Full opinion text
MEMORANDUM AND ORDERS WOODLOCK, District Judge. The Amended Complaint in this action contains headings for twenty-three counts variously alleging that the defendants, the United States Coast Guard and the Secretary of Commerce, have violated several federal statutes, including the Endangered Species Act, the National Environmental Policy Act, the Marine Mammal Protection Act, and the Administrative Procedure Act. Broadly stated, the plaintiff asserts that the defendants have addressed inadequately the impact of Coast Guard activities on various endangered marine mammals, especially the Northern Right whale. Plaintiff contends that such compliance with law as the defendants have manifested is the result only of specific mandate from this Court and that further decrees are required to secure full compliance. The defendants now move for summary judgment on all counts arguing that they have complied with the mandates of the several statutes. The plaintiff has filed a cross motion for partial summary judgment contending the defendants’ purported compliance has been inadequate and that, accordingly, the actions — and inaction — of defendants still present a threat to the endangered marine mammals. I will grant full summary judgment to the defendants. I. Background In June, 1994, plaintiff Max Strahan filed the original complaint in this action pro se against defendants Rear Admiral John L. Linnon and Admiral Robert E. Kramek of the United States Coast Guard. The original complaint alleged violations of four federal statutes: the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), the Marine Mammal Protection Act (“MMPA”), and the Whaling Convention Act. Strahan moved for a preliminary injunction and the defendants moved for summary judgment. By a Memorandum and Order issued on May 2, 1995, Strahan v. Linnon, 967 F.Supp. 609 (D.Mass.1995), I granted summary judgment for the defendants on several of the counts in the complaint. Due to the “defendants’ dilatoriness and neglect in initiating mandated procedures,” however, I declined to grant summary judgment to the defendants on the counts regarding ESA consultation, conservation and permitting; MMPA permitting; and NEPA environmental assessment preparation. Memorandum and Order, at 2. I also granted, in part, Strahan’s motion for a preliminary injunction, “to the extent of directing that the Coast Guard initiate and expeditiously fulfill the procedural requirements of the ESA, MMPA, and NEPA.” Infra at 610. Following that order, the Coast Guard on August 1, 1995, submitted a “Final [ESA] Biological Assessment for the U.S. Atlantic Coast” (“BA”) to the National Marine Fisheries Service (NMFS) to aid consultation over its operations. Dft’s Memo, at 7. Then, on September 15, 1995, NMFS issued its 1995 Biological Opinion (“BO”) on U.S. Coast Guard Vessel and Aircraft Activities along the Atlantic Coast. In that Biological Opinion, NMFS concluded that long-term continuation of Coast Guard activities was not likely to jeopardize any listed species. See 1995 BO, at 39. (FEIS Vol. I, App. C.) The 1995 Biological Opinion also stated, however, that consultation must be reinitiated if an endangered whale was struck or injured by a Coast Guard vessel. Id. at 40. On September 22, 1995, the Coast Guard published an Environmental Assessment of Potential Impacts of U.S. Coast Guard Activities Along the U.S. Atlantic Coast (“EA”) and a proposed Finding of No Significant Impact (“FONSI”). (Id., App. D.) During September and October of 1995, the Coast Guard received comments on its Environmental Assessment, many of which urged the Coast Guard to reconsider its FONSI determination and issue an Environmental Impact Statement (“EIS”). See FEIS, at 2-2. On October 9, 1995, the Coast Guard Cutter Reliance struck a Humpback whale. Id. Additionally, an increased number of Right whale mortalities was observed during the 1995-1996 Northern Right whale calving season. Id. Because of these developments, the Coast Guard reinitiated consultations with NMFS on February 22, 1996. Id. Then, on July 22,1996, NMFS issued a second Biological Opinion on the reinitiated consultation. See FEIS, Vol. I, Exh. F. “Based primarily on the new information which indicated that the right whale population might be experiencing a decline, the 1996 Biological Opinion found that the Coast Guard activities were likely to jeopardize the continued existence of northern right whales.” Id. at 24. Because of its “jeopardy” finding, NMFS proposed a Reasonable and Prudent Alternative (“RPA”) which it found was likely to avoid jeopardy to the species. Id. at 26-29. During the same time period, the Coast Guard determined that it could not reach a FONSI and that an additional environmental analysis was necessary. See FEIS, at 1-3. On April 2, 1996, therefore, the Coast Guard published a Notice of Intent to prepare a Draft Environmental Impact Statement (“DEIS”) and a Scoping Notice in the Federal Register. Id. at 2-2. The DEIS was published for public review and comment on July 31, 1996. Id. at 1-3, App. Q. The DEIS promoted the Atlantic Protected Living Marine Resources (“APLMR”) Initiative as the preferred alternative. After receiving and analyzing public comments, the Coast Guard published the FEIS on October 31, 1996. After a mandatory period of public review, on December 9,1996, the Coast Guard issued its Record of Decision (“ROD”) which adopted the APLMR Initiative. (Administrative Record, Vol. IV, Doc. 656.) Meanwhile, NMFS was also engaged in other activities in order to lessen the diminishment of the Right whale population. For example, in or about August, 1996, NMFS established a Large Whale Take Reduction Team (“TRT”) under the MMPA. See 61 Fed.Reg. 40819 (August 6, 1996). On January 2, 1997, NMFS issued a final rule classifying inshore and offshore lobster fisheries as Category I fisheries under the MMPA. See 62 Fed.Reg. 33. Despite the fact that the TRT did not reach consensus, it submitted a draft Take Reduction Plan (“TRP”) to NMFS on February 1, 1997. On April 1, 1997, NMFS filed its proposed final TRP in the Federal Register. See Dft’s Reply, Exh. C. Last, on February 13, 1997, NMFS issued an interim final rule restricting approaches within 500 yards of Right whales, whether by vessel, aircraft or other means. 