KAHEA et al v. National Marine Fisheries Service et al

Filing 94

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT re 76 , 79 - - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/24/2014. "Plaintiffs' motion for sum mary judgment is denied, and Defendants' motion for summary judgment is granted. This disposes of all claims and all parties in this action. Accordingly, the Clerk of Court is directed to enter judgment in favor of Defendants and to close this case." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KAHEA, et al.

)
)
Plaintiffs,
)
)
vs.
)
)
NATIONAL MARINE FISHERIES
)
SERVICE, et al.
)
)
Defendants.
)
)
_____________________________ )

CIVIL NO. 11-00474 SOM/KSC
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT,
AND DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND
DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Before the court are cross-motions for summary judgment

filed by Plaintiffs KAHEA and Food & Water Watch, Inc.,
(collectively, “Plaintiffs”) and by Defendants National Marine
Fisheries Service (“NMFS”) and various federal administrators
sued in their official capacities.

The cross-motions concern

Plaintiffs’ remaining claim for violation of the National
Environmental Policy Act (“NEPA”) (Claim Five) in the Complaint
filed on August 2, 2011.

The court grants Defendants’ motion and

denies Plaintiffs’ motion.
II.

FACTUAL BACKGROUND.
This case is here on remand from the Ninth Circuit.
Plaintiffs challenge a one-year Special Coral Reef

Ecosystem Fishing Permit (“SCREFP”) issued by NMFS to Kona Blue
Water Farms (the “Special Permit”) allowing Kona Blue to “stock,

culture and harvest” almaco jack (Seriola rivoliana) fish in
federal waters off Kawaihae Harbor on the Big Island (the
“Project” or the “Velella Concept”).

Administrative Record

(“AR”) at 90; ECF No. 76, PageID # 1302; ECF No. 79-1, PageID #
1426.
A.

The Project.

In seeking the Special Permit, Kona Blue proposed
placing 2,000 almaco jack, a Management Unit Species, in a
“CuPod,” which is a brass-link mesh cage continuously towed
behind a sailing vessel in federal waters.

AR at 17, 19-20.

The

vessel was to remain in constant motion at least three nautical
miles off-shore in deep waters (between 10,000 and 20,000 feet).
Id. at 17, 20.

The fish cultured in the CuPod were to be

obtained from Kona Blue’s land-based hatchery, and placed inside
the CuPod in federal waters through the use of a support vessel.
Id. at 19, 26.

The fish were to be fed using a hose from the

vessel to the CuPod.

Id. at 25-26.

The fish were expected to

grow inside the CuPod, then to be removed and taken to land.

Id.

Staff and researchers were to monitor the fish and the Project’s
overall operation.

Id. at 25.

The Project’s purpose was to “test the feasibility of
raising native marine fish species using a new gear-type (towed,
floating pen) in the U.S. Exclusive Economic Zone (U.S. EEZ).”
Id. at 17.

2

B.

The Application and Special Permit.

Kona Blue filed its application for a SCREFP with NMFS
on November 5, 2010.

AR at 68.

Pursuant to 50 CFR § 665.224,

Kona Blue was required to obtain a SCREFP for its Project because
it was seeking to harvest a Hawaii coral reef ecosystem
Management Unit Species with gear not specifically allowed by the
governing regulations.

Id. at 17.

After reviewing Kona Blue’s application, NMFS proposed
the issuance of a limited, one-year permit to allow Kona Blue to
test the feasibility of the Velella Concept.

Id. at 1.

As part

of its review process, NMFS prepared a draft Environmental
Assessment (“EA”) that considered the environmental impact of the
Project.

Id. at 4450.

The draft EA was available for public

comment from March 17, 2011, to March 27, 2011.

Id. at 53.

During the public comment period, NMFS received 41 unique
responses, plus a response that was submitted numerous times as
part of an email campaign.

Id. at 4.

On July 6, 2011, NMFS submitted its final EA.
11.

Id. at

Based on the EA, NMFS determined that the Project would not

have a significant impact on the quality of the human environment
and issued a Finding of No Significant Impact (“FONSI”).
3-10.

The Special Permit was subsequently issued.

3

Id. at

Id. at 90.

C.

Prior Proceedings.

On April 27, 2012, this court granted Defendants’
motion for summary judgment and denied Plaintiffs’ motion for
summary judgment.

