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Sea Turtles Opinion Case 1:09-cv-00259-SPM-GRJ Document 91 Filed 07/05/11 Page 1 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION SEA TURTLE CONSERVANCY; CENTER FOR BIOLOGICAL DIVERSITY; DEFENDERS OF WILDLIFE; GULF RESTORATION NETWORK, INC.; AND TURTLE ISLAND RESTORATION NETWORK, Plaintiffs, v. Case No. 1: 09-CV-259-SPM-GRJ GARY LOCKE, United States Secretary of Commerce; ERIC SCHWAAB, Assistant Administrator for Fisheries; and the NATIONAL MARINE FISHERIES SERVICE, Defendants. __________________________________________/ Order on Motions for Summary Judgment THIS CAUSE comes before the Court upon Plaintiffs’ Motion for Summary Judgment (doc. 68), with attached Memorandum in Support (doc. 68-1), Statement of Material Facts (doc. 68-2), Declaration of Stephen E. Roady (doc. 68-3) and Exhibits (doc. 68-4 through 68-16); Defendants’ Response to Plaintiffs’ Statement of Material Facts (doc. 79); Defendants’ Cross-Motion for Summary Judgment (doc. 76), with attached Memorandum in Support (doc. 77), and 1 Case 1:09-cv-00259-SPM-GRJ Document 91 Filed 07/05/11 Page 2 of 30 Statement of Material Facts (doc. 78); Plaintiffs’ Response to Defendants’ Cross- Motion for Summary Judgment (doc. 84); and Plaintiffs’ Response to Defendants’ Statement of Material Facts (doc. 85). For the reasons stated below, this Court will GRANT in part Plaintiffs’ Motion for Summary Judgment. I. FACTUAL BACKGROUND This dispute revolves around the plight of the loggerhead sea turtle and Defendants’ actions regarding the Reef Fish Fishery (Fishery). In 1984, the Gulf of Mexico Fishery Management Council (Council) issued the Gulf Reef Fish Fishery Management Plan (FMP) pursuant to its authority under the Magnuson- Stevens Fishery Conservation and Management Act (MSA). The FMP was the governing authority over the Fishery and authorized both commercial and recreational vessels to fish, mainly targeting grouper and snapper, in the Gulf of Mexico. The Fishery operates primarily in the continental shelf waters off the coast of western Florida. Although the target catch of the Fishery is a variety of reef fish species, the Fishery also captures and kills non-target species (known as bycatch), including the loggerhead sea turtle. The loggerhead sea turtle has been listed as a threatened species pursuant to the Endangered Species Act (ESA) since July 28, 1978. 2 Case 1:09-cv-00259-SPM-GRJ Document 91 Filed 07/05/11 Page 3 of 30 Because of the Fishery’s interactions with a threatened or endangered species, namely the loggerhead sea turtle, and pursuant to Section 7(a)(2) of the ESA, Defendants conducted an intra-agency consultation concerning its authorization and operation of the Fishery under the current FMP. Pursuant to this consultation, Defendants issued a Biological Opinion in February of 2005 (2005 BiOp) assessing the Fishery’s impact on sea turtles. The 2005 BiOp concluded that the continued operation of the Fishery was not likely to jeopardize the continued existence of any sea turtle species. This “no jeopardy” decision also included an Incidental Take Statement (ITS) which predicted the amount of sea turtles that would be killed as a result of bycatch from the operation of the Fishery. In September of 2008, Defendants revealed data indicating that the Fishery had exceeded the number of incidental takes the 2005 BiOp ITS had predicted. As a result, and pursuant to Section 7(a)(2) of the ESA, Defendants reinitiated consultation of the Fishery and its impact on the sea turtle. Defendants also began the process for developing a long-term amendment (Amendment 31) to the FMP pursuant to the National Environmental Policy Act (NEPA) and the MSA. In January of 2009, while final action was pending on Amendment 31, the Council requested promulgation of an emergency rule to reduce incidental take of sea turtles pursuant to the Defendants’ authority under Case No. 1:09-CV-259-SPM-GRJ 3 Case 1:09-cv-00259-SPM-GRJ Document 91 Filed 07/05/11 Page 4 of 30 the MSA. See 16 U.S.C. § 1855(c)(1). In April of 2009, this emergency rule was passed and temporarily closed the Fishery to all fishing shoreward of the 50 fathom depth contour in the Gulf of Mexico. This emergency rule had an expiration date of October 28, 2009. Understanding that this emergency rule would expire, Defendants developed an interim rule, pursuant to its authority under the ESA, that would remain in effect until finalization of Amendment 31. On