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Hawaii Longline Association v. National Marine Fisheries Service

August 31, 2003


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


This is the second time that the Court has been presented with cross-motions for summary judgment during the unusual procedural history of this APA litigation. Plaintiff Hawaii Longline Association's ("HLA's")*fn1 Second Amended Complaint seeks to set aside regulations and a biological opinion issued by Defendants National Marine Fisheries Service ("NMFS") and Secretary Donald L. Evans affecting the Fishery Management Plan for the Western Pacific Region. Specifically, HLA has moved for summary judgment regarding its second claim for relief, which challenges a rule promulgated on June 12, 2002, 67 Fed. Reg. 40,232 (June 12, 2002) ("June 2002 Regulations"). It has also requested judgment in its favor regarding its third claim for relief, which contests a Biological Opinion issued on November 15, 2002 ("2002 BiOp"). After due consideration of the parties' motions, their oppositions, and their replies, the Court shall grant Plaintiff's Motion for Summary Judgment regarding its second and third claims for relief and deny Defendants' Cross-Motions. With no material facts in dispute, the Court has determined that the June 2002 Regulations and the 2002 BiOp are arbitrary, capricious, and contrary to law and, therefore, shall be vacated and remanded to NMFS as a matter of law.


The issues in this case arise at the cross section of two discrete federal statutes, the Magnuson-Stevens Act, 16 U.S.C. § 1801 et seq., and the Endangered Species Act, 16 U.S.C. § 1531 et seq. Therefore, it is necessary to briefly consider the authority NMFS derives from each statute before reviewing the events leading up to the present motions before the Court. After reviewing the statutory framework under which NMFS operates, the Court will then sketch out the events that have transpired in this complicated administrative law case.

(A) Statutory Framework

(1) The Magnuson-Stevens Fishery Conservation and Management Act

Fisheries under the jurisdiction of the United States are regulated by the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C. § 1801 et seq. Among its various provisions, the Magnuson-Stevens Act established eight regional councils comprised of "individuals who, by reason of their occupational or other experience, scientific expertise, or training, are knowledgeable regarding conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographical area concerned." 16 U.S.C. § 1852(a)(2)(A). In order to ensure a balanced cross-section of interested parties on each council, the Act requires the Secretary of Commerce*fn2 – and, ultimately NMFS – to abide by certain appointment and reporting requirements. 16 U.S.C. § 1852(a)(2)(B). Each council is vested with the authority to issue regulations for the conservation and management of the fisheries in its geographic region, including comprehensive Fishery Management Plans ("FMPs"). 16 U.S.C. § 1853(a), (c). The proposals of the regional councils are subject to review by NMFS, which must examine each submission to ensure that it is consistent with the requirements under the Act. See 16 U.S.C. § 1854(a), (b). These substantive requirements demand that an FMP be "necessary and appropriate for the conservation and management of the fishery," 16 U.S.C. § 1853(a)(1)(A), be consistent with national standards set out in the Act, 16 U.S.C. § 1853(a)(1)(C), and abide by "any other applicable law," id., including the Endangered Species Act.

In certain situations, NMFS may prepare an FMP without the input of the appropriate regional council via a "Secretarial amendment." However, the statute limits such situations, granting such authority only where:

(A) the appropriate Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management;

(B) the Secretary disapproves or partially disapproves any such plan or amendment, or disapproves a revised plan or amendment, and the Council involved fails to submit a revised or further revised plan or amendment; or

(C) the Secretary is given authority to prepare such a plan under this section.

16 U.S.C. § 1854(c)(1). In addition, NMFS may promulgate emergency regulations or interim measures (through the Secretary) in the event that "an emergency exists or [where] interim measures are necessary to reduce overfishing for any industry." 16 U.S.C. § 1855(c)(1). Regulations promulgated by NMFS (through the Secretary) pursuant to its emergency powers are limited in duration and may not exceed 180 days, but may be extended for an additional 180-day period, subject to the requirements of the Act. 16 U.S.C. § 1855(c)(3)(B).