ECF No. 46.

This court concluded that

Plaintiffs’ NEPA claim was moot, and granted summary judgment to
Defendants on the merits of Plaintiffs’ remaining claims.
On June 21, 2012, Plaintiff Food & Water Watch, Inc.,
filed a notice of appeal to the Ninth Circuit.

ECF No. 48.

The

Ninth Circuit concluded that the “capable of repetition yet
evading review” exception to the mootness doctrine applied to
Plaintiffs’ NEPA claim, and remanded the NEPA claim to this
court.

ECF No. 55, PageID # 953.

The Ninth Circuit affirmed

this court’s disposition of Plaintiffs’ other claims.

Id.,

PageID # 952-53.
D.

Cross-Motions for Summary Judgment.

The motions now before this court concern Plaintiffs’
argument that the Defendants violated NEPA by failing to prepare
an Environmental Impact Statement (“EIS”) for the Project.
No. 76, PageID # 1300.

ECF

Plaintiffs contend the EA failed to

adequately consider: (1) the precedential effect of the Special
Permit; (2) the indirect, growth-inducing effects of the Project;
(3) the controversial nature of the Project; and (4) the effect
of the Project on cultural resources.

Id., PageID # 1306-16.

According to Plaintiffs, proper consideration of such issues

4

would have revealed substantial questions as to whether the
Project would have a significant effect on the environment, thus
requiring NMFS to prepare an EIS.
Defendants respond that the EA and FONSI complied with
NEPA, and that the decision to forego an EIS is entitled to
deference.

ECF No. 79-1, PageID # 1427-28, 1438.
Both parties seek summary judgment on Plaintiffs’ NEPA

claim.
III.

See ECF No. 76; ECF No. 79.
STATUTORY FRAMEWORK.
NEPA is the “basic national charter for protection of

the environment.”

40 C.F.R. § 1500.1(a).

Congress enacted NEPA

to ensure that all federal agencies would factor environmental
considerations into decisionmaking.

To achieve this goal, NEPA

requires a federal agency to prepare an EIS for “major Federal
actions significantly affecting the quality of the human
environment.”

42 U.S.C. § 4332(2)(C).

“NEPA ensures that the

agency . . . will have available, and will carefully consider,
detailed information concerning significant environmental
impacts; it also guarantees that the relevant information will be
made available to the larger public audience.”

Blue Mountains

Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.
1998) (brackets omitted).
If, as here, an agency’s regulations do not
categorically require or exclude the preparation of an EIS, the

5

agency must first prepare an EA to determine whether the action
will have a significant effect on the environment.
§ 1501.4.

40 C.F.R.

An EA is a “concise public document” that is less

detailed than an EIS.

See 40 C.F.R. § 1508.9; Dep’t of Transp.

v. Pub. Citizen, 541 U.S. 752, 757, (2004).

An EA (1)

“provide[s] sufficient evidence and analysis for determining
whether to prepare an environmental impact statement or a finding
of no significant impact”; (2) “[a]id[s] an agency’s compliance
with [NEPA] when no environmental impact statement is necessary”;
and (3) ”[f]acilitate[s] preparation of a statement when one is
necessary.”

40 C.F.R. § 1508.9(a).

If the EA “shows that the

agency action may significantly affect the environment, then the
agency must prepare an EIS.”

W. Watersheds Project v. Abbey, 719

F.3d 1035, 1050 (9th Cir. 2013).

If, however, the EA indicates

that the action will not significantly affect the environment,
then the agency may issue a FONSI.

Id.

In determining whether an action will significantly
affect the environment, an agency must consider both the
“context” and “intensity” of the action.

40 C.F.R. § 1508.27;

see also Ctr. for Biological Diversity v. Nat’l Highway Traffic
Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008).

“Context”

requires analysis of the action “in several contexts such as
society as a whole (human, national), the affected region, the
affected interests, and the locality.”

6

40 C.F.R. § 1508.27(a).

“Intensity” requires consideration of “the severity of impact.”
40 C.F.R. § 1508.27(b).

Factors that “should be considered in

evaluating intensity” are listed in 40 C.F.R. § 1508.27(b).
IV.

STANDARD.
A.

Administrative Procedure Act.

