Posted February 16, 2016

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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