Anglers Conservation Network v. Pritzker , 139 F. Supp. 3d 102 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGLERS CONSERVATION
NETWORK, et al . ,
Plaintiffs,
v. Civil Action No. 14-509 (GK)
PENNY PRITZKER, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Anglers Conservation Network, Paul Eidman, Gateway
Striper Club, Inc., and Philip Lofgren (collectively,
"Plaintiffs"), bring this case against Secretary of the Department
of Commerce Penny Pritzker ("the Secretary"), the National Oceanic
and Atmospheric Administration ("NOAA"), and the National Marine
Fisheries Service ( "NMFS") (collectively, "Defendants" or "the
Government") pursuant to the Magnuson-Stevens Fishery Conservation
and Management Act ("MSA" or "the Act"), 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. §§ 701 et seq.
Plaintiffs challenge various elements of a Rule that
Defendants promulgated amending the fishery management plan
governing the Mackerel, Squid, and Butterfish ("MSB") fishery off
of the eastern coast of the United States. Specifically, Plaintiffs
contend that Defendants unlawfully failed: (1) to include four
species of river herring and shad as "stocks" to be regulated by
the MSB fishery management plan; (2) to adopt observation measures
necessary to prevent overfishing of the relevant river herring and
shad species; and ( 3) to adequately consider the environmental
impact of its chosen course.
This matter is before the Court on Plaintiffs' and Defendants'
Cross-Motions for Summary Judgment [Dkt. Nos. 30, 31]. Upon
consideration of the Motions, Oppositions [ Dkt. Nos. 32, 3 6] ,
Replies [Dkt. Nos. 36, 38], and the entire record herein, and for
the reasons set forth below, the Motions for Summary Judgment filed
by the Parties shall be granted in part and denied in part.
I . BACKGROUND
A. · Statutory Background
1. 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. § 180l(b) (1). The Act
establishes a federal-regional framework "for the conservation and
management of the fishery resources of the United States" in order
to "prevent overfishing," "rebuild overfished stocks," "[e]nsure
conservation," and "facilitate long-term protection of essential
fish habitats." Id. § 1801 (a) ( 6); see also Natural Res. Def.
Council, Inc. v. Daley, 209 F.3d 747, 749 (D.C. Cir. 2000).
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Regulation of fisheries is accomplished through fishery management
plans ("FMPs") that are developed and prepared by independent
regional fishery management councils ("councils") and approved,
implemented and enforced by NMFS, 1 a division within the Department
of Commerce. See 16 U.S.C. §§ 1853-1854.
The MSA divides the United States into eight regions, each of
which is represented by an independent fishery management council.
See id. § 1852 (a) (1). Councils are composed primarily of members
who represent the interests of the states included in their region
and who are appointed by the Secretary from a list of individuals
submitted by the governor of each constituent state. Id.
§ 1852 (b) (1), (2); see also C & W Fish Co. v. Fox, Jr., 931 F.2d
1556, 1557-58 (D.C. Cir. 1991). The remaining voting members of
each council consist of the principal marine fishery management
officials from each constituent state and the regional director of
NMFS for the related geographic area. 16 U.S.C. § 1852 (b) (1) (A),
( B) .
Each council is required to prepare and submit to the
Secretary (acting through NMFS) a fishery management plan and any
necessary amendments to such plan, "for each fishery under its
authority that requires conservation and management[.]" Id.
1 The Secretary has delegated her authority to approve or
disapprove plans and their amendments under 16 U.S.C. § 1854 (a) (3)
to NMFS. Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 101 (D.D.C.
2011).
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§ 1852(h) (1). The term "fishery" is defined in the Act 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; and [] any fishing for such stocks." Id.
§ 1802(13). The term "stock of fish," in turn, is defined as "a
species, subspecies, geographical grouping, or other category of
fish capable of management as a unit." 16 U.S.C. § 1802(42).
A fishery management plan must describe the species of fish
involved in the fishery and specify the "conservation and
management measures" that are "necessary and appropriate" to
"prevent overfishing and rebuild overfished stocks, and to
protect, restore, and promote the long-term health and stability
of the fishery[.]" Id.§ 1853(a)(l)(A), (2).
After a council prepares and approves a fishery management
plan or amendment, it is sent to NMFS, which reviews it for
consistency with the MSA and other applicable laws and publishes
it in the Federal Register for notice and comment. Id. §
1854(a) (1). After a 60-day notice and comment period, NMFS must
"approve, disapprove, or partia.lly approve a plan or amendment [,]"
taking into account the views and comments of interested persons.
Id. § 1854 (a) (2), (3).
If NMFS approves a plan or amendment, or does not expressly
disapprove it within 30 days, it becomes effective. Id.