Because a private right of action is not available
directly under NEPA, challenges to agency action under NEPA are
reviewed under the Administrative Procedure Act (“APA”).
Sensible Traffic Alternatives & Res., Ltd. v. Fed. Transit Admin.
of U.S. Dep’t of Transp., 307 F. Supp. 2d 1149, 1164 (D. Haw.
2004).
Under the APA, agency action that is “arbitrary” or
“capricious” must be set aside.

5 U.S.C. § 706; see also Butte

Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 945
(9th Cir. 2010).

Review under the arbitrary and capricious

standard is “highly deferential, presuming the agency action to
be valid and affirming the agency action if a reasonable basis
exists for its decision.”

Sacora v. Thomas, 628 F.3d 1059, 1068

(9th Cir. 2010) (internal quotation marks and citation omitted).
“A reasonable basis exists where the agency considered the
relevant factors and articulated a rational connection between
the facts found and the choices made.”

Arrington v. Daniels, 516

F.3d 1106, 1112 (9th Cir. 2008) (internal quotation marks and
citation omitted).

An agency’s decision will only be set aside
7

if:
[I]t has relied on factors which Congress had
not intended it to consider, entirely failed
to consider an important aspect of the
problem, 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.
Butte, 620 F.3d at 945 (internal quotation marks and citation
omitted).

A court may not “infer an agency’s reasoning from mere

silence,” but “[e]ven when an agency explains its decision with
less than ideal clarity, a reviewing court will not upset the
decision on that account if the agency’s path may reasonably be
discerned.”

Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009)

(internal quotation marks and citation omitted).
In reviewing a challenge under NEPA to an agency’s
determination that an EIS is not required, the court “employ[s]
an arbitrary and capricious standard that requires [it] to
determine whether the agency has taken a hard look at the
consequences of its actions, based [its decision] on a
consideration of the relevant factors, and provided a convincing
statement of reasons to explain why a project’s impacts are
insignificant.”

Native Ecosystems Council v. U.S. Forest Serv.,

428 F.3d 1233, 1239 (9th Cir. 2005) (internal quotation marks and
citation omitted).

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B.

Summary Judgment.

Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a) (2010); see Addisu v. Fred Meyer, Inc., 198 F.3d
1130, 1134 (9th Cir. 2000).

However, in the context of reviewing

an administrative decision under the APA, “there are no disputed
facts that the district court must resolve.”

Occidental Eng’g

Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985).

Instead, “the

function of the district court is to determine whether or not as
a matter of law the evidence in the administrative record
permitted the agency to make the decision it did.”

Id.; see also

City & Cnty. of San Francisco v. United States, 130 F.3d 873, 877
(9th Cir. 1997).

“[S]ummary judgment is an appropriate mechanism

for deciding the legal question of whether the agency could
reasonably have found the facts as it did.”

Occidental, 753 F.2d

at 770.
V.

ANALYSIS.
A.

NMFS Adequately Considered Whether Issuance of a
Permit Would Establish a Precedent for Future
Actions or Represent a Decision in Principle About
a Future Consideration.

Plaintiffs argue that Defendants failed to adequately
consider, pursuant to 40 C.F.R. § 1508.27(b)(6), how the Project
and the Special Permit “establish an incentive and precedent for

9

more aquaculture permits in the federal waters off of Hawaii’s
coast and elsewhere without adequate environmental review.”
No. 76, PageID # 1306.

ECF

According to Plaintiffs, the Special

Permit ensures that “future decisionmakers will not have much of
a choice but to proceed by issuing this type of permit to other
aquaculture facilities,” and that this effect warranted
preparation of an EIS.

Id., PageID # 1311.

The court determines, however, that this factor was
adequately considered in Defendants’ EA, and did not require
preparation of an EIS.
NMFS specifically noted concern that the Special Permit
could “open NMFS to a flood of applications for permits by
operators wishing to undertake oceanic aquaculture in federal
waters” and could “automatically lead to applications for
industrial-scale ocean culture activities.”

AR at 55.

NMFS

concluded, however, that such concerns were unwarranted because
the Special Permit was a “one-time permit limited in both scope
and duration.”

NMFS noted that, even assuming the “rare

circumstance[s]” present in this case were present in another,
the Special Permit would not set a precedent because “[e]ach
application [must] be coordinated in accordance with the permit
process, and would need to comply with all applicable laws
including project-specific environmental review.”

