UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMERICAN TUNABOAT ASSOCIATION,
Plaintiff, Case No. 1:19-cv-01011 (TNM) v.
WILBUR ROSS et al.,
Defendants.
MEMORANDUM OPINION
The Endangered Species Act consultation process ensures that federal agencies take no
action that would jeopardize the continued existence of endangered or threatened species or
adversely affect critical habitat. The Act also grants certain rights for “applicants” to participate
in this process. This case is about whether the National Marine Fisheries Service wrongly denied
the American Tunaboat Association applicant status regarding the Service’s ongoing review of
the U.S. purse seine fishery in the Western and Central Pacific Ocean.
The Association sued, claiming the denial was arbitrary and capricious. Both the
Association and the Service have moved for summary judgment. For the following reasons, the
Court finds that the Service’s denial decision was reasonable. So the Association’s motion will
be denied, and the Service’s motion will be granted.
I.
A.
The Endangered Species Act (“the Act”), 16 U.S.C. § 1531 et seq., is “the most
comprehensive legislation for the preservation of endangered species ever enacted by any
nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). The Service lists species that it determines are at risk of extinction as endangered or threatened. 16 U.S.C. § 1533; 50 C.F.R.
§ 402.01(b). The Act prohibits federal agencies from taking actions that are likely to jeopardize
these listed species or destroy or adversely modify designated critical habitat. 16 U.S.C.
§ 1536(a)(2). So federal agencies must consult with the Service before taking an action that may
adversely affect these species or their critical habitats. Id. 1
If an agency’s action is likely to adversely affect a listed species or critical habitat, the
agency must engage in formal consultation. 50 C.F.R. § 402.14. As part of the formal
consultation process, the Service prepares a biological opinion. See id. §§ 402.12(k)(1),
402.14(a)-(b). A biological opinion includes, among other things, the Service’s opinion “on
whether the action is likely to jeopardize the continued existence of a listed species or result in
the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(h)(3). If the
Service concludes that the action is likely to jeopardize the continued existence of a listed
species, it must offer “reasonable and prudent alternatives” that would not jeopardize the species.
16 U.S.C. § 1536(b)(3)(a); 50 C.F.R. § 402.02.
The Service then prepares an Incidental Take Statement that sets levels for the taking of
the species that will not jeopardize its existence. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).
“Take” means any conduct that could harm, kill, or capture the creature. See 16 U.S.C
§ 1532(19).
1 For terrestrial and freshwater fish species, agencies must consult with the U.S. Fish and Wildlife Service instead. See 50 C.F.R. § 402.01(b). Because only marine species are at issue here, this Opinion focuses on the role of the National Marine Fisheries Service.
2 The Act provides certain rights for applicants to participate in the consultation process.
See generally 16 U.S.C. § 1536. The Act does not define “applicant.” 2 But 50 C.F.R. § 402.02
does: “any person . . . who requires formal approval or authorization from a Federal agency as a
prerequisite to conducting the action.” Applicant status conveys certain valuable rights.
Applicants can submit information during the consultation, 50 C.F.R. § 402.14(d); approve
agency-requested extensions of time to complete formal consultation, id. § 402.14(e); participate
in discussions on the Service’s review and findings in a biological opinion, including the
availability of any reasonable and prudent alternatives, id. § 402.14(g)(5); and request a copy of
and submit comments on a draft biological opinion, id.
B.
The U.S. purse seine fishery operating in the Western and Central Pacific Ocean (“the
Fishery”) is a large tuna fishery. A.R. 29. It generally operates in the waters off several Pacific
Island states, the high seas, and the U.S. Exclusive Economic Zone surrounding the U.S. Pacific
Island territories and possessions. See A.R. 26. Several different international treaties and
domestic authorities govern the Fishery. See, e.g., the South Pacific Tuna Act of 1998,
16 U.S.C. § 973; the Western and Central Pacific Fisheries Convention Implementation Act,
16 U.S.C. § 6901 et seq.; the High Seas Fishing Compliance Act of 1955, 16 U.S.C. § 5501 et
seq. The Service issues various permits, licenses, endorsements, and other authorizations to
allow the Association’s members to operate in the Fishery. A.R. 5.
