Judges on opposite ends of the U.S. have issued opinions favoring National Marine Fisheries Service decisions concerning fisheries’ impact on endangered species.
More accurately, one judge gave NMFS an unvarnished win, and one handed the agency a victory with a couple of caveats.
In the first decision, issued Aug. 25, a federal judge in Alaska ruled against Oceana and Greenpeace, which had challenged increased industrial fishing in the central and western Aleutian Islands, an area that includes critical habitat for the endangered western Distinct Population Segment of Steller sea lions (Oceana and Greenpeace v. NMFS, 14-253-TMB, D. Alaska).
U.S. District Judge Timothy M. Burgess concluded that both NMFS’ BiOp and EIS withstood legal scrutiny.
In another, decided today, a judge in Washington, D.C., declined to vacate a Biological Opinion “in which NMFS . . . determined that the combined operation of seven fisheries is not likely to jeopardize the continued existence of the Northwest Atlantic Distinct Population Segment of loggerhead sea turtles” (Oceana v. Pritzker, 12-41-PLF, D.D.C.).
U.S. District Judge Paul Friedman did, however, remand the BiOp to NMFS for the “limited purposes” of further explaining “the sufficiency of its monitoring mechanisms” and to explain the short-term impacts of climate change on loggerheads.
Friedman said that “in this BiOp, as it did in the Sea Scallop BiOp, NMFS applied an interpretation of ‘reduce appreciably’ that examined whether the action would cause a ‘considerable or material reduction in the likelihood of survival and recovery’ of the species. The Court previously upheld this interpretation as consistent both with the regulation and with the underlying statute, see Oceana, Inc. v. Pritzker, 75 F. Supp. 3d at 481-87, and the Court stands by that analysis. Consequently, the Court will say no more on that point in this Opinion.”
Regarding cumulative effects of the fisheries, Friedman said:
"[I]n the absence of information to support future estimates, NMFS’ assumption that future effects would be similar to past effects was a rational one, and Oceana fails to offer any reason or any facts or data of its own to conclude otherwise. And because NMFS has explained how, based on the reasonable assumption it has made, cumulative effects are reflected in the population trends used to conduct the jeopardy analysis, the Court rejects Oceana’s contention that those effects were disregarded in the BiOp."
Friedman also found for the agency on the "aggregate effects" argument made by Oceana, and on its contention that NMFS did not adequately consider the loggerhead’s recovery.
"Contrary to Oceana’s contention, the BiOp’s consideration of recovery is not merely derivative of its analysis of the likelihood of survival. Rather, just as it did in the Sea Scallop BiOp, NMFS has discussed in detail the ‘recovery plan’ for the [Northwest Atlantic] DPS and the effects of the seven fisheries with respect to various 'recovery criteria.' "
Oceana had argued that the BiOp should have a timeframe of 100 years, not 10. Friedman disagreed. He also partially rejected the group’s climate change arguments.
"Oceana overstates the case when it accuses the agency of thereby 'assuming no impact from climate change' in performing the jeopardy analysis. As with the Sea Scallop BiOp, here the agency considered the available science concerning the potential long-term impacts of climate change on loggerheads, and offered fairly extensive discussion of the possibilities suggested by this science.”
However, "As Oceana accurately states, ... the agency’s reliance on the purported 'century scale' of the effects of climate change shows that NMFS failed to take full account of the record evidence of short-term effects caused by climate change. Indeed, the BiOp describes clear evidence that climate change is exerting significant environmental impacts right now, as well as evidence that these impacts will persist or accelerate in the immediately approaching decades."
"The relevance of sea-level rise as a factor affecting loggerheads in the present and near-term future— and the consequent need for the agency to provide further explanation — is reinforced by a “recent study by the U.S. Geological Survey [finding] that sea levels in a 620-mile ‘hot spot’ along the East Coast are rising three to four times faster than the global average.” [Administrative Record] 52438. The Court therefore will remand the BiOp to NMFS so that it can more clearly explain the connection between the record evidence of present and short-term effects caused by climate change, and the agency’s conclusion that climate change will not result in any significant effects on the species in the short-term future."