Turtle Island Restoration Network v. United States Department of Commerce , 438 F.3d 937 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TURTLE ISLAND RESTORATION 
NETWORK; KA ‘IWA KUA LELE;
CENTER FOR BIOLOGICAL DIVERSITY,
Plaintiffs-Appellants,
HAWAII LONGLINE ASSOCIATION,
Intervenor-Appellee, No. 05-15035
v.  D.C. No.
CV-04-00528-DAE
UNITED STATES DEPARTMENT OF
COMMERCE; NATIONAL MARINE OPINION
FISHERIES SERVICE; CARLOS M.
GUTIERREZ, in his official capacity
as Secretary of the Department of
Commerce,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
November 17, 2005—Honolulu, Hawaii
Filed February 21, 2006
Before: Michael Daly Hawkins, M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge McKeown
1791
1794 TURTLE ISLAND RESTORATION v. USDOC
COUNSEL
Paul H. Achitoff and Isaac H. Moriwake, Earthjustice, Hono-
lulu, Hawaii, for the plaintiffs-appellants.
M. Alice Thurston, United States Department of Justice,
Washington, D.C., for the defendants-appellees.
Jeffrey W. Leppo and Laurie K. Beale, Stoel Rives, LLP,
Seattle, Washington, for the defendant-intervenor-appellee.
OPINION
McKEOWN, Circuit Judge:
The question we consider is whether this action is barred by
the thirty-day time limitation in 16 U.S.C. § 1855(f), the judi-
cial review provision of the Magnuson-Stevens Fishery Con-
servation and Management Act of 1976 (“Magnuson Act”),
16 U.S.C. §§ 1801 et seq. Section 1855(f) provides for judi-
cial review of “[r]egulations promulgated” under the Magnu-
son Act, but only if “a petition for such review is filed within
30 days.”
Consistent with its authority under the Magnuson Act, the
National Marine Fisheries Service (“NMFS”) issued regula-
tions reopening the part of the Hawaii-based longline fishery
that targets swordfish (the “swordfish fishery”). See Fisheries
Off West Coast States and in the Western Pacific, 69 Fed.
Reg. 17,329, 17,330 (April 2, 2004). The fishery had been
closed since 2002 due to its impact on endangered sea turtles.
TURTLE ISLAND RESTORATION v. USDOC 1795
Approximately five months after publication of the regula-
tion, the Turtle Island Restoration Network, Ka‘Iwa Lele, and
the Center for Biological Diversity (collectively “Turtle
Island”) filed suit against NMFS, the United States Depart-
ment of Commerce and the Secretary of Commerce (collec-
tively “NMFS”). The Hawaii Longline Association intervened
as a defendant. Turtle Island’s complaint did not reference the
Magnuson Act, but instead alleged violations of the Migratory
Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703-712, the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321-4347, the Endangered Species Act (“ESA”), 16
U.S.C. §§ 1531-1544, and the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 701-706.
The district court denied Turtle Island’s motion for prelimi-
nary injunctive relief and dismissed the complaint for lack of
jurisdiction. We agree with the district court that Turtle
Island’s claims, though “framed . . . in terms of violations of
the APA [and environmental statutes]” were “in actuality . . .
challenge[s] to the reopening of the Fishery.” Because the
claims are appropriately characterized as an attack on the reg-
ulations reopening the fishery, the Magnuson Act’s statute of
limitation applies, and Turtle Island’s petition is barred
because it was filed beyond the thirty-day time limitation.
BACKGROUND
I. THE MAGNUSON ACT
The Magnuson Act established a national program for the
management and conservation of fishery resources. 16 U.S.C.
§ 1801(a). Congress delegated fishery management authority
to the Secretary of Commerce and established Regional Fish-
ery Management Councils (“Councils”) to assist the Secretary
in carrying out these duties. The Councils prepare Fishery
Management Plans and amendments to those plans, which
“contain [ ] conservation and management measures . . . con-
1796 TURTLE ISLAND RESTORATION v. USDOC
sistent with the [Magnuson Act] . . . and any other applicable
law.” § 1853(a).
The Councils may also propose regulations implementing
the Fishery Management Plans or plan amendments, which
NMFS must review for consistency with the Magnuson Act
and “other applicable law.” § 1854(b)(1). If approved, NMFS
publishes such implementing regulations in the Federal Regis-
ter for a public comment period of fifteen to sixty days.
§ 1854(b)(1)(A). NMFS then promulgates final regulations
with an explanation of any differences between the proposed
and final regulations. § 1854(b)(3).
The Magnuson Act provides for judicial review in accor-
dance with the APA of “[r]egulations promulgated by the
Secretary” and “actions that are taken by the Secretary under
regulations which implement a fishery management plan” but
only if “a petition for such review is filed within 30 days
. . . .” § 1855(f).
