AMY TOTENBERG, District Judge.
"The oceans deserve our respect and care, but you have to know something
Comm. for Humane Legislation, Inc. v. Richardson, 414 F.Supp. 297, 309 (D.D.C. 1976), aff'd, 540 F.2d 1141, 1148 (D.C.Cir. 1976) (citing H.R.Rep. No.92-707, at 15, 1972 U.S.C.C.A.N. 4148.)
Defendants denied the permit because the Aquarium failed in its burden under the Act to demonstrate that salient statutory and regulatory criteria necessary to issue the permit had been met. In essence, there were too many material unknowns about the potential negative impacts of the removal of these beluga whales from the wild left open by the Aquarium's permit application, despite their significance to the required criteria for permitting.
On June 15, 2012 Georgia Aquarium submitted an application to the National Marine Fisheries Service ("NMFS" or "the Agency") under the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq., for a permit to import eighteen beluga whales from Russia for public display. Georgia Aquarium sought to import the beluga whales "to enhance the North American beluga breeding cooperative by increasing the population base of captive belugas to a self-sustaining level and to promote conservation and education." (Permit Application, AR 8927 at 14283.) The whales were previously captured and collected in the Sakhalin Bay of the Sea of Okhotsk
Following a lengthy notice and comment period, Georgia Aquarium's hopes were
(AR 8998 at 17421.)
NMFS cited three reasons why Georgia Aquarium's application failed to satisfy the MMPA's permit issuance criteria. First, NMFS determined that Georgia Aquarium did not demonstrate that the proposed import "by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock" in accordance with 50 C.F.R. § 216.34(a)(4):
(AR 8998 at 17440.)
Second, NMFS denied the permit application because Georgia Aquarium did not demonstrate that the proposed import would not likely result in the taking of marine mammals beyond those authorized by the proposed permit in accordance with 50 C.F.R. § 216.34(a)(7):
(AR 8998 at 17440.)
Third, NMFS found that Georgia Aquarium did not demonstrate that some of the whales proposed for importation were not nursing at the time of taking in accordance with 16 U.S.C. § 1372(b)(2) and 50 C.F.R. § 216.12(c):
(AR 8998 at 17440.)
On September 30, 2013, Georgia Aquarium filed this appeal, pursuant to the Administrative Procedures Act ("APA"), asserting that NMFS's permit denial was arbitrary, capricious, and not in accordance with the law. The parties have briefed the issues on appeal through cross-motions for summary judgment [Does. 55, 59, & 61]. The Court reviewed the hefty administrative record and heard oral argument on August 14, 2015.
Plaintiff Georgia Aquarium Inc. is a private 501(c)(3) corporation that operates an aquarium in Atlanta, Georgia that is open to the public and which offers education and conservation programs regarding marine mammals and other aquatic life.
Defendants include: (1) Penny Pritzker, the current Secretary of Commerce, sued in her official capacity, responsible for overseeing the proper administration and implementation of the MMPA; (2) National Oceanic and Atmospheric Administration ("NOAA"), an agency of the United States Department of Commerce with supervisory responsibility for the National Marine Fisheries Service, which has been delegated responsibility to ensure compliance with the MMPA; and (3) National Marine Fisheries Service ("NMFS"), an agency of the United States Department of Commerce that has been delegated primary responsibility to ensure compliance with the MMPA within the Department of Commerce. The Court refers to Defendants collectively herein as NMFS or "the Agency."
On April 18, 2014 the Court permitted the following five nonprofit organizations to intervene as Defendants in support of NMFS: Animal Welfare Institute, Whale and Dolphin Conservation, Whale and Dolphin Conservation, Inc. (North America), Cetacean Society International, and Earth Island Institute. Members from these groups submitted comments to Georgia Aquarium's permit application during the administrative public notice and comment period. The Court will refer to these parties herein as Intervenor-Defendants.
On March 23, 2015 two groups of individuals and organizations separately filed motions for leave to file briefs as amici curiae in opposition to Georgia Aquarium's summary judgment motion: (1) Defenders of Wildlife and The Humane Society of the United States, [Doc. 63]; and (2) Kim Basinger, David Blaine, Jean-Michel Cousteau, Gabriela Cowperthwaite, Shannen Doherty, Dr. Sylvia Earle, Tim Eichenberg, Dr. Jane Goodall, Dr. Denise Herzing, Dr. Janet Mann, Dr. Lori Marino, Edward Norton, Hayden Panettiere, Louie Psihoyos, Fisher Stevens, Bob Talbot, Charles Vinick, Ingrid Visser and Dr. Masha Vorontsova (collectively referring to themselves as "the Conservationists"), [Doc. 66]. These motions are pending before the Court.
An amicus is a "friend of the court." In re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233, 1249 n. 34 (11th Cir.2006). Although there is no formal rule governing the filing of amicus curiae briefs, district courts possess the inherent authority to grant or refuse leave to amicus parties. Id. Courts typically grant amicus status where the parties "contribute to the court's understanding of the matter in question" by proffering timely and useful information. Conservancy of Southwest Florida v. U.S. Fish and Wildlife Serv., No. 2:10-cv-106, 2010 WL 3603276 at *1 (M.D.Fla. Sept. 9, 2010)
As organizations and individuals with extensive experience in wildlife conservation, the amicus parties contend that their briefs may be useful to this Court by providing a unique perspective on the broader implications of importation and captive display, along with a scientific and legal context for the principles underpinning the MMPA. Georgia Aquarium disagrees. The Aquarium opposes the motions filed by the amicus parties, asserting (1) their participation is not appropriate because the amicus briefs are not relevant or useful to the court; (2) the amicus briefs present nothing more than the personal, political opinions of the parties, all of whom oppose public display generally; and (3) allowing their participation is akin to expanding the public comment period and supplementing the administrative record.
After reviewing the proposed amicus briefs, this Court finds that the information proffered by the amici is both timely and useful. NMFS was tasked with determining whether Georgia Aquarium's permit complied with the MMPA. Accordingly, information related to the scientific and legal context of the principles underpinning the MMPA is highly relevant to this Court's analysis. For these reasons, the Court
The following table summarizes the timeline of events relevant to this administrative appeal:
DATE EVENT 2006-2011 • 18 beluga whales at issue were captured from the Sakhalin Bay of the Sea of Okhotsk a team led by Dr. Lev Mukhametov, Director of Utrish Dolphinarium, Ltd. 6/15/2012 • Georgia Aquarium submits MMPA application for import of 18 beluga whales from Russia 7/18/2012 • NMFS Permits Division determined application to be complete after some revision/supplementation 8/30/2012-10/29/2012 • Public notice and comment period (hearing held on 10/12/2012) 10/29/2012 • Marine Mammal Commission provides recommendations and concerns on permit approval 1/28/2013-7/2013 • Agency decision-making process 1/28/2013 • NMFS briefs Acting Administrator (AA) on public comments received 2/2013-3/2013 • NMFS reviews and incorporates public comments into draft Environmental Assessment (EA), reviews permit to determine whether to grant as proposed or modify, considers granting permit with 30 year moratorium on imports of beluga whales for public display 3/8/2013 • NMFS briefs Acting Administrator (AA) on status of permit review: NMFS makes preliminary findings that permit application was consistent with MMPA issuance criteria along with a 30 year moratorium but subsequently determines that preliminary findings are flawed (and no moratorium can be imposed by agency which must review each permit application on its own merits) and reconsiders (1) whether permit would result in significant adverse impact based on those flaws and available information and (2) whether import would result in additional takings beyond those authorized under the permit without implementation 30 year moratorium on beluga imports 4/2013 • NMFS begins drafting permit recommendation memo describing whether each MMPA criteria has been met • NMFS determines additional questions remained regarding whether application met MMPA criteria, including whether any of the whales were nursing at the time of their capture
4/3/2013 • NMFS Chief of Permits and Conservation Division meets with Deputy AA to discuss ongoing concerns in available information and highlighted problems making the required findings under the MMPA 4/9/2013 • NMFS provides summary to AA of determination NMFS was having difficulty making under MMPA. NMFS decides to move forward with a recommendation to deny permit 5/2013-7/2013 • NMFS Chief of Permits and Conservation Division documents determination in recommendation memo/decision document. NFMS finalizes EA. 8/5/2013 • NMFS issues letter and decision to deny permit 9/30/2013 • Georgia Aquarium files administrative appeal in this Court
The applicable standard under the APA is whether the agency's action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Defenders of Wildlife v. U.S. Dept. of Navy, 733 F.3d 1106, 1114-1115 (11th Cir.2013).
Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264 (11th Cir.2009) (quoting Alabama-Tombigbee Rivers Coal. v. Kempthoriie, 477 F.3d 1250, 1254 (11th Cir.2007)).
"The arbitrary and capricious standard is `exceedingly deferential.'" Defenders of Wildlife, 733 F.3d at 1115 (citing Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996)).
Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541-42 (11th Cir.1996) (quoting North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533,
In determining whether the agency acted arbitrarily and capriciously, the Court must ask whether the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action." Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 781 F.3d 1271, 1288 (11th Cir.2015) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The Court is not authorized to substitute its judgment for the agency's as long as the agency's conclusions are rational. Defenders of Wildlife, 733 F.3d at 1115 (citing Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264 (11th Cir.2009)); Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.2008); Pres. Endangered Areas of Cobb's History, Inc. ("PEACH") v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir.1996) ("The court's role is to ensure that the agency came to a rational conclusion, `not to conduct its own investigation and substitute its own judgment for the administrative agency's decision.'"). While the Court should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned ... [it] may not supply a reasoned basis for the agency's action that the agency itself has not given." Black Warrior Riverkeeper, 781 F.3d at 1288 (internal citations omitted).
