Turtle Island Restoration Network v. U.S. Dep't of Commerce

878 F.3d 725

TURTLE ISLAND RESTORATION NETWORK; Center for Biological Diversity, Plaintiffs–Appellants,

v. UNITED STATES DEPARTMENT OF COMMERCE; National Marine Fisheries Service; Wilbur L. Ross, in His Official Capacity as Secretary of Commerce; U.S. Department of the Interior; U.S. Fish & Wildlife Service; Ryan Zinke, in His Official Capacity as Secretary of the Interior, Defendants–Appellees,andHawaii Longline Association, Intervenor–Defendant–Appellee.

No. 13-17123

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 2016 Honolulu, Hawaii

Filed December 27, 2017

David L. Henkin (argued) and Paul H. Achitoff, Earthjustice, Honolulu, Hawaii, for Plaintiffs–Appellants.

Brian C. Toth (argued), Ellen J. Durkee, Dean K. Dunsmore, and Kristen L. Gustafson, Attorneys; Jeffrey H. Wood, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Philip Kline, Office of the Solicitor, United States Department of the Interior, Portland, Oregon; Elena Onaga, Office of General Counsel, National Oceanic & Atmospheric Administration, United States Department of Commerce, Honolulu, Hawaii; for Defendants–Appellees.

Ryan P. Steen (argued) and Jeffrey W. Leppo, Stoel Rives LLP, Seattle, Washington, for Intervenor–Defendant–Appellee.

Before: Sidney R. Thomas, Chief Judge, and Consuelo M. Callahan and Mary H. Murguia, Circuit Judges.

Dissent by Judge Callahan

MURGUIA, Circuit Judge:

Plaintiffs Turtle Island Restoration Network and the Center for Biological Diversity challenge the decision of the National Marine Fisheries Service ("NMFS") to allow a Hawaii-based swordfish fishery to increase its fishing efforts, which may result in the unintentional deaths of endangered sea turtles. Plaintiffs also challenge the decision of the U.S. Fish and Wildlife Service ("FWS") to issue a "special purpose" permit to the NMFS, which authorizes the fishery to incidentally kill migratory birds.

Plaintiffs brought suit against the agencies under various environmental statutes that the NMFS and the FWS are charged with administering, including the Magnuson–Stevens Fishery Conservation and Management Act (the "Magnuson–Stevens Act"), the Endangered Species Act of 1973 ("ESA"), the Migratory Bird Treaty Act ("MBTA"), and the National Environmental Policy Act ("NEPA"). The Hawaii Longline Association subsequently intervened to represent the interests of the swordfish fishery in defense of the agencies’ actions. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, and reverse and remand in part.

BACKGROUND

I. Regulatory Framework

In response to concerns about overfishing, Congress enacted the Magnuson–Stevens Act to promote the long-term biological and economic sustainability of marine fisheries in U.S. federal waters. See 16 U.S.C. § 1801(b). Under this Act, the NMFS and eight regional councils develop "management plans" for the nation’s fisheries, which the Secretary of Commerce may approve, partially approve, or reject. Id. §§ 1801(b)(4), 1852(h)(1), 1854(a)(3). The Magnuson–Stevens Act demands that a management plan be consistent with the national standards set out in the Act and "any other applicable law," id. § 1853(a)(1)(C), including the ESA, id. §§ 1531–43, and the MBTA, id. §§ 703–12.

The ESA provides for the conservation of fish, wildlife, and plant species that are at risk of extinction by requiring federal agencies to ensure that actions they authorize, fund, or carry out are "not likely to jeopardize the continued existence" of any ESA-listed species. 16 U.S.C. § 1536(a)(2). Agencies proposing actions that may affect an ESA-listed species must consult with either the NMFS or the FWS—depending on the species involved—which then reviews the proposed action and prepares a "biological opinion" ("BiOp") that evaluates whether and the extent to which the action may impact the species. Id. § 1536(b) ; 50 C.F.R. § 402.12. If the NMFS or the FWS finds that the proposed action would not jeopardize any species’ continued existence, it issues a statement permitting the "taking" of a particular number of protected animals "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B).

The FWS also has authority to enforce the MBTA, id. §§ 703–12; 50 C.F.R. § 10.1, which strictly prohibits the taking of any migratory bird the Act protects except under the terms of a valid permit issued by the Secretary of the Interior, id. § 703(a). The Secretary of the Interior has issued regulations authorizing various types of exemptions to the MBTA permitting the taking of migratory birds under certain circumstances. See 16 U.S.C. § 704(a).

