BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.
Before the Court are motions for summary judgment by the parties: Plaintiff Humane Society of the United States' ("HSUS"), Plaintiff WildEarth Guardians' ("WildEarth") and Defendants Penny Pritzker, National Marine Fisheries Service ("NMFS"), and Eric C. Schwaab
The instant case was filed on August 4, 2011, by Plaintiff HSUS. On September 29, 2012, this case was consolidated with two other related cases, WildEarth Guardians v. Blank, Civil Action No. 11-1417, and Humane Society of the United States v. Blank, Civil Action No. 11-1407. On June 14, 2013, this case was transferred from the Honorable Richard W. Roberts to the undersigned.
This case concerns three rulemaking petitions filed by the plaintiffs. Two petitions, filed separately by HSUS and WildEarth, requested that NMFS list the porbeagle shark as endangered or threatened pursuant to the terms of the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. HSUS' petition sought listing of the Northwest Atlantic population of porbeagles, while WildEarth's petition sought listing of the porbeagle shark without limitation to a specific geographic population. NMFS denied the petitions at the initial 90-day stage of review, discussed in more detail below. Plaintiffs brought suit in this Court to challenge the denial of their petitions. Presently before the Court are the parties' cross-motions for summary judgment.
The ESA permits any person to submit a petition to list, delist, or reclassify a species as threatened or endangered.
In making a 90-day finding, the Secretary must consider whether the petition:
50 C.F.R. § 424.14(b)(2).
In the instant case, NMFS made a negative 90-day finding with regard to the petitions presented by HSUS and WildEarth. When a negative 90-day finding is made, no further action is taken by the Secretary and the negative finding is considered a final agency action.
If the Secretary makes a positive finding that the petition "presents substantial scientific or commercial information indicating that the petitioned action may be warranted" at the 90-day stage, the Secretary moves to the second step of the listing process, the "12-month decision," wherein the Secretary "shall commence a review of the status of the species concerned and shall make, within 12 months of receipt of such petition" a determination of the appropriate action to be taken and publish notice in the Federal Register regarding said action. 50 C.F.R. § 424.14(b)(3).
In making a listing determination (at the 12-month decision stage), the ESA states that:
16 U.S.C. § 1533(a)(1). In evaluating a petition, the Secretary is to make a determination
Finally, at the third stage in the listing process, the Secretary promulgates the final listing determination. 16 U.S.C. § 1533(b)(5).
This Court reviews NMFS's final actions under the "arbitrary and capricious" standard of review. Under this standard, as set out by the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500, et seq., a court shall "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...." 5 U.S.C. § 706(2). To meet the requirements of the APA, an agency must "examine the relevant data and articulate a satisfactory explanation for its action." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 129 S.Ct. 1800, 1810, 173 L.Ed.2d 738 (2009) (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)). An agency acts arbitrarily and capriciously where "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." Arent v. Shalala, 70 F.3d 610, 616 (D.C.Cir.1995) (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856). This Court's review of the action "must be searching and careful, but the ultimate review is a narrow one." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations and citation omitted).
The parties have filed cross-motions for summary judgment. "Summary judgment is the appropriate mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review." Blue Ocean Inst. v. Gutierrez, 585 F.Supp.2d 36, 41 (D.D.C.2008) (citing Stuttering Found. of Am. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C.2007)). The court's inquiry "is confined to reviewing the administrative record." Blue Ocean, 585 F.Supp.2d at 41 (citing North Carolina Fisheries Ass'n, Inc. v. Gutierrez, 518 F.Supp.2d 62, 79 (D.D.C.2007)).
