{"id":10314,"date":"2018-04-02T19:21:59","date_gmt":"2018-04-02T19:21:59","guid":{"rendered":"http:\/\/www.environment-hawaii.org\/?p=10314"},"modified":"2019-04-22T20:20:26","modified_gmt":"2019-04-22T20:20:26","slug":"court-finds-federal-agencies-violated-law-in-granting-permit-setting-loggerhead-cap","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=10314","title":{"rendered":"Court Finds Federal Agencies Violated Law In Granting Permit, Setting Loggerhead Cap"},"content":{"rendered":"
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In January 2012, the National Marine Fisheries Service (NMFS) issued a biological opinion (BiOp), which found that the Hawai\u2018i 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.<\/p>\n

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.<\/p>\n

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\u2019 favor, at least with regard to the loggerhead caps and the MBTA permit.<\/p>\n

They found that the FWS\u2019s 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 \u201crelate to\u201d migratory birds.<\/p>\n

\u201cThe FWS … maintains that longline fishing is \u2018related to migratory birds\u2019 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 \u2018relate[s] to\u2019 those birds,\u201d they wrote, adding that the agency\u2019s legal interpretation \u201cdoes not conform to either the MBTA\u2019s conservation intent or the plain language of the regulation.\u201d<\/p>\n

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With regard to the loggerhead cap, they pointed out that the BiOp\u2019s climate-based model \u201cpredicted a decline in loggerhead populations to a level that \u2018represents a heightened risk of extinction,\u2019 but still upheld a finding of \u2018no jeopardy\u2019 on the grounds that there was \u2018little 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.\u2019\u201d<\/p>\n

They noted that in 2008, the court ruled in National Wildlife Federation (NWF) v. National Marine Fisheries Service<\/em> that when baseline conditions already jeopardize a species, an agency cannot take actions that deepen that jeopardy. In this case, NMFS \u201creached an arbitrary conclusion by only comparing the prospective harm to the loggerheads that is attributable to the proposed action\u2014the death of a single adult, female loggerhead per year\u2014to the much greater harm resulting from factors beyond the fishery,\u201d they wrote.<\/p>\n

\u201cBecause 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\u2019s determination that the loggerhead \u2018population will remain large enough to retain the potential for recovery\u2019 is arbitrary and capricious,\u201d they concluded.<\/p>\n

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Between 2012 and 2016, the fishery caught\u00a0an 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.<\/p>\n

Dissent<\/strong><\/em><\/p>\n

Judge Consuelo Callahan, the dissenter, argued that NMFS and the FWS should have been granted deference. The court should be at its most deferential \u201cwhen reviewing scientific judgments and technical analyses within the agency\u2019s 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,\u201d she wrote.<\/p>\n

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 \u201cunder 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 \u2018promote migratory bird conservation,\u2019 FWS\u2019s issuance of the permit is consistent with the agency\u2019s historical practice of tying incidental take permits to conservation measures.\u201d<\/p>\n

Callahan also found that NMFS did consider the fishery\u2019s incremental impact along with degraded baseline conditions, as required by the NWF decision.<\/p>\n

\u201cTo \u2018deepen the jeopardy\u2019 of a species is to \u2018reduce appreciably\u2019 a species\u2019 chance at continued survival and recovery. It cannot\u2014 as CBD and the majority suggest\u2014 simply mean exacerbating a species\u2019 already \u2018imperiled\u2019 existence, no matter how de minimis the impact. An \u2018endangered species\u2019 like the loggerhead is, by definition, a \u2018species which is in danger of extinction…\u2019 If the ESA prohibited any action that worsened\u2014no matter how marginally\u2014a species\u2019 current plight, then it is difficult to conceive of an action that could<\/em> survive \u00a7 7 consultation [under the ESA],\u201d she concluded.<\/p>\n

While NOAA counsel Kristin Johns told the Western Pacific Fishery Management Council last month that her agency was \u201chappy with the dissenting judge\u2019s very thorough analysis,\u201d the Department of Justice ultimately chose not to green-light a petition for a rehearing before a larger panel of circuit judges.<\/p>\n

\u2014 Teresa Dawson<\/strong><\/em><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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 … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":9049,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[435],"tags":[3],"class_list":["post-10314","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-april-2018","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10314","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10314"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/10314\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/9049"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10314"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10314"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10314"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}