Greenpeace Foundation v. Mineta

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART PLAINTIFFS’ MOTION FOR A PERMANENT INJUNCTION

OVERVIEW

This is the second round of litigation concerning the fate of the Hawaiian monk seal. Our first exposure to the plight of the monk seal was in the context of Plaintiffs’ motion for a preliminary injunction against Defendants’ operation of the lobster fishery in the Northwestern Hawaiian Islands. There, this Court determined that Plaintiffs enjoyed a reasonable likelihood of success on their claim that the continued operation of the lobster fishery threatens the survival of the monk seal. However, the Court denied preliminary injunctive relief because Defendants voluntarily closed the fishery for the 2000 fishing season. Plaintiffs now return to secure summary judgment that the operation of the lobster fishery- — as well as the operation of the bottomfish fishery in the Northwestern Hawaiian Islands 2 — -violates the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Endangered Species Act, 16 U.S.C. § 1531 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. Plaintiffs also seek permanent enjoinment of the operation of both fisheries until Defendants have complied with their statutory and regulatory obligations. Defendants seek summary judgment on all claims by cross-motion. Defendant-intervenor Association of NWHI Lobster Permit Holders opposes Plaintiffs’ motion. Having reviewed the motions, pleadings, supporting and oppos *1126 ing memoranda, and the administrative record, the Court grants partial summary judgment to Plaintiffs, grants partial summary judgment to Defendants on mootness grounds, and enjoins further operation of the lobster fishery.

FACTUAL BACKGROUND

The intricate factual background of this case is described in some detail in this Court’s last Order. See Order Denying Plaintiffs’ Motion to Strike, Granting Association of NWHI Lobster Permit Holders’ Motion for Leave to Intervene, and Denying Plaintiffs’ Motion for Preliminary Injunction (“P.I.Order”), Greenpeace Found, v. Daley, Civ. No. 00-00068SPKFIY (D.Haw. June 5, 2000). Therefore, a summary of the facts most salient to the instant motions will suffice.

The Hawaiian monk seal (Monachus schauinslandi) (“monk seal”) is an endangered species. See 50 C.F.R. § 17.11. Statistics on the status of the monk seal paint a grim picture. Recent population estimates indicate that the current monk seal population numbers at approximately 1,300 to 1,400. See A.R. Vol. XXXIII, No. 1590, at 61. 3 A 1997 National Marine Fisheries Service (“NMFS”) report noted that the seal population at French Frigate Shoals (“FFS”) atoll, which is home to one of the largest monk seal colonies, has declined nearly 55% since 1989. See A.R. Vol. XXIII, No. 1302, at 1. The survival rate of monk seal pups is another portent of the bleak outlook for the monk seal. In the mid-1980’s, approximately 90% of seal pups at FFS survived to age two. The survival rate declined to about 10% in the mid-1990’s. See A.R. Vol. XXXIII, No. 1590, at 61, Fig. 2(a). Indeed, NMFS scientists agree that “[t]he overall status of the Hawaiian monk seal is extremely grave.” A.R. Vol. XXVI, No. 1403, at 238.

The monk seal is endemic to Hawaii. It inhabits eight areas in the Northwestern Hawaiian Islands (“NWHI”): FFS, Lay-san Island, Lisianski Island, Pearl and Hermes Reef, Midway Atoll, Kure Atoll, Neeker Island, and Nihoa Island. Defendant NMFS has designated the NWHI as the monk seal’s “critical habitat.”

An active lobster fishery and bottomfish fishery operate in the NWHI. NMFS and the Western Pacific Regional Fishery Management Council (“Council”) manage each fishery via separate Fishery Management Plans (“FMP”) prepared pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq. See A.R. Vol. XV, No. 831, at 3. NMFS adopted the FMP for the Crustacean Fisheries of the Western Pacific Region (“Crustacean FMP”) in 1983, and the FMP for the Bottomfish and Seamount Groundfish Fisheries of the Western Pacific Region (“Bottomfish FMP”) in 1986. See A.R. Vol. XVII, No. 1050; A.R. Vol. XXII, No. 1294. The lobster fishery harvests spiny lobster (Panu-liras marginatus) and slipper lobster (Scyllarides squammosus). The bottomfish fishery targets snappers, groupers, and jacks. Monk seals are known to prey on the species harvested by the fisheries. See A.R. Vol. XIII, No. 664, at 17; A.R. Vol. XVIII, No. 1590, at 64.

