Turtle Island Restoration Netw, et al v. Hawaii Longline Association, et al

Filing

FILED OPINION (ALFRED T. GOODWIN, STEPHEN S. TROTT and MARY H. MURGUIA) AFFIRMED. Judge: ATG Authoring, FILED AND ENTERED JUDGMENT. [8102925]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TURTLE ISLAND RESTORATION
NETWORK; CENTER FOR BIOLOGICAL
DIVERSITY; KAHEA: THE HAWAIIANENVIRONMENTAL ALLIANCE,
Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF
COMMERCE; NATIONAL MARINE
FISHERIES SERVICE; GARY LOCKE, in
his official capacity as Secretary
of the Department of Commerce,
Defendants-Appellees,
HAWAII LONGLINE ASSOCIATION,
Intervenor-Defendant-Appellant.





No. 11-15783
D.C. No.
1:09-cv-00598DAE-KSC
OPINION



Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
February 16, 2012—Honolulu, Hawaii
Filed March 14, 2012
Before: Alfred T. Goodwin, Stephen S. Trott, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Goodwin

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COUNSEL
Jason T. Morgan, Stoel Rives LLP, Seattle, Washington, for
the intervenor-defendant-appellant.

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Paul H. Achitoff, Earthjustice, Honolulu, Hawaii, for the
plaintiffs-appellees.
Jennifer Scheller Neumann, U.S. Department of Justice,
Washington, D.C., for the defendants-appellees.

OPINION
GOODWIN, Senior Circuit Judge:
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 HawaiianEnvironmental 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-

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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”).1 In relevant part, the Final Rule determines the annual
number of allowable interactions between the Hawaii-based
shallow-set longline fishery (the “Fishery”)2 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”)3
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
1
The Final Rule is codified as 50 C.F.R. § 665.813(b), as amended by
76 Fed. Reg. at 13297-02 (March 11, 2011). The Pelagic Fisheries of the
Western Pacific Region include waters surrounding American Samoa,
Guam, Hawaii, the Northern Mariana Islands, and the U.S. Pacific remote
island area. See Western Pacific Regional Fishery Management Council,
Pacific Pelagic Fisheries Overview, available at http://www.wpcouncil
.org/pelagic-fisheriestoday.html.
2
Hawaii’s longline fishing industry fishes mainly for swordfish in the
Pacific Ocean. Longline fishing employs a mainline exceeding one nautical mile in length and extending laterally as long as forty nautical miles.
Branch lines that terminate with baited hooks are clipped to and extended
below the mainline. Longline fishing for swordfish is called shallow-set
fishing because the bait is set at depths of 30 to 90 meters, as opposed to
tuna-target deep-set fishing in which bait is set at depths of 150 to 400
meters.
3
The Hawaii Longline Association is an organization that represents the
interests of the United States—flagged fishing vessel owners and crew
members, as well as associated businesses that participate in the Fishery.

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resources. See Western Pacific Pelagic Fisheries; HawaiiBased 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.
The Final Rule kept the hook, bait, and observer provisions
of the 2004 Regulations intact and implemented the following
changes: removal of the 2120 set limit and increase of the loggerhead interaction hard cap from 17 to 46.4 The Final Rule
was the result of the rulemaking apparatus authorized by the
Magnuson-Stevens Fishery Conservation and Management
Act (the “Magnuson Act”). See 16 U.S.C. §§ 1851-1856. The
Magnuson Act is a comprehensive national program designed
to promote and manage domestic commercial fisheries. See
id. § 1801(b). Congress purported to accomplish these goals,
in part, through the development of regional fishery management councils, which propose fishery management plans to
regulate fisheries within their region. Id. § 1852. The Western
Pacific Region at issue here is managed by the Western
Pacific Council. Id. § 1852(a)(1)(H). The Final Rule was
based on a 2008 Biological Opinion by NMFS, which concluded that the increased incidental take limits for turtles
complied with the Endangered Species Act.
The Longliners filed a motion for summary judgment on
Turtle Island’s claims. Turtle Island also moved for partial
summary judgment on some of its claims. While those
motions were pending, Turtle Island and the Federal Defen4

The Final Rule left the limit on leatherback turtle interactions
unchanged at 16.

