                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA



THE HUMANE SOCIETY OF THE UNITED
STATES, ET AL.,

        Plaintiffs
                                                              Civil Action No. 11-01414 (BJR)
                  v.
                                                              MEMORANDUM OPINION
PENNY PRITZKER, in her official capacity as
Secretary of Commerce, ET AL.,

         Defendants.


                                                  I. INTRODUCTION

         Before the Court are motions for summary judgment by the parties: Plaintiff Humane

Society of the United States’ (“HSUS”), Plaintiff WildEarth Guardians’ (“WildEarth”) and

Defendants Penny Pritzker, National Marine Fisheries Service (“NMFS”), and Eric C. Schwaab 1.

Upon consideration of the parties’ arguments, the relevant case law, and the entire record, the

Court grants Plaintiffs’ Motions for Summary Judgment and denies Defendants’ Motion for

Summary Judgment.

                                  II. PROCEDURAL BACKGROUND

         The instant case was filed on August 4, 2011, by Plaintiff HSUS. On September 29,

2012, this case was consolidated with two other related cases, WildEarth Guardians v. Blank,

Civil Action No. 11-1417, and Humane Society of the United States v. Blank, Civil Action No.

11-1407. On June 14, 2013, this case was transferred from the Honorable Richard W. Roberts to

the undersigned.

1
 Defendant NMFS is the agency responsible for reviewing the petitions at issue in this case. Defendant Pritzker is a
party to this action in her official capacity as Secretary of Commerce. Defendant Schwaab is a party to this action in
his official capacity as Assistant Administration for the National Marine Fisheries Service.

                                                          1
         This case concerns three rulemaking petitions filed by the plaintiffs. Two petitions, filed

separately by HSUS and WildEarth, requested that NMFS list the porbeagle shark as endangered

or threatened pursuant to the terms of the Endangered Species Act, 16 U.S.C. §§ 1531, et seq.

HSUS’ petition sought listing of the Northwest Atlantic population of porbeagles, while

WildEarth’s petition sought listing of the porbeagle shark without limitation to a specific

geographic population.          NMFS denied the petitions at the initial 90-day stage of review,

discussed in more detail below. Plaintiffs brought suit in this Court to challenge the denial of

their petitions. Presently before the Court are the parties’ cross-motions for summary judgment. 2

                                III. LISTING PETITION PROCEDURE

         The ESA permits any person to submit a petition to list, delist, or reclassify a species as

threatened or endangered. 3 The determination regarding a listing petition follows a three-stage

process.     First, upon receiving a petition, the Secretary shall, “[t]o the maximum extent

practicable, within 90 days . . . make a finding as to whether the petition presents substantial

scientific or commercial information indicating that the petitioned action may be warranted.” 16

U.S.C. § 1533(b)(3)(A). 4          NMFS’s regulation implementing the ESA defines “substantial

information” as “that amount of information that would lead a reasonable person to believe that



2
  The Court has already ruled on HSUS’s petition to list the porbeagle shark as a “Prohibited Shark Species”
pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801, et seq.
On January 31, 2014, the Court granted Defendants’ summary judgment as to these claims.
3
  The Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531, et seq., requires that the Secretary of Commerce3 (“the
Secretary”) determine whether any species is “threatened” or “endangered.” 16 U.S.C. § 1533(a)(1). The Secretary
of Commerce is responsible for administering the ESA with regard to most marine species, while the Secretary of
the Interior is responsible for administering the ESA as it pertains to terrestrial and freshwater species. See 16
U.S.C. § 1532(15); 50 C.F.R. WW 17.11, 402.01(b); Lujan v. Defenders of Wildlife, 504 U.S. 555, 587 n.3 (1992).
The Secretary has delegated this authority to NMFS, although the Secretary is ultimately responsible for listing
decisions. See C & W Fish Co., Inc. v. Fox, 931 F.2d 1556, 1558 (D.C. Cir. 1991). A species is “endangered” if it
is “in danger of extinction throughout all or [a] significant portion of its range.” 16 U.S.C. § 1532(6). A species is
“threatened” if it is “likely to become an endangered species in the foreseeable future.” 16 U.S.C. § 1532(20).



                                                          2
the measure proposed in the petition may be warranted.” 40 C.F.R. § 424.14(b)(1). The

Secretary’s finding at this initial stage is known as a “90-day finding.”