Plaintiffs Greenpeace Foundation, Center for Biological Diversity, and Turtle Island Restoration Network (“Plaintiffs”) brought this suit against Defendants Norman Mineta, Secretary of Commerce; and Penelope D. Dalton, Assistant Administrator of the NMFS (collectively, “Defendants”). The target of the suit is the embattled NMFS, 4 whom Plaintiffs allege *1127 is violating the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., by managing the fisheries in a manner that does not comply with Sections 7 and 9 of the Endangered Species Act (“ESA”), and the National Environmental Policy Act (“NEPA”).

The crux of the ESA claims is that the fisheries are depleting the monk seal’s food supply and interacting with monk seals in an injurious manner. Cast in the language of the ESA, the claims allege that (1) NMFS has been remiss in performing its Section 7 duty to consult with the Secretary of Commerce regarding the impact of the FMPs on protected species, 5 and (2) the operation of the fisheries has resulted in “takes” of monk seals in violation of Section 9.

With regard to the NEPA claims, Plaintiffs contend that NMFS has not adequately assessed the environmental impact of the fisheries on the monk seal. NEPA requires federal agencies to (1) prepare an Environmental Impact Statement (“EIS”) when engaging in “major federal actions significantly affecting the quality of the human environment,” and (2) supplement an existing EIS when there are “significant new circumstances or information relevant to environmental concerns” posed by the agency action. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.9(c)(l)(ii). NMFS prepared an EIS in connection with the Crustacean FMP, but not for the Bottomfish FMP. Plaintiffs argue that new data concerning the role of lobster in the monk seal’s diet require the preparation of a new EIS for the Crustacean FMP. NMFS has agreed to supplement the existing EIS, but Plaintiffs insist on enjoinment of the lobster fishery until the new EIS is corn-píete. As for the Bottomfish FMP, NMFS sagely has begun preparing an EIS, but as with the lobster fishery, it faces Plaintiffs’ demand for an injunction pending completion of the EIS. DefendanNIntervenor Association _of NWHI Lobster Permit Holders (“Intervenor”) opposes any injunction against the operation of the lobster fishery.

NMFS has already survived a motion for a preliminary injunction against the lobster fishery. This Court denied injunc-tive relief because NMFS’s voluntary closure of the lobster fishery for the 2000 fishing season sharply diminished the possibility of harm to the monk seal in the immediate future. However, this Court also determined that there was a reasonable likelihood that Plaintiffs would prevail on their claims. The Court now addresses whether Plaintiffs enjoy actual success on their claims.

DISCUSSION

I. MOOTNESS

NMFS asserts that every claim in this case is moot except the ESA claims pertaining to the bottomfish fishery. This Court addressed and rejected NMFS’s mootness arguments in deciding the preliminary injunction motion. Many of the same arguments reappear here, and they do not fare much better this time.

NMFS can claim partial success on one mootness argument based on its decision to reinitiate formal consultation on the Crustacean FMP. See Lent Decl. of Sept. 29, 2000, Exh. “1” to Defs.’ MotSummJ. ¶ 15. 6 In light of this decision, the Section *1128 7 claim corresponding to the lobster fishery is moot to the extent it seeks reinitiation of formal consultation. The claim is not moot, however, to the extent it seeks summary adjudication that past consultation efforts fell short of Section „7 requirements. An agency’s decision to reinitiate consultation does not result in the withdrawal of a previously completed and issued biological opinion. See Greenpeace v. National Marine Fisheries Serv., 80 F.Supp.2d 1137, 1151 (W.D.Wash.2000). Greenpeace, a case similar to this one, involved litigation to protect the endangered Stellar sea lion from harm caused by the management of a groundfish fishery. The plaintiffs there asserted, inter alia, a Section 7 claim for reinitiation of consultation on the FMP governing the fishery. Before the Court had occasion to decide a motion for summary judgment on the claim, NMFS voluntarily reinitiated consultation and argued that the Section 7 claim was moot. The court rejected the suggestion of mootness, noting that the existence of the old—and allegedly inadequate—biological opinions preserved the justiciability of the claim. The Court finds the reasoning in Greenpeace persuasive.

