United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2007 Decided June 1, 2007

No. 05-5448

OCEANA, INC.,

APPELLANT

v.

CARLOS GUTIERREZ, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE U.S. DEPARTMENT OF COMMERCE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 04cv01155)

Eric A. Bilsky argued the cause and filed the briefs for

appellant. James F. Simon entered an appearance.

Andrew Mergen, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief was John

E. Arbab, Attorney.

Before: GINSBURG, Chief Judge, and RANDOLPH and

KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.
2

RANDOLPH, Circuit Judge: Leatherback sea turtles are so

named because of their unusual, rubber-like shell. They are

found throughout the oceans of the world, in the Atlantic,

Pacific, and Indian oceans, the Caribbean Sea, and the Gulf of

Mexico. Leatherbacks are the largest living sea turtles; their

front flippers can span nearly 9 feet, and they range in weight

from 450 to 1,500 pounds. Since 1970, the Leatherback has

been listed as an endangered species pursuant to the Endangered

Species Act.

Pelagic – that is, open ocean – longline fishing poses a

threat to leatherback turtles. This type of fishing in the Atlantic

Ocean and the Gulf of Mexico, and specifically the adequacy of

federal measures to reduce the threat to leatherbacks, is the

focus of this appeal. Longline fishermen concentrate on

swordfish and tuna. They determine where to fish by locating

temperature fronts between cooler and warmer water masses.

Fishing vessels deploy a monofilament line five to forty miles

long across these fronts. The mainline is rigged with hooks

baited with squid or mackerel and float configurations

depending on the targeted species. If the intended catch is

swordfish, the line is put out at dusk and retrieved at dawn; if the

target is tuna, the line is put out at dawn and picked up at dusk.

Leatherback turtles typically feed on jellyfish and are not

attracted to the bait on the longlines. But they are prone to

getting entangled in the lines or becoming foul hooked. 

Entangled or hooked turtles can drown if they cannot surface to

breathe. Turtles that disentangle themselves may retain gear

such as hooks or line on their flippers or shoulders. This can

cause them to die either from trauma or by impairing their

swimming and foraging abilities. Between 1992 and 1999,

United States longline fishermen in the Atlantic Ocean – who

account for only five to eight percent of the hooks fished
3

1

 The Service’s regulations are not binding on international

vessels operating on the high seas and therefore do not apply to the

vast majority of pelagic longline fishing in the Atlantic Ocean. See

Ocean Conservancy v. Gutierrez, 394 F. Supp. 2d 147, 154 n.11

(D.D.C. 2005).

2

 The action agency is the Highly Migratory Species

Management Division of the National Marine Fisheries Service’s

Office of Sustainable Fishery. The Service’s Southeast Regional

Office is the expert, or consulting, agency. See Ocean

Conservancy, 394 F. Supp. 2d at 154 n.12.

there1 – caught an estimated 6,363 leatherbacks. By one

estimate there are only 27,600 nesting female leatherbacks in the

Atlantic basin.

The Endangered Species Act directs the Secretary of

Commerce and the Secretary of the Interior to determine

whether a species is endangered or threatened. 16 U.S.C.

§ 1533(a)(1). Once a species is so designated, each federal

agency must ensure that “any action authorized, funded, or

carried out” by the agency is not “likely to jeopardize the

continued existence” of the species. Id. § 1536(a)(2). The

federal agency first determines whether any action “may affect

listed species,” 50 C.F.R. § 402.14(a), and, if it may, the agency

initiates a formal consultation with either the Fish and Wildlife

Service or the National Marine Fisheries Service, depending on

the species.

During formal consultation, the Service – here the National

Marine Fisheries Service2

 – produces a “biological opinion”

describing how the proposed action will affect the species, 16

U.S.C. § 1536(b)(3)(A), and a statement concerning incidental
4

3

 “The term ‘take’ means to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or to attempt to engage

in any such conduct.” 16 U.S.C. § 1532(19). The “take” therefore

includes not only the turtles that are killed, but also those that are

hooked or entangled and then let go.