The porbeagle shark ("porbeagle") (Lamna nasus) is a shark in the family Lamnidae, known as mackerel sharks. AR 000010. Porbeagles inhabit the North and South Atlantic Ocean, the southern Indian Ocean, the Southern Pacific Ocean, and the Antarctic Ocean. AR 000011. Porbeagles are long-lived sharks, having a lifespan of twenty-five to forty-six years. Females reach sexual maturity at thirteen years and give birth to two to six offspring after a gestation of between eight and nine months. AR 000012. The parties agree that porbeagles are considered to have a low rate of reproduction because of the
According to Plaintiff HSUS and to assessments conducted by the International Council for the Exploration of the Seas (ICES) and the International Commission for the Conservation of Atlantic Tunas (ICCAT), porbeagles in the Northeast and Northwest Atlantic Ocean constitute distinct populations with very limited transatlantic migration. AR 000011, 000695. Plaintiff HSUS also presented evidence that there is no evidence of genetic exchange between the North Atlantic and southern hemisphere populations. AR 000011. In its negative finding regarding Plaintiffs' petition, Defendant NMFS stated that there was "conflicting scientific evidence regarding whether DPSs [Distinct Population Segments] of porbeagle sharks exist ... [g]iven the conflicting evidence from the tagging and genetic data, without a more thorough analysis it is unclear as to whether porbeagle shark DPSs exist." AR 000695. However, in its negative finding NMFS did consider whether there was substantial evidence supporting the listing of porbeagles as a whole or as a DPS. Id.
Defendant NMFS determined that the best source of data concerning the present status of the porbeagle shark was the aforementioned ICES/ICCAT joint stock assessment, conducted in 2009. AR 003830-3886; AR 000695. At an internal NMFS meeting to discuss the petitions, NMFS summarized the assessment and, in NMFS' words, found "that the stock assessment indicated that the stocks are stable or increasing and that overfishing is not occurring." AR 000082. NMFS used similar language in denying the petition, stating that "stocks are depleted ... [but] stocks are stable or increasing in size (ICES/ICCAT, 2009)." AR 000697.
The ICES/ICCAT assessment grouped the porbeagle population into four population groups: Northeast Atlantic, Northwest Atlantic, Southwest Atlantic, and Southeast Atlantic. With respect to the Northwest Atlantic, the assessment concluded that, in 2009, the porbeagle population was from 95-103% of its population in 2001, with the population of mature female porbeagles anywhere from 83-103% of their 2001 level
With respect to the Northeast Atlantic, the assessment concluded that "current biomass is below B
With respect to the Southwest Atlantic, the assessment noted that data was limited, but that the available data suggested "a potential decline in porbeagle abundance in the SW Atlantic to levels below [maximum sustainable yield]." AR 003841. The assessment further noted that "depletion levels [are] below [maximum sustainable yield] and fishing mortality rates above those producing [maximum sustainable yield]. But catch and other data are generally too limited to allow definition of sustainable harvest levels. Catch reconstruction indicates that reported landings grossly under-estimate actual landings." Id. The assessment recommended that the Commission "consider adopting precautionary measures, including restricting fisheries affecting the stock(s)...." In its denial of Plaintiffs' petitions NMGS acknowledged that the stock was depleted and fishing mortality rates were above MSY, but emphasized that "data are generally too limited to allow definition of sustainable harvest levels." AR 000696.
With respect to the Southeast Atlantic, the assessment noted that data was too limited and that while "catch rate patterns suggest stability since the early 1990s" this trend could not be viewed in context due to lack of data and was "not informative on current levels relative to
With respect to the porbeagle population in general, NMFS concluded that "available information indicates that porbeagle shark population trends are stable or increasing globally, and that protections for the species are increasing in these areas as well; therefore, the petitions do not present substantial information indicating that the petition actions ... may be warranted at this time." AR 000698. Based on its conclusion, NMFS denied Plaintiffs' petitions at the 90-day stage.