Id.

As the Ninth Circuit has noted, “EAs are usually highly

10

specific to the project and the locale, thus creating no binding
precedent.”

Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124,

1140-41 (9th Cir. 2011).

Relying on this concept, NMFS

reasonably concluded that the issuance of the Special Permit
would not create any obligation on its part, or on the part of
any other agency, to grant future permit applications, or to
refrain from issuing an EIS in response to any aquaculture
application.

As the Ninth Circuit said in In Defense of Animals,

Dreamcatcher Wild Horse & Burro Sanctuary v. U.S. Department of
Interior, No. 12-17804, 2014 WL 1876986 (9th Cir. May 12, 2014):
Plaintiffs claim the gather will establish a
precedent for future actions with significant
effects, by encouraging future roundups of
this scope and intensity. However, this
argument is foreclosed by Ninth Circuit law
which holds that ‘EAs are usually highly
specific to the project and the locale, thus
creating no binding precedent.’ Thus, the
BLM’s finding of no significant impact in
this case will not affect the BLM’s NEPA
analysis in future gathers.
Id. at *12 (internal quotation marks and citations omitted).

See

also Fund For Animals v. Norton, 281 F. Supp. 2d 209, 234 (D.D.C.
2003) (“[A]pplications for permits are considered on an
individual basis thereby enabling the agency to make a meaningful
assessment with respect to future applications regardless of what
action it has taken on the . . . applications here.” (internal
quotation marks and citations omitted)).
Contrary to Plaintiffs’ assertions, there is no

11

evidence in the record suggesting that a future aquaculture
application will be summarily approved, or the discretion of
future decisionmakers constrained, as a result of the issuance of
the Special Permit being examined here.

The Special Permit was

granted with respect to a temporary, limited project.

See Native

Vill. of Chickaloon v. Nat’l Marine Fisheries Serv., 947 F. Supp.
2d 1031, 1072 (D. Alaska 2013) (finding adequate agency’s
explicit statement in EA that its decision would not have
precedential effect and that each future action had to be
considered individually); Nw. Envtl. Def. Ctr. v. U.S. Army Corps
of Engineers, No. 3:10-CV-01129-AC, 2013 WL 1294647, at *13 (D.
Or. Mar. 27, 2013) (“The issuance of this [regional general
permit] does not set in motion any other future projects.
Because any future [regional general permit] for gravel mining in
Oregon will require independent consideration and approval and
must stand on its own merits, no precedent has been set within
the meaning of 40 C.F.R. § 1508.27(b)(6).”); Save Strawberry
Canyon v. U.S. Dep’t of Energy, 830 F. Supp. 2d 737, 756-57 (N.D.
Cal. 2011) (“Here, the CRT project is a stand-alone project. . .
.

There is no indication that it will set in motion or spur

commitment to any specific project . . . .

And there is no

indication that it is related to any other projects such that
another would follow on by reason of the CRT project.”).
Plaintiffs’ assertion that the Special Permit will

12

leave future decisionmakers with little choice but to approve
aquaculture applications with inadequate environmental review is
not supported by law or by the record, and NMFS’s conclusion that
no precedential effect was established because any future
applications would be individually scrutinized is not arbitrary
or capricious.
Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985),
which the parties extensively discuss, does not require a
different result.

In that case, the court addressed a proposal

to build a cargo port and causeway on Sears Island, an
undeveloped island in Penobscot Bay, Maine.

The court determined

that “pressure to develop the rest of the island could well prove
irreversible” given the existence of an “integrated plan” for
development of Sears Island, including construction of an
industrial park.

Id. at 872.

This concrete plan for further

development, of which the proposal before the court was only a
part, informed the court’s conclusion that, under 40 C.F.R.
§ 1508.27(b)(6), “[e]ven if federal authorities were to have an
opportunity to consider the environmental effects of the
industrial park at a later time, that later consideration would
be unlikely to offer the decisionmaker a meaningful choice about
whether to proceed.”

Id. at 879.

The present case involves circumstances unlike those in
Marsh.

There is no evidence that there was any concrete plan to

13

establish additional aquaculture facilities at the time of the
NMFS decision, and no indication that Kona Blue’s Project was
part of an integrated plan for further activities.

