American Tunaboat Association v. Ross

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN TUNABOAT
ASSOCIATION,

Plaintiff,
Case No. 1:19-cv-01011 (TNM)
v.

WILBUR ROSS et al.,

Defendants.

MEMORANDUM OPINION

The Endangered Species Act consultation process ensures that federal agencies take no

action that would jeopardize the continued existence of endangered or threatened species or

adversely affect critical habitat. The Act also grants certain rights for “applicants” to participate

in this process. This case is about whether the National Marine Fisheries Service wrongly denied

the American Tunaboat Association applicant status regarding the Service’s ongoing review of

the U.S. purse seine fishery in the Western and Central Pacific Ocean.

The Association sued, claiming the denial was arbitrary and capricious. Both the

Association and the Service have moved for summary judgment. For the following reasons, the

Court finds that the Service’s denial decision was reasonable. So the Association’s motion will

be denied, and the Service’s motion will be granted.

The Endangered Species Act (“the Act”), 16 U.S.C. § 1531 et seq., is “the most

comprehensive legislation for the preservation of endangered species ever enacted by any

nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). The Service lists species that it
determines are at risk of extinction as endangered or threatened. 16 U.S.C. § 1533; 50 C.F.R.

§ 402.01(b). The Act prohibits federal agencies from taking actions that are likely to jeopardize

these listed species or destroy or adversely modify designated critical habitat. 16 U.S.C.

§ 1536(a)(2). So federal agencies must consult with the Service before taking an action that may

adversely affect these species or their critical habitats. Id. 1

If an agency’s action is likely to adversely affect a listed species or critical habitat, the

agency must engage in formal consultation. 50 C.F.R. § 402.14. As part of the formal

consultation process, the Service prepares a biological opinion. See id. §§ 402.12(k)(1),

402.14(a)-(b). A biological opinion includes, among other things, the Service’s opinion “on

whether the action is likely to jeopardize the continued existence of a listed species or result in

the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(h)(3). If the

Service concludes that the action is likely to jeopardize the continued existence of a listed

species, it must offer “reasonable and prudent alternatives” that would not jeopardize the species.

16 U.S.C. § 1536(b)(3)(a); 50 C.F.R. § 402.02.

The Service then prepares an Incidental Take Statement that sets levels for the taking of

the species that will not jeopardize its existence. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).

“Take” means any conduct that could harm, kill, or capture the creature. See 16 U.S.C

§ 1532(19).

1
For terrestrial and freshwater fish species, agencies must consult with the U.S. Fish and
Wildlife Service instead. See 50 C.F.R. § 402.01(b). Because only marine species are at issue
here, this Opinion focuses on the role of the National Marine Fisheries Service.

2
The Act provides certain rights for applicants to participate in the consultation process.

See generally 16 U.S.C. § 1536. The Act does not define “applicant.” 2 But 50 C.F.R. § 402.02

does: “any person . . . who requires formal approval or authorization from a Federal agency as a

prerequisite to conducting the action.” Applicant status conveys certain valuable rights.

Applicants can submit information during the consultation, 50 C.F.R. § 402.14(d); approve

agency-requested extensions of time to complete formal consultation, id. § 402.14(e); participate

in discussions on the Service’s review and findings in a biological opinion, including the

availability of any reasonable and prudent alternatives, id. § 402.14(g)(5); and request a copy of

and submit comments on a draft biological opinion, id.

The U.S. purse seine fishery operating in the Western and Central Pacific Ocean (“the

Fishery”) is a large tuna fishery. A.R. 29. It generally operates in the waters off several Pacific

Island states, the high seas, and the U.S. Exclusive Economic Zone surrounding the U.S. Pacific

Island territories and possessions. See A.R. 26. Several different international treaties and

domestic authorities govern the Fishery. See, e.g., the South Pacific Tuna Act of 1998,

16 U.S.C. § 973; the Western and Central Pacific Fisheries Convention Implementation Act,

16 U.S.C. § 6901 et seq.; the High Seas Fishing Compliance Act of 1955, 16 U.S.C. § 5501 et

seq. The Service issues various permits, licenses, endorsements, and other authorizations to

allow the Association’s members to operate in the Fishery. A.R. 5.

