Coast Guard vessels struck and killed Northern Right whales. Plaintiffs claim that these incidents constitute takings in violation of the ESA and MMPA. Court holds that the Coast Guard could implement reasonable and prudent alternatives that would reduce the striking of whales.
Richard Max Strahan appeals from the grant of summary judgment in favor of federal defendants on his claims alleging violations of the Endangered Species Act ("ESA"), the Marine Mammal Protection Act ("MMPA"), and the National Environmental Policy Act ("NEPA"). We affirm.
I. Background
On June 7, 1994, Strahan filed a pro se complaint against the Coast Guard alleging violations of the ESA, the MMPA, NEPA, and the Whaling Convention Act ("WCA"). n1 Strahan moved for a preliminary injunction, and the Coast Guard cross-moved for summary judgment in its favor. By decision dated May 2, 1995, the district court granted the Coast Guard's motion for summary judgment, in part. However, the district court concluded that, given the Coast Guard's "dilatoriness and neglect in initiating mandated procedures," Strahan was entitled to a preliminary injunction directing the Coast Guard to fulfill certain procedural requirements of the ESA, the MMPA, and NEPA.
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n1 The action was brought to protected five endangered species of whale--the Northern Right whale, the Humpback whale, the Blue whale, the Sei whale, and the Fin whale--and the non-endangered Minke whale.
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During this same period, the Coast Guard initiated formal consultation with the National Marine Fisheries Service ("NMFS") regarding its vessel operations along the Atlantic Coast. On August 1, 1995, the Coast Guard submitted a final (ESA) biological assessment to NMFS. On September 15, 1995, NMFS issued a biological opinion concluding that Coast Guard Atlantic activities did not jeopardize the continued existence of protected marine species. On September 22, 1995, the Coast Guard published a (NEPA) environmental assessment and a proposed finding of no significant impact. During the months that followed, several commentators urged the Coast Guard to prepare an environmental impact statement and to consider additional protective measures. In addition, on October 9, 1995, the Coast Guard struck a (suspected) Humpback whale. On February 22, 1996, the Coast Guard re-initiated consultation with NMFS.
On June 21, 1996, Strahan, now represented by counsel, filed a twenty-three count amended complaint. The amended complaint added defendants Secretary of Commerce, the National Oceanic and Atmospheric Administration, and NMFS.
On July 22, 1996, NMFS issued a second biological opinion. Based on new information that indicated a possible decline in the population of Northern Right whales, and taking into account cumulative effects, NMFS concluded that Coast Guard operations were likely to jeopardize the continued existence of Northern Right whales. Accordingly, it recommended reasonable and prudent alternatives, which would "significantly reduce[] the Coast Guard's potential to cause injury or mortality to a right whale, and therefore, avoid the likelihood of jeopardizing the continued existence of right whales." NMFS did not alter its earlier conclusion that Coast Guard activities were not likely to jeopardize other protected species.
On October 31, 1996, the Coast Guard published a final environmental impact statement which proposed the Atlantic Protected Living Marine Resources ("APLMR") Initiative. The APLMR Initiative essentially adopted and expanded on measures recommended in the NMFS's 1996 biological opinion. On December 9, 1996, the Coast Guard issued a Record of Decision announcing its intent to implement the APLMR Initiative.
On March 7, 1997, defendants moved for summary judgment. Strahan cross-moved for partial summary judgment. By order dated May 20, 1997, the district court granted full summary judgment in favor of defendants. This pro se appeal followed. Of the twenty-three counts in the amended complaint, Strahan makes an argument with respect to--or at least mentions--only fourteen of these counts on appeal (namely, Counts I, II, III, IV, VI, VII, IX, X, XII, XIII, XIV, XX, XXI, XXII).
II. The Standard of Review
A constant theme throughout Strahan's brief, but most strenuously argued in his introductory section, is that the district court erred in applying a deferential standard of review. He contends that as "past violators" of the provisions of the ESA and the MMPA, neither the Coast Guard nor NMFS is entitled to any deference. He also suggests that the district court extended deference to the federal agencies involved to the "point of gullibility." We disagree.