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§ 1854 (a) (3). If NMFS disapproves or partially approves the plan
or amendment, NMFS must thereafter notify the council of "the
applicable law with which the plan or amendment is inconsistent";
the "nature of such inconsistencies"; and specific "actions that
could be taken by the Council to conform such plan or amendment to
the requirements of applicable law." Id. § 1854 (a) (3). The council
"may" thereafter "submit a revised plan or amendment to the
Secretary for review [.]" Id. § 1854 (a) (4).
2. National Environmental Policy Act
Congress enacted NEPA in order "to use ~11 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. § 4 331 (b) . To accomplish
that goal, NEPA requires all federal agencies to prepare an
Environmental Impact Statement ("EIS") whenever they propose
"major Federal actions significantly affecting the quality of the
human environment." Id. § 4332 (2) (C) . The EIS must "present the
environmental impacts of the proposal and the alternatives in
comparative form, thus sharply defining the issues and providing
a clear basis for choice among options by the decisionmaker and
the public." 40 C.F.R. § 1502.14.
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B. Factual Background2
1. Shad and River Herring
At the center of this case are four species of anadromous
fish, that is, fish that spend most of their lives in ocean waters
but migrate upstream to fresh water in the spring to spawn. See
AR 11408. Anadromous fish play a critical role in the biology of
rivers, estuaries and ocean waters along the Atlantic seaboard as
prey for many species of fish, birds, and marine mammals. AR 8265,
8268, 8291, 8416, 12818, 12947, 13498.
Two of the four species at issue in this case are known as
river herring. They are: Alewife (alosa pseudoharengus), which
are most abundant in the Mid-Atlantic and Northeastern states, and
blueback herring (alosa aestivalis), which are found from Nova
Scotia to northern Florida and are most abundant in waters south
of the Chesapeake Bay. AR 1148. Alewife spawn in rivers, creeks,
lakes, and ponds over rocks, detritus, submerged aquatic
vegetation, and sand. Id. Blueback herring generally prefer to
2 Plaintiffs' briefs contained citations to factual materials
beyond the scope of the Administrative Record. The Government
objected to the Court's consideration of those materials and
accordingly, filed a Motion to Strike Extra-Record Documents and
Citations [Dkt. No. 33]. The Court granted that Motion [Dkt. No.
4 4] .
For these reasons, the facts that follow are drawn solely
from the Administrative Record ("AR") [Dkt. No. 43] compiled by
NMFS.
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spawn over sand or gravel in swift-flowing areas of rivers and
tributaries. Id.
The other two species are known as shad. They are: American
Shad (alosa sapidissima), which historically populated all major
North American rivers from Maine to the east coast of Florida. AR
11201, 11411. American shad stocks are river-specific, which is to
say that each major tributary along the Atlantic coast provides
the spawning area for a particular stock of American shad. Id. The
other species is Hickory Shad (alosa mediocris) of which less is
known. "[D]istribution and movements of hickory shad are
essentially unknown after they return to the ocean"; however, "due
to harvest along the southern New England coast in the summer and
fall it is assumed that they also follow a migratory pattern
similar to the American shad[.]" AR 11411.
The Administrative Record is not entirely clear as to the
current status of the shad and river herring. Portions indicate
that the four species are relatively numerous, whereas others show
diminishing numbers. Compare 78 Fed. Reg. 48,944, 48,992 with
AR 10438.
For example, in May 2012 the Atlantic States Marine Fisheries
Commission ( "ASMFC") performed an assessment of 52 stocks of
alewife and blueback herring. AR 12921. However, the ASMFC lacked
sufficient data to develop estimates of abundance and fishing
mortality for 28 of the 52 stocks. Id. Of the 24 stocks for which
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data were available, 23 were depleted relative to historic levels
and one stock was increasing. Id.
By contrast, in 2013, relying on the blueback herring's coast-
wide population growth rate, NMFS concluded that the relative
abundance of blueback herring throughout its range is stable. 78
Fed. Reg. 48,944, 48,992. Moreover, there are at least three
contiguous populations of alewife that are either stable or
significantly increasing. Id. From a coast-wide perspective, the
trajectory of the alewife population is significantly increasing
and all of the stock complexes are stable or significantly
increasing. Id.
On August 12, 2013, NMFS issued a 50-page decision finding
that listing river herring (i.e., both alewife and blueback
herring) as threatened or endangered under the Endangered Species
Act ("ESA") was not warranted. See 78 Fed. Reg. 48,944. NMFS
determined that neither species of river herring was in danger of
extinction or likely to become so for the foreseeable future to
2030. Supp. AR, 78 Fed. Reg. at 4~,993.
The pattern of mixed and limited data continues with both
species of shad. In 2012, the Mid-Atlantic Fisheries Management
Council ("the Council") set out to study 32 stocks of American and
hickory shad. AR 12924. The Council found that it lacked sufficient
information to make any conclusions about eight of the 32 stocks.