2
The parties agree that the Act’s definition of “permit or license applicant,” 16 U.S.C.
§ 1532(12), does not apply here. See Pl.’s Mot. for Summ. J. (“Pl.’s Br.”) at 6, ECF No. 19-2;
Defs.’ Cross-Mot. for Summ. J. (“Defs.’ Br.”) at 3, ECF No. 20-1.

3
In 2006, the Service completed a consultation for “the continued authorization” of the

Fishery under current and proposed regulations. 3 A.R. 22. The biological opinion included an

Incidental Take Statement that authorized the annual incidental take of about 60 individual

turtles across five different species. A.R. 161. The Service required some “reasonable and

prudent measures,” as implemented by terms and conditions, mainly focused on sea turtle take

mitigation measures. See, e.g., A.R. 162–64. These measures became binding when

incorporated into regulations issued through notice and comment rulemaking. See 50 C.F.R. §

300.223(f); 74 Fed. Reg. 38,544.

Since then, the Service has listed additional species near the Fishery, like the oceanic

whitetip shark and the scalloped hammerhead shark, as threatened or endangered. A.R. 493–94.

Because of these new listings, the Service reinitiated consultation in October 2014. A.R. 205. 4

The subject of the consultation is “the continued operation of [the Fishery], as currently managed

under [the Service’s] regulations implementing the South Pacific Tuna Treaty and decisions of

the Western and Central Pacific Fisheries Commission.” A.R. 495.

South Pacific Tuna Corporation, a member of the Association, first requested applicant

status from the Service so that it could participate in this ongoing consultation. A.R. 15–18. The

Service denied its request for applicant status but offered to work with the Corporation to

develop a framework for its involvement in the consultation. A.R. 8–10. Then, the Association,

which represents all U.S. large purse seine vessels participating in the Fishery, requested

applicant status. A.R. 5. The Service also denied this request but similarly offered to extend

some participation opportunities to the Association without formally designating the Association

3
When engaged in consultation for the Fishery, the Service consults internally. A.R. 205–6.
4
The Service extended the consultation in December 2017, A.R. 433, and again in May 2018,
A.R. 457–58.

4
an applicant. A.R. 1–3. The denial was transmitted in a formal, three-page letter signed by the

Regional Administrator of the Service’s Pacific Islands Region Office. See id.

The Association filed a Complaint and a Motion for Preliminary Injunction. See ECF

Nos. 1, 2. The Court heard oral argument on the motion. Afterwards, the Association withdrew

its Motion for Preliminary Injunction, and the parties agreed to expedited summary judgment

briefing. See Joint Motion, ECF No. 15.

II.

Summary judgment is usually only appropriate if there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro.

56. But when a court is reviewing an administrative agency’s decision, the standard set out in

Federal Civil Procedure Rule 56 does not apply. See Richards v. I.N.S., 554 F.2d 1173, 1177

(D.C. Cir. 1977). Instead, as both parties acknowledge, courts review an agency’s decision

under the deferential standard provided in the Administrative Procedure Act. See Ramaprakash

v. Fed. Aviation Admin., 346 F.3d 1121, 1124 (D.C. Cir. 2003).

A court must set aside agency action that is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” 5 U.S.C. § 706(2). “The arbitrary and capricious

standard is deferential; it requires that agency action simply be reasonable and reasonably

explained.” Comtys. for a Better Env’t v. E.P.A., 748 F.3d 333, 335 (D.C. Cir. 2014) (cleaned

up). An agency action is arbitrary and capricious if an agency fails to “comply with its own

regulations.” Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. E.P.A., 752 F.3d 999, 1009 (D.C.

Cir. 2014) (cleaned up).

