UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) PACIFIC RANGER, LLC , et al

. , ) ) ) Plaintiff s , ) ) v. ) Civil No. 1 5

- cv - 509 (KBJ) ) PENNY SUE PRITZKER , in her official capacity as Secretary of the United States Department of Commerce , et al. , ) ) ) ) ) Defendant s . ) ) )

MEMORANDUM OPINION Federal law recognizes that unregulated commercial deep

- sea fishing operations can pose a threat to the survival of whales, dolphins, seals, and other marine mammals. To minimize the hazards, t he Marine Mammal Protection Act (“MMPA”), 16 U.S.C. § 1361 et seq. , makes it unlawful for fishermen to “tak e ” marine mammals , which includes not only hunting, capturing, or killing such animals , but also engaging in acts that constitute harassmen t. I n the instant case, the captains , the fishing master , and the LLC associated with a commercial fishing vessel called the Pacific Ranger (collectively , “Plaintiffs”) are challenging what they consider to be an unfair determination by the division of the Department of C ommerce that enforces the MMPA

— the National Oceanic and Atmospheric Ad ministration (“NOAA”)

— that they2

should be held civilly liable for their “takes” of whales on several occasions

. Spec ifically, NOAA prosecutors filed six separate administrative charges against Plaintiffs in 2012 , an d after a hearing on the charges, an Administrative Law Judge (“ALJ”) determined that Plaintiffs had violat ed the MMPA in the fall of 2010 when they set thei r fishing net on whales during five tuna

- fishing expeditions, and that, on another occasion during this same timeframe , Plaintiffs had breached the Western and Central Pacific Fisheries Convention Implementation Act (“ the Implementation Act”), 16 U.S.C. § 6901 et seq. , which is a law that prevents commercial fisherm e n from fishing near or employing “fish aggregating devices” (“FADs”). As a result of these violations , t he ALJ held Plaintiffs liable for the payment of civil penalties totaling $127,000

. In t he instant complaint, which Plaintiffs have brought against the Administrator of NOAA and the Secretary of Commerce in their official capacities, Plaintiffs assert that these civil penalties should be set aside or reduce d because, among other things, the a pplicable MMPA regulations are unconstitutionally vague , none of the ALJ’s liability findings are supported by substantial evidence, and the penalty amounts are contrary to law (either because they are excessive or were insufficiently justified)

. Before th is Court at present are the parties’ cross

- motions for summary judgment. ( See Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”), ECF No. 16; Defs.’ Cross

- Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 17.) Plaintiffs insist that a statutory carve - out for “incidental” takes of marine mammals should have shielded them from MMPA liability and the ALJ erroneously ruled that it did not (or, alternatively, that they were not given fair warning that they were not entitled to this safe harbor )

. ( See Pls.’ Mem.3

in Supp. of Pls.’ Mot. (“Pls.’ Mem.”), ECF No. 16

- 1, at 18

– 25.) 1 Plaintiffs also maintain that there was insufficient evidence to support the ALJ’s factual findings , and that the amount of the penalties the agency imposed was either unconstitu tionally excessive or arbitrary and capricious because the ALJ failed to explain sufficiently her reasons for assessing those amounts

. ( See id. at 25

– 45.) In their cross motion, Defendants assert that the ALJ properly interpreted the regulations , which a re not vague ; that the ALJ’s factual findings are supported by the sufficient quantum of evidence ; and that the penalties the ALJ imposed are both sufficiently explained and full y in compliance with applicable constitutional standards

. ( See Defs .’ Combined Opp’n to Pls.’ Mot. & Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 18, at 21

– 46.) For the reasons explained fully below, this Court rejects Plaintiffs’ contention that an incidental

- take authorization effectively immunizes commercial fishermen against liability for knowing (albeit not purposeful) takes of marine mammals in the course of their fishing operations. To the contrary, the Court agrees with the ALJ , as a matter of law , that knowing and intentional takes cannot be deemed inc idental , and thus, the Court concludes that the ALJ properly interpreted and applied the MMPA regulations in a manner that comports with the applicable law . Furthermore, this Court finds that the ALJ’s determination was supported by substantial evidence, and that none of Plaintiffs’ contentions regarding the excessiveness or opacity of the penalt y determination is persuasive , particularly given the highly deferential standard of review . Consequently , Plaintiffs’ motion for summary judgment will be DENIED , and

1 Page

- number citations to documents the parties have filed refer to the page numbers that the Court’s electronic filing system assigns.4

Defendants’ cross

- motion for summary judgment will be GRANTED

. A separate order consistent with this memorandum opinion will follow.

I. BACKGROUND A. The MMPA And The Implementation Act Congress created the MMPA to ensure that marine mammals a re “protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management [

. ] ” Black v. Pritzker , 121 F. Supp. 3d 63, 89 (D.D.C. 2015) (internal quotation marks omitted) (quoting 16 U.S.C. § 1361(6)) ; s ee also id. (explaining that “the primary objective” of the management of such mammals “should be to maintain the health and stability of the marine ecosystem” (internal quotation marks and citation omitted) ) . Because marine mammals often live near and fe ed on fish, protecting these mammals burdens the fishing industry to some degree. W ith respect to the ever - present potential conflict b etween the “animals’ and fisheries’ interests [,] ” however, the re is no question that , under federal law, the “interest i n maintaining healthy populations of marine mammals comes first[.]” Kokechik Fishermen’s Ass’n v. Sec’y of Commerce , 839 F.2d 795, 802 (D.C. Cir. 1988) (footnote omitted) ; see also Fed’n of Japan Salmon Fisheries Co

- op. Ass’n v. Baldridge , 679 F. Supp. 37, 46 (D.D.C. 1987) (“The interests of the marine mammals come first under the statutory scheme, and the interests of the [fishing] industry, important as they are, must be served only after protection of the animals is assured.” (internal quotation marks and citation omitted)), aff’d sub nom. Kokechik Fishermen’s Ass’n v. Sec’y of Commerce , 839 F.2d 795 (D.C. Cir. 1988)

.5

To this end , the MMPA establish e s a “moratorium on the taking [,] ” 16 U.S.C. § 1371, of “any marine mammal on the high s eas[ , ]” id. § 13 72(a)(1) , and it specifically define s a “ t ak e ” as “harass [ing] , hunt [ing] , captur [ing] , or kill [ing] ” any marine mammal (or attempting to do so) , id. § 1362(13)

. T he MMPA further define s harassment to include “ any act of pursuit, torment, or annoyance” that “has the potential to injure a marine mammal . . . in the wild” or “has the potential to disturb a marine mammal . . . in the wild by causing disruption of behavioral patterns , ” i d. § 1362(18) (A) . Thus, federal law makes clear that to “ take” a marine mammal includes “the restraint or detention of a marine mammal, no matter how temporary[.]” 50 C.F.R. § 216.3 (defining a “take”)

. Notably, p er the MMPA and its implementing regulations, not all marine

mammal “takes” are equally blamewort hy

. T here are multiple exceptions to the liability that the background prohibition establishes ; t he one relevant here is the statutory exception for “the incidental taking of marine mammals in the course of commercial fishing operations[

. ] ” 16 U.S.C. § 1387(a)(1) (emphasis added) . Congress has made clear that the Secretary of Commerce may grant “authorizations” under 16 U.S.C. § 1387 that immunize commercial fishermen for incidental takes. Id. § 1371(a)(2); see also id. § 1362(12)(B) (designating the Secretary of Commerce as the official responsible for administering the MMPA for purposes of § 1387 )

. 2 To

2 Congress has envisioned both “authorizations” and “permits” for incidental taking , and the specifications for each ap pear in different statutory provisions. See 16 U.S.C. § 1 371(a)(2) (explaining that “permits may be issued . . . under section 1374, while “authorizations may be granted . . . under section 1387”). Plaintiffs here have limited their MMPA

- related argument s to the “authorizations” that they held at the relevant times. ( See, e.g. , Respondents’ Hr’g Mem.; Marine Mammal Protection Act Issues , Admin. R. App. (“AR”), ECF Nos. 27

- 1

– 27

- 37, AR 00045 5 (“The legal and factual issues in this proceeding are to be deci ded under [16 U.S.C. § 1387].”); Joint Stipulation of Facts, AR 437 ¶ 8 (invoking only § 1387 as the relevant incidental

- take exception); Pls.’ Mem. at 9 (discussing only § 1387); id. at 19 (“[T]he ‘ incidental taking ’ of marine mammals during commercial fi shing operations6

implement th is authorization authority , the Sec retary evaluate s the risk of mortality for marine mammals in various ocean areas that have been desig nated for commercial fishi ng

— known as “fisheries” 3

— and categorize s each fishery based on the risk of harm that commercial fishing poses to marine mammals in that area

. See 16 U.S.C. § 1387(c). Category I fisheries are those in which there is “frequent incidental mortality and serious injury of marine mammals [ , ] ” id. § 1387(c)(1)(A)(i), while Category II f isheries have “occasional incidental mortality and serious injury of marine mammals[,]” id

. § 1387(c)(1)(A)(ii), and in Categ ory III fisheries, the “likelihood” of such incidents is “remote[,]” id . § 1387(c)(1)(A)(iii). T he MMPA states that the Secretary “shall” grant “ [ a ] n authorization” to licensed commercial fishing v essels that operate in Category I or II fisheries and that register for such authorization , id. § 1387(c)(2)(A) , and the statute expressly provides that “an authorization granted under this section shall allow the incidental taking of all species and stocks of marine mammals to which this chapter applies[,]” id. § 1387(c)(2)(C). But the MMPA itself does not define “incidental , ” n or does it specify the circumstances under which one is deemed to have take n a marine mammal “incidental ly. ” That crucial definition appears in the regulations that implement the MMPA

. Section 229 of Title 50 of the Code of Federal Regulations

— which pertains to “authorization[s] for commercial fisheries” under the MMPA , see 50 C.F.R. § 229 (capitalization altered), and explicitly implements the incidental

- taking exception set

is permitted[.]” (citing only 16 U.S.C. § 1387)). ) Th is Court has limited its MMPA analysis accordingly.