2 The parties agree that the Act’s definition of “permit or license applicant,” 16 U.S.C. § 1532(12), does not apply here. See Pl.’s Mot. for Summ. J. (“Pl.’s Br.”) at 6, ECF No. 19-2; Defs.’ Cross-Mot. for Summ. J. (“Defs.’ Br.”) at 3, ECF No. 20-1.
3 In 2006, the Service completed a consultation for “the continued authorization” of the
Fishery under current and proposed regulations. 3 A.R. 22. The biological opinion included an
Incidental Take Statement that authorized the annual incidental take of about 60 individual
turtles across five different species. A.R. 161. The Service required some “reasonable and
prudent measures,” as implemented by terms and conditions, mainly focused on sea turtle take
mitigation measures. See, e.g., A.R. 162–64. These measures became binding when
incorporated into regulations issued through notice and comment rulemaking. See 50 C.F.R. §
300.223(f); 74 Fed. Reg. 38,544.
Since then, the Service has listed additional species near the Fishery, like the oceanic
whitetip shark and the scalloped hammerhead shark, as threatened or endangered. A.R. 493–94.
Because of these new listings, the Service reinitiated consultation in October 2014. A.R. 205. 4
The subject of the consultation is “the continued operation of [the Fishery], as currently managed
under [the Service’s] regulations implementing the South Pacific Tuna Treaty and decisions of
the Western and Central Pacific Fisheries Commission.” A.R. 495.
South Pacific Tuna Corporation, a member of the Association, first requested applicant
status from the Service so that it could participate in this ongoing consultation. A.R. 15–18. The
Service denied its request for applicant status but offered to work with the Corporation to
develop a framework for its involvement in the consultation. A.R. 8–10. Then, the Association,
which represents all U.S. large purse seine vessels participating in the Fishery, requested
applicant status. A.R. 5. The Service also denied this request but similarly offered to extend
some participation opportunities to the Association without formally designating the Association
3 When engaged in consultation for the Fishery, the Service consults internally. A.R. 205–6. 4 The Service extended the consultation in December 2017, A.R. 433, and again in May 2018, A.R. 457–58.
4 an applicant. A.R. 1–3. The denial was transmitted in a formal, three-page letter signed by the
Regional Administrator of the Service’s Pacific Islands Region Office. See id.
The Association filed a Complaint and a Motion for Preliminary Injunction. See ECF
Nos. 1, 2. The Court heard oral argument on the motion. Afterwards, the Association withdrew
its Motion for Preliminary Injunction, and the parties agreed to expedited summary judgment
briefing. See Joint Motion, ECF No. 15.
II.
Summary judgment is usually only appropriate if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro.
56. But when a court is reviewing an administrative agency’s decision, the standard set out in
Federal Civil Procedure Rule 56 does not apply. See Richards v. I.N.S., 554 F.2d 1173, 1177
(D.C. Cir. 1977). Instead, as both parties acknowledge, courts review an agency’s decision
under the deferential standard provided in the Administrative Procedure Act. See Ramaprakash
v. Fed. Aviation Admin., 346 F.3d 1121, 1124 (D.C. Cir. 2003).
A court must set aside agency action that is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. § 706(2). “The arbitrary and capricious
standard is deferential; it requires that agency action simply be reasonable and reasonably
explained.” Comtys. for a Better Env’t v. E.P.A., 748 F.3d 333, 335 (D.C. Cir. 2014) (cleaned
up). An agency action is arbitrary and capricious if an agency fails to “comply with its own
regulations.” Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. E.P.A., 752 F.3d 999, 1009 (D.C.
Cir. 2014) (cleaned up).
5 III.
The first issue here is whether the Association has standing to sue. “Article III of the
Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and ‘Controversies.’” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (quoting U.S. Const. art. III, § 2). “No principle is
more fundamental to the judiciary’s proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual cases or controversies,” and “[t]he
concept of standing is part of this limitation.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,
37 (1976) (cleaned up). To establish Article III standing, the Association “must have (1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016).
Perhaps naturally, the Association argues that it has associational standing. See generally
Pl.’s Mot. for Summ. J. (“Pl.’s Br.”) at 14–23, ECF No. 19-2. “[A]n association has standing to
bring suit on behalf of its members when: (a) its members would otherwise have standing to sue
in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
The Service does not contest that the Association meets the latter two elements of
associational standing. See generally Defs.’ Cross-Mot. for Summ. J. (“Defs.’ Br.”), ECF No.