5
III.

The first issue here is whether the Association has standing to sue. “Article III of the

Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and ‘Controversies.’” Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (quoting U.S. Const. art. III, § 2). “No principle is

more fundamental to the judiciary’s proper role in our system of government than the

constitutional limitation of federal-court jurisdiction to actual cases or controversies,” and “[t]he

concept of standing is part of this limitation.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,

37 (1976) (cleaned up). To establish Article III standing, the Association “must have (1)

suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547 (2016).

Perhaps naturally, the Association argues that it has associational standing. See generally

Pl.’s Mot. for Summ. J. (“Pl.’s Br.”) at 14–23, ECF No. 19-2. “[A]n association has standing to

bring suit on behalf of its members when: (a) its members would otherwise have standing to sue

in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose;

and (c) neither the claim asserted nor the relief requested requires the participation of individual

members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).

The Service does not contest that the Association meets the latter two elements of

associational standing. See generally Defs.’ Cross-Mot. for Summ. J. (“Defs.’ Br.”), ECF No.

20-1. The Association, an organization dedicated to “a robust, sustainable, fairly managed, and

economically strong Fishery,” Pl.’s Br. at 15, has an “obvious interest in challenging” the

Service’s refusal to allow it or its members to participate as applicants in the consultation

6
process. Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 247

(D.C. Cir. 2013). “[C]onsultation is designed as an integral check on federal agency action . . . .”

Ctr. for Bio. Diversity v. E.P.A., 861 F.3d 174, 182 (D.C. Cir. 2017) (cleaned up). And neither

the claim asserted, nor the relief requested, requires any of the Association’s members to

participate as a named plaintiff in the lawsuit. See id.

The remaining question, then, is whether at least one of Association’s members has

standing to sue. See Am. Trucking Ass’ns, Inc., 724 F.3d at 247. The Association argues that the

South Pacific Tuna Corporation, one of its members, has suffered a procedural injury. Pl.’s Br.

at 17.

Courts relax the redressability and imminence requirements for a plaintiff claiming a

procedural injury, but “the requirement of injury in fact is a hard floor of Article III jurisdiction

that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009).

The Supreme Court “has never freed a plaintiff alleging a procedural violation from showing a

causal connection between the government action that supposedly required the disregarded

procedure and some reasonably increased risk of injury to its particularized interest.” Fla.

Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc).

As to injury, the claim that the Service violated its own regulation by denying the

Association or its member applicant status describes “archetypal procedural injury.” See Ctr. for

Bio. Diversity, 861 F.3d at 182. Procedural injury occurs when an agency fails to follow a

legally required procedure and this failure increases the risk of future harm to some party. See

Spokeo, 136 S. Ct. at 1549–50.

That is what happened here. The Service’s alleged procedural error—its failure to follow

its own regulations as to “applicant”—is a necessary, but not sufficient, requirement for a

7
procedural-rights plaintiff to establish standing. See id. at 664–65. The D.C. Circuit has recently

explained, “[f]or a statutory violation to constitute an injury in fact, then, the statute must protect

the plaintiff’s concrete interest—i.e., afford the putative plaintiff a right to be free of a harm

capable of satisfying Article III.” Jeffries v. Volume Servs. Am., Inc., 928 F.3d 1059 (D.C. Cir.

2019).

Here, the consultation process protects the Corporation’s concrete interests: compliance

costs. See City of Clarksville v. Fed. Energy Reg. Comm’n, 888 F.3d 477, 482 (D.C. Cir. 2018)

(“This imposition of new regulatory obligations, in and of itself, is sufficient to establish

standing.”). Regulated entities have concrete interests in both (1) being able to meet their

regulatory responsibilities; and (2) in avoiding unwarranted regulatory obligations. Cf. Chrysler

Corp. v. Brown, 441 U.S. 281, 316 (1979) (“In enacting the APA, Congress made a judgment

that notions of fairness and informed administrative decisionmaking require that agency

decisions be made only after affording interested persons notice and an opportunity to

comment.”).

