Turtle Island Restoration Network v. U.S. Dep't of Commerce
| Decision Date | 23 August 2013 |
| Parties | TURTLE ISLAND RESTORATION NETWORK; and CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SERVICE; PENNY PRITZKER, in her official capacity as Acting Secretary of Commerce; UNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES FISH AND WILDLIFE SERVICE; and S.M.R. JEWELL, in her official capacity as Secretary of the Interior, Defendants and HAWAII LONGLINE ASSOCIATION, Intervenor-Defendant. |
| Court | U.S. District Court — District of Hawaii |
ORDER AFFIRMING THE AGENCIES'
DECISIONS
Plaintiffs Turtle Island Restoration Network and Center for Biological Diversity challenge federal agency decisions allowing shallow-set longline fishing for swordfish. Plaintiffs argue that Defendant U.S. Fish and Wildlife Service ("FWS") violated the Migratory Bird Treaty Act ("MBTA") and the NationalEnvironmental Policy Act ("NEPA"), and that the National Marine Fisheries Service ("NMFS") violated the Endangered Species Act ("ESA") and NEPA. Relying on the the alleged violations of the MBTA, NEPA, and the ESA, Plaintiffs also assert violations of the Administrative Procedures Act ("APA") and the Magnuson-Stevens Fishery Conservation and Management Act.
Hawaii Longline Association has intervened in this matter to defend the interests of the longline swordfish fishery.
Plaintiffs present an inherently sympathetic case in seeking to protect birds and turtles. Nevertheless, because Plaintiffs do not establish that any agency decision at issue here was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," see 5 U.S.C. § 706(2)(A), the court affirms the agencies' decisions.
On or about August 10, 2011, pursuant to 50 C.F.R. § 21.27, NMFS submitted an application to FWS for a special purpose permit for a Hawaii-based shallow-set longline fishery. See Federal Fish and Wildlife Permit Application Form, N009715.1NMFS is the division of the National Oceanic and Atmospheric Administration that is responsible for managing, conserving, and protecting marine life in waters adjacent to this country's coasts.
NMFS's permit application sought permission to incidently "take" migratory seabirds in connection with shallow-set longline fishing for swordfish. On July 27, 2012, FWS published a Final Environmental Assessment ("Final EA") evaluating that application. See Final EA, F000304, ECF No. 43-1, PageID # 1688.
According to the Final EA, the fishing at issue involves the setting of thousands of baited hooks along "tens of miles of line set in the water column." Id. at F00309, ECF No. 43-1, PageID # 1693. The hooks are suspended between floats, deployed after sunset, and retrieved before sunrise the next morning. Id. Seabirds attracted to the fishing vessels may try to eat the bait on the hooks as the hooks are being deployed or hauled in, or to eat the fish offal or bait discarded near the fishing vessels. The birds can become hooked or tangled in the fishing gear and injured or killed as a result. Id. If, for example, a seabird swallows a baited hook as it is being deployed, the seabird may be dragged underwater and die. Id.Seabird-handling guidelines tell fishing vessels what to do when seabirds that have been hooked or entangled are retrieved alive. See N009751-53. Other sea life, including sea turtles, may also be injured or killed when hooked or entangled in the longline fishing gear. Id.
The Final EA said that the shallow-set longline fishery at issue in this case was closed by court order in 2001 in response to litigation over the "taking" of threatened and endangered sea turtles. See Administrative Record at F000310, ECF No. 43-1, PageID # 1694. After an Environmental Impact Statement ("EIS") was prepared, the fishery was reopened in late 2004, under regulations designed to reduce the number and severity of "interactions" between the turtles and the fishing gear. Id. These regulations included gear and bait requirements and an annual cap of 2,120 on the number of shallow-set lines in the fishery. Id. The regulations included a cap on permitted "interactions" with sea turtles, which, if reached, would require closure of the fishery for the remainder of the year to which the cap applied. Id. Additionally, NMFS placed observers on all vessels in the fishery. See Biological Opinion (Turtles) of Jan. 30, 2012, at N000018, ECF No. 42-3, PageID # 1204 (not to be confused with the separate Biological Opinion of Jan. 6, 2012, relating to seabirds, F001861, ECF No. 43-2, PageID # 1775). The implementation of these regulations caused a drop ofapproximately 97 and 90 percent in fishery interactions with loggerhead and leatherback sea turtles, respectively. See id at N000063-65, PageID #s 1249-51. The rules for the fishery required the lines to be "set" one hour after sunset. The rules also provided an option to use "side-setting," as opposed to deploying lines from the stern of the vessel, to further reduce seabird interactions. See Final EA, Administrative Record at F000310, ECF No. 43-1, PageID # 1694. The rate of seabirds "taken" after the reopening of the fishery in 2004 also declined from the rate before the fishery closed in 2001. Id.
