Ninth Circuit Dismisses Challenge to Reopening of Swordfish Fishery

Turtle Island Restoration Network v. U.S. Department of Commerce, 438 F.3d 937 (9th Cir. 2006).

Jeffery Schiffman, 3L, Cleveland-Marshall College of Law (Cleveland State University)

In February, the Ninth Circuit Court of Appeals held that Turtle Island Restoration Network’s (Turtle Island) challenge to National Marine Fisheries Service (NMFS) regulations reopening the Hawaii longline swordfish fishery was barred by the statute of limitations provisions of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (Magnuson Act).

In 2002, NMFS closed the Hawaii-based swordfish longline fishery because of adverse impacts on sea turtles and seabirds. Longline fishing involves pulling mainlines of up to sixty miles in length behind a vessel near the surface of the water. These mainlines can hold over one thousand hooks. Longlining for swordfish is especially controversial because the gear used, the shallow depth of lines, and the time of day combine to result in high levels of bycatch, or incidental catch.

In April 2004, however, NMFS promulgated regulations authorizing the reopening of the longline fishery. Five months later, in August 2004, Turtle Island and several other environmental organizations filed suit against NMFS asserting violations of the Migratory Bird Treaty Act, the National Environmental Policy Act, the Endangered Species Act, and the Administrative Procedure Act (APA). Turtle Island claimed that NMFS violated the environmental statutes by reopening the fishery without first preparing an Environmental Impact Statement or obtaining the proper permits to allow the taking of migratory birds. Turtle Island’s complaint did not mention the Magnuson Act.

The District Court dismissed Turtle Island’s complaint for lack of jurisdiction. The court determined that the complaint was barred because Turtle Island had not filed it within thirty days of the promulgation of the regulations. The District Court found that although Turtle Island framed its complaint around violations of environmental statutes and the APA, it was in fact attacking the fishing regulation.

A statute of limitation is a deadline for filing a lawsuit. Statutes of limitation vary depending on the type of action, but all lawsuits must be filed within a certain period of time after the event giving rise to the controversy takes place. The Magnuson Act provides for judicial review of regulations promulgated under the Act, if the petition is filed within thirty days. Turtle Island’s complaint, filed five months after NMFS issued the regulations, obviously missed this deadline. Turtle Island, however, claimed that it was not proceeding under the Magnuson Act, but rather under the APA and other environmental statutes. The APA does not contain a specific statute of limitations, but courts have held that a six-year statute of limitation is applicable.1 Turtle Island met this deadline.

The Ninth Circuit found that Turtle Island’s complaint was, in essence, a challenge to the reopening of the longline fishery for swordfish. Turtle Island attempts to avoid the Magnuson Act’s statute of limitations by not referring to it. The court held that the Magnuson Act clearly states that a thirty-day time limit applies to any challenge of a regulation promulgated under the Magnuson Act. Turtle Island cannot be allowed to avoid a statute of limitation through the creative manipulation of its complaint. The regulation in question was promulgated under the Magnuson Act and its statute of limitation applies. Turtle Island’s claims against the NMFS were therefore time-barred.

Endnote
1. 28 U.S.C. § 2401(a) states that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”