Establishing causation in the context of a procedural injury requires a showing of two

causal links: (1) a link connecting the alleged procedural error to some substantive government

decision that may have been wrongly decided; and (2) a link connecting that substantive decision

to the plaintiff’s particularized injury. See Ctr. for Bio. Diversity, 861 F.3d at 184. As to the

second link, the Association does not have to “establish the merits of its case,” i.e., that harm has

in fact resulted from the Service’s procedural failures. See id. Rather, the Association needs

only to show that there is a “substantial probability” that the lack of applicant status will harm its

member. See Am. Petroleum Inst. v. E.P.A., 216 F.3d 50, 63 (D.C. Cir. 2000).

8
First, it was the Service’s allegedly erroneous interpretation of “applicant” that caused the

Service to deny the South Pacific Tuna Corporation’s formal request for “applicant” status. And

the Corporation has already suffered harm because of the Service’s decision. Because of the

Service’s allegedly unlawful decision, the Corporation has lost some opportunity to influence

agency decisionmakers before they commit to a course of action. As other courts have

acknowledged, “[i]t is far easier to influence an initial choice than to change a mind already

made up.” Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989) (Breyer, J.).

Consultations are designed to allow applicants to influence the decision-making process.

The aim is to make agency decisionmakers aware of applicants’ concerns and take them into

account. And over time, it becomes harder to influence these decisionmakers. Cf. Nat’l Res.

Def. Council v. Houston, 146 F.3d 1118, 1129 (9th Cir. 1998) (“The failure to respect the process

mandated by law cannot be corrected with post-hoc assessments of a done deal.”). In short, the

later the access to the agency decisionmakers, the less valuable it is. And the Service has denied

this access since October 2014. A.R. 205. Its accommodation of a quick review at the end of

this process is a meager second best.

Finally, the injury is redressable in this suit. A procedural-rights plaintiff need not show

that “court-ordered compliance with the procedure would alter the final [agency decision].”

Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 5 (D.C. Cir. 2005). Here, if the

Association is correct in its claim, then the Court may order the Service to designate the

Corporation as an applicant. See Fla. Audubon Soc’y, 94 F.3d at 668 (explaining that procedural

violations are often “easily redressable, as a court may order the agency to undertake the

procedure.”). So the Court finds that the Corporation—and thus the Association—have standing

to challenge the Service’s decision.

9
The Service claims that the Association has not shown injury-in-fact because its claims of

economic injury are “purely speculative.” Defs.’ Br. at 18. It argues that the Association “points

to nothing in the biological opinion or Section 7(a)(2)/7(d) memoranda that raises the likelihood

of a jeopardy opinion, or the imposition of costly measures.” Id. Not so.

To be sure, the Association hopes that the Service will not raise compliance costs or

impose burdensome measures on its members. But the Association’s members have already

been injured: they have lost—and continue to lose—time and opportunity to influence agency

decisionmakers before they commit to a course of action, as discussed above.

For that same reason, the Court rejects the Service’s argument that the Association has

alleged a “purely procedural injury.” See Defs.’ Br. at 16–17. The Association is not merely

complaining that the Service did not follow its own regulations. Its members have suffered real

injury because they have been denied access—access that it insists that the Act itself requires—

to agency decisionmakers during this consultation process and to the decisionmaking process

itself.

The Service also contends that any injury that the Association or its members suffer is

“due to its voluntary action of refusing” to engage with the Service. See Defs.’ Br. at 16. It

suggests that the Association “could have avoided its injury simply by accepting [its] offer to

share a copy of the draft BiOp for comment.” Id. at 17.

The Association insists that it should not have to depend on the Service’s “bureaucratic

benevolence—which could disappear with the political winds.” See Pl.’s Reply Br. at 13 n.15,

ECF No. 22. The Court agrees. The Service can revoke its offer to send the Association its draft

biological opinion. It cannot negate the Association’s standing to challenge an allegedly

unlawful agency act by making a one-time, revocable exception for the Association.

10
And applicants have other rights, too. They can submit information during the

consultation, 50 C.F.R. § 402.14(d); approve agency-requested extensions of time to complete

formal consultation, id. § 402.14(e); and participate in discussions on the Service’s review and

findings in a biological opinion, including the availability of any reasonable and prudent

alternatives, id. § 402.14(g)(5). A complimentary ticket to the cheap seats is a paltry consolation

if one had been promised a corporate suite. For all these reasons, the Court holds that the

Association has standing.

