Two separate Ninth Circuit opinions, filed on the same day, offer important lessons for Endangered Species Act watchers. The first one reminded us that Congress can choose to repeal our environmental laws. The second one reminded us why Congress would make such a choice.
In Alliance for the Wild Rockies v. Salazar, the 9th Circuit upheld, as constitutional, Section 1713 of the 2011 Appropriations Act. That historic (or depending upon your perspective, infamous) provision ordered the Secretary of the Interior to remove some distinct population segments of gray wolves from the Endangered Species Act's protections. Attempting to reverse the Congressional decision, the environmental advocacy groups raised separation of powers concerns. In other words, they claimed that while the executive was implementing the issues, and the courts were adjudicating the issues, Congress could not interfere by forcing the court to rule a certain way. But Congress was no so daft. Instead, Section 1713 provides in its entirety as follows:
"Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09–CV–118J and 09–CV–138J on November 18, 2010."
Reading this language, the 9th Circuit recognized that "Congress had changed the law, not told the Court that it should decide the case differently under the same law." Defeat of the separation of powers argument was predictable, based on Supreme Court precedent. Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), considered and upheld the constitutionality of an appropriations provision that 'amended' or changed the applicable environmental laws. Still, even though this constitutional analysis was fairly predictable, Alliance for the Wild Rockies remains noteworthy for its explanation of the course of events that led to the decision:
"Over the last decade, the United States Fish and Wildlife Service (“FWS”) has repeatedly attempted to remove all or parts of the distinct population of gray wolves in the northern Rocky Mountains from the protections of the ESA. These efforts have been struck down by the courts for violating the ESA. See, e.g., Defenders of Wildlife v. Sec’y, U.S. Dep’t of Interior, 354 F. Supp. 2d 1156 (D. Or. 2005); Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160 (D. Mont. 2008). In 2009, the agency issued what is known as the “2009 Rule,” 50 C.F.R. Part 17, 74 Fed. Reg. 15,123. It designated a distinct population of gray wolves in the northern Rocky Mountains and removed ESA protection for all except those in Wyoming. The district court struck down the 2009 Rule as violating the ESA because the statute does not permit partial delisting of a distinct population segment. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010).... Meanwhile, proponents of the 2009 Rule began exploring ways to delist the gray wolves through legislation. These efforts culminated in Section 1713 of the Department of Defense and Full-Year Continuing Appropriations Act of 2011, which the President signed into law on April 15, 2011. Pub. L. 112-10, 125 Stat. 38 (2011). Section 1713 orders the Secretary of the Interior to reissue the 2009 Rule without regard to the ESA and without judicial review."
These eight sentences, summarizing ten years of litigation, hint at the pent up frustration that led to the delisting of an iconic species. Regardless of whether the litigants and jurists were right or wrong, the simple fact was that they repeatedly stymied the executive branch from implementing its policy desires. Congress then made sure that its voice was heard in the process, reforming the implementation of the ESA.
The facts of a contemporaneous Ninth Circuit ruling in Turtle Island Restoration Network v. Department of Commerce seem hauntingly familiar. The effects of the Western Pacific Fishery on sea turtles has been the subject of extensive regulation, and litigation, for a decade -- just like the wolf. See, e.g. Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 940 (9th Cir. 2006). In a Final Rule published in 2009, amended in 2010, and passed after substantial process by and input from the Western Pacific Fishery Management Council, the National Marine Fisheries Service modified applicable Fishery regulations, seeking to optimize the Fishery’s yield without jeopardizing the continued existence of sea turtle species. But after yet another round of litigation with the environmental advocates, the federal defendants' settled the dispute. Over the objections of the longline fishery advocates, the Consent Decree ordered by the U.S. District Court vacated portions of the Final Rule, reinstated lower incidental loggerhead turtle take limits from a 2004 biological opinion, and ordered NMFS to promulgate a new regulation. See 76 Fed. Reg. 13,298 (March 11, 2011)(announcement complying with court order.) As the Ninth Circuit explained, "the practical effect of the district court’s order is not to affect the Final Rule... except to reduce the incidental take limit for loggerhead turtles back to the pre-existing 2004 limits." Or as it explained again, later in the opinion, "the Consent Decree merely temporarily restores the status quo ante pending new agency action and does not promulgate a new substantive rule."
The Ninth Circuit's analysis may be entirely correct, and the Consent Decree, as agreed upon by the federal defendants and the environmental advocates, might be entirely reasonable. But as the longliners argued, the Consent Decree nullified the prior process. Using the Endangered Species Act, the Turtle Island Restoration Network successfully reversed the outcome of the multi-party rulemaking before the fishery management council. Moreover, that is precisely what the ESA intends to do; to serve as last resort for desperate species. So, rejecting the procedural concerns of the longliners, the Ninth Circuit emphasized its preference for empowering the courts to allow parties to settle. Congress and the longliners, however, might view the facts differently, emphasizing the need for the reasonable policy outcomes of rulemaking to be retained. Will we be reading another decision, a few years from now, about an appropriations provision that reverses Turtle Island, and that reinstates the 2009 Final Rule?
History could easily repeat itself -- or at least echo.
Longline fishing for swordfish is called shallow-set fishing because the bait is set at depths of 30 to 90 meters. Inevitably, the fishery will interact with sea turtles, and entangle them in the fishing nets and gear. Closing turtle-rich waters to American fishermen, however, is a poor solution, because other nations continue longline operations without the use of turtle-friendly gear. With an eye towards international advocacy of best fishing practices, NOAA worked with fishermen, gear specialists and academic partners to develop new longline fishing practices. In 2004, to reduce incidental take of sea turtles, new regulations for the longline shallow-set fishery mandated the use of large circle hooks, the use of mackerel-type bait, a limit of 2120 shallow-sets per year, annual turtle incidental take limits of 17 loggerheads and 16 leatherbacks, and 100% observer coverage on every swordfish-vessel fishing. Those rules were amended in 2009 by removing the set limit and increasing the allowable loggerhead interaction hard cap from 17 to 46. On March 14, 2012, the 9th circuit upheld a U.S. District Court order and Consent Decree vacating that 2009 rule. (Photo from NOAA, caption info from Ninth Circuit's Turtle Island opinion.)
Keith W. Rizzardi, a Florida lawyer, teaches at St. Thomas University in Miami Gardens, practices law at Jones Foster Johnston & Stubbs, P.A. in West Palm Beach, and tracks the Endangered Species Act on twitter @ESAlawyer.