Greenpeace v. National Marine Fisheries Service: Steller Sea Lions and Commercial Fisheries in the North Pacific

• Citation: Vol. 21
• Publication year: 2004

§ 21 Alaska L. Rev. 1. GREENPEACE V. NATIONAL MARINE FISHERIES SERVICE: STELLER SEA LIONS AND COMMERCIAL FISHERIES IN THE NORTH PACIFIC

Alaska Law Review
Volume 21
Cited: 21 Alaska L. Rev. 1

GREENPEACE V. NATIONAL MARINE FISHERIES SERVICE: STELLER SEA LIONS AND COMMERCIAL FISHERIES IN THE NORTH PACIFIC

JERRY MCBEATH(fn*)

I. INTRODUCTION

II. GOVERNANCE OF THE FISHERIES

A. Federal Legislation

B. Regulatory Regime

III. CHALLENGES TO THE FISHERIES

IV. ANALYSIS OF JUDICIAL DECISIONS

A. Greenpeace v. National Marine Fisheries Service (I)

B. Greenpeace v. National Marine Fisheries Service (II)

C. Greenpeace v. National Marine Fisheries Service (III)

D. Greenpeace v. National Marine Fisheries Service (IV)

V. CONCLUSION

FOOTNOTES

The waters off of Alaska hold one of the richest fisheries in the world. However, it is also home to the Steller sea lion, a large marine mammal whose numbers have declined precipitously in the last several decades. The Steller sea lion was listed as an endangered species in 1990. Despite this action, fishing continues to encroach on the animal's habitat which environmentalists argue is a major reason for their decline. As a result, in 1998, Greenpeace and a number of other environmental organizations brought suit challenging the agency regulations governing the fisheries encroaching on the Stellar sea lions' habitat. In litigation spanning six years and four trials before the District Court for the Western District of Washington, while faced with intervenors spanning various interests in the fishing industry, Greenpeace eventually succeeded in shaping agency policy to better suit the needs of the endangered mammal.

I. INTRODUCTION

This article examines a specific instance of the use of science in developing governmental protection for an endangered species. It concerns the series of litigation entitled Greenpeace v. National Marine Fisheries Service, ^[1] presenting a conservationist challenge to [*pg 2] agency protection of Steller sea lions. The Greenpeace decisions did not establish new law via judicial interpretation of existing endangered species law. Rather, the decisions applied the pioneering statutes of the American environmental protection movement to the complex issues of a complex fishery. By doing so, this case has established a precedent that will likely be used to evaluate future challenges to biodiversity in the North Pacific ecosystem.

The Steller sea lion ("SSL") is a marine mammal estimated to have originated between three and four million years ago. ^[2] The vast North Pacific ecosystem, including the Bering Sea/Aleutian Islands and Gulf of Alaska waters, make up the SSL's natural habitat. ^[3] The world's largest population of SSL occupies the North Pacific. ^[4] While in the 1950s that population numbered in excess of 240,000, the species declined by almost ninety percent in the 1970s. ^[5] [*pg 3] As a result, in 1990, the species was listed under the U.S. Endangered Species Act ("ESA") ^[6] as threatened. Moreover, in 1997, the western stock of SSL, whose numbers have declined more radically than the eastern population, which is actually now increasing slightly, was listed as endangered in 1997. ^[7]

Marine scientists propose several hypotheses to explain the decline of the SSL population including: (1) nutritional stress, i.e., competition between SSL and fisheries for prey; (2) climate shift; (3) predators, e.g., killer whales; (4) contaminants; (5) disease; (6) incidental take by fishermen; and (7) hunting by Alaska Natives. ^[8] However, no definitive cause of SSL decline has been established. Nonetheless, it has been determined that the decline coincides with development and growth of industrialized groundfish fisheries, which target the same prey species that SSL principally use for survival -- pollock, Atka mackerel, and Pacific cod. During the 1980s and 1990s, these fisheries, which collectively harvested more than four-billion pounds of fish annually, ^[9] became increasingly concentrated in the critical habitat designated for the endangered SSL's western population.