The Court has limited discretion to reverse an agency's decision when it "is making predictions, within its area of special expertise, at the frontiers of science... as opposed to simple findings of fact, a reviewing court must generally be at its most deferential." Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1248-49 (11th Cir.2012) (quoting Miccosukee Tribe of Indians, 566 F.3d at 1264 (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983))).
The MMPA was enacted to protect marine mammal species and population stocks in the wild that are or may be "in danger of extinction or depletion as a result of man's activities." 16 U.S.C. § 1361(1) (enumerating the congressional findings and policies intended to be served by the Act); Florida Marine Contractors v. Williams, 378 F.Supp.2d 1353, 1356 (M.D.Fla.2005); Kanoa Inc. v. Clinton, 1 F.Supp.2d 1088, 1093 (D.Haw.1998) (noting that the MMPA was enacted to ensure the protection and conservation of marine mammals). The stated purposes of the MMPA are:
(a) to prevent marine mammals species and population stocks
(b) to protect and encourage development of the species and stocks "to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem" with "the goal to obtain an optimum sustainable population ...." 16 U.S.C. §§ 1361(2) & (6); see also, e.g.,
"Optimum sustainable population" or OSP is "the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element." 16 U.S.C. § 1362(9).
"The primary purpose of the MMPA is to protect marine mammals; the Act was not intended as a `balancing act' between the interests of [] industry and the animals. The interests of the marine mammals come first under the statutory scheme, and the interests of the industry, important as they are, must be served only after protection of the animals is assured." Fed'n of Japan Salmon Fisheries Co-op. Ass'n v. Baldridge, 679 F.Supp. 37, 46 (D.D.C.1987) aff'd and remanded sub nom. Kokechik Fishermen's Ass'n v. Sec'y of Commerce, 839 F.2d 795 (D.C.Cir.1988); Comm. for Humane Legislation, Inc. v. Richardson, 414 F.Supp. 297, 306 (D.D.C.) aff'd, 540 F.2d 1141, 1148 (D.C.Cir.1976).
In furtherance of these statutory goals and purposes, the MMPA imposes a moratorium on the taking
Under Section 1374 of the MMPA, NMFS may issue permits for the taking or importation of marine mammals for scientific research, enhancing the survival or recovery of a species or stock, or public display, provided that certain requirements are met. See 16 U.S.C. §§ 1371(a)(1), 1374(c)(2)(A); 50 C.F.R. § 216.34. Section 1374(d)(3) of the MMPA requires that the permit applicant "must demonstrate ... that the taking or importation of any marine mammal under such permit will be consistent with the [Act] and the applicable regulations." 16 U.S.C. § 1374(d)(3); see also id. at § 1374(b)(1). "Essential to this requirement of § 1374(d)(3) that a permit applicant demonstrate a proposed import `will be consistent with the purposes of [the MMPA],' is the mandate that stocks `should not be permitted to diminish below their optimum
Pursuant to the Act, NMFS's regulations provide "issuance criteria" for such permits. 50 C.F.R. § 216.34. Under the relevant issuance criteria, "the applicant must demonstrate" that (a) "[t]he proposed activity by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock," (50 C.F.R. §" 216.34(a)(4)), and (b) "[a]ny requested import or export will not likely result in the taking of marine mammals or marine mammal parts beyond those authorized by the permit," (50 C.F.R. § 216.34(a)(7)). In addition, § 216.12(c)(2) requires an applicant to show that the animals it seeks to import were not "nursing at the time of taking." See also 16 U.S.C. § 1372(b).
As NMFS stated in its Decision Document denying Georgia Aquarium's permit application, "it is the [permit] applicant's responsibility, not that of NMFS, to demonstrate that the MMPA criteria have been met." (AR 8998 at 17421.) See 16 U.S.C. § 1374(d)(3); 50 C.F.R. § 216.34 (stating "the applicant must demonstrate that" the issuance criteria are met). Section 1374 of the MMPA requires that an applicant for a permit for taking marine mammals must demonstrate that the taking "will be consistent with the purposes" of the Act. 16 § U.S.C. 1374(d)(3). "The purpose of the requirement was stated clearly in the legislative history." Comm. for Humane Legislation, Inc. v. Richardson, 540 F.2d 1141, 1150-51 (D.C.Cir.1976) (citing H.R.Rep. No. 92-707, at 18 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4151-52.) As the House Report to the MMPA states:
H.R.Rep. No. 92-707, at 18 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4151-52 (emphasis added). Thus the MMPA "imposes a strict burden of proof on each applicant seeking to ... import marine mamma's [for public display]," Comm. for Humane Legislation, Inc. v. Richardson, 414 F.Supp. at 303, under which it "must demonstrate ... that the ... importation... under such permit will be consistent with": (1) "the purposes of [the MMPA]," and (2) "the applicable regulations." 16 U.S.C. § 1374(d)(3).
Georgia Aquarium asserts that "[t]he Congressional policy behind the MMPA is central to this case," but instead focuses on the support for permits for the public display of marine mammals because of the educational importance of informing the public about "the esthetic, recreational, and economic significance of marine mammals and their role in the ocean system."
In its Motion for Summary Judgment, Georgia Aquarium asserts that NMFS's permit denial rests on the following ten identified errors:
(1) NMFS arbitrarily created a new legal standard to measure the sustainability of removals from the wild — a standard that was applied only to the Aquarium's permit application. NMFS's newly-contrived standard was not applied before the permit application and has not been applied since.
(2) NMFS made findings about the number of whales removed from the Sakhalin-Amur region without any supporting evidence. NMFS admits the paucity of their evidence by finding that the number of unproven, theoretically possible removals could have exceeded the sustainable level rather than finding that the actual level of removals was, in fact, not sustainable.
(3) NMFS improperly relied on certain data that NMFS admits are incorrect.
(4) NMFS erroneously based the permit denial in part on a finding that the Sakhalin-Amur beluga population is declining and, therefore, removals are harmful. NMFS, however, admits it has no actual evidence of a population decline, stating instead that any such decline is only theoretically possible and "undetected."
(5) NMFS incorrectly theorized the Sakhalin-Amur beluga population might be declining based on an improper comparison of (a) historic population estimates derived from multiplying the number of whales sighted on the surface during an aerial population survey by a correction factor of 12 (to account for unseen and submerged animals) with (b) current population estimates derived from multiplying the number of sighted whales by only 2. Such an apples-to-oranges analysis could never survive unbiased scientific review, particularly when application of the same correction factor to both aerial surveys shows the population is increasing.
(6) To further create the illusion of a possible declining beluga whale population, NMFS improperly compared the maximum possible historic population to the current minimum possible population, and otherwise manipulated the statistics. Comparing maximums to minimums and similar statistical manipulations violates common sense and basic scientific method.
(7) Despite finding it "extremely unlikely" that approving the import would lead to more imports of belugas into the U.S., NMFS concluded, without any evidentiary basis, that this import could create a demand in other nations to remove belugas from the Sea of Okhotsk in violation of the MMPA.
(8) NMFS incorrectly decided the MMPA applies extraterritorially and demanded that Russia and its citizens cease collecting and then exporting beluga whales to other nations, an action unsupported by applicable legal precedent.
(9) NMFS erroneously concluded 5 of the 18 belugas were nursing when collected, even though no mother-calf pairs or lactating females were collected and even though NMFS has no evidence of any nursing behavior.
(10) Through the totality of their errors and denial of the permit, NMFS's decision ignores the public policy that the prudent, properly regulated public display of marine mammals is an important aspect of public education and public support for conservation, and also allows for critically important conservation research. This
Georgia Aquarium's arguments on appeal cast a wide net, but haul in little of substance. As succinctly explained by another court faced with similar questions posed here:
Fed'n of Japan Salmon Fisheries Co-op. Ass'n v. Baldridge, 679 F.Supp. 37, 46 (D.D.C.1987) aff'd and remanded sub nom. Kokechik Fishermen's Ass'n v. Sec'y of Commerce, 839 F.2d 795 (D.C.Cir.1988) (citing Comm. for Humane Legislation, Inc. v. Richardson, 414 F.Supp. at 310); see also 118 Cong.Rec. 7686 (1972). Here, NMFS found that "the historical information required to support the Aquarium's assertion that [its] import will meet the MMPA [was] lacking." (AR 8998 at 17447.)
The Agency followed the statutory mandate of the MMPA in its denial of the Aquarium's permit application. First, NMFS's determination that the Sakhalin-Amur stock is likely declining and is subject to adverse impacts beyond the ongoing live-capture operations cited by Georgia Aquarium complies with the primary purpose of the MMPA to prevent marine mammals species and population stocks from "diminish[ing] beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, [and] below their optimum sustainable population." 16 U.S.C. § 1361(2). Second, NMFS's interpretation of its regulation as requiring that Georgia Aquarium demonstrate that the permit would not result in any replacement takes of additional beluga whales by the Russian capture operation is consistent with the purpose of the MMPA to prevent the decline of this, stock of whales below its optimum sustainable population. And third, NMFS's finding that some of the beluga whales proposed for import, estimated to be approximately 1.5 years old at the time of capture, were potentially still nursing and not yet independent of their mothers is based on unrebutted scientific literature that beluga whales are not likely fully independent and still rely to some extent on their mother's milk until 3 years of age.
