Circuit Affirms Dismissal of Tuna Challenge
of Wildlife v. Hogarth, 330 F.3d 1358 (Fed. Cir. 2003).
Showalter, J.D., M.S.E.L.
A recent decision
by the Federal Circuit, affirming the Court of International Trades
dismissal of a challenge to a NOAA Fisheries Interim-Final Rule, is
the latest development in a three year court battle to protect dolphins
in the Eastern Tropical Pacific.1 In 1999, without
preparing an environmental impact statement (EIS), NOAA Fisheries published
an Interim-Final Rule implementing the International Dolphin Conservation
Program Act (IDCPA). Plaintiffs challenged the Rules provision
relating to the timeframe for commencement of backdown procedures2
and the lack of an EIS.
The Interim-Final Rule requires backdown procedures be completed
no later than one-half hour after sundown.3 The
IDCPA, however, requires the procedures to commence no later than thirty
minutes before sundown.4 The Federal Circuit held that
even though the Interim-Final Rule directly conflicts with the IDCPA,
NOAA Fisheries is authorized to alter the IDCPA requirements in certain
circumstances. Because the International Agreement establishing the
International Dolphin Conservation Program requires the procedures be
completed no later than one-half hour after sundown, the agency had
the authority to alter the IDCPA to comply with the International Agreement.
NOAA Fisheries did not prepare an EIS because the agencys Environmental
Assessment resulted in a finding of no significant impact.5 The plaintiffs claimed the environmental assessment was defective and
that the agencys decision not to prepare an EIS was arbitrary
and capricious. Both the Court of International Trade and the Federal
Circuit disagreed and held that the agency adequately evaluated the
dolphin mortality problem, the impacts of the Interim-Final Rule, and
several alternatives on the dolphins and the environment. NOAA Fisheries,
therefore, complied with the National Environmental Policy Act and did
not act in an arbitrary or capricious manner in adopting its rule.
1. For a detailed analysis of the decision of the Court
of International Trade, see Takamatsu, International Court Dismisses
Latest Tuna Challenge, 21: 4 Water Log 11 (2001).
2. A backdown procedure is the process undertaken
by a vessel at the conclusion of a set of a purse seine
net on a school of tuna, in which the majority of the net is hauled
back on board and the boat is put into reverse. This eases the tension
in the net and lowers it below the water line, allowing any trapped
dolphins to escape.
3. 50 C.F.R. § 216.24(c)(6)(iii) (2003) (emphasis
4. 16 U.S.C. § 1413 (2003).
5. An agency need not prepare an EIS, if it has made
a FONSI (finding of no significant impact) determination and stated
the reasons why the proposed action is insignificant. 40 C.F.R. §