The 2,120 limit on the number of shallow-set lines per year, although not reached, was removed in 2010. See id. at F000310, ECF No. 43-1, PageID # 1694. The regulations lifting that limit "codified" Amendment 18 to the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region, a copy of which is attached to the Administrative Record beginning at page 000865, ECF No. 43-4, PageID # 1929. The Biological Opinion (Turtles) detailing the conclusions of NMFS, Pacific Island Region, with respect to Northern Pacific loggerhead and leatherback sea turtles (both endangered species) concluded that lifting the limit was not reasonably expected to cause an appreciable reduction in the likelihood of the survival of either species. See ESA -- Section 7 Consultation, Biological Opinionof NMFS, Pacific Islands Region dated Jan. 20, 2012, Administrative Record at 119-25, ECF No. 48-5, PageID #s 2673-79.
The Biological Opinion (Turtles) stated that NMFS anticipated the following "incidental takes" in any one-year period: 34 interactions with Northern Pacific loggerhead sea turtles, resulting in 7 deaths; and 25 interactions with leatherback sea turtles, resulting in 6 deaths. Administrative Record at N000135, ECF No. 48-5, PageID # 2689. It concluded that "the level of incidental take anticipated from the proposed action is not likely to jeopardize" the loggerhead or leatherback sea turtle species. Id.
The Biological Opinion (Turtles) listed what it considered to be reasonable and prudent measures necessary to minimize the impact of the incidental "takes" on leatherback and loggerhead sea turtles. First, NMFS was required to "collect data on the capture, injury, and mortality caused by the shallow-set longline fishery, and [to] collect basic life-history information, as available." Administrative Record at N000136, ECF No. 48-5, PageID # 2690. As part of this measure, NMFS was required to maintain observer coverage at rates determined to be statistically reliable, and the observers were to collect information concerning each turtle interaction. Id. The observers were required to tag turtles that were safely brought aboard a vessel and to note the condition of each such turtle atthe time of its release. NMFS was also required to issue quarterly summaries of the observers' data. Id. at N000137, ECF No. 48-5, PageID # 2691.
The second measure listed in the Biological Opinion (Turtles) as reasonable and prudent was NMFS's requirement that all sea turtles incidently caught in fishing gear be released in a manner that minimized injury and the likelihood of further entanglement or entrapment, taking into account the best practices for safe vessel operation and fishing operations. Id. at N000136, ECF No. 48-5, PageID # 2690. To that end, NMFS was required to conduct workshops for vessel owners and operators; to train observers about sea turtle biology and techniques for proper handling, dehooking, and resuscitation; to train fishermen in the removal of hooks; and to ensure that vessels had wire- or bolt-cutters onboard capable of cutting any hook. Id. at N000137-38, ECF No. 48-5, PageID # 2691-92. NMFS was also required to have all fishing vessels carry a "dip net" that would allow the vessel to hoist a turtle onto its deck to remove a hook, unless a vessel was too small to have such a net, in which event the vessel was required to have fishermen ease the turtle onto the deck by grabbing its carapace or flippers. Vessels were required to ensure that turtles were not dropped onto the deck. Id. at N000137, ECF No. 48-5, PageID # 2691.
The third measure that the Biological Opinion (Turtles) imposed on NMFS as reasonable and prudent was the requirement that all comatose or lethargic sea turtles be retained on vessels, handled, resuscitated, and released according to certain procedures. Id. at N000136 and -38, ECF No. 48-5, PageID # 2690 and -92.
The fourth measure that the Biological Opinion (Turtles) imposed on NMFS as reasonable and prudent was the requirement that any vessel on which a sea turtle died in connection with longline fishing return the carcass to the sea, unless asked to retain the carcass for research. Id. at N000136 and -38, ECF No. 48-5, PageID # 2690 and -92.
Although the court has before it motions for summary judgment, it is really being asked to review agency decisions under the APA. That Act requires this court to review a federal agency's actions, findings, and conclusions to determine whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." See 5 U.S.C. § 706(2)(A). Review under the arbitrary and capricious...
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