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Earth Island Institute v. Hogarth
494 F.3d 757 (9th Cir. 2007)

Defendant National Marine Fisheries Service (NMFS) appealed the California District Court's grant of summary judgment to plaintiff environmental groups on claims that the agency's finding that the use of purse-seine nets to harvest tuna did not have an adverse impact on Eastern Tropical Pacific (ETP) dolphin population recovery was arbitrary and capricious because the agency did not comply with Congress's directives for scientific studies.[1] The Ninth Circuit affirmed on each of the three independent grounds for which the district court granted plaintiffs summary judgment: 1) NMFS's predecessor, the National Oceanic and Atmospheric Administration (NOAA), failed to conduct statutorily-mandated studies, 2) the best available scientific evidence did not support NOAA's "Final Finding," and 3) political concerns improperly influenced the Final Finding.[2]


In 1997, Congress enacted the International Dolphin Conservation Program Act ( ). . ), the Secretary's finding was arbitrary and capricious because the evidence supporting the Secretary's decision was inconclusive. ), affirmed the district court's decision in Brower I because the agency had not reached a conclusive answer as required by the IDCPA  . .[11] The Secretary appealed the district court's decision.


The Ninth Circuit reviews a district court's grant of summary judgment de novo, using the same guidelines as the district  . .[13]


The Ninth Circuit first addressed the district court's holding that the agency failed to conduct statutorily mandated studies. The court noted that the IDCPA directed the Secretary to ascertain the purse-seine fishery's effect on ETP dolphins, while the amended   dictated the methodology and data on which the agency should base its  . ]." ."[16]


Congress intended the necropsy study to determine if delayed or indirect effects of the fishery were killing dolphins. . NOAA studied only fifty-six dolphins after concluding that, at minimum, 600 dolphins were necessary to make valid determinations about the fishery's  . To justify its actions, the agency argued the court should defer to its decision regarding sample sizes because, while the statute requires necropsies, it does not specify a minimum sample  . Noting that it reviews an agency's interpretation of a statute de novo,  ," .[24]


The Ninth Circuit reached a similar conclusion regarding the CHESS study, explaining that the agency defied Congress's dictate to assess the fishery's impact on dolphin population by using too small of a sample  . Congress asked for a "scientifically-sound determination of the fishery's impact on dolphins," and the court held the agency had failed to comply with Congress's request. [25]


Next, the Ninth Circuit addressed the district court's second holding, that the best available scientific evidence did not support NOAA's "Final Finding." Stating that while it often defers to agency expertise, it need not do so if the agency's decision is not substantially based in fact. ) " ). ."[31]


The agency next argued that the inconclusive nature of all its studies allowed the Secretary to change the dolphin-safe labeling standards. The Ninth Circuit responded that it had already rejected that argument in Brower II, holding that "there is no basis on which to change the status quo if all of the evidence is inconclusive."[32]


The Ninth Circuit next addressed the district court's third holding, that political concerns improperly influenced NOAA's "Final Finding." The court noted that it had addressed the issue before in Brower II. There, the Secretary "stress[ed] that this case involves international concerns and competing policies for protecting dolphins," but the court held that such political concerns were "within Congress's bailiwick," and that Congress's intent was to have findings based solely on  . ,[34] the court held the agency violated Congress's mandate.


Finally, the Ninth Circuit reviewed the district court's decision to vacate the Secretary's "Final Finding" of no adverse impact and to order the Secretary to not allow the sale of tuna caught with purse-seine nets under "dolphin-safe" labeling. In response to the agency's argument that the court should remand for further studies, the Ninth Circuit replied that it had already done so in Brower II and nothing in the government's brief indicated that the agency wanted another chance to comply with the will of  . The court noted that while ordinarily the remedy is to remand for further administrative proceedings when a court finds agency action to be arbitrary and capricious, in "rare circumstances" a court can remand with specific directions or order equitable  . . Because Congress intended that there be no "Final Finding" without the mandated studies, the court vacated the Secretary's "Final Finding" to implement the will of  . The Ninth Circuit reasoned that it was not then necessary to order NOAA to take enforcement actions because such an order would go beyond the scope of its review. Therefore, the court instructed the district court to limit its order to a direction to vacate the "Final Finding" of no significant adverse  . The effect of this instruction was that there will be no change in tuna labeling requirements absent a directive from Congress, such that the "dolphin-safe" label will continue to indicate that tuna was harvested in compliance with the requirements on the MMPA and the IDCPA.[36]


In conclusion, the Ninth Circuit upheld the district court's grant of summary judgment to plaintiff environmental groups because NOAA did not comply with Congress's directives for scientific studies.




