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EARTH ISLAND INSTITUTE v. EVANS

April 10, 2003

EARTH ISLAND INSTITUTE, A CALIFORNIA NON-PROFIT CORPORATION, ET. AL., PLAINTIFFS,
v.
DONALD EVANS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thelton E. Henderson, United States District Judge

ORDER RE: PRELIMINARY INJUNCTION

This matter came before the Court on Monday, April 7, 2003, on plaintiffs' motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65. Having carefully considered the written and oral arguments presented, the record herein, and the governing law, the Court grants plaintiffs' motion for the reasons set forth below.

I. BACKGROUND

Much of the background to this action is set forth in great detail in the prior opinions of this Court and the Ninth Circuit Court of Appeals and will not be repeated here. See Brower v. Daley, 93 F. Supp.2d 1071 (N.D.Cal. 2000) ("Brower I"); aff'd Brower v. Evans, 257 F.3d 1058 (9th Cir. 2001). At issue, once again, is a finding by the Secretary of Commerce ("Secretary") under the International Dolphin Conservation Program Act ("IDCPA") regarding the impact of purse seine fishing operations on dolphins who inhabit the Eastern Tropical Pacific ocean ("ETP").

Over the last thirty years, Congress has enacted various legislation in response to public outcry over millions of dolphins deaths caused by tuna fishermen using purse seine nets in the ETP. Brower, 257 F.3d at 1060. In 1990, Congress enacted the law at issue here — the Dolphin Protection Consumer Information Act ("DPCIA"), 16 U.S.C. § 1385 — which prevents tuna sold in the United States from being labeled "dolphin safe" if the tuna is caught with purse seine nets used to intentionally chase and encircle dolphins, which tend to congregate above schools of tuna in the ETP.

Since the early 1970s, the number of reported dolphin deaths in the ETP fishery has dropped dramatically as a result of protective legislation, embargoes, and voluntary efforts by nations fishing in the ETP to improve purse seine fishing techniques. Thus, while the number of reported dolphin deaths was 423,678 in 1972, that number dropped to a little over 120,000 in 1986, to 15,550 per year in 1992, and is estimated to be under 2,000 per year at present.*fn1 Given the dwindling levels of observed dolphin deaths, the nations most affected by the dolphin safe label law, primarily Mexico and other countries in Central and South America,*fn2 have vigorously lobbied to change the dolphin safe standard to allow tuna caught with purse seine nets to qualify as "dolphin safe" so long as no dolphins are observed to be killed or seriously injured during the set. As part of an agreement entered into with these nations, the United States administration promised, in 1995, to seek from Congress a relaxation of the dolphin safe label law. Brower I, 93 F. Supp.2d at 1074.

Concerns remained in Congress, however, that despite the low observed death rates, that depleted dolphin stocks in the ETP were not recovering as expected because "indirect effects" from the purse seine fishery were adversely affecting the dolphins. In particular, there were concerns that the physiological stress effects on dolphins that may arise from repeated chase and encirclement, as well as the separation of mothers and calves, could be impeding the ability of the dolphins to recover. Accordingly, Congress rejected Administration efforts to immediately weaken the dolphin safe label standard, and instead provided that the dolphin safe label could not be changed to include tuna caught with purse seine nets — even if no dolphins were observed to be killed or seriously injured during the set — unless the Secretary, after conducting specifically mandated scientific research, made either an "initial finding" by March 31, 1999, or a "final finding" by December 31, 2002, that the chase and encirclement by the tuna purse seine fishery was not having a "significant adverse impact on any depleted dolphin stock" in the ETP. Brower I, 93 F. Supp.2d at 1074-76; IDCPA, 16 U.S.C. § 1385(g)(1)-(2), 1414a.

In 1999, the Secretary made his "initial finding," pursuant to the IDCPA, that "there is insufficient evidence that chase and encirclement by the tuna purse seine fishery `is having a significant adverse impact' on the depleted dolphin stocks in the [ETP]." Brower I, 93 F. Supp.2d at 1073. This Court set aside that finding because the Secretary had failed to conduct the congressionally mandated scientific research necessary to address the question of "significant adverse impact" prior to making his initial finding.*fn3 It would, the Court concluded, "flout the statutory scheme to permit the Secretary to fail to conduct mandated research, and then invoke a lack of evidence as a justification for removing a form of protection for a depleted species, particularly given that the evidence presently available to the Secretary is all suggestive of a significant adverse impact." Id. at 1089.