The fisheries based in Hawaii, American Samoa, Guam, and the Northern Mariana Islands fall under the authority of the Western Pacific Fishery Management Council ("West Pac" or "the Council"). 16 U.S.C. § 1852(a)(1)(H). As a result, under the Magnuson-Stevens Act, West Pac is responsible for issuing various FMPs, including the Pelagics (Open Ocean) FMP central to the dispute in the present case.

(2) The Endangered Species Act

The Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., establishes a comprehensive federal program to limit the number of fish, wildlife, and plant species rendered extinct as a consequence of their interactions with mankind. Under the ESA, the U.S. Fish and Wildlife Service ("FWS") and NMFS*fn3 (collectively, "the Services") are required to promulgate regulations listing those species that are "threatened" or "endangered" based on enumerated criteria and to "designate any habitat of such species which is then considered to be critical habitat." 16 U.S.C. § 1533. The ESA further requires that each federal agency, in consultation with the Services, "insure that any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by [the Services]... to be critical." 16 U.S.C. § 1536(a)(1). Under the ESA and its implementing regulations, a federal agency must engage in formal consultation with the Services if an action undertaken by that agency "may affect" an endangered or threatened species or its critical habitat. 50 C.F.R. § 402.14(a).

In the event that formal consultation is required, the appropriate consulting Service (in this case, NMFS)*fn4 will review the proposed agency action by undertaking a Biological Opinion ("BiOp"). 50 C.F.R. § 402.14(g). The BiOp considers and details how the proposed agency action affects any listed species or its critical habitat. In making this inquiry, the Service must comport with the statute's "best science" requirement. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(h). This comprehensive review of the agency's action generally leads to one of two possible results: (1) the action either "jeopardizes" or (2) does not jeopardize the listed species. 50 C.F.R. § 402.14(h)(3). When the consulting Service determines that an agency action is likely to jeopardize a protected species, it must provide "reasonable and prudent alternatives" ("RPAs") that would not jeopardize the listed species. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402. An RPA represents an alternative means to implement a proposed action, and would accomplish the same general purpose of the proposed action, without jeopardizing the listed species. On the other hand, if the consulting Service reaches a "no jeopardy" conclusion, or if an RPA is available that would avoid jeopardy, the Service issues an Incidental Take Statement. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). An Incidental Take Statement permits an agency to undertake an action that leads to the "taking" (harassment, injury, or death)*fn5 of a particular number of listed species without violating the ESA's taking prohibitions. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).

If one of the Services issues an Incidental Take Statement, the agency undertaking the proposed action ("action agency") is required to reinitiate consultations with one of the consulting Services where the action agency retains discretionary involvement over the action or control of the action has been retained or is authorized by a federal statute and:

(a) If the amount or extent of taking specified in the incidental take statement is exceeded;

(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;

(c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or

(d) If a new species is listed or critical habitat designated that may be affected by the identified action.

50 C.F.R. § 402.16. In the event that an action agency determines that it must reinitiate formal consultations with a consulting Service, that Service will issue a new biological opinion evaluating the proposed agency action.

(3) Dual Responsibilities

In the unique situation presented by this case, NMFS is responsible for authorizing regulations and FMPs proposed by the eight regional councils under the Magnuson-Stevens Act but, at the same time, must evaluate its own actions under the ESA. In other words, NMFS serves as both the action agency and the consulting Service. See, e.g., 2001 BiOp AR-604, at 9099 (listing the National Marine Fisheries Service, Southwest Region Sustainable Fisheries Division as the action agency and the National Marine Fisheries Service, Endangered Species Division as the consulting Service). In the context of the instant matter, this means that NMFS must approve amendments to the existing Pelagics FMP, but because the FMP could affect the listed turtles, NMFS must also issue a BiOp to determine if the FMP jeopardizes the listed turtles.

