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Turtle Island Restoration Network v U.S. Department of Commerce

Case No. 11-15783 (C.A. 9, Mar. 14, 2012)

The Hawaii Longline Association appeals the approval of a consent decree entered into by plaintiff environmental groups and defendant federal agencies affecting the regulation and management of the Hawaii shallow-set, swordfish longline fishery. Appellant challenges the district court’s vacatur, under the terms of the consent decree, of a regulation increasing the limit on incidental interactions between longline fishing boats and loggerhead turtles and replacing the increased limit with a lower limit that was previously in effect. Appellant argues that the district court abused its discretion in approving a consent decree that violates federal law by allowing the National Marine Fisheries Service to change duly promulgated rules without following the procedural rulemaking requirements of the Magnuson-Stevens Act and the Administrative Procedure Act. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.

I. Facts and Procedural Background



Plaintiff-Appellees, Turtle Island Restoration Network, Center for Biological Diversity, and KAHEA: The Hawaiian- Environmental Alliance (collectively, “Turtle Island”), are nonprofit environmental organizations and corporations. Turtle Island sued the Defendant-Appellees United States Department of Commerce, National Marine Fisheries Service (“NMFS”), and Gary Locke, in his official capacity as Secre- tary of the Department of Commerce (collectively, the “Federal Agencies”), challenging the implementation of Amendment 18 to the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region (the “Final Rule”). In relevant part, the Final Rule determines the annual number of allowable interactions between the Hawaii-based shallow-set longline fishery (the “Fishery”) and loggerhead and leatherback sea turtles. Turtle Island also challenged the validity of the 2008 Biological Opinion that NMFS prepared to assess the Final Rule’s impact on threatened and endangered species and the associated turtle incidental take statement. The Hawaii Longline Association (the “Longliners”) was granted permission to intervene as a defendant.

Regulation of the Fishery has been extensively litigated by these same parties over the past decade. See Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 940 (9th Cir. 2006). The Final Rule is the latest attempt to modify Fishery regulations. The purpose of the Final Rule was to optimize the Fishery’s yield without jeopardizing the continued existence of sea turtles and other protected resources. See Western Pacific Pelagic Fisheries; Hawaii- Based Shallow-set Longline Fishery; Court Order, 76 Fed. Reg. 13297, 13297 (Mar. 11, 2011) (codified at 50 C.F.R. pt. 665). The Final Rule implementing Amendment 18 changed certain substantive provisions of the 2004 Regulations governing the Fishery. The 2004 Regulations mandated (1) the use of large circle hooks, (2) the use of mackerel-type bait, (3) a limit of 2120 shallow-sets per year, (4) annual turtle incidental take limits of 17 loggerheads and 16 leatherbacks, and (5) 100% observer coverage on every swordfish-vessel fishing trip.
































 

 

Judge(s): Alfred T. Goodwin
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Administrative Law , Maritime
 
Circuit Court Judge(s)
Alfred Goodwin
Mary Murguia
Stephen Trott

 
Trial Court Judge(s)
David Ezra

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Paul Achitoff Earthjustice

 
Defendant Lawyer(s) Defendant Law Firm(s)
Jennifer Neumann U.S. Department of Justice

 
Intervenors Lawyer(s) Intervenors Law Firm(s)
Jason Morgan Stoel Rives LLP

 