For these reasons, set forth more fully below, the Court finds that NMFS's permit denial was consistent with the purposes and requirements of the MMPA, and therefore was not arbitrary and capricious.
Georgia Aquarium's permit application seeks authorization from NMFS to import eighteen previously captured beluga whales from Russia's Sea of Okhotsk Sakhalin-Amur provisional management stock.
Table 1. Beluga Whales Requested for Import ID No. Sex Estimated Estimated Estimated Date of Estimated Weight Length Age 1 Collection Age at (kilograms) (meters) Collection 5/10 F 500 2.94 7.5 Aug-Sep.2010 5.5 7/10 M 350 2.74 3.5 Aug-Sep.2010 1.5 5/10 M 530 2.90 5.5 Aug-Sep.2010 3.5 11/10 M 520 3.30 7.5 Aug-Sep.2010 5.5 12/10 M 560 3.22 7.5 Aug-Sep.2010 5.5 1/10 M 250 2.66 3.5 Aug-Sep.2010 1.5 2/10 M 310 2.62 3.5 Aug-Sep.2010 1.5 3/10 M 360 2.73 3.5 Aug-Sep.2010 1.5 6/10 M 460 3.20 7.5 Aug-Sep.2010 5.5 9/10 M 180 3.40 3.5 Aug-Sep.2010 1.5 10/10 M 650 3.52 11.5 Aug-Sep.2010 9.5 27/11 M 280 2.40 3.5 June 2011 2.5 24/11 M 500 2.92 5.5 June 2011 4.5 21/11 M 300 2.48 3.5 June 2011 2.5 23/11 M 350 2.70 3.5 June 2011 2.5 17/11 M 350 2.74 3.5 June 2011 2.5 75/06 M 880 3.80 11.5 June 2006 5.5 78/06 M 940 3.95 11.5 June 2006 5.5
(AR 8927 at 14286.) Because the subject whales were all originally captured prior to the permit request in 2006, 2010, and 2011, Georgia Aquarium's permit application states,
Prior to and in preparation for submitting its permit application, Georgia Aquarium joined with other public display institutions/aquaria to research beluga whales in the Sakhalin — Amur region in the Sea of Okhostk to assess the sustainability of livecapture removals and the effects on that population stock. This research was submitted to an independent scientific review panel under the International Union for Conservation of Nature (IUCN) for review and to determine a "potential biological removal level" (referred to as PBR) for this stock of whales. (AR 8927 at 14296.) "Potential biological removal level" is a defined term under the MMPA, meaning:
16 U.S.C. § 1362(20). The Act's OSP requirement is built into the calculation of PBR.
Georgia Aquarium's PBR calculation, based on aerial survey and population estimation data collected by Dr. Olga Shpak (of the A.N. Severtsov Institute of Ecology and Evolution, Russian Academy of Sciences) in 2009 and 2010, concluded that "the number of animals that could be removed without initiating a population decline" of the Sakhalin-Amur stock
(Id. at 14336.)
Georgia Aquarium compared this PBR to the number of removals solely from the existing live-capture operation in the Sakhalin Bay each year from 2000 to 2011,
(Id. at 14297.) The application then notes that:
(AR 8927 at 14296-14297.) Based on this data, Georgia Aquarium concluded that "[b]ecause this is below the lowest possible PBR of 30, the effects of combined takes of beluga whales from this area, including those that would be imported under the permit activity, are not [anticipated to result in adverse impacts on the Sakhalin-Amur stock."
NMFS determined that Georgia Aquarium failed to show that the requested import, by itself or in combination with other
(AR 8998 at 17422-23.) NMFS characterized the relevant issue' under the MMPA as whether "the beluga whale trade in the Sea of Okhotsk [is] sustainable[.]" (Id. at 17443.)
As explained further in Attachment 1 to the decision, "[t]he information available for [NMFS] to determine whether the Aquarium meets this criterion is considered data-poor and has considerable uncertainty. There is very little documented information about past abundance levels that can be compared to the present and there is limited information on past and current threats to this population." (Id. at 17443.) NMFS noted its concerns with the Aquarium's PBR-based analysis — offered to demonstrate that the Russian capture operation was sustainable at current levels — as follows:
(Id.)
Georgia Aquarium challenges as arbitrary and capricious, NMFS's determinations
Georgia Aquarium asserts that the MMPA employs PBR to measure sustainability and that removals below PBR are sustainable and thus satisfy the criteria in 50 C.F.R. § 216.34(a)(4). Georgia Aquarium further contends its permit application meets this standard because the total number of whales collected and proposed for import (18) was below the calculated PBR (30). Thus, Georgia Aquarium challenges NMFS's rejection of PBR as an appropriate measure of the sustainability of the live-capture of beluga whales in the Sea of Okhostk.
Specifically, Georgia Aquarium asserts that NMFS's "theory that PBR cannot be used to assess the sustainability of takes is a newly-contrived standard" applied only to the Aquarium's permit application. According to Georgia Aquarium, prior to and after denying the Aquarium's permit application, NMFS's position has uniformly been that PBR is appropriate to assess the sustainability of removals from declining populations. As support for its position, Georgia Aquarium points to a purported "practice and policy" of NMFS using PBR for declining populations in issuing permits and other regulatory actions, including:
(1) a 2003 scientific research permit authorizing the lethal taking of 20 Steller sea lions from an endangered and declining population, (Doc. 55-1 at 1819, Exhibit 1 to Mot.);
(2) a 2005 rule setting the annual Pribilof Islands fur seal subsistence take ranges as required by regulations at 50 C.F.R. § 216.72(b) to establish the number of seals that may be taken by Alaskan Native (Aleut) residents annually on the Pribilof Islands, (Doc. 55-1 at 19);
(3) a 2007 scientific research permit allowing the lethal taking of northern fur seals from a declining population of the eastern Pacific stock, (Doc. 55-1 at 20);
(4) a 2012 rule to implement a False Killer Whale Take Reduction Plan to reduce incidental mortalities and injuries of the Hawaii Pelagic and Hawaii Insular stocks of false killer whales in the Hawaiibased commercial longline fishers, (Doc. 55-1 at 21);
(5) a 2014 scientific research permit authorizing the lethal taking by NMFS scientists of 22 northern fur seals from the declining eastern Pacific stock, (Doc. 55-1 at 21, Exhibit 2 to Mot.);
(6) the 2014 Final Supplemental Environmental Impact Statement Setting the Annual Subsistence Harvest of Northern Fur Seals on the Pribilof Islands for the purpose of conserving northern fur seals and manage the subsistence harvest of fur seals on St. George Island for their longterm sustainable use for purposes of cultural continuity, food, clothing, arts, and crafts, (Doc. 55-1 at 22); and
(7) litigation arising out of a challenge to a 2005 permit authorizing the lethal taking of 20 animals from the declining Steller sea lion in Humane Society of the U.S. v. Department of Commerce, 432 F.Supp.2d 4 (D.D.C.2006), in which NMFS stated in its summary judgment briefing that stated the "plain language" of the MMPA provides that "PBR analysis may be used to analyze" the impact of removing these marine mammals from the wild. (Doc. 55-1 at 23, Exhibits 5 and 6 to Mot.)
In response, NMFS asserts that neither the MMPA, the regulations, nor the Agency's practice or policy mandate reliance on PBR in this case. According to the Agency, PBR was added to the MMPA as a U.S. commercial fisheries management tool in 1994, not as a test governing the import of marine mammals for public display. (Doc. 59-1 at 34-35 (citing S.Rep. No. 103-220 at 1, reprinted in 1994 U.S.C.C.A.N. 518 (1994)).) Georgia Aquarium acknowledges that PBR is not a required MMPA standard for determining an allowable take level in this context, but asserts that PBR is consistently used as a metric because it is the most applicable measure of take levels.
PBR is a formula incorporated into Sections 1386 and 1387 of the MMPA governing domestic stock assessment reports and marine mammal take reduction plans for U.S. fisheries.
As Georgia Aquarium points out, however, NMFS has considered PBR outside of the U.S. commercial fisheries context. But, according to NMFS Georgia Aquarium "significantly overstates NMFS's limited use of PBR" in other cases and its suggestion that the Agency has consistently used PBR in a large number of cases is misleading. The majority of examples cited by Georgia Aquarium as evidence that it was entitled to rely on PBR involve the same two species and same type of activity merely for different years: (1) scientific research for Steller sea lions listed under the Endangered Species Act ("ESA"); (2) scientific research for depleted northern fur seals; and (3) native subsistence take of northern fur seals that is exempted from the MMPA 16 U.S.C. § 1371(b).
