Jump to Navigation
Jump to Content

Center for Marine Conservation v. Brown

ELR Citation: 26 ELR 21073
Nos. G-95-265, G-94-660, 917 F. Supp. 1128/(S.D. Tex., 02/21/1996)

The court holds that federal agencies and employees did not violate the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), or the Administrative Procedure Act (APA) in connection with their actions to protect threatened and endangered sea turtles from commercial shrimping. The court first holds that environmental group plaintiff's ESA claims, which are based on actions the federal defendants took before the National Marine Fisheries Service (NMFS) issued a 1994 biological opinion addressing sea turtles, are not moot. Although the federal defendants have satisfied at least a portion of their ESA obligations with regard to 1994 turtle strandings, this case presents a classic example of claims that are capable of repetition yet evade review. Moreover, the complaint can fairly be read to state claims of continuing violations of the ESA, and therefore presents the court with a live dispute. The court next notes that its review of the federal defendants' actions under the ESA is governed by the APA's narrow and highly deferential "arbitrary and capricious" standard.

The court holds that the federal defendants did not violate 50 C.F.R. §402.16(a)'s requirement that they reinitiate consultation with the NMFS when levels of sea turtle strandings exceed the level in the NMFS' incidental take statement. Although the record supports the group's assertion that strandings attributable to the shrimp fishery have exceeded the incidental take level seven times since the last biological opinion was issued, the record also establishes that the federal defendants already reinitiated consultation in September 1995. The court next holds that the federal defendants have complied with ESA §7(a)(2)'s requirement that they ensure that their actions are not likely to jeopardize the continued existence of the sea turtles, because they have complied with the reasonable and prudent alternatives set forth in the 1994 biological opinion. That shrimping may adversely affect sea turtles and that the federal defendants could do more to protect the turtles does not support a jeopardy finding. The federal defendants have not acted arbitrarily or capriciously or abused their discretion in connection with the conclusions reached in the biological opinion or in its implementation, because they have properly considered all important aspects of the relationship between the shrimp fishery and sea turtles, and have made rational, reasoned decisions based on facts established in the record. Moreover, far from reducing the likelihood of survival and recovery of the sea turtles, the federal defendants have increased the likelihood of survival and recovery. The court next holds that the federal defendants have not violated ESA §9's prohibition against taking threatened and endangered species, because they have complied with the terms and conditions of the NMFS' incidental take statement. That the strandings have exceeded the levels established in the incidental take statement triggers the consultation requirement, but does not amount to a prohibited taking. The court also holds that the federal defendants have not violated their §7(a)(1) duty to conserve threatened and endangered species. That the group may perceive the biological opinions and other actions to be deficient does not establish that the federal defendants acted arbitrarily or abused their discretion. The federal defendants' determination that the measures set forth in the biological opinions, incidental take statements, and the emergency response plan (ERP) were sufficient to satisfy their statutory duty to conserve is rational and well-supported by the evidence in the record. The court next holds that the federal defendants have not violated NEPA by failing to issue a new or supplemental environmental impact statement (EIS) in connection with the Gulf of Mexico shrimp fishery management plan (FMP) or the amendments to it. The federal defendants have agreed to go forward with a supplemental EIS in connection with a proposed amendment to the FMP, and any challenge to that EIS is not ripe. And to the extent the group is attempting to challenge the original EIS and environmental assessments for the FMP and its amendments, it cannot use a response to a summary judgment motion to present a claim not included in the complaint.

The court next turns to the claims of shrimping industry intervenors. The court holds that the NMFS' biological opinion and the ERP are not subject to the APA's notice-and-comment requirements, because they do not meet the APA's definition of a rule. They impose no obligations on industry or members of the public, and are not binding on the NMFS. The court next holds that the intervenors' challenge to emergency gear restrictions that the NMFS imposed under the ERP is not moot even though the restrictions were only in effect for one month, because turtle strandings will likely reach emergency levels again, necessitating further action under the ERP. The court finally holds that the emergency gear restrictions were properly issued pursuant to the "good cause" exception to the APA's notice-and-comment requirements. Delaying implementation of the restrictions would have been contrary to the public interest in protecting threatened and endangered species, and the federal defendants did not create the emergency to which they responded.

Counsel for Plaintiff
William E. Junell
Andrews & Kurth
600 Travis Rd., Ste. 4200, Houston TX 77002
(713) 220-4200

Counsel for Defendant
Christiana P. Perry
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000