A district court judge has let stand NMFS' Biological Opinion for the Atlantic sea scallop fishery, but remanded the matter to NMFS "for the limited purpose of addressing the deficiencies in the Incidental Take Statement" (Oceana v. Pritzker 08-1881 PLF, D.D.C).
Oceana lost on most of its challenges. But District Judge Paul Friedman said the agency had not adequately explained how it would monitor take of loggerhead sea turtles.
The Court agrees with Oceana that the agency must address both the survival and recovery prospects of the loggerhead. But its argument based on that premise extends no further than the conclusory statements that the Court has quoted above; if there is some logic to its contention that NMFS’ construction of “reduce appreciably” necessarily reads “recovery” out of the regulation, Oceana does not elucidate that linkage.
Nor is the Court persuaded by Oceana’s related contention, advanced in its reply brief, that the agency’s analysis of the Fishery’s effect on loggerheads’ recovery prospects is “perfunctory,” and, in effect, no different than its analysis of the Fishery’s effects on survival. See Oceana Reply at 9-10. The BiOp includes a fairly extensive discussion of recovery impacts, centered on the recovery criteria established in the 2008 Recovery Plan for the Northwest Atlantic Population of the Loggerhead Sea Turtle. See SAR 13148-49, 13265-68. NMFS specifically finds in the BiOp that interactions between loggerheads and the Fishery will not lessen the species’ genetic heterogeneity, see SAR 13268, and it further determines that the continued operation of the Fishery will not affect two of the loggerheads’ recovery criteria— the number of nests and nesting females, and trends in abundance on foraging grounds — to such an extent that there would be an appreciable reduction in their likelihood of recovery.
Thus, the Court does not agree with Oceana’s suggestion that the ESA’s plain language is unambiguous — equating “jeopardize the continued existence” with any degree of reduction in the likelihood of a species’ survival and recovery. To the contrary, the statutory text simply does not speak directly to the question of how jeopardy to a species’ continued existence is to be assessed.
NMFS, as an expert agency charged with administering the ESA, may reasonably conclude that a given agency action, although likely to reduce the likelihood of a species’ survival and recovery to some degree, would not be likely to jeopardize the continued existence of the species. Of course, this does not mean that NMFS has unfettered discretion to permit any degree of reduction in the likelihood of a species’ survival and recovery.
The Court shares Oceana’s concerns regarding the effectiveness of a monitoring mechanism that is only able to assess every five years whether an annual take limit has been exceeded.
But the BiOp’s terse treatment of trawl take monitoring makes it difficult for the Court to discern NMFS’ rationale in this regard. As noted, the long gap in measuring trawl takes stands in marked tension with the regulatory requirement that NMFS reinitiate Section 7 consultation “immediately” if “during the course of the action the amount or extent of incidental taking . . . is exceeded.” 50 C.F.R. § 402.14(i)(4). The single paragraph that NMFS devotes in the BiOp to explaining its monitoring choice is insufficient to allay this concern. Nor does the paragraph addressing trawl take monitoring discuss in any detail the nature of NMFS’ statistical model and its data needs. NMFS also fails to address whether any monitoring alternatives exist that might be operable on a shorter timetable. Given these serious uncertainties about the effectiveness of the five-year monitoring framework, the Court must remand to the agency so that it can either provide a more thorough explanation of its choice, or, if unable to do so, reach a different conclusion.