Summary
dismissing lawsuit as moot where framework at issue had been superseded by Amendment 10
Summary of this case from Oceana, Inc. v. LockeOpinion
Civil Action No. 03-10570-GAO.
July 30, 2004
MEMORANDUM AND ORDER
Oceana, Inc. ("Oceana"), a non-profit advocacy organization dedicated to protecting and restoring the world's oceans, brought this action against Donald L. Evans, in his official capacity as Secretary of the United States Department of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service ("NMFS"), challenging the NMFS's approval of the 2003 fishery management measures for the Atlantic Sea Scallop Fishery. Oceana alleges, inter alia, that the management measures and their accompanying biological opinion fail to adequately protect threatened and endangered sea turtles in violation of the Endangered Species Act, the Magnuson-Stevens Fishery Conservation and Management Act, and the Administrative Procedure Act. Oceana moved for summary judgment declaring the management measures and biological opinion invalid and remanding them to the NMFS. The defendants and intervenor-defendant Fisheries Survival Fund filed cross-motions for summary judgment.
I. Statutory and Regulatory Framework
A. Endangered Species Act
Section 7(a)(2) of the Endangered Species Act requires a federal agency to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. . . ." 16 U.S.C. § 1536(a)(2). In order to determine whether agency action will likely jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of the habitat of such species, the agency proposing to take the action (the "action agency") must consult, formally or informally depending on the circumstances, with the agency responsible for protecting the species (the "expert agency"). Id. § 1536; 50 C.F.R. § 402.14. Formal consultation is terminated with the issuance of a biological opinion, which must include the following:
Here, the NMFS is both the action agency and the expert agency.
(1) A summary of the information on which the opinion is based;
(2) A detailed discussion of the effects of the action on listed species or critical habitat; and
(3) The [NMFS's] opinion on whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a `jeopardy biological opinion'); or, the action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a `no jeopardy' biological opinion). A `jeopardy' biological opinion shall include reasonable and prudent alternatives, if any. If the [NMFS] is unable to develop such alternatives, it will indicate that to the best of its knowledge there are no reasonable and prudent alternatives.50 C.F.R. § 402.14(h), (i)(1). A "no jeopardy" biological opinion must also include an incidental take statement specifying, inter alia, the impact of incidental takes on the species and the terms and conditions of such takes. Id. § 402.14(i); 16 U.S.C. § 1536(b)(4). Generally, absent an incidental take statement or some other exemption, taking listed species is prohibited. See 50 C.F.R. §§ 223.205 and 223.206, relating to sea turtles.
"`[T]ake' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).
B. Magnuson-Stevens Act
The Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 U.S.C. §§ 1801- 1883 provides the framework for federal management of fisheries. The Magnuson-Stevens Act creates eight regional fishery management councils, which are charged with preparing fishery management plans ("FMPs") to provide for the conservation and management of the fisheries under their authority. 16 U.S.C. §§ 1852(a)(1), (h)(1), 1853. The New England Fishery Management Council develops FMPs and necessary amendments for the Atlantic Sea Scallop Fishery.
The Magnuson-Stevens Act requires that FMPs, among other things, (i) describe and identify essential fish habitats and minimize adverse effects on the habitats to the extent practicable, 16 U.S.C. § 1853(a)(7), and (ii) establish a reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include measures to minimize bycatch and minimize the mortality of bycatch to the extent practicable. Id. §§ 1853(a)(11), 1851(a)(9).
Since the conditions of fisheries are constantly changing, the New England Fishery Management Council often uses "framework adjustments" to manage the fisheries on a short-term (e.g. annual) basis. See 50 C.F.R. § 648.55. Framework adjustments allow regulatory authorities to respond more quickly to the changing conditions of fisheries even as more comprehensive amendments to the FMPs are considered and developed.