       In making a 90-day finding, the Secretary must consider whether the petition:

       (i) Clearly indicates the administrative measure recommended and gives the
       scientific and any common name of the species involved;
       (ii) Contains detailed narrative justification for the recommended measure,
       describing, based on available information, past and present numbers and
       distribution of the species involved and any threats faced by the species;
       (iii) Provides information regarding the status of the species over all or a
       significant portion of its range; and
       (iv) Is accompanied by appropriate supporting documentation in the form of
       bibliographic references, reprints of pertinent publications, copies of reports or
       letters from authorities, and maps.
50 C.F.R. § 424.14(b)(2).

       In the instant case, NMFS made a negative 90-day finding with regard to the petitions

presented by HSUS and WildEarth. When a negative 90-day finding is made, no further action

is taken by the Secretary and the negative finding is considered a final agency action.

       If the Secretary makes a positive finding that the petition “presents substantial scientific

or commercial information indicating that the petitioned action may be warranted” at the 90-day

stage, the Secretary moves to the second step of the listing process, the “12-month decision,”

wherein the Secretary “shall commence a review of the status of the species concerned and shall

make, within 12 months of receipt of such petition” a determination of the appropriate action to

be taken and publish notice in the Federal Register regarding said action. 50 C.F.R. §

424.14(b)(3).

        In making a listing determination (at the 12-month decision stage), the ESA states that:

       [t]he Secretary shall . . . determine whether any species is an endangered species
       or a threatened species because of any of the following factors:
       (A) the present or threatened destruction, modification, or curtailment of its
       habitat or range;
       (B) overutilization for commercial, recreational, scientific, or educational
       purposes;

                                                 3
         (C) disease or predation;
         (D) the inadequacy of existing regulatory mechanisms; or
         (E) other natural or manmade factors affecting its continued existence.


16 U.S.C. § 1533(a)(1). In evaluating a petition, the Secretary is to make a determination in

accordance with the above factors “solely on the basis of the best scientific and commercial data

available to him . . . .” 16 U.S.C. § 1533(b)(1)(A). The Secretary must list a species if any one

of the criteria is met. Sw. Center for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir.

2000).     If the Secretary determines that the petitioned action is warranted due to one of the

criteria being met, the Secretary must publish a proposed regulation in the Federal Register to

implement the action. 50 C.F.R. § 424.14(b)(3).

         Finally, at the third stage in the listing process, the Secretary promulgates the final listing

determination. 16 U.S.C. § 1533(b)(5).

                                   IV. STANDARD OF REVIEW

         This Court reviews NMFS’s final actions under the “arbitrary and capricious” standard of

review. Under this standard, as set out by the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 500, et seq., a court shall “hold unlawful and set aside agency action, findings, and

conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law . . . .” 5 U.S.C. § 706(2). To meet the requirements of the APA, an agency

must “examine the relevant data and articulate a satisfactory explanation for its action.” FCC v.

Fox Television Stations, Inc., 129 S. Ct. 1800, 1810 (2009) (quoting Motor Vehicle Mfrs. Ass’n

of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An agency acts

arbitrarily and capriciously where “the agency has relied on factors which Congress has not

intended it to consider, entirely failed to consider an important aspect of the problem, offered an

explanation for its decision that runs counter to the evidence before the agency, or is so

                                                   4
implausible that it could not be ascribed to a difference in view or the product of agency

expertise.” Arent v. Shalala, 70 F.3d 610, 616 (D.C. Cir. 1995) (quoting Motor Vehicles Mfrs.

Ass’n, 463 U.S. at 43). This Court’s review of the action “must be searching and careful, but the

ultimate review is a narrow one.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378

(1989) (internal quotations and citation omitted).

       The parties have filed cross-motions for summary judgment. “Summary judgment is the

appropriate mechanism for deciding, as a matter of law, whether an agency action is supported

by the administrative record and consistent with the APA standard of review.” Blue Ocean Inst.

v. Gutierrez, 585 F. Supp. 2d 36, 41 (D.D.C. 2008) (citing Stuttering Found. of Am. v. Springer,

498 F. Supp. 2d 203, 207 (D.D.C. 2007)). The court’s inquiry “is confined to reviewing the

administrative record.” Blue Ocean, 585 F. Supp. 2d at 41 (citing North Carolina Fisheries

Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 79 (D.D.C. 2007)).

                                V. FACTUAL BACKGROUND

       The porbeagle shark (“porbeagle”) (Lamna nasus) is a shark in the family Lamnidae,

known as mackerel sharks. AR 000010. Porbeagles inhabit the North and South Atlantic Ocean,

the southern Indian Ocean, the Southern Pacific Ocean, and the Antarctic Ocean. AR 000011.

