Pacific Ranger, LLC v. Pritzker (211 F. Supp. 3d 196, 2016)

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. (