Alask v. Lubchenco

• Decision Date: 23 July 2013
• Docket Number: 12–35204.,12–35203,Nos. 12–35201,s. 12–35201
• Citation: 723 F.3d 1043
• Parties: State of ALASKA, Plaintiff–Appellant, and Freezer Longline Coalition; Alaska Seafood Cooperative; The Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; The Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington Corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington Limited Liability Companies; FCA Holdings, Inc., An Alaska Corporation; O'Hara Corporation, A Maine Corporation; AK Victory, Inc., a Washington corporation, Plaintiffs, v. Jane LUBCHENCO, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, Defendants–Appellees, Oceana; Greenpeace Inc., Intervenor–Defendants–Appellees. State of Alaska; Freezer Longline Coalition, Plaintiffs, and Alaska Seafood Cooperative; The Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; The Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington Corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington Limited Liability Companies; FCA Holdings, Inc., An Alaska Corporation; O'Hara Corporation, A Maine Corporation; AK Victory, Inc., a Washington corporation, Plaintiffs–Appellants, v. Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, Defendants–Appellees, Oceana; Greenpeace Inc., Intervenor–Defendants–Appellees. State of Alaska; Alaska Seafood Cooperative; The Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; The Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington Corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington Limited Liability Companies; FCA Holdings, Inc., An Alaska Corporation; O'Hara Corporation, A Maine Corporation; AK Victory, Inc., a Washington corporation, Plaintiffs, and Freezer Longline Coalition, Plaintiff–Appellant, v. Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, Defendants–Appellees, Oceana; Greenpeace Inc., Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

723 F.3d 1043

State of ALASKA, Plaintiff–Appellant,

and

Freezer Longline Coalition; Alaska Seafood Cooperative; The Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; The Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington Corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington Limited Liability Companies; FCA Holdings, Inc., An Alaska Corporation; O'Hara Corporation, A Maine Corporation; AK Victory, Inc., a Washington corporation, Plaintiffs,

v.Jane LUBCHENCO, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce,^* Defendants–Appellees,Oceana; Greenpeace Inc., Intervenor–Defendants–Appellees.

State of Alaska; Freezer Longline Coalition, Plaintiffs,

and

Alaska Seafood Cooperative; The Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; The Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington Corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington Limited Liability Companies; FCA Holdings, Inc., An Alaska Corporation; O'Hara Corporation, A Maine Corporation; AK Victory, Inc., a Washington corporation, Plaintiffs–Appellants,

v.Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, Defendants–Appellees,Oceana; Greenpeace Inc., Intervenor–Defendants–Appellees.

State of Alaska; Alaska Seafood Cooperative; The Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; The Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington Corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington Limited Liability Companies; FCA Holdings, Inc., An Alaska Corporation; O'Hara Corporation, A Maine Corporation; AK Victory, Inc., a Washington corporation, Plaintiffs,

and

Freezer Longline Coalition, Plaintiff–Appellant,

v.Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, Defendants–Appellees,Oceana; Greenpeace Inc., Intervenor–Defendants–Appellees.

Nos. 12–35201, 12–35203, 12–35204.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 4, 2012.

Filed July 23, 2013.

Bradley E. Meyen and Andrew R. Naylor, Assistant Attorneys General, State of Alaska, Department of Law, Anchorage, AK; Murray D. Feldman, Holland & Hart LLP, Boise, ID; Christina F. Gomez, Holland & Hart LLP, Denver, CO, for Plaintiff–Appellant State of Alaska.

Linda R. Larson (argued) and Jessica K. Ferrell, Marten Law PLLC, Seattle, WA, for Plaintiffs–Appellants Alaska Seafood Cooperative, et al.

Ryan P. Steen and Jeffrey W. Leppo, Stoel Rives LLP, Seattle, WA, for Plaintiff–Appellant Freezer Longline Coalition.

Ignacia S. Moreno, Assistant Attorney General, Dean Dunsmore, John H. Martin, Daniel Pollak, Joan M. Pepin, and J. David Gunter II (argued), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for

Defendants–Appellees Jane Lubchenco, et al.

Colin C. O'Brien (argued), Earthjustice, Anchorage, AK; Shawn Eisele and Eric P. Jorgensen, Earthjustice, Juneau, AK, for Intervenor–Appellees Oceana, Inc. and Greenpeace, Inc.

