Home » Case Summaries » 2017 » Turtle Island Restoration Network v. Department of Commerce, 878 F.3d 725 (9th Cir. 2017).


Turtle Island Restoration Network v. Department of Commerce, 878 F.3d 725 (9th Cir. 2017).


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Turtle Island Restoration Network and the Center for Biological Diversity (Plaintiffs) challenged the decision of the National Marine Fisheries Service (NMFS) allowing a Hawaiian swordfish fishery to increase efforts, which may result in unintentional deaths of endangered sea turtles. Plaintiffs also challenged the decision of the United States Fish and Wildlife Service (FWS) to issue a “special purpose” permit to NMFS authorizing the fishery to incidentally kill migratory birds. Plaintiffs sued under the Magnuson-Stevens Fishery Conservation and Management Act (the Act),[1] the Endangered Species Act (ESA),[2] the Migratory Bird Treaty Act,[3] and the National Environmental Policy Act (NEPA).[4] Reviewing under the arbitrary and capricious standard,[5] the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the United States District Court for the District of Hawaii’s grant of summary judgment in favor of NMFS.[6]

The Act tasks NMFS and other entities with developing plans for the nation’s fisheries, consistent with the national standards within the Act and any other applicable law. The ESA requires that agency action that is authorized, funded, or carried out is “not likely to jeopardize the continued existence” of ESA-listed species.[7] Agencies must consult with either the NMFS or the FWS for a review of the proposed action, and the preparation of a biological opinion (BiOp) that evaluates whether, and to what extent, the action may impact the species.[8] If the proposed action would not jeopardize a species’ existence, then the NMFS or FWS issues a “taking” permit for a specific number of protected animals, as long as the taking is incidental to the activity. The FWS has further authority to enforce the MBTA, which governs the taking of any migratory bird protected by the Endangered Species Act except under a valid permit issued by the Secretary of the Interior.[9]

In 2008, NMFS proposed an amendment to the plan for the Pelagic Fisheries of the Western Pacific Region allowing increased fishing activity. NMFS produced a BiOp concluding that the amendment would not jeopardize the sea turtles at issue, and then issued a final rule implementing the amendment. Plaintiffs sued, prompting NFMS to withdraw the 2008 BiOp and issue a new 2012 BiOp with another no jeopardy conclusion for the sea turtles. NMFS at the same time applied to FWS for a permit allowing the fisheries involved to take migratory seabirds; in 2012, FWS issued a finding of “no significant impact” and granted a three-year permit authorizing a certain number of migratory bird killings. In response to these actions, Plaintiffs filed the lawsuit considered here, with the district court ruling in favor of defendants on all claims. Plaintiffs appealed. As a preliminary matter the court first noted that, distinct from the arbitrary and capricious standard, it is required to give deference to an agency’s interpretation of statutes and regulations that define the scope of its authority.[10]

The Ninth Circuit first considered the decision by FWS to issue a special purpose permit to NMFS on behalf of a commercial fishery, a decision that it found was arbitrary and capricious. The court stated that ordinarily FWS’s interpretation of 50 C.F.R. § 21.27[11] would deserve deference, but that in this instance the plain language of the regulation was not reasonably susceptible to FWS’s interpretation. FWS argued that the phrase “related to migratory birds” was not a restriction on its permitting authority and that longline fishing was “related to migratory birds” because it incidentally interacted with them. The court disagreed, holding that it was not reasonable to say that every activity risking the lives of migratory birds related to them.

Second, the Ninth Circuit disagreed with the determination by NFMS in the 2012 BiOp that the loggerhead turtle population would remain “large enough to retain the potential for recovery.”[12] The court found this decision arbitrary and capricious because NMFS had not articulated a rational connection between the best available science and the conclusion that the loggerhead turtles would not be affected by increased fishing efforts. NMFS’s model showed the loggerhead turtles heading toward extinction and, when matched with other evidence of the decline of species viability, the proposed action would impermissibly accelerate that decline.

