Flaherty v. Bryson , 850 F. Supp. 2d 38 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL S. FLAHERTY, et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 11-660 (GK)
:
JOHN BRYSON,1 in his official :
capacity as Secretary of the :
Department of Commerce, et al., :
:
Defendants. :
MEMORANDUM OPINION
Plaintiffs Michael S. Flaherty, Captain Alan A. Hastbacka, and
the Ocean River Institute bring this suit against Defendants
Commerce Secretary Gary Locke, the National Oceanic and Atmospheric
Administration (“NOAA”), and the National Marine Fisheries Service
(“NMFS”). Plaintiffs allege that Amendment 4 to the Atlantic
Herring Fishery Management Plan violates the Magnuson-Stevens
Fishery Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801
et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321 et seq., and the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 702 et seq.
This matter is now before the Court on Cross-Motions for
Summary Judgment [Dkt. Nos. 17, 19]. Upon consideration of the
Motions, Oppositions, Replies, Oral Argument, Supplemental Briefs,
1
Secretary Bryson is substituted for Gary Locke pursuant to
Federal Rule of Civil Procedure 25(d).
the entire record herein, and for the reasons stated below,
Plaintiffs’ Motion for Summary Judgment is granted in part and
denied in part and Defendants’ Motion for Summary Judgment is
granted in part and denied in part.
I. BACKGROUND
A. Statutory Background
1. The Magnuson-Stevens Act
Congress first enacted the MSA in 1976 “to take immediate
action to conserve and manage the fishery resources found off the
coasts of the United States.” 16 U.S.C. § 1801(b)(1). The Act
provides a “national program” designed “to prevent overfishing, to
rebuild overfished stocks, to insure conservation, to facilitate
long-term protection of essential fish habitats, and to realize the
full potential of the Nation’s fishery resources.” Id. §
1801(a)(6).
In order to balance the need for “a cohesive national policy
and the protection of state interests,” the MSA establishes eight
Regional Fishery Management Councils composed of federal officials,
state officials, and private parties appointed by the Secretary of
Commerce. C&W Fish Co. v. Fox, 931 F.2d 1556, 1557 (D.C. Cir.
1991); 16 U.S.C. § 1852. These councils are responsible for
developing fishery management plans (“FMPs”) for fisheries in
federal waters within the United States Exclusive Economic Zone,
2
which includes ocean water from three to two hundred miles
offshore. Id. § 1853.
Each council must prepare and submit to NMFS2 an FMP and any
amendments that may become necessary “for each fishery under its
authority that requires conservation and management.” Id. §
1852(h)(1). FMPs must include the “conservation and management
measures” that are “necessary and appropriate for the conservation
and management of the fishery, to prevent overfishing and rebuild
overfished stocks, and to protect, restore, and promote the long-
term health and stability of the fishery.”3 Id. § 1853(a)(1)(A).
2
The Secretary of the Department of Commerce has delegated
the authority and stewardship duties of fisheries management under
the MSA to NMFS, an agency within the Department. Compl. ¶ 13. On
behalf of the Secretary, NMFS reviews FMPs and FMP amendments and
issues implementing regulations. Id.
3
The Act defines “conservation and management” as:
all of the rules, regulations, conditions,
methods, and other measures (A) which are
required to rebuild, restore, or maintain, and
which are useful in rebuilding, restoring, or
maintaining, any fishery resource and the
marine environment; and (B) which are designed
to assure that–
(i) a supply of food and other products
may be taken, and that recreational benefits
may be obtained, on a continuing basis;
(ii) irreversible or long-term adverse
effects on fishery resources and the marine
environment are avoided; and
(iii) there will be a multiplicity of
options available with respect to future uses
(continued...)
3
FMPs must also be consistent with the ten “National Standards”
provided for in the MSA, as well as all other provisions of the
MSA, and “any other applicable law.” Id. § 1853(a)(1)(C);
see also id. § 1851 (setting forth National Standards).
Once a council has developed a plan, NMFS must review the plan
to determine whether it comports with the ten National Standards
and other applicable law. Id. § 1854(a)(1)(A). Next, after a period
of notice and comment, NMFS must “approve, disapprove, or partially
approve a plan or amendment,” depending on whether the plan or
amendment is consistent with the Standards and applicable law. Id.
§ 1854(a)(3). Even if NMFS disapproves the proposed FMP or
amendment, it may not rewrite it. That responsibility remains with
the council, except under specifically defined circumstances. Id.
§§ 1854(a)(4), (c). If NMFS approves the plan or does not express
disapproval within 30 days, the FMP becomes effective. Id. §
1854(a)(3).
At the beginning of 2007, Congress re-authorized and amended
the MSA. Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006 (“MSRA”), P.L. 109-479, 120 Stat. 3575
(2007). One of the goals of the MSRA was to “set[] a firm deadline
to end overfishing in America.” 2007 U.S.C.C.A.N. S83, S83. To
3
(...continued)
of these resources.
16 U.S.C. § 1802(5).
4
accomplish this purpose, Congress added provisions to the MSA
calling for science based limits on total fish caught in each
fishery.
The amended MSA requires the regional councils to add to all
FMPs mechanisms for setting the limits, termed Annual Catch Limits
(“ACLs”), on the amount of fish caught and accountability measures
(“AMs”) for ensuring compliance with the ACLs. 16 U.S.C. §
1853(a)(15). These limits and accountability measures must take
effect “in fishing year 2011” for most fisheries, including the
Atlantic herring fishery.4 Pub. L. No. 109-479, § 104(b), 120 Stat.
3575, 3584.
2. The National Environmental Policy Act
Congress enacted NEPA in order “to use all practicable means,
consistent with other essential considerations of national policy,
to improve and coordinate Federal plans, functions, programs, and
resources to the end that the Nation may . . . fulfill the
responsibilities of each generation as trustee of the environment
for succeeding generations.” 42 U.S.C. § 4331(b). To accomplish
that goal, NEPA requires all federal agencies to prepare an
4
The MSRA sets an earlier deadline of “fishing year 2010 for
fisheries determined by [NMFS] to be subject to overfishing.” Pub.
L. No. 109-479, § 104(b), 120 Stat. 3575, 3584. The statute defines
“overfishing” or “overfished” as “a rate or level of fishing
mortality that jeopardizes the capacity of a fishery to produce the
maximum sustainable yield on a continuing basis.” 16 U.S.C. §
1802(34). NMFS has not determined the Atlantic herring fishery to
be overfished.
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Environmental Impact Statement (“EIS”) whenever they propose “major
Federal actions significantly affecting the quality of the human
environment.” Id. § 4332(2)(C).
To determine whether an EIS must be prepared, the agency must
first prepare an environmental assessment (“EA”). 40 C.F.R. §
1501.4(b). An EA must “[b]riefly provide sufficient evidence and
analysis for determining whether to prepare an environmental impact
statement or a finding of no significant impact.” Id. § 1508.9(a).
Even if the agency performs only an EA, it must still briefly
discuss the need for the proposal, the alternatives, and the
environmental impacts of the proposed action and the alternatives.
Id. § 1508.9(b). If the agency determines, after preparing an EA,
that a full EIS is not necessary, it must prepare a Finding of No
Significant Impact (“FONSI”) setting forth the reasons why the
action will not have a significant impact on the environment. Id.
§§ 1501.4(e), 1508.13.
B. Factual Background
Plaintiffs challenge Amendment 4 to the Atlantic Herring
Fishery Management Plan, developed by the New England Fishery
Management Council (the “Council”). 76 Fed. Reg. 11373 (Mar. 2,
2011). Atlantic herring (Clupea harengus) have been managed through
the Atlantic Herring FMP since January 10, 2001. Administrative
Record (“AR”) 5578.
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Atlantic herring inhabit the Atlantic Ocean off of the East
coast of the United States and Canada, ranging from North Carolina
to the Canadian Maritime Provinces. Id. at 6091. Atlantic herring
can grow to about 15.6 inches in length and live 15-18 years. Id.
at 6092. Atlantic herring play a vital role in the Northwest
Atlantic ecosystem, serving as a “forage species,” i.e. food, for
a number of other fish, marine mammals, and seabirds. Id. at 6111.
Human beings also hunt Atlantic herring. Fishermen and women
predominantly catch Atlantic herring using midwater trawl gear,
paired midwater trawls, and purse seines. AR 6146. To do this,
boats working alone or in tandem drag nets through the water
scooping up fish as they go. Not surprisingly, these nets snare
large numbers of other fish and marine wildlife at the same time.
Id. at 6146-48, 6170-80.
Of particular concern to Plaintiffs are four species, often
caught incidentally with Atlantic herring, collectively referred to
as “river herring”: (1) blueback herring (Alosa aestivalis), (2)
alewive (Alosa pseudoharengus), (3) American shad (Alosa
sapidissima), and (4) hickory shad (Alosa mediocris). See Pls.’
Mot. 1. River herring are apparently so-called because they are
anadromous--that is, they spawn in rivers but otherwise spend most
of their lives at sea, whereas Atlantic herring spend their entire
lives at sea. Id. It is undisputed that river herring play a
similar role to Atlantic herring, providing forage for large fish
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and mammals, including cod, striped bass, bluefin tuna, sharks,
marine mammals, and seabirds. Id. at 1, 8; see also AR 763-64. The
Atlantic Herring Fishery Management Plan, as updated by Amendment
4, provides ACLS and AMs for Atlantic herring but not for river
herring.
C. Procedural Background
On May 8, 2008, NMFS published a Notice of Intent, announcing
that the Council would be preparing Amendment 4 to the Atlantic
Herring FMP as well as an Environmental Impact Statement. AR 5577.
The Notice explained that the MSRA required that ACLs and AMs be
established by 2011 for all fisheries not subject to overfishing.
Id. at 5578. Because the Atlantic herring fishery had not been
determined to be subject to overfishing, Amendment 4 was “necessary
to update the Herring FMP in a manner . . . consistent with the new
requirements of the MSRA” and was required to be in place by 2011.
Id.
The Notice also indicated measures under consideration by the
Council. Specifically, the Notice stated that Amendment 4 might
address as many as five objectives:
1. To implement measures to improve the
long-term monitoring of catch (landings
and bycatch) in the herring fishery;
2. To implement ACLs and AMs consistent with
the MSRA;
3. To implement other management measures as
necessary to ensure compliance with the
new provisions of the MSRA;
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4. To develop a sector allocation process or
other LAPP [“Limited Access Privilege
Program”] for the herring fishery; and
5. In the context of objectives 1–4 (above),
to consider the health of the herring
resource and the important role of
herring as a forage fish and a predator
fish throughout its range.
Id.
However, on December 28, 2009, NMFS and the Council changed
course. At that time, NMFS issued a second Notice of Intent
explaining that “only the ACL/AM components will move forward as
Amendment 4, and that the Council intends to prepare EA for the
action.” Id. at 5640-41. In addition, “[a]ll other proposed
measures formerly included in Amendment 4, including the catch
monitoring program for the herring fishery, measures to address
river herring bycatch, criteria for midwater trawl access to
groundfish closed areas, and measures to address interactions with
the mackerel fishery, will now be considered in Amendment 5.” Id.
at 5641. The Notice also promised that those “measures will be
analyzed in an EIS” to be issued with Amendment 5. Id.
In short, the Government dropped from Amendment 4 any attempt
to add protections for fish other than the Atlantic herring, such
as the river herring of concern to Plaintiffs in this litigation,
electing only to address Atlantic herring ACLs and AMs.
On March 2, 2011, NMFS published Amendment 4 as a Final Rule
in the Federal Register. Id. at 6325. In keeping with the December
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28, 2009 Notice of Intent, Amendment 4 designated Atlantic herring
as the only “stock in the fishery” and did not provide for any
measures specifically targeted at protecting river herring. Id. at
6326. The Final Rule implemented an Interim Acceptable Biological
Catch (“ABC”) Control Rule for Atlantic herring, from which ACLs
could then be determined. Id. at 6327. The Final Rule also
established three AMs: (1) when a threshold amount of Atlantic
herring is caught, NMFS is to close relevant management areas; (2)
if a certain amount of haddock is incidentally caught, vessels are
to face restrictions; and (3) if the total amount of Atlantic
herring caught in a year exceeds any ACL or sub-ACL, the ACL or
sub-ACL is to be reduced by a corresponding amount in the year
after the calculation is made. Id.
On April 1, 2011, Plaintiffs filed their Complaint [Dkt. No.
1]. Plaintiffs allege that: (1) Defendants violated the MSA and APA
by failing to include catch limits for river herring in Amendment
4; (2) Defendants violated the MSA and APA by failing to set
adequate ACLs for Atlantic herring in Amendment 4; (3) Defendants
violated the MSA and APA by failing to set adequate AMs for
Atlantic herring in Amendment 4; and (4) Defendants violated NEPA
by failing to develop an EIS for Amendment 4. Compl. ¶¶ 70-113.