Porbeagles are long-lived sharks, having a lifespan of twenty-five to forty-six years. Females

reach sexual maturity at thirteen years and give birth to two to six offspring after a gestation of

between eight and nine months. AR 000012. The parties agree that porbeagles are considered to

have a low rate of reproduction because of the late onset of sexual maturity. AR 000012,

AR000033. Porbeagles have been heavily fished and used for human consumption in North

America and the Mediterranean. AR 003338. Since 1961, the Northwest Atlantic population of




                                                 5
porbeagles has drastically declined by 90%, to approximately 11,000 to 14,000 individuals. AR

003337, 003839.

       According to Plaintiff HSUS and to assessments conducted by the International Council

for the Exploration of the Seas (ICES) and the International Commission for the Conservation of

Atlantic Tunas (ICCAT), porbeagles in the Northeast and Northwest Atlantic Ocean constitute

distinct populations with very limited transatlantic migration. AR 000011, 000695. Plaintiff

HSUS also presented evidence that there is no evidence of genetic exchange between the North

Atlantic and southern hemisphere populations. AR 000011. In its negative finding regarding

Plaintiffs’ petition, Defendant NMFS stated that there was “conflicting scientific evidence

regarding whether DPSs [Distinct Population Segments] of porbeagle sharks exist . . . [g]iven the

conflicting evidence from the tagging and genetic data, without a more thorough analysis it is

unclear as to whether porbeagle shark DPSs exist.” AR 000695. However, in its negative

finding NMFS did consider whether there was substantial evidence supporting the listing of

porbeagles as a whole or as a DPS. Id.

       Defendant NMFS determined that the best source of data concerning the present status of

the porbeagle shark was the aforementioned ICES/ICCAT joint stock assessment, conducted in

2009. AR 003830-3886; AR 000695. At an internal NMFS meeting to discuss the petitions,

NMFS summarized the assessment and, in NMFS’ words, found “that the stock assessment

indicated that the stocks are stable or increasing and that overfishing is not occurring.” AR

000082. NMFS used similar language in denying the petition, stating that “stocks are depleted . .

. [but] stocks are stable or increasing in size (ICES/ICCAT, 2009).” AR 000697.

       The ICES/ICCAT assessment grouped the porbeagle population into four population

groups: Northeast Atlantic, Northwest Atlantic, Southwest Atlantic, and Southeast Atlantic.



                                               6
With respect to the Northwest Atlantic, the assessment concluded that, in 2009, the porbeagle

population was from 95-103% of its population in 2001, with the population of mature female

porbeagles anywhere from 83-103% of their 2001 level 5. AR 003839. In other words, the

population in general might have declined marginally, remained stable, or grown marginally,

while the population of mature females might have declined by 17% or increased by 3%. The

assessment discussed Canadian reports indicating that “biomass is depleted to well below BMSY 6,

although recent fishing mortality is also below FMSY 7 . . . [d]espite this, stock rebuilding is

projected to take decades due to the low productivity of the species.”                       AR 003842.        The

assessment concluded that “[t]he Commission should adopt management measures that support

the recovery objectives of the Canadian Management Plan. High-seas fisheries should not target

porbeagle . . . [a]reas known to have high abundance of important life history stages . . . should

be subject to fishing restrictions.” AR 003843. In its denial of Plaintiffs’ petitions NMFS found

that the data indicated that “biomass is currently increasing, and overfishing is no longer

occurring.” AR 000697.

        With respect to the Northeast Atlantic, the assessment concluded that “current biomass is

below BMSY and that recent fishing mortality is near or possibly above FMSY.” AR 003842.

Further, ICES “consider the stock to be depleted . . . .” Id. The assessment recommended that

“[s]ustained reductions in fishing mortality would be required if there is to be any stock

recovery” and that therefore “the Commission should consider adopting TACs which provide a

high probability of allowing stock rebuilding. Additionally, the Commission should consider

5
  This population level corresponded to approximately 12% to 16% of the 1961 population level, or 11,000 to
14,000 individuals. AR 003839.
6
  Biomass Maximum Sustainable Yield, that is, the biomass (total body-weight) of fish population that will permit
the fishing maximum sustainable yield (catch or FMSY) to be taken indefinitely. AR 003837.
7
  Fishing Maximum Sustainable Yield, that is, the maximum amount of fishing mortality that will permit a
population to reach BMSY. When fishing mortality is above FMSY, then more than a sustainable portion of the stock is
being remove per year and the population is moving away from a sustainable biomass (BMSY). This is also referred
to as “overfishing.” Defs.’ Mot. at 5.

