Full opinion text
MEMORANDUM OPINION KETANJI BROWN JACKSON, United States District Judge Federal law recognizes that unregulated commercial deep-sea fishing operations can pose a threat to the survival of whales, dolphins, seals, and other marine mammals. To minimize the hazards, the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. § 1361 et seq., makes it unlawful for fishermen to “take” marine mammals, which includes not only hunting, capturing, or killing such animals, but also engaging in acts that constitute harassment. In the instant case, the captains, the fishing master, and the LLC associated with a commercial fishing vessel called the Pacific Ranger (collectively, “Plaintiffs”) are challenging what they consider to be an unfair determination by the division of the Department of Commerce that enforces the MMPA—the National Oceanic and Atmospheric Administration (“NOAA”)—that they should be held civilly liable for their “takes” of whales on several occasions. Specifically, NOAA prosecutors filed six separate administrative charges against Plaintiffs in 2012, and after a hearing on the charges, an Administrative Law Judge (“ALJ”) determined that Plaintiffs had violated the MMPA in the fall of 2010 when they set their fishing net on whales during five tuna-fishing expeditions, and that, on another occasion during this same timeframe, Plaintiffs had breached the Western and Central Pacific Fisheries Convention Implementation Act (“the Implementation Act”), 16 U.S.C. § 6901 et seq., which is a law that prevents commercial fishermen from fishing near or employing “fish aggregating devices” (“FADs”). As a result of these violations, the ALJ held Plaintiffs liable for the payment of civil penalties totaling $127,000. In the instant complaint, which Plaintiffs have brought against the Administrator of NOAA and the Secretary of Commerce in their official capacities, Plaintiffs assert that these civil penalties should be set aside or reduced because, among other things, the applicable MMPA regulations are unconstitutionally vague, none of the ALJ’s liability findings are supported by substantial evidence, and the penalty amounts are contrary to law (either because they are excessive or were insufficiently justified). Before this Court at present are the parties’ cross-motions for summary judgment. (See Pis.’ Mot. for Summ. J. (“Pis.’ Mot.”), ECF No. 16; Defs.’ Cross-Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 17.) Plaintiffs insist that a statutory carve-out for “incidental” takes of marine mammals should have shielded them from MMPA liability and the ALJ erroneously ruled that it did not (or, alternatively, that they were not given fair warning that they were not entitled to this safe harbor). (See Pis.’ Mem. in Supp. of Pis.’ Mot. (“Pis.’ Mem.”), ECF No. 16-1, at 18-25.) Plaintiffs also maintain that there was insufficient evidence to support the ALJ’s factual findings, and that the amount of the penalties the agency imposed was either unconstitutionally excessive or arbitrary and capricious because the ALJ failed to explain sufficiently her reasons for assessing those amounts. (See id. at 25-45.) In their cross motion, Defendants assert that the ALJ properly interpreted the regulations, which are not vague; that the ALJ’s factual findings are supported by the sufficient quantum of evidence; and that the penalties the ALJ imposed are both sufficiently explained and fully in compliance with applicable constitutional standards. (See Defs.’ Combined Opp’n to Pis.’ Mot. & Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 18, at 21-46.) For the reasons explained fully below, this Court rejects Plaintiffs’ contention that an incidental-take authorization effectively immunizes commercial fishermen against liability for knowing (albeit not purposeful) takes of marine mammals in the course of their fishing operations. To the contrary, the Court agrees with the ALJ, as a matter of law, that knowing and intentional takes cannot be deemed incidental, and thus, the Court concludes that the ALJ properly interpreted and applied the MMPA regulations in a manner that comports with the applicable law. Furthermore, this Court finds that the ALJ’s determination was supported by substantial evidence, and that none of Plaintiffs’ contentions regarding the exeessiveness or opacity of the penalty determination is persuasive, particularly given the highly deferential standard of review. Consequently, Plaintiffs’ motion for summary judgment will be DENIED, and Defendants’ cross-motion for summary judgment will be GRANTED. A separate order consistent with this memorandum opinion will follow. I. BACKGROUND A. The MMPA And The Implementation Act Congress created the MMPA to ensure that marine mammals are “protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management!)]” Black v. Pritzker, 121 F.Supp.3d 63, 89 (D.D.C. 2015) (internal quotation marks omitted) (quoting 16 U.S.C. § 1361(6)); see also id. (explaining that “the primary objective” of the management of such mammals “should be to maintain the health and stability of the marine ecosystem” (internal quotation marks and citation omitted)). Because marine mammals often live near and feed on fish, protecting these mammals burdens the fishing industry to some degree. With respect to the ever-present potential conflict between the “animals’ and fisheries’ interests!!,]” however, there is no question that, under federal law, the “interest in maintaining healthy populations of marine mammals comes first[.]” Kokechik Fishermen’s Ass’n v. Sec’y of Commerce, 839 F.2d 795, 802 (D.C. Cir. 1988) (footnote omitted); see also Fed’n of Japan Salmon Fisheries Co-op. Ass’n v. Baldridge, 679 F.Supp. 37, 46 (D.D.C. 1987) (“The interests of the marine mammals come first under the statutory scheme, and the interests of the [fishing] industry, important as they are, must be served only after protection of the animals is assured.” (internal quotation marks and citation omitted)), aff'd sub nom. Kokechik Fishermen’s Ass’n v. Sec’y of Commerce, 839 F.2d 795 (D.C. Cir. 1988). To this end, the MMPA establishes a “moratorium on the taking[,]” 16 U.S.C. § 1371, of “any marine mammal on the high seas[,]” id. § 1372(a)(1), and it specifically defines a “take” as “harassing], hunt [in g], cap turfing], or killfing]” any marine mammal (or attempting to do so), id. § 1362(13). The MMPA further defines harassment to include “any act of pursuit, torment, or annoyance” that “has the potential to injure a marine mammal ... in the wild” or “has the potential to disturb a marine mammal ... in the wild by causing disruption of behavioral patterns,” id. § 1362(18)(A). Thus, federal law makes clear that to “take” a marine mammal includes “the restraint or detention of a marine mammal, no matter how temporary[.]” 