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State of Alaska v. Lubchenco

United States Court of Appeals, Ninth Circuit

July 23, 2013

State of Alaska, Plaintiff-Appellant,
v.
Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, [*]Defendants-Appellees, and Freezer Longline Coalition; Alaska Seafood Cooperative; the Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; the Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington limited liability companies; FCA Holdings, Inc., an Alaska corporation; O'Hara Corporation, a Maine corporation; AK Victory, Inc., a Washington corporation, Plaintiffs, Oceana; Greenpeace Inc., Intervenor-Defendants- Appellees. State of Alaska; Freezer Longline Coalition, Plaintiffs, and Alaska Seafood Cooperative; the Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; The Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington limited liability companies; FCA Holdings, Inc., an Alaska corporation; O'Hara Corporation, a Maine corporation; AK Victory, Inc., a Washington corporation, Plaintiffs-Appellants,
v.
Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, Defendants-Appellees, Oceana; Greenpeace Inc., Intervenor-Defendants- Appellees. State of Alaska; Alaska Seafood Cooperative; the Groundfish Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage Inc.; Ocean Peace, Inc.; the Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington corporations; United States Seafoods, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington limited liability companies; FCA Holdings, Inc., an Alaska corporation; O'Hara Corporation, a Maine corporation; AK Victory, Inc., a Washington corporation, Plaintiffs, and Freezer Longline Coalition, Plaintiff-Appellant,
v.
Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce, Defendants-Appellees, Oceana; Greenpeace Inc., Intervenor-Defendants- Appellees.

Argued and Submitted December 4, 2012—Seattle, Washington

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding Nos. 3:10-cv-00271-TMB 3:11-cv-00001-TMB 3:11-cv-00004-TMB, 3:10-cv-00271-TMB 3:11-cv-00001-TMB 3:11-cv-00004-TMB, 3:10-cv-00271-TMB 3:11-cv-00001-TMB 3:11-cv-00004-TMB

COUNSEL

Bradley E. Meyen and Andrew R. Naylor, Assistant Attorneys General, State of Alaska, Department of Law, Anchorage, Alaska; Murray D. Feldman, Holland & Hart LLP, Boise, Idaho; Christina F. Gomez, Holland & Hart LLP, Denver, Colorado, for Plaintiff-Appellant State of Alaska.

Linda R. Larson (argued) and Jessica K. Ferrell, Marten Law PLLC, Seattle, Washington, for Plaintiffs-Appellants Alaska Seafood Cooperative, et al.

Ryan P. Steen and Jeffrey W. Leppo, Stoel Rives LLP, Seattle, Washington, for Plaintiff-Appellant Freezer Longline Coalition.

Ignacia S. Moreno, Assistant Attorney General, Dean Dunsmore, John H. Martin, Daniel Pollak, Joan M. Pepin, and J. David Gunter II (argued), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees Jane Lubchenco, et al.

Colin C. O'Brien (argued), Earthjustice, Anchorage, Alaska; Shawn Eisele and Eric P. Jorgensen, Earthjustice, Juneau, Alaska, for Intervenor-Appellees Oceana, Inc. and Greenpeace, Inc.

Before: Mary M. Schroeder, M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.

SUMMARY[**]

Environmental Law

The panel affirmed the district court's judgment rejecting the claims of fishing industry representatives and the State of Alaska in an action challenging limitations to the commercial fishing industry the National Marine Fisheries Services placed on sub-regions of the Pacific Ocean inhabited by the endangered western Distinct Population Segment of Stellar sea lions.

The panel held that use of sub-regions did not violate the Endangered Species Act and that the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population. The panel also held that the district court did not err by refusing to order preparation of a Record of Decision pursuant to the National Environmental Policy Act because it would be premature in the absence of the agency's proposed action based on the Environmental Impact Statement record it develops.

OPINION

SCHROEDER, Circuit Judge:

The western Distinct Population Segment of the Steller sea lions ("wDPS") live in the great northern Pacific Ocean region off Alaska, and they were declared endangered in 1997. More recently, in two of the seven sub-regions they inhabit, they have been experiencing population declines because they have been showing signs of nutritional stress. In 2010, the National Marine Fisheries Service ("NMFS" or "the agency") therefore limited commercial fishing in those waters, causing representatives of the fishing industry and the State of Alaska ("Plaintiffs") to file this action challenging the limitations.

The plaintiffs' principal argument is that the NMFS violated the Endangered Species Act ("ESA") because it based the fishing restrictions on declines in sub-regions rather than in the entire population of the endangered species. Plaintiffs also contend the agency utilized the wrong standards in measuring the effects of continued fishing and failed to find a sufficient causal link between authorizing fisheries and the population decline. We hold that use of sub-regions did not violate the ESA and that the agency utilized appropriate standards to find that continuing previous fishing levels in those sub-regions would adversely modify the critical habitat and jeopardize the continued existence of the entire population. We therefore affirm the district court's judgment rejecting plaintiffs' claims.

I. BACKGROUND

A. Statutory Framework

This case involves the interaction of three statutes: the Magnuson-Stevens Fisheries Conservation Act ("MSA"), the ESA, and the National Environmental Policy Act ("NEPA"). The first concerns management of fisheries, and the others concern more generally the environmental consequences of government actions. Plaintiffs claim NMFS violated all three in its promulgation of a 2010 Biological Opinion ("BiOp") reducing commercial fishing in wDPS habitat.

The MSA governs the federal management of fisheries in various waters off the United States and establishes regional councils that are responsible for the sustainable management of fisheries. 16 U.S.C. § 1852(h). These councils create fishery management plans, which are prepared using scientific evidence and are geared toward ensuring conservation of the fisheries. Id. § 1853. The Secretary of Commerce must approve the management plans, which can include, among other things, limitations on or closure of fishing in designated zones. Id.

The ESA requires the Secretaries of Interior and Commerce to list endangered species and designate their critical habitats. 16 U.S.C. § 1533(c). Section 4(f) of the ESA requires the Secretary of Commerce to design and carry out "recovery plans" and to implement programs to conserve the species under section 7(a)(1). 16 U.S.C. §§ 1533(f), 1536(a)(1). Section 7(a)(2) of the ESA mandates that federal agencies ensure that actions they take will not "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2).

Under the ESA, when a governmental entity plans to take action that may impact an endangered species, it must consult with the agency that has authority over the species. The consulted agency must then prepare a BiOp to determine whether the planned action will either likely jeopardize the species's continued existence or adversely modify its critical habitat. See id.; Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir. 2008). If either of those criteria is met, the agency may suggest a "reasonable and prudent alternative" ("RPA"), which is ...


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