                                                         7
restricting fishing activities in areas known to have a high abundance of important life-history

stages . . . [n]ations . . . . should consider adopting further management measures to reduce

fishing mortality.”    Id.   NMFS stated in its denial of Plaintiffs’ petitions that “current

management efforts are likely to result in the stock remaining fairly stable.” AR 000696.

         With respect to the Southwest Atlantic, the assessment noted that data was limited, but

that the available data suggested “a potential decline in porbeagle abundance in the SW Atlantic

to levels below [maximum sustainable yield].” AR 003841. The assessment further noted that

“depletion levels [are] below [maximum sustainable yield] and fishing mortality rates above

those producing [maximum sustainable yield]. But catch and other data are generally too limited

to allow definition of sustainable harvest levels. Catch reconstruction indicates that reported

landings grossly under-estimate actual landings.” Id. The assessment recommended that the

Commission “consider adopting precautionary measures, including restricting fisheries affecting

the stock(s) . . . .” In its denial of Plaintiffs’ petitions NMGS acknowledged that the stock was

depleted and fishing mortality rates were above MSY, but emphasized that “data are generally

too limited to allow definition of sustainable harvest levels.” AR 000696.

         With respect to the Southeast Atlantic, the assessment noted that data was too limited and

that while “catch rate patterns suggest stability since the early 1990s” this trend could not be

viewed in context due to lack of data and was “not informative on current levels relative to

BMSY.”   AR 003841. In its denial NMFS repeated that data was too limited, but emphasized that

“available catch rate patterns suggest that this stock has stabilized . . . .” AR 000696.

         With respect to the porbeagle population in general, NMFS concluded that “available

information indicates that porbeagle shark population trends are stable or increasing globally,

and that protections for the species are increasing in these areas as well; therefore, the petitions



                                                  8
do not present substantial information indicating that the petition actions . . . may be warranted at

this time.” AR 000698. Based on its conclusion, NMFS denied Plaintiffs’ petitions at the 90-

day stage. 8

                                                VI. ANALYSIS

         Plaintiffs’ main argument concerns the lower burden of proof required by the Secretary to

make a positive 90-day finding versus the level of evidence required to make a listing

determination at the 12-month stage. Plaintiffs argue that NMFS improperly applied the 12-

month determination standard to their petitions at the 90-day finding stage.                    Plaintiffs point to

the language of 16 U.S.C. § 1533(b)(3)(A) and available case law in arguing that “[t]he only

question before [NMFS] when it conducts a 90-day review is whether the petitioned action may

be warranted, not whether it is warranted.” Ctr. for Biological Diversity v. Kempthorne, 2008

WL 659822, at *9 (D. Ariz. Mar. 6, 2008) (citing 16 U.S.C. § 1533(b)(3)(A). The court in

Kempthorne determined that the application of the 12-month determination’s evidentiary

standard at the 90-day review stage was arbitrary and capricious.                         Id (holding that “the

application of an evidentiary standard requiring conclusive evidence in the context of a 90-day

review is arbitrary and capricious.”). Plaintiffs also argue that NMFS itself has acknowledged

the lower evidentiary requirement for a 90-day finding, as NMFS has described the level of

evidence required to “lead a reasonable person to believe that the measure proposed in the

8
  Plaintiff HSUS also presented evidence in its petition that the habitat of the porbeagle (particularly the Northwest
Atlantic DPS) is under threat from coastal pollution, including mercury runoff, warming ocean waters due to climate
change, and ocean acidification. AR 000018-000020. Plaintiffs also presented evidence that current international
fishing levels may exceed maximum sustainable yield. AR 000023-000026. Plaintiff WildEarth also pointed to
evidence from a 2004 study of the Committee on the Status of Endangered Wildlife in Canada (COSEWIC)
stressing the low yearly reproductive rate of the porbeagle, approximately 0.05%. AR 003071. In its denial of the
petitions NMFS responded by again emphasizing its position that “stocks were generally stable or increasing in
biomass.” AR 000698. NMFS reasoned that because stocks were stable or increasing, the negative effects from
habitat degradation and fishing were not significant. Id. Because the Court’s determination in this case is based
upon the standard of review applied by Defendant NMFS at the 90-day stage, the Court does not delve further into
these evidentiary issues.


