Jones v. Gordon, J84-011 CIV.
| Decision Date | 16 January 1985 |
| Docket Number | No. J84-011 CIV.,J84-011 CIV. |
| Court | U.S. District Court — District of Alaska |
| Parties | Tim JONES; Stan Stephens; Nancy & James Lethcoe; Wendy Simpson; Alaska Wilderness Sailing Safaris; Stan Stephens Charters; The Whale Center; Simpson's Marine Charters; Sierra Club; Greenpeace U.S.A.; Greenpeace Canada; and Southeast Alaska Conservation Council, Inc., Plaintiffs, and State of Alaska, Intervenor-Plaintiff, v. William G. GORDON, Assistant Administrator of Fisheries, National Marine Fisheries Service; John V. Byrne, Administrator of National Oceanic and Atmospheric Administration; Malcolm Baldridge, Secretary for the United States Department of Commerce; and the United States Department of Commerce, Defendants, and Sea World, Inc., Intervenor-Defendant. |
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Lauri J. Adams, Laurie L. Davis, Atty. Gen.'s Office, Juneau, Alaska, for plaintiffs.
Eileen Sobeck, Dept. of Justice, Washington, D.C., Mark Davis, Asst. U.S. Atty., Michael T. Thomas, Anchorage, Alaska, for defendants.
THIS CAUSE comes before the court on the parties' cross-motions for summary judgment. Although the parties' briefs are exceptionally lengthy, the issue to be decided is a simple one: Did the federal government violate NEPA, 42 U.S.C. § 4321 et seq., in failing to prepare an Environmental Impact Statement (EIS) prior to issuing a permit to Sea World, Inc. for the taking1 of up to 100 orca whales and the permanent retention of 10 such animals?
Under the Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq. (MMPA), it is illegal to capture marine mammals, including killer whales or orcas (species Oricinus orca), for scientific or display purposes unless the Secretary of Commerce has authorized the taking by issuing a permit. Procedures for the issue of permits are contained in 16 U.S.C. § 1374. Sea World applied for a permit to temporarily capture, primarily off the coast of southeast Alaska, up to 100 orcas and to retain 10 of those whales for display in their aquatic zoological parks. In the permit application, Sea World also requested to perform certain allegedly non-harmful scientific tests on all the captured animals.
Sea World submitted a revised application to the National Marine Fisheries Service (NMFS) on March 9, 1983. Notice of receipt of this application was published in the Federal Register March 17, 1983, as required by 16 U.S.C. § 1374(d)(2). Public hearings on the permit were held in Seattle August 16 and 17. The public comment period was extended several times, finally closing August 26. The NMFS received voluminous comments, both favoring and opposing the permit. In particular, the NMFS received detailed comments and suggestions from the Marine Mammal Commission (MMC). NMFS issued Sea World a permit November 1, 1983 and attached a number of conditions to the permit that attempted to alleviate many of the major concerns of the public and the MMC. In effect, the NMFS conditioned most of the requested activities upon Sea World conducting preliminary research in areas of concern, reporting this research to NMFS, and receiving specific subsequent authorization from it.
The total resident orca population of Southeast Alaska is estimated at 300, although scientists are unsure of the exact number since no comprehensive census has ever been taken. The permit allows Sea World to temporarily capture 100 orcas, and any animal previously captured may be recaptured up to two times during the five-year term of the permit. However, no more than 30 animals may be captured or recaptured in any one year in Alaska. Further, no more than 2% of the minimum population estimate for an area may be taken over a two year period.
Defendants initially argue that this suit is barred by the venue and statute of limitation requirements contained in 16 U.S.C. § 1374(d). This section states:
(6) Any applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such a permit. Such review, which shall be pursuant to chapter 7 of Title 5, may be initiated by filing a petition for review in the United States district court for the district wherein the applicant for a permit resides, or has his principal place of business, or in the United States District Court for the District of Columbia, within sixty days after the date on which such permit is issued or denied.
NEPA does not contain a statute of limitations, but rather courts have relied on the doctrine of laches to bar stale suits. Given that this suit was filed more than 60 days after permit issuance, the issue is whether Congress intended the 60-day statute of limitations in § 1374(d) to bar NEPA challenges as well as challenges to whether the Secretary complied with MMPA in issuing or denying the permit.
