Court: Court of Appeals for the D.C. Circuit; August 17, 2018; Federal Appellate Court
Defendants notified the Court that the National Marine Fisheries Service (NMFS) revised its Incidental Take Statement (ITS), fulfilling a remand order from the Court's December 17, 2014 Opinion and Order. Plaintiff Oceana, Inc. contested the adequacy of these revisions, leading to further briefing by both parties. The Court reviewed the revised ITS, the parties' arguments, applicable legal standards, and the case record, ultimately deciding to remand the matter to NMFS for a limited purpose.
The case centers on a challenge to NMFS's 2012 Biological Opinion (BiOp) regarding the operation of the Atlantic Sea Scallop Fishery and its effects on the Northwest Atlantic population of loggerhead sea turtles, which is listed as a threatened species under the Endangered Species Act (ESA). A prior ruling granted partial summary judgment to both parties and mandated that NMFS address two identified deficiencies in the 2012 BiOp.
The ESA establishes a legal framework aimed at protecting endangered and threatened species. Under Section 7 of the ESA, federal agencies must ensure that their actions do not jeopardize these species or their habitats. This involves consultation with NMFS or the U.S. Fish and Wildlife Service (FWS), leading to the issuance of a BiOp. If an agency action is deemed not likely to jeopardize the species but may cause incidental take, the BiOp must include an ITS that specifies permissible levels of impact and necessary measures to mitigate that impact.
If the incidental taking of species exceeds the limits set in the Incidental Take Statement (ITS), the action agency is required to immediately reinitiate Section 7 consultation as per 50 C.F.R. 402.14(i)(4) and 50 C.F.R. 402.16(a). Monitoring incidental takes is crucial; without it, regulatory requirements lose their efficacy. The Court evaluated the National Marine Fisheries Service's (NMFS) 2012 Biological Opinion (BiOp), which concluded that the Atlantic Sea Scallop Fishery's operations would not threaten the loggerhead sea turtle population. While the Court upheld most of the 2012 BiOp, it remanded it for two main reasons.
First, the Court requested a clearer explanation from NMFS regarding its use of "dredge hour" as a surrogate to measure loggerhead turtle takes, questioning how this measure accurately reflects the numerical take limit of 161 turtles. The Court found the connection between the 252,323 dredge hours and the take limit inadequately explained, which undermined the effectiveness of the monitoring mechanism as a "trigger" for reinitiating consultation. The agency was instructed to either clarify this relationship or select a more appropriate monitoring method.
Second, the Court addressed NMFS's approach to assessing takes from trawl gear fishing, which it proposed to evaluate only once every five years. While acknowledging the practical limitations on data collection, the Court criticized the lack of thorough explanation in the 2012 BiOp regarding this monitoring choice and remanded it for further justification or alternative conclusions.
Following the remand, NMFS revised the ITS and asserted that it had addressed the Court’s concerns regarding its monitoring methods. However, Oceana contended that the ITS remains flawed, claiming that NMFS has not proven its monitoring methods are reasonable. Oceana supported its position with a declaration from statistician George Weaver, Ph.D.
NMFS's motion to strike Dr. Weaver's declaration and related parts of Oceana's response was denied by the Court, allowing Oceana to use Dr. Weaver's expertise while permitting NMFS to present a rebuttal expert. The parties subsequently filed briefs and supplemental expert declarations regarding whether the agency had complied with the Court's December 17, 2014 Opinion and Order. Under the Administrative Procedures Act, a court may overturn agency actions deemed arbitrary, capricious, or not in accordance with the law (5 U.S.C. 706(2)(A)). The "arbitrary and capricious" standard focuses on the reasonableness of agency actions and requires a logical connection between the facts and the agency's decisions. Courts grant significant deference to agencies when assessing scientific data within their expertise, recognizing their limited role in reviewing scientific judgments. However, this review must be thorough, and an agency's decision can be classified as arbitrary and capricious if it relies on inappropriate factors, neglects critical aspects, or provides explanations that contradict the evidence.
The Court cannot replace an agency's judgment or affirm its decision on alternative grounds, as established in case law. When an agency is remanded for reconsideration, it has a duty to respond to specified issues while retaining discretion in how to gather evidence and modify decisions. The Court cannot dictate the agency's methods or desired outcomes but can enforce compliance with remand orders if the agency fails to adequately respond.
