Mar 152012
 
Judge Ezra did not abuse discretion, court finds

In addition to weighing in on the constitutionality of Congress’s wolf delisting rider, the Ninth Circuit yesterday opined on (and approved of) a consent decree designed to reduce the impact of Hawaii’s longline fishery on loggerhead sea turtles (Turtle Island Restoration Network v. U.S. Dep’t of Commerce,11-15783).

Loggerhead turtle (Caretta caretta)Photo: Marco Giuliano/ Fondazione Cetacea

Here are a few excerpts:

[I]f the Longliners’ position is carried to its logical conclusion, then any attempt by federal agencies to settle litigation involving a regulation would entail a return to the same rulemaking process by which the regulation was created—a proposition that contradicts the Supreme Court’s policy determination in another context. See Local No. 93, 478 U.S. at 524 n.13 (recognizing that a limit on the government’s ability to enter a consent decree would make it substantially more difficult to settle Title VII litigation).

The Longliners contend that the district court used the Consent Decree impermissibly to modify substantive regulatory rules. See Mt. St. Helens Mining & Recovery Ltd. P’ship v. United States, 384 F.3d 721, 728 (9th Cir. 2004) (“[T]he APA does not empower the district court to . . . order the agency to reach a particular result.”). This argument fails for the same reasons discussed above. Specifically, the Consent Decree vacates only a portion of the Final Rule and the supporting 2008 Biological Opinion and incidental take statements, thus restoring the 2004 regulations during the remand and reconsideration process. The Consent Decree leaves NMFS free on remand to fashion a new rule based on the new biological opinion without imposing any substantive requirements on its terms.

The fact that the Federal Agencies complied with the Magnuson Act’s rulemaking requirements when they issued both the 2009 Final Rule and the 2004 Regulations, see 74 Fed. Reg. 65460, 65462 (Dec. 10, 2009); 69 Fed. Reg. 40734, 40734 (July 6, 2004), and that any subsequent regulations incorporating the new biological opinion’s findings will be subject to the Magnuson Act’s rulemaking procedures further supports upholding the validity of the Consent Decree.

Notably, on September 16, 2011, while this appeal was pending, NMFS uplisted the North Pacific Ocean Distinct Population Segment of loggerhead turtles (the population segment at issue here) as endangered. On January 30, 2012, NMFS issued the biological opinion contemplated in the Consent Decree.

The longliners also had argued that the judge’s finding that a return to 2004 incidental take limits would be “more protective” of turtles was clearly erroneous. In part, they contended that any increased take would be “statistically and biologically insignificant” to the loggerhead turtle populations as a whole.

But the appeals court disagreed. There is “no clear error regarding the ‘more protective’ finding because a reduction in the actual number of incidental take, even if statistically insignificant, is still a logical basis for the finding that turtles would be more protected.”

More links

Hawaii longline fishing regs (fact sheet)

Opinion from the Ninth Circuit’s site

Some recent Earthjustice press releases

Grand Canyon Uranium Mining Ban Defended by Havasupai Tribe, Conservation Coalition  (3/13/2012)

Conservation Groups Support Swinomish Tribe Battle to Protect Skagit River and Salmon  (3/7/2012)

NAS: EPA Underestimated Number of Polluted Florida Streams, Lakes, Rivers and Springs in Florida  (3/6/2012)

Author info

Steve Davies is editor and publisher of Endangered Species & Wetlands Report, which he started in 1995. Davies began his professional journalism career as a copy editor for the weekly Gazette Newspapers in Gaithersburg, Md., before becoming a reporter there. He then moved to Carlisle, Pa., covering Cumberland County government for the daily Sentinel. He returned to the Washington area to cover Congress and federal regulatory agencies for a series of trade newsletters before starting his own publication, which is an independent venture. Click LinkedIn for more detail.