## Facts

- Plaintiffs (environmental organizations) challenged federal management of commercial lobster and bottomfish fisheries in the Northwestern Hawaiian Islands (NWHI), habitat for the endangered Hawaiian monk seal.
- The National Marine Fisheries Service (NMFS), within the Department of Commerce, managed the fisheries under fishery management plans and issued Biological Opinions (BiOps) addressing impacts on the monk seal.
- A 1996 BiOp for the lobster fishery concluded the fishery would not jeopardize the monk seal, while acknowledging lobsters were a prey species and despite record evidence of declining lobster stocks and evidence suggesting dietary dependence.
- For the bottomfish fishery, NMFS BiOps since at least 1986 recognized monk seal injuries or deaths associated with fishing operations (takings), yet plaintiffs alleged NMFS failed to implement measures sufficient to prevent ongoing take.
- Plaintiffs sought summary judgment and a permanent injunction, alleging violations of the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA).
- Defendants cross-moved for summary judgment; commercial lobster permit holders intervened to oppose plaintiffs’ requested relief.

## Issues

1. Whether NMFS violated ESA § 7 in its consultation and 1996 BiOp for the NWHI lobster fishery by failing to use the best scientific and commercial data available and by understating risk to the monk seal.
2. Whether NMFS violated the ESA in connection with the NWHI bottomfish fishery by allowing known monk seal take without adequate mitigation and compliant consultation measures.
3. Whether NMFS complied with NEPA’s requirements to take a hard look at environmental impacts and consider appropriate analyses and alternatives for the fisheries.
4. What permanent injunctive relief, if any, was warranted to remedy established statutory violations.

## Decision

- The court granted in part and denied in part plaintiffs’ motion for summary judgment and granted in part and denied in part defendants’ cross-motion.
- The court held NMFS violated the ESA and NEPA as to the NWHI lobster fishery; the 1996 BiOp and related actions were arbitrary and capricious under the APA.
- The court found ESA/NEPA violations in part as to the bottomfish fishery but declined to shut it down entirely, ordering narrower relief.
- The court granted in part plaintiffs’ request for a permanent injunction, permanently enjoining operation of the NWHI lobster fishery until NMFS achieved ESA and NEPA compliance.

## Legal Principles

- ESA § 7 requires the action agency to ensure actions are not likely to jeopardize listed species or adversely modify critical habitat, using the best scientific and commercial data available.
- An agency acts arbitrarily and capriciously under the APA when it fails to consider relevant factors, ignores significant record evidence, or does not rationally connect facts found to decisions made.
- NEPA requires an agency to take a hard look at environmental consequences and to prepare or supplement environmental analysis when new information or changed circumstances materially affect the impacts analysis.
- Injunctive relief in ESA/NEPA cases may be tailored to the scope of proven violations and the record of harm, including full cessation of an activity where ongoing noncompliance threatens a listed species.

## Conclusion

The court set aside NMFS’s lobster-fishery approvals as inconsistent with ESA and NEPA and permanently enjoined lobster fishing in the NWHI until lawful consultation and environmental review were completed, while ordering more limited relief for the bottomfish fishery based on mixed findings and the evidentiary record.


Greenpeace Found. v. Mineta, 122 F. Supp. 2d 1123 (D. Haw. 2000)