Endangered Species Law & Policy

On August 31, 2015, the U.S. District Court for the District of Columbia largely upheld the National Marine Fisheries Service’s (Service) Biological Opinion (BiOp) addressing the impacts of seven fisheries on the Northwest Atlantic Distinct Population Segment (DPS) of loggerhead sea turtles (Caretta caretta).  The plaintiff, an ocean conservation organization, challenged the Service’s conclusion in the BiOp that the activities of the seven fisheries are not likely to jeopardize the continued existence of the Northern Atlantic DPS.  The BiOp was accompanied by an Incidental Take Statement (ITS) authorizing take of up to 483 turtles per year.  The plaintiff challenged several aspects of the BiOp and ITS, asserting:  (1) the Service failed to consider cumulative and aggregate effects (2) the Service failed to consider the effects on loggerhead sea turtle recovery; (3) the BiOp’s ten-year term was inappropriately short (4) the BiOp failed to adequately address climate change impacts; and (5) the monitoring regime proposed in the ITS was inadequate.  The court, in reaching its conclusions, relied heavily on its 2014 opinion considering, and largely denying, a similar challenge to the Service’s Atlantic Sea Scallop Fishery BiOp.

The court found that the Service had appropriately analyzed cumulative effects, aggregate effects, and the effects on the Northwest Atlantic DPS sea turtle recovery.  The court also found that the Service’s decision to limit its BiOp to a ten-year term was not arbitrary and capricious.  The court did, however, remand the BiOp to the Service to address issues related to the Service’s treatment of climate change and ITS monitoring regime.

With regard to climate change, the court found fault with the Service’s treatment of the short term effects caused by climate change.  In particular, the court stated that the BiOp does not include . . [a] sufficient explanation of the link between the substantial evidence of significant short-term climate change effects, which the BiOp acknowledges, and the agency’s ultimate conclusion that any short-term impacts on loggerheads will be negligible.  As to the monitoring regime, the court held that the ITS did not sufficiently explain how the Service will monitor whether take limits have been exceeded.  The BiOp called for take estimates to be produced every five years, however under Service regulations, the Service is obligated to reinitiate consultation under section 7 of the Endangered Species Act immediately upon exceeding the incidental take authorized by an ITS.  The court found it unclear how the Service can meet its regulatory obligations where monitoring is done in five-year increments.

The court rejected the plaintiff’s request to vacate the BiOp.  Instead, the court remanded the BiOp and concluded there was a fair possibility that [the Service] will be able to justify its choices ‘through more thorough and informative explanation.’