II. Discussion
A. The Regulations at Issue
In 1998, the New England Fishery Management Council adopted Amendment 7 to the existing Atlantic Sea Scallop FMP to implement additional measures to re-build stocks and prevent overfishing of scallops. Amendment 7 limited to 120 the number of days at sea ("DAS") full-time scallopers may fish during the fishing year. On September 12, 2002, the New England Fishery Management Council adopted Framework 15 to the Atlantic Sea Scallop FMP to provide management measures for the 2003 fishing year (March 1, 2003 through February 29, 2004). See Framework Adjustment 15, 68 Fed. Reg. 9580, 9581 (Feb. 28, 2003). Framework 15 was intended to be a limited, short-term, stop-gap measure until a new comprehensive amendment — i.e. Amendment 10, to the Atlantic Sea Scallop FMP — could be fully developed and implemented. 68 Fed. Reg. 9581, 9584; Conservation Law Found. v. Evans, 360 F.3d 21, 25 (1st Cir. 2004) ("Framework 15 was designed merely to maintain the status quo until NMFS could complete a more comprehensive overhaul of its management measures through an amendment to the scallop FMP."). Framework 15 maintained fishing levels at 120 DAS for full-time scallop vessels, and it expired on February 29, 2004. 68 Fed. Reg. 9581.
After formal consultation on the management measures proposed by Framework 15, the NMFS issued a biological opinion, dated February 24, 2003, which concluded that continued operation of the fishery was not likely to result in jeopardy to sea turtles, and included an incidental take statement anticipating an annual take of up to 97 sea turtles from scallop dredge and trawl gear. Pl.'s Summ. J. Mot., Ex. 1 at 68. The biological opinion provided that reinitiation of formal consultation was required upon the happening of certain events, including when (i) "new information reveals effects of the [agency] action that may affect listed species or critical habitat in a manner or to an extent not previously considered," and (ii) "the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion." Id., Ex. 1 at 73; 50 C.F.R. § 402.16.
In late summer and fall of 2003, a number of sea turtles were observed taken outside of closed fishing areas. These observations represented new information on the effects of the Atlantic Sea Scallop FMP on sea turtles that was not considered in the February 24, 2003, biological opinion. At this time, the New England Fishery Management Council was already in the process of developing a proposed Amendment 10 to the FMP, which would make several changes to the management of the fishery that could affect sea turtles in a way not considered in the February 24, 2003, biological opinion. Both the new observations of takes and the development of Amendment 10 required the NMFS to reinitiate formal consultation.
As a result of the reinitiation of consultation, a new biological opinion was completed. This new opinion, dated February 23, 2004, concluded that the proposed implementation of Amendment 10 may adversely affect, but was not likely to jeopardize, sea turtles. Defs.' Mem. on First Cir. Decision, Ex. 1 at 67. The new biological opinion included an incidental take statement anticipating an annual take of up to 111 sea turtles from scallop dredge and trawl gear. Id. at 68. Amendment 10 to the Atlantic Sea Scallop FMP provides a long-term, comprehensive program to manage the sea scallop fishery. New regulations implementing Amendment 10 became effective on June 23, 2004.See 69 Fed. Reg. 35194 (June 23, 2004) (to be codified at 15 C.F.R. § 902 and 50 C.F.R. § 648).
B. Mootness
In this action, Oceana asks the Court to declare Framework 15 and the February 2003 biological opinion invalid and remand them to the NMFS for correction of alleged deficiencies. The defendants argue that Oceana's challenge to Framework 15 and its accompanying biological opinion is moot, in light of the February 2004 biological opinion and Amendment 10. I agree with the defendants.
A case becomes moot when "the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)); United States v. Reid, 369 F.3d 619, 624 (1st Cir. 2004). The Court must consider whether adjudication of the issues can grant meaningful relief. Conservation Law Found., 360 F.3d at 26. Challenges to a regulation may be rendered moot by the promulgation of a new regulation. Gulf of Maine Fishermen's Alliance v. Daley, 292 F.3d 84, 88 (1st Cir. 2002); c.f. Conservation Law Found, 360 F.3d at 26 ("where a challenged regulation continues to the extent that it is only superficially altered by a subsequent regulation, we are capable of meaningful review.").
Here, the challenged Framework 15 expired on February 29, 2004, and was superseded by an 180-day emergency rule, see 69 Fed. Reg. 9970 (Mar. 3, 2004), followed by new regulations implementing Amendment 10. The challenged February 2003 biological opinion was also superseded, as a result of a reinitiation of consultation, by the February 2004 biological opinion. The Amendment 10 implementing regulations were developed using new data about the condition of the scallop fishery and its impact on sea turtles. Additionally, the February 2004 biological opinion incorporated new information regarding observed sea turtle takes into a new incidental take statement. With the expiration of Framework 15 and the issuance of the new biological opinion and implementing regulations for Amendment 10, the February 2003 biological opinion and Framework 15 are no longer in effect, and no interest would be served by invalidating them now. Reid, 369 F.3d at 625; see also Gulf of Maine, 292 F.3d at 88 ("This court has no means of redressing either procedural failures or substantive deficiencies associated with a regulation that is now defunct."); American Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997) (challenge to 1994-1998 biological opinion rendered moot by issuance of 1995 biological opinion); Idaho Dep't of Fish Game v. Nat'l Marine Fisheries Serv., 56 F.3d 1071, 1074-75 (9th Cir. 1995) (challenge to 1993 biological opinion rendered moot by issuance of 1994-1998 biological opinion).