NMFS argues that Greenpeace is distinguishable because the groundfish fishery remained active during consultation in that case, whereas here NMFS has closed the lobster fishery pending the completion of consultation. Whether fishing activity is ongoing during consultation is relevant to the potential of direct harm to listed species, a concern Section 9 of the ESA addresses. Plaintiffs’ Section 7 claim does not voice the same concern per se. Rather, the claim alleges that NMFS failed to consult using “the best scientific and commercial data available”—a procedural violation. 16 U.S.C. § 1536(a)(2). Accordingly, so long as the current biological opinions governing the Crustacean FMP stand in place, a challenge to the adequacy of those opinions is justiciable.

The same result does not attend to the Section 7 claim concerning the Bot-tomfish FMP, however. Although NMFS does not argue that this claim is moot, the Court is obliged to consider mootness sua sponte. See Riverhead Sav. Bank v. National Mortgage Equity Corp., 893 F.2d 1109, 1112 (9th Cir.1990). The object of this Section 7 claim, unlike its counterpart pertaining to the Crustacean FMP, is to compel NMFS to reinitiate formal consultation on the Bottomfish FMP in light of new information about the impact of bot-tomfishing on the monk seal; Plaintiffs do not seek a judicial determination that past consultation on the FMP was inadequate. Compare Compl. ¶¶ 73-75 (lobster fishery Section 7 claim) with id. ¶¶ 76-77 (bot-tomfish fishery Section 7 claim). NMFS has already acquiesced: It requested reini-tiation of formal Section 7 consultation on the Bottomfish FMP on October 16, 2000. See Lent Deck of Oct. 19, 2000, Exh. “1.” It would serve no purpose to order NMFS to do what it has already done. 7 The claim is moot.

NMFS’s remaining mootness arguments lack merit. NMFS argues that the Section 9 claim pertaining to the lobster fishery is moot because NMFS has closed the fishery for the 2000 season, and intends to keep it closed through December 31, 2001 in Areas 1, 2, and 3 (Necker Island, Maro Reef, and Gardner Pinnacles), and through December 31, 2002 in Area 4 (all other areas). See Lent Deck of Sept. 29, 2000, ¶ 15. With respect to the NEPA claims, NMFS claims they are moot because NMFS has begun preparing an EIS for both fisheries. See id. ¶¶ 4-7.

NMFS bears the heavy burden of demonstrating mootness. See Headwaters, Inc. v. Bureau of Land Management, Medford Dist., 893 F.2d 1012, 1015 (9th Cir.1989) (citing Los Angeles County v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 *1129 L.Ed.2d 642 (1979)). NMFS’s plans to close the lobster fishery and to comply with NEPA invite scrutiny, for “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant ... free to return to his old ways.’ ” United States v. Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Where the defendant has voluntarily ceased to engage in unlawful conduct, the inquiry is “whether the defendant is free to return to its illegal action at any time.” Public Utils. Comm’n v. Federal Energy Regulatory Comm’n, 100 F.3d 1451, 1460 (9th Cir.1996). “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Concentrated Phosphate, 393 U.S. at 202, 89 S.Ct. 361.

