BLUE WATER FISHERMEN'S ASSOC. v. NATIONAL MARINE FISHERIES

226 F. Supp.2d 330 (2002) | Cited 0 times | D. Massachusetts | September 30, 2002

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

Pelagic longline fishermen target highly migratory species ("HMS"),primarily swordfish, tuna, and shark, from vessels on the open seas. Theirmodus operandi is to trail "longlines" miles long, in fact — behindtheir vessels, from which floaters and hooks are suspended on "branchlines" into depths earmarked for HMS. At present, some 140 licensedpelagic longline vessels cruise the North Atlantic under the U.S. flag.

It is not uncommon, in the course of a longlining venture, foruntargeted species to get caught up in the line and other gear trailingbehind longline vessels, or even to hook themselves. The pelagiclongliner must then disentangle and/or unhook the unwanted catch anddiscard it. At best, this largely unavoidable "bycatch" is a nuisance tothe fishermen. But when the incidental haul of the pelagic longlinerincludes delicate and protected species suchas the loggerhead orleatherback sea turtle, the issue of bycatch becomes a problem forregulators.

The plaintiffs in this action, vessel owners, operators, and personnelin the pelagic longline fishing industry, seek injunctive relief fromregulations by the National Marine Fisheries Service ("NMFS") that closeoff their access to fisheries in the Northeast Distant StatisticalReporting Area of the Atlantic Ocean ("NED"). They underscore their legalarguments with the claim that the regulations wreak havoc on iTheir verylivelihood.

The regulations, which also impose certain restrictions in thedeployment of pelagic longline gear elsewhere in the Atlantic, aredirected at protecting leatherback and loggerhead sea turtlepopulations. Both sides have moved for summary judgment. While Isympathize with plaintiffs' concerns, the law seems clear. For thereasons set forth below, plaintiffs' motion for summary judgment [docketentry #59] is DENIED in all respects, and the cross-motions at defendants[docket entries #65 and 70] are GRANTED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Facts and Statutory Scheme

1. The Magnuson-Stevens Act and NMFS

The Magnuson-Stevens Fishery Conservation and Management Act("Magnuson-Stevens Act"), 16 U.S.C. § 1801 et seq., vests in theDepartment of Commerce the authority to regulate fisheries and fishingactivities in — and in certain instances beyond — U.S.federal waters. The statute articulates a number of policy objectives,two of which are pertinent to this case: with the Magnuson-Stevens ActCongress intends (1) "to support and encourage the implementation andenforcement of international fishery agreements for the conservation andmanagement of highly migratory species," 16 U.S.C. § 1801(b)(2); and(2)

to assure that the national fishery conservation and management program utilizes, and is based upon, the best scientific information available; involves, and is responsive to the needs of, interested and affected States and citizens; considers efficiency; draws upon Federal, State, and academic capabilities in carrying out research, administration, management, and enforcement; considers the effects of fishing on immature fish and encourages development of practical measures that minimize bycatch and avoid unnecessary waste of fish; and is workable and effective,

id. § 1801(c)(3)

The task of pursuing these objectives by regulation has fallen to theNMFS, a federal agency under the purview of the National Oceanic andAtmospheric Administration within the Department of Commerce. Theregulatory reach of the NMFS extends as far as 200 nautical miles fromthe U.S. coastal boundaries. 16 U.S.C. § 1811(a), 1802(11);50 C.F.R. § 600.10. The U.S. claims exclusive sovereign right tomanage fisheries within that 200-mile buffer, known as the ExclusiveEconomic Zone ("EEZ"). Limited circumstances permit the NMFS to reachbeyond the EEZ; the Magnuson-Stevens Act provides that the U.S.

shall cooperate directly or through appropriate international organizations with those nations involved in fisheries for highly migratory species with a view to ensuring conservation and shall promote the achievement of optimum yield of such species throughout their range, both within and beyond the exclusive economic zone.

Id. § 1812 (emphasis added).

It is the business of the NMFS under the Magnuson-Stevens Act toprepareFishery Management Plans ("FMPs") for the fisheries within itsjurisdiction. Through FMPs, the NMFS establishes the rules by whichfisheries are sustainably harvested, but in crafting its FMPs the NMFSmust itself conform to National Standards set down by Congress. TheseNational Standards require, inter alia, that conservation and managementmeasures "be based upon the best scientific information available,"16 U.S.C. § 1851(a)(2), and that they "take into account theimportance of fishery resources to fishing communities in order to (A)provide for the sustained participation of such communities, and (B) tothe extent practicable, minimize adverse economic impacts on suchcommunities," id. § 1851(a)(8)