20-1. The Association, an organization dedicated to “a robust, sustainable, fairly managed, and
economically strong Fishery,” Pl.’s Br. at 15, has an “obvious interest in challenging” the
Service’s refusal to allow it or its members to participate as applicants in the consultation
6 process. Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 247
(D.C. Cir. 2013). “[C]onsultation is designed as an integral check on federal agency action . . . .”
Ctr. for Bio. Diversity v. E.P.A., 861 F.3d 174, 182 (D.C. Cir. 2017) (cleaned up). And neither
the claim asserted, nor the relief requested, requires any of the Association’s members to
participate as a named plaintiff in the lawsuit. See id.
The remaining question, then, is whether at least one of Association’s members has
standing to sue. See Am. Trucking Ass’ns, Inc., 724 F.3d at 247. The Association argues that the
South Pacific Tuna Corporation, one of its members, has suffered a procedural injury. Pl.’s Br.
at 17.
Courts relax the redressability and imminence requirements for a plaintiff claiming a
procedural injury, but “the requirement of injury in fact is a hard floor of Article III jurisdiction
that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009).
The Supreme Court “has never freed a plaintiff alleging a procedural violation from showing a
causal connection between the government action that supposedly required the disregarded
procedure and some reasonably increased risk of injury to its particularized interest.” Fla.
Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc).
As to injury, the claim that the Service violated its own regulation by denying the
Association or its member applicant status describes “archetypal procedural injury.” See Ctr. for
Bio. Diversity, 861 F.3d at 182. Procedural injury occurs when an agency fails to follow a
legally required procedure and this failure increases the risk of future harm to some party. See
Spokeo, 136 S. Ct. at 1549–50.
That is what happened here. The Service’s alleged procedural error—its failure to follow
its own regulations as to “applicant”—is a necessary, but not sufficient, requirement for a
7 procedural-rights plaintiff to establish standing. See id. at 664–65. The D.C. Circuit has recently
explained, “[f]or a statutory violation to constitute an injury in fact, then, the statute must protect
the plaintiff’s concrete interest—i.e., afford the putative plaintiff a right to be free of a harm
capable of satisfying Article III.” Jeffries v. Volume Servs. Am., Inc., 928 F.3d 1059 (D.C. Cir.
2019).
Here, the consultation process protects the Corporation’s concrete interests: compliance
costs. See City of Clarksville v. Fed. Energy Reg. Comm’n, 888 F.3d 477, 482 (D.C. Cir. 2018)
(“This imposition of new regulatory obligations, in and of itself, is sufficient to establish
standing.”). Regulated entities have concrete interests in both (1) being able to meet their
regulatory responsibilities; and (2) in avoiding unwarranted regulatory obligations. Cf. Chrysler
Corp. v. Brown, 441 U.S. 281, 316 (1979) (“In enacting the APA, Congress made a judgment
that notions of fairness and informed administrative decisionmaking require that agency
decisions be made only after affording interested persons notice and an opportunity to
comment.”).
Establishing causation in the context of a procedural injury requires a showing of two
causal links: (1) a link connecting the alleged procedural error to some substantive government
decision that may have been wrongly decided; and (2) a link connecting that substantive decision
to the plaintiff’s particularized injury. See Ctr. for Bio. Diversity, 861 F.3d at 184. As to the
second link, the Association does not have to “establish the merits of its case,” i.e., that harm has
in fact resulted from the Service’s procedural failures. See id. Rather, the Association needs
only to show that there is a “substantial probability” that the lack of applicant status will harm its
member. See Am. Petroleum Inst. v. E.P.A., 216 F.3d 50, 63 (D.C. Cir. 2000).
8 First, it was the Service’s allegedly erroneous interpretation of “applicant” that caused the
Service to deny the South Pacific Tuna Corporation’s formal request for “applicant” status. And
the Corporation has already suffered harm because of the Service’s decision. Because of the
Service’s allegedly unlawful decision, the Corporation has lost some opportunity to influence
agency decisionmakers before they commit to a course of action. As other courts have
acknowledged, “[i]t is far easier to influence an initial choice than to change a mind already
made up.” Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989) (Breyer, J.).
Consultations are designed to allow applicants to influence the decision-making process.
The aim is to make agency decisionmakers aware of applicants’ concerns and take them into
account. And over time, it becomes harder to influence these decisionmakers. Cf. Nat’l Res.
