United States Court of Appeals For the First Circuit

No. 23-1736

THOMAS MELONE,

Plaintiff, Appellant,

ALLCO RENEWABLE ENERGY, LIMITED; ALLCO FINANCE LIMITED,

Plaintiffs,

v.

JANET COIT, in her official capacity of Assistant Administrator, National Marine Fisheries Service; NATIONAL MARINE FISHERIES SERVICE; VINEYARD WIND 1, LLC,

Defendants, Appellees,

DEBRA HAALAND, in her official capacity of Secretary of the Interior; JOHN A. ATILANO, II, Colonel, in his official capacity of Commander and District Engineer; MARTHA WILLIAMS, in her official capacity of Principal Deputy Director; US DEPARTMENT OF THE INTERIOR; BUREAU OF OCEAN ENERGY MANAGEMENT; GARY FRAZIER, in his official capacity of Assistant Director for Endangered Species; US ARMY CORPS OF ENGINEERS; US FISH AND WILDLIFE SERVICE,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Kayatta, Lynch, and Gelpí, Circuit Judges. Thomas Melone and Allco Renewable Energy Limited on brief for appellant. Todd Kim, Assistant Attorney General, Environment & Natural Resource Division, U.S. Department of Justice, Mark Arthur Brown, Kevin W. McArdle, and Thekla Hansen-Young, Environment & Natural Resource Division, U.S. Department of Justice, and Lea Tyhach, and Gladys P. Miles, Office of the General Counsel, National Oceanic and Atmospheric Administration on brief for the federal appellees. David T. Buente, Jr., Peter C. Whitfield, James R. Wedeking, Kathleen Mueller, Jack W. Pirozzolo, and Sidley Austin LLP on brief for intervenor-appellee Vineyard Wind 1, LLC.

April 25, 2024 KAYATTA, Circuit Judge. This case is one of two appeals

in which various residents of Martha's Vineyard and Nantucket

oppose the construction of an offshore wind project aimed at

reducing reliance on fossil fuels by providing energy sufficient

to power 400,000 Massachusetts homes. Common to the two cases is

the assertion that federal agencies failed to follow the law or

good science -- as viewed by the residents -- in assessing the

possible impact of the project on the endangered North Atlantic

right whale. Our decision issued yesterday in Nantucket Residents

Against Turbines v. U.S. Bureau of Ocean Energy Management, et

al., (23-1501), rejected a challenge to a biological opinion issued

by the National Marine Fisheries Service ("NMFS") and relied on by

the Bureau of Ocean Energy Management ("BOEM") in permitting the

construction of the wind power project. In this case, we consider

a challenge to NMFS's issuance of an Incidental Harassment

Authorization ("IHA") to the project's developer -- Vineyard Wind

1, LLC ("Vineyard Wind") -- the receipt of which was also necessary

to construct the project. As we will explain, we find this

challenge also to be without merit.

I.

We first briefly rehearse the statutory background,

facts, and procedural history of the case.

- 3 - A.

The Marine Mammal Protection Act ("MMPA"),

et seq., generally prohibits the "tak[ing]" of marine

mammals.

(a). "Take" means "to harass, hunt,

capture, or kill" a marine mammal, or to attempt to do so.

§ 1362(13). The MMPA then delineates two kinds of "harass[ment]."

Level A harassment means "any act of pursuit, torment, or

annoyance" that "has the potential to injure a marine mammal or

marine mammal stock in the wild." Id. §§ 1362(18)(A)(i), (18)(C).

Level B harassment is less serious and means "any act of pursuit,

torment, or annoyance" that "has the potential to disturb a marine

mammal or marine mammal stock in the wild by causing disruption of

behavioral patterns, including, but not limited to, migration,

breathing, nursing, breeding, feeding, or sheltering." Id.

§§ 1362(18)(A)(ii), (18)(D).