II. LONGLINE FISHING AND THE REOPENING OF THE
SWORDFISH FISHERY
This dispute concerns the longline fishing of swordfish and
its impact on endangered sea turtles and two species of migra-
tory seabird, the black-footed and Laysan albatross. Longline
fishing involves the use of vessels that trail mainlines up to
sixty miles long. These mainlines are set horizontally near the
water’s surface and generally contain over a thousand baited
hooks. In the course of fishing for swordfish, other species,
including sea turtles and seabirds, can become hooked or “in-
cidentally caught.” This method of fishing swordfish has been
particularly controversial because it results in more incidental
catches than other types of longline fishing because of the
specific gear and techniques used, the shallower depth at
which the longlines are set, and the time of day the fishing
takes place.
TURTLE ISLAND RESTORATION v. USDOC 1797
On April 2, 2004, NMFS promulgated a final rule (“2004
Regulations”) implementing a Fishery Management Plan
amendment recommended by the Western Pacific Fishery
Management Council (“Western Pacific Council”), which is
responsible for fisheries in Hawaii. 16 U.S.C.
§ 1852(a)(1)(H). The 2004 Regulations reopened the sword-
fish fishery, which had been closed by previous regulations.
See Fisheries Off West Coast States and in the Western
Pacific, 69 Fed. Reg. at 17,330. The 2004 Regulations also
restricted the types of bait and hooks that could be used for
swordfish fishing to minimize the adverse impacts on sea tur-
tles. Id.
Regulation of the longline fishing of swordfish has been the
subject of extensive litigation. In fact, the 2004 Regulations
were adopted after previous regulations, which prohibited the
longline fishing of swordfish (the “2002 Regulations”), and
the related biological opinion were vacated and remanded to
NMFS by court order. See Hawaii Longline Ass’n v. Nat’l
Marine Fisheries Serv., 281 F. Supp. 2d 1, 38 (D.D.C. 2003).1
The 2002 Regulations prohibited the longline fishing of
swordfish due to its impact on endangered sea turtles. Follow-
ing the 2003 court order, NMFS commenced the formal rule-
making process that led to the current regulations.2
NMFS had first published a Notice of Intent in December
2003 announcing an “accelerated management action sched-
1
Both Turtle Island and the Hawaii Longline Association were parties
to this litigation. The issuance and subsequent vacating of the 2002 Regu-
lations are discussed at length in the court’s decision in Hawaii Longline
Association.
2
The court stayed the mandate until April 1, 2004, in order to provide
NMFS with reasonable time in which to “issue a new biological opinion,”
and if necessary, “to issue notice under the APA and promulgate regula-
tions amending the Pelagics [Fishery Management Plan].” Hawaii Long-
line Ass’n v. Nat’l Marine Fisheries Serv., 288 F. Supp. 2d 7, 13
(D.D.C. 2003). Until April 1, 2004, the 2002 Regulations “effectively gov-
ern[ed] the Fishery’s activities. Id.1798 TURTLE ISLAND RESTORATION v. USDOC
ule [that] is necessary to avoid a lapse in sea turtle conserva-
tion measures after the June 12, 2002 final rule is vacated on
April 1, 2004.” Under this accelerated schedule, NMFS would
issue two separate supplemental Environmental Impact State-
ments (“SEISs”)—one addressing the fishery’s potential
impact on threatened sea turtle populations, to be completed
first, and another addressing “issues . . . such as seabird inter-
actions,” to be completed later. Notice of Intent, 68 Fed. Reg.
67,640, 67,641 (Dec. 3, 2003).
Upon the recommendation of the Western Pacific Council,
in January 2004, NMFS published a proposed rule that would
“eliminate the prohibition on longline fishing . . . during April
and May,” and require the use of certain bait and hook combi-
nations to reduce sea turtle interactions. See Fisheries Off
West Coast States and in the Western Pacific, 69 Fed. Reg.
4098, 4098 (proposed Jan. 28, 2004). The proposed rule
announced that the consultation process mandated by Section
7 of the ESA was “currently underway,” and that the rule
itself “might be revised, as necessary, to comport with . . . the
biological opinion.” In addition, the proposed rule indicated
that in accordance with NEPA, “the [Western Pacific] Coun-
cil and NMFS prepared a draft [SEIS] . . . for this regulatory
amendment . . . scheduled to be filed . . . in mid-January
2004” for comments. Id. at 4101. The Western Pacific Coun-
cil held a public hearing in February 2004 to receive com-
ments regarding the draft SEIS, Notice of Public Hearing on
Draft SEIS, 69 Fed. Reg. 7188, 7188 (Feb. 13, 2004), and
another public hearing in March 2004 regarding the Fishery
Management Plan amendment, Notice of Public Meetings, 69
Fed. Reg. 11,361, 11,361 (Mar. 10, 2004).