3 As a general matter, “fisheries” are “stocks of fish which can be treated as a unit for purposes o f conservation and management[ .] ” 16 U.S.C. § 1362(16)(A)

.7

forth at 16 U.S.C. § 1387 , see 50 C.F.R. 229.1

— specifically addresses the meaning of “incidental” when it states: Incidental means, with respect to an act, a non - intentional or accidental act that results from, but is not the purpose of, carrying out an otherwise l awful action

. Id. § 229.2 (emphasis in original)

. Thus, per the MMPA and its implementing regulations, commercial fishing operators who receive authorization for incidental take s in the course of their operations, as described above , may avail themselves of the incidental

- take safe harbor and avoid liability if their conduct is, in fact, incidental as defined by law

. By contrast, if a commercial fishing operation i s not excused from the take prohibition in some manner, and nevertheless engages in conduct that qualifies as the t aking of a marine mammal , the owners and operators f ace steep civil penalt ies that the agency may impose after notice and an opportunity for a hearing. See 16 U.S.C. § 1375(a)(1) (setting civil penalty cap and hearing req uirement); see also 15 C.F.R. § 6.4 (e )(10) (2010) ( setting statutory penalty cap at $11,000 to account for inflation). 4 Although the Implementation Act differs from the MMPA insofar as it is not aimed specifically at protecting marine mammals , the Implementation Act addresses the depletion of fish stocks in particular areas of the western and central Pacific Ocean, see 16 U.S.C. § 6901(4), and thus it too bears upon the conduct of commercial fishing vessels operating in certain areas of the hi gh seas. Simply stated, the Implementation Act arose out of the United States’ obligations as a signatory to the Convention on the Conservation a nd Management of Highly Migratory Fish Stocks in the Western and

4 The penalties discussed in this Memorandum Opinion are those in effect when the conduct at issue in this matter occurred (i.e., in 2010). Today, one who violates the MMPA in a manner that subjects him to liability under 16 U.S.C. § 1375(a)(1) is subject to a penalty of up to $27, 5 00 per offense

. See 15 C.F.R. § 6.4( f )( 11 ).8

Central Pacific Ocean (“Convention”), Sept. 5 , 2000, T.I.A.S. No. 13,115, which is a multilateral international agreement that is designed to “ ensur e . . . the long

- term conservation and sustainable use of highly migratory fish stocks [,] ” id. art. 2. ( S ee also Initial Decision and Order of Administr ative Law Judge (“ALJ’s Decision”), ECF No. 27

- 13, at 6

. ) The Convention created the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean ( “ the Commission”), which is a multimember body th at works to carry out the Convention’s goals , s ee Convention, T.I.A.S. No. 13,115, arts. 9

– 10 , and t he Implementation Act effectuates the Convention within the United States by, among other things, authorizing the Secretary of Commerce to promulgate regula tions “ to carry
out the United States [’] international obligations under the . . . Convention[,]” 16 U.S.C. § 6904(a), and making it unlawful to violate any such regulations, see id. § 6906(a)(1). See also id. § 6901. The key obligation here stem s from a rule that the Commission issued in 2008, and the Commerce Department adopted in 2009

. See International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species (“CMM 2008

- 01 Final Rule”), 74 Fed. Reg. 38544, 38544 (Aug. 4, 2009) (ado pting Conservation and Management Measure 2008

- 01 (“CMM 2008

- 01”) ); (ALJ’s Decision at 7 ) . Among other things, CMM 2008

- 01 restricted fishing operations

— during specified time periods in Convention

- covered areas

— near where certain fish aggregating devices (“FADs”) were being used. See CMM 2008

- 01 Final Rule, 74 Fed. Reg. at 38544

– 45. ( See also ALJ’s Decision at 7)

. 5 As codified, CMM 2008

- 01 also require d that certain types of

5 FADs are , essentially, “any artificial or natural floating object, whether anchored or not and whether situated at the water surface or not, that is capable of aggregating fish, as well as any objects used for9

commercial fishing vessels

— such as the one Plaintiffs use

— carry neutral third p arties known as “fishery observers” (ALJ’s Decision at 7) when the vessels were operating in certain areas

. See CMM 2008

- 01 Final Rule, 74 Fed. Reg. at 38545

– 46

. To comply with this requirement during the relevant time period, NOAA “utilized fishery observers provided by the Pacific Islands Forum Fisheries Agency . . . , an intergovernmental agency of Pacific Island nations created to facilitate and promote regional cooperation and coordination in marine fishery policy and mana gement.” (ALJ’s Decision at 9

– 10.) In 2010, the penalty provisions of the Magnuson

- Stevens Fishery Conservation and Management Act applied to Implementation Act violations

. S ee 16 U.S.C. § 6905(c) (2010) . T hose provisions set a maximum penalty of $140,0 00 for each violation, which could be assessed only after notice and an opportunity for a hearing. See id. § 1858(a) (setting penalty and notice and hearing requirement); 15 C.F.R. § 6.4(e)(14) (2010) (adjusting penalty to $140,000 for inflation). 6 B. Back ground Facts The Pacific Ranger is a type of ship that is known as a “purse seine” vessel. These commercial fishing ships employ a purse seine net , which is a specific kind of fishin g net that is described as “a floated and weighted encircling net that is closed by means of a drawstring threaded through rings attached to the bottom[

. ]” Black , 121 F.

that purpose that are situated on board a vessel or otherwise out of the water.” CMM 2008

- 01 Final Rule, 74 Fed. Reg. at 38554

– 55; 50 C.F.R. § 300.211 (2010). CMM 2008

- 01’s bar on FAD

- associated activities was called a “FAD Closure , ” and as pertinent here , it ran from July 1 through September 30 of 2010. (Joint Stipulati on of Facts, AR 438 ¶ 15

. )

6 The applicable penalty structure differs today in ways that are not relevant to the instant case. Moreover, the maximum amount that can imposed for a violation of the Implementation Act today is $178,156. See 15 C.F.R. § 6.4 ( f )( 15), ( 27).10

Supp. 3d at 71 n.3 (internal quotation marks and citation omitted) . Purse seine nets are over half a mile long; therefore , purse seine fishermen use a host of smaller motor boats to extend the net around a school of fish and to seal it for loading back onto a vessel. ( See Joint Stipulation of Facts, Admin. R. App. (“AR”), ECF Nos. 27

- 1

– 27

- 37, AR 000440 ¶ 32 ). Additionally , purse seine f ishing expeditions often employ a helicopt er to assist with this process , which is called a “purse seine set” (ALJ’s Decision at 10) and generally takes between two and four hours from start to finish. ( See Joint Stipulation of Facts, AR 000440 ¶ 32 ). In the ocean areas in which the Pacific Ranger operates, the value of the fish that are caught in a single set can be immense ; f or example, the total value of the six sets at issue in the instant case was $122,531.90 , and two of those sets produced no value. ( See ALJ’s Decision at 38, 40

– 41 .) T he record here reflects that the value of the fish that are harvested during a multi

- day fishing trip for a purse seine vessel can be, on the low end, just under a million dollars. ( See Transcript of Proceedings Before Administrative Law Judge (“Transcript”), AR 001318.) T he fisheries in the Pacific Ocean in which the Pacific Ranger operated at the relevant times were all designated as “Category II” fisheries (ALJ’s Decision at 6), which meant that NOAA viewed t hem as areas in which “occasional incidental mortality and serious injury of marine mammals” occurs. 16 U.S.C. § 1387(c)(1)(A)(ii)

. ( See ALJ’s Decision at 6.) Moreover , during the time periods delineate d in CMM 2008

- 01’s FAD

- closure rule, see supra n ote 5 , purse seine fishing vessels in covered areas of the Pacific were not only barred from setting a purse seine
net around or wi thin one nautical mile of a FAD , but were also prohibited both from11

setting a purse seine net in a manner “intended to capture fish that have aggre gated in association with a FAD ” and from deploying a FAD into the water. CMM 2008

- 01 Final Rule, 74 Fed. Reg. at 38556; see a lso 50 C.F.R. § 300.223(b) (2010). It is undisputed that t he Pacific Ranger was operating in areas of the Western and Central Pacific Ocean covered by the FAD closure in the latter half of 2010

. ( S ee ALJ’s Decision at 33)

. I n 2012, NOAA charged Plainti ffs with six “counts” of violating the MMPA’s take prohibition and the Implementation Act’s FAD

- closure rule, maintaining that, during their operations in 2010 , Plaintiffs ran afoul of the MMPA and Implementation Act six times ( s ee id. at 2)

. 7 I n short, the five MMPA charges stemmed from actions Plaintiffs took on August 21, 23, 25, October 18, and December 11 , 2010, which are dates on which the Pacific Ranger had conducted a purse seine set that resulted in one or more whales being caught in the net but eventually breaking free before complete sealing. ( See id. at 2, 10

– 15.) Plaintiffs concede that their actions on these occasions constituted “takes” of whales within the meaning of the MMPA. ( See Prelim. Tr. of Summ. J. Mot. Hr’g at 20

– 21; ALJ’s Decisi on at 20.) The single FAD

related count occurred on September 1 , 2010 , when the Pacific Ranger allegedly set its purse seine net near a raft (which qualifies a s a FAD). ( See ALJ’s Decision at 13

– 14.) 8 Plaintiff Matthew James Freitas was the ship’s captain for every charged count except for the December 11 event; Plaintiff Joao Moniz served as the captain on that date

.

7 Plaintiffs here were the “Respondents” in the agency enforcement action. ( See ALJ’s Decision at 43.) As mentioned earlier, one Plaintiff is technically the Pacific Ranger LLC; throughout, references to actions Plaintiffs took in 2010 refer to the crew of the ship as directed by the captains and fishing master.

8 Depending on whether one uses the local time or Coordinated Universal Time, this count occurred either on September 1 or August 31. ( See ALJ’s Decision at 13.) For simplicit y, the Court uses the local time of September 1.12

( See Joint Stipulation of Facts , AR 000436 ¶ ¶ 3 , 20

– 26 .) Plaintiff Tien Shih Su se rved as the vessel’s “fishing master”

— the “officer responsible for directing the crew and deploying/retrieving the fishing gear and catch during purse seine fishing operations”

—

on each of the cited occasion s. ( Id. 000437 ¶ 4.) After NOAA issued the charg es, an ALJ was assigned to the matter and held a hearing , which took place on September 18, 2013

. This hearing officer then undertook
to determine , first, whether the Plaintiffs’ five takes of whales fit within the incidental

take exception and thus were covered by Plaintiffs ’ authorization for incidental takes , and second, whether Plaintiffs had, in fact , set a purse seine net around or within one nautical mile of a FAD. ( See ALJ’s Decision at 20, 33.) The e vidence presented at the hearing included : the live testimony of the fishery observers who were present on board the boat during the events , the observers’ contemporaneous notes and post

- voyage interviews with NOAA officials, the ship captains’ logbooks, the testimony of Captain Freitas, and the t estimony of Robert Virissimo, who serves as the Vice President of Vessel Operations for the company the Pacific Ranger uses to hire fishing masters

. ( See id. at 3 , 22, 24

– 25, 29. ) The ALJ considered the evidence presented , and o n November 25, 2014 , issue d a 44

- page decision that explain ed her conclusion that Plaintiffs were jointly and severally liable as charged for the five violations of the MMPA and one violation of the Implementation Act (through their violation of CMM 2008

- 01) , and imposed var ious ci vil penalties that totaled $ 127,000

. 9

9 The ALJ’s Order assessed a penalty of $11,000 for each of the five MMPA counts and a penalty of $72,000 for the Implementation Act count

. ( See ALJ’s Decision at 39, 43); see also 15 C.F.R. § 904.107(a).13

In her decision, t h e ALJ described at length the testimony and documentary evidence that bore on each of the six charges that had been filed against Plaintiffs

. ( See i d. at 9

– 16.) Briefly, with respect to the MMPA counts , the ALJ explained that liability hinged on whether the agency could prove the allegations “by a preponderance of the evidence,” and that, given the parties’ stipulations that Plaintiffs were under the jurisdiction of the United States and had taken these mammals “on the high seas[,]” all that remained was the issue of whether the incidental

- take exception applied. ( Id. at 19

– 20.) The ALJ noted the agency ’s argument that the incidental

- take exception was inapplicable because Plaintiffs had “knowingly” and “intentional[ly]” t aken the whales

. ( Id. at 32; see also id. at 20 ( “The Agency contends that . . . [Plaintiffs] saw the whale or whales prior to setting the net, and then , still set the net, knowingly, on the whales[.]” (emphasis in original)).) And she acknowledged that Plaintiffs had disagreed with the agency’s position by objecting to the evidence the agency had offered regarding Plaintiffs’ knowledge and intent on the ground that it was unpersuasive ( s ee id. at 20) , and by su ggesting that , in any event, the incidental

