Georgia Aquarium, Inc. v. Pritzker (135 F. Supp. 3d 1280, 2015)

United States District Court for the Northern District of Georgia 2015-09-28

Conservation

Citations

Full opinion text

ORDER

AMY TOTENBERG, District Judge.

“The oceans deserve our respect and care, but you have to know something before you can care about it, ” This quotation from Dr. Sylvia Earle, the former chief scientist of the National Oceanic and Atmospheric Administration, is inscribed on the entry wall of the Georgia Aquarium’s Ocean Voyager exhibit. Georgia Aquarium is before this Court on an administrative appeal of the denial of its application for a permit under the Marine Mammal Protection Act to import eighteen beluga whales from Russia for use in a United States breeding cooperative and for public display.

The Aquarium, as the applicant for a permit under the MMPA, bears the burden of showing that it satisfied the necessary criteria for issuance under the Act and that its requested import is consistent with • the statute’s protective purposes. Enacted in light of the grave uncertainties as to whether marine mammal populations are in danger of extinction or depletion as a result of man’s activities, the House Committee report on the MMPA notes:

In the teeth of this lack of knowledge of specific causes, and of the certain knowledge that these animals are almost all threatened'in‘some way, it. seems elementary common sense to the Committee that legislation should be adopted to require that we act conservatively — that no steps should be taken regarding these animals that might -prove to be adverse or even irreversible in their effects until more is known.

Comm. for Humane Legislation, Inc. v. Richardson, 414 F.Supp. 297, 309 (D.D.C. 1976), affd, 540 F.2d 1141, 1148 (D.C.Cir. 1976) (citing H.R.Rep. No.92-707, at 15, 1972 U.S.C.C.A.N. 4148.)

Defendants denied the permit because the Aquarium failed in its burden -under the Act to demonstrate that salient statutory and regulatory criteria necessary to issue the permit had been met. • In essence, there were too. many material unknowns about the,.potential negative impacts of the removal of these beluga whales from the wild left open by the Aquarium’s permit application, despite their significance to the required criteria for permitting.

Background

On June 15,. 2012 Georgia Aquarium submitted an application to the National Marine Fisheries Service (“NMFS” or “the Agency”) under the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. § 1861 et seq., for'a permit to import eighteen beluga whales from Russia for public display. Georgia Aquarium sought to import the beluga whales “to -enhance the North American beluga breeding cooperative by increasing the population base of captive belugas to a self-sustaining level and' to promote conservation and education.” (Permit Application, AR 8927 at 14283.) The whales were previously captured and collected in the Sakhalin Bay of the Sea of Okhotsk in 2006, 2010, and 2011 by a team led by Dr. Lev Mukhametov, Director of Utrish Dolphinarium, Ltd. (Id. at 10, 12.) Since their- capture, the whales have been held at the Utrish Marine Mammal Research Station (UMMRS) on the Russian coast of the Black Sea. Upon arrival in the U.S., the whales would be distributed among six different aquaria facilities 'including the Georgia- Aquarium in Atlanta, Sea World Orlando, Sea World San Antonio, Sea World San Diego, Mystic Aquarium, and Shedd Aquarium pursuant to breeding loans. (AR 8927 at 14444.)

Following a lengthy notice and comment period, Georgia Aquarium’s, hopes were sunk on August 5, 2013, when NMFS denied Georgia Aquarium’s permit application. At the outset of its “Findings and Considerations” in support of. the denial of Georgia Aquarium’s permit, NMFS. states:

In reviewing this application through the lens of the purposes of the MMPA, we must consider the environmental impacts of the importation of these 18 beluga whales — not only the effects on the individual marine mammals, but also the current and future effects to the ecosystem from which they were' collected. According to statutory and regulatory language, it is the applicant’s responsibility, not that of NMFS, to demonstrate that the MMPA criteria have been met. This is outlined specifically in the statute at Section [13741(d)(3), which states a permit applicant “must demonstrate to the Secretary that the taking or importation of any marine mammal under such permit will be consistent with the purposes of this Act,” and in the regulations at 216.34, which states that “the applicant must demonstrate that” the proposed activities satisfy the statutory and regulatory criteria. NMFS’ review and consideration of the ongoing beluga capture operation and the information available regarding.the population status in the Sea of Okhotsk indicates that the requested action is not consistent with the purposes of the MMPA and NMFS’ implementing regulations.

(AR 8998 at 17421.)

NMFS cited three reasons why Georgia Aquarium’s application failed to satisfy the MMPA’s permit issuance criteria. • First, NMFS determined that Georgia Aquarium did not demonstrate that the proposed import “by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock” in accordance with 50 C.F.R. § 216.34(a)(4):

We cannot discount the likelihood that total removals from this stock have exceeded the total pet production on an , annual -basis resulting in a small, but steady and significant decline over.the past two decades. Further, the ongoing live-capture trade since 1989 may have contributed to a cumulative decline over the past two decades, and we considered .this- in combination with other past, present, and foreseeable future. actions. Therefore, we are unable to make the determination that the proposed activity, by itself or in combination with other activities, would not likely have had a significant adverse impact on the species or stock. -

(AR 8998 at 17440.)

Second, NMFS denied the permit application because Georgia Aquarium did not demonstrate that the proposed import would not likely result in the taking of marine mammals beyond those authorized by the proposed permit in accordance with 50 C.F.R. § 216.34(a)(7):

We have determined that the requested import will likely result in the taking of marine mammals beyond those authorized by the permit. There are ongoing, legal marine mammal capture operations in Russia that are expected to continue, and we believe that issuance of this permit would contribute to the demand to capture belugas from this stock for the purpose of* public display worldwide, resulting in the future taking of additional belugas from this stock.

(AR 8998 at 17440.)

Third, NMFS found that Georgia Aquarium did not demonstrate that some of the whales proposed for importation were not nursing at theitime of taking,, in accordance with 16 U.S.C. § 1372(b)(2) and 50 C.F.R. §■ 216.12(c): . -

We have determined that five of the [18] beluga whales proposed for import, estimated to be approximately 1.5 years old at the time of capture, were potentially still nursing and not yet independent [of their mothers]. This would only result in the inability to import these five specific animals, if not for the other criteria that [Georgia Aquarium] did not meet.

CAR 8998 at 17440.)

On September 30, 2013, Georgia Aquarium filed this appeal, pursuant to the Administrative Procedures Act (“APA”), asserting that NMFS’s permit denial was arbitrary, capricious, and not in accordance with the law. The parties have briefed the issues on appeal through cross-motions for summary judgment [Docs. 55, 59, & 61]. The Court reviewed the hefty administrative record and heard oral argument on August 14, 2015.

