Center for Marine Conservation v. Brown

• Citation: 917 F. Supp. 1128
• Decision Date: 21 February 1996
• Docket Number: G-94-660.,Civ. A. No. G-95-265
• Parties: CENTER FOR MARINE CONSERVATION, et al. v. Ronald BROWN, et al. TEXAS SHRIMP ASSOCIATION, et al. v. Ronald BROWN, et al.
• Court: U.S. District Court — Southern District of Texas

917 F. Supp. 1128

CENTER FOR MARINE CONSERVATION, et al. v. Ronald BROWN, et al.

TEXAS SHRIMP ASSOCIATION, et al. v. Ronald BROWN, et al.

Civ. A. Nos. G-95-265, G-94-660.

United States District Court, S.D. Texas, Galveston Division.

February 21, 1996.

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William E. Junell, Jr., Paul M. Bohannon, Andrews & Kurth, Houston, TX, Benjamin Sharp, Donald C. Baur, Washington, DC, for Center for Marine Conservation, Daniel Horovitz, Page S. Williams, Dr. Deborah Crouse.

Gaynelle Griffin Jones, U.S. Attorneys Office, Houston, TX, Daniel David Hu, U.S. Attorneys Office, Houston, TX, Elizabeth Lambert, Asst. Attorney General, Austin, TX, Christiana P. Perry, U.S. Dept. of Justice, Washington, DC, James C. Kilbourne, U.S. Dept. of Justice, Washington, DC, Anthony P. Hoang, U.S. Dept. of Justice, Washington, DC, for Ronald NMI Brown, James Baker, Rolland A. Schmitten, Dr. Andrew J. Kemmerer, and Wayne Swingle.

Wesley Blevins, Seadrift, TX, pro se.

Richard Moore, Dickinson, TX, pro se.

Terry Ricks, Aransas Pass, TX, pro se.

Michael K. Bell, Bell & Murphy, Houston, TX, James P. Walsh, Washington, DC, for National Fisheries Institute, Texas Shrimp Association.

ORDER

KENT, District Judge.

This case began as action by the CMC under the Endangered Species Act (the CMC Action) to force various agencies and employees of the United States (the Federal Defendants) to protect five species of threatened and endangered sea turtles by implementing and enforcing regulations designed to reduce the number of turtles killed as a result of commercial shrimping. The National Fisheries Institute and the Texas Shrimp Association (together, the Shrimp Industry Intervenors or the Intervenors), representing the interests of certain members of the shrimping industry, intervened in the CMC Action. The Intervenors then filed a separate action against the Federal Defendants challenging certain actions of the Defendants under the Administrative Procedure Act (the Shrimpers Action). On June 30, 1995, this Court granted the CMC's Motion to intervene in the Shrimpers Action, and consolidated the Shrimpers Action into the CMC Action. After various motions and procedural machinations, the Court is now presented with a multitude of competing dispositive motions — the CMC's Motion for Summary Judgment in its favor in the CMC Action, the CMC's Motion to Dismiss or for Summary Judgment against the Shrimpers Action, the Intervenors' Motion for Summary in its favor in the Shrimpers Action, the Intervenors' Motion for Summary Judgment against the CMC Action, and the Federal Defendants' Motion for Summary Judgement in its favor in both the CMC Action and the Shrimpers Action. As will be set forth in detail below, the Federal Defendants' Motion for Summary Judgment in the CMC Action and the Shrimpers Action, the CMC's Motion for Summary Judgment against the Shrimpers Action, and the Intervenors' Motion for Summary Judgment against the CMC Action are hereby GRANTED, and the remaining Motions are hereby DENIED.

I. THE STATUTORY FRAMEWORK

A. The Endangered Species Act

The Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544, one of the most stringent environmental laws, was enacted in an attempt to "halt and reverse the trend toward species extinction, whatever the cost." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117 (1978). Under the ESA, the Secretary of Commerce or the Secretary of the Interior must make determinations about the status of certain species, and must determine whether a species qualifies as "endangered" or "threatened."¹ Once a species is listed, it is afforded certain protections under the ESA, and federal agencies assume special obligations to conserve the listed species. 16 U.S.C. § 1536(a)(1). Any "taking" of an endangered species is prohibited. 16 U.S.C. § 1538(a)(1)(B).² This prohibition also extends to the taking of threatened sea turtles. 50 C.F.R. § 227.71(a). However, "incidental takes" of listed species — takings not directed at the species itself but incidentally arising from otherwise lawful activities — may be authorized by the Secretary subject to certain conditions. 16 U.S.C. § 1539(a)(1)(B); 50 C.F.R. § 402.02.

