Turtle Island Restor. v. Natl. Marine Fish.

• Decision Date: 21 August 2003
• Docket Number: No. 02-15027.,02-15027.
• Citation: 340 F.3d 969
• Parties: TURTLE ISLAND RESTORATION NETWORK; Center for Biological Diversity, Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 969

340 F.3d 969

TURTLE ISLAND RESTORATION NETWORK; Center for Biological Diversity, Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE, Defendant-Appellee.

No. 02-15027.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2003 — San Francisco, California.

Filed August 21, 2003.

Deborah A. Sivas, Earthjustice Legal Defense Fund, Stanford, California, and Brendan B. Cummings, Idyllwild, California, for the appellants.

James C. Kilbourne, Attorney, United States Department of Justice, Washington, D.C., for the appellee.

Appeal from the United States District Court for the Northern District of California; Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-01-01706-VRW.

Before Procter Hug, Jr., Arthur L. Alarcón, and Susan P. Graber, Circuit Judges.

OPINION

HUG, Circuit Judge.

The Center for Biological Diversity and the Turtle Island Restoration Network (collectively, the "Center") appeal the district court's grant of summary judgment in favor of the National Marine Fisheries Service ("Fisheries Service"). This case presents the question of whether the issuance of fishing permits by the Fisheries Service pursuant to the High Seas Fishing Compliance Act ("Compliance Act"), 16 U.S.C. § 5501-5509, invokes the consultation requirements of the Endangered Species Act ("ESA"). The Center brought this action pursuant to the citizen suit provision of the ESA alleging that the Fisheries Service was violating the consultation and take provisions of the ESA through the issuance of fishing permits to longline fishing vessels in California. The Center asserts that longline fishing results in harm to several endangered and protected species including several varieties of sea turtles and sea birds that become entangled in the longlines. The district court found that the issuance of permits under the Compliance Act does not invoke the consultation requirements of the ESA because the Fisheries Service did not have sufficient discretion to condition permits for the benefit of a protected species. However, we conclude that the plain language of the Compliance Act does contain ample discretion to allow the conditioning of permits for the benefit of protected species, and we reverse the judgment of the district court.

I Procedural and Factual Background

This case concerns United States-flagged vessels that engage in longline fishing practices on the high seas of the Pacific Ocean and land their catch in California. Longline fishing involves the use of a line that stretches several miles from a vessel and is anchored to appropriate depths. Attached to the longline are many additional lines to which weights and baited hooks are fastened. A single longline may deploy several thousand hooks at one time. Longline fishing vessels mainly target swordfish but also fish for other migratory species, such as varieties of tuna and shark.

Until recently, most U.S. vessels that engaged in longline fishing were based in Hawaii. In November 1999, a district court in Hawaii issued a preliminary injunction restricting longline fishing under the Hawaii Fishery Management Plan throughout much of the North Pacific. Center for Marine Conservation v. National Marine Fisheries Service, (Civ. No. 99-00152(DAE)(D.Hawaii)).¹ Pursuant to the requirements of the ESA, the Fisheries Service issued a biological opinion concluding that the operation of the Hawaii Fishery Management Plan would jeopardize the continued existence of the several protected species of sea turtles. Subsequent revisions to the Hawaii Fisheries Management Plan eliminated the Hawaii-based longline swordfish fishing industry. Consequently, numerous boats from Hawaii relocated to California ports.²

On July 6, 2000, the Center sent a letter to the Secretary of Commerce, giving a 60-day notice of intent to sue for violations by the Fisheries Service of Sections 7 and 9 of the Endangered Species Act.³ The Center first contended that the Fisheries Service is violating Section 7 of the ESA by failing to initiate and complete consultations concerning the effects on threatened and endangered species of longline fishing by U.S. vessels, under permits issued by the Fisheries Service. The protected species designated included the leatherback,⁴ loggerhead,⁵ olive ridley,⁶ and green,⁷ sea turtles, as well as the short-tailed albatross.⁸ Second, the Center contended that the Fisheries Service failed to comply with Section 9 of the ESA by granting permits to private parties that result in the "take" of threatened or endangered species. It contended that a governmental body under whose authority an actor exacts a taking of an endangered or threatened species can also be held responsible for the taking under Section 9.