- take authorization excused even “knowing” sets on whales ( see id . at 30 ( reporting Plaintiffs’ argument that the regulations should be interpreted to excuse “ ‘incidental, intentional’ takes [,] provided there is n o lethal taking and no targeted species is involved” (citation omitted ) ) )

. In evaluating this dispute , t he ALJ addressed each piece of evidence , examin ed both sides’ framing of the issue s , and considered the proper construction of the incidental

- take safe harbor

. ( S ee id. at 21

– 32) . And, ultimately, the ALJ agreed with NOAA that Plaintiffs had “knowing ly ” and “intentional [ ly ] ” taken the whales, which in14

her view meant that Plaintiffs’ conduct fell outside the incidental

- take exception

. ( I d. at 32 (“[T]he Agency has shown by a preponderance of the evidence that Respondents, through the actions of the crew of the Vessel, knowingly set purse seine fishing gear on whales on the dates at issue . . . . These takes of marine mammals were not accidental, but instead were intentional takes not permitted under Respondents’ . . . authorization to incidentally take pursuant to their commercial fishing operations[.]” ). ) 10 With respect to the single Implementation Act charge, the ALJ again observed that only on e issue remained to be evaluated under a preponderance

- of

- the

- evidence standard : whether the Pacific Ranger had, in fact , “set a purse seine net around a FAD or within one nautical mile of a FAD.” ( Id. at 33.) The parties told dueling stories in this reg ard

— t he agency relied on the testimony of the observer who was present on board the vessel on that date and who claimed that such a set had occurred, while the Plaintiffs attacked that observer’s testimony as “unreliable and speculative[,]” and also offer e d circumstantial evidence they believed cut against the conclu sion that they had
set the net near a FAD as charged . ( Id. (citation omitted). ) After weighing the evidence and the parties’ competing narratives, the ALJ concluded that the agency had shown by a preponderance of the evidence that the ship had indeed set on a FAD. ( See id. at 33

– 36.) Additional details regarding the evidence presented to , and considered by , the ALJ are discussed in Part III below. The short of it all is that , based on her

c onsideration of the testimony and evidence presented at the hearing related to the

10 The ALJ apparently intended to treat “knowing” and “intentional” synonymously. ( See , e.g. , ALJ’s Decision at 32.) This Court need not address the subtle nuances of the ALJ’s view of the requisite mens rea however, because it is clear that the ALJ meant that Plaintiffs’ actions in taking the whales fell outside the scope of the incidental

- take exception because the takes were “not accidental[.]” ( Id .)15

charges against Plaintiffs, the ALJ found that Plaintiffs were liable on all six counts ( see id. at 43) , and f or reasons explained more fully in Part III.C , she imposed a pe nalty of $11,000 on each of the MMPA counts , and a $72,000 penalty on the FAD count, for a total of $1 27 ,000 ( s ee id. )

. C. Procedural History On December 23, 2014, Plaintiffs asked the NOAA Administrator to review the ALJ’s unfavorable decision

. ( S ee Pet. for Administrator Review, AR 000902, 00092 1 .) See also 15 C.F.R. § 904.273. The Administrator summarily denied Plaintiffs’ review request on March 18, 2015 ( see NOAA Administrator’s Order Denying Respondents’ Petition for Administrative Review, AR 00 1138

– 39 ) , which made the ALJ’s decision the agency’s final action, see 15 C.F.R. § 904.273(i). O n April 8, 2015, Plaintiffs filed the instant complaint , which allege s , in Count One, that “the MMPA [r]egulations are unconstitutionally vague ” (Compl. , ECF No. 1 , ¶ 25 ), because P laintiffs did not receive “fair notice” of the prohibited conduct

. (Compl. ¶ 21 ; see also id . ¶ 24 (“The MMPA Regulations did not give fair notice because the agency did not specifically identify what ‘intentional’ activity was prohibite d and not prohibited, particularly with respect to vessels possessing incidental take permits that authorize takes in the course of commercial fishing activities.”)

. ) The complaint also asserts , in Count s Two and Three , that the ALJ’s conclusion that they knowingly and intentionally set the net on whales , and that they set the net on or near a FAD , is not supported by substantial evidence ( s ee Compl. ¶¶ 26

– 29) , and that the ALJ’s determination that they should be held liable despite their possession of an incidental

- take authorization was arbitrary and capricious ( see id . ¶¶ 30

– 32). Finally,16

the complaint claims that the penalties the ALJ i mposed were unconstitutionally excessive (Count Four). ( See Compl. ¶¶ 33

– 36 .) Plaintiffs filed a motion for s ummary judgment in support of their complaint on August 20, 2015

. In their memorandum in support of the motion, Plaintiffs expand upon and clarify their theories of relief , which appear to f it into three general categories. First, Plaintiffs make an argument regarding how the MMPA incidental

take carve

- out, and the implementing regulations, should be interpreted ; Plaintiffs say that the MMPA’s background bar on “takes” of marine mammals should have been held not to apply to them as a matter of law , e ither because the ALJ interpreted “incidental” as defined in the regulations in a plainly erroneous way , or because the regulatory scheme, taken as a whole, is impermissibly vague regarding which actions remain prohibite d. ( See Pls.’ Mem. at 18

– 25.) Seco nd, although the complaint acknowledges that “Plaintiffs set on tuna schools that happened to be in the presence of whales” (Compl. ¶ 23), which is a fact that the ALJ found below ( see ALJ’s Decision at 21

– 22), Plaintiffs ’ summary judgment brief contend s t hat the ALJ’s conclusion that they

“ knowingly ” and “ intentionally ” took the whales and set on a FAD lacked a substantial basis in evidence , because the ALJ rested her conclusions largely on the credibility of the (corroborated) testimony that the on - board fishery observers had provided

. ( See id. at 25

– 40.) Third, Plaintiffs object to the penalty amounts, either because they are unconstitutionally excessive or because , according to Plaintiffs, the ALJ did not explain the penalties sufficiently and thus the y violated the APA. ( See id. at 40

– 45.) Defendants’ cross

- motion for summary judgment, which was filed on October 16, 2015, responds to all of these assertions. ( See Def s. ’ Mem. at 21

– 46). For17

example , Defendants contend that the MMPA regulation s perm it , and perhaps even mandate, the ALJ’s interpretation o f the scope of the incidental

- take authorization, and

are not vague regarding what conduct is prohibited. ( S ee id. at 21

– 29

. ) Furthermore, the agency argues that the ALJ’s findings of fact easily sa tisfy the applicable highly deferential standard of review ( see id. at 29

– 41) , and that the penalties were both well explained and constitutionally permissible ( see id. at 42

– 46)

. These cross - motions became ripe on December 9, 2016, and this Court held a hearing on these motions on March 15, 2016.

II. LEGAL STANDARDS Although cases under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551

– 559, 701

– 706, are often resolved on cross

- motions for summary judgment, it is well established that “ the standard set forth in [ Federal Rule of Civil Procedure 56 ] does not apply because of the limited role of a court in reviewing the administrative record.” ViroPharma, Inc. v. Hamburg , 916 F. Supp. 2d 76, 79 (D.D.C. 2013) (internal quotation marks omitted) (quoting Sierra Club v. Mainella , 459 F. Supp. 2d 76, 89 (D.D.C. 2006)). That is, i n administrative

- law cases, t he district court is tasked only with determining “ whether or not as a matter of law the evidence in the administrative record permit ted the agency to make the decision it did

. ” I d. ( internal quotation marks and citation omitted) ; see also Am. Bioscience, Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001) (“[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law. ” (footnote omitted) (citation omitted) )

.18

The APA authorizes a c ourt to “set aside” agency action when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[,]” 5 U.S.C. § 706(2)(A), and plaintiffs ordinarily take any one of several tacks when attempt ing to make that showing. So metimes, a plaintiff will argue that a regulation that the agency relied upon does not actually authorize the action taken , for example . Under the legal standard that the Supreme Court enunciated in Auer v. Robbins , 519 U.S. 452 (1997), “when an agency in terprets ‘its own ambiguous regulation[s],’ courts will defer to that interpretation unless it is ‘plainly erroneous or inconsistent with the regulation[s][,]’ or there ‘is reason to suspect that the agency’s interpretation does not reflect the agency’s fa ir and considered judgment on the matter in question. ’ ” Otsuka Pharm. Co. v. Burwell , No. 15

- 1688, 2016 WL 4098740, at *7 (D.D.C. July 28, 2016) (alterations in original) (quoting Christopher v. SmithKline Beecham Corp. , 132 S. Ct. 2156, 2166 (2012)). Ac cordingly , “‘an agency’s interpretation need not be the only possible reading of a regulation

— or even the best one

— to prevail [,] ’” i d. (quoting Decker v. Nw. Environ. Def. Ctr. , 133 S. Ct. 1326, 1337 (2013)), and an agency’s view of a regulation’s meaning controls “unless an alternative reading is compelled by the regulation’s plain language or by other indications of the [agency’s] intent at the time of the regulation’s promulgation [,] ” Thomas Jefferson Univ. v. Shalala , 512 U.S. 504, 512 (1994) (internal quotation marks and citation omitted). In a related vein , a plaintiff might also contend that the agency’s action is invalid because it was taken pursuant to a regulation that is unconstitutionally vague

. The void

- for

- vagueness test is relatively straightforward: if the “regulation delineated its reach in words of common understanding[,]” it passes muster. Throckmorton v. Nat’l19

Transp. Safety Bd. , 963 F.2d 441, 444 (D.C. Cir. 1992) (internal quotation marks an d citations omitted); see also Am. Coal Co. v. Fed. Mine Safety & Health Review Comm’n , 796 F.3d 18, 28 (D.C. Cir. 2015) (explaining that a regulation need only “provide sufficient guidance so that reasonable regulated parties, aware of the goal the regula tion seeks to accomplish, have ‘fair warning’ of what the regulation requires.” (quoting Freeman United Coal Mining Co. v. Fed. Mine Safety & Health Review Comm’n , 108 F.3d 358, 362 (D.C. Cir. 1997)). Plaintiffs also sometimes rest their challenges upon t he foundational principle that “ [n] ot only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” Tripoli Rocketry Ass’n, Inc. v. ATF , 437 F.3d 75, 77 (D. C. Cir. 2006) (internal quotation marks omitted) (quoting Allentown Mack Sales & Serv., Inc. v. NLRB , 522 U.S. 359, 374 (1998)). Th is standard is rooted in the “arbitrary and capricious prong ” of the APA ’s judicial

- review provision, which enforces a requi rement of “reasoned decisionmaking” and requires courts to “ensure that [the agency] has examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Nat’l Fuel Gas Supply Corp. v. FERC , 468 F.3d 831, 839 (D.C. Cir. 2006) ( second and third alterations in original) (internal quotation marks and citations omitted); see also Fox v. Clinton , 684 F.3d 67, 74

– 75 (D.C. Cir. 2012) (“To survive arbitrary and capricious review, an agency action must be the product of reasoned decisionmaking.” (citations omitted)). In addition , under some circumstances, the APA may require a reviewing court to ensure the agency’s action i s supported by “substantial evidence[,]” 5 U.S.C.20

§ 706(2)(E), which is a deferential standard that typically “require[s] [an] equivalent level[] of scrutiny” as the arbitrary

- and

- capricious standard , Black , 121 F. Supp. 3d at 76 (internal quotation marks omitted) (quoting Mem’l Hosp./Adair Cty. Health Ctr., Inc. v. Bowen , 829 F.2d 111, 117 (D.C. Cir. 1987)) ; see also Bangor Hydro

- Elec. Co. v. FERC , 78 F.3d 659, 663 n.3 (D.C. Cir. 1996)

. 11 The long and short of it is that, whether a court is viewing an agency decision through the lens of arbitra ry - and

- capricious action or evaluating it per the substantial

evidence test, a great deal of deference is afforded to the agency’s findings and conclusions. See Van Hollen, Jr. v. FEC , 811 F.3d 486, 495 (D.C. Cir. 2016) (describing the arbitrary

- and

- capricious standard); Black , 121 F. Supp. 3d at 76

– 77 (collecting cases describing substantial

- evidence standard) ; see also Ind. Mun. Power Agency v. FERC , 56 F.3d 247, 254 (D.C. Cir. 1995) (explaining that the role of the fe deral court reviewing agency action is not to reweigh evidence, but to ensure only that the agency factfinder stayed within the bounds of rationality (citing, inter alia , Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983) ) )

. Indeed, u nder arbitrary

- and

- capricious review , courts “presume the validity of the agency’s action,” Grid Radio v. FCC , 278 F.3d 1314, 1322 (D.C. Cir. 2002) ( internal quotation marks and citation omitted), and may not “substitut[e] [their ] judgment for that of the agency[,]” Van Hollen, Jr. , 811 F.3d at 495 ; see also B ean Dredging, LLC v. United States , 773 F. Supp. 2d 63, 73 (D.D.C. 2011) (“[A] court need not find that the

11 Because of the well

- established similarity between the arbitrary

- and

- capricious standard and substa ntial

- evidence review, see, e.g. , Consumers Union of U.S., Inc. v. FTC , 801 F.2d 417, 422 (D.C. Cir. 1986), and also because the arbitrary

- and

- capricious standard applies to “all agency actions subject to” the APA, Verizon Cal., Inc. v. FCC , 555 F.3d 270, 273 (D.C. Cir. 2009) (citation omitted) , this Court need only assume, without deciding, that the substantial

- evidence standard applies to its review of the entirety of the ALJ’s conclusions in this case (as the parties have done).21

agency’s decision is ‘the only reasonable one, or even that it is the result [th e court] would have reached had the question arisen in the first instance in judicial proceedings.’” (second alteration in original) (quoting Am. Paper Inst., Inc. v. Am. Elec. Power Serv. Corp. , 461 U.S. 402, 422 (1983)) )

. And courts applying the “substa ntial evidence” standard have explained that an “agency decision may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view[,]” Morall v. DEA , 412 F.3d 165, 176 (D.C. Cir. 2005) ( internal quotation marks and citation omitted) ; that is, reversal of the agency’s findings is appropriate on this ground “only when the record is so compelling that no reasonable factfinder could fail to find to the contrary,” Orion Reserves Ltd. P’ s hip v. Salazar , 553 F.3d 697, 704 (D.C. Cir. 2009) (internal quotation marks and citation omitted). Finally, it is clear that a plaintiff may challenge the monetary penalties that an agency assesses on the grounds that they are unconstitutionally excessi ve. See Collins v. SEC , 736 F.3d 521, 526 (D.C. Cir. 2013) (“A civil penalty violates the Excessive Fines Clause [of the Eighth Amendment] if it ‘is grossly disproportional to the gravity of’ the offense.” (quoting United States v. Bajakajian , 524 U.S. 32 1, 334 (1998) ) ). Relatedly, a p laintiff ’s APA claim may contend that insufficient reasons were given for a penalty imposed; that sort of claim is subjected to the arbitrary

- and

- capricious review standards outlined above. See id. at 524 (citing S tate Farm , 463 U.S. at 43)

.
III. ANALYSIS The owner and operators of the Pacific Ranger have request ed the reversal or reduction of the substantial civil penalties that the ALJ has imposed upon them for “taking” whales , and for setting once on a FAD , based on myriad assertions of law and22

fact

. But it is clear to this Court that Plaintiffs primarily seek to advance an overarching contention that lie s at the root of each of their MMPA

- focused claims of

error : that the incidental

- take authorization that Plaintiffs posse ssed as operators of a commercial fishing vessel allowed them to take whales and other marine mammals in the cou rse of their fishing operations so long as they did not purposefully set out to do

so , and thus the ALJ was wrong to conclud e that Plaintiffs we re deprived of the incidental

- take authorization’s protection based on their mere knowledge that “whales were in the area” when the Pacific Ranger ’s purse seine net was set

. (Pls. ’ Mem. at 20; see also id. at 19 (emphasizing that “Plaintiffs possess a NOAA

- issued authorization for the incidental taking of marine mammals in the course of their commercial fishing operations” (citation omitted) ); id . at 20 (“ [T] here is no claim that Plaintiffs had ‘the purpose of’ taking whales . . . . Rather, their purpos e solely was to catch fish. Nor is there any claim that Plaintiffs targeted whales in any respect during the course of the challenged purse seine fishing operations. ” (citation omitted) ); Compl. ¶ 23 ( asserting that “[t]he MMPA charges against Plaintiffs involved situations where Plaintiffs set on tuna schools that happened to be in the presence of whales” and “did not involve any situation where Plaintiffs chased or targeted the whales and then set on the tuna” )

. Nearly all of Plaintiffs’ arguments flo w from this characterization of what the law prohibits and permits. For example, Plaintiffs insist that “the MMPA prohibits ‘intentional’ takings of marine mammals, while allowing those takings that are ‘incidental’” (Pls.’ Mem. at 2 1 ), and as a result, t hey say that it was plain error for the ALJ to conclude that the safe harbor for incidental takes did not absolve their knowing ( but not purposeful ) take of whales ( see i d. (“From the undisputed evidence, the takings23

at issue in this case should have been classified as ‘incidental

. ’” ) )

. Alternatively, Plaintiffs maintain that if the law is such that a n incidental

- take authorization does not authorize the knowing (but not purposeful) taking of marine mammals , then the MMPA scheme is too vague to provide fair warning rega rding what conduct is permitted , and should be struck down on that basis

. ( Id . at 20 (“Plaintiffs would have no way of knowing that mere awareness of a whale in the vicinity of a tuna set can constitute an unlawful ‘intentional’ taking of that whale.”).) Similarly , the primary impetus behind Plaintiffs’ claim that the ALJ’s MMPA

related liability finding is not supported by substantial evidence appears to be Plaintiffs ’ belief that “ the evidence falls significantly short in showing that they purposefully or intentionally targeted the whales in order to catch fish

. ” ( Id. at 30 (emphasis added) ; see also id. at 32 ( arguing that “[t]he ALJ took a broad leap from the secondhand testimony of the observers to the conclusion that Plaintiffs purposefully targeted the whales as part of making the sets”) ; cf

. id

. at 43 (decrying “the lack of direct evidence that Plaintiffs intentionally targeted the whales”). ) And e ven the complaint’s excessive

- penalty claim seems to be partly derived from Plai ntiffs’ assertion that only those authorized commercial fishing operations that purposefully or intentionally chase or target whales and other marine mammals are truly deserving of punishment. ( See, e.g. , id. at 42 (arguing that “charging the maximum pena lty ignores the realities of purse seine fishing[,]” which involves “conditions in the open ocean” that are “constantly changing and uncontrollable [,] ” and within which “[w]hales a[nd] tuna are necessarily in the same area[,] as both the tuna and whales fe ed on the same school fish” ) ; see also id . (“If the maximum penalty is charged here, . . . there is24

nothing left to distinguish a case where someone intentionally and maliciously seeks out and/or kills the whales while setting on tuna.”).) For the reasons explained below, this Court disagrees with Plaintiffs’ core characterization of the MMPA authorization scheme as being one that authorizes commercial fishermen to take marine mammals in the course of their fishing operations except insofa r as they purposefully chase or target marine mammals in the process . T o the contrary, t he law clearly establishes that any and all takes are categorically
pro hibited, and that only accidental or non

- intentional (i.e., unknowing) takes are permissible per a n incidental

- take authorization . T herefore, the MMPA scheme is not at all vague regarding what is expected , and the ALJ’s conclusion that a knowing and intentional (i.e., deliberate) set upon a whale fails to qualify as an incidental take was
not erroneou s , much less plainly so

. ( See infra Part III.A.) Furthermore , when the incidental

- take bar is properly s et at excusing only accidental or non

- intentional takes, then the dea rth of record evidence establishing that the crew of the Pacific Ranger purposefu lly targeted the whales they took is of no moment, and the only issue becomes whether there is some support in the record for the ALJ’s conclusion that Plaintiffs knew that whales were in the area when they set the purse seine net and did so anyway , and also set on a FAD on the date in question . ( See infra Part III.B.) Finally, as explained in Part III.C , t he Court’s rejection of Plaintiffs’ view of the applicable legal standard renders unpersuasive Plaintiffs’ argument that the various penalties the AL J imposed were inexplicable and unconstitutionally excessive. A. The MMPA Scheme Is Not Vague, And The ALJ Did Not Err In Concluding That A Knowing Or Intentional Take Of A Marine Mammal Falls Outside Of The Incidental - Take Exception Plaintiffs’ opening s alvo is their claim that “the agency’s interpretation of25

‘incidental’ in this case is inconsistent with the plain language of its own regulations, or otherwise the regulations themselves are hopelessly (and unconstitutionally) vague.” ( Pls.’ Combined Repl y in Supp. of Pls.’ Mot. for Summ. J. and in Opp’n to Defs.’ Cross

- Mot. for Summ. J. (“Pls.’ Reply”), ECF No. 23, at 6 ; see also Compl. ¶¶ 20

– 25, 30

– 32

. ) As noted above, courts generally afford Auer deference to an agency ’s interpretation of its own regul ations , overturning the agency’s interpretation only if it is plainly erroneous, b ut as it turns out, Defendants here need not r ely on tha t deferen tial standard to overcome Plaintiffs’ vigorous challenge to NOAA’s interpretation of the MMPA regulations, because the plain text of the applicable provisions clearly establish that it is Plaintiffs ’ view

— not the agency’s

— that is mistaken. In short, a s demonstrated below, Plaintiffs have erected a false dichotomy

— prohib ited “intentional” takes, on the one hand, versus authorized “incidental” takes on the other

— to bolster their contention that an authorization for incidental takes covers more conduct than it actuall y does

. ( See Pls. ’ Mem. at 21 ( suggesting that the incid ental

- take authorization excuses all but the act of purposefully chasing or targeting marine mammals, because “the MMPA prohibits ‘intentional’ takings of marine mammals, while allowing those takings that are ‘incidental’” ). ) However, as the text of the M MPA and its implementing regulations make clear , the prohibited act of taking a marine mammal is a strict

- liability offense that is broadly defined , and the only takes that are properly deemed “ incidental ” to commercial fishing activity are those that are accid ental or unknowing. This means that the ALJ’s interpretation of the incidental

take definition was clearly correct, and there is nothing vague , much less unconstitutionally so, about the expected course of conduct.26 1. The Plain Text Of The MMPA And Its Implementing Regulations Establishes That Only Accidental Or Non

- Intentional (Unknowing) Takes Qualify As Incidental Returning to the nuts and bolts of the statutory scheme described above , the MMPA establishes an unconditional ban on th e tak ing of a marine mammal , which is defined to include harassment and a host of other acts

. S ee 16 U.S.C. § 1362(13)

. A ny “act of . . . annoyance” that “has the potential to injure” or “disturb” a wild marine mammal counts as harassment , id. § 1362(18) (A) , and b ecause the statutory take prohibition makes no reference to any required mens rea , see id. § 1372(a)(1), it is in the nature of a strict

- liability provision

. Cf. W. Fuels

- Utah, Inc. v. Fed. Mine Safety & Health Review Co m m’n , 870 F.2d 711, 713 (D.C. Cir. 1989) (observing that “[s]trict liability alters th[e] general rule ” that liability is only imposed on one who acts with a particular intent “ by eliminating the requirement of mens rea ” ). To be sure, there are exceptions to the broad and uncond itional take prohibition , including the one for “incidental taking . . . in the course of commercial fishing operations[,]” 16 U.S.C. § 1387(a)(1). However , as mentioned above, via regulations explicitly implementing 16 U.S.C. § 1387, the Secretary of Com merce has explained that “ incidental ” means, “with respect to an act, a non - intentional or accidental act that results from, but is not the purpose of, carrying out an otherwise lawful action.” 50 C.F.R. § 229.2 (emphasis added)

. Thus, t h is Court has n o doubt that th e safe harbor for “incidental” takes exempts only a narrow slice of the takes that are otherwise proscribed , and that, by using the words “accidental” and “non

- intentional,” the Secretary meant to place deliberate takes outside the exception

. It is axiomatic “ that words of statutes or regulations must be given their ‘ordinary, contemporary, common meaning.’” FTC v. Tarriff , 584 F.3d27

1088, 1090 (D.C. Cir. 2009) (quoting Williams v. Taylor , 529 U.S. 420, 431 (2000) )

. A nd a ccording to Black’s Law Dictionary, accidental means “[n]ot having occurred as a result of anyone’s purposeful act[,]” while “intentional” means “[d]one with the aim of carrying out the act.” Black’s Law Dictionary 18, 932 (10th ed. 2014). Applied to the “take” context, th e terms “ accidental ” and “ non - intentional ” therefore plainly do not describe the harassment of whales that occurs when commercial fishermen know that whales are in the vicinity of where they wish to conduct a highly disruptive multi

- hour
tuna

- fishing opera tion and nevertheless press on with that operation. Plaintiffs disagree, arguing that when the regulation describes an “incidental” act, it unambiguously refers only to actions that the fisherm e n set out to do and wished to effect ; in other words, in Pla intiffs’ view, the incidental

- take authorization immunizes one who knowingly conducts a purse seine set on a school of fish that is intermixed with whales unless bother ing the whales is his subjective goal . ( See, e.g. , Pls.’ Mem. at 22 (“[A] taking is permitted, so long as it is not the purpose of the activity and instead is a mere consequence of steps that are incidental to lawful commercial fishing operations .” (internal quotation marks omitted)); see also id. ( “ At most, the evidence shows that Plaint iffs set on tuna that were associated with whales [and] such conduct is expressly permitted[.]” (internal quotation marks omitted) ) ; Respondents’ Hr’g Mem.; Marine Mammal Protection Act Issues, AR 000457 (arguing below that the incidental

- take exception wo uld authorize an intentional set on a marine mammal)

. ) But this contention rests on the misapprehension that Congress was only concerned about prohibiting “intentional ” takings to begin with, when , in fact, t he MMPA speaks in categorical terms

— “[t]here sh all be a moratorium on the taking . . . of28

marine mammals[,]” 16 U.S.C. § 1371(a)

— and Congress has only countenance d carefully crafted exceptions to that blanket rule. Once it is understood that all takings of marine mammals are prohibited by statute and that only certain takings are excepted as incidental , a straightforward question emerges : does a legal provision that immunizes “non

- intentional or accidental [takings] that result[] from, b ut [are] not the purpose of, carrying out an otherwise lawful action[,]” 50 C.F.R. § 229.2, excuse any t aking “so long as it [wa]s ‘ not the purpose of ’ the activity and instead [wa]s a mere ‘ consequence ’ of steps that are incidental to lawful commercial fishing operations” (Pls.’ Mem. at 22)? Merely p osing this question answers it , for at least two reasons . First, looking at the plain text of the regulation , an interpretation that would deem all take s “ incidental ” except those that are purposeful effectively render s the first part of the “incidental” definition a nullity, because all that matter s is what the second half of the definition speaks to

— whether the take “result[ed] from, but [was] not the purp ose of, carrying out an otherwise lawful action.” 50 C.F.R. § 229.2. I t is well established that regulatory interpretations that produce surplusage are disfavored, see Oceana, Inc. v. Pritzker , 75 F. Supp. 3d 469, 484 (D.D.C. 2014) (citing Nat’l Ass’n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 668

– 69 (2007)), and Plaintiffs never explain why the agency include d the words “non

- intentional or accidental” in the “incidental” definition if the only relevant touchstone is whether it was the actor’s p urpose to effect the forbidden result

. Second, the broader statutory and regulatory context confirms that the phrase “non

- intentional or accidental” does important work within the “incidental” take definition. See Simmons v. ICC , 829 F.2d 150, 156 (D.C . Cir. 1987) (explaining that,29

when interpreting a regulation, the court must consider “the context of t he regulation of a whole”). This Court has already discussed some of that critical context. The MMPA proceeds from the premise that takes of marine mammals (broadly defined) are taboo,

see 16 U.S.C. §§ 1371, 1372(a) , which corresponds with the principle that , when in conflict, the wellbeing of marine mammals takes precedence over fishing interests

. S ee Kokechik , 839 F.2 d at 802. Moreover, the MMPA’s broad prohibition against takes not only confirms Congress’s interest in protecting marine mammals, it also clearly conflicts with Plaintiffs’ suggestion that the Secret ary meant to gut the MMPA ’s protections by shielding via regulation those co mmercial fishermen who obstinately push on with a p urse seine set despite knowing that whales a re in the area and are likely to be impacted, and who consequently harass (and even temporarily catch ) those whales. Consider, too, the fact that the phrase “non

- intentional or accidental” substantially limits the number of takes that are properly cloaked with “incidental” immunity, which aligns with the thrust of the statutory provision that governs incidental takes, the bulk of which is devoted to minimizing the ir negative effects. See, e.g. , 16 U.S.C. § 1387(a)(1), (d), (f). By contrast, P laintiffs’ reading c ould effectively incentivize negative behavior , because a fisherman who acts in a manner that risks the taking of marine mammals

— such as knowingly setting his nets in the water on top of any such animal if that animal happens to be in the way of the lucrative catch he desires

— would not be held liable for those actions

. Indeed, by limiting liability to only those commercial fishermen who target marine mammals , or deploy their nets hoping to harass whales , Plaintiffs ’ construction would effectively transform the incidental

- take30

authorization into a blanket of immunity for any fisherman who would rather not be bothered with the wellbeing of marine mammals while he fishes, and thereby perversely shift s the significant costs of risky fishing behavior away from the fishermen and onto the animals themselves. Undaunted, Plaintiffs insist that definitions located in other MMPA

- related regulations

— specifically, t hose found in Part 216 of Title 50 of the Code of Federal Regulations

— should govern this Court’s analysis of what “incidental” means in the context of the incidental

- take authorization established in 16 U.S.C. § 1387

. Plaintiffs identify two such definitions : (a) “ [ i ] ncidental catch”

— which is defined a s “the taking of a marine mammal (1) because it is directly interfering with commercial fishing operations, or (2) as a consequence of the steps used to secure the fish in connection with commer cial fishing operations”

— and (b) “ [ i ] ntentional purse seine set [,] ” which occurs when “a tuna purse seine vessel or associated vessels chase marine mammals and subsequently make a purse seine set.” 50 C.F.R. § 216.3 (emphasis omitted)

. Boiled to bare ess ence, Plaintiffs’ argument is that, because their conduct (allegedly) fits the definition of “incidental catch” and does not fit the definition of “intentional purse seine set,” their actions must have been “ incidental ” for the purposes of § 1387’s safe ha rbor . ( See Pls.’ Mem. at 22 (quoting 50 C.F.R. § 229.2 and 50 C.F.R. § 216.3 , while asserting that “[t]hese definitions are clear that a taking is permitted, so long as it is not the purpose of the activity and instead is a mere consequence of steps that are incidental to lawful commercial fishing operations” (internal quotation marks omitted ) ); id. at 23 ( “[A]n ‘ intentional purse seine set ’ did not occur here because Plaintiffs did not ‘ chase ’ the whales [, and] . . . it follows that no ‘ intentional ’ taking of whales occurred.”). )31

Plaintiffs’ attempts to rely on these definitions to bolster their view of the scope of the incidental

- take authorization fails for at least two reasons. First of all, neither of the terms that Plaintiffs point to appears in § 1387, and in any event, the well

established statutory maxim that ‘ the specific governs the general ’ also applies to the regulatory context. See Tasker v. DHL Ret. Sav

. Plan , 621 F.3d 34, 43 (1st Cir. 2010) ; see also RadL

AX Gateway Hotel, LLC v. Amalgamated Bank , 132 S. Ct. 2065, 2071 (2012) ( describing and discussing the maxim). It is Part 229 of the Code of Federal Regulations

— rather than Part 216

— to which a reader must look in order to see what the
agency intended regarding the incidental

- take exception , s ee 50 C.F.R. § 229.1(a) (“The regulations in this part implement section[] 118 of the [MMPA, 16 U.S.C. § 1387.] ”); see also id. § 229.1(b) ; thus, while other definitions in other parts of the M MPA regulatory regime generally use the word “incidental,” the specific definition in Part 229 is undoubtedly the one that governs the dispute at issue here. 12 Second, and similarly, it is not at all clear that the other definitions that Plaintiffs seek to rely upon actually relate to the incidental

- take exception context. For example, as has been repeatedly noted, the MMPA prohibits “takes” of all kinds, and a prohibited take can occur in many ways. Thus, a regulation that pertains to an “incidental catch,”

12 Plaintiffs’ invocation of an online agency glos sary that defines “incidental taking” as an “unintentional, but not unexpected, taking” (Pls.’ Mem. at 23 ( internal quotation marks and citation omitted)) , fails for this same reason

. Plaintiffs cite no authority for the proposition that an informal glossary definition can supersede the otherwise plain meaning of a regulation, and only the latter is perceived as having “controlling weight[.]” High Plains Wireless, L.P. v. FCC , 276 F. 3d 599, 606 (D.C. Cir. 2002) (internal quotation marks and citation omitted) ; see, e.g. , Duckworth v. United States ex rel. Locke , 705 F. Supp. 2d 30, 47 (D.D.C. 2010) (stating that an agency’s informal instructions to fishermen “d[id] not supersede the de finition of ‘ fishing ’ that is clearly stated in the statutes and regulations themselves”) , aff ’ d , 418 F . App ’ x 2 (D.C. Cir. 2011) . What is more, this glossary definition is entirely consistent with a view of the regulation that excuses only truly “accidental” or “non

- intentional” conduct , which does not encompass deliberate and knowing deployment of nets on fish that are intermingled with whales.32

or that clarifies that Plaintiffs’ conduct qualifies as an incidental catch for Part 216’s purposes, says little about whether a take that is intentional or knowing can still be deemed “incidental” within the meaning of the Part 229 definitions. Put another way, even when the other definitions that Plaintiffs seek to rely upon are taken into account, the inquiry always returns to the question of what the phrase “non

- intentional or accidental” means in the Part 229 definition of “ incidental,” and under what circumstances one who is otherwise liable for a take is saved by this exception . And in this Court’s view, as explained above, it has a clear meaning that does not excuse deliberate, knowing conduct. The bottom line is this: be cause the interests of marine mammals take precedence over those of the fishing industry under the MMPA, this Court cannot accept Plaintiffs’ suggestion that, when the D.C. Circuit cautioned that the “MMPA does not allow for a Solomonic balancing of the an imals’ and fisheries’ interests[,]” Kokechik , 839 F.2d at 802 (footnote omitted) , it meant that commercial fishermen should have the whole baby. Therefore, despite Plaintiffs’ vigorous defense of an interpretation of the incidental

- take definition that wo uld immunize all but the most flagrant and purposeful acts directed toward the marine mammals that commercial fishermen regularly
encounter in the ordinary course of business , in this Court’s considered judgment, the incidental

- take exception to the broad take prohibition must be read narrowly, to give effect to Congress’s intent that “[t]he interest in maintaining healthy populations of marine mammals comes first[,]” id ., and cannot be read to preference commercial fishing interests in the manner that Plai ntiffs suggest.

2. The Expectations For Regulated Parties Are Sufficiently Clear Plaintiffs insist that “[i]f . . . the regulations in 50 C.F.R. § 229.2 can be read to33

allow NOAA to penalize a taking in which the operator merely ‘knew’ that whales were associ ated with fish, then the agency’s regulations are unconstitutionally vague and fail to properly articulate the activities for which fishing vessels could be sanctioned.” (Pls.’ Reply at 11.) But the ALJ’s conclusion that the intentional

- take exception doe s not apply when a commercial fisherman “knowingly set[s] purse seine fishing gear on whales” (ALJ’s Decision at 32) is not only legally correct for the reasons explained above ( see supra Part III.A.1), it also states a rule that is more than sufficient to provide such actors with fair notice of the expected conduct. As explained, the regulation plainly requires that the act to be excused must be “non

- intentional” or “accidental[,]” 50 C .F.R. § 229.2, which means that deliberate/knowing takes

— what the ALJ described as “knowing[]” and “intentional” takes (ALJ’s Decision at 32)

— are unquestionably outside the safe harbor. And however broad the category of conduct that arguably falls into th e “non

- intentional” or “accidental” category might be, Plaintiffs cannot suggest, as they attempt to do here, that, given the realities of commercial tuna fishing on the high seas, a fisherman would have no idea what conduct is allowed and what is permitte d unless the MMPA scheme is read to excuse all but the purposeful targeting of marine mammals

. ( See Pls.’ Reply at 11.) In other words, whatever “accidental” might be taken to mean, it most certainly is not the conduct of knowingly setting one’s purse se ine net on a whale. Cf. Robinson v. Cheney , 876 F.2d 152, 163 (D.C. Cir. 1989) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” (quoting Parker v. Levy , 417 U.S. 733, 756 (1974))). To be sure, a fisherman who seeks to determine whether a take is “incidental”34

(and thus excused) may find it more or less difficult to ascertain whether the prerequisites of “non

- intentional or accidental” conduct have been met on various occasions. But the fact that a regulatio n requires the exercise of judgment, or that there is room for disagreement about the existence of a necessary factual predicate, is not a proper grounds for a vagueness challenge. See, e.g. , Throckmorton , 963 F.2d at 445 (collecting cases rebuffing vague ness challenges to regulatory language like “so far as practicable,” “except when necessary,” and “in near proximity” (alteration omitted) (internal quotation marks omitted) ); see also Am. Coal. Co. , 796 F.3d at 28 (rejecting vagueness argument related to a definition of “fire” that required certain non

- flaming material to “present a reasonable chance of bursting into flame”). And, in any event, the definition at issue here is not subject to any such challenge, because no reasonable regulated party who und erstands that the safe harbor for incidental takes applies to “non

- intentional or accidental” actions would have thought himself authorized to “knowingly set[] [his] net on a whale

- associated school” (ALJ’s Decision at 32). See Am. Coal. Co. , 796 F.3d at 28 (expressing confidence that a regulation is not vague if a “reasonable” regulated party “will prove able to implement the Secretary’s standard in practice”). Thus, Plaintiffs’ vigorous attempt to convince this Court that wholly innocent fishermen will get unfairly swept up into the vortex of liability unless the incidental

take exception is broadly construed is entirely unpersuasive. ( See Pls. ’ Reply at 12 (complaining that “there is no regulation that put the Plaintiffs on notice that their Authorizat ion Certificate provided them such limited rights

— essentially, only the right to ‘take’ a marine mammal purely unexpectedly” ) .) If Plaintiffs truly believe that they35

had no notice that they were not authorized to knowingly set the Pacific Ranger ’s purse

s eine net on whales, this Court does not know why, because the scope of the protection afforded by the MMPA scheme per the § 1387 authorization is plain on the face of the regulation. O nly accidental or non - intentional (i.e., not deliberate) takes are excu sed,

see 50 C.F.R. § 229.2; therefore, setting a purse seine net with knowledge that whales and other marine mammals are swimming among the targeted tuna is not. All things considered, this reading of the incidental

- take exception gives c ommercial fishing operators as clear a line as ever could be expected. See Am. Coal. Co. , 796 F.3d at 28 (explaining that a law survives a vagueness challenge if it “provide[s] sufficient guidance so that reasonable regulated parties, aware of the goal t he regulation seeks to accomplish, have fair warning of what the regulation requires” (internal quotation marks and citation omitted)). And far from being perplexed or unfairly surprised, a reasonable commercial fisherman who sees whales swimming among th e tuna he would like to set his net upon would know that he needs to move on, or risk liability. Cf. Throckmorton , 963 F.2d at 445 (“[I]t is not unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” (internal quotation marks omitted) (quoting Boyce Motor Lines, Inc. v. United States , 342 U.S. 337, 340 (1952))). B. The ALJ’s Findings Of Fact Were Supported By Substantial Evidence Plaintiffs’ next line of attack is aimed at the ALJ’s conclusions regarding Plaintiffs’ a ctions on the dates in question

. Plaintiffs argue, for example, that “the issue in this case primarily is one of witness credibility and the weight of evidence given to assumptions rather than firstha nd knowledge,” and that the ALJ erred because, rather than relying on the evidence presented , she “ based her conclusions about witness36

credibility on generalized assumptions and speculation[.]” (Pls.’ Mem. at 26.) W ith respect to the MMPA counts, Plainti ffs also renew the ir arguments that are based on the legal premise that NOAA needed to show “that [Plaintiffs] purposefully or intentionally targeted the whales in order to catch fish.” ( Id. at 30.) As this Court has already explained, in order to hold Plaintiffs liable for the takes, the agency needed to show only that Plaintiffs’ conduct could not be characterized as “non

- intentional or accidental[.]” 50 C.F.R. § 229. 2

. Furthermore , under the substantial

- evidence standard, t h e Court’ s task is not to determine “ whether record evidence supports [Plaintiffs’] version of events, but whether it supports [the agency’s].” AJP Const. , Inc. v. Sec’y of Labor , 357 F.3d 70, 73 (D.C. Cir. 2004) ( second alteration in original ) (internal quotation marks and citation omitted). As discussed below , the ALJ’s evaluation easily meets this standard, and Plaintiffs’ arguments reduce to a mere disagreement with the ALJ’s findings of fact , which is not a sufficient basis for this Court to overturn these fi ndings

.

1. The Agency Presented Sufficient Evidence For A Reasonable Factfinder To Hold Plaintiffs Liable On The MMPA And FAD Charges T he high points of the ALJ’s findings of fact are twofold: first, that Plaintiffs ’ five takes of whales between August 21 and December 11, 2010, were not accidental or

non - intentional , and second, that Plaintiffs violated the FAD closure on September 1, 2010, by setting a purse seine net within one nautical mile of a FAD. There is no dispute that, o n each occasion, a fishery observer was on board the Pacific Ranger , as CMM 2008

- 01 required. See CMM 2008

- 0 1 Final Rule , 74 Fed. Reg. at 38545

– 46 ; ( Joint Stipulation of Facts , AR 000 440 ¶ 33). 13 Each observer took contemporaneous

13 Alik Tada was the observer in August. At the time of the ALJ’s hearing, Tada had been a fishery37

notes of the experience in a trip journal and filled out contemporaneous fishery

observer forms. ( See ALJ’s Decision at 10

– 16.) Moreover, during the ALJ’s hearing, each observer testified in a manner consistent with those documents ( s ee id .), and the ALJ expressly fo und that each observer ’s testimony was credible ( s ee id. at 22, 2 4

– 25)

. The undisputed record evidence regarding the observers’ information and testimony is more than enough to sustain the ALJ’s key findings. For example, observer Alik Tada testified tha t while the Pacific Ranger crew was investigat ing a school of fish for a set on August 21 , a whale was “diving in and out around the school” (Transcript, AR 00 1213) , and the ship nevertheless set the net on the area in which the whale was swimming

— the whal e managed to escape before the net closed completely

. ( See i d. 00 1175; ALJ’s Decision at 10, 22.) These recollections were consistent with Tada’s trip journal and the contemporaneous forms he had completed regarding the August 21 trip. ( See, e.g. , Tada’s Trip Diary, AR 001414 (recounting the set in question and noting the school was “associated with a live whale”); Tada’s Gen

- 2 Form, AR 001464 (attesting that he spotted a whale “associated with the school of [fish] swimming and probably feeding” ); T ranscript, AR 00 1178

– 81 ( Tada testifying, inter alia , regarding trip journal and Gen

- 2 form).) Furthermore, d uring the NOAA investigation, Tada informed the agency that, based on his knowledge of purse seine fishing, the whale must have been visible to th e relevant crew members , including the fishing master , before they began the set; he reiterated that assertion at the hearing.

observer for four years and had been on “10 to 16 t rips as an observer on other purse seine vessels” before his trip on the Pacific Ranger . (ALJ’s Decision at 10.) Alfred Siau was present October 18. At the time of the hearing, he had been an observer for four years and had been on nearly forty fishing trips. ( See id. ) Finally, the observer on board on December 11 was Nigel Mamutu, who had been an observer for ten years at the time of the hearing and had in fact been a crew member on a purse seine ship for a year. ( See id. )38

( See Tada’s Written Statement, AR 001482; Transcript, AR 00 1182

– 83; ALJ’s Decision at 22.) Tada’s testimony and contemporaneou s documentation for the August 23 and 25 counts reflected the same sort of narrative : h e saw a whale that, based on his experience and knowledge, he believed the ship’s crew also saw before beginning the purse seine set, and their actions result ed in the w hale being caught in the net

. ( See Transcript, AR 00 118 4 , 001186

– 9 8 (testifying regarding his experiences and reading into the record assertions from his contemporaneous documentation ) ; ALJ’s Decision at 11

– 1 3 .) Similarly, Tada’s trip journal and contemp oraneous forms for the August 31 FAD count comported with his testimony at the hearing : he saw a FAD ten meters away from a school of fish; the ship’s crew must have seen it; and the ship nevertheless set on the school of fish

— in fact, according to Tada, the ship’s crew dragged the raft away before setting on the school. ( See Transcript, AR 00 12 0 0

– 0 9 , 001231 (testifying regarding his observations and reading into the record his contemporaneous documentation) ; ALJ’s Decision at 13

– 14.) Similarly , observer Alfred Siau’s contemporaneous notes , forms, and testimony about the October 18 incident indicate that , during the crew’s investigation phase, he saw a whale that the Pacific Ranger crew must have known was there , and the crew nevertheless began the set, r esulting in the whale being trapped temporarily inside the net. ( See , e.g. , Transcript, AR 00124 6

– 4 7, 00 125 2

– 55 ; Siau’s Trip Diary, AR 001534 (reporting a school “associate [ d with] live whale”); ALJ’s Decision at 14

– 15, 24

– 25.) Finally, regarding the De cember 11 set , Nigel Mamutu , the independent observer who was assigned to the Pacific Ranger on that date, testified that the crew members ,39

and the fishing master in particular , must have been able to see the whale that he saw breaching the surface , but the ship nevertheless set the net around two whales that escaped by ripping through the net. ( See Transcript, AR 00 126 5

– 6 7, 00 1272; Mamutu’s Trip Diary, AR 001604; ALJ’s Decision at 15

– 16 , 25

– 26 .) He reported this incident and subsequent on

- deck dis cussions to NOAA ’s investigators , and confirmed at the hearing that the fishing master had told him (Mamutu) that “it was okay to set [on] the whales [ if t ] he mammals would not be killed” and that “[t]hat was why he set on the whales , then used the work bo at to [ chase them ] to escape.” ( Transcript, AR 00 1277; see also ALJ’s Decision at 26.) Mamutu also reported that the captain had told him that he (the captain) had continually, but unsuccessfully, told the fishing master to stop setting the net on whales

. ( See Transcript, AR 00 1278; ALJ’s Decision at 26.) In one form Mamutu completed

— his end

- of

- trip form

— Mamutu characterized the whales “caught in the net” a s “unintentional” (Mamutu’s Purse Seine Trip Report, AR 001646), and at the hearing , he explained that this meant that the “fish master was trying to make a set” while “trying to avoid the whale, but the whale was finally caught in the net ” ( Transcript, AR 00 1275)

. In that same form, Mamutu stated that “the vessel continue[s] to target whal e associated schools[,]” which “had contributed to [the] vessel’s successes.” ( Mamutu’s Purse Seine Trip Report, AR 001653 .) To counter the agency’s presentation , Plaintiffs presented the Pacific Ranger ’s “log sheets” : documents in which the captain of a vessel reports (via a coding system) the events that happen during a given set. For example, for the set on August 2 1 , 2010, the captain of the Pacific Ranger entered a code of “2,” which indicates “feeding on baitfish,” rather than “6,” which would indi cate the presence of a “live whale.” ( Joint40

Stipulation of Facts, AR 000 441 ¶ 43 .) In none of the log sheet entries at issue here did the captain indicate the presence of a whale or a FAD. ( See id. 000 441

– 43 ¶¶ 43, 49 , 55, 61, 66, 71.) Additionally, Captain Freitas , who was a “respondent” at the time and is a plaintiff in this case, testified at the hearing ( see ALJ’s Decision at 27), and claimed to recall nothing about any whale or FAD contact during the trips ( see id. at 28, 34). Finally, Robert Vi rissimo, the Vice President of Pacific Ranger ’s vessel management company (ALJ’s Decision at 3 & n.4) testified that it is company policy not to set on whales ( see Transcript, AR 001289)

. Neither Captain Moniz nor Fishing Master Su testified. The ALJ rec eived and evaluated all of the testimony and physical evidence presented at the hearing, weigh ed the two versions of events presented against each other, and found that NOAA had shown by a preponderance of the evidence that Plaintiffs had knowingly and int entionally set on whale s , meaning that their takes were neither non

- intentional nor accidental within the meaning of the incidental

- take exception ( see ALJ’s Decision at 27 , 30

– 32 ) , and Plaintiffs had also “set on a FAD or within close proximity to a FAD” ( id. at 35). As mentioned, the ALJ expressly determined that the on - board observers were credible ( see id. at 22, 24

– 25) , and she “dr[e]w reasonable inferences” from the evidence as a whole about the relevant crew members’ “knowledge of the whales prior to the sets” ( i d. at 28

– 29)

. Based upon this Court’s own review of the record evidence , t h e Court has no doubt that the ALJ possessed “the degree [of evidence] which could satisfy a reasonable factfinder” that Plaintiffs’ takes were not non - intentional or accidental , and that they had set their net

on a FAD

. Allentown Mack , 522 U.S. at 377 (emphasis in original) (citation omitted)

.41

And that is all that the highly deferential substantial

- evidence standard of review requires

. See id. ; Orion Reserves Ltd. , 553 F.3d at 704.

2. Plaintiffs Do Not Come Close To Showing That No Reasonable Factfinder Could Have Reached The ALJ’s Conclusions Plaintiffs have attempted to bear the heavy burden of demonstrating that “no reasonable factfinder ” would agree with the ALJ’s findings on the instant record , Orion Reserves Ltd. , 553 F.3d at 704 (internal quotation marks and citation omitted) , but their efforts fall far short in many respects

. First of all, because the ALJ’s findings rest in large part on her conclusio n that the observers were credible and that their stories made

sense , p roper deference means that her credibility evaluation is subject to reversal only if it is “hopelessly incredible, self

- contradictory, or patently unsupportable.” Stephens Media, LLC v . NLRB , 677 F.3d 1241, 1250 (D.C. Cir. 2012) ( internal quotation marks and citation omitted). Plaintiffs (wisely) never actually suggest that the ALJ’s determinations are of that nature. The observers testified consistently with each other and with writt en averments each had previously produced, and their testimony was that the ship’s crew set their nets even though they saw the whales (or the FAD) before beginning the set. ( See Transcript, AR 001183, 001190, 001197, 001208

– 09 (Tada’s testimony); see id. 1255 (Siau’s testimony); see id. 1266 (Mamutu’s testimony). ) T his Court, which is sitting now as an “appellate tribunal[,]” Silver State Land, LLC v. Schneider , 145 F. Supp. 3d 113, 123 (D.D.C. 2015) (internal quotation marks and citation omitted) , has n o intelligible way to second

- guess the ALJ’s impressions of the witnesses’ demeanor

. See Black , 121 F. Supp. 3d at 89. And such impressions are undoubtedly a sufficient basis upon which a “theoretical reasonable factfinder” could conclude that these takes were neither non

- intentional nor accidental and that , indeed,42

the Pacific Ranger crew had set on a FAD. Cumberland Coal Res., L.P. v. Fed. Mine Safety & Health Review Comm’n , 717 F.3d 1020, 1028 (D.C. Cir. 2013) (internal quotation marks omitted) (q uoting Sec’y of Labor v. Keystone Coal Mining Corp. , 151 F.3d 1096, 1104 (D.C. Cir. 1998)). Plaintiffs’ rejoinder to all this is nonsensical

. For example, t he y claim that the ALJ’s conclusions fail the substantial

- evidence test because the ALJ (allegedly) rested her decision on the lack of credibility of Plaintiffs ’ witnesses , due to the fact that they did not have contemporaneous records supporting their testimony. ( See Pls.’ Mem. at 27 (complaining that “ the ALJ based her conclusions about the captains’ [sic] credibility on generalized assumptions about the lack of contemporaneous records”); see also id. at 26 ( asserting that the agency “failed to present any substantial evidence impeaching Plaintiffs[’] witnesses”).) This argument is baffling because, as far as this Court can tell, the ALJ said nothing of the sort. That is, f ar from finding Plaintiffs’ witnesses mendacious, the ALJ expressly stated that Plaintiffs’ witnesses “did not seem insincere[,]” but that their testimony “[could not] overcome the strength of the three different independent observers’ consistent testimony and records[.]” (ALJ’s Decision at 29 ; see also, e.g. , id. at 24 (“Mr. Tada’s immediately contemporaneous notations in the forms and in his journal, his credible testimony and re freshed recollections at [the] hearing, his timely Purse Seine Trip Report reflections, and his written statement months later to the NOAA . . . together are sufficient evidence that [Plaintiffs knowingly set on a whale in the August counts].”); id. at 25

– 27 (same point for the October and December counts); id. at 35

– 36 (FAD count) .) It misses the point to attack the ALJ’s decision on the grounds that the agency did not “impeach[]” Plaintiffs’43

witnesses (Pls.’ Mem. at 26) , when the ALJ never purported to draw that sort of negative inference about Plaintiffs’ witness testimony , and instead merely commented positively about the contemporaneous records that backed the observers’ testimony (which is, by the way, precisely what one would expe ct a careful judge to do when evaluating such evidence)

. In short, t he ALJ simply found that the evidence Plaintiffs presented did not outweigh the evidence NOAA offered . A nd that conclusion did not require the ALJ to think (purportedly erroneously) that Plaintiffs’ witnesses were lying ; i t only required her to weigh the evidence presented, which she undoubtedly did. Plaintiffs’ contention s about the ALJ’s consideration of evidence are also logically incoherent on their own terms. Plaintiffs’ point seems to be that the ALJ acted unfairly , insofar as she found Plaintiffs’ witnesses unbelievable due to their lack of s ufficient contemporaneous evidence, because Plaintiffs were not “ required ” to keep such notes and records , and thus had little opportunity to amass the kinds of contemporaneous evidence that the observers had . ( Id. at 28.) Plaintiffs do not make an attempt to explain why, e ven if true , Plaintiffs’ purportedly unavoidable failure to document their purse seine sets suff iciently make s the ALJ’s decision defective. It appears that Plaintiffs would have this Court hold it is improper for a judge to weigh the evidence that is actually presented because there might have been documentary evidence that a more equitable documen tation system could have permitted Plaintiffs to unearth and retain

. Plaintiffs offer no authority for that implicit assertion , whic h is not surprising, because this Court cannot fathom a case in which such a parallel universe of potentialities would be d eemed to diminish the judge’s authority to evaluate the evidence that the parties do discover and present

.44

With respect to Plaintiffs’ related suggestion that they would have had more contemporaneous evidence had NOAA not violated a Commission measure th at purportedly gives vessel operators and captains a right to “[t]imely notification from the observer . . . on completion of the observer’s trip of any comments regarding the vessel operations[,]” as well as the right to “ review and comment on the observe r’s report, and . . . the right to include additional information deemed relevant or a personal statement” (Pls.’ Mem. at 29 (quoting CMM 2007

- 01, AR 001039)) , this Court notes that Plaintiffs never raised this argument before the ALJ, and thus, this Court will not consid er it. See Tindal v. McHugh , 945 F. Supp. 2d 111, 129 (D.D.C. 2013) (“[T]he D.C. Circuit has consistently held that courts are bound to adhere to the hard and fast rule of administrative law, rooted in simple fairness, that issues not raised before an agency are waived and will not be considered by a court on review.” (internal quotation marks omitted) (quoting Coburn v. McHugh , 679 F.3d 924, 929 (D.C. Cir. 2012 ) ) )

. Notably, the waiver “principle applies to legal, as well as factual, a rguments [,] ” id. at 129 (citation omitted) , and it is demanding: “the standard for waiver in administrative law cases focuses on whether the ‘specific argument’ put forth by the plaintiff was raised before the agency [,] ” id. at 129

– 30 (quoting Koretoff v. Vilsack , 707 F.3d 394, 398 (D.C. Cir. 2013) )

. The waiver rule is also well founded, and the reasons for its adoption are fully applicable here. See Salt Lake Cmty. Action Program, Inc. v. Shalala , 11 F.3d 1084, 1087 (D.C. Cir. 1993) (observing that the “ principal policy underlying the waiver rule is that ‘judicial review might be hindered by the failure of the litigant to allow the agency to make a factual record, exercise its discretion, or apply its expertise.’” (quoting R.R. Yardmasters of Am. v. Harri s , 721 F.2d 1332, 133845

(D.C. Cir. 1983 ) )); see also Mingo Logan Coal Co. v. EPA , No. 14

- 5305, 2016 WL 3902663, at *6 (D.C. Cir. July 19, 2016) (explaining that administrative waiver means that “courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice” (internal quotation marks omitted) (quoting United States v. L.A. Tucker Truck Lines, Inc. , 344 U.S. 33, 37 (1952)) ). Finally, t o th e extent that Plaintiffs seek to undermine the ALJ’s findings by rely ing on Mamutu’s statement that catching the two whales in December was “unintentional” and that the fishing master was “trying to avoid” the whales ( see Pls.’ Mem. at 37 (referencing Tran script, AR 001275) ), the ir efforts are unavailing

. Properly understood, Mamutu’s testimony was that the ship’s crew saw the whales among the fish but nevertheless conducted the set ( see Transcript, AR 001272, 001275

– 76) , and thus his testimony supports , rather than rebuts, the ALJ’s conclusion that Plaintiffs should be liable. Moreover, and even more important, Mamutu’s statement is hardly the final word : i t is at most one piece of evidence , and even if Plaintiffs are correct that disparate conclusions can be drawn from it, t he ALJ was certainly permitted to draw the conclusion she reached in light of the rest of Mamutu’s documentation and testimony , and the testimony and evidence presented from all of the observers regarding the Pacific Ranger ’s patter n of conduct. See Siegel v. SEC , 592 F.3d 147, 155 (D.C. Cir. 2010) (“The reviewing court may not substitute its own judgment for the agency’s choice between two fairly conflicting views, even if that court would justifiably have made a different choice h ad the matter been before it de novo .” (internal quotation marks and citation omitted)).46

And therein lies the fundamental problem with Plaintiffs’ painstaking march through the evidence pertaining to every MMPA count (and the one FAD count) and their high lighting of the points that favor them: Plaintiffs’ characterizations of the evidence might be excellent arguments to make to the ALJ, but the ALJ rejected Plaintiffs’ contentions, and in this forum, Plaintiffs are simply asking the Court to engage in impe rmissible rebalancing of the evidence

. See, e.g. , Orion Reserves Ltd. , 553 F.3d at 704. The Court has already explained why a reasonable factfinder considering the evidence presented could have deemed these Plaintiffs’ actions to violate the MMPA in a ma nner that was outside the safe harbor, and nothing Plaintiffs offer undermines that point. Indeed, with respect to the FAD count, it is telling that Plaintiffs themselves admit that “the agency’s evidence was no more persuasive than Plaintiffs[’ evidence] ” ( Pls.’ Mem. at 40) , which means, of course, that the ALJ merely f ound one of the parties’ evidence

- backed stories more convincing than the other

. When such is the case, it is clear beyond cavil that a reviewing court cannot find that an ALJ committed r eversible error. See Siegel , 592 F.3d at 155; Throckmorton , 963 F.2d at 444 (observing that the judicial “function is to determine only whether the
agency . . . could fairly and reasonably find the facts as it did” (alteration in original) (internal quota tion marks and citation omitted)). C. The Penalties Imposed Were Sufficiently Explained And Were Not Unconstitutionally Excessive Plaintiffs’ final line of attack is aimed at the penalties that the ALJ imposed for their MMPA and FAD

- closure violations. Plain tiffs insist that the penalty amounts

— $72,000 for the FAD violation and $55,000 total for the five MMPA violations

— “are both (1) arbitrary and capricious, and (2) unconstitutionally excessive[,]” primarily47

“[b]ecause the evidence on which the penalties ass essed by the ALJ are based [was] evidence that does not support a penalty[.]” (Pls.’ Mem. at 40.) To the extent that this argument rehashes the previously considered (and rejected) contentions that Plaintiffs should not be held liable at all, or that the re was insufficient evidence to support the ALJ’s decision, it necessarily fails. But Plaintiffs’ objection to the penalty amounts is overruled for other reasons as well. First, with respect to the charge that the penalties are arbitrary and capricious , t he penalties must be upheld if the ALJ “articulat e [d] a satisfactory explanation for [her] action including a rational connection between the facts found and the choice made.” FirstEnergy Serv. Co. v. FERC , 758 F.3d 346, 352 (D.C. Cir. 2014) (first altera tion in original) (internal quotation marks and citations omitted); see also Collins , 736 F.3d at 524. The ALJ clearly did so, beginning with her recognition that the NOAA regulations and the Magnuson

- Stevens Act each provide s a list of non

- exclusive fact ors to guide her assessment of the appropriate penalty. ( See ALJ’s Decision at 36 ); see also 15 C.F.R. § 904.108(a) (listing factors such as “the nature, circumstances, extent, and gravity of the alleged violation[,] the respondent’s degree of culpability , any history of prior violations, and ability to pay” as considerations when a penalty is assessed); see also 16 U.S.C. § 1858(a) (same). Plaintiffs appear to find fault with the ALJ’s purported failure to consider a number of circumstances that she coul d have relied upon to reach a more lenient result ( see, e.g. , Pls.’ Mem. at 42

– 44 (asserting that the maximum penalty for the MMPA violations should not have been imposed, due to the “realities of purse seine fishing[,]” the purportedly “low” value of the catch, the fact that the penalty imposed on someone who killed a whale could go no higher than the48

$11,000 penalty per violation imposed on them for what Plaintiffs say is less culpable behavior, and the “relatively small” amount of fish obtained from the FAD set )). But the ALJ considered those matters ( see, e.g. , ALJ’s Decision at 38, 41) , and nevertheless concluded that they were insufficient to warrant a lesser penalty under the circumstances presented , which is the hallmark of reasoned decisionmaking

. What is more, the ALJ’s opinion explains the penalty decision at length. For example, the ALJ observ es that the whales Plaintiffs took were physically restrained in purse seine nets and were in fact sometimes “chased from the net . . . resulting in furthe r harassment.” ( Id. at 38

. ) Moreover, the ALJ explicitly mentions the “[e]conomic benefit” that Plaintiffs had obtained from their actions and the need for future deterrence, noting in particular that even the maximum $11,000 penalty for each count would leave Plaintiffs with a net gain of over $31,000 from their illegal behavior. ( Id. ) She concludes that t he MMPA penalties had to be sufficient to ensure that these parties, and others, would not treat illegal behavior “as a cost of doing business[.]” ( Id. at 39 (internal quotation marks omitted). ) 14 And o n the FAD front, she notes that, because CMM 2008

- 01 only lasted three years, “each violation . . . has the potential to significantly undermine” the treaty , and that Plaintiffs gained a competitive adv antage by breaking the rules and obtain ing tuna worth $36,000 from that set . ( Id. at 42.) The ALJ also emphasizes the egregious nature of the violation, pointing out that Plaintiffs set on a school only ten meters from a FAD, when the regulation barred se tting on schools within 1852 meters of a FAD. ( See i d. ) Plaintiffs have not demonstrated that the APA requires anything more than these sorts of careful explanations.

14 She did not, as Plaintiff s contend, accuse them of having acted thusly on this occasion ( see Pls.’ Mem. at 42), but only pointed out that penalties must help dissuade Plaintiffs and others from doing so.49

Nor can Plaintiffs contend that the penalties imposed here are “unconstitutionally excessive.” (Pls.’ Mem. at 40.) “ A civil penalty violates the Excessive Fines Clause [of the Eighth Amendment] if it ‘is grossly disproportional to the gravity of’ the offense.” Collins , 736 F.3d at 526 (quoting Bajakajian , 524 U.S. at 334). As the Supreme Court has said, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature[,]” Bajakajian , 524 U.S. at 336 (citation omitted) , and it is doubtful that a penalty that is nearly $ 70 ,000 less than the total maximum penalty authorized by law could ever be grossly disproportional to the offense’s gravity. See Pharaon v. Bd. of Governors of Fed. Reserve Sys. , 135 F.3d 148, 157 (D.C. Cir. 1998) (rejecting Excessive Fines argument because “th e penalty is proportional to [the] violation and well below the statutory maximum”); c f. United States v. Sepulveda

- Hernandez , 7 52 F.3d 22, 37 (1st Cir. 2014) (“When the [penalty] is less than the maximum authorized fine, [one] who purposes to challenge it s constitutionality faces an especially steep uphill climb.” (citation omitted)); United States v. Mackby , 221 F. Supp. 2d 1106, 1110 (N.D. Cal. 2002) (observing that “federal courts have consistently found that civil penalty awards in which the amount of the award is less than the statutory maximum do not run afoul of the Excessive Fines Clause” and collecting cases). In any event, for all the reasons that the ALJ ably elucidated , these fines clearly “bear some relationship to the gravity of the offense[ s] that [they were] designed to punish.” Bajakajian , 524 U.S. at 33 4 (citation omitted)

. Consequently , Plaintiffs’ claim that this Court should vacate or reduce these penalty assessments must be rejected

.50

IV. CONCLUSION When Congress enacted the MMPA, it sought to grant marine mammals pride of place in the world of commercial fishing. The resulting strict

- liability statute prohibits “takes” (broadly defined) in order to place the onus on fishermen to adjust their behavio r when they encounter protected species, and the incidental

- take definition in 50 C.F.R. § 229.2 clearly implements this goal in a way that excuses only truly blameless (accidental) takings, not takings that are knowing and deliberate. Plaintiffs offer a reading of the regulation that, contrary to its plain text and broad context, would neuter the take moratorium by placing fishing interests above the wellbeing of whales, and they appear to have pursued this course largely based on their own misconception regarding the scope of the protection afforded to them by the incidental

- take authorization that NOAA has issued. But the ALJ rightly understood that the incidental

- take exception excuses only those takes of marine mammals that are accidental or non

- inten tional, and based on the evidence presented to her during the administrative proceedings, the ALJ reasonably determined that Plaintiffs’ knowing and intentional (i.e., deliberate) takes of whales did not meet this standard. This Court concludes that the r ecord evidence easily supports this finding, as well as the ALJ’s additional conclusion that the crew of the Pacific Ranger set the purse seine net on or near a FAD, and this is especially so when the Court applies the highly deferential standard of review to its evaluation of the ALJ’s findings of fact. And Plaintiffs have also failed to establish that there is any factual or legal basis for this Court to overturn the penalties as arbitrary or excessive.51

Therefore, as set forth in the order accompanying this opinion, Plaintiffs’ motion for summary judgment is DENIED , Defendants’ motion for summary judgment is GRANTED , and JUDGMENT WILL BE ENTERED IN DEFENDANT S’ FAVOR

.

DATE: September 30, 2016 

## Ketanji Brown Jackson KETANJI BRO WN JACKSON United States District Judg e