Greenpeace v. National Marine Fisheries Service
| Decision Date | 13 July 1999 |
| Docket Number | No. C98-492Z.,C98-492Z. |
| Citation | 55 F.Supp.2d 1248 |
| Parties | GREENPEACE, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Patti A. Goldman, Earthjustice Legal Defense Fund, Seattle WA, Peter Van Tuyn, Trustees for Alaska, Anchorage, AK, Eric Paul Jorgensen, Douglas A. Ruley, Earthjustice Legal Defense Fund, Juneau, AK, for plaintiffs.
Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Michael J. Robinson, Anthony P. Hoang, U.S. Dept. of Justice, General Litigation Section — Environment Division, Washington DC, Lyn Jacobs, U.S. Dept. of Justice, Environmental & Natural Resources, Washington DC, for defendants.
Jay H. Zulauf, Christopher s. McNulty, Mundt, MacGregor, Hapel, Falconeer, Zulauf & Hall, Seattle WA, for At-Sea Processors Association, et al., for intervenor-defendants.
James Alexander Smith, Jr., Smith & Leary, Seattle WA, George J. Mannina, Jr., Gary C. Adler, O'Connor & Hannan, Washington DC, for Westward Seafoods, Inc., et al.
Linda Rae Larson, Heller, Ehrman, White & McAuliffe, Seattle WA, for United Catcher Boats.
Marc Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle WA, Michael A.D. Stanley, Juneau AK, for Aleutians East Borough, et al.
AMENDED ORDER
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. This region is also home to the western population of Steller sea lions, which were listed under the Endangered Species Act (ESA) as a threatened species in 1990 and reclassified as endangered in 1997. This case arises out of the complex and difficult-to-assess interaction between the fisheries and the Steller sea lion population.
The federal defendants in this case are subject to the complicated legal dictates of the ESA, the National Environmental Policy Act (NEPA), and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act). Pursuant to the Magnuson Act, the North Pacific Fisheries Management Council (Council) authorizes Fishery Management Plans (FMPs) which regulate all aspects of the fisheries in the GOA and BSAI. Under the ESA, the National Marine Fisheries Service (NMFS) must consult, either formally or informally, to ensure that these FMPs are not likely to jeopardize the continued existence of the Steller sea lions, nor to modify their critical habitat. NEPA requires that environmental information is made available to decision-makers, including the Council and the Secretary of Commerce, as well as to the public, for use in such decision-making as the creation and amendment of the FMPs.
Plaintiffs1 filed suit against NMFS and William M. Daley, Secretary of Commerce (collectively NMFS), in April 1998, challenging the 1998 North Pacific Fishery Management Plans under both the ESA and NEPA. Representatives of the fishing industry intervened (collectively intervenors or industry)2. The Court granted additional environmental organizations leave to file amicus briefs in support of plaintiffs.3 The focus of the litigation has now shifted to the parameters of the 1999 fisheries in the GOA and BSAI. In particular, plaintiffs and intervenors challenge determinations made in NMFS's Biological Opinion issued December 3, 1998 regarding the 1999-2001 atka mackerel fishery and the 1999-2001 pollock fisheries.4 S1-55. Plaintiffs and intervenors also challenge the "Final Reasonable and Prudent Alternatives" passed by the Council and approved by NMFS. Finally, plaintiffs challenge the legal adequacy of the Supplemental Environmental Impact Statement (SEIS), issued on December 18, 1998, regarding the North Pacific fisheries.5
This matter currently is before the Court on cross-motions for summary judgment: plaintiffs' motion, docket no. 181, defendants' motion, docket no. 184, and intervenors' motion, docket no. 187. On May 13, 1999, the Court heard argument on these motions and took the matter under advisement in order to carefully study the issues presented. Having considered the arguments of counsel, the motions, all materials filed in support and in opposition, the amicus briefs, and the record in this case, the Court hereby GRANTS in part and DENIES in part the motions of plaintiffs, defendants, and intervenors.
Steller sea lions are closely related to other types of sea lions and to fur seals. The genus to which Steller sea lions belong is thought to be at least 3 million years old. Female Steller sea lions average 2.3 meters in length and 263 kilograms weight, while males are somewhat larger, at 2.8 meters and 566 kilograms. Males live to about 20 years old, and females can reach 30 years old. In 1965, the population of the western stock of Steller sea lions was estimated at 230,000 animals. They inhabit coastal areas around the North Pacific Rim, from Southern California to Japan. Before the recent population decline, approximately 75% of the world's population of Steller sea lions were found in Alaska. The majority of Steller sea lions are still found in Alaska, primarily in the Gulf of Alaska and Bering Sea/Aleutian Islands area.