2. The Fishery Management Plan for Atlantic Tunas, Swordfishf and Sharks

At issue in this case is the Fishery Management Plan for AtlanticTunas, Swordfish, and Sharks ("HMS FMP"), instituted and maintained bythe NMFS on the authority of both the Magnuson-Stevens Act and theAtlantic Tunas Convention Act ("ATCA"), 16 U.S.C. § 971 et seq.Congress enacted the ATCA in 1975 to enable the U.S.'s participation inthe International Convention for the Conservation of Atlantic Tunas, thepurpose of which "is to protect Atlantic tuna species throughinternational cooperation." Blue Water Fisherman's Ass'n v. Mineta,122 F. Supp.2d 150, 157-58. (D.D.C. 2000). The HMS FMP governs theharvesting of swordfish, Atlantic tuna, bluefin tuna, shark, andbillfish, i.e., the primary target species of the plaintiffs in theirNorth Atlantic longline fishing efforts. Finalized in April 1999, the HMSFMP authorized a regulated sphere of pelagic longline fishing activity inthe NED, a region that stretches from 20 to 600 W and 35 to 550 N andencompasses 2, 631,000 square nautical miles of international waters.

Regulations promulgated under the Endangered Species Act,16 U.S.C. § 1531 et seq., require that any agency acting "in theUnited States or upon the high seas" consult with the Fish and WildlifeService or (as in this case) the NNFS "to insure that [its] action . . .is not likely to jeopardize the continued existence" of listed species.116 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.01(a), 402.14(a).The consultation process culminates in the issuance of a biologicalopinion. 50 C.F.R. § 402.14(g)(4). It is crucial that the NMFS havethe "best scientific and commercial data available" to inform itsopinion. Id. § 402.14(d). It is the duty of the consulting agency toprovide it. Id. The biological opinion must include a summary of the datasupporting the NMFS's conclusions, a "detailed discussion" of theprojected effect of the agency action on listed species, and adetermination as to whether the proposed agency action will "jeopardizethe continued existence of a listed species." Id. § 402.14(h). Shouldthe NMFS reach a "jeopardy" conclusion, it is obligated to list in itsopinion, if possible, any "reasonable and prudent alternatives" ("RPAs")to the proposed action. Id. § 402.14(h)(3).

The conservation efforts of NMFS are themselves subject to theconsultation requirement. In this instance, the Office of SustainableFisheries ("OSF"), the subdivision of NMFS charged with developing theHMS FMP, discharged this obligation through internal consultation withthe agency's Office of Protected Resources ("OPR"). The OPR approvedpelagic longline fishing in the NED provided that the industry'sincidental harm to leatherback and loggerhead turtles — which theNMFS has listed as endangered and threatened, respectively,50 C.F.R. § 224.101(c) (leatherbacks), 223.102(d) (loggerheads)— remained within certain specified limits. In November 1999 theOSF reinitiated consultation with the OPR, based upon preliminary datathat longliners' "incidental take"2 of these species would exceedwhat OPR had deemed allowable.

OPR reviewed the new data and issued a biological opinion in June 2000("First Biop"). A.R. Vol. 3, Doc. 51. In its analysis OPR observed that"[w]ith respect to loggerhead sea turtles, NMFS currently believes thatthe continued operation of [pelagic longline] fisheries at current levelsof take is not likely to appreciably reduce the likelihood of survivaland recovery of the entire species in the wild." Id. at 69. The Biop thenreversed course and observed that the present rate of longline activitycould result in considerable diminution in the "numbers, reproduction anddistribution" of the leatherback turtle and the northern subpopulation ofloggerheads, if not the entire loggerhead species. Id. More researchwould be necessary to establish the species-wide effect of harm to thatnorthern subpopulation.

The Biop concluded that "continued operation of the Atlantic pelagiclongline fishery is likely to jeopardize the continued existence of theleatherback sea turtle and loggerhead sea turtles." Id. at 83. OPRoffered two RPAs that would permit implementation of the HMS FMP. Thefirst of these required that the NED be designated off-limits to pelagiclongline fishermen from July through December. Id. at 86. The NNFSpublished emergency regulations implementing the RPAs in October 2000.Atlantic Highly Migratory Species; Pelagic Longline Fishery; Sea TurtleProtection Measures; 65 Fed. Req. 60, 889 (October 13, 2000)

By this time the OF'S had already reinitiated consultation with OPRonce more on the subject of its HMS FMP. Over the next nine months theNMFS drafted a report of over three hundred pages entitled StockAssessments of Loggerhead and Leatherback Sea Turtles and an Assessmentof the Impact of the Pelagic Lonciline Fishery on the Loggerhead andLeatherback Sea Turtles of the Western North Atlantic ("SEFSC Report").A.R. Doc. 191. The SEFSC report explored the impact of continued pelagiclongline fishing upon the northern subpopulations of the species atrisk. Portions of the report addressed other "anthropogenic" effects uponthe turtle populations in addition to pelagic longline fishing. E.g.,id. at 26-30, 79-84. The report's compilers reviewed the literature,collected data, modeled populations, and consulted experts on seaturtles; the work was submitted to three independent experts to reviewbefore it was finalized.

