Center For Biological Diversity v. NOAA Fisheries

Background

The Center for Biological Diversity and Friends of the Earth challenged a 2017 biological opinion issued by the National Marine Fisheries Service. The opinion evaluated the U.S. Coast Guard’s codification of shipping lanes, called Traffic Separation Schemes, near the ports of Los Angeles/Long Beach and San Francisco and in the Santa Barbara Channel.

The challenged shipping lanes are used by vessels approaching those ports. The action area contains habitat for endangered and threatened species, including blue, fin, and humpback whales and leatherback sea turtles. The plaintiffs alleged that ship strikes harm these species and that the agencies violated the Endangered Species Act by failing to properly analyze the lanes’ effects and by failing to issue a lawful incidental take statement.

The National Marine Fisheries Service analyzed the effects of the lanes by comparing them with a hypothetical “no-lane scenario.” Under that scenario, the agency assumed that ships would be more dispersed or spread out. The agency concluded that the lanes reduced overall exposure and ship-strike risk compared with that hypothetical scenario, and therefore concluded that the action was not likely to jeopardize blue or humpback whales and was extremely unlikely to affect fin whales and leatherback turtles. The biological opinion did not include an incidental take statement.

Standing and Legal Standard

The court first held that the plaintiffs had standing. The declarations submitted by the plaintiffs explained their members’ interests in preserving the protected species and how ship strikes injured those interests.

The court reviewed the agency action under the Administrative Procedure Act’s “arbitrary and capricious” standard. Under that standard, a court must set aside an agency decision that is arbitrary, capricious, an abuse of discretion, or otherwise unlawful. The court also applied the summary-judgment standard, under which judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law.

Endangered Species Act Violation

The court held that the biological opinion violated the Endangered Species Act. Although the court gave some deference to the agency’s no-lane analysis, it found that the agency could not determine that there was no incidental taking merely because the hypothetical no-lane scenario would result in more harm than the designated lanes. The court emphasized that the protected species were undisputedly harmed by ship strikes in the designated lanes.

The court concluded that the use of the no-lane scenario to avoid quantifying incidental take was irrational in these circumstances. Because the species were present and reasonably certain to be affected by the shipping lanes, including through lethal ship strikes, the biological opinion should have included an incidental take statement specifying the amount of authorized take. The absence of that statement made the biological opinion arbitrary, capricious, an abuse of discretion, and not in accordance with law. The court therefore granted the plaintiffs’ motion for summary judgment on their first cause of action and did not address the plaintiffs’ additional arguments.

U.S. Coast Guard’s Reliance on the Biological Opinion

The plaintiffs’ second cause of action challenged the U.S. Coast Guard’s reliance on the 2017 biological opinion. Because that claim was based on the biological opinion’s violation of the Endangered Species Act, the court held that the Coast Guard’s reliance on it was also arbitrary and capricious. The court granted the plaintiffs’ motion for summary judgment on the second cause of action.

Disposition

The court granted the plaintiffs’ motion for summary judgment on the first and second causes of action and denied the defendants’ cross-motion for summary judgment. The court vacated and set aside the 2017 Biological Opinion. The opinion does not state in the quoted conclusion that the court separately granted the plaintiffs’ requested injunction or ordered a specific consultation schedule or ship-speed measure.