NMFS issued a biological opinion in February 2004, which
concluded that reopening the swordfish fishery to allow a lim-
ited number of sets per year would not likely jeopardize the
continued existence of any ESA listed species, provided that
certain bait and hook combinations were used. The biological
opinion also included an Incidental Take Statement authoriz-
TURTLE ISLAND RESTORATION v. USDOC 1799
ing the fishery to take up to sixteen leatherback and seventeen
loggerhead sea turtles. See Fisheries Off West Coast States
and in the Western Pacific, 69 Fed. Reg. at 17,331.
In early March 2004, the Western Pacific Council issued a
“Regulatory Amendment to the Fishery Management Plan”
and a “Final Supplemental Environmental Impact Statement”
(“Final SEIS”), which supplemented the earlier 2001 EIS
(issued before the 2002 Regulations) and assessed various
alternatives. The Western Pacific Council recommended that
NMFS allow 2,120 swordfish sets to be made annually and
require the use of certain types of hooks and other new tech-
nologies “shown to reduce and mitigate interactions with sea
turtles.”
The Final SEIS focused primarily on the impact of renewed
swordfish fishing on endangered sea turtles and said relatively
little about the potential impact on seabirds.3 This approach
was apparently deliberate, as NMFS was motivated by the
need to implement new regulations by the court-imposed
deadline of April 1, 2004. See Notice of Intent, 68 Fed. Reg.
at 67,641.
On March 30, 2004, NMFS signed a Record of Decision
authorizing the reopening of the swordfish fishery: “The main
element of this action is to establish a swordfish fishery of
limited scale that will permit environmentally responsible
shallow-set swordfish longlining while minimizing impacts
on protected species of sea turtles in the Pacific Ocean.” The
“seabird” SEIS was not issued until May 2005, after Turtle
3
As part of its seabird discussion, the Western Pacific Council proposed
continuing measures that had been recommended in 2000 by the U.S. Fish
and Wildlife Service, but had not been implemented due to the closure of
the swordfish fishery in 2001. These avoidance measures included manda-
tory setting of lines at night to reduce bait visibility and the use of certain
kinds of bait.
1800 TURTLE ISLAND RESTORATION v. USDOC
Island commenced this suit. See Seabird Interaction Mitiga-
tion Methods, 70 Fed. Reg. 24,037, 24,038 (May 6, 2005).4
Turtle Island participated in the formal rulemaking process
before the 2004 Regulations were issued. In a detailed com-
ment letter submitted in February 2004, Turtle Island opined
that “the proposed regulations are completely unlawful. Sub-
stantively, they violate the ESA . . . [and] MBTA . . . while
procedurally the [draft EIS] is inadequate under NEPA.”
III. TURTLE ISLAND’S CLAIMS AND THE DISTRICT COURT
PROCEEDINGS
On August 30, 2004, approximately five months after pub-
lication of the 2004 Regulations, Turtle Island filed suit in the
District of Hawaii seeking declaratory and injunctive relief.
Turtle Island did not seek relief under the Magnuson Act, but
instead alleged that NMFS violated three other statutes,
NEPA, MBTA, and ESA, when it reopened the swordfish
fishery. As the jurisdictional basis for its suit, Turtle Island
invoked 28 U.S.C. § 1331 (federal question); 28 U.S.C.
§§ 2201-02 (declaratory judgment and further relief); and 5
U.S.C. § 706 (the judicial review provision of the APA).
The essence of Turtle Island’s challenge is set out in its
first and second claims for relief, which allege that NMFS
violated NEPA and MBTA by “issuing an amended Fishery
Management Plan for the Pelagic fisheries of the Western
Pacific Region reopening the swordfish fishery and eliminat-
ing the partial ban on tuna longlining,5 by issuing a Record of
4
In its submissions on appeal, NMFS represents that it is “currently pre-
paring a proposed rule, based on this SEIS, to adjust the seabird mitigation
requirements for the Western Pacific longline fisheries.”
5
In addition to reopening the swordfish fishery, the 2004 Regulations
also eliminated the seasonal ban on the longline fishing of tuna in areas
south of the Hawaiian Islands. On appeal, however, Turtle Island’s sub-
missions focus exclusively on the reopening of the swordfish fishery.
Thus, our discussion focuses on the sections of the 2004 Regulations that
address swordfishing.