The NMFS's Biological Opinion of June 8, 2001 ("Second Biop") reflectedthe OPR's review of the SEFSC Report and other material made available toit; it withdrew the language of the First Biop finding that pelagiclonglining posed no likelihood of species-wide harm to loggerheadturtles, and it issued unequivocal findings of jeopardy as to bothspecies. A.R. Doc. 283, at 108 ("[C]ontinued operation of the Atlanticpelagic longline fishery is likely to jeopardize the continued existenceof the leatherback sea turtle and theloggerhead sea turtle . . . ."). TheRVAs remained largely the same: for its HMS FMP to pass muster under theEndangered Species Act, the NMFS would have to close the NED to pelagiclongline fishing, but this time on a year-round basis. Id. at 111-12.

Accordingly, NMFS set down another Emergency Rule providing for closureof the NED to pelagic longline fishing through January 9, 2002. AtlanticHighly Migratory Species; Pelagic Longline Fishery; Sea Turtle ProtectionMeasures, 66 Fed. Reg. 36, 711 (July 13, 2001). NMFS extended the term ofthe emergency closure and on July 9, 2002 announced a Final Ruleimplementing the closure indefinitely. Atlantic Highly MigratorySpecies; Pelagic Longline Fishery; Shark Gillnet Fishery; Sea Turtle andWhale Protection Measures, 67 Fed. Reg. 45, 393 (July 9, 2002).

B. Procedural History

On November 8, 2000, less than a month after NMFS's initial closure ofthe NED took effect, an assembly of vessel owners, operators and otherparticipants with a stake in the pelagic longline fishing industry broughtsuit against NNFS to challenge the Emergency Rule closing off theiraccess to the NED. That action was stayed while NMFS prepared its SecondBiop. When the Second Biop issued and gave the plaintiffs nosatisfaction, an amended complaint followed, commencing this action.

The plaintiffs filed second and third amended complaints to updatetheir pleadings to reflect NMFS's extension of the Emergency Rule andissuance of the Final Rule. The substance of the plaintiffs' claims,however, has remained the same. The plaintiffs attack the Biop itself,the disproportionate burden borne by the pelagic longlining fishermen inthe sea turtle recovery effort, and NMFS's authority to control theiraccess to the NED, which lies beyond the EEZ specified in theMagnuson-Stevens Act.

The plaintiffs moved for a preliminary injunction that would permitpelagic longliners to fish the NED pending a final determination of thisaction. In August 2001 I denied the preliminary injunction motion, on theground that the Magnuson-Stevens Act expressly "forbids this Court fromstaying enforcement of an administrative rule pending review on themerits." Blue Water Fisherman's Ass'n v. Nat'l Marine Fisheries Serv.,158 F. Supp.2d 118, 121 (D. Mass. 2001) (citing16 U.S.C. § 1855(f)(1)(A)). The plaintiffs also contested the NMFS'sauthority to regulate the NED in the first instance, as the area liesentirely outside the EEZ. I rejected this position on the ground that theNMFS prepared its HMS FMP not only in the course of its duties toimplement the Magnuson-Stevens Act, but also to assist in theinternational conservation effort to which the U.S. is a party under theACTA, so triggering 16 U.S.C. § 1812's authorization of extra-EEZregulation. Id. at 123 ("Thus, in enforcing the HMS FMP in conjunctionwith foreign efforts under the Convention, 16 U.S.C. § 1812 providesjurisdiction beyond the EEZ.").

The Turtle Island Restoration Network and the Center for BiologicalDiversity moved to intervene as defendants in this action. I granted thatmotion on August 24, 2001.

On December 5, 2001, the plaintiffs moved for summary judgment. Thefederal defendants and defendant-intervenors filed separate cross-motionsfor summary judgment on January 11, 2002, and a hearing was held on May20, 2002.

II. LEGAL ANALYSIS

A. Standard of Review

Fed.R.Civ.P. 56(c) provides, in pertinent part, that a court may grantsummaryjudgment only if "the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact and thatthe moving party is entitled to judgment as a matter of law."

The Magnuson-Stevens Act requires that a court reviewing an agencydetermination under the statute must apply the Administrative ProcedureAct ("APA") standards of review prescribed at 5 U.S.C. § 706(2)(A)-(D).16 U.S.C. § 1855(f)(1)(B). In accordance with these standards, aregulation is invalid if it is demonstrably "arbitrary, capricious, anabuse of discretion, or otherwise not in accordance with law." 5 U.S.C. S706(2)(A). As the Supreme Court has explained, an agency rule isarbitrary and capricious if:

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43(1983); see also Associated Fisheries of Maine, Inc. v. Daley,127 F.3d 104, 109 (1st Cir. 1997)

