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Center for Biological Diversity v. Ross

United States District Court, N.D. California

December 20, 2019

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,
v.
WILBUR ROSS, et al., Defendants.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 26, 34

          KANDIS A. WESTMORE, UNITED STATES MAGISTRATE JUDGE

         On September 12, 2019, Plaintiffs, Center for Biological Diversity and Turtle Island Restoration Network, filed a motion for summary judgment, in which they challenge the National Marine Fisheries Service's issuance of permits to allow commercial longline fishing in federal waters off the coast of California. On October 10, 2019, Defendants, Wilbur Ross, in his official capacity as Secretary of Commerce, and the National Marine Fisheries Service, filed a cross-motion for summary judgment.

         On December 19, 2019, the Court held a hearing, and after careful consideration of the parties' arguments and the applicable legal authority, for the reasons set forth below, GRANTS Plaintiffs' motion for summary judgment, and DENIES Defendants' cross-motion for summary judgment.

         I. BACKGROUND

         A. Statutory Framework

         i. Endangered Species Act

         The Endangered Species Act (“ESA”) provides for the conservation of fish, wildlife, and plant species that are at risk of extinction by requiring federal agencies to ensure that actions they authorize, fund, or carry out are “not likely to jeopardize the continued existence” of any ESA- listed species. 16 U.S.C. § 1536(a)(2). Agencies proposing actions that may affect an ESA-listed species must consult with either the National Marine Fisheries Service (“NMFS” or “Fisheries Service”) or the U.S. Fish and Wildlife Service (“FWS”) -depending on the species involved- which then reviews the proposed action and prepares a “biological opinion” (or “BiOp”) that evaluates whether and the extent to which the action may impact the species. Id. § 1536(b); 50 C.F.R. § 402.12. In completing its analysis, NMFS must use “the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). The ESA's regulations define to “jeopardize the continued existence of” as “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02. To prepare its biological opinion, NMFS must evaluate the current status of the species overall and in the action area, the environmental baseline, and the effects of the action and cumulative effects on the listed species in the action area. 50 C.F.R. § 402.14(g)(2) & (3). The jeopardy analysis consists of a synthesis of the effects of the action within the action area upon the status of the species as a whole, taking into account the environmental baseline and cumulative effects. 50 C.F.R. § 402.02.

         If NMFS or FWS concludes that an action is likely to cause “jeopardy, ” then it must propose a “reasonable and prudent alternative” to the proposed action. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). On the other hand, if the NMFS or FWS finds that the proposed action would not jeopardize any species' continued existence, it issues a statement permitting the “taking” of a particular number of protected animals “if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B). That “incidental take statement” (“ITS”) must describe the effect of the incidental taking on the species and set forth those reasonable and prudent measures (“RPMs”) that NMFS considers “necessary or appropriate to minimize such impact.” 16 U.S.C. § 1536(b)(4)(C)(ii). “[A]ny taking that is in compliance with the terms and conditions specified in a written [ITS] . . . shall not be considered to be a prohibited taking of the species concerned.” 16 U.S.C. § 1536(o)(2).

         ii. National Environmental Policy Act

         The National Environmental Policy Act (“NEPA”) “is a procedural statute that requires the federal government to carefully consider the impacts of and alternatives to major environmental decisions.” Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012) (citing 42 U.S.C. §§ 4321, 4331). NEPA has “twin aims. First, it places upon [a federal] agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” All. for the Wild Rockies v. United States Forest Serv., 907 F.3d 1105, 1110 (9th Cir. 2018) (quoting Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002) (alteration in original) (internal quotation marks and citation omitted). “NEPA requires agencies to take a ‘hard look' at the environmental consequences of proposed agency actions before those actions are undertaken.” All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1215 (9th Cir. 2017) (citation omitted).

         To meet these twin aims, NEPA requires that an agency prepare a comprehensive Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.3. Not every federal action or proposal requires preparation of an EIS. Where the environmental impacts of an action are less than “significant, ” an agency may comply with NEPA though preparation of an environmental assessment (“EA”) and a Finding of No. Significant Impact (“FONSI”). See 40 C.F.R. §§ 1501.3; 1501.4(c), (e); 1508.9.

         An EA is a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].” Dep't of Transp. v. Pub. Citizen, 541 U.S.752, 757 (2004) (quoting 40 C.F.R. § 1508.9(a)(1)). If, pursuant to the EA, an agency determines that an EIS is not required under applicable CEQ regulations, it must issue a FONSI, which briefly presents the reasons why the proposed agency action will not have a significant impact on the environment. Id. at 757-58; 40 C.F.R. §§ 1501.4(e), 1508.13.

         “The NEPA process involves an almost endless series of judgment calls, ” and “the linedrawing decisions necessitated by the [NEPA process] are vested in the agencies, not the courts. Duncan's Point Lot Owner's Ass'n v. FERC, 522 F.3d 371, 376 (D.C. Cir. 2008) (quotations omitted). “NEPA's goal is satisfied once … information is properly disclosed; thus, NEPA exists to ensure a process, not to ensure any result.” Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996) (citation omitted).

         iii. Magnuson-Stevens Fishery Conservation and Management Act

         In response to concerns about overfishing, the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) was enacted “to take immediate action to conserve and manage the fishery resources found off the coasts of the United States. . .” and “to promote domestic, commercial, and recreational fishing under sound conservation and management principles. . . .” 16 U.S.C. § 1801(b)(1), (3). The MSA created a comprehensive system for the conservation and management of domestic marine fisheries by establishing eight regional fishery management councils that are responsible for preparing fishery management plans for fisheries subject to the statute. 16 U.S.C. §§ 1801(b)(1), 1852(h). The councils are composed of Federal, State, and territorial fishery management officials, participants in commercial and recreational fisheries, and other individuals with scientific experience or training in fishery conservation and management. 16 U.S.C. § 1852(b). All fishery management plans and implementing regulations must be consistent with the ten national standards set out in the MSA and any other applicable law. 16 U.S.C. §§ 1851(a), 1853(a)(1)(C). If a target or incidental harvest of species managed under a fishery management plan or fishery regulations is prohibited, the NMFS Regional Administrator or Director may authorize an Exempted Fishing Permit (“EFP”) “for limited testing, public display, data collection, exploratory fishing, compensation fishing, conservation engineering, health and safety surveys, environmental cleanup, and/or hazard removal purposes.” 50 C.F.R. § 600.745(b).

         B. ...


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