On September 9, 2011, Plaintiffs filed their Motion for
Summary Judgment (“Pls.’ Mot.”) [Dkt. No. 17]. On October 7, 2011,
Defendants filed their Opposition to Plaintiffs’ Motion and Cross-
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Motion for Summary Judgment (“Defs.’ Mot.”) [Dkt. No. 19]. On
October 28, 2011, Plaintiffs filed their Reply to Defendants’
Opposition and Opposition to Defendants’ Motion (“Pls.’ Reply”)
[Dkt. No. 20]. On November 18, 2011, Defendants filed their Reply
to Plaintiffs’ Opposition (“Defs.’ Reply”) [Dkt. 22]. On January 4,
2012, oral argument on the cross-motions was heard by this Court.
On January 11, 2012, with the Court’s permission, Defendants and
Plaintiffs filed respective Supplemental Memoranda (“Defs.’ Supp.
Mem.” and “Pls.’ Supp. Mem.”) [Dkt. Nos. 27 and 28].
II. STANDARD OF REVIEW
Summary judgment will be granted when there is no genuine
issue as to any material fact. See Fed. R. Civ. P. 56(c). Because
this case involves a challenge to a final administrative decision,
the Court’s review on summary judgment is limited to the
Administrative Record. Holy Land Found. for Relief and Dev. v.
Ashcroft, 333 F.3d 156, 160 (D.C. Cir. 2003) (citing Camp v. Pitts,
411 U.S. 138, 142 (1973)); Richards v. INS, 554 F.2d 1173, 1177
(D.C. Cir. 1977) (“Summary judgment is an appropriate procedure for
resolving a challenge to a federal agency’s administrative decision
when review is based upon the administrative record.”).
Agency decisions under the Magnuson-Stevens Act and NEPA are
reviewed pursuant to Section 706(2) of the APA. 16 U.S.C. §
1855(f)(1)(B) (“the appropriate court shall only set aside” actions
under the MSA “on a ground specified in [5 U.S.C. §§] 706(2)(A),
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(B), (C), or (D).”); Oceana, Inc. v. Locke, ___F.3d___, No. 10-
5299, 2011 WL 2802989, at *2 (D.C. Cir. July 19, 2011); C&W Fish,
931 F.2d at 1562; Oceana v. Locke, ___F. Supp. 2d___, No. 10-744
(JEB), 2011 WL 6357795, at *8 (D.D.C. Dec. 20, 2011). In relevant
part, 5 U.S.C. § 706(2) requires a court to hold agency action
unlawful if it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.”
The arbitrary and capricious standard of the APA is a narrow
standard of review. Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971). It is well established in our
Circuit that the “court’s review is . . . highly deferential” and
“we are ‘not to substitute [our] judgment for that of the agency’
but must ‘consider whether the decision was based on a
consideration of the relevant factors and whether there has been a
clear error of judgment.’” Bloch v. Powell, 348 F.3d 1060, 1070
(D.C. Cir. 2003) (quoting S. Co. Servs., Inc. v. FCC, 313 F.3d 574,
579-80 (D.C. Cir. 2002)); see also United States v. Paddack, 825
F.2d 504, 514 (D.C. Cir. 1987). However, this deferential standard
cannot permit courts “merely to rubber stamp agency actions,” NRDC
v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000), nor be used to shield
the agency’s decision from undergoing a “thorough, probing, in-
depth review.” Midtec Paper Corp. v. United States, 857 F.2d 1487,
1499 (D.C. Cir. 1988) (internal citations and quotations omitted).
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An agency satisfies the arbitrary and capricious standard if
it “examine[s] the relevant data and articulate[s] a satisfactory
explanation for its action including a ‘rational connection between
the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962));
Lichoulas v. FERC, 606 F.3d 769, 775 (D.C. Cir. 2010). Finally,
courts “do not defer to the agency’s conclusory or unsupported
suppositions.” McDonnell Douglas Corp. v. U.S. Dep’t of the Air
Force, 375 F.3d 1182, 1186-87 (D.C. Cir. 2004).
III. ANALYSIS
A. Standing
Defendants argue that Plaintiffs’ suit must be dismissed
because they lack Article III standing. Defs.’ Mot. 13-15. The
doctrine of standing reflects Article III’s “fundamental
limitation” of federal jurisdiction to actual cases and
controversies. Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009). The doctrine “requires federal courts to satisfy themselves
that ‘the plaintiff has alleged such a personal stake in the
outcome of the controversy as to warrant his [or her] invocation of
federal-court jurisdiction.’” Id. (quoting Warth v. Seldin, 422
U.S. 490, 498-99 (1975)) (emphasis on “his” in original).
To obtain the injunctive relief they seek, Plaintiffs must
show that (1) they have “suffered an ‘injury in fact’ that is (a)
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concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to
the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by
a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., 528 U.S. 167, 180-81 (2000); see also Summers, 555 U.S. at
493; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992);
Shays v. FEC, 414 F.3d 76, 83 (D.C. Cir. 2005). Defendants contend
that Plaintiffs have failed to demonstrate that their alleged
injury is “imminent” or “traceable.” Defs.’ Mot. 13. They have not
challenged any of the other requirements for standing.
1. Injury in Fact--Imminence
Plaintiffs claim that they are harmed (1) because they are
unable to fish for or observe river herring and (2) because, due to
the decline of river and Atlantic herring as forage, they are less
able to fish for or observe striped bass. Flaherty Decl. ¶¶ 2, 4-5,
12-13; Hastbacka Decl. ¶¶ 6-9, 14-16; Moir Decl. ¶¶ 14, 16-17 [Dkt.
No. 17-2]. Defendants argue that the injury associated with striped
bass is not actual or imminent because Plaintiffs have failed to
assert that they are “actually unable to fish for striped bass as
a result of NMFS’ actions.” Defs.’ Mot. 13 (emphasis in original).
Defendants are incorrect. Captain Alan Hastbacka has asserted
that the fish his clients target, which include striped bass, are
“more abundant, bigger, and healthier” when “there are adequate
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forage fish” and that he can “sell more tackle . . . when the
fishing is good.” Hastbacka Decl. ¶ 6. During at least one fishing
season, the fish targeted by Captain Hastbacka and his clients,
including striped bass, disappeared when the Atlantic herring stock
in the area was depleted. Id. ¶ 9. Michael Flaherty similarly
states that “Defendants’ failures challenged in this case . . .
negatively impact the health and population levels of the striped
bass I fish for.” Flaherty Decl. ¶ 12.
In other words, Plaintiffs claim that their ability to fish
striped bass for sport or business has been, and will continue to
be, harmed by the state of the Atlantic herring fishery because
adequate conservation measures to protect the herring upon which
striped bass feed have not been adopted. See, e.g., N.C. Fisheries
Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 82 (D.D.C. 2007)
(economic harm “is a canonical example of injury in fact sufficient
to establish standing.”) (citing Nat’l Wildlife Fed’n v. Hodel, 839
F.2d 694, 704 (D.C. Cir. 1988)).
Indeed, Defendants themselves have amply made the point that
Atlantic herring serve as an important forage species for striped
bass and other ocean predators. AR 6111. In its analysis of
Amendment 4, the Council stated that its actions “should
acknowledge the role that Atlantic herring plays in the Northwest
Atlantic ecosystem and address the importance of herring as a
forage species for many fish stocks, marine mammals, and seabirds.”
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Id. According to the Council, “[o]ne of the objectives of this
amendment . . . is . . . to consider the health of the herring
resource and the important role of herring as a forage fish.” Id.
at 6111-12. Hence, there is no doubt that Plaintiffs face imminent
harm to their interests in striped bass, should Defendants fail to
properly manage Atlantic herring.
Defendants attempt to analogize this case to FCC v. Branton,
993 F.2d 906 (D.C. Cir. 1993). They argue that, “[a]s in Branton,
where the plaintiff did not have standing because his injury was
based on a possibility that he may someday be exposed to harm,
Captain Hastbacka’s concern that he may ‘someday’ be unable to fish
for striped bass as a result of the actions that NMFS took in
Amendment 4 is patently insufficient to satisfy the ‘injury in
fact’ requirement.” Defs.’ Mot. 13-14.
Defendants’ analysis is not convincing. Branton pointed out
that “[i]n order to challenge official conduct one must show that
one ‘has sustained or is immediately in danger of sustaining some
direct injury’ in fact as a result of that conduct.” 993 F.2d at
908 (quoting Golden v. Zwickler, 394 U.S. 103, 109 (1969)). The
plaintiff in Branton alleged “that he was injured because he was
subjected to indecent language over the airwaves” on one past
occasion. Id. at 909. Our Court of Appeals held that “a discrete,
past injury cannot establish the standing of a complainant . . .
who seeks neither damages nor other relief for that harm, but
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instead requests the imposition of a sanction in the hope of
influencing another’s future behavior.” Id. The allegation of a
single incident of indecent language is obviously very different
from the ongoing scenario presented here, where Plaintiffs state
that the striped bass which they and their clients fish and observe
are now and will in the future be threatened by overfishing of the
Atlantic and river herring.
Plaintiffs in this case have alleged continuous and ongoing
harm to their ability to fish for species dependant on the Atlantic
and river herring. The harm to striped bass stemming from improper
regulation of forage fish presents a concrete explanation for how
Plaintiffs will be injured by Defendants’ actions. Lujan, 504 U.S.
at 564; N.C. Fisheries Ass’n, 518 F. Supp. 2d at 81 (in addressing
the injury in fact prong, “courts ask simply whether the plaintiff
has ‘asserted a present or expected injury that is legally
cognizable and non-negligible.’”) (quoting Huddy v. FCC, 236 F.3d
720, 822 (D.C. Cir. 2001)).
2. Traceability
Defendants next argue that Plaintiffs’ injuries are not
traceable to Amendment 4 because they “occurred long before NMFS
issued the final rule implementing Amendment 4” and “because they
concern species beyond the scope of the Amendment.” Defs.’ Mot. 14.
The first argument is easily disposed of. As explained above,
Plaintiffs have stated that they continue to suffer from the
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depletion of river herring stocks and from the negative impact that
depletion of river and Atlantic herring has on striped bass. See
supra Part III.A.1; Hastbacka ¶¶ 6, 9; Flaherty Decl. ¶ 12.
Plaintiffs need demonstrate neither proximate causation nor but-for
causation to establish traceability; they must only show that “‘the
agency’s actions materially increase[d] the probability of
injury.’” N.C. Fisheries Ass’n, 518 F. Supp. 2d at 83 (quoting
Huddy, 236 F.3d at 722); see also Nat’l Audubon Soc’y v. Davis, 307
F.3d 835, 849 (9th Cir. 2002) (to be “fairly traceable,” chain of
causation must be plausible). Again, Defendants themselves have
acknowledged the chain of causation between under-regulation of
herring fishing and the abundance and health of predator fish. AR
6111-12. Plaintiffs’ contention that Defendants’ choices in
Amendment 4 will materially increase the probability of their
injury is far more than merely plausible.
Further, taken to its logical conclusion, Defendants’ argument
would preclude anyone from challenging FMPs, since the decline of
the nation’s fisheries began before the MSA was enacted with the
purpose of stopping that deterioration. See 16 U.S.C. § 1801(b)(1).
Therefore, the fact that the injuries may have begun before
issuance of Amendment 4 is no obstacle to Plaintiffs’ standing.
Defendants’ next argument is no more persuasive. As to river
herring, the claim that Plaintiffs’ injury cannot be traced to
Amendment 4 because Amendment 4 does not address management of
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river herring is plainly circular when the essence of Plaintiffs’
challenge is to Defendants’ substantive decision not to include
that species. Plaintiffs claim that Defendants’ decision not to
manage river herring violated the MSA and APA. The harm caused by
depletion of river herring by commercial fishing is clearly
traceable to Defendants’ decision not to restrict river herring
catch. Moreover, there is no doubt that increased regulation of
river herring catch would contribute to the rebuilding of that
stock. Branton, 993 F.2d at 910 (traceability and redressability
“tend to merge . . . in a case such as this where the requested
relief consists solely of the reversal or discontinuation of the
challenged action.”) (citing Allen v. Wright, 468 U.S. 737, 759
n.24 (1984)).
As to striped bass, the fact that Amendment 4 does not
specifically regulate striped bass is of no moment. As previously
explained, Plaintiffs have articulated a perfectly plausible
explanation for how harm to their ability to fish or observe
striped bass is traceable to Defendants’ claimed deficiencies in
regulating herring. N.C. Fisheries Ass’n, 518 F. Supp. 2d at 83.
In short, Plaintiffs have shown a causal connection between
Defendants’ regulatory choices in Amendment 4 and the health of
river herring and striped bass stocks. Further, Plaintiffs have
demonstrated that (1) they have “suffered an ‘injury in fact’ that
is (a) concrete and particularized and (b) actual or imminent, not
19
conjectural or hypothetical; (2) the injury is fairly traceable to
the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by
a favorable decision.” Friends of the Earth, 528 U.S. at 180-81.
They therefore have standing to challenge Amendment 4.