TURTLE ISLAND RESTORATION v. USDOC 1801
Decision on or about March 30, 2004 to do so, and by issuing
regulations implementing those regulations effective April 2,
2004 . . . in the absence of an adequate [EIS] prepared in
accordance with applicable procedures . . . [and] in the
absence of a valid permit from the U.S. Fish and Wildlife Ser-
vice allowing the take of migratory birds by the longline fish-
ery . . . .” Turtle Island’s third claim for relief alleges that
NMFS’s issuance of the Incidental Take Statement violated
the ESA because it permits takings of sea turtles in the course
of “[l]ongline fishing by the Pelagic Fisheries of the Western
Pacific [which] is unlawful, in that it violates [NEPA and
MBTA].”
The judicial review provision of the APA is the vehicle for
each of Turtle Island’s claims. 5 U.S.C. § 702. Neither NEPA
nor MBTA authorize a private right of action. By contrast, the
ESA contains a citizen suit provision, 16 U.S.C. § 1540(g),
whereby “private parties may enforce the substantive provi-
sions of the ESA . . . .” Bennett v. Spear, 520 U.S. 154, 173
(1997). However, Turtle Island brought its ESA claim under
the APA. See id. at 175 (holding that under § 7 of the ESA,
claims can be brought pursuant to the APA). Although the
APA itself contains no specific statute of limitations, a gen-
eral six-year civil action statute of limitation applies to chal-
lenges under the APA. 28 U.S.C. § 2401(a) (“[E]very civil
action commenced against the United States shall be barred
unless the complaint is filed within six years after the right of
action first accrues.”); Sierra Club v. Penfold, 857 F.2d 1307,
1315 (9th Cir. 1988) (holding that § 2401(a) applies to the
APA). Turtle Island contends that this general six-year limit,
not the thirty-day provision of the Magnuson Act, applies to
its claims.
Turtle Island’s complaint requests a declaratory judgment
that NMFS violated various statutes and an injunction to stop
all longline fishing of swordfish until NMFS complies with
the APA, NEPA, MBTA, and ESA.
1802 TURTLE ISLAND RESTORATION v. USDOC
The district court granted NMFS’s motion to dismiss and
denied Turtle Island’s motion for a preliminary injunction.
The district court determined that its “jurisdiction in this mat-
ter turn[ed] on whether [Turtle Island’s] claims are accurately
characterized as violations of various environmental statutes,
or if . . . [they] are actually attacking the regulation promul-
gated pursuant to the MSA, thus implicating the [thirty-day]
time bar of 16 U.S.C. 1855(f).” The court concluded that Tur-
tle Island’s claims all “flow from the reopening of the Fishery
pursuant to a properly promulgated amendment to the [Fish-
ery Management Plan]. Therefore, judicial review is limited
under 16 U.S.C. § 1855(f) and this Court lacks jurisdiction to
adjudicate this matter.”
ANALYSIS
I. THE MAGNUSON ACT’S JUDICIAL REVIEW PROVISION:
SECTION 1855(f)
[1] Resolution of this case is found in the plain language of
§ 1855(f). When looking to the plain language of a statute,
“we do more than view words or subsections in isolation. We
derive meaning from context, and this requires reading the
relevant statutory provisions as a whole.” Cal. ex rel. Lockyer
v. FERC, 383 F.3d 1006, 1016 (9th Cir. 2004) (internal quota-
tion marks omitted). “ ‘[O]ur task is to construe what Con-
gress has enacted.’ ” Navajo Nation v. Dep’t of Health &
Human Serv., 325 F.3d 1133, 1136 (9th Cir. 2003) (en banc)
(quoting Duncan v. Walker, 533 U.S. 167, 172 (2001)). Sec-
tion 1855(f) provides:
(f) Judicial review.
(1) Regulations promulgated by the Secretary under
this chapter and actions described in paragraph (2)
shall be subject to judicial review to the extent
authorized by, and in accordance with [the APA], if
a petition for such review is filed within 30 days
TURTLE ISLAND RESTORATION v. USDOC 1803
after the date on which the regulations are promul-
gated or the action is published in the Federal Regis-
ter, as applicable; except that—
(A) section 705 of such Title is not appli-
cable, and
(B) the appropriate court shall only set
aside any such regulation on a ground spec-
ified in section 706(2)(A), (B), (C), or (D)
of such Title
...
(4) Upon a motion by the person who files a petition
under this subsection, the appropriate court shall
assign the matter for hearing at the earliest possible
date and shall expedite the matter in every possible
way.
[2] The congressional directive is clear and uncomplicated:
a party seeking judicial review of “[r]egulations promulgated
by the Secretary under the [Magnuson Act]” must do so
within thirty days of their promulgation. § 1855(f)(1). See
Northwest Envtl. Def. Ctr. v. Brennen, 958 F.2d 930, 934 (9th
Cir. 1992) (holding that regulations are “promulgated” within
the meaning of this subsection when published in the Federal
Register).
