Turtle Island Restoration Network v. United States Department of Commerce
672 F.3d 1160
9th Cir.2012Background
- Environmental groups sued NMFS and the Department of Commerce over Amendment 18 and related biological opinions affecting Hawaii shallow-set longline swordfish fishery.
- Final Rule increased loggerhead incidental take limits; 2008 Biological Opinion supported the increase.
- District court approved a consent decree vacating the increased take limits and reinstating 2004 limits, with a remand to NMFS for new rulemaking and a new Biological Opinion.
- Consent decree required NMFS to issue a new regulation and a new Biological Opinion within set timelines; prohibited increases absent a new opinion.
- NMFS later uplisted the loggerhead DPS to endangered and issued a new Biological Opinion with different take figures; the appeal challenges the decree's legality and effect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consent decree is an appealable injunction under §1292(a)(1). | Longliners: decree is injunctive. | NMFS/Turtle Island: decree functions as injunction. | Yes; decree admits injunctive effect and falls within §1292(a)(1). |
| Whether Magnuson Act constraints apply to the consent decree. | Longliners: decree violates Magnuson Act rulemaking. | Agencies acted within scope; decree tempers rules via remand. | Not barred by Magnuson Act; consent decree permissible as settlement. |
| Whether APA notice-and-comment requirements apply to repeal via decree. | Longliners: requires notice/comment for repeal of rule. | Decree does not promulgate a substantive rule; no APA violation. | No APA violation; decree remands and permits future rulemaking. |
| Whether the finding that return to 2004 limits better protects turtles was clearly erroneous. | Longliners: reduction is biologically insignificant and not protective. | District court reasonably found reduced take more protective. | Not clearly erroneous; reduction supports protection despite market effects. |
Key Cases Cited
- Local No. 93 Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986) (consent decree authority under statutory limits examined; settlement encouraged)
- United States v. Carpenter, 526 F.3d 1237 (9th Cir. 2008) (settlements cannot violate the law.)
- Fishing Co. of Alaska, Inc. v. Gutierrez, 510 F.3d 328 (D.C. Cir. 2007) (agency cannot amend fishery plan without council input.)
- Montrose Chemical Corp. of California v. United States, 50 F.3d 741 (9th Cir. 1995) (approval of consent decree reviewed for factual basis.)
- Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (D.C. Cir. 1982) (repeal notice/comment requirements analyzed in analogous context)