Def. Council v. Houston, 146 F.3d 1118, 1129 (9th Cir. 1998) (“The failure to respect the process
mandated by law cannot be corrected with post-hoc assessments of a done deal.”). In short, the
later the access to the agency decisionmakers, the less valuable it is. And the Service has denied
this access since October 2014. A.R. 205. Its accommodation of a quick review at the end of
this process is a meager second best.
Finally, the injury is redressable in this suit. A procedural-rights plaintiff need not show
that “court-ordered compliance with the procedure would alter the final [agency decision].”
Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 5 (D.C. Cir. 2005). Here, if the
Association is correct in its claim, then the Court may order the Service to designate the
Corporation as an applicant. See Fla. Audubon Soc’y, 94 F.3d at 668 (explaining that procedural
violations are often “easily redressable, as a court may order the agency to undertake the
procedure.”). So the Court finds that the Corporation—and thus the Association—have standing
to challenge the Service’s decision.
9 The Service claims that the Association has not shown injury-in-fact because its claims of
economic injury are “purely speculative.” Defs.’ Br. at 18. It argues that the Association “points
to nothing in the biological opinion or Section 7(a)(2)/7(d) memoranda that raises the likelihood
of a jeopardy opinion, or the imposition of costly measures.” Id. Not so.
To be sure, the Association hopes that the Service will not raise compliance costs or
impose burdensome measures on its members. But the Association’s members have already
been injured: they have lost—and continue to lose—time and opportunity to influence agency
decisionmakers before they commit to a course of action, as discussed above.
For that same reason, the Court rejects the Service’s argument that the Association has
alleged a “purely procedural injury.” See Defs.’ Br. at 16–17. The Association is not merely
complaining that the Service did not follow its own regulations. Its members have suffered real
injury because they have been denied access—access that it insists that the Act itself requires—
to agency decisionmakers during this consultation process and to the decisionmaking process
itself.
The Service also contends that any injury that the Association or its members suffer is
“due to its voluntary action of refusing” to engage with the Service. See Defs.’ Br. at 16. It
suggests that the Association “could have avoided its injury simply by accepting [its] offer to
share a copy of the draft BiOp for comment.” Id. at 17.
The Association insists that it should not have to depend on the Service’s “bureaucratic
benevolence—which could disappear with the political winds.” See Pl.’s Reply Br. at 13 n.15,
ECF No. 22. The Court agrees. The Service can revoke its offer to send the Association its draft
biological opinion. It cannot negate the Association’s standing to challenge an allegedly
unlawful agency act by making a one-time, revocable exception for the Association.
10 And applicants have other rights, too. They can submit information during the
consultation, 50 C.F.R. § 402.14(d); approve agency-requested extensions of time to complete
formal consultation, id. § 402.14(e); and participate in discussions on the Service’s review and
findings in a biological opinion, including the availability of any reasonable and prudent
alternatives, id. § 402.14(g)(5). A complimentary ticket to the cheap seats is a paltry consolation
if one had been promised a corporate suite. For all these reasons, the Court holds that the
Association has standing.
The Service next argues that the Association’s claim is not ripe. See Defs.’ Br. at 23–25.
It insists that the Association needs to wait until the Service issues its biological opinion because
only then will the Court know if the opinion imposes any burdens on the Association. Id. at 23.
The Association counters that its claim is ripe because its injuries accrued when the Service
denied the Association and its member applicant status. Pl.’s Reply Br. at 8.
“The ripeness doctrine generally deals with when a federal court can or should decide a
case.” Am. Petroleum Inst. v. E.P.A., 683 F.3d 382, 386 (D.C. Cir. 2012). It has both a
constitutional and prudential component. Id. “Ripeness . . . shares the constitutional
requirement of standing that an injury in fact be certainly impending.” Nat’l Treasury Emps.
Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). So “if a threatened injury is
sufficiently ‘imminent’ to establish standing, the constitutional requirements of the ripeness
doctrine will necessarily be satisfied.” Id.
Here, the alleged injury is not even imminent; it has already occurred. The Service
already denied the Association applicant status, refusing it access to specific information and the
opportunity to exchange information with the Service during the decisionmaking process.