50 C.F.R. § 216.3 (defining a “take”). Notably, per the MMPA and its implementing regulations, not all marine-mammal “takes” are equally blameworthy. There are multiple exceptions to the liability that the background prohibition establishes; the one relevant here is the statutory exception for “the incidental taking of marine mammals in the course of commercial fishing operationsfi]” 16 U.S.C. § 1387(a)(1) (emphasis added). Congress has made clear that the Secretary of Commerce may grant “authorizations” under 16 U.S.C. § 1387 that immunize commercial fishermen for incidental takes. Id. § 1371(a)(2); see also id. § 1362(12)(B) (designating the Secretary of Commerce as the official responsible for administering the MMPA for purposes of § 1387). To implement this authorization authority, the Secretary evaluates the risk of mortality for marine mammals in various ocean areas that have been designated for commercial fishing—known as “fisheries”— and categorizes each fishery based on the risk of harm that commercial fishing poses to marine mammals in that area. See 16 U.S.C. § 1387(c). Category I fisheries are those in which there is “frequent incidental mortality and serious injury of marine mammals[,]” id. § 1387(c)(l)(A)(i), while Category II fisheries have “occasional incidental mortality and serious injury of marine mammals[,]” ⅛§ 1387(c)(1)(A)(ii), and in Category III fisheries, the “likelihood” of such incidents is “remote[,]” id.§ 1387(c)(l)(A)(iii). The MMPA states that the Secretary “shall” grant “[a]n authorization” to licensed commercial fishing vessels that operate in Category I or II fisheries and that register for such authorization, id. § 1387(c)(2)(A), and the statute expressly provides that “an authorization granted under this section shall allow the incidental taking of all species and stocks of marine mammals to which this chapter applies!!,]” id. § 1387(c)(2)(C). But the MMPA itself does not define “incidental,” nor does it specify the circumstances under which one is deemed to have taken a marine mammal “incidentally.” That crucial definition appears in the regulations that implement the MMPA. Section 229 of Title 50 of the Code of Federal Regulations—which pertains to “authorization^ for commercial fisheries” under the MMPA, see 50 C.F.R. § 229 (capitalization altered), and explicitly implements the incidental-taking exception set forth at 16 U.S.C. § 1387, see 50 C.F.R. 229.1—specifically addresses the meaning of “incidental” when it states: Incidental means, with respect to an act, a non-intentional or accidental act that results from, but is not the purpose of, carrying out an otherwise lawful action. Id. § 229.2 (emphasis in original). Thus, per the MMPA and its implementing regulations, commercial fishing operators who receive authorization for incidental takes in the course of their operations, as described above, may avail themselves of the incidental-take safe harbor and avoid liability if their conduct is, in fact, incidental as defined by law. By contrast, if a commercial fishing operation is not excused from the take prohibition in some manner, and nevertheless engages in conduct that qualifies as the taking of a marine mammal, the owners and operators face steep civil penalties that the agency may impose after notice and an opportunity for a hearing. See 16 U.S.C. § 1375(a)(1) (setting civil penalty cap and hearing requirement); see also 15 C.F.R. § 6.4(e)(10) (2010) (setting statutory penalty cap at $11,000 to account for inflation). Although the Implementation Act differs from the MMPA insofar as it is not aimed specifically at protecting marine mammals, the Implementation Act addresses the depletion of fish stocks in particular areas of the western and central Pacific Ocean, see 16 U.S.C. § 6901(4), and thus it too bears upon the conduct of commercial fishing vessels operating in certain areas of the high seas. Simply stated, the Implementation Act arose out of the United States’ obligations as a signatory to the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (“Convention”), Sept. 5, 2000, T.I.A.S. No. 13,115, which is a multilateral international agreement that is designed to “ensure ... the long-term conservation and sustainable use of highly migratory fish stocks[,]” id. art. 2. (See also Initial Decision and Order of Administrative Law Judge (“ALJ’s Decision”), ECF No. 27-13, at 6.) The Convention created the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (“the Commission”), which is a multimember body that works to carry out the Convention’s goals, see Convention, T.I.A.S. No. 13,115, arts. 9-10, and the Implementation Act effectuates the Convention within the United States by, among other things, authorizing the Secretary of Commerce to promulgate regulations “to carry out the United States[’] international obligations under the ... Convention!,]” 16 U.S.C. § 6904(a), and making it unlawful to violate any such regulations, see id. § 6906(a)(1). See also id. § 6901. The key obligation here stems from a rule that the Commission issued in 2008, and the Commerce Department adopted in 2009. See International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species (“CMM 2008-01 Final Rule”), 74 Fed. Reg. 38544, 38544 (Aug. 4, 2009) (adopting Conservation and Management Measure 2008-01 (“CMM 2008-01”)); (ALJ’s Decision at 7). Among other things, CMM 2008-01 restricted fishing operations—during specified time periods in Convention-covered areas—near where certain fish aggregating devices (“FADs”) were being used. See CMM 2008-01 Final Rule, 74 Fed. Reg. at 38544-45. (<S'ee also ALJ’s Decision at 7). As codified, CMM 2008-01 also required that certain types of commercial fishing vessels—such as the one Plaintiffs use—carry neutral third parties known as “fishery observers” (ALJ’s Decision at 7) when the vessels were operating in certain areas. See CMM 2008-01 Final Rule, 74 Fed. Reg. at 38545-46. To comply with this requirement during the relevant time period, NOAA “utilized fishery observers provided by the Pacific Islands Forum Fisheries Agency ..., an intergovernmental agency of Pacific Island nations created to facilitate and promote regional cooperation and coordination in marine fishery policy and management.” (ALJ’s Decision at 9-10.) In 2010, the penalty provisions of the Magnuson-Stevens Fishery Conservation and Management Act applied to Implementation Act violations. See 16 U.S.C. § 6905(c) (2010). Those provisions set a maximum penalty of $140,000 for each violation, which could be assessed only after notice and an opportunity for a hearing. See id. § 1858(a) (setting penalty and notice and hearing requirement); 15 C.F.R. § 6.4(e)(14) (2010) (adjusting penalty to $140,000 for inflation). B. Background Facts The Pacific Ranger is a type of ship that is known as a “purse seine” vessel. These commercial fishing ships employ a purse seine net, which is a specific kind of fishing net that is described as “a floated ■ and weighted encircling net that is closed by means of a drawstring threaded through rings attached to the bottom!.]” Black, 121 F.Supp.3d at 71 n.3 (internal quotation marks and citation omitted). Purse seine nets are over half a mile long; therefore, purse seine fishermen use a host of smaller motor boats to extend the net around a school of fish and to seal it for loading back onto a vessel. (See Joint Stipulation of Facts, Adrain. R. App. (“AR”), ECF Nos. 27-1-27-37, AR 000440 ¶ 32). Additionally, purse seine fishing expeditions often employ a helicopter to assist with this process, which is called a “purse seine set” (ALJ’s Decision at 10) and generally takes between two and four hours from start to finish. (See Joint Stipulation of Facts, AR 000440 ¶ 32). In the ocean areas in which the Pacific Ranger operates, the value of the fish that are caught in a single set can be immense; for example, the total value of the six sets at issue in the instant case was $122,531.90, and two of those sets produced no value. (See ALJ’s Decision at 38, 40-41.) The record here reflects that the value of the fish that are harvested during a multi-day fishing trip for a purse seine vessel can be, on the low end, just under a million dollars. (See Transcript of Proceedings Before Administrative Law Judge (“Transcript”), AR 001318.) The fisheries in the Pacific Ocean in which the Pacific Ranger operated at the relevant times were all designated as “Category II” fisheries (ALJ’s Decision at 6), which meant that NOAA viewed them as areas in which “occasional incidental mortality and serious injury of marine mammals” occurs. 