Provided that a complaint is filed within thirty days, the
court reviews the contested regulations in accordance with the
APA except that § 1855(f)(1)(A) precludes preliminary
injunctive relief, a remedy ordinarily available under the APA.6
6
5 U.S.C. § 705 provides that:
When an agency finds that justice so requires, it may postpone
the effective date of action taken by it, pending judicial review
[and] may issue all necessary and appropriate process to postpone
the effective date of an agency action or to preserve status or
rights pending conclusion of the review proceedings.
1804 TURTLE ISLAND RESTORATION v. USDOC
The statute also limits the grounds for relief. Under
§ 1855(f)(1)(B), a court may only set aside regulations if they
are: arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law, 5 U.S.C. § 706(2)(A); contrary to
constitutional right, power, privilege, or immunity,
§ 706(2)(B); in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right, § 706(2)(C); or without
observance of procedure required by law, § 706(2)(D).
Finally, a party may seek expedited review of the regulations
under 16 U.S.C. § 1855(f)(4).7
II. TURTLE ISLAND’S CHALLENGE TO THE REOPENING OF THE
FISHERY
The plain language of § 1855(f)(1) leaves no room for dis-
cussion: the thirty-day time limit applies whenever a party
challenges “[r]egulations promulgated by the Secretary under
the [Magnuson Act].” See Norbird Fisheries, Inc. v. National
Marine Fisheries Serv., 112 F.3d 414, 416 (9th Cir. 1997)
(“[Section] 1855(f)(1), deprives the district court of jurisdic-
tion to hear an attack on the regulations if review is not sought
within 30 days . . . .”). The question then is whether Turtle
Island’s claims are properly cast as challenges to the regula-
tions.
[3] The essence of Turtle Island’s complaint is not in
dispute—it challenges the reopening of the swordfish fishery.
That opening came about as a result of the regulations pub-
lished on April 2, 2004, yet Turtle Island did not file suit until
almost five months later, well beyond the thirty-day limit.
Turtle Island attempts to gloss over its statute of limitations
problem by assiduously avoiding citation to the Magnuson
Act and instead alleging claims under various other environ-
mental statutes. This effort to circumvent the strict time limits
under the Magnuson Act is to no avail.
7
Congress added the expedited review language in 1990. See Fishery
Conservation Amendments of 1990, 1990 U.S.C.C.A.N. 6276, 6298.
TURTLE ISLAND RESTORATION v. USDOC 1805
[4] To be sure, invocation of the magic words, “the Magnu-
son Act,”8 is not a predicate to application of § 1855(f) if the
substance of the challenge is to the regulations themselves.
Notably, § 1855(f) does not state that challenges “under the
Magnuson Act” must be brought within thirty days, but
instead that judicial review of “[r]egulations promulgated by
the Secretary under the [Magnuson Act]” must be brought
within the stated time limit. (emphasis added).
[5] To allow parties to avoid this limitation through manip-
ulation of form—avoiding mention of the Magnuson Act in
the complaint—while in substance challenging the regula-
tions, would permit parties “through careful pleading . . . [to]
avoid the strict jurisdictional limits imposed by Congress.”
Cal. Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908,
911 (9th Cir. 1989); see Block v. North Dakota, 461 U.S. 273,
285 (1983) (“It would require the suspension of disbelief to
ascribe to Congress the design to allow its careful and thor-
ough remedial scheme to be circumvented by artful pleading.”
(quoting Brown v. GSA, 425 U.S. 820, 833 (1976))). Thus, the
decisive question is whether the regulations are being
attacked, not whether the complaint specifically asserts a vio-
lation of the Magnuson Act.
[6] Turtle Island’s insistence that it is not challenging the
regulations is not convincing, particularly in light of its
motion for preliminary injunctive relief, which seeks to “re-
quir[e] defendants to withdraw their authorization of sword-
fish longlining in the Pelagic fisheries of the Western Pacific,
8
In other cases where we have considered application of the time bar,
the complaint specifically alleged violation of the Magnuson Act, see Nor-
bird, 112 F.3d at 416 (concluding that thirty-day limit barred plaintiff’s
claim that “the regulations violated the Magnuson Act”), or alleged viola-
tion of the Magnuson Act and other statutes, such as NEPA and ESA,
Northwest Environmental, 958 F.2d at 933-34 (concluding that plaintiff’s
claims that “the Regulations violated the Magnuson Act . . . NEPA, and
the Coastal Zone Management Act” were filed within thirty days of pro-
mulgation of the regulations).
1806 TURTLE ISLAND RESTORATION v. USDOC
and enjoin[ ] . . . all longline swordfish fishing activities . . . .”