62 Fed.Reg. 6729 (Feb. 13,1997). Unsatisfied by the defendants’ consultation and conservation efforts and now represented by counsel and joined by a new co-plaintiff, Strahan moved to file an amended complaint on May 21,1996, which I allowed after oral argument on June 19,1996. A discovery and briefing schedule was established. On March 7, 1997, the defendants filed a motion for summary judgment on all counts, arguing, inter alia, that they had completed the consultation process and that their various conservation plans and environmental assessments were in place, satisfactory and would adequately protect endangered species. The plaintiff moved for partial summary judgment the same day. The plaintiff generally attacks the results of the consultation process and argues that the defendants have not adequately insured that the Northern Right whale will not continue to be jeopardized by Coast Guard and NMFS actions and inaction. II. Procedural Arguments Before addressing the substantive issues in this case, I must consider several procedural arguments advanced by the defendants to deflect certain of the plaintiff’s claims. First, the defendants assert that Count XII of the Amended Complaint, which alleges that NMFS violated Section 7 of the ESA because the 1995 Biological Opinion (“BO”) “fails to meet the requirements of the ESA,” is moot because the 1995 Biological Opinion has been superseded by the 1996 Biological Opinion. I agree with the defendants that the claim against the 1995 Biological Opinion is now moot because the 1995 Biological Opinion is no longer in effect and “the challenged actions are now water over the spillway, as it were.” Idaho Dep’t of Fish & Game v. NMFS, 56 F.3d 1071, 1074 (9th Cir.1995). The plaintiff has had ample time to move to amend his complaint and has failed to do so in accordance with Fed. R.Civ.P. 15 in order to restate his claims formally as to the 1996 Biological Opinion. Nevertheless, despite the lack of formal amendments or supplementation, the parties have understood the 1996 Biological Opinion is in dispute. The defendants have addressed the adequacy of the 1996 Biological Opinion in their supporting memoranda and they “will suffer no apparent prejudice as a result of supplementation.” Structural Systems, Inc. v. Sulfaro, 692 F.Supp. 34, 35-36 (D.Mass.1988). Accordingly, I will treat the pleadings as supplemented with respect to Count XII. The defendants also assert that Counts XV and XVI of the Amended Complaint, alleging that the defendants have violated sections 117 and 118 of the Marine Mammal Protection Act (“MMPA”) because they have not created a Take Reduction Team (“TRT”)or issued a Take Reduction Plan (“TRP”), are moot because a TRT has been formed and, they argue, that NMFS will issue a final TRP by July 15, 1997. To the contrary, the plaintiff argues that the TRP alluded to by the defendants does not satisfy the MMPA’s requirements because the TRT could not reach a consensus on the plan. The statute requires that if a TRP is not reached by consensus “the Secretary shall take the draft take reduction plan into consideration and ... shall publish in the Federal Register the plan proposed by the team....” 16 U.S.C. § 1387(f)(7)(B)(i). I find that the defendants have complied with the statute in so far as the Secretary filed its proposed TRP in the Federal Register on April 1, 1997. See Dft’s Reply, Exh. C. The plaintiff still contends, nevertheless, that his claims are not moot because of the further allegation that the defendants did not adhere to the time limits mandated in the MMPA. Even if I found that the defendants did not previously comply with the statute’s time restrictions, however, plaintiffs claim would still be moot because there would be no available relief. Accordingly, I find that Counts XV and XVI are moot. I similarly find that Count XVII, alleging NMFS has not classified the lobster fishery in Category I, is moot because NMFS issued a final rule on fishery classifications which included classification of inshore and offshore lobster fisheries as Category I fisheries on January 2, 1997. See 62 Fed.Reg. 33. III. ESA The plaintiff asserts various claims that the defendants have violated the ESA. These claims allege that the Coast Guard violated § 7 because its Biological Assessment did not meet the requirements of the ESA (Count I); that the Coast Guard violated § 7(a)(2) by failing to consult with NMFS before issuing permits for certain vessels (Count II); that the Coast Guard violated § 7(a)(1) by failing to implement a conservation plan (Count III); that the Coast Guard violated § 7(a)(2) by issuing Certificates of Inspection to vessels of commercial whale-watching companies “that intentionally pursue and commercially exploit listed endangered species.” (Count V); that the Coast Guard has violated “the legal duties imposed on it by 16 U.S.C. § 1540(e)(1) to conserve and protect the Northern Right whale” by failing to enforce the prohibitions of the ESA (Count VI); that the Coast Guard has taken Northern Right whales in violation of Section 9 of the ESA, 16 U.S.C. § 1538 (Count IX); that NMFS violated section 7 of the ESA by failing to issue an adequate Biological Opinion (Count XII); that NMFS violated section 4 of the ESA by failing to adopt and implement an adequate recovery plan and conservation program (Count XIII); that NMFS violated section 11 of the ESA by adopting a policy of non-enforcement (Count XXII); and that NMFS violated section 6 of the ESA by improperly entering into a Cooperative Agreement with the Commonwealth of Massachusetts (Count XXIII). I will address each of these Counts individually. 1. The Biological Assessment and Opinions In Counts I and XII, the plaintiff challenges, respectively, the adequacy of the Coast Guard’s Biological Assessment (“BA”) and NMFS’s Biological Opinions (“BO”). Both the plaintiff and the defendants move for summary judgment on these counts. Although I address the adequacy of the Biological Assessment and the Biological Opinions separately, I find that the analyses are largely similar. I begin with a detailed discussion of the Biological Opinions followed by a briefer analysis of the Biological Assessment. A. The Biological Opinions 1. Procedural Defenses The defendants attempt initially to dispose of Count XII on various procedural grounds. I do not find these arguments persuasive. First, the defendants assert that the Biological Opinions are not final agency action and, accordingly, that they may not be reviewed by this Court under the Administrative Procedure Act (“APA”). This argument was rejected recently by the Supreme Court in Bennett v. Spear, — U.S. -, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Addressing this precise issue, that Court stated: As a general matter, two considerations must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s decision-making process, Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948)—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow,” Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970). Id. at -, 117 S.Ct. at 1168. Based on this analysis, the Court then held that a Biological Opinion satisfied the requirements and constituted final agency action. Id. at-- -, 117 S.Ct. at 1168-69. The defendants argue another point addressed adversely to them by the Supreme Court in Bennett. They assert that the citizen-suit provision in the ESA, 16 U.S.C. § 1540(g)(1)(A), provides no basis for the plaintiffs challenge to the Biological Opinions. In Bennett, the Supreme Court found this argument persuasive on the facts there presented and concluded that the plaintiffs could not challenge the adequacy of a Biological Opinion under the ESA. Explaining its reasoning, the Court stated: [Section] 1540(g)(1)(C) expressly authorizes suit against the Secretary but only to compel him to perform a nondiscretionary duty under § 1533. That provision would be superfluous—and, worse still, its careful limitation to § 1533 would be nullified—if § 1540(g)(1)(A) permitted suit against the Secretary for any “violation” of the ESA. Id. at-, 117 S.Ct. at 1166. This finding as to the ESA, however, does not preclude judicial review of the Biological Opinions on another basis. In fact, after rejecting the plaintiffs’ challenge to the biological opinions under the