Oceana, Inc. v. Gutierrez

• Decision Date: 01 June 2007
• Docket Number: No. 05-5448.,05-5448.
• Citation: 488 F.3d 1020
• Parties: OCEANA, INC., Appellant v. Carlos GUTIERREZ, In his Official Capacity as Secretary of the U.S. Department of Commerce, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

488 F.3d 1020

OCEANA, INC., Appellant v. Carlos GUTIERREZ, In his Official Capacity as Secretary of the U.S. Department of Commerce, et al., Appellees.

No. 05-5448.

United States Court of Appeals, District of Columbia Circuit.

Argued March 19, 2007.

Decided June 1, 2007.

Appeal from the United States District Court for the District of Columbia (No. 04cv01155).

Eric A. Bilsky argued the cause and filed the briefs for appellant. James F. Simon entered an appearance.

Andrew Mergen, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was John E. Arbab, Attorney.

Before: GINSBURG, Chief Judge, and RANDOLPH and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge.

Leatherback sea turtles are so named because of their unusual, rubber-like shell. They are found throughout the oceans of the world, in the Atlantic, Pacific, and Indian oceans, the Caribbean Sea, and the Gulf of Mexico. Leatherbacks are the largest living sea turtles; their front flippers can span nearly 9 feet, and they range in weight from 450 to 1,500 pounds. Since 1970, the Leatherback has been listed as an endangered species pursuant to the Endangered Species Act.

Pelagic — that is, open ocean — longline fishing poses a threat to leatherback turtles. This type of fishing in the Atlantic Ocean and the Gulf of Mexico, and specifically the adequacy of federal measures to reduce the threat to leatherbacks, is the focus of this appeal. Longline fishermen concentrate on swordfish and tuna. They determine where to fish by locating temperature fronts between cooler and warmer water masses. Fishing vessels deploy a monofilament line five to forty miles long across these fronts. The mainline is rigged with hooks baited with squid or mackerel and float configurations depending on the targeted species. If the intended catch is swordfish, the line is put out at dusk and retrieved at dawn; if the target is tuna, the line is put out at dawn and picked up at dusk.

Leatherback turtles typically feed on jellyfish and are not attracted to the bait on the longlines. But they are prone to getting entangled in the lines or becoming foul hooked. Entangled or hooked turtles can drown if they cannot surface to breathe. Turtles that disentangle themselves may retain gear such as hooks or line on their flippers or shoulders. This can cause them to die either from trauma or by impairing their swimming and foraging abilities. Between 1992 and 1999, United States longline fishermen in the Atlantic Ocean — who account for only five to eight percent of the hooks fished there¹ — caught an estimated 6,363 leatherbacks. By one estimate there are only 27,600 nesting female leatherbacks in the Atlantic basin.

The Endangered Species Act directs the Secretary of Commerce and the Secretary of the Interior to determine whether a species is endangered or threatened. 16 U.S.C. § 1533(a)(1). Once a species is so designated, each federal agency must ensure that "any action authorized, funded, or carried out" by the agency is not "likely to jeopardize the continued existence" of the species. Id. § 1536(a)(2). The federal agency first determines whether any action "may affect listed species," 50 C.F.R. § 402.14(a), and, if it may, the agency initiates a formal consultation with either the Fish and Wildlife Service or the National Marine Fisheries Service, depending on the species.

During formal consultation, the Service — here the National Marine Fisheries Service² — produces a "biological opinion" describing how the proposed action will affect the species, 16 U.S.C. § 1536(b)(3)(A), and a statement concerning incidental "take" of the species, 50 C.F.R. § 402.14(g)(7).³ The biological opinion contains a determination regarding whether the proposed action is likely to jeopardize the continued existence of an endangered or threatened species, id. § 402.14(g)(4), and, if the Service finds a likelihood of jeopardy to the species, "reasonable and prudent alternatives" for the agency to implement in order to avoid the likelihood of jeopardy. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). A "reasonable and prudent alternative" — an RPA — is something "that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that is economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species." 50 C.F.R. § 402.02.