As the 2004 Regulations are the source of “authorization of
swordfish longlining,” Turtle Island’s challenge cannot credi-
bly be viewed as anything other than an attack on the regula-
tions.
[7] Similarly, an examination of the complaint reveals that
the NEPA and MBTA claims are directed at the regulations
implementing the Fishery Management Plan amendment; the
claims rest on NMFS’s issuance of “an amended Fishery
Management Plan . . . reopening the swordfish fishery . . . a
Record of Decision on or about March 30, 2004 to do so, and
. . . regulations implementing those regulations effective April
2, 2004.” (emphasis added). Although an agency’s issuance of
a Record of Decision under NEPA can constitute a final
agency action reviewable under the APA, see Or. Natural
Res. Council v. Harrell, 52 F.3d 1499, 1503 (9th Cir. 1995),
to the extent that Turtle Island challenges the Record of Deci-
sion here, it does so as a stepping stone to NMFS’s promulga-
tion of regulations reopening the swordfish fishery. Turtle
Island asks us to view its inclusion of the “Record of Deci-
sion” language as a stand alone challenge to agency action,
distinct from the issuance of regulations, but to do so makes
little sense. Turtle Island is really trying to attack and undo
the regulations implementing the Fishery Management Plan
amendment, which reopens the swordfish fishery. The Record
of Decision is the foundation for those regulations and all of
the claims flow from the reopening of the fishery.
[8] Turtle Island’s ESA claim is more convoluted but simi-
larly transparent. The gist of the claim is that because reopen-
ing the swordfish fishery violated NEPA and MBTA, NMFS
violated § 7 of the ESA by permitting the taking of sea turtles
in the course of an otherwise “unlawful” activity. Turtle
Island asserts that this claim, too, is directed at an agency
action—the issuance of an Incidental Take Statement— sepa-
rate and apart from the regulations. But the text of Turtle
TURTLE ISLAND RESTORATION v. USDOC 1807
Island’s complaint tells a different story: the ESA claim is
premised on the issuance of regulations reopening the fishery.
Turtle Island’s real objective is belied by the chronology of
events. NMFS issued the Incidental Take Statement in Febru-
ary 2004, and the fishery was reopened in April 2004. Stand-
ing alone, the Incidental Take Statement did nothing. It
became operational, and allegedly unlawful, only upon the
promulgation of regulations reopening the fishery.
This case is quite similar to Blue Water Fishermen’s Asso-
ciation v. NMFS, 158 F. Supp. 2d 118 (D. Mass. 2001), in
which plaintiffs sought to enjoin regulations that closed cer-
tain areas to longline fishing and claimed that the biological
opinion, upon which the regulations were based, violated § 7
of the ESA. The court determined that the ESA claim was
clearly an attempt to “evade the jurisdictional limitation
imposed” by the Magnuson Act, and that “couching the action
in different statutory language is not a hook which can
remove the prohibitions of the Magnuson-Stevens Act.” Id. at
121-22 (internal citations and quotations omitted).
[9] Stymied by the true nature of its claims, Turtle Island
offers up an alternate way to avoid § 1855(f), arguing that the
thirty-day limitation applies only to purely substantive chal-
lenges to the regulations, not procedural challenges. Nothing
in the statute purports to distinguish between procedural and
substantive challenges to regulations under the Magnuson Act
and we divine no basis for such a dichotomy. Section
1855(f)(1)(B) authorizes a reviewing court to “set aside any
regulation” that is “not in accordance with law,” 5 U.S.C.
§ 706(2)(A), or “without observance of procedure required by
law,” § 706(2)(D) (emphasis added). The sections relating to
Fishery Management Plans, plan amendments, and imple-
menting regulations require compliance with “other applica-
ble law” at each step of the process leading toward the
promulgation of regulations. For example, the Councils are
required to develop Fishery Management Plans and amend-
1808 TURTLE ISLAND RESTORATION v. USDOC
ments which are “consistent with the [Magnuson Act] . . . and
any other applicable law.” 16 U.S.C. § 1853(a). NMFS must
review the Fishery Management Plan, plan amendment or
implementing regulation to ensure consistency with “any
other applicable law.” § 1854(a)(1)(A), (3)(A), (b)(1). Read
together, we conclude that § 1855(f) is not limited to purely
substantive challenges to the regulations, but encompasses
claims that NMFS, in promulgating regulations, violated
“other applicable law,” including procedural statutes.
