Turtle Island Restoration v. Hawaii Longline

The district court does not abuse its discretion by approving a consent decree when (1) it does not make substantive changes to regulations, (2) there is no clearly erroneous fact finding and (3) the decree is “fair, reasonable and adequate and does not violate public policy.”

A group of nonprofit environmental organizations and corporations (collectively, “Turtle Island”) sued the United States Department of Commerce, National Marine Fisheries Service (“NMFS”), and Gary Locke in his official capacity as Secretary of the Department of Commerce (collectively, the “Federal Agencies”), challenging the Final Rule, an amendment to the Fishery Management Plan for the Western Pacific Region, and the 2008 Biological Opinion. Hawaii Longline Association (“Longliners”) intervened as a defendant. The Final Rule, based on a 2008 Biological Opinion, increased the number of incidental take limits of loggerhead and leatherback turtles. Turtle Island and the Federal Agencies entered into a settlement by filing a “Joint Motion to Enter Stipulated Injunction as an Order of the Court” (the “Consent Decree”). The district court approved it, reinstating previous, lower take limits and ordering NMFS to produce a new biological opinion to change the current one. On appeal, Longliners argued that the district court abused its discretion because the Consent Decree violated the Magnuson Act and the Administrative Procedure Act (APA). The Ninth Circuit found that the Consent Decree did not violate the Magnuson Act because it did not make substantial changes to the regulation; it mandated a result from existing law. The Consent Decree did not violate APA’s notice and comment requirement because the concerns were the same during the initial rulemaking and the negotiation of the Consent Decree. 50 C.F.R. § 402.16 allows for voluntary reconsideration of regulations; thus, the district court did not err in finding the Consent Decree “fair, reasonable and adequate” despite the absence of new information necessitating reconsideration of the take limits. The fact-finding was not clearly erroneous because reducing the incidental take limits was based on a logical explanation to protect turtles. AFFIRMED.