To ensure that federal agency actions "are not likely to jeopardize the continued existence of any endangered species," the ESA requires any federal agency to consult with the Secretary with regard to any action it authorizes, funds, or carries out, if that action may affect any endangered or threatened species. See 16 U.S.C. § 1536(a)(2) (requiring consultation); 50 C.F.R. § 402.02 (defining agency action). For actions that may affect certain species, including sea turtles while in the water, the National Marine Fisheries Service (NMFS) is designated as the agency with which the "action" agencies must consult. 50 C.F.R. § 402.01(b).

After the consultation between the NMFS and the action agency, the NMFS must issue a written biological opinion detailing how the agency action will or does affect the listed species. The opinion must include NMFS's opinion as to whether the action is likely to jeopardize the continued existence of the listed species. 16 U.S.C. § 1536(b)(3)(A). If the NMFS concludes the action is likely to jeopardize the continued existence of the listed species, it must suggest the "reasonable and prudent alternatives" which can be taken by the action agency to ensure its actions do not jeopardize the continued existence of the listed species. Id. If the NMFS concludes the proposed action will not jeopardize the continued existence of the listed species, or provides the action agency with any reasonable and prudent alternatives, and concludes that an incidental taking of the species may occur, the NMFS must issue an incidental take statement (ITS) containing reasonable and prudent measures necessary or appropriate to minimize the impact of the incidental take of the species. 16 U.S.C. § 1536(b)(4). The ITS must contain the terms and conditions that must be complied with by the action agency in order to implement the reasonable and prudent measures necessary to minimize the impact of the incidental take. Id. If the action agency complies with the terms of the ITS, any taking contemplated by the ITS statement is not considered to be a prohibited taking. 16 U.S.C. § 1536(o)(2).

The Federal Defendants administer the Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882 (FCMA), which governs the use of the United States' fishery resources. See 16 U.S.C. § 1801; see generally United States v. F/V Alice Amanda, 987 F.2d 1078, 1079 (4th Cir.1993). Under the FCMA, regional management councils prepare and amend Fishery Management Plans (FMPs), which are implemented through regulations promulgated by the NMFS through notice and comment rulemaking procedures. 16 U.S.C. § 1852, 1854(a), (b), and (c)(2). The Federal Defendants' authorization of the shrimp fishery FMP triggers the consultation requirement of section 1536(a)(2) of the ESA.

The five species of sea turtles occurring in United States waters are loggerhead, leatherback, green, hawksbill, and Kemp's ridley, and all five species are listed as either endangered or threatened under the ESA. 50 C.F.R. §§ 222.23(a), 227.4. The Secretary of Commerce has delegated his ESA responsibility over sea turtles to the NMFS. In 1987, the NMFS issued regulations to protect the threatened and endangered sea turtles. 52 Fed.Reg. 24244 (June 29, 1987); Administrative Record (AR) II.A.1; AR II. C.7. As amended in 1992, the regulations require most shrimp trawlers in inshore and offshore waters to install and use a NMFSapproved turtle excluder device (TED) in each net year round. 50 C.F.R. § 227.72(e)(2); AR II.D.8.

In 1992, the NMFS adopted regulations creating an emergency framework through which the agency could take certain limited action to address the taking of sea turtles. 50 C.F.R. 227.72(e)(6). The regulations provide that the exception for incidental takings of sea turtles does not apply to takings that would violate the restrictions, terms, or conditions of an incidental take statement or permit, or that may be likely to jeopardize the continued existence of a listed species. 50 C.F.R. 227.72(e)(6)(i). The NMFS may determine that incidental takings of sea turtles are unauthorized, and may restrict activities if necessary to avoid unauthorized takings that may be likely to jeopardize the continued existence of a listed species. 50 C.F.R. § 227.72(e)(6)(ii). These restrictions are published in the Federal Register, and are effective for no more than 30 days unless extended through another notice action. Id. § 227.72(e)(6)(v).

B. The National Environmental Policy Act

The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, requires federal agencies to prepare an environmental impact statement (EIS) to be included in every major federal action that significantly affects the quality of the human environment. 42 U.S.C. § 4332(2)(C). NEPA is a procedural process that mandates a process rather than a result. Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir.1994). NEPA does not require that an agency select an environmentally favorable course of action, but only that the agency make its decision to proceed with a particular action after taking a "hard look" at environmental consequences. Sabine River Auth. v. United States Dep't. of Interior, 951 F.2d 669, 676 (5th Cir.), cert. denied, 506 U.S. 823, 113 S.Ct. 75, 121 L.Ed.2d 40 (1992) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989)). NEPA prohibits uninformed, not unwise, agency actions. Sabine, 951 F.2d at 676.

An EIS must contain a "detailed statement of the expected adverse consequences of an action, the resource commitments involved in it, and the...