                                                          9
petition may be warranted.” For instance, NMFS has stated that in evaluating petitions at the 90-

day stage, it does not “subject the petition to critical review.” 71 Fed. Reg. 66,298 (Nov. 14,

2006). NMFS has also acknowledged that past judicial decision have established that “a petition

need not establish a ‘strong likelihood’ or a ‘high probability’ that a species is either threatened

or endangered to support a positive 90-day finding.” 79 Fed. Reg. 4,877 (Jan. 30., 2014).

       Plaintiffs cite a number of cases in support of their position. See Moden v. FWS, 281 F.

Supp. 2d 1193, 1204 (D. Or. 2003) (“the standard for evaluating whether substantial information

has been presented by an ‘interested person’ is not overly-burdensome, does not require

conclusive information, and uses the ‘reasonable person’ to determine whether . . . action may be

warranted.”); CBD v. Kempthorne, 2007 WL 163244, at *4-*7 (N.D. Cal. 2007) (finding that the

“may be warranted standard . . . seems to require that in case of such contradictory evidence, the

Service must defer to information that supports [the] petition’s position . . . the Service should

make the [90-day] finding and then proceed to the more-searching next step in the ESA process.”

(internal quotations omitted); W. Watersheds Project v. Norton, 2007 WL 2827375, at *5

(reversing denial of petition and finding that “[w]hat is required at this stage . . . is a review of

the Petition for determination of whether it presents substantial information indicating to a

reasonable person that the petitioned action may be warranted . . . [t]his standard . . . does not

require conclusive evidence.”) (internal citations omitted); CBD v. Morgenweck, 351 F. Supp. 2d

1137, 1140 (D. Colo. 2004) (setting aside negative 90-day finding where agency improperly

required a high level of evidence to warrant further consideration); Colorado River Cutthroat

Trout v. Kempthorne, 448 F. Supp. 2d 170, 176 (D.D.C. 2006) (Friedman, J.) (holding that the

90-day finding step is intended to be a “less searching review”). Based on this case law and the




                                                 10
evidence presented in their petitions, Plaintiffs argue that NMFS acted arbitrarily and

capriciously in returning a negative 90-day finding.

                                   A. Distinct Population Segments

       First, Plaintiffs’ argue that NMFS erred in requiring conclusive evidence regarding the

existence of “Distinct Population Segments” (“DPS”) of porbeagle sharks.            In particular,

Plaintiffs point to NMFS’s statement that “conflicting scientific evidence regarding whether

DPSs [Distinct Population Segments] of porbeagle sharks exist . . . [g]iven the conflicting

evidence from the tagging and genetic data, without a more thorough analysis it is unclear as to

whether porbeagle shark DPSs exist.” AR 000695. Plaintiffs argue that NMFS wrongfully

concluded that there was no “substantial information” regarding the existence of a Northwest

Atlantic DPS, and that NMFS required a higher degree of evidence than “that amount of

information that would lead a reasonable person to believe that the measure proposed in the

petition may be warranted.” 40 C.F.R. § 424.14(b)(1). The Court agrees. NMFS acknowledges

in its denial of Plaintiffs petition that there is “conflicting scientific evidence” regarding the

existence of porbeagle DPSs, and suggested the need for a “more thorough analysis.” NMFS’s

own conclusion regarding the need for more thorough analysis suggests that a reasonable person

might conclude that “a review of the status of the species concerned” was warranted. As such,

NMFS acted arbitrarily and capriciously in applying an inappropriately-stringent evidentiary

requirement at the 90-day stage. 50 C.F.R. § 424.14(b)(3).

       The parties spend a significant portion of their briefs arguing whether NMFS’

determination regarding the existence of porbeagle DPSs was correct. While NMFS’ erred in

applying an inappropriate evidentiary standard to the DPS determination, NMFS did, in fact,

consider in its denial of the petitions whether there was substantial evidence supporting the



                                                11
listing of porbeagles as a whole or as a DPS, stating that “in order to be thorough . . . we

considered whether the petitioners presented substantial evidence indicating that the petitioned

action for the full species or for the DPS as proposed . . . may be warranted.” AR 000695.

Accordingly, while NMFS erred in its conclusion that, at the 90-day finding stage, “conflicting

evidence” permitted it to determine that Plaintiffs had failed to prevent “substantial evidence”

regarding the existence of porbeagle DPSs, NMFS acted properly when it went on to evaluate

Plaintiffs’ petitions with regard to both the whole population of porbeagles or as to the DPSs

proposed by Plaintiffs.