B. Stocks in the Fishery
Plaintiffs challenge Defendants’ decision to approve Amendment
4 because the Amendment includes only Atlantic herring, and
excludes river herring, as a stock in the fishery. Once a fish is
designated as a “stock in the fishery,” the Council must develop
conservation and management measures, including ACLs and AMs, for
that stock. Pls.’ Mot. 14; 16 U.S.C. § 1853(a). Hence, the Atlantic
Herring FMP includes no protective measures for river herring.
As described above, the MSA requires the Council to prepare an
FMP “for each fishery under its authority that requires
conservation and management.” 16 U.S.C. § 1852(h)(1). The Act
defines a “fishery” as “one or more stocks of fish which can be
treated as a unit for purposes of conservation and management and
which are identified on the basis of geographical, scientific,
technical, recreational, and economic characteristics.” Id. §
1802(13). A “stock of fish” is “a species, subspecies, geographical
grouping, or other category of fish capable of management as a
unit.” Id. § 1802(42). The Council determines which “target stocks”
(fish that are deliberately caught), and/or “non-target stocks”
20
(fish that are incidentally caught), to include in the fishery. 50
C.F.R. § 600.310(d)(1).
In other words, in developing an FMP, the Council must decide
which species or other categories of fish are capable of management
as a unit, and therefore should be included in the fishery and
managed together in the plan. This decision entails two basic
determinations. The Council must decide (1) which stocks “can be
treated as a unit for purposes of conservation and management” and
therefore should be considered a “fishery” and (2) which fisheries
“require conservation and management.” 16 U.S.C. §§ 1802(13),
1852(h)(1). The Council must then set ACLs and AMs for all stocks
in the fishery. Id. § 1853(a)(15). After the Council completes its
proposed plan or amendment, NMFS must review it for compliance with
applicable law and standards. Id. § 1854(a)(1)(A).
Plaintiffs contend that Amendment 4 contravenes the Act’s
requirements by failing to include river herring as a stock in the
Atlantic herring fishery. Pls.’ Mot. 15. Consequently, Plaintiffs
argue, Defendants have violated the MSA and APA by erroneously
concluding that Amendment 4 comports with the provisions of the
MSA. Pls.’ Mot. 20; see also 16 U.S.C. § 1854(a)(1)(A) (NMFS must
determine whether FMPs are consistent with provisions of MSA); N.C.
Fisheries Ass’n, 518 F. Supp. 2d at 71-72 (“Secretarial review of
a FMP or plan amendment submitted by a regional council focuses on
21
the proposed action's consistency with the substantive criteria set
forth in, and the overall objectives of, the MSA.”).
The Court must now consider whether NMFS acted arbitrarily
and/or capriciously in approving Amendment 4. 16 U.S.C. §
1855(f)(1); 5 U.S.C. § 706(2). The Court’s “task is not to review
de novo whether the amendment complies with [the MSA’s] standards
but to determine whether [NMFS’s] conclusion that the standards
have been satisfied is rational and supported by the record.” C&W
Fish, 931 F.2d at 1562; see also Blue Ocean Inst. v. Gutierrez, 585
F. Supp. 2d 36, 43 (D.D.C. 2008).
Defendants argue that the Administrative Record fully supports
their decision and rely on two basic rationales. First, Defendants
argue that, because of the imminence of the 2011 statutory deadline
for completion of Amendment 4, the decision to postpone
consideration of inclusion of river herring in the fishery until
development of Amendment 5 was reasonable. Second, Defendants argue
that NMFS properly deferred to the Council’s determination as to
the makeup of the fishery.
1. Delay Due to Statutory Deadline
Defendants first point to the pressure imposed by the MRSA’s
deadline. Defendants state that, in June 2009, they determined that
consideration of measures specifically designed to protect river
herring should be delayed so that they could meet the 2011
statutory deadline for providing measures to protect Atlantic
22
herring. Defs.’ Mot. 17, 38; see AR 6325-26 (“In June 2009, the
Council determined there was not sufficient time to develop and
implement all the measures originally contemplated in Amendment 4
by 2011, so it decided that Amendment 4 would only address ACLs and
AMs requirements and specification issues.”). Defendants’ logic was
that because time was limited and the MSA required ACL and AM rules
for all stocks in the fisheries and Atlantic herring had already
been identified as a stock in the fishery, they could best comply
with the MSA by formulating only the Atlantic herring regulations
and postponing consideration of regulations for the management of
river herring. See Pub. L. No. 109-479, § 104(b), 120 Stat. 3575,
3584 (requiring that FMPs including processes for setting ACLs and
AMs take effect “in fishing year 2011 for all . . . fisheries” not
determined to be overfished, including the Atlantic herring
fishery).
While it is correct that the MRSA did impose the 2011
deadline, Defendants fail to provide any explanation or analysis
from which the Court can conclude that the delay in considering the
composition of the fishery, which entailed exclusion of river
herring, was reasonable. McDonnell Douglas Corp., 375 F.3d at 1186-
87 (“we do not defer to the agency’s conclusory or unsupported
suppositions.”). The MSRA was signed at the beginning of 2007.
Defendants identify nothing in the Administrative Record that
explains why, when the Council had more than four years to meet the
23
statutory deadline for fishing year 2011, it could not address
whether river herring, in addition to Atlantic herring, were in
need of ACLs and AMs and still meet its deadline.
The Administrative Record discloses only vague and conclusory
statements that “there was not sufficient time to develop and
implement all the measures originally contemplated in Amendment 4
by 2011.” AR 6325; see also AR 5641. The closest Defendants come to
providing a substantive explanation is to quote a slide from a
January 26, 2011, meeting regarding proposed Amendment 5, which
reads, “the Herring [Plan Development Team] cannot generate a
precise enough estimate of river herring catch on which to base a
cap.” AR 5361. That document does not explain why an estimate could
not have been generated prior to issuance of Amendment 4, nor why
the Council could not at the very least have devised an interim
Acceptable Biologic Catch control rule based on the best available
science, as it did in Amendment 4 for Atlantic herring. Defendants
point to no other evidence in the Administrative Record to explain
why the Council was unable to address management of river herring
in the four years of lead time that elapsed between the signing of
the MSRA and the final promulgation of Amendment 4.
The reason that Defendants’ failure matters is that the MRSA
requires ACLs and AMs for all stocks in need of conservation and
management, not just for those stocks which were part of the
fishery prior to passage of the MRSA. Although the MRSA does not
24
explicitly require the Council to reassess the makeup of the
fishery, it does require the Council and NMFS to set ACLs and AMs
by 2011 “such that overfishing does not occur in the fishery.” 16
U.S.C. § 1853(a)(15). The setting of ACLs and AMs necessarily
entails a decision as to which stocks require conservation and
management. Id. §§ 1802(13), 1853(a)(15). Hence, Defendants must
provide some meaningful explanation as to why it was not possible
to consider which stocks, other than Atlantic herring, should be
subject to the ACLs and AMs which are so central to effective
fishery management and avoidance of overfishing. NetCoalition v.
SEC, 615 F.3d 525, 539 (D.C. Cir. 2010) (“an agency may not shirk
a statutory responsibility simply because it may be difficult.”).
Moreover, Defendants have not explained why the information in
the Administrative Record cited by Plaintiffs was deemed
insufficient to justify including river herring as a stock, as
urged in many comments submitted on the Proposed Regulation, or to
permit setting at least an interim Acceptable Biological Catch
limit for the species, just as was done for Atlantic herring. See
Pls.’ Mot. 18-19 (citing AR 154, 157, 315, 407, 645, 665, 755, 779,
780, 795, 903, 1257, 1288, 1506, 1978, 2550, 2571, 2602, 2806,
3789, 6341).
In short, Defendants themselves cite to no evidence or facts
supporting the Council’s excuse that “there was not sufficient
time” to consider the fishery’s composition. AR 6325; Kristin
25
Brooks Hope Ctr. v. FCC, 626 F.3d 586, 588 (D.C. Cir. 2010) (“The
agency’s explanation cannot ‘run [] counter to the evidence,’ . .
. and it must ‘enable us to conclude that the [agency’s action] was
the product of reasoned decisionmaking.’”) (quoting Motor Vehicle
Mfrs. Ass’n, 463 U.S. at 43, 52).
While a looming statutory deadline may in some instances
provide justification for an agency’s delay in decision-making, it
does not relieve Defendants of the duty to “articulate a
satisfactory explanation for its action including a rational
connection between the facts found and the choice made”--especially
when the agency was given a four-year lead time to meet that
deadline and failure to meet it could have serious consequences for
the species to be protected. Motor Vehicle Mfrs. Ass’n, 463 U.S. at
43 (internal quotation omitted). Defendants’ conclusory statement
that river herring would simply have to wait until a future
amendment does not suffice. Kristin Brooks Hope Ctr., 626 F.3d at
588; McDonnell Douglas Corp., 375 F.3d at 1186-87.
2. Deference to the Council
Defendants also argue that river herring were not designated
as a stock in the fishery because the Council decided to include
only target stocks in the fishery, and river herring is a non-
target stock. Defs.’ Mot. 17 (citing AR 6067). According to
Defendants, NMFS deferred to the Council’s decision not to include
any non-target stocks in the fishery, and needed to do no more. AR
26
6256, 6330. The crux of Defendants’ argument is that under both the
structure of the MSA and the agency’s own regulations, unless a
species is determined by NMFS to be “overfished” or the Council’s
decision is in clear violation of the MSA,5 NMFS should simply
defer to the Council’s determination of what stocks are in the
fishery rather than conduct an independent review of whether that
determination complies with the MSA’s provisions and standards.
Defs.’ Mot. 15-16; Defs.’ Reply 4-9.
a. Statutory Provisions
Defendants argue that the “Magnuson-Stevens Act entrusts the
Councils with the responsibility to prepare FMPs for those
fisheries requiring conservation and management” and that the
“inclusion of a species . . . in a fishery management unit is based
on a variety of judgment calls left to the Council.” Defs.’ Mot.
15. Defendants rely on 16 U.S.C. § 1852(h), giving the Council the
responsibility to prepare and submit FMPs and amendments, and on 16
U.S.C. § 1854(e), requiring an FMP only where NMFS has determined
that a fishery is “overfished.” Therefore, Defendants contend, in
5
Defendants have not been consistent in explaining what sort
of review NMFS must apply to the Council’s determination of the
composition of a fishery. In their Motion, Defendants concede that
NMFS must review FMPs and amendments for consistency with the
National Standards and applicable law, but argue that “[t]he
inclusion of a species not determined to be overfished in a fishery
management unit is based on a variety of judgment calls left to the
Council.” Defs.’ Mot. 15-16. Hence, Defendants appear to be arguing
that the Council’s decision to exclude a species from a fishery is
unreviewable. Later, at oral argument, however, Defendants agreed
that the Council’s decision must not be arbitrary or capricious.
27
the absence of a finding of overfishing, council decisions about
the make-up of a fishery are unreviewable by NMFS and are entitled
to deference.
Plaintiffs view Defendants’ argument as “threaten[ing] to
unravel the entire fabric of the Act.” Pls.’ Mot. 17. They caution
that, under the Defendants’ interpretation of the MSA, “councils
would be left with the sole discretion to include any, or no,
stocks in their FMPs, regardless of whether there is scientific
information demonstrating the need for their conservation and
management.” Id.
Defendants are correct that “it is the Council that has the
responsibility to prepare the FMP in the first instance for those
fisheries requiring conservation and management,” which includes
describing the species to be managed. Defs.’ Reply 4-5 (citing 16
U.S.C. §§ 1852(h)(1), 1853(a)(2)) (emphasis in original). As
explained above, except in special circumstances,6 the council
prepares and submits proposed FMPs and amendments to NMFS. 16
U.S.C. § 1852(h)(1).
What Defendants fail to fully appreciate, however, is that
once the council completes its work, the MSA requires NMFS to
review its plan to determine whether it comports “with the ten
6
For example, NMFS may develop its own FMP if a council fails
to do so within a reasonable time for a fishery in need of
conservation and management, or NMFS may order a council to take
action to end overfishing and rebuild stocks if it finds that a
fishery is overfished or approaching a condition of being
overfished. 16 U.S.C. §§ 1854(c)(1), (e).
28
national standards, the other provisions of [the Act], and any
other applicable law.” Id. § 1854(a)(1)(A). Thus, it is Defendants’
responsibility to decide whether an FMP, including the composition
of its fishery, satisfies the goals and language of the MSA. N.C.
Fisheries Ass’n, 518 F. Supp. 2d at 71-72 (“Secretarial review of
a FMP or plan amendment submitted by a regional council focuses on
the proposed action's consistency with the substantive criteria set
forth in, and the overall objectives of, the MSA.”). While
Defendants are correct that it is the Council’s role to name the
species to be managed “in the first instance,” it is NMFS’s role,
in the second instance, to ensure that the Council has done its job
properly under the MSA and any other applicable law.
It is true that the MSA requires management measures when NMFS
finds overfishing. But it certainly does not follow that in the
absence of overfishing NMFS may simply rubber stamp the Council’s
decisions. Section 1854(a) is clear: NMFS must examine whether the
FMP “is consistent with the national standards, the other
provisions of [the MSA], and any other applicable law.” 16 U.S.C.
