Document Type

Case Note


In Hawaii Longline Ass'n v. National Marine Fisheries Service, the Hawaii Longline Association (HLA), a fishery trade association, filed suit seeking an injunction to prohibit the National Marine Fisheries Service (NMFS) from excluding it from participating in formal consultations pursuant to the Endangered Species Act (ESA) and to prevent NMFS from withholding a draft biological opinion. The U.S. District Court for the District of Columbia held that the NMFS' interpretation of the regulation it had authored, which defines HLA's applicant status, was a post-hoc rationalization and therefore undeserving of substantial deference by the court. On the parties cross-motions for partial summary judgment, the court granted in part and denied in part HLA's motion for partial summary judgment and denied NMFS motion for partial summary judgment. The principal issue was whether HLA should be considered an applicant under the ESA, entitling HLA to participate in consultation proceedings with NMFS. The NMFS, who was conducting a biological assessment, contended that HLA was not entitled to participate in the consultation process. By challenging NMFS' interpretation, HLA invited the court to determine whether NMFS' interpretation of its own consultation regulation, found at 50 C.F.R. § 402 and issued jointly by NMFS and the U.S. Fish and Wildlife Service (USFWS), was unreasonable. The issue of regulatory interpretation required the court to examine a host of deference standards in order to decide whether it should substitute its judgment for that of the Agency's. Unfortunately, resolution of the substantive issue in the case, which was whether the longline fishing practices of HLA's members were contributing to the "decline in populations of four species of threatened or endangered sea turtles, was being delayed by litigation over regulatory ambiguities. The question now becomes, in situations dealing with species teetering on the edge of extinction, does litigation over ESA regulatory ambiguities do injustice to both the conservation interests and the economic interests involved? And secondly, if it does, what can be done to improve how the ESA is promulgated, administered and enforced? This Note considers whether changes should be made to the ESA that would clarify ambiguities that are raised by this case and other vague regulations promulgated by NMFS and USFWS that may present similar interpretation problems in the future. This Note contends that it is common, appropriate and often efficient for Congress to leave to agencies the job of promulgating the detailed regulations used to implement a statute, but that such an approach may not be desirable with respect to the ESA. Regulatory ambiguities within the ESA can cause endless litigation, uncertainty for all the parties involved as well as overburden federal agencies who are working with finite resources. After reviewing the development of the ESA, the significance of the ESA, and the judicial review of administrative actions, this Note concludes that the regulatory ambiguities presented by this case need to be clarified in order to avoid diluting the effectiveness of such important preservation legislation as the ESA.



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