Turtle Island Restoration Network v. DOC, No. 13-17123 (9th Cir. 2017)
Annotate this CasePlaintiffs filed suit challenging the NMFS's decision allowing a Hawaii-based swordfish fishery to increase its fishing efforts, which may result in the unintentional deaths of endangered sea turtles. Plaintiffs also challenged the FWS's decision to issue "special purpose" permit to the NMFS, which authorizes the fishery to incidentally kill migratory birds. The Ninth Circuit held that the FWS's grant of an incidental take permit to the NMFS in reliance on the special purpose permit provision in 50 C.F.R. 21.27 was arbitrary and capricious because the FWS's interpretation of section 21.27 did not conform to either the Migratory Bird Treaty Act's (MBTA) conservation intent or the plain language of the regulation. Therefore, the panel reversed the district court's grant of summary judgment affirming the FWS's decision to issue the permit. The panel also held that NMFS's 2012 BiOp's on jeopardy finding as to the loggerhead sea turtles was arbitrary and capricious because the scientific data suggested that the loggerhead population would significantly decline, and the agency failed to sufficiently explain the discrepancy in its opinion and the record evidence. Therefore, the panel reversed the district court's grant of summary judgment upholding this portion of the BiOp. The panel otherwise affirmed the district court's grant of summary judgment to defendants.
Court Description: Environmental Law. The panel affirmed in part, and reversed in part, the district court’s judgment in favor of federal agencies in an action brought by plaintiff environmental groups challenging the decision of the National Marine Fisheries Service (“NMFS”) to allow a Hawaii-based swordfish fishery to increase its fishing efforts, which may result in the unintentional deaths of endangered sea turtles; and challenging the decision of the U.S. Fish and Wildlife Service (“FWS”) to issue a “special purpose” permit to the NMFS, which authorized the fishery to incidentally kill migratory birds. The panel held that the FWS’s decision to issue a special purpose permit to the NFMS on behalf of a commercial fishery was arbitrary and capricious. The panel held that the FWS’s interpretation of 50 C.F.R. § 21.27 as authorizing it to grant an incidental take permit to the NMFS did not conform to either the Migratory Bird Treaty Act’s TURTLE ISLAND RESTORATION NETWORK V. USDOC 3 conservation intent or the plain language of the regulation. The panel therefore reversed the district court’s grant of summary judgment affirming the FWS’s decision to issue the permit. The panel held that NMFS’s 2012 Biological Opinion’s “no jeopardy” finding as to the loggerhead sea turtles was arbitrary and capricious because the scientific data suggested that the loggerhead population would significantly decline, and the agency failed to sufficiently explain the discrepancy in its opinion and record evidence. Specifically, the panel held that the climate-based model predicted that the proposed action would exacerbate the loggerheads’ decline, and the Biological Opinion was structurally flawed to the extent the NMFS failed to incorporate those findings into its jeopardy analysis. The panel therefore reversed the district court’s grant of summary judgment upholding this portion of the Biological Opinion. The panel otherwise affirmed the district court’s grant of summary judgment to defendants, and remanded. The panel held that the NMFS’s no jeopardy conclusion regarding the leatherback turtles found support in the scientific record, and therefore was sufficient to withstand judicial review. Specifically, the panel held that it could not conclude that the 2012 Biological Opinion violated the Endangered Species Act or that the NMFS otherwise acted arbitrarily and capriciously in determining that the fishery would have no appreciable effect on the leatherback turtle population. The panel also held that the NMFS’s consideration of climate change in the Biological Opinion was neither arbitrary, capricious, nor contrary to the NMFS’s obligation to base its jeopardy decision on the best scientific data it could obtain. Judge Callahan dissented in part. Judge Callahan agreed with the majority that the 2012 Biological Opinion was not 4 TURTLE ISLAND RESTORATION NETWORK V. USDOC arbitrary and capricious in determining that the Hawaii- based shallow-set fishery expansion would have no appreciable effect on the leatherback sea turtle population, and that the 2012 Biological Opinion adequately considered the impact of global climate change; and dissented from the remainder of the majority opinion. Judge Callahan would uphold the Migratory Bird Treaty Act Permit and the loggerhead sea turtle Biological Opinion.
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