The MMPA includes certain exceptions to its general take

prohibition. See, e.g., id. § 1371(a)(1)–(2). As relevant here,

the MMPA provides that "upon request . . . by citizens of the

United States who engage in a specified activity (other than

commercial fishing) within a specified geographic region," NMFS

shall authorize, for periods of not more than one year, "the

incidental, but not intentional, taking by harassment of small

numbers of marine mammals of a species or population stock" if the

agency finds, among other things, that "such harassment during

- 4 - each period concerned will have a negligible impact on such species

or stock." Id. § 1371(a)(5)(D)(i)(I). NMFS's authorization --

the IHA -- must then prescribe, where applicable, "permissible

methods of taking by harassment pursuant to such activity, and

other means of effecting the least practicable impact on such

species or stock," as well as "requirements pertaining to the

monitoring and reporting of such taking." Id.

§ 1371(a)(5)(D)(ii).

The process that applicants must follow to obtain an IHA

is set forth in detail in NMFS's implementing regulations. See

. Once the applicant has supplied the information

required by the regulations, NMFS must then determine, based on

the best available scientific evidence, whether the taking by the

specified activity within the specific geographic region would

have a negligible impact on marine mammal stocks.

§ 216.104(c).

B.

In 2009, BOEM began evaluating the possibility of wind

energy development in the Outer Continental Shelf offshore from

Massachusetts, pursuant to its authority under the Outer

Continental Shelf Lands Act ("OCSLA"),

et seq.

After several years of review and public coordination, BOEM

- 5 - identified and made available for leasing an area south of Martha's

Vineyard and Nantucket.

In 2015, BOEM awarded a commercial wind energy lease to

Vineyard Wind covering a 166,886-acre (or 675 square kilometer)

area. In 2017, Vineyard Wind submitted a proposed construction

and operations plan to BOEM for review and approval. The project

would consist of wind energy infrastructure capable of generating

around 800 megawatts of clean wind energy, enough to power 400,000

homes. The infrastructure would be constructed in a roughly

76,000-acre zone within the lease area.

In September 2018, Vineyard Wind requested an IHA from

NMFS to ensure compliance with the MMPA, because, as relevant here,

noise from proposed pile-driving activities during construction of

jacket and monopile foundations could incidentally disturb right

whales.

The North Atlantic right whale is listed as endangered

under the Endangered Species Act,

et seq., and is

therefore protected by the MMPA. See

, 18,320

(Dec. 2, 1970);

(a)(3)(B);

§ 1362(1). While

they once numbered in the thousands, only 368 right whales remained

as of 2019, according to NMFS's estimate. See Int'l Ass'n of

- 6 - Machinists Local Lodge 207 v. Raimondo,

, 41 (1st Cir.

2021).

In April 2019, NMFS published notice in the Federal

Register regarding its proposal to issue an IHA to Vineyard Wind.

NMFS then requested comment on the proposed IHA.

On a parallel track, NMFS also considered the potential

impact of issuing Vineyard Wind an IHA by participating as a

cooperating agency in BOEM's review of the project proposal under

the National Environmental Policy Act ("NEPA"),

et seq. BOEM evaluated the environmental impact of the project

and memorialized its analysis in an environmental impact statement

("EIS"). Meanwhile, NMFS conducted a biological consultation

pursuant to the Endangered Species Act ("ESA"), producing a

"biological opinion" for BOEM that analyzed the project's effects

on ESA-listed species. BOEM issued a final EIS in March 2021.

See

(Mar. 12, 2021). In May 2021, BOEM, NMFS,

and other cooperating agencies issued a joint record of decision

based on the EIS, which allowed for the installation of up to

eighty-four wind turbines at select sites, subject to avoidance,

mitigation, and monitoring measures identified in the EIS. NMFS

then issued a separate decision memorandum explaining why it

- 7 - adopted BOEM's EIS in support of its proposal to issue Vineyard

Wind the IHA.

On May 21, 2021, NMFS issued the IHA to Vineyard Wind.

In June 2021, NMFS published notice of its approval of the IHA

under the MMPA. See

(June 25, 2021). As

relevant here, the IHA authorizes the non-lethal, incidental

Level B harassment of no more than twenty North Atlantic right

whales.

As detailed in the notice of issuance, NMFS evaluated

Vineyard Wind's proposed construction activities and their

potential impacts on fifteen species of marine mammals that it

found may occur in the area, including right whales. NMFS provided

a description of right whales and their presence in the project

area, as well as detailed the status of the declining population

of right whales. The agency explained that the project area is

part of an important migratory area for right whales, who also use

the area to feed. And it noted that aerial surveys showed right

whale sightings in the project area only between December and

April.