The Court is not convinced by Georgia Aquarium's claim that NMFS has relied on PBR as a talismanic test of sustainability in every one of its decisions under the MMPA. As NMFS has demonstrated from the specific administrative decisions relied on by Georgia Aquarium, NMFS has placed variable weight on the value of PBR, including: (1) in its 2007 final environmental impact statement for scientific research on Steller sea lions and northern fur seals, NMFS identified PBR as only "an upper threshold level of mortality" and stated that it was not "obligated to authorize takes up to these threshold levels.... These upper limits will be used only as guidelines for the permitting process," (Doc. 59-1 at 37, citing http://www.nmfs. noaa.gov/pr/pdfs/permits/eis/fpeis.pdf), and (2) for subsistence take of northern fur seals, NMFS found that allowing harvest up to the level of PBR would have an adverse impact: "[a]lthough by definition and modeling, removal at or below the PBR level is expected to allow the population to recover, the unknowns combined with the decreasing population result in a conditionally significant adverse effect to the population." (id., citing http://alaska fisheries.noaa.gov/protectedresources/seals/fur/eis/final0505.pdf). Indeed, as the Marine Mammal Stock Assessment Guidelines which discuss the use of PBR explain, "PBR is an upper limit to removals that does not imply that entire amount should be taken" and when the Agency prepares stock assessments, "[e]stimates of PBR [and] human-caused mortality ... are required" considerations. (AR 8934 at 16325.) NMFS has shown that where the the when Agency prepares stock assessments, "[e]stimates of PBR [and] humancaused mortality ... are required" considerations. (AR 8934 at 16325.) NMFS has shown that where Agency has considered PBR outside of the U.S. commercial fisheries context, it has treated PBR as only one "quantitative tool" and that it is not used as the sole basis for its impact analyses. And, even in the commercial fisheries context, PBR was not designed as an "absolute threshold" but is used as a guideline to identify where further incidental take reduction measures are warranted.
Finally, NMFS responds that it did not apply a "new" standard to the Aquarium by considering but declining to rely on Georgia Aquarium's PBR calculation in this case. Instead, NMFS applied the required
Georgia Aquarium asserts on appeal that its PBR calculation is the appropriate standard here because it is based on research by scientists with the A.N. Severtsov Institute of Ecology and Evolution of the Russian Academy of Science ("Severtsov Institute") completed in consultation with and peer reviewed by a panel of beluga experts chosen by the International Union for the Conservation of Nature and Natural Resources ("IUCN"). "Despite the unanimous conclusion of these experts, [NMFS] concluded that PBR could be exceeded due to removals from sources other than public display and, therefore, denied the Aquarium's permit." (Doc. 55-1 at 32.) Georgia Aquarium maintains that there is no evidence to support NMFS's claim of additional sources, of removal. This argument is fishy.
The principal reason for NMFS's denial of Georgia Aquarium's import permit application was that:
(AR 8998 at 17445.) NMFS's conclusion was in direct response to a concern raised by the Marine Mammal Commission in its review of Georgia Aquarium's proposed PBR calculation. The Marine Mammal Commission was concerned that:
(AR 8730 at 10095.) In its discussion of PBR, the IUCN panel recognized the "[p]otential biases of concern when applying any guideline for sustainability of takes are under-estimation of human-caused mortality, over-estimation of Rmax [the maximum rate of population increase], and estimating the wrong numbers for the population size ...." (AR 8915 at 13788.)
Relying on documents submitted by the Georgia Aquarium in conjunction with its permit request, NMFS cited at least six potential sources of removal of Sakhalin-Amur beluga whales that, when added to live captures (for public display), could cause PBR to be exceeded. Georgia Aquarium's own permit application materials demonstrate that NMFS's conclusion is not arbitrary and capricious. The guidelines on PBR require that other sources of human-caused mortality should be considered. NMFS's decision to deny Georgia Aquarium's permit application because its PBR calculation failed to take into account these other potential mortality sources is therefore consistent with the MMPA.
Highlighted by NMFS in its decision document, the IUCN panel itself identified several human-related activities that may result in serious injury or mortality to Sea of Okhotsk beluga whales, including subsistence hunting, death during live-capture operations, entanglement in fishing gear, vessel strikes, climate change, and pollution. But as NMFS explained "[a]s noted in the application and the IUCN review, monitoring of other types of take in [the Sakhalin-Amur] region is low, if existent at all, and information concerning possible threats and mortality in this population of beluga whales are highlighted by a lack of substantiated data, and are largely anecdotal." (AR 8998 at 17445.)
On subsistence hunting, NMFS noted:
(AR 8998 at 17445-17446.) Shpak's 2013 report recounts the history of beluga whale hunting and harvesting practices in the Sakhalin-Amur area and provides information on recent and current harvest quotas authorized by the Russian government. Shpak notes that in Priamurye
Georgia Aquarium suggests that NMFS's reliance on Shpak's study regarding possible annual subsistence harvests of the whales by nearby villagers was misplaced. According to Georgia Aquarium, these villages are in the remote Shantar region of the Sea of Okhotsk, not in the Sakhalin-Amur region.
Another identified source of humancaused mortality noted by the IUCN panel is the accidental death of animals during live capture operations. NMFS determined from the information provided by Georgia Aquarium that:
(AR 8998 at 17446.) Georgia Aquarium disputes NMFS's determination that death associated with capture for public display is a relevant source of additional humancaused mortality because NMFS "cite[s] only one such death over the four years for
The third source of concern for NMFS — entanglement in fishing gear — was noted by Georgia Aquarium in its application as one of the "primary human mortality risks to these beluga whales." (AR 8927 at 14322.) However on appeal, Georgia Aquarium discounts NMFS's conclusion that entanglement is a source of human-caused mortality because in 100 years "only a few cases have been reported." The IUCN report on which both Georgia Aquarium and NMFS rely, emphasizes a lack of information regarding entanglement for this stock and states:
(AR 8915 at 13785.)
(AR 9221 at 21551.)
Based on this information, NMFS noted:
(AR 8998 at 17445.) The Court finds no error in NMFS's consideration of the evidence in the Administrative Record provided by Georgia Aquarium that there have been some unquantifiable "[i]nstances of beluga whale entanglements in coastal salmon traps, beach-set salmon gillnets, and illegal sturgeon nets [as] reported by local fishermen." (Id.) While there only may have been few cases reported, the evidence is that there were in fact recently reported cases of such deaths. Based on these documented instances of additional human-caused mortality — NMFS's refusal to discount these other sources of mortality in its sustainability analysis was not arbitrary and capricious.
NMFS acknowledges that based on the lack of information of serious injury it is unlikely that vessel strikes are a significant source of mortality for beluga whales in the Sakhalin-Amur region.
(AR 8998 at 17446-17447.)
The core of NMFS's conclusion is that "[a]lthough the full extent of other sources of mortality cannot be determined, it cannot be fully discounted or assumed to be zero" as Georgia Aquarium's permit application suggests. Despite the "limitations on data about these sources of humancaused mortality other than live capture removals," NMFS rationally concluded that it "cannot discount the likelihood that some unquantifiable level of additional human-caused mortality is occurring." (AR 8998 at 17447.)
Georgia Aquarium asserts that because NMFS offered no evidence or proof of these additional sources, NMFS's conclusion is nothing more than speculation about a theoretically possible, but undetected, population decline. Georgia Aquarium asserts that this is undermined by NMFS's own statement that:
(AR 8998 at 17449.) However, Georgia Aquarium's selective citation takes NMFS's comment out of context. As NMFS goes on to state, its analysis of the population trend for the Sakhalin-Amur stock is evidence that human actions other than live captures are adversely impacting the stock:
(Id.)
NMFS asserts in its brief, that "[alt most there is a lack of evidence of the exact source and amount of other mortality. Given the lack of reliable monitoring in the region, NMFS reasonably declined to rely on the Aquarium's `absence-of-evidence' argument regarding other mortality. The Aquarium bore the burden of proving that the imports in combination with other activities, will not likely have a significant adverse impact on the stock." (Doc. 59-1 at 29 (citing 50 C.F.R. § 216.34(a)(4).)) According to NMFS, Georgia Aquarium's PBR left too much room for error where
(Id.) NMFS acknowledges that the evidence regarding other mortality is "anecdotal" and that evidence in isolation might have supported the opposite conclusion. But here the Aquarium's own application showed that the Sakhalin-Amur stock had shrunk in size relative to the Shantar stock, and the Agency's detailed analysis indicated that human impacts were to blame.
NMFS maintains it could have stood on its analysis of Georgia Aquarium's PBR calculation, discussed herein, as its only basis for denying Georgia Aquarium's permit under 50 C.F.R. § 216.34(a)(4). At the direction of the Agency's Chief Science Adviser, Dr. Richard Merrick, however, NMFS also considered Georgia Aquarium's PBR-based analysis under a population management framework established by the International Council for the Exploration of the Seas or "ICES." (AR 8998 at 17324; AR 9018.) NMFS explained that although "the ICES
The "Cliff's Notes" version of the Agency's ICES analysis, as summarized in its brief is as follows:
(Doc. 59-1 at 30.)
The ICES framework "describes a set of tiered reference points to be used when scientists are required to provide advice... in situations where data available to scientists are either data-rich or datapoor." (AR 8998 at 17324.) Under this framework, stocks without a recent time series of at least three population estimates are considered data-poor:
(AR 8998 at 17450.) In other words, if a stock only has one recent population estimate, PBR is appropriate only if that estimate is greater than 30% of the historical maximum size of the stock. NMFS concluded that the Sakhalin-Amur beluga stock is a data-poor stock under the ICES framework because "there is a 2010 abundance
Having determined the Sakhalin-Amur stock to be data-poor, NMFS next considered the ICES criteria to determine whether PBR is an appropriate measure of harvest/removal levels:
(AR 8998 at 17450-17451.) Because the Sakhalin — Amur stock had a recent abundance estimate from 2010, NMFS reasoned that:
(AR 8998 at 17451.) Thus, NMFS reviewed the population data and studies provided by Georgia Aquarium to determine the historical maximum for the Sakhalin-Amur stock:
(AR Doc. 8998 at 17451-17452.) As there was "no reliable estimate of a historical maximum," NMFS ultimately concluded that:
(AR 8998 at 17451-17452.)