“take” of the species, 50 C.F.R. § 402.14(g)(7).3 The biological

opinion contains a determination regarding whether the

proposed action is likely to jeopardize the continued existence

of an endangered or threatened species, id. § 402.14(g)(4), and,

if the Service finds a likelihood of jeopardy to the species,

“reasonable and prudent alternatives” for the agency to

implement in order to avoid the likelihood of jeopardy. 16

U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). A

“reasonable and prudent alternative” – an RPA – is something

“that can be implemented in a manner consistent with the

intended purpose of the action, that can be implemented

consistent with the scope of the Federal agency’s legal authority

and jurisdiction, that is economically and technologically

feasible, and that the Director believes would avoid the

likelihood of jeopardizing the continued existence of listed

species.” 50 C.F.R. § 402.02.

In its June 2001 biological opinion, the Fisheries Service

determined that pelagic longline fishing in the Atlantic fishery

was likely to jeopardize the continued existence of leatherback

sea turtles. It therefore included an RPA to avoid jeopardy to

leatherbacks while allowing longline fishermen to continue their

operations. The RPA required the closure of the entire

Northeast Distant section of the pelagic longline fishery, an area

approximately due east of New Jersey. Longline vessels fishing

in the remaining open areas were also required to carry dipnets

and line-cutters to minimize entanglement and post-release

mortality of sea turtle bycatch.
5

4

 See Ocean Conservancy, 394 F. Supp. 2d at 153 n.8.

The 2001 biological opinion also stated that the Fisheries

Service would conduct a cooperative research program to

develop, modify, and test gear technologies and fishing

strategies to “(1) reduce the likelihood of interactions between

fishing gear and sea turtles and (2) dramatically reduce

immediate and delayed mortality rates of turtles captured in the

fisheries.” The research lasted for three seasons, and took place

aboard commercial longline vessels working in the Northeast

Distant under a scientific research permit. The studies evaluated

the effectiveness of various fishing gear and techniques in

reducing both the sea turtle bycatch and the mortality rate of sea

turtles captured in the fishery and released alive.

The Northeast Distant experiment led the Fisheries Service

to draw several conclusions. The Service found that vessels

could significantly reduce loggerhead and leatherback bycatch

by replacing the industry-wide standard J-hook with circle

hooks.4

 Circle hooks reduce turtle bycatch by a range of fifty to

ninety percent, depending on the type of hook, bait, and turtle

involved. The gear removal procedures the experiment tested

were also successful. The post-release mortality rate of

leatherbacks was 13.1 percent, down from the 32.8 percent

estimated for leatherbacks outside the experiment.

Upon completion of the experiment, the Fisheries Service

planned to issue new regulations requiring gear modifications

and to reopen longline fishing in the Northeast Distant. The

proposed rule prohibited vessels from using J-hooks. The rule

also included new requirements for gear removal and handling

to reduce post-release mortality. The rule required that vessels

carry line cutters and dipnets, that vessel operators have

additional handling and release equipment, and that operators

comply with additional guidelines regarding removal of gear.
6

The regulations and reopening of the Northeast Distant

would constitute “agency action,” and the Endangered Species

Act therefore again required consultation between different

offices within the Fisheries Service. In early 2004, the Service

began assembling a new biological opinion to assess the effects

of reopening the Northeast Distant subject to the proposed

regulations. The Service completed the opinion in June 2004

and, having concluded the action threatened the leatherback,

produced a new RPA. The 2004 RPA consists of four elements:

(1) a reduction in the post-release mortality rate of leatherbacks;

(2) improvement of the monitoring of the effects of the fishery;

(3) confirmation of the effectiveness of the hook and bait

combinations; and (4) management action to avoid long-term

elevations in leatherback takes or mortality.

