United States Court of Appeals For the First Circuit
No. 23-1736
THOMAS MELONE,
Plaintiff, Appellant,
ALLCO RENEWABLE ENERGY, LIMITED; ALLCO FINANCE LIMITED,
Plaintiffs,
v.
JANET COIT, in her official capacity of Assistant Administrator, National Marine Fisheries Service; NATIONAL MARINE FISHERIES SERVICE; VINEYARD WIND 1, LLC,
Defendants, Appellees,
DEBRA HAALAND, in her official capacity of Secretary of the Interior; JOHN A. ATILANO, II, Colonel, in his official capacity of Commander and District Engineer; MARTHA WILLIAMS, in her official capacity of Principal Deputy Director; US DEPARTMENT OF THE INTERIOR; BUREAU OF OCEAN ENERGY MANAGEMENT; GARY FRAZIER, in his official capacity of Assistant Director for Endangered Species; US ARMY CORPS OF ENGINEERS; US FISH AND WILDLIFE SERVICE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Kayatta, Lynch, and Gelpí, Circuit Judges. Thomas Melone and Allco Renewable Energy Limited on brief for appellant. Todd Kim, Assistant Attorney General, Environment & Natural Resource Division, U.S. Department of Justice, Mark Arthur Brown, Kevin W. McArdle, and Thekla Hansen-Young, Environment & Natural Resource Division, U.S. Department of Justice, and Lea Tyhach, and Gladys P. Miles, Office of the General Counsel, National Oceanic and Atmospheric Administration on brief for the federal appellees. David T. Buente, Jr., Peter C. Whitfield, James R. Wedeking, Kathleen Mueller, Jack W. Pirozzolo, and Sidley Austin LLP on brief for intervenor-appellee Vineyard Wind 1, LLC.
April 25, 2024 KAYATTA, Circuit Judge. This case is one of two appeals
in which various residents of Martha's Vineyard and Nantucket
oppose the construction of an offshore wind project aimed at
reducing reliance on fossil fuels by providing energy sufficient
to power 400,000 Massachusetts homes. Common to the two cases is
the assertion that federal agencies failed to follow the law or
good science -- as viewed by the residents -- in assessing the
possible impact of the project on the endangered North Atlantic
right whale. Our decision issued yesterday in Nantucket Residents
Against Turbines v. U.S. Bureau of Ocean Energy Management, et
al., (23-1501), rejected a challenge to a biological opinion issued
by the National Marine Fisheries Service ("NMFS") and relied on by
the Bureau of Ocean Energy Management ("BOEM") in permitting the
construction of the wind power project. In this case, we consider
a challenge to NMFS's issuance of an Incidental Harassment
Authorization ("IHA") to the project's developer -- Vineyard Wind
1, LLC ("Vineyard Wind") -- the receipt of which was also necessary
to construct the project. As we will explain, we find this
challenge also to be without merit.
I.
We first briefly rehearse the statutory background,
facts, and procedural history of the case.
- 3 - A.
The Marine Mammal Protection Act ("MMPA"), 16 U.S.C.
§ 1361 et seq., generally prohibits the "tak[ing]" of marine
mammals. 16 U.S.C. § 1371(a). "Take" means "to harass, hunt,
capture, or kill" a marine mammal, or to attempt to do so. Id.
§ 1362(13). The MMPA then delineates two kinds of "harass[ment]."
Level A harassment means "any act of pursuit, torment, or
annoyance" that "has the potential to injure a marine mammal or
marine mammal stock in the wild." Id. §§ 1362(18)(A)(i), (18)(C).
Level B harassment is less serious and means "any act of pursuit,
torment, or annoyance" that "has the potential to disturb a marine
mammal or marine mammal stock in the wild by causing disruption of
behavioral patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering." Id.
§§ 1362(18)(A)(ii), (18)(D).
The MMPA includes certain exceptions to its general take
prohibition. See, e.g., id. § 1371(a)(1)–(2). As relevant here,
the MMPA provides that "upon request . . . by citizens of the
United States who engage in a specified activity (other than
commercial fishing) within a specified geographic region," NMFS
shall authorize, for periods of not more than one year, "the
incidental, but not intentional, taking by harassment of small
numbers of marine mammals of a species or population stock" if the
agency finds, among other things, that "such harassment during
- 4 - each period concerned will have a negligible impact on such species
or stock." Id. § 1371(a)(5)(D)(i)(I). NMFS's authorization --
the IHA -- must then prescribe, where applicable, "permissible
methods of taking by harassment pursuant to such activity, and
other means of effecting the least practicable impact on such
species or stock," as well as "requirements pertaining to the
monitoring and reporting of such taking." Id.