In addition to the substantive mandates of the ESA and the MBTA, both the NMFS and the FWS are subject to NEPA’s procedural requirements. See Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA is concerned with process alone and "merely prohibits uninformed—rather than unwise—agency action." Id. at 351, 109 S.Ct. 1835. NEPA requires federal agencies to prepare environmental impact statements ("EIS") detailing the effects of any proposed action that stands to have a significant impact on the environment. See 42 U.S.C. § 4332(C) ; Robertson , 490 U.S. at 350, 109 S.Ct. 1835. An agency may also prepare an environmental assessment ("EA") to determine whether an EIS is needed. 40 C.F.R. §§ 1501.4(b), 1508.9(a)(1) ; Te–Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior , 608 F.3d 592, 599 (9th Cir. 2010). If the EA shows that the proposed action may significantly affect the environment, then the agency must prepare a full EIS. W. Watersheds Project v. Abbey , 719 F.3d 1035, 1050 (9th Cir. 2013). Otherwise, the agency issues a finding of no significant impact and the proposed action can proceed without further study. Id.

II. The Hawaii–Based Longline Fishing Industry

"Longline" fishing is a commercial fishing method that involves reeling out—or "setting"—a single, horizontal mainline to which shorter "branchlines" are attached at intervals. Each dangling branchline carries baited hooks. A typical longline set can use several hundred or thousand individual hooks, allowing a single fishing vessel to spread its efforts over a large area. While the mainline is in the water, the fishing equipment often ensnares birds, sea turtles, and other marine wildlife in addition to the target fish. This incidental taking of non-target animals is known as "bycatch."

The NMFS collects bycatch statistics by tracking the number of times a non-target animal is hooked or entangled by fishing gear. The most commonly observed non-target animal interactions are with Northern Pacific loggerhead and leatherback sea turtles, both of which are currently listed under the ESA as "endangered." See 50 C.F.R. § 17.11. In addition, several types of albatross interact often with the longline fisheries, including the black-footed albatross and the Laysan albatross.

There are two separately regulated longline fisheries based out of Hawaii: the deep-set fishery—which targets tuna—and the shallow-set fishery, which targets swordfish. The two fisheries are managed by the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific Region ("Pelagics FMP"), developed by the Western Pacific Fishery Management Council ("Council") in accordance with the Magnuson–Stevens Act and implemented by the NMFS. In 2001, the shallow-set fishery was closed by court order due to the NMFS’s failure to prepare an EIS analyzing the impact of longline fishing on the sea turtle population, which the court found was a violation of the agency’s NEPA obligations. See Leatherback Sea Turtle v. Nat’l Marine Fisheries Serv. , No. 99-00152, 1999 WL 33594329 (D. Haw. Oct. 18, 1999). In response, the NMFS issued an EIS and a BiOp in which the agency concluded that the shallow-set fishery was adversely affecting several species of sea turtles. In 2002, the NMFS issued regulations prohibiting all Hawaii-based swordfish longlining.

The Council subsequently developed various measures to minimize turtle bycatch, and in 2004 the NMFS reauthorized shallow-set longlining subject to new restrictions designed to reduce the number and severity of interactions between protected turtles and fishing gear. In part, the NMFS strictly limited the number of interactions the fishery could have with leatherback and loggerhead sea turtles to a maximum of 16 and 17, respectively, per fishing season. Further, the NMFS imposed an annual limit of 2,120 shallow sets, which represents fifty percent of the average number of sets deployed prior to the fishery’s closure in 2001.

In 2008, the NMFS proposed an amendment to the Pelagics FMP ("Amendment 18") that would remove the 2,120 annual set limit, allowing gear deployments to increase to their pre-2001 maximums, and also increase the number of sea turtle interactions allowed each year. After consulting internally pursuant to the ESA, the NMFS produced a BiOp concluding that Amendment 18 would not jeopardize the sea turtles. The NMFS issued a final rule implementing Amendment 18 in December 2009. 74 Fed. Reg. 65,640 (Dec. 10, 2009).

Plaintiffs initiated suit against the NMFS on the grounds that the 2009 rule violated the ESA and the MBTA. See Turtle Island Restoration Network v. U.S. Dep’t of Commerce , 834 F.Supp.2d 1004, 1007 (D. Haw. 2011). Plaintiffs’ MBTA claim was based on the fishery’s incidental take of migratory seabirds without an MBTA permit. The parties settled the case, and the NMFS entered into a consent decree that required it to withdraw its no jeopardy BiOp, reinstate the 2004 annual turtle-interaction caps, and issue a new BiOp after deciding whether to reclassify various population segments of sea turtles under the ESA. Id. at 1023–25. The other remaining provisions of the 2009 rule remained in effect, including the removal...