I. Parties

Plaintiff Georgia Aquarium Inc., is a private 501(c)(3) corporation that operates an aquarium in Atlanta, Georgia that is open to the public and which offers education and conservation programs regarding marine mammals and other aquatic life.

Defendants include: (1) Penny Pritzker, the current Secretary of Commerce, sued in her. official capacity, responsible for overseeing the proper administration and implementation of the MMPA; (2) National Oceanic and Atmospheric Administration (“NOAA”), an agency of the United States Department of Commerce with supervisory responsibility for the National Marine Fisheries Service, which has been delegated responsibility to ensure compliance with the MMPA; and (3) National Marine Fisheries Service (“NMFS”), an agency of-the United States Department of Commerce that has been delegated primary responsibility to ensure compliance with the MMPA within the Department of Commerce. The Court refers to Defendants collectively herein as NMFS or “the Agency.”

On April 18, 2014 the Court permitted the following five nonprofit organizations to intervene as Defendants in support of NMFS: Animal Welfare Institute, Whale and Dolphin Conservation, Whale and Dolphin Conservation, Inc. (North America), Cetacean'Society International, and Earth Island Institute. Members from these groups submitted comments to Georgia Aquarium’s permit application during the administrative public notice and' comment period. The Court will refer to these parties herein as Intervenor-Defendants.

II. Motions for Leave of Amici Curiae

On March 23, 2015 two groups of individuals and organizations separately filed motions for leave to file briefs as amici curiae in opposition to Georgia Aquarium’s summary judgment motion: (1) Defenders of Wildlife and The Humane Society of the United States, [Doc. 63]; and (2) Kim Bar singer, David' Blaine, Jean-Miehel Cousteau, Gabriela Cowperthwaite, Shannen Doherty, Dr. Sylvia Earle, Tim Eichen-berg, Dr. Jane Goodall, Dr. Denise Herz-ing, Dr. Janet Mann, Dr. Lori Marino, Edward Norton, Hayden Panettiere, Louie Psihoyos, Fisher Stevens, Bob Talbot, Charles Vinick, Ingrid Visser and Dr. Ma-sha Vorontsova (collectively referring to themselves as “the Conservationists”), [Doc. 66]. These motions are pending before the Court.

An amicus is a “friend of the court.” In re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233,1249 n. 34 (11th Cir.2006). Although there is no formal rule governing the filing of amicus curiae briefs, district courts possess the inherent authority to grant or refuse leave to ami-cus parties. Id. Courts typically grant amicus status where the parties “contribute to the court’s understanding of the matter in question” by proffering timely and useful information. Conservancy of Southwest Florida v. U.S. Fish and Wildlife Serv., No. 2:10-cv-106, 2010 WL 3603276 at *1 (M.D.Fla. Sept. 9, 2010) (citing Harris v. Pemsley, 820 F.2d 592, 603 (3rd Cir.1987)).

As' organizations and individuals with extensive experience in wildlife conservation, the amicus parties contend that their briefs may be useful to this Court by providing a unique perspective on the broader implications of importation and captive display, along with a scientific and legal context for the principles underpinning the MMPA. Georgia Aquarium disagrees. The Aquarium opposes the motions filed by the amicus parties, asserting (1) their' participation is not appropriate because the amicus briefs are not relevant or useful to the court; (2) the amicus briefs present nothing more than the personal, political opinions of'the parties, all of whom oppose public display generally; and (3) allowing their participation is akin to expanding the public comment period and supplementing the administrative record. .

After reviewing the proposed amicus briefs, this Court finds that the information proffered by the amici is both timely and useful. NMFS was tasked with determining whether Georgia Aquarium’s permit complied with the MMPA. Accordingly, information related to the scientific and legal context of the principles underpinning the MMPA is highly relevant to this Court’s analysis. For these reasons, the Court GRANTS ■ both motions for leave [Docs. 63 & 66] and has considered their briefs in its analysis.

III. Timeline

The following table summarizes the timeline of events relevant to this administrative appeal:

DATE_EVENT_^_

2006-2011 • 18 beluga whales at issue were captured from the Sakhalin Bay of the Sea of Okhotsk a team led by Dr. Lev Mukhametov, Director of Utrish Dolphinarium, __Ltd._

6/15/2012 • Georgia Aquarium submits MMPA application for import of 18 beluga whales from Russia

7/18/2012 ' • NMFS Permits Division determined application to be complete after some revision/supplementation

8/30/2012-10/29/2012 • Public notice and comment period (hearing held on 10/12/2012)

10/29/2012 • Marine Mammal Commission provides recommendations and concerns on ^_permit approval_ • •_

1/28/2013-7/2013 • Agency decision-making process ■

1/28/2013__• NMFS briefs Acting Administrator (AA) on public comments received_

2/2013-3/2013 • NMFS reviews and incorporates public comments into draft Environmental Assessment (EA), reviews permit to determine whether to grant as proposed or modify, considers granting permit with 30 year moratorium on imports of _beluga whales for public display_'__

3/8/2013 • NMFS briefs Acting Administrator (AA) on status of'permit review: NMFS makes preliminary findings that permit application was consistent with MMPA issuance criteria along with a 30 year’ moratorium but subsequently determines that preliminary findings are flawed (and no moratorium can be imposed by agency which must review each permit application on its own merits) and reconsiders (1) whether permit would result in significant adverse impact based on those flaws and available information and (2) whether import would result in additional takings beyond those authorized under the permit without implementation 30 year moratorium on beluga imports

4/2013 ' • NMFS begins drafting permit recommendation memo describing whether each MMPA criteria has been met • NMFS determines additional questions remained regarding whether application met MMPA criteria, including whether any of the whales were nursing at the time of their capture . _ . _

4/3/2013 • NMPS Chief of Permits and Conservation Division meets with Deputy AA to discuss ongoing concerns in available information and highlighted problems making the required findings under the MMPA

4/9/2013 ’ • NMPS provides summary to AA of determination NMFS was having difficulty making under MMPA, NMPS decides to move forward with a recommendation to deny permit

5/2013-7/2013 , • NMFS Chief of Permits and Conservation Division documents determination in recommendation memo/decision document. NFMS finalizes EA,

8/5/2013 • NMPS issues letter and decision to deny permit

9/30/2013 • Georgia Aquarium files administrative appeal in this Court

Standard of Review

The applicable standard under the APA is whether the agency’s, action is “arbitrary, capricious, an abuse of discretion, or .otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Defenders of Wildlife v. U.S. Dept of Navy, 733 F.3d 1106, 1114-1115 (11th Cir.2013). An agency action may be found arbitrary and capricious:

where 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.

Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264 (11th Cir.2009) (quoting Alabama-Tombigbee Rivers Coal. v. Kempthome, 477 F.3d 1250, 1254 (11th Cir.2007)).

“The arbitrary arid capricious standard is ‘exceedingly deferential.’ ” Defenders of Wildlife, 733 F.3d at 1115 (citing Fund for Animals, Inc, v. Rice, 85 F.3d 535, 541 (11th Cir.1996)).

To determine whether an agency decision was arbitrary and capricious, the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment,’ This inquiry must be ‘searching and careful,’ but ‘the ultimate standard of review is a narrow one,’ Along the standard of review continuum, the arbitrary and capricious standard gives an appellate court the least latitude in finding grounds for reversal; ‘[a]dministrative decisions should be set aside in this context ... only for substantial procedural or substantive reasons as mandated by statute, ... not simply because the court is unhappy with the result reached.’ The agency must use its best judgment in balancing the substantive issues. The reviewing court is not authorized to substitute its judgment for that of the agency concerning the wisdom or prudence of the proposed action.

Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541-42 (11th Cir.1996) (quoting North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1538-40 (11th Cir.1990) (footnotes and citations omitted)) (emphasis added).

In determining whether the agency acted arbitrarily and capriciously, the Court must ask whether the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action.” Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 781 F.3d 1271, 1288 (11th Cir.2015) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The Court is not authorized to substitute its judgment for the, agency’s as long as the agency’s conclusions, are rational. Defenders of Wildlife, 733 F.3d at 1115 (citing Miccosukee Tribe of Indians, of Florida v. United States, 566 F.3d. 1257, 1264 (11th Cir.2009)); Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.2008); Pres. Endangered Areas of Cobb’s History, Inc. (“PEACH”) v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir.1996) (“The court’s role is to ensure that the agency came to a rational conclusion, ‘not to conduct its own investigation and substitute its own judgment for the administrative agency’s decision.’”). While the Court should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned ... [it] may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Black Warrior Riverkeeper, 781 F.3d at 128’8 (internal citations omitted).

The Court has limited discretion to reverse an agency’s decision' when it “is making predictions, within its area of special expertise, at the frontiers of science ... as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.” Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1248-49 (11th Cir.2012) (quoting. Miccosukee Tribe of Indians, 566 F.3d at 1264 (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983))).

Marine Mammal Protection Act (“MMPA”) and Implementing Regulations

I. Purpose of the MMPA

The MMPA was enacted to protect marine mammal species and population stocks in the wild that are or may be “in danger of extinction or depletion as a result of man’s activities.” 16 U.S.C. § 1361(1) (enumerating the congressional findings and policies intended to be served by the Act); Florida Marine Contractors v. Williams, 378 F.Supp.2d 1353, 1356 (M.D.Fla.2005); Kanoa Inc. v. Clinton, 1 F.Supp.2d 1088,1093 (D.Haw.1998) (noting that the MMPA was enacted to ensure the protection and conservation of marine mammals). The stated purposes of the MMPA are:

(a) to prevent marine mammals species and population stocks from'“diminish[ing] beyond the point at which they cease to be a significant functioning element in the ecosystem, of which they are a part, [and] below their optimum sustainable population,” and

(b) to protect and encourage development of the species and stocks “to the greatest extent feasible commensurate with' sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem” with “the goal to obtain an optimum sustainable population____” 16 U.S.C. §§ 1361(2) & (6); see also, e.g., Florida Marine Contractors, 378 F.Supp.2d at 1356; Native Village of Chickaloon v. NMFS, 947 F.Supp.2d 1031,1049 (D .Alaska 2013).

“Optimum sustainable population” or OSP is “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.” 16 U.S.C. § 1362(9).

“The primary purpose of the MMPA is to protect marine mammals; the Act was not intended as a ‘balancing act’ between the interests of [] industry and the animals. The interests of the marine mammals come first under the statutory scheme, and the interests of the industry, important as they are, must be served only after protection of the animals is. assured.” Fed’n of Japan Salmon Fisheries Co-op. Ass’n v. Baldridge, 679 F.Supp. 37, 46 (D.D.C.1987) aff'd and remanded sub nom. Kokechik Fishermen’s Ass’n v. Sec’y of Commerce, 839 F.2d 795 (D.C.Cir.1988); Comm, for Humane Legislation, Inc. v. Richardson, 414 F.Supp. 297, 306 (D.D.C.) aff'd, 540 F.2d 1141, 1148 (D.C.Cir.1976).

II. Marine Mammal Import Permits

In furtherance of these statutory goals and purposes, the MMPA imposes a moratorium on the taking and importation of marine mammals, subject to certain limited exceptions. See 16 U.S.C. §§ 1371, 1374. However, the MMPA explicitly prohibits the import of any marine mammal that was — (1) pregnant at the time of taking; (2) nursing at the time of taking, or less than eight months old, whichever oc-. curs later; (3) taken from a species or population stock which the Secretary has, by regulation, designated as depleted; or (4) taken in a manner deemed inhumane by the Secretary. 16 U.S.C. § 1372(b); 50 C.F.R. § 216.12(c).

Under Section 1374 of the MMPA, NMFS may issue permits for the taking or importation of marine mammals for scientific research, enhancing' the survival or recovery of a species or stock, or public display, provided' that certain requirements are met. See 16 U.S.C. §§ 1371(a)(1), 1374(c)(2)(A); 50 C.F.R. § 216.34. Section 1374(d)(3) of the MMPA requires that'the permit applicant “must demonstrate ... that the taking or importation of any marine mammal under such permit will be consistent with the [Act] and the applicable regulations.” 16 U.S.C. § 1374(d)(3); see also id. at § 1374(b)(1). “Essential to this requirement' of § 1374(d)(3) that a permit applicant demonstrate a proposed import ‘will be consistent with the purposes of [the MMPA],’ is the mandate that stocks ‘should not be permitted to dimmish below them optimum sustainable populations] [OSP].’ ” 16 U.S.C. § 1361(2); Comm. for Humane Legislation, Inc. v. Richardson, 414 F.Supp. at 310.