§ 1371(a)(5)(D)(ii).
The process that applicants must follow to obtain an IHA
is set forth in detail in NMFS's implementing regulations. See 50
C.F.R. § 216.104. Once the applicant has supplied the information
required by the regulations, NMFS must then determine, based on
the best available scientific evidence, whether the taking by the
specified activity within the specific geographic region would
have a negligible impact on marine mammal stocks. Id.
§ 216.104(c).
B.
In 2009, BOEM began evaluating the possibility of wind
energy development in the Outer Continental Shelf offshore from
Massachusetts, pursuant to its authority under the Outer
Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331 et seq.
After several years of review and public coordination, BOEM
- 5 - identified and made available for leasing an area south of Martha's
Vineyard and Nantucket.
In 2015, BOEM awarded a commercial wind energy lease to
Vineyard Wind covering a 166,886-acre (or 675 square kilometer)
area. In 2017, Vineyard Wind submitted a proposed construction
and operations plan to BOEM for review and approval. The project
would consist of wind energy infrastructure capable of generating
around 800 megawatts of clean wind energy, enough to power 400,000
homes. The infrastructure would be constructed in a roughly
76,000-acre zone within the lease area.
In September 2018, Vineyard Wind requested an IHA from
NMFS to ensure compliance with the MMPA, because, as relevant here,
noise from proposed pile-driving activities during construction of
jacket and monopile foundations could incidentally disturb right
whales.
The North Atlantic right whale is listed as endangered
under the Endangered Species Act, 16 U.S.C. § 1531 et seq., and is
therefore protected by the MMPA. See 35 Fed. Reg. 18,319, 18,320
(Dec. 2, 1970); 16 U.S.C. § 1371(a)(3)(B); id. § 1362(1). While
they once numbered in the thousands, only 368 right whales remained
as of 2019, according to NMFS's estimate. See Int'l Ass'n of
- 6 - Machinists Local Lodge 207 v. Raimondo, 18 F.4th 38, 41 (1st Cir.
2021).
In April 2019, NMFS published notice in the Federal
Register regarding its proposal to issue an IHA to Vineyard Wind.
NMFS then requested comment on the proposed IHA.
On a parallel track, NMFS also considered the potential
impact of issuing Vineyard Wind an IHA by participating as a
cooperating agency in BOEM's review of the project proposal under
the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321
et seq. BOEM evaluated the environmental impact of the project
and memorialized its analysis in an environmental impact statement
("EIS"). Meanwhile, NMFS conducted a biological consultation
pursuant to the Endangered Species Act ("ESA"), producing a
"biological opinion" for BOEM that analyzed the project's effects
on ESA-listed species. BOEM issued a final EIS in March 2021.
See 86 Fed. Reg. 14,153 (Mar. 12, 2021). In May 2021, BOEM, NMFS,
and other cooperating agencies issued a joint record of decision
based on the EIS, which allowed for the installation of up to
eighty-four wind turbines at select sites, subject to avoidance,
mitigation, and monitoring measures identified in the EIS. NMFS
then issued a separate decision memorandum explaining why it
- 7 - adopted BOEM's EIS in support of its proposal to issue Vineyard
Wind the IHA.
On May 21, 2021, NMFS issued the IHA to Vineyard Wind.
In June 2021, NMFS published notice of its approval of the IHA
under the MMPA. See 86 Fed. Reg. 33,810 (June 25, 2021). As
relevant here, the IHA authorizes the non-lethal, incidental
Level B harassment of no more than twenty North Atlantic right
As detailed in the notice of issuance, NMFS evaluated
Vineyard Wind's proposed construction activities and their
potential impacts on fifteen species of marine mammals that it
found may occur in the area, including right whales. NMFS provided
a description of right whales and their presence in the project
area, as well as detailed the status of the declining population
of right whales. The agency explained that the project area is
part of an important migratory area for right whales, who also use
the area to feed. And it noted that aerial surveys showed right
whale sightings in the project area only between December and
April.