Oceana challenges the National Marine Fisheries Service (NMFS) regarding its revised Incidental Take Statement (ITS), claiming inadequate compliance with the remand requirements. Specifically, Oceana contends that the revised ITS does not justify the use of a dredge hour surrogate for monitoring dredge fishing impacts or the five-year timeline for trawl fishing impacts, labeling NMFS's reliance on these measures as arbitrary. Furthermore, Oceana asserts that NMFS ignored relevant study findings, violating the obligation to use the best available scientific and commercial data.
In response to the remand, NMFS provided a revised ITS, explaining the infeasibility of underwater video monitoring and justifying the continued use of dredge hours as a proxy for monitoring takes. The revised ITS includes a detailed rationale for employing dredge hours as a surrogate, emphasizing the availability of effort data by location and season. To address concerns about the correlation between sea turtle takes and dredge hours, NMFS incorporated a scatterplot graph illustrating the relationship between estimated sea turtle takes and dredge hours in the Mid-Atlantic scallop fishery for specified years.
The revised Incidental Take Statement (ITS) presents a scatterplot showing a fitted regression line with an R-squared value of 0.9164, indicating a strong positive linear relationship between dredge effort and sea turtle takes. The agency argues this relationship justifies using dredge hours as a surrogate for monitoring sea turtle take limits. However, Oceana contends that the revised ITS does not reliably demonstrate that dredge hours accurately reflect actual takes. Oceana criticizes the scatterplot for lacking sufficient data and metrics necessary for independent scientific verification, suggesting it may represent two data clusters due to operational changes rather than a true linear relationship. Oceana asserts the ITS fails to clarify how dredging correlates to specific take levels in a dynamic fishery environment. In response, the agency claims it adequately explains the dredge hours-take connection but explicitly distances itself from a linear regression model, stating the scatterplot is merely illustrative of the relationship and not predictive. This contradiction raises concerns about the utility of a model lacking predictive capability, especially since the agency previously described the relationship as linear. The court had previously instructed the agency to clarify its rationale, but the agency's revised ITS appears inconsistent with its current disclaimers, leading to confusion over its intended use.
NMFS has not provided a sufficient justification for using 359,757 dredge hours as a proxy for 161 takes, failing to establish a clear relationship between the two, which the Court has previously emphasized is necessary for a valid surrogate. The agency's conflicting explanations undermine its reliance on this surrogate, and while the Court recognizes the challenges of data collection in the context of increased protective measures in the industry, it requires a reasonable justification for the agency's conclusions. The revised Incidental Take Statement (ITS) does not adequately clarify how the dredge hours correspond to the take limit, leading to another remand for NMFS to either substantiate its rationale or select a more appropriate monitoring method.
Additionally, the Court expressed concerns regarding NMFS's five-year monitoring timetable for trawl takes, initially finding the agency's explanation insufficient. Although the agency has since provided a more detailed rationale for this approach, Oceana contends that the explanations still fall short, particularly regarding the lack of annual estimates and increased observer coverage. However, the Court acknowledges that the revised ITS outlines the rarity of loggerhead interactions with trawls, which complicates the ability to gather adequate data for annual assessments.
The agency requires pooling data over multiple years to generate model-based estimates of total interactions, ensuring reliable confidence intervals. It typically takes a year to process, clean, and analyze this data. Although the agency considered annual estimates, it opted for less frequent but more thorough assessments due to data collection constraints and existing research on managing sparse data. For loggerhead turtles, the agency concluded that re-estimating every five years represents the best monitoring option based on available scientific information and practical limitations. The agency addressed the court's request for justification of this five-year approach, emphasizing the challenges posed by the rarity and variability of loggerhead observations, which restrict data collection capabilities.
The court will not challenge the agency's expert judgments and finds no need to remand the matter for further discussion on increasing observer coverage in the trawl fishery, as this was just one of many factors affecting reliable short-term estimates. Observed turtle takes are influenced by various elements beyond observer coverage, including fishing vessel numbers, regulatory circumstances, environmental conditions, and the behavior of loggerheads. Even if enhanced observer coverage were feasible, it would not have changed the decision to implement a five-year monitoring schedule. Additionally, the agency's decisions regarding observer coverage are part of a broader regulatory framework established by the Magnuson-Stevens Fishery Conservation and Management Act, which involves regional councils overseeing fisheries and developing management plans approved by NMFS.