Thus, "[i]n reviewing an agency's decision after consultation [, thecourt's] task is to ascertain whether the decision was based on aconsideration of the relevant factors and whether there has been a clearerror of judgment." Roosevelt Campobello Int'l Park Comm'n v. EPA,684 F.2d 1041, 1049 (1st Cir. 1982) (internal quotation marks omitted);see also NLRB v. Beverly Enterprises — Mass., Inc., 174 F.3d 13, 23(1st Cir. 1999) (task of reviewing court is "to determine whether theagency has examined the pertinent evidence, considered the relevantfactors, and articulate Id] a satisfactory explanation for its actionincluding a rational connection between the facts found and the choicemade." (internal quotation marks omitted)). As the Supreme Courtobserved, "[w]e will . . . uphold a decision of less than ideal clarityif the agency's path may reasonably be discerned." Motor Vehicle Mfrs.Ass'n, 463 U.S. at 43 (citing Bowman Transr., Inc. v. Arkansas-BestFreight Sys., 419 U.S. 281, 286 (1974))

Although this standard of review "is a narrow one," the court "mustundertake a thorough, probing, in-depth review and a searching andcareful inquiry into the record." NLRB, 174 F.3d at 24 (citing Citizensto Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971))(internal quotation marks omitted). The court must make itsdetermination, however, based "only [on] those facts before the agency atthe time of the action." Recreational Fishing Alliance v. Evans,172 F. Supp.2d 35, 40 (D.D.C. 2001) (citing Florida Power & LightCo. v. Lorion, 470 U.S. 729, 743-44 (1985)); Blue Water Fisherman's Ass'nv. Mineta, 122 F. Supp.2d at 158.

Plaintiffs offer a number of grounds in support of their challenge tothe NED closure. In Counts I and II of their complaint they suggest thatthe NMFS did not use the "best scientific and commercial data available"in its Second Biop, as the law requires. Count III alleges that the NMFSbased its regulation on an unlawful jeopardy determination as to anunlisted subpopulation of sea turtles, and not the full listed species ofloggerheads. Counts IV and V find fault with the NMFS's treatment of thepelagic longlining fishery vis-a-vis other activities that threaten seaturtle populations. All of these counts are reviewed against the APAstandard of deference to agency action. The final count in the complaintattacks NMFS's authority under the Magnuson-Stevens Act to close theNED.

B. Counts I & II: Did NMFS Use the "Best Scientific and Commercial Data Available" in Formulating Its Jeopardy Finding and the RPAs?

"The best scientific and commercial data available" is the mantra ofthe Endangered Species Act. The best scientific and commercial dataavailable is to govern additions to and removals from the threatened andendangered lists. 16 U.S.C. § 1533(b)(1)(A). Similarly, jeopardyconsultations prior to agency action must issue on the basis of the bestscientific and commercial data available, 16 U.S.C. § 1536(a)(2);50 C.F.R. § 402.14(g)(8), and data of the same quality must informthe RVAs that follow consultation, 50 C.F.R. § 402.14(g)(8).Finally, the NMFS, when it regulates under the Magnuson-Stevens Act, mustbase its conservation decisions on the best scientific data available.16 U.S.C. § 1851(a)(2) ("National Standard 2"). Though they mount nochallenge to the lists, the plaintiffs argue that the OPR neglected thebest data when it made its jeopardy findings as to loggerhead andleatherback turtles and framed the RVAs that required closure of the NEDto their fishing activities.

A number of courts have had occasion to explain how the "best data"requirement jibes with the deferential standard of review this court mustgive to agency actions. In Bennett v. Spear, 520 U.S. 154 (1997), theCourt observed that the "best data" requirement is in place "to ensurethat the ESA not be implemented haphazardly, on the basis of speculationor surmise." Id. at 176. An agency determination must not "disregardsuperior data," Building Indus. Ass'n of Super. California v. Norton,247 F.3d 1241, 1246-47 (D.C. Cir. 2001), but imperfections in theavailable data do not doom any agency conclusion: "the Service mustutilize the `best scientific data available,' not the best scientificdata possible," id. at 1246 (emphasis in original).

The agency's conclusion need not be airtight and indisputable. "When anagency relies on the analysis and opinion of experts and employs the bestevidence available, the fact that the evidence is `weak,' and thus notdispositive, does not render the agency's determination `arbitrary andcapricious.'" Greenpeace Action v. Franklin, 14 F.3d 1324, 1336 (9thCir. 1993). This Court therefore may not champion a competinginterpretation of the data over an agency's conclusion that finds supportin the record. Id. ("We agree with the district court that the Secretaryacted within his discretion in choosing the data on which to rely. . . .").Nor should this Court pretend to have an expertise in scientificmatters greater than the challenged agency's. Bays' Legal Fund v.Browner, 828 F. Supp. 102, 107 (D. Mass. 1993) ("[W]here there is afactual dispute involving issues of science, which implicates substantialagency expertise, deference is owed to the informed decisionmaking of theresponsible agency.") (citing Marsh v. Oregon Natural Resources Council,490 U.S. 360, 376-77 (1989), and Baltimore Gas & Electric Cg. v.Natural Resources Defense Council, Inc., 462 U.S. 87, 103 (1983)).