ESA, the Supreme Court in Bennett found: No one contends (and it would not be maintainable) that the causes of action against the Secretary set forth in the ESA’s citizen-suit provision are exclusive, supplanting those provided by the APA. The APA, by its terms, provides a right to judicial review of all “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Id. at-, 117 S.Ct. at 1167. Thus, I find that the plaintiffs § 1536 claims are renewable under the APA. The last procedural argument advanced by the defendants is that the plaintiff has failed to comply with the 60-day notice requirement contained in ESA § 11(g)(2)(A). I am not persuaded by this argument. First, at an earlier hearing in this case, held on June 19, 1996, I determined, and the parties agreed, that the notice provided was sufficient as to the claims of the Amended Complaint. See Supp. Aff. of Jonathan M. Ettinger, Exh. D, at 33. Given the history of this litigation, coupled with plaintiff Strahan’s “zealous advocacy,” (of which the defendants are well aware) the pleadings provided defendants fair notice that the plaintiff would challenge the substance of the related Biological Opinions. Last, because I have determined that the plaintiffs § 1536 claims regarding the sufficiency of the Biological Opinions lies under the APA, rather than the ESA, it does not appear that the 60-day notice requirement even applies in the present action. 2. Substantive Challenges The Amended Complaint alleges that the 1995 and 1996 Biological Opinions are plagued by various substantive inadequacies. a. “cumulative effects” . The plaintiffs assertion that the Biological Opinions failed “to adequately evaluate the cumulative impacts of all marine events, including Coast Guard and non-Coast Guard vessels,” (Am. Complaint ¶¶ 54b(l), 105(a)), is not borne out by the record. “Cumulative effects” are defined in 50 C.F.R. § 402.02 as “those effects of future state or private activities ... that are reasonably certain to occur within the action area of the federal action subject to consultation.” I find that the 1995 and 1996 Biological Opinions satisfy this standard. In particular, both Biological Opinions contain thorough discussions of the impact of non-Coast Guard vessels on the Northern Right whale. See 1995 BO at 36-38, FEIS Vol. I, App. C., 1996 BO at 23-24, FEIS Vol. I, App. F. b. “best scientific and commercial data”. The plaintiffs contention that the Biological Opinions are deficient because they failed to “use the best scientific and commercial data available,” 50 C.F.R. § 402.14(g)(8), is also unsupported by the record. The plaintiff specifically alleges that NMFS used stale data from 1992, that NMFS did not attempt to obtain current population data that was available at the time the Biological Opinions were prepared, and that NMFS “did not perform any population viability analysis or model the effects of ship-whale interactions or perform a risk assessment to determine density and likelihood of conflicts between usage by vessels and whales in areas used by both.” Pi’s Memo, at 11. If true, plaintiffs contentions would render the Biological Opinions insufficient under the ESA. See Roosevelt Campobello Int’l Park Comm’n v. U.S. E.P.A., 684 F.2d 1041, 1049 (1st Cir.1982); Resources Limited, Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir.1994); Conner v. Burford, 848 F.2d 1441, 1453-54 (9th Cir.1988), cert. denied sub. nom., Sun Exploration and Production v. Lujan, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989). I find, however, that NMFS used the best scientific and commercial data available to it in formulating the Biological Opinions. The plaintiffs allegation that the Biological Opinions rely on stale data from 1992 is inaccurate. Indeed, the 1996 Biological Opinion specifically refers to the new data it relies on, stating: The new information is the number of mortalities documented in the past 12 months and information from the right whale identification catalogue which compares current and past mortalities to known births to give a perspective on the population trend since 1980. Also, locations of carcasses of some of the 196 mortalities, as well as preliminary offshore aerial survey data (GADNER, unpublished data) and sightings____ 1996 BO at 12. In the next several pages of the Biological Opinion, these developments are discussed individually in greater detail. See id. at 12-18. Moreover, the 1996 Biological Opinion also reports about information it received from the New England Aquarium in the several months before the Biological Opinion was published. See id. at 15-16. Accordingly, I find the plaintiffs allegation that the defendants “did not even attempt to obtain” current information to be plainly false. In fact, rather than “ignore available biological data,” Conner, 848 F.2d at 1454, NMFS expressly incorporated such information into its 1996 Biological Opinions. See, e.g., 1996 BO, at 19 (assessing change in environmental baseline due to “recent documented mortalities”) . With respect to the plaintiffs assertions that NMFS did not perform population viability analyses or model the effects of whale-ship interactions, I do not find that these “deficiencies” constitute a failure to use the best scientific and commercial data available. Roosevelt Campobello, a case the plaintiff cites for support, is readily distinguishable. In Roosevelt Campobello, the First Circuit determined that the Coast Guard did not use the best scientific data because it did not perform a “real time simulation.” Roosevelt Campobello, 684 F.2d at 1052-55. In that case, however, “[a]ll the witnesses [in the administrative hearing] have agreed that real time simulation studies would contribute a more precise appreciation of risks of collision and grounding. We think the same could be said of a hydrographic survey of the depth of the channel, and perhaps of trial runs by VLCCs in ballast.” Id. at 1055. In this case, by contrast, there is no evidence indicating that modeling and population viability analyses would “contribute a more precise appreciation of risks.” While the plaintiff insists that “[a]n analysis of the distribution of whales and ships would enable NMFS and the Coast Guard to better determine the risks of ships striking whales,” Pi’s Reply, at 7, this conclusory assertion does not constitute adequate evidence. As in Bays’ Legal Fund v. Broumer, 828 F.Supp. 102 (D.Mass. 1993), where the court dismissed the plaintiffs’ claims that the EPA did not use the best scientific data available, I find that “the plaintiffs never produce any evidence that the data on which the EPA relied ... was inferior in any way. They only make the conclusory allegation that [the study] ... could have [been] performed ... with greater expertise.” Id. at 106 n. 7. Accordingly, I find that NMFS has satisfied its duty to use the best scientific and commercial data available, as required by § 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2). Because I find that the Biological Opinions adequately analyze the cumulative impact of the proposed action and that they employ the best scientific and commercial data, I find that they withstand scrutiny under the arbitrary and capricious standard of the APA. See Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1414 (9th Cir.1990)(“Judieial review of administrative decisions involving the ESA is governed by section 706 of the Administrative Procedure Act.”); Bays’ Legal Fund, 828 F.Supp. at 107 (“Therefore, to succeed, the plaintiffs must establish that ... the scientific determinations ... were arbitrary and capricious.”). I will grant summary judgment for the defendants on Count XII. B. The Biological Assessment The plaintiff attacks the Biological Assessment (“BA”) on largely the same grounds that he faults the Biological Opinions. Therefore, the analysis of the plaintiffs claims with respect to the Biological Assessment will echo the discussion of the Biological Opinions. There is one difference worth noting, however, because it informs the entire analysis. Unlike the Biological Opinion, the contents of the Biological Assessment are discretionary. The applicable regulations state that “[t]he contents of a biological assessment are at the discretion of the [action] agency and will depend on the nature of the Federal action.” 