EARTH ISLAND INSTITUTE, et al., Plaintiffs,
v.
DONALD EVANS, et al., Defendants.

Conclusion of the Summary Judgement

Judge Thelton E Henderson
US District Court for the Northern District of California 9aug04

V. CONCLUSION

As Defendants emphasize, the final finding is the culmination of an entirely distinct proceeding from the initial finding. This is certainly correct in that the agency amassed a much larger body of information during the intervening years, developed a new decision process, and made the final finding with the benefit of the Ninth Circuit’s decision in Brower II, 257 F.3d 1058. As the above discussion reveals, however, Defendants failed to heed the fundamental teachings of Brower II. As a result, the Secretary’s final finding is little more than a reprisal of the agency’s past errors. First, Brower II expressly warned the agency that it could not – as in the case of the initial finding – drag its feet on Congressionally mandated research, and then invoke a lack of evidence on the very subject of the research to justify removing a form of protection for a depleted species, Defendants have repeated this same error. As detailed above in Part IV(A), the agency, without compelling justification, again failed to come even close to completing the necropsy study, despite the fact that it was a key stress study mandated by Congress – and despite the agency’s concession in 1999 that critical data on stress would need to await completion of the necropsy sampling program. Indeed, Defendants admit that their failure to obtain even 10 percent of the minimum required necropsy samples precluded “meaningful and reliable scientific insights” from this critical study.

And while Defendants vigorously dispute that the Secretary “defaulted” to a finding of no significant adverse impact based on insufficient evidence, the final finding speaks for itself. As discussed in Part IV(B)(3) and (4), the Secretary’s discussion in the final finding of the indirect stress effects of the fishery not only repeatedly emphasizes the insufficiency of the evidence, and the need for additional research in order to more conclusively evaluate the indirect effects of the fishery, but it also relies exclusively on these points to conclude that the indirect effects are not sufficient to cause a significant adverse impact.

Second, Brower II expressly held that the applicable standard – the best available scientific evidence – does not demand conclusive evidence and is intended to give “‘the benefit of the doubt to the species.’” Brower II, 257 F.3d at 1070. Thus, findings in the marine mammal conservation area must often be made based on incomplete data. Id. After applying this standard in Brower II, the court concluded that the Secretary had abused his discretion because all of the best scientific evidence that was available, while not conclusive, indicated that dolphins were adversely impacted by the fishery. Id. at 1071.

Here again, the best available scientific evidence, while not conclusive, is all suggestive that the fishery is having a significant adverse impact. As discussed in Part IV(B), the evidence indicates that (1) the dolphin stocks are still severely depleted and are not recovering despite extremely low reported mortality rates, (2) that their recovery is being risked or appreciably delayed, (3) that changes to the ecosystem are unlikely to explain this phenomena, and (4) that indirect effects from the fishery can plausibly account for the lack of recovery. In short, virtually all of the best available evidence again points toward the fishery as the cause of the dolphin’s failure to recover – a conclusion shared by NMFS scientists in an internal briefing prepared for the Secretary in December 2002. Yet Defendants again dismiss much of this evidence because it is not “conclusive” despite the teachings of Brower II.

Finally, as detailed in Part IV(C), Brower II explicitly held that the Secretary could not base his finding on larger policy objectives but instead must heed Congress’ directive to yield to the science. Yet the record convincingly demonstrates that the Secretary nonetheless proceeded to sacrifice the integrity of the decision-making process by disregarding the best available scientific evidence in favor of political and diplomatic considerations.

Given all of the above, the Court finds that Plaintiffs have amply met their burden of demonstrating that (1) the Secretary’s offered explanation for its decision runs counter to the evidence before the agency and (2) the agency relied on facts which Congress did not intend it to consider. Brower II, 257 F.3d at 1065. Accordingly, the Court finds that the Secretary’s final finding is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).

The Secretary argues that, in the event the Court sets aside his final finding, that the matter should be remanded to him for further proceedings. Plaintiffs, on the other hand, contend that the Court should remand with specific directions. While the more typical course would be a remand for further proceedings, the Court agrees with Plaintiffs that this is not a typical case. Rather, the fact that Defendants have repeatedly failed to heed both Congress’ intent and the teachings of the appellate court leads this Court to conclude that a remand for further proceedings would be futile in this case. Further, the deadline for making the final finding has passed, and the record as of December 31, 2002 is complete. While Congress could in the future direct the agency to undertake and consider specific additional research after the December 31, 2002 deadline, the IDCPA does not make any such provisions. Accordingly, the Court concludes that this is one of the rare cases in which a remand with specific directions is appropriate. See generally Sierra Club v. United States Envt’l Protection Agency, 346 F.3d 955, 963 (9th Cir. 2003) (remanding with instructions when court failed to see how further administrative proceedings would serve a useful purpose, record was fully developed, and conclusions that must follow from it were clear).

Accordingly, and good cause appearing, it is HEREBY ORDERED that:

(1) Defendants’ Motion for Summary Judgment is DENIED.

(2) Plaintiffs’ Motion for Summary Judgment is GRANTED.

(3) The December 31, 2002 final finding of the Secretary that the “intentional deployment on or encirclement of dolphins with purse seine nets is not having a significant adverse effect on any depleted dolphin stock in the [Eastern Tropical Pacific ocean],” set forth in 68 Fed. Reg. 2010, 2011 (Jan. 15, 2003) pursuant to the Dolphin Protection Consumer Information Act, 16 U.S.C. § 1385(g)(2) is declared arbitrary, capricious, an abuse of discretion and contrary to law pursuant to the Administrative Procedures Act, 5 U.S.C. § 706(2). Accordingly, “dolphin safe” shall continue to mean that “no tuna were caught on the trip in which such tuna were harvested using a purse seine net intentionally deployed on or to encircle dolphins, and that no dolphins were killed or seriously injured during the sets in which the tuna were caught,” as defined in 16 U.S.C. § 1385(h)(2).

IT IS FURTHER ORDERED that Defendants Donald Evans, Secretary of Commerce, and William T. Hogarth, Assistant Administrator of Fisheries, National Marine Fisheries Services, and their agents, servants, employees, successors, and those in active concert or participation with them, shall not allow any tuna product sold in the United States to be labeled as “dolphin safe” that does not meet the aforesaid statutory definition. Defendants shall immediately notify all appropriate government personnel and enforcement agencies, including but not limited to, the United States Customs Service, the Federal Trade Commission, and the United States Department of State.

IT IS SO ORDERED.

Dated: August 9, 2004

/s/

THELTON E. HENDERSON
UNITED STATES DISTRICT JUDGE

source: http://www.cand.uscourts.gov/cand/judges.nsf/10694162f102c55d88256d480060b719/0cc0b8a1a7cec9a888256eed006f32eb/$FILE/SUMMARY%20JUDGMENT%20ORD.pdf 14aug04