NMFS has not shown that the. harm underlying Plaintiff’s Section 9 and NEPA claims has been eradicated, never to return. The only certainty at present is that lobster fishing has been suspended for the 2000 lobster fishing season. NMFS is to be commended for its intention to close the lobster fishery for an extended period of time. However, it has not taken official action to effectuate its intent, such as by publication in the Federal Register of a proposed or final rule implementing the closure. NMFS is thus free to reopen the lobster fishery at will and breathe new life into the Section 9 claim. As this Court noted in the P.I. Order, the agency action for which Plaintiffs seek judicial review is the implementation of the FMPs, not actual fishing activity. See P.I.Order at 12. The lobster fishery continues to be managed pursuant to the allegedly flawed Crustacean FMP, under which lobster fishing will proceed beginning July of every year absent the promulgation of a rule closing the fishery. See 50 C.F.R. § 660.45.

The NEPA claim is justiciable for an additional reason. NMFS has not yet fully complied with NEPA, a fact made apparent by NMFS’s voluntary preparation of a new EIS for the Crustacean FMP and an initial EIS for the Bottomfish FMP. Consequently, Plaintiffs have a justiciable claim for injunctive relief pending completion of the new EISs. See Leatherback Sea Turtle, Civ. No. 99-00152DAE, at 32-33.

II. ENDANGERED SPECIES ACT

A. Section 7

Section 7 of the ESA requires every federal agency to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence” or “result in the destruction or adverse modification of habitat” of listed species. 16 U.S.C. § 1536(a)(2). To fulfill its obligation under Section 7, an agency must consult with the Secretary of Commerce. See id. An agency must use “the best scientific and commercial data available” in conducting the consultation. Id.

Consultation can be informal or formal. Informal consultation is an optional process designed to assist an agency in determining whether formal consultation is required. See 50 C.F.R. § 402.14(a). If an agency determines during informal consultation that the proposed action is not likely to adversely affect listed species or critical habitat, and the Director concurs, 8 the consultation process is terminated, and no further action is required. See id. If, however, the agency determines that the proposed action may affect listed species or critical habitat, formal consultation is required. See id. § 402.14(a).

*1130 After consultation is complete, the Secretary must prepare a biological opinion. See 16 U.S.C. § 1536(b)(3)(A). The biological opinion must include a “detailed discussion of the effects of the action on listed species or critical habitat” and the Secretary’s “opinion on whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat,” (a “jeopardy opinion”), or whether the proposed action poses no threat of jeopardy or adverse modification (a “no jeopardy opinion”). 50 C.F.R. § 402.14(h)(2), (3). If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered, the agency must reinitiate consultation. See id. § 402.16(b). Consultation must also be reinitiated if the action is modified in a manner that causes an effect to a listed species or its habitat that was not previously considered. See id. § 402.16(c).

Plaintiffs contend that NMFS ignored the best scientific and commercial data available in preparing the biological opinions on the Crustacean FMP. 9 In reviewing whether NMFS’s past consultation efforts satisfied Section 7 requirements, the Court applies the standard set forth in the APA, which requires that an agency action be set aside if it is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

NMFS issued the first biological opinion on the Crustacean FMP in 1981. 10 The theme pervading the opinion is that insufficient information prevented detailed assessment of the impact of the FMP on the monk seal. The opinion identified spiny lobster as a prey species for monk seals, but it could not ascertain its relationship to the monk seal diet. See A.R. Vol. XIII, No. 664, at 17. The opinion stated that monk seals are “opportunistic feeders supported by a diverse prey base.” Id. NMFS believed that monk seals could adapt to other prey species if lobster were to become unavailable. See id. However, the available information did not permit NMFS to assess the amount of shift in the monk seal’s diet from lobster to other prey caused by lobster fishing or the impact of that stress. See id. NMFS opined that the lobster fishery did have the “potential of reducing the lobster populations to levels at which lobsters are no longer available to monk seals.” Id. NMFS further admitted that the maximum sustainable yield (“MSY”) and optimum yield (“OY”) estimates of the lobster population calculated by the Council were too high and rested on the erroneous assumption that the lobster stocks in the NWHI were unexploited. See id. at 18. The opinion warned: “[I]f OY is overestimated the fishery could result in depletion of the lobster resources. Therefore the FMP does not insure the availability of lobster to monk seals.” Id. The opinion concluded that “[tjhere is insufficient information available for the Council to be able to insure that the proposed activity will not jeopardize the continued existence of the monk seal.... ” Id. NMFS stressed that the opinion was not to be construed as a “no jeopardy opinion” and that it “in no way alleviate[d] the Council of its obligation under Section 7(a)(2) of the ESA to insure that the activities conducted under *1131 the spiny lobster FMP are not likely to jeopardize the continued existence of the threatened and endangered species which occur in the NWHI.... ” Id. at 20. Despite this conclusion, the opinion paradoxically recommended implementation of the FMP. 11 See id.

