American Tunaboat Association loses lawsuit in fight against NMFS
The American Tunaboat Association, a trade group representing owners and operators of the U.S. tuna fleet, has lost a lawsuit that it filed after being denied “applicant” status by the National Marine Fisheries Service in Endangered Species Act consultations.
In December 2018, the ATA received a notification of rejection from the NMFS in its attempt to be given applicant status under the agency’s rules for participating with full rights and status in consultations on the NMFS’ decisions regarding how to apply the Endangered Species Act in the U.S. purse-seine tuna fishery in the Western and Central Pacific Ocean. The ATA’s appeal of the decision was rejected in January 2019 by senior officials in the NMFS and U.S. Department of Commerce. In response, the ATA sued in April 2019.
In particular, the ATA sought applicant status so it could participate in the NMFS’ creation of a new biological opinion (BiOp) concerning endangered species in the area fished by the ATA fleet, claiming it had the right to participation as an applicant under the Administrative Procedure Act. The BiOp will include an incidental take statement “that will impose multiple requirements, including limits on the number of interactions ATA-member vessels participating in the fishery may have with endangered and threatened species,” the ATA wrote in its lawsuit.
Without the elevated status and its ability to bring its voice and expertise into the creation of the incidental take statement, the ATA said in its lawsuit the U.S. tuna fleet could be put in dire financial jeopardy.
“BiOps and related requirements have serious, and sometimes paralyzing, impacts on fisheries. For example, fisheries may be subject to closure if NMFS finalizes strict measures or a legally infirm BiOp that third parties challenge,” the ATA claimed. “Profit margins can be, and often are, razor-thin for some ATA-member vessels. For these members especially, but also for all other ATA members, the findings, conclusions, and measures NMFS will adopt in its new BiOp are of utmost importance.”
The ATA cited the example of the NMFS closing the shallow-set longline fishery for the remainder of 2019 after vessels reached 17 interactions with a sea turtle classified as endangered.
“Fishery closures cause economic harm to vessel owners and the industries that depend on their catch,” the ATA wrote. “Closures can also cause substantial ecological harm, as less-regulated foreign fisheries may increase their operations to fill demand left unmet by closed U.S. fisheries.”
It called the NMFS decision against awarded the ATA applicant status “arbitrary and capricious.”
“By refusing to grant ATA and its members applicant status and the related rights to which they are entitled under the ESA, NMFS has acted unlawfully in violation of the Administrative Procedure Act,” it said.
The decision in the case, issued 31 July by U.S. District Court Judge Trevor McFadden, ruled the NMFS’ interpretation of its Handbook, which provides guidance on issuing applicant status, was legitimate.
“Courts should not reward agencies for drafting deliberately opaque regulations that they can clarify to their advantage in subsequent litigation, but nor should courts demand crystal clarity from bureaucrats who did not anticipate the implications of unintended regulatory nuances. The Service’s reading of the Handbook is plausible on its face and consistent with the other available governing documents,” McFadden wrote. “In sum, the Service offers a fair interpretation of a genuinely ambiguous regulation.
McFadden appeared to be sympathetic to the ATA’s arguments, but ultimately sided with the NMFS’s arguments.
“The Service serves an important role in ensuring that the United States meets its obligations under international law,” he wrote. “The Court will defer to the Service’s interpretation of its own regulation.”
Nevertheless, the ATA and its members “have already been injured” by the NMFS’ decision, McFadden wrote.
“They have lost – and continue to lose – time and opportunity to influence agency decisionmakers before they commit to a course of action,” McFadden wrote.
But the association “still has a voice” in NMFS decisions, McFadden declared.
“The Service has offered to develop a framework to allow the association to participate in the consultation process, even without the applicant designation. For example, it may review and submit comments on the draft biological opinion before it is final. And the association can participate in the notice and comment rulemaking process about the management program that is the subject of this consultation. Any new terms or conditions in the biological opinion will not be binding on the association’s members until after the notice and comment rulemaking process. In the future, under the National Environmental Policy Act, the association can submit public comments on the draft Environmental Impact Statement for the Fishery,” the judge wrote.
McFadden said he believed this represented a fair balance between the ATA’s desire to participate in discussions that might affect its future and the NMFS’ desire to limit the amount of participants in its rule-making processes.
“To be sure, these opportunities are not equivalent to those granted to applicants under the [Endangered Species Act], but they are a reasonable balancing of the Service’s interest in receiving input from regulated parties and the need to enforce the act in an efficient and effective way,” McFadden concluded.