The National Marine Fisheries Service ("NMFS"), an office of the National Oceanographic and Atmospheric Administration in the U.S. Department of Commerce, is the federal agency responsible both for managing the groundfish fishery and for protecting the SSL. ^[10] In 1998, Greenpeace, American Oceans Campaign, and the Sierra Club accused NMFS of failing to prevent jeopardy to the SSL and failing to protect its critical habitat. ^[11] They brought a civil action against NMFS in the U.S. District Court for the Western [*pg 4] District of Washington. ^[12] Greenpeace challenged the agency's biological opinions in evaluating the interactions between these industrialized fisheries and the declining SSL population. ^[13] This challenge effectively made the federal court, and Judge Thomas S. Zilly, the arbiter of fishery policy.

This article proceeds in three parts. First, it identifies the relevant endangered species law and agencies regulating fisheries management and the SSL habitat. Second, it examines the key aspects of the Greenpeace litigation: protesters who challenged management of the North Pacific fisheries, the interests they seek to protect, the authorities their challenge implicated, and the specific issues arising from their challenge. It also discusses the parties whose interests have been served by the status quo and who intervened in the legal challenges, as well as the specific issues arising from the defense of the fisheries. Third, the article examines how Judge Zilly made his quartet of decisions: Greenpeace v. NMFS (hereinafter "Greenpeace I") ^[14] in 1999, Greenpeace v. NMFS (hereinafter "Greenpeace II") ^[15] in January 2000, Greenpeace v. NMFS (hereinafter "Greenpeace III") ^[16] in July 2000, and Greenpeace v. NMFS (hereinafter "Greenpeace IV") ^[17] in December 2002. Examining the evidence presented in the cases and the factors most influential in shaping Judge Zilly's decisions casts light on the status of marine mammal conservation in the North Pacific.

II. GOVERNANCE OF THE FISHERIES

In many respects, the Steller sea lion case is representative of recent national and global campaigns to protect biodiversity. ^[18] This endangered species is an ancient mega-fauna, whose elimination would threaten not only ecosystem diversity, but also important symbolic values. The apparent human threat to the species is the efficient groundfish trawl fishery, with an annual business volume in excess of $1 billion. ^[19] Those defending the species are environ-[*pg 5] mental organizations with local and global connections, which campaign persuasively for a sustainable and ecologically diverse future.

A. Federal Legislation

The National Environmental Policy Act ("NEPA") ^[20] was the first comprehensive environmental legislation enacted in the United States. ^[21] At its heart, it requires that before any major federal action is taken that would significantly affect the quality of the environment, an environmental impact statement must be completed. ^[22] The impact statement must comprehensively examine potential effects of the action on the environment and clearly specify alternatives, with their environmental effects. ^[23] Courts have treated NEPA as procedural legislation and typically have not required federal agencies to produce specific substantive outcomes, so long as alternatives are carefully considered. ^[24] NEPA was one subject of the Greenpeace challenge because NMFS authorizes fisheries in the federal waters of the North Pacific, ^[25] and these fisheries have adverse environmental effects. Greenpeace specifically cited NMFS for violating NEPA by not preparing a comprehensive supplemental environmental impact statement nearly twenty years following its initial impact statements in 1978 and 1981, while the fishery and environment had experienced significant transformations. ^[26]

The most significant legislation affecting the management of the SSL is the Endangered Species Act of 1973 ("ESA"). ^[27] Congress enacted ESA

to provide a means whereby ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be ap-[*pg 6] propriate to achieve the purposes of treaties and conventions set forth in subsection (a) of this section. ^[28]

ESA outlines a management process to provide for listing and protection of threatened and endangered species, ^[29] which begins with an individual or group petition to the relevant agency. ^[30]

Once a species is listed as threatened or endangered, the agency organizes a recovery team and develops a recovery plan to outline the potential causes of population decline with recommendations to promote species recovery. ^[31] Section 4(3) of ESA requires that a "critical habitat" be designated within one year of the listing, ^[32] defining "critical habitat" as "the specific areas within the geographic area occupied by the species [that is] . . . essential to the conservation of the species and [that] may require special management considerations or protection." ^[33] It may include an area that is not currently occupied by a species, but that will be needed for its recovery. ^[34] After a critical habitat has been designated, which occurred for the SSL in 1993, ^[35] more...