The Ninth

Circuit reads 40 C.F.R. § 1508.27(b)(6) as designed to “avoid the
thoughtless setting in motion of a chain of bureaucratic
commitment that will become progressively harder to undo the
longer it continues.”

Presidio Golf Club v. Nat’l Park Serv.,

155 F.3d 1153, 1162-63 (9th Cir. 1998) (internal quotation marks
and citation omitted).

The proposal in Marsh implicated this

concern because it was part of a concrete, integrated effort to
develop Sears Island, such that approval of part of the plan
naturally provided the remainder of the plan with significant
momentum.

Analogous circumstances are not present in this case.
Plaintiffs also appear to argue that the Special Permit

issued to Kona Blue establishes a precedent by precluding NMFS
from using the Experimental or Exempted Fishing Permit (“EFP”)
process rather than the SCREFP process for future aquaculture
applications.

ECF No. 76, PageID # 1311.

Plaintiffs, however,

fail to demonstrate how NMFS’s determination that a SCREFP was
the appropriate authorization for this particular project in any
way prevents NMFS from later determining that the EFP process is
warranted for a different future proposal.
At the hearing on the present motions, Plaintiffs’
counsel asserted that use of the SCREFP process for Kona Blue’s

14

Project “nullifies” the EFP process because it sets a precedent
that the EFP process need never be used.
why this is necessarily the case.

It is unclear, however,

Not only have Plaintiffs

failed to provide evidence to support this assertion, their
argument assumes that future applications will mirror Kona Blue’s
application.

The EA notes that a SCREFP was appropriate in this

case because the Project involved a Management Unit Species and
use of an unapproved gear-type.

See AR at 30.

Even if a future

application were to also involve a Management Unit Species and
use of an unapproved gear-type, the determination that the
precise circumstances presented by the Project fit the SCREFP
process does not require any future project to follow the SCREFP
process if other circumstances differ from those presented by
Kona Blue’s application.

Plaintiffs’ argument assumes a future

application identical to Kona Blue’s application.

If the danger

of setting a precedent for a possible future identical project
were enough to trigger the EIS requirement, an EIS would be
necessary for nearly every project.
At the hearing on the present motions, Plaintiffs’
counsel also argued that the EA should have addressed the
regulatory alternatives for permitting of the Project.
Specifically, Plaintiffs’ counsel asserted that NMFS should have
analyzed the difference between the SCREFP and EFP processes as
applied to the Project.

However, Plaintiffs’ counsel cited no

15

authority for the proposition that an EA must address the various
regulatory routes available.

The purpose of an EA is to analyze

the environmental effects of a project and to determine whether
an EIS is required, rather than to analyze which permitting
process is appropriate.

Further, even assuming analysis of

alternative regulatory routes is necessary, NMFS did in fact
include a discussion in the EA as to why the SCREFP process was
the appropriate choice.

See AR at 30.

NMFS adequately considered the precedential effect of
the Project pursuant to 40 C.F.R. § 1508.27(b)(6) and reasonably
concluded that an EIS was not required.
B.

NMFS Adequately Considered the Project’s
Cumulative and Indirect, Growth-Inducing Impacts.

Plaintiffs argue that the EA failed to consider
adequately the cumulative impact and the indirect, growthinducing impact the Project would have on aquaculture
development, and that those impacts warranted preparation of an
EIS.

ECF No. 76, PageID # 1311.
“Cumulative impact” is “the impact on the environment

which results from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or non-Federal) or
person undertakes such other actions.”

40 C.F.R. § 1508.7.

In

considering cumulative impact, an agency must provide “quantified
or detailed information that results in a useful analysis.”
16

Ctr.

for Envtl. Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d
1000, 1007 (9th Cir. 2011) (internal quotation marks omitted).
“General statements about possible effects and some risk do not
constitute a hard look absent a justification regarding why more
definitive information could not be provided.”

Id. (internal

quotation marks and brackets omitted).
Plaintiffs’ contention that Defendants failed to
adequately consider the cumulative impact on the environment of
future aquaculture development in the region is without merit.
Although an agency is required to address “reasonably foreseeable
future actions,” the future regional aquaculture development that
Plaintiffs fear was, at least when NMFS was considering the
Project, merely speculative and therefore did not have to be
addressed.