The court finds that the above section does not bar NEPA claims filed after 60 days. Such a limit on judicial review in a "permit" statute does not deprive a district court of jurisdiction to review a NEPA claim. This is because NEPA itself provides an independent source of jurisdiction for the district court. See, e.g., People of the State of California ex rel. Younger v. Andrus, 608 F.2d 1247, 1249 (9th Cir.1979); Wyoming v. Hathaway, 525 F.2d 66, 69 (10th Cir.1975) cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976); Get Oil Out, Inc. v. Andrus, 477 F.Supp. 40, 42-43 (C.D.Cal.1979). Rather, courts have limited such statutory restrictions on judicial review to review of compliance with the statute under which the permit was issued.
This same result is reached when the language of § 1374(d) is examined. Under that section, the 60-day limit only applies to judicial review "of the terms and conditions of any permit issued by the Secretary." (emphasis added) Plaintiffs do not challenge the terms and conditions of the permit here. Rather, they challenge the initial legality of the permit based on the failure of the Secretary to comply with a separate statute. If the language of § 1374(d) is given its plain meaning, plaintiffs' challenge falls outside its language.
Sea World argues next that there is a statutory conflict between the terms of § 1374 and NEPA. Under the Flint Ridge doctrine, where there is a clear and unavoidable conflict between the statutory language of NEPA and another statute, NEPA must give way. See Flint Ridge Development Co. v. Scenic Rivers Ass'n of Oklahoma, 426 U.S. 776, 788, 96 S.Ct. 2430, 2438, 49 L.Ed.2d 205 (1976); Alaska v. Carter, 462 F.Supp. 1155, 1161 (D.Alaska 1978). However, before the court can hold that NEPA does not apply, it must find "an irreconcilable and fundamental conflict" between the Secretary's duties under NEPA and MMPA. Flint Ridge Development Co., 426 U.S. at 788, 96 S.Ct. at 2438.
The basis of this alleged statutory conflict is the time limits for issuing permits located in 16 U.S.C. § 1374(d). Under these time limits, the Secretary must issue a permit within 90 days after initial publication of notice of the application in the Federal Register. The presence of these deadlines, Sea World argues, makes compliance with NEPA impossible in that no EIS can be prepared within 90 days.
NMFS's position, however, has always been that NEPA applies to § 1374 MMPA permits, but that because issuance of a permit normally does not represent a "major federal action" they are subject to a categorical exclusion and the agency is not required to prepare an EIS. See Federal Defendants' Response to Plaintiffs' Combined Requests for Admission and Interrogatories, Exhibit 2, Plaintiffs' Opposition to Sea World's Motion for Summary Judgment, Docket # 26; Revised NOAA Directive 02-10, 45 Fed.Reg. 49312 (July 24, 1980).
This court must give deference to the agency's determination that no irreconcilable conflict exists between the statute it has been entrusted to administer, MMPA, and NEPA. So long as the agency's choice "represents a reasonable accommodation of conflicting policies that were committed to the agency's care by statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984).
The court finds that the agency's position, that both NEPA and MMPA apply to § 1374 permit applications, is reasonable. First, for the vast majority of permit applications, no EIS will be required and no conflict will exist between statutes. Although NMFS has issued over 400 MMPA permits, the Sea World permit is the first instance in which the need for an EIS has been suggested. Second, in the rare case where an EIS may be required, the NMFS can create time in the application process by delaying initial publication of the notice of application in the Federal Register. Alternatively, it can do what it did in this case, extend the hearing and comment times by publishing further notices in the Federal Register. Last, the court notes that an agency is permitted some flexibility with respect to the timing of the preparation of EIS's. Hovson's, Inc. v. Secretary of Interior, 519 F.Supp. 434, 445 (D.N.J. 1981), aff'd on other grounds, 711 F.2d 1208 (3d Cir.1983).
The court has reviewed the cases relying on the Flint Ridge doctrine cited by Sea World and finds them distinguishable. In each of the cases in which it was held that no EIS was required, the conflict between NEPA and the opposing statute was of far greater magnitude. The conflict between statutes here is minor. Given that NEPA directs NMFS to comply with the EIS requirement "to the fullest extent possible," the agency was reasonable in determining that a conciliation between NEPA...
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Jones v. Gordon
...impact statement. The district court further enjoined Sea World from capturing killer whales pursuant to the permit. Jones v. Gordon, 621 F.Supp. 7 (D. Alaska 1985). We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part and reverse in In March 1983, Sea World, an operator of aqu......