                     B. ICES/ICCAT Assessment Supports Plaintiffs’ Petitions

       The parties differ sharply in their interpretation of the data provided by the 2009

ICES/ICCAT joint stock assessment, which NMFS identified as the best source of data

concerning the porbeagle.     AR 000695.       Plaintiffs argue that their petitions contained

“substantial evidence” drawn from the ICES/ICCAT assessment to indicate that listing might be

warranted, thus requiring that NMFS make a positive 90-day finding. Instead, Plaintiffs argue,

NMFS improperly applied a higher evidentiary standard at the 90-day stage, discounting the

evidence relied on by Plaintiffs while cherry-picking the 2009 assessment to provide a more-

optimistic view of the evidence than was warranted.

       In assessing the Northwest Atlantic porbeagle population, the ICES/ICCAT report

concluded that, in 2009, the porbeagle population was between 95 percent and 101 percent of its

population in 2001. AR 00015. The assessment concluded that the population of mature female

porbeagles, which Plaintiffs contend best reflects the effective population size, was between 83

and 103 percent of 2001 values, and that recovery of the stock could take “decades.” AR

000015, 003590, 003842.      (FAO guidance for evaluating aquatic species for listing under



                                              12
CITES). The assessment also stated that “[r]ecent biomass appears to be increasing.” AR

003842. NMFS, in denying the petitions, interpreted this data as establishing that “stocks are

depleted . . . [but] stocks are stable or increasing in size (ICES/ICCAT, 2009).” AR 000697.

However, Plaintiff WildEarth correctly points out that under both these measurements “the

potential of a decrease is greater” than the potential for growth. Pl. WildEarth’s Mot. at 25. In

other words, the already-low population of porbeagles in 2001 may have declined marginally,

remained stable, or grown marginally, while the population of mature females may have declined

by up to seventeen percent, or grown by three percent. Accordingly, the likelihood of decline in

the porbeagle population in the Northwest Atlantic was higher than the likelihood of growth or

stability. Supporting this view of the data is ICES/ICCAT’s recommendation of the adoption of

management measures to support recovery of the porbeagle population, including fishing

restrictions in certain areas. AR 003843.

       NMFS did not acknowledge the possibility that the porbeagle population has declined

and appears to have considered only the most optimistic view of the assessment (i.e., that

population was on the rise), stating that “stocks are depleted . . . [but] stocks are stable or

increasing in size (ICES/ICCAT, 2009).” AR 000697. NMFS focused on, and repeated, the

statement in the assessment that “[r]ecent biomass appears to be increasing.” While such a

conclusion certainly reflects a permissible view of the evidence were Plaintiffs required to

establish conclusive evidence of porbeagle decline, Plaintiffs need only establish “that amount of

information that would lead a reasonable person to believe that the measure proposed in the

petition may be warranted.” Data in the ICES/ICCAT assessment indicates that it is more likely

than not that the already-low population of porbeagles, particularly mature females, has declined.

NMFS failed to articulate why this evidence was insufficient to trigger a positive 90-day finding



                                               13
requiring further study. While the Court is required to defer to the agency’s technical expertise

in areas of scientific specialization, the Court is not required to ignore simple probability. See

Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (en banc). NMFS acted arbitrarily and

capriciously in applying the wrong evidentiary standard at the 90-day stage and ignoring

evidence that the porbeagle population in the Northwest Atlantic faces a strong likelihood of

decline.

       Similarly, with respect to the Northeast Atlantic population of porbeagles, ICES/ICCAT

concluded that “current biomass is below [maximum sustainable yield] and that recent fishing

mortality is near or possibly above [maximum fishing mortality].” AR 003842. The assessment

recommended that “[s]ustained reductions in fishing mortality would be required if there is to be

any stock recovery” and that therefore “the Commission should consider adopting TACs which

provide a high probability of allowing stock rebuilding . . . [and] should consider restricting

fishing activities . . [n]ations . . . . should consider adopting further management measures to

reduce fishing mortality.” Id. Plaintiff WildEarth argues that this evidence is sufficient at the

90-day stage to indicate that the Northeast Atlantic stock of porbeagles is threatened. NMFS

appears to have ignored this evidence in making its 90-day finding, stating that “current

management efforts are likely to result in the stock remaining fairly stable.” AR 000696. This

conclusion was arbitrary and capricious given the lower standard of evidence required at the 90-

day finding stage.