Georgia Aquarium challenges NMFS's reliance on the ICES criteria to reject PBR and conclude that no belugas should be taken from the Sakhalin-Amur stock because (1) the ICES model has not been adopted by regulation as the U.S. standard, (2) in order to preclude the use of PBR, NMFS improperly compared the maximum possible value in a 7,000-10,000 population range to a minimum possible current population level (2,891-2,972) to determine a value below 30% [i.e., 29.72% = 2,972 ÷ 10,000 or 28.91% = 2,891 ÷ 10,000], (3) NMFS's estimate of the historic maximum population is wrong, and (4) NMFS failed to offer proof that the Sakhalin-Amur population is currently declining based only on evidence of a historical decline. Georgia Aquarium seeks to drag the Court through the weeds of NMFS's complex analysis in an effort to demonstrate the alleged arbitrary and capricious nature of the decision to use the ICES framework. In the hope of not losing the forest from the trees, the Court keeps in mind the central point of the Agency's conclusion — the lack of data to support the Aquarium's permit and data deficiencies in light of the purposes of the MMPA — while it unpacks NMFS's analysis in conjunction with the Aquarium's alleged errors.
Beyond arguing that the ICES criteria is not expressly incorporated into the MMPA regulations, Georgia Aquarium does not offer any reason or authority why NMFS's consideration of the ICES criteria in assessing sustainability of permitted activities is arbitrary and capricious. The United States has been a member of the International Council for the Exploration of the Sea (ICES) since 1912 with government delegates from the National Oceanic and Atmospheric Administration serving on the ICES Counci1.
Next, Georgia Aquarium asserts that comparing "a maximum possible population to a minimum possible population is a methodology that could never survive scientific peer review[,] is inherently arbitrary and capricious [and] shows that Defendants' attempt to rely on the ICES model is inappropriate." (Doc. 55-1 at 25.) According to Georgia Aquarium, "only by comparing the maximum possible value in a 7,000-10,000 population range to a minimum possible current population level (2,891-2,972) can Defendants squeeze a value below 30% [i.e., 29.72% (2,972 ÷ 10,000) or 28.91% (2,891 ÷ 10,000)] and thereby claim the ICES model precludes the use of PBR."
NMFS responds that its comparison of the Sakhalin-Amur stock's current minimum population size to an estimate of its historical maximum population size is the precise comparison required by the ICES criteria. (AR 8998 at 1745051 (summarizing ICES criteria as calling for a comparison of the current size of the stock to its historical maximum size).) The Aquarium asserts that comparing a "maximum" to a "minimum" is inappropriate "if one wants to know by what percent the population has actually increased or decreased." According to NMFS, the ICES criteria are not used for this purpose. Instead, NMFS explains, the ICES criteria are used to provide a conservative view of whether the stock's current size is below 30% of its historical level, before removals and other human-caused mortality. (AR 8998 at 17450-51 ("allowing harvests or removals at a PBR level under the ICES protocol is contingent upon the stock's abundance status with respect to the historical maximum").)
As further explained by NMFS, Georgia Aquarium's purported apples-to-apples comparison is, as one jurist might put it, "pure applesauce." King v. Burwell, ___ U.S. ___, 135 S.Ct. 2480, 2501, 192 L.E d.2d 483 (2015) (Scalia, J., dissenting) ("pure applesauce" is commonly interpreted to mean nonsense). According to NMFS, a "minimum" population estimate is more conservative (precautionary) compared to an "actual" estimate. "Minimum population estimate" is defined under the MMPA as "an estimate of the number of animals in a stock that is (1) based on the best available scientific information on abundance, incorporating the precision and variability associated with such information and (2) provides reasonable assurance that the stock size is equal to or greater than the estimate." 16 U.S.C. § 1362(27). The 2010 minimum population estimate
In short, Georgia Aquarium's contention that the Agency erred by using the statutory guideline for a "minimum population estimate" in evaluating the ICES framework has no basis. Therefore, the Court finds that NMFS reasonably used the 2010 minimum population estimate for the Sakhalin-Amur stock — the very same estimate that the Aquarium used for its proposed PBR calculation. (AR 8927 at 14335.) See, e.g., Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264 (11th Cir.2009) (stating that an agency action will be found arbitrary and capricious only when 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").
The remainder of Georgia Aquarium's challenge to the ICES criteria focuses on a criticism of the specific underlying population estimates. Georgia Aquarium asserts that NMFS's "theory that the Sakhalin-Amur beluga population has declined by 70% [under the ICES framework] is based principally on the claim that the historic Sakhalin-Amur beluga population was 10,000" and that NMFS's "reliance on the 10,000 number is wrong." (Doc. 55-1 at 26-27.) A close reading of NMFS's decision reveals the fallacy in the Aquarium's argument — NMFS considered the 10,000 number offered by Georgia Aquarium in its application but determined it was likely inaccurate and relied on a higher number that NMFS found more supportable based on its consideration of all the population evidence.
(AR 8927 at 14316.)
Georgia Aquarium does not explain why NMFS's consideration of Berzin and Vladimirov's 1989 population estimate is in error.
As noted by NMFS, more recent research indicates that the 12x correction factor used in the older surveys is likely inflated and because of the different survey methodologies used, it is not appropriate
Georgia Aquarium persistently asserts that NMFS's own words confirm that it did make the comparison:
(AR 8998 at 17451.) The flaw in this argument, however, is that when the statement is read in context and in its entirety, it is clear from the decision document that NMFS did not directly compare the 2010 Shpak population estimate to the 1989 Berzin and Vladimirov population estimate. As NMFS explains in its decision, while the 2010 Shpak population abundance estimate meets ICES standards, permitting "removals at a PBR level under the ICES protocol is contingent upon the stock's abundance status with respect to the historical maximum [but] there is no reliable estimate of a historical maximum" for the Sakhalin-Amur stock. (AR 8998 at 17451.)
When NMFS plugged the 1989 (10,000) and 2010 (2,891-2,972) estimates into the ICES framework, the result was a current abundance below the ICES harvest reference point of 30%. (Id.) NMFS goes on to explain that:
(AR 8998 at 17451.) Georgia Aquarium's reliance on Native Village of Chickaloon v. Nat'l Marine Fisheries Service, holding that "significant mathematical errors can render an agency decision arbitrary and capricious" is therefore inapplicable. 947 F.Supp.2d 1031 (D.Alaska 2013) (finding that the agency's "take calculations are clearly erroneous because they inexplicably mix corrected population abundance figures with uncorrected survey density estimates, thereby failing to adequately calculate that which the agency was actually trying to calculate"). Accordingly, the Court finds that NMFS provided a reasoned basis for its consideration of the
Georgia Aquarium's final argument, that NMFS failed to offer proof that the Sakhalin-Amur population is currently declining, evidences its misunderstanding of the purpose of the MMPA and its own burden in seeking a permit under the statute's issuance criteria. In its analysis of the population studies and data submitted by Georgia Aquarium, NMFS found that:
(Id. 17447.) NMFS then discussed its evaluation of three scenarios to determine how the population of this stock may have been impacted over time and concluded that "[a]ll three scenarios pointed to a decline in the stock" —
(AR 17449-17450.)
Evidence in the record submitted by Georgia Aquarium in conjunction with its permit application, supports NMFS's finding that the Sakhalin-Amur beluga stock is likely declining.
(AR 8915 at 13789.) The Marine Mammal Commission ("MMC"), on which Georgia Aquarium relies as recommending the use of PBR in this case, also stated in its comments to NMFS on Georgia Aquarium's permit application:
The second task is to judge whether the Sakhalin-Amur aggregation can withstand such removals and maintain itself in a healthy state if it currently is healthy, or can recover to a healthy state if it is not. In the United States, the level that is used for distinguishing healthy from depleted marine mammal populations is 60 percent of the carrying capacity (Fed.Reg. 41:55536). In this case, the population's size is not known
(AR 8730 at 10094.)
(AR 8934 at 15868-15869.)
The question is not whether NMFS offered conclusive proof that the Sakhalin-Amur stock was declining in population. The question is whether Georgia Aquarium demonstrated, as it was required to do, that its requested import was consistent
Georgia Aquarium's final argument regarding PBR is that NMFS departed from its normal practice when computing the PBR against which to measure the proposed takes:
(Doc. 55-1 at 38-39.) According to the Aquarium's brief, when NMFS calculates actual population levels under the MMPA for non-endangered beluga whale populations in Alaska's Chukchi and Bering Seas, it multiplies the number of whales sighted on the surface by 2.62 to account for unseen, submerged whales and by 1.18 to account for difficult to see dark-colored juveniles. (AR 8933 at 15686.) If NMFS had followed this practice and used these correction factors to calculate the population numbers for the PBR formula, Georgia Aquarium asserts the annual PBR for the Sakhalin-Amur area would be 46. (Id. at 38, n. 26.)
