Hawaiian Envtl. Alliance v. U.S. Dep't of Commerce, CV. Nos. 09–00598 DAE–KSC, 10–00044 DAE–KSC.

• Decision Date: 31 January 2011
• Docket Number: CV. Nos. 09–00598 DAE–KSC, 10–00044 DAE–KSC.
• Citation: 834 F.Supp.2d 1004
• Parties: TURTLE ISLAND RESTORATION NETWORK; Center for Biological Diversity; and Kahea: The Hawaiian Environmental Alliance, Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE; National Marine Fisheries Service; and Gary Locke, in his official capacity as Secretary of the Department of Commerce, Defendants, and Hawaii Longline Association, Defendant–Intervenor Hawaii Longline Association, Plaintiff, v. National Marine Fisheries Service; and Gary Locke, in his official capacity as Secretary of the Department of Commerce, Defendants.
• Court: U.S. District Court — District of Hawaii

834 F.Supp.2d 1004

TURTLE ISLAND RESTORATION NETWORK; Center for Biological Diversity; and Kahea: The Hawaiian Environmental Alliance, Plaintiffs,

v.UNITED STATES DEPARTMENT OF COMMERCE; National Marine Fisheries Service; and Gary Locke, in his official capacity as Secretary of the Department of Commerce, Defendants,andHawaii Longline Association, Defendant–Intervenor

Hawaii Longline Association, Plaintiff,

v.National Marine Fisheries Service; and Gary Locke, in his official capacity as Secretary of the Department of Commerce, Defendants.

CV. Nos. 09–00598 DAE–KSC, 10–00044 DAE–KSC.

United States District Court,

D. Hawai‘i.

Jan. 31, 2011.

Isaac H. Moriwake, Paul H. Achitoff, Earthjustice Legal Defense Fund, Honolulu, HI, for Plaintiffs.

Erik E. Petersen, U.S. Department of Justice, Washington, DC, Rachel S. Moriyama, Office of The United States Attorney, Honolulu, HI for Defendants.

George w. Brandt, Steven Y. Otaguro, Lyons Brandt Cook & Hiramatsu, Jeffrey W. Leppo, Ryan P. Steen, Stoel Rives LLP, Seattle, WA, Honolulu, HI, for Defendant–Intervenor.

ORDER: (1) GRANTING PLAINTIFFS' AND FEDERAL DEFENDANTS' JOINT MOTION TO ENTER STIPULATED INJUNCTION AS AN ORDER OF THE COURT; (2) DENYING AS MOOT HLA'S MOTION FOR SUMMARY JUDGMENT

DAVID ALAN EZRA, District Judge.

On December 15, 2010, the Court heard Plaintiffs' and Federal Defendants' Joint Motion to Enter Stipulated Injunction as an Order of the Court. (“Joint Motion,” Doc. # 102.) Paul H. Achitoff, Esq., appeared at the hearing on behalf of Plaintiffs Turtle Island Restoration Network, Center for Biological Diversity, and KAHEA: The Hawaiian–Environmental Alliance (collectively, “Plaintiffs”); Erik E. Petersen, Esq., Frederick W. Tucher, Esq., and Elena Onaga, Esq. appeared at the hearing on behalf of Defendants United States Department of Commerce, National Marine Fisheries Service, and Gary Locke in his official capacity (collectively, “Federal Defendants”); Jeffrey W. Leppo, Esq. and Steven Y. Otaguro, Esq. appeared at the hearing on behalf of Intervenor–Defendant Hawaii Longline Association (“HLA”). After reviewing the motion and the supporting, opposing, and supplemental memoranda, the Court GRANTS Plaintiffs' and Federal Defendants' Joint Motion to Enter Stipulated Injunction as an Order of the Court.¹ (Doc. # 102.) HLA's Motion for Summary Judgment is DENIED AS MOOT. (Doc. # 86.)

BACKGROUND

Plaintiffs Turtle Island Restoration Network, Center for Biological Diversity, and KAHEA: The Hawaiian–Environmental Alliance (collectively, “Plaintiffs”) are nonprofit environmental organizations and corporations. On December 16, 2009, Plaintiffs filed a Complaint against Defendants United States Department of Commerce, National Marine Fisheries Service (“NMFS”), and Gary Locke (“Locke”) in his official capacity as Secretary of the Department of Commerce (collectively, “Federal Defendants”). (Doc. # 1.) On January 5, 2010, Hawaii Longline Association (“HLA”) filed a motion to intervene in the lawsuit (Doc. # 5), which U.S. Magistrate Judge Kevin S.C. Chang granted on February 12, 2010 (Doc. # 20). The Court dismissed Plaintiffs' Complaint without prejudice on June 24, 2010, 2010 WL 2608785, as a result of certain pleading deficiencies (Doc. # 82), and Plaintiffs filed a First Amended Complaint (“FAC,” Doc. # 84) on the same day.

As recounted in the First Amended Complaint and the parties' various filings, management of the Hawaii longline fishery (the “Fishery”) has been substantially litigated. This particular action stems from the December 10, 2009 Final Rule issued by NMFS implementing Amendment 18 to the Fishery Management Plan. (FAC ¶ 73.) Among other things, the Final Rule increases the annual number of allowable incidental interactions that occur between the fishery and loggerhead sea turtles. The lawsuit also challenges the validity of the Biological Opinion that NMFS prepared to assess the Final Rule's impact on threatened and endangered species (“2008 BiOp”) and the associated Incidental Take Statement (“ITS”).

Plaintiffs advance six causes of action in the First Amended Complaint. Federal Defendants have allegedly violated the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 703 et seq.,Sections 7 and 9 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. § 1361 et seq., the Magnuson–Stevens Fishery Conservation and Management Act (“MSA”), 16 U.S.C. § 1801 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. ( Id. ¶¶ 77–97.)