The 2004 RPA is detailed and specific. The 2004 biological

opinion first establishes a maximum incidental take level. Given

this projected number of takes, the RPA then targets a level of

post-release mortality that would result in a sufficiently low

number of sea turtle deaths. The total number of turtles captured

multiplied by the post-release mortality rate results in the “total

estimated mortality,” which is the estimated total number of

turtles killed by the vessels under the regulatory authority of the

Fisheries Service. The anticipated take for the 2004-2006 period

was 1,981, or 805 leatherbacks in 2004 and 588 thereafter. That

was an increase from the goal in the 2001 biological opinion of

438 per year, but a substantial decrease from the actual takes in

2001 (1,208) and 2002 (962). The anticipated three-year take

starting in 2007 was 1,764, or 588 per year. The Service

expected the post-release mortality rates to decline each year as

fishing crews become better trained in gear removal. The

biological opinion predicted mortality rates of 32.8 percent in

2004, 26.2 percent in 2005, and 19.6 percent in 2006.

Beginning in 2007, the Service expects the post-release

mortality rate to be 13.1 percent – the rate achieved in the
7

Northeast Distant experiment. Thus, the Service expects the

2004 RPA to bring down total estimated mortality of sea turtles

from about 264 per year in 2004 to about 77 per year starting in

2007 and continuing indefinitely.

The 2004 RPA details how to implement the other elements

as well. It requires the Fisheries Service to establish a

comprehensive outreach program to ensure fishermen are

“aware of the safe handling and gear removal requirements of

the proposed action, understand how to use the required gear,

and understand the importance of maximizing gear removal to

maximizing post-release survival of sea turtles.” The Service

must develop and distribute training materials, hold training

workshops, and establish a point of contact for the fishery.

Training and certification is mandatory for vessel captains.

The Fisheries Service must increase observer coverage to at

least eight percent. The 2004 RPA imposes deadlines on the

submission of quarterly reports, and requires the Service to

compile data throughout the year as vessels submit their

logbooks. The RPA also requires the Service to review each

annual and quarterly report as soon as it becomes available and

reevaluate whether the fishery is likely to stay within the

authorized take levels. If the reports indicate that this is

unlikely, the Service “must take protective/corrective action to

avoid long-term elevations in sea turtle takes and ensure that

take levels . . . are not exceeded.” This ongoing monitoring also

applies to the post-release mortality rate: “If fleet-wide gear

removal rates are not sufficient to meet the performance targets

in [the RPA], [the Fisheries Service] must take immediate action

to offset the increased mortality rates and bring overall

anticipated mortality back down to the level specified in the first

element of the RPA.” This may involve closing large areas of

the fishery.
8

Oceana repeats a claim the district judge, Leon, J., rejected

in his thorough opinion. See Ocean Conservancy v. Gutierrez,

394 F. Supp. 2d 147, 164 (D.D.C. 2005). The claim is that the

Fisheries Service acted arbitrarily when it predicted that the

measures it was putting in place would result in a 13.1 percent

mortality rate by 2007 for leatherbacks caught in longlines. The

Northeast Distant experiment achieved this rate with welltrained crews. The RPA requires training to be available for all

longline crews, but crew members are not required to enroll.

Oceana sees other defects in the 2004 RPA: it lacks an

enforcement mechanism and contains no positive incentives for

compliance. The 2000 RPA had requirements similar to those

in the 2004 RPA, but very few vessels complied because the

requirements were never enforced. Oceana also argues the

Service did not adequately account for “observer effect.” The

2004 RPA requires only eight percent observer coverage, while

in the experiment there were observers on every longline vessel.

As evidence of the Fisheries Service’s unreasonable

expectations, Oceana points to the Service’s observation of

vessels outside the Northeast Distant experiment that were

unable to reach the 13.1 percent mortality rate. During the

2002-2003 fishing season, the Service observed twelve such

vessels, ten of which had participated in the experiment. The

resulting overall post-release mortality rate of leatherbacks was

31.9 percent – significantly higher than the 13.1 percent the

Service expects vessels to attain beginning this year. Yet

according to Oceana, the measures the Service is relying on to

get to the 13.1 percent rate were “substantially present” during

observation period. 

The Fisheries Service disagrees with this evaluation. The

twelve vessels observed during the 2002-2003, the Service

notes, “were not subject to any of the requirements imposed on

the experimental [Northeast Distant] vessels and included in the
9

2004 RPA.” The vessels “were not required to remove gear to

meet any specific mortality limits” because they were operating

under the 2001 biological opinion, which “contained no express

limits on mortality levels.” The 2004 RPA also imposed, for the

first time, the threat of large-scale fishery closure. The Fisheries

Service thinks these aspects of the RPA are sufficient to

replicate the 13.1 percent mortality rate it attained in the

experiment.