§ 1854(a)(1)(A). While NMFS may defer to the Council on policy
choices, the Act plainly gives NMFS the final responsibility for
ensuring that any FMP is consistent with the MSA’s National
Standards, and “the overall objectives” of the Act. N.C. Fisheries
Ass’n, 518 F. Supp. 2d at 71-72.
29
Defendants’ responsibilities therefore include ensuring
compliance with Section 1852(h)’s requirement that the Council
prepare an FMP or amendment for any stock of fish that “requires
conservation and management.” 16 U.S.C. § 1852(h)(1). That Section
requires FMPs and necessary amendments for all “stocks of fish
which can be treated as a unit for purposes of conservation and
management” and which are in need of conservation and management.
Id. §§ 1802(13)(a), 1852(h)(1). Thus, NMFS must make its own
assessment of whether the Council’s determination as to which
stocks can be managed as a unit and require conservation and
management is reasonable. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 52
(“agency’s explanation . . . [must] enable us to conclude that [its
decision] was the product of reasoned decisionmaking.”).
There is no basis for concluding, as Defendants do, that the
structure of the MSA weakens Section 1854's command that NMFS
review proposed plans and amendments for compliance with the
statute. The standards to be applied in reviewing NMFS’s conclusion
that Amendment 4 complies with Section 1852(h) are therefore no
different than review of NMFS’s conclusion that an amendment
complies with the National Standards. See N.C. Fisheries Ass’n, 518
F. Supp. 2d at 71-72 (“Secretarial review of a FMP or plan
amendment submitted by a regional council focuses on the proposed
action's consistency with the substantive criteria set forth in,
and the overall objectives of, the MSA.”). Merely deferring to the
30
Council’s exclusion of non-target species like river herring
without any explanation for why that exclusion complies with the
MSA fails to meet APA standards. Motor Vehicle Mfrs. Ass’n, 463
U.S. at 43 (agency must “examine the relevant data and articulate
a satisfactory explanation for its action”); Tourus Records, Inc.
v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001) (“A fundamental
requirement of administrative law is that an agency set forth its
reasons for decision; an agency's failure to do so constitutes
arbitrary and capricious agency action.”) (internal quotations
omitted).
b. Defendants’ Regulation
National Standard 1 of the MSA states, “Conservation and
management measures shall prevent overfishing while achieving, on
a continuing basis, the optimum yield from each fishery for the
U.S. fishing industry.” 16 U.S.C. § 1851(a)(1). Defendants cite to
50 C.F.R. § 600.310(d)(1), which interprets that Standard, and
states: “[t]he relevant Council determines which specific target
stocks and/or non-target stocks to include in a fishery.” According
to Defendants, this provision justifies NMFS’s failure to explain
why the Council’s decision comports with the MSA. Defs.’ Mot. 15.
However, Section 1854 states in no uncertain language that
NMFS must “determine whether [the plan or amendment] is consistent
with the national standards, the other provisions of this chapter,
and any other applicable law.” 16 U.S.C. § 1854(a)(1)(A). A mere
31
regulation can never override a clear Congressional statutory
command--i.e., that NMFS shall review FMP amendments for compliance
with all provisions of the MSA. Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984); Nat’l Ass’n
of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007).
Nor, it should be noted, need 50 C.F.R. § 600.310(d)(1) be
interpreted as Defendants do. It is absolutely correct that under
the MSA, the councils do have the responsibility to determine what
stocks to include in the fishery. But that is not the end of the
process. After the councils make their determination, NMFS must
still make its final compliance review.
Simply put, 50 C.F.R. § 600.310(d)(1) cannot be understood to
permit NMFS to ignore its duty to ensure compliance with the MSA.
The councils do not have unlimited and unreviewable discretion to
determine the make-up of their fisheries.
Therefore, Defendants were required to review Amendment 4 for
compliance with the MSA. Defendants need not prove that the
decision to designate only target stocks as stocks in the fishery
was the best decision, but they must demonstrate that they
reasonably and rationally considered whether Amendment 4's
definition of the fishery complied with the National Standards and
with the MSA’s directive that FMPs be generated for any fisheries
requiring conservation and management. Mere deference to the
Council, with nothing more, does not demonstrate reasoned decision-
32
making. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 56 (agency’s
decision was arbitrary and capricious because it failed to analyze
the issue); Am. Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166, 179
(D.C. Cir. 2010) (same); Sierra Club v. U.S. Army Corps of Eng’rs,
772 F.2d 1043, 1051 (2d Cir. 1985) (“agency’s action is held to be
arbitrary and capricious when it . . . utterly fails to analyze an
important aspect of the problem.”).
C. Bycatch
Plaintiffs also contend that Amendment 4 fails to minimize
bycatch, in violation of National Standard 9. 16 U.S.C. §
1851(a)(9). “Bycatch” refers to “fish which are harvested in a
fishery, but which are not sold or kept for personal use” including
“economic discards and regulatory discards.” Id. § 1802(2). In
other words, fish incidentally caught in a trawler’s net and then
later thrown away are bycatch. “In simple terms, bycatch kills fish
that would otherwise contribute toward the well-being of the
fishery or the nation’s seafood consumption needs.” Conservation
Law Found. v. Evans, 209 F. Supp. 2d 1, 14 (D.D.C. 2001).
The Final Rule implementing Amendment 4 addresses bycatch in
one sentence: “[b]ycatch in the herring fishery will continue to be
addressed and minimized to the extent possible, consistent with
other requirements of the MSA.” 76 Fed. Reg. 11373, 11374; AR 6326.
Plaintiffs argue that this one sentence is insufficient under the
MSA, because the Act “requires that all FMPs and FMP amendments
33
contain concrete conservation and management measures to minimize
bycatch and bycatch mortality to the extent practicable.” Pls.’
Mot. 21. Defendants respond that (1) Plaintiffs have waived their
claim under National Standard 9 by failing to raise an objection
during the administrative process; and (2) the Council and NMFS
have sufficiently minimized bycatch based on the best available
science. Defs.’ Mot. 19-21.
Defendants’ first argument is, to put it mildly, hyper-
technical, and without merit. Defendants concede that Plaintiffs
did comment on bycatch during the administrative process, but only
before Defendants issued their second Notice of Intent, limiting
Amendment 4's scope to addressing ACLs and AMs for Atlantic
herring. Defs.’ Reply 10. Nonetheless, Defendants contend that
Plaintiffs’ failure to raise the issue again, after NMFS announced
that Amendment 4 would proceed in its reduced form, bars them from
bringing the claim. Id. That is, Defendants argue that Plaintiffs
waived their bycatch claim by not raising it a second time, after
Defendants had already made clear that they would not consider
bycatch in Amendment 4.
This argument finds no support in caselaw--nor for that matter
in fundamental fairness. Certainly it is true “that a party will
normally forfeit an opportunity to challenge an agency rulemaking
on a ground that was not first presented to the agency for its
initial consideration.” Advocates for Highway & Auto Safety v. Fed.
34
Motor Carrier Safety Admin., 429 F.3d 1136, 1150 (D.C. Cir. 2005).
But Defendants cite no authority requiring parties to raise the
ground repeatedly after the agency has rejected their suggestion or
after each new version of the proposed action is issued.
Moreover, by raising the bycatch issue before Amendment 4 was
reduced in scope, Plaintiffs clearly satisfied the purposes of this
issue waiver rule. Plaintiffs “‘alert[ed] the agency to [their]
position and contentions,’ in order to allow the agency to give the
issue meaningful consideration.” Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752, 764 (2004) (quoting Vermont Yankee Nuclear Power
Corp. v. NRDC, 435 U.S. 519, 553 (1978)); see also Advocates for
Highway & Auto Safety, 429 F.3d at 1150 (the two reasons for an
“issue exhaustion” or “issue waiver” rule are that (1) “the role of
the court is to determine whether the agency's decision is
arbitrary and capricious for want of reasoned decisionmaking” and
(2) “‘[s]imple fairness . . . requires as a general rule that
courts should not topple over administrative decisions unless the
administrative body . . . has erred against objection made at the
time appropriate under its practice.’”) (quoting United States v.
L.A. Trucker Lines, Inc., 344 U.S. 33, 37 (1952)). Consequently,
the Court concludes that Plaintiffs have not waived their claim
under National Standard 9.
35
Defendants’ second argument is more substantive. They contend
that, in fact, they have satisfied their responsibility to minimize
bycatch to the extent practicable.
National Standard 9 requires that “[c]onservation and
management measures shall, to the extent practicable, (A) minimize
bycatch and (B) to the extent bycatch cannot be avoided, minimize
the mortality of such bycatch.” 16 U.S.C. § 1851(a)(9). While each
FMP must attempt to minimize bycatch to the extent practicable, it
must also “balance competing environmental and economic
considerations” as embodied in the ten National Standards. Ocean
Conservancy v. Gutierrez, 394 F. Supp. 2d 147, 157 (D.D.C. 2005);
Pacific Coast Fed’n of Fishermen’s Ass’n v. Locke, No. C 10-04790
CRB, 2011 WL 3443533, at *9 (N.D. Cal. Aug. 5, 2011). Nonetheless,
to meet their responsibility to ensure compliance with the National
Standards, Defendants must demonstrate that they have evaluated
whether the FMP or amendment minimized bycatch to the extent
practicable. Conservation Law Found., 209 F. Supp. 2d at 14.
Defendants argue that they have met this burden because the
FMP as a whole minimizes bycatch.7 Defs.’ Mot. 20-21. Defendants
7
Defendants make much of the distinction that “as a legal
matter, the Magnuson-Stevens Act requires that the overall fishery
management plan be consistent with National Standard 9--not that
each separate amendment contain measures to minimize bycatch.”
Defs.’ Mot. 20 (citing 16 U.S.C. § 1851(a)(9)) (emphasis in
original). While it may be correct that Amendment 4's compliance
with National Standard 9 should be viewed in the context of the
entire FMP, it is also clear, as discussed earlier, that NMFS was
required to review Amendment 4 “to determine whether it is
(continued...)
36
point to (1) Amendment 1 to the FMP, which “prohibits midwater
trawling vessels from fishing in a designated area for Atlantic
herring from June 1 to September 30 of each year,” (2) the haddock
incidental catch cap, which addresses haddock bycatch and was
developed through Framework 43 of the Northeast Multispecies FMP,8
and (3) the limits generally placed on the herring fishery by the
interim ABC control rule. Id. None of these three examples
demonstrate that Defendants undertook any effort to consider
whether Amendment 4, or the FMP as amended by Amendment 4,
minimized bycatch to the extent practicable.
The first measure identified by Defendants, Amendment 1,
simply bans use of midwater trawling vessels in one of the Atlantic
herring fishery’s four management areas for four months of the
year. 72 Fed. Reg. 11252, 11257 (Mar. 12, 2007). While this rule,
issued in March of 2007, does reduce the use of a type of boat that
causes substantial bycatch, it does so for only four months per
year in only one management area. The second measure, the haddock
7
(...continued)
consistent with the national standards.” 16 U.S.C. § 1854(a)(1)(A).
Hence, NMFS’s review of Amendment 4 had to include some analysis of
whether the FMP minimized bycatch “to the extent practicable.” Id.
§ 1851(a)(9). As discussed at length below, Defendants have
identified nothing in the Administrative Record demonstrating such
examination.
8
The haddock incidental catch cap specifies an “incidental
haddock catch allowance” for the season for the herring fishery. AR
6153. In simple terms, when a vessel has reached the allowance for
incidental haddock catch, it is prohibited from fishing for,
possessing, or landing more than 2,000 pounds of herring per trip
for the rest of the year. Id.
37
incidental catch cap, which was issued as part of the Northeast
Multispecies FMP, only considers haddock bycatch, and gives no
incentive for minimizing bycatch of other species, such as river
herring. AR 6153. Finally, the third measure is merely the limits
on Atlantic herring catch and in no way limits fishing to minimize
river herring or other bycatch. Thus, this measure only has the
ancillary benefit of reducing bycatch and bycatch mortality of
river herring and other fish by generally limiting the amount of
fishing in the Atlantic herring fishery.
The existence of an earlier rule to reduce bycatch and two
measures that, at best, have only an incidental effect on bycatch
does not show that NMFS ever considered the significant issue of
whether the Atlantic Herring FMP minimizes bycatch or bycatch
mortality to the extent practicable based on the best available
science. 16 U.S.C. §§ 1851(a)(2), (9). While each of these three
measures may have some impact on total bycatch in the Atlantic
herring fishery, none of them indicate that Defendants have
considered the issue in any substantive manner.