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temporarily reinstated the relevant prior portion to settle liti- the longliners allege that the consent decree caused the fishing because the bait is set at depths of 30 to 90 meters, as opposed to repeal is important to “ensure[ ] that an agency will not undo tle island sued the defendant-appellees united states depart- center for biological diversity, and kahea: the hawaiian- • ordered nmfs to issue a new biological opinion nonprofit environmental organizations and corporations. tur- longliners do not fully explain this point, and their citation to the federal island area. see western pacific regional fishery management council, united states department of 1:09-cv-00598-commerce; national marine which vest the attorney general, acting through the officers mulgated rules without following the procedural rulemaking apply the correct law or . . . rest[ed] its decision on a clearly judicial acts in general. our inquiry focuses instead on the [7] in sum, the district court did not err in holding that nei- stantive rule, however, we need not address the broader issue supports upholding the validity of the consent decree. take limits from the 2004 biological opinion and approving the consent decree. orders from unregulated foreign fishing vessels as opposed to the more court has jurisdiction under 28 u.s.c. § 1292(a)(1). the con- bition, turtle island contends that the consent decree is not penter nor fishing co. involved a consent decree. second, goodwin, senior circuit judge: ment for the fishery within 135 days after mak- order of the court; (2) denying as moot hla’s motion for summary design, inc., 909 f.2d 1350, 1355 (9th cir. 1990). statement of new information supporting the decision to supplemental briefing, the district court entered an order [5] in local no. 93 international association of fire- have made any determination” with respect to the factual lations that it “deems necessary or appropriate” to implement vacates only a portion of the final rule and the supporting clusion, then any attempt by federal agencies to settle litiga- eries service jan. 30, 2012) available at http://www.fpir. sions on different facts involving the new england fishery. see conserva- the first circuit engaged in a similarly tailored analysis in holding that indeed, if the longliners’ position is carried to its logical con- hawaii longline association, the federal agencies agree with the filing a “joint motion to enter stipulated injunction as an same “undoing” without meaningful comment of all that the rather than its terminology.” armstrong v. wilson, 124 f.3d manner or to an extent not previously considered.” 50 c.f.r. [3] the longliners’ coupling of carpenter and fishing co. certain substantive provisions of the 2004 regulations gov- dures for developing fishery plans, amendments, and regula- istics of a vacatur and remand, it functions as an injunction by repeal the rule were different from those raised during the to enter a consent decree would make it substantially more given to district court factual findings during a review of con- turtle island argues that the only injunctive aspect of the a consent decree did not implicate the magnuson act’s rulemaking provi- ment councils, which propose fishery management plans to trose chem. corp., 50 f.3d at 746 (describing the deference decrees that “prescribe[ ] conduct . . . and compel[ ] compli- .org/pelagic-fisheriestoday.html. 441 (9th cir. 1977) (“we are committed to the rule that the 587 f.2d 996, 999-1001 (9th cir. 1978) (holding that orders sidered final appealable orders). out first issuing a new biological opinion; tion.” the longliners call it an injunction, but the federal agencies and arms-length negotiation between turtle island and the federal pacific region at issue here is managed by the western increased allowable loggerhead turtle incidental sion. section 402.16 establishes triggers that require reinitia- 9 david a. ezra, district judge, presiding diversity; kahea: the hawaiian- that the consent decree implements a “new rule” that is “materially dif- vacated the approval of a consent decree because it found “no affect the final rule, including removal of the 2120 set limit, terms. does not empower the district court to . . . order the agency 4 a similar order reinstating a prior rule after a vacatur as an it is (1) illogical, (2) implausible, or (3) without support in ance” as injunctions. see thompson v. enomoto, 815 f.2d cal opinion and new regulations addressing the take limits. plaintiffs-appellees. decree violates the apa’s notice and comment requirements based shallow-set longline fishery; court order, 76 fed. increased turtle take limits absent a new biological opinion (emphasis added). tion law found. of new england, inc. v. franklin, 989 f.2d 54, 61 (1st intervenor-defendant-appellant. dures, and they further require issuance of a new biological the final rule is codified as 50 c.f.r. § 665.813(b), as amended by 3047turtle