50 C.F.R. § 402.12. See also Bays’ Legal Fund, 828 F.Supp. at 110 n. 19 (“there are no strict requirements for what the biological assessment should include; its contents are discretionary with the agency preparing it.”). Accordingly, the Court’s review of the Biological Assessment will be less searching than its consideration of the Biological Opinions. First, the plaintiff asserts that the Biological Assessment did not discuss adequately the cumulative impacts of “all marine events.” Am. Complaint § 54b(l). Although it contains a briefer discussion of the cumulative impacts of Coast Guard and non-Coast Guard activities than the Biological Opinions, I find that the Biological Assessment does discuss the cumulative impacts such as “pollution, oil and gas exploration, sea-bed mining, and a general increase in coastal activities due to an increase in human population along the east coast.” BA at 3-7-3-10 (AR Vol. III). The plaintiff next contends that the Coast Guard did not “use sufficiently qualified personnel and the best scientific data available” in the Biological Assessment. (Am. Complaint ¶ 54b(2) .) In the first instance, I do not find any support in the ESA or in the cases cited by the plaintiffs, for the assertion that Biological Assessments must employ personnel or scientific data of a particular quality. In fact, each case cited by the plaintiffs in this section discusses the statutory requirements for either Biological Opinions or Environmental Impact Statements. See Carmel-by-the-Sea v. U.S. Dep’t of Trans., 95 F.3d 892, 900 (9th Cir.1996) (EIS); Resources Limited, Inc. v. Robertson, 35 F.3d 1300, 1305 (9th Cir.1993) (BO); Roosevelt Campobello, 684 F.2d at 1052 n. 9 (EIS). In any event, the plaintiff does not produce any evidence that the data used by the Coast Guard was outdated or incorrect or that the personnel involved were inadequate to the task. Last, the plaintiff asserts that the Biological Assessment did not consider adequately “meaningful alternatives to the proposed action.” Am. Complaint ¶ 54b(3). Again, I find this assertion to be contrary to the evidence in the Biological Assessment itself. Indeed, the Biological Assessment devotes an entire chapter to “Proposed Action and Alternatives to Proposed Action.” See BA, Chapter 5. Briefly, the alternatives discussed include (1) the preferred alternative, (2) the reduction of vessel speed and the increase of aircraft altitude when endangered species are expected to be in the area, (3) reduction of vessel speed and increase in aircraft altitude at all times, (4) avoidance of all high use areas, and (5) cessation of USCG patrolling of the Atlantic Coast. See id. at 5-4-5-5. I find that this discussion is sufficient. Accordingly, I find that the Coast Guard’s Biological Assessment is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). I will grant summary judgment to the defendants on Count I. 2. The Conservation Program and Recovery Plan In Count III of the Amended Complaint the plaintiff alleges that the Coast Guard’s conservation program is “substantially deficient” and therefore violative of § 7(a)(1) of the ESA. Similarly, Count XIII alleges that NMFS has not adopted recovery plans for federally protected whales other than the Right and Humpback whales. Therefore, the plaintiff contends that NMFS has violated 16 U.S.C. § 1533(f) which requires NMFS to “develop and implement” such plans. Both the plaintiff and the defendants move for summary judgment on these counts. A. The Conservation Program Section 7(a)(1) states that federal agencies “shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species____” 16 U.S.C. § 1536(a)(1). The plaintiff asserts that the Coast Guard has violated § 7(a)(1) because the APLMR Initiative, adopted as the preferred alternative in the FEIS and then in the ROD, “cannot be considered an adequate conservation program as required by the ESA” Pi’s Memo, at 24. Specifically, the plaintiff argues that the APLMR “does not contain specific measures ‘necessary ... to prevent the loss of any endangered [whales].’ ” Pl’s Memo, at 24 (citing Roosevelt Campobello, 684 F.2d at 1049 )(citing TVA v. Hill, 437 U.S. 153, 185, 188 n. 34, 98 S.Ct. 2279, 2297, 2299 n. 34, 57 L.Ed.2d 117 (1978)). I do not find this argument persuasive because the plaintiff has not demonstrated, in any meaningful sense, specific measures that are necessary to prevent the loss of any endangered species that are missing from the APLMR. The only problem the plaintiff identifies is that the plan “establishes neither speed limits nor distance rules for non-Coast Guard vessels.” Id. at 25. I do not find this a fatal flaw. In fact, the APLMR addresses, directly, the issue of controlling non-Coast Guard vessels, stating that “[t]he NMFS, which has the biologists and the resources needed to consider and develop [approach and distance rules for non-Coast Guard vessels], has already undertaken this proposal and the USCG will continue to support [its] efforts.... ” BO, at 3-14. In any event, conservation plans, under § 7(a)(1) are “voluntary measures that the federal agency has the discretion to undertake” and “the Act does not mandate particular actions be taken by Federal agencies to implement § 7(a)(1).” 