Defendants also quote from two sections of Amendment 4 that
discuss bycatch. First, Defendants point to the section of the
Council’s substantive analysis of Amendment 4 that ostensibly
discusses National Standard 9. Defs.’ Mot. 20-21. This single
paragraph explains that “the Council made the decision to include
only [Atlantic] herring as a stock with the knowledge that other
38
mechanisms exist to deal with non-targets [sic] species caught,”
and “one of the objectives of Amendment 5 to the Atlantic Herring
FMP, which is under development, is to develop a program which
effectively and efficiently monitors bycatch and potentially acts
to reduce it.” AR 6087. “The amendment therefore specifies that
bycatch is to be monitored and minimized accordingly.”9 Id. If
9
The paragraph in full reads:
National Standard 9 states that bycatch must
be minimized and that mortality of such
bycatch must be minimized. As such, the
Council made the decision to include only
herring as a stock with the knowledge that
other mechanisms exist to deal with
non-targets [sic] species caught by the
herring fishery. The amendment therefore
specifies that bycatch is to be monitored and
minimized accordingly. This amendment also
includes the haddock catch cap, being
implemented as an AM, which is another way in
which bycatch is considered and minimized
without the haddock stock being defined as a
part of the fishery. Furthermore, one of the
objectives of Amendment 5 to the Atlantic
Herring FMP, which is under development, is to
develop a program which effectively and
efficiently monitors bycatch and potentially
acts to reduce it with collaboration from the
fishing industry. The measure maximizes the
flexibility provided to the Council so that it
can utilize the best scientific information
available at the time when the new amendment
is implemented. For these reasons the Council
decided that until such time that evidence is
brought to the Council which indicates that
another species needs to be added to the
definition of a stock within the herring FMP
in order to be managed acceptably, Atlantic
herring will be the only defined stock in the
fishery.
(continued...)
39
anything, this statement makes it clear that neither the Council
nor NMFS made any effort to consider whether bycatch was minimized
to the extent practicable. 16 U.S.C. § 1851(a)(9).
Second, Defendants point to the section of their analysis of
the “Environmental Impacts of Management Alternatives” dealing with
the “Impacts on Non-target Bycatch Species.” AR 6193-95. Defendants
quote: “Amendment 4 ‘limit[s] the catch of non-target/bycatch
species, particularly through the limit to the fishery placed by
the interim ABC control rule.’” Defs.’ Mot. 20-21 (quoting AR
6193). In context, all that the document actually says is that,
because of Amendment 4's interim limits on the total catch allowed
for Atlantic herring, there will be less incidental catch of non-
target species than under “the no action alternative.” AR 6193-94.
Again, this conclusion does not reflect any examination or
consideration of whether the FMP, as amended, actually minimizes
bycatch to the extent practicable. 16 U.S.C. § 1851(a)(9).
Finally, Defendants state that they chose to defer
consideration of National Standard 9 due to the 2011 statutory
deadline for Amendment 4. Defs.’ Mot. 21. For the reasons discussed
at length above, supra Part III.B.1., this rationale does not
suffice to demonstrate reasoned analysis of the bycatch issue. In
sum, there is no evidence that the agency “thoroughly reviewed the
relevant scientific data on bycatch and consulted with participants
9
(...continued)
AR 6087.
40
in the fishery to determine whether the proposed regulations would
be effective and practical,” as they must do to satisfy their
responsibilities to ensure compliance with the National Standards.
Ocean Conservancy, 394 F. Supp. 2d at 159; Conservation Law Found.,
209 F. Supp. 2d at 14. Therefore, Defendants’ approval of Amendment
4, without addressing the minimization of bycatch to the extent
practicable, was in violation of the MSA and APA.
D. ACLs for Atlantic Herring
Plaintiffs claim that Amendment 4's annual catch limit
(“ACL”)10 for Atlantic herring violates the MSA because it fails to
prevent overfishing and is not based upon the best available
science. 16 U.S.C. §§ 1851(a)(1), (2). As detailed above, the MRSA
significantly enlarged the Council’s and NMFS’s duties by requiring
all FMPs to include “a mechanism for specifying annual catch limits
. . . at a level such that overfishing does not occur in the
fishery.” Id. § 1853(a)(15). The new ACLs are to set specific
limits on the total fish caught in each fishery.
The setting of an ACL entails a rather laborious process
intended to generate a scientific basis for the final catch limit.
First, the Council must define an overfishing limit (“OFL”), which,
to simplify, is an estimate of the rate of fishing at which a
10
Amendment 4 permits the Council to establish both an overall
ACL for the Atlantic herring fishery, and sub-ACLs for specific
management areas. AR 6072-73, 6090.
41
fishery will not be sustainable.11 50 C.F.R. §§ 600.310(e)(1)(i)(A)-
(2)(i)(E).
Second, the Council must determine the acceptable biological
catch (“ABC”), which is the amount of fish that may be caught
without exceeding the overfishing limit, after taking into account
scientific uncertainty. Id. § 600.310(f)(2)(ii). In order to set
the ABC, the Council must first establish an “ABC control rule,”
which explains how the Council will account for scientific
uncertainty when setting the ABC. 50 C.F.R. § 600.310(f)(4). The
objective of the ABC control rule is to create a buffer between OFL
and ABC so that there is a low risk that OFL will be exceeded. See
id. §§ 600.310(b)(v)(3), (f)(4).
Third, and finally, the Council must set the ACL, which is the
amount of fish that may be caught without exceeding the ABC, after
taking into account management uncertainty, such as late reporting,
11
Even this first step entails a number of complex and
technical calculations and analyses. For example, in order to
determine an OFL, one must, among other things, consider (1) the
Maximum Sustainable Yield (“MSY”), defined as “the largest
long-term average catch or yield that can be taken from a stock or
stock complex under prevailing ecological, environmental conditions
and fishery technological characteristics . . . , and the
distribution of catch among fleets,” (2) the MSY fishing mortality
rate (“Fmsy”), defined as “the fishing mortality rate that, if
applied over the long term would result in MSY,” and (3) the MSY
stock size (“Bmsy”), defined as “the long-term average size of the
stock or stock complex, measured in terms of spawning biomass or
other appropriate measure of the stock's reproductive potential
that would be achieved by fishing at Fmsy.” 50 C.F.R. §
600.310(e)(1)(i).
42
misreporting, and underreporting of catch.12 Id. § 600.310(f)(1).
In mathematical terms, the entire process can be described as
OFL$ABC$ACL. AR 6061. In plain English, the ABC must be equal to or
less than OFL, to account for scientific uncertainty, and the final
ACL must be equal to or less than ABC, to take into account
management uncertainty. 50 C.F.R. §§ 600.310(e)-(f).
Further, each council must establish a scientific and
statistical committee (“SSC”), whose members must include Federal
and State employees, academicians, or independent experts with
“strong scientific or technical credentials and experience.” 16
U.S.C. §§ 1852(g)(1)(A), (C). The SSC provides “ongoing scientific
advice” for fishery management decisions, including the setting of
ABC and OFL. Id. § 1852(g)(1)(B). In particular, the Council must
create its ABC control rule based on scientific advice from the
SSC. 50 C.F.R. § 600.310(f)(4). Additionally, ACLs “may not exceed
the fishing level recommendations” of the Council’s SSC. 16 U.S.C.
§ 1852(h)(6). To summarize, in the process of setting the final
ACL, the council must solicit scientific advice from the SSC and,
based on that advice, establish a rule for acceptable biological
catch to account for scientific uncertainty, and then set an ACL
that permits no greater fishing levels than the SSC recommends.
12
Again, the Court must emphasize that even this complex
explanation, abridged for the purposes of comprehension, omits
details of the considerably more complicated process. See 50 C.F.R.
§ 600.310(f).
43
Finally, ACLs must, of course, be consistent with the National
Standards. Id. § 1853(a)(1)(C). Plaintiffs argue that the Atlantic
herring ACL fails to comply with National Standards 1 and 2.
National Standard 1 requires that “[c]onservation and management
measures shall prevent overfishing while achieving, on a continuing
basis, the optimum yield from each fishery for the United States
fishing industry.” Id. § 1851(a)(1). Hence, they argue, NMFS’s
conclusion that the Atlantic herring ACL prevents overfishing while
achieving optimum yield must be “rational and supported by the
record.” C&W Fish, 931 F.2d at 1562; Blue Ocean Inst., 585 F. Supp.
2d at 43.
National Standard 2 instructs, “[c]onservation and management
measures shall be based upon the best scientific information
available.” Id. § 1851(a)(2). National Standard 2 “requires that
rules issued by the NMFS be based on a thorough review of all the
relevant information available at the time the decision was made
. . . and insures that the NMFS does not ‘disregard superior data’
in reaching its conclusions.” Ocean Conservancy, 394 F. Supp. 2d at
157 (quoting Building Indus. Ass’n v. Norton, 247 F.3d 1241, 1246-
47 (D.C. Cir. 2001)).
This rule “is a practical standard requiring only that fishery
regulations be diligently researched and based on sound science.”
Ocean Conservancy, 394 F. Supp. 2d at 157. Further, “[c]ourts give
a high degree of deference to agency actions based on an evaluation
44
of complex scientific data within the agency’s technical
expertise.” Am. Oceans Compaign v. Daley, 183 F. Supp. 2d 1, 4
(D.D.C. 2000) (citing Baltimore Gas & Elec. Co. v. NRDC, 462 U.S.
87, 103 (1983)). Therefore, “[l]egal challenges to the Secretary’s
compliance with National Standard 2 are frequent and frequently
unsuccessful” and Plaintiffs face a “high hurdle.” N.C. Fisheries
Ass’n, 518 F. Supp. 2d at 85.
Amendment 4's ABC control rule, which is intended to account
for scientific uncertainty, sets the ABC for Atlantic herring at
the three-year average annual catch measured from 2006-2008, or at
106,000 metric tons (“mt”). AR 6068-69. In other words, the ACL for
Atlantic herring will be equivalent to the average yearly catch
from 2006 to 2008, minus a buffer for management uncertainty.
Plaintiffs argue that this ABC control rule violates National
Standards 1 and 2. Plaintiffs claim that using this three-year
average, without any further discount to reflect scientific
uncertainty, will not prevent overfishing and is not based on the
best available science.13 Pls.’ Mot. 22-27.
13
Plaintiffs also object to Defendants’ adoption of an
“Interim” ABC control rule. Pls.’ Mot. 22. Defendants correctly
point out that “nothing in the MSA . . . precludes the use of an
interim rule” and, of course, all ABC control rules are interim in
the sense that the agency can, and should, revise their rules as
superior or more recent information becomes available. Defs.’ Mot.
25 (emphasis in original). Perhaps most importantly, the decision
to label the rule “interim” with the expectation that the Council
can develop a new control rule in the 2013-2015 herring
specifications based on a 2012 stock assessment was perfectly
rational and supported by the Administrative Record. C&W Fish, 931
(continued...)
45
To the contrary, the Administrative Record demonstrates that
the Council properly considered the advice of its SSC and, after
review of the best scientific information then available, selected
an ABC control rule. The Administrative Record indicates that the
SSC identified “considerable scientific uncertainty” in attempting
to assess the size of the Atlantic herring stock, and therefore
“recommended that the ABC be set based on recent catch, and asked
the Council [to] determine the desired risk tolerance in setting
the ABC.” AR 6068. In accordance with the SSC’s advice, the Council
considered three options for defining recent catch: (1) the most
recent, available single-year catch figure of 90,000 mt in 2008;
(2) the most recent, available three-year annual average of 106,000
mt from 2006-2008; and (3) the most recent, available five-year
annual average of 108,000 mt from 2004-2008. Id.
The Council ultimately decided to use the three-year catch
figure to estimate ABC, based on four rationales. First, a three-
year average is commonly used to estimate “recent” trends in a
fishery. Id. Second, the 2008 catch “was one of the lowest on
record for many years” and using the one-year estimate may fail to
account for general variability in annual catch. Id. Third, because
the three-year average is lower than the five-year average, it
provides a more conservative estimate, and is therefore preferable
in order to account for other factors, such as “the importance of
13
(...continued)
F.2d at 1562; see 76 Fed. Reg. 11373, 13375; AR 6088-89.
46
herring as a forage species.” Id. Fourth, and finally, the
specification of the ABC at 106,000 mt provides a 27% buffer from
the maximum sustainable fishing mortality rate of 145,000 mt for
2010, in order to account for scientific uncertainty. Id. at 6069.
Plaintiffs point to no evidence that the agency ignored
superior or contrary data, as they must to succeed in a National
Standard 2 challenge.14 N.C. Fisheries Ass’n, 518 F. Supp. 2d at 85.
Instead, Plaintiffs protest that “Defendants arbitrarily ignored at
least two approaches for setting ABC that were scientifically
superior.” Pls.’ Reply 12. First, Plaintiffs claim that Defendants
did not adopt an earlier recommendation by the SSC that the ABC
control rule include a 40% buffer between OFL and ABC. Second,
Plaintiffs state that Defendants refused to accept the approach
they identified to set the ABC at 75% of recent average catch.
Pls.’ Reply 12 (citing AR 3909, 5615). But, as explained above, the
Council provided perfectly rational explanations, based on the best
available science, for selecting its ABC control rule, which
accounted for scientific uncertainty and comported with the SSC’s
14
Plaintiffs claim that Defendants failed “to account for the
role of forage in the ecosystem” when setting its ABC control rule.