(B) Factual Background

At the outset, the Court observes that the United States District Court for the District of Columbia has supplemented Federal Rule of Civil Procedure 56 with Local Civil Rule 56.1, which requires that each party submitting a motion for summary judgment attach a statement of material facts to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement.*fn6 The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts which the party contends are at issue and thus require litigation. See LCvR 56.1. Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. Id. As this Circuit has emphasized, "[LCvR 56.1] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 406 (D.C. Cir. 1992)). Because of the significance of this task and the potential hardship placed on the court if parties are derelict in their duty, courts require strict compliance with LCvR 56.1. See id. at 150 (citations omitted).

This Court strictly adheres to the text of Local Civil Rule 56.1 when resolving motions for summary judgment. See HLA v. NMFS, Civ. No. 01-0765 (D.D.C. Nov. 28, 2001) (order denying HLA's motion for relief from LCvR 56.1); see also Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002) (holding that district courts need to invoke Local Civil Rule 56.1 before applying it to the case). Although discretionary by the text of the Local Civil Rules, in resolving the present summary judgment motions, this Court "assumes that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1.

For purposes of this opinion, the Court primarily cites to the Administrative Record. In instances where an issue is raised regarding a material fact, the Court has reviewed the record citations by the parties to ensure that the parties' characterizations of the record are accurate. In addition, due to the complicated nature of this administrative law case, the Court must consider the procedural history of prior litigation between these parties. In some instances, relevant decisions in this prior case were cited in the parties' pleadings, but not contained in their Statements of Material Facts Not in Genuine Dispute. Therefore, the Court will use its discretion under Local Civil Rule 56.1 to consider this material outside the Statements provided by the parties. Having set forth these preliminaries, the Court moves to a discussion of the material facts not genuinely in dispute.

(1) Endangered and Threatened Sea Turtles, the Fishery, and the 1998 BiOp

The five species of sea turtles implicated in these proceedings – and all sea turtles for that matter – are listed as endangered or threatened under the ESA. See 50 C.F.R. § 17.11. It is beyond dispute that, incidental to catching desired commercial fish, such as swordfish and tuna, the longline fishing industry ("the Fishery") kills or injures sea turtles each year. 2001 BiOp AR-604, at 9184-202.*fn7 For example, sea turtles may become entangled or hooked by the Fishery's gear, which can mortally wound, severely injury, or drown the turtles. Id. at 9184.

The Fishery is regulated by the Western Pacific Pelagics FMP ("Pelagics FMP"), which was implemented in 1987 under the authority of the Magnuson-Stevens Act, 52 Fed. Reg. 5,987 (Mar. 23, 1987). Id. at 9263; 2001 BiOp AR-138, at 3167. The Pelagics FMP replaced a preliminary FMP prepared by NMFS on behalf of the Secretary of Commerce in 1980. 2001 BiOp AR-604, at 9263. Since the Pelagics FMP was first issued, it has been revised and amended. 2001 BiOp AR-138, at 3167-68. In 1998, NMFS reinitiated consultations for the Pelagics FMP under the ESA, id. at 3164, because the anticipated incidental take statement in a prior BiOp had been exceeded, id. at 3171. These formal consultations produced the November 3, 1998, BiOp ("1998 BiOp"), which found that the Fishery, operating under the existing Pelagics FMP, was "not likely to jeopardize the continued existence and recovery of loggerhead, leatherback, olive ridley, green or hawksbill turtles or adversely modify critical habitat." Id. at 3164. Therefore, based on its no jeopardy conclusion, the 1998 BiOp established Incidental Take Statement levels for sea turtles captured, injured, or killed by the Fishery. Id. at 3165; 2001 BiOp AR-604, at 9101.

