The Endangered Species Act (ESA) charges the National Marine Fisheries Service (a federal agency) with the duty to “ensure” that any proposed action by the Council does not “jeopardize” any threatened or endangered species. The Steller sea lion is on the list of endangered species. The agency developed a North Pacific marine fishery plan that permitted significant harvest of fish by commercial fisheries in the area. Greenpeace, an environmental group, challenged the agency on the grounds that the plan was not based on a sufficient number of biological studies on the impact of the allowed fishing on the Steller sea lion. Greenpeace’s biologic opinion concluded that the fishery plan would reduce the level of food for the sea lions by about 40 percent to 60 percent, if the juvenile fish were not counted in that figure. Greenpeace’s expert maintained that counting juvenile fish was misleading because they were not capable of reproducing and the government agency’s figure was, as a result, much lower at 22 percent. What would Greenpeace need to show to be successful in challenging the agency’s fishery plan? [Greenpeace, American Oceans Campaign v. National Marine Fisheries Service, 237 F. Supp. 2d 1181 (W.D. Wash.)]

Question

The Endangered Species Act (ESA) charges the National Marine Fisheries Service (a federal agency) with the duty to “ensure” that any proposed action by the Council does not “jeopardize” any threatened or endangered species. The Steller sea lion is on the list of endangered species. The agency developed a North Pacific marine fishery plan that permitted significant harvest of fish by commercial fisheries in the area. Greenpeace, an environmental group, challenged the agency on the grounds that the plan was not based on a sufficient number of biological studies on the impact of the allowed fishing on the Steller sea lion. Greenpeace’s biologic opinion concluded that the fishery plan would reduce the level of food for the sea lions by about 40 percent to 60 percent, if the juvenile fish were not counted in that figure. Greenpeace’s expert maintained that counting juvenile fish was misleading because they were not capable of reproducing and the government agency’s figure was, as a result, much lower at 22 percent. What would Greenpeace need to show to be successful in challenging the agency’s fishery plan? [Greenpeace, American Oceans Campaign v. National Marine Fisheries Service, 237 F. Supp. 2d 1181 (W.D. Wash.)]

Answer 1

To be successful in challenging the agency's fishery plan, Greenpeace would need to show the following:

1. Standing: Greenpeace must establish that it has standing to sue, meaning it has suffered an injury in fact that is fairly traceable to the agency's actions and that can be redressed by a court decision. In this case, Greenpeace would need to show that the agency's fishery plan would directly harm the Steller sea lion, which is on the list of endangered species, and that Greenpeace has a specific interest in protecting the sea lion.

2. Compliance with the ESA: Greenpeace must demonstrate that the National Marine Fisheries Service (NMFS) did not comply with its duty under the Endangered Species Act (ESA) to ensure that the proposed action by the Council does not jeopardize the Steller sea lion. This would involve showing that the fishery plan, which permits significant harvest of fish by commercial fisheries in the area, would actually jeopardize the survival or recovery of the sea lion population.

3. Insufficient Biological Studies: Greenpeace needs to prove that the agency's fishery plan was not based on a sufficient number of biological studies on the impact of allowed fishing on the Steller sea lion. This would involve presenting evidence that the studies conducted by the agency were inadequate or flawed in some way, and that the plan fails to accurately assess the impact of fishing on the sea lion population.

4. Reduction of Food Supply: Greenpeace's biologic opinion claimed that the fishery plan would reduce the level of food for the sea lions by about 40-60% (without counting juvenile fish). To be successful, Greenpeace needs to demonstrate that this reduction in food supply could have a significant negative impact on the sea lions' ability to survive or recover. They would need to present scientific evidence supporting their claim and showing that the agency's own figure of 22% (which includes juvenile fish) is misleading or inaccurate.

In summary, to be successful in challenging the agency's fishery plan, Greenpeace would need to establish standing, show non-compliance with the ESA, demonstrate insufficiency of biological studies, and provide evidence that the reduction in food supply caused by the plan would have a significant negative impact on the Steller sea lion population.