Contrary to Strahan's suggestion, the appropriate scope of review of federal agency action under the ESA, the MMPA, and NEPA is the standard set forth under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). See, e.g., Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1284 (1st Cir. 1996) (NEPA), cert. denied, 117 S. Ct. 2510, 138 L. Ed. 2d 1013 (1997); Sierra Club v. Glickman, 67 F.3d 90, 95-96 (5th Cir. 1995) (ESA). Under this standard, an agency decision may not be set aside unless found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706 (2)(A). When reviewing agency action, we apply the same legal standards that pertain in the district court. See Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997).
III. Jeopardy and the Duty to Conserve
Section 7 of the ESA, titled "Interagency Cooperation," places two responsibilities on federal agencies. Section 7(a)(1) provides that all agencies shall, "in consultation with and with the assistance of the Secretary," utilize their authorities in furtherance of the purposes of the ESA by carrying out programs for the conservation of endangered species and threatened species. n2 16 U.S.C. § 1536(a)(1). Section 7(a)(2) of the ESA requires that all federal agencies shall, in "consultation with and with the assistance of the Secretary," insure that any actions they authorize, fund or carry out "[are] not likely to jeopardize the continued existence" of any threatened or endangered species. 16 U.S.C. § 1536(a)(2). n3 Pursuant to 50 C.F.R. Part 402, the requirements of § 7 apply to "actions in which there is discretionary Federal involvement or control." 50 C.F.R. § 402.03.
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n2 Responsibility for administration of the ESA is primarily divided between the Secretary of the Interior and the Secretary of Commerce. See 16 U.S.C. § 1532(15). The Secretary of Commerce--and, by delegation, NMFS--has jurisdiction over the endangered species at issue here. See 50 C.F.R. §§ 222.23(a), 401.01(b).
n3 To comply with this subsection, an action agency must inquire whether protected species exist in the area of proposed action, and, if the answer is "yes," it must prepare a biological assessment. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. NMFS then must prepare a biological opinion indicating whether or not the proposed action will likely jeopardize the continued existence of the protected species. 16 U.S.C. § 1536(b)(3)(A). If NMFS reaches a jeopardy finding, it must suggest reasonable and prudent alternatives, if any, that can be taken to avoid likely jeopardy. See id.
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Five counts of the amended complaint relate to § 7 of the ESA. Construed broadly, Counts I and XII challenge the adequacy of the Coast Guard's biological assessment and NMFS's 1995 and 1996 biological opinions, prepared pursuant to § 7(a)(2). Count II challenges the Coast Guard's failure to initiate consultation under § 7(a)(2) regarding its duties of issuing Certificates of Documentation and Inspection to vessels. Count III alleges the failure to adopt or implement adequate conservation measures as required by § 7(a)(1). Count XX is a facial challenge to the validity of 50 C.F.R. § 403.02, which limits the applicability of § 7 to discretionary actions. Defendants argue that the APLMR Initiative meets the requirements of § 7(a)(1) of the ESA. The district court concluded that Strahan had failed to demonstrate, in any meaningful sense, specific measures that are necessary to prevent the loss of endangered species of whales that are missing from the APLMR. The district court further concluded that, in any event, the ESA does not mandate particular actions to be taken by federal agencies to implement § 7(a)(1). On appeal, Strahan makes no sustained argument that either of these conclusions is in error. Indeed, he makes no effort to explain in any detail why he thinks that the APLMR Initiative is inadequate. Rather, he makes conclusory suggestions, scattered throughout his brief, to the effect that nothing has changed and that, with the dismissal of his claims, it is back to "business as usual." Under the circumstances, we see no reason to set the district court's conclusions aside.