11 As for the prudential component of ripeness, the Court applies a two-part analysis,
considering both “the fitness of the issues for judicial decision” and “the hardship to the parties
of withholding court consideration.” Id. at 1431. No further factual development is necessary
for the Court to review the Association’s claims challenging the Service’s interpretation of the
term “applicant.”
True, it is unclear right now what the biological opinion itself will say. But that is not the
subject of this lawsuit. This lawsuit is about who qualifies as an applicant. And the Service does
not dispute that it made a final agency decision when it denied the Association applicant status.
See generally Defs.’ Br. at 23–25. As for hardship, if the Court does not rule until the Service
issues its biological opinion, the Association would have no chance to receive, submit, and
exchange information with the Service about the biological opinion.
The Service argues that the Association’s claim is not ripe because it has not shown an
injury-in-fact and will not suffer hardship from waiting until the Service issues its biological
opinion. See id. at 23–24. Again, it does not matter what the biological opinion ultimately says:
the Corporation has already suffered an injury because it has been denied a right to participate in
the consultation process. And this injury grows over time since “[i]t is far easier to influence an
initial choice than to change a mind already made up.” Sierra Club, 872 F.2d at 500.
C.
Turning to the merits, the issue is whether the Service’s decision—denying the
Association applicant status—was arbitrary and capricious. Of course, an agency action is
arbitrary and capricious if an agency fails to “comply with its own regulations.” Nat’l Envtl.
Dev. Ass’n’s Clean Air Project, 752 F.3d at 1009. According the Association, the Service has
done exactly that. Pl.’s Br. at 23.
12 The Act itself is silent on the definition of an “applicant” in this context. So the Court
turns to the regulations. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843
(1984). The Service’s consultation regulations define “applicant” as “any person . . . who
requires formal approval or authorization from a Federal agency as a prerequisite for conducting
the action.” 50 C.F.R. § 402.02. “Action” means “all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or
upon the high seas.” Id.
When the Service determined that the Association was not an applicant, it explained that
it saw “a distinction between individuals participating as Applicants on specific licenses, permits,
or authorizations, and individuals or fishing organizations participating during the broad
programmatic review of programs that conserve and manage fishery resources.” A.R. 2.
According to the Service, the Association is not an “applicant” under the Act’s definition
because the consulted-upon action is “the continued operation” of the entire Fishery. Defs.’ Br.
at 9. In the Service’s view, “applicant status is limited to persons seeking a specific permit that
is the subject of the consultation, not a consultation on a regulatory or management program.”
Id. at 29.
In response, the Association argues that the Service’s “interpretation of ‘applicant’ is
wholly disconnected from and inconsistent with its regulations.” Pl.’s Br. at 24. It insists that its
members are persons who require “formal approval or authorization”—permits—“from a Federal
agency as a prerequisite for conducting the action”—fishing. Id. (citing 50 C.F.R. 402.02).
To begin, the Court must identify the appropriate standard of review to apply to the
Service’s interpretation of a regulation that it has authored. Courts generally defer to agencies’
13 reasonable readings of genuinely ambiguous regulations. See Auer v. Robbins, 519 U.S. 452
(1997).
The Supreme Court recently clarified the application of Auer deference. See Kisor v.
Wilkie, 139 S. Ct. 2400 (2019). First, Auer deference applies only if a regulation is genuinely
ambiguous. Id. at 2415. To determine whether a regulation is genuinely ambiguous, courts must
exhaust all the “traditional tools” of construction. Id. If genuine ambiguity persists, courts will
defer to an agency’s reading only if it is reasonable. Id. at 2415–16. But courts will not defer to
every reasonable agency reading of a genuinely ambiguous regulation. Id. at 2416. The
interpretation must be the agency’s “authoritative” or “official position,” not an ad hoc
statement. Id. And the interpretation should implicate the agency’s substantive expertise. Id. at
2417. Last, an agency’s reading must reflect its “fair and considered judgment.” Id.
Applying this framework, the Court first concludes that the regulation’s definition of
“applicant” is genuinely ambiguous. Section 402.02 defines “applicant” as “any person, as
defined by section 3(13) of the Act, who requires formal approval or authorization from a
Federal agency as a prerequisite to conducting the action.”
