Sea Shepherd Legal v. Nat'l Oceanic & Atmospheric Admin.
| Decision Date | 02 February 2021 |
| Docket Number | CASE NO. C19-0463JLR |
| Citation | 516 F.Supp.3d 1217 |
| Court | U.S. District Court — Western District of Washington |
| Parties | SEA SHEPHERD LEGAL, Plaintiff, v. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, et al., Defendants. |
Catherine E. Pruett, Brett Wade Sommermeyer, Sea Shepherd Legal, Darius Glen Fullmer, Seattle, WA, for Plaintiff.
Michelle R. Lambert, US Attorney's Office, Tacoma, WA, for Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT
Before the court is Plaintiff Sea Shepherd Legal's ("SSL") motion for summary judgment. (MSJ (Dkt. # 43).) Defendants National Oceanic and Atmospheric Administration ("NOAA") and National Marine Fisheries Service ("NMFS") (collectively, the "Government") oppose the motion. (Resp. (Dkt. # 44).) The court has considered the motion, the parties’ submissions in favor of and in opposition to the motion, the relevant portions of the record, and the applicable law. Being fully advised,1 the court GRANTS in part and DENIES in part SSL's motion for summary judgment.
SSL is a public interest organization dedicated to "sav[ing] marine wildlife and habitats by enforcing, strengthening, and developing protective laws, treaties, policies and practices worldwide." (Compl. (Dkt. # 1) ¶ 17.) SSL's two Freedom of Information Act ("FOIA") requests underlying this suit concern the Maui dolphin, a critically endangered species found off the west coast of New Zealand's North Island. (See Sommermeyer Decl. (Dkt. # 43-1) ¶¶ 2-3, Ex. 1 at 4, Ex. 2; Graff Decl. (Dkt. # 45) ¶ 10 n.1.) Marine mammal bycatch—when a mammal is injured or killed as a result of getting entangled in commercial fishing gear—has contributed to the Maui dolphin population dwindling from approximately 2,000 in 1971 to around 50 in 2018, making the species "the most endangered marine dolphin in the world." (Sommermeyer Decl. ¶ 4, Ex. 3 ("Pet.") at 4.) Studies reveal that fishing-related threats, especially the use of gillnets and commercial trawling, may be dramatically increasing the risk of extinction. (Id. at 4-5.)
NMFS is the federal agency responsible for implementing the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361 et seq. , which protects certain species of marine mammals from threats including bycatch.2 (Compl. ¶ 19.) To combat bycatch, the MMPA bans the importation of fish or fish products from foreign commercial fisheries that contribute to serious injury of marine mammals in excess of United States standards (the "Imports Provision"). 16 U.S.C. § 1371(a)(2).
Under the Imports Provision, NMFS must evaluate foreign fisheries as well as foreign regulatory programs to determine whether their efforts to address bycatch are comparable in effectiveness to those in the United States. (Graff Decl. ¶¶ 5-7); 50 C.F.R. §§ 216.1 et seq. First, NMFS compiles an annual List of Foreign Fisheries detailing foreign fisheries’ incidences of marine mammal bycatch. (Graff Decl. ¶ 6.) Second, NMFS evaluates whether foreign regulations are comparable to domestic standards. (Id. ¶¶ 5, 7.) Foreign nations have a five-year exemption period to develop their regulatory programs. (Id. ¶¶ 7-8.) During these five years, however, NMFS may consider emergency rulemaking to ban imports that have or are likely to have an "immediate and significant adverse impact" on marine mammals. Fish and Fish Product Import Provisions of the Marine Mammal Protection Act, 81 Fed. Reg. 54389, 54395 (Aug. 15, 2016); 16 U.S.C. § 1387(g).
On December 21, 2018, SSL submitted its first FOIA request asking for records related to (1) the decision to list the Maui dolphin as endangered; (2) analysis of bycatch by New Zealand fisheries on the 2018 List of Foreign Fisheries; (3) communications with New Zealand officials in preparing the List of Foreign Fisheries; and (4) analysis of how the MMPA applies to relevant New Zealand fisheries. (Sommermeyer Decl. ¶ 2, Ex. 1 at 1-2.) SSL filed this instant suit on March 28, 2019, claiming that the Government had failed to timely and fully respond to the FOIA request. (Compl. ¶¶ 38-50.)
While this first FOIA request was pending, SSL, along with two other Sea Shepherd entities, petitioned various agencies including the Government on February 6, 2019, for emergency rulemaking to immediately ban all products originating from New Zealand fisheries in the Maui dolphin's range that employ gillnets and trawling, pursuant to the MMPA and the Administrative Procedure Act ("APA"). (Pet. at 4.) NMFS denied the petition on June 18, 2019, and issued its notice of denial in the Federal Register on July 10, 2019. Notification of the Rejection of the Petition to Ban Imports, 84 Fed. Reg. 32853-01, 32853 (July 10, 2019). The agency reasoned that New Zealand had measures in place to reduce Maui dolphin bycatch and was implementing additional measures to achieve a comparable regulatory program. Id. at 32854-55.
