Greenpeace v. National Marine Fisheries Service
| Decision Date | 19 July 2000 |
| Docket Number | No. C98-492Z.,C98-492Z. |
| Citation | 106 F.Supp.2d 1066 |
| Parties | GREENPEACE, American Oceans Campaign, and Sierra Club, Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, and William M. Daley, in his official capacity as Secretary of the Department of Commerce, Defendants, At-Sea Processors Association, United Catcher Boats, Aleutians East Borough, and Westward Seafoods, Inc., et al., Intervenor-Defendants. |
| Court | U.S. District Court — Western District of Washington |
Todd D. True, EarthJustice Legal Defense Fund, Seattle, WA, Eric Paul Jorgensen, Janis Searles, EarthJustice Legal Defense Fund, Juneau, AK, Peter Van Tuyn, Jack K. Sterne, Trustees for Alaska, Anchorage, AK, for Greenpeace, American Oceans Campaign, Sierra Club.
Marc Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, Michael AD Stanley, Juneau, AK, for Aleutians East Borough, The Aleutians East Borough.
Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Charles R. Shockey, U.S. Department of Justice, Land and Natural Resources Division, Washington, DC, Michael J. Robinson, Anthony P. Hoang, U.S. Dept of Justice, Gen. Litigation Sec. — Environment Div., Washington, DC, Lyn Jacobs, U.S. Department of Justice, Environmental & Natural Resources, Washington, DC, for National Marine Fisheries Service, William M. Daley.
James Alexander Smith, Jr., Smith & Hennessey, Seattle, WA, George J. Mannina, Jr., Gary C. Adler, O'Connor & Hannan, Washington, DC, for Westward Seafoods Inc., Wards Cove Packing Company, North Pacific Processors Inc., Nelbro Packing Company, Unisea Inc., Peter Pan Seafoods Inc., Kodiak Salmon Packers, Inc., Alyeska Seafoods Inc., Western Alaska Fisheries Inc., Kanaway Seafoods Inc., Royal Viking Inc, Morning Star LP, Great Pacific Limited Partnership, Alaskan Command Company, Pacific Knight LLC, City of Unalaska.
Linda Rae Larson, Heller Ehrman White & McAuliffe, Seattle, WA, for United Catcher Boats.
Christopher S. McNulty, Mundt MacGregor, Seattle, WA, Eldon V.C. Greenberg, Garvey, Schubert & Barer, Washington, DC, for At-Sea Processors Association.
Claire M. Gilchrist, Seattle, WA, Kenneth C. Powers, Anchorage, AK, for Sergei Vakhrin, North Pacific, Russian Far East Fisheries Film Studio, Olga Cherniagina, Kamchatka League of Independent Scientists, Pacific Environment and Resources Center.
Richard A. Smith, Smith & Lowney, PLLC, Seattle, WA, for National Wildlife Federation, International Marine Mammal, Project of Earth Island Institute, Humane Society of the United States, Defenders of Wildlife.
Jay H. Zulauf, Christopher S. McNulty, Mundt MacGregor, Seattle, WA, Eldon V.C. Greenberg, Garvey, Schubert & Barer, Washington, DC, for At-Sea Processors Association.
The Gulf of Alaska (GOA) and the Bering Sea/Aleutian Islands region (BSAI), collectively referred to as the North Pacific ecosystem, is home to the largest commercial fishery in the United States. The ecosystem is also home to the western Steller sea lion, which in 1990 was listed under the Endangered Species Act (ESA) as a threatened species and in 1997 was classified as endangered. Greenpeace, American Oceans Campaign, and the Sierra Club (plaintiffs) contend the North Pacific groundfish trawl fisheries are harmful to the endangered Steller sea lion and seek to partially enjoin these fisheries under the ESA. See docket no. 390. Specifically, plaintiffs request that the Court enjoin all groundfish trawl fishing within designated western Steller sea lion critical habitat until the National Marine Fisheries Service (NMFS) issues a legally adequate biological opinion addressing the combined, overall effects of the North Pacific groundfish fisheries on the Steller sea lion and its critical habitat. Plaintiffs' motion follows this Court's recent decision holding NMFS in continuing violation of the ESA until such time as NMFS completes a comprehensive biological opinion adequately analyzing the full scope of the North Pacific groundfish Fishery Management Plans. See Greenpeace v. National Marine Fisheries Service, 80 F.Supp.2d 1137 (W.D.Wash.2000). NMFS opposes plaintiffs' motion, as do the intervenor-defendants representing the fishing industry (collectively "Industry").
