Case summaries.

• Position: P. 569-598 - Case overview

1. Turtle Island Restoration Network v. U.S. Department of State, 673 F.3d 914 (9th Cir. 2012).

   Turtle Island filed suit against the United States Department of State (DOS), alleging that it failed to meet obligations under the National Environmental Policy Act (NEPA) (1) and the Endangered Species Act (ESA). (2) Turtle Island alleged that the DOS's annual certifications of countries exempted from the general ban on shrimp imports failed to comply with NEPA because the DOS failed to prepare an environmental impact statement and failed to provide public notice. Turtle Island alleged that the DOS also violated the ESA because it failed to consult with other agencies in confirming that the certifications would not jeopardize threatened and endangered species or their habitats. Turtle Island Restoration Network (Turtle Island) appealed the United States District Court for the Northern District of California's decision to dismiss on res judicata grounds. The Ninth Circuit affirmed the district court's decision.

   Commercial fishing trawl nets are a primary threat to sea turtles because turtles often become trapped in these nets and drown. Recognizing the insufficiency of domestic efforts alone, Congress enacted a law, (3) that prohibits shrimp imports harvested in ways that may adversely affect sea turtles. Section 609 certifies countries that employ turtle protection programs, which then enables those countries to export shrimp to the United States.

   Pursuant to section 609(b), the President promulgated guidelines for the certification process through the DOS. (4) In the early 1990s, Earth Island Institute (EII), of which Turtle Island was formally a part, sued the DOS. The suit claimed that the promulgated guidelines conflicted with section 609(b)(2) because they restricted the geographical scope of the ban and failed to evaluate the actual take of sea turtles in certified countries. (5) The Court of International Trade (CIT) found that the DOS had inappropriately restricted the geographical area to which the ban applied. The DOS then amended section 609(b)(2) to permit shipment-by-shipment importation from uncertified countries. EII and Turtle Island sued again, (6) claiming that the new provision violated the amended section. The CIT sided with Turtle Island, but the federal circuit reversed, allowing the 1999 guidelines' interpretation of the statute. (7)

   In this case, Turtle Island alleged that the DOS had not complied with its NEPA and ESA obligations. The DOS asserted that Turtle Island was barred by res judicata (8) because of the two previous suits. The Ninth Circuit considered whether there was an identity of claims based on four factors. (9) Here, the court focused on the final factor--whether the suits arose out of the "same transactional nucleus of facts" because the claims involved technically different legal claims than Turtle Island's previous suits. The court examined if the suits were related by the same nucleus of facts and if the suits could be tried together convenlently. (10)

   The Ninth Circuit first analyzed whether the claim could have been brought in the previous actions. While a plaintiff need not bring every possible claim, all claims arising from the same factual circumstances must be brought at once, or be barred later. Turtle Island conceded that it could have brought the NEPA and ESA claims in the earlier suits. However, it had chosen to work with the DOS to alternatively resolve the dispute. The court dismissed alternative resolution as a valid defense to res judicata.

   Turtle Island attempted to distinguish this suit from previous suits by arguing that it was challenging the 2009 certification decisions, which Turtle Island could not have known about in previous litigation. The Ninth Circuit noted that Turtle Island mentioned the 2009 certifications only to provide an example of DOS non-compliance with NEPA and ESA. The court ultimately concluded that Turtle Island's claims were so vague that it could bring a new. claim every year against DOS.

   The Ninth Circuit opined that while this litigation was about the certification process and not the guidelines, the guidelines do not operate independently. Turtle Island viewed the guidelines as noncompliant with section 609(b)(2) because of the potential harm to sea turtles. The court found that the suit's purpose was to prompt NEPA and ESA compliance in the certification process so as to protect sea turtles. The court noted that Turtle Island has standing because it was pursuing more than just procedural harm.

   Turtle Island also argued that the claims could not be precluded because the new claims involved different conduct. Turtle Island attempted to separate the actions of promulgating guidelines from the certification process. (11) The Ninth Circuit opined that while the two actions were procedurally different, they both arose from the government's regulation of shrimp imports to encourage turtle-safe shrimp harvesting, and were not sufficiently different to defeat res judicata.