(2) CMC Litigation and the Decision to Reinitiate Consultations

In 1999, several environmental advocacy groups*fn8 filed suit against NMFS in the United States District Court for the District of Hawaii, Center for Marine Conservation v. NMFS ("CMC"), Civ. No. 99-00152 (D. Haw. 2000), challenging the above-mentioned 1998 BiOp under the ESA and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331, et seq. *fn9 The plaintiffs in that case disputed the 1998 BiOp's no jeopardy finding. Nonetheless, the court upheld the no jeopardy conclusion reached in the 1998 BiOp. CMC, Civ. No. 99-00152, slip op. at 16-31 (Oct. 18, 1999). At the same time, it granted a limited injunction pending the completion of an Environmental Impact Statement ("EIS") as required by NEPA. Id. at 41-42.*fn10

According to the court, an Environmental Assessment*fn11 – the potential precursor to an EIS – has a "different purpose[] from [a] biological opinion[]. A 'no jeopardy' finding in the [1998] biological opinion cannot be compared to a 'Finding of No Significant Impact' which is what may or may not have been determined had Defendants prepared an Environmental Assessment." Id. at 37. Therefore, having determined that the plaintiffs had established both a likelihood of success on the merits and irreparable harm, the court reasoned that an injunction was appropriate because it "'is the most common judicial response to a NEPA violation... [, and it]... maintain[s] the status quo while additional environmental data is obtained.'" Id. at 39 (quoting Forelaws on Board v. Johnson, 743 F.2d 677, 685 (9th Cir. 1984)). The court refused to completely enjoin the Fishery's activities, but determined that "a carefully tailored injunction during the EIS preparation period [was] warranted." The court also required NMFS to complete the EIS by April 1, 2001. 2002 Regulations AR-1, at 5.

On May 18, 2000, concurrent with the CMC litigation, NMFS determined that the Fishery "had likely exceeded anticipated incidental take levels for olive ridley turtles" based on the levels set by the 1998 BiOp. 2001 BiOp AR-604, at 9101. As a result, on June 7, 2000, NMFS reinitiated formal consultation as required under the ESA and the Services' implementing regulations. Id.; 16 U.S.C. § 1539; 50 C.F.R. § 402.16. This formal consultation would produce the March 29, 2001, BiOp (2001 BiOp) that originally prompted this litigation.

Accordingly, following the decision to reinitiate formal consultations, NMFS was engaged in two separate proceedings related to the Western Pacific Pelagics FMP: the development of the EIS, as ordered by the CMC court, and the 2001 BiOp. On August 25, 2000, NMFS promulgated an emergency interim rule to comply with the CMC court's injunctive orders. 65 Fed. Reg. 51,992 (Aug. 25, 2000).*fn12 Likewise, on December 22, 2000, NMFS published a Draft EIS, consistent with the order in the CMC litigation, and accepted comments until January 29, 2001. 65 Fed. Reg. 80,828 (Dec. 22, 2000). At the same time, NMFS was preparing the 2001 BiOp, based on its decision to reinitiate consultations on June 7, 2000. 2001 BiOp AR-604, at 9101.

On December 19, 2000, HLA counsel Jeffrey Leppo spoke with Judson Feder, NMFS Southwest Regional Counsel, over the telephone about obtaining a draft copy of the forthcoming 2001 BiOp. 2001 BiOp AR-288, at 5628. It appears, based on a subsequent letter drafted by Leppo, that Feder indicated that "NMFS was unlikely to provide HLA with a draft version of the [BiOp] for review." Id. Nonetheless, Leppo persisted, formally lodging his request in a letter dated December 26, 2000. Id. at 5628-30. In the letter, Leppo argued that HLA was an "applicant" under the ESA and, therefore, was entitled to certain procedural rights under the statute and the Services' implementing regulations; such as receiving a draft BiOp and providing comments. Id. On January 3, 2001, Feder indicated that the agency had rejected HLA's request. 2001 BiOp AR-303, at 6262.