But what is “the action?” Is it the action that the person needs a permit to do or is it the
action that the agency is consulting on? In other words, is it fishing or the continued operation of
the Fishery? The regulation’s own definition of “action” does not dispel the confusion. It
defines “action” broadly as “all activities or programs of any kind authorized, funded, or carried
out, in whole or in part, by Federal agencies in the United States or upon the high seas.” 50
C.F.R. § 402.02. Clearly, fishing is an action that is authorized by federal agencies. But is it the
action? In short, the regulation’s definition of applicant is ambiguous in this circumstance.
14 Second, the Service’s interpretation is reasonable. Under its view, an applicant is a
person seeking, or who has sought, a permit from an agency, and that agency’s approval of that
permit is the subject of the consultation. See A.R. 2. Applicant status, thus, is unavailable for
programmatic consultations because those consultations relate to broad programs rather than
specific permits. See id.
The Service’s Handbook defines “programmatic consultation” as a consultation
“addressing an agency’s multiple actions on a program, regional or other basis.” U.S. Fish and
Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered Species Consultation Handbook:
Procedures for Conducting Consultation and Conference Activities Under Section 7 of the
Endangered Species Act (“the Handbook”) (1998), at xvii. True, the Act itself does not
distinguish between programmatic and individual consultations, but the Service’s dichotomy
here is rationale.
Consider the alternative. The Association suggests that an applicant in this context is a
person who needs a permit to fish. But everyone, the Court presumes, needs a permit to fish
lawfully. The Association’s proposed interpretation of “applicant” has no clear limiting
principle. It is certainly reasonable for the Service to require a link between a person’s required
authorization and the subject of the specific consultation.
The roles and responsibilities of an applicant, as outlined in both the Act and the
regulation, confirm the limited scope of “applicant.” For instance, the regulations require the
Service to use the applicant in identifying reasonable and prudent alternatives that both the
agency and the applicant can take to avoid jeopardizing species. 50 C.F.R. § 402.14(g)(5). In the
context of a permit application for a specific project, the importance of the applicant’s expertise
is obvious given the applicant’s knowledge of its own project. But for a programmatic
15 consultation, a lone permitee likely would not have expertise for identifying reasonable and
prudent alternatives applicable for an entire regulatory scheme or program.
True, the Association represents all large U.S. flag purse seine vessels in the Fishery, and
so it can plausibly claim relevant knowledge in this programmatic review. But the regulations
and the Handbook govern all consultations, including programmatic reviews where there is no
comparable association and thousands of potential applicants. See, e.g., 82 Fed. Reg. 18,706
(explaining that there are 1,335 limited access permits under the Northeast Multispecies
Fisheries Management Plan). Reasonable interpretations of regulations must account for the
varied areas in which they apply.
More, both the statute and the regulations require that applicants consent to extensions of
the consultation deadline longer than 60 days. See 16 U.S.C. § 1536(b)(1)(B); 50 C.F.R.
§ 402.14(e). This power to consent (or not) to extensions makes sense when there is an
individual applicant whose proposed project cannot begin until completion of consultation. But
for programmatic consultations with dozens or even thousands of applicants, it is hard to imagine
how the Service would manage all the competing interests.
Still more, the preamble to the final rule for the Section 7 regulations (“the Preamble”)
accords with the Service’s position. There, the Service specifically declines to amend the
definition of “applicant” to allow participation in consultations about the promulgation of
regulations governing permit issuance because an applicant “is involved in the consultation
process as a result of a specific permit or license application.” 51 Fed. Reg. at 19,930. A permit
applicant instead “may provide input regarding its concerns in the Federal agency’s rulemaking
process through the Administrative Procedure Act, 5 U.S.C. 551 et seq.” Id. The Preamble thus
underscores that “applicant” status is limited to consultations on specific permit or license
16 applications and unavailable when the agency is consulting on broader regulatory programs, such
as the promulgation of regulations about permit issuance. 5
Both the Association and the Service insist that the Service’s Handbook supports their
positions. The Handbook explains that the action agency, here the Service, determines applicant
status and coordinates with the applicant during the consultation process. Handbook at 2-12, 2-
13. It then says:
Users of public resources (e.g. timber companies harvesting on National Forests) are not parties to programmatic section 7 consultations dealing with an agency’s overall management operations, including land management planning and other program level consultations. However, users who are party to a discrete action (i.e., where they are already the successful bidder on a timber sale that becomes the subject of later consultation or reinitiation when a new species is listed or new critical habitat is designated) may participate as applicants in the section 7 process.