51 Fed.Reg. 19926, 19931,19934. If the Coast Guard was forced to impose distance and speed restrictions, or other specific measures in order to fulfill its duty to conserve under § 7(a)(1), the Coast Guard “would [be] divest[ed] ... of virtually all discretion on deciding how to fulfill its duty to conserve. We have recognized that the Secretary is to be afforded some discretion in ascertaining how best to fulfill the mandate to conserve under section 7(a)(1).” Pyramid Lake Paiute Tribe of Indians v. United States Dep’t of the Navy, 898 F.2d 1410, 1418 (9th Cir.1990). TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) does not compel a finding that the Coast Guard must adopt specific measures in order to comply with § 7(a)(1). In TVA, it was undisputed that the proposed agency action would “either eradicate the known population of snail darters or destroy their critical habitat.” Id. at 172, 98 S.Ct. at 2291. The situation here is entirely distinguishable because the effects of Coast Guard activity, themselves, are not the center of plaintiffs § 7(a)(1) claim. Rather, the dispute is about the necessity of adopting specific protective measures in the conservation program. It is not suggested by the plaintiff that without the speed and distance rules, Northern Right whales face such imminent eradication. Moreover, the holding in TVA was premised on § 7(a)(2), while § 7(a)(1) is at issue here. Because “[a]n agency’s duty to consult ... does not divest it of discretion to make a final decision that ‘it has taken all necessary action to insure that its actions will not jeopardize the continued existence of an endangered species,’ ” Roosevelt Campobello, 684 F.2d at 1049 (quoting National Wildlife Fed’n v. Coleman, 529 F.2d 359, 371 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976)), I find that the APLMR adopted by the Coast Guard fulfills the requirements of § 7(a)(1). I will grant summary judgment for the defendants on Count III. B. The Recovery Plan The plaintiff, in Count XIII, alleges that NMFS has violated § 4(f) of the ESA, 16 U.S.C. § 1533(f) because it has not “developed] and implemented] plans for the conservation and survival of endangered species and threatened species ____” 16 U.S.C. § 1533(f). Plaintiff makes two separate arguments with respect to NMFS’s recovery plans. First, he contends that NMFS has violated the ESA because it has not developed any recovery plans for the Blue, Sei, Fin, or Minke whales, but only the Right and Humpback whales. The plaintiff then alleges that the existing Right whale recovery plan is insufficient because it does not “incorporate implementable site-specific management actions necessary to achieve the plan’s goal ...” and because it does not “establish a realistic recovery goal.” Am. Complaint ¶ 108. The Amended Complaint further alleges that the existing plan has not been revised. With respect to the claim that NMFS has violated § 4(f) because it has not developed recovery plans for federally protected whales other than Right and Humpback whales, the defendants respond that the there are no time limits in § 4(f) within which the Secretary must develop, implement, or revise a recovery plan. I am persuaded by the defendants’ argument. See Oregon Natural Resource Council v. Turner, 863 F.Supp. 1277, 1282-83 (D.Or.1994). The court observed: Congress recognized that the development of recovery plans for listed species would take significant time and resources. It therefore provided in the ESA that the Secretary could establish a priority system for developing and implementing such plans. This priority system allows the Secretary broad discretion to allocate scarce resources to those species that he or she determines would most likely benefit from development of a recovery plan. Unlike other requirements under the ESA, such as the designation of critical habitat, the statute places no time constraints on the development of recovery plans. See 16 U.S.C. § 1533(f). Id. at 1283. Accordingly, the Secretary has developed a priority system for developing such recovery plans. See 55 Fed. Reg. 24296. I find, therefore, that the fact that NMFS has not issued recovery plans for Sei, Blue, and Fin whales does not constitute a violation of § 4(f). The plaintiff also asserts that the recovery plans that do exist, are deficient and thus violative of the statute. He claims that “as a general matter, [the recovery plan] does not contain objective, scientific, measurable criteria.” Pi’s Opp., at 13. More specifically, the plaintiff contends that the plan “fails to include ... an annual census, a population viability analysis, modeling of ship-whale interactions, risk analysis, and interim numerical goals.” Id. at 14 (citing Affidavit of Robert D. Stevenson, Pi’s Exh. H, at 3-6). The defendants assert that the discretionary nature of a recovery plan also applies to the plan’s content and that “it is not necessary for a recovery plan to be an exhaustively detailed document.” Dft’s Memo, at 25 (quoting Fund for Animals v. Babbitt, 903 F.Supp. 96, 107 (D.D.C.1995)). Case law instructs that the defendants are correct in their assertion that the content of recovery plans is discretionary. For example, in Fund for Animals, Inc. v. Rice, 85 F.3d 535 (11th Cir.1996), the plaintiffs’ argument relied on the assumption that “Recovery Plan[s][are] document[s] with the force of law.” Id. at 547. The court rejected that characterization stating that “[s]ection 4(f) makes it plain that recovery plans are for guidance purposes only.” Id. Similarly, the court in Morrill v. Lujan, 802 F.Supp. 424, 433 (S.D.Ala.1992), found that “the contents of [recovery] plans are discretionary.” While it is true that § 4(f) “does not permit an agency unbridled discretion,” and “imposes a clear duty on the agency to fulfill the statutory command to the extent that it is feasible or possible,” Fund for Animals v. Babbitt, 903 F.Supp. 96, 107 (D.D.C.1995), the requirement does not mean that the agency can be forced to include specific measures in its recovery plan. In fact, all that is required in a recovery plan is “the identification of management actions necessary to achieve the Plan’s goals for the conservation and survival of the species.” Id. at 108. In any event, the evidence does not support that the measures suggested by the plaintiff are “necessary to achieve the plan’s goal for the conservation and survival of the species.” 16 U.S.C. § 1533(f)(1)(B)©. And in fact, some of the measures advocated by the plaintiff are currently being implemented by NMFS. For example, the plaintiffs expert, Robert D. Stevenson, Ph.D., states that NMFS should conduct a population viability analysis (“PVA”) to “provide a basis on which to prioritize conservation efforts.” Stevenson Aff. ¶ 3b. In his affidavit, Stevenson also describes the process by which a PVA should be implemented. See id. Philip Michael Payne, NMFS’s Recovery Plan Coordinator until April, 1996, states that NMFS is currently funding a project recommended by Dr. Caswell of the Woods Hole Oceanographic Institute, that incorporates many of Stevenson’s suggestions. See Payne Dec. at 16-18. To be sure, it appears the NMFS research does not fully adopt Stevenson’s suggestions. In this connection, Payne states that “NMFS has... analyzed the possibility of doing a PVA analysis for the species but determined that such an exercise would not be useful.” Id. at 17. And with respect to the annual census recommended by Stevenson, see Stevenson Aff. ¶ 3a, Payne asserts that: [s]etting aside for the moment whether such annual surveys are even possible, [experts] have shown that detecting a baseline using idenpendent [sic] counts over time in a small population is difficult and they recommend against basing management on such an approach---- In other words, we would only detect that the population [of Right whales] was declining when it reaches a size of 42 animals, which clearly is not acceptable. Therefore, even if rights whale surveys are done every year, they will not succeed in adequately monitoring the population.... It will likely be far better to put resources into the photo-id analyses, rather than into aerial or ship surveys. Payne Dec., at 14-15. Experts in the field plainly have different opinions as to what measures should be taken most effectively to promote conservation efforts for Right whales. It is also plain, however, specifically