For the reasons stated in this opinion, the Court concludes that plaintiffs are entitled to the injunctive relief they request. Accordingly, the Court GRANTS plaintiffs' motion for a partial injunction of the North Pacific groundfish fisheries and will enjoin all groundfish trawl fishing within Steller sea lion critical habitat in the oceans of the BSAI and GOA west of 144~W longitude, as such critical habitat is defined by regulation, until further order of this Court. The injunction shall go into effect at noon Pacific time, August 8, 2000.
Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act), the North Pacific Fishery Management Council (Council) prepares Fishery Management Plans (FMPs) that regulate all aspects of the commercial fisheries in the GOA and BSAI. The full suite of management measures that comprise the FMPs constitute a "framework" plan governing the overall conduct of these fisheries. The Magnuson Act's implementing regulations also require the Council and NMFS to make certain discrete management decisions annually. These annual measures involve setting the harvest specifications for the fishing year, including total allowable catch limits (TACs) for target and prohibited species, and apportioning these quotas among various sectors of the fisheries and between fishing seasons. See generally Greenpeace, 80 F.Supp.2d at 1139-41, 1145-46. Both the FMPs and the authorization of the yearly fisheries constitute "agency action" under the ESA.
The Endangered Species Act imposes on all federal agencies a duty to "insure" that agency actions do not "jeopardize" the continued existence of any threatened or endangered species or result in the destruction or "adverse modification" of the critical habitat of such species. See 16 U.S.C. § 1536(a)(2). A species is "endangered" within the meaning of the ESA when it is in danger of extinction throughout all or a significant portion of its range. See 16 U.S.C. § 1532(6). The designated "critical habitat" of a species is intended to protect those geographical areas occupied by the species which contain the essential physical and biological features necessary for the survival and recovery of the species. See 16 U.S.C. §§ 1532(3), 1532(5)(A)(i). See also 58 FR 45269 ().
"Jeopardize" means:
to engage in any action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.
50 C.F.R. § 402.02. "Adverse modification" means:
a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat critical.
50 C.F.R. § 402.02
To effectuate the ESA's duty to avoid jeopardy and adverse modification, the ESA requires the "action" agency to consult with an "expert" agency to evaluate the effects a proposed agency action may have on a listed species.1 If the action agency determines through preparation of a biological assessment or informal consultation that the proposed action is "not likely to adversely effect" listed species or critical habitat, formal consultation is not required so long as the expert agency concurs. 50 C.F.R. § 402.14(b). If, however, the agency cannot affirmatively state that the proposed action is not likely to adversely affect listed species or critical habitat, formal consultation is mandatory. See 50 C.F.R. § 402.14(a) (). See also Bennett v. Spear, 520 U.S. 154, 158, 117 S.Ct. 1154, 137 L.Ed.2d 281, 292 (1997) (); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054 n. 8 (9th Cir.1994) (outlining consultation procedures).
The final product of a formal consultation is a biological opinion ("BiOp") which sets forth the expert agency's conclusions regarding jeopardy and adverse modification. See 16 U.S.C. § 1536(a)(2). If jeopardy or adverse modification is found, the expert agency must propose "reasonable and prudent alternatives" ("RPAs"), which are the proposed alternative measures by which the action can proceed without causing jeopardy or adverse modification. See 16 U.S.C. § 1536(b)(3)(A).
Since 1990, when the Steller sea lion was first listed as threatened, NMFS's Office of Sustainable Fisheries has engaged in both informal and formal consultation with NMFS's Office of Protected Resources to evaluate the effect of the North Pacific groundfish fisheries on the Steller sea lion and other marine mammals. These consultations have varied in scope from addressing the overall effects of the groundfish FMPs in their entirety, to addressing the effects of discrete amendments to the FMPs or the effects of the annual fisheries. See Greenpeace, 80 F.Supp.2d at 1140-41.
In December of 1998 NMFS issued two biological opinions addressing the potential effects of the North Pacific groundfish fisheries on the Steller sea lion. The first opinion, (hereinafter "BiOp1"), dealt specifically with the pollock and Atka mackerel fisheries. The second opinion, (hereinafter "BiOp2"), dealt with the overall effects of the FMPs in their entirety. Both of these opinions were challenged by plaintiffs in this litigation.
In BiOp1, NMFS reached a "no jeopardy"...
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