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dants began negotiating a settlement. These settlement negotiations resulted in Turtle Island and the Federal Agencies
filing a “Joint Motion to Enter Stipulated Injunction as an
Order of the Court.” The district court characterized this joint
motion as “in essence . . . a proposed consent decree that
would result in dismissal of all of [Turtle Island’s] claims
with prejudice.”5 Over the Longliners’ objection, and after
supplemental briefing, the district court entered an order
approving the Consent Decree and denying as moot the Longliners’ motion for summary judgment. Under the terms of
the Consent Decree, the district court, in relevant part:
•

•

vacated and remanded to the Federal Agencies
the portions of the Final Rule implementing the
increased allowable loggerhead turtle incidental
take;

•

reinstated the lower incidental loggerhead turtle
take limits from the 2004 Biological Opinion and
accompanying incidental take statement;

•

ordered NMFS to promulgate a new regulation
implementing the amount of annual incidental
turtle take as set forth in the 2004 Regulations;

•

5

vacated and remanded to the Federal Agencies
the portions of the 2008 Biological Opinion and
accompanying incidental take statement supporting the increase in allowable loggerhead turtle
incidental take;

prohibited NMFS from increasing turtle take limits to a number greater than the 2004 limits without first issuing a new Biological Opinion;

The parties use different terms in referring to this “Stipulated Injunction.” The Longliners call it an injunction, but the Federal Agencies and
Turtle Island refer to it as a consent decree. For ease of reference, this
opinion uses “Consent Decree.”

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•

ordered NMFS to issue a new Biological Opinion
and accompanying incidental turtle take statement for the Fishery within 135 days after making a final determination on its proposed listing
of nine distinct population segments of loggerhead turtles as endangered.

The practical effect of the district court’s order is not to
affect the Final Rule, including removal of the 2120 set limit,
except to reduce the incidental take limit for loggerhead turtles back to the pre-existing 2004 limits (a reduction from 46
to 17). The Consent Decree further provided that the reduction was to remain in effect until NMFS issued a new biological opinion and new regulations addressing the take limits.
Notably, on September 16, 2011, while this appeal was pending, NMFS uplisted the North Pacific Ocean Distinct Population Segment of loggerhead turtles (the population segment at
issue here) as endangered. See Determination of Nine Distinct
Population Segments of Loggerhead Sea Turtles as Endangered or Threatened, 76 Fed. Reg. 58,868, 58,943 (Sept. 22,
2011) (codified at 50 C.F.R. pts. 223-224). On January 30,
2012, NMFS issued the biological opinion contemplated in
the Consent Decree. See Biological Opinion, Endangered
Species Act—Section 7 Consultation (National Marine Fisheries Service Jan. 30, 2012) available at http://www.fpir.
noaa.gov/Library/PUBDOCs/biological_opinions/SSLL%
202012%20BiOp%201-30-2012-final%20FOR%20POSTING
%20ON%20WEBSITE.pdf. The new biological opinion
included an incidental take statement that anticipated annual
interactions of up to 34 loggerhead and 26 leatherback turtles.
Id. at 125.
II.

Jurisdiction under 28 U.S.C. § 1292(a)(1)

The courts of appeals have jurisdiction over
“[i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions.” 28
U.S.C. § 1292(a)(1). The Longliners assert that we have juris-