This ship has sailed. Georgia Aquarium proposed the use of a PBR level of 30 in its own permit application. As the Aquarium's permit application states, "[a]s described in Appendix A accompanying this permit application, subsequent research and data analysis recommended by the IUCN panel indicate that the appropriate PBR is 30." (AR 8927 at 14296.) NMFS maintains that there is no MMPA practice of using a specific fixed survey correction factor for beluga whales as Georgia Aquarium contends — as is evidenced by the IUCN's discussion of various potential correction factors. Rather, "that is a scientific question for researchers in the field, not a matter of agency `practice.'" (Doc. 59-1 at 42.) NMFS relied on the Shpak survey estimates provided by Georgia Aquarium as peer reviewed by the IUCN in support of the Aquarium's PBR calculation. As noted in Georgia Aquarium's permit application, Shpak used a correction factor of 2.27x for her population estimates, which was lowered to a correction factor of 2x by the IUCN panel, and that was the correction factor ultimately used by Georgia Aquarium in determining the minimum population estimate for its PBR formula. (AR 8927 at 14321, 14336.) Had
The second permitting criteria at issue in this appeal, 50 C.F.R. § 216.34(a)(7), requires the permit applicant to show that "[a]ny requested import or export will not likely result in the taking of marine mammals or marine mammal parts beyond those authorized by the permit." NMFS interprets this regulation to require the permit applicant to show that "the import or export is not likely to result in replacement takes or otherwise increase demand for protected species or protected species parts resulting in takes to meet such anticipated demand." (AR 8998 at 17424.) To demonstrate compliance with this regulation in past import permit applications, NMFS had required confirmation or assurance from the prospective permittee that "the foreign shipping facility will not replace these animals with additional animals of the same species." (A.R. Doc. 8998 at 17424.)
In its permit application, Georgia Aquarium included a "Statement on Replacement of the Animals" as follows:
(AR 8927 at 14294.)
NMFS denied Georgia Aquarium's permit, finding that the Aquarium "had not demonstrated that the import will not result in taking of marine mammals beyond those authorized by the permit" because "additional beluga whales are likely to be captured as part of the ongoing, legal marine mammal capture operation in Russia:"
(AR 8998 at 17424.)
Live captures of beluga whales began in the Sakhalin Bay region in 1986 and have been ongoing for 30 years. Since 1992, when Canada ceased its live capture operations, Russia has been the sole regular
Thus, unlike the previous import permits for beluga whales where confirmation was provided by the exporting facilities that there was no intention on their part to replace the exported animals, NMFS recognized this case as different "in that the ongoing, legal marine mammal capture operation in Russia is expected to continue [and] we cannot obtain the assurance that an additional 18 whales would not be captured in the future in place of the 18 whales requested for import." (Id.) For example, in 2004, NMFS granted a permit to SeaWorld to import a beluga whale and dolphin from the Duisburg Zoo in Germany for purposes of improving their quality of life at SeaWorld's facility. (See Doc. 86-1.) SeaWorld obtained a written letter from the Director of the Duisburg Zoo that the zoo "has no intentions of acquiring substitute animals for either species form the wild or from other facilities. The long term collection planning for the zoo does not include keeping either species in the future." (Id. at 6.) Subsequently in 2005, NMFS granted Georgia Aquarium a permit to import two beluga whales, as a medical rescue, from a Mexican Aquarium. (See Doc. 60-1.) In conjunction with that permit application, Georgia Aquarium secured a written confirmation from the Mexican aquarium that it had no intention of acquiring additional belugas to be housed at its facility as replacement for the two belugas sold to Georgia Aquarium. Id. Similarly, In 2006, NMFS granted a permit to SeaWorld to import captive-bred beluga whales from Marineland of Canada where the application provided that "[t]he importation will not result in the collection of beluga whales from the wild nor will replacement animals be collected for Marineland Niagara." See Permit Application available at http://www.nmfs.noaa.gov/pr/pdfs/permits/seaworleL116-10084.pdf. Because Georgia Aquarium could not provide assurance that the Russian facility would not replace the 18 imported beluga whales with additional takes from the same stock, NMFS concluded that the Aquarium did not meet the statutory requirement under 50 C.F.R. § 216.34(a)(7).
Georgia Aquarium challenges the denial of its permit application, contending that NMFS (1) improperly interpreted 50 C.F.R. § 216.34(a)(7) by applying the MMPA extraterritorially, (2) improperly relied on a proposed rule that was not adopted for its replacement take requirement, and (3) applied the wrong standard and incorrectly concluded that Georgia Aquarium's permit would likely result in replacement takes.
"An agency's interpretation of its own regulations is `controlling unless
The Supreme Court has repeatedly recognized that although "Congress has the authority to enforce its laws beyond the territorial boundaries of the United States, ... that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." E.E.O.C. v. Arabian Am. Oil Co. ("Aramco"), 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991), superseded by statute on other grounds by Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citing Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284-285, 69 S.Ct. 575, 93 L.Ed. 680 (1949)). Courts therefore "assume that Congress legislates against the backdrop of the presumption against extraterritoriality"
Georgia Aquarium relies on United States v. Mitchell, 553 F.2d 996 (5th Cir. 1977) as support for its assertion that the MMPA was not intended to apply to conduct in foreign countries. In Mitchell, the court addressed the question of the extraterritorial scope of the MMPA in the context of a criminal prosecution of an American citizen who, pursuant to a permit from the Bahamian government, captured 21 dolphins within the territorial waters of the Bahamas on behalf of a Bahamian citizen for the purpose of exporting the dolphins to Great Britain. Mr. Mitchell challenged his criminal convictions
Id. at 1004.
In response, NMFS asserts not that the MMPA was intended to apply extraterritorially, but that the presumption against extraterritoriality has no application to its denial of a permit to import the whales into the U.S. "By definition, an extraterritorial application of a statute involves the regulation of conduct beyond U.S. borders." Stevens v. Premier Cruises, 215 F.3d 1237, 1242 (11th Cir.2000) (quoting Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528, 531 (D.C.Cir. 1993) and Reyes Fuentes v. Shannon Produce Farm, 671 F.Supp.2d 1365, 1371 (S.D.Ga.2009)). Thus, "the presumption against extraterritoriality is not applicable when the conduct regulated by the government occurs within the United States ... Even where the significant effects of the regulated conduct are felt outside U.S. borders, the statute itself does not present a problem of extraterritoriality, so long as the conduct which Congress seeks to regulate occurs largely within the United States." Environmental Defense Fund, Inc. v. Massey, 986 F.2d at 531-32; Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 921-922 (D.C.Cir. 1984) ("In the context of remedial legislation, prohibition of effects is usually indivisible from regulation of causes ... Territoriality-based jurisdiction thus allows states to regulate the conduct or status of individuals or property physically situated within the territory, even if the effects of the conduct are felt outside the territory... Conversely, conduct outside the territorial boundary which has or is intended to have a substantial effect within the territory may also be regulated by the state.")
Because the whales are to be imported into the United States, NMFS's interpretation of 50 C.F.R. § 216.34(a)(7) is that
Thus, Georgia Aquarium's reliance on Mitchell does not resolve the question before this Court. In Mitchell, the court found that the MMPA could not be applied extraterritorially to criminalize an American citizen for his conduct in another country. Mitchell does not in any way touch on Georgia Aquarium's argument here — that NMFS's application of the MMPA's import prohibitions are being extraterritorially applied to bar the conduct of a foreign country. Unlike this case, Mitchell did not involve an attempted import of the dolphins into the U.S. Indeed, the conduct in Mitchell bore no ties to the U.S. other than being carried out by an American citizen who planned to establish a dolphincapturing business outside of the U.S. Thus, the court:
553 F.2d at 1004. In Mitchell, both the conduct and its effects occurred wholly in a foreign country. Here, Georgia Aquarium is seeking to import the whales into the U.S. — the precise conduct being regulated by NMFS. Any incidental effect on the Russian capture operation caused by conditions placed on any import permit do not result in an improper extraterritorial application of the Act because the import occurs wholly within the U.S. Environmental Defense Fund, Inc. v. Massey, 986 F.2d at 531. Contrary to Georgia Aquarium's arguments, NMFS's denial was focused on the discrete act of importation — which primarily occurs in this country, not extraterritorially. NMFS's permit denial is thus not inconsistent with Mitchell.
Georgia Aquarium goes overboard in its argument that in denying its import permit, NMFS "demand[ed] that Russia and its nationals cease collecting and exporting beluga whales" and that such demands "effectively precludes U.S. facilities from seeking to import such animals in the future" in violation of the MMPA which "allows for the continuing import of marine mammals for public display in the United States." (Doc. 55-1 at 49 (arguing that "it defies logic to assert Congress intended to prevent public display facilities from importing animals by requiring that a country with a live capture program for public
In addition, Georgia Aquarium's arguments presume that — contrary to the express purpose of the MMPA — the limited exceptions for public display and scientific research permits in section 1374 opened the floodgates for unfettered importation of marine mammals. Nowhere does the MMPA "allow[ ] for the continuing import of marine mammals for public display in the United States" or the unfettered right to such importation. (Doc. 55-1 at 49) (emphasis in original). Instead, section 1374's permitting scheme sets forth exceptions to the moratorium on the taking and import of marine mammals for purposes of public display if certain requirements of the MMPA are met. NMFS's interpretation of the issuance criteria in 50 C.F.R. § 216.34(a)(7) is not read in vacuum. Considered in conjunction with the other issuance criteria, without sufficient population data necessary to support a sustainable live-capture operation of a likely depleted stock with government-issued quotas above the Aquarium's own calculated PBR, NMFS reasonably determined that Georgia Aquarium failed to demonstrate that its permit would not result in the taking of additional animals beyond those authorized by the permit.
