Turtle Island Restoration Network v. United States Department of Commerce
878 F.3d 725
| 9th Cir. | 2017Background
- Hawaii-based shallow-set longline (swordfish) fishery was closed in 2001 for turtle impacts, reauthorized in 2004 with strict limits (including annual set caps and turtle-interaction caps); NMFS later adopted Amendment 18 (2009) removing annual set caps and increasing allowable turtle interactions.
- NMFS issued a 2012 Biological Opinion (BiOp) concluding that raising set limits to pre-2001 levels would not jeopardize endangered Northern Pacific loggerhead or leatherback sea turtles over 25 years; it projected small additional annual mortalities (about one adult female loggerhead and up to four adult female leatherbacks) and relied on population viability/climate-based models.
- NMFS also applied for, and FWS issued, a three-year "special purpose" MBTA permit (2012) authorizing incidental take of several seabird species by the fishery; FWS found "no significant impact" in an EA and relied on §21.27 (special purpose permit) authority.
- Plaintiffs (Turtle Island Restoration Network and Center for Biological Diversity) sued under the ESA, MBTA, and NEPA challenging (1) FWS’s issuance of the special purpose permit and (2) NMFS’s 2012 BiOp (especially the loggerhead no-jeopardy finding); district court granted summary judgment to agencies; this appeal followed.
- Ninth Circuit majority: affirmed in part, reversed in part, and remanded — vacating the FWS special purpose permit as arbitrary and capricious and reversing NMFS’s no-jeopardy conclusion as to loggerheads; upheld the leatherback no-jeopardy finding and the agency’s climate-change consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lawfulness of FWS §21.27 "special purpose" MBTA permit for incidental take by a commercial fishery | FWS exceeded authority under MBTA/§21.27; §21.27 is a narrow exception tied to bird-related or conservation purposes, not a license for ordinary commercial activities | FWS interpretation reasonably permits special-purpose permits for activities "related to" migratory birds (incidental interactions) where there is "compelling justification" (economic/national benefit, conservation leadership, reduced foreign bycatch) | Reversed: FWS grant arbitrary and capricious; §21.27 cannot be read to permit general incidental take for commercial fishing absent a proper regulatory fit with MBTA intent |
| NMFS 2012 BiOp: no-jeopardy determination for loggerhead sea turtles | BiOp arbitrary: best-available science (climate-based model) predicts quasi-extinction risk; adding even small mortality deepens jeopardy and agency failed to rationally connect model results with no-jeopardy conclusion | NMFS relied on models showing negligible incremental risk from the fishery, conservative inputs, and qualitative factors (population maintains recovery potential); considered baseline and cumulative effects | Reversed in part: no-jeopardy for loggerheads arbitrary and capricious because NMFS failed to reconcile model-predicted serious decline with its conclusion |
| NMFS 2012 BiOp: no-jeopardy determination for leatherback sea turtles | Plaintiffs challenged temporal scope and sufficiency regarding climate impacts and modeled effects | NMFS used best-available 25-year climate-based model, explained limits of data, and showed low extinction risk for leatherbacks even with the action | Affirmed: no-jeopardy for leatherbacks supported by record and not arbitrary |
| Adequacy of climate change consideration in BiOp | NMFS failed to quantify or meaningfully evaluate climate-change impacts and thus ignored an important aspect of the problem | NMFS considered climate-change effects, explained data limitations, and relied on best scientific data available; NEPA/ESA do not demand perfect prediction | Affirmed: NMFS adequately considered climate change and relied on available data; not arbitrary |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency action set aside if arbitrary and capricious)
- Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (deference to reasonable agency statutory interpretations)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretation of its own regulations)
- National Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.) (agency may not ignore baseline and cumulative effects so as to allow action that deepens jeopardy)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA requires informed decisionmaking; procedural review)
- Camp v. Pitts, 411 U.S. 138 (review of agency decisions on administrative record)
- San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (agency discretion in choosing among scientific models)