The notion that jurisdiction under § 1855(f) is contingent
on a substantive/procedural distinction can be traced to a mis-
reading of our decision in Jones v. Gordon, 792 F.2d 821 (9th
Cir. 1986). The plaintiffs in that case alleged that NMFS vio-
lated NEPA by issuing a permit that authorized Sea World to
capture killer whales without prior preparation of an EIS. We
rejected Sea World’s claim that the NEPA challenge, brought
six months after the permit’s issuance, was time barred by the
sixty-day time limit found in the Marine Mammal Protection
Act’s judicial review provision. Id. at 824-25. That provision
stated:
Any applicant for a permit, or any party opposed to
such permit, may obtain judicial review of the terms
and conditions of any permit issued by the Secretary
under this section or of his refusal to issue such a
permit. Such review, which shall be pursuant to
chapter 7 of Title 5, may be initiated by filing a peti-
tion . . . within sixty days after the date on which
such permit is issued or denied.
16 U.S.C. § 1374(d)(6) (emphasis added).
We determined that this provision did “not purport to gov-
ern all challenges to section 104 permits” but rather governed
only “judicial review of the terms and conditions of such per-
mits.” Jones, 792 F.2d at 824 (internal quotations omitted)
(emphasis in original). Given the plain language, the section
TURTLE ISLAND RESTORATION v. USDOC 1809
“applie[d] only to review of the substantive elements of a sec-
tion 104 permit.” Id. (emphasis in original). Because “Jones’s
action d[id] not seek review of the terms and conditions of the
Service’s permit . . . [but] instead alleged that the Service, by
not preparing an environmental impact statement, ha[d] vio-
lated the procedural requirements of NEPA,” the sixty-day
statute of limitation did not apply and the APA established
jurisdiction for the action. Id. (emphasis in original).
Turtle Island misreads Jones—a decision that interprets
language specific to the Marine Mammal Protection Act—too
broadly. Turtle Island attempts to boost its misunderstanding
of Jones with extensive citation to an out of circuit case, Con-
servation Law Foundation v. Mineta, 131 F. Supp. 2d 19, 24
(D.D.C. 2001), which adopts a similar misreading of Jones.
In that case, the court relied on Jones for the general proposi-
tion that plaintiffs raising NEPA-only challenges may always
proceed pursuant to the APA rather than pursuant to a more
limited substantive statute. Id.9 The court considered whether
a claim that NMFS failed to undertake the required NEPA
analysis in enacting a final rule reopening previously closed
areas to scallop-dredging was subject to the Magnuson Act’s
9
Conservation Law Foundation in turn relied on Park County Resource
Council, Inc. v. United States Dep’t of Agric., 817 F.2d 609, 616 (10th Cir.
1987), overruled on other grounds by Village of Los Ranchos de Albu-
querque v. Marsh, 956 F.2d 970 (10th Cir. 1992). In Park County, the
Tenth Circuit considered whether a ninety-day statute of limitation under
the Mineral Lands Leasing Act, 30 U.S.C. § 226-2 (1982), applied to a
NEPA challenge that “happen[ed] to involve an oil and gas lease.” 817
F.2d at 616. Despite the broad wording of the jurisdictional provision in
that case—“No action contesting a decision of the Secretary involving any
oil and gas lease shall be maintained unless such action is commenced . . .
within ninety days”—the court nonetheless determined that the statute was
inapplicable to a “NEPA challenge to the issuance of an oil and gas lease
on federal forest land without prior preparation of an EIS.” Id. at 616-17
(citing § 226-2) (emphasis added). Yet again, in another misapplication of
Jones, the court held that because NEPA challenges are procedural in
nature, they were not controlled by the Mineral Lands Leasing Act’s stat-
ute of limitation. Id.
1810 TURTLE ISLAND RESTORATION v. USDOC
thirty-day time bar. Rather than interpreting the relevant statu-
tory language, the court in Conservation Law Foundation
cited Jones and determined that as a general rule, “plaintiffs
raising NEPA-only challenges may proceed pursuant to the
APA, which has no time limitation, rather than pursuant to a
more limited substantive statute.” Id. (internal citations omit-
ted). The analysis in Conservation Law Foundation is mis-
taken, as our conclusion in Jones flowed not from any general
proposition about NEPA but from a plain reading of the
MMPA’s jurisdictional provision. Here, too, it is the language
of the specific jurisdictional statute, the Magnuson Act, that
controls.
The structure of the Magnuson Act is consistent with this
reading of the time limit. That such a limited window for judi-
cial review exists specifically with respect to regulations
makes sense in light of 16 U.S.C. §§ 1852-1854, which estab-
lish a highly detailed and public process leading up to the
adoption of regulations. See Tutein v. Daley, 43 F. Supp. 2d
113, 124 (D. Mass. 1999) (“The entire subchapter is an
extremely well-drawn statute with interconnected sections and
subsections setting forth a definite path leading to judicial
review.”). For example, each Council is required to “conduct
public hearings . . . so as to allow all interested persons an
opportunity to be heard in the development of fishery man-
agement plans and amendments to such plans . . . .”
