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Center for Biological Diversity v. Ross

ELR Citation: 50 ELR 20013
Nos. 4:19-cv-03135-KAW, (N.D. Cal., 12/20/2019) (Westmore, J.)

A district court vacated exempted fishing permits issued by NMFS that allowed two vessels to engage in commercial longline fishing in federal waters off the coast of California for two years. Environmental groups contended that the permits threatened the survival and recovery of Pacific leatherback sea turtles, and argued that NMFS failed to use the best available science, as required by the ESA, by ignoring its own 2017 biological opinion that showed the number of nesting Pacific leatherbacks and leatherbacks off California had declined beyond the numbers given in its 2018 biological opinion. NMFS conceded that it did not address the 2017 opinion, but argued that opinion was not superior to its 2018 opinion and that it relied on the same scientific reports and data to estimate the nesting female Pacific leatherback population. The court found that NMFS' failure to consider its own prior opinion meant that its 2018 opinion failed to use the best available science, and thus that the 2018 opinion was arbitrary and capricious. The groups also argued NMFS violated NEPA by failing to consider reasonable alternatives to mitigate the longline permits' environmental impacts, failing to take a hard look at the cumulative impacts, and failing to prepare an EIS. The court found NMFS' failure to explain how it reconciled its prior opinion that "every turtle counts" to survival of the species with its current opinion that one turtle is expendable required an EIS, because it raised a substantial question as to whether the permits would cause a significant impact to the environment, and thus was arbitrary and capricious. It therefore vacated the permits and the 2018 biological opinion.