Oceana, Inc. v. Ross
| Decision Date | 09 October 2020 |
| Docket Number | Civil Action No. 15-0555 (PLF) |
| Parties | OCEANA, INC., Plaintiff, v. WILBUR ROSS, United States Secretary of Commerce, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Oceana, Inc. challenges a Biological Opinion issued by the National Marine Fisheries Service ("NMFS"), in which NMFS has determined that the continued operation of Southeast U.S. shrimp fisheries would not jeopardize the continued existence of loggerhead, green, leatherback, hawksbill, and Kemp's ridley sea turtles ("sea turtles"). Oceana argues that the Shrimp BiOp is arbitrary and capricious and an abuse of NMFS' discretion, constituting a violation of the agency's duties under the Endangered Species Act ("EPA") and the Administrative Procedure Act ("APA"), and asks the Court to vacate the agency's biological opinion. NMFS responds that the BiOp is reasonable and supported by the administrative record, and that vacatur is not the appropriate remedy. Both sides have filed motions for summary judgment. Upon consideration of the parties' briefs and representations at oral argument, the relevant legal authorities, and the entire record in this case, the Court will grant in part and deny in part each party's motion for summary judgment, and remand to the agency without vacatur.1
The Endangered Species Act of 1973 ("ESA"), as amended, 16 U.S.C. § 1531 et seq., "seeks to protect species of animals against threats to their continuing existence caused by man." Lujan v. Defs. of Wildlife, 504 U.S. 555, 558 (1992). The intent of Congress was "to halt and reverse the trend toward species extinction, whatever the cost." Nat'l Ass'n of Home Builders v. U.S. Fish and Wildlife Serv., 786 F.3d 1050, 1052 (D.C. Cir. 2015) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978)). The Act "constitutes 'the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.'" Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 177 (D.C. Cir. 2017) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. at 180). "ESA compliance is not optional," and its "no-jeopardy mandate applies to every discretionary agency action - regardless of the expense or burden its application might impose." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 929 (9th Cir. 2008) (citing Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 671 (2007)).
Under the ESA, species may be listed as either "endangered" or "threatened." See 16 U.S.C. § 1533. An endangered species is "any species which is in danger of extinctionthroughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A threatened species is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). The ESA is jointly administered by two federal agencies: the Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS"). 50 C.F.R. § 402.01(b). FWS administers the statute with respect to species under the jurisdiction of the Secretary of the Interior, while NMFS covers those species under the jurisdiction of the Secretary of Commerce. Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. at 651.
"Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora." Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. at 652. An action "jeopardize[s] the continued existence of" a species if it "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. Under Section 7(a)(2), "[e]ach Federal agency shall, in consultation with and with the assistance of the [FWS or NMFS], 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." 16 U.S.C. § 1536(a)(2).2 Toachieve this end, the accompanying regulations specify that "[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat." 50 C.F.R. § 402.14(a). Where a federal agency has concluded after an initial review that its action "may affect listed species or critical habitat," the action agency must engage in "consultation" with the expert agency. Id.
"Broadly speaking, the object of consultation under the statute is for the expert agency to determine whether the project will violate [Section 7's] prohibition on jeopardizing the continued existence of endangered and threatened species." Ctr. for Biological Diversity v. Ross, Civil Action No. 18-0112, 2020 WL 1809465, at *2 (D.D.C. Apr. 9, 2020). At the conclusion of the Section 7 consultation process, the expert or consulting agency must issue a Biological Opinion ("BiOp"), "setting 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." 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h). The BiOp can either find that the action does violate Section 7(a)(2) - "a 'jeopardy' biological opinion" - or that it does not - "a 'no jeopardy' biological opinion." 50 C.F.R. § 402.14(h)(1)(iv).
The consulting agency's responsibilities during the formal consultation process are established by regulation. These regulations ensure that a species cannot be "gradually destroyed, so long as each step on the path to destruction is sufficiently modest." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d at 930. In formulating a Biological Opinion, the consulting agency must "use the best scientific and commercial data available" and "[r]eview allrelevant information provided by the Federal agency or otherwise available." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(1), (8). The agency must first "[e]valuate the current status and environmental baseline of the listed species." 50 C.F.R. § 402.14(g)(2). The "environmental baseline" is "the condition of the listed species . . . without the consequences to the listed species . . . caused by the proposed action." Id. § 402.02. It includes (1) "the past and present impacts of all Federal, State, or private actions and other human activities in the action area," (2) "the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation," and (3) " the impact of State or private actions which are contemporaneous with the consultation in process." Id. These factors include consequences to the listed species "from ongoing agency activities or existing agency facilities that are not within the agency's discretion to modify." Id.
The consulting agency must then "[e]valuate the effects of the action and cumulative effects on the listed species." 50 C.F.R. § 402.14(g)(3). The "effects of the action" are "all consequences to listed species . . . that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action." Id. § 402.02. A consequence is caused by the proposed action if (1) "it would not occur but for the proposed action" and (2) "it is reasonably certain to occur." Id. "Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action." Id. "Cumulative effects" on the listed species are "those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation." Id.
Once the consulting agency has established these components, it must then "[a]dd the effects of the action and cumulative effects to the environmental baseline and in light of thestatus of the species and critical habitat, formulate the [FWS' or NMFS'] opinion as to whether the action is likely to jeopardize the continued existence of listed species." 50 C.F.R. § 402.14(g)(4).
In the event of a "jeopardy" biological opinion - when the BiOp concludes that jeopardy is likely to result from the action under review - the consulting agency "shall suggest those reasonable and prudent alternatives which [it] believes would not violate [Section 7(a)(2)] and can be taken by [the action agency]." 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h)(3), (g)(5). "Following the issuance of a 'jeopardy' opinion, the agency must either terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U.S.C. § 1536(e)." Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. at 652.
In the event of a no-jeopardy biological opinion - 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" of the species - the BiOp must set forth an Incidental Take Statement ("ITS"), which specifies the permissible "amount or extent" of the impact on the species. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i); see also 50 C.F.R. § 402.14(g)(7) (). "Take" is defined by the ESA as meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). "Incidental take" is defined...
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