Pursuant to the Act, NMFS’s regulations provide “issuance criteria” for such permits. 50 C.F.R. § 216.34. Under the relevant issuance criteria, “the applicant must demonstrate” that (a) “[t]he proposed activity by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock,” (50 C.F.R. § 216.34(a)(4)), and (b) “[a]ny requested import or export will not likely result in the taking of marine mammals or marine mammal parts beyond those authorized by the permit,” (50 C.F.R. § 216.34(a)(7)). In addition, § 216.12(c)(2) requires an applicant to show that the animals it seeks to import were 'not “nursing at the time of taking.” See also 16 U.S.C. §' 1372(b).

III. Burden of Proof

As NMFS stated in its Decision Document denying Georgia Aquarium’s permit application, “it is the [permit] applicant’s responsibility, not that of NMFS, to demonstrate that the MMPA. criteria have been met.” (AR 8998 at 17421.) See 16 U.S.C. § 1374(d)(3); 50 C.F.R. § 216.34 (stating “the applicant must demonstrate that” the issuance criteria are met). Section 1374 of the MMPA requires that an applicant for a permit for taking marine mammals must demonstrate that the taking “will be consistent with, the purposes” of the Act. 16 § U.S.C. 1374(d)(3). “The purpose of the requirement was stated clearly in the legislative history.” Comm. for Humane Legislation, Inc. v. Richardson, 540 F.2d 1141, 1150-51 (D.C.Cir.1976) (Citing H.R.Rep. No. 92-707, at 18 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4151-52.) As the House Report to the MMPA states:

In every case, the burden is placed upon those seeking permits to show that the taking should be allowed and will not .work to the disadvantage of the species or stock of animals involved. If that burden is not carried — and it is by no means a light burden — the permit may not be issued. The effect of this set of requirements is to insist that the management of the animal populations be carried out with the interests of the animals as the prime consideration.

H.R.Rep. No. 92-707, at 18 (1971), reprinted in 1972 U.S.C.C.Á.Ñ. 4144, 4151-52 (emphasis added). Thus the MMPA “imposes' a strict burden of' proof oh each applicant seeking to ... import marine mammals [for public display],” Comm, for Humane Legislation, Inc. v. Richardson, 414 F.Supp. at 303, under which it “must demonstrate that'the ... importation .:. under such permit will be consistent with”: (1) “the purposes of [the MMPA],” and (2) “the applicable regulations.” 16 U.S.C. § 1374(d)(3).

- Georgia Aquarium asserts that “[t]he Congressional policy behind the MMPA is central to this case,” but instead focuses on the support for permits for the; public display of marine mamnials because of the educational importance of informing the public about “the esthetic, recreational, and economic significance of marine mammals and their role in the ocean system.” (Doc. 55-1 at 13-14.) Thus, according to Georgia Aquarium, NMFS’s permit denial is “inconsistent with the Congressional policy to further the public-display of marine mammals” and is a “setback to marine mammal conservation, research and education.” (Id. at 14.)

Discussion

In its Motion for 'Summary Judgment, Georgia-Aquarium'asserts that NMFS’s permit denial'rests on the following ten identified eirors:

(1) NMFS arbitrarily created a new legal standard to measure the sustainability of removals from the wild — a standard that was applied only to the Aquarium’s permit application. NMFS’s newly-contrived standard was not applied before the permit application and has not been applied since.

(2) NMFS made findings- about the number of whales removed from the Sakhalin-Amur region without any supporting evidence. NMFS admits the paucity of their evidence by finding that the number of unproven, theoretically possible removals could have, exceeded the sustainable level rather than finding that the actual level of removals was, in fact, not sustainable.

(3) NMFS improperly relied on certain data that NMFS admits are incorrect,

(4) NMFS erroneously based the permit denial in part on a finding that the Sakhalin-Amur beluga population is declining and, therefore, removals are harmful. NMFS, however, admits it has no actual evidence of a population decline, stating instead that any such decline is only theoretically possible and “undetected.”

(5) NMFS incorrectly theorized the Sakhalin-Amur beluga population might be declining based on an improper comparison of (a) historic population estimates derived from multiplying the number of whales sighted on the surface during an aerial population survey by a correction factor of 12 (to account for unseen and submerged animals) with (b) current population estimates derived from multiplying the number of sighted whales by only 2. Such an apples-to-oranges analysis, could never survive unbiased scientific review, particularly when application of the same correction factor to both aerial surveys shows the population is increasing.

(6) To further create the illusion of a possible declining beluga whale population, NMFS improperly compared the maximum possible historic population to the current minimum possible population, and otherwise manipulated the statistics. Comparing máximums to mínimums and similar statistical manipulations violates common sense and basic scientific method.

(7) Despite finding it “extremely unlikely” that approving the import would lead to more imports of belugas into the U.S., NMFS concluded, without any evidentiary basis, that this import could create a demand in other nations to remove belugas from the Sea- of Okhotsk in violation of the MMPA.

(8) NMFS incorrectly decided the MMPA applies extraterritorially and 'demanded that Russia and its citizens cease collecting and then exporting beluga whales to other-nations, an action unsupported by applicable legal precedent.

(9) NMFS erroneously concluded 5 of the 18 belugas were nursing when collected, even though no mother-calf pairs or lactating females were collected and even though NMFS has no evidence of any nursing behavior.

(10) Through the totality of their errors • and denial of the permit, NMFS’s decision ignores the public policy that the prudent, properly regulated public display of marine mammals is an important aspect of public education and, public support for conservation, and also allows for critically important conservation research. This public policy is integral to the MMPA as articulated in its provisions and in 40 years of Congressional intent.

Georgia Aquarium’s arguments on appeal cast a wide net, but haul in little of substance. As succinctly explained by another court faced with similar questions posed here:

Congress foresaw the possibility that, in a given situation, there would be a lack of scientific information as to whether a proposed level of taking would be to the disadvantage of the marine mammals involved, and that might result in an inability to find whether the stock was at its optimum sustainable population. Before issuing any permit for the taking of a marine mammal, the Secretary must first have it proven to his satisfaction that any taking is consistent with the purposes and policies of the act — that is to say, that taking will not be to the disadvantage of the animals concerned. If he cannot make that finding, he cannot issue a permit. It is that simple.

Fed’n of Japan Salmon Fisheries Co-op. Ass’n v. Baldridge, 679 F.Supp. 37, 46 (D.D.C.1987) aff'd and remanded sub nom. Kokechik Fishermen’s Ass’n v. Sec’y of Commerce, 839 F.2d 795 (D.C.Cir.1988) (citing Comm, for Humane Legislation, Inc. v. Richardson, 414 F.Supp. at 310); see also 118 Cong.Rec. 7686 (1972). Here, NMFS found that “the historical information required to support the Aquarium’s assertion that [its] import, will meet the MMPA [was] lacking.” (AR 8998 at 17447.)