The conclusions of the 1981 biological opinion are difficult to reconcile with the recommendation of NMFS that the FMP be implemented. NMFS has an affirmative obligation under Section 7(a)(2) to insure that agency action will not jeopardize the continued existence of listed species or adversely modify their habitat. 16 U.S.C. § 1536(a)(2). Certainly, an agency’s assessment of proposed action is limited by the best scientific and commercial information available. Data on the role of lobster in the monk seal’s diet was admittedly sparse at the time the 1981 biological opinion was prepared. Nonetheless, when an agency concludes after consultation that it cannot insure that the proposed action will not result in jeopardy, and yet proceeds to implement such action, the agency has flouted the plain requirements of Section 7.

The next biological opinion prepared in connection with the lobster fishery, issued in 1996, assessed the impact of Amendment 9 to the Crustacean FMP. 12 Amendment 9 established a new harvest guideline system that allowed fishermen to retain berried and undersized lobsters in a catch. The rationale was that the retention limits then in effect resulted in waste from mortality of lobsters that are captured and released without contributing to the protection of the reproductive potential of lobster stocks. See A.R. Vol. XV, No. 868, at 3. The new proposed harvest management program was based on the existing model for calculating the exploitable lobster population. See id. The models indicated that stocks of spiny lobster would remain healthy over the long term. See id. at 4. At the same time, the opinion noted a “continuing decline in pup production, and total seal counts over the past six years, [which] is cause for significant concern.” Id. at 6. NMFS attributed the decline to several factors, one of which was the reduction of the availability of prey such as lobster due to lobster fishing. The availability of lobster had been particularly low at FFS for a number of years. See id. at 9. NMFS maintained, as it did before and does today, that “monk seals appear to be very opportunistic and catholic feeders.” Id. However, NMFS still had not elucidated the importance of lobsters to the monk seal’s diet. See id. Regarding the effect of Amendment 9 on the monk seal, the opinion stated: “[G]iven the relatively healthy status of the stocks of lobsters and the small contribution of French Frigate Shoals to the fishery, it is expected that catch competition with monk seals at French Frigate Shoals would not likely occur.” Id. at 12. The opinion concluded that the annual harvest guidelines formulated under the proposed harvest rate strategy would protect the reproductive capacity and existing stock of lobster in the NWHI. See id. at 12.

The 1996 opinion in many ways perpetuated the errors of the 1981 opinion. As a memorandum from one NMFS scientist to another regarding the 1996 opinion reveals, NMFS takes the position in the opinion that its knowledge of monk seal behavior had not advanced much in the past fifteen years. See A.R. Vol. XIV, No. 823. And so management of the lobster *1132 fishery remained relatively unchanged. The harvest management system under Amendment 9 was predicated on the existing model of calculating the exploitable population of lobster, with the addition of a guideline permitting retention of berried and undersized lobsters. NMFS ignored the flaws of that model, as evidenced by its observation in the 1996 opinion that the status of the lobster stocks was relatively healthy. See A.R. Vol. XV, No. 863, at 12. In fact, the lobster stocks showed signs of stress. From 1988 to 1991, the catch per unit effort (“CPUE”) declined from 2.71 to 0.66 legal spiny and slipper lobsters per trap haul. See A.R. Vol. XVI, No. 983, at 5. NMFS closed the lobster fishery in 1991 and 1993. It reopened the fishery briefly in 1994, but aborted the season shortly after it began when it realized that its harvest quota was too high. In the year before the 1996 biological opinion issued, the CPUE was an anemic 0.60. See id. Such data should have alerted NMFS that the existing model of calculating the exploitable lobster population was in need of revision. NMFS ignored the data.