[1] Earth Island Inst. v. Hogarth, 494 F.3d 757, 763 (9th Cir. 2007).


[2] Id. at 763-64.


[3] International Dolphin Conservation Plan Act, 16 U.S.C. § 1385 (2000).


[4] Marine Mammal Protection Act, 16 U.S.C. §§ 1371(a)(2)(B) (2000) (banning importation of tuna that fails to meet certain conditions meant to limit dolphin mortality).


[5] 16 U.S.C. § 1385(g) (2000); see 16 U.S.C. § 1414a (requiring research on dolphin populations, including studies on stress and abundance).


[6] Earth Island Inst., 494 F.3d at 761.


[7] Notice on Taking of Marine Mammals Incidental to Commercial Fishing, 64 Fed. Reg. 24,590, 24,590 (May 7, 1999).


[8] 93 F. Supp. 2d 1071, 1087 (N.D. Cal. 2000) (Brower I).


[9] See 16 U.S.C. § 1414a(a) (2006).


[10] 257 F.3d 1058, 1071 (9th Cir. 2001) (Brower II).


[11] Earth Island Inst., 494 F.3d at 760-61.


[12] Brower II, 257 F.3d at 1065.


[13] Fed. R. Civ. P. 56(c).


[14] Earth Island Inst., 494 F.3d at 764.


[15] 16 U.S.C. § 1414a(a)(3) (2006).


[16] Earth Island Inst., 494 F.3d at 764.


[17] See 143 Cong. Rec. S. 8294 (July 30, 1997); 16 U.S.C. § 1414a(a)(3).


[18] See Brower II, 257 F.3d 1058, 1063 (9th Cir. 2001) (noting that in 1999 the Secretary stated that more scientific study was needed to ascertain the purse-seine fishery's effects on ETP dolphins and that completing the necropsy sampling program would provide answers).


[19] Partridge v. Reich, 141 F.3d 920, 923 (9th Cir. 1998).


[20] Whitman v. American Trucking Ass'ns., 531 U.S. 457, 481 (2001).


[21] Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984).


[22] Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir. 1996).


[23] Earth Island Inst. v. Hogarth, 494 F.3d 757, 765 (9th Cir. 2007) (citing 143 Cong. Rec. S. 8294 (July 30, 1997)).


[24] See Brower II, 257 F.3d 1058, 1070 (9th Cir. 2001) ( "The agency was required by law to conduct stress research as a prerequisite to its decision making." (emphasis in original)).


[25] Earth Island Inst., 484 F.3d at 1131.


[26] See Fed. Power Comm'n v. Fla. Power & Light Co., 404 U.S. 453, 463 (1972).


[27] See Pac. Coast Fed'n of Fishermen's Ass'ns. v. Nat'l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2004) (providing that an agency's decision does not require deference if the agency does not examine all the pertinent factors and if there is no logical connection between the data and the decision).


[28] Taking and Importing of Marine Mammals, 67 Fed. Reg. 54633, 54641-42 (Aug. 23, 2002).


[29] Earth Island Inst., 494 F.3d at 766 (quoting NOAA, Report of the Scientific Research Program Under the International Dolphin Conservation Program Act 8, 27 (2002).


[30] See Taking and Importing of Marine Mammals, 68 Fed. Reg. 2010, 2015 (Jan. 15, 2003) (explaining that the potential biological removal is the highest number of animals, aside from natural mortalities, that may be eliminated from a stock of marine mammals while still permitting that stock's population to reach or maintain its optimum size).


[31] Id.


[32] Earth Island Inst., 494 F.3d at 1133-34.


[33] Brower II, 257 F.3d at 1065-66.


[34] See Earth Island Inst. v. Evans, No. C 03-0007 TEH, 2004 WL 1774221 (N.D. Cal. Aug. 9, 2004), where the court stated that it had never before "reviewed a record of agency action that contained such a compelling portrait of political meddling. This portrait is chronicled in documents which show that both Mexico and the United States Department of State . . . engaged in a persistent effort to influence both the process and the ultimate finding . . . ." Id. at *26. The district court also noted that the Secretary had distributed an internal briefing packet and memorandum which stated that "[t]he final finding is very important to the Government of Mexico, as the Mexican tuna industry is eager to receive the dolphin-safe label for much of their tuna that is imported into the United States. . . . A finding of 'no significant adverse impact' would allow this to happen." Id. Finally, the district court noted that the Secretary of State had contacted the Secretary of Commerce to re-emphasize the importance of the agency's decision to foreign policy and suggesting that there was not enough evidence to find a significant adverse impact. Id.


[35] Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).


[36] Earth Island Inst. v. Hogarth, 494 F.3d 757, 779 (9th Cir. 2007).


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