Pls.’ Mot. 25-27. However, the Council’s analysis of Amendment 4
states that Atlantic herring’s role as a forage species was an
“Important Consideration” for the SSC and Council when considering
the ABC control role and definition of ABC. AR 6051-52, 6054.
Indeed, the Council selected the three-year average approach in
part because it felt that it best accounted for “other factors
identified by the SSC, including recruitment, biomass projections,
and the importance of herring as a forage species.” Id. at 6088.
47
recommendations. AR 6088-89. National Standard 2 demands no more.
Ocean Conservancy, 394 F. Supp. 2d at 157.
Nor, finally, does National Standard 1 provide any independent
reason for invalidating the ABC control rule. National Standard 1
requires that “each Council must establish an ABC control rule
based on scientific advice from its SSC” and that “[t]he
determination of ABC should be based, when possible, on the
probability that an actual catch equal to the stock's ABC would
result in overfishing.” 50 C.F.R. § 600.310(f)(4). The Council
considered the advice of its SSC, examined several options for
setting the ABC control rule, and made a reasoned determination
that using the three-year average catch offered the best approach.
The Court must defer to an agency’s rational decision when
supported by the Administrative Record, as here, and particularly
when that decision involves the type of technical expertise relied
upon in this case. Bloch, 348 F.3d at 1070; C&W Fish, 931 F.2d at
1562; Am. Oceans Compaign, 183 F. Supp. 2d at 4.
Although Plaintiffs may be correct that the Council could have
selected a more conservative ABC control rule, which would have
resulted in a more conservative ACL, Plaintiffs must do far more
than simply show that Defendants did not take their preferred
course of action. See N.C. Fisheries Ass’n, 518 F. Supp. 2d at 85;
Am. Oceans Campaign, 183 F. Supp. 2d at 14 (“the fact that
Plaintiffs would have preferred a more detailed analysis does not
48
compel the conclusion that the Secretary’s action was arbitrary and
capricious.”). Plaintiffs must show “some indication that superior
or contrary data was available and that the agency ignored such
information.” N.C. Fisheries Ass’n, 518 F. Supp. 2d at 85.
Plaintiffs have made no showing other than that the agency did not
select their favored control rule. Therefore, Defendants’ adoption
of Amendment 4's ABC control rule and resultant ACLs was not
arbitrary and/or capricious.
E. AMs for Atlantic Herring
In order to enforce the new ACLs, the amended MSA requires all
FMPs to include “measures to ensure accountability.” 16 U.S.C. §
1853(a)(15). “AMs are management controls to prevent ACLs . . .
from being exceeded, and to correct or mitigate overages of the ACL
if they occur.” 50 C.F.R. § 600.310(g)(1). Therefore, whenever
possible, FMPs should include AMs “to prevent catch from exceeding
ACLs” and “when an ACL is exceeded . . . as soon as possible to
correct the operational issue that caused the ACL overage, as well
as any biological consequences to the stock or stock complex
resulting from the overage.” Id. §§ 600.310(g)(2), (3).
Just like ACLs, AMs must satisfy the National Standards,
including National Standard 2. As explained at greater length
above, National Standard 2 “is a practical standard requiring only
that fishery regulations be diligently researched and based on
sound science.” Ocean Conservancy, 394 F. Supp. 2d at 157. And of
49
course, “[c]ourts give a high degree of deference to agency actions
based on an evaluation of complex scientific data within the
agency’s technical expertise.” Am. Oceans Compaign, 183 F. Supp. 2d
at 4.
Plaintiffs argue that Amendment 4's AMs are deficient for two
reasons. First, Plaintiffs claim that the existing monitoring
system used to detect when ACLs are reached, is insufficient. Pls.’
Mot. 28-31. Second, Plaintiffs contend that the actual group of AMs
included in the Atlantic herring FMP “are fundamentally flawed and
insufficient to minimize the frequency and magnitude of catch in
excess of the ACLs for Atlantic herring.” Id. at 31-33. Each claim
is considered in turn.
1. Monitoring System
Currently, owners or operators of vessels with permits to fish
for Atlantic herring are required to make a weekly report of
herring they catch through an “Interactive Voice Response” (“IVR”)
system. 50 C.F.R. § 648.7(b)(2)(I). The reports are verified by
comparing them to weekly dealer data. AR 6255. According to
Defendants, “there is an incentive for fishermen to report catch
accurately” “[b]ecause payment for catch is often tied to
vessel/dealer reports.” Defs.’ Reply 17. Additionally, federal
observers on board fishing boats monitor bycatch. Pls.’ Mot. 9;
Defs.’ Reply 17. Between 2005 and 2007, the annual percentage of
50
trips observed ranged from 8% to 26%, for an annual average of
16%.15 AR 653.
Plaintiffs argue that this monitoring system violates the MSA
because “[a]ccurate catch limits are impossible at present in the
Atlantic herring fishery because monitoring in the fishery is based
heavily on unverified reports of catch and landings.” Pls.’ Mot.
30. Further, “accurate estimates cannot be accomplished because
even on trips where a federal observer is on board the vessel,
vessels are not required to bring all catch onboard [sic] for
15
Plaintiffs claim that since the 1990's, “observer coverage
has ranged from less than one percent of the total annual fishing
trips taken in many years to roughly twenty percent in a handful of
years.” Pls.’ Mot. 9 (citing AR 651, 653, 779). The only citation
that supports this claim is a report by the Herring Alliance
stating that the coverage rate “has fluctuated from 1 to 17 percent
of total fishing trips since the mid-1990s, but are typically
between 3 and 6 percent.” AR 779. Defendants state that this
report, produced by “‘a coalition of environmental organizations
that formed . . . to protect and restore ocean wildlife . . . by
reforming the Atlantic herring fishery,’” is not peer-reviewed or
approved by NMFS or the Atlantic States Marine Fisheries
Commission. Defs.’ Mot. 8 n.6 (quoting www.herringalliance.org/
about-our-work).
More importantly, the Herring Alliance’s estimate is
contradicted by the data presented by the Maine Department of
Marine Resources and Massachusetts Division of Marine Fisheries.
That data demonstrates that 26% of trips were covered in 2005, 14%
of trips in 2006, and 8% of trips in 2007, thus supporting
Defendants’ claim of 16% annual coverage over the three-year
period. AR 653.
Plaintiffs also claim that “NMFS has never provided observer
coverage levels sufficient to derive accurate catch and bycatch
estimates.” Pls.’ Mot. 9 (citing AR 651, 653). Although one of the
slides cited contains a line reading “Low samples [sic] sizes means
power to detect low,” it is unclear how Plaintiffs concluded that
NMFS has never been able to derive accurate catch and bycatch
estimates. AR 651.
51
sampling and inspection” and “the ability to extrapolate catch and
bycatch up to fleetwide estimates is impossible because there are
insufficient observer coverage levels and at-sea dumping of
unsampled catch occurs, even on otherwise observed trips.” Id.
However, Plaintiffs offer no evidence to demonstrate “some
indication that superior or contrary data was available and that
the agency ignored such information.” N.C. Fisheries Ass’n, 518 F.
Supp. 2d at 85; Ocean Conservancy, 394 F. Supp. 2d at 157 (National
Standard 2 requires “only that fishery regulations be diligently
researched and based on sound science.”). Indeed, Plaintiffs again
cite no evidence in the Administrative Record to support their
claims that “accurate catch limits are impossible,” that “accurate
estimates cannot be accomplished,” or that “the ability to
extrapolate catch and bycatch up to fleetwide estimates is
impossible.” Pls.’ Mot. 30.
Rather than cite to evidence that the Council or NMFS
disregarded the best available science, Plaintiffs advance two
legal arguments. First, Plaintiffs claim that Defendants have
admitted that the current monitoring system is inadequate. Pls.’
Mot. 17. But the Administrative Record citations provided by
Plaintiffs say no such thing. All that they do say is that the
Council was considering measures “to improve catch monitoring.” AR
5587; see also AR 380-83, 2883, 2886. The statement that monitoring
could, potentially, be improved, certainly does not amount to a
52
concession that the current system is legally insufficient. Nor, it
should be pointed out, would it benefit the notice and comment
process if an agency were unable to consider possible policy
improvements for fear that even soliciting comments would be
considered an admission that current policies are legally
inadequate.
Second, Plaintiffs claim that “vessel catch reports have been
found time and again to be unreliable,” citing a decision by this
Court. Pls.’ Reply 17. However, Conservation Law Foundation, the
case cited by Plaintiffs, merely observed that the defendants in
that case conceded that there were problems with their bycatch
monitoring and that the New England Council’s Multispecies
Monitoring Committee concluded that commercial fishers unlawfully
underreport bycatch. 209 F. Supp. 2d at 13, 13 n.25. Certainly, the
conclusion of a different council committee, based on a separate
factual record in a separate fishery, does not preclude this
Council from concluding that observer coverage constitutes one of
several sufficient monitoring mechanisms.
The Administrative Record contains evidence that Defendants
did in fact consider Plaintiffs’ comments and determined that the
current monitoring system is sufficient. AR 6255, 6328.
Specifically, in her “Decision Memorandum,” NMFS’s Regional
Administrator Patricia A. Kurkul stated that, after considering
comments expressing concerns regarding the monitoring, she
53
“conclude[d] that current reporting and monitoring is sufficient to
monitor catch against ACLs/sub-ACLs.” Id. at 6255. She explained
that herring quotas can be monitored by weekly reports with
verification by comparison to dealer reports, and stated that the
agency would continue to develop improvements to the reporting
system in Amendment 5. Id. While NMFS may not have performed an in-
depth analysis, it reasonably relied on a policy that has been in
place since 2004 and which underwent its own notice and comment
process before being adopted. See 69 Fed. Reg. 13482 (Mar. 23,
2004).
Most importantly, though, Plaintiffs provide no evidence--in
this case--that this longstanding monitoring system, while far from
perfect, was not “diligently researched and based on sound
science.” Ocean Conservancy, 394 F. Supp. 2d at 157; N.C. Fisheries
Ass’n, 518 F. Supp. 2d at 85. While there are serious concerns
about the efficacy of the current monitoring system, see AR 651,
the Court must nonetheless afford “a high degree of deference to
agency actions based on an evaluation of complex scientific data.”
Am. Oceans Compaign v. Daley, 183 F. Supp. 2d at 4. Therefore,
Plaintiffs have not demonstrated that Defendants’ approval of
Amendment 4's monitoring system was arbitrary and/or capricious.
2. Specific Accountability Measures
Amendment 4 designates three management measures--two measures
which were previously in place and one new policy--as AMs for the
54
Atlantic herring fishery. AR 6327; 50 C.F.R. § 648.201(a). The
first AM is a management area closure device intended to prevent
ACL overages. This AM prohibits vessels from catching more than
2000 lbs of Atlantic herring per day once NMFS has determined that
catch will reach 95% of the annual catch allocated to the given
management area. 50 C.F.R. § 648.201(a)(1). The second AM, known as
the haddock incidental catch cap, attempts to prevent ACL overages
by limiting Atlantic herring catch to 2000 lbs per day once NMFS
has determined that the limit on incidental haddock catch has been
reached. Id. § 648.201(a)(2). The third, and final, AM aims to
mitigate ACL overages by deducting the amount of any overage from
the relevant ACL or sub-ACL for the fishing year following NMFS’s
determination of the overage. Id. § 648.201(a)(3). Plaintiffs argue
that each of these AMs is fundamentally flawed. Pls.’ Mot. 31-33.
a. Management Area Closure
Plaintiffs criticize the management area closure measure
because it has not always prevented ACL overages in the past. Id.
at 31. Plaintiffs claim that the measure “has already proven to be
ineffective,” id., and that “Defendants acknowledge that [it] has
already failed to work.” Pls.’ Reply 18. Plaintiffs erroneously
characterize a more nuanced response from Defendants as a
significant concession. What the Administrative Record actually
demonstrates is that NMFS recognized that in 2010, a particular
management area experienced an overage of 138% of its quota, but
55
that “[w]hen there is a pulse of fishing effort on a relatively
small amount of unharvested quota . . . the chance of quota overage
exists, regardless of reporting or monitoring tools.”16 AR 6328;
Defs.’ Mot. 28. Indeed, the Council considered this issue and
concluded that, “[w]hile some overages have been experienced, the
frequency and degree of overage has not been significant enough to
compromise the health of the resource complex as a whole.” AR 6077.
Plaintiffs nonetheless argue that the management area closure
measure violates the MSA because it permits some overages despite
MSA’s requirements (1) that ACLs be set at levels to prevent
overfishing and (2) that AMs prevent catch from exceeding ACLs.
Pls.’ Reply 18-19 (citing 16 U.S.C. § 1853(a)(15); 50 C.F.R. §
600.310(g)(2)).17 This argument is unconvincing.
