Issuance of Longline Permits Triggers Consultation

Turtle Island Restoration Network and Center for Biological Diversity v. NMFS, 340 F.3d 969 (9th Cir. 2003).

Jennifer Lindsey, 3L
Stephanie Showalter, J.D., M.S.E.L.

The Ninth Circuit Court of Appeals recently ruled that the National Marine Fisheries Service (NMFS) violated the Endangered Species Act when it issued longline fishing permits under the High Sea Compliance Act to California vessels.

Background
The longline fishing industry utilizes fishing lines extending behind the vessels for several miles. Thousands of baited hooks are attached to the lines which snag fish as the vessel moves through the water. Longline vessels mainly target pelagic species, such as swordfish and tuna. Longline fishing is extremely controversial because the hooks capture non-targeted fish resulting in significant incidental catch (bycatch). Of particular concern is the industry’s interaction with endangered and protected species.

When litigation shut down the Hawaii longline swordfish industry in November 1999 because of conflicts with sea turtles, many Hawaiian vessels relocated to California. The amount of swordfish landed at San Pedro, California alone increased from 1.5 million pounds in 1999 to 2.6 million pound in 2000. The increased activity raised concerns regarding the impacts on threatened and endangered species in the Pacific Ocean.

In July 2000, the Center for Biological Diversity and Turtle Island Restoration Network (Center) sent the NMFS a notice of intent to sue based on alleged violations of the Endangered Species Act (ESA). The Center claimed that when the NMFS issued longline permits under the High Seas Compliance Act (Compliance Act) the agency violated § 7 of the ESA by failing to consult and § 9 by granting permits that result in the “take” of threatened or endangered species. The NMFS claimed the agency did not have the discretion to impose permit conditions to further the conservation of protected species and, therefore, the ESA consultation provisions were not applicable. The Center filed suit and the district court granted summary judgment in favor of the NMFS, finding the agency had no discretion to condition the permits. The Center appealed.

Consultation
Section 7(a)(2) of the ESA states:

Each federal agency shall, in consultation with and with the assistance of the Secretary [of Interior or Commerce], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat.2

Section 7 applies “to all action in which there is discretionary Federal involvement or control.”3 This discretionary control must “have the ability to inure to the benefit of a protected species.”4 The NMFS argued that the consultation provisions do not apply to the issuance of fishing permits under the Compliance Act because the agency does not retain sufficient discretionary control to impose conditions which inure to the benefit of a protected species.

Congress enacted the Compliance Act in 1995 to implement the “Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas” (Agreement). Under the Compliance Act, U.S.-flagged vessels must obtain permits from the NMFS to fish on the high seas. The Compliance Act authorizes the Secretary of Commerce “to establish such conditions and restrictions on each permit issued under this section as are necessary and appropriate to carry out the obligations of the United States under the Agreement, including but not limited to . . .” vessel marking standards and reporting requirements.5

The Ninth Circuit held that the Compliance Act provides the NMFS with the discretion to protect listed species. The phrase “including but not limited to” indicates that Congress did not intend the list of restrictions enumerated in § 5503(d) to be exhaustive. Rather, the court held this Congressional language anticipates that other obligations might arise and provides the NMFS with the discretion to determine what types of conditions and restrictions are appropriate to carry out U.S. obligations. The Agreement obligated signatory nations to take measures to ensure that their fishing vessels refrain from engaging in activities which undermine the effectiveness of international conservation and management measures. The Compliance Act defines “international conservation and management measures” as “measures to conserve or manage one or more species of living marine resources.”6 Because the U.S. is obligated to prevent its vessels from undermining international conservation measures, the court determined that the NMFS clearly has the discretion to impose conditions on permits for the benefit of threatened and endangered species. The issuance of permits under the Compliance Act, therefore, is discretionary agency action requiring consultation under § 7 of the ESA.

Conclusion
The Ninth Circuit held that the NMFS violated the ESA by failing to consult internally prior to the issuance of longline permits under the Compliance Act. The Center’s claims brought under § 9 of the ESA, which the district court did not reach, were remanded for further proceedings in light of this decision.

Endnotes
1. Turtle Island Restoration Network and Center for Biological Diversity v. NMFS, 340 F.3d 969, 971 n. 2 (9th Cir. 2003).
2. 16 U.S.C. § 1536(a)(2) (2003).
3. 50 C.F.R. § 402.03 (2003) (emphasis added).
4. Turtle Island, 340 F.3d at 974.
5. 16 U.S.C. § 5503(d) (2003) (emphasis added).
6. Id. at § 5501(5).