16 U.S.C. § 1387(c)(l)(A)(ii). (See ALJ’s Decision at 6.) Moreover, during the time periods delineated in CMM 2008-01’s FAD-closure rule, see supra note 5, purse seine fishing vessels in covered areas of the Pacific were not only barred from setting a purse seine net around or within one nautical mile of a FAD, but were also prohibited both from setting a purse seine net in a manner “intended to capture fish that have aggregated in association with a FAD” and from deploying a FAD into the water. CMM 2008-01 Final Rule, 74 Fed. Reg. at 38556; see also 50 C.F.R. § 300.223(b) (2010). It is undisputed that the Pacific Ranger was operating in areas of the Western and Central Pacific Ocean covered by the FAD closure in the latter half of 2010. (See ALJ’s Decision at 33). In 2012, NOAA charged Plaintiffs with six “counts” of violating the MMPA’s take prohibition and the Implementation Act’s FAD-closure rule, maintaining that, during their operations in 2010, Plaintiffs ran afoul of the MMPA and Implementation Act six times (see id. at 2). In short, the five MMPA charges stemmed from actions Plaintiffs took on August 21, 23, 25, October 18, and December 11, 2010, which are dates on which the Pacific Ranger had conducted a purse seine set that resulted in one or more whales being caught in the net but eventually breaking free before complete sealing. (See id. at 2, 10-15.) Plaintiffs concede that their actions on these occasions constituted “takes” of whales within the meaning of the MMPA. (See Prelim. Tr. of Summ. J. Mot. Hr’g at 20-21; ALJ’s Decision at 20.) The single FAD-related count occurred on September 1, 2010, when the Pacific Ranger allegedly set its purse seine net near a raft (which qualifies as a FAD). (See ALJ’s Decision at 13-14.) Plaintiff Matthew James Freitas was the ship’s captain for every charged count except for the December 11 event; Plaintiff Joao Moniz served as the captain on that date. (See Joint Stipulation of Facts, AR 000436 ¶¶ 3, 20-26.) Plaintiff Tien Shih Su served as the vessel’s “fishing master”— the “officer responsible for directing the crew and deploying/retrieving the fishing gear and catch during purse seine fishing operations”—on each of the cited occasions. (Id. 000437 ¶ 4.) After NOAA issued the charges, an ALJ was assigned to the matter and held a hearing, which took place on September 18, 2013. This hearing officer then undertook to determine, first, whether the Plaintiffs’ five takes of whales fit within the incidental-take exception and thus were covered by Plaintiffs’ authorization for incidental takes, and second, whether Plaintiffs had, in fact, set a purse seine net around or within one nautical mile of a FAD. (See ALJ’s Decision at 20, 33.) The evidence presented at the hearing included: the live testimony of the fishery observers who were present on board the boat during the events, the observers’ contemporaneous notes and post-voyage interviews with NOAA officials, the ship captains’ logbooks, the testimony of Captain Freitas, and the testimony of Robert Viris-simo, who serves as the Vice President of Vessel Operations for the company the Pacific Ranger uses to hire fishing masters. (See id. at 3, 22, 24-25, 29.) The ALJ considered the evidence presented, and on November 25, 2014, issued a 44-page decision that explained her conclusion that Plaintiffs were jointly and severally liable as charged for the five violations ■ of the MMPA and one violation of the Implementation Act (through their violation of CMM 2008-01), and imposed various civil penalties that totaled $127,000. In her decision, the ALJ described at length the testimony and documentary evidence that bore on each of the six charges that had been filed against Plaintiffs. (See id. at 9-16.) Briefly, with respect to the MMPA counts, the ALJ explained that liability hinged on whether the agency could prove the allegations “by a preponderance of the evidence,” and that, given the parties’ stipulations that Plaintiffs were under the jurisdiction of the United States and had taken these mammals “on the high seas[,]” all that remained was the issue of whether the incidental-take exception applied. (Id. at 19-20.) The ALJ noted the agency’s argument that the incidental-take exception was inapplicable because Plaintiffs had “knowingly” and “intentional[ly]” taken the whales. (Id. at 32; see also id. at 20 (“The Agency contends that ... [Plaintiffs] saw the whale or whales prior to setting the net, and then, still set the net, knowingly, on the whales[.]” (emphasis in original)).) And she acknowledged that Plaintiffs had disagreed with the agency’s position by objecting to the evidence the agency had offered regarding Plaintiffs’ knowledge and intent on the ground that it was unpersuasive (see id. at 20), and by suggesting that, in any event, the incidental-take authorization excused even “knowing” sets on whales (see id. at 30 (reporting Plaintiffs’ argument that the regulations should be interpreted to excuse “ ‘incidental, intentional’ takes[,] provided there is no lethal taking and no targeted species is involved” (citation omitted))). In evaluating this dispute, the ALJ addressed each piece of evidence, examined both sides’ framing of the issues, and considered the proper construction of the incidental-take safe harbor. (See id. at 21-32). And, ultimately, the ALJ agreed with NOAA that Plaintiffs had “knowingly” and “intentional[ly]” taken the whales, which in her view meant that Plaintiffs’ conduct fell outside the incidental-take exception. (Id. at 32 (“[T]he Agency has shown by a preponderance of the evidence that Respondents, through the actions of the crew of the Vessel, knowingly set purse seine fishing gear on whales on the dates at issue .... These takes of marine mammals were not accidental, but instead were intentional takes not permitted under Respondents’ ... authorization to incidentally take pursuant to their commercial fishing operations[.]”).) With respect to the single Implementation Act charge, the ALJ again observed that only one issue remained to be evaluated under a preponderance-of-the-evidence standard: whether the Pacific Ranger had, in fact, “set a purse seine net around a FAD or within one nautical mile of a FAD.” (Id. at 33.) The parties told dueling stories in this regard—the agency relied on the testimony of the observer who was present on board the vessel on that date and who claimed that such a set had occurred, while the Plaintiffs attacked that observer’s testimony as “unreliable and speculative[,]” and also offered circumstantial evidence they believed cut against the