An action is “reasonably foreseeable” if it is a

“proposed action.”

N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d

969, 980 (9th Cir. 2006).

However, “[f]or any project that is

not yet proposed, and is more remote in time . . . a cumulative
effects analysis would be both speculative and premature.”

Lands

Council v. Powell, 395 F.3d 1019, 1023 (9th Cir. 2005).
In the present case, Plaintiffs fail to cite any
project proposed at the time the EA was being prepared that
indicates a failure by NMFS to adequately consider cumulative
impact.

Further, even assuming that an action need not be

enshrined in a specific proposal to be considered “reasonably

17

foreseeable,” requiring an agency to analyze future aquaculture
development based only on the assumption that further development
will occur, and without any indication of the nature, scope,
location, or timeline of any potential future projects, would
result in considerable speculation.

Defendants did not have to

consider the general and undefined regional aquaculture
development Plaintiffs cite as a cumulative impact and did not
need to prepare an EIS in that regard.
Plaintiffs fare no better with respect to their
indirect, growth-inducing impact argument.

“Indirect effects”

are “caused by the action and are later in time or farther
removed in distance, but are still reasonably foreseeable.”
C.F.R. § 1508.8.

40

Indirect effects “may include growth inducing

effects and other effects related to induced changes in the
pattern of land use, population density or growth rate, and
related effects on air and water and other natural systems,
including ecosystems.”

Id.

Plaintiffs contend that regional aquaculture
development should have been analyzed as an indirect effect of
Kona Blue’s Project.
causal connection.

This contention involves an attenuated
See Ctr. for Envtl. Law, 655 F.3d at 1011.

As noted above, at the point NMFS was preparing the EA,
Plaintiffs could only speculate about the expansion of
aquaculture development.

What Kona Blue’s short-term, limited

18

Project might lead to required assumptions about a host of
intermediate steps, including whether aquaculture projects would
be proposed by private parties, and what the results would be of
the permitting process and individualized environmental review of
each proposal.

Identifying regional aquaculture development as

an indirect effect of the Project assumes a causal relationship,
when the only connection is speculative.

NEPA requires a

“reasonably close causal relationship between the environmental
effect and the alleged cause” that is lacking between regional
aquaculture development and the Project.
at 767.

Pub. Citizen, 541 U.S.

NMFS’s failure to consider regional aquaculture

development as an indirect effect of the Project was not
arbitrary and capricious, and an EIS was not required on that
basis.
C.

Plaintiffs Do Not Show That the Project Was Highly
Controversial.

This court is unpersuaded by Plaintiffs’ argument that
Defendants were required to prepare an EIS because the effects of
the Project on commercial fishermen, charter fishermen, and
practitioners of Hawaiian medicine were “highly controversial”
under 40 C.F.R. § 1508.27(b)(4).
An action is “controversial” for the purposes of 40
C.F.R. § 1508.27(b)(4) if there is “a substantial dispute [about]
the size, nature, or effect of the major Federal action.”
Mountains, 161 F.3d at 1212.

Blue

“A substantial dispute exists when
19

evidence, raised prior to the preparation of an EIS or FONSI,
casts serious doubt upon the reasonableness of an agency’s
conclusions.”

Makua v. Rumsfeld, 163 F. Supp. 2d 1202, 1219 (D.

Haw. 2001) (internal quotation marks and citations omitted).

The

mere existence of opposition to a project, however, does not
indicate that a project’s effects are “highly controversial.”
Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520,
1536 (9th Cir. 1997) (“Controversy does not refer to the
existence of opposition to a use.”); see also N.C. v. F.A.A., 957
F.2d 1125, 1134 (4th Cir. 1992) (noting that letting opposition
establish “controversy” would allow a “heckler’s veto” to suffice
for requiring EIS).
Plaintiffs fail to demonstrate that an EIS was required
under 40 C.F.R. § 1508.27(b)(4).

In support of their argument

that the effects of the Project on commercial fishermen, charter
fishermen, and practitioners of Hawaiian medicine were “highly
controversial,” Plaintiffs cite “comments of licensed fishermen
and women, who expressed concerns that the project would harm
their livelihoods[.]”

ECF No. 82, PageID # 1519-20.