October 16, 2009 and prior to the expiration of the emergency rule, Defendants promulgated this new interim rule (the ESA Rule) governing the operation of the Fishery. Although the ESA Rule did not have a specified expiration date, the Defendants stated in the preamble to the ESA Rule that it would be in place until Defendants could pass Amendment 31. On March 29, 2010, Defendants signed the Record of Decision (ROD) documenting Defendants’ final approval of Amendment 31, the Final Environmental Impact Statement (FEIS), and the implementing regulations for Amendment 31. On April 26, 2010, Amendment 31 and the implementing regulations were published. On May 26, 2010, Amendment 31 and these implementing regulations became effective. Concurrently, and as part of the decision to reinitiate consultation after the 2005 BiOp ITS had been exceeded, Defendants created a new biological opinion (2009 BiOp). On October 13, 2009, the 2009 BiOp was completed. The 2009 Case No. 1:09-CV-259-SPM-GRJ 4 Case 1:09-cv-00259-SPM-GRJ Document 91 Filed 07/05/11 Page 5 of 30 BiOp assessed the Fishery’s impact on ESA-listed species, including the loggerhead sea turtle, under the ESA Rule (in effect October 16, 2009), Amendment 31, and the regulations in effect prior to the emergency rule. It is the validity of this 2009 BiOp, the passage of Amendment 31, which relied on this 2009 BiOp, and the continued operation of the Fishery, especially in light of the April 20, 2010, Deepwater Horizon oil spill, which Plaintiffs ask the Court to review pursuant to the Administrative Procedure Act (APA) and challenge as unlawful under the ESA, NEPA and the MSA. II. LEGAL STANDARD A. Standard of Review on Motion for Summary Judgment Both parties submit motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, Local Rules 7.1 and 56.1(A) and the Parties’ Joint Status Report (doc. 59). According to Fed. R. Civ. P. 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Because this case comes before the Court pursuant to the judicial review standards of the APA, the material facts are those facts present in the agency’s administrative record. The function of this Court in an administrative proceeding “is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Case No. 1:09-CV-259-SPM-GRJ 5 Case 1:09-cv-00259-SPM-GRJ Document 91 Filed 07/05/11 Page 6 of 30 Occidental Eng’g Co. v. Immigration and Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985). B. Scope of Judicial Review Pursuant to the APA, final agency actions taken under the ESA or NEPA are subject to judicial review. See 5 U.S.C. §§ 704, 706. Therefore, the 2009 BiOp (AR Doc. 197)1, the regulations implementing Amendment 31 (AR Doc. 230 at 8074-82), the approval of Amendment 31 (AR Doc. 230 at 8137-55) and the approval of the FEIS (AR Doc. 232) are final agency actions subject to judicial review pursuant to the APA. The continued operation and ongoing authorization of the Fishery is reviewable pursuant to 16 U.S.C. § 1540(g). Under the APA, the reviewing court is required to “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)(A). “The arbitrary and capricious standard is exceedingly deferential.” Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009) (internal citations omitted). The scope of this judicial review of the administrative agency’s action is generally limited to the agency’s administrative record. 5 U.S.C. § 706; Preserve Endangered Areas of Cobb’s History, Inc. (“PEACH”) v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1246-47 1 Citations to the Administrative Record for Defendants’ Record of Decision for Amendment 31 (dated July 1, 2010) will be to: AR Doc. # at page Case No. 1:09-CV-259-SPM-GRJ 6 Case 1:09-cv-00259-SPM-GRJ Document 91 Filed 07/05/11 Page 7 of 30 (11th Cir. 1996). A reviewing court’s conclusion that an agency action is arbitrary or capricious requires the court to find that the agency had “no rational basis for the decision.” Tackitt v. Prudential Ins. Co., 758 F.2d 1572, 1575 (11th Cir. 1985). If an agency “fails to examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made,” then the agency action “must be reversed as arbitrary and capricious . .” Sierra Club v. Martin, 168 F.3d 1, 5 (11th Cir. 1999) (internal citations omitted). However, once the court finds that “a rational connection between the evidence and the decision” exists, then the court “must defer to the agency’s expertise.” Tackitt, 758 F.2d at 1575.
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