Center For Biological Diversity v. Ross

Background

The Center for Biological Diversity and Turtle Island Restoration Network challenged the National Marine Fisheries Service’s issuance of two Exempted Fishing Permits. The permits allowed two vessels to conduct commercial longline fishing in the West Coast Exclusive Economic Zone for two years, despite federal regulations and state law generally prohibiting longline fishing within 200 miles of the West Coast.

The Fisheries Service estimated that the permitted fishing would use 330,000 hooks. Its 2018 biological opinion predicted the hooking or entanglement of two Pacific leatherback sea turtles and two loggerhead sea turtles, with one turtle of each species expected to die. The agency also issued an environmental assessment and a finding of no significant impact, concluding that a more detailed Environmental Impact Statement was unnecessary.

Legal claims and analysis

The plaintiffs moved for summary judgment, and the defendants filed a cross-motion for summary judgment. The court reviewed the agency’s final actions under the Administrative Procedure Act’s arbitrary-and-capricious standard, which requires an agency to consider important aspects of a problem and explain the connection between the facts it found and its decision.

For the Endangered Species Act claim, the court held that the Fisheries Service failed to use the best available scientific and commercial information. The agency did not address its 2017 biological opinion, which estimated that Pacific leatherbacks had declined to fewer than 3,000 adult and subadult turtles and included a substantially lower estimate of nesting females than the 2018 biological opinion. The court found that failing to consider and reconcile the agency’s own earlier opinion made the 2018 biological opinion arbitrary, capricious, an abuse of discretion, and not in accordance with law.

For the National Environmental Policy Act claim, the court held that the agency’s failure to treat the likely death of one leatherback sea turtle as a significant environmental impact was arbitrary and capricious. The court concluded that the difference between the agency’s earlier statement that every turtle mattered to the species’ survival and its later conclusion that one turtle’s death was not significant raised a substantial question about the environmental impact. That required preparation of an Environmental Impact Statement.

The court also held that the permit issuance violated the Magnuson-Stevens Fishery Conservation and Management Act because that statute requires fishery actions to comply with applicable federal law, including the Endangered Species Act.

Disposition

The court granted the plaintiffs’ motion for summary judgment on all three causes of action and denied the defendants’ cross-motion for summary judgment. The court vacated and set aside the two Exempted Fishing Permits, the 2018 biological opinion, the environmental assessment, and the finding of no significant impact.