Plaintiffs' main argument concerns the lower burden of proof required by the Secretary to make a positive 90-day finding versus the level of evidence required to make a listing determination at the 12-month stage. Plaintiffs argue that NMFS improperly applied the 12-month determination standard to their petitions at the 90-day finding stage. Plaintiffs point to the language of 16 U.S.C. § 1533(b)(3)(A) and available case law in arguing that "[t]he only question before [NMFS] when it conducts a 90-day review is whether the petitioned action may be warranted, not whether it is warranted." Ctr. for Biological Diversity v. Kempthorne, 2008 WL 659822, at *9 (D. Ariz. Mar. 6, 2008) (citing 16 U.S.C. § 1533(b)(3)(A). The court in Kempthorne determined that the application of the 12-month determination's evidentiary standard at the 90-day review stage was arbitrary and capricious. Id (holding that "the application of an evidentiary standard requiring conclusive evidence in the context of a 90-day review is arbitrary and capricious."). Plaintiffs also argue that NMFS itself has acknowledged the lower evidentiary requirement for a 90-day finding, as NMFS has described the level of evidence required to "lead a reasonable person to believe that the measure proposed in the petition may be warranted." For instance, NMFS has stated that in evaluating petitions at the 90-day stage, it does not "subject the petition to critical review." 71 Fed.Reg. 66,298 (Nov. 14, 2006). NMFS has also acknowledged that past judicial decision have established that "a petition need not establish a `strong likelihood' or a `high probability' that a species is either threatened or endangered to support a positive 90-day finding." 79 Fed.Reg. 4,877 (Jan. 30., 2014).
Plaintiffs cite a number of cases in support of their position. See Moden v. FWS, 281 F.Supp.2d 1193, 1204 (D.Or.2003) ("the standard for evaluating whether substantial information has been presented by an `interested person' is not overly-burdensome, does not require conclusive information, and uses the `reasonable person' to determine whether ... action may be warranted."); CBD v. Kempthorne, 2007 WL 163244, at *4-*7 (N.D.Cal.2007) (finding that the "may be warranted standard ... seems to require that in case of such contradictory evidence, the Service must defer to information that supports [the] petition's position ... the Service should make the [90-day] finding and then proceed to the more-searching next step in the ESA process." (internal quotations omitted); W. Watersheds Project v. Norton, 2007 WL 2827375, at *5 (reversing denial of petition and finding that "[w]hat is required at this stage ... is a review of the Petition for determination of whether it presents substantial information indicating to a reasonable person that the petitioned action may be warranted ... [t]his standard ... does not require conclusive evidence.") (internal
First, Plaintiffs' argue that NMFS erred in requiring conclusive evidence regarding the existence of "Distinct Population Segments" ("DPS") of porbeagle sharks. In particular, Plaintiffs point to NMFS's statement that "conflicting scientific evidence regarding whether DPSs [Distinct Population Segments] of porbeagle sharks exist ... [g]iven the conflicting evidence from the tagging and genetic data, without a more thorough analysis it is unclear as to whether porbeagle shark DPSs exist." AR 000695. Plaintiffs argue that NMFS wrongfully concluded that there was no "substantial information" regarding the existence of a Northwest Atlantic DPS, and that NMFS required a higher degree of evidence than "that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted." 40 C.F.R. § 424.14(b)(1). The Court agrees. NMFS acknowledges in its denial of Plaintiffs petition that there is "conflicting scientific evidence" regarding the existence of porbeagle DPSs, and suggested the need for a "more thorough analysis." NMFS's own conclusion regarding the need for more thorough analysis suggests that a reasonable person might conclude that "a review of the status of the species concerned" was warranted. As such, NMFS acted arbitrarily and capriciously in applying an inappropriately-stringent evidentiary requirement at the 90-day stage. 50 C.F.R. § 424.14(b)(3).
The parties spend a significant portion of their briefs arguing whether NMFS' determination regarding the existence of porbeagle DPSs was correct. While NMFS' erred in applying an inappropriate evidentiary standard to the DPS determination, NMFS did, in fact, consider in its denial of the petitions whether there was substantial evidence supporting the listing of porbeagles as a whole or as a DPS, stating that "in order to be thorough... we considered whether the petitioners presented substantial evidence indicating that the petitioned action for the full species or for the DPS as proposed ... may be warranted." AR 000695. Accordingly, while NMFS erred in its conclusion that, at the 90-day finding stage, "conflicting evidence" permitted it to determine that Plaintiffs had failed to prevent "substantial evidence" regarding the existence of porbeagle DPSs, NMFS acted properly when it went on to evaluate Plaintiffs' petitions with regard to both the whole population of porbeagles or as to the DPSs proposed by Plaintiffs.