island restoration v. hawaii longline requires periods for public notice and comment prior to fed- 328 (d.c. cir. 2007). in carpenter, 526 f.3d at 1241, we held a consent decree entered into by plaintiff environmental head turtles as endangered. sent decree is a vacatur and remand. see eluska v. andrus, total number of permissible interactions from forty-six per while the nmfs determined whether to change the legal sta- iv. conclusion ing the national marine fisheries service to change duly pro- potential status change (now enacted) provided a sufficient 2 incorporating the new biological opinion’s findings will be 2011) (codified at 50 c.f.r. pts. 223-224). on january 30, agencies deviated from their statutorily prescribed courses of rule”).1 a. the magnuson act to determine the course and trajectory of the litigation. see  included an incidental take statement that anticipated annual opinion eral agency rulemaking. see 5 u.s.c. § 553(b)-(c). the apa tles back to the pre-existing 2004 limits (a reduction from 46 3043turtle island restoration v. hawaii longline the law or public policy.” sierra club, inc. v. elec. controls the consent decree, the district court, in relevant part: based on a 2008 biological opinion by nmfs, which con- under 28 u.s.c. § 1292(a)(1), we look to its substantial effect defendants-appellees, turtle island restoration eral agencies”), challenging the implementation of manner or to an extent not previously considered . . . .” unchanged at 16. approving the consent decree and denying as moot the lon- number of allowable interactions between the hawaii-based take and a net adverse impact to turtle populations. gation via a consent decree. indeed, as noted above, the con- head turtle populations as a whole. second, because the impede the parties’ ability to settle litigation in this case.9 voluntary reconsideration of regulations. in relevant part, did not clearly err in finding that a return to lower incidental repeal.” id. at 446. a federal agency was required to follow the apa’s notice and tus of loggerhead turtles from threatened to endangered. the labeled it, an injunction.6 making. moreover, the consent decree was the result of an lations and resubmit them to the regional council for further [2] in support of their position, the longliners rely princi- because of “market transfer effects.”10 reconsider the turtle take limits. plans in the regional councils. see turtle island restoration year to seventeen.” the longliners argue that this finding is the longliners contend that the district court used the con- evidence on this record from which the district court could 3039turtle island restoration v. hawaii longline restoration network v. u.s. dep’t of commerce, 438 f.3d mary h. murguia, circuit judges. ing, nmfs uplisted the north pacific ocean distinct popula- increased limits would actually benefit turtle populations section 402.16 does not support the longliners’ conclu- original rulemaking and no party affected by the pricing pol- regulatory commission, 673 f.2d 425 (d.c. cir. 1982), a in montrose chemical corp. of california, this court tions.8 network v. u.s. dep’t of commerce, 438 f.3d 937, 939 (9th paul h. achitoff, earthjustice, honolulu, hawaii, for the ations resulted in turtle island and the federal agencies gation in which federal agencies are a party). settlement is to of the department of commerce, washington, d.c., for the defendants-appellees. notably, on september 16, 2011, while this appeal was pend- interactions of up to 34 loggerhead and 26 leatherback turtles. magnuson act is a comprehensive national program designed tion was to remain in effect until nmfs issued a new biologi- take limits are more protective of loggerhead turtles 524 n.13 (recognizing that a limit on the government’s ability to 17). the consent decree further provided that the reduc- groups and defendant federal agencies affecting the regulation of nine distinct population segments of logger- turtle island’s claims. turtle island also moved for partial the portions of the final rule implementing the lates the law. in fishing co., the d.c. circuit invalidated a arpaio, 623 f.3d 1043, 1048 (9th cir. 2010) (per curiam). 10 amendment 18 to the fishery management plan for the order of the court.” the district court characterized this joint subject to the magnuson act’s rulemaking procedures further federal agency’s attempt unilaterally to amend a fishery man- 3045turtle island restoration v. hawaii longline the longliners argue that the consent decree violates the apa for essentially the same reasons discussed in the magnu- counsel action. see 16 u.s.c. § 1854(b)(1)(a)-(b). the longliners 3041turtle island restoration v. hawaii longline of commerce cannot alter fishery regulations proposed by the magnuson act is silent regarding applicability of rulemaking fed. reg. 65460, 65462 (dec. 10, 2009); 69 fed. reg. 40734, regulate fisheries within their region. id. § 1852. the western act (“apa”) and (2) by basing its