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diction because the Consent Decree is, as the district court
labeled it, an injunction.6 The Federal Agencies agree with the
Longliners and also argue that we have jurisdiction. Turtle
Island argues against jurisdiction on the grounds that the Consent Decree is a vacatur and remand. See Eluska v. Andrus,
587 F.2d 996, 999-1001 (9th Cir. 1978) (holding that orders
remanding an action to a federal agency are generally not considered final appealable orders).
“In determining the appealability of an interlocutory order
under 28 U.S.C. § 1292(a)(1), we look to its substantial effect
rather than its terminology.” Armstrong v. Wilson, 124 F.3d
1019, 1021 (9th Cir. 1997) (internal quotation marks and citation omitted). That the district court labeled its order an
injunction is not dispositive. See id. This court treats consent
decrees that “prescribe[ ] conduct . . . and compel[ ] compliance” as injunctions. See Thompson v. Enomoto, 815 F.2d
1323, 1326 (9th Cir. 1987).
Turtle Island argues that the only injunctive aspect of the
Consent Decree is the prohibition against implementing
increased turtle take limits absent a new biological opinion
and the resultant new rulemaking process. Despite this prohibition, Turtle Island contends that the Consent Decree is not
an injunction because it does not compel any specific action
beyond those mandated by existing law upon operation of the
vacatur and remand. As Turtle Island correctly notes, reinstatement of the 2004 incidental take limit operates as a matter of law under the vacatur, and it would have occurred even
if the Consent Decree had remained silent on the subject. See
Paulson v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) (“The
effect of invalidating an agency rule is to reinstate the rule
previously in force.”).
6

The district court’s order is titled: “Order: (1) Granting Plaintiffs’ and
Federal Defendants’ Joint Motion to Enter Stipulated Injunction as an
Order of the Court; (2) Denying as Moot HLA’s Motion for Summary
Judgment.”

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[1] In totality, however, the specific provisions of the Consent Decree militate against Turtle Island’s argument. Paragraphs five and six prescribe conduct by prohibiting increases
to the incidental take limits except through specified procedures, and they further require issuance of a new biological
opinion and incidental take statement within a specified time
frame. Thus, although the Consent Decree exhibits characteristics of a vacatur and remand, it functions as an injunction by
both prohibiting and ordering actions. Therefore, this court
has jurisdiction under 28 U.S.C. § 1292(a)(1). See Gates v.
Shinn, 98 F.3d 463, 468 (9th Cir. 1996) (finding a consent
decree to be an injunction); accord Cal. ex. rel Lockyear v.
United States, 575 F.3d 999, 1019-20 (9th Cir. 2009) (treating
a similar order reinstating a prior rule after a vacatur as an
injunction).
III.

The district court did not abuse its discretion in
approving the Consent Decree.

We review a district court’s decision to approve a consent
decree for an abuse of discretion. See United States v. Montrose Chem. Corp. of Cal., 50 F.3d 741, 746 (9th Cir. 1995).
Abuse of discretion exists when the district court “fail[ed] to
apply the correct law or . . . rest[ed] its decision on a clearly
erroneous finding of material fact.” Id. Conclusions of law are
reviewed de novo. Husain v. Olympic Airways, 316 F.3d 829,
835 (9th Cir. 2002). A finding of fact is clearly erroneous “if
it is (1) illogical, (2) implausible, or (3) without support in
inferences that may be drawn from the facts in the record.”
Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d
1080, 1087 (9th Cir. 2011) (internal quotation marks omitted).
A district court may approve a consent decree when the
decree is “fair, reasonable and equitable and does not violate
the law or public policy.” Sierra Club, Inc. v. Elec. Controls
Design, Inc., 909 F.2d 1350, 1355 (9th Cir. 1990).
The Longliners argue that the district court abused its discretion in approving the consent decree (1) by allowing Turtle

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Island and the Federal Agencies to enter a settlement that violates the Magnuson Act and the Administrative Procedures
Act (“APA”) and (2) by basing its determination that the consent decree is fair, reasonable, and equitable on a clearly erroneous finding of fact that a return to the 2004 incidental take
limits will be more protective of loggerhead turtles.
A.