In its June 2001 biological opinion, the Fisheries Service determined that pelagic longline fishing in the Atlantic fishery was likely to jeopardize the continued existence of leatherback sea turtles. It therefore included an RPA to avoid jeopardy to leatherbacks while allowing longline fishermen to continue their operations. The RPA required the closure of the entire Northeast Distant section of the pelagic longline fishery, an area approximately due east of New Jersey. Longline vessels fishing in the remaining open areas were also required to carry dipnets and line-cutters to minimize entanglement and post-release mortality of sea turtle bycatch.

The 2001 biological opinion also stated that the Fisheries Service would conduct a cooperative research program to develop, modify, and test gear technologies and fishing strategies to "(1) reduce the likelihood of interactions between fishing gear and sea turtles and (2) dramatically reduce immediate and delayed mortality rates of turtles captured in the fisheries." The research lasted for three seasons, and took place aboard commercial longline vessels working in the Northeast Distant under a scientific research permit. The studies evaluated the effectiveness of various fishing gear and techniques in reducing both the sea turtle bycatch and the mortality rate of sea turtles captured in the fishery and released alive.

The Northeast Distant experiment led the Fisheries Service to draw several conclusions. The Service found that vessels could significantly reduce loggerhead and leatherback bycatch by replacing the industry-wide standard J-hook with circle hooks.⁴ Circle hooks reduce turtle bycatch by a range of fifty to ninety percent, depending on the type of hook, bait, and turtle involved. The gear removal procedures the experiment tested were also successful. The post-release mortality rate of leatherbacks was 13.1 percent, down from the 32.8 percent estimated for leatherbacks outside the experiment.

Upon completion of the experiment, the Fisheries Service planned to issue new regulations requiring gear modifications and to reopen longline fishing in the Northeast Distant. The proposed rule prohibited vessels from using J-hooks. The rule also included new requirements for gear removal and handling to reduce post-release mortality. The rule required that vessels carry line cutters and dipnets, that vessel operators have additional handling and release equipment, and that operators comply with additional guidelines regarding removal of gear.

The regulations and reopening of the Northeast Distant would constitute "agency action," and the Endangered Species Act therefore again required consultation between different offices within the Fisheries Service. In early 2004, the Service began assembling a new biological opinion to assess the effects of reopening the Northeast Distant subject to the proposed regulations. The Service completed the opinion in June 2004 and, having concluded the action threatened the leatherback, produced a new RPA. The 2004 RPA consists of four elements: (1) a reduction in the post-release mortality rate of leatherbacks; (2) improvement of the monitoring of the effects of the fishery; (3) confirmation of the effectiveness of the hook and bait combinations; and (4) management action to avoid long-term elevations in leatherback takes or mortality.

The 2004 RPA is detailed and specific. The 2004 biological opinion first establishes a maximum incidental take level. Given this projected number of takes, the RPA then targets a level of post-release mortality that would result in a sufficiently low number of sea turtle deaths. The total number of turtles captured multiplied by the post-release mortality rate results in the "total estimated mortality," which is the estimated total number of turtles killed by the vessels under the regulatory authority of the Fisheries Service. The anticipated take for the 2004-2006 period was 1,981, or 805 leatherbacks in 2004 and 588 thereafter. That was an increase from the goal in the 2001 biological opinion of 438 per year, but a substantial decrease from the actual takes in 2001 (1,208) and 2002(962). The anticipated three-year take starting in 2007 was 1,764, or 588 per year. The Service expected the post-release mortality rates to decline each year as fishing crews become better trained in gear removal. The biological opinion predicted mortality rates of 32.8 percent in 2004, 26.2 percent in 2005, and 19.6 percent in 2006. Beginning in 2007, the Service expects the post-release mortality rate to be 13.1 percent — the rate achieved in the Northeast Distant experiment. Thus, the Service expects the 2004 RPA to bring down total estimated mortality of sea turtles from about 264 per year in 2004 to about 77 per year starting in 2007 and continuing indefinitely.

The 2004 RPA details how to implement the other elements as well. It requires the Fisheries Service to establish a comprehensive outreach program to ensure fishermen are "aware of the safe handling and gear removal requirements of the proposed action, understand how to use the required gear, and understand the importance of maximizing gear removal to maximizing post-release survival of sea...