Third, the court held that NMFS did not act arbitrarily and capriciously in determining that the fishery would have no appreciable effect on the leatherback turtle population. Plaintiffs argued that NMFS erred in limiting the timeframe of the analysis, but because an agency has discretion between available scientific models[13] and the court is not intended to act in the place of scientists,[14] the Ninth Circuit decided the constraints in available data reasonably justified the choice.

Finally, the court decided that the consideration of climate change in the 2012 BiOp by NMFS was neither arbitrary nor capricious and was not contrary to NMFS’s obligation to utilize the best scientific data obtainable in its decision. Plaintiffs argued the 2012 BiOp had not evaluated the impact of climate change and NMFS acted arbitrarily by dismissing the effects of global warming on sea turtles without further study. The Ninth Circuit held that NMFS had in fact considered several ways global warming might affect sea turtles, and a decision that the data was indeterminate was permissible because the court could not insist on perfection if there was no superior data available.

In sum, the court found that the FWS grant of an incidental take permit to NMFS was arbitrary and capricious because FWS did not properly interpret 50 C.F.R. § 21.27, and the NMFS 2012 BiOp finding of no jeopardy to loggerhead sea turtles was arbitrary and capricious because of the insufficient explanation regarding the difference between the opinion and the evidence. On these counts, the court reversed the district court’s decision to grant summary judgment. The Ninth Circuit affirmed the remainder of the district court’s grant of summary judgment upon finding the defendants’ other decisions reasonable and justified.

A dissenting opinion from Judge Callahan challenged the majority’s holding that FWS issuance of a special purpose permit under the MBTA for the incidental take of migratory birds was impermissible. The dissent stated that the court misapplied the standard of review under Auer v. Robbins[15] because both 50 C.F.R. § 21.27 and the MBTA allowed the FWS decision. Additionally, the special permit was in keeping with past practices of FWS. The FWS incidental take policy toward ESA-listed migratory birds does not preclude the agency from issuing permits for non-ESA-listed migratory birds. The dissent stated that the permit issuance reflected considered judgment, which is another basis for deference under Auer. Further, because the agency interpretation of § 21.27 could be reconciled with the text of the regulation, Auer provided that the court defer to FWS. Finally, the dissent reasoned that the issuance of the permit aligned with the MBTA’s conservation purpose.

The dissent also stated that the majority erred in rejecting the 2012 BiOp’s assessment of the effect on loggerhead turtles by substituting its own judgement for that of the agency. The dissent posited that NMFS reached a reasonable conclusion regarding the loggerhead turtles, and properly applied the decision from National Wildlife Federation v. National Marine Fisheries Service[16] by considering the incremental impact of the proposed action along with the degraded baseline conditions.

Footnotes    (↵ returns to text)

  1. 16 U.S.C. §§ 1801–1891d (2012).
  2. 16 U.S.C. §§ 1531–1544 (2012).
  3. 16 U.S.C. §§ 703–712 (2012).
  4. 42 U.S.C. §§ 4321–4370h (2012).
  5. Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2012).
  6. Turtle Island Restoration Network v. U.S. Dep’t. of Commerce, No. 12-00594 SOM-RLP, 2013 WL 4511314, at *1 (D. Haw. Aug. 23, 2013).
  7. 16 U.S.C. § 1536(a)(2).
  8. 16 U.S.C. § 1536(b).
  9. 16 U.S.C. § 703(a).
  10. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
  11. See 50 C.F.R. § 21.27 (relating to special purpose permits).
  12. Nat’l Marine Fisheries Serv., Endangered Species Act – Section 7 Consultation: Biological Opinion 108 (January 30, 2012), https://perma.cc/F23F-8V79.
  13. San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 997 (9th Cir. 2014).
  14. The Lands Council v. McNair, 537 F.3d 981, 988 (9th Cir. 2008).
  15. Auer v. Robbins, 519 U.S. 452, 461 (1997).
  16. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008).
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