672 F.3d 1160 (9th Cir. 2012), 11-15783, Turtle Island Restoration Network v. United States Dept. of Commerce

• Citation: 672 F.3d 1160
• Opinion Judge: GOODWIN, Senior Circuit Judge:
• Party Name: TURTLE ISLAND RESTORATION NETWORK; Center for Biological Diversity; KAHEA: The Hawaiian-Environmental Alliance, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF COMMERCE; National Marine Fisheries Service; Gary Locke, in his official capacity as Secretary of the Department of Commerce, Defendants-Appellees, Hawaii Longline Association, Interven
• Attorney: Jason T. Morgan, Stoel Rives LLP, Seattle, WA, for the intervenor-defendant-appellant. Paul H. Achitoff, Earthjustice, Honolulu, HI, for the plaintiffs-appellees. Jennifer Scheller Neumann, U.S. Department of Justice, Washington, D.C., for the defendants-appellees.
• Judge Panel: Before: ALFRED T. GOODWIN, STEPHEN S. TROTT, and MARY H. MURGUIA, Circuit Judges.
• Case Date: March 14, 2012
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

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672 F.3d 1160 (9th Cir. 2012)

TURTLE ISLAND RESTORATION NETWORK; Center for Biological Diversity; KAHEA: The Hawaiian-Environmental Alliance, Plaintiffs-Appellees,

v.

UNITED STATES DEPARTMENT OF COMMERCE; National Marine Fisheries Service; Gary Locke, in his official capacity as Secretary of the Department of Commerce, Defendants-Appellees,

Hawaii Longline Association, Intervenor-Defendant-Appellant.

No. 11-15783.

United States Court of Appeals, Ninth Circuit.

March 14, 2012

Argued and Submitted Feb. 16, 2012.

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[Copyrighted Material Omitted]

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Jason T. Morgan, Stoel Rives LLP, Seattle, WA, for the intervenor-defendant-appellant.

Paul H. Achitoff, Earthjustice, Honolulu, HI, for the plaintiffs-appellees.

Jennifer Scheller Neumann, U.S. Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding. D.C. No. 1:09-cv-00598-DAE-KSC.

Before: ALFRED T. GOODWIN, STEPHEN S. TROTT, and MARY H. MURGUIA, Circuit Judges.

OPINION

GOODWIN, Senior Circuit Judge:

The Hawaii Longline Association appeals the approval of a consent decree entered into by plaintiff environmental groups and defendant federal agencies affecting the regulation and management of the Hawaii shallow-set, swordfish longline fishery. Appellant challenges the district court's vacatur, under the terms of the consent decree, of a regulation increasing the limit on incidental interactions between longline fishing boats and loggerhead turtles and replacing the increased limit with a lower limit that was previously in effect. Appellant argues that the district court abused its discretion in approving a consent decree that violates federal law by allowing the National Marine Fisheries Service to change duly promulgated rules without following the procedural rulemaking requirements of the Magnuson-Stevens Act and the Administrative Procedure Act. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.

I. Facts and Procedural Background

Plaintiff-Appellees, Turtle Island Restoration Network, Center for Biological Diversity, and KAHEA: The Hawaiian-Environmental Alliance (collectively, " Turtle Island" ), are nonprofit environmental organizations and corporations. Turtle Island sued the Defendant-Appellees United States Department of Commerce, National Marine Fisheries Service (" NMFS" ), and Gary Locke, in his official capacity as Secretary of the Department of Commerce (collectively, the " Federal Agencies" ), challenging the implementation of Amendment 18 to the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region (the " Final Rule" ).¹ In relevant part, the Final Rule determines the annual number of allowable interactions between the Hawaii-based shallow-set longline fishery (the " Fishery" ) ² and loggerhead and

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leatherback sea turtles. Turtle Island also challenged the validity of the 2008 Biological Opinion that NMFS prepared to assess the Final Rule's impact on threatened and endangered species and the associated turtle incidental take statement. The Hawaii Longline Association (the " Longliners" ) ³ was granted permission to intervene as a defendant.

Regulation of the Fishery has been extensively litigated by these same parties over the past decade. See Turtle Island Restoration Network v. U.S. Dep't of Commerce, 438 F.3d 937, 940 (9th Cir.2006). The Final Rule is the latest attempt to modify Fishery regulations. The purpose of the Final Rule was to optimize the Fishery's yield without jeopardizing the continued existence of sea turtles and other protected resources. See Western Pacific Pelagic Fisheries; Hawaii-Based Shallow-set Longline Fishery; Court Order, 76 Fed.Reg. 13297, 13297 (Mar. 11, 2011) (codified at 50 C.F.R. pt. 665). The Final Rule implementing Amendment 18 changed certain substantive provisions of the 2004 Regulations governing the Fishery. The 2004 Regulations mandated (1) the use of large circle hooks, (2) the use of mackerel-type bait, (3) a limit of 2120 shallow-sets per year, (4) annual turtle incidental take limits of 17 loggerheads and 16 leatherbacks, and (5) 100% observer coverage on every swordfish-vessel fishing trip.