conclusion that they had set the net near a FAD as charged. (Id. (citation omitted).) After weighing the evidence and the parties’ competing narratives, the ALJ concluded that the agency had shown by a preponderance of the evidence that the ship had indeed set on a FAD. (See id. at 33-36.) Additional details regarding the evidence presented to, and considered by, the ALJ are discussed in Part III below. The short of it all is that, based on her consideration of the testimony and evidence presented at the hearing related to the charges against Plaintiffs, the ALJ found that Plaintiffs were liable on all six counts (see id. at 43), and for reasons explained more fully in Part III.C, she imposed a penalty of $11,000 on each of the MMPA counts, and a $72,000 penalty on the FAD count, for a total of $127,000 (see id.). C. Procedural History On December 23, 2014, Plaintiffs asked the NOAA Administrator to review the ALJ’s unfavorable decision. (See Pet. for Administrator Review, AR 000902, 000921.) See also 15 C.F.R. § 904.273. The Administrator summarily denied Plaintiffs’ review request on March 18, 2015 (see NOAA Administrator’s Order Denying Respondents’ Petition for Administrative Review, AR 001138-39), which made the ALJ’s decision the agency’s final action, see 15 C.F.R. § 904.273®. On April 8, 2015, Plaintiffs filed the instant complaint, which alleges, in Count One, that “the MMPA Regulations are unconstitutionally vague” (Compl., ECF No. 1, ¶ 25), because Plaintiffs did not receive “fair notice” of the prohibited conduct. (Compl. ¶ 21; see also ⅛¶ 24 (“The MMPA Regulations did not give fair notice because the agency did not specifically identify what ‘intentional’ activity was prohibited and not prohibited, particularly with respect to vessels possessing incidental take permits that authorize takes in the course of commercial fishing activities.”).) The complaint also asserts, in Counts Two and Three, that the ALJ’s conclusion that they knowingly and intentionally set the net on whales, and that they set the net on or near a FAD, is not supported by substantial evidence (see Compl. ¶¶ 26-29), and that the ALJ’s determination that they should be held liable despite their possession of an incidental-take authorization was arbitrary and capricious (see id. ¶¶ 30-32). Finally, the complaint claims that the penalties the ALJ imposed were unconstitutionally excessive (Count Four). CSee Compl. ¶¶ 33-36.) Plaintiffs filed a motion for summary judgment in support of their complaint on August 20, 2015. In their memorandum in support of the motion, Plaintiffs expand upon and clarify their theories of relief, which appear to fit into three general categories. First, Plaintiffs make an argument regarding how the MMPA incidental-take carve-out, and the implementing regulations, should be interpreted; Plaintiffs say that the MMPA’s background bar on “takes” of marine mammals should have been held not to apply to them as a matter of law, either because the ALJ interpreted “incidental” as defined in the regulations in a plainly erroneous way, or because the regulatory scheme, taken as a whole, is impermissibly vague regarding which actions remain prohibited. (See Pis.’ Mem. at 18-25.) Second, although the complaint acknowledges that “Plaintiffs set on tuna schools that happened to be in the presence of whales” (Compl. ¶ 23), which is a fact that the ALJ found below (see ALJ’s Decision at 21-22), Plaintiffs’ summary judgment brief contends that the ALJ’s conclusion that they “knowingly” and “intentionally” took the whales and set on a FAD lacked a substantial basis in evidence, because the ALJ rested her conclusions largely on the credibility of the (corroborated) testimony that the on-board fishery observers had provided. (See id. at 25-40.) Third, Plaintiffs object to the penalty amounts, either because they are unconstitutionally excessive or because, according to Plaintiffs, the ALJ did not explain the penalties sufficiently and thus they violated the APA. (See id. at 40-45.) Defendants’ cross-motion for summary judgment, which was filed on October 16, 2015, responds to all of these assertions. (See Defs.’ Mem. at 21-46). For example, Defendants contend that the MMPA regulations permit, and perhaps even mandate, the ALJ’s interpretation of the scope of the incidental-take authorization, and are not vague regarding what conduct is prohibited. (See id. at 21-29.) Furthermore, the agency argues that the ALJ’s findings of fact easily satisfy the applicable highly deferential standard of review (see id. at 29-41), and that the penalties were both well explained and constitutionally permissible (see id. at 42-46). These cross-motions became ripe on December 9, 2016, and this Court held a hearing on these motions on March 15, 2016. II. LEGAL STANDARDS Although cases under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706, are often resolved on cross-motions for summary judgment, it is well established that “the standard set forth in [Federal Rule of Civil Procedure 56] does not apply because of the limited role of a court in reviewing the administrative record.” ViroPharma, Inc. v. Hamburg, 916 F.Supp.2d 76, 79 (D.D.C. 2013) (internal quotation marks omitted) (quoting Sierra Club v. Mainella, 459 F.Supp.2d 76, 89 (D.D.C. 2006)). That is, in administrative-law cases, the district court is tasked only with determining “whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id. (internal quotation marks and citation omitted); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (“[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law.” (footnote omitted) (citation omitted)). The APA authorizes a court to “set aside” agency action when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[,]” 5 U.S.C. § 706(2)(A), and plaintiffs ordinarily take any one of several tacks when attempting to make that showing. Sometimes, a plaintiff will argue that a regulation that the agency relied upon does not actually authorize the action taken, for example. Under the legal standard that the Supreme Court enunciated in Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), “when an agency interprets ‘its own ambiguous regulation[s],’ courts will defer to that interpretation unless it is ‘plainly erroneous or inconsistent with the regulation[s][,]’ or there ‘is reason to suspect that the agency’s interpretation does not reflect the agency’s fair and considered judgment on the matter in question.’ ” Otsuka Pharm. Co. v. Burwell, No. 15-1688, 2016 WL 4098740, at *7 (D.D.C. July 28, 2016) (alterations in original) (quoting Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 132 S.Ct. 2156, 2166, 183 L.Ed.2d 153 (2012)). Accordingly, “‘an agency’s interpretation need not be the only possible reading of a regulation— or even the best one—to prevail[,]’ ” id. (quoting Decker v. Nw. Environ. Def. Ctr., 568 U.S. 597, 133 S.Ct. 1326, 1337, 185 L.Ed.2d 447 (2013)), and an agency’s view of a regulation’s meaning controls “unless an alternative reading is compelled by the regulation’s plain language or by other indications of the [agency’s] intent at the time of the regulation’s promulgation[,]” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (internal quotation marks and citation omitted). In a related vein, a plaintiff might also contend that the agency’s action is invalid because it was taken pursuant to a regulation that is unconstitutionally vague. The void-for-vagueness test is relatively straightforward: if the “regulation delineated its reach in words of common understanding[,]” it passes muster. Throckmorton v. Nat’l Transp. Safety Bd., 963 F.2d 441, 444 (D.C. Cir. 1992) (internal quotation marks and citations omitted); see also Am. Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 796 F.3d 18, 28 (D.C. Cir. 2015) (explaining that a regulation need only “provide sufficient guidance so that reasonable regulated parties, aware of the goal the regulation seeks to accomplish, have ‘fair warning’ of what the regulation requires.” (quoting Freeman United Coal Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 108 F.3d 358, 362 (D.C. Cir. 1997)). Plaintiffs also sometimes rest their challenges upon the foundational principle that “[n]ot only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” Tripoli Rocketry Ass’n, Inc. v. ATF, 437 F.3d 75, 77 (D.C. Cir. 2006) (internal quotation marks omitted) (quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998)). This standard is rooted in the “arbitrary and capricious prong” of the APA’s judicial-review provision, which enforces a requirement of “reasoned decisionmaking” and requires courts to “ensure that [the agency] has examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 839 (D.C. Cir. 2006) (second and third alterations in original) (internal quotation marks and citations omitted); see also Fox v. Clinton, 684 F.3d 67, 74-75 (D.C. Cir. 2012) (“To survive arbitrary and capricious review, an agency action must be the product of reasoned decisionmaking.” (citations omitted)). In addition, under some circumstances, the APA may require a reviewing court to ensure the agency’s action is supported by “substantial evidenced” 5 U.S.C. § 706(2)(E), which is a deferential standard that typically “require[s] [an] equivalent level[ ] of scrutiny” as the arbitrary-and-capricious standard, Black, 121 F.Supp.3d at 76 (internal quotation marks omitted) (quoting Mem’l Hosp./Adair Cty. Health Ctr., Inc. v. Bowen, 829 F.2d 111, 117 (D.C. Cir. 1987)); see also Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 663 n.3 (D.C. Cir. 1996). The long and short of it is that, whether a court is viewing an agency decision through the lens of arbitrary-and-capricious action or evaluating it per the substantial-evidence test, a great deal of deference is afforded to the agency’s findings and conclusions. See Van Hollen, Jr. v. FEC, 811 F.3d 486, 495 (D.C. Cir. 2016) (describing the arbitrary-and-capricious standard); Black, 121 F.Supp.3d at 76-77 (collecting cases describing substantial-evidence standard); see also Ind. Mun. Power Agency v. FERC, 56 F.3d 247, 254 (D.C. Cir. 1995) (explaining that the role of the federal court reviewing agency action is not to reweigh evidence, but to ensure only that the agency factfinder stayed within the bounds of rationality (citing, inter alia, Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983))). Indeed, under arbitrary-and-capricious review, courts “presume the validity of the agency’s action,” Grid Radio v. FCC, 278 F.3d 1314, 1322 (D.C. Cir. 2002) (internal quotation marks and citation omitted), and may not “substitute [their] judgment for that of the agency[,]” Van Hollen, Jr., 811 F.3d at 495; see also Bean Dredging, LLC v. United States, 773 F.Supp.2d 63, 73 (D.D.C. 2011) (“[A] court need not find that the agency’s decision is ‘the only reasonable one, or even that it is the result [the court] would have reached had the question arisen in the first instance in judicial proceedings.’” (second alteration in original) (quoting Am. Paper Inst., Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422, 103 S.Ct. 1921, 76 L.Ed.2d 22 (1983))). And courts applying the “substantial evidence” standard have explained that an “agency decision may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view[,]” Morall v. DEA, 412 F.3d 165, 176 (D.C. Cir. 2005) (internal quotation marks and citation omitted); that is, reversal of the agency’s findings is appropriate on this ground “only when the record is so compelling that no reasonable factfinder could fail to find to the contrary,” Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697, 704 (D.C. Cir. 2009) (internal quotation marks and citation omitted). Finally, it is clear that a plaintiff may challenge the monetary penalties that an agency assesses on the grounds that they are unconstitutionally excessive. See Collins v. SEC, 736 F.3d 521, 526 (D.C. Cir. 2013) (“A civil penalty violates the Excessive Fines Clause [of the Eighth Amendment] if it ‘is grossly disproportional to the gravity of the offense.” (quoting United States v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998))). Relatedly, a plaintiffs APA claim may contend that insufficient reasons were given for a penalty imposed; that sort of claim is subjected to the arbitrary-and-capricious review standards outlined above. See id. at 524 (citing State Farm, 463 U.S. at 43, 103 S.Ct. 2856). III. ANALYSIS The owner and operators of the Pacific Ranger have requested the reversal or reduction of the substantial civil penalties that the ALJ has imposed upon them for “taking” whales, and for setting once on a FAD, based on myriad assertions of law and fact. But it is clear to this Court that Plaintiffs primarily seek to advance an overarching contention that lies at the root of each of their MMPA-focused claims of error: that the incidental-take authorization that Plaintiffs possessed as operators of a commercial fishing vessel allowed them to take whales and other marine mammals in the course of their fishing operations so long as they did not purposefully set out to do so, and thus the ALJ was wrong to conclude that Plaintiffs were deprived of the incidental-take authorization’s protection based on their mere knowledge that “whales were in the area” when the Pacific RangePs purse seine net was set. (Pis.’ Mem. at 20; see also id. at 19 (emphasizing that “Plaintiffs possess a NOAA-issued authorization for the incidental taking of marine mammals in the course of their commercial fishing operations” (citation omitted)); id. at 20 (“[T]here is no claim that Plaintiffs had ‘the purpose of taking whales .... Rather, their purpose solely was to catch fish. Nor is there any claim that Plaintiffs targeted whales in any respect during the course of the challenged purse seine fishing operations.” (citation omitted)); Compl. ¶ 23 (asserting that “[t]he MMPA charges against Plaintiffs involved situations where Plaintiffs set on tuna schools that happened to be in the presence of whales” and “did not involve any situation where Plaintiffs chased or targeted the whales and then set on the tuna”). Nearly all of Plaintiffs’ arguments flow from this characterization of what the law prohibits and permits. For example, Plaintiffs insist that “the MMPA prohibits ‘intentional’ takings of marine mammals, while allowing those takings that are ‘incidental’ ” (Pis.’ Mem. at 21), and as a result, they say that it was plain error for the ALJ to conclude that the safe harbor for incidental takes did not absolve their knowing (but not purposeful) take of whales (see id. (“From the undisputed evidence, the takings at issue in this ease should have been classified as ‘incidental.’ ”)). Alternatively, Plaintiffs maintain that if the law is such that an incidental-take authorization does not authorize the knowing (but not purposeful) taking of marine mammals, then the MMPA scheme is too vague to provide fair warning regarding what conduct is permitted, and should be struck down on that basis. (Mat 20 (“Plaintiffs would have no way of knowing that mere awareness of a whale in the vicinity of a tuna set can constitute an unlawful ‘intentional’ taking of that whale.”).) Similarly, the primary impetus behind Plaintiffs’ claim that the ALJ’s MMPA-related liability finding is not supported by substantial evidence appears to be Plaintiffs’ belief that “the evidence falls significantly short in showing that they purposefully or intentionally targeted the whales in order to catch fish.” (Id. at 30 (emphasis added); see also id. at 32 (arguing that “[t]he ALJ took a broad leap from the secondhand testimony of the observers to the conclusion that Plaintiffs purposefully targeted the whales as part of making the sets”); of. id. at 43 (decrying “the lack of direct evidence that Plaintiffs intentionally targeted the whales”).) And even the complaint’s excessive-penalty claim seems to be partly derived from Plaintiffs’ assertion that only those authorized commercial fishing operations that purposefully or intentionally chase or target whales and other marine mammals are truly deserving of punishment. (See, e.g., id. at 42 (arguing that “charging the maximum penalty ignores the realities of purse seine fishing!,]” which involves “conditions in the open ocean” that are “constantly changing and uncontrollable!,]” and within which “[w]hales a[nd] tuna are necessarily in the same area!,] as both the tuna and whales feed on the same school fish”); see also id. (“If the maximum penalty is charged here, ... there is nothing left to distinguish a case where someone intentionally and maliciously seeks out and/or kills the whales while setting on tuna.”).) For the reasons explained below, this Court disagrees with Plaintiffs’ core characterization of the MMPA authorization scheme as being one that authorizes commercial fishermen to take marine mammals in the course of their fishing operations except insofar as they purposefully chase or target marine mammals in the process. To the contrary, the law clearly establishes that any and all takes are categorically prohibited, and that only accidental or non-intentional (i.e., unknowing) takes are permissible per an incidental-take authorization. Therefore, the MMPA scheme is not at all vague regarding what is expected, and the ALJ’s conclusion that a knowing and intentional (i.e., deliberate) set upon a whale fails to qualify as an incidental take was not erroneous, much less plainly so. (See infra Part III.A.) Furthermore, when the incidental-take bar is properly set at excusing only accidental or non-intentional takes, then the dearth of record evidence establishing that the crew of the Pacific Ranger purposefully targeted the whales they took is of no moment, and the only issue becomes whether there is some support in the record for the ALJ’s conclusion that Plaintiffs knew that whales were in the area when they set the purse seine net and did so anyway, and also set on a FAD on the date in question. (See infra Part III.B.) Finally, as explained in Part III.C, the Court’s rejection of Plaintiffs’ view of the applicable legal standard renders unpersuasive Plaintiffs’ argument that the various penalties the ALJ imposed were inexplicable and unconstitutionally excessive. A. The MMPA Scheme Is Not Vague, And The ALJ Did Not Err In Concluding That A Knowing Or Intentional Take Of A Marine Mammal Falls Outside Of The Incidental-Take Exception Plaintiffs’ opening salvo is their claim that “the agency’s interpretation of ‘incidental’ in this case is inconsistent with the plain language of its own regulations, or otherwise the regulations themselves are hopelessly (and unconstitutionally) vague.” (Pis.’ Combined Reply in Supp. of Pis.’ Mot. for Summ. J. and in Opp’n to Defs.’ Cross-Mot. for Summ. J. (“Pis.’ Reply”), ECF No. 23, at 6; see also Compl. ¶¶ 20-25, 30-32.) As noted above, courts generally afford Auer deference to an agency’s interpretation of its own regulations, overturning the agency’s interpretation only if it is plainly erroneous, but as it turns out, Defendants here need not rely on that deferential standard to overcome Plaintiffs’ vigorous challenge to NOAA’s interpretation of the MMPA regulations, because the plain text of the applicable provisions clearly establish that it is Plaintiffs’ view—not the agency’s—that is mistaken. In short, as demonstrated below, Plaintiffs have erected a false dichotomy— prohibited “intentional” takes, on the one hand, versus authorized “incidental” takes on the other—to bolster their contention that an authorization for incidental takes covers more conduct than it actually does. (See Pis.’ Mem. at 21 (suggesting that the incidental-take authorization excuses all but the act of purposefully chasing or targeting marine mammals, because “the MMPA prohibits ‘intentional’ takings of marine mammals, while allowing those takings that are ‘incidental’”).) However, as the text of the MMPA and its implementing regulations make clear, the prohibited act of taking a marine mammal is a strict-liability offense that is broadly defined, and the only takes that are properly deemed “incidental” to commercial fishing activity are those that are accidental or unknowing. This means that the ALJ’s interpretation of the incidental-take definition was clearly correct, and there is nothing vague, much less unconstitutionally so, about the expected course of conduct. 1. The Plain Text Of The MMPA And Its Implementing Regulations Establishes That Only Accidental Or Non-Intentional (Unknowing) Takes Qualify As Incidental Returning to the nuts and bolts of the statutory scheme described above, the MMPA establishes an unconditional ban on the taking of a marine mammal, which is defined to include harassment and a host of other acts. See 16 U.S.C. § 1362(13). Any “act of ... annoyance” that “has the potential to injure” or “disturb” a wild marine mammal counts as harassment, id. § 1362(18)(A), and because the statutory take prohibition makes no reference to any required mens rea, see id. § 1372(a)(1), it is in the nature of a strict-liability provision. Cf. W. Fuels-Utah, Inc. v. Fed. Mine Safety & Health Review Comm’n, 870 F.2d 711, 713 (D.C. Cir. 1989) (observing that “[sjtrict liability alters th[e] general rule” that liability is only imposed on one who acts with a particular intent “by eliminating the requirement of mens rea”). To be sure, there are exceptions to the broad and unconditional take prohibition, including the one for “incidental taking .:. in the course of commercial fishing operations[,]” 16 U.S.C. § 1387(a)(1). However, as mentioned above, via regulations explicitly implementing 16 U.S.C. § 1387, the Secretary of Commerce has explained that “incidental” means, “with respect to an act, a non-intentional or accidental act that results from, but is not the purpose of, carrying out an otherwise lawful action.” 