Greenpeace, American Oceans v. Nat'L Marine Fish., C98-492Z.

• Decision Date: 18 December 2002
• Docket Number: No. C98-492Z.,C98-492Z.
• Citation: 237 F.Supp.2d 1181
• Parties: GREENPEACE, AMERICAN OCEANS CAMPAIGN, and Sierra Club, Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, and Donald L. Evans, 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., Defendant-Intervenors.
• Court: U.S. District Court — Western District of Washington

237 F.Supp.2d 1181

GREENPEACE, AMERICAN OCEANS CAMPAIGN, and Sierra Club, Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, and Donald L. Evans, 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., Defendant-Intervenors.

No. C98-492Z.

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

December 18, 2002.

COPYRIGHT MATERIAL OMITTED

Todd D. True, Adam J. Berger, Patti A. Goldman, Earthjustice Legal Defense Fund, Seattle, WA, Eric Paul Jorgensen, Douglas A. Ruley, Janis Searles, Juneau, AK, Peter Van Tuyn, Jack K Sterne, Trustees for Alaska, Anchorage, AK, for Plaintiff.

Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Samuel D. Rauch, III, US Department of Justice, ENRD Wildlife & Marine Resources, Washington, DC, Michael J. Robinson, Anthony P. Hoang, US Department of Justice, ENRD General Litigation, Washington, DC, Charles R. Shockey, Lyn Jacobs, Wayne D. Hettenbach, US Department of Justice Environment & Natural Resources Division, Washington, DC, for Defendant.

ORDER

ZILLY, District Judge.

I. INTRODUCTION

Plaintiffs Greenpeace, American Oceans Campaign, and the Sierra Club originally filed suit in 1998 challenging the National Marine Fisheries Service's (NMFS) 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, the National Environmental Policy Act, and the Administrative Procedure Act. This litigation has resulted in several prior motions and court rulings on various issues. For a detailed description of the relevant legal and factual background in this case, see Greenpeace v. National Marine Fisheries Service, 55 F.Supp.2d 1248 (W.D.Wash. 1999) (hereinafter Greenpeace (I)); Greenpeace v. National Marine Fisheries Service, 80 F.Supp.2d 1137 (W.D.Wash.2000) (hereinafter Greenpeace (II)); and Greenpeace v. National Marine Fisheries Service, 106 F.Supp.2d 1066 (W.D.Wash.2000) (hereinafter Greenpeace (III)). This litigation has a long history which is outlined later in this Order. The matters presented at this time represent the latest disputes relating to the Steller sea lions.

This matter now comes before the Court on cross-motions for summary judgment related to Plaintiffs' Eighth, Ninth, and Tenth claims stated in Plaintiffs' Supplemental Complaint, docket no. 526. Plaintiffs' Eighth claim challenges the no jeopardy conclusion of the October 19, 2001 biological opinion (2001 BiOp) issued by NMFS. Plaintiffs' Ninth claim challenges the no adverse modification conclusion of the 2001 BiOp. Plaintiffs' Tenth claim challenges the no jeopardy or adverse modification conclusion as to global fishing rates in the November 30, 2000 biological opinion issued by NMFS (FMP BiOp) and the 2001 BiOp. Plaintiffs move for summary judgment on their Eighth, Ninth, and Tenth claims. See docket no. 544. Federal Defendants, the National Marine Fisheries Service and Donald L. Evans, Secretary of Commerce, cross-move for summary judgment on these claims. See docket no. 551. Defendant-Intervenors Aleutians East Borough, Atsea Processors Association, Fishing Company of Alaska, Inc., Groundfish Forum, Westward Seafoods, Inc., et al., and United Catcher Boats also cross-move for summary judgment on the same claims. See docket no. 553.

The Court has reviewed the documents filed in support of and in opposition to the motions together with the relevant administrative record. On October 30, 2002, the Court heard oral argument from the parties on the issues presented by the pending motions. After oral argument, the Court took the matter under advisement. Being fully advised, the Court now GRANTS Plaintiffs' Motion for Summary Judgment as to Claims Eight and Nine and DENIES Plaintiffs' Motion for Summary Judgment as to Claim Ten. For the same reasons, the Court DENIES Defendants' and Defendant-Intervenors' Motions for Summary Judgment as to Claims Eight and Nine and GRANTS Defendants' and Defendant-Intervenors' Motion for Summary Judgment as to Claim Ten. The Court remands the 2001 BiOp to the National Marine Fisheries Service for further action in compliance with this Order.

