United States District Court, N.D. California
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 26, 34
A. WESTMORE, UNITED STATES MAGISTRATE JUDGE
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.
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.
Endangered Species Act
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.
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).
National Environmental Policy Act
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).
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.
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. §§
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
Magnuson-Stevens Fishery Conservation and Management
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).