The Agency followed the statutory mandate of the MMPA in its denial of the Aquarium’s permit application. First, NMFS’s determination that the Sakhalin-Amur stock is likely declining and is subject to adverse impacts beyond the ongoing live-capture operations cited by Georgia Aquarium complies with the primary purpose of the MMPA to prevent marine mammals species and population stocks from “diminish[ing] beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, [and] below their optimum sustainable population.” 16 U.S.C. § 1361(2). Second, NMFS’s interpretation of its regulation as requiring that Georgia Aquarium demonstrate that the permit would not result in any replacement takes of additional beluga whales by the Russian capture operation is consistent with the purpose of the MMPA to prevent the decline of this stock of whales below its optimum sustainable population. And third, NMFS’s finding that some of the beluga whales proposed for import, estimated to be approximately 1.5 years old at the time of capture, were potentially still nursing and not yet independent of their mothers is based on unrebutted scientific literature that beluga whales are not likely fully independent-and still.rely to some extent on their mother’s milk until 3 years of age.

For these reasons, set forth more, fully below, the Court finds that NMFS’s permit denial was consistent with the purposes and requirements of the MMPA, and therefore was not arbitrary and capricious.

L INMFS’s finding that. Georgia Aquarium failed to show that its import permit, by itself or in combination with other activities, will not likely have an adverse impact on the Sakhalin-Amur stock of beluga whales was not arbitrar^ and capricious

Georgia Aquarium’s permit application seeks authorization from NMFS to import eighteen previously captured' beluga whales from Russia’s Sea of Okhotsk Sakhalin-Amur provisional- management stock. (AR 8927 at 14284-14285, Table 1.)

Table 1. Beluga Whales Requested for Import

ID No. Sex Estimated Estimated Weight . Length _(kilograms) (meters) Estimated Age Date of Collection Estimated Age at Collection

5/10 F 500 2.94 7.5 Aug-Sep.2010 5.5

7/10 M 350 2.74 3.5 Aug-Sep.2010 1.5

5/10 M 530 2.90 5.5 Aug-Sep.2010 3.5

11/10 M 520 3.30 7.6 Aug-Sep.2010 5.5

12/10 M 560 3.22 7.5 Aug-Sep.2010 5.5

1/10 M 250 2.66 3.5 Aug-Sep.2010 1.5

2/10 M 310 2.62 3.5 Aug-Sep.2010 1.5

3/10 M 360 2.73 3.5 Aug-Sep.2010 1.5

6/10 F 460 3.20 7.5 Aug-Sep.2010 5.5

9/10 F 180 2.40 3.5 Aug-Sep.2010 1.5

10/10 F 650 3.52 11.5 Aug-Sep.2010 9.5

27/11 F 280 2.40 3.5 June 2011 2.5

24/11 F 500 2.92 5.5 June 2011 4.5

21/11 F 300 2.48 3.5 June 2011 2.5

23/11 F 350 2.70 3.5 June 2011 2.5

17/11 M 350 2.74 3.5 June 2011 2.5

75/06 F 880 3.80 11.5 June 2006 5.5

78/06 F . 940 3.95 11.5 June 2006 5.5

(AR 8927 at 14286.) Because the subject whales were all originally captured prior to the permit request in 2006, 2010, and 2011, Georgia Aquarium’s permit application states,

[t]he activity under this permit will not include take from the wild. The action is only for importation for public display. The animals to be imported have already been collected and the potential impacts — if any — of their removal from the wild would occur regardless of the proposed . permit activity. Therefore, the permit activity would not directly result in effects on the Sakhalin-Amur beluga whale stock [and] any indirect effect of the permit activity on the Sakhalin-Amur beluga whale stock will be negligible.

(Id. at 14297.) There is some indication in the record, however, that some or all of the whales were captured specifically for Georgia Aquarium in anticipation of its applying for an import permit. The whales have been held by UMMRS, which is not a public display facility, exclusively for Georgia Aquarium pending the permit approval. Thus, NMFS viewed this permit request as one for the import of wild-caught belugas and not as one for the transfer of previously captive mammals.

Prior to and in preparation for submitting its permit application, Georgia Aquarium joined with other public display institutions/aquaria to research beluga whales in the Sakhalin — Amur region in the Sea of Okhostk to assess the sustainability of live-capture removals and the effects on that population stock. This research was submitted to an independent scientific review panel under the International Union for Conservation of Nature (IUCN) for review and to determine a “potential biological removal level” (referred to as PBR) for this stock of whales. (AR 8927 at 14296.) “Potential biological removal level” is a defined term under the MMPA, meaning:

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. The potential biological removal level is the product of the following factors:

(A) The minimum population estimate of the stock.

(B) One-half the maximum theoretical or estimated net productivity rate of the stock at a small population size.

(C) A recovery factor of between 0.1 and 1.0.

16 U.S.C. § 1362(20). The Act’s OSP requirement is built into the calculation of PBR.

Georgia Aquarium’s PBR calculation, based on aerial survey and population estimation data collected by Dr. Olga Shpak (of the A.N. Severtsov Institute of Ecology and Evolution, Russian Academy of Sciences) in 2009 and 2010, concluded that “the number of animals that could be removed without initiating a population decline” of the Sakhalin-Amur stock was 30 whales per year on average over a 5-year period. (AR 8927 at 14296 (citing Reeves et al. 2011 [IUCN Report]).) As explained in detail in Appendix A to the permit application, Georgia Aquarium’s PBR calculation is based on: (1) a minimum population estimate of the Sakhalin-Amur stock of 2,972, (2). an estimated net productivity rate of 0.04, and (3) a recovery factor of 0.5 (applied to a stock of unknown recovery status such as the Sea of Okhotsk beluga whales whose “populations have been depleted, and their recovery trajectory is unknown”). (AR 8927 at 14335-14336.) Table 2 to the application shows Georgia Aquarium’s PBR calculation:

(Id. at 14336.)

Georgia Aquarium' compared this PBR to the number of removals solely from the existing, live-capture operation in the Sakhalin Bay each year from 2000 tb 2011, shown below in Table 3 to the permit application:

(M at 14297.) The application then notes that:

• With the exception of 2010 and 2011, less than 30 total belugas were collected from Sakhalin Bay during any individual year from 2000 to 2011 (Table 3) and in no years recorded, did the number of belugas collected exceed 33. The average number of belugas collected over the last 5 years is 22.4.

