Turtle Island Rest. Net. v. U.S., Commerce

• Decision Date: 21 February 2006
• Docket Number: No. 05-15035.,05-15035.
• Citation: 438 F.3d 937
• Parties: TURTLE ISLAND RESTORATION NETWORK; Ka `Iwa Kua Lele; Center for Biological Diversity, Plaintiffs-Appellants, Hawaii Longline Association, Intervenor-Appellee, v. UNITED STATES DEPARTMENT OF COMMERCE; National Marine Fisheries Service; Carlos M. Gutierrez, in his official capacity as Secretary of the Department of Commerce, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

438 F.3d 937

TURTLE ISLAND RESTORATION NETWORK; Ka `Iwa Kua Lele; Center for Biological Diversity, Plaintiffs-Appellants, Hawaii Longline Association, Intervenor-Appellee, v. UNITED STATES DEPARTMENT OF COMMERCE; National Marine Fisheries Service; Carlos M. Gutierrez, in his official capacity as Secretary of the Department of Commerce, Defendants-Appellees.

No. 05-15035.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2005.

Filed February 21, 2006.

Paul H. Achitoff and Isaac H. Moriwake, Earthjustice, Honolulu, HI, for the plaintiffs-appellants.

M. Alice Thurston, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Jeffrey W. Leppo and Laurie K. Beale, Stoel Rives, LLP, Seattle, WA, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Hawaii, David A Ezra, District Judge, Presiding. D.C. No. CV-04-00528-DAE.

Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.

McKEOWN, Circuit Judge.

The question we consider is whether this action is barred by the thirty-day time limitation in 16 U.S.C. § 1855(f), the judicial review provision of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 ("Magnuson Act"), 16 U.S.C. §§ 1801 et seq. Section 1855(f) provides for judicial review of "[r]egulations promulgated" under the Magnuson Act, but only if "a petition for such review is filed within 30 days."

Consistent with its authority under the Magnuson Act, the National Marine Fisheries Service ("NMFS") issued regulations reopening the part of the Hawaii-based longline fishery that targets swordfish (the "swordfish fishery"). See Fisheries Off West Coast States and in the Western Pacific, 69 Fed.Reg. 17,329, 17,330 (April 2, 2004). The fishery had been closed since 2002 due to its impact on endangered sea turtles. Approximately five months after publication of the regulation, the Turtle Island Restoration Network, Ka`Iwa Lele, and the Center for Biological Diversity (collectively "Turtle Island") filed suit against NMFS, the United States Department of Commerce and the Secretary of Commerce (collectively "NMFS"). The Hawaii Longline Association intervened as a defendant. Turtle Island's complaint did not reference the Magnuson Act, but instead alleged violations of the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. §§ 703-712, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706.

The district court denied Turtle Island's motion for preliminary injunctive relief and dismissed the complaint for lack of jurisdiction. We agree with the district court that Turtle Island's claims, though "framed . . . in terms of violations of the APA [and environmental statutes]" were "in actuality . . . challenge[s] to the reopening of the Fishery." Because the claims are appropriately characterized as an attack on the regulations reopening the fishery, the Magnuson Act's statute of limitation applies, and Turtle Island's petition is barred because it was filed beyond the thirty-day time limitation.

BACKGROUND

I. THE MAGNUSON ACT

The Magnuson Act established a national program for the management and conservation of fishery resources. 16 U.S.C. § 1801(a). Congress delegated fishery management authority to the Secretary of Commerce and established Regional Fishery Management Councils ("Councils") to assist the Secretary in carrying out these duties. The Councils prepare Fishery Management Plans and amendments to those plans, which "contain [] conservation and management measures . . . consistent with the [Magnuson Act] . . . and any other applicable law." § 1853(a).

The Councils may also propose regulations implementing the Fishery Management Plans or plan amendments, which NMFS must review for consistency with the Magnuson Act and "other applicable law." § 1854(b)(1). If approved, NMFS publishes such implementing regulations in the Federal Register for a public comment period of fifteen to sixty days. § 1854(b)(1)(A). NMFS then promulgates final regulations with an explanation of any differences between the proposed and final regulations. § 1854(b)(3).

The Magnuson Act provides for judicial review in accordance with the APA of "[r]egulations promulgated by the Secretary" and "actions that are taken by the Secretary under regulations which implement a fishery management plan" but only if "a petition for such review is filed within 30 days . . . ." § 1855(f).

