United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-5295 September Term, 2023

 FILED ON: June 21, 2024

CENTER FOR BIOLOGICAL DIVERSITY, ET AL.,

APPELLANTS

v.

NATIONAL MARINE FISHERIES SERVICE AND GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS 

SECRETARY OF COMMERCE,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-00930)

Before: HENDERSON, WALKER and PAN, Circuit Judges

J U D G M E N T

We heard this appeal on the record from the United States District Court for the District of 

Columbia and the parties’ briefs and arguments. We fully considered the issues and determined 

that a published opinion is unnecessary. See D.C. CIR. R. 36(d).

For the reasons set forth below, we AFFIRM the district court’s grant of summary judgment. 

* * *

In 2019, the National Marine Fisheries Service issued a new rule to protect sea turtles. Three 

environmental groups challenged it. Contrary to their arguments related to the Administrative

Procedure Act, the rule was reasonably explained and was a logical outgrowth of the proposal that 

preceded it. In addition, their argument related to the National Environmental Policy Act fails. 

We therefore affirm the district court’s decision to grant summary judgment to the Fisheries 

Service.

I. Background

The Endangered Species Act protects “endangered” and “threatened” species. See 16 U.S.C. 

§ 1531(b). One way the Act protects covered species is by making it unlawful to “take” those 
2

species. Id. § 1538(a)(1)(B). So, as a general matter, no one can “harass, harm, pursue, hunt, 

shoot, wound, kill, trap, capture, or collect” a protected animal, or “attempt to engage in any such 

conduct.” Id. § 1532(19). 

Federal agencies may “promulgate such regulations as may be appropriate” to protect against 

the unlawful taking of a protected animal. Id. § 1540(f); see also 50 C.F.R. § 222.101(a).1 For 

protected marine animals like the sea turtles at issue in this case, a relevant agency is the National 

Marine Fisheries Service. Its regulations clarify that “otherwise prohibited” takings are 

permissible if they are “incidental to . . . an otherwise lawful activity.” 16 U.S.C.

§ 1539(a)(1)(B). 

One such lawful activity is commercial fishing, including shrimping. See 50 C.F.R. 

§ 223.206(d) (allowing the “incidental” taking of protected sea turtles “during fishing” so long as 

the fishers are in compliance with certain regulations). Incidental takings occur when shrimpers 

cast trawl nets into the sea and accidentally ensnare sea turtles. If the sea turtles cannot escape, 

they drown. But trawl nets can be fitted with a “turtle excluder device,” which “is a grid . . . that 

mechanically separates sea turtles . . . from the net through an escape opening.” JA 311.

The Fisheries Service regulations have never required every shrimper to use a turtle exclusion 

device. Before 2019, deep-water shrimpers using “otter trawls” were required to install turtle 

excluder devices, but shallower-water shrimpers using “skimmer trawls,” “pusher-head trawls,” 

and “butterfly trawls” were not.2 Center for Biological Diversity v. National Marine Fisheries 

1 The decision to put animals on the endangered-species list is different than the decision to promulgate 

appropriate regulations after an animal is on the list. The government does not consider economic impacts 

when it lists an animal as endangered. See 16 U.S.C. § 1533(b)(1)(A). But the government does consider 

economic impacts when it decides on “appropriate” regulations to guard against incidental takings of a 

listed species. Id. § 1540(f). By limiting the government to “appropriate” regulations, the statute allows 

and arguably requires consideration of those costs. Id.; cf. Michigan v. EPA, 576 U.S. 743, 752 (2015) 

(“No regulation is ‘appropriate’ if it does significantly more harm than good.”). The government’s 

longstanding practice has been to consider costs when regulating incidental takings. See, e.g., Taking of 

Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction 

Plan Regulations, 62 Fed. Reg. 39157, 39159 (July 22, 1997) (The Fisheries Service “has identified two 

approaches for reducing the risk of serious injury or mortality to right whales . . . . One approach . . . would 

guarantee reduction of entanglements causing serious injury and mortalities but only at a high cost to many 

fishermen. The second approach . . . does not carry the guarantee of the first approach but it is calculated 

to have a reasonable chance for success . . . while minimizing costs to the fishery.” The Fisheries Service 

“adopts the second approach.”). In this case, the environmental groups concede that such a practice is 

appropriate. See Oral Arg. Tr. 5 (Appellants: “we don’t disagree that economic impacts are relevant”). 