(3) The 2001 BiOp and the Release of the Final EIS

The final BiOp was published on March 29, 2001, 2001 BiOp AR-604, at 9097, but not before a contentious month during which the parties quarreled over the release of the Draft BiOp, the time provided for comment, and the consideration given by NMFS to those comments, 2001 BiOp AR-580, at 8999. The March 29, 2001, BiOp reversed the 1998 BiOp, concluding that the Fishery, operating under the existing Pelagics FMP, was likely to jeopardize the continued existence of the green, leatherback, and loggerhead turtles. 2001 BiOp AR-604, at 9097, 9099-100. In particular, the data in the 2001 BiOp suggested that the highest incidence of takings resulted from the use of swordfishing gear, while takes from tuna gear were limited to particular geographic areas. Id. at 9202-06. Accordingly, the 2001 BiOp included a RPA expected to avoid jeopardizing the listed turtles, id. at 9227-36, which would effectively prohibit fishing techniques targeted at swordfish and impose certain time and area closures for tuna fishing, id. at 9229-33.

On the following day, March 30, 2001, NMFS released the Final EIS in compliance with the order issued by the CMC court. 2002 Regulations AR-1, at 1, 4. As required under NEPA, the Final EIS included "a reasonable range of alternative actions." Id. at 17. In this case, ten possible alternatives were presented, ranging from complete deregulation of the Fishery to varying time and area closures. Id. at 18-19. The preferred alternative ultimately selected by NMFS was almost identical to the RPA announced just a day before in the 2001 BiOp: Both would (1) prohibit swordfish-style longline fishing methods by United States-based vessels north of the equator; (2) close areas south of 15" North latitude to the equator, bounded by 145" West and 180" longitude, to all U.S. longline vessels during the months of April and May of each year; and (3) impose certain permit registration restrictions. See id. at 126-29; 2001 BiOp AR-604, at 9229-32. As NMFS observed, however, "this EIS is not by itself a vehicle for the implementation of management regulations.... [T]he Magnuson-Stevens Act sets out a process, involving the Council and NMFS, to implement management actions." 2002 Regulations AR-1, at 78.

Although the terms of the preferred alternative were not self-executing – that is, NMFS had discretion to implement them through the West Pac Council – on March 30, 2001, the same day that the Final EIS was issued, the CMC court modified the terms of the injunctive order "in accordance with the findings in the EIS." CMC, Civ. No. 99-00152 (D. Haw. Mar. 30, 2001) (order modifying injunction) at 2. The court noted that the purpose of its "earlier injunction was to preserve the status quo... until an EIS could be prepared." Id. Now that an EIS had been prepared, the court modified the terms of the injunction to reflect the preferred alternative in the EIS "until appropriate federal regulations [could] be enacted in accordance with law." *fn13 Id.

(4) Initiation of the Present Litigation

On April 10, 2001, HLA filed suit in the United States District Court for the District of Columbia. Its one count Complaint alleged that the 2001 BiOp was both procedurally and substantively flawed. Compl. ¶ 2. HLA sought, among other things, to have the 2001 BiOp vacated and remanded to NMFS, to review and comment on the preparation of a new BiOp, and to require that the completion of the new BiOp comply with a court-imposed schedule. Compl. at 20 ("Wherefore" Paragraphs).

On June 6, 2001, several environmental advocacy groups, Turtle Island Restoration Network and the Ocean Conservancy*fn14 (collectively "Defendant-Intervenors" or "Conservation Groups")*fn15 filed a motion to intervene pursuant to Federal Rule of Civil Procedure 24. The Conservation Groups, which originally initiated the CMC litigation, asserted an interest in the preservation of the sea turtles and the possible effect that this case could have on that interest. The Conservation Groups also filed their own lawsuit, challenging the 2001 BiOp as inadequate in the United States District Court for the District of Hawaii.