from the Payne Declaration, that NMFS has considered the alternatives suggested by the plaintiff. The fact that NMFS did not adopt precisely the recommended measures in its recovery plan, does not make that plan deficient. Indeed, especially when expert, scientific judgments are involved, the court must afford the agency’s decision a great deal of deference. Bays’ Legal Fund v. Browner, 828 F.Supp. 102, 107 (D.Mass.1993). Last, I find that the recovery plan does contain “objective, measurable criteria,” § 4(f)(l)(B)(ii), and “a description of site-specific management actions,” § 4(f)(l)(B)(i). In terms of “objective, measurable criteria,” the recovery plan states that the recovery goal is 7000 animals. See Final Recovery Plan for the Northern Right Whale, at 13. (CG AR VIA, Doc. 163.) The plaintiff argues that this goal is unrealistic and meaningless without a provision for interim goals. I find nothing in § 4(f) that mandates such interim goals. I also find that the Recovery Plan satisfies the “site-specific” requirement. The term “site-specific” has been interpreted to refer to geographical areas, requiring that the agency “in designing management actions, consider the distinct needs of separate ecosystems or recovery zones occupied by a threatened or endangered species.” Fund for Animals, 903 F.Supp. at 106. The Recovery Plan meets this requirement because it considers the separate needs of the northern Atlantic population and the northern Pacific population. See Recovery Plan, Chapter III, Chapter IV. Additionally, the plan also addresses the different habitats of Northern Right whales at different times of year and contains measures specifically directed at each habitat. See id. at 5-7, 17-18. I find that the Recovery Plan is not arbitrary and capricious. The plaintiff argues that even if the Recovery Plan is not arbitrary and capricious, NMFS has still violated the ESA because it has not implemented the plan. To support this contention, the plaintiff lists (and has charted, see Pi’s Exh. I), certain goals limned in the Recovery Plan that are not yet in effect. While it appears that some of the Recovery Plan’s goals have not been implemented, e.g., “appropriate seasonal or geographic regulations for the use of certain fishing gear in” the Bay of Fundy and the Southern Nova Scotia Shelf, I find plaintiff’s allegations to be largely unfounded and needlessly technical. For example, the plaintiff states that no regulations on whale-watch vessels exist today. See Pi’s Opp., at 18. In February, 1997, however, NMFS issued a rule restricting all vessels and aircraft from approaching Right whales at a distance closer than 500 yards. Moreover, while the plaintiff asserts that “NMFS still has not located the unknown wintering area it alleges exists,” Pi’s Opp., at 17, Philip Michael Payne avers that the research enabling NMFS to “find the unknown summer nursery and wintering grounds” is ongoing. Payne Dec., at 22-23. See also Deposition of Douglas W. Beach, at 199. (Ettinger Aff., Exh. 71.) After considering these efforts, I find that NMFS is taking steps to implement its Recovery Plan and that no ESA violation exists. I will grant summary judgment for the defendants on Count XIII. 3. The Takings Claims In Count IX, the plaintiff alleges that the Coast Guard has violated § 9 of the ESA which prohibits any person from “taking” a listed species. 16 U.S.C. § 1538(a)(1)(B). Count X alleges the same violation under the analogous provisions of the MMPA, 16 U.S.C. § 1372(a)(1). The plaintiffs “takings” claims are divided into “takings” by Coast Guard vessels and “takings” by non-Coast Guard vessels to whom the Coast Guard has issued Certificates of Documentation. A. Coast Guard Vessels The statute defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect....” 16 U.S.C. § 1532(19). There is no dispute that Coast Guard vessels have “taken” two Right whales and one Humpback whale in the last seven years. The relief the plaintiff seeks as a result of these determinations, however, has not been shown to be necessary or supportable. In his Prayer for Relief, the plaintiff requests that this Court issue a declaratory judgment “that taking of Federally Protected Whales by the Coast Guard in the course of their operation of vessels on the marine waters of The [sic] United States without any ‘small take permit’ to do so... constitutes an illegal taking of the Northern Right whale and other Federally Protected Whales and is in violation of the prohibitions of the MMPA.” Am. Complaint, Prayer for Relief ¶ 5. Given the admissions of the defendants, such a declaration would be supererogatory. The plaintiff also requests specific, injunctive relief that will prevent future takings. The standard applied by the First Circuit to determine whether a court should grant injunctive relief is whether “petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species.” American Bald Eagle v. Bhatti 9 F.3d 163, 166 (1st Cir.1993). See also Strahan v. Coxe, 939 F.Supp. at 986. Accordingly, I will consider the likelihood of future takings, using as evidence, inter alia, the three takings to which the Coast Guard admits. It is clear, and the defendants admit, that if the Coast Guard’s conduct that resulted in the three takings were to continue, the evidence would be sufficient to meet the First Circuit’s standard. The defendants assert, however, that “none of those takes occurred with the present whale protection programs in place.” Dft’s Opp., at 15. They further argue that NMFS, in its 1996 Biological Opinion, determined that adoption of the APLMR is likely to prevent the Coast Guard from taking any more whales. See id. The plaintiff, by contrast, claims that the defendants’ new procedures “are mere window dressing which are unlikely to stop the killings.” Pi’s Reply, at 10. Accordingly, an examination of the Reasonable and Prudent Alternatives suggested in the 1996 Biological Opinion is warranted. Briefly, the RPA instructed that: (1) “All conservation recommendations from the September 1995 biological opinion that concern endangered whales must be implemented.... Progress on the actual effects of implementation must be determined, and a report provided to NMFS annually beginning with the first report due January 1, 1997____(2) “The Coast Guard must post dedicated lookouts during all transits ... in all areas of whale concentrations and high use by right whales ... (3) “The Coast Guard must make sure that all dedicated lookouts have successfully completed the marine mammal training program ....”; (4) The relevant areas must “provide support for aerial surveys during periods of high use ____(5) “all District guidance documents must be revised to clearly require use of the ‘slow safe speed standard ---- (6) “the Coast Guard must participate in investigating, testing and implementing technological solutions to prevent vessel strikes____(7) “the Coast Guard will adopt a policy during non-emergency operations of not approaching whales head-on and not approaching right whales within 500 yards and all other whales within 100 yards.... (8) “The Coast Guard must provide information to commercial and recreational vessel operators that is geared to avoiding collisions with endangered whales---- (9) “The Coast Guard must ... provide timely information