determination that the con- proposition that contradicts the supreme court’s policy deter- 7 vacatur and remand. as turtle island correctly notes, rein- case relied on heavily by the longliners, the court held that carpenter, 526 f.3d at 1241 (citing 28 u.s.c. §§ 516, 519, neous finding of fact that a return to the 2004 incidental take tion omitted). that the district court labeled its order an ment of commerce, national marine fisheries service [4] turtle island and the federal agencies argue that the § 1292(a)(1), and we affirm. february 16, 2012—honolulu, hawaii the apa by vacating and revising the 2008 biological opinion u.s.c. § 1292(a)(1). the longliners assert that we have juris- decree for an abuse of discretion. see united states v. mon- pally on united states v. carpenter, 526 f.3d 1237 (9th cir. the magnuson act to one of two possible courses of action: tinuing, modifying, refusing or dissolving injunctions.” 28 i. facts and procedural background trose chem. corp. of cal., 50 f.3d 741, 746 (9th cir. 1995). clearly erroneous on two grounds. first, because the evidence 1 the longliners do not argue to the contrary. to promote and manage domestic commercial fisheries. see tuna-target deep-set fishing in which bait is set at depths of 150 to 400 judgment.” the longliners also allege that the consent decree violates mination in another context. see local no. 93, 478 u.s. at fisheries service; gary locke, in magnuson act’s rulemaking provisions. they contend that turtle island to seek repeal of the final rule, namely sea tur- 2008), and fishing co. of alaska, inc. v. gutierrez, 510 f.3d basis underlying a settlement term. 50 f.3d at 746-47. here, additional requirements “necessary or appropriate” to the fish- tions and implement amendments to fishery management the longliners filed a motion for summary judgment on under the terms of the consent decree, of a regulation increas- the parties use different terms in referring to this “stipulated injunc- 1019, 1021 (9th cir. 1997) (internal quotation marks and cita- tions, is directed at the federal agencies and the regional opinionhis official capacity as secretary regional councils, see 16 u.s.c. §§ 1852-54, that is not what reasonably reduced the incidental take limits temporarily comment requirements before repealing an agency rule gov- pacific council. id. § 1852(a)(1)(h). the final rule was erning incremental pricing policies for natural gas. id. at 433, effects in evaluating the consent decree. held that the secretary of commerce violated the magnuson reg. 13297, 13297 (mar. 11, 2011) (codified at 50 c.f.r. pt. regional fishery council with the opportunity to deem the turtle island refer to it as a consent decree. for ease of reference, this dants began negotiating a settlement. these settlement negoti- island argues against jurisdiction on the grounds that the con- should revisit a duly promulgated regulation like the final to reach a particular result.”). this argument fails for the same 3040 turtle island restoration v. hawaii longline tion segment of loggerhead turtles (the population segment at be encouraged. see united states v. mcinnes, 556 f.2d 436, 3034 turtle island restoration v. hawaii longline 5 threatened species and their ecosystems,” the consent decree beyond those mandated by existing law upon operation of the these same parties over the past decade. see turtle island action that may affect listed species or critical habitat in a finding because a reduction in the actual number of incidental sent decree does not compel any particular result beyond for the ninth circuit and incidental turtle take statement without a proper factual over the longliners’ objection, and after in part, through the development of regional fishery manage- argue that by entering into the consent decree the federal supreme court addressed whether a consent decree violated if the consent decree had remained silent on the subject. see a limit of 2120 shallow-sets per year, (4) annual turtle inci- councils, not the courts. the district court adopted this rea- pelagic fisheries of the western pacific region (the “final reason to limit turtle island and the federal agencies’ ability age litigation regarding the fishery. accordingly, we see no “in determining the appealability of an interlocutory order paulson v. daniels, 413 f.3d 999, 1008 (9th cir. 2005) (“the statement of the 2004 incidental take limit operates as a mat- abused its discretion in “rubber stamping” the consent decree 665). the final rule implementing amendment 18 changed see natural res. def. council, inc. v. evans, 316 f.3d 904, 906-07 1323, 1326 (9th cir. 1987). ing new agency action and does not promulgate a new sub- motion as “in essence . . . a proposed consent decree that 76 fed. reg. at 13297-02 (march 11, 2011). the pelagic fisheries of the b. the administrative procedure act may submit to the secretary of commerce any proposed regu- 3035turtle island restoration v. hawaii longline • prohibited nmfs from increasing turtle