   The Ninth Circuit affirmed the decision of the district court, but noted that because the legal question of NEPA and ESA compliance to section 609(b)(2) had not been litigated on the merits, another plaintiff not in privity with Turtle Island could still bring suit.

2. Turtle Island Restoration Network v. U.S. Department of Commerce, 672 F.3d 1160 (9th Cir. 2012).

   The Hawaii Longline Association (Longliners) challenged the United States District Court for the District of Hawaii's vacatur of a regulation that increased the annual allowable incidental takes of loggerhead turtles by shallow-set longline fishers. The district court's decision allowed more incidental takes than previously allowed. (12) The vacatur was consistent with the terms of a consent decree between Plaintiff-Appellants (Turtle Island) (13) and Defendant-Appellees (Federal Agencies). (14) The United States Court of Appeals for the Ninth Circuit held that the Consent Decree made no substantive changes to regulations and therefore was not subject to the Magnuson-Stevens Fishery Conservation Act (Magnuson Act) (15) or the Administrative Procedure Act (APA) (16) procedural requirements. It also held that the district court did not clearly err in finding that the new regulations were more protective of turtles.

   Over the last decade, considerable litigation has accompanied Federal Agencies' efforts to regulate the shallow-set longliner fishery in the Western Pacific Region. In this case, Turtle Island challenged a regulation concerning the annual number of allowable loggerhead and leatherback sea turtle incidental takes by Longliners. (17) To resolve this challenge, Turtle Island and Federal Agencies agreed to a Joint Motion to Enter Stipulated Injunction as an Order of the Court that dismissed all claims with prejudice. The district court approved the motion as a consent decree despite the objection of Longliners. The Consent Decree reduced the incidental take limit for loggerhead turtles from forty-six back to seventeen, the 2004 limit. (18)

   The Ninth Circuit first established jurisdiction under 28 U.S.C. [section] 1292(a)(1) because the Consent Decree effectively functioned as an injunction. (19) The court reviewed the district court's decision for abuse of discretion.

   Longliners first argued that the Consent Decree violated the Magnuson Act's procedural requirements for adopting new regulations. (20) The Ninth Circuit determined it did not need to reach the question of how statutory procedural requirements attach to judicial acts like the Consent Decree because the Consent Decree did not promulgate a new substantive regulation, was temporary and merely restored pre-existing limits which were created subject to the Magnuson Act's procedural requirements in 2004. (21) Instead, the Ninth Circuit focused its inquiry on whether the Magnuson Act halted Turtle Island and Federal Agencies' capacity to settle litigation. The Ninth Circuit found no preclusion of consent decrees in the Magnuson Act or its legislative history. (22) Noting the value of consent decrees as settlement tools for federal agencies, the Ninth Circuit allowed the Consent Decree to stand.

   Longliners also argued that the Consent Decree violated procedural requirements of the APA. First, the court found that there was no "undoing" of a rule without meaningful comment because Turtle Island's repeal was motivated by the same concerns as in initial rulemaking. (23) Second, the court dismissed the argument that the Consent Decree impermissibly modified substantive regulatory rules. It restated that because federal agencies did not create a new substantive rule, the APA did not apply. Third, it found that the APA does not prohibit voluntary reconsideration of regulations without reinitiation of the consultation process. (24) The Ninth Circuit upheld the district court findings that neither the Magnuson Act nor the APA procedural requirements barred implementation of the Consent Decree in this case.

   Finally, Longliners challenged the district court's finding that preexisting incidental take limits were more protective of loggerhead turtles. (25) Longliners argued that the evidence showed increased takings were statistically and biologically insignificant to the total population of turtles and could actually benefit turtle populations because of "market transfer effects." (26) The Ninth Circuit found no clear error regarding the district court's findings and found a logical basis for the conclusion that a reduced take would increase protections for turtles.

   In sum, after the Ninth Circuit asserted jurisdiction under 28 U.S.C. [section] 1292(a)(1), it held that the rulemaking provisions of the Magnuson Act and procedural requirements of the APA do not apply to the Consent Decree because the Consent Decree does not make substantive changes to fishery regulations. It also held that there was no clear error in the district court's more...