On September 1, 2000, the Fisheries Service's Regional Administrator sent a letter in response, stating that under the Fisheries Service's interpretation of the Compliance Act, the agency lacked discretion in issuing the fishing permits to impose conditions that further the conservation of protected species; therefore, the consultation provisions of the ESA were not implicated. Further, the agency was developing a fishery management plan for high seas migratory species and that an ESA consultation would be conducted during that administrative process to consider the impact of California's longline fleet on threatened and endangered species. The Fisheries Service stated that it would investigate any take of protected species by fisherman engaged in the high seas fishery. The Center then filed suit against the Fisheries Service asserting the three claims outlined in its notice letter.

The district court resolved the case on cross-motions for summary judgment. The court rejected the Center's claims that the Fisheries Service was in violation of ESA Section 7 by not consulting prior to the issuance of the permits. It held that the agency lacked discretion in issuing the permits to impose conditions furthering the conservation of protected species and that nothing in the Compliance Act "provides the Secretary with the authority to place such conditions on permits." Center for Biological Diversity v. Nat'l Marine Fisheries Serv., 2001 WL 1602707, at *3, 2001 U.S. Dist. LEXIS 20862, *10 (N.D.Cal.2001). The court concluded that because the agency had no discretion to condition permits for the benefit of listed species, it could not be held liable under ESA Section 9 for any take of such species by individual fishing vessels. Id.

We have jurisdiction under 28 U.S.C. § 1291.

II Standard of Review

A district court's grant of summary judgment is reviewed de novo. Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir.1995). De novo review of a district court judgment concerning a decision of an administrative agency means the court views the case from the same position as the district court. Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir.1993). Judicial review of administrative decisions under the ESA is governed by Section 706 of the Administrative Procedure Act ("APA"). 5 U.S.C. § 706. Under the APA, a court may set aside an agency action if the court determines that the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410, 1414 (9th Cir.1990).

III Statutory Framework

A. High Seas Fishing Compliance Act

Prior to 1993, the United States had entered into numerous bilateral and multi-lateral agreements providing for the use and protection of various high seas fishery and marine resources. Many of these agreements provided for the protection of endangered and protected species. The restrictions that were imposed by these agreements were applicable only to vessels flagged by countries that were signatories to the agreements. In order to avoid the restrictions, many vessels reflagged in countries that were not party to these agreements.

In 1993, the United Nation's Food and Agriculture Organization addressed the problem of reflagging by negotiating the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the "Agreement"). The Agreement required each party to "take such measures as may be necessary to ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures."

In 1995, the United States enacted the High Seas Fishing Compliance Act ("Compliance Act"), for the purpose of implementing the "Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas" and "to establish a system of permitting, reporting, and regulation for vessels of the United States fishing on the high seas." 16 U.S.C. § 5501. The Compliance Act requires United States vessels to obtain permits to engage in fishing operations on the high seas, authorizes the Secretary of Commerce to promulgate regulations to implement the Act, proscribes unlawful activities, and establishes enforcement mechanisms. 16 U.S.C. §§ 5504-5506. Further, it imposes conditions and restrictions on the permits that are issued to fishing vessels. 16 U.S.C. § 5503.

B. The Endangered Species Act

The Endangered Species Act ("ESA") was enacted in 1973 to prevent the extinction of various fish, wildlife, and plant species. The ESA is the "most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The responsibility for administration and enforcement of the ESA lies with the Secretaries of Commerce and Interior, who have delegated the responsibility to the Fisheries Service with respect to marine species, and to the Fish and Wildlife Service ("FWS") with respect to...