The parties differ sharply in their interpretation of the data provided by the 2009 ICES/ICCAT joint stock assessment, which NMFS identified as the best source of data concerning the porbeagle. AR 000695. Plaintiffs argue that their petitions contained "substantial evidence" drawn from the ICES/ICCAT assessment to indicate that listing might be warranted, thus requiring that NMFS make a positive 90-day finding. Instead, Plaintiffs argue, NMFS improperly applied a
In assessing the Northwest Atlantic porbeagle population, the ICES/ICCAT report concluded that, in 2009, the porbeagle population was between 95 percent and 101 percent of its population in 2001. AR 00015. The assessment concluded that the population of mature female porbeagles, which Plaintiffs contend best reflects the effective population size, was between 83 and 103 percent of 2001 values, and that recovery of the stock could take "decades." AR 000015, 003590, 003842. (FAO guidance for evaluating aquatic species for listing under CITES). The assessment also stated that "[r]ecent biomass appears to be increasing." AR 003842. NMFS, in denying the petitions, interpreted this data as establishing that "stocks are depleted ... [but] stocks are stable or increasing in size (ICES/ICCAT, 2009)." AR 000697. However, Plaintiff WildEarth correctly points out that under both these measurements "the potential of a decrease is greater" than the potential for growth. Pl. WildEarth's Mot. at 25. In other words, the already-low population of porbeagles in 2001 may have declined marginally, remained stable, or grown marginally, while the population of mature females may have declined by up to seventeen percent, or grown by three percent. Accordingly, the likelihood of decline in the porbeagle population in the Northwest Atlantic was higher than the likelihood of growth or stability. Supporting this view of the data is ICES/ICCAT's recommendation of the adoption of management measures to support recovery of the porbeagle population, including fishing restrictions in certain areas. AR 003843.
NMFS did not acknowledge the possibility that the porbeagle population has declined and appears to have considered only the most optimistic view of the assessment (i.e., that population was on the rise), stating that "stocks are depleted... [but] stocks are stable or increasing in size (ICES/ICCAT, 2009)." AR 000697. NMFS focused on, and repeated, the statement in the assessment that "[r]ecent biomass appears to be increasing." While such a conclusion certainly reflects a permissible view of the evidence were Plaintiffs required to establish conclusive evidence of porbeagle decline, Plaintiffs need only establish "that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted." Data in the ICES/ICCAT assessment indicates that it is more likely than not that the already-low population of porbeagles, particularly mature females, has declined. NMFS failed to articulate why this evidence was insufficient to trigger a positive 90-day finding requiring further study. While the Court is required to defer to the agency's technical expertise in areas of scientific specialization, the Court is not required to ignore simple probability. See Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C.Cir.1976) (en banc). NMFS acted arbitrarily and capriciously in applying the wrong evidentiary standard at the 90-day stage and ignoring evidence that the porbeagle population in the Northwest Atlantic faces a strong likelihood of decline.