For these reasons, the Court rejects Georgia Aquarium's argument that NMFS's interpretation of 50 C.F.R. 216.34(a)(7) is an improper extraterritorial application of the MMPA.
In denying Georgia Aquarium's permit application based on its failure to show that "the import ... is not likely to result in replacement takes or otherwise increase demand for [the] protected species... resulting in takes to meet such anticipated demand," NMFS relied in part on a parenthetical example in the text of a 1993 Proposed Rule. (AR 8998 at 17424). NMFS acknowledges that the "replacement take" language was not included in the final regulation, but according to NMFS it "describes the intent of this criterion" and has been consistently applied by NMFS in past permit decisions. (Id.)
In its permit application, Georgia Aquarium accepted NMFS's interpretation of the criterion in 50 C.F.R. § 216.34(a)(7) as requiring a showing that the permit will not contribute to "replacement takes" by incorporating that terminology in its permit application. (AR 8927 at 14294.) Now on appeal, Georgia Aquarium challenges NMFS's reliance on a proposed rule that was never promulgated. (Doc. 55-1 at 43-44.) The 1993 Proposed Rule covered expansive revisions to the MMPA,
61 Fed.Reg. 21926, 21926 (May 10, 1996).
The squabble is this. The portion of the 1993 Proposed Rule regarding permit issuance criteria provided that for the issuance of a special exception permit, the applicant must demonstrate that "[g]ranting any requested import or export is not likely to result in a take of protected species or protected species parts other than that authorized by the permit (e.g., the import or export is not likely to result in replacement takes or otherwise increase demand for protected species or protected species parts resulting in takes to meet such anticipated demand)." 58 Fed.Reg. 53320, 53342 (Oct. 14, 1993) (emphasis added). The Final Rule provides that for any permit issued under the MMPA, the applicant must demonstrate that "any requested import or export will not likely result in the taking of marine mammals or marine mammal parts beyond those authorized by the permit." 61 Fed.Reg. at 21936. The text of the final regulation is virtually the same as the proposed rule but for the omission of the underlined explanatory "e.g." parenthetical.
Georgia Aquarium asserts that because the final rule implements only a part of the proposed rule, NMFS's interpretation based on the proposed rule has no deferential value. "Agency interpretations are entitled to respect to the extent that those interpretations have the power to persuade." United States v. R & F Properties of Lake Cnty., Inc., 433 F.3d 1349, 1357 (11th Cir.2005) (internal citations and quotations omitted); see also Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1238 (11th Cir.2002) (recognizing that Skidmore standard applicable to courts when considering the deference to be accorded to agency rulings, interpretations and opinions, dictates that the "weight of such [an agency] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control"). Deference to an agency interpretation is all the more appropriate when it concerns a complex and highly technical regulatory program "in which the identification and classification of relevant criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns." Sarasota Mem'l Hosp. v. Shalala, 60 F.3d 1507, 1511 (11th Cir.1995) (citations and internal quotation omitted); accord Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1002-03, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (reaffirming the principle of judicial deference to agency interpretations on questions involving subject matter that is technical, complex, and dynamic, because the agency is in a far better position to address such questions than the courts are). "An agency's expertise is superior to that of a court when a dispute centers on whether a particular regulation is `reasonably
Georgia Aquarium implies that the replacement take provision in the Proposed Rule was altered due to "substantial changes to the public display provisions of the [MMPA], eliminating the basis for many of the provisions that had been included in the proposed rule." (Doc. 55-1 at 44.) According to NMFS, however,
(Doc. 59-1 at 46, n. 14.) As the permit issuance criteria apply to all types of permit requests under the MMPA, not just public display permits, Georgia Aquarium's suggestion that the "replacement take" language was intentionally removed as part of some overhaul of the public display provisions is unfounded.
The cases Georgia Aquarium relies on for the proposition that NMFS cannot rely on the 1993 Proposed Rule because "a proposed regulation does not represent an agency's considered interpretation of its statute" do not squarely address the issue before this Court or control here. (Doc. 55-1 at 44.) That issue is whether an agency can look to a proposed rule for guidance in interpreting its regulations. For example, in Commodity Futures Trading Comm'n v. Schor, the D.C. Circuit declined to defer to the CFTC's interpretation of its authority to administer a reparations procedure for alleged violations of the Commodity Exchange Act "CEA" or CFTC regulations. 478 U.S. 833, 836-45, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986). Specifically, the court declined to defer to the CFTC's position that it has jurisdiction over all counterclaims, not just those arising under the CEA or the CFTC, in part, because, the CFTC had proposed a rule permitting jurisdiction over a narrower set of counterclaims and thus "the Commission had not maintained a consistent position on the scope of its authority to adjudicate counterclaims." Id. at 844, 106 S.Ct. 3245. The Supreme Court disagreed, and found that,
Id. at 845, 106 S.Ct. 3245. In Schor, the CFTC never actually adopted or implemented an interpretation restricting its authority to adjudicate common law counterclaims, meaning it never varied from its promulgated counterclaim rule in form or in practice.
Georgia Aquarium similarly relies on Clay v. Johnson for the assertion that "a proposed regulation does not represent an agency's considered interpretation of its statute, and therefore is not entitled to deference." 264 F.3d 744, 750 (7th Cir. 2001). Clay involved the effect of the promulgation of a new rule by the Board of Governors of the Federal Reserve System and whether the rule was intended to change the existing substantive law (and thus could not be applied retroactively) or whether the rule was intended to "simply clarify[ ] an unsettled or confusing area of the law, ... but restates what the law according to the agency is and has always been." Id. at 749. The district court in Clay found that (1) "the position the Board announced in its proposed version of [the rule] was patently inconsistent with the position the Board announced in the adopted version of [the rule]," (2) "it was incongruous for the Board to characterize both of [its] positions as a clarification of the existing law," and (3) "two such contradictory statements could [not] both be clarifications." Id. As a result, the district court determined that the adopted rule was a change in the law that could not have a retroactive effect. On appeal, the Seventh Circuit disagreed with the district court's assessment in light of Schor, where the Supreme Court "has explained that inconsistencies between an agency's proposed rule and a later-adopted rule are not a valid basis for refusing to defer to an agency's official interpretation of a statute it administers." Id. at 749-50 (holding that "the Board's retraction of its initial position is not sufficient to tax the Board with inconsistency.")
Thus, neither Schor nor Clay pronounce a general rule regarding the propriety of an agency's reliance on omitted language from a proposed rule in interpreting its existing regulations. Indeed, an agency's position, even if only presented in a proposed rule, "warrants respectful consideration" if it's position is consistent with the statute the agency is charged with implementing. See Wis. Dept. of Health & Family Servs. v. Blumer, 534 U.S. 473, 497, 122 S.Ct. 962, 151 L.Ed.2d 935 (2002) (finding that Secretary's interpretation of Medicaid law, based on proposed rule, was entitled to deference).
Nor do these cases resolve the question presented here — whether an agency's interpretation of its regulation, based in part on the language of a proposed rule, may be reasonable if the two rules are not inconsistent or contradictory. There is nothing inconsistent between a rule that provides that "the import will not likely result in the taking of marine mammals [ ] beyond those authorized by the permit" and a rule that sets forth an example of that requirement that "the import ... is not likely to result in replacement takes or otherwise increase demand for protected species ... resulting in takes to meet such anticipated demand." The Court does not view the replacement take example as an expansion of the final rule or a substantive change to the scope of the regulation as promulgated. Thus, NMFS's interpretation based, in part, on the language of the 1993 Proposed Rule is not per se arbitrary and capricious. Even without the parenthetical explanation in the proposed. rule, NMFS's interpretation of "replacement
Finally, NMFS argues that its interpretation is consistent with prior permit approvals where the Agency relied on written assurance from the foreign shipping facility that it would not replace the imported animals with substitute animals of the same species.
For these reasons, this Court finds that the Agency's interpretation is not plainly erroneous or inconsistent with 50 C.F.R. § 216.34(a)(7). Accordingly, the Agency's interpretation of its own regulation is entitled to deference.
Georgia Aquarium contests NMFS's determination its import permit would likely result in replacement takes on two grounds: (1) that there is no causal connection between granting the Aquarium's permit and Russia's continued acquisition of beluga whales, and (2) that the Agency applied the wrong evidentiary standard when ruling on the Aquarium's permit application.
First, Georgia Aquarium argues that 50 C.F.R. § 216.34(a)(7) requires a causal connection between the issuance of the permit and additional takes. Therefore, the crux of Georgia Aquarium's argument is that the permit will not "result in the taking of marine mammals ... beyond those authorized by the permit" because Russia will continue to collect beluga whales from the wild regardless of the permit's outcome. (Doc. 55-1 at 42.) In fact, according to Georgia Aquarium, its "proposed import will actually prevent future collections from the wild" and will decrease demand for beluga whales in the U.S. because the import allows for a captive, self-sustaining U.S. population via the breeding cooperative. (Id. at 41, 50.) NMFS contends that even if Georgia Aquarium's argument is true, i.e., that U.S. imports of beluga whales will actually decrease, "it would only mean that U.S. facilities will not seek to import more belugas from the stock. It does not mean the foreign shipper will not obtain more belugas from the stock to replace those shipped to the U.S. in order to supply facilities in other countries." (Doc. 59-1 at 51.)
