filed: December 29, 1992; Amended October 5, 1993.
Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-91-887-C. John C. Coughenour, District Judge, Presiding. Original Opinion Reported at:,
Before: Cynthia Holcomb Hall, Diarmuid F. O'Scannlain, and Edward Leavy, Circuit Judges. Opinion by Judge Hall.
AMENDED OPINION AND ORDER
On June 26, 1991, Greenpeace Action ("Greenpeace") filed a complaint against the Secretary of Commerce (the "Secretary") alleging violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70c, and section 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536 (a)(2), by the Secretary and the National Marine Fisheries Service (the "Service"). Greenpeace sought declaratory relief and an injunction against continued pollock fishing in the Gulf of Alaska until the Service complied with the law. On September 30, 1991, Greenpeace moved for summary judgment and a permanent injunction. The Service filed a cross motion for summary judgment. The district court denied Greenpeace's motions and granted the Service's motion in an order entered on October 11, 1991. Greenpeace appeals from that order. The district court had jurisdiction under 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 (Administrative Procedure Act) and 16 U.S.C. § 1540(g) (Endangered Species Act, citizen suit). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
This case arose out of concern over the fate of the Steller sea lion, which inhabits the waters of the northern Pacific Ocean. Between 1960 and 1989, the Steller sea lion's Alaskan population suffered a precipitous decline, resulting in its classification in 1990 as a "threatened species" under the ESA. See Listing of Steller Sea Lions as Threatened Under the Endangered Species Act, 55 Fed. Reg. 49,204 (Dep't of Comm. 1990) (final rule). Though the Steller sea lion's decline has abated over the last three years, it has not stopped. The harvesting of pollock, a groundfish that comprises about half of the Steller sea lion's diet, has been cited as a likely factor in the Steller sea lion's decline.
Greenpeace contends that studies - including the Service's own data - demonstrate that pollock fishing is the "leading factor" in the sea lion's decline. Greenpeace emphasizes that the primary danger is not the depletion of the overall biomass of pollock in the Gulf, but rather localized depletion; the Steller sea lion's proximity to its food source is crucial, and fisheries*fn1 and sea lions often compete for the same stock of pollock. The Secretary's final rule listing the Steller sea lion as a threatened species takes a less definitive position on the effects of pollock fishing:
Some data show a high negative correlation between the amount of walleye pollock caught and sea lion abundance trends in the eastern Aleutians and central Gulf of Alaska. It is possible that a reduction in availability of pollock, the most important prey species in most areas, is a contributing factor in the decline in the number of Steller sea lions in western and central Alaska.
55 Fed. Reg. at 49,208 (emphasis added).
Pursuant to section 302(h)(1) of the Fisheries Conservation Management Act ("Magnuson Act"), 16 U.S.C. § 1852(h)(1), the North Pacific Fishery Management Council ("the Council") issued its Fishery Management Plan ("the Plan") and an environmental impact statement (EIS) for the Gulf of Alaska Groundfish Fishery in 1978. An amendment to the Plan established a procedure for setting annual harvest levels for various species. Every September the Council makes public a preliminary Stock Assessment and Fishery Evaluation Report, as well as preliminary specifications for the acceptable biological catch (ABC) and the total allowable catch (TAC). The ABC is a measure of the size of the catch that the ecosystem can sustain. The TAC is the total tonnage of fish that fishermen may retain in a particular year. Preliminary TACs are replaced by final TACs when they are approved by the Secretary.
In September 1990, the Council made its preliminary recommendations for 1991. It recommended a pollock TAC of 73,400 metric tons (mt), the same as the 1990 level. In December 1990, the Council's assessment of the 1991 fishing stock was released, and based on that report, the Council revised its proposed TAC to 130,000 mt, a 41 percent increase over the 1990 level. Greenpeace sent a letter to the Secretary objecting to the proposed TAC, alleging that the 41 percent increase over the 1990 level would violate ESA. Without the preparation of an EIS, Greenpeace alleged, implementing the increase would also violate NEPA. The letter charged that the Council had not adequately considered the effect of its plan on the Steller sea lion and recommended that the 1991 TAC remain at the 1990 level. It attached a report by the Aquatic Resources Conservation Group voicing concern over the modelling technique used to arrive at the proposed ABC and TAC and recommending an ABC of 103,400 mt and a TAC of 71,010 mt.