       With respect to the Southwest Atlantic population of porbeagles, the assessment noted

that data was limited, but that available data was available “suggesting a potential decline in

porbeagle abundance in the SW Atlantic to levels below MSY.” AR 003841. Models available

to ICES/ICCAT indicated “depletion levels below MSY and fishing mortality rates above those



                                               14
producing MSY. But catch and other data are generally too limited to allow definition of

sustainable harvest levels. Catch reconstruction indicates that reported landings grossly under-

estimate actual landings.” Id. The assessment recommended that the Commission “consider

adopting precautionary measures, including restricting fisheries affecting the stock(s) . . . .” In

its denial of Plaintiffs’ petitions NMFS acknowledged that the stock was depleted and fishing

mortality rates were above MSY, but emphasized that “data are generally too limited to allow

definition of sustainable harvest levels.” AR 000696. However, the Court notes that, to the

extent the assessment discussed the uncertainty of defining sustainable harvest levels, it did so

because of the under-estimation of the actual number of landings of porbeagles; this suggests that

the population is indeed threatened. The Court agrees with Plaintiff WildEarth that, at the 90-

day stage, some level of uncertainty should not negate the general finding of the assessment that

the Southwest Atlantic population of porbeagles was in decline. 9

                                        C. Defendants’ Counterarguments

         Defendants’ arguments in response do not counter Plaintiffs’ basic premise that the

evidentiary requirement for a positive 90-day finding is relatively low; indeed, Defendants

acknowledge that the “‘substantial information’ standard is not onerous.” Defs.’ Mot. at 17.

Rather, Defendants argue that there “was no uncertainty associated with NMFS’s consideration

of whether the species is at risk of extinction . . . the most recent stock assessment . . . indicates

increases in biomass in some stocks and stability in others.” Id. Defendants suggest that the




         9
          With respect to the Southeast Atlantic population of porbeagles, the assessment noted that data was too
limited and that while “catch rate patterns suggest stability since the early 1990s” this trend could not be viewed in
context due to lack of data and was “not informative on current levels relative to BMSY.” AR 003841. Given the
suggestion of stability and lack of context for the data NMFS acted appropriately in finding that Plaintiff WildEarth
had not provided “substantial evidence” that the Southeast Atlantic population of porbeagles is threatened.


                                                         15
substantial information standard “cannot be construed to require NMFS to defer to . . . outdated

references and ignore available information . . . .” Id.

       Defendants are correct in noting that this Court must follow the deferential APA

standard, in which the agency must merely “examine the relevant data and articulate a

satisfactory explanation for its action.” FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800,

1810 (2009) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)). However, in the instant case, the Court finds that NMFS failed to apply

the correct evidentiary standard required by its own regulations at the 90-day finding stage. In

considering Plaintiffs’ petitions NMFS appears to have required “conclusive evidence” regarding

threats to the porbeagle population. In their petitions Plaintiffs relied on a number of sources of

data, including the ICES/ICCAT assessment which Defendants identified as “the best source of

data about the current status of porbeagle sharks . . . .” Defs.’ Mot. at 4. AR 000035, 000038.

NMFS itself relied on the ICES/ICCAT assessment as the best available source of data regarding

the status of the porbeagle.      The ICES/ICCAT assessment presents substantial scientific

information indicating that the petitioned action, that is, the listing of the porbeagle shark as

endangered or threatened, may be warranted.           As previously discussed by the Court, the

assessment provides evidence that the porbeagle population (or distinct population segments

thereof) may be declining from an already-critically low baseline. The assessment also indicates

that additional measures are necessary to rebuild the porbeagle population. This evidence is a far

cry from the “statements in petitions that constitute unscientific data or conclusions, information

[the agency] knows to be obsolete, or unsupported conclusions of petitioners” that have been

rejected by other courts as meeting the 90-day finding standard. Ctr. for Biological Diversity v.

Morgenwreck, 351 F. Supp. 2d 1137, 1140-42 (D. Colo. 2004). The Court finds that the



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evidence provided by Plaintiffs more than meets “that amount of information that would lead a

reasonable person to believe that the measure proposed in the petition may be warranted.” 40

C.F.R. § 424.14(b)(1). Defendants’ conclusion otherwise was the result of the application of an

inappropriately high standard of evidence and was, therefore, arbitrary and capricious

       Defendants seek to rely on the Court’s previous grant of summary judgment dismissing

Plaintiff HSUS’s Magnuson-Stevens Act (“MSA”) claims. In that order the Court found that

NMFS’ denial of Plaintiffs’ petitions to list the porbealge as a prohibited species pursuant to the

MSA was supported by substantial evidence and was not, therefore, arbitrary and capricious.