First, the existence of an ACL overage does not mean that
overfishing is occurring. See 16 U.S.C. § 1802(34) (defining
overfishing as “a rate or level of fishing mortality that
jeopardizes the capacity of a fishery to produce the maximum
sustainable yield on a continuing basis.”). In other words, an
overage does not necessarily establish that the capacity of a
16
According to Defendants, there were a total of three
management area overages in the four Atlantic herring management
areas between 2007 and 2010. Defs.’ Reply. 18, 18 n.20. In addition
to the 38% overage Plaintiffs focus on, one management area
experienced only a 1% overage in 2009 and another management area
experienced only a 5% overage in 2010. Defs.’ Reply, Ex. 2.
17
Plaintiffs actually cite to 50 C.F.R. § 600.310(g)(3), but
both the language quoted and the relevant substance is contained in
§ 600.310(g)(2).
56
fishery to produce the maximum sustainable yield on a continuing
basis is being jeopardized. Indeed, the entire purpose of the
process by which ACLs are generated is to create an effective
buffer between ACLs and overfishing limits. See supra Part III.D.
Second, the National Standard 1 guidelines cited by Plaintiffs
do not, as Plaintiffs claim, state that “NMFS must ‘prevent catch
from exceeding ACLs.’” Pls.’ Reply 19 (quoting 50 C.F.R. §
600.310(g)(2)). The full text of that provision reads, “[w]henever
possible, FMPs should include inseason monitoring and management
measures to prevent catch from exceeding ACLs.” 50 C.F.R. §
600.310(g)(2) (emphasis added). Indeed, these guidelines
specifically require AMs that can correct ACL overages when they
occur. Id. § 600.310(g)(3). Such AMs would hardly be necessary if
NMFS was under an obligation to guarantee that overages never
occur. In sum, Plaintiffs have not demonstrated that the one
example of an admittedly very high overage in 2010 demonstrates
that the use of the management area closure AM is fundamentally
flawed.
b. Haddock Incidental Catch Cap
Plaintiffs argue that because the haddock incidental catch cap
“is an accountability measure for haddock, which is managed in the
Northeast Multispecies FMP,” it “is irrelevant as an accountability
measure for the Atlantic herring ACL.” Pls.’ Mot. 31. Defendants
respond that, even though the cap only covers incidental catch of
57
haddock, it “is likely to have real benefits to the herring stock”
and that “[a]ccountability measures are management tools that work
together to help prevent a fishery from exceeding its ACL.” Defs.’
Mot. 28-29. Simply put, Plaintiffs argue that only measures
designed to enforce ACLs or mitigate ACL overage can be considered
AMs, while Defendants claim that any measure that might have the
effect of reducing catch, and thereby helping to keep it at a level
within an ACL, can constitute an AM.
Plaintiffs have the better of this argument. The statute
requires, in unambiguous language, that FMPs include “measures to
ensure accountability” with “annual catch limits.” 16 U.S.C. §
1853(a)(15). “Accountability” means “the quality or state of being
accountable, liable, or responsible.” Webster’s Third New
International Dictionary 13 (1993). The management area closure
measure discussed above clearly fits this definition: it holds
fishermen and women accountable for abiding by Atlantic herring
ACLs by restricting the amount of fish they catch when they get
close to the limit on Atlantic herring. The haddock catch cap has
no such effect. It merely holds fishermen and women accountable for
incidentally catching too much haddock by limiting their ability to
fish when the cap is reached. Fishermen and women may far exceed
any Atlantic herring ACL and still happily fish for herring so far
as the incidental haddock catch cap is concerned, as long as they
have not accidentally caught too much haddock.
58
Hence, standing alone, the haddock incidental catch cap does
not fulfill the MSA’s demand that FMPs include measures to ensure
accountability for ACLs. 16 U.S.C. § 1853(a)(15). Nonetheless, it
should be noted that nothing prevents NMFS or the Council from
considering the effect of the haddock incidental catch cap when
determining whether the FMP’s AMs satisfy the MSA by, inter alia,
ensuring accountability with ACLs and preventing overfishing. Id.
§§ 1851(a), 1853(a)(15); see also 50 C.F.R. § 600.310(g).
c. Overage Deduction
The overage deduction AM is intended to satisfy Defendants’
responsiblity, when an ACL is exceeded, “as soon as possible to
correct the operational issue that caused the ACL overage, as well
as any biological consequences to the stock or stock complex
resulting from the overage when it is known.” 50 C.F.R. §
600.310(g)(3). The overage deduction AM provides that any overage
in a given year is subtracted from a subsequent year’s ACL or sub-
ACL, so that violating catch limits in one year lowers the
permissible catch in a future year. 50 C.F.R. § 648.201(a)(3). The
logic of this AM is simple: the effects of catching too much fish
will be corrected by reducing the amount of fish caught in the
future.
Plaintiffs argue that this AM violates the mandate to correct
ACL overages “as soon as possible” because the overage deduction is
taken not in the fishing year immediately following the overage,
59
but rather in the year after. Pls.’ Mot. 32; AR 6327. Defendants
contend that “[i]t is not possible to require payback of overages
in the next year because the final data is not available
immediately.” Defs.’ Mot. 29.
The issue presented is whether the decision that a year-long
delay is necessary was “rational and supported by the record,” C&W
Fish, 931 F.2d at 1562, and was “diligently researched and based on
sound science.” Ocean Conservancy, 394 F. Supp. 2d at 157. In
response to concerns over the delay, NMFS explained that “[t]he
herring fishing year extends from January to December.” AR 6328.
Because the “fishery can be active in December,” “information on
bycatch of herring in other fisheries is not finalized until the
spring of the following year,” and NMFS must “provide sufficient
notice to the industry,” the overage deduction cannot be taken in
the year immediately following the year of the overage. Id. That
is, Defendants just do not have all the necessary information nor
the necessary time to calculate overages when one fishing year ends
in December and the next begins in January.18
In addressing the issue, the Council and NMFS did consider the
impact of the delay on the fishery. The Final Rule explains that
“[h]erring is a relatively long-lived species (over 10 years) and
multiple year classes are harvested by the fishery.” Id. “These
18
Defendants also point out in their briefing that “Federal
dealer data is not finalized until the spring of the following year
and state dealer data is finalized even later,” and this data is
used in confirming overage calculations. Defs.’ Reply 21.
60
characteristics suggest that the herring stock may be robust to a
single year delay in overage deductions.” Id. More importantly,
“[t]here is no evidence that a single year delay is more likely to
affect the reproductive potential of the stock than an overage
deduction in the year immediately following the overage.” Id.
Plaintiffs do not offer any evidence that the necessary
calculations for the Herring fishery can be completed in time to
avoid the delay in overage deduction, nor do they offer “some
indication that superior or contrary data was available and that
the agency ignored such information.” N.C. Fisheries Ass’n, 518 F.
Supp. 2d at 85. Instead, Plaintiffs assert that “corrective
measures in the fishery are not routinely delayed,” Pls.’ Mot. 32,
and that Defendants “have implemented next-year overage deductions
in other fisheries.” Pls.’ Reply 20. These claims are not enough to
show that Defendants’ analysis of the needs of this fishery, as
outlined above, were unreasonable or based on unreliable
information. Bloch, 348 F.3d at 1070; C&W Fish, 931 F.2d at 1562;
Ocean Conservancy, 394 F. Supp. 2d at 157.
In sum, Amendment 4 includes two AMs, supplemented by the
haddock incidental catch cap, designed to prevent ACL overages and
to correct overages when they occur. 50 C.F.R. § 600.310(g). While
Plaintiffs have identified what they perceive to be weaknesses with
the AMs, they have failed to offer evidence that undermines
Defendants’ own showing of a reasonable decisionmaking process or
61
that demonstrates Defendants’ rejection of superior information.
Particularly in light of the need for deference in this technical
and complex area, the Court must defer to Defendants’ conclusion
that Amendment 4's AMs satisfy the requirements of the MSA. Am.
Oceans Campaign, 183 F. Supp. 2d at 14.
F. Compliance with NEPA
Finally, Plaintiffs argue that Defendants’ Environmental
Assessment (“EA”) and Finding of No Significant Impact (“FONSI”)
violate NEPA. NEPA’s requirements are “procedural,” calling upon
“agencies to imbue their decisionmaking, through the use of certain
procedures, with our country's commitment to environmental
salubrity.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d
190, 193-94 (D.C. Cir. 1991). “NEPA does not mandate particular
consequences.” Id. at 194.
Under NEPA, agencies must prepare an EIS for “major Federal
actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). In an EIS, the agency must
“take a ‘hard look’ at the environmental consequences before taking
a major action.” Baltimore Gas & Elec. Co., 462 U.S. at 97 (1983)
(citations omitted).
However, NEPA provides agencies with a less burdensome
alternative--in certain situations, an EA, which is a less thorough
report, may suffice. Monsanto Co. v. Geerston Seed Farms, 130 S.
Ct. 2743, 2750 (2010) (citing 40 C.F.R. §§ 1508.9(a), 1508.13). An
62
EA is a “concise public document” that “[b]riefly provide[s]
sufficient evidence and analysis for determining whether to prepare
an environmental impact statement or a finding of no significant
impact.” 40 C.F.R. § 1508.9(a).19 After completion of an EA, an
agency may conclude that no EIS is necessary. If so, it must issue
a FONSI, stating the reasons why the proposed action will not have
a significant impact on the environment. Id. § 1501.4(e).
In reviewing an EA or FONSI, courts consider four factors.
Courts must determine whether the agency:
“(1) has accurately identified the relevant
environmental concern, (2) has taken a hard
look at the problem in preparing its [FONSI or
Environmental Assessment], (3) is able to make
a convincing case for its finding of no
significant impact, and (4) has shown that
even if there is an impact of true
significance, an EIS is unnecessary because
changes or safeguards in the project
sufficiently reduce the impact to a minimum.”
Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011)
(quoting TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006))
(alterations in Van Antwerp).
Courts review EAs and FONSIs under the familiar arbitrary or
capricious standard of the APA. Van Antwerp, 661 F.3d at 1154; see
19
Regulations interpreting NEPA’s EIS and EA requirements have
been promulgated by the Council of Environmental Quality (“CEQ”).
See 40 C.F.R. § 1500.1 et seq. Although “the binding effect of CEQ
regulations is far from clear,” TOMAC v. Norton, 433 F.3d at 861
(D.C. Cir. 2006), both agencies and courts have consistently looked
to them for guidance. See, e.g., Sierra Club v. Van Antwerp, 661
F.3d 1147, 1154-55 (D.C. Cir. 2011); Town of Cave Creek, Ariz. v.
FAA, 325 F.3d 320, 327-332 (D.C. Cir. 2003); Grand Canyon Trust v.
FAA, 290 F.3d 339, 341-42 (D.C. Cir. 2002).
63
also Pub. Citizen, 541 U.S. at 763 (“An agency’s decision not to
prepare an EIS can be set aside only upon a showing that it was
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.”); Town of Cave Creek, Ariz. v. FAA, 325 F.3d
320, 327 (D.C. Cir. 2003).
Plaintiffs allege a host of deficiencies with Defendants’ EA
and FONSI. Their claims fall into two categories: (1) Defendants
unlawfully segmented their decisionmaking and prejudged the
environmental impacts of Amendment 4 to avoid preparing an EIS; and
(2) Defendants failed to take a hard look at Amendment 4's
environmental consequences.20 Pls. Mot. 34-44.
1. Segmented Decisionmaking & Prejudgment
Plaintiffs advance two arguments that Defendants’ EA was
procedurally improper. First, Plaintiffs claim that Defendants
unlawfully divided certain actions between Amendments 4 and 5 in
order to cast Amendment 4 as insignificant and escape the EIS
20
Because the Court concludes, for the reasons given below,
that Defendants’ failed to take a “hard look at the problem,” Van
Antwerp, 661 F.3d at 1154, it will not reach the third set of
Plaintiffs’ NEPA claims, namely that Defendants erroneously
concluded that Amendment 4 will not have a significant
environmental impact. Plaintiffs argue that Defendants failed to
evaluate the cumulative impacts of Amendment 4, as they must when
determining significance, and that Defendants’ determination that
the action had insignificant effects was in error. Pls.’ Mot. 34-
38, 41-42. Defendants’ main response is that Amendment 4's adoption
of an ABC control rule and AMs was procedural only, and did not
substantively affect the fishery. Defs.’ Mot. 39-40. In any case,
Defendants will have to reassess this conclusion after taking a
‘hard look’ at Amendment 4's impacts.
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requirement. Pls.’ Mot. 38-39. Plaintiffs are correct that
“‘[a]gencies may not evade their responsibilities under NEPA by
artificially dividing a major federal action into smaller
components, each without significant impact.’” Jackson Cnty., N.C.
v. FERC, 589 F.3d 1284, 1290 (D.C. Cir. 2009) (quoting Coal. on
Sensible Transp., Inc. v. Dole, 826 F.2d 60, 68 (D.C. Cir. 1987));
see also 40 C.F.R. § 1508.25(a)(1) (“Connected actions” are actions
that are “closely related and therefore should be discussed in the
same impact statement.”). However,
“The rule against segmentation . . . is not
required to be applied in every situation. To
determine the appropriate scope for an EIS,
courts have considered such factors as whether
the proposed segment (1) has logical termini;
(2) has substantial independent utility; (3)
does not foreclose the opportunity to consider
alternatives, and (4) does not irretrievably
commit federal funds for closely related
projects.”