The plaintiffs contend that the NMFS manipulated and ignored the datato arrive at a jeopardy conclusion that would support closure of theNED. They point firstto the critiques of three peer reviewers of a draftof the SEFSC Report, from which the OPR constructed its Second Biop. Thispeer review identified a number of analytical and modeling deficienciesand recommended improvements. The NMFS took account of the peerreviewers' suggestions and altered the study to reflect theirsuggestions.

It is noteworthy that the comments of the peer reviewers were generallycomplimentary and that they had no argument with the body of data thatthe NMFS reviewed. A.R. Doc. 200, at 1 (review of Dr. YouGan Wang)("Separate status reports for the loggerhead and leatherback sea turtleshave been developed based on the best available information. Estimationmethods used for trend, catch, and mortality of these sea turtle stocksare appropriate."); A.R. Doc. 205, at 1 (review of Dr. Ian Poiner) ("Theanalysis, results and conclusions in the report represents [sic] the bestscientific information on which to proceed with fishery management.").And though, as the plaintiffs observe, Dr. Wang concluded from the datathat the pelagic longline bycatch threat to turtle populations wasminimal, Mr. Mohn found the NMFS's conclusions to the contrary "wellconsidered from the available analysis." A.R. Doc 189, at 2 (review ofRobert Mohn). Thus, in reviewing and rejecting Dr. Wang's position, theNMFS did not ignore the best available data. Rather, it considered anddisagreed with Dr. Wang's interpretation of the data.

Plaintiffs' remaining challenges under the "best data" requirement aresimilarly resolved. The plaintiffs contest the NMFS's bycatch projections— that is, they dispute the agency's extrapolations from observedand reported bycatch to the entire pelagic longline industry. Theyfurther dispute some of the NMFS's decisions allocating bycatch amongsubclassifications, as well as the post-release mortality rates the NMFSassigned to these categories. These challenges likewise fail to meet thestrict standard for a challenge to agency action.

For example, the NMFS found turtles that ingested longliner's hookssubject to a 42% mortality rate versus 27% for those hooked externally.Second Biop, A.R. Doc. 283, at 87. In its Second Biop the NMFS estimatedindustry-wide bycatch mortality of loggerhead and leatherback turtlesbased on observed bycatch of the turtles in 1999. Nine leatherbacks wereobserved hooked in beak or mouth in 1999. Reluctant to classify the nineas necessarily deep hooked (42% mortality rate) or externally hooked(27%), the NMFS ran projections for both mortality rates. The plaintiffsobject that the NMFS should not have run higher-mortality projectionsbecause other data cited in the Biop shows that zero leatherbacks wereobserved hooked in the throat or esophagus. Id. at 86 tbl.7. Thedefendants counter that the reports regarding the nine hooked turtles didnot adequately explain whether the hook was ingested and/or what damageit did to soft tissues. To be careful, then, the NMFS based its mortalityestimates on both mortality rates.

The NMFS's decision to run statistics based on both mortality ratestypifies the thoroughness and conscientiousness with which it preparedits Second Biop. The ultimate jeopardy determination did not turn on a42% mortality rate. Indeed, the NMFS's analysis seems to settle insteadupon the 27% rate:

It is reasonable to expect that the HMS fisheries that could capture as many as 796 leatherback turtles in a year, killing as many as 202 of them (based on a 27% mortality rate and the higher year[']s data), would reduce the species numbers (these are average estimates, NMFS would expect the actual number of leatherback turtles killed in a particular year to be less than or greater than this estimate). Assuming that some of these turtles would be female, NMFS would also conclude that these deaths would reduce the species' reproduction in addition to reducing their numbers.

Id. at 105.

At a certain point an agency might so liberally manipulate andinterpret data as to "fudge" conclusions utterly unsupportable by anyreasonable application of the scientific method. Such treatment of the"best data" would rise to the level of "arbitrary and capricious" andwould require intervention of the reviewing court. See Motor VehicleMfrs. Ass'n, 463 U.S. at 43. That is not the case here. As the NMFS'sconclusions plausibly follow from the data before it, I must defer to theagency's findings. Accordingly, the plaintiffs' challenges to the NEDreferencing the "best data" requirements of the Endangered Species Actand National Standard 2 are unsustainable.

C. Count III: Was NMFS's Jeopardy Finding Made as to the Turtle Species As They Were Listed?

The plaintiffs object that the NMFS's closure of the NED essentiallyreduces to an effort to preserve unlisted subpopulations of leatherbackand loggerhead turtles, which the ESA does not allow. The First Biop,after all, took the view that "[w]ith respect to loggerhead sea turtles,NMFS currently believes that the continued operation of [pelagiclongline] fisheries at current levels of take is not likely toappreciably reduce the likelihood of survival and recovery of the entirespecies in the wild." A.R. Doc. 51, at 69.3 The First Biop tookfurther notice that pelagic longlining in the NED threatens the northernsubpopulation of loggerheads and maintained that more research wasnecessary to explore the extent to which harm to this subpopulation putsthe entire species at greater risk. Id. Then the First Biop found thatthe EMS FMP as written jeopardized both species, notwithstanding itsearlier, contradictory statement about the loggerheads.