Nor are Oceana's claims actionable under the exception to the mootness doctrine for cases "capable of repetition, yet evading review." Weinstein v. Bradford, 423 U.S. 147, 149 (1975). This exception only applies if "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again." Id. Even if the first condition is satisfied, the second is not.
As in Gulf of Maine, 292 F.3d at 89, the challenged framework here was not necessarily too short in duration to be fully litigated before its expiration. Oceana served its complaint three weeks after filing it and then amended the complaint twice. Six months after filing the complaint, Oceana requested expedited review, pursuant to 16 U.S.C. § 1855(f)(4), in connection with the parties' joint motion for a summary judgment briefing schedule. Oceana subsequently sought, and was granted, leave to file a sur-reply to address the defendants' mootness argument, and a hearing on the summary judgment motions was held on February 26, 2004, three days before the expiration of Framework 15. On the same day of the hearing, the First Circuit issued its decision in Conservation Law Foundation. In light of the similarity of issues between Conservation Law Foundation and the instant action, the parties were given until March 5, 2004 to file briefs responding to the decision. Although the circumstances of this case prevented it from being fully litigated prior to the expiration of Framework 15, I cannot say that the one-year period for framework adjustments is itself too short in duration. I note also that future framework adjustments will last for two years, allowing more than enough time for challenges to be fully litigated. See 69 Fed. Reg. 35197, 35218-19.
Amendment 10 is similar in many respects to Framework 15; both are efforts to regulate scallop fishing consistently with statutory requirements. Nonetheless, Amendment 10 does not simply continue the measures implemented in Framework 15. New information concerning observed sea turtle takes led to the new biological opinion and incidental take statement, and Amendment 10 implements a number of new management measures for the scallop fishery, including new gear restrictions and an area rotation management program to focus on areas where scallop biomass is highest, prevent overfishing, and minimize bycatch and the overall impact on the essential fish habitat to the extent practicable. As new information regarding sea turtles becomes available, the New England Fishery Management Council will propose actions to mitigate takes. 69 Fed. Reg. 35198. Amendment 10 also includes DAS allocations for the 2004 and 2005 fishing years, which are different than the allocations in Framework 15. In short, the allocations and limitations in the February 2003 biological opinion and Framework 15 are not the same as those in the February 2004 biological opinion and Amendment 10 and involve an entirely new analysis based, at least in significant part, on new factual developments, resulting in different restrictions.
This case matches the pattern in Reid. There, the court found the controversy moot because the challenged regulations had been superseded by new regulations that, while they had the same overall purpose, differed in detail to a sufficient degree that an order invalidating the superseded regulations would not provide effective actual relief to the plaintiff. "A party can have no legally cognizable interest in the outcome of a case if the court is not capable of providing any relief which will redress the alleged injury." Gulf of Maine, 292 F.3d at 88. Whether adjudication of the issues in a case can result in meaningful relief is the "core question" compelled by Article III's requirement of a "case" or "controversy." Conservation Law Found., 360 F.3d at 26.
An injunction against the continued enforcement of Framework 15 would be pointless, since it is no longer in effect, and a declaration that it was unlawfully implemented would be merely advisory. See Reid, 369 F.3d at 624. Things might be different if a ruling invalidating Framework 15 wouldnecessarily imply the invalidity of Amendment 10, but, in light of the differences between the two, both procedural and substantive summarized above, that is not the case. The same is true with respect to the biological opinions.
III. Conclusion
As the challenged agency actions have been superseded and have no continuing effect, Oceana's claims are moot and its motion for summary judgment (docket no. 29) is DENIED. The defendants' and intervenor-defendant's motions for summary judgment (docket nos. 35 and 34, respectively) are GRANTED for the reasons set forth above. Judgment shall enter dismissing the complaint.
It is SO ORDERED.