NMFS explained that pile-driving activities in
connection with the construction of up to eighty-four wind turbine
generators and one or more electrical service platforms in the
75,614-acre project area (the "specified geographic region") was
expected to create underwater noise that would result in Level B
- 8 - harassment. The agency determined that noise from pile driving is
the only source of right whale incidental harassment associated
with project construction. To estimate incidental harassment from
pile-driving noise, NMFS considered acoustic thresholds above
which the best available science indicates that marine mammals
would be impacted, the area that would contain noise above those
levels in a day, the occurrence of marine mammals in that area,
and the maximum potential number of days during which pile-driving
activities would be permitted (102 days between May and November).
NMFS predicted that, given the extensive mitigation
measures to be adopted, no Level A harassment of right whales would
occur. Those measures include the use of seasonal restrictions on
pile driving, where pile driving would only take place from May to
November, and could only extend to December if unforeseen
circumstances arose and BOEM approved the extension. Other
measures include the use of sound attenuation devices, acoustic
monitoring devices, trained protected species observers during
construction, soft-start pile-driving procedures, and vessel
strike avoidance measures.1
NMFS determined that the twenty right whales subject to
Level B harassment constituted 5.4% of the population (estimated
1 Vineyard Wind tells us that, due to unexpected delays, it has not yet installed all monopile foundations, but will seek to do so this coming fall.
- 9 - at 368 as of 2019), and that the amount was a "small number[]" of
right whales under the MMPA. The agency made its small numbers
finding "based on an analysis of whether the number of individuals
taken annually from a specified activity is small relative to the
stock or population size."
NMFS also determined that the authorized harassment
would result in a "negligible impact" on the right whale
population. It determined that the whales affected by pile-driving
noise may temporarily abandon their activities while swimming away
from the noise, temporarily avoid the project area, and experience
a temporary hearing impairment. But it determined that exposure
to pile-driving noise would not impact any essential behavioral
patterns or annual rates of recruitment and survival, nor would
any right whale be injured or killed.
C.
In July 2021, plaintiff Thomas Melone -- a part-time
resident of Martha's Vineyard, and owner of two solar energy
companies joined as plaintiffs -- filed suit in the District of
Massachusetts against NMFS, BOEM, and other federal agencies and
officials, alleging that the Vineyard Wind project approvals
violated various federal statutes, including the MMPA.
Vineyard Wind moved to intervene as a defendant. Melone
opposed the request, and the federal defendants took no position.
The district court granted Vineyard Wind leave to intervene
- 10 - permissively under Federal Rule of Civil Procedure 24(b), while
denying it leave to intervene as of right pursuant to Rule 24(a).
In so doing, the district court found that Vineyard Wind has
significant interests at stake in this litigation (including,
among other things, over $300 million already invested in the
project and contracts worth over $3 billion to install the
facility); that the outcome may impair its ability to protect those
interests; and that it had agreed to work with existing parties to
avoid unnecessary delays in the proceedings.
Melone eventually filed his operative second amended
complaint, which asserted only two counts under the MMPA relating
to NMFS's issuance of the IHA to Vineyard Wind. Count I alleged
that NMFS did not comply with certain timing-related requirements
of the MMPA, 16 U.S.C. § 1371(a)(5)(D), when it issued the IHA.
Count II alleged that NMFS's interpretation of various provisions
of section 1371(a)(5)(D) improperly led it to issue the IHA to
Vineyard Wind, and that such action is arbitrary, capricious, and
unlawful under the Administrative Procedure Act, 5 U.S.C.
§ 706(2)(A). The parties then cross-moved for summary judgment.
The district court granted summary judgment in favor of
NMFS and Vineyard Wind in full. As to Count I (the dismissal of
which Melone does not appeal), the court found that NMFS did not
comply with certain notice procedures under the MMPA, but that any
such error was harmless. As to Count II, the district court held
- 11 - that NMFS complied with the MMPA in issuing the IHA to Vineyard
Wind.
This appeal followed, in which Melone challenges (1) the
district court's order permitting Vineyard Wind to intervene as a
defendant and (2) the district court's order entering summary
judgment for defendants NMFS and Vineyard Wind on Count II.
II.