In affirming this decision, the Ninth Circuit Court of Appeals also emphasized that the Secretary can not rely on "insufficient evidence" as a basis for declining to find a significant adverse impact. Brower, 257 F.3d at 1066-67. Such an approach, the Court explained, would allow the Secretary to "deliberately drag his feet in commencing studies or while conducting studies and then conclude there was insufficient evidence to warrant finding a significant adverse impact on the ETP dolphin stocks." Id. at 1067. Rather, in making his findings, the Secretary is required to "affirmatively find whether or not there is a significant adverse impact before the dolphin safe labeling standards can be relaxed." Id.

On December 31, 2002, the Secretary made his "final finding" that "the chase and intentional deployment on or encirclement of dolphins with purse seine nets is not having a significant adverse impact on depleted dolphin stocks in the [ETP]." 68 Fed. Reg. 2010, 2011 (Jan. 15, 2003); 16 U.S.C. § 1385(g)(2). According to the Secretary, this finding was made based on the September 17, 2002 "Report of the Scientific Research Program Under the International Dolphin Conservation Program Act" ("Final Science Report"), prepared by the National Oceanic and Atmospheric Administration ("NOAA"), reports from two Expert Review Panels, comments on the Final Science Report by the Inter-American Tropical Tuna Commission ("IATTC"), and the Marine Mammal Commission, other relevant information, and comments submitted by the public. Hogarth Decl. at ¶ 19.*fn4 As stated above, the effect of this final finding is to permit tuna caught in the ETP using purse seine nets that are deployed to chase and encircle dolphins, to be sold and marketed in the United States using the label "dolphin safe"so long as no dolphins are observed to have been killed or seriously injured during the set in which the tuna was harvested. 68 Fed. Reg. at 2011

On December 31, 2002, plaintiffs*fn5 filed this action, again contending that the Secretary's finding is arbitrary, capricious, an abuse of discretion, and contrary to law under the Administrative Procedure Act, 5 U.S.C. § 706, and must therefore be set aside. The instant motion seeks to maintain the status quo by preliminarily enjoining implementation of the Secretary's final finding pending final disposition of this action.*fn6 Such relief is justified, they contend, because they have shown a likelihood of success on the merits, and the equities, including the public interest, weigh in favor of maintaining the status quo pending resolution of this case. Defendants contest the motion, arguing that the Secretary's final finding is adequately supported by the scientific evidence, and that the public interest and other equitable considerations weigh in favor of allowing an immediate change in the dolphin safe label. Each of these of contentions is addressed in turn below.*fn7

II. DISCUSSION

To obtain preliminary injunctive relief, plaintiffs must demonstrate either (1) a likelihood of success on the merits and a possibility of irreparable injury, or (2) the existence of serious questions on the merits and a balance of hardships tipping in their favor. Fund for Animals v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992). "Each of these two formulations requires an examination of both the potential merits of the asserted claims and the harm or hardships faced by the parties." Sammartano v. First Judicial Distr. Court, 303 F.3d 959, 965 (9th Cir. 2002). The public interest is also a factor in determining a request for preliminary injunctive relief. Id. at 965; Fund for Animals, 962 F.2d at 1400.

A. The Merits

In order to successfully overturn the Secretary's final finding under the APA, plaintiffs must demonstrate that the finding is either arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Brower, 257 F.3d at 1065. While this burden is substantial, it can be sustained by showing that the agency has (1) relied on factors that Congress did not intend it to consider, (2) entirely failed to consider an important aspect of the problem, (3) offered an explanation for its decision that runs counter to the evidence before the agency, or (4) made a decision that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id.

As this narrow standard suggests, "a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Nevertheless, the Court in reviewing the agency's explanation for its decision, "must `consider whether the decision was based on consideration of the relevant factors and whether there has been a clear error of judgment.'" Id. (citations omitted). Agencies are also entitled to deference with respect to scientific matters within their expertise. Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679 (D.D.C. 1997). Such deference, is not, however, "unlimited." Brower, 257 F.3d at 1067. The "presumption of agency expertise can be rebutted when its decisions, while relying on scientific expertise, are not reasoned." Id. In sum, the Court's review, while clearly narrow in scope, "must be searching and careful." Id. at 1065.

Guided by the principles above, this Court concludes that plaintiffs have (1) raised a serious question as to whether the Secretary relied on factors which Congress did not intend it to consider, and (2) shown that they are likely to succeed on their claim that the final finding is contrary to the best available scientific evidence, and thus the Secretary has offered "an explanation ...


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