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Greenpeace v. National Marine Fisheries Serv.

Citation: 30 ELR 20314
No. No. C98-492Z, 80 F. Supp. 2d 1137/50 ERC 1237/(W.D. Wash., 01/25/2000)

The court holds that the National Marine Fisheries Service (NMFS) violated the Endangered Species Act (ESA) by failing to prepare a biological opinion (BO) that properly addressed how the North Pacific fishery management plans (FMPs) for the groundfish fisheries in the Bering Sea and Gulf of Alaska affect the endangered Stellar sea lion. The court first holds that the ESA requires that a comprehensive BO for the FMPs be coextensive in scope with the FMPs. ESA § 7 requires the analysis of all aspects of agency action in a biological opinion, and the FMPs constitute such agency action. FMPs contain the rules, regulations, conditions, and methods required to maintain the fisheries and prevent long-term adverse effects. Further, the FMPs have a significant ongoing effect on the ocean environment in general, as well as sea lion habitat in particular. Therefore, the FMPs constitute ongoing agency action under the ESA that requires a BO coextensive in scope with the FMPs.

The court then holds that the NMFS' BO was improperly limited to the 1999 authorization of catch limits in the fishery and that the proper subject of the BO should have been the overall groundfish fisheries in their entirety. Since the NMFS issued a BO in 1996, significant changes have been made to the FMPs, and the NMFS has concluded that the pollock fishery may jeopardize the sea lion. Likewise, a 1998 BO is outdated and inadequate.

The court next holds that the BO was not coextensive in scope. A comprehensive BO addressing the FMPs full scope should identify all of the relevant management measures and explain how these measures affect the listed species and its environment. While the BO mentions many of the relevant management measures, it does so only in the context of a general, background discussion. Further, the ESA specifically requires an analysis of the groundfish fisheries' cumulative effects on the sea lion. Although the BO states that its conclusions are based on a cumulative effects analysis, it, in fact, contains no analysis whatsoever. Similarly, the BO does not contain the ESA-required meaningful evaluation of the groundfish fisheries' effects on the sea lion's critical habitat. In sum, the BO is limited in scope, heavy on background information, and deficient in focused and meaningful discussion of how the large groundfish fisheries, and the complex management measures that regulate them, affect the endangered Stellar sea lion. Thus, the NMFS is in continuing violation of the ESA until it completes a comprehensive BO adequately addressing the FMPs' full impact. Last, the court holds that the NMFS' decision to reinitiate consultation on the groundfish fisheries does not render the case moot because the court retains the ability to provide effective relief.

Counsel for Plaintiffs
Todd D. True
Earth Justice Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Brian C. Kipnis
U.S. Attorney's Office
3600 Sea-First Plaza Bldg.
800 5th Ave., Rm. 3601, Seattle WA 98104
(206) 553-7970