We consider first Melone's challenge to the district
court's order granting Vineyard Wind permission to intervene under
Federal Rule of Civil Procedure 24(b).
We review a district court's disposition of a motion for
permissive intervention for abuse of discretion, reviewing
subsidiary conclusions of law de novo and factual findings for
clear error. T-Mobile Ne. LLC v. Town of Barnstable, 969 F.3d 33,
38 (1st Cir. 2020) (citing Int'l Paper Co. v. Inhabitants of Town
of Jay, 887 F.2d 338, 343 (1st Cir. 1989)).
Under Rule 24(b), a district court may allow the
intervention of any party who "has a claim or defense that shares
with the main action a common question of law or fact." A district
court's determination of whether to grant a motion for permissive
intervention is "highly discretionary," Liberty Mut. Ins. Co. v.
Treesdale Inc., 419 F.3d 216, 227 (3d Cir. 2005) (internal
quotation omitted), and it may consider "almost any factor
rationally relevant" in making that determination, Daggett v.
- 12 - Comm'n on Gov. Ethics and Election Pracs., 172 F.3d 104, 113 (1st
Cir. 1999).
The district court denied Vineyard Wind's motion to
intervene as of right under Rule 24(a) but granted its motion for
permissive intervention under Rule 24(b). In so doing, the
district court noted what was obvious -- Vineyard Wind "has
significant interests at stake in this litigation and that the
outcome may impair its ability to protect those interests."
Melone contends that Vineyard Wind was required to
establish independent Article III standing before intervening.
But this is not so, given that Vineyard Wind simply seeks to defend
the agency's position. Cf. Town of Chester v. Laroe Estates, 581
U.S. 433, 439–40 (2017) (holding that an intervenor as of right
must establish independent standing to seek additional relief
beyond that sought by a party with standing); Va. House of
Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (noting
that intervenor's participation in support of other existing
defendants did not require invoking the court's jurisdiction, and
thus did not require that it independently demonstrate standing,
until intervenor alone sought to appeal the district court's
order).
Melone's remaining challenges to the intervention ruling
fare no better. There was no abuse of discretion in the district
court's finding that Vineyard Wind has a significant stake in, and
- 13 - thus shares a common question of fact with, this litigation. And,
in any event, Melone fails to argue, let alone demonstrate, that
the intervention in any way prejudiced his substantial rights.
Rife v. One West Bank, F.S.B., 873 F.3d 17, 19 (1st Cir. 2017)
(explaining that arguments not raised in an opening brief on appeal
are deemed waived). And absent that showing, any such error would
not warrant disturbing the district court's single entry of summary
judgment for NMFS and Vineyard Wind. Cf. Prete v. Bradbury, 438
F.3d 949, 960 (9th Cir. 2006) (finding harmless the district
court's erroneous grant of intervention). Melone's objection to
Vineyard Wind's presence in this case therefore fails.
III.
We consider now Melone's challenge to the district
court's order awarding summary judgment to NMFS and Vineyard Wind.
He argues only that the district court erred in finding that NMFS
complied with the MMPA in issuing the IHA to Vineyard Wind. And
he further limits that argument by training his sights on two
alleged errors. First, he argues that NMFS's determination that
the incidental harassment of up to twenty right whales constituted
a "small number" under the MMPA was arbitrary, capricious, and
unlawful. Second, he argues that NMFS's consideration of the
"specified activity . . . within a specific geographic region"
where incidental harassment may occur for purposes of Vineyard
- 14 - Wind's IHA was impermissibly narrow in scope. We recite our
standard of review and then treat Melone's arguments in turn.
A.
We review the district court's grant of summary judgment
de novo. Dubois v. U.S. Dep't of Agric. 102 F.3d 1273, 1283 (1st
Cir. 1996). In so doing, we review the agency's compliance with
the MMPA under the Administrative Procedure Act ("APA"). Ctr. for
Biological Diversity v. Salazar, 695 F.3d 893, 901–02 (9th Cir.