The Service next argues that the Association’s claim is not ripe. See Defs.’ Br. at 23–25.

It insists that the Association needs to wait until the Service issues its biological opinion because

only then will the Court know if the opinion imposes any burdens on the Association. Id. at 23.

The Association counters that its claim is ripe because its injuries accrued when the Service

denied the Association and its member applicant status. Pl.’s Reply Br. at 8.

“The ripeness doctrine generally deals with when a federal court can or should decide a

case.” Am. Petroleum Inst. v. E.P.A., 683 F.3d 382, 386 (D.C. Cir. 2012). It has both a

constitutional and prudential component. Id. “Ripeness . . . shares the constitutional

requirement of standing that an injury in fact be certainly impending.” Nat’l Treasury Emps.

Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). So “if a threatened injury is

sufficiently ‘imminent’ to establish standing, the constitutional requirements of the ripeness

doctrine will necessarily be satisfied.” Id.

Here, the alleged injury is not even imminent; it has already occurred. The Service

already denied the Association applicant status, refusing it access to specific information and the

opportunity to exchange information with the Service during the decisionmaking process.

11
As for the prudential component of ripeness, the Court applies a two-part analysis,

considering both “the fitness of the issues for judicial decision” and “the hardship to the parties

of withholding court consideration.” Id. at 1431. No further factual development is necessary

for the Court to review the Association’s claims challenging the Service’s interpretation of the

term “applicant.”

True, it is unclear right now what the biological opinion itself will say. But that is not the

subject of this lawsuit. This lawsuit is about who qualifies as an applicant. And the Service does

not dispute that it made a final agency decision when it denied the Association applicant status.

See generally Defs.’ Br. at 23–25. As for hardship, if the Court does not rule until the Service

issues its biological opinion, the Association would have no chance to receive, submit, and

exchange information with the Service about the biological opinion.

The Service argues that the Association’s claim is not ripe because it has not shown an

injury-in-fact and will not suffer hardship from waiting until the Service issues its biological

opinion. See id. at 23–24. Again, it does not matter what the biological opinion ultimately says:

the Corporation has already suffered an injury because it has been denied a right to participate in

the consultation process. And this injury grows over time since “[i]t is far easier to influence an

initial choice than to change a mind already made up.” Sierra Club, 872 F.2d at 500.

Turning to the merits, the issue is whether the Service’s decision—denying the

Association applicant status—was arbitrary and capricious. Of course, an agency action is

arbitrary and capricious if an agency fails to “comply with its own regulations.” Nat’l Envtl.

Dev. Ass’n’s Clean Air Project, 752 F.3d at 1009. According the Association, the Service has

done exactly that. Pl.’s Br. at 23.

12
The Act itself is silent on the definition of an “applicant” in this context. So the Court

turns to the regulations. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843

(1984). The Service’s consultation regulations define “applicant” as “any person . . . who

requires formal approval or authorization from a Federal agency as a prerequisite for conducting

the action.” 50 C.F.R. § 402.02. “Action” means “all activities or programs of any kind

authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or

upon the high seas.” Id.

When the Service determined that the Association was not an applicant, it explained that

it saw “a distinction between individuals participating as Applicants on specific licenses, permits,

or authorizations, and individuals or fishing organizations participating during the broad

programmatic review of programs that conserve and manage fishery resources.” A.R. 2.

According to the Service, the Association is not an “applicant” under the Act’s definition

because the consulted-upon action is “the continued operation” of the entire Fishery. Defs.’ Br.

at 9. In the Service’s view, “applicant status is limited to persons seeking a specific permit that

is the subject of the consultation, not a consultation on a regulatory or management program.”

Id. at 29.