NMFS explained that pile-driving activities in

connection with the construction of up to eighty-four wind turbine

generators and one or more electrical service platforms in the

75,614-acre project area (the "specified geographic region") was

expected to create underwater noise that would result in Level B

- 8 - harassment. The agency determined that noise from pile driving is

the only source of right whale incidental harassment associated

with project construction. To estimate incidental harassment from

pile-driving noise, NMFS considered acoustic thresholds above

which the best available science indicates that marine mammals

would be impacted, the area that would contain noise above those

levels in a day, the occurrence of marine mammals in that area,

and the maximum potential number of days during which pile-driving

activities would be permitted (102 days between May and November).

NMFS predicted that, given the extensive mitigation

measures to be adopted, no Level A harassment of right whales would

occur. Those measures include the use of seasonal restrictions on

pile driving, where pile driving would only take place from May to

November, and could only extend to December if unforeseen

circumstances arose and BOEM approved the extension. Other

measures include the use of sound attenuation devices, acoustic

monitoring devices, trained protected species observers during

construction, soft-start pile-driving procedures, and vessel

strike avoidance measures.1

NMFS determined that the twenty right whales subject to

Level B harassment constituted 5.4% of the population (estimated

1 Vineyard Wind tells us that, due to unexpected delays, it has not yet installed all monopile foundations, but will seek to do so this coming fall.

- 9 - at 368 as of 2019), and that the amount was a "small number[]" of

right whales under the MMPA. The agency made its small numbers

finding "based on an analysis of whether the number of individuals

taken annually from a specified activity is small relative to the

stock or population size."

NMFS also determined that the authorized harassment

would result in a "negligible impact" on the right whale

population. It determined that the whales affected by pile-driving

noise may temporarily abandon their activities while swimming away

from the noise, temporarily avoid the project area, and experience

a temporary hearing impairment. But it determined that exposure

to pile-driving noise would not impact any essential behavioral

patterns or annual rates of recruitment and survival, nor would

any right whale be injured or killed.

C.

In July 2021, plaintiff Thomas Melone -- a part-time

resident of Martha's Vineyard, and owner of two solar energy

companies joined as plaintiffs -- filed suit in the District of

Massachusetts against NMFS, BOEM, and other federal agencies and

officials, alleging that the Vineyard Wind project approvals

violated various federal statutes, including the MMPA.

Vineyard Wind moved to intervene as a defendant. Melone

opposed the request, and the federal defendants took no position.

The district court granted Vineyard Wind leave to intervene

- 10 - permissively under Federal Rule of Civil Procedure 24(b), while

denying it leave to intervene as of right pursuant to Rule 24(a).

In so doing, the district court found that Vineyard Wind has

significant interests at stake in this litigation (including,

among other things, over $300 million already invested in the

project and contracts worth over $3 billion to install the

facility); that the outcome may impair its ability to protect those

interests; and that it had agreed to work with existing parties to

avoid unnecessary delays in the proceedings.

Melone eventually filed his operative second amended

complaint, which asserted only two counts under the MMPA relating

to NMFS's issuance of the IHA to Vineyard Wind. Count I alleged

that NMFS did not comply with certain timing-related requirements

of the MMPA,

(a)(5)(D), when it issued the IHA.

Count II alleged that NMFS's interpretation of various provisions

of section 1371(a)(5)(D) improperly led it to issue the IHA to

Vineyard Wind, and that such action is arbitrary, capricious, and

unlawful under the Administrative Procedure Act,

(2)(A). The parties then cross-moved for summary judgment.

The district court granted summary judgment in favor of

NMFS and Vineyard Wind in full. As to Count I (the dismissal of

which Melone does not appeal), the court found that NMFS did not

comply with certain notice procedures under the MMPA, but that any

such error was harmless. As to Count II, the district court held

- 11 - that NMFS complied with the MMPA in issuing the IHA to Vineyard

Wind.