However,

only one letter from the Western Pacific Regional Fishery
Management Council (“WPFMC”) is noted by Plaintiffs.
Considerably more supporting evidence should be available if the
Project’s effects were “highly controversial.”

See, e.g., Sierra

Club v. Bosworth, 510 F.3d 1016, 1031 (9th Cir. 2007) (“Here, the

20

comments of several federal and state agencies submitted in
response to the Fuels CE raised substantial questions as to
whether the project would cause significant environmental harm
and expressed serious concerns about the uncertain risk, size,
nature, and effects of actions under the CE.”); Sierra Club v.
U.S. Forest Serv., 843 F.2d 1190, 1193 (9th Cir. 1988) (“The
Sierra Club introduced affidavits and testimony of
conservationists, biologists, and other experts who were highly
critical of the EAs and disputed the Forest Service’s conclusion
that there would be no significant effects from logging because
the sequoias could be protected and their regeneration enhanced.
This is precisely the type of ‘controversial’ action for which an
EIS must be prepared.”).
Further, the WPFMC letter itself does not offer much,
if any, support for Plaintiffs’ contention.

The letter states:

Both recreational and commercial fishing . .
. use the proposed area off the Kona coast.
This area being considered may have many
conflicts with the large sportsfish fishery
that utilizes the waters off of Kona, as well
as any potential Ko’a (Hawaiian offshore
fishing ground) that may be used by the
Hawaiian community. . . . To reduce
conflicts with navigation, the Council
suggests NMFS require that the applicant
provide the coordinates of the project (to be
delineated by NMFS) applicant and base the
permit expiration date accordingly.
AR at 4246-47.

This letter raises some concerns and makes

suggestions, but does not establish the existence of a

21

substantial dispute or cast serious doubt on the agency’s
conclusions.

In fact, the letter notes that the WPFMC “does not

object to the permit application.”
At the hearing on the present motions, Plaintiffs’
counsel, asked to identify where the administrative record
reflected the existence of a substantial dispute, cited to page
28 of the EA (AR at 38) and to a letter written by Plaintiff Food
& Water Watch (AR at 5192).1

Neither of these documents

demonstrates the existence of a substantial dispute as to the
effect of the Project on commercial fishermen, charter fishermen,
and practitioners of Hawaiian medicine.
The cited page of the EA contains discussion of the
Project’s effects on the target and nontarget species, the effect
of feeds and feedings on wild fish stocks, and the socioeconomic
impact of the Project.

The discussion on page 28 of the EA says

that the fish in the CuPod are “unlikely” to escape, and that any
escaped fish would probably have a “negligible” effect on other
fish.
The letter Plaintiffs cite outlines Plaintiff Food &
Water Watch’s concerns about the Project, but by citing to it,

1

Counsel was not being required at the hearing to come up
with record citations on short notice. Proceedings before the
judge assigned to this case routinely involve the judge’s
issuance of written prehearing inclinations. That procedure was
followed here and gave counsel notice that the court wanted such
record citations and that counsel should be prepared to provide
citations at the hearing. See ECF No. 90.
22

Plaintiffs are seeking to establish a substantial dispute by
relying on their own expressions of opposition.
Plaintiffs also cite declarations by Charles Leslie and
Krista Johnson to support their argument that a substantial
dispute existed as to the effect of the Project.

These

declarations are not considered here because they are not part of
the administrative record, and the court does not perceive any
reason to go beyond the administrative record to consider them.
See Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th
Cir. 1998) (“[R]eview of an agency decision not to issue an EIS
is generally limited to review of the administrative record at
the time the decision was made.”).
Nor does Plaintiffs’ discussion of Defendant Michael D.
Tosatto’s letter to Eric C. Schwaab show that the Project was
“highly controversial.”

See AR at 118.

Tostatto, NMFS’s

Regional Administrator, describes the Project as “controversial”
only by way of acknowledging the existence of opposition.
Tostatto’s statement does not suffice to establish that the
Project warranted an EIS because it was actually “highly
controversial” for NEPA purposes as related to the impact on
fisherman or practitioners of Hawaiian medicine.
D.

The Record Does Not Show That the Impact of the
Project Was Highly Uncertain.

Plaintiffs say that the impact of the Project on
commercial fisherman, charter fisherman, and practitioners of
23

Hawaiian medicine was “unknown or of such a controversial nature
that an EIS [had to] be conducted.”
(emphasis added).

