Oceana, Inc. v. Ross
| Decision Date | 01 October 2020 |
| Docket Number | Civil Action No. 08-1881 (PLF) |
| Parties | OCEANA, INC., Plaintiff, v. WILBUR ROSS, United States Secretary of Commerce, et al., Defendants, and FISHERIES SURVIVAL FUND, Defendant-Intervenor. |
| Court | U.S. District Court — District of Columbia |
This matter comes before the Court on defendants' notice that the National Marine Fisheries Service had revised its Incidental Take Statement, thus completing its remand in response to the Court's August 17, 2018 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 second revised Incidental Take Statement, the parties' briefs and representations at oral argument, the relevant legal authorities, and the entire record in this case, the Court will remand to the agency for a limited purpose.1
In its 2014 Opinion, the Court described the relevant statutory and regulatory framework and recounted the factual and procedural history of this case. See Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469, 474-77 (D.D.C. 2014). 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 et seq., 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 (1992); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (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 (2007). In particular, Section 7(a)(2) requires that each federal agency, "in consultation with and with the assistance of [the National Marine Fisheries Service ("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 inthe destruction or adverse modification of habitat of such species . . . ." See 16 U.S.C. § 1536(a)(2).2
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 impact of any incidental takings. See 50 C.F.R. § 402.14(i)(1)(ii).3 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 50C.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.
This case is over a decade old. In 2008, Oceana, Inc. ("Oceana"), an international advocacy group focused on ocean conservation, filed a complaint challenging the 2008 Biological Opinion issued by the National Marine Fisheries Service ("NMFS") that assesses the impact of the Atlantic Sea Scallop Fishery on the Northwest Atlantic distinct population segment ("NWA DPS") of loggerhead sea turtles. See Dkt. No. 1. After NMFS reinitiated consultation, the proceedings were stayed until July 12, 2012, when NMFS issued a superseding Biological Opinion ("the 2012 BiOp"). See Dkt. Nos. 70, 73. Oceana filed an Amended Complaint challenging the updated 2012 BiOp and the parties filed cross-motions for summary judgment. See Dkt. Nos. 80, 87, 88 and 88-1 (memorandum in support), and 91.
On December 17, 2014, this Court 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 ("Oceana I"), 75 F. Supp. 3d 469 (D.D.C. 2014). First, 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 id. at 497-99. 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." Id. at 499.
Second, and most relevant to the instant opinion, 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. Oceana I, 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. 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 monitoring proxy for the numerical take limit of 161 loggerheads." 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." Id.
NMFS thereafter revised the ITS for the 2012 BiOp and Oceana subsequently filed a response arguing that the revised ITS remained defective and failed to comply with both of the Court's requirements on remand. See Dkt. Nos. 113, 116 and 117. On August 17, 2018,this Court issued an opinion that remanded the case to the agency for a second time. See Oceana, Inc. v. Ross ("Oceana II"), 321 F. Supp. 3d 128 (D.D.C. 2018). The Court first held that NMFS had sufficiently addressed one of the two deficiencies the Court had identified in the 2012 BiOp's ITS. Id. at 140. The revised ITS provided rationales for why NMFS had concluded that the five-year monitoring system for trawl takes was the best available method. Id. at 139-141.
The Court remanded to the agency for a second time, however, with respect to the other deficiency. It told the agency yet again that it needed to better explain its reliance on a monitoring surrogate to measure loggerhead turtle takes caused by dredge fishing. See Oceana II, 321 F. Supp. 3d at 137-39. The revised ITS included a scatterplot graph displaying a fitted regression line with an R-squared value of 0.9164 and explained that it "illustrated the strong positive linear relationship that exists between estimated sea turtle takes and biennial dredge hours." SAR 13392-93. In response to Oceana's criticisms of this updated ITS, however, NMFS in its briefing "explicitly disclaim[ed] any reliance on a linear regression model." Oceana II, 321 F. Supp. 3d at 137. Instead of a linear relationship, NMFS's briefing said that the scatterplot was meant to illustrate only the "positive relationship between commercial dredge hours and estimated sea turtle takes," and that the scatterplot was "not intended to be a predictive model whereby sea turtle takes can be predicted based on a certain level of dredge effort." Id. at 137-38 (emphasis added). Because "the revised ITS advance[d] a rationale now expressly disclaimed by the agency," the Court found that it "fail[ed] to explain how 359,757 dredge hours equals 161 takes," and therefore "suffer[ed] from the same underlying defect that warranted remand in the first instance." Id. at 139. The Court thus directed the agency "either to more clearly explain its reliance on the dredge hour surrogate and its selection of 359,757 dredge hoursas a surrogate for 161 takes or, if unable to do so, to select a more appropriate surrogate or other mechanism for monitoring loggerhead takes resulting from dredge fishing." Id.
NMFS revised the ITS for the 2012 BiOp a second time and now contends that it has completed its required task on remand by more thoroughly explaining its chosen monitoring method. See Second Notice of Completion of Remand. 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...
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