This appeal followed, in which Melone challenges (1) the

district court's order permitting Vineyard Wind to intervene as a

defendant and (2) the district court's order entering summary

judgment for defendants NMFS and Vineyard Wind on Count II.

II.

We consider first Melone's challenge to the district

court's order granting Vineyard Wind permission to intervene under

Federal Rule of Civil Procedure 24(b).

We review a district court's disposition of a motion for

permissive intervention for abuse of discretion, reviewing

subsidiary conclusions of law de novo and factual findings for

clear error. T-Mobile Ne. LLC v. Town of Barnstable,

,

38 (1st Cir. 2020) (citing Int'l Paper Co. v. Inhabitants of Town

of Jay,

(1st Cir. 1989)).

Under Rule 24(b), a district court may allow the

intervention of any party who "has a claim or defense that shares

with the main action a common question of law or fact." A district

court's determination of whether to grant a motion for permissive

intervention is "highly discretionary," Liberty Mut. Ins. Co. v.

Treesdale Inc.,

(3d Cir. 2005) (internal

quotation omitted), and it may consider "almost any factor

rationally relevant" in making that determination, Daggett v.

- 12 - Comm'n on Gov. Ethics and Election Pracs.,

(1st

Cir. 1999).

The district court denied Vineyard Wind's motion to

intervene as of right under Rule 24(a) but granted its motion for

permissive intervention under Rule 24(b). In so doing, the

district court noted what was obvious -- Vineyard Wind "has

significant interests at stake in this litigation and that the

outcome may impair its ability to protect those interests."

Melone contends that Vineyard Wind was required to

establish independent Article III standing before intervening.

But this is not so, given that Vineyard Wind simply seeks to defend

the agency's position. Cf. Town of Chester v. Laroe Estates,

, 439–40 (2017) (holding that an intervenor as of right

must establish independent standing to seek additional relief

beyond that sought by a party with standing); Va. House of

Delegates v. Bethune-Hill,

(2019) (noting

that intervenor's participation in support of other existing

defendants did not require invoking the court's jurisdiction, and

thus did not require that it independently demonstrate standing,

until intervenor alone sought to appeal the district court's

order).

Melone's remaining challenges to the intervention ruling

fare no better. There was no abuse of discretion in the district

court's finding that Vineyard Wind has a significant stake in, and

- 13 - thus shares a common question of fact with, this litigation. And,

in any event, Melone fails to argue, let alone demonstrate, that

the intervention in any way prejudiced his substantial rights.

Rife v. One West Bank, F.S.B.,

(1st Cir. 2017)

(explaining that arguments not raised in an opening brief on appeal

are deemed waived). And absent that showing, any such error would

not warrant disturbing the district court's single entry of summary

judgment for NMFS and Vineyard Wind. Cf. Prete v. Bradbury,

(9th Cir. 2006) (finding harmless the district

court's erroneous grant of intervention). Melone's objection to

Vineyard Wind's presence in this case therefore fails.

III.

We consider now Melone's challenge to the district

court's order awarding summary judgment to NMFS and Vineyard Wind.

He argues only that the district court erred in finding that NMFS

complied with the MMPA in issuing the IHA to Vineyard Wind. And

he further limits that argument by training his sights on two

alleged errors. First, he argues that NMFS's determination that

the incidental harassment of up to twenty right whales constituted

a "small number" under the MMPA was arbitrary, capricious, and

unlawful. Second, he argues that NMFS's consideration of the

"specified activity . . . within a specific geographic region"

where incidental harassment may occur for purposes of Vineyard

- 14 - Wind's IHA was impermissibly narrow in scope. We recite our

standard of review and then treat Melone's arguments in turn.

A.

We review the district court's grant of summary judgment

de novo. Dubois v. U.S. Dep't of Agric.

(1st

Cir. 1996). In so doing, we review the agency's compliance with

the MMPA under the Administrative Procedure Act ("APA"). Ctr. for

Biological Diversity v. Salazar,

, 901–02 (9th Cir.

2012). Under the APA, we may not set aside an agency decision

unless it is "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law," or "unsupported by

substantial evidence."

(2)(A), (E). "A decision

is arbitrary and capricious 'if the agency has relied on factors

which Congress has 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.'" Craker

v. DEA,

(1st Cir. 2013) (quoting Motor Vehicle

Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,

(1983)).

