The Turtle Island Restoration Network and the Center for Biological Diversity (collectively the Center) sued the National Marine Fisheries Service (NMFS), claiming that NMFS violated the Endangered Species Act (ESA).[1] The Center claimed that by issuing longline fishing permits to United States fishing vessels without completing agency consultations, NMFS violated ESA section 7.[2] Additionally, the Center claimed NMFS violated ESA section 9[3] by issuing permits that would result in a "take" of endangered or threatened species. The district court found that NMFS did not violate section 7 of the ESA and that section 9 was not implicated because NMFS did not have discretion over longline fishing permits.[4] Therefore the district court granted summary judgment to NMFS. The Center appealed to the Ninth Circuit, which had jurisdiction pursuant to 28 U.S.C. section 1291. The Ninth Circuit reversed the district court's section 7 decision, finding that NMFS must conduct consultations before issuing longline fishing permits. On the section 9 claim, the Ninth Circuit found that NMFS had discretion in issuing the fishing permits and remanded that portion of the claim back to NMFS for further proceedings.

Longline fishing is used to catch migratory fish, specifically swordfish. The fishing vessels pull a line several miles long, with additional attached lines with baited hooks. Most U.S. longline fishing vessels were based in Hawaii until 1999, when a district court issued a preliminary injunction against longline fishing.[5] NMFS issued a biological opinion that longline fishing permitted under the Hawaii Fishery Management Plan put several species of sea turtles protected under the ESA at risk of extinction.[6] Subsequently, NMFS revised the Hawaii Fisheries Management Plan, restricting longline fishing, which in turn caused many fishing vessels to move to California ports. The Center then challenged use of longline fishing in California waters.

One way that the United States regulates fishing vessels is through the High Seas Fishing Compliance Act (Compliance Act).[7] The Compliance Act established a permitting, reporting, and regulatory system for U.S. vessels fishing on the high seas.[8] Vessels are required to obtain permits to fish on the high seas, and NMFS is authorized to issue these permits.[9]

The Center sent the Secretary of Commerce a 60-day notice of their intent to sue under the ESA.[10] The Center first claimed that NMFS violated section 7 of the ESA by not completing consultations to determine the effects of longline fishing on protected sea turtles. Under section 7, federal agencies must consult with NMFS before engaging in any discretionary action that may affect protected marine species.[11] When NMFS is the agency participating in the discretionary action, it must consult with itself to fulfill this requirement.[12] In this consultation, NMFS is to determine whether the discretionary action will threaten a protected species or destroy its critical habitat and identify "reasonable and prudent" alternatives to avoid these effects.[13] The Center claimed that NMFS's lack of consultation prior to issuing permits under the Compliance Act violated section 7.

In its letter, the Center argued that NMFS's granting of permits under the Compliance Act would result in a "take" of threatened or endangered sea turtles under the ESA. The ESA prohibits a take of any protected species.[14] The Center contended that NMFS was liable for takes by the fishing vessels authorized by the Service.

NMFS replied to the Center's letter, stating that the Service lacked discretion in issuing longline fishing permits, and that, as a result, the ESA consultation requirements did not apply to issuing the permits. In addition, NMFS was planning a management program for migratory fish on the high seas and the agency would complete a consultation during that process to assess the impact of longline fisheries on protected species. In response to NMFS's reply, the Center filed suit. The district court agreed with NMFS that the Service lacked discretion over issuing permits and was not required to consult under Section 7.[15] The district court also found that the Compliance Act did not grant NMFS the authority to place conditions on those permits.[16] As a result, NMFS could not violate the ESA for takes of listed species committed by the recipients of the Service's permits. The district court granted summary judgment to NMFS.[17]

The Ninth Circuit reviewed the district court's grant of summary judgment de novo to determine whether the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[18] To address both the section 7 and the section 9 claims, the court had to answer the question of whether NMFS participated in "agency action" under the ESA by issuing longline fishing permits under the Compliance Act. Because agency action is broadly defined to include activities funded or authorized by an agency, the issuance of fishing permits to vessels clearly falls under the definition of agency action.[19]

The court next examined whether NMFS's action was discretionary and whether it therefore implicated compliance requirements of section 7 of the ESA. The court examined the language of the Compliance Act, stating that the United States has obligations "including but not limited to" ensuring proper vessel marking and permit reporting.[20] The Ninth Circuit held that, by adding that language, Congress recognized that NMFS may have other obligations under the Compliance Act and gave the Service permission to exercise its discretion to fulfill those other obligations.

After determining that the language of the Compliance Act gave NMFS discretion to act, the court applied the test from Chevron, U.S.A. Inc. v. Natural Resources Defense Council (Chevron)[21] to decide whether the court should defer to NMFS's interpretation of the statute. To apply the Chevron test, the court first examines the statute to determine whether Congress's intent is clear. If the intent is not clear, the court then decides whether the agency's interpretation of the statute is reasonable. After examining the language of the Compliance Act, the court found that Congress clearly gave NMFS the discretion to condition permits in order to protect species. Holding that the Service's interpretation "[was] contrary to the unambiguous language of the statute," the Ninth Circuit found it did not deserve deference.[22] The implementing legislation of the Compliance Act also shows Congress intended NMFS to take measures to protect and conserve marine species.[23]

NMFS relied on Sierra Club v. Babbitt[24] and Environmental Protection Information Center v. Simpson Timber[25] to argue that it was not required to meet the consultation provision of section 7. In those cases, the Ninth Circuit found that the consultation requirements of the ESA did not apply because the agency actions had been completed and were not ongoing. The court distinguished permitting in this case because it is ongoing agency action over which NMFS retains discretion. The court analogized this case to Pacific Rivers Council v. Thomas,[26] where the court decided that fifteen-year forest management plans had an ongoing effect after they were adopted and thus, constituted ongoing agency action.

The Ninth Circuit held that the Compliance Act gives NMFS discretion over issuing permits. Therefore, the court reversed the district court and held that the agency must comply with the ESA consultation requirements in section 7 prior to issuing permits. The court also remanded the section 9 claims to the district court because the court found that the Service has discretion in issuing the permits.