In response, the Association argues that the Service’s “interpretation of ‘applicant’ is

wholly disconnected from and inconsistent with its regulations.” Pl.’s Br. at 24. It insists that its

members are persons who require “formal approval or authorization”—permits—“from a Federal

agency as a prerequisite for conducting the action”—fishing. Id. (citing 50 C.F.R. 402.02).

To begin, the Court must identify the appropriate standard of review to apply to the

Service’s interpretation of a regulation that it has authored. Courts generally defer to agencies’

13
reasonable readings of genuinely ambiguous regulations. See Auer v. Robbins, 519 U.S. 452

(1997).

The Supreme Court recently clarified the application of Auer deference. See Kisor v.

Wilkie, 139 S. Ct. 2400 (2019). First, Auer deference applies only if a regulation is genuinely

ambiguous. Id. at 2415. To determine whether a regulation is genuinely ambiguous, courts must

exhaust all the “traditional tools” of construction. Id. If genuine ambiguity persists, courts will

defer to an agency’s reading only if it is reasonable. Id. at 2415–16. But courts will not defer to

every reasonable agency reading of a genuinely ambiguous regulation. Id. at 2416. The

interpretation must be the agency’s “authoritative” or “official position,” not an ad hoc

statement. Id. And the interpretation should implicate the agency’s substantive expertise. Id. at

2417. Last, an agency’s reading must reflect its “fair and considered judgment.” Id.

Applying this framework, the Court first concludes that the regulation’s definition of

“applicant” is genuinely ambiguous. Section 402.02 defines “applicant” as “any person, as

defined by section 3(13) of the Act, who requires formal approval or authorization from a

Federal agency as a prerequisite to conducting the action.”

But what is “the action?” Is it the action that the person needs a permit to do or is it the

action that the agency is consulting on? In other words, is it fishing or the continued operation of

the Fishery? The regulation’s own definition of “action” does not dispel the confusion. It

defines “action” broadly as “all activities or programs of any kind authorized, funded, or carried

out, in whole or in part, by Federal agencies in the United States or upon the high seas.” 50

C.F.R. § 402.02. Clearly, fishing is an action that is authorized by federal agencies. But is it the

action? In short, the regulation’s definition of applicant is ambiguous in this circumstance.

14
Second, the Service’s interpretation is reasonable. Under its view, an applicant is a

person seeking, or who has sought, a permit from an agency, and that agency’s approval of that

permit is the subject of the consultation. See A.R. 2. Applicant status, thus, is unavailable for

programmatic consultations because those consultations relate to broad programs rather than

specific permits. See id.

The Service’s Handbook defines “programmatic consultation” as a consultation

“addressing an agency’s multiple actions on a program, regional or other basis.” U.S. Fish and

Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered Species Consultation Handbook:

Procedures for Conducting Consultation and Conference Activities Under Section 7 of the

Endangered Species Act (“the Handbook”) (1998), at xvii. True, the Act itself does not

distinguish between programmatic and individual consultations, but the Service’s dichotomy

here is rationale.

Consider the alternative. The Association suggests that an applicant in this context is a

person who needs a permit to fish. But everyone, the Court presumes, needs a permit to fish

lawfully. The Association’s proposed interpretation of “applicant” has no clear limiting

principle. It is certainly reasonable for the Service to require a link between a person’s required

authorization and the subject of the specific consultation.

The roles and responsibilities of an applicant, as outlined in both the Act and the

regulation, confirm the limited scope of “applicant.” For instance, the regulations require the

Service to use the applicant in identifying reasonable and prudent alternatives that both the

agency and the applicant can take to avoid jeopardizing species. 50 C.F.R. § 402.14(g)(5). In the

context of a permit application for a specific project, the importance of the applicant’s expertise

is obvious given the applicant’s knowledge of its own project. But for a programmatic

15
consultation, a lone permitee likely would not have expertise for identifying reasonable and

prudent alternatives applicable for an entire regulatory scheme or program.