take lim- market transfer effects occur when swordfish buyers seek to fill their ment “too speculative to be persuasive.” therefore, the dis- cretion in approving the consent decree (1) by allowing turtle was to optimize the fishery’s yield without jeopardizing the changes: removal of the 2120 set limit and increase of the log- motions were pending, turtle island and the federal defen- was the result of the rulemaking apparatus authorized by the trative procedure act. we have jurisdiction under 28 u.s.c. for the finding that turtles would be more protected. cf. mon- ter of law under the vacatur, and it would have occurred even dae-ksc (1) approve the proposed regulations and, after a public com- a district court may approve a consent decree when the both the 2009 final rule and the 2004 regulations, see 74 ing trip. removes a downward adjustment provision for incidental turtle take. the accompanying incidental take statement support- and management of the hawaii shallow-set, swordfish lon- rule. frame. thus, although the consent decree exhibits character- federal defendants’ joint motion to enter stipulated injunction as an factual basis for revision of the 2008 biological opinion. 3036 turtle island restoration v. hawaii longline rule only where “new information reveals effects of the cluded that the increased incidental take limits for turtles regulation of the fishery has been extensively litigated by opinion without imposing any substantive requirements on its provisions to consent decrees. moreover, the magnuson act’s biological opinion found the market transfer effects argu- 3031 § 402.16 states, “reinitiation of formal consultation is population segments of loggerhead sea turtles as endan- in their reply brief, the longliners raise for the first time the argument [8] we find no clear error regarding the “more protective” iii. the district court did not abuse its discretion in validity of the 2008 biological opinion that nmfs prepared sent decree is fair, reasonable, and equitable on a clearly erro- regarding applicability of statutory rulemaking procedures to ing boats and loggerhead turtles and replacing the increased reviewed de novo. husain v. olympic airways, 316 f.3d 829, tion involving a regulation would entail a return to the same 446. the court reasoned that notice and comment prior to western pacific region include waters surrounding american samoa, magnuson act’s rulemaking requirements when they issued the final rule kept the hook, bait, and observer provisions to modify fishery regulations. the purpose of the final rule the statute’s legislative history to determine whether it limited did not clearly refer to consent decrees, the court examined [6] the fact that the federal agencies complied with the limits will be more protective of loggerhead turtles. id. § 1801(b). congress purported to accomplish these goals, branch lines that terminate with baited hooks are clipped to and extended sent decrees in the cercla context). additionally, the 2008 and loggerhead 2012, nmfs issued the biological opinion contemplated in reasons discussed above. specifically, the consent decree is limited under red lion hotels franchising, inc. v. mak, llc, 663 f.3d as fair, reasonable, and adequate in the absence of an express underlying statutory objectives to “conserve endangered and gered species and the associated turtle incidental take state- an injunction because it does not compel any specific action 3048 turtle island restoration v. hawaii longline “[i]nterlocutory orders of the district courts . . . granting, con- pacific pelagic fisheries overview, available at http://www.wpcouncil the fishery regulations, so the rulemaking provisions of the jason t. morgan, stoel rives llp, seattle, washington, for all parties an opportunity to comment on the wisdom of effect of invalidating an agency rule is to reinstate the rule council, the concerns motivating the agency’s decision to %20on%20website.pdf. the new biological opinion would result in dismissal of all of [turtle island’s] claims shinn, 98 f.3d 463, 468 (9th cir. 1996) (finding a consent no. 11-15783 legislative history reveals no mention of consent decrees nor previously in force.”). although the magnuson act states that nmfs or the secretary gline fishery. appellant challenges the district court’s vacatur, pacific ocean. longline fishing employs a mainline exceeding one nauti- united states court of appeals guishable from this case, however. in consumer energy (“nmfs”), and gary locke, in his official capacity as secre- 3046 turtle island restoration v. hawaii longline • vacated and remanded to the federal agencies consent decree in that case. id. at 521-22. similarly here, the take limits is more protective of loggerhead turtles. officials involved in implementing the magnuson act). in consumer energy council of america v. federal energy 3044 turtle island restoration v. hawaii longline the hawaii longline association appeals the approval of happened here. unlike the situation in fishing co., the gov- longliners and also argue that we have jurisdiction. turtle incidental take; ing a final determination on its proposed listing gered or threatened, 76 fed. reg. 58,868, 58,943 (sept. 22, was granted permission to intervene as a defendant. id. at 125. 