Over the last three decades, however, the population of Steller sea lions in the North Pacific has declined approximately 85%. In 1990, NMFS listed the Steller sea lion as a threatened species under the ESA, and established emergency protective regulations in an attempt to stop the population decline and to begin the process of recovery.6 In 1993, NMFS designated "critical habitat" for the Steller sea lion, based in significant part on protecting food resources for the sea lions.7 This critical habitat consists of the area around 40 rookeries and 82 haulouts, which provide areas for reproduction, feeding, rest, and protection from predators and weather.8 In 1997, based on genetic distinctions, the Steller sea lion species was separated into the western and eastern populations; the western population's status was then changed to endangered. During the 1990s, the rate of decline has slowed to single-digits, but nevertheless continues. AR-125 at 4; S1-236. NMFS has determined that the next twenty years will likely be crucial for Steller sea lion survival and recovery. S1-55 at 60.
The North Pacific is home to the largest commercial fishing industry in the United States. The most abundant fish in the region, and the major component of the North Pacific fishing industry, is the walleye pollock (pollock). Pollock is a bottom-dwelling fish and a member of the cod family. S1-55 at 21. Mature female pollock are approximately 40 cm in length, and males are longer. Id. Pollock have a fairly short life-span and a high mortality rate, in part because they are sometimes highly cannibalistic.
The estimated biomass of pollock in the North Pacific ecosystem has fluctuated significantly since the 1960s. In the east Bering Sea, for example, the estimated biomass was less than 2 million metric tons (mmt) in the mid-1960s, rose to nearly 8 mmt in 1971, declined to 4 mmt in 1978, peaked at 14 mmt in 1984, declined to 8 mmt in 1990, increased again to over 12 mmt in 1993, and dropped to 7 mmt in 1997. S1-55 at 25. The fishing effort directed toward pollock has also fluctuated. From 1964 to 1970, the pollock catch in the BSAI rose from approximately 200,000 to 1 million mt. Id. at Fig. 13. In the late 1980s, the total catch peaked at approximately 2.7 mmt. Id. A significant portion of this catch came from what later was designated as Steller sea lion critical habitat. Id. By the mid-1990s, the total pollock catch in the BSAI had declined to approximately 1.25 mmt, but much of the catch came from within Steller sea lion critical habitat. Id. Scientists believe that the pollock population changes stem in large part from climate changes which have effected the rest of the North Pacific ecosystem as well. In part because of these changes, Steller sea lions have become increasingly dependent on pollock as their major source of prey.
In the Aleutian Islands, atka mackerel (mackerel) also form a very significant part of the sea lions' diet. Mackerel are a pelagic, dense schooling fish. They reach a maximum size of 50-55 cm, at age 4 to 6 years. S1-55 at 7. Biomass trends for the atka mackerel are similar to those for pollock: in 1977, the biomass in the BSAI was approximately 300,000 mt. It rose in the early 1980s, fell again, then peaked at approximately 1.3 mmt in 1991. Id. at Fig. 2. In the 1990s, the biomass has declined steadily, to approximately 600,000 mt in 1998. Id. The amount of mackerel caught has been generally rising since the late 1970s, with a brief peak in the mid-1980s at 30,000 mt, a decline in the late 1980s to approximately 18,000 mt, then sharp and steady growth throughout the early 1990s. Id. at Fig. 5. By 1996, the total atka mackerel catch reached nearly 80,000 mt. Id. Since 1980, the percentage of the catch occurring in Steller sea lion critical habitat has been almost always above 75%, and in many years was well over 90%. Id.
The Magnuson Act provides the legal framework for federal management of the fisheries in the North Pacific. This Act establishes eight Regional Fishery Management Councils, including the North Pacific Fishery Management Council, that have primary responsibility for designing fishery management measures, including the Fishery Management Plans (FMPs) and implementing regulations. The Secretary of Commerce reviews these proposals, and can either approve or disapprove, in whole or in part, those recommendations; the Secretary cannot make changes to the proposals or take action based on a policy disagreement with the Councils' recommendations. The FMPs must...
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