WASHINGTON, D.C., May 23, 2019 – Baker Botts client, American Tunaboat Association (“ATA”), which represents the U.S. flag purse seine tuna fishery operating in the western and central Pacific Ocean has filed a motion for summary judgment against the National Marine Fisheries Service (“NMFS”).

This important matter focuses on the right of regulated industries to be involved in the agency’s consultation procedures.  The case centers on NMFS’s widespread practice of using one “programmatic consultation” to consult on the fishery as a whole and, thereafter, impose restrictions prescribed by the biological opinion through permits for all vessels.  This process streamlines consultations, relieving NMFS of the need to conduct a separate consultation for each permit. However, when using a programmatic consultation, NMFS asserts that there are no applicants because it is not consulting on a specific pending permit.  Relying on this position, NMFS has been systematically depriving permit applicants making up entire industries of their invaluable procedural rights under the ESA (e.g., all fisheries, offshore oil and gas exploration, offshore oil and gas development, etc.).

ATA filed suit and sought a preliminary injunction requiring it be deemed an applicant on behalf of its members for NMFS’s ongoing consultation (near completion) for the fishery.  At the hearing, ATA withdrew its injunction request in exchange for an expedited briefing schedule and decision.  Yesterday, Baker Botts filed ATA’s motion for summary judgement, which challenges NMFS’s systematic practice of depriving entire industries of applicant rights, and NMFS’s specific decision refusing to recognize ATA and ATA’s members as applicants.  Baker Botts contends that NMFS’s legal interpretation to support its “programmatic consultation” theory violates the ESA, its implementing regulations, and agency guidance.  Baker Botts also contends that NMFS’s specific decision against ATA is arbitrary and capricious in violation of the Administrative Procedure Act.

To schedule an interview with the lead counsel on this matter, please contact Sheena Cochran.

To read the full summary judgement filed, please click here.

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