2 Deep-water shrimpers “operate[ ] out of large, commercial vessels in deeper waters offshore; these

vessels predominantly fish using nets called otter trawls,” which use boards to hold the net open as it is 

pulled through the water. Center for Biological Diversity v. National Marine Fisheries Service, 628 

F.Supp.3d 189, 196 (D.D.C. 2022). Other shrimpers sail closer to shore, and many of them use skimmer 

trawls, pusher-head trawls, or butterfly trawls. Of these three, skimmer trawls are the most common. 

Unlike otter trawls, skimmer trawls are “elevated out of the water while being towed, to prevent shrimp 

from jumping over the top of the net and escaping.” Id. 
3

Service, 628 F.Supp.3d 189, 196 (D.D.C. 2022). 

The Fisheries Service proposed a new rule about turtle excluder devices in 2016. The 

proposal considered seven regulatory options. The options ranged from preserving the status quo; 

to requiring additional shrimpers to use turtle excluder devices based on vessel length, type of 

trawl used, and fishing location; to requiring all shrimpers to use turtle excluder devices. Among 

those options, the Fisheries Service preferred one of the most expensive, which required all 

shrimpers using skimmer trawls, pusher-head trawls, or butterfly trawls to use turtle excluder 

devices. 

After commenters expressed concern about the economic impact of the proposed rule, the 

Fisheries Service promulgated a more modest final rule in 2019. That final rule required only 

shrimpers using skimmer trawls on vessels at least 40 feet in length to use turtle excluder devices. 

In the view of three environmental organizations, the 2019 final rule should have covered at 

least as many shrimpers as the 2016 proposed rule. They sued the Fisheries Service, arguing that 

(1) the rule was arbitrary and capricious because it was inadequately explained; (2) it was not a 

logical outgrowth of the proposed rule that preceded it; and (3) the Fisheries Service was required 

by the National Environmental Protection Act to conduct a species-by-species analysis of the 

protected turtle populations, rather than an analysis of the aggregate population of protected turtles. 

Id. at 208-09. 

The district court awarded summary judgment to the Fisheries Service. Id. at 219. 

The environmental organizations appealed. 

II. The Final Rule Is Not Arbitrary and Capricious

Courts shall 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)(A). The Administrative Procedure 

Act’s “arbitrary-and-capricious standard requires that agency action be reasonable and reasonably 

explained.” FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021). We do not set aside 

agency action when the agency has adequately “explained its logic and the policies underlying its 

choices.” North America’s Building Trades Unions v. OSHA, 878 F.3d 271, 303 (D.C. Cir. 2017)

(cleaned up). Nor do we penalize an agency simply because it first proposed a broad rule and 

then later adopted a narrower rule. See Northeast Maryland Waste Disposal Authority v. EPA, 

358 F.3d 936, 950-51 (D.C. Cir. 2004). 

The 2019 final rule was not arbitrary and capricious. Although it did not cover as many 

shrimpers as the 2016 proposed rule that preceded it, that 2016 proposal was “preliminary.” And 

it was followed by comments urging the Fisheries Service to impose a smaller economic burden 

on the fishing industry. Agencies “are free — indeed, they are encouraged — to modify proposed 

rules as a result of the comments they receive.” Id. at 951.
4

The Fisheries Service’s final rule reflects a policy choice, which was adequately explained by 

its consideration of the rule’s costs and benefits. See North America’s Building Trades Unions, 

878 F.3d at 302-03. Under the final rule, up to 1,158 sea turtles will be saved each year, at an 

annual cost of $3.7 million. While the proposed rule was projected to save more than twice as 

many sea turtles, it would have imposed nearly four times the cost on the shrimping industry. 

When balancing those projected costs and benefits, the final rule explains that the covered 

vessels are “expected to encounter sea turtles on the fishing grounds more frequently than smaller, 

part-time vessels.” JA 323. The rule also explains that the shrimpers on those full-time, larger 

vessels can better absorb compliance costs. And it explains that a rule reaching only certain 

vessels “can be implemented in far less time than the proposed rule, allowing for more focused 

and expedient sea turtle conservation.” JA 427. Considered together, those explanations were 

reasonable.3

To be sure, the environmental groups believe more sea turtles should be protected even at the 

expense of shrimpers. But the environmental groups concede that the Fisheries Service was 

allowed to consider the industry’s compliance costs. Oral Arg. Tr. 5 (“we don’t disagree that 

economic impacts are relevant”). And our role is not to decide who has the better policy 

argument. The Fisheries Service’s reasonable explanation of its reasonable decision leaves this 

court with “no basis for second-guessing” the final rule. North America’s Building Trades 

Unions, 878 F.3d at 303.4

III. The Final Rule Is A Logical Outgrowth of the Proposed Rule

We next address whether the 2019 final rule was a logical outgrowth of the 2016 proposed 

rule. See 5 U.S.C. § 553(b)(3). Under the logical-outgrowth rule, “the final rule the agency 

adopts must be a logical outgrowth of the rule proposed.” Long Island Care at Home, Ltd. v. 