2012). Under the APA, we may not set aside an agency decision
unless it is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law," or "unsupported by
substantial evidence." 5 U.S.C. §§ 706(2)(A), (E). "A decision
is arbitrary and capricious 'if 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.'" Craker
v. DEA, 714 F.3d 17, 26 (1st Cir. 2013) (quoting Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
Melone's principal argument on appeal is that NMFS erred
in finding that the proposed incidental harassment of up to twenty
- 15 - right whales (or 5.4% of its population) constituted a "small
number" of the species, as required to grant the IHA under the
MMPA. See 16 U.S.C. § 1371(a)(5)(D)(i). He argues that the agency
has adopted a "blanket policy" under which it will determine any
take of up to one-third of a species' stock to be a "small number"
under the MMPA. He then argues that this policy is both arbitrary
and capricious and constitutes an unreasonable interpretation of
the MMPA.
Under the MMPA, NMFS may only authorize the incidental
take of "small numbers of marine mammals of a species or population
stock" via the issuance of an IHA. 16 U.S.C. § 1371(a)(5)(D)(i)
(emphasis added). The MMPA does not define "small numbers."
Legislative history shows that Congress recognized "the
imprecision of the term 'small numbers,' but was unable to offer
a more precise formulation because the concept is not capable of
being expressed in absolute numerical limits." H.R. Rep. No. 97-
228, at 19 (1981), as reprinted in 1981 U.S.C.C.A.N. 1458, 1469.
NMFS has accordingly adopted a "proportional approach," whereby it
"compares the number of individuals taken to the most appropriate
estimation of abundance of the relevant species" to determine
whether the authorized take is limited to "small numbers" of that
species. The Ninth Circuit has upheld the U.S. Fish and Wildlife
Service's ("FWS") use of such a proportional approach under the
- 16 - MMPA as a reasonable interpretation of the MMPA. See Salazar, 695
F.3d at 906–07.2
Here, in assessing whether Vineyard Wind's activity
would incidentally harass only "small numbers" of right whales,
NMFS determined that, pursuant to its proportional approach, its
authorization to inflict Level B, non-lethal harassment on up to
twenty right whales -- constituting less than 5.5% of its
population stock -- was a "relatively small percentage[]" of that
stock. After Melone brought suit challenging the agency's
determination, NMFS then defended its approach before the district
court by noting that "NMFS has set the upper limit for 'small
numbers' under [its] proportional approach as one-third of a
species' population." The agency then cited an unrelated final
rule, which stated that "[c]onsistent with past practice, when the
estimated number of individual animals taken . . . is up to, but
not greater than, one-third of the most appropriate species or
stock abundance, NMFS will determine that the number of marine
mammals taken of a species or stock are small." Now, Melone argues
that the agency improperly rubberstamped Vineyard Wind's proposed
2 Salazar also held that NMFS and FWS, when promulgating incidental take regulations under the MMPA, must make separate findings as to whether the authorized take constitutes "small numbers" of the species and if it would have a "negligible impact" on the species. See 695 F.3d at 903–05. Melone does not argue that NMFS failed to make the requisite distinct findings here.
- 17 - Level B harassment of 5.4% of the right whale population simply
because it is less than one-third.
On appeal, NMFS walks back its invocation of this so-
called one-third rule in the face of Melone's attempt to hoist the
agency by its own petard. It argues that we need not reach the
issue of what constitutes the upper limit of the term "small
numbers," and that the agency did not rest its "small numbers"
finding here on the grounds that the non-lethal harassment of up
to twenty right whales affected less than one-third of the species'
population. As a result, NMFS contends that Melone cannot
challenge the agency's erstwhile use of the one-third rule here,
where it formed no part of the agency's reasoning in issuing
Vineyard Wind the IHA.
We agree with NMFS. The record shows that the agency
only invoked the one-third upper limit as a belated post hoc
rationalization of its "small numbers" finding in litigation.
There is no evidence in the administrative record that it played
any role in the agency's decisional process or that the agency
otherwise applied the policy in determining whether to issue
Vineyard Wind the IHA. It is a bedrock principle of administrative
law that a court reviewing agency action may consider only the
agency's explanation given at the time the relevant decision was
made, as opposed to its post hoc rationale. See SEC v. Chenery
Corp., 318 U.S. 80, 87–88 (1943). As a result, to the extent
- 18 - Melone takes issue with NMFS's "small numbers" determination based
on its ostensible application of a hard-and-fast one-third rule,
his argument fails.3
Putting aside Melone's critique of the agency's one-
third rule, he offers little to otherwise support a finding that
the non-lethal harassment of twenty right whales (or 5.4% of its
population) is not a "small number." Indeed, other courts have
upheld similar agency determinations, and Melone presents no
persuasive counterpoint. See, e.g., Native Vill. of Chickaloon v.