See Order [46] at 14-15. In making their MSA determination, Defendant NMFS relied on the

same ICES/ICCAT assessment at issue in the instant motions. Defendants thus argue that the

Court should once again grant summary judgment in deference to NMFS’ determination.

       The Court reaches a different outcome in the instant motions because of the differing

statutes and implementing regulations at issue. The Magnuson-Stevens Act, concerned with

fishery management and conservation, sets a higher evidentiary bar for Plaintiffs to meet than the

Endangered Species Act. 50 C.F.R. § 635.34(c), which implements the MSA, states that NMFS

“may” list a species if Plaintiffs provide evidence meeting various factors. Given the expansive

language of the regulation and the high evidentiary bar that it sets, the Court found that NMFS’

refusal to list the porbeagle as a prohibited species was not arbitrary and capricious. In the

instant analysis, however, Plaintiffs must meet a far lower standard of evidence at the ESA’s 90-

day finding stage. A 90-day determination under the Endangered Species Act constitutes a

“threshold determination,” Cutthroat Trout, 448 F. Supp. 2d at 176, and Plaintiffs need only

provide “that amount of information that would lead a reasonable person to believe that the

measure proposed in the petition may be warranted.” 40 C.F.R. § 424.14(b)(1). While the Court



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must give APA deference to NMFS’s determination regarding whether Plaintiffs have met this

low evidentiary bar, the Court nevertheless has found that Defendants acted arbitrarily and

capriciously in applying an incorrectly stringent evidentiary standard at the 90-day finding stage.

Accordingly, the Court’s previous ruling does not support NMFS’s negative 90-day finding. 10

                                               D. Appropriate Remedy

     Plaintiffs request that the Court vacate NMFS’s 90-day finding and order NMFS to complete

a status review and 12-month decision as to the listing of the porbeagle shark. In the alternative,

Plaintiffs’ request that the Court vacate the 90-day finding and remand to the agency for a

determination correctly applying the standards set out in the ESA and NMFS’s regulations.

Defendants contend that this Court should limit its holding to setting aside the 90-day finding. 5

U.S.C. § 706. The remedy suggested by Defendants is the correct one. Generally, “when a court

reviewing agency action determines that an agency made an error of law, the court’s inquiry is at

an end: the case must be remanded to the agency for further action consistent with the corrected

legal standards.” North Carolina Fisheries Ass’n, Inc. v. Gutierrez, 550 F.3d 16, 20 (D.C. Cir.

2008) (quoting PPG Indus. v. United States, 52 F.3d 363, 365 (D.C. Cir. 1995)).

     Because the Court has found that Defendant NMFS acted in an arbitrary and capricious

manner in applying an incorrect evidentiary standard at the 90-day finding stage, the Court



10
   Defendants also contest WildEarth’s standing to petition for the protection of porbeagle sharks outside of the
Northwest Atlantic population. While Defendants concluded that no porbeagle shark DPSs exist, they argue that
WildEarth has standing to petition only with respect to that DPS of porbeagles its members have encountered, i.e.,
the Northwest Atlantic population. Defendants seem to not recognize the inconsistency in their positions. Because
Defendants determined at the 90-day stage that there was insufficient evidence to conclude that DPSs of porbeagles
existed, Plaintiff WildEarth, who undoubtedly has standing as to porbeagles in the Northwest Atlantic, has standing
to porbeagles in general. Were Defendants to determine that there were indeed separate DPSs, Defendants argument
might well be correct. However, the Court need not address this theoretical question. “Although standing is usually
a threshold inquiry, both the Supreme Court and this Circuit have long recognized the propriety of avoiding difficult,
constitutionally-based justiciability issues when a case is more simply resolved on another basis.” Railway Labor
Executives’ Ass’n v. United States, 987 F.2d 806, 811 (D.C. Cir. 1993). Because Defendants’ standing argument is
foreclosed by their own evidentiary determination, the Court declines to wade deeper into the standing issue at this
time.

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vacates NMFS’s decision and remands to the agency to reconsider Plaintiffs’ petitions in light of

the Court’s ruling.

                                       VII. CONCLUSION

       The Court GRANTS IN PART Plaintiffs’ Motions for Summary Judgment and DENIES

Defendants’ Motion for Summary Judgment. An order consistent with this opinion will issue

separately.




                                                    BARBARA J. ROTHSTEIN
                                                    UNITED STATES DISTRICT JUDGE




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