Oceana, Inc. v. Ross
| Decision Date | 01 October 2020 |
| Docket Number | Civil Action No. 12-0041 (PLF) |
| Parties | OCEANA, INC., Plaintiff, v. WILBUR ROSS, United States Secretary of Commerce, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
This matter comes before the Court on defendants' notice that the National Marine Fisheries Service has revised its Incidental Take Statement, thus completing its remand in response to the Court's August 31, 2015 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 and representations at oral argument, the relevant legal authorities, and the entire record in this case, the Court will enter final judgment in this case for the defendants.1
In its 2015 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, 125 F. Supp. 3d 232, 235-39 (D.D.C. 2015). 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 in the 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 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.
At issue in the present case is a Biological Opinion ("BiOp"), issued by NMFS on December 16, 2013, that addresses the impact of seven fisheries on the Northwest Atlantic Distinct Population Segment ("NWA DPS") of loggerhead sea turtles. Oceana, Inc. ("Oceana"), an international advocacy group focused on ocean conservation, filed a complaint challenging the BiOp for a variety of reasons. See Amended Complaint [Dkt. No. 33]. On August 31, 2015, 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 2013 BiOp. See Oceana, Inc. v. Pritzker, 125 F. Supp. 3d at 252, 255.
First, the Court remanded with regard to the BiOp's treatment of climate change in its jeopardy analysis. See Oceana, Inc. v. Pritzker, 125 F. Supp. 3d at 250-52. The Court directed the agency to "more clearly explain the connection between the record evidence of present and short-term effects caused by climate change, and the agency's conclusion that climate change will not result in any significant effects on the species in the short-term future." Id. at 252. The BiOp had "discount[ed] the likelihood of short-term effects by maintaining that climate change is occurring on a 'century scale.'" Id. at 251 (citing AR 52497). On a high-level, the Court found that this explanation "failed to take full account of the record evidence of short-term effects caused by climate change" because the BiOp described "clear evidence that climate change is exerting significant environmental impacts right now, as well as evidence that these impacts will persist or accelerate in the immediately approaching decades." Id. at 252.
Specifically, the Court took issue with the agency's conclusions in the BiOp pertaining to warming temperatures and rising sea levels. The record included evidence that temperature rise was already occurring and would "persist or accelerate in the immediatelyapproaching decades." Oceana, Inc. v. Pritzker, 125 F. Supp. 3d at 252 (). NMFS maintained that the "effects of this [temperature] increase are not known." Id. Thus, the Court held that the agency had failed to sufficiently explain the "link between the substantial evidence of significant short-term climate change effects" and "the agency's ultimate conclusion that any short-term impacts on loggerheads will be negligible." Id. Similarly, the BiOp included evidence of sea-level rise, which is "expected to result in increased erosion rates along nesting beaches," including a "620-mile 'hot spot' along the East Coast" where sea levels are "rising three to four times faster than the global average." Id. (citing AR 32563, 52438). Again, the Court said that this evidence required the agency to "provide further explanation" for its "conclusion that climate change will not result in any significant effects on [loggerheads] in the short-term future." Id.
The second issue that the Court instructed NMFS to address on remand was the "sufficiency of its monitoring mechanisms." Oceana, Inc. v. Pritzker, 125 F. Supp. 3d at 255. The BiOp's ITS set forth the permissible "impact on the species," estimating that, "on an annual basis in the seven fisheries, 269 loggerheads will be taken by gillnet gear . . . 213 loggerheads will be taken by bottom trawl gear . . . and up to one loggerhead will be taken by trap/pot gear . . . ." Id. at 253 (citing AR 52543). While the ITS established annual numerical take limits, the monitoring mechanism stated that NMFS would produce a new loggerhead take estimate every five years. Id. (citing AR 52548). Without holding that a five-year monitoring cycle is per se arbitrary and capricious, the Court noted that it was "not clear how the agency can discharge its responsibility to reinitiate Section 7 consultation immediately once an annual take limit has been exceeded, when take estimates are produced no more frequently than every fiveyears," and therefore, "this dissonance places an onus on the agency to adequately explain the reasonableness of its approach." Id. The Court specifically noted that the agency's defense of its five-year monitoring mechanism - that it was constrained by data needs - "leaves far too much unexplained." Id. The Court added that NMFS neglected to address why it could not simply increase observer coverage in order to collect more data to develop take estimates - a "commonsense solution to its data problems" - given that the record indicated that "observer coverage is the primary means of collecting incidental take information." Id. at 253-54 (alterations omitted) (citing AR 52548). The Court also asked NMFS to better explain how the monthly and annual take reports described in the ITS could be useful in determining whether an annual take limit had been exceeded when the agency said that it needs five years' worth of data to estimate annual take levels. Id. at 254.
NMFS revised the BiOp and now contends that it has completed its required task on remand by more thoroughly addressing the deficiencies that the Court had identified. See Notice of Completion. Oceana filed a response arguing that the revised BiOp remains defective and, as a result, NMFS has failed to comply with the Court's directives on remand. See Oceana Response.
A BiOp constitutes final agency action subject to judicial review under the Administrative Procedure Act. See Bennett v. Spear, 520 U.S. 154, 177-78 (1997). "[W]hen a party seeks review of agency action under the APA . . . the district judge sits as an appellate tribunal." Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). The general standard for summary judgment set forth in Rule 56 of the Federal Rules of Civil Procedure does not apply to a reviewof agency action. Summary judgment nonetheless "serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Sierra Club v. Mainella, 459 F. Supp. 2d...
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