• A number of whales were collected in 2006, 2010, and 2011 that would not be imported into the U.S. under this permit. The total combined number of belugas collected (Table 3) includes those that would be imported under this permit as well as others that would not be imported under this permit. The total number of belugas collected combining those that would be imported under this permit in addition to all other belugas collected in 2006, 2010, and 2011 was 83. This is an average collection of 27.7 belugas.

(AR 8927 at 14296-14297.) Based on this data, Georgia Aquarium concluded that “[b]ecause this is below the lowest possible PBR of 30, the effects of combined takes of beluga whales from this area, including those that would be imported under the permit activity, are not [] anticipated to result in adverse impacts on the Sakhalin-Amur stock.” (Id. at 14297.) Georgia Aquarium also determined that “there is no indication of any additional human-caused incidental mortality (IUCN 2011), so incidental mortality has not been taken into account in the above calculations.” (AR 8927 at 14337.)

NMFS determined that Georgia Aquarium failed to show that the requested import, by itself or in combination with other activities will not likely have a significant adverse impact on the stock, as required by 50 C.F.R. § 216.34(a)(4):

CRITERION 4: The proposed activity by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock (216.34(a)(4)).

NMFS determination: The Aquarium has not demonstrated that their activity will meet this requirement. The information they provided, including then analysis of impacts in Section IV.F., does not adequately consider the impacts of the proposed importation in combination with other past, present, and foreseeable future actions affecting the stock, including the ongoing live-captures from this stock. As discussed in Attachment 1. the Aquarium calculated a Potential Biological Removal (PBR)5 level for the Sakhalin-Amur stock and compared this to the current rate of removal for the live-capture trade. They used this calculated PBR as their .justification that the proposed importation meets me MMPA criterion that the proposed activity, by itself. or in combination with other activities, will not likely have a significant adverse impact on the species or stock.

Generally, looking only at the PBR and comparing that to the number of animals removed by a single activity is not an appropriate way to assess whether the proposed activity by itself or in combination with other activities, would likely have a significant adverse impact on the species or stock In addition, if the' Sakhalin-Amur stock has declined, as the available data seem to suggest. PBR is not an appropriate proxy to determine the sustainability of the live-capture activity.

Based on the data available, we cannot discount the possibility that the Sakhalin-Amur stock has experienced a small, yet significant and unsustainable decline over the past several decades that has gone» undetected given the minimal amount of monitoring that has occurred ■ over ■ the years. The live capture of beluga whales cannot be discounted as a possible contributing factor to this decline. See Attachment 1 for more detail.

(AR 8998 at 17422-23.)' NMFS characterized the relevant issue under the MMPA as whether “the beluga whale trade in the Sea of Okhotsk [is] sustainable[.]” (Id. at 17443.)

As explained further in Attachment 1 to the decision, “[t]he information available for [NMFS] to determine -whether the Aquarium meets this criterion is" considered data-poor and has considerable uncertainty. There is very little documented information about past’ abundance levels that can be compared to the present and there is limited information'on past and current threats to this population.” (Id. at 17443.) NMFS noted its concerns with the Aquarium’s PBR-based analysis — offered to demonstrate that the Russian capture operation was sustainable at current levels — as follows:

First, the information available leads us to believe that- removals likely exceed PBR. Second, even assuming that, as the Aquarium- posits, removals are commensurate with PBR, that measure is only appropriate where the stock is in■creasing, and that does not appear to be the case for the stock in question; In addition, we examined the application under a framework established by an intergovernmental organization and concluded that the information necessary to determine population trends that would be necessary to rely solely on PBR under their model is not-available..

(Id.)

Georgia Aquarium challenges as arbitrary and capricious, NMFS’s determinations that: (1) the PBR analysis cannot be used to assess the sustainability of removals from a declining marine mammal population; (2) the population of Sakhalin-Amur belugas is declining; and (3) the total number of removals exceeded PBR. (Doc. 55-1 at 16.)

A. NMFS’s determination that PBR is not an appropriate method to assess adverse impacts to a declining species stock was not arbitrary and capricious

Georgia Aquarium asserts that the MMPA employs PBR to measure sustainability and that removals below PBR are sustainable and thus satisfy the criteria in 50 C.F.R. § 216.34(a)(4). Georgia Aquarium further, contends its . permit application meets this standard because the total number of whales collected and proposed for import (18) was .below the calculated PBR (30). Thus, Georgia Aquarium challenges NMFS’s rejection of PBR as an appropriate, measure. of the sustainability of the live-capture of beluga whales in the Sea of Okhostk.

Specifically, Georgia Aquarium asserts that NMFS’s “theory that PBR cannot be used to assess the sustainability of takes is a newly-contrived standard” applied only to the Aquarium’s permit application. According to. Georgia Aquarium, prior to and after denying the Aquarium’s permit application, NMFS’s position has uniformly been that PBR is appropriate to assess the sustainability of removals from declining populations. As support for its position, Georgia Aquarium points to a purported “practice and policy” of NMFS using PBR for declining populations in issuing permits and other regulatory actions, including:

(1)a 2003 scientific research permit authorizing the lethal taking of 20 Steller sea lions from an' endangered and declining population, (Doc. 55-1 at 1819, Exhibit 1 to Mot.);

(2) a 2005 rule setting the annual Pribilof Islands fur seal subsistence take ranges as required by regulations at 50 C.F.R. § 216.72(b) to establish the number of seals that may be taken by Alaskan Native (Aleut) residents annually on the Pribilof Islands, (Doc. 55-1 at 19);

(3) a 2007 scientific research permit allowing the lethal taking of northern fur seals from a declining population of the eastern Pacific stock, (Doc. 55 — 1 at 20);

(4) a 2012 rule to implement a False Killer Whale Take Reduction Plan to reduce incidental mortalities and injuries of the ’Hawaii Pelagic and Hawaii Insular stocks of falsé' killer whales in the Hawaii-based commercial longline fishers, (Doc. 55-1 at 21);

(5) a 2014 scientific research permit authorizing the lethal taking by NMFS scientists of 22 northern fur seals from the declining eastern Pacific stock, (Doc. 55-1 at 21, Exhibit 2 to Mot.);

(6) the 2014 Final Supplemental Environmental Impact Statement Setting the Annual Subsistence Harvest of Northern Fur Seals on the Pribilof Islands for the purpose of conserving northern fur seals and manage the subsistence harvest of fur seals on St. George Island for them long-term sustainable use for purposes of cultural continuity, food, clothing, arts, and crafts, (Doc. 55-1 at 22); and

(7) litigation arising out of a challenge to a 2005 permit authorizing the lethal taking of 20 animals from the declining Steller sea lion in Humane Society of the U.S. v. Department of Commerce, 432 F.Supp.2d 4 (D.D.C.2006), in which NMFS stated in its summary judgment briefing that stated the “plain language” of the MMPA provides that “PBR analysis may be used to analyze” the impact of removing these marine mammals from the wild. (Doc. 55-1 at 23, Exhibits 5 and 6 to Mot.)

