## Facts

- Georgia Aquarium applied to the National Marine Fisheries Service (NMFS), within NOAA, for an MMPA permit to import 18 beluga whales captured in Russian waters for public display and participation in a North American breeding cooperative.
- The whales were captured in 2006, 2010, and 2011 from the Sakhalin Bay–Nikolaya Bay–Amur River estuary area and held at a Russian facility pending export.
- The plan contemplated distributing the whales among several U.S. marine parks and aquariums under breeding-loan arrangements.
- The Marine Mammal Protection Act (MMPA) presumes against taking and importation of marine mammals unless statutory and regulatory criteria are satisfied; the permit applicant bears the burden of proof.
- NMFS denied the permit, finding the application did not adequately establish required criteria, citing substantial data gaps about the relevant beluga stock’s status and the effects of removing 18 whales, including in light of other removals.
- Georgia Aquarium sued under the Administrative Procedure Act (APA), asserting the denial was arbitrary and capricious and contrary to law; the parties filed cross-motions for summary judgment on the administrative record, with conservation groups intervening in support of the denial.

## Issues

1. Whether NMFS’s denial of the import permit was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under APA § 706(2)(A).
2. Whether NMFS reasonably concluded that the Aquarium failed to meet its burden to show the import would satisfy MMPA criteria, including avoiding significant adverse impacts on the relevant beluga stock and remaining consistent with the MMPA’s protective purposes.
3. Whether NMFS permissibly interpreted and applied its regulations regarding stock identification, population status, cumulative removals, and treatment of scientific uncertainty.

## Decision

- The court granted summary judgment to the federal defendants and intervenor-defendants and denied Georgia Aquarium’s motion.
- The court upheld NMFS’s permit denial as a reasoned decision within the bounds of the MMPA and APA review.
- The court credited NMFS’s reliance on scientific uncertainty and information gaps about stock status and the impact of the proposed removals, and its consideration of cumulative removals from the same stock.
- The court rejected challenges asserting NMFS imposed extra-statutory requirements or inadequately explained its reasoning, finding the agency addressed relevant evidence and comments in the record.

## Legal Principles

- Under the APA’s arbitrary-and-capricious standard, courts do not substitute their judgment for an agency’s technical and scientific judgments if the agency considered relevant factors and explained its reasoning.
- The MMPA is protective and precautionary; where population status and impacts are uncertain, the statutory scheme permits the agency to act conservatively to prevent depletion.
- In MMPA permitting, the applicant bears the burden to demonstrate satisfaction of statutory and regulatory criteria; significant data gaps may justify denial when they prevent reliable findings on required criteria.
- An agency may evaluate impacts at the “stock” level and consider cumulative effects, including other known removals, when assessing whether proposed actions meet MMPA requirements.

## Conclusion

The court held that NMFS reasonably denied the Aquarium’s MMPA import permit because the Aquarium did not carry its burden to provide sufficient, reliable information to satisfy statutory and regulatory criteria, and the agency’s precautionary approach in the face of scientific uncertainty was not arbitrary or capricious under the APA.


Georgia Aquarium, Inc. v. Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga. 2015)