ELR Citation: ELR 20639
No(s). 91-36062 (9th Cir. Dec 29, 1992)

The court, after reviewing the National Marine Fisheries Service's (NMFS') determination not to prepare an environmental impact statement (EIS) under the National Environmental Policy Act before setting pollock fishing limits and considering their consequent impacts on Steller sea lions, a threatened species" under the Endangered Species Act (ESA), upholds the secretary of commerce and the NMFS' not to prepare an EIS. First, the court concludes that the action, which challenges the secretary's decision to approve the 1991 total allowable catch (TAC) for pollock without the production of an EIS, is not moot. The issue of whether the secretary has adequately examined the effects of pollock fishing on the Steller sea lion is likely to recur in future years, and the challenged TAC was only in effect for less than one year, which is too short a time to allow full litigation before TAC ceased. Addressing the district court's decision to uphold the NMFS' decision not to prepare an EIS, the court first holds that review of an agency's initial determination not to prepare an EIS, made after considerable agency review of a project's environmental impact, is governed by the arbitrary and capricious standard. The court then holds that the NMFS' conclusions are clearly based on substantial, though not dispositive, scientific data. To set aside the NMFS' determination would require the court to decide that the views of the plaintiff's experts have more merit than those of the agency's experts. In addition, although the NMFS was uncertain about the potential efficacy of emergency management measures to protect the Steller sea lions' food supply, the measures were carefully considered, based on evidence from scientific studies, and appear reasonably designed to protect the Steller sea lion. The court also rejects the plaintiff's claim that the NMFS failed to take a "hard look" at the impact of pollock fishing on other species in the Gulf of Alaska, in particular the harbor seal. The other species were not threatened or endangered; there is a lack of available data on those species, and the NMFS' assumption that its analyses of the Steller sea lion could be applied to the harbor seal is reasonable. Finally, the court holds that the NMFS has fulfilled its procedural and substantive obligations under ESA §7. The secretary acted within his discretion in choosing the data on which to rely and adequately supported his conclusion that the management measures would mitigate any potential harm to the Steller sea lion caused by pollock fishing.

Counsel for Plaintiff-Appellant
Victor M. Sher
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants-Appellees
J. Carol Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Intervenor-Appellee
Stephen M. White, Ass't Attorney General
Attorney General's Office
P.O. Box 110300, Juneau AK 99811
(907) 465-3600

Counsel for Defendants-Intervenors-Appellees
Michael T. Thomas
Robertson, Monagle & Eastaugh
2300 Clarendon Blvd., Ste. 1010, Arlington VA 22201
(703) 527-4414

Before: HALL, O'SCANNLAIN, and LEAVY, Circuit Judges.