The Magnuson Act

The Magnuson Act vests the authority to develop regulations and implement amendments to fishery management
plans in the Regional Councils. See Turtle Island Restoration
Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 939 (9th
Cir. 2006); 16 U.S.C. § 1853(c)(1) (providing that the Council
may submit to the Secretary of Commerce any proposed regulations that it “deems necessary or appropriate” to implement
a management plan or amendment). The Longliners argue that
the Secretary, or its delegate (here, NMFS)7 is limited under
the Magnuson Act to one of two possible courses of action:
(1) approve the proposed regulations and, after a public comment period, publish them as final rules or (2) reject the regulations and resubmit them to the Regional Council for further
action. See 16 U.S.C. § 1854(b)(1)(A)-(B). The Longliners
argue that by entering into the Consent Decree the Federal
Agencies deviated from their statutorily prescribed courses of
action and engaged in unlawful rulemaking.
[2] In support of their position, the Longliners rely principally on United States v. Carpenter, 526 F.3d 1237 (9th Cir.
2008), and Fishing Co. of Alaska, Inc. v. Gutierrez, 510 F.3d
328 (D.C. Cir. 2007). In Carpenter, 526 F.3d at 1241, we held
that a court cannot approve a settlement agreement that violates the law. In Fishing Co., the D.C. Circuit invalidated a
federal agency’s attempt unilaterally to amend a fishery man7

See Natural Res. Def. Council, Inc. v. Evans, 316 F.3d 904, 906-07
(9th Cir. 2003) (describing the relationship of the various agencies and
officials involved in implementing the Magnuson Act).

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agement plan by adding additional monitoring and enforcement requirements. 510 F.3d at 332-33. The Fishing Co. court
held that the Secretary of Commerce violated the Magnuson
Act’s rulemaking procedures by failing to provide the
regional fishery council with the opportunity to deem the
additional requirements “necessary or appropriate” to the fishery management plan. Id. at 333.
[3] The Longliners’ coupling of Carpenter and Fishing Co.
is inapposite given the facts of this case. First, neither Carpenter nor Fishing Co. involved a consent decree. Second,
although the Magnuson Act states that NMFS or the Secretary
of Commerce cannot alter Fishery regulations proposed by the
Regional Councils, see 16 U.S.C. §§ 1852-54, that is not what
happened here. Unlike the situation in Fishing Co., the government did not seek to make substantive changes to regulations.8 NMFS merely vacated a portion of a regulation and
temporarily reinstated the relevant prior portion to settle litigation via a consent decree. Indeed, as noted above, the Consent Decree does not compel any particular result beyond
those mandated by existing law after the vacatur of the Final
Rule.
[4] Turtle Island and the Federal Agencies argue that the
Consent Decree is a judicial act and thus is not subject to the
Magnuson Act’s rulemaking provisions. They contend that
the Magnuson Act’s statutory framework, setting out procedures for developing fishery plans, amendments, and regulations, is directed at the Federal Agencies and the Regional
Councils, not the courts. The district court adopted this rea8

In their reply brief, the Longliners raise for the first time the argument
that the Consent Decree implements a “new rule” that is “materially different” from the prior regulations in effect because the Consent Decree
removes a downward adjustment provision for incidental turtle take. The
Longliners do not fully explain this point, and their citation to the Federal
Register, 76 Fed. Reg. at 13298, is devoid of analysis. In any event, “arguments raised for the first time in a reply brief are waived.” See Graves v.
Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam).

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soning in approving the Consent Decree. Because the Consent
Decree merely temporarily restores the status quo ante pending new agency action and does not promulgate a new substantive rule, however, we need not address the broader issue
regarding applicability of statutory rulemaking procedures to
judicial acts in general. Our inquiry focuses instead on the
narrower question of whether the Magnuson Act should
impede the parties’ ability to settle litigation in this case.9
[5] In Local No. 93 International Association of Firefighters v. City of Cleveland, 478 U.S. 501, 504 (1986), the
Supreme Court addressed whether a consent decree violated
a certain statutory provision of Title VII. Because Title VII
did not clearly refer to consent decrees, the Court examined
the statute’s legislative history to determine whether it limited
the government’s ability to enter a consent decree. Id. at 51920. The Court concluded that the statute did not preclude a
consent decree in that case. Id. at 521-22. Similarly here, the
Magnuson Act is silent regarding applicability of rulemaking
provisions to consent decrees. Moreover, the Magnuson Act’s
legislative history reveals no mention of consent decrees nor
any express restriction of the district court’s authority to manage litigation regarding the Fishery. Accordingly, we see no
reason to limit Turtle Island and the Federal Agencies’ ability
to determine the course and trajectory of the litigation. See
Carpenter, 526 F.3d at 1241 (citing 28 U.S.C. §§ 516, 519,
which vest the Attorney General, acting through the officers
of the Justice Department, with plenary authority to settle litigation in which federal agencies are a party). Settlement is to
be encouraged. See United States v. McInnes, 556 F.2d 436,
441 (9th Cir. 1977) (“We are committed to the rule that the
law favors and encourages compromise settlements.”).
9