ECF No. 76, PageID # 1313

However, Plaintiffs’ motion does not actually

address the allegedly “unknown” nature of the effects of the
Project.

Therefore, before the hearing, the court asked

Plaintiffs’ counsel to come to the hearing on the present motions
prepared to clarify whether Plaintiffs were arguing that the
effect of the Project on commercial fishermen, charter fishermen,
and practitioners of Hawaiian medicine was “highly uncertain”
pursuant to 40 C.F.R. § 1508.27(5).
Plaintiffs’ counsel responded by directing the court’s
attention to pages 16 and 17 of Plaintiffs’ memorandum in support
of Plaintiffs’ motion for summary judgment, even though the
heading corresponding to those pages states that the discussion
involves a different intensity factor rather than whether the
Project’s effects were “highly uncertain.”

Pages 16 and 17 of

Plaintiffs’ memorandum include a quote from Ocean Advocates v.
U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005):
“Preparation of an EIS is mandated where uncertainty may be
resolved by further collection of data or where the collection of
such data may prevent speculation on potential . . . effects.”
ECF No. 76, PageID # 1315.

This is not an analysis of “unknown”

effects.

24

Nowhere do Plaintiffs identify what matters were
uncertain or what inquiry requires the collection of further
data.

When pressed by the court at the hearing, Plaintiffs’

counsel pointed to one page of an opposition letter submitted to
NMFS by Plaintiff Food & Water Watch (AR at 5192), but that page
does not reflect the existence of uncertainty as to any effect of
the Project.

It merely reflects Plaintiffs’ opposition to the

Project.
Thus, even assuming Plaintiffs intended to argue that
the effects of the Project are “highly uncertain” pursuant to 40
C.F.R. § 1508.27(5), Plaintiffs have failed to adequately support
that argument.
E.

NMFS Adequately Considered the Project’s Effect on
Cultural Resources.

Contrary to Plaintiffs’ assertions, NMFS adequately
considered the effect of the Project on Native Hawaiian fishermen
and their fishing grounds, and NMFS was not required to prepare
an EIS on that basis.
While section 4.13 of the EA addresses the effect of
the Project on cultural resources, sections 1.31, 3.3, 4.8, and
other sections address the effect of the Project on fishermen and
their activities.

See AR at 21, 33, 34, 39.

NMFS states, for

example:
The operation would not be expected to
negatively affect other fishermen and
communities because of the small size of the
25

array and its location beyond 3nm and outside
of the majority of popular fishing areas.
The nature of the drifting array is expected
to attract various pelagic fish species and
other marine species while acting as a FAD.
This has the potential to attract offshore
fishermen and other vessels to the array.
Fishermen would be expected to observe a safe
distance from Kona Blue’s operation, just as
would be done for other fishing operations
that exist in waters around Hawaii.
Likewise, Kona Blue will attempt to stay
clear of existing FADs to the degree possible
while respecting other fishermen that utilize
the same area of the ocean. Permitting the
proposed activity would not grant Kona Blue
special rights, or a lease, to exclusive use
of any part of the ocean. The entire action
area would remain open to all ocean
activities to the degree it is accessible
prior to the issuance of a permit.
AR at 39.

This discussion, along with the discussion in other

sections of the EA noted above, demonstrates that NMFS took a
“hard look” at the effect of the Project on fishermen and their
activities.
Although Plaintiffs specifically refer to the effect of
the Project on Native Hawaiian fishermen and their fishing
grounds, Plaintiffs fail to offer any explanation as to why those
potential concerns were not adequately addressed by the EA’s
general discussion of the Project’s effects on fishermen and
fishing grounds.

Plaintiffs therefore fail to demonstrate that

NMFS’s assessment of this issue was arbitrary or capricious.

26

VI.

CONCLUSION.
Plaintiffs’ motion for summary judgment is denied, and

Defendants’ motion for summary judgment is granted.

This

disposes of all claims and all parties in this action.
Accordingly, the Clerk of Court is directed to enter judgment in
favor of Defendants and to close this case.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 24, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

KAHEA, et al. v. National Marine Fisheries Service, et al., Civ. No. 11-00474
SOM/KSC; ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND DENYING
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

27