9th Circuit Hears Sides On Sea Turtle Rule

By Purna Nemani, Court House News

HONOLULU (CN) - The 9th Circuit heard arguments about whether to allow fishermen to intervene in the formation of a new federal regulation aimed at protecting endangered turtles.

The Hawaii Longline Association joined as intervenor in a lawsuit by environmentalists and the National Marine Fisheries Service in 2010. The HLA sought retention of Pelagics Fishery Management Plan Amendment 18, which removed a limit on the number of fishing gear deployments and declared incidental takes of sea turtles "statistically insignificant."

They claim Amendment 18 was established through proper procedure, but the NMFS was negotiating new take limits with advocacy groups, as part of "a 10-year campaign to litigate Hawaii-based commercial longline fisheries out of existence."

Those advocacy groups are plaintiffs Turtle Island Restoration Network, Center for Biological Diversity and Kahea: The Hawaiian Environmental Alliance, who sought to make the NMFS downwardly adjust its "turtle hard cap" from what is now in the Amendment to "17," a "backstop number" that reflects the possible number of turtle fishermen could encounter, not necessarily those that would be affected by fishing operations.

Amendment 18 authorized the "incidental take," or killing, of 46 loggerhead and 16 leatherback sea turtles a year.

Hawaii Longline Association (HLA) claims its regulated activities hamper their ability to compete with unregulated foreign fisheries in international waters.

Since that time, the case progressed, and in 2011, Hawaii District Judge David Alan Ezra issued a special "Consent Decree" that temporarily reverted to previous catch rules, to give the NMFS ample time- while not tolerating delays- to obtain data on loggerhead sea turtle populations and public input before changing its basic Biological Opinion and issuing a new Final Rule. Any changes must comply with the Administrative Procedures Act, the Endangered Species Act, the Magnuson-Steven Fishery Conservation and Management Act, and the National Environmental Policy Act. Numerous delays, including HLA entering the recent lawsuit, have plagued the litigation, described by HLA's own attorney Jason T. Morgan as "the 10th litigation between these parties."

At an appellate hearing Thursday, attorneys tried to clarify for the judges how the Consent Decree has affected the progress of the case and figure out how to avoid future litigation.

Jennifer Neumann on behalf of the NMFS explained how the consent decree is different from a normal injunction.

"A consent decree can be viewed as either a settlement reached between parties or as judicial oversight." She explained how in this case Judge Ezra's order was the latter and that the NMFS was working on having a new regulation "hopefully in about six months." She added that if the Ninth Circuit vacated the decree, "NMFS would be operating under the previous Biological Opinion," which would make changes to it subject to a 135-day deadline.

The attorney for Kahea agreed stating, "Judge Ezra styled the consent decree as an injunction The intent was to restore a temporary reversal to a previous regulation for a status quo [incidental take] ante."

Judge Stephen Trott said emphatically, "It was more than that; it was a hybrid! Ezra 'cleared the board,' reverted to the status quo and forced you to come up with a new opinion in the 135 days!"

Kahea's attorney added, "Ezra's rule actually helped the HLA, so this is [really] a non-issue for the HLA."

Judge Trott and Judge Mary Muguia asked all attorneys if "end game" is the new regulation, and even HLA's attorney Jason Morgan answered affirmatively, saying that the fishermen were willing to participate in the creation of the new rule.

Trott said that as he saw it, "The consent decree didn't force NMFS to impose an erroneous rule."

Judge Murgia thanked the attorneys for their insights and said lightheartedly, "There's a limit on when the Attorney General can settle a case. We and the district court are here to [help] settle it. Otherwise, there'd just be another lawsuit."