The First Circuit engaged in a similarly tailored analysis in holding that
a consent decree did not implicate the Magnuson Act’s rulemaking provisions on different facts involving the New England fishery. See Conservation Law Found. of New England, Inc. v. Franklin, 989 F.2d 54, 61 (1st
Cir. 1993).

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Indeed, if the Longliners’ position is carried to its logical conclusion, then any attempt by federal agencies to settle litigation involving a regulation would entail a return to the same
rulemaking process by which the regulation was created—a
proposition that contradicts the Supreme Court’s policy determination in another context. See Local No. 93, 478 U.S. at
524 n.13 (recognizing that a limit on the government’s ability
to enter a consent decree would make it substantially more
difficult to settle Title VII litigation).
[6] The fact that the Federal Agencies complied with the
Magnuson Act’s rulemaking requirements when they issued
both the 2009 Final Rule and the 2004 Regulations, see 74
Fed. Reg. 65460, 65462 (Dec. 10, 2009); 69 Fed. Reg. 40734,
40734 (July 6, 2004), and that any subsequent regulations
incorporating the new biological opinion’s findings will be
subject to the Magnuson Act’s rulemaking procedures further
supports upholding the validity of the Consent Decree.
B.

The Administrative Procedure Act

The Longliners argue that the Consent Decree violates the
APA for essentially the same reasons discussed in the Magnuson Act analysis above, but the Longliners tailor these arguments to the procedures specified in the APA. The APA
requires periods for public notice and comment prior to federal agency rulemaking. See 5 U.S.C. § 553(b)-(c). The APA
defines rulemaking as “formulating, amending, or repealing a
rule.” Id. § 551(5). The Longliners argue that the Consent
Decree violates the APA’s notice and comment requirements
because the APA provides no mechanism for the Federal
Agencies to repeal the Final Rule through the Consent Decree
without engaging in public notice and comment.
In Consumer Energy Council of America v. Federal Energy
Regulatory Commission, 673 F.2d 425 (D.C. Cir. 1982), a
case relied on heavily by the Longliners, the court held that
a federal agency was required to follow the APA’s notice and

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comment requirements before repealing an agency rule governing incremental pricing policies for natural gas. Id. at 433,
446. The court reasoned that notice and comment prior to
repeal is important to “ensure[ ] that an agency will not undo
all that it accomplished through its rulemaking without giving
all parties an opportunity to comment on the wisdom of
repeal.” Id. at 446.
The Longliners allege that the Consent Decree caused the
same “undoing” without meaningful comment of all that the
Final Rule accomplished. Consumer Energy Council is distinguishable from this case, however. In Consumer Energy
Council, the concerns motivating the agency’s decision to
repeal the rule were different from those raised during the
original rulemaking and no party affected by the pricing policy rule suggested repeal. Id. Here, the concerns compelling
Turtle Island to seek repeal of the Final Rule, namely sea turtle safety, are the same as they were during the initial rulemaking. Moreover, the Consent Decree was the result of an
arms-length negotiation between Turtle Island and the Federal
Agencies, plaintiff and defendant in the underlying action.
The Longliners do not argue to the contrary.
The Longliners contend that the district court used the Consent Decree impermissibly to modify substantive regulatory
rules. See Mt. St. Helens Mining & Recovery Ltd. P’ship v.
United States, 384 F.3d 721, 728 (9th Cir. 2004) (“[T]he APA
does not empower the district court to . . . order the agency
to reach a particular result.”). This argument fails for the same
reasons discussed above. Specifically, the Consent Decree
vacates only a portion of the Final Rule and the supporting
2008 Biological Opinion and incidental take statements, thus
restoring the 2004 regulations during the remand and reconsideration process. The Consent Decree leaves NMFS free on
remand to fashion a new rule based on the new biological
opinion without imposing any substantive requirements on its
terms.