Coke, 551 U.S. 158, 174 (2007) (cleaned up). But agencies are not required “to select a final rule 

from among the precise proposals under consideration during the comment period.” Sierra Club 

v. Costle, 657 F.2d 298, 352 (D.C. Cir. 1981). Rather, it “is entirely proper and often necessary 

for the agency to continue its deliberations and internal decisionmaking process after the close of 

public comment in order to assimilate those comments and arrive at a policy choice.” Id. at 352-

53. 

The 2019 final rule was a logical outgrowth of the 2016 proposed rule. The Fisheries 

3 The environmental groups also argue that the Fisheries Service used a 2018 report about sea turtles in a way that 

was arbitrary and capricious. We disagree. The study increased previous estimates about the percentage of sea 

turtle deaths attributable to shrimpers using skimmer trawls, while also concluding that the total number of sea turtle 

deaths attributable to shrimpers is smaller than previously believed. Because the 2019 rule increases the number of 

shrimpers required to use turtle excluder devices, we find no fault with the agency citing that report to support its 

rule — even if the rule does not cover as many shrimpers as the environmental groups would prefer.

4

In addition to citing cost concerns, the Fisheries Service also cited safety concerns when explaining why the rule 

would not cover smaller boats. But even without that consideration, the rule was reasonable and reasonably 

explained. 
5

Service’s proposal made clear that it intended to account for both sea turtle conservation and the 

economic impact of its proposed regulations, and it sought comments. By listing alternative 

regulations based on vessel length or type of trawl used, the 2016 proposed rule put interested 

parties on notice that the Fisheries Service was considering those two factors as relevant. And 

the final rule fell squarely within the range of options in the proposed rule, which contemplated 

anything from maintaining the status quo to requiring all shrimpers to use turtle excluder devices. 

That is all the Fisheries Service needs to show. It requires “no great leap of logic or 

imagination to contemplate that the ultimate outcome of [a] rulemaking might be no rule, or only 

partial adoption of the proposed comprehensive rule.” Association of American Railroads v.

DOT, 38 F.3d 582, 589 (D.C. Cir. 1994). Because the final rule was a “partial adoption of the 

proposed comprehensive rule” within the scope of the alternatives set forth by the proposed rule, 

it is a logical outgrowth of the proposed rule. Id.; see also Arizona Publishing Service Co. v. EPA, 

211 F.3d 1280, 1299-300 (D.C. Cir. 2000).

IV. The Environmental Organizations’ Claim Regarding the National Environmental 

Policy Act Fails

Finally, the environmental organizations argue that 2019 final rule violated the National 

Environmental Policy Act by not listing the benefits to each protected species of sea turtles.5 See 

42 U.S.C. § 4321 et seq.; see also Sierra Club v. FERC, 38 F.4th 220, 226 (D.C. Cir. 2022) (citing 

40 C.F.R. §§ 1502.14, 1502.16, 1501.3(a)(3)). Instead, the final rule listed the benefits to 

protected sea turtles as a whole. But regardless of whether that objection has merit, the 

environmental groups forfeited it because they failed to raise it during the administrative process. 

See Sierra Club v. FERC, 827 F.3d 36, 50-51 (D.C. Cir. 2016) (quoting DOT v. Public Citizen, 

541 U.S. 752, 764-65 (2004) (cleaned up)) (if a party fails to challenge the “agency’s compliance 

with NEPA” by alerting “the agency to the parties’ position and contentions” at the outset, the 

party also “forfeit[s] any objection to the” environmental analysis on that ground). 

The environmental organizations note that the Fisheries Service failed to argue forfeiture 

before the district court, thereby forfeiting its forfeiture argument. Even if that is so, we find no 

reversible error in the district court’s conclusion that the environmental organizations’ NEPA 

argument is unavailing. See Center for Biological Diversity, 628 F.Supp.3d at 216-19. 

V. Conclusion

We affirm the district court.

This disposition is unpublished. See D.C. CIR. R. 36(d). We direct the Clerk to withhold 

this mandate until seven days after resolution of a timely petition for panel or en banc rehearing. 

See FED. R. APP. P. 41(b); D.C. CIR. R. 41(a)(1).

5 The Kemp’s ridley sea turtle, the leatherback sea turtle, the hawksbill sea turtle, the green sea turtle, and the 

loggerhead sea turtle are each relevant protected species in this case. Center for Biological Diversity, 628 F.Supp.3d

at 199.
6

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk