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EARTH ISLAND INSTITUTE v. EVANS

August 9, 2004.

EARTH ISLAND INSTITUTE, et al., Plaintiffs,
v.
DONALD EVANS, et al., Defendants.



The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On December 31, 2002, the Secretary of Commerce made a "final finding" that the "intentional deployment on or encirclement of dolphins with purse seine nets is not having a significant adverse effect on any depleted dolphin stock in the Eastern Tropical Pacific ocean." 68 Fed. Reg. 2010, 2011 (Jan. 15, 2003). Several organizations, including the Earth Island Institute, the Humane Society of the United States, and the Oceanic Society (collectively "Plaintiffs") challenge the validity of this finding under the Administrative Procedures Act, 5 U.S.C. § 706(2).

This matter came before the Court on May 24, 2004, on simultaneous cross-motions for summary judgment. Having carefully considered the extensive briefing submitted by the parties and amicus, the voluminous administrative record, as well as the parties' oral presentations, the Court concludes that Plaintiffs have met their burden of demonstrating that they are entitled to judgment as a matter of law. Accordingly, the final finding of the Secretary shall be set aside for the reasons set forth below. I. BACKGROUND

  For reasons that are not well understood, yellowfin tuna tend to congregate under schools of dolphins in the Eastern Tropical Pacific Ocean ("ETP"), which extends from the Southern California coast to South America. Beginning in the 1950s, fishermen started chasing and encircling dolphins with large purse seine nets in order to catch the nearby tuna. As a result of this process — referred to as setting on dolphins — millions of dolphins have died in the nets, mostly between 1959 and 1972.

  This motion represents but the latest chapter in a lengthy history of disputes over Congressional efforts to protect dolphins in the ETP. The Court will not attempt to fully repeat this history here, as it is chronicled in previous decisions. See, e.g., Brower v. Daley (Brower I), 93 F. Supp.2d 1071, 1073 (N.D. Cal. 2000), aff'd, Brower v. Evans (Brower II), 257 F.3d 1058 (9th Cir. 2001); Earth Island Inst. ("EII") v. Brown, 865 F. Supp. 1364 (N.D. Cal. 1994); EII v. Mosbacher, 746 F. Supp. 964 (N.D. Cal. 1990). The Court will, however, attempt to provide sufficient background to place the instant dispute in context.

  A. Adoption of the International Dolphin Consumer Information Act ("DPCIA")

  Public outcry over the high number of dolphin deaths led Congress to pass the Marine Mammal Protection Act ("MMPA") in 1972, which, among other things, is designed to protect dolphins in the ETP. Brower II, 257 F.3d at 1060. Pursuant to the MMPA, three dolphin stocks in the ETP were found to be "depleted": (1) the Northeastern offshore spotted dolphin, (2) the Eastern Spinner dolphin, and (3) the Coastal dolphin. Id. at 1061.*fn1 Congress repeatedly strengthened the MMPA in 1984, 1988, and 1992, to "ban importation of tuna that failed to meet certain conditions regarding dolphin mortality." Id. Then, in 1990, Congress passed the Dolphin Protection Consumer Information Act ("DPCIA"), 16 U.S.C. § 1385, the statute at issue in this case. This Act further aimed to protect dolphins in the ETP through the use of information disclosure. Specifically, the Act provided that tuna fish for sale in the United States could only display the label "dolphin safe" if the tuna was not caught using purse seine nets intentionally deployed on or to encircle dolphins. Id. at § 1375(d).

  B. Formation of the International Dolphin Conservation Program ("IDCP")

  The DCPIA "caused the loss of a large market for those countries that continued to set on ETP dolphins with purse seine nets." Brower II, 257 F.3d at 1061. In response, the United States, along with various Central and South American countries that use purse seine fishing vessels in the ETP agreed in 1992 to a voluntary International Dolphin Conservation Program ("IDCP"). "Nations participating in the IDCP agreed to maintain dolphin kill levels at or below a `dolphin mortality limit' assigned to each vessel, and to work toward reducing dolphin mortality to levels approaching zero.'" Brower I, 93 F. Supp.2d at 1074. In 1995, the IDCP was formalized into a binding declaration, referred to as the Panama Declaration. Signatories to the Declaration include, among others, the United States, Mexico, Ecuador, and Venezuela. Id.*fn2

  C. Adoption of the International Dolphin Conservation Program Act ("IDCPA")

  As part of the Panama Declaration, the Administration agreed to seek changes in United States laws that would ease embargoes and improve market access for ETP tuna fish, including a relaxation of the dolphin safe label standard. Id. Specifically, the Panama Declaration sought legislation that would have immediately allowed any tuna caught with purse seine nets to be labeled dolphin safe so long as "no dolphins were observed to be killed or seriously injured during the set." Brower I, 93 F. Supp.2d at 1075. By this time, reported dolphin mortality had dropped dramatically from a high of 423,678 deaths per year in 1972 to 3,716 per year in 1993 and continued to decline, due to a variety of factors, including protective legislation, embargoes, and voluntary efforts by nations fishing in the ETP to improve purse seine fishing techniques.

  In response to the Panama Declaration, Congress enacted the International Dolphin Conservation Program Act ("IDCPA") in 1997. The IDCPA implemented a number of the goals of the Panama Declaration relating to embargoes and access to the United States market. Id. at 1074. The Act did not, however, embrace the Panama Declaration's call for an immediate weakening of the "dolphin-safe" standard. Congress remained concerned that even if no dolphins were observed to have been killed or seriously injured during a set — and notwithstanding the overall low reported mortality in recent years — that the stress suffered by dolphins from repeated year-round chase and encirclement practices would impede their ability to recover. Brower II, 257 F.3d at 1061; Brower I, 93 F. Supp.2d at 1075. Accordingly, Congress rejected the Panama Declaration on this point and instead adopted a compromise which provided that any change from the existing standard to the less protective standard called for by the Panama Declaration would turn on the scientific question of "whether the intentional deployment on or encirclement of dolphins with purse seine nets is having a significant adverse impact on any depleted dolphin stock in the [ETP]." 16 U.S.C. § 1385 (g). Congress further directed that certain scientific research be undertaken relevant to answering this question.

  In particular, Congress mandated that the Secretary of Commerce take the following actions. First, the Secretary was required, in consultation with the Marine Mammal Commission ("MMC") and the Inter-American Tropical Tuna Commission ("IATTC") to commence, by October 1, 1997(1) population abundance studies, and (2) three different specified stress studies designed to address the question of whether encirclement with purse seine nets is having a significant adverse impact on any depleted dolphin stock in the ETP. 16 U.S.C. § 1414a(a)(1)-(3). Second, the Secretary was required to make, by March 31, 1999, an initial finding, as to whether the use of purse seine nets is having a significant adverse impact on any depleted dolphin stock in the ETP. 16 U.S.C. § 1385 (g)(1)-(2). By December 31, 2002, the Secretary was to make a final finding with respect to this same question:
Between July 1, 2001, and December 31, 2002, the Secretary shall, on the basis of the completed study conducted under section 1414a(a) of this title, information obtained under the International Dolphin Conservation Program, and any other relevant information, make a finding regarding whether the intentional deployment on or encirclement of dolphins with purse seine nets is having a significant adverse impact on any depleted dolphin stock in the eastern tropical Pacific Ocean. The finding shall be published immediately in the Federal Register and shall become effective upon a subsequent date determined by the Secretary.
16 U.S.C. § 1385(g)(2). D. The Initial Finding
  On May 7, 1999, the Secretary issued his initial finding under the IDCPA that "there is insufficient evidence that chase and encirclement by the tuna purse seine fishery `is having a significant adverse impact' on depleted dolphins stocks in the ETP." Brower II, 257 F.3d at 1064 (citation omitted) (emphasis added). Based on this finding, the Secretary initiated a change in the dolphin-safe standard pursuant to the IDCPA. Id. On April 11, 2000, this Court set aside the Secretary's initial finding under the APA, 5 U.S.C. § 706(2), on the grounds that the finding was an abuse of discretion and not in accordance with the law. The Secretary had violated Congressional intent, this Court found, by failing to undertake the mandated stress studies and then relying on "insufficient evidence" to justify his finding. Such a result was particularly troubling, the Court concluded, given that the evidence that was available all pointed toward significant adverse impacts:
[I]t would flout the statutory scheme to permit the Secretary to fail to conduct mandated research, and then invoke a lack of evidence as a justification for removing a form of protection for a depleted species, particularly given that the evidence presently available to the Secretary is all suggestive of a significant adverse impact.
Brower I, 93 F. Supp.2d at 1089. The Ninth Circuit subsequently affirmed, finding that the Secretary was required to affirmatively find that the fishery either was or was not having a significant adverse impact, and could not rely on "insufficient evidence" to default to a finding of no significant adverse impact. Brower II, 257 F.3d at 1066-67. Such an approach, it reasoned, would discourage proactive fact-finding and research:
For example, the Secretary could deliberately drag his feet in commencing studies or while conducting studies and then conclude there was insufficient evidence to warrant finding a significant adverse impact on the ETP dolphin stocks. Similarly, the Secretary could limit the studies' breadth and then discover that there was insufficient evidence to warrant finding a significant adverse impact on the ETP dolphin stocks.
Id. at 1067. The Ninth Circuit further found that the Secretary had failed without justification to obtain and consider preliminary data from any of the mandated stress research projects, and that all of the available evidence indicated that dolphins were adversely impacted by the fishery. Id. at 1068-71. Accordingly, the Secretary had acted contrary to law and abused his discretion in making the initial finding. Id. at 1071.

  E. The Final Finding

  In preparation for the final finding, the Department of Commerce's National Oceanic and Atmospheric Administration ("NOAA") Fisheries, also referred to as the National Marine Fisheries Services ("NMFS"), expanded its dolphin research program through its Southwest Fisheries Science Center in La Jolla, California. AR 861 at 5519-20. The program, which was developed in consultation with the MMC and the IATTC, underwent extensive peer review through the Center of Independent Experts, and resulted in "a substantial body of information" including:
dolphin abundance data, fishery mortality estimates, a review of scientific literature on stress in marine mammals, results from a necropsy study of dolphins killed in the fishery, a review of historical demographic and biological data related to dolphins involved in the fishery, results from an experiment involving the repeated chasing and capturing of dolphins, and information regarding variability in the biological and physical features of the ETP ecosystem over time.
AR 861 at 5518, 5520. This effort culminated in NOAA's peer reviewed, September 17, 2002 "Report of the Scientific Research Program under the International Dolphin Conservation Program Act" (hereafter "Final Science Report" or "FSR"). AR 861.

  In September 2002, NOAA also convened two expert panels: the Ecosystem Expert Panel (which examined whether changes to the ecosystem could be affecting dolphin populations in the ETP), and the Indirect Effects Panel (which examined whether stress or other indirect effects of the fishery could be affecting dolphin populations in the ETP). Panelists were nominated by the public, with the help of scientific and professional societies and were selected by a committee which included representatives from NOAA, the IATTC, the MMC, and an independent scientific body. AR 939 at 6034; AR 856. The five panelists on each panel were asked to provide individual comments based on peer-reviewed scientific information in the field and their own expertise. Id. In addition to the Final Science Report and the expert panelist opinions, the MMC and the IATTC also provided comments to the Secretary, as did members of the public.*fn3

  To further assist the Secretary in making the final finding, he adopted, after public comment, a formal decision-making framework referred to as the "Organized Decision Process" ("ODP"). 67 Fed. Reg. 54633 (Aug. 23, 2002); AR 817. The ODP directed the Secretary to consider and address four separate questions in making his final finding: (1) Ecosystem Question, (2) Direct Mortality Question, (3) Indirect Effects Question, and (4) Growth Rate Question. AR 817 at 5322-23. On December 31, 2002, the Secretary addressed these four questions and made his final finding, through his designee, Dr. William T. Hogarth, NOAA Assistant Administrator for Fisheries, that "the intentional deployment on or encirclement of dolphins with purse seine nets is not having a significant adverse effect on any depleted dolphin stock in the ETP." AR 939 at 6032. As a result of this final finding, the Secretary re-defined the term dolphin safe pursuant to the IDCPA. Whereas, previously, tuna caught using purse seine nets could not be labeled dolphin safe, now such tuna would be labeled dolphin safe so long as no dolphins were reported to have been "killed or seriously injured in the set in which the tuna was harvested." Id.; 16 U.S.C. § 1385(h)(1).

  II. PROCEDURAL HISTORY

  On December 31, 2002, Plaintiffs filed the instant complaint challenging the Secretary's final finding under the APA. The Secretary stipulated to a stay of his final finding pending the Court's consideration of Plaintiffs' motion for preliminary injunction. On April 10, 2003, the Court preliminarily enjoined the Secretary from changing the dolphin safe standard, finding, inter alia, that Plaintiffs had shown a likelihood of success on the merits. In particular, the Court observed certain "striking parallels" between the initial finding and the final finding with respect to the state of the scientific evidence:
As was the case in 1999, the best available evidence before the Secretary, while not conclusive, is `all suggestive of a significant adverse impact.' Brower I, 93 F. Supp.2d at 1089. And again, the Secretary's rationale for declining to find a significant adverse impact is largely based on the absence of more conclusive evidence regarding the stress and other effects of the purse seine fishery — although conclusive evidence is not required. Brower, 257 F.3d at 1070-71. Finally, there is again a serious question as to whether the Secretary can justify the lack of progress on the mandated research. . . .
EII, 256 F. Supp.2d at 1074. A similar disturbing parallel was found with respect to the injection of international trade politics into the decision-making process. Id. at 1069. When the Court set aside the Secretary's initial finding in 2000, the Court expressed its concern that the Secretary was more attentive to trade policy interests than the scientific data:
In urging affirmance of the Secretary, defendants repeatedly emphasize that the Court should sustain the Secretary's action because Congress, in enacting the IDCPA, chose to embrace and implement the Panama Declaration and thus change course from its previous approach to dolphin conservation, which featured embargoes and strict import restrictions. Changing the dolphin-safe label standard, the Secretary argues, is part of Congress' new approach and should not be impeded. Defendants, however, overstate the matter. While Congress certainly embraced most of the Panama Declaration . . . when it came to the issue of the dolphin safe label . . . Congress ultimately rejected [the Panama Declaration] approach and instead unanimously decided that, despite the low observed mortality rates, the decision whether to change the label standard should await scientific data from mandated studies. . . . It is to this Congressional compromise that the Secretary must be held.
Brower I, 93 F. Supp.2d at 1089; see also Brower II, 257 F.3d at 1066 (rejecting Secretary's "international concerns" and "policy" arguments because such issues can not override Congress' intent as reflected in the IDCPA). In April 2003, the Court noted that the Secretary had "wisely refrained . . . from expressly invoking trade policy concerns as grounds for affirming his final finding," but that Plaintiffs had nonetheless raised a serious question as to whether the Secretary's final finding was influenced by international trade policy considerations, thus compromising the integrity of the decision-making process. EII, 256 F. Supp.2d at 1069-71. On June 2, 2003, the Secretary filed the massive Administrative Record in this case which consists of thousands of pages. The Secretary, however, asserted that a number of documents in the record were protected by privilege. Plaintiffs subsequently challenged the assertions of privilege, as well as the completeness of the record. As a result of these discovery proceedings, the Secretary amended and supplemented the record at various points.*fn4 Thus, the administrative record was not fully completed until June 2004.

  As discussed below, the Administrative Record provides compelling corroboration of this Court's preliminary observations in its ruling on Plaintiffs' Motion for Preliminary Injunction. It reflects an agency that (1) continued to drag its feet on conducting critical mandated research, (2) continued to ignore the fact that the best scientific evidence that was available, while not conclusive, pointed toward the fishery as the cause of the dolphins' failure to recover as expected, and (3) compromised the integrity of its finding by allowing trade policy considerations to infect the decision-making process. III. LEGAL STANDARD

  Under the APA, the Court reviews the Secretary's final finding, in light of the administrative record, to determine whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir. 1991) (limiting review to administrative record). This is a narrow inquiry, and the Court should not substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). Nonetheless, the Court is obliged to ensure that its inquiry, while narrow, is "searching and careful." Brower II, 257 F.3d at 1065. Thus, while deference to agency decisions involving scientific expertise is appropriate, such deference is not "unlimited." Id. at 1067; Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679 (D.D.C. 1997). "The presumption of agency expertise may be rebutted if its decisions, even though based on scientific expertise, are not reasoned." Brower I, 93 F. Supp.2d at 1083 (citation omitted). "Nor may the agency disregard Congressional intent." Id. (citation omitted). Accordingly, agency action may be found arbitrary and capricious if: (1) the agency has relied on facts which Congress has not intended it to consider, (2) entirely failed to consider an important aspect of the problem, or (3) offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Brower II, 257 F.3d at 1065 (citation omitted).

  IV. DISCUSSION

  A. The Statutorily Mandated Research

  In Brower I, this Court emphasized the importance of the Congressionally mandated stress research:
Congress was particularly concerned about the potential adverse stress effects from repeated chase and encirclement. . . . Importantly, Congress rejected language that would have immediately changed the label to allow tuna caught with purse seine nets to be labeled dolphin safe . . . and instead kept the purse seine net restriction in place precisely so that the stress effects could be investigated and considered before any change in the label standard.
93 F. Supp.2d at 1083 (emphasis added). To this end, Congress required, through "mandatory and direct" language that the Secretary carry out, inter alia, three stress studies that included (1) a three-year series of necropsy*fn5 samples from dolphins obtained by commercial vessels, (2) a one-year review of relevant historical demographic and biological data, and (3) an experiment involving the repeated chasing and capturing of dolphins by means of intentional encirclement (referred to as the "chase and encirclement stress study" or CHESS). Id. at 1084; Brower II, 257 F.3d at 1069-70; 16 U.S.C. § 1414a. Nonetheless, as of his initial finding on April 29, 1999, the Secretary had failed to heed Congress' mandate to promptly undertake the prescribed stress studies. Brower I, 93 F. Supp.2d at 1073, 1083-87. Instead the Secretary "unreasonably delayed" the stress studies and demonstrated no "valid excuse" for the agency's failure to comply with Congress' directives. Brower II, 257 F.3d at 1070.

  The prior decisions in this matter also highlighted the critical significance of this failure. As this Court pointed out in 2000, "[t]he missing evidence that prevented firmer conclusions. . . . on the central issue of stress, and thus the ultimate issue of significant adverse impact, was the actual physiological data from dolphins in the ETP that NMFS was to obtain from the [mandated stress studies]." Brower I, 93 F. Supp.2d at 1087. The Ninth Circuit also underscored the importance of completing the mandated research when it expressly warned the Secretary that he could not fail to comply with the required research and then invoke a "lack of stress-related information to trigger a change" in the dolphin-safe label standard. "This puts the cart before the horse. The agency was required by law to conduct stress research as a prerequisite to its decision making." Brower II, 257 F.3d at 1070 (emphasis in original); see also id. at 1067 (expressly warning the Secretary that he could not "drag his feet in commencing [the stress] studies or while conducting studies" or "limit the studies' breadth" and then rely upon "insufficient evidence" to support a finding of no significant adverse impact). Even the Secretary admitted, in 1999, that "`[m]ore scientific research [was] necessary to better evaluate the effect of the tuna purse seine fishery on depleted dolphins stocks in the ETP,'" Brower I, 93 F. Supp.2d at 1087 (citation omitted), and that the answer to questions regarding physiological evidence of stress would probably come from "`the completion of the necropsy sampling program.'" 257 F.3d at 1063 (citation omitted).

  Incredibly, however, and notwithstanding all of the above, the Secretary persisted in his pattern of failing to diligently pursue two out of the three mandated stress studies: the necropsy study and the CHESS study. Indeed, as discussed below, the Secretary effectively concedes that so little was accomplished with respect to these two studies that they were rendered meaningless.

  (1) Necropsy study

  The necropsy study involved placing trained necropsy technicians on board commercial tuna vessels to collect tissue samples from dolphins killed in the ETP. Id. It is undisputed that the NMFS determined that the minimum number of necropsies that would be required to "allow scientifically valid extrapolation to the sampled population of ETP dolphins" was 300 necropsies per stock or 600 total. AR 861 (FSR) at 5573; March 10, 2003 Hogarth Decl. ¶ 18(c) ("NOAA fisheries scientists had earlier determined that a minimum sample size of 300 per dolphin stock was statistically necessary to reliably detect potentially rare effects and to allow scientifically valid extrapolation to the populations of dolphins"). Yet, by the time of the final finding in December 2002 — over five years after enactment of the IDCPA — the Secretary had managed only to necropsy a grand total of 56 dolphins — less than 10 percent of the minimum number needed. As the Final Science Report makes clear, these sample sizes were too small to be useful. "Sample sizes for both the necropsy program and the [CHESS] field studies were insufficient to estimate potential population-level impact or to determine whether population recovery of the depleted stocks may be delayed by these effects." AR (FSR) 861 at 5511; AR 989 at 6037. The Secretary, through his designee, has also conceded that this small sample size was "not sufficient to produce meaningful and reliable scientific insights." March 10, 2003 Hogarth Decl. ¶ 18(c) (emphasis added). Indeed, the Secretary prominently relied on this fact in making his final finding:
[T]hese data [from the stress research] are insufficient to quantify potential population-level impacts or determine whether population recovery might be delayed, because sample sizes were small . . . For example, in implementing a specifically mandated necropsy program that was conducted between 1998 and 2000, it was possible to obtain samples from only 56 dolphins, a number that is insufficient to make population-level inference.
. . . . In sum the available information on indirect effects . . is limited, and therefore bars population-level inferences of the effects of stress on dolphin stocks. Additional research is necessary. . . . Accordingly, the best available information . . . indicates that indirect effects . . . are not impacting dolphins to a degree that would risk or appreciably delay recovery.
AR 939 at 6037. It thus appears plain that Defendants yet again failed to carry out the mandated necropsy stress study.
  The Government, however, advances the Orwellian argument that it in fact "completed" the necropsy study. Defs.' Opp'n at 14. Apparently, the Secretary contends that so long as he has undertaken any necropsies he has discharged his statutory obligation to complete the necropsy study because "the statute did not impose any sample size requirements, leaving the scientific methodology to NOAA's discretion." Id. at 16. As this Court previously held, however, the Secretary does not have unbridled discretion to simply decree a study "complete" that he has barely begun:
While the Secretary clearly has discretion in how to manage a congressionally mandated scientific study, it would be an abuse of that discretion for the Secretary to fail to follow his own methodology (which in this case required a minimum sample of 300 [per dolphin stock]), or otherwise manage the study in such a way as to preclude scientifically meaningful results, without compelling justification. Indeed, under the Secretary's approach, he could have discharged his mandate by exercising his discretion to obtain a necropsy sample from a single dolphin. Nor can we accept the suggestion that while Congress took the trouble to mandate a specific scientific study — a study clearly central to the purpose of the statute — it did not also intend that the Secretary carry out the study in such a manner as to yield scientifically meaningful results. See Brower, 257 F.3d at 1067 (rejecting interpretation of IDCPA that would allow the Secretary to "limit the studies' breadth and then discover that there was insufficient evidence to warrant finding a significant adverse impact on the ETP dolphin stocks").
EII, 256 F. Supp.2d at 1071 n. 9.

  While the Secretary insists that he completed the necropsy study, he also argues that a host of logistical and other difficulties made NOAA's original sampling parameters — of 300 necropsies per dolphin stock — "not achievable." Defs.' Opp'n at 15-16. The Government's point here is less than clear given its assertion that it is not raising an "impossibility" defense given its belief that it fully completed the study. Id. at 15; Oral Arg. Tr. at 44 ("[I]t was deemed possible [to obtain the 300 samples per stock]. However, it was very difficult and NOAA did in fact fully complete the study . . . and did everything possible . . . to overcome [the] difficulties"). To the extent, however, that the Government is arguing that the difficulties posed by the studies excuse it from having to obtain sufficient samples to achieve scientifically meaningful results, this argument is soundly rejected.

  First, excusing Defendants from having to obtain sufficient samples to achieve scientifically meaningful results would, as discussed above, be tantamount to excusing them from the Congressional mandate with which they were charged. This the Court can not do absent proof of impossibility. Brower II, 257 F.3d at 1069 (finding that Secretary had failed to show that study's alleged complexity "prevented" NMFS from commencing the data and obtaining data); Sierra Club v. Gorsuch, 551 F. Supp. 785, 787, 789 (N.D. Cal. 1982) (agency must show it was impossible to comply with statutory requirement since absent such proof it would effectively be asking the Court "to . . . repeal the Congressional mandate"). As noted above, however, Defendants do not argue that they should be excused from their statutory obligations based on impossibility. Second, even if the Court were to address the impossibility question further, the record does not sustain Defendants' claim that obtaining sufficient necropsy samples to yield scientifically meaningful results was impossible, or — in Defendants' words — "not achievable." Defendants complain that they faced a lack of cooperation from Mexico, and that although NOAA had trained Venezuelans and Ecuadorians to conduct necropsies, these countries never placed any of the trained observers on vessels. Defs.' Opp'n at 16.

  With respect to Mexico, the record reflects that "some cooperation [had] been achieved" by September 2001, and that, "[a]t Mexico's request, NMFS conducted another necropsy technician training session." DP 113*fn6 (Update on IDCPA Research Efforts/Need for Mexico's Cooperation); AR 99 at 413-14 (Aug. 4, 2000 letter stating that Mexico had volunteered to cooperate). At the same time, Defendants were aware that "much more [cooperation][was] needed [from Mexico] to obtain an adequate number of samples." DP 113. Yet, the record completely fails to explain or justify why Defendants were unable to secure the additional needed cooperation after September 2001. Nor does it explain why Defendants were agreeing to Mexico's request to expedite the final finding, see Part IV(C), but not insisting on improved cooperation to obtain the necropsies needed to make the final finding.

  With respect to Ecuador and Venezuela (which have two of the largest purse seine fleets in fishery), both offered their cooperation in July of 2000. AR 97 at 408 (July 28, 2000 letter from Ecuador requesting training date so that they can "carry on efficiently in Necropsy Program"); AR 114 at 464 (letter from NMFS thanking Ecuador and stating that NMFS would contact Ecuador regarding training); AR 99 at 414 (Venezuela). Yet, NMFS did not train or supply them until roughly one year later. AR 390 at 1719-20. The sampling portion of the necropsy program, however, was then terminated by the end of the 2001 in light of the timetable for the final finding. AR 551-552. The Court also notes that although Colombia "reaffirmed" its willingness to cooperate with the necropsy research in September 2001, see AR 461, Defendants have identified no documents that indicate that this offer was ever pursued.

  Defendants also point to the logistical difficulties posed by the need to use certain equipment and "cumbersome permitting requirements." Defs.' Opp'n at 16; Defs.' Mot. at 10-14. While the Court does not doubt that the study posed substantial logistical and other bureaucratic challenges, Defendants wholly fail to show they were insurmountable or that they genuinely prevented the agency from obtaining more than 56 necropsy samples over the five-year period between 1997 and 2002. The record indicates, for example, that even with respect to Mexico, Defendants were in fact able to send needed equipment and obtain the required permits. See, e.g., AR 494 at 2065; AR 1092 at 8196, 8204; AR 90; AR 259; AR 150.

  In short, rather than supporting Defendants' position, the record shows an agency that continued to drag its feet, exercised little diligence, and put obstacles in its own road. Indeed, it is clear that the Secretary once again, and without adequate justification, ...


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