Greenpeace v. National Marine Fisheries Service

• Citation: 80 F.Supp.2d 1137
• Decision Date: 25 January 2000
• Docket Number: No. C98-492Z.,C98-492Z.
• 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: United States District Courts. 9th Circuit. United States District Court (Western District of Washington)

Page 1137

80 F.Supp.2d 1137

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.

No. C98-492Z.

United States District Court, W.D. Washington, at Seattle.

January 25, 2000.

Todd D True, Adam J Berger, Patti A Goldman, Earthjustice Legal Defense Fund, Seattle, WA, Eric Paul Jorgensen, Janis Searles, Earthjustice Legal Defense Fund, Juneau, AK, Douglas A Ruley, 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.

Brian C Kipnis, U.S. Attorney's Office, Seattle, WA, 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 & Leary, 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, Unalaska City of.

Linda Rae Larson, Heller Ehrman White & McAuliffe, Seattle, WA, for United Catcher Boats.

Marc Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, Michael AD Stanley, Juneau, AK, for The Aleutians East Borough.

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, Stock & Moeller, Anchorage, AK, for Sergei Vakhrin, amicus, Save the Salmon Fund, amicus, North Pacific, amicus, North Pacific Journal, amicus, Russian Far East Fisheries Film Studio amicus, Olga Cherniagina, amicus, Kamchatka League of Independent Scientists, amicus, Pacific Environment and Resources Center, amicus.

Richard A Smith, Smith & Lowney, PLLC, Seattle, WA, for National Wildlife Federation, amicus, International Marine Mammal Project of Earth Island Institute, amicus, Humane Society of the United States, amicus, Defenders of Wildlife, amicus.

Jay H Zulauf, Christopher S McNulty, Mundt MacGregor, Seattle, WA, Eldon V.C. Greenberg, Garvey, Schubert & Barer, Washington, DC, for At-Sea Processors Association.

ORDER

ZILLY, District Judge.

I. Introduction

Greenpeace, American Oceans Campaign, and the Sierra Club ("plaintiffs") have filed suit challenging the National Marine Fisheries Service's (NMFS's) North Pacific Fishery Management Plans for the groundfish fisheries in the Bering Sea and Gulf of Alaska. Plaintiffs claim these fisheries are harmful to the endangered Steller sea lion and seek relief under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). In a prior order, the Court ruled on various claims under NEPA and the ESA. See Greenpeace v. National Marine Fisheries Service, 55 F.Supp.2d 1248 (W.D.Wash.1999).

The matter is currently before the Court on motions related to plaintiffs' Fifth Claim for Relief. In their Fifth Claim for Relief, plaintiffs challenge the adequacy of a December 22, 1998 biological opinion issued by NMFS pursuant to the Endangered Species Act. The National Marine Fisheries Service moves to dismiss the claim or in the alternative for a temporary stay of litigation pending completion and issuance of a comprehensive "Groundfish consultation." See docket no. 285. Intervenor-defendants representing the fishing industry (collectively "industry") join in the motion filed by the National Marine Fisheries Service. See docket no. 298. Plaintiffs cross-move for summary judgment. See docket no. 299.

In reaching a decision on these motions, the Court has considered the pleadings filed in support of and in opposition to the motions, reviewed the litigation to this point, including the prior representations of the parties and rulings of this Court that impact the current motions, and applied the Endangered Species Act to the complex federal management scheme that regulates the North Pacific groundfish fisheries. The Court now DENIES defendant's motion to dismiss, docket no. 285, and GRANTS plaintiffs' motion for summary judgment, docket no. 299.

II. Background

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 population of Steller sea lions which in 1990 were listed under the ESA as a threatened species, and in 1997 were reclassified as endangered.¹

A. Fisheries Management in the North Pacific

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act) provides the legal framework for federal management of the fisheries in the North Pacific. See 16 U.S.C. § 1801 et seq. Under the Magnuson Act, the North Pacific Fishery Management Council (Council) prepares Fishery Management Plans (FMPs) that regulate commercial fishing in the GOA and BSAI. See 16 U.S.C. §§ 1852(a)(1)(G), (h). These FMPs must be consistent with national standards established in the Magnuson Act, 16 U.S.C. § 1851, and "shall" contain the "conservation and management measures" necessary and appropriate for the conservation and management of the fishery. 16 U.S.C. § 1853(a). "Conservation and management" is defined by the Act to include "all of the rules, regulations, conditions, methods, and other measures" required to rebuild, restore or maintain any fishery resource. 16 U.S.C. § 1802(5). In addition, conservation and management measures must be designed to assure, among other things, that "irreversible or long-term adverse effects on fishery resources and the marine environment are avoided." 16 U.S.C. § 1802(5)(ii).

FMPs must be submitted to the Secretary of Commerce ("Secretary") for review and approval to ensure they are consistent with the dictates of the Magnuson Act and other applicable law. 16 U.S.C. § 1854(a). Similarly, any implementing regulations proposed by the Council under § 1853(c) of the Act are reviewed by the Secretary to determine whether they are consistent with the Act, the FMPs, and other applicable law. 16 U.S.C. § 1854(b).

The groundfish fisheries at issue in this case are regulated under two Fishery Management Plans — one for the Bering Sea and Aleutian Islands and the other for the Gulf of Alaska. S2-350 at 9.² According to NMFS, these FMPs "utilize a myriad of interrelated regulations to manage the fisheries." S2-350 at 9. The FMPs address all the factors affecting when, where, and how the fisheries are conducted and include such measures as optimum yield for each fishery, overfishing, total allowable catch limits for targeted species (TAC), time and area closures, gear restrictions, bycatch limits of prohibited species, and allocations of TACs among vessels delivering to different types of processor groups, gear types, and qualifying communities. 16 U.S.C. § 1853; S2-350 at 9.

Since the time of their original implementation, there have been dozens of formal amendments to the North Pacific groundfish FMPs.³ In addition, discrete annual decisions such as setting the yearly TAC for each fishery, establishing the prohibited species catch limit, and apportioning the TAC into fishing seasons and among various sectors of the industry are implemented by regulation each year. See 50 C.F.R. § 679.

B. Prior ESA Compliance

Under the ESA, all federal agencies must insure that action taken by the agency does not jeopardize the existence or recovery of endangered species or adversely modify their critical habitat.⁴ Section 7 of the ESA requires the "action" agency to consult with an "expert" agency to determine whether jeopardy or adverse modification is likely to result from the proposed agency action. 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, as well as the reasoning supporting the opinion. See generally, 16 U.S.C. § 1536; 50 C.F.R. § 402.14.

Since 1990, when the Steller sea lion was first listed as threatened, NMFS's Office of Sustainable Fisheries (the "action" agency for ESA purposes) has engaged in both informal and formal consultation with NMFS's Office of Protected Resources (the "expert" agency) regarding 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 annual catch limits. See S3-19 at 100-08.

NMFS has twice before consulted on the environmental effects of the BSAI and GOA groundfish FMPs. In April 1991, NMFS issued two biological opinions addressing the overall impacts of the fisheries on the Steller sea lion and other marine mammals listed under the Endangered Species Act. See AR4-29; AR4-30. Each opinion expressly stated that the "Activity Considered" was the "Fishery Management Plan (FMP) for the Gulf of Alaska (GOA) Groundfish" and the "Fishery Management Plan for the Bering Sea/Aleutian Islands Groundfish." See AR4-29 at 1; AR4-30 at 1. According to NMFS, each opinion considered "all aspects of the fishery." AR4-29...