Georgia Aquarium has cited no authority for its assertion that the Agency must provide proof akin to proximate cause when it is the permit applicant's burden to demonstrate it has satisfied the statutory and regulatory issuance criteria for special exception permits. In addressing the question of causation in the context of the standing of environmental groups to challenge
561 F.2d at 1010, 1010 at n. 40 (citing S.Rep. No. 863, supra note 17, at 11, and referencing the Senate committee's consideration "that the adoption of this bill will place the United States in a position of world leadership in protection and conservation of marine mammals. The committee wishes to emphasize the need for international cooperation").
In response, NMFS asserts that it did not find that the permit would create a foreign market or worldwide demand for belugas, as the Aquarium claims. NMFS instead found only that it was likely that the permit would result in the taking of additional belugas from the Sakhalin-Amur stock and therefore required assurance that the shipper will not take additional belugas to replace those shipped to the U.S. The Court finds that the administrative record before NMFS adequately demonstrates the high likelihood that if the 18 beluga whales are imported to the U.S., the ongoing Russian capture operation — the sole global supplier of beluga whales — will replenish its inventory with additional captures. Russia has exported at least 237. beluga whales between 1990 and 2010 and the existing quotas for livecapture exceed the 18 whales subject to this permit. (AR 8998 at 17444; AR 8915 at 13784.)
Georgia Aquarium's final argument — that NMFS applied the wrong evidentiary standard — is a red herring. 50 C.F.R. § 216.34(a)(7) requires a permit applicant to show that "[a]ny requested import or export will not likely result in the taking of marine mammals or marine mammal parts beyond those authorized by the permit" (emphasis added). The Aquarium asserts that NMFS stated only that it was merely
(1) "[i]n fact, additional beluga whales are
Accordingly, the Court finds that NMFS considered and applied the correct standard under 50 C.F.R. § 216.34(a)(7) to Georgia Aquarium's import permit application.
Both the statutory text of the MMPA and its regulations prohibit the import for public display of any juvenile marine mammal which was "nursing at the time of taking." 16 U.S.C. § 1372(b)(2); 50 C.F.R. § 216.12(c)(2). Despite this express statutory prohibition, Georgia Aquarium's permit application does not directly address whether any of the juvenile whales were nursing at the time of capture. Instead, Georgia Aquarium's application included the estimated ages of the whales at the time of collection and noted that "[w]hen a group of belugas was detected, the collection team conducted an initial visual assessment using binoculars to estimate the number and age of the animals present, and to identify the presence of any newborn calves, mother-calf pairs, or juveniles less than one year old." (AR 8927 at 14286, Table 1; AR 8927 at 14292.) Five of the eighteen whales were estimated to be 1.5 years of age at the time of collection. (AR 8927 at 14286, Table 1.)
NMFS' denied Georgia Aquarium's permit, in part, because of its finding that Georgia Aquarium had failed to demonstrate that none of the 18 whales were nursing juveniles at the time of their capture. In its appeal, Georgia Aquarium asserts that in denying the permit, "Defendants erroneously concluded 5 of the 18 belugas were nursing when collected, even though no mother-calf pairs or lactating females were collected and even though Defendants have no evidence of `any nursing behavior." (Doc. 55-1 at 10.)
In its permit denial, NMFS interpreted the MMPA's statutory and regulatory prohibition on the taking of nursing mammals as requiring a consideration of whether "a calf is fully dependent on its mother for survival, or if it is a broader concept in that while the calf is in the process of becoming independent, it is still occasionally nursing from its mother." (AR 8998 at 17425.) Because it is "difficult to visually determine when an animal is fully independent" from its mother, NMFS reasoned it was consistent with the intent of the MMPA to restrict importation only "to those individuals that were taken after such time that they were considered to be independent of their mothers." (Id. at 17425-26.)
NMFS relied on scientific literature that "beluga calves are nursed for two years and may continue to associate with their mothers for a considerable time thereafter [and that] [t]he calving interval probably averages three years." (AR 8998 at 17426) (citing Reeves et al. 2002 (AR 8923)). According to the Aquarium's permit application, 5 of the 18 belugas were estimated to be only 1.5 years old at the time of capture. (AR 8927 at 14286.) As
According to Georgia Aquarium, even assuming some of the juvenile whales were nursing, the proper standard is whether nursing was obligatory, i.e., necessary for the whale's survival, pursuant to an agency policy adopted in 1975. See 40 Fed.Reg. 17845-17486 (April 23, 1975) (stating that nursing "means nursing which is obligatory for the physical health and survival of the nursing animal," based on "Congressional guidance ... that there should be a distinction. The distinction that was intended was that nursing be obligatory for sustenance and not for psychological purposes"
Ignoring the scientific literature supporting NMFS's determination, Georgia Aquarium asserts that NMFS has no evidence that five of the juvenile whales were actually nursing at the time of collection
As further support for its position, Georgia Aquarium contends that the record demonstrates that each of the five juveniles took food immediately after capture for 100% of their nutritional needs, and therefore, any nursing was not obligatory. The record actually indicates, as stated in Georgia Aquarium's application, that "[w]hile in the shore-side pens, the whales were fed locally caught herring and Icelandic capelin. In each case noted, the whales began taking food no later than the second day after collection, which is earlier than the typical normalization period for belugas." (AR 8927 at 14380.) Under the MMPA, however, the question is whether the juveniles were "nursing at the time of taking," not at some point after capture and removal from the wild. 16 U.S.C. § 1372(b)(2) (emphasis added).
In addition to the scientific support for its determination that the five belugas captured at 1.5
(AR 8998 at 17425-17426.)
In light of the plain language of the statute and the clear intent of the MMPA's prohibition to protect nursing animals in the wild, the Court finds that NMFS's determination was not arbitrary and capricious.
"Man has been involved with mammals of the sea since at least the beginning of recorded history, as sources of food, clothing and even of recreation." House Report No.92-707 on the passage of the Marine Mammal Protection Act, 1972 U.S.C.A.N.N. 4147, 4148. As the legislative history of the MMPA reveals:
Id. at 4144, 4145. Extensive legislative hearings "underscored the hazards and problems to which marine mammals are exposed today," and "[w]hen to these hazards there is added the additional stress of deliberate taking, it becomes clear that many marine mammals may indeed be in urgent need of protection ... Man's taking alone, without these factors, might be tolerated by animal species or populations, but in conjunction with them, it could well prove to be the proverbial straw added to the camel's back." Id. at 4147-4148.
At the time of the passage of the Act in 1972, Congress expressly recognized that:
Id. The Marine Mammal Protection Act was enacted to change all that and turn the tides in favor of these mammals. Id. at 4152 ("It is undeniable that the levels of knowledge of scientists on marine mammals are very low. The situation must be changed, and H.R. 10420 provides a vehicle for doing so.").
Congress endeavored to put teeth into these goals by placing a strict burden on those seeking permits, requiring that any taking allowed under the Act's permit provisions "will not work to the disadvantage of the species or stock," and giving "prime consideration" to the interests of the animals above all others. Id. at 4151. The MMPA further "creates a strong regulatory responsibility in the agencies involved, coupled with a Congressional directive that far more adequate knowledge must be developed on what is actually happening to these animals." Id.
Thus, the legal soundness of NMFS's decision to deny Georgia Aquarium's permit is clearly echoed in the MMPA's history. Georgia Aquarium bore the heavy burden of showing that it satisfied the necessary criteria for issuance of a permit under the Act and that its requested import was consistent with the statute's clearly stated protective purposes. The Court recognizes that the Aquarium undertook a serious study of the sustainability of the live-capture of the beluga whales in the Sakhalin — Amur region of the Sea of Okhotsk prior to submitting its permit request. And NMFS also undertook a rigorous analysis of the Aquarium's application utilizing its great breadth of experience and scientific expertise. However, NMFS found significant and troubling inconsistencies in Georgia Aquarium's data and uncertainty associated with the available information regarding the abundance and stability of this particular whale population. Faced with the near certainty of ongoing live-captures of a significant number of whales from a stock that is likely depleted from decades of intensive and exploitive hunting, NMFS determined that Georgia Aquarium was unable to show that importing 18 whales for captive breeding and public display would "not work to the disadvantage" of the Sakhalin-Amur stock. (Id. at 4151.)
Like something out of a Russian spy novel, in response Georgia Aquarium launched a wholesale attack on NMFS, accusing the Agency of "cooking the books" to fabricate its rationale in a deliberate and conspiratorial effort to deny Georgia Aquarium's import permit. Beyond all the smoke and mirrors, Georgia Aquarium's arguments boil down to an attempt to shift the burden of proof to NMFS. Having carefully reviewed the administrative record in this case and all parties' arguments, the Court fords that NMFS properly reviewed Georgia Aquarium's permit application through the lens of the MMPA's purposes, and gave due consideration to the regulatory issuance criteria designed to ensure that the requested import not allow the Sakhalin-Amur beluga whale stock to "diminish beyond the point at which [it] cease[s] to be a significant functioning element in the ecosystem of which [it is] a part, [and] below [an] optimum sustainable population." 16 U.S.C. §§ 1361(2).
The words of Herman Melville's Ishmael still ring true:
Herman Melville Moby-Dick (1851).
Accordingly, the Court
(AR 8998 at 17451-17452.) Once again, this demonstrates that the Agency attempted to use its best judgment in assessing the data in light of the unreliability of Georgia Aquarium's population estimates of a historical maximum.
(AR 8998 at 17425-17426.)
