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OCEAN CONSERVANCY AND OCEANA, INC. v. GUTIERREZ

October 6, 2005.

THE OCEAN CONSERVANCY and OCEANA, INC., Plaintiffs,
v.
CARLOS M. GUTIERREZ,[fn1] Secretary, United States Department of Commerce, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION and NATIONAL MARINE FISHERIES SERVICE, Defendants, and BLUE WATER FISHERMEN'S ASSOCIATION, Intervenor-Defendant.



The opinion of the court was delivered by: RICHARD LEON, District Judge

*fn1 Secretary Gutierrez has been substituted as a party in place of former Secretary Donald L. Evans. See FED. R. CIV. P. 25(d).

MEMORANDUM OPINION

This action for declaratory relief, brought by The Ocean Conservancy and Oceana, Inc., two non-profit environmental organizations, (collectively "plaintiffs"), challenges three decisions of the National Marine Fisheries Service ("NMFS" or "federal defendant"), a federal agency under the purview of the National Oceanic and Atmospheric Administration, relating to the treatment of sea turtles under a Fishery Management Plan ("FMP") for the Atlantic Highly Migratory Species Pelagic Longline Fishery ("HMS-PLL Fishery" or "Atlantic Fishery"). Plaintiffs specifically contend that: (1) the NMFS's July 6, 2004 Final Rule ("2004 Final Rule") creating new regulations governing the HMS-PLL Fishery fails to comply with the substantive requirements established by the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act" or "MSA"), 16 U.S.C. §§ 1801, et seq.; (2) the NMFS's June 1, 2004 Biological Opinion ("2004 BiOp") violates provisions of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq.; and (3) the NMFS's June 22, 2004 final Supplemental Environmental Impact Statement ("final SEIS") fails to follow the mandate set forth by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332.*fn2 Presently before the Court are cross-motions for summary judgment. See Dkt. ## 44, 46, 48. The Court, having considered the voluminous administrative record, the parties' pleadings, and the arguments of counsel at the September 14, 2005 hearing, GRANTS the federal defendants' motion for summary judgment.*fn3 BACKGROUND

  The Atlantic Fishery is a deep sea fishery that extends from the Gulf of Mexico to the edge of the continental shelf, off the east of coast of Newfoundland. AR Vol. 2, Doc. I-11 at 3-15.*fn4 As its name implies, the Atlantic Fishery targets various "highly migratory species" of fish using a pelagic longline fishing technique. Id. "Highly migratory species," as defined by the Magnuson-Stevens Act, includes several types of tuna, swordfish, marlin, and oceanic sharks. 16 U.S.C. § 1802(20). "Pelagic longline fishing" is a commercial fishing method that involves deploying lines up to several miles long, supported by floats. Fed. Def.'s Stmt. of Facts at 3. Hooks baited with mackerel or squid are attached to these lines and hung at precise depths depending on the targeted catch.

  Pelagic longline fishing has proven to be an extremely effective method for harvesting certain types of fish, but it is also common in the course of long lining for untargeted species, or "bycatch," to get caught in the line trailing behind vessels, or even to hook themselves.*fn5 Bycatch is of particular concern when, as here, it consists of species protected under the ESA, like loggerhead and leatherback sea turtles, which are prevalent throughout the Atlantic Fishery.*fn6 Although the severity of interactions between the protected sea turtles and long liners vary from the relatively minor "foul hooking" of a sea turtle's flipper, to a fatal hook swallowing, since at least 1999 experts at the NMFS have concluded that the Atlantic Fishery poses a threat to the survival of leatherback and loggerhead sea turtles. Fed. Def.'s Concise Stmt. of Facts at 3-4. Indeed, since 1999, three BiOps have been issued addressing the HMS pelagic long line fishery. AR Vol. 1, Doc. I-7 at 6622 (citing April 23, 1999 BiOp; June 30, 2000 BiOp; June 14, 2001 BiOp).

  The June 14, 2001 BiOp ("2001 BiOp") helps illustrate the evolution of the present controversy. See AR Vol. 2, Doc. I-11. The 2001 BiOp concluded that continued operation of the Atlantic Fishery was likely to jeopardize survival of the leatherback and loggerhead sea turtles. Fed. Def.'s Stmt. of Facts at 4. The 2001 BiOp, however, included a Reasonable and Prudent Alternative ("RPA") requiring, among other things, an immediate and indefinite closure of the Northeast Distant ("NED") section of the fishery, and approving an intensive research experiment ("Northeast Distant experiment"). The Northeast Distant experiment was charged with reducing sea turtle bycatch by developing, or modifying, fishing gear and techniques, as well as with evaluating safe-handling techniques to reduce post-release sea turtle mortality. AR Vol. 1, Doc. I-11 at I; AR Vol. 1, Doc. 1010 at 1-4. The 2001 BiOp also included an Incidental Take Statement ("ITS") that authorized the otherwise prohibited "take" of 438 leatherback and 402 loggerhead sea turtles annually.*fn7 Id. If these incidental take levels were exceeded, the BiOp required re-initiation of consultation, and a review of the RPA. AR Vol. 1, Doc. I-7. Although the 2001 BiOp closed the Northeast Distant section of the Atlantic Fishery, this was widely believed to be only a temporary measure that would remain only until the prescribed scientific study was complete and its findings adopted through the formal rulemaking process. Fed. Def's Mot. for Sum. Judg. at 4.

