## Facts

- Environmental organizations challenged federal management of North Pacific groundfish fisheries off Alaska, an area that overlaps with designated critical habitat for the endangered Steller sea lion.
- The fisheries were managed under Fishery Management Plans (FMPs) and associated measures affecting catch limits and the time-and-area distribution of fishing effort.
- Because the action could affect a listed species and its critical habitat, ESA § 7 required consultation and a biological opinion assessing whether the FMPs and fisheries were likely to jeopardize the species or adversely modify critical habitat.
- After earlier litigation and remands, NMFS issued a revised biological opinion (BiOp2) intended to address ESA compliance for the fisheries.
- Plaintiffs’ remaining ESA claim alleged BiOp2 was legally inadequate because it was not a comprehensive, programmatic opinion coextensive with the FMPs and failed to meaningfully analyze cumulative effects and critical habitat impacts.
- NMFS and industry intervenors sought dismissal or a stay, asserting that reinitiated consultation and preparation of a new opinion made the claim moot or unripe.
- Plaintiffs sought summary judgment declaring BiOp2 unlawful under ESA § 7.

## Issues

1. Whether the challenge to BiOp2 was moot, unripe, or should be stayed because NMFS had reinitiated consultation and was preparing a new biological opinion.
2. Whether ESA § 7 required a comprehensive, programmatic biological opinion coextensive with the FMPs, and whether BiOp2 satisfied that requirement.

## Decision

- The court denied defendants’ and intervenors’ motion to dismiss and request to stay, holding the claim remained justiciable despite reinitiated consultation.
- The court granted plaintiffs’ motion for summary judgment on the ESA claim, holding NMFS failed to prepare a comprehensive biological opinion as required by ESA § 7.
- The court concluded BiOp2 was not coextensive in scope with the FMPs and did not provide the meaningful analysis needed to support a no-jeopardy and no-adverse-modification determination.

## Legal Principles

- ESA § 7 consultation must evaluate the full scope of the relevant agency action; for a long-term, complex management program, the biological opinion must be programmatic and coextensive with the governing plans.
- A biological opinion must contain a meaningful analysis of how the action’s structure and operation (including how catch limits and spatial/temporal fishing patterns are set) affect the listed species and its critical habitat, using the best available scientific data.
- An agency’s reinitiation of consultation does not moot or cure an existing ESA § 7 violation; the agency remains out of compliance until it has an adequate biological opinion supporting continued action.

## Conclusion

The court held that NMFS’s biological opinion for the North Pacific groundfish FMPs failed ESA § 7 because it was not a comprehensive, coextensive, programmatic analysis of effects on the endangered Steller sea lion and its critical habitat, and it rejected the argument that ongoing consultation made the challenge nonjusticiable.


Greenpeace v. Nat’l Marine Fisheries Serv., 80 F. Supp. 2d 1137 (W.D. Wash. 2000)