SSL submitted a second FOIA request on July 15, 2019. (Sommermeyer Decl. ¶ 3, Ex. 2.) This second request sought similar categories of records that were "created or acquired" since the search cutoff date for the first request. (Id. at 1-2.) Additionally, it asked for documents related to NMFS's denial of SSL's petition. ( Id. ) SSL filed suit over this second FOIA request on September 16, 2019, and the court subsequently consolidated the two FOIA suits. (6/12/20 Order (Dkt. # 34) at 1-2.)
On May 21, 2020, SSL filed suit in the United States Court of International Trade ("CIT") asserting two claims: (1) the Government, along with other agencies, had violated the APA by failing to ban the import of products from New Zealand fisheries in the Maui dolphin's range, as required by the MMPA; and (2) the denial of SSL's petition for emergency rulemaking was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the MMPA. Compl. ¶¶ 84-94, Sea Shepherd New Zealand, et al. v. Wilbur Ross, et al. , No. 20-cv-00112-GSK (Ct. Int'l Trade May 21, 2020). SSL moved for a preliminary injunction on July 1, 2020, and the agency defendants requested a voluntary remand so that NMFS could reconsider the petition in light of new regulatory measures announced by New Zealand and New Zealand's request for an early compatibility finding with respect to the Maui dolphin. (Sommermeyer Decl. ¶ 6, Ex. 4 ("Supp. Pet.") at 5; Graff Decl. ¶ 17.) The CIT granted the voluntary remand and ordered that NMFS finish its reconsideration of SSL's supplemental petition and New Zealand's request for a comparability finding by October 30, 2020. (Supp. Pet. at 5; Graff Decl. ¶ 18.)
In accordance with the CIT's order, SSL submitted a supplemental petition on August 27, 2020, asking again for the immediate ban of all fish products originating from fisheries endangering the Maui dolphin. (See Supp. Pet.; Graff Decl. ¶ 20.) NMFS again rejected the petition on October 26, 2020, and issued its denial on November 9, 2020. Notification of Rejection of Petition and Issuance of Comparability Findings, 85 Fed. Reg. 71297-01, 71300 (Nov. 9, 2020). It found that New Zealand had implemented a regulatory program governing the bycatch of Maui dolphins that is comparable in effectiveness to domestic standards, and thus, the fisheries at issue are authorized to export products to the United States. Id. at 71298.
To date, the Government has released over 1,000 documents in their entirety in response to SSL's FOIA requests. (See Graff Decl. ¶¶ 30-42.) Additionally, the Government has released over 400 partially redacted documents. (See id. ) SSL moves for the production of withheld documents. (See MSJ; Graff Decl. ¶ 42.)
FOIA strives to "open[ ] up the workings of government to public scrutiny through the disclosure of government records." Stern v. Fed. Bureau of Investigations , 737 F.2d 84, 88 (D.C. Cir. 1984)3 ; see 5 U.S.C. § 552. However, Congress recognized that "legitimate governmental and private interests could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regul. Comm'n , 975 F.2d 871, 872 (D.C. Cir. 1992). As such, an agency may withhold information in nine categories of records listed in § 552(b). 5 U.S.C. § 552(b). Requested material must be disclosed unless it falls squarely within one of those nine exemptions. Cameranesi v. U.S. Dep't of Def. , 856 F.3d 626, 637 (9th Cir. 2017).
Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates there is no genuine issue of material fact. Fed. R. Civ. Pro. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved." L.A. Times Commc'ns, LLC v. Dep't of the Army , 442 F. Supp. 2d 880, 893 (C.D. Cal. 2006). The court conducts a de novo review of an agency's response to a FOIA request. 5 U.S.C. § 552(a)(4)(B) ; U.S. Dep't of Just. v. Reps. Comm. for Freedom of Press , 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). If there is a genuine issue of material fact, the court should proceed to a bench trial or adversary hearing. Animal Legal Def. Fund v. U.S. Food & Drug Admin. , 836 F.3d 987, 990 (9th Cir. 2016).
Courts follow a two-step inquiry when presented with a motion for summary judgment in a FOIA case. L.A. Times , 442 F. Supp. 2d at 893. First, courts must evaluate "whether the agency has met its burden of proving that it fully discharged its obligations under the FOIA." Id. To do so, the agency must demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents. Zemansky v. U.S. Env't Prot. Agency , 767 F.2d 569, 571 (9th Cir. 1985). If the agency satisfies its initial burden, the court must then determine "whether the agency has proven that the information that it did not disclose falls within one of the nine FOIA exemptions." L.A. Times , 442 F. Supp....
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