NMFS, 947 F. Supp. 2d 1031, 1052–53 (D. Alaska 2013) (upholding
NMFS's determination that a take of 10% of the beluga whale
population affected a "small number" of beluga whales).
Melone argues in passing that "small numbers" should be
limited to the "potential biological removal" threshold for right
whales, which is less than one. The MMPA defines "potential
biological removal" as the "maximum number of animals, not
including natural mortalities, that may be removed from a marine
mammal stock while allowing that stock to reach or maintain its
optimum sustainable population." 16 U.S.C. § 1362(20). However,
the IHA does not authorize the lethal take of any right whales --
3 We thus need not and do not consider the propriety of such a one-third rule. We hold only that the agency's determination on this record that 5.4% of the right whale population constituted a "small number" for purposes of the MMPA was not arbitrary, capricious, or otherwise unlawful.
- 19 - it only authorizes temporary, non-lethal harassment of up to twenty
right whales. And, as NMFS notes, the MMPA does not require
consideration of potential biological removal as part of the IHA
process. Rather, the statute's use of the term refers to the
development of commercial fishery take-reduction plans. Compare
id. § 1371(a)(5)(D), with id. § 1387(f)(2). If anything, the
agency already considered the impact of the authorized harassment
on the species as part of its distinct "negligible impact"
analysis, which Melone does not challenge. As a result, Melone's
argument fails.
In summary, it is clear from the record that NMFS applied
its scientific expertise to consider the nature of Vineyard Wind's
activities and the type of harassment expected to occur, to
quantify the proposed take based on pile-driving noise relative to
the right whale population, and to make a separate finding that
the proposed take would have a "negligible impact" on the species.
See Native Vill. of Chickaloon, 947 F. Supp. 2d at 1051; see also
City of Taunton v. EPA, 895 F.3d 120, 126 (1st Cir. 2018) (noting
that under the APA's arbitrary and capricious standard of review,
a court's deference is heightened when an agency's decision-making
relies on its scientific and technical expertise). Given these
- 20 - considerations, we find no fault with the agency's "small numbers"
determination here.
Melone next argues that NMFS improperly segmented
Vineyard Wind's "specified activity" that might result in
incidental take and the "specific geographic region" within which
that activity would occur for purposes of issuing the IHA. First,
he argues that the statute requires a collective approach to IHA
approval, and that it was error for NMFS to consider only Vineyard
Wind's "specified activity" rather than also those of others
engaging in similar activities contemporaneously. Second, he
argues that NMFS improperly let Vineyard Wind define the "specific
geographic region" as a 75,614-acre portion of the lease area, and
that the region itself was impermissibly narrow in scope. Across
both arguments, Melone's essential claim is that the agency's
approach improperly segments applicant activities and regions so
that the IHA appears to authorize the non-lethal harassment of
only "small numbers" of right whales while ignoring its cumulative
effect on the species. We consider each argument in turn.
1.
The MMPA provides that IHAs may be issued "[u]pon request
therefor by citizens of the United States who engage in a specified
activity (other than commercial fishing) within a specific
geographic region." 16 U.S.C. § 1371(a)(5)(D)(i). NMFS
- 21 - regulations define "specified activity" as "any activity, other
than commercial fishing, that takes place in a specified
geographical region and potentially involves the taking of small
numbers of marine mammals." 50 C.F.R. § 216.103. Those
regulations similarly define "specified geographic region" as "an
area within which a specified activity is conducted and that has
certain biogeographic characteristics." Id. NMFS regulations
also prescribe that IHA applicants must include descriptions of
the relevant specified activity and the geographic region within
which incidental take may occur in their application. See 50
C.F.R. § 216.104.
Melone claims that the MMPA mandates that NMFS analyze
collectively all activities similar to those proposed by Vineyard
Wind because the statute refers to applications by "citizens" and
specifically excludes "commercial fishing." However, the
statutory provision at issue concerns whether NMFS shall grant an
IHA to a particular permittee, whether composed of a citizen or
citizens. The process is plainly applicant-driven. Moreover,
nothing in the MMPA expressly requires that NMFS analyze a broader
range of activities outside the scope of an individual IHA
application. See 18 U.S.C. § 1371(a)(5)(D); 50 C.F.R. § 216.104.