B.

Melone's principal argument on appeal is that NMFS erred

in finding that the proposed incidental harassment of up to twenty

- 15 - right whales (or 5.4% of its population) constituted a "small

number" of the species, as required to grant the IHA under the

MMPA. See

(a)(5)(D)(i). He argues that the agency

has adopted a "blanket policy" under which it will determine any

take of up to one-third of a species' stock to be a "small number"

under the MMPA. He then argues that this policy is both arbitrary

and capricious and constitutes an unreasonable interpretation of

the MMPA.

Under the MMPA, NMFS may only authorize the incidental

take of "small numbers of marine mammals of a species or population

stock" via the issuance of an IHA.

(a)(5)(D)(i)

(emphasis added). The MMPA does not define "small numbers."

Legislative history shows that Congress recognized "the

imprecision of the term 'small numbers,' but was unable to offer

a more precise formulation because the concept is not capable of

being expressed in absolute numerical limits." H.R. Rep. No. 97-

228, at 19 (1981), as reprinted in 1981 U.S.C.C.A.N. 1458, 1469.

NMFS has accordingly adopted a "proportional approach," whereby it

"compares the number of individuals taken to the most appropriate

estimation of abundance of the relevant species" to determine

whether the authorized take is limited to "small numbers" of that

species. The Ninth Circuit has upheld the U.S. Fish and Wildlife

Service's ("FWS") use of such a proportional approach under the

- 16 - MMPA as a reasonable interpretation of the MMPA. See Salazar, 695

F.3d at 906–07.2

Here, in assessing whether Vineyard Wind's activity

would incidentally harass only "small numbers" of right whales,

NMFS determined that, pursuant to its proportional approach, its

authorization to inflict Level B, non-lethal harassment on up to

twenty right whales -- constituting less than 5.5% of its

population stock -- was a "relatively small percentage[]" of that

stock. After Melone brought suit challenging the agency's

determination, NMFS then defended its approach before the district

court by noting that "NMFS has set the upper limit for 'small

numbers' under [its] proportional approach as one-third of a

species' population." The agency then cited an unrelated final

rule, which stated that "[c]onsistent with past practice, when the

estimated number of individual animals taken . . . is up to, but

not greater than, one-third of the most appropriate species or

stock abundance, NMFS will determine that the number of marine

mammals taken of a species or stock are small." Now, Melone argues

that the agency improperly rubberstamped Vineyard Wind's proposed

2 Salazar also held that NMFS and FWS, when promulgating incidental take regulations under the MMPA, must make separate findings as to whether the authorized take constitutes "small numbers" of the species and if it would have a "negligible impact" on the species. See 695 F.3d at 903–05. Melone does not argue that NMFS failed to make the requisite distinct findings here.

- 17 - Level B harassment of 5.4% of the right whale population simply

because it is less than one-third.

On appeal, NMFS walks back its invocation of this so-

called one-third rule in the face of Melone's attempt to hoist the

agency by its own petard. It argues that we need not reach the

issue of what constitutes the upper limit of the term "small

numbers," and that the agency did not rest its "small numbers"

finding here on the grounds that the non-lethal harassment of up

to twenty right whales affected less than one-third of the species'

population. As a result, NMFS contends that Melone cannot

challenge the agency's erstwhile use of the one-third rule here,

where it formed no part of the agency's reasoning in issuing

Vineyard Wind the IHA.

We agree with NMFS. The record shows that the agency

only invoked the one-third upper limit as a belated post hoc

rationalization of its "small numbers" finding in litigation.

There is no evidence in the administrative record that it played

any role in the agency's decisional process or that the agency

otherwise applied the policy in determining whether to issue

Vineyard Wind the IHA. It is a bedrock principle of administrative

law that a court reviewing agency action may consider only the

agency's explanation given at the time the relevant decision was

made, as opposed to its post hoc rationale. See SEC v. Chenery

Corp.,

, 87–88 (1943). As a result, to the extent

- 18 - Melone takes issue with NMFS's "small numbers" determination based

on its ostensible application of a hard-and-fast one-third rule,

his argument fails.3

Putting aside Melone's critique of the agency's one-

third rule, he offers little to otherwise support a finding that

the non-lethal harassment of twenty right whales (or 5.4% of its

population) is not a "small number." Indeed, other courts have

upheld similar agency determinations, and Melone presents no

persuasive counterpoint. See, e.g., Native Vill. of Chickaloon v.

