Turtle Island Restoration Network v. U.S. Department of Commerce

The Ninth Circuit Court of Appeals ruled that the National Marine Fisheries Service (NMFS) had acted arbitrarily and capriciously when it determined that a swordfish fishery’s expansion would not jeopardize the continued existence of the endangered loggerhead sea turtle despite scientific data suggesting that loggerhead population would significantly decline due to climate change and also to rising levels of marine debris. In doing so, the Ninth Circuit partially reversed a Hawaii district court’s granting of summary judgment upholding the NMFS’s determinations under the Endangered Species Act in connection with the fishery expansion. (The court also ruled that the NMFS’s grant of a permit under the Migratory Bird Treaty Act was arbitrary and capricious, but this aspect of the court’s ruling did not address climate change.) The Ninth Circuit said the NMFS failed to articulate a “rational connection” between the climate-based population viability model and its no-jeopardy conclusion; the model showed the loggerhead facing high extinction risk even without the proposed action and additional loss of 4 to 11% with the proposed action. The Ninth Circuit found that the NMFS “improperly minimized” the proposed action’s risks to loggerhead survival “by only comparing the effects of the fishery against the baseline conditions that have already contributed to the turtles’ decline.” The Ninth Circuit upheld, however, the NMFS’s no-jeopardy conclusion for endangered leatherback sea turtles. The court was not persuaded by the plaintiffs’ argument that the NMFS erred by limiting the “temporal scale” of its analysis to 25 years despite the NMFS’s determination that rising temperatures would have impacts on sea turtles over the next century. The Ninth Circuit said the NMFS was entitled to rely on the climate-based population assessment model even though it could only predict changes for 25 years. The Ninth Circuit also was not persuaded that the NMFS had arbitrarily dismissed climate change impacts on sea turtles as uncertain. The court said that it could not conclude “from the NMFS’s lack of precision that it failed to adequately consider the effects of climate change” and that the plaintiffs had failed to point to less speculative evidence that the agency had failed to consider. One judge dissented from the court’s rejection of the no-jeopardy determination for loggerhead sea turtles, stating that “[w]hile the record data shows that the loggerhead is in decline, NMFS reasonably concluded that the fishery expansion would not appreciably reduce the likelihood of the loggerhead’s survival and recovery.”