Georgia Aquarium asserts that the selective application of this new standard only to its permit application demonstrates the arbitrary and capricious- nature of NMFS’s decision. (Doc, 55-1 at 18 citing Sierra Club v. Johnson, 436 F.3d 1269, 1282 (11th Cir.2006) (“[W]hen an agency has interpreted one of its regulations in a consistent manner, that interpretation is ‘controlling unless plainly erroneous or inconsistent with the regulation.’”); Manhattan Ctr. Studios, Inc. v. NLRB, 452 F.3d 813, 816 (D.C.Cir.2006) (when an agency departs from precedent without reason, its decision will be vacated); Mendez-Barrera v. Holder, 602 F.3d 21,26 (1st Cir.2010) (agencies must apply the same basic rules to' all similarly situated applicants); Henry v. INS, 74 F.3d 1, 6 (1st Cir.1996) (an administrative agency must respect its own precedent, and cannot change it without explanation); Fred Beverages, Inc. v. Fred’s Capital Mgmt. Co., 605 F.3d 963, 967 (Fed.Cir.2010) (“Where an agency departs from established precedent without a reasoned explanation, its decision will be vacated as arbitrary and capricious.”).) But see footnote 19 infra, discussing contrary authority regarding Georgia Aquarium’s “inconsistency” argument.

In response, NMFS asserts that neither the MMPA, the regulations, nor the Agency’s practice or policy mandate reliance on PBR in this case. According to the Agency, PBR was added to the MMPA as a U.S. commercial fisheries management tool in 1994, not as a test, governing the import of marine mammals for public display. (Doc. 59-1 at 34-35 (citing S.Rep. No. - 103-220 at 1, reprinted in 1994 U.S.C.C.A.N. 518 • (1994)).) Georgia Aquarium acknowledges .that PBR is not a required MMPA standard for determining an allowable take level in this context, but asserts thht PBR is consistently used as a metric because it is the most applicable measure of take levels.

PBR is a formula incorporated into Sections 1386 arid' 1387 of the MMPÁ governing domestic stock assessment reports and marine mammal take reduction plans for U.S. fisheries. 16 U.S.C. §§ 1386(a)(6), 1387(f)(2)-(3), (5), (7), (8). It is not included or referenced in § 1374 of the MMPA governing permits. Neither the statutory nor regulatory previsions of the MMPA require the Agency to calculate PBR for a given marine mammal stock that is the subject of an import pprmit.

As Georgia Aquarium points out, however, NMFS has considered PBR outside of the U.S. commercial fisheries context. But, according to NMFS Georgia Aquarium “significantly overstates NMFS’s limited use of PBR” in other cases and its suggestion that the Agency has consistently used PBR in a large'number of cases is misleading. The majority of examples cited by Georgia Aquarium as evidence that it was entitled-to rely on PBR; involve the same two species and same type of activity merely for different years: (1) scientific research for Steller sea lions listed under the Endangered Species Act (“ESA”); (2) scientific research for depleted northern fur seals; and (3) native subsistence take of northern fur seals that is exempted from the MMPA 16 U.S.C, § 1371(b). (Doc. 59-1 at' 35.) The Court agrees that NMFS’s discretionary consideration of PBR in a handful of situations involving scientific research and subsistence take do not establish a “practice and policy” of relying ón PBR in all circumstances. Notably, as this is the first application to import wild caught marine mammals for public display since the 1994 addition of PBR to the MMPA and the 1996 adoption of the regulatory issuance criteria — NMFS cannot be said to have an established practice of relying on PBR in this specific context.

The Court is not convinced by Georgia Aquarium’s claim that NMFS has relied on PBR as a talismanic test of sustainability in every one of its decisions under the MMPA. As NMFS has demonstrated from the specific administrative decisions relied on by Georgia Aquarium, NMFS has placed variable weight on the value of PBR, including: (1) in its 2007 final environmental impact statement for scientific research on Steller sea lions and northern fur seals, NMFS identified PBR as only “an upper threshold level of mortality” .and stated that it was not “obligated to authorize takes up .to these threshold levels — These upper limits will be used only as guidelines for the permitting process,” (Doc; 59-1 at 37, citing http://www.nmfs. noaa.gov/pr/pdfs/permits/eis/fpéis.pdf), and (2) for subsistence take of northern fur seals, NMFS found that allowing harvest up to the level of PBR would have an adverse impact: “[although by definition and modeling, removal at or below the PBR level is expected to allow the population to recover, the unknowns combined with the decreasing population result in a conditionally significant adverse effect to the population.” (id, citing http://alaska fisheries.noaa.gov/protectedresources/ seals/fur/eis/final0505.pdf). Indeed, as the Marine Mammal Stock Assessment Guidelines which discuss the use of PBR explain, “PBR is an upper limit to removals that does not imply that entire amount should be taken” and when the Agency prepares stock assessments, “[estimates of PBR [and] human-caused mortality ... are required” considerations. (AR 8934 at 16325.) NMFS has shown that where the Agency has considered PBR outside of the U.S. commercial fisheries context, it has treated PBR as only one “quantitative tool” and that it is not used as the sole basis for its impact analyses. And, even in the commercial fisheries context, PBR was not designed as an “absolute threshold” but is used as a guideline to identify where further incidental take reduction measures are warranted.

Finally, NMFS responds that it did not apply a “new” standard to the Aquarium by considering but declining to rely on Georgia Aquarium’s PBR calculation in this case. Instead, NMFS applied the required MMPA standard: that “[t]he proposed activity by itself or in .combination with other activities, will not likely have a significant adverse impact on the species or stock.” 50 C.F.R. § 216.34(a)(4). The Court does not adopt Georgia Aquarium’s view that the Agency has failed to treat like cases alike and arbitrarily diverged from its past policies and decisions. Instead, and as discussed in more detail below, the Court finds that the administrative record demonstrates that the Agency appropriately exercised its discretion in declining to adopt PBR to the exclusion of all other evidence of an adverse impact on a marine mammal stock in light of the notable lack of reliable information regarding the Sakhalin-Amur beluga whale population data.