The Council's proposed TAC was never implemented. The 1991 fishery opened under an interim TAC, equal to one quarter of the 1990 quota. That limit was exceeded by mid-February and the fishery was closed. In March 1991, the Secretary deferred approval of the recommended TAC for further evaluation of its impact on the Steller sea lion's food supply. At that time he entered into a consultation with the Service, pursuant to section 7(a)(2) of the ESA.*fn2
In the course of the section 7 consultation, the Service collected and analyzed new data, and in June issued a biological opinion recommending a TAC of 103,400 mt, allocated temporally and geographically to prevent local depletions of pollock.*fn3 It also recommended the implementation of a ten nautical mile (nm) no-trawl zone around the Steller sea lion rookeries. The opinion concluded that if implemented under the proposed conditions, the 1991 TAC was not likely to jeopardize the Steller sea lion. It stated that the effects of pollock harvesting on the Steller sea lion's ability to obtain food were uncertain, but that the proposed TAC left available a stock of pollock sufficient both to reproduce and to meet the Steller sea lion's annual food needs. It also determined that various measures it proposed were adequate to prevent temporary local depletions that may affect Steller sea lion feeding success. In June, the Service produced an environmental assessment, pursuant to 40 C.F.R. § 1501.4(a)-(c) (1991), analyzing the impact of the TAC on the environment and concluding that an EIS was unnecessary.*fn4
The Secretary considered the recommendations of the Service, as well as those of the Steller Sea Lion Recovery Team, and ultimately set both the ABC and TAC for 1991 at 103,400 mt and adopted the emergency measures proposed in the June biological opinion. These measures went into effect and the fishery was reopened on June 13, 1991. See Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands Area, 56 Fed. Reg. 28,112 (Dep't of Comm. 1991) (notice of initial harvest specifications for pollock).*fn5
Catches of groundfish unexpectedly jumped at the end of the third quarter of 1991, and although the Secretary closed the fishery early, the third quarter harvest was in excess of the quarterly allowance. In September, before reopening the fishery for the fourth quarter, the Secretary prepared a new environmental assessment. The assessment noted that the third-quarter overrun was small compared to the total pollock biomass and that the pollock biomass was at its highest levels since the early 1980s. He therefore concluded that the Steller sea lion's decline could not be attributed to a decline in pollock abundance and that none of the management options being considered for the fourth quarter would significantly affect the quality of the human environment. Under these circumstances, he determined that NEPA did not require that an EIS be prepared before the fourth quarter fishery could be opened.
The Service also prepared a section 7 biological opinion for the fourth quarter, reiterating its position that the effect of commercial pollock fishing on the Steller sea lion was uncertain. It concluded that given this uncertainty, the small size of the proposed fourth quarter harvest (3 percent of the estimated exploitable Gulf biomass), and the emergency management safeguards, the fourth quarter harvest "was not likely to jeopardize the continued existence of the Steller sea lion." When the fourth quarter fishery closed on October 25, 1991, the total harvest for 1991 was 6,000 metric tons below the allowed level.
On January 28, 1991, before the Secretary issued his final rule, Greenpeace sent a notice of intent to file a citizen's suit under the ESA, objecting to the increase in the TAC proposed by the Council in December, 1990. The notice asserted that the proposed increase was likely to jeopardize the Steller sea lion and if it was not disallowed, Greenpeace would sue.
On June 26, 1991, a week after the adoption of the final rule, Greenpeace filed a complaint in federal district court seeking declaratory and injunctive relief against the Secretary. The Complaint charged that the Secretary's implementation of the 1991 TAC violated the ESA because it was done without preparation of an adequate biological opinion and without consideration of the best available scientific and commercial data concerning the status of the fishery and its potential impact on the Steller sea lion. It further alleged that implementation of the TAC without preparation of an EIS or an adequate environmental assessment violated NEPA.
With respect to the alleged violations of the ESA, Greenpeace sought an order directing the Secretary to comply with the Act by ensuring that the continued harvest of pollock "is not likely to jeopardize the continued existence and recovery of the threatened Steller sea lion" and by preparing "a legally and scientifically adequate biological opinion . . . concerning the risks posed by pollock fishing" to the Steller sea lion. With respect to the alleged violations of NEPA, Greenpeace sought an order directing the Secretary to prepare "a legally adequate [environmental impact statement] or [environmental assessment] examining and disclosing the significant environmental effects of implementing the 1991 TAC." Greenpeace also requested an injunction prohibiting further pollock harvesting until the Secretary complied with these duties.
The parties filed cross motions for summary judgment, and on October 10, 1991 the district court granted summary judgment for the defendants. The court held that nothing in the record supported a claim that the Secretary had violated the ESA. The record showed that his decision not to undertake or consider additional studies before issuing his finding of "no jeopardy" was not arbitrary or capricious, and that the finding "was based on relevant factors and demonstrated no clear error of judgment." It also concluded that nothing in the record supported a charge that the Secretary had violated NEPA. The record demonstrated that the Secretary had adequately assessed the impact of his action on the environment and had taken protective measures, and that his decision not to undertake an EIS was not arbitrary or capricious. The district court denied Greenpeace's motion for a stay of the opening of the fourth quarter fishery pending appeal. On October 16, 1991, an emergency motions panel of this Court also denied Greenpeace's motion for a stay.
The 1991 fishing season has ended and the 1991 TAC has expired. Consequently, Appellees argue that the issues presented by this appeal are moot. They maintain that because the 1992 amendments to the Fishery Management Plan and the 1992 TAC have been determined based on an entirely new administrative record, this Court cannot afford Greenpeace the declaratory or injunctive relief it seeks. They also argue that the issues presented are not "capable of repetition yet evading review." Appellees' burden of demonstrating the mootness of this case is a heavy one. See Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir. 1989).
Although we cannot grant Greenpeace effective relief on its claim that the 1991 TAC was unlawfully approved, we conclude that this action "is one of those extraordinary cases in which the complained of activity may be repeated and yet evade review." Alaska Fish & Wildlife Fed'n v. Dunkle, 829 F.2d 933, 939 (9th Cir. 1987), cert. denied, 485 U.S. 988, 99 L. Ed. 2d 501, 108 S. Ct. 1290 (1988). Government actions fall within this category if (1) the duration of the challenged action is too short to allow ...