Federal Circuit Affirms Dismissal of Tuna Challenge

Defenders of Wildlife v. Hogarth, 330 F.3d 1358 (Fed. Cir. 2003).

Stephanie Showalter, J.D., M.S.E.L.

A recent decision by the Federal Circuit, affirming the Court of International Trade’s 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 Rule’s 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 agency’s Environmental Assessment resulted in a finding of no significant impact.5 The plaintiffs claimed the environmental assessment was defective and that the agency’s 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.

ENDNOTES
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 added).
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. § 1501.4 (2003).