On December 27, 2017, the U.S. Court of Appeals for the Ninth Circuit partially reversed and remanded a decision by the United States District Court for the District of Hawaii, delaying if not derailing an expansion in shallow-set longline swordfish fisheries. Environmental groups brought claims against the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“USFWS”) alleging violations of the Magnuson-Stevens Fishery Conservation and Management Act, Endangered Species Act (“ESA”), Migratory Bird Treaty Act (“MBTA”), and the National Environmental Policy Act (“NEPA”). Specifically the Ninth Circuit examined the lower court’s holdings regarding a NMFS biological opinion and an MBTA special purpose permit related to an increase in the total number of shallow-set longline swordfish fisheries. A NMFS biological opinion was required because the increased fishing efforts via longline method may result in incidental take of the Northern Pacific loggerhead sea turtle (Caretta caretta) and leatherback sea turtle (Dermochelys coriacea), both protected under the ESA. The shallow-set longline fishing method also has the potential to take various birds protected under the MBTA. Plaintiffs initiated the lawsuit when NMFS finalized a rule in 2009 that increased the number of shallow-set fisheries allowed. The original lawsuit settled and NMFS withdrew its original biological opinion and the portions of the 2009 rule increasing the fishery limits. After NMFS issued a new biological opinion in 2012, again concluding that the increase in shallow-set fisheries would not jeopardize the continued existence of either turtle species, a second lawsuit was filed.
Although the district court affirmed the USFWS’ issuance of the MBTA special purpose permit and the NMFS biological opinion., the U.S. Court of Appeals for the Ninth Circuit reversed the district court’s MBTA holding and NMFS’ no jeopardy conclusion for the loggerhead sea turtle. With respect to the MBTA claim, the Ninth Circuit found that the USFWS use of the MBTA special purpose permit provisions to authorize incidental take was contrary to the plain language of the regulation and the intent of the MBTA. The court did not squarely examine whether the MBTA applies to incidental take, however, the Department of the Interior Solicitor’s Office recently issued its revised interpretation that the MBTA take prohibition does not extend to incidental take. As for the ESA claim, the Ninth Circuit found that NMFS’ no jeopardy conclusion in the biological opinion for the loggerhead sea turtle had “improperly minimized the risk . . . to the loggerheads’ survival” by evaluating the effects of the proposed increase in longline fisheries against the already deteriorated baseline condition, rather than incorporating the baseline conditions into the jeopardy analysis. The Ninth Circuit also noted that NMFS failed to incorporate climate change data into its jeopardy analysis, thereby further minimizing the cumulative risk to loggerhead sea turtles. The Ninth Circuit, however, rejected plaintiffs’ claims that NMFS failed to adequately consider climate change more generally. While NMFS could not articulate precise climate change effects in its biological opinion, NMFS demonstrated that it did sufficiently take into account a variety of climate change considerations. Judge Callahan dissented in part, stating that USFWS’s application of the MBTA is entitled to deference, and that the no jeopardy conclusion for loggerhead sea turtles was not flawed as the majority found.