As NMFS notes, the statute does not require it to consider takes
resulting from all activities proposed by all citizens undertaking
similar activities, but rather only those citizens who submit the
- 22 - request. Additionally, the statute excludes "commercial fishing"
not because "specified activity" is meant to refer to a similarly
broad category of activities, but because commercial fishing
operations are regulated under a different provision of the MMPA.
See 16 U.S.C. § 1387.
Relevant legislative history also shows that Congress
intended that "specified activity" be "narrowly identified so that
the anticipated effects" resulting from the activity "will be
substantially similar." H.R. Rep. No. 97-228, at 19 (Sept. 16,
1981). That House Report noted that it would not "be appropriate
for the Secretary to specify an activity as broad and diverse as
outer continental shelf oil and gas development," but that
activities "should be separately specified as, for example,
seismic exploration or core drilling." Id. Here, based on
Vineyard Wind's IHA application, NMFS considered the "specified
activity" to be pile driving associated with project construction
during a one-year period, including the use of vessels to support
pile installation. To do so was neither arbitrary nor capricious.
Melone also argues that NMFS failed to consider the
cumulative effect on right whales resulting from other activities
apart from those proposed by Vineyard Wind. But this too misses
the mark. As NMFS notes, it did consider the effects of ongoing
and past anthropogenic activities aside from Vineyard Wind's
project as part of its "negligible impact" analysis, which analyzes
- 23 - the species' density, distribution, population size, growth rate,
and other relevant stressors. Additionally, NMFS explained when
issuing the IHA that NEPA required it to "evaluate[] the direct,
indirect, and cumulative effects of the [IHA]," which it did by
participating as a cooperative agency in BOEM's development of the
project's EIS. It also considered such factors when preparing its
biological opinion for BOEM in compliance with the ESA. Meanwhile,
Melone challenges none of those determinations here. As a result,
his argument fails.
2.
Finally, Melone argues that NMFS improperly limited the
region in which covered activities would occur to that which
Vineyard Wind delineated in its IHA application -- a 74,614-acre
portion of the 675-square-kilometer lease area. He argues that
NMFS must determine the region based on similar "biogeographic
characteristics," see 50 C.F.R. § 216.103, and that such a region
should encapsulate the right whale's broader habitat up and down
the eastern shoreline from Maine to Florida, or at least the entire
area south of Martha's Vineyard where right whales are known to
mate and forage.
The MMPA left the term "specific geographic region"
undefined. The House committee report, however, noted that the
region "should not be larger than is necessary to accomplish the
specified activity, and should be drawn in such a way that the
- 24 - effects on marine mammals in the region are substantially the
same." H.R. Rep. No. 97–228, at 19 (Sept. 16, 1981). "Thus, for
example, it would be inappropriate to identify the entire Pacific
coast of the North American continent as a specified geographical
region, but it may be appropriate to identify particular segments
of that coast having similar characteristics, both biological and
otherwise, as specified geographical regions." Id.
NMFS defends its approach by arguing that it need not
define the region more broadly for purposes of the IHA because it
already considered the impact on the entire right whale population
as they migrate through the project area. As noted, it did so in
its "negligible impact" analysis, its biological opinion, and in
its participation in BOEM's EIS. In its view, there is "no take
that would result from the project for which NMFS failed to
account." Moreover, the agency argues that the area in question
is precisely where Vineyard Wind's pile-driving activities, and
therefore incidental harassment, would occur, and that this area
shares similar biological characteristics. As a result, it argues
-- and we agree -- that Melone's overarching concern that the
agency's narrow delineation of the "specific geographic region"
threatens to ignore the project's broader effect on the right whale
population is unwarranted. We therefore find that here, the
- 25 - agency's delineation of the "specific geographic region" was
proper.4
IV.
We need go no further. For the foregoing reasons, the
judgment of the district court is affirmed.
4 Melone also appeals, at length, the application of what is known as the Chevron doctrine. See Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984). But because we find no need in this case to defer to any interpretation by the agency of any statute or regulation, we have no reason to consider whether and how that doctrine might otherwise apply.
- 26 -