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The OCEAN CONSERVANCY, INC. v. NATIONAL MARINE FISHERIES SERVICE

 

90 Fed.Appx. 499 (2003)

 

Plaintiffs:

Plaintiffs' Attorneys:

1. The Ocean Conservancy Inc.

 

2. Turtle Island Restoration Network

 

3. Center for Biological Diversity

 

4. Hawaii Longline Association          

    (Intervenor Apellee)

 

 

1. Paul H. Achitoff Earthjustice

     Legal Defense Fund,Honolulu

 

2. David Henkin, Earthjustice

     Legal Defense Fund, Honolulu

 

3. Steven Y. Otaguro, Lyons,  

     Hagerman & Brandt,                               

     Honolulu, HI, for Intervenor- 

     Appellee.

 

4.Laurie K. Beale, Stoel Rives LLP,

   Seattle, WA, for Intervenor-.

   Appelee

 

 Defendants:

Defendants Attorneys:

1. National Marine Fisheries Service

 

2. United States Department of

    Commerce

 

3. Donald L. Evans, Secretary of the 

    Department of Commerce

 

 

 

1. Katherine W. Hazard, Appellate  

    Section, U.S. Department of

    Justice, Environment & Natural

    Resources Division

 

2. Lori Caramanian, Thomas L.

    Sansonetti, U.S. Department of      

    Justice, Environment & Natural

    Resources Division, Washington,

    DC

 

 

 

Court:

United States Court of Appeals, Ninth Circuit.

 

Opinion by:

Memorandum

Other Jurists:

Court Below:
  • Browning
  • Reinhardt
  • Thomas

The United States District Court for the District of Hawaii

 

Key laws involved:
  • Endangered Species Act (“ESA”)
  • National Environmental Protection Act (“NEPA”)

Topics covered:

Summary:
  1. Plaintiffs-Appellants appeal the U.S. District Court of Hawaii’s denial of the motion for a preliminary injunction which would temporarily stop the authorization of Permit 1303 until the court decides the case. Plaintiffs-Appellants are environmental groups concerned with the issuance of Permit 1303, allowing Defendant National Marine Fisheries Service (“NMFS”) to take endangered sea turtles in order to conduct research on possible solutions to turtle “bycatch” during commercial longline fishing.
  2. The Ocean conservancy challenged the NMFS’ biological opinion which supports the authorization in finding that “the research was not likely to jeopardize the turtle species under the Endangered Species Act (“ESA”). Plaintiffs seek to enjoin (prohibit by judicial order) the research until an Environmental Impact Statement (“EIS”) can be completed, claiming that both the authorization and the biological opinion violate the ESA.
  3. The appeal disputes the orders from the lower court, which required the NMFS to conduct an Environmental Impact Statement, but failed to enjoin the research under Permit 1303.
  4. Since the lower court decision, the NMFS has withdrawn Permit 1303 and has allowed the research schedule to expire. NMFS has also begun its Environmental Impact Statement, but has yet to complete it.
  5. Intervenors, Hawaii Longline Association (“HLA”) moved for a stay (temporary suspension) of the proceedings based on the decision of the lower court. The district court granted this motion pending the decision of this appeal, stating that there was no way that the NMFS could continue research since the withdrawal of their permit.
  6. NMFS explains the district court’s intentions as “preventing the performance of any research until after 1) an EIS is prepared; 2) a new biological opinion is prepared which takes into account the EIS; and 3) a new permit is issued based on the new biological opinion”.
  7. NMFS maintains that the process is underway for a new EIS, and that it will not continue research in longline fishing until the conditions stated above are met.
  8. The court agrees with the NMFS’ interpretation of the lower courts decision and concludes that the appeal of the district court’s preliminary injunction denial is moot, because the NMFS is in no way engaging in the activity the plaintiffs seek to enjoin.
  9. The court explains that if and when the NMFS completes its new EIS, biological opinion and authorizes a new permit, then and only then would an assessment of possible violation of the ESA be appropriate.
  10. The plaintiffs allege that they would have to re-file in court if subsequent action from the NMFS is unsatisfactory. The court explains that they will allow the plaintiffs to amend their complaint in the district court to include the biological opinion and the permit.
  11. The appeal is dismissed as moot, and is remanded to the district court for determination on the merits, “if and when the NMFS completes the agency actions described herein”. The proceedings in the lower court will be stayed until the NMFS completes its EIS, biological opinion, and authorization of permit.