Greenpeace Foundation v. Evans

No. 00-00068 SPK-KSC (D. Haw. June 14, 2001)

ELR Digest

The court holds that the National Marine Fisheries Service (NMFS) adequately assessed whether implementation of a bottomfish fishery management plan (FMP) for the Northwest Hawaiian Islands would jeopardize the continued existence of the endangered monk seal. The district court originally held that the group's Endangered Species Act (ESA) § 7 bottomfish fishery claim was moot because the claim only sought reinitiation of formal consultation on the bottomfish FMP, and not a declaratory judgment that past FMP consultations were inadequate. Therefore, the NMFS' voluntary reinitiation of formal consultation mooted the group's ESA § 7 claim.

The court first reverses the holding that the environmental group's Endangered Species Act (ESA) § 7 claim was moot. Fed. R. Civ. P. 15(b) allows amendment of the group's pleadings because the pleadings put the government on notice that the group might pursue declaratory relief as to the adequacy of the NMFS' consultation on the bottomfish FMP, and the government would not be prejudiced. The group's ESA § 7 claim should then be construed as a claim for declaratory judgment that past FMP consultations violated ESA § 7(a)(2) and, thus, FMP implementation should be enjoined. The court then holds that the NMFS adequately assessed whether implementation of the bottomfish FMP would jeopardize the continued existence of the Hawaiian monk seal. The NMFS prepared two biological opinions (BOs) finding that the FMP is not likely to jeopardize the continued existence of the monk seal. Moreover, the opinions are not arbitrary and capricious. Evidence of the impact of prey competition on the fishery did not arise until after the completion of the opinions. The NMFS addressed evidence of intentional harm to the seals and reasonably concluded that harm was unlikely. And, the record at the time of the opinions did not include evidence that bottomfish fishers impacted seals by discarding by-catch containing toxins that intoxicated the seals. The court next holds that the group's motion to permanently enjoin FMP implementation until the NMFS completes an environmental impact statement and new BO is denied. The record indicates that the FMP implementation would not present a reasonable likelihood of injury or result in irreparable harm to the monk seals.

The full text of this decision is available from ELR (16 pp., ELR Order No. L-375).

Counsel for Plaintiffs
Paul Achitoff
Earthjustice Legal Defense Fund
223 S. King St., 4th Fl., Honolulu HI 96813
(808) 599-2436

Counsel for Defendants
Mark A. Brown
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[31 ELR 20801]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]