B. NMFS’s determination that Georgia Aquarium’s PBR could be exceeded due to sources of removal other than live-capture was not arbitrary and capricious

Georgia Aquarium asserts on appeal that its PBR calculation is the appropriate standard here because it is based on research by scientists with the A.N. Sev-ertsov Institute of Ecology and Evolution of the Russian Academy of Science (“Sev-ertsov Institute”) completed in consultation with and peer reviewed by a panel of beluga experts chosen by the International Union for the Conservation of Nature and Natural Resources (“IUCN”). “Despite the unanimous conclusion of these experts, [NMFS] concluded that PBR could- be exceeded due to removals from sources other than public display and, therefore, denied the Aquarium’s permit.”. (Doc. 55-1 at 32.) Georgia Aquarium maintains that there is no evidence to support NMFS’s claim of.-additional sources of removal. This argument is-fishy. -

The principal reason for NMFS’s denial of Georgia Aquarium’s import permit application -was that:

The Aquarium’s reliance on a comparison between PBR and the number of live - removals is misplaced. Looking solely at PBR, or the average number of animals taken during years in which animals proposed for importation were captured, is not an appropriate way to assess whether the proposed activity by itself, or in combination with other activities; would likely have a significant adverse impact on the species or stock. The Aquarium claims that the captures are sustainable: however, this is dependent on the assumption that the number of animals being removed from the population during live-captures will remain under the calculated PBR and that that no other human-caused factors are contributing to loss of animals from the population.

However, in three separate years 30 or more animals were taken (including 2010 and 2011, years in which animals proposed for importation were captured). In these, years, the entire calculated PBR allowance was taken in live captures, allowing for no buffer to account for other sources of human-caused mortality, which is of particular concern to us. In addition, as noted below, these numbers appear to be trending upward over time. Moreover, the number of annuals that Russia authorizes to be removed in live capture operations is not limited to the calculated PBR, Shpak et al. (2011) reported the annual quota au~ thorized by the Russian government to be between 40-57 individuals. Finally, available data raise substantial questions about the assumption that there are no other human caused mortalities.

(AR 8998 at 17445.) NMFS’s conclusion was in direct response to a concern raised by the Marine Mammal Commission in its review of Georgia Aquarium’s proposed PBR calculation. The Marine Mammal Commission was concerned that: •

the PBR approach is intended to account for all human-related removals from a population. In this ease, the information needed to evaluate other sources of human-related mortality is largely anecdotal or consistent with an “absence-of-evidence” argument, which does not provide a basis for a compelling argument. Thus, although using á PBR analysis might provide a useful means for evaluating the potential effect's of these removals 'on the Sakhalin-Amur population, the uncertainties associated with this approach again emphasize the need for caution.

(AR 8730 at 10095.) “ In its discussion of PBR, the IUCN panel recognized the “[potential biases of concern when applying any guideline for sustainability of takes are under-estimation of human-caused mortality, over-estimation of Rmax [the maximum rate of population increase], and estimating the wrong numbers for the population size____” (AR 8915 at 13788.)

Relying on documents submitted by the Georgia Aquarium in conjunction with its permit request, NMFS.cited at least six potential sources of removal of Sakhalin-Amur beluga whales that, when added to live captures (for public display), could cause PBR to be exceeded. Georgia Aquarium’s own permit application materials demonstrate that NMFS’s conclusion is not arbitrary and capricious. The guidelines on PBR require that other sources of human-caused mortality should be considered. NMFS’s decision to deny Georgia Aquarium’s permit application because its PBR calculation failed to take into account these other potential mortality sources is therefore consistent with the MMPA.,

Highlighted by NMFS in its decision document, the IUCN panel itself identified several human-related activities that may result in serious injury or mortality to Sea of Okhotsk beluga whales, including subsistence hunting, death during live-capture operations, entanglement in fishing gear, vessel strikes, climate change, and pollution. But as NMFS explained “[a]s noted in the application and the IUCN review, monitoring of other types of take in [the Sakhalin-Amur] region is low, if existent at all, and information concerning possible threats and mortality in this population of beluga whales are highlighted by a lack of substantiated data, and are largely anecdotal.” (AR 8998 at 17445.)

On subsistence hunting, NMFS noted:

• Subsistence: Little information is available on subsistence or other forms of harvest however. Shpak reported (cited in application) that annual take levels from subsistence, bycatch or illegal harvest were probably 1, to. 3 per village, but NMFS has no information on how many villages‘would be included m this estimate. The application indicated that Shpak later stated that there was no quantifiable basis for that estimate: -however, it can be assumed that some level of subsistence hunting within the region is occurring.

(AR 8998 at 17445-17446.) Shpak’s 2013 report recounts the history of beluga whale hunting and harvesting practices in the Sakhalin-Amur area and provides information on recent and current harvest quotas-authorized by the Russian government. Shpak notes that in Priamurye (Sakhalinsky to Udskaya Bay) around 20-30 whales can be taken annually by locals. (AR 9221 at 21548 ■ (citing Bogoslovskaya and Krupnik (2000)).)

Georgia Aquarium suggests that NMFS’s reliance on Shpak’s study regarding possible annual subsistence harvests of the whales by nearby villagers was misplaced. According to Georgia Aquarium, these villages are in the remote Shantar-region of the Sea of Okhotsk, not- in the Sakhalin-Amur region. With respect to Shpak’s study, Georgia Aquarium’s own application states that “[s]ome subsistence, bycatch, Or illegal harvest of belugas may exist today, but if so, at very low and unknown numbers. Shpak (2011) reported that annual take levels were probably 1-3 per village, but did not specify how many villages were involved or where they were located.” (AR 8927 at 14322.) While Shpak does note in her 2013 report that “local people of the Shantar region may kill 1-3 belugas per village,” Georgia Aquarium has ignored Shpak’s separate reference to the more intensive beluga hunting practices in the Sakhalin-Amur region. Thus, NMFS’s Reasoned assumption that “some level of subsistence hunting within the region is occurring” is supported by documents in the Administrative Record supplied by Georgia Aquarium. See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 781 F.3d 1271, 1288 (11th Cir.2015) (noting that an agency does not act arbitrarily and capriciously where the agency “examinefd] the relevant data and articulate[d] a satisfactory explanation for its action.)”

Another identified source of human-caused mortality noted by the IUGN panel is the accidental death of animals during live capture operations. NMFS determined from the information provided by Georgia Aq