§ 1852(h)(3). As soon as the Council transmits a Fishery
Management Plan or plan amendment to NMFS, it must “im-
mediately publish in the Federal Register a notice stating that
the plan or amendment is available and that written informa-
tion, views, or comments of interested persons . . . may be
submitted to the Secretary during the 60-day period.”
§ 1854(a). Similarly, upon the Secretary’s approval, the regu-
lations must be published in the Federal Register for a public
comment period of up to sixty days. § 1854(b). If the Council
fails to develop a necessary Fishery Management Plan or plan
amendment, or if the Secretary disapproves of the Council’s
plan, the Secretary is “given authority to prepare such plan or
TURTLE ISLAND RESTORATION v. USDOC 1811
amendment” but must “conduct public hearings . . . so as to
allow interested persons an opportunity to be heard in the
preparation and amendment of the plan and any regulations
implementing the plan.” § 1854(c).
In addition, the statute sets forth specific time periods for
each step in this process, from the development of Fishery
Management Plans, plan amendments and implementing reg-
ulations, to review and publication, and to the promulgation
of final regulations. See 16 U.S.C. §§ 1854(a)-(c). Clearly, in
crafting the thirty-day limitation for challenges to regulations,
Congress intended to “carve out . . . a specific exception for
this particular type of claim.” Cal. Save Our Streams, 887
F.2d at 911 (citation omitted). The Magnuson Act’s high level
of specificity does not evince congressional intent to allow
other, more general statutes of limitation to be transplanted or
imported, and thus spoil this fine-tuned scheme. It seems
unlikely that Congress would have constructed this well-oiled
machine, which anticipates compliance with other applicable
environmental statutes, and yet intended its path to be so eas-
ily sidestepped.
Finally, three key aspects of § 1855(f)—the thirty-day time
limitation, the bar on preliminary injunctive relief, and the
provision for expedited review—demonstrate Congress’s
intent to ensure that regulations promulgated under the
Magnuson Act are effectuated without interruption and that
challenges are resolved swiftly. This concern for timely
implementation of regulations comports with one of the pri-
mary purposes of the Magnuson Act: “to provide for the prep-
aration and implementation . . . of fishery management plans
which will achieve and maintain, on a continuing basis, the
optimum yield from each fishery.” § 1801(b) (emphasis
added).
The facts of this case provide a telling illustration of how
the process should and does work. In developing a plan
amendment, the Western Pacific Council conducted public
1812 TURTLE ISLAND RESTORATION v. USDOC
hearings that were open to Turtle Island and other interested
parties. NMFS published a proposed rule, which included
information regarding the agency’s efforts to comply with
other applicable law, including drafting an EIS pursuant to
NEPA and a biological opinion pursuant to § 7 of the ESA.
In the months leading up to issuance of the 2004 Regulations,
Turtle Island provided extensive comments, raising several of
the arguments that later formed the basis of its complaint—
i.e. that the proposed regulations substantively violated ESA
and MBTA, and procedurally the EIS was inadequate under
NEPA. When the regulations were promulgated at the end of
the process, Turtle Island was in prime position to seek judi-
cial review.
Turtle Island urges that applying § 1855(f) to the types of
claims it raised would eliminate effective enforcement of
environmental laws in commercial fisheries, virtually exempt-
ing them from judicial oversight. The sky, however, is not
falling. Section 1855(f) applies only to a very specific class
of claims—those that clearly challenge regulations promul-
gated under the Magnuson Act. This regime would not, as
Turtle Island suggests, affect every claim that may arise later.
For example, the regulatory challenge limitation would not
encompass claims that NMFS failed to reinitiate consultation
when the taking specified in the Incidental Take Statement is
exceeded or a new species is listed or “new information
reveals effects of the action that may affect listed species . . .
to an extent not previously considered” in the biological opin-
ion. 50 C.F.R. 402.16. Similarly, NEPA imposes a continuing
duty to supplement an existing EIS in response to “significant
new circumstances or information relevant to environmental
concerns bearing on the proposed action or its impacts.”
Marsh v. Or. Natural Res. Council, 490 U.S. 360, 372 (1989)
(quoting 40 C.F.R. § 1502.9(c)). We do not intend these
examples to serve as an exhaustive list, but rather as illustra-
tive of the many claims left untouched by § 1855(f).
[10] We conclude that Turtle Island’s claims are a chal-
lenge to the regulations reopening the swordfish fishery.
TURTLE ISLAND RESTORATION v. USDOC 1813
Accordingly, the thirty-day time limitation of § 1855(f)
applies and we affirm the district court’s dismissal of Turtle
Island’s complaint.
AFFIRMED.