The Service also disputes Oceana’s assertion that there will

be a wide disparity in performance between the eight percent of

vessels the Service observes and the ninety-two percent it does

not. As government counsel explained at oral argument, the

Service’s regulations require all vessels to keep logbooks that

record every interaction with sea turtles. Cf. 50 C.F.R.

§ 648.7(b)(1)(I). Vessel captains give their logbooks to the

Service, which compiles and analyzes the data. Having an

observer on board helps ensure that a vessel will not falsify

reports regarding interactions with sea turtles. But it does not

follow that the lack of an observer will result in false reports. It

is unlawful for any person to “[f]ail to comply in an accurate and

timely fashion with the log report, reporting, record retention,

inspection, and other requirements of [50 C.F.R.] § 648.7, or

submit or maintain false information in records and reports

required to be kept or filed under § 648.7.” 50 C.F.R.

§ 648.14(a)(4). Captains and crewmembers can be fined up to

$100,000 for each violation, see 16 U.S.C. § 1858(a), and may

be criminally prosecuted, see id. § 1857(1)(A), (I); 18 U.S.C.

§ 1001; accord United States v. Tomeny, 144 F.3d 749, 756

(11th Cir. 1998). In light of these considerations, the Service

believes it was justified in concluding that vessels would reach

the 13.1 percent rate as planned in the RPA schedule.

Like the district court, we cannot find the Service’s

judgment is arbitrary or capricious. See 5 U.S.C. § 706(2)(A).
10

Oceana’s objection is directed not at the RPA’s goal of reducing

the post-release mortality to 13.1 percent, but at the Service’s

determination that the goal could be achieved. That

determination is a prediction resting on the agency’s evaluation

of past performance and its expert judgment about how the

measures it implemented will operate in the future. Agencies,

like legislators, make predictive judgments like this all the time.

Sometimes the predictions are realized; sometimes they are not

and adjustments must be made. So long as the agency’s

judgment is within the bounds of reason courts will uphold it, as

the Supreme Court and this court have done in many analogous

cases. See, e.g., FCC v. WNCN Listeners Guild, 450 U.S. 582,

594 (1981); Time Warner Entm’t Co. v. FCC, 240 F.3d 1126,

1133 (D.C. Cir. 2001); In re Core Commc’ns, Inc., 455 F.3d

267, 282 (D.C. Cir. 2006); Village of Bensenville v. FAA, 457

F.3d 52, 72 (D.C. Cir. 2006).

Oceana’s reference to the twelve vessels the Fisheries

Service observed outside the Northeast Distant experiment is

effectively a claim that far from uncertainty over whether the

2004 RPA will reach its goal, there is concrete evidence that it

will not. But this does not fully take into account the measures

the Service expects will affect the vessels’ practices. The

Service believes the incentives and obligations in the RPA will

change the behavior of the fishing crews. While it its true that

the Service cannot guarantee this will occur, it is also true that

Oceana cannot know that the RPA will fail. 

In the event the Fisheries Service is wrong about the

expected level of compliance, the RPA contains a backstop to

ensure that its take and mortality levels of leatherbacks are not

exceeded. The RPA requires ongoing monitoring, and

adjustment in the event that anticipated take and mortality levels

are not met. Section 8.1.4.2 of the RPA mandates that “[i]f

fleet-wide gear removal rates are not sufficient to meet the
11

performance targets in [the RPA], [the Service] must take

immediate action to offset the increased mortality rates and

bring overall anticipated mortality back down to the level

specified in the first element of the RPA.” And since the RPA

already includes hook and gear removal requirements, “the only

remaining way to achieve further reductions in leatherback

mortality in the pelagic longline fishery would be through

closures that reduce fishing effort in areas of high leatherback

bycatch.”

For these reasons the judgment of the district court is

affirmed. 

So ordered.