True, the Association represents all large U.S. flag purse seine vessels in the Fishery, and

so it can plausibly claim relevant knowledge in this programmatic review. But the regulations

and the Handbook govern all consultations, including programmatic reviews where there is no

comparable association and thousands of potential applicants. See, e.g., 82 Fed. Reg. 18,706

(explaining that there are 1,335 limited access permits under the Northeast Multispecies

Fisheries Management Plan). Reasonable interpretations of regulations must account for the

varied areas in which they apply.

More, both the statute and the regulations require that applicants consent to extensions of

the consultation deadline longer than 60 days. See 16 U.S.C. § 1536(b)(1)(B); 50 C.F.R.

§ 402.14(e). This power to consent (or not) to extensions makes sense when there is an

individual applicant whose proposed project cannot begin until completion of consultation. But

for programmatic consultations with dozens or even thousands of applicants, it is hard to imagine

how the Service would manage all the competing interests.

Still more, the preamble to the final rule for the Section 7 regulations (“the Preamble”)

accords with the Service’s position. There, the Service specifically declines to amend the

definition of “applicant” to allow participation in consultations about the promulgation of

regulations governing permit issuance because an applicant “is involved in the consultation

process as a result of a specific permit or license application.” 51 Fed. Reg. at 19,930. A permit

applicant instead “may provide input regarding its concerns in the Federal agency’s rulemaking

process through the Administrative Procedure Act, 5 U.S.C. 551 et seq.” Id. The Preamble thus

underscores that “applicant” status is limited to consultations on specific permit or license

16
applications and unavailable when the agency is consulting on broader regulatory programs, such

as the promulgation of regulations about permit issuance. 5

Both the Association and the Service insist that the Service’s Handbook supports their

positions. The Handbook explains that the action agency, here the Service, determines applicant

status and coordinates with the applicant during the consultation process. Handbook at 2-12, 2-

13. It then says:

Users of public resources (e.g. timber companies harvesting on National Forests)
are not parties to programmatic section 7 consultations dealing with an agency’s
overall management operations, including land management planning and other
program level consultations. However, users who are party to a discrete action
(i.e., where they are already the successful bidder on a timber sale that becomes
the subject of later consultation or reinitiation when a new species is listed or new
critical habitat is designated) may participate as applicants in the section 7
process.

Handbook 2-12. The Association argues that the Handbook treats companies with logging

authorizations as applicants for later consultations implicating those authorizations. Pl.’s Br. at

39–40. On the other hand, the Service emphasizes that the Handbook explains that these

companies are not parties to programmatic consultations dealing with “overall management

operations.” Defs.’ Br. at 28.

While the Handbook is no model of clarity, the Service’s gloss is certainly reasonable.

The Handbook says that timber companies cannot participate in a programmatic consultation on

forestry management, but they may participate on a “discrete action.” For instance, they have

5
The Preamble also provides that “[t]he definition in the proposed rule broadly defines
‘applicant’ as ‘any person who requires formal approval or authorization from a Federal agency
as a prerequisite to conduct the action.’” 51 Fed. Reg. at 19,930. The Association emphasizes
the Preamble’s use of the word “broadly,” insisting that the Service intended “applicant” to be
read broadly. See Pl.’s Br. at 24. But the Preamble goes on to explain that by “broadly” it means
that “applicant” includes “those seeking permits, licenses, leases, letters of authorization, and any
other form of authorization or approval.” 51 Fed. Reg. at 19,930.

17
applicant status when they are already successful bidders on a timber sale that becomes the

subject of a later consultation. Putting aside the text’s confusing parentheticals, the Handbook is

drawing a distinction between overall management reviews in the first sentence, in which

applicants cannot participate, and reviews of discrete actions in the second sentence, in which

they may. Here, the subject of the consultation is not a discrete act: it is the general operations of

the Fishery. While the Handbook may be susceptible to other readings, the Service’s

interpretation is reasonable.

Courts should not reward agencies for drafting deliberately opaque regulations that they

can clarify to their advantage in subsequent litigation, but nor should courts demand crystal

clarity from bureaucrats who did not anticipate the implications of unintended regulatory

nuances. The Service’s reading of the Handbook is plausible on its face and consistent with the

American Tunaboat Association v. Ross

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