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Intertribal Sinkyone Wilderness Council v. National Marine Fisheries Service

ELR Citation: 43 ELR 20258
Nos. 1:12-cv-00420, (N.D. Cal., 11/26/2013) (Vadas, J.)

A district court held that the National Marine Fisheries Service (NMFS) has until August 1, 2014, to revise its plan for protecting whales, dolphins, porpoises, seals, and sea lions from U.S. Navy warfare training exercises along the coasts of California, Oregon, and Washington. The court previously ruled that NMFS' biological opinion and incidental take statement violated the ESA, thereby imposing on the NMFS a duty to correct its abuses of discretion. At issue in this case, therefore, was the scope of remand. NMFS argued that there is no basis for imposing a deadline on it to complete the remand. But Ninth Circuit precedent expressly permits imposition of deadlines on the remand process, and the court held that substantial justification exists in this case to impose such a deadline. The ESA violations affect fundamental aspects of NMFS' jeopardy analysis and issuance of the incidental take statement. The court therefore ruled that the violations must be corrected no later than August 1, 2014, so as to minimize the potential impact of defects in that analysis.