A U.S. District Court in Puerto Rico has determined that
the Endangered Species Act does not require agencies to monitor incidental take
in every location where take occurs. Critically, the court concluded that
it can only interfere with an agency’s interpretation of a statute if that
interpretation is unreasonable.
In Center for
Biological Diversity v. National Marine Fisheries Service (NFMS),
plaintiffs challenged a recent NFMS Biological Opinion concluding that the
incidental take on elkhorn and staghorn coral, resulting from continued fishing
levels for parrotfish and surgeonfish, would not jeopardize their existence or impact
their habitat in the U.S. Caribbean. The coral are a “threatened species” under
the Endangered Species Act (ESA).
The U.S. Fish & Wildlife Service issues incidental
take permits to private, non-federal entities undertaking projects that might
result in the take of an endangered or threatened species. Per the ESA, 'take'
means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct." Application for incidental
take permits is subject to certain requirements, including preparation of a
conservation plan by permit applicants.
In this case, NMFS argued that it could use its
monitoring results in St. Croix as a proxy for its take requirements in Puerto
Rico and St. Thomas/St. John. Plaintiffs argued, on the other hand, that the
Revised Incidental Take Statement omitting monitoring requirements in St.
Thomas/St. Johns and Puerto Rico violated the Endangered Species Act.
The court found that NMFS's use of St. Croix as a proxy
for the Puerto Rico and St. Thomas/St. John areas was reasonable despite
plaintiffs’ contention that their method was not representative of coral
populations elsewhere. The court determined that although NFMS’s decision to
use St. Croix as a proxy was arbitrary, plaintiffs were unable to prove that
St. Croix was an inadequate proxy for the rest of the U.S. Caribbean.
Furthermore, the court found that plaintiffs did not offer legal authority
supporting their theory that the Endangered Species Act requires monitoring
incidental take “in every location where take occurs.”
The court also concluded that given the statutory and
regulatory silence regarding the monitoring required of locations
where incidental take occurs, they must defer to the agency's interpretation
and may only interfere when it is unreasonable. In reaching this conclusion, the
court cited Biodiversity Legal Found.v. Babbitt, 146 F.3d 1249, 1253 (10th Cir. 1998) which stated, “A challenge
to an agency construction of a statutory provision must fail if, in light of
Congress' ambiguity or silence, the agency's action ‘is a reasonable choice.’”
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