greens Creek Mining Co. v. Mine Safety & Health Admin., 476 F.3d 946, 954 (D.C. Cir. 2007) ("[The] standard of review under the arbitrary and capricious test is only reasonableness, not perfection."). As a result, a reviewing court will uphold an agency action so long as the agency has "articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made." See FirstEnergy Serv. Co. v. FERC, 758 F.3d 346, 352 (D.C. Cir. 2014) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463...