Turtle Island Restoration Network v. DOC

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Plaintiffs filed suit challenging the NMFS's decision allowing a Hawaii-based swordfish fishery to increase its fishing efforts, which may result in the unintentional deaths of endangered sea turtles. Plaintiffs also challenged the FWS's decision to issue "special purpose" permit to the NMFS, which authorizes the fishery to incidentally kill migratory birds. The Ninth Circuit held that the FWS's grant of an incidental take permit to the NMFS in reliance on the special purpose permit provision in 50 C.F.R. 21.27 was arbitrary and capricious because the FWS's interpretation of section 21.27 did not conform to either the Migratory Bird Treaty Act's (MBTA) conservation intent or the plain language of the regulation. Therefore, the panel reversed the district court's grant of summary judgment affirming the FWS's decision to issue the permit. The panel also held that NMFS's 2012 BiOp's on jeopardy finding as to the loggerhead sea turtles was arbitrary and capricious because the scientific data suggested that the loggerhead population would significantly decline, and the agency failed to sufficiently explain the discrepancy in its opinion and the record evidence. Therefore, the panel reversed the district court's grant of summary judgment upholding this portion of the BiOp. The panel otherwise affirmed the district court's grant of summary judgment to defendants. View "Turtle Island Restoration Network v. DOC" on Justia Law