Embracing the language in the First Biop that supports their view, theplaintiffs contend that the jeopardy the NMFS identified extended only tothe northern subpopulation of loggerhead turtles. And althoughsubpopulations are eligible for protection under the Endangered SpeciesAct, 16 U.S.C. § 1532 (16), they must make the "threatened" or"endangered" list first. The parties do not dispute that the northernsubpopulation of loggerhead is not independently listed.

But a Second Biop has since supplanted the first, omitting the languagecrucial to the plaintiffs' argument, that the continuation of pelagiclonglining in the NED will cause no measurable harm to the loggerheadspecies in its entirety. The plaintiffs account for this difference bysuggesting that the Second Biop is covering up its predecessor's tracks.This is not the case. The First Biop called for more research todetermine to what extent harm to the northern subpopulation wouldresonate more broadly in the entire loggerhead species. The Second Biopresolved this issue with its conclusion that

[g]iven the size of loggerhead populations in the western Atlantic Ocean, particularly the northern subpopulation, and the effects of other fisheries and sources of mortalities on the various nesting aggregations, this would appreciably reduce the population's size and reproductive capacity in a way that would be expected to appreciably decrease this population's likelihood of surviving and recovering in the wild.

A.R. Doc. 283, at 103-04.

The Second Biop's broader findings of jeopardy as to both theloggerhead and leatherback species are uncontroverted within thatdocument. In effect, the Second Biop settles the question its predecessorleft open, regarding the translation of take from the northernsubpopulation of loggerheads to species-wide harm. To impress an RVA uponan acting agency under the Endangered Species Act, the NMFS must make ajeopardy finding as to a listed species. There is no statutory provisionthat would prohibit NMFS from predicating its species-at-large jeopardyfinding on the impact of a threat to a subpopulation, provided that soundscience supports its analysis.

The NMFS found that the southeastern U.S. nesting aggregation ofloggerhead turtles, which accommodates a number of subpopulationsincluding the northern subpopulation vulnerable to pelagic longliners,"is a critical component of its species." Second Biop, A.R. Doc. 283, at34. It further found that harm to one subpopulation is unrecoverable,because "[n]atal homing4 to the nesting beach provides the geneticbarrier between subpopulations, preventing recolonization by turtles fromother nesting beaches." Id. at 32. Moreover, the gender breakdowns of thenorthern (65% male/35% female) and southeastern (20% male/80% female)subpopulations suggest that the northern subpopulation provides crucialmale mates to females nesting further down the coast. Id. at 34; SEFCReport, A.R. Doc. 191, at 31. Reasoned, scientific analysis supported theNMFS's conclusion that the continued loss of turtles in significantnumbers to pelagic longline bycatch would leave a permanent dent in theloggerhead species. The governing standard of review does not allow me tosecond-guess that analysis.

D. Counts IV & V: Did NMFS Arbitrarily and Capriciously "Single Out" Pelagic Longlining Fisheries over Other Activities That Harm the Listed Turtles, and Did NMFS's Closure of the NED Arbitrarily and Capriciously Assign the Full Burden of Recovery to the Plaintiffs?

The plaintiffs object that the longline fishing industry is just onesmall contributor to the jeopardy of the leatherback and loggerheadturtle populations. Consequently, they argue, the Second Biop's jeopardyfinding as to pelagic longline fishing was arbitrary and capricious.

It is appropriate ¶ and necessary ¶ that the OPR "[e]valuatethe effects of the action and cumulative effects on the listed."50 C.F.R. § 402.14(g)(3). The term "cumulative effects" is defined inthe regulations to mean "those effects of future State or privateactivities, not involving Federal activities, that are reasonably certainto occur within the action area of the Federal action subject toconsultation." Id. § 402.02. The NMFS's ultimate task as an ESAconsultant is to determine "whether the action, taken together withcumulative effects, is likely to jeopardize the continued existence oflisted species." Id. § 402.14(g)(4) (emphasis added). To be passableunder ESA regulations, then, the NMFS's jeopardy finding did not have tosingle out the pelagic longline fishery as the predominant activityjeopardizing thelisted turtle populations. The NMFS need only have foundthat the pelagic longlining threat together with other cumulative effectsadd up to jeopardy. This is exactly what the NMFS did.