II. LONGLINE FISHING AND THE REOPENING OF THE SWORDFISH FISHERY

This dispute concerns the longline fishing of swordfish and its impact on endangered sea turtles and two species of migratory seabird, the black-footed and Laysan albatross. Longline fishing involves the use of vessels that trail mainlines up to sixty miles long. These mainlines are set horizontally near the water's surface and generally contain over a thousand baited hooks. In the course of fishing for swordfish, other species, including sea turtles and seabirds, can become hooked or "incidentally caught." This method of fishing swordfish has been particularly controversial because it results in more incidental catches than other types of longline fishing because of the specific gear and techniques used, the shallower depth at which the longlines are set, and the time of day the fishing takes place.

On April 2, 2004, NMFS promulgated a final rule ("2004 Regulations") implementing a Fishery Management Plan amendment recommended by the Western Pacific Fishery Management Council ("Western Pacific Council"), which is responsible for fisheries in Hawaii. 16 U.S.C. § 1852(a)(1)(H). The 2004 Regulations reopened the swordfish fishery, which had been closed by previous regulations. See Fisheries Off West Coast States and in the Western Pacific, 69 Fed.Reg. at 17,330. The 2004 Regulations also restricted the types of bait and hooks that could be used for swordfish fishing to minimize the adverse impacts on sea turtles. Id.

Regulation of the longline fishing of swordfish has been the subject of extensive litigation. In fact, the 2004 Regulations were adopted after previous regulations, which prohibited the longline fishing of swordfish (the "2002 Regulations"), and the related biological opinion were vacated and remanded to NMFS by court order. See Hawaii Longline Ass'n v. Nat'l Marine Fisheries Serv., 281 F.Supp.2d 1, 38 (D.D.C.2003).¹ The 2002 Regulations prohibited the longline fishing of swordfish due to its impact on endangered sea turtles. Following the 2003 court order, NMFS commenced the formal rulemaking process that led to the current regulations.²

NMFS had first published a Notice of Intent in December 2003 announcing an "accelerated management action schedule [that] is necessary to avoid a lapse in sea turtle conservation measures after the June 12, 2002 final rule is vacated on April 1, 2004." Under this accelerated schedule, NMFS would issue two separate supplemental Environmental Impact Statements ("SEISs") — one addressing the fishery's potential impact on threatened sea turtle populations, to be completed first, and another addressing "issues . . . such as seabird interactions," to be completed later. Notice of Intent, 68 Fed.Reg. 67,640, 67,641 (Dec. 3, 2003).

Upon the recommendation of the Western Pacific Council, in January 2004, NMFS published a proposed rule that would "eliminate the prohibition on longline fishing . . . during April and May," and require the use of certain bait and hook combinations to reduce sea turtle interactions. See Fisheries Off West Coast States and in the Western Pacific, 69 Fed.Reg. 4098, 4098 (proposed Jan. 28, 2004). The proposed rule announced that the consultation process mandated by Section 7 of the ESA was "currently underway," and that the rule itself "might be revised, as necessary, to comport with . . . the biological opinion." In addition, the proposed rule indicated that in accordance with NEPA, "the [Western Pacific] Council and NMFS prepared a draft [SEIS] . . . for this regulatory amendment . . . scheduled to be filed . . . in mid-January 2004" for comments. Id. at 4101. The Western Pacific Council held a public hearing in February 2004 to receive comments regarding the draft SEIS, Notice of Public Hearing on Draft SEIS, 69 Fed.Reg. 7188, 7188 (Feb. 13, 2004), and another public hearing in March 2004 regarding the Fishery Management Plan amendment, Notice of Public Meetings, 69 Fed.Reg. 11,361, 11,361 (Mar. 10, 2004).

NMFS issued a biological opinion in February 2004, which concluded that reopening the swordfish fishery to allow a limited number of sets per year would not likely jeopardize the continued existence of any ESA listed species, provided that certain bait and hook combinations were used. The biological opinion also included an Incidental Take Statement authorizing the fishery to take up to sixteen leatherback and seventeen loggerhead sea turtles. See Fisheries Off West Coast States and in the Western Pacific, 69 Fed.Reg. at 17,331.

In early March 2004, the Western Pacific Council issued a "Regulatory Amendment to the Fishery Management Plan" and a "Final Supplemental Environmental Impact Statement" ("Final SEIS"), which supplemented the earlier 2001 EIS (issued before the 2002 Regulations) and assessed various alternatives. The Western Pacific Council recommended that NMFS allow 2,120 swordfish sets to be made annually and require the use of certain types of hooks and other new technologies "shown to reduce and mitigate interactions with sea turtles."

The Final SEIS focused primarily on the impact of renewed swordfish fishing on endangered sea turtles and said relatively little about the potential impact on seabirds.³ This approach was apparently deliberate, as NMFS was motivated by the need to implement new regulations by the court-imposed deadline of April 1,...