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The Longliners also allege that the Consent Decree violates
the APA by vacating and revising the 2008 biological opinion
and incidental turtle take statement without a proper factual
predicate. The Longliners argue that the Federal Agencies
should revisit a duly promulgated regulation like the Final
Rule only where “new information reveals effects of the
action that may affect listed species or critical habitat in a
manner or to an extent not previously considered.” 50 C.F.R.
§ 402.16(b). The Longliners allege that the district court thus
abused its discretion in “rubber stamping” the Consent Decree
as fair, reasonable, and adequate in the absence of an express
statement of new information supporting the decision to
reconsider the turtle take limits.
Section 402.16 does not support the Longliners’ conclusion. Section 402.16 establishes triggers that require reinitiation of the consultation process, but it does not prohibit
voluntary reconsideration of regulations. In relevant part,
§ 402.16 states, “Reinitiation of formal consultation is
required and shall be requested by the Federal agency or by
the Service . . . (b) If new information reveals effects of the
action that may affect listed species or critical habitat in a
manner or to an extent not previously considered . . . .”
(emphasis added).
In Montrose Chemical Corp. of California, this court
vacated the approval of a consent decree because it found “no
evidence on this record from which the district court could
have made any determination” with respect to the factual
basis underlying a settlement term. 50 F.3d at 746-47. Here,
however, the district court determined that, in light of the
underlying statutory objectives to “conserve endangered and
threatened species and their ecosystems,” the Consent Decree
reasonably reduced the incidental take limits temporarily
while the NMFS determined whether to change the legal status of loggerhead turtles from threatened to endangered. The
potential status change (now enacted) provided a sufficient
factual basis for revision of the 2008 Biological Opinion.

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[7] In sum, the district court did not err in holding that neither the Magnuson Act nor the APA barred implementation of
the Consent Decree in this case.
C.

The factual finding that a return to the 2004 incidental
take limits are more protective of loggerhead turtles
was not clearly erroneous.

The district court found that the Consent Decree “is more
protective of loggerhead sea turtles because it reduces the
total number of permissible interactions from forty-six per
year to seventeen.” The Longliners argue that this finding is
clearly erroneous on two grounds. First, because the evidence
before the district court revealed that an increased take would
be “statistically and biologically insignificant” to the loggerhead turtle populations as a whole. Second, because the
increased limits would actually benefit turtle populations
because of “market transfer effects.”10
[8] We find no clear error regarding the “more protective”
finding because a reduction in the actual number of incidental
take, even if statistically insignificant, is still a logical basis
for the finding that turtles would be more protected. Cf. Montrose Chem. Corp., 50 F.3d at 746 (describing the deference
given to district court factual findings during a review of consent decrees in the CERCLA context). Additionally, the 2008
Biological Opinion found the market transfer effects argument “too speculative to be persuasive.” Therefore, the district court did not clearly err in disregarding market transfer
effects in evaluating the Consent Decree.
10

Market transfer effects occur when swordfish buyers seek to fill their
orders from unregulated foreign fishing vessels as opposed to the more
regulated Longliners. This “market transfer” results in more incidental
take and a net adverse impact to turtle populations.

Case: 11-15783

3048

IV.

03/14/2012

ID: 8102925

DktEntry: 50-1

Page: 17 of 17

TURTLE ISLAND RESTORATION v. HAWAII LONGLINE

Conclusion

Because the Consent Decree is injunctive in nature, this
court has jurisdiction under 28 U.S.C. § 1292(a)(1). The Consent Decree does not purport to make substantive changes to
the Fishery regulations, so the rulemaking provisions of the
Magnuson Act and the APA do not apply. The district court
did not clearly err in finding that a return to lower incidental
take limits is more protective of loggerhead turtles.
AFFIRMED.