Handbook 2-12. The Association argues that the Handbook treats companies with logging
authorizations as applicants for later consultations implicating those authorizations. Pl.’s Br. at
39–40. On the other hand, the Service emphasizes that the Handbook explains that these
companies are not parties to programmatic consultations dealing with “overall management
operations.” Defs.’ Br. at 28.
While the Handbook is no model of clarity, the Service’s gloss is certainly reasonable.
The Handbook says that timber companies cannot participate in a programmatic consultation on
forestry management, but they may participate on a “discrete action.” For instance, they have
5 The Preamble also provides that “[t]he definition in the proposed rule broadly defines ‘applicant’ as ‘any person who requires formal approval or authorization from a Federal agency as a prerequisite to conduct the action.’” 51 Fed. Reg. at 19,930. The Association emphasizes the Preamble’s use of the word “broadly,” insisting that the Service intended “applicant” to be read broadly. See Pl.’s Br. at 24. But the Preamble goes on to explain that by “broadly” it means that “applicant” includes “those seeking permits, licenses, leases, letters of authorization, and any other form of authorization or approval.” 51 Fed. Reg. at 19,930.
17 applicant status when they are already successful bidders on a timber sale that becomes the
subject of a later consultation. Putting aside the text’s confusing parentheticals, the Handbook is
drawing a distinction between overall management reviews in the first sentence, in which
applicants cannot participate, and reviews of discrete actions in the second sentence, in which
they may. Here, the subject of the consultation is not a discrete act: it is the general operations of
the Fishery. While the Handbook may be susceptible to other readings, the Service’s
interpretation is reasonable.
Courts should not reward agencies for drafting deliberately opaque regulations that they
can clarify to their advantage in subsequent litigation, but nor should courts demand crystal
clarity from bureaucrats who did not anticipate the implications of unintended regulatory
nuances. The Service’s reading of the Handbook is plausible on its face and consistent with the
other available governing documents.
In sum, the Service offers a fair interpretation of a genuinely ambiguous regulation. The
Court is careful not to defer to a merely “convenient litigating position” or “post
hoc rationalization advanced” to “defend past agency action against attack.” Christopher v.
SmithKline Beecham Corp., 567 U.S. 142, 155 (2012).
In Hawaii Longline Association v. National Marine Fisheries Service (“HLA”), another
court in this District concluded that the Service’s interpretation of “applicant” was “a post-hoc
rationalization” because it found no evidence that the issue was considered before the litigation.
No. 01-CV-00765, 2002 WL 732363, at *6 (D.D.C. April 25, 2002). Not so here. First, the
Service offered the same interpretation of “applicant” in its reasoned letter to the Association
before litigation began. A.R. 1–3. Similarly, the Service’s position matches its (unsuccessful)
litigating position in HLA in 2002, and it tracks with its Handbook that it issued in 1998. In
18 short, the Service’s interpretation reflects its “fair and considered judgment.” See Kisor, 139 S.
Ct. at 2417. 6
More still, the Service’s interpretation here is the “official position” of the agency. See
Kisor, 139 S. Ct. at 2416. The Assistant Administrator for the National Oceanic and
Atmospheric Administration Fisheries reviewed the Regional Administrator’s decision denying
the Corporation applicant status. See A.R. 10. And the Regional Administrator signed the denial
decisions. A.R. 3.
The Service’s interpretation also stems from its expertise in both managing fisheries and
in administrating the Act and the related treaties. For example, the Service issues regulations to
implement and enforce the South Pacific Tuna Treaty. See 16 U.S.C. § 973b. Similarly, based
on its authority under the Western and Central Pacific Fisheries Convention Implementation Act,
the Service is responsible for promulgating regulations to enforce the Western and Central
Pacific Fisheries Commission’s directives. See 16 U.S.C. § 6901 et seq.; see also 50 C.F.R. §
300 Subpart O. The Service serves an important role in ensuring that the United States meets its
obligations under international law. For all these reasons, the Court will defer to the Service’s
interpretation of its own regulation.