Jackson Cnty., 589 F.3d at 1290 (quoting Taxpayers Watchdog, Inc.
v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987)).
There is no evidence whatsoever in the Administrative Record
that Defendants sought to escape their responsibilities under NEPA
“by disingenuously describing [the Atlantic herring FMP] as only an
amalgamation of unrelated smaller projects.” Nat’l Wildlife Fed’n
v. Appalachian Reg’l Comm’n, 677 F.2d 883, 890 (D.C. Cir. 1981).
Although the Court has rejected the basis for NMFS’s decision not
to consider certain issues before the 2011 statutory deadline,
supra Part III.B.1., there is no suggestion that NMFS reduced the
65
scope of Amendment 4 to avoid preparing an EIS. Amendment 4 sets
out ACLs and AMs for Atlantic herring. Amendment 5 has been
proposed to consider, inter alia, the composition of the fishery
and updated monitoring systems. There is no doubt that Amendment 4
has logical termini, has substantial independent utility, does not
foreclose future alternatives, and does not irretrievably commit
federal funds for closely related projects. Jackson Cnty., 589 F.3d
at 1290.
Second, Plaintiffs argue that Defendants “unlawfully pre-
determined that only an EA would be necessary for Amendment 4.”
Pls.’ Mot. 40. In this context, “predetermination occurs only when
an agency irreversibly and irretrievably commits itself to a plan
of action that is dependent upon the NEPA environmental analysis
producing a certain outcome.” Forest Guardians v. U.S. Fish and
Wildlife Serv., 611 F.3d 692, 714 (10th Cir. 2010) (emphasis in
original); see also Air Transp. Ass’n of Am., Inc. v. Nat’l
Mediation Bd., 663 F.3d 476, 488 (D.C. Cir. 2011) (“‘strong’
evidence of ‘unalterably closed minds’ [is] necessary to justify
discovery into the Board's decisionmaking process” on the basis of
prejudgment); C&W Fish, 931 F.2d at 1565 (“an individual should be
disqualified from rulemaking ‘only when there has been a clear and
convincing showing that the Department member has an unalterably
closed mind on matters critical to the disposition of the
66
proceeding.’”) (quoting Ass’n of Nat’l Advertisers, Inc. v. FTC,
627 F.2d 1151, 1170 (D.C. Cir. 1979)).
Plaintiffs have not met the “high standard to prove
predetermination.” Forest Guardians, 611 F.3d at 714. Plaintiffs’
only evidence that Defendants had unalterably closed minds is (1)
the statement in the December 17, 2009 memorandum by NMFS’s
Assistant Regional Administrator for Sustainable Fisheries that “I
have determined that, based on our initial review of the proposed
subject project and the criteria provided in Sections 5.04 and 6.03
d.2 of NAO 216-6, an environmental assessment is the appropriate
level of NEPA review for that project,” AR 5639, and (2) the line
in the December 28, 2009 Notice of Intent, announcing the narrowed
scope of Amendment 4, that “the Council intends to prepare an EA
for the action.” AR 5641. Neither of these statements rises to the
level of irreversibly or irretrievably committing NMFS to a certain
course of action. Forest Guardians, 611 F.3d at 714. An
administrator’s statement of an opinion, based upon review of the
action’s subject matter and relevant regulatory guidance, suggests
conscious thought rather than prejudgment, and does not lead to the
conclusion that the administrator would not change his or her mind
upon review of the full EA.
In sum, Plaintiffs have failed to demonstrate that Defendants
unlawfully avoided the responsibility of preparing an EIS by either
67
improperly segmenting their actions or predetermining the outcome
of the EA.
2. Hard Look
In order to pass muster under NEPA, Defendants’ EA and FONSI
must have “taken a hard look at the problem.” Van Antwerp, 661 F.3d
at 1154. Defendants argue that NMFS took a “hard look” at the
environmental impact of its action, including the effects on
relevant ecosystem components, the Atlantic herring stock, the
essential fish habitat, protected species, and non-target/bycatch
species, as well as economic and social impacts. Defs.’ Mot. 34-35
(citing AR 6032, 6185-201). Plaintiffs do not challenge these
arguments. Rather, the thrust of Plaintiffs’ argument is that
Defendants failed to consider the potential impact of reasonable
alternatives. Pls.’ Mot. 36, 42-44.
Environmental Assessments must include a “brief discussion
. . . of alternatives . . . [and] of the environmental impacts of
the proposed action and alternatives.” 40 C.F.R. § 1508.9(b). In
considering the analogous requirement for an EIS, our Court of
Appeals explained that “the agency's choice of alternatives are
. . . evaluated in light of [its reasonably identified and defined]
objectives; an alternative is properly excluded from consideration
in an environmental impact statement only if it would be reasonable
for the agency to conclude that the alternative does not ‘bring
about the ends of the federal action.’” City of Alexandria, Va. v.
68
Slater, 198 F.3d 862, 867 (D.C. Cir. 1999) (quoting Citizens
Against Burlington, 938 F.2d at 195). Although an EA generally
imposes less stringent requirements on an agency than an EIS, it is
clear that an EA’s “hard look” must include consideration of
reasonable alternatives. Am. Oceans Campaign, 183 F. Supp. 2d at
19-20; Citizens Exposing Truth About Casinos v. Norton, No. CIV A
02-1754 TPJ, 2004 WL 5238116, at *9 (D.D.C. Apr. 23, 2004); Fund
for Animals v. Norton, 281 F. Supp. 2d 209, 225 (D.D.C. 2003).
Plaintiffs argue that Defendants should have, but failed to
consider the impacts of (1) ACLs and AMs for river herring, (2)
potential alternative ABC control rules, (3) potential improvements
to the current monitoring system, and (4) alternatives for
addressing bycatch. Pls.’ Mot. 35-36, 43-44. As to the failure to
consider ACLs or AMs for river herring21 or alternatives for
21
Defendants have directed the Court’s attention to the
decision in Oceana, 2011 WL 6357795. Defs.’ Notice of Supp.
Authority [Dkt. No. 25]. In that case, the court held that NEPA did
not require NMFS to consider the composition of the fishery in its
EIS. Id. at *28-30. However, in Oceana, the court focused on the
challenged amendment’s purpose to implement “‘a broad range of
measures designed to achieve mortality targets, provide
opportunities to target healthy stocks, mitigate (to the extent
possible) the economic impacts of the measures, and improve
administration of the fishery,’” and concluded that the defendants
acted within the scope of the amendment’s objectives. Id. at *29
(quoting the final amendment) (emphasis in Oceana).
In contrast, in this case, Amendment 4's purpose is “to bring
the FMP into compliance with new [MSA] requirements” by setting
ACLs and AMs. AR 6325; see also AR 5640 (purpose of Amendment 4 is
“to bring the FMP in compliance with [MSA] requirements to specify
annual catch limits (ACLs) and accountability measures (AMs).”).
For the reasons spelled out above, supra part III.B, Defendants
(continued...)
69
addressing bycatch, the Court concludes that, for the reasons
stated supra Parts III.B-C, Defendants have failed to include a
discussion of reasonable alternatives. 40 C.F.R. § 1508.9(b).
Defendants have not provided a reasoned explanation for why they
could not and did not consider these alternatives, which clearly
would “bring about the ends of the federal action,” City of
Alexandria, 198 F.3d at 867 (internal quotation omitted), which
were “to bring the FMP into compliance with new [MSA] requirements”
by setting ACLs and AMs. AR 6325.
As to alternatives to the ABC control rule and monitoring,
Defendants argue that it was reasonable to delay further
consideration until Amendment 5.22 Defs.’ Mot. 40-41. This response
is unsatisfactory. A central function of NEPA’s requirements is for
the agency to consider environmental impacts “[b]efore approving a
project.” City of Alexandria, 198 F.3d at 866. Therefore, delaying
consideration of relevant and reasonable alternatives until a
future date violates the “hard look” requirement. 40 C.F.R.
§ 1508.9(b); Am. Oceans Campaign, 183 F. Supp. 2d at 19-20;
21
(...continued)
could not fulfill the purpose of their proposed Amendment 4 to
comply with the strict new MSA requirements without giving some
reason for their decision to name only Atlantic herring as a stock
in the fishery.
22
Defendants also claim that it was proper to delay
consideration of a permanent ABC control rule until obtaining “a
proper scientific basis.” Defs.’ Mot. 41. This argument misses the
point. Even if setting an “interim” ABC control rule, Defendants
could have considered alternative interim ABC control rules. See
Pls.’ Mot. 43.
70
see also Found. on Econ. Trends v. Heckler, 756 F.2d 143, 158 (D.C.
Cir. 1985) (“agency determinations about EIS requirements are
supposed to be forward-looking”); Nat’l Wildlife Fed’n, 677 F.2d at
889 (“‘the basic function of an EIS is to serve as a
forward-looking instrument to assist in evaluating proposals for
major federal action’”) (quoting Aersten v. Landrieu, 637 F.2d 12,
19 (1st Cir. 1980)).
More importantly, Defendants’ EA demonstrates a total failure
to consider the environmental impacts of alternatives to the
proposed ABC control rule or AMs. The EA does contain a section
entitled “Environmental Impacts of Management Alternatives,” but
this section only compares the effects of the proposed ACL and AM
rules to “no action” alternatives. AR 6037, 6185-95. As the EA
itself admits, the “no action” alternative is in fact no
alternative at all--taking no action would result in a plain
violation of the MSA’s ACL and AM requirements.23 16 U.S.C. §
1853(a)(15); AR 6185. Obviously, actions that would violate the MSA
cannot be reasonable alternatives to consider. Am. Oceans Campaign,
23
This is another reason that Oceana is not applicable to this
case. In Oceana, the so-called “‘no-action’ alternative” actually
entailed using the MSY Control Rule as the ABC control, thereby
fulfilling the MSA’s mandate to set in place a process for
establishing ACLs. 2011 WL 6357795, at *31-35. By contrast, in this
case, in Defendants’ own words, “[u]nder the no action alternative
no process for setting ACLs would be established” and therefore
“the alternative fails to comply with the MSA or NS1 Guidelines.”
AR 6185. Hence, in Oceana, the no action alternative was legally
permissible, whereas for Amendment 4 the no action alternative is
not a legally viable option.
71
183 F. Supp. 2d at 20 (finding failure to consider reasonable
alternatives where EAs did “not even consider any alternatives
besides the status quo (which would violate the FCMA).”).
Equally conspicuous is the fact that while Amendment 4 does
contain analysis of rejected alternatives in its substantive
sections, there is no related consideration of environmental
impacts in its Environmental Assessment. For example, the Council
considered alternate ABC control rules, such as use of a one-year
or five-year average for defining recent catch, and AMs, such as
closure of management areas at a lower percentage of ACL,
establishment of a threshold/trigger for an in-season adjustment to
ACL, and establishment of a lower trigger for closing the fishery
in the following year, to name a few. AR 6083-84, 6088. Tellingly,
none of these alternatives receive any treatment in the
Environmental Assessment.
In the absence of consideration of alternatives, the Court
cannot say that Defendants took a “hard look” at Amendment 4's
environmental impacts. 40 C.F.R. § 1508.9(b); Van Antwerp, 661 F.3d
at 1154; Am. Oceans Campaign, 183 F. Supp. 2d at 20. Therefore,
Defendants’ reliance on Amendment 4's EA and resulting FONSI was
arbitrary and capricious. Van Antwerp, 661 F.3d at 1154; Pub.
Citizen, 541 U.S. at 763.
72
G. Remedy
The question of the appropriate remedy in this case presents
substantial complexities. Plaintiffs argue that the Court “has the
power to design a remedy that both establishes a deadline and
directs the Defendants to take specific actions to comply with the
law” and that the Court ought to vacate Amendment 4. Pls.’ Supp.
Mem. 4-5. Defendants argue that Plaintiffs’ requests “conflict[]
with the law of this Circuit” and urge the Court to remand to the
agency for further consideration. Defs.’ Mot. 42. The question of
remedy is further complicated by the fact that many of Amendment
4's deficiencies may be remedied by Amendment 5, which is already
under consideration, with a targeted implementation date of January
1, 2013. Defs.’ Mot., Ex. 2. At oral argument, the parties
requested an opportunity to further brief the remedy issue, should
Plaintiffs’ prevail in any of their claims. Therefore, the Court
will withhold judgment on the question of remedy. The accompanying
Order contains a briefing schedule to resolve this issue.
IV. CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for
Summary Judgment is granted in part and denied in part and
Defendants’ Motion for Summary Judgment is granted in part and
denied in part.
73
An Order will issue with this opinion.
/s/
March 8, 2012 Gladys Kessler
United States District Judge
Copies to: counsel of record via ECF
74