50 C.F.R. § 229.2 (emphasis added). Thus, this Court has no doubt that the safe harbor for “incidental” takes exempts only a narrow slice of the takes that are otherwise proscribed, and that, by using the words “accidental” and “non-intentional,” the Secretary meant to place deliberate takes outside the exception. It is axiomatic “that words of statutes or regulations must be given their ‘ordinary, contemporary, common meaning.’ ” FTC v. Tarriff, 584 F.3d 1088, 1090 (D.C. Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000)). And according to Black’s Law Dictionary, accidental means “[n]ot having occurred as a result of anyone’s purposeful act[,]” while “intentional” means “[d]one with the aim of carrying out the act.” Black’s Law Dictionary 18, 932 (10th ed. 2014). Applied to the “take” context, the terms “accidental” and “non-intentional” therefore' plainly do not describe the harassment of whales that occurs when commercial fishermen know that whales are in the vicinity of where they wish to conduct a highly disruptive multi-hour tuna-fishing operation and nevertheless press on with that operation. Plaintiffs disagree, arguing that when the regulation describes an “incidental” act, it unambiguously refers only to actions that the fishermen set out to do and wished to effect; in other words, in Plaintiffs’ view, the incidental-take authorization immunizes one who knowingly conducts a purse seine set on a school of fish that is intermixed with whales unless bothering the whales is his subjective goal. {See, e.g., Pis.’ Mem. at 22 (“[A] taking is permitted, so long as it is not the purpose of the activity and instead is a mere consequence of steps that are incidental to lawful commercial fishing operations.” (internal quotation marks omitted)); see also id. (“At most, the evidence shows that Plaintiffs set on tuna that were associated with whales [and] such conduct is expressly permitted[J” (internal quotation marks omitted)); Respondents’ Hr’g Mem.; Marine Mammal Protection Act Issues, AR 000457 (arguing below that the incidental-take exception would authorize an intentional set on a marine mammal).) But this contention rests on the misapprehension that Congress was only concerned about prohibiting “intentional” takings to begin with, when, in fact, the MMPA speaks in categorical terms—“[t]here shall be a moratorium on the taking ... of marine mammals[,]” 16 U.S.C. § 1371(a)—and Congress has only countenanced carefully crafted exceptions to that blanket rule. Once it is understood that all takings of marine mammals are prohibited by statute and that only certain takings are excepted as incidental, a straightforward question emerges: does a legal provision that immunizes “non-intentional or accidental [takings] that result[] from, but [are] not the purpose of, carrying out an otherwise lawful action[,]” 50 C.F.R. § 229.2, excuse any taking “so long as it [wa]s ‘not the purpose of the activity and instead [wa]s a mere ‘consequence’ of steps that are incidental to lawful commercial fishing operations” (Pis.’ Mem. at 22)? Merely posing this question answers it, for at least two reasons. First, looking at the plain text of the regulation, an interpretation that would deem all takes “incidental” except those that are purposeful effectively renders the first part of the “incidental” definition a nullity, because all that matters is what the second half of the definition speaks to—whether the take “resulted] from, but [was] not the purpose of, carrying out an otherwise lawful action.” 50 C.F.R. § 229.2. It is well established that regulatory interpretations that produce surplusage are disfavored, see Oceana, Inc. v. Pritzker, 75 F.Supp.3d 469, 484 (D.D.C. 2014) (citing Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 668-69, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007)), and Plaintiffs never explain why the agency included the words “non-intentional or accidental” in the “incidental” definition if the only relevant touchstone is whether it was the actor’s purpose to effect the forbidden result. Second, the broader statutory and regulatory context confirms that the phrase “non-intentional or accidental” does important work within the “incidental” take definition. See Simmons v. ICC, 829 F.2d 150, 156 (D.C. Cir. 1987) (explaining that, when interpreting a regulation, the court must consider “the context of the regulation of a whole”). This Court has already discussed some of that critical context. The MMPA proceeds from the premise that takes of marine mammals (broadly defined) are taboo, see 16 U.S.C. §§ 1371, 1372(a), which corresponds with the principle that, when in conflict, the wellbeing of marine mammals takes precedence over fishing interests. See Kokechik, 839 F.2d at 802. Moreover, the MMPA’s broad prohibition against takes not only confirms Congress’s interest in protecting marine mammals, it also clearly conflicts with Plaintiffs’ suggestion that the Secretary meant to gut the MMPA’s protections by shielding via regulation those commercial fishermen who obstinately push on with a purse seine set despite knowing that whales are in the area and are likely to be impacted, and who consequently harass (and even temporarily catch) those whales. Consider, too, the fact that the phrase “non-intentional or accidental” substantially limits the number of takes that are properly cloaked with “incidental” immunity, which aligns with the thrust of the statutory provision that governs incidental takes, the bulk of which is devoted to minimizing their negative effects. See, e.g., 16 U.S.C. § 1387(a)(1), (d), (f). By contrast, Plaintiffs’ reading could effectively incentivize negative behavior, because a fisherman who acts in a manner that risks the taking of marine mammals—such as knowingly setting his nets in the water on top of any such animal if that animal happens to be in the way of the lucrative catch he desires—would not be held liable for those actions. Indeed, by limiting liability to only those commercial fishermen who target marine mammals, or deploy their nets hoping to harass whales, Plaintiffs’ construction would effectively transform the incidental-take authorization into a blanket of immunity for any fisherman who would rather not be bothered with the wellbeing of marine mammals while he fishes, and thereby perversely shifts the significant costs of risky fishing behavior away from the fishermen and onto the animals themselves. Undaunted, Plaintiffs insist that definitions located in other MMPA-related regulations—specifically, those found in Part 216 of Title 50 of the Code of Federal Regulations—should govern this Court’s analysis of what “incidental” means in the context of the incidental-take authorization established in 16 U.S.C. § 1387. Plaintiffs identify two such definitions: (a) “[incidental catch”—which is defined as “the taking of a marine mammal (1) because it is directly interfering with commercial fishing operations, or (2) as a consequence of the steps used to secure the fish in connection with commercial fishing operations”—and (b) “[intentional purse seine set[,]” which occurs when “a tuna purse seine vessel or associated vessels chase marine mammals and subsequently make a purse seine set.” 50 C.F.R. § 216.3 (emphasis omitted). Boiled to bare essence, Plaintiffs’ argument is that, because their conduct (allegedly) fits the definition of “incidental catch” and does not fit the definition of “intentional purse seine set,” their actions must have been “incidental” for the purposes of § 1387’s safe harbor. (See Pis.’ Mem. at 22 (quoting 50 C.F.R. § 229.2 and 50 C.F.R. § 216.3, while asserting that “[tjhese definitions are clear that a taking is permitted, so long as it is not the purpose of the activity and instead is a mere consequence of steps that are incidental to lawful commercial fishing operations” (internal quotation marks omitted)); id. at 23 (“[A]n ‘intentional purse seine set’ did not occur here because Plaintiffs did not ‘chase’ the whales[, and]... it follows that no ‘intentional’ taking of whales occurred.”).) Plaintiffs’ attempts to rely on these definitions to bolster their view of the scope of the incidental-take authorization fails for at least two reasons. First of all, neither of the terms that Plaintiffs point to appears in § 1387, and in any event, the well-established statutory maxim that ‘the specific governs the general’ also applies to the regulatory context. See Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 43 (1st Cir. 2010); see also RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 132 S.Ct. 2065, 2071, 182 L.Ed.2d 967 (2012) (describing and discussing the maxim). It is Part 229 of the Code of Federal Regulations—rather than Part 216—to which a reader must look in order to see what the agency intended regarding the incidental-take exception, see 50 C.F.R. § 229.1(a) (“The regulations in this part implement section[ ] 118 of the [MMPA, 16 U.S.C. § 1387.]”); see also id. § 229.1(b); thus, while other definitions in other parts of the MMPA regulatory regime generally use the word “incidental,” the specific definition in Part 229 is undoubtedly the one that governs the dispute at issue here. Second, and similarly, it is not at all clear that the other definitions that Plaintiffs seek to rely upon actually relate to the incidental-take exception context. For example, as has been repeatedly noted, the MMPA prohibits “takes” of all kinds, and a prohibited take can occur in many ways. Thus, a regulation that pertains to an “incidental catch,” or that clarifies that Plaintiffs’ conduct qualifies as an incidental catch for Part 216’s purposes, says little about whether a take that is intentional or knowing can still be deemed “incidental” within the meaning of the Part 229 definitions. Put another way, even when the other definitions that Plaintiffs seek to rely upon are taken into account, the inquiry always returns to the question of what the phrase “non-intentional or accidental” means in the Part 229 definition of “incidental,” and under what circumstances one who is otherwise liable for a take is saved by this exception. And in this Court’s view, as explained above, it has a clear meaning that does not excuse deliberate, knowing conduct. The bottom line is this: because the interests of marine mammals take precedence over those of the fishing industry under the MMPA, this Court cannot accept Plaintiffs’ suggestion that, when the D.C. Circuit cautioned that the “MMPA does not allow for a Solomonic balancing of the animals’ and fisheries’ interests[,]” Kokechik, 839 F.2d at 802 (footnote omitted), it meant that commercial fishermen should have the whole baby. Therefore, despite Plaintiffs’ vigorous defense of an interpretation of the incidental-take definition that would immunize all but the most flagrant and purposeful acts directed toward the marine mammals that commercial fishermen regularly encounter in the ordinary course of business, in this Court’s considered judgment, the incidental-take exception to the broad take prohibition must be read narrowly, to give effect to Congress’s intent that “[t]he interest in maintaining healthy populations of marine mammals comes fírst[,]” id. and cannot be read to preference commercial fishing interests in the manner that Plaintiffs suggest. 2. The Expectations For Regulated Parties Are Sufficiently Clear Plaintiffs insist that “[i]f ... the regulations in 50 C.F.R. § 229.2 can be read to allow NOAA to penalize a taking in which the operator merely ‘knew1 that whales were associated with fish, then the agency’s regulations are unconstitutionally vague and fail to properly articulate the activities for which fishing vessels could be sanctioned.” (Pis.’ Reply at 11.) But the ALJ’s conclusion that the intentional-take exception does not apply when a commercial fisherman “knowingly set[s] purse seine fishing gear on whales” (ALJ’s Decision at 32) is not only legally correct for the reasons explained above (see supra Part III.A.1), it also states a rule that is more than sufficient to provide such actors with fair notice of the expected conduct. As explained, the regulation plainly requires that the act to be excused must be “non-intentional” or “accidental,]” 50 C.F.R. § 229.2, which means that deliberate/knowing takes—what the ALJ described as “knowing[]” and “intentional” takes (ALJ’s Decision at 32)—are unquestionably outside the safe harbor. And however broad the category of conduct that arguably falls into the “non-intentional” or “accidental” category might be, Plaintiffs cannot suggest, as they attempt to do here, that, given the realities of commercial tuna fishing on the high seas, a fisherman would have no idea what conduct is allowed and what is permitted unless the MMPA scheme is read to excuse all but the purposeful targeting of marine mammals. (See Pis.’ Reply at 11.) In other words, whatever “accidental” might be taken to mean, it most certainly is not the conduct of knowingly setting one’s purse seine net on a whale. Cf. Robinson v. Cheney, 876 F.2d 152, 163 (D.C. Cir. 1989) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” (quoting Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974))). To be sure, a fisherman who seeks to determine whether a take is “incidental” (and thus excused) may find it more or less difficult to ascertain whether the prerequisites of “non-intentional or accidental” conduct have been met on various occasions. But the fact that a regulation requires the exercise of judgment, or that there is room for disagreement about the existence of a necessary factual predicate, is not a proper grounds for a vagueness challenge. See, e.g., Throckmorton, 963 F.2d at 445 (collecting cases rebuffing vagueness challenges to regulatory language like “so far as practicable,” “except when necessary,” and “in near proximity” (alteration omitted) (internal quotation marks omitted)); see also Am. Coal. Co., 796 F.3d at 28 (rejecting vagueness argument related to a definition of “fire” that required certain non-flaming material to “present a reasonable chance of bursting into flame”). And, in any event, the definition at issue here is not subject to any such challenge, because no reasonable regulated party who understands that the safe harbor for incidental takes applies to “non-intentional or accidental” actions would have thought himself authorized to “knowingly set[ ] [his] net on a whale-associated school” (ALJ’s Decision at 32). See Am. Coal. Co., 796 F.3d at 28 (expressing confidence that a regulation is not vague if a “reasonable” regulated party “will prove able to implement the Secretary’s standard in practice”). Thus, Plaintiffs’ vigorous attempt to convince this Court that wholly innocent fishermen will get unfairly swept up into the