Moreover, the 1996 opinion overemphasized the importance of the status of the lobster stocks at FFS. A 1992 NMFS report on the status of the monk seal found that monk seals at FFS may depend on the availability of food at Gardner Pinnacles and Necker Island, where most of the lobster harvest has occurred for many years. See A.R. Vol. XXXII, No. 1564, at 26. The 1996 opinion did not examine the availability of lobster in those areas of the NWHI.

A review of the 1996 opinion convinces the Court that NMFS did not adequately discharge its duties under Section 7(a)(2). If, in the 1981 opinion NMFS was uncertain of the impact of the FMP because it knew too little about the monk seal diet, by 1996 it was emboldened by its ignorance to draw definitive conclusions about the impact. NMFS reiterated in the 1996 opinion that the available information still had not clarified the importance of lobster in the monk seal diet; yet, in a departure from its conclusion in 1981, NMFS this time concluded that no jeopardy to the monk seal would result. NMFS arrived at this conclusion despite the fact that the fishery operated up to the 10- and 20-fathom isobath areas of Maro Reef, FFS, and Necker Island — all within the critical habitat of the monk seal, which by then had been designated. See A.R. Vol. XIV, No. 823, at 2. The explanation for the reversal in judgment is that the 1996 opinion focused on Amendment 9 alone. But ESA regulations require NMFS to consider “the effects of [agency action] as a whole.” 50 C.F.R. § 402.14(c). While Amendment 9 might be an innocuous measure as far as monk seal survival is concerned, it is appended to an FMP that NMFS could not insure would be consistent with the continued existence of the monk seal. In making a “no jeopardy” determination in the 1996 opinion, NMFS essentially affirmed that the existing model of calculating lobster stocks was workable. The available data indicated it was not. By neglecting such data, and by failing to evaluate the Crustacean FMP’s impact on prey availability for the monk seal in all areas of the NWHI (not just FFS), NMFS was arbitrary and capricious in reaching the conclusions contained in the 1996 biological opinion.

Little needs to be said about the latest consultation effort completed — an informal consultation conducted in 1999 — except that it reiterates the conclusions of the previous two biological opinions. NMFS concluded after the 1999 consultation that the proposed 1999 harvest guideline was not likely to adversely affect monk seals— this, despite comments from its scientists that there was insufficient scientific information to support the conclusion. 13 See *1133 A.R. Vol. XVI, No. 938. There is no indication that NMFS has departed from its current model of determining the exploitable lobster population. The conclusion of “not likely to adversely affect” does not square with NMFS’s admission that the existing model grows increasingly uncertain. See Notice of Closure of the Year 2000 Fishery, 65 Fed.Reg. 39,314, 39,315 (2000); see also A.R. Vol. XVI, No. 931, at 2 (describing the generally poor quality of data used to assess bank-specific estimates of exploitable lobster populations for 1998, from which harvest guidelines are derived).

NMFS has failed to fulfill its “rigorous” affirmative duty under Section 7 to “insure” that implementation of the Crustacean FMP does not result in jeopardy or adverse modification. See Sierra Club v. Marsh, 816 F.2d 1376, 1385 (9th Cir.1987). NMFS cannot speculate that no jeopardy to monk seals or adverse modification of their critical habitat will occur because it lacks enough information regarding the impact of the fishery on seals. See Bens-man v. United States Forest Serv., 984 F.Supp. 1242, 1248 (W.D.Mo.1997); Conservation Laiu Found, v. Watt, 560 F.Supp. 561, 572 (D.Mass.1983), affd, 716 F.2d 946 (1st Cir.1983). Such a conclusion is arbitrary and capricious. Accordingly, the Court GRANTS summary judgment to Plaintiffs and DENIES summary judgment to Defendants on the claim that past consultation on the Crustacean FMP violates Section 7(a)(2) and the APA.

