Description: Challenge to federal decisions authorizing expansions of swordfish fishery that allegedly would adversely affect endangered sea turtles and other animals.
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Turtle Island Restoration Network v. U.S. Department of Commerce
Case Documents:
Filing Date Type File Action Taken Summary 12/27/2017 Opinion Download Opinion issued partially reversing district court's decision upholding agency determinations. Ninth Circuit Issued Mixed Ruling on Assessment of Fishery Impacts on Climate Change-Threatened Sea Turtles. The Ninth Circuit Court of Appeals ruled that the National Marine Fisheries Service (NMFS) had acted arbitrarily and capriciously when it determined that a swordfish fishery’s expansion would not jeopardize the continued existence of the endangered loggerhead sea turtle despite scientific data suggesting that loggerhead population would significantly decline due to climate change and also to rising levels of marine debris. In doing so, the Ninth Circuit partially reversed a Hawaii district court’s granting of summary judgment upholding the NMFS’s determinations under the Endangered Species Act in connection with the fishery expansion. (The court also ruled that the NMFS’s grant of a permit under the Migratory Bird Treaty Act was arbitrary and capricious, but this aspect of the court’s ruling did not address climate change.) The Ninth Circuit said the NMFS failed to articulate a “rational connection” between the climate-based population viability model and its no-jeopardy conclusion; the model showed the loggerhead facing high extinction risk even without the proposed action and additional loss of 4 to 11% with the proposed action. The Ninth Circuit found that the NMFS “improperly minimized” the proposed action’s risks to loggerhead survival “by only comparing the effects of the fishery against the baseline conditions that have already contributed to the turtles’ decline.” The Ninth Circuit upheld, however, the NMFS’s no-jeopardy conclusion for endangered leatherback sea turtles. The court was not persuaded by the plaintiffs’ argument that the NMFS erred by limiting the “temporal scale” of its analysis to 25 years despite the NMFS’s determination that rising temperatures would have impacts on sea turtles over the next century. The Ninth Circuit said the NMFS was entitled to rely on the climate-based population assessment model even though it could only predict changes for 25 years. The Ninth Circuit also was not persuaded that the NMFS had arbitrarily dismissed climate change impacts on sea turtles as uncertain. The court said that it could not conclude “from the NMFS’s lack of precision that it failed to adequately consider the effects of climate change” and that the plaintiffs had failed to point to less speculative evidence that the agency had failed to consider. One judge dissented from the court’s rejection of the no-jeopardy determination for loggerhead sea turtles, stating that “[w]hile the record data shows that the loggerhead is in decline, NMFS reasonably concluded that the fishery expansion would not appreciably reduce the likelihood of the loggerhead’s survival and recovery.” -
Turtle Island Restoration Network v. U.S. Department of Commerce
Case Documents:
Filing Date Type File Action Taken Summary 01/10/2019 Findings and Recommendations Download Court issued findings and recommendation to grant in part and deny in part plaintiffs' motion for award of attorneys' fees and costs. 05/04/2018 Settlement Agreement Download Court entered stipulated settlement agreement and order. 08/23/2013 Order Download Order issued affirming agencies' decisions. Plaintiffs challenged federal agency decisions that allowed shallow-set longline fishing for swordfish. They alleged, among other things, violations of the Endangered Species Act (ESA). The federal district court for the District of Hawaii affirmed the agencies’ decisions. In doing so, the court rejected the claim that the National Marine Fisheries Service (NMFS) had violated the ESA by taking action that “deepened the jeopardy” to sea turtles posed by climate change. The court stated that “when climate conditions jeopardize a species, the ESA does not automatically prohibit the ‘taking’ of a single member of the species. This is not to say, of course, that dangerous climate conditions give rise to an ‘open season’ on a threatened or endangered species. Instead, the ESA is violated only when agency action results in a ‘take’ that appreciably reduces the likelihood of survival and recovery of a species in the wild.” The court also rejected claims that the ESA’s requirement to use “best available data” required NMFS to conduct more comprehensive studies of the effects of climate change on sea turtles.