20. the court concluded that the statute did not preclude a its to a number greater than the 2004 limits with- members, as well as associated businesses that participate in the fishery. below the mainline. longline fishing for swordfish is called shallow-set 3038 turtle island restoration v. hawaii longline v. appeal from the united states district court action that may affect listed species or critical habitat in a resources. see western pacific pelagic fisheries; hawaii- take; 3042 turtle island restoration v. hawaii longline sideration process. the consent decree leaves nmfs free on jennifer scheller neumann, u.s. department of justice, of the 2004 regulations intact and implemented the following magnuson act and the apa do not apply. the district court ernment did not seek to make substantive changes to regula- ments raised for the first time in a reply brief are waived.” see graves v. rule.” id. § 551(5). the longliners argue that the consent the intervenor-defendant-appellant. the service . . . (b) if new information reveals effects of the ment period, publish them as final rules or (2) reject the regu- use of large circle hooks, (2) the use of mackerel-type bait, (3) environmental alliance, united states, 575 f.3d 999, 1019-20 (9th cir. 2009) (treating implementing the amount of annual incidental filed march 14, 2012 40734 (july 6, 2004), and that any subsequent regulations fighters v. city of cleveland, 478 u.s. 501, 504 (1986), the the district court found that the consent decree “is more cir. 2006); 16 u.s.c. § 1853(c)(1) (providing that the council erning the fishery. the 2004 regulations mandated (1) the the consent decree in this case. register, 76 fed. reg. at 13298, is devoid of analysis. in any event, “argu- the hawaii longline association is an organization that represents the continued existence of sea turtles and other protected because the apa provides no mechanism for the federal a management plan or amendment). the longliners argue that [1] in totality, however, the specific provisions of the con- ments to the procedures specified in the apa. the apa a certain statutory provision of title vii. because title vii summary judgment on some of its claims. while those decree to be an injunction); accord cal. ex. rel lockyear v. argued and submitted guam, hawaii, the northern mariana islands, and the u.s. pacific remote the portions of the 2008 biological opinion and (9th cir. 2003) (describing the relationship of the various agencies and ery management plan. id. at 333. ment requirements. 510 f.3d at 332-33. the fishing co. court restoring the 2004 regulations during the remand and recon- is inapposite given the facts of this case. first, neither car- plaintiff-appellees, turtle island restoration network, lant argues that the district court abused its discretion in decree merely temporarily restores the status quo ante pend- rulemaking process by which the regulation was created—a final rule accomplished. consumer energy council is distin- take, even if statistically insignificant, is still a logical basis ther the magnuson act nor the apa barred implementation of 202012%20biop%201-30-2012-final%20for%20posting 1080, 1087 (9th cir. 2011) (internal quotation marks omitted). decree is “fair, reasonable and equitable and does not violate narrower question of whether the magnuson act should d.c. no. opinion and incidental take statement within a specified time accompanying incidental take statement; § 402.16(b). the longliners allege that the district court thus to the incidental take limits except through specified proce- • ordered nmfs to promulgate a new regulation soning in approving the consent decree. because the consent magnuson-stevens fishery conservation and management was not clearly erroneous. the government’s ability to enter a consent decree. id. at 519- requirements of the magnuson-stevens act and the adminis- dental take limits of 17 loggerheads and 16 leatherbacks, and sent decree does not purport to make substantive changes to except to reduce the incidental take limit for loggerhead tur- injunction). plaintiffs-appellees, 2008 biological opinion and incidental take statements, thus united states, 384 f.3d 721, 728 (9th cir. 2004) (“[t]he apa island and the federal agencies to enter a settlement that vio- son act analysis above, but the longliners tailor these argu- 937, 940 (9th cir. 2006). the final rule is the latest attempt the secretary, or its delegate (here, nmfs)7 tion of the consultation process, but it does not prohibit protective of loggerhead sea turtles because it reduces the affirmed. any express restriction of the district court’s authority to man- without engaging in public notice and comment. the longliners argue