B. Section 9

Section 9(a)(1)(B) of the ESA makes it unlawful for any person to take any endangered species of wildlife within the United States or the territorial seas of the United States. See 16 U.S.C. § 1538(a)(1)(B). “Take” is defined as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The term “harm” includes “significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding or sheltering.” 50 C.F.R. § 222.102; see also Babbitt v. Siveet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (upholding ESA regulation that included “significant habitat modification” in the definition of “harm”).

1. The Lobster Fishery

Plaintiffs claim that the lobster fishery adversely modifies the habitat of the monk seal by depleting the lobster population in the NWHI. It is undisputed that the fishery removes prey from the critical habitat of the monk seal. The question is whether the removal of prey results in adverse habitat modification. Plaintiffs offer circumstantial evidence that it does. One study revealed that monk seals at FFS dive deeper and travel farther to forage than seals at Pearl and Hermes Reef because there is less food available at FFS. See A.R. Vol. XXVI, No. 1422, at 5-6. Another study found that monk seals at FFS consume more eephalopods than seals elsewhere because other prey is less available to them. See A.R. Vol. XXIV, No. 1338, at 544. Decreased prey availability has been hypothesized to be a cause of the decline in the reproduction, survival, and condition of surviving immature seals. See A.R. Vol. XXXII, No. 1564, at 25. Plaintiffs also rely on studies of the monk seal’s diet. One study found that lobster contains amino acids and macrominerals important to bodily functions of the monk seal. See A.R. Vol. XXIV, No. 1344, at 141, 146. Fatty acid signature analysis of monk seal blubber suggests that lobster comprises a significant *1134 part of the monk seal’s diet. See A.R. Vol. XXIV, No. 1356 at 13.

The information in the record is insufficient to establish as a matter of law that lobster is absolutely critical to the diet of the monk seal. Plaintiffs may of course rely on circumstantial evidence to show a causal link between lobster fishing and the monk seal population. Circumstantial evidence was the basis for the findings of adverse habitat modification in Palila v. Hawaii Department of Land & Natural Resources, 471 F.Supp. 985 (D.Haw.1979), affd, 639 F.2d 495 (9th Cir.1981), and Sierra Club v. Lyng, 694 F.Supp. 1260 (E.D.Tex.1988), affd in relevant part, Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.1991). The difference is that the agency action in those cases destroyed or modified a feature of the species’ habitat that was decidedly critical to the continued existence of the species. In Palila, this Court found that mamane trees were clearly essential to the endangered Palila’s survival. See Palila, 471 F.Supp. at 989; see also Palila v. Hawaii Dep’t of Land & Natural Resources, 73 F.Supp.2d 1181, 1182 (D.Haw.1999). In Lyng, the court found that the very shelter upon which the red-cockaded woodpecker depended for survival was threatened by the Forest Service’s management of the Texas national forests. See Lyng, 694 F.Supp. at 1265.

Here, it is not certain that lobster plays such an essential role in the monk seal diet that a reduction of lobster prey dooms the monk seal to extinction. The studies, Plaintiffs rely upon do not prove otherwise. Studies of monk seal foraging behavior may indicate a decrease in prey availability in general, but they do not show that it is a reduction in the availability of lobster that causes monk seals to consume other prey. Indeed, one study hypothesized that monk seals were consuming more octopi because fewer teleosts (ray-finned fish) were available. See A.R. Vol. XXIV, No. 1338, at 544. Nor do the data based on fatty acid signature analysis prove that the monk seal relies heavily on lobster as part of its diet. Dr. Sara Iver-son, the researcher conducting the studies, submits a declaration to the Court in which she states that her findings “cannot be conclusive and should not be used as a basis for decisions concerning possible interactions between fisheries and monk seals.” Iverson Deck, Exh. “1” to Defs.’ MotSumm.J. ¶ 8. Dr. Iverson emphasizes that her research is “preliminary” and that it has not been peer reviewed. See id. ¶ 9. She anticipates an additional three years of research before she can make “firm and defensible conclusions” about the importance of various prey in the monk seal diet. See id. ¶ 12. 14

The Court agrees that preliminary findings are not a basis for a conclusive determination that lobster comprises a significant and essential portion of the monk seal diet. On the basis of the currently available scientific information, this Court cannot find as a matter of law that the removal of lobster from the monk seal’s critical habitat results in “harm” to the monk seal within the meaning of Section 9. The role of lobster in the monk seal diet is a question of fact that precludes summary judgment on the Section 9 claim.