NMFS,

, 1052–53 (D. Alaska 2013) (upholding

NMFS's determination that a take of 10% of the beluga whale

population affected a "small number" of beluga whales).

Melone argues in passing that "small numbers" should be

limited to the "potential biological removal" threshold for right

whales, which is less than one. The MMPA defines "potential

biological removal" as the "maximum number of animals, not

including natural mortalities, that may be removed from a marine

mammal stock while allowing that stock to reach or maintain its

optimum sustainable population."

(20). However,

the IHA does not authorize the lethal take of any right whales --

3 We thus need not and do not consider the propriety of such a one-third rule. We hold only that the agency's determination on this record that 5.4% of the right whale population constituted a "small number" for purposes of the MMPA was not arbitrary, capricious, or otherwise unlawful.

- 19 - it only authorizes temporary, non-lethal harassment of up to twenty

right whales. And, as NMFS notes, the MMPA does not require

consideration of potential biological removal as part of the IHA

process. Rather, the statute's use of the term refers to the

development of commercial fishery take-reduction plans. Compare

§ 1371(a)(5)(D), with id. § 1387(f)(2). If anything, the

agency already considered the impact of the authorized harassment

on the species as part of its distinct "negligible impact"

analysis, which Melone does not challenge. As a result, Melone's

argument fails.

In summary, it is clear from the record that NMFS applied

its scientific expertise to consider the nature of Vineyard Wind's

activities and the type of harassment expected to occur, to

quantify the proposed take based on pile-driving noise relative to

the right whale population, and to make a separate finding that

the proposed take would have a "negligible impact" on the species.

See Native Vill. of Chickaloon,

; see also

City of Taunton v. EPA,

(1st Cir. 2018) (noting

that under the APA's arbitrary and capricious standard of review,

a court's deference is heightened when an agency's decision-making

relies on its scientific and technical expertise). Given these

- 20 - considerations, we find no fault with the agency's "small numbers"

determination here.

C.

Melone next argues that NMFS improperly segmented

Vineyard Wind's "specified activity" that might result in

incidental take and the "specific geographic region" within which

that activity would occur for purposes of issuing the IHA. First,

he argues that the statute requires a collective approach to IHA

approval, and that it was error for NMFS to consider only Vineyard

Wind's "specified activity" rather than also those of others

engaging in similar activities contemporaneously. Second, he

argues that NMFS improperly let Vineyard Wind define the "specific

geographic region" as a 75,614-acre portion of the lease area, and

that the region itself was impermissibly narrow in scope. Across

both arguments, Melone's essential claim is that the agency's

approach improperly segments applicant activities and regions so

that the IHA appears to authorize the non-lethal harassment of

only "small numbers" of right whales while ignoring its cumulative

effect on the species. We consider each argument in turn.

1.

The MMPA provides that IHAs may be issued "[u]pon request

therefor by citizens of the United States who engage in a specified

activity (other than commercial fishing) within a specific

geographic region."

(a)(5)(D)(i). NMFS

- 21 - regulations define "specified activity" as "any activity, other

than commercial fishing, that takes place in a specified

geographical region and potentially involves the taking of small

numbers of marine mammals."

. Those

regulations similarly define "specified geographic region" as "an

area within which a specified activity is conducted and that has

certain biogeographic characteristics."

NMFS regulations

also prescribe that IHA applicants must include descriptions of

the relevant specified activity and the geographic region within

which incidental take may occur in their application. See

.

Melone claims that the MMPA mandates that NMFS analyze

collectively all activities similar to those proposed by Vineyard

Wind because the statute refers to applications by "citizens" and

specifically excludes "commercial fishing." However, the

statutory provision at issue concerns whether NMFS shall grant an

IHA to a particular permittee, whether composed of a citizen or

citizens. The process is plainly applicant-driven. Moreover,

nothing in the MMPA expressly requires that NMFS analyze a broader

range of activities outside the scope of an individual IHA

application. See

(a)(5)(D);

.