Strahan's arguments directed at the process and end result of the § 7(a)(2) consultation--and, in particular, the Coast Guard's biological assessment and NMFS's biological opinions--are similarly deficient. Without attempting to address each of his arguments, we note that, although he contends that the reasonable and prudent alternatives in the 1996 biological opinion are inadequate to "eliminate" jeopardy, he does not identify any specific measure that is lacking. Moreover, a reviewing court cannot substitute its own scientific judgment in place of the agency's judgment. In the absence of any meaningful challenge to the decision making process, or some reason to think that there has been a clear error of judgment, the court must defer to the agency's decision. n4 Cf. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989) ("An agency must have discretion to rely on the reasonable opinions of its own qualified experts . . . "); Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm'n, 59 F.3d 284, 290 (1st Cir. 1995) (observing that deference is especially marked in technical or scientific matters within the agency area of expertise).
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n4 Strahan does not renew specific challenges to the decision making process urged below but rejected by the district court.
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Finally, pursuant to 50 C.F.R. § 402.03, the requirements of § 7 do not apply to the Coast Guard's documentation and inspection duties. As the district court explained, the Coast Guard is required to issue Certificates of Documentation and Inspection if certain statutory criteria are met, none of which reference environmental concerns. If the statutory criteria are met, the Coast Guard has no discretion to deny a certificate (or to impose additional requirements directed at the protection of endangered species). Although Strahan renews his facial challenge to the validity of § 402.03, he makes no argument that the district court erred in ruling that this challenge is time-barred. Under the circumstances, his challenge must fail. Cf. Murrell v. Shalala, 43 F.3d 1388, 1389-90 (10th Cir. 1994) (stating that where plaintiff failed to address alternative independent finding that was, by itself, a sufficient basis for the denial of benefits, his success on appeal was foreclosed).
IV. The Anti-taking Provisions
Section 9 of the ESA prohibits the taking of endangered species. See 16 U.S.C. § 1538(a)(1). "Taking" is broadly defined and includes killing, wounding, pursuing, harassing or harming. 16 U.S.C. § 1532(19). Section 102 of the MMPA prohibits the taking of marine mammals. 16 U.S.C. § 1372(a). Under the MMPA, "taking" includes harassing, hunting, capturing, or killing. See 16 U.S.C. § 1362(13). Counts IX and X of the amended complaint allege, respectively, that the Coast Guard is violating these anti-taking provisions of the ESA and the MMPA. The complaint alleges that the Coast Guard is liable for takings by its own vessels, as well as for takings by non-Coast Guard vessels to which it has issued a Certificate of Documentation.
It is undisputed that, prior to the adoption of the APLMR Initiative, Coast Guard vessels struck and killed two Northern Right whales and struck a (suspected) Humpback whale. It is also undisputed that these incidents constitute takings in violation of the ESA and MMPA. Although Strahan sought a declaratory judgment to this effect, the district court found that such relief would be supererogatory in light of the Coast Guard's admissions. Strahan does not challenge this conclusion. Rather, he contends that injunctive relief is necessary to prevent future takings, and that the district court erred in concluding that the protective measures suggested by NMFS in its 1996 biological opinion and adopted by the Coast Guard in its APLMR Initiative warrant the grant of summary judgment in the Coast Guard's favor.
We agree with the district court that the measures adopted by the Coast Guard in its APLMR Initiative cover most of the substance of specific measures proposed by Strahan in his amended complaint. n5 To the extent that the proposed measures differ (and the district court highlighted the fact that Strahan's proposed speed guidance differs somewhat from that adopted by the Coast Guard), the district court appropriately deferred to agency expertise. NMFS concluded that the reasonable and prudent alternatives, if implemented, would reduce the risk of Coast Guard striking whales to the maximum extent possible. n6 NMFS explicitly approved the Coast Guard's speed guidance, and that decision was not "arbitrary and capricious." Under the circumstances, we think that the district court correctly found that Strahan failed to support a case for further injunctive relief.