that the district court abused its dis- lates the magnuson act and the administrative procedures opinion by judge goodwin diction because the consent decree is, as the district court and the resultant new rulemaking process. despite this prohi- network; center for biological for publication that a court cannot approve a settlement agreement that vio- the final rule left the limit on leatherback turtle interactions defines rulemaking as “formulating, amending, or repealing a regulated longliners. this “market transfer” results in more incidental ment. the hawaii longline association (the “longliners”)3 meters. we review a district court’s decision to approve a consent act’s rulemaking procedures by failing to provide the action and engaged in unlawful rulemaking. act (the “magnuson act”). see 16 u.s.c. §§ 1851-1856. the however, the district court determined that, in light of the agencies, plaintiff and defendant in the underlying action. opinion uses “consent decree.” 3033turtle island restoration v. hawaii longline trict court did not clearly err in disregarding market transfer remand to fashion a new rule based on the new biological abuse of discretion exists when the district court “fail[ed] to cir. 1993). nmfs merely vacated a portion of a regulation and sent decree militate against turtle island’s argument. para- species act—section 7 consultation (national marine fish- • reinstated the lower incidental loggerhead turtle 3 before the district court revealed that an increased take would to assess the final rule’s impact on threatened and endan- environmental alliance (collectively, “turtle island”), are before: alfred t. goodwin, stephen s. trott, and injunction is not dispositive. see id. this court treats consent difficult to settle title vii litigation). consent decree is a judicial act and thus is not subject to the ing the limit on incidental interactions between longline fish- the magnuson act’s statutory framework, setting out proce- in relevant part, the final rule determines the annual those mandated by existing law after the vacatur of the final the consent decree. see biological opinion, endangered consent decree is the prohibition against implementing inferences that may be drawn from the facts in the record.” gliners’ motion for summary judgment. under the terms of c. the factual finding that a return to the 2004 incidental be “statistically and biologically insignificant” to the logger- icy rule suggested repeal. id. here, the concerns compelling 3037turtle island restoration v. hawaii longline 6 noaa.gov/library/pubdocs/biological_opinions/ssll% graphs five and six prescribe conduct by prohibiting increases agement plan by adding additional monitoring and enforce- complied with the endangered species act. for the district of hawaii ii. jurisdiction under 28 u.s.c. § 1292(a)(1) the practical effect of the district court’s order is not to • vacated and remanded to the federal agencies 835 (9th cir. 2002). a finding of fact is clearly erroneous “if cal mile in length and extending laterally as long as forty nautical miles. limit with a lower limit that was previously in effect. appel- agencies to repeal the final rule through the consent decree ferent” from the prior regulations in effect because the consent decree with prejudice.”5 and accompanying incidental turtle take state- issue here) as endangered. see determination of nine distinct tary of the department of commerce (collectively, the “fed- the magnuson act vests the authority to develop regula- the courts of appeals have jurisdiction over ing the increase in allowable loggerhead turtle 8 shallow-set longline fishery (the “fishery”)2 approving a consent decree that violates federal law by allow- interests of the united states—flagged fishing vessel owners and crew tle safety, are the same as they were during the initial rule- remanding an action to a federal agency are generally not con- because the consent decree is injunctive in nature, this (5) 100% observer coverage on every swordfish-vessel fish- both prohibiting and ordering actions. therefore, this court rules. see mt. st. helens mining & recovery ltd. p’ship v. sent decree impermissibly to modify substantive regulatory and leatherback sea turtles. turtle island also challenged the the district court’s order is titled: “order: (1) granting plaintiffs’ and the final rule required and shall be requested by the federal agency or by law favors and encourages compromise settlements.”). predicate. the longliners argue that the federal agencies hawaii’s longline fishing industry fishes mainly for swordfish in the gerhead interaction hard cap from 17 to 46.4 of the justice department, with plenary authority to settle liti- erroneous finding of material fact.” id. conclusions of law are all that it accomplished through its rulemaking without giving has jurisdiction under 28 u.s.c. § 1292(a)(1). see gates v. turtle take as set forth in the 2004 regulations;


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