In January 2012, the National Marine Fisheries Service (NMFS) issued a biological opinion (BiOp), which found that the Hawai‘i shallow-set longline fishery would not jeopardize the continued existence of loggerhead or leatherback turtles if it operated under a leatherback interaction cap of 26 and a loggerhead cap of 34. Both species of sea turtle are listed as endangered.
Several months later, the U.S. Fish and Wildlife Service (FWS) granted NMFS a three-year special use permit allowing the fishery to incidentally kill birds protected un- der the Migratory Bird Treaty Act (MBTA). The permit allowed for the killing of up to 191 black-footed albatross, 430 Laysan albatross, 30 northern fulmars, 30 sooty shearwaters, and one short-tailed albatross, which is also an endangered species.
The Turtle Island Restoration Network and the Center for Biological Diversity subsequently sued NMFS and the FWS, arguing that the actions of the two federal agencies violated the National Environmental Policy Act, the Endangered Species Act, and the MBTA. Last December, two of the three 9th U.S. Circuit Court of Appeals judges reviewing the case found in the groups’ favor, at least with regard to the loggerhead caps and the MBTA permit.
They found that the FWS’s regulatory framework restricts the agency to granting special use permits only for activities that relate to migratory birds and for which there is a compelling justification. Commercial longline fishing, they found, does not “relate to” migratory birds.
“The FWS … maintains that longline fishing is ‘related to migratory birds’ because it incidentally interacts with them. Although nothing in the regulation requires that the permitted activity directly concern migratory birds, it nevertheless strains reason to say that every activity that risks killing migratory birds ‘relate[s] to’ those birds,” they wrote, adding that the agency’s legal interpretation “does not conform to either the MBTA’s conservation intent or the plain language of the regulation.”
With regard to the loggerhead cap, they pointed out that the BiOp’s climate-based model “predicted a decline in loggerhead populations to a level that ‘represents a heightened risk of extinction,’ but still upheld a finding of ‘no jeopardy’ on the grounds that there was ‘little to no difference in the extinction risk when the annual removal of one adult female loggerhead resulting from the proposed action is considered in the model.’”
They noted that in 2008, the court ruled in National Wildlife Federation (NWF) v. National Marine Fisheries Service that when baseline conditions already jeopardize a species, an agency cannot take actions that deepen that jeopardy. In this case, NMFS “reached an arbitrary conclusion by only comparing the prospective harm to the loggerheads that is attributable to the proposed action—the death of a single adult, female loggerhead per year—to the much greater harm resulting from factors beyond the fishery,” they wrote.
“Because the NMFS has not articulated a rational connection between the best available science and its conclusion that the loggerhead sea turtles would not be affected by the increased fishing efforts, the agency’s determination that the loggerhead ‘population will remain large enough to retain the potential for recovery’ is arbitrary and capricious,” they concluded.
Between 2012 and 2016, the fishery caught an average of 78 birds a year, the vast majority of them albatrosses, according to data collected by federal observers. And between 2012 and this year (so far), the fishery interacted with an annual average of 15 loggerhead turtles. If only the last five years are taken into account, that average jumps to 19.
Dissent
Judge Consuelo Callahan, the dissenter, argued that NMFS and the FWS should have been granted deference. The court should be at its most deferential “when reviewing scientific judgments and technical analyses within the agency’s expertise. … Yet instead of anchoring its analysis in well-established principles of agency deference, the majority sets sail on a voyage of discovery, leaving in its wake our precedent,” she wrote.
With regard to the bird permit, she argued that it actually does promote bird conservation. She pointed out that NMFS regulates the shallow-set fishery “under a program that is expressly geared at reducing seabird bycatch. Indeed, since the program took effect in 2004, incidental take of seabirds by the fishery has plunged nearly 90 percent. Thus, whatever CBD [Center for Biological Diversity] means by activities that ‘promote migratory bird conservation,’ FWS’s issuance of the permit is consistent with the agency’s historical practice of tying incidental take permits to conservation measures.”
Callahan also found that NMFS did consider the fishery’s incremental impact along with degraded baseline conditions, as required by the NWF decision.
“To ‘deepen the jeopardy’ of a species is to ‘reduce appreciably’ a species’ chance at continued survival and recovery. It cannot— as CBD and the majority suggest— simply mean exacerbating a species’ already ‘imperiled’ existence, no matter how de minimis the impact. An ‘endangered species’ like the loggerhead is, by definition, a ‘species which is in danger of extinction…’ If the ESA prohibited any action that worsened—no matter how marginally—a species’ current plight, then it is difficult to conceive of an action that could survive § 7 consultation [under the ESA],” she concluded.
While NOAA counsel Kristin Johns told the Western Pacific Fishery Management Council last month that her agency was “happy with the dissenting judge’s very thorough analysis,” the Department of Justice ultimately chose not to green-light a petition for a rehearing before a larger panel of circuit judges.
— Teresa Dawson
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