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n5 We reject Strahan's contention that it was inappropriate to make a comparison between the APLMR Initiative and the measures requested in the amended complaint. At the time the district court made its decision, the case had been ongoing for almost three years. Strahan, himself, had moved for summary judgment on the takings claim. Under the circumstances, it was fair to hold him to the specific relief he requested. The district court considered both the specific measures requested in the amended complaint and the elaboration on these requests made at summary judgment.
n6 Under our case law, a risk of harm to endangered species- -even a significant risk of harm--does not support an injunction under the ESA. American Bald Eagle v. Bhatti, 9 F.3d 163, 167 n.5 (1st Cir. 1993). Rather, we have required a showing that the activity, if continued, will actually, as opposed to potentially, cause harm to the species. Id. at 166. Although NMFS did not attempt to quantify the level of risk under the proposed regime, we think it plain that it found the threat of a Coast Guard vessel strike to be a mere possibility. Indeed, at one point the 1996 biological opinion refers to the "unlikely" event of a random vessel strike of a Northern Right whale by a Coast Guard vessel.
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Finally, we reject Strahan's argument that the Coast Guard is liable for takings by non-Coast Guard vessels that it permits to operate. The Coast Guard's issuance of Certificates of Documentation and Inspection is analogous to the licensure of automobiles and drivers. The vessel owner or operator is an independent actor who is, himself, responsible for complying with environmental and other laws. Accordingly, by issuing the necessary permits to operate, the Coast Guard does not subject itself to liability for crimes, including takings, that actor may commit. Cf. Strahan v. Coxe, 127 F.3d 155, 163-64 (1st Cir. 1997) (contrasting the state's licensure of commercial fishing operations to use gillnets and lobster pots in a specific manner with its licensure of automobiles and drivers).
V. Recovery Plans
Section 4(f) of the ESA provides that "the Secretary [of Commerce] shall develop and implement plans . . . for the conservation and survival of endangered species and threatened species . . . , unless he finds that such a plan will not promote the conservation of the species." 16 U.S.C. § 1533(f). Section 115(b) of the MMPA requires the Secretary of Commerce to prepare conservation plans "as soon as possible" for depleted species, unless he determines that such a plan will not promote the conservation of the species. 16 U.S.C. § 1383b(b)(1)(C). Conservation plans under the MMPA are required to be modeled on recovery plans prepared under the ESA. n7 See 16 U.S.C. § 1383b(b)(2). NMFS has completed recovery plans for the Northern Right whale and the Humpback whale, but not the other endangered species of whales at issue here (namely, the Blue, Sei, and Fin whales). n8
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n7 Indeed, the district court concluded that a recovery plan under § 4(f) of the ESA fulfills the requirements for a conservation plan under § 115(b) of the MMPA. Strahan makes no meaningful argument that this is error.
n8 Marine mammals that are listed as endangered species under the ESA are "depleted species" within the meaning of the MMPA. See 16 U.S.C. § 1362(1)(C). Minke whales are not listed as threatened or endangered under the ESA or as depleted under the MMPA. See 62 Fed. Reg. 39157, 39159.
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Two counts of the amended complaint relate to the duty of NMFS to prepare recovery and conservation plans. Count XIII challenges the adequacy of NMFS's Northern Right Whale Recovery Plan. Count XIV challenges NMFS's failure "to prepare conservation plans for the Federally Protected Whales."
Strahan does not renew many of the specific challenges he urged below to the methodology and content of the Northern Right Whale Recovery Plan. Rather, he makes vague criticisms to the effect that the district court erred in finding that the plan is "unreviewable." n9 He suggests that the plan is "arbitrary and capricious" because it sets an [interim] goal--increasing the population of Northern Right whales to 6,000--that cannot "be reached . . . within the next two centuries." He also contends that the district court "erred when it found that NMFS had met the requirement for site-specific management plans by the mere recognition by it of whales in the Atlantic and Pacific oceans."
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n9 Contrary to Strahan's suggestion, the district court did not say that such plans are unreviewable. Rather, it concluded that the contents of such plans are largely discretionary.