6 The Association suggests that the Service has changed its interpretation of “applicant” during litigation. Pl.’s Reply Br. at 11–12. The Association insists that the Service is engaged in some type of “game playing.” Id. at 12. Not so. In its briefing here, the Service is merely clarifying why it denied the Association’s specific request. At most, the Service is attempting to be more precise. Any daylight between the interpretations is small given that the Association itself admits that its arguments against this so-called new interpretation remain the same. See Pl.’s Reply Br. at 12 (explaining that “the same deficiencies identified in the [Service’s] old interpretation set forth in its denial decision apply to its new interpretation”). In any event, the Court’s focus is on the Service’s denial decision itself, not positions taken in litigation.
19 Given that deference, it follows that the Service’s decision was not arbitrary or
capricious. The Service provided a reasoned denial decision that explained and applied the
relevant law.
Throughout its briefing, the Association urges the Court to follow HLA. Pl.’s Br. at 32–
33. But as discussed above, the HLA court found that the Service had proffered a post-hoc
rationalization and, as such, its interpretation of “applicant” was entitled to less deference. 2002
WL 732363, at *7. Not so here. The Court has determined that the Service’s interpretation
reflects its “fair and considered judgment.” See Kisor, 139 S. Ct. at 2417. More, the Court
disagrees with the HLA court’s reading of the timber sale example in the Service’s Handbook for
the reasons discussed above. In any event, that unpublished magistrate judge opinion is not
binding here.
Still, the Association contends that the Service’s denial decision was arbitrary and
capricious because “this Court” already settled the issue in HLA. See Pl.’s Br. at 37. Not really.
In its denial decision, the Service acknowledged HLA but—like the Court now—declined to
extend it to these facts. See A.R. 3.
It is not arbitrary for the Service to continue to grant the Hawaii Longline Association
applicant status given the decision in HLA or to adhere to its preferred view of applicant status in
other cases. Cf. Nat’l Cable & Telecom. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982–83
(2005) (“Only a judicial precedent holding that the statute unambiguously forecloses the
agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a
conflicting agency construction.”); see also In re Exec. Office of the President, 215 F.3d 20, 24
(D.C. Cir. 2000) (“District Court decisions do not establish the law of the circuit, nor, indeed, do
they even establish the law of the district.” (cleaned up)).
20 While the denial decision could have given a more detailed explanation for why it
believed HLA was wrongly decided, its basis for disagreement with that decision is apparent
based on the contents of the denial decision. For instance, the Service clearly disagreed with
HLA’s reading of the Handbook’s timber sale example. Compare A.R. 2 with HLA, 2002 WL
732363, at *8. The “standard of review under the arbitrary and capricious test is only
reasonableness, not perfection.” Kennecott Greens Creek Min. Co. v. Mine Safety & Health
Admin., 476 F.3d 946, 954 (D.C. Cir. 2007).
According to the Association, the Service’s interpretation enables it “to categorically
deprive the permittees comprising entire industries of their applicant rights in one fell swoop.”
Pl.’s Br. at 14. But the Court’s holding does not sweep so broadly. For example, the
Association does not dispute that this consultation is programmatic. See generally Pl.’s Br. In a
subsequent case, the type of consultation may be in dispute and lead to a different outcome.
More, this consultation involves the application of several international treaties as discussed
above. They bolster the reasonableness of a programmatic approach that may be inappropriate
elsewhere. Setting aside future hypotheticals, the Court finds that this denial decision was not
arbitrary and capricious.
And the Association still has a voice. The Service has offered to develop a framework to
allow the Association to participate in the consultation process, even without the applicant
designation. See A.R. 3. For example, it may review and submit comments on the draft
biological opinion before it is final. And the Association can participate in the notice and
comment rulemaking process about the management program that is the subject of this
consultation. See 51 Fed. Reg. at 19, 930. Any new terms or conditions in the biological
opinion will not be binding on the Association’s members until after the notice and comment
21 rulemaking process. Id. In the future, under the National Environmental Policy Act, the
Association can submit public comments on the draft Environmental Impact Statement for the
Fishery. See A.R. 2. To be sure, these opportunities are not equivalent to those granted to
applicants under the Act, but they are a reasonable balancing of the Service’s interest in
receiving input from regulated parties and the need to enforce the Act in an efficient and
effective way.
IV.
For all these reasons, the Plaintiff’s Motion will be denied, and the Defendants’ Motion
will be granted. A separate order will issue.
2019.07.31 17:39:28 -04'00' Dated: July 31, 2019 TREVOR N. McFADDEN, U.S.D.J.