Similarly, with respect to the Northeast Atlantic population of porbeagles, ICES/ICCAT concluded that "current biomass is below [maximum sustainable yield] and that recent fishing mortality is near or possibly above [maximum fishing mortality]." AR 003842. The assessment recommended that "[s]ustained reductions in fishing
With respect to the Southwest Atlantic population of porbeagles, the assessment noted that data was limited, but that available data was available "suggesting a potential decline in porbeagle abundance in the SW Atlantic to levels below MSY." AR 003841. Models available to ICES/ICCAT indicated "depletion levels below MSY and fishing mortality rates above those producing MSY. But catch and other data are generally too limited to allow definition of sustainable harvest levels. Catch reconstruction indicates that reported landings grossly underestimate actual landings." Id. The assessment recommended that the Commission "consider adopting precautionary measures, including restricting fisheries affecting the stock(s)...." In its denial of Plaintiffs' petitions NMFS acknowledged that the stock was depleted and fishing mortality rates were above MSY, but emphasized that "data are generally too limited to allow definition of sustainable harvest levels." AR 000696. However, the Court notes that, to the extent the assessment discussed the uncertainty of defining sustainable harvest levels, it did so because of the under-estimation of the actual number of landings of porbeagles; this suggests that the population is indeed threatened. The Court agrees with Plaintiff WildEarth that, at the 90-day stage, some level of uncertainty should not negate the general finding of the assessment that the Southwest Atlantic population of porbeagles was in decline.
Defendants' arguments in response do not counter Plaintiffs' basic premise that the evidentiary requirement for a positive 90-day finding is relatively low; indeed, Defendants acknowledge that the "`substantial information' standard is not onerous." Defs.' Mot. at 17. Rather, Defendants argue that there "was no uncertainty associated with NMFS's consideration of whether the species is at risk of extinction... the most recent stock assessment ... indicates increases in biomass in some stocks and stability in others." Id. Defendants suggest that the substantial information standard "cannot be construed to require NMFS to defer to ... outdated references and ignore available information...." Id.
Defendants seek to rely on the Court's previous grant of summary judgment dismissing Plaintiff HSUS's Magnuson-Stevens Act ("MSA") claims. In that order the Court found that NMFS' denial of Plaintiffs' petitions to list the porbeagle as a prohibited species pursuant to the MSA was supported by substantial evidence and was not, therefore, arbitrary and capricious. See Order [46] at 14-15. In making their MSA determination, Defendant NMFS relied on the same ICES/ICCAT assessment at issue in the instant motions. Defendants thus argue that the Court should once again grant summary judgment in deference to NMFS' determination.
The Court reaches a different outcome in the instant motions because of the differing statutes and implementing regulations at issue. The Magnuson-Stevens Act, concerned with fishery management and conservation, sets a higher evidentiary bar for Plaintiffs to meet than the Endangered Species Act. 50 C.F.R. § 635.34(c), which implements the MSA, states that NMFS "may" list a species if Plaintiffs provide evidence meeting various factors. Given the expansive language of the regulation and the high evidentiary bar that it sets, the Court found that NMFS' refusal to list the porbeagle as a prohibited species was not arbitrary and capricious. In the instant analysis, however, Plaintiffs
Plaintiffs request that the Court vacate NMFS's 90-day finding and order NMFS to complete a status review and 12-month decision as to the listing of the porbeagle shark. In the alternative, Plaintiffs' request that the Court vacate the 90-day finding and remand to the agency for a determination correctly applying the standards set out in the ESA and NMFS's regulations. Defendants contend that this Court should limit its holding to setting aside the 90-day finding. 5 U.S.C. § 706. The remedy suggested by Defendants is the correct one. Generally, "when a court reviewing agency action determines that an agency made an error of law, the court's inquiry is at an end: the case must be remanded to the agency for further action consistent with the corrected legal standards." North Carolina Fisheries Ass'n, Inc. v. Gutierrez, 550 F.3d 16, 20 (D.C.Cir.2008) (quoting PPG Indus. v. United States, 52 F.3d 363, 365 (D.C.Cir. 1995)).
Because the Court has found that Defendant NMFS acted in an arbitrary and capricious manner in applying an incorrect evidentiary standard at the 90-day finding stage, the Court vacates NMFS's decision and remands to the agency to reconsider Plaintiffs' petitions in light of the Court's ruling.
The Court GRANTS IN PART Plaintiffs' Motions for Summary Judgment and DENIES Defendants' Motion for Summary Judgment. An order consistent with this opinion will issue separately.