Appeal from the United States District Court for the District of Alaska, Timothy M. Burgess, District Judge, Presiding. D.C. Nos. 3:10–cv–00271–TMB, 3:11–cv–00001–TMB, 3:11–cv–00004–TMB.

Before: MARY M. SCHROEDER, M. MARGARET McKEOWN, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

SCHROEDER, Circuit Judge:

The western Distinct Population Segment of the Steller sea lions (“wDPS”) live in the great northern Pacific Ocean region off Alaska, and they were declared endangered in 1997. More recently, in two of the seven sub-regions they inhabit, they have been experiencing population declines because they have been showing signs of nutritional stress. In 2010, the National Marine Fisheries Service (“NMFS” or “the agency”) therefore limited commercial fishing in those waters, causing representatives of the fishing industry and the State of Alaska (“Plaintiffs”) to file this action challenging the limitations.

The plaintiffs' principal argument is that the NMFS violated the Endangered Species Act (“ESA”) because it based the fishing restrictions on declines in sub-regions rather than in the entire population of the endangered species. Plaintiffs also contend the agency utilized the wrong standards in measuring the effects of continued fishing and failed to find a sufficient causal link between authorizing fisheries and the population decline. We hold that use of subregions did not violate the ESA and that the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population. We therefore affirm the district court's judgment rejecting plaintiffs' claims.

I. BACKGROUNDA. Statutory Framework

This case involves the interaction of three statutes: the Magnuson–Stevens Fisheries Conservation Act (“MSA”), the ESA, and the National Environmental Policy Act (“NEPA”). The first concerns management of fisheries, and the others concern more generally the environmental consequences of government actions. Plaintiffs claim NMFS violated all three in its promulgation of a 2010 Biological Opinion (“BiOp”) reducing commercial fishing in wDPS habitat.

The MSA governs the federal management of fisheries in various waters off the United States and establishes regional councils that are responsible for the sustainable management of fisheries. 16 U.S.C. § 1852(h). These councils create fishery management plans, which are prepared using scientific evidence and are geared toward ensuring conservation of the fisheries. Id. § 1853. The Secretary of Commerce must approve the management plans, which can include, among other things, limitations on or closure of fishing in designated zones. Id.

The ESA requires the Secretaries of Interior and Commerce to list endangered species and designate their critical habitats. 16 U.S.C. § 1533(c). Section 4(f) of the ESA requires the Secretary of Commerce to design and carry out “recovery plans” and to implement programs to conserve the species under section 7(a)(1). 16 U.S.C. §§ 1533(f), 1536(a)(1). Section 7(a)(2) of the ESA mandates that federal agencies ensure that actions they take will not “jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” 16 U.S.C. § 1536(a)(2).

Under the ESA, when a governmental entity plans to take action that may impact an endangered species, it must consult with the agency that has authority over the species. The consulted agency must then prepare a BiOp to determine whether the planned action will either likely jeopardize the species's continued existence or adversely modify its critical habitat. See id.; Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir.2008). If either of those criteria is met, the agency may suggest a “reasonable and prudent alternative” (“RPA”), which is designed to avoid jeopardy or adverse habitat modification. 16 U.S.C. § 1536(b)(3)(A); Nat'l Wildlife Fed'n, 524 F.3d at 925.

The NMFS in this case stands at the intersection of the MSA and the ESA. Its duty is to ensure that actions taken by the regional councils, including fishery management plans, do not jeopardize the continued existence of a threatened or endangered species or adversely modify critical habitat of an endangered species. See Greenpeace v. Nat'l Marine Fisheries Serv. (“ Greenpeace IV ”), 237 F.Supp.2d 1181, 1185 (W.D.Wash.2002). In this case it must evaluate the effect of the fishing plans on the wDPS and its habitat.

The third statute, NEPA, requires study of the environmental effects of any government action. 42 U.S.C. § 4332(C). Under NEPA, an agency planning an action may use an Environmental Assessment (“EA”) to determine whether the proposed action, including an RPA, would have a significant environmental impact. 40 C.F.R. § 1501.4. If the action would have such an effect, the agency must prepare an Environmental Impact Statement (“EIS”). Id. If it would not, no EIS is required. An EIS must describe the environmental consequences of the governmental action and the alternatives that were considered by the agency. When an agency makes a decision after preparation of an EIS, it must prepare a Record of Decision (“ROD”), stating its decision, the alternatives it considered, and how its decision minimizes environmental harms. 40 C.F.R. § 1505.2.

In this case, the...