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We reject these challenges to the Northern Right Whale Recovery plan essentially for the reasons stated by the district court. Nothing in § 4(f) mandates that a recovery plan set short-term, interim goals, and the goal of 6,000 is rationally connected with the goal of down-grading the Northern Right whale from an endangered to a threatened species. Moreover, the Northern Right Whale Recovery Plan does not simply "recognize" that there are Northern Right Whales in the Atlantic and Pacific oceans. Rather, it devotes separate chapters to the two populations. In addition, the district court correctly found that the plan addresses different habitats of Northern Right whales at different times of the year and contains measures specifically directed at each habitat.
Strahan also argues that the district court erred "when it allowed NMFS to take as long as it wants to develop recovery plans for other listed species of whales." However, Strahan makes no developed challenge to the lower court's reasoning. Under the circumstance, his challenge must fail. n10
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n10 We note that, since the district court's decision, NMFS has published a draft recovery plan for Blue whales. 62 Fed. Reg. 41366. In addition, NMFS has apparently made significant progress on draft plans for Sei and Fin whales. See Sen. Rep. 105-128, at 21 (1997).
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VI. Law Enforcement
Four counts of the amended complaint relate to shared duties of the Coast Guard and NMFS to enforce the requirements of the ESA and the MMPA. Counts VI and XII allege, respectively, that the Coast Guard and NMFS have failed in their duties to enforce the ESA. Counts VII and XXI allege, respectively, that the Coast Guard and NMFS have failed in their duties to enforce the MMPA. The district court granted summary judgment on these claims after concluding that Strahan had failed to introduce sufficient evidence to overcome the presumption of unreviewability of agency decisions not to enforce. See generally Heckler v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). The court also found, among other things, that "the Coast Guard recently has increased its efforts to enforce the ESA" and that "the record demonstrates that NMFS does enforce the ESA and the MMPA with some degree of vigor."
On appeal, Strahan makes no argument directed at the latter conclusions. Rather, he challenges the "presumption of unreviewability." He contends that review of enforcement by the Coast Guard and NMFS is available because (1) an enforcement policy is a "mandated" feature of a conservation "plan" [developed under § 7(a)(1) of the ESA] or a recovery plan [developed under § 4(f) of the ESA]; and (2) that these plans are themselves subject to review. This argument is waived for failure to present it in the district court. We add that, without expressing any opinions as to whether an enforcement policy is a required feature of such plans, both the Coast Guard's APLMR Initiative and NMFS's Northern Right Whale Recovery Plan express a commitment to vigorous enforcement of environmental laws.
VII. NEPA
In Count IV of the amended complaint, Strahan alleges that the Coast Guard has failed to comply with its duties under § 102(2)(c) of NEPA, 42 U.S.C. § 4332(2)(C), to prepare an environmental impact statement regarding Coast Guard vessel operations and Coast Guard documentation and inspection activities. The district court concluded in its May 2, 1995 order that the Coast Guard's documentation and inspection of individual vessels are not subject to NEPA. The Coast Guard subsequently completed a final environmental impact statement for its own vessel operations.
Strahan challenges the district court's conclusion that the Coast Guard's documentation and inspection of individual vessels is not subject to NEPA. We agree with the district court. NEPA is inapplicable because, in issuing Certificates of Documentation and Inspection, the Coast Guard has no discretion to consider environmental factors. See Milo Community Hospital v. Weinberger, 525 F.2d 144, 147-148 (1st Cir. 1975) (holding that the Secretary of HEW was not required to file an EIS when decertifying a hospital for non-compliance with safety code because he had a statutory duty to close the hospital and no discretion to take environmental factors into consideration); see also Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir. 1995) (collecting cases demonstrating that nondiscretionary agency action is excused from the operation of NEPA).
VIII. Conclusion
We have carefully considered the other arguments raised by Strahan in his brief and reject them as insufficiently developed or otherwise lacking in merit. Accordingly, the grant of judgment in favor of defendants is affirmed.