NMFS has established a Standard Bycatch Reporting Methodology (SBRM) for observer coverage in the Northeast Region, which has been upheld in separate litigation against Oceana. The court, led by Judge Ellen Segal Huvelle, denied Oceana's summary judgment motion and supported the government's position, affirming that the SBRM complied with the Magnuson-Stevens Act (MSA), the Administrative Procedure Act, and the National Environmental Policy Act. The court expressed deference to NMFS's decision to maintain a five-year monitoring timetable for trawl takes, indicating that increased observer coverage would not significantly affect overall monitoring capabilities.
Oceana also contends that NMFS did not utilize the "best scientific and commercial data available" in developing the revised Incidental Take Statement (ITS), specifically criticizing the agency for not considering findings from a recent Warden (2015) study. This study highlights the disproportionate population-level impacts of incidental takes on long-lived species and advocates for monitoring incidental takes by life stage or adult equivalents. NMFS is mandated to use the best available scientific data under the Endangered Species Act (ESA) to avoid speculative decision-making and unnecessary economic disruption. The agency must not ignore superior scientific evidence or unreasonably rely on certain data sources to the exclusion of better evidence, even in cases of inconclusive data.
The provision mandates that NMFS utilize the best data available, not necessarily the best data possible, as established in case law. This means the agency is not required to conduct independent studies to obtain superior data but must consider scientific evidence that is better than what it currently relies on. Courts grant deference to the agency's scientific expertise in interpreting this data. In this case, NMFS acknowledged a recent peer-reviewed study by the Northeast Fisheries Science Center (NEFSC) regarding monitoring population-level impacts, indicating that incidental takes should be specified by life stage. However, NMFS stated it lacks sufficient information to apply this model to the scallop fishery at present, although it is collaborating with NEFSC to develop a methodology for future application. The agency's decision to not apply the Warden (2015) study's model was reasonable, given the study's limitations and caution regarding its simulations. The agency's approach cannot be viewed as disregarding better scientific evidence, as it is actively working on a methodology related to the study. Furthermore, NMFS's decision not to delay the issuance of its amended Incidental Take Statement (ITS) was not arbitrary, considering the agreed-upon remand deadline of May 1, 2015, set by the court.
The agency's decision to issue an amended Incidental Take Statement (ITS) while assessing the Warden (2015) study's model for the scallop fishery was not arbitrary or capricious, given the urgency to address the Court's concerns. The agency indicated that it would consider reinitiating consultation if a methodology was found to provide adequate data on the authorized take relevant to specific life stages. The Court concluded that NMFS must revise the ITS concerning dredge hours as a proxy for loggerhead turtle takes due to dredge fishing and remanded the matter for this limited purpose. The decision to potentially integrate the Warden model and evaluate takes by life stage is left to NMFS's discretion. The Court's ruling was based on a review of several filings related to the case. NMFS, acting as both the action and consulting agency, oversees the Atlantic Sea Scallop Fishery, while the Endangered Species Act (ESA) prohibits the taking of listed species, which includes various harmful actions against them.
Incidental takes of loggerhead turtles are allowed under the conditions specified in an Incidental Take Statement (ITS) as outlined in 50 C.F.R. 402.14(i)(5). The National Marine Fisheries Service (NMFS) has revised the total dredge hours used as a surrogate for 161 takes, increasing it from 252,323 hours to 359,757 hours, based on additional quality control checks of dredge hour data. Oceana does not challenge this revised total specifically. The defendants' claim that dredge hours are neither a surrogate nor a proxy is contradicted by the revised ITS, which explicitly states that fishing effort (dredge hours) will be used to monitor actual takes. If a two-year average of dredge hours exceeds the average from 2007-2008, the incidental take level is deemed exceeded. The monitoring plan employs dredge hours as a surrogate to assess whether the incidental take level has been surpassed, acknowledging that gear modifications are necessary to protect sea turtles. For other turtle species (leatherback, Kemp's ridley, and green sea turtles), NMFS relies on raw annual observed take numbers as the best available scientific information. Oceana argues for the feasibility of annual monitoring for loggerhead turtles, but the agency maintains that its approach varies based on the unique circumstances of each species. Oceana has filed a notice of appeal regarding this decision, which is currently pending in the U.S. Court of Appeals for the District of Columbia Circuit under case number 17-5247.