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. In 1990, the western population of Steller sea lions was listed under the Endangered Species Act (ESA) as a threatened species and in 1997 was reclassified as endangered. This case arises out of the attempt to regulate this fishery in light of the presence of an endangered species and the legal dictates of the ESA and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act), 16 U.S.C. § 1801 et seq. Regulation of this fishery under these dictates has been far from a simple task, as the extensive litigation history of this case, extending back to the filing of the original complaint on April 15, 1998, and the voluminous administrative record, comprising more than 50,000 pages of documents, amply demonstrate. It is clear to the Court that a tremendous amount of time, energy, and resources have been expended in attempting to end the decline of the western population of Steller sea lions, while maintaining the fishing industry that is so important to the region, on the basis of ever-changing scientific knowledge.

A. A Brief Review of the Procedural Process

Under the Magnuson Act, the North Pacific Fishery Management Council (Council) prepares Fishery Management Plans (FMPs) that regulate all aspects of the commercial fisheries in the North Pacific ecosystem. See 16 U.S.C. §§ 1852(a)(1)(G), (h). The promulgation of FMPs constitutes "agency action" under the ESA.

The ESA imposes upon the National Marine Fisheries Service the duty to "insure" that any proposed action by the Council does not "jeopardize" the continued existence of any threatened or endangered species or result in the destruction or "adverse modification" of the critical habitat of such species.¹ See 16 U.S.C. § 1536(a)(2). A species is "endangered" when it is in danger of extinction throughout all or a significant portion of its range. See 16 U.S.C. § 1532(6). The designated critical habitat of a species is intended to protect those geographical areas occupied by the species which contain the physical and biological features essential for the survival and recovery of the species. See 16 U.S.C. §§ 1532(3), 1532(5)(A)(i); see also 58 Fed.Reg. 45,269 (August 27, 1993) (final rule designating Steller sea lion critical habitat).

In order to avoid jeopardy and adverse modification, the ESA requires that the "action" agency consult with an "expert" agency to evaluate the effects a proposed agency action may have on a listed species.² If the action agency determines that a proposed agency action may adversely affect a listed species, the action agency is required to perform a formal consultation with the expert agency. 50 C.F.R. § 402.14(a). The final product of a formal consultation is a biological opinion (BiOp) which states the expert agency's conclusions regarding the possibility of any jeopardy or adverse modification that the proposed action would cause. See 16 U.S.C. § 1536(a)(2). When jeopardy or adverse modification is found, the expert agency must propose "reasonable and prudent alternatives" (RPAs), by which the action can proceed without causing jeopardy or adverse modification. See 16 U.S.C. § 1536(b)(3)(A).

B. A Brief Review of the Agency Actions and Litigation History

In April 1998, Plaintiffs filed suit in this Court initially alleging that NMFS was implementing a North Pacific fishery management plan without a comprehensive Environmental Impact Statement or adequate biological opinions addressing the effect of the fisheries on the Steller sea lion. See Complaint, docket no. 1. Plaintiffs specifically challenged biological opinions issued by NMFS in January 1996 for the BSAI and in March 1998 for the GOA. On October 9, 1998, this Court stayed the pending litigation because NMFS represented to the Court that it was in the process of preparing a Supplemental Environmental Impact Statement and a new biological opinion that would address all federally managed fisheries in the BSAI and GOA. In December of 1998, NMFS issued two biological opinions addressing the potential effects of the North Pacific groundfish fisheries on the Steller sea lion. The first opinion (BiOp1) discussed the effects of the pollock and Atka mackerel fisheries on the Steller sea lion. The second opinion (BiOp2) considered the effects of the FMP in their entirety. Plaintiffs challenged both of these opinions.

In BiOp1, NMFS concluded that the mackerel fishery was not likely to jeopardize the Steller sea lion population but that the pollock fishery was likely to result in jeopardy. The Court upheld these findings under the ESA. See Greenpeace (I), 55 F.Supp.2d 1248, 1269 (W.D.Wash.1999). However, the Court ruled that the RPA adopted by the Council and approved by NMFS with respect to the pollock fishery was arbitrary and capricious and remanded to NMFS for preparation of a revised RPA. Id. at 1276. In October, 1999, NMFS issued Revised Final Reasonable and Prudent Alternatives for the pollock fishery.

In BiOp2, NMFS analyzed the effects of its entire fishery management scheme on the Steller sea lion. The Court ruled on January 25, 2000 that BiOp2 was inadequate under the ESA because it was not a comprehensive opinion and failed to analyze the full scope of the FMP. Greenpeace (II), 80 F.Supp.2d 1137, 1150 (W.D.Wash. 2000). Thereafter, on July 19, 2000, this Court enjoined all...