  Between 2001 and 2003, the NMFS compiled and analyzed the data received from the Northeast Distant experiment, along with other scientific information relevant to bycatch of sea turtles in pelagic longline fisheries. AR Vol. 1, Doc. I-7 at 6622. Although no single solution emerged, NMFS experts interpreting the data from the experiment concluded that certain changes to hook and bait combinations in the fishery's regulation would substantially improve fishery conservation. More precisely, results from the experiment indicated that loggerhead and leatherback sea turtle interactions could be significantly reduced by replacing the industry-wide standard J-hook with 18/0 circle hooks.*fn8 Id. at 6623; AR Vol. 1, Doc. I-10 at 4-21 (data showing a sea turtle bycatch reduction rate of between 50% and 90.4% depending on the type of hook, bait, and turtle involved).*fn9 The research also indicated, however, that this same combination of hook and bait could negatively affect desirable catch, like bigeye tuna. Id.

  Findings from the Northeast Distant experiment were supported by international research efforts. A study conducted in the Azores in 2002 concluded that compared to J-hooks, the 16/0 circle hook had an excellent potential to reduce sea turtle bycatch and overall mortality. AR Vol. 8, Doc. II-A-20 at 3. Similarly, a study conducted in Nova Scotia, where 16/0 circle hooks were more commonly used than in the U.S. fishery, found that J-hooks increased the capture of leatherback sea turtles when compared to circle hooks. AR Vol. 9, Doc. II-A-23 at 9. Although the NMFS did not have substantial data comparing the relative effectiveness of circle hooks of different sizes, NMFS experts inferred from the information available that the primary benefit of the circle hook over the traditional J-hook with regards to reducing bycatch derived from its shape more than its size. AR Vol. 13, Doc. II-A-54, at 1-2.

  After the Northeast Distant experiment had concluded, the NMFS published a notice of intent to prepare a supplemental environmental impact statement ("SEIS") reassessing the potential affects of the Atlantic HMS-PLL on the environment. AR Vol. 2, Doc. I-11 at I. Among the comments received during the public comment period were suggestions from the commercial fishing industry that the NMFS hold regional workshops for fishermen on methods for safely removing gear from captured turtles.*fn10 AR Vol. 2, Doc. I-11 at 1-4.

  On February 11, 2004, the NMFS released a draft of its revised FMP for the Atlantic Fishery in the form of a proposed rule and draft SEIS. AR Vol. 1, Doc. I-7; Vol. 2, Doc. I-12 at 2. Together, the proposed rule and the draft SEIS summarized the available research in the Northeast Distant experiment and outlined several alternatives that could potentially reduce bycatch while also minimizing, to the extent practicable, the economic impact on individual fishermen in the fishery. AR Vol. 1, Doc. I-8 at 1-5. The NMFS considered numerous alternatives for achieving these objectives, including modifications to hook and bait requirements, time and area closures, and new rules requiring the use of sea turtle handling and release gear. Id. at 2-1 to 2-6. In the draft SEIS, the NMFS indicated a preference for an alternative that would require use of the larger 18/0 circle hooks throughout the entire Atlantic Fishery. AR Vol. 1, Doc. I-7 at 6625; Doc. I-8 at 2-1 to 2-6.

  As undoubtedly expected, many formal responses were recorded during the public-comment period from members of the fishing industry. Two concerns, in particular, were frequently expressed: (1) that requiring the larger 18/0 circle hook would reduce the catch of desirable species to unprofitable levels, thereby rendering the fishery non-viable; and (2) that the strict requirements would not be "exportable" to fishermen from other nations who, in fact, represented a majority of participants in the fishery.*fn11 AR Vol. 2, Doc. I-11 at 4-13. Other responses, including those from many environmental groups, commended the proposal as moving in the right direction and advocated its timely adoption. AR Vol. 2, Doc. I-11 at C1-24.

  On April 20, 2004, the NMFS asked its own Southeast Regional Office ("SERO") to prepare a Biological Opinion ("2004 BiOp") assessing the effects of reopening the Northeast Distant segment of the fishery subject to an 18/0 circle hook restriction, while imposing a general 16/0 circle hook restriction for the remainder of the Atlantic HMS-PLL, which was contrary to the proposed rule and draft SEIS.*fn12 AR Vol. 1, Doc. I-9 at 1-2. NMFS was considering revising its actions in the Final Rule from those described in the proposed rule based upon the public comments received during the comment period, as well as new information regarding sea turtle mortalities and a "reexamination of data pertaining to reductions in bycatch and bycatch mortality associated with various hook and bait combinations." AR Vol. 1, Doc. I-10 at 1-6.

  On June 1, 2004, SERO completed its analysis and issued the 2004 BiOp. AR Vol. 1, Doc. I-10. The 2004 BiOp, one of the primary documents challenged by the plaintiffs in this case, made two particularly relevant findings. First, it concluded that continued operation of the longline fishery would not jeopardize the continued existence of the loggerhead sea turtle. AR Vol. 1, Doc. I-10 at 7-1. Second, it found that the conservation rule would jeopardize the continued existence of the leatherback sea turtle. Id. The 2004 BiOp, however, went on to identify RPAs necessary to avoid jeopardizing the leatherback turtle while allowing the new conservation rule to take effect.*fn13 On June 22, 2004, the NMFS released a final SEIS, see AR Vol. 2, Doc. 1-11, followed, on July 6, 2004, by a Final Rule adopting the RPAs proposed in the 2004 BiOp, AR Vol. 2, Doc. 1-12. The Final Rule removed all J-shaped "J-hooks" from the fishery, required the larger 18/0 gauge circle-shaped hooks in the NED, and required 16/0, or larger circle hooks, elsewhere in the fishery. AR Vol. 2, Doc. I-14 at 40743.

  LEGAL STANDARDS

  I. Standard of Review

  Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(C). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In this case, where cross-motions for summary judgment are at issue, the Court draws all reasonable inferences regarding the assertions made in a light favorable to the non-moving party. Flynn v. Dick Corp., 2005 WL 1904018, *2 (July 29, 2005 D.D.C.). The Court will "grant summary judgment only if one of the moving parties is ...


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