As NMFS notes, the statute does not require it to consider takes

resulting from all activities proposed by all citizens undertaking

similar activities, but rather only those citizens who submit the

- 22 - request. Additionally, the statute excludes "commercial fishing"

not because "specified activity" is meant to refer to a similarly

broad category of activities, but because commercial fishing

operations are regulated under a different provision of the MMPA.

See

.

Relevant legislative history also shows that Congress

intended that "specified activity" be "narrowly identified so that

the anticipated effects" resulting from the activity "will be

substantially similar." H.R. Rep. No. 97-228, at 19 (Sept. 16,

1981). That House Report noted that it would not "be appropriate

for the Secretary to specify an activity as broad and diverse as

outer continental shelf oil and gas development," but that

activities "should be separately specified as, for example,

seismic exploration or core drilling."

Here, based on

Vineyard Wind's IHA application, NMFS considered the "specified

activity" to be pile driving associated with project construction

during a one-year period, including the use of vessels to support

pile installation. To do so was neither arbitrary nor capricious.

Melone also argues that NMFS failed to consider the

cumulative effect on right whales resulting from other activities

apart from those proposed by Vineyard Wind. But this too misses

the mark. As NMFS notes, it did consider the effects of ongoing

and past anthropogenic activities aside from Vineyard Wind's

project as part of its "negligible impact" analysis, which analyzes

- 23 - the species' density, distribution, population size, growth rate,

and other relevant stressors. Additionally, NMFS explained when

issuing the IHA that NEPA required it to "evaluate[] the direct,

indirect, and cumulative effects of the [IHA]," which it did by

participating as a cooperative agency in BOEM's development of the

project's EIS. It also considered such factors when preparing its

biological opinion for BOEM in compliance with the ESA. Meanwhile,

Melone challenges none of those determinations here. As a result,

his argument fails.

2.

Finally, Melone argues that NMFS improperly limited the

region in which covered activities would occur to that which

Vineyard Wind delineated in its IHA application -- a 74,614-acre

portion of the 675-square-kilometer lease area. He argues that

NMFS must determine the region based on similar "biogeographic

characteristics," see

, and that such a region

should encapsulate the right whale's broader habitat up and down

the eastern shoreline from Maine to Florida, or at least the entire

area south of Martha's Vineyard where right whales are known to

mate and forage.

The MMPA left the term "specific geographic region"

undefined. The House committee report, however, noted that the

region "should not be larger than is necessary to accomplish the

specified activity, and should be drawn in such a way that the

- 24 - effects on marine mammals in the region are substantially the

same." H.R. Rep. No. 97–228, at 19 (Sept. 16, 1981). "Thus, for

example, it would be inappropriate to identify the entire Pacific

coast of the North American continent as a specified geographical

region, but it may be appropriate to identify particular segments

of that coast having similar characteristics, both biological and

otherwise, as specified geographical regions."

NMFS defends its approach by arguing that it need not

define the region more broadly for purposes of the IHA because it

already considered the impact on the entire right whale population

as they migrate through the project area. As noted, it did so in

its "negligible impact" analysis, its biological opinion, and in

its participation in BOEM's EIS. In its view, there is "no take

that would result from the project for which NMFS failed to

account." Moreover, the agency argues that the area in question

is precisely where Vineyard Wind's pile-driving activities, and

therefore incidental harassment, would occur, and that this area

shares similar biological characteristics. As a result, it argues

-- and we agree -- that Melone's overarching concern that the

agency's narrow delineation of the "specific geographic region"

threatens to ignore the project's broader effect on the right whale

population is unwarranted. We therefore find that here, the

- 25 - agency's delineation of the "specific geographic region" was

proper.4

IV.

We need go no further. For the foregoing reasons, the

judgment of the district court is affirmed.

4 Melone also appeals, at length, the application of what is known as the Chevron doctrine. See Chevron v. Nat. Res. Def. Council,

(1984). But because we find no need in this case to defer to any interpretation by the agency of any statute or regulation, we have no reason to consider whether and how that doctrine might otherwise apply.

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