on current locations of all endangered whales to commercial vessels____(10) “The Coast Guard must notify NMFS of any event that will take place in critical habitat and in areas of high-use or concentration for all listed species including right whales.”; (11) “[T]he Coast Guard shall work in conjunction with other agencies to designate critical habitat and high-use areas as Particularly Sensitive Areas____”. Id. at 26-29. These recommendations cover most of the substance that Strahan requests in his Prayer for Relief. It is important to note, at this juncture, that the ESA’s requirements are stringent and unyielding. See TVA v. Hill, 437 U.S. 153, 173-74, 98 S.Ct. 2279, 2291-92, 57 L.Ed.2d 117 (1978). Indeed, “examination of the language, history, and structure of the legislation ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” Id. at 174, 98 S.Ct. at 2292. Moreover, “it is clear Congress foresaw that § 7 would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.” Id. at 186, 98 S.Ct. at 2298. With respect to the conservation of the Northern right whale, therefore, the ESA’s requirement that a federal agency “insure that any action ... is not likely to jeopardize the continued existence of any endangered species or threatened species ...” 16 U.S.C. § 1536(a)(2), if most strictly interpreted, could require the Coast Guard to cease all operations along the Atlantic Coast. Such an order would not be appropriate. Indeed, the plaintiff himself does not request such drastic measures. The question becomes, then, a matter of calibration — how many protective measures are enough to satisfy the ESA? At this point on this record, I find that the measures suggested in the 1996 Biological Opinion sufficiently decrease the likelihood the future takings of Right whales to justify a determination that plaintiff cannot establish that the Coast Guard’s activities under the APLMR regime will, if continued, “actually harm” Right whales. Bhatti, 9 F.3d at 166. More specifically, I find that, if implemented, the protective measures in the APLMR and the 1996 Biological Opinion will insure, to the same extent as the measures proposed by Strahan, that future takings will not occur. Accordingly, I find that plaintiff has not supported a case for further injunctive relief. B. Non-Coast Guard Vessels The plaintiff also argues that the Coast Guard should be liable for “takings” by non-Coast Guard vessels to whom it has issued a Certificate of Documentation. As I previously have determined, the Coast Guard’s issuance of Certificates of Documentation is not discretionary and so does not trigger the ESA. See Strahan v. Linnon, CA No. 94-11128-DPW, Memorandum and Order, May 2, 1995, infra at 621. Accordingly, the plaintiff’s theory of liability cannot stand. I will grant summary judgment for the defendants as to Counts IX and X. IV. NEPA In Count IV of the Amended Complaint, the plaintiff alleges that the Coast Guard “has not complied with the non-discretionary duties imposed on it by NEPA.” (Amended Complaint ¶ 66.) Specifically, the plaintiff argues that the Final Environmental Impact Statement (“FEIS”) failed to consider the environmental impact of its proposed actions, failed to assess the cumulative impact of its actions on the environment and failed adequately to evaluate alternatives to its proposed solution. The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., “declares a broad national commitment to protecting and promoting the environmental quality.” Dubois v. United States Dep’t of Agriculture, 102 F.3d 1273, 1285 (1st Cir.1996), petition for cert. filed, 65 USLW 3675 (U.S. Mar. 28, 1997) (No. 96-1539) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 1844-45, 104 L.Ed.2d 351 (1989)). Under NEPA, an agency considering any action that will have a significant impact on the environment must prepare an Environmental Impact Statement (“EIS”) [t]o ensure that this commitment is infused into the ongoing programs and actions of the Federal Government.’ ” Id. (quoting Robertson, 490 U.S. at 348, 109 S.Ct. at 1844-45). The EIS must be a “detailed statement” including, inter alia, a discussion of the environmental impact of and the alternatives to the proposed project. See 42 U.S.C. § 4332(C). “These duties are essentially procedural.” Roosevelt Campobello International Park Commission v. U.S.E.P.A., 684 F.2d 1041, 1045 (1st Cir.1982) (internal quotations omitted). The EIS, therefore, “helps satisfy NEPA’s ‘twin aims’: to ensure that the agency takes a ‘hard look’ at the environmental consequences of its proposed action, and to make information on the environmental consequences available to the public.” Dubois, 102 F.3d at 1285 (citing Robertson, 490 U.S. at 350, 109 S.Ct. at 1845-46). A. Reasonable Alternatives The Council on Environmental Quality (“CEQ”) regulations state that the consideration of alternatives is “the heart of the environmental impact statement.” 40 C.F.R. § 1502.14. Moreover, the regulations require that the EIS “[rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” Id. § 1502.14(a). The plaintiff asserts that the FEIS fails to discuss adequately the possible alternatives to the proposed project. Specifically, the plaintiff argues that the FEIS discusses only two alternatives: “the ‘no action alternative’ and the APLMR Initiative.” (Pi’s Memo, at 19.) “In essence,” the plaintiff alleges, “the FEIS analyzed whether to implement some mitigation measures or none; however, it fails to provide the analysis or information necessary to decide which mitigation measures should be implemented.” (Id.) According to the plaintiff, therefore, the FEIS is fatally flawed. An examination of the FEIS reveals that both the plaintiffs premise and his conclusion are incorrect. The Coast Guard’s duty under NEPA “is to study all alternatives that ‘appear reasonable and appropriate for study at the time’ of drafting the EIS, as well as ‘significant alternatives’ suggested by other agencies or the public during the comment period.” Roosevelt Campobello, 684 F.2d at 1047 (citing Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221, 1228-33 (1st Cir.1979)). The range of reasonable alternatives is “dictated by the nature and scope of the proposed action.” City of Carmel-By-TheSea v. United States Dep’t of Transportation, 95 F.3d 892, 903 (9th Cir.1996) (quoting Alaska Wilderness Recreation v. Morrison, 67 F.3d 723, 729 (9th Cir.1995)). Additionally, “[a]n agency’s consideration of alternatives is adequate ‘if it considers an appropriate range of alternatives, even if it does not consider every available alternative.’ ” Resources Limited, Inc. v. Robertson, 35 F.3d 1300, 1307 (9th Cir.1994) (quoting Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174, 1180-81 (9th Cir.1990)). I find that the Coast Guard’s discussion of alternatives in the FEIS is adequate. First, the FEIS demonstrates a detailed comparison of the “No Action Alternative” and the “Preferred Alternative,” evaluating factors such as the potential impact on the physical, biological and socioeconomic environments. See FEIS at 3-18-3-24. If this detailed account were the only discussion of alternatives, I might agree with the plaintiff that the FEIS is insufficient. The FEIS’s discussion of alternatives, however, is not limited to this comparison. For example, the FEIS also briefly evaluates and explains its reasons for rejecting recommendations such as “the USCG ceasing to conduct all marine activity in coastal and offshore waters,” “conducting all USCG vessel operations at slow speed and operating all aircraft at higher altitudes,” “avoiding all critical habitats ... during times when the protected species are likely to be present.” See id. at 3-17-3-18. Additionally, the FEIS discusses the rejected possibility of adopting “variations of the proposed action.” Id. at 3-16. Moreover, the FEIS also addresses specific comments that were received during the comment period for the Draft Environmental Impact Statement. See id. at 3-12-3-14; FEIS, Appendix Q. Under the rule of reason typically applied by courts “in determining whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequenees[,]” Dubois, 102 F.3d at 1287, I find that the FEIS’s discussion of alternatives to the proposed action withstands scrutiny. I note that “as long as the [Coast Guard] ’s decision is fully informed and well-considered, it is entitled to judicial deference and a reviewing court should not substitute its own policy judgment.” Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 294 (D.C.Cir.1988) (quoting North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C.Cir.1980)). I find that the discussion of alternatives, combined with the detailed response to comments is sufficient to trigger such judicial deference. Cf. id. at 297 (“We are satisfied ... [with] ... the Secretary’s coverage of conservation ... although the FEIS and NEPP themselves deal with the matter in general terms and do not provide petitioners with detailed responses to their comments.”); City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir.1990) (“We believe ... that the Service’s failure seriously to consider any alternative ... raises serious questions of compliance with applicable law.”) I also note that because the nature of the proposed action does not have a self-limiting range of potential alternatives, it would be an unwarranted burden to hold the agency responsible for analyzing every possible alternative. Cf. Dubois, 102 F.3d at 1289, 46 Fed.Reg. 18026, 18027 (1981). I find the discussion of alternatives sufficient. B. Cumulative Impacts The plaintiff also faults the FEIS for not discussing adequately the cumulative impact of the proposed action. Specifically, the plaintiff contends that “[rjather than analyzing the effects of its operations and the cumulative effects of operations of non-Coast Guard vessels,” the FEIS “evaluated [only] the cumulative impact of the already-selected mitigation program itself.” (Pi’s Memo, at 22) (internal quotations and citations omitted). I find this contention to be without merit. NEPA requires that an EIS contain an analysis of its own environmental consequences “when added to other past, present and reasonably foreseeable future actions.” 40 C.F.R. § 1508.7. I find that the FEIS adequately addresses the cumulative effects of its proposed action and the actions of non-Coast Guard vessels. Indeed, the FEIS compares the cumulative impact of the “No Action Alternative” and the “Preferred Alternative,” when no such comparison is required. In its discussion of the cumulative impact of the “No Action Alternative,” the FEIS gives a fairly detailed account of the number of non-Coast Guard vessels and their effect on the physical, biological and socioeconomic environment along the United States Atlantic Coast. See FEIS at 5-18-5-23. The same detailed analysis is repeated during the discussion of the “Preferred Alternative.” See id. at 5-31-5-33. Additionally, an extremely detailed discussion of the presence and effects of fishing and whale-watch vessels is also included in the FEIS. See id. at 4-81-4-91. I find that these discussions amount to more than “perfunctory references [that] do not constitute analysis useful to a decisionmaker in deciding whether, or how, to alter the program to lessen cumulative environmental impacts.” Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 299 (D.C.Cir.1988). Again under a rule of reason standard, I “conclude that the [F]EIS contains a ‘reasonably thorough discussion’ of these impacts.” Resources Limited, Inc. v. Robertson, 35 F.3d 1300, 1306 (9th Cir.1993). C. Current Data The plaintiff also asserts that the FEIS did not rely on current data. While it is true that an environmental impact statement must be based on current data, see Carmelr-by-the-Sea, 95 F.3d at 900, the plaintiff nowhere points to specific data relied upon in the FEIS that was outdated or inaccurate. Moreover, inasmuch as the FEIS relied on data from the Biological Assessment and the 1995 and 1996 Biological Opinions, I find that the data in those documents is sufficiently current to satisfy NEPA’s requirement that the agency take “a ‘hard look’ at the environmental consequences of its proposed action.” Dubois, 102 F.3d at 1285. I find that the Coast Guard took a hard look at the consequences its activities have on Right whales and that the FEIS was not arbitrary or capricious. Id. at 1289. Accordingly, I grant summary judgment for the defendants on Count IV. V. Miscellaneous A. Non-Enforcement The plaintiff and defendants also move for summary judgment on Counts XXI and XXII which allege that the Commerce Defendants have violated Section 107 of the MMPA, 16 U.S.C. § 1377, and Section 11 of the ESA, 16 U.S.C. § 1540, because they have failed to enforce the relevant provisions of those statutes. I find that this allegation is wholly without merit and I will grant summary judgment for the defendants. Even the plaintiff concedes the general proposition that as to decisions of an agency not to take enforcement steps “the presumption is that judicial review is not available.” Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). Accordingly, plaintiff attempts to obtain judicial review by arguing that the agency has “consciously and expressly adopted a general policy [of nonenforcement] which is in effect an abdication of its statutory duty.” Adams v. Richardson, 480 F.2d 1159, 1162 (D.C.Cir.1973) (en banc). This abdication argument fails. First, despite the plaintiffs anecdotal evidence, I find that the record here does not demonstrate that NMFS has adopted a policy of non-enforcement. To the contrary, the record demonstrates that NMFS does enforce the ESA and the MMPA with some degree of vigor. For example, “[s]ince 1990, NMFS has opened approximately 427 investigations of alleged violations of the ESA and MMPA in the Northeastern United States. Of these 427 investigations, NMFS or NOAA issued 60 Notices of Violations and Assessment (‘NOVAs’), sought approximately 97 property forfeitures, issued about 92 written warnings, and offered approximately 17 summary settlements____ The remaining investigations were either dismissed or are still pending.” Declaration of David A. McKinney ¶ 5 (Dft’s Motion in Support of Summary Judgment, Exh. C.) Such evidence of enforcement precludes any claim of abdication. See e.g., Cutler v. Hayes, 549 F.Supp. 1341, 1347 (D.D.C.1982), aff'd in part, vacated in part, 818 F.2d 879 (D.C.Cir.1987) (affidavit of the acting director of the FDA stating that FDA had taken enforcement actions, listing seventeen examples in ten years demonstrates that “the FDA has