On April 5, 2010, Plaintiffs' action was consolidated with a case filed on January 22, 2010 by HLA against Locke and NMFS. (Cv. No. 10–00044, Doc. # 24.) HLA's suit sought declaratory and injunctive relief based on NMFS's alleged failure to issue determinations and authorizations pursuant to the Marine Mammal Protection Act and the Endangered Species Act. (Cv. No. 10–00044, Doc. # 1.) On December 16, 2010, HLA, NMFS, and Locke stipulated to voluntary dismissal of HLA's Complaint in the consolidated action. (Cv. No. 10–00044, Doc. # 29.)

On September 3, 2010, HLA filed a Motion for Summary Judgment on Plaintiffs' claims (Docs. 86–87) as well as a Concise Statement of Facts in Support of the Motion (Doc. # 88). This motion is currently set for hearing. (Doc. # 110.)

On October 13, 2010, Plaintiffs and Federal Defendants filed a Joint Motion to Enter Stipulated Injunction as an Order of the Court (“Joint Motion”), which in essence is a proposed consent decree that would result in dismissal of all of Plaintiffs' claims with prejudice.² (“Joint Mot.,” Doc. # 102.) On November 24, 2010, HLA filed an Opposition to the Joint Motion. (“Opp'n,” Doc. # 125.) Federal Defendants filed a Reply on December 1, 2010. (“Fed. Defs. Reply,” Doc. # 126.) Plaintiffs filed a Reply on the same day. (“Pls. Reply,” Doc. # 128.) At the December 15, 2010 hearing on the Joint Motion, the Court, concerned that it did not have sufficient information to analyze the proposed consent decree, directed the parties to file supplemental briefing as to whether the proposed consent decree was fair, reasonable, and equitable and in the public interest. (Doc. # 131.) Federal Defendants submitted their Supplemental Brief on December 30, 2010. (“Fed. Defs. Supp. Br.,” Doc. # 133.) Plaintiffs filed their Supplemental Brief on December 31, 2010. (“Pls. Supp. Br.,” Doc. # 134.) On January 14, 2011, HLA submitted its Supplemental Brief. (“HLA Supp. Br.,” Doc. # 136.)

On November 12, 2010, HLA filed a LR 74.1 Appeal from Magistrate Judge's Non–Dispositive Discovery Order,³ which arose from HLA's request to take five time-limited depositions of the Federal Defendants. (Doc. # 119.) HLA asserted that these five depositions were necessary for it to acquire information and evidence to oppose the Joint Motion, namely HLA sought to uncover evidence as to whether the proposed consent decree is “fair, reasonable, and equitable and does not violate the law or public policy.” ( Id. at 1, 4.) Federal Defendants objected to the proposed depositions ( id. at 2–3), and on November 4, 2010, HLA and Federal Defendants submitted letter briefs to Magistrate Judge Chang, pursuant to the procedure set forth in Local Rule 37.1 ( see Doc. # 116). On November 10, 2010, Magistrate Judge Chang sustained Federal Defendants' objection and prevented HLA's taking of the five proposed depositions. (Doc. # 117.) On December 17, 2010, this Court affirmed Magistrate Judge Chang's decision, finding that it was neither clearly erroneous nor contrary to law. (Doc. # 132.)

STANDARD OF REVIEW

Approval of a proposed consent decree is within the sound discretion of the court. United States v. Oregon, 913 F.2d 576, 580 (9th Cir.1990); SEC v. Randolph, 736 F.2d 525, 529 (9th Cir.1984). It is well-settled that the court should enter a consent decree if it determines that “it is fair, reasonable and equitable and does not violate the law or public policy.” Sierra Club v. Elec. Controls Design, Inc., 909 F.2d 1350, 1355 (9th Cir.1990); see also United States v. Montrose Chem. Corp. of Cal., 50 F.3d 741, 747 (9th Cir.1995). If the consent decree “comes within the general scope of the case made by the pleadings, furthers the objectives upon which the law is based, and does not violate the statute upon which the complaint was based, the agreement should be entered by the court.” Hawaii's Thousand Friends, Life of Land, Inc. v. Honolulu, 149 F.R.D. 614, 616 (D.Haw.1993) (quoting Sierra Club, 909 F.2d at 1355) (internal quotations omitted). Additionally, the court must “be satisfied that the decree represents a ‘reasonable factual and legal determination.’ ” Oregon, 913 F.2d at 581 (quoting United States v. City of Miami, 664 F.2d 435, 441 (5th Cir.1981) (en banc) (per curiam) (Rubin, J., concurring)).

Although the court's discretion should be exercised in favor of the strong policy favoring voluntary settlement of litigation, Ahern v. Cent. Pac. Freight Lines, 846 F.2d 47, 48 (9th Cir.1988), when reviewing a consent decree, a district court must independently scrutinize its terms and avoid “rubber stamp approval.” Montrose Chem. Corp., 50 F.3d at 747;see also Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 525, 106 S.Ct. 3063, 92 L.Ed.2d 405 (“[A] federal court is more than a recorder of contracts from whom parties can purchase injunctions; it is an organ of government constituted to make judicial decisions.” (citations and quotations omitted)); Miami, 664 F.2d at 440–41 (“The court ... must not merely sign on the line provided by the parties. Even though the decree is predicated on consent of the parties, the judge must not give it perfunctory approval.”); United States v. Telluride Co., 849 F.Supp. 1400, 1402 (D.Colo.1994) (finding that the court may not “merely imprimit [the parties'] decision as though possessed of a clerical rubber stamp”). However, where as here, “a government agency charged...