In the course of its jeopardy analysis, the Second Biop devotedconsiderable attention to other anthropogenic effects on the loggerheadand leatherback turtle populations. The NMFS cited U.S. Coast Guard andU.S. Navy vessel operations in the North Atlantic, military trainingexercises, and dredging activities as cumulative effects directlyattributable to federal action. A.R. Doc. 283, at 50-52. The Second Biopalso explored the impacts upon turtle populations of other state andfederally managed fisheries, marine pollution, and state and privatevessels, among still other contributing factors. Id. at 52-66. The NMFScalculated the contributions of these other factors into its finalanalysis:

After reviewing the current status of the . . . leatherback [and] loggerhead . . . sea turtles, the environmental baseline for the action area, the effects of the continued operation of the fisheries managed under the Atlantic HMS FMP, the record of compliance with requirements of previous Opinions on HMS fisheries, and probable cumulative effects, it is NMFS' biological opinion that . . . continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of the leatherback sea turtle and the loggerhead sea turtle . . . ."

Id. at 108 (emphasis added). This approach is wholly consistent with ESAregulations.

The plaintiffs next argue that closure of the NED, a recovery gesturecentering on the damage done by pelagic longliners to the exclusion ofother anthropogenic harms, requires that they shoulder more than theirshare of the burden of species protection.

It was the OPR's task in this case to consider the potential effect ofthe HMS FMP's authorization of pelagic longline fishing in the NED on theloggerhead and leatherback turtle species. OPR's legal responsibility inreviewing the HMS FMP was strictly to insure that the proposed agencyaction was not likely to jeopardize listed species.16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.01(a), 402.14(a). In itsstatutory and regulatory role as consultant to the OFS, the OPR had nooccasion — and certainly no obligation — to regulateactivities beyond the scope of the HMS FMP.

Moreover, the plaintiffs advance no support in the statutes or case lawfor this disproportionality argument, which reduces to an impracticable"all now or nothing ever" approach. The plaintiffs cite Bennett v.Spear, 520 U.S. 154 (1997), for the proposition that agencies may notimpose undue burdens on industry in their pursuit of ESA directives. Butthe Bennett Court does not take this position. Rather, it explains thatthe ESA's "best data" requirements mean to tie ESA regulations to hardscience, in order to obviate the "needless economic dislocation" thatnecessarily follows from unaccountable regulation. Id. at 176-77. As Iexplained above, the Second Biop amply meets the "best data" standard.

The Bennett Court's disfavor for "needless economic dislocation" iswell taken, but it does not extend to prohibit the actions the NMFS hasimplemented. If the plaintiffs' logic prevailed, recovery efforts underthe ESA could never proceed incrementally, as the first party to sufferthe adverse effect of a recovery effort could resist regulation ongrounds of differential treatment. Nothing in the ESA foreclosespiecemeal or incremental pursuit of the goal of species protection. Thisapproach is consistent with the practice ofadministrative agenciesgenerally. See U.S. Air Tour Ass'n v. F.A.A., 298 F.3d 997, 1010 (D.C.Cir. 2002) ("[O]rdinarily, agencies have wide latitude to attack aregulatory problem in phases."). While Counts IV and V of the complaintgive a compelling and sympathetic sketch of the plaintiffs' predicament,the law unfortunately provides no redress for the inequity theyidentify.5

E. Count VI: Does the NMFS Have the Authority to Close the NED?

1. Jurisdiction Over the NED

In their motion, plaintiffs reassert their position — which Irejected at the preliminary injunction stage — that the NMFS has noauthority to restrict their access to the international waters in theNED.

The Magnuson-Stevens Act expressly permits the U.S. government toregulate beyond the confines of the EEZ, under certain conditions.16 U.S.C. § 1812. Section 1812 provides as follows:

The United States shall cooperate directly or through appropriate international organizations with those nations involved in fisheries for highly migratory species with a view to ensuring conservation and shall promote the achievement of optimum yield of such species throughout their range, both within and beyond the exclusive economic zone.

Id. The section can be read to afford narrow or broad regulatory powersbeyond the EEZ, depending on the construction of "such species." If "suchspecies" is read simply to mean the "highly migratory species" earlier inthe sentence, NMFS's regulatory authority as to highly migratory species(and therefore pelagic longline fishing) admits of no territorialrestriction. A more limited reading of the term requires that the NMFS beacting pursuant to an international cooperative effort to conserve highlymigratory species.

In either case, the NMFS has full authorization under theMagnuson-Stevens Act to bind ships under the U.S. flag to its HMS MFP, bethey within or without the Exclusive Economic Zone. The plan's focus onhighly migratory species alone gives the NMFS jurisdiction under thebroad reading of the statute. And, in any case, as I observed at thepreliminary injunction stage, "the NMFS ordered the emergency closure ofthe NED in direct cooperation with international efforts to conservehighly migratory species." Blue Water Fishermen's Ass'n, 158 F. Supp.2dat 123. Thus even the narrower reading of § 1812, requiring action inthe context of an international conservation effort, would authorize theNMFS to take the action that it did.

The plaintiffs' argument that there is no international convention forthe preservation of sea turtles is beside the point. The ATCA, whichenables U.S. participation in the International Convention for theConservation of Atlantic Tunas, provides the basis for the HMS FMP'sexpanded territorial scope under § 1812. The concessions that ESA andits supporting regulations carve out of the HMS FMP do not alter thatscope. Accordingly, resolutionof the statute's ambiguity isunnecessary, because the NMFS's authority in this instance does not turnon the distinction.

2. The Magnuson-Stevens Act

The plaintiffs identify two related provisions of the Magnuson-StevensAct that, they argue, make closure of the NED unlawful. The first ofthese is National Standard 8, described above, which requires that theNMFS take sufficient account of the stake of fishing industries as tominimize the economic impact of its regulations.16 U.S.C. § 1851(a)(8). The second requires that the NMFS considerand minimize the disadvantage to American fishermen vis-a-vis theirforeign competitors. 16 U.S.C. § 1854(g)(1)(C). Neither provision isabsolute; in fact, both provisions ask that the NMFS minimize economicdisadvantage "to the extent practicable."

The NMFS has met these requirements. Mandatory consultation of the OPRunder the ESA returned a verdict that the agency must close off the NED.Second BiOp, A.R. Doc. 283, at 111 ("NMFS must commence rulemakingimmediately upon issuance of this opinion to promulgate regulations thatclose the entire NED area to fishing with pelagic longline gear for U.S.vessels."). The NMFS had no alternative but to comply. Confronted withclosure of the NED or the wholesale scuttling of the EMS FMP, the NMFSselected the more economically favorable of the two options available tothe plaintiffs.

Moreover, the NMFS took steps to redress the economic displacementworked by its regulations. The agency offered pelagic longline fishermenthe opportunity to participate in an experimental fishery in the NED. 66Fed. Reg. 42, 995, 42, 996 (Aug. 16, 2001). The fishermen are to use newmethods and gear directed at reducing harm to sea turtle populations.A.R. Doc. 298, at 14, 18. The NMFS, in turn, evaluates the viability andsuccess of the innovations, compensates the fishermen financially fortheir assistance with the experiment and allows them to keep what theycatch. Id. This provision certainly does not make up the loss ofregulation to the plaintiffs. Nonetheless, it demonstrates that the NMFShas not acted without consideration of the economic consequences forpelagic longline fishermen.

3. Quota Allocations Under the ACTA

Finally, plaintiffs point to the provision of the ACTA that prohibitsregulations under that statute to "have the effect of increasing ordecreasing any allocation or quota of fish or fishing mortality level tothe United States agreed to pursuant to a recommendation of theCommission." 16 U.S.C. § 971d(c)(3). The defendants' view is that theESA's own imperatives override those of the ACTA, and OFS must acceptclosure of the NED as the only alternative to the outright elimination ofthe pelagic longline fishery as outlined initially in the HMS FMP.

Both parties wrongly presume that the statutes are in direct conflict.16 U.S.C. § 971d(c)(3) forbids the institution of regulations thatwill increase or decrease the "allocation or quota of fish or fishingmortality level to the United States." Id. (emphasis added). Though itmay decrease the overall catch of American pelagic longliners, closure ofthe NED in no way alters the portion of the fishery parceled out to theU.S. for regulatory purposes under the Convention. Section 971(c)(3)means to ensure that states do not unilaterally adjust their allotmentsunder the treaty at the expense (or to the benefit) of other states. itdoes not entitle the fishermen under a given state's flag to fish toquota.

III. CONCLUSION

For the reasons stated above, the plaintiffs' motion for summaryjudgment isDENIED, and defendants' cross-motion for summary judgment GRANTED.

1. The Endangered Species Act empowers the Secretary of commerce toconfer "endangered" or "threatened" status upon marine species,16 U.S.C. § 1533(a)(1), provided that it makes its determinations "onthe basis of the best scientific and commercial data available,"16 U.S.C. § 1533(b)(1)(A) As an agency within the Department ofcommerce, the NMFS has the authority to designate species, or "list"them, for regulatory protection under the ESA.

2. The ESA defines `take' to mean "harass, harm, pursue, hunt, shoot,wound, kill, trap, capture, or collect, or to attempt to engage in any suchconduct." 16 U.S.C. § 1532 (19).

3. The plaintiffs notably do not cite any similar language in the FirstBiop as to leatherback turtles.

4. "Natal homing" refers here to the tendency of female sea turtles toreturn to their specific place of birth to nest.

5. The complaint invokes due process and equal protection principles,but the plaintiffs did not argue these points at the summary judgmentstage. In any event, my "best data" analysis above confirms that closureof the NED was not so irrational a response as to rise to the level of aconstitutional violation. Gun Owner's Action League v. Swift, 284 F.3d 198,215 (1st cir. 2002) (equal protection case) ("In the realm of social andeconomic regulation, a classification passes the rational basis test `ifany reasonably conceivable set of facts could establish a rationalrelationship between [it] and the . . . government's legitimate ends.'"(quoting Tenoco Oil co. v. Dep't of consumer Affairs, 876 F.2d 1013, 978(1st cir. 1989) (due process case))).

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