The ruling does not assure victory for NMFS. NMFS’s position is essentially that it is innocent of Section 9 violations because it is not aware of any data that confirms that it is in violation of Section 9; such is a head-in-the-sand attitude we do not condone. 15 It is also a position in *1135 conflict with the underlying philosophy, of the ESA. But to this problem we assign the requirements of NEPA and Section 7 of the ESA, not section 9. 16

Because a material question of fact exists, the Court DENIES summary judgment to Plaintiffs and DENIES summary judgment to Defendants on the Section 9 claim with respect to the lobster fishery.

2. The Bottomfish Fishery

Plaintiffs claim that the bottomfish fishery “takes” monk seals within the meaning of Section 9 of the ESA. Harm'to the monk seal allegedly occurs in several ways. First, fishermen sometimes respond violently to monk seals that attempt to take fish from their lines. According to NMFS, there have been incidents of fishermen clubbing or shooting monk seals in response to catch theft. See A.R. Vol. XVIII, No. 1071, at 9; A.R. Vol. XVIII, No. 1076, at 2. In 1990, an anonymous informant alleged that one monk seal per day was being killed and discarded by fishermen. See A.R. Vol. XIX, No. 1129, at 8. NMFS investigated into the allegations and could not confirm any mortality or injury to monk seals as a result of interaction with bottomfish vessels. See id. at 9. Second, bottomfishing gear can harm monk seals. There are reports of monk seals being injured by bottomfish hooks in 1982, 1990, 1994, and 1996. See id. at 7-8; A.R. Vol. XXI, No. 1289, at 7-1; A.R. Vol. XXI, No. 1291, at 7-1. Third, bottomfish fishermen are known to discard unmarketable fish near monk seals for them to consume in order to distract them away from fishing lines. Such fish often contain ciguatera toxin, which is poisonous to seals. See A.R. Vol. XIV, No. 809, at 14.

NMFS is aware of the potential for harmful interaction between bottomfish fishermen and monk seals. In a 1986 biological opinion on the implementation of the Bottomfish FMP, NMFS acknowledged the possibility that bottomfish fishermen might harm monk seals, but dismissed it as an insignificant concern given the low rate of interaction anticipated and the fact that NMFS planned to conduct an education program for fishermen. See A.R. Vol. XVIII, No. 1090, at 6. NMFS issued another biological opinion on the fishery in 1991, this time addressing an amendment to the Bottomfish FMP which would place observers on selected fishing vessels in the NWHI and expand the number of islands and atolls that required a 50 nautical-mile study zone. NMFS adopted the amendment. Enforcement of the observer policy has been lax, however. See A.R. Vol. XX, No. 1238. From 1991 to 1993, NMFS placed observers on approximately 12% of bottomfishing trips in the NWHI. See A.R. Vol. XXI, No. 1286, at 126; A.R. Vol. XXI, No. 1287, at 109; A.R. Vol. XXI, No. 1288, at 7-1. No observers were placed on any bottomfish vessels in the NWHI in 1996 and 1997. See A.R. Vol. XXII, No. 1292, at 7-1. Without the aid of significant observer coverage, accurate measurement of the incidence of harmful interaction is elusive. See A.R. Vol. XXII, No. 1296, at 39-40 (comparing a 7% reported interaction rate on trips with no observers aboard to a 60% reported interaction rate on trips with observers present); A.R. Vol. XX, No. 1238, at 9.

*1136 The evidence in the administrative record confirms that monk seals have been killed, hooked, and poisoned in connection with bottomfishing. Such documented interactions are “takes” within the meaning of Section 9 of the ESA. It is immaterial that certain of these incidents might be accidental. NMFS has not authorized any incidental takes of monk seals, nor could it, since the monk seal is designated a