Several days after the Conservation Groups moved to intervene, Defendants filed their Answer to Plaintiff's Complaint. Beyond responding to this litigation, however, NMFS was trying to implement the 2001 BiOp's RPA. But to implement the RPA, NMFS would need the cooperation of West Pac, because, as discussed supra, in most instances the Council must approve an amendment to an FMP. Thus, shortly after Defendants filed their Answer, Rebecca Lent, NMFS Regional Administrator for the Southwest Region, sent a memorandum to Dr. William T. Hogarth, Acting Assistant Administrator for the Fisheries. In this memorandum, Lent stated:

I believe that the [West Pac] Council is aware of NMFS's obligation [under the ESA] to promulgate these measures but, if asked, I will explain that a Secretarial amendment to the Pelagics Fishery Management Plan will be required if the reasonable and prudent alternatives, and the terms and conditions of the biological opinion (also contained in the recently completed Final Environmental Impact Statement on this fishery), are not implemented via Council action.

2002 Regulations AR-2, at 1491 (emphasis added).*fn16 Apparently, this message registered with the Council. In an internal West Pac memorandum, the Executive Director of the Council observed:

The usual process for amending fishery management measures under an FMP is to develop a series of alternative measures for consideration, and through public meeting, and meetings of the Council narrow the selection to a preferred alternative. This regulatory amendment is different in that the Council is obliged to implement the preferred alternative of the March 30th 2001 FEIS, which is itself based on the March 29th 2001 BiOp. There are basically only two alternatives for the Council to consider. No action would force the Secretary of Commerce to impose these measures by a Secretarial amendment, or for the Council to amend the FMP and make it consistent with the FEIS preferred alternative and March 29th 2001 BiOp. Further its is [sic] critically important that the regulatory amendment be in place before June 2002, beyond which, the NMFS emergency rule cannot be extended. 2002 Regulations AR-19, at 1543 (emphasis added). However, at around the same time that West Pac noted the mandatory nature of the 2001 BiOp's RPA, it also registered its "continued opposition" to the 2001 BiOp. 2002 Regulations AR-3, at 1494.*fn17

On June 12, 2001, NMFS promulgated additional emergency interim regulations, in essence, codifying the CMC court's March 30, 2001, Order. 66 Fed. Reg. 31,561 at 31,562 (June 12, 2001) ("The [ CMC court's] March 30, 2001, Order made effective immediately those aspects of the preferred alternative in the FEIS that are intended to mitigate the Hawaii longline fishery interactions with sea turtles. This emergency interim rule codifies that Order....").*fn18 As noted above, the preferred alternative in the Final EIS proffered remedies largely consistent with the RPA in the 2001 BiOp. Accordingly, the emergency interim rule adopted measures consistent with the 2001 BiOp. Id.

Given the still pending injunction issued by the CMC court and the Hawaii court's pre-existing familiarity with the underlying subject matter in this case, on June 11, 2001, the Court ordered the parties to show cause why this case should not be transferred to the United States District Court for the District of Hawaii. HLA v. NMFS, Civ. No. 01-765 (D.D.C. June 11, 2001) (order). Despite these factors, both parties opposed transferring the case, and the Court acknowledged that ordering a transfer, sua sponte, "'should be reserved for exceptional circumstances.'" HLA v. NMFS, No. 01-765 (D.D.C. Aug. 7, 2001) (order preserving venue and granting Defendants' Motion for an Enlargement of Time) at 2 (quoting In re Scott, 709 F.2d 717, 721 (D.C. Cir. 1983)). As a result, the Court decided that it was inappropriate to transfer the case. Id.

On August 31, 2001, the Court ruled on the Conversation Groups' motion to intervene, granting the motion in part and denying it in part. HLA v. NMFS, Civ. No. 01-0765, slip op. at 12 (D.D.C. Aug. 31, 2001) ("Intervention Op."). Having noted that "courts need not consider a motion to intervene as an all-or-nothing proposition," id. at 2 (citing Harris v. Pernsley, 820 F.2d 592, 599 (3d Cir. 1987); see also Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1495-96 (9th Cir. 1995)), the Court granted ...

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