The Final Rule kept the hook, bait, and observer provisions of the 2004 Regulations intact and implemented the following changes: removal of the 2120 set limit and increase of the loggerhead interaction hard cap from 17 to 46. ⁴ The Final Rule was the result of the rulemaking apparatus authorized by the Magnuson-Stevens Fishery Conservation and Management Act (the " Magnuson Act" ). See 16 U.S.C. §§ 1851-1856. The Magnuson Act is a comprehensive national program designed to promote and manage domestic commercial fisheries. See id. § 1801(b). Congress purported to accomplish these goals, in part, through the development of regional fishery management councils, which propose fishery management plans to regulate fisheries within their region. Id. § 1852. The Western Pacific Region at issue here is managed by the Western Pacific Council. Id. § 1852(a)(1)(H). The Final Rule was based on a 2008 Biological Opinion by NMFS, which concluded that the increased incidental take limits for turtles complied with the Endangered Species Act.

The Longliners filed a motion for summary judgment on Turtle Island's claims. Turtle Island also moved for partial summary judgment on some of its claims. While those motions were pending, Turtle Island and the Federal Defendants began negotiating a settlement. These settlement negotiations resulted in Turtle Island and the Federal Agencies filing a " Joint Motion to Enter Stipulated Injunction as an Order of the Court." The district court characterized this joint motion as " in essence ... a proposed consent decree that would result in dismissal of all of [Turtle Island's] claims with prejudice." ⁵ Over the Longliners' objection, and after supplemental briefing, the district court entered an order approving the Consent Decree

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and denying as moot the Longliners' motion for summary judgment. Under the terms of the Consent Decree, the district court, in relevant part:

• vacated and remanded to the Federal Agencies the portions of the 2008 Biological Opinion and accompanying incidental take statement supporting the increase in allowable loggerhead turtle incidental take;

• vacated and remanded to the Federal Agencies the portions of the Final Rule implementing the increased allowable loggerhead turtle incidental take;

• reinstated the lower incidental loggerhead turtle take limits from the 2004 Biological Opinion and accompanying incidental take statement;

• ordered NMFS to promulgate a new regulation implementing the amount of annual incidental turtle take as set forth in the 2004 Regulations;

• prohibited NMFS from increasing turtle take limits to a number greater than the 2004 limits without first issuing a new Biological Opinion;

• ordered NMFS to issue a new Biological Opinion and accompanying incidental turtle take statement for the Fishery within 135 days after making a final determination on its proposed listing of nine distinct population segments of loggerhead turtles as endangered.

The practical effect of the district court's order is not to affect the Final Rule, including removal of the 2120 set limit, except to reduce the incidental take limit for loggerhead turtles back to the pre-existing 2004 limits (a reduction from 46 to 17). The Consent Decree further provided that the reduction was to remain in effect until NMFS issued a new biological opinion and new regulations addressing the take limits. Notably, on September 16, 2011, while this appeal was pending, NMFS uplisted the North Pacific Ocean Distinct Population Segment of loggerhead turtles (the population segment at issue here) as endangered. See Determination of Nine Distinct Population Segments of Loggerhead Sea Turtles as Endangered or Threatened, 76 Fed.Reg. 58,868, 58,943 (Sept. 22, 2011) (codified at 50 C.F.R. pts. 223-224). On January 30, 2012, NMFS issued the biological opinion contemplated in the Consent Decree. See Biological Opinion, Endangered Species Act— Section 7 Consultation (National Marine Fisheries Service Jan. 30, 2012) available at http:// www. fpir. noaa. gov/ Library/ PUBDOCs/ biological_ opinions/ SSLL% 202012% 20BiOp% 201-30-2012-final% 20FOR% 20POSTING% 20ON% 20WEBSITE.pdf. The new biological opinion included an incidental take statement that anticipated annual interactions of up to 34 loggerhead and 26 leatherback turtles. Id. at 125.

II. Jurisdiction under 28 U.S.C. § 1292(a)(1)

The courts of appeals have jurisdiction over " [i]nterlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions." 28 U.S.C. § 1292(a)(1). The Longliners assert that we have jurisdiction because the Consent Decree is, as the district court labeled it, an injunction.⁶ The Federal Agencies agree with the Longliners and also argue that we have jurisdiction. Turtle Island argues against jurisdiction on the grounds that the Consent Decree is a vacatur and remand. See Eluska v. Andrus, 587 F.2d 996, 999-1001 (9th Cir.1978) (holding that orders remanding an action

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to a federal agency are generally not considered final appealable orders).

" In determining the appealability of an interlocutory order under 28 U.S.C. § 1292(a)(1), we look to its substantial effect rather than its terminology." Armstrong v. Wilson, 124 F.3d 1019, 1021 (9th Cir.1997) (internal quotation marks and citation omitted). That the district court labeled its order an injunction is not dispositive. See id. This court treats consent decrees that " prescribe[ ] conduct ... and compel [ ] compliance" as injunctions. See Thompson v. Enomoto, 815 F.2d 1323, 1326 (9th Cir.1987).

Turtle Island argues...