Id. However, it was ·able to conclude that 11 stocks were depleted
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relative to historic levels, 2 were increasing, and 11 were stable.
Id. The lack of adequate data has prevented any reliable
assessments of the stock abundance and fishing mortality of shad.
AR 8 5 6 7 , 8 8 0 5 , 9 2 2 7 .
2. Mackerel, Squid and Butterfish Fishery Management
Plan
The Mid-Atlantic Fisheries Management Council established the
Atlantic Mackerel, Squid and Butterfish Fishery Management Plan in
1983. The Council manages these three species as a single unit
because of their similarities in fishing seasons and vulnerability
to common threats, including the threat of by-catch from foreign
fleets. River herring (alewife and blueback herring) and shad
(American shad and hickory shad) are anadromous species that co-
occur seasonally with mackerel; fishermen harvest them as
incidental catch in the mackerel fishery. 79 Fed. Reg. 10,031 (Feb.
24, 2014). When river herring and shad are encountered in the
mackerel fishery, they are either discarded at sea ("bycatch") or
retained and sold as part of the mackerel catch ("incidental
catch"). Id.; see also AR 11404.
a. Amendment 14
In June 2010, the Mid-Atlantic Fisheries Management Council
published a notice of intent to prepare a new amendment to the MSB
fishery management plan ( "MSB FMP") , known as Amendment 14. 75
Fed. Reg. 32,745; see also 79 Fed. Reg. 10,029 (Feb. 24, 2014). In
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the initial stages of considering the alternative measures that
might be included in Amendment 14, the Council set out to do the
following: "1) improve moni taring and observing of incidental
[river herring and shad] catch; 2) consider ways to reduce [river
herring and shad] catch; and 3) consider adding [river herring and
shad] as managed stocks in the MSB FMP (i.e. as stocks in the
fishery) so as to improve overall [river herring and shad]
conservation." AR 8191.
First, as part of Amendment 14, the Council and NMFS
implemented new measures that are intended to minimize
herring/shad bycatch mortality in the mackerel fishery, and
improve the precision of the Council and NMFS' s estimates of
herring/shad catch and bycatch. After a public comment period,
NMFS partially approved Amendment 14, on November 7, 2013. 79 Fed.
Reg. at 10,029, 10,031. Amendment 14 established a mortality cap
measure for the herring I shad in the mackerel fishery. The cap.
requires the mackerel fishery to close once NMFS has determined
that the mackerel fishery has caused a certain amount of
herring/shad mortality. Id. The Council and NMFS reasoned that
capping the allowed level of river herring and shad catch in the
mackerel fishery would provide a strong incentive for the industry
to continue to avoid river herring and shad, and minimize
encounters with and therefore reduce the bycatch of these species.
Id.
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Second, Amendment 14 also set forth several measures NMFS
intends to initiate in the future to reduce herring/shad bycatch
and bycatch mortality, including the development of a "bycatch
avoidance strategy" with state and university partners. 79 Fed.
Reg. 10,029, 10,034.
In addition, Amendment 14 requires 48-hour pre-trip
notification of intent to retain more than 20, 000 pounds of
mackerel. Id. Such notification is required to ensure that the
Council and NMFS have sufficient notice to assign observers to the
fishing vessels. Id. The notification also requires daily catch
reporting for certain mackerel vessels via the Vessel Monitoring
System in order to facilitate monitoring and cross-checking with
other data sources. Id.
The Amendment also requires six-hour pre-landing notification
via the Vessel Monitoring System to land over 20,000 pounds of
mackerel to allow sufficient notice to facilitate at-sea
monitoring, enforcement, and portside monitoring. Id. The
Amendment expands requirements related to at-sea observer sampling
to help ensure safe sampling and improve data quality. The
Amendment prohibits slippage (i.e., at sea dumping of fish that
have been caught) on limited access mackerel trips with observers
aboard, and requires vessel operators to submit a released catch
affidavit for each slippage event. Id.
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Notably, and at the heart of this case, the final version of
Amendment 14 promulgated by NMFS did not include two measures that
Plaintiffs support. First, the Council recommended a version of
Amendment 14 that would have increased the number of on-board
observers who monitor compliance with applicable law. AR 12799. As
proposed by the Council, observers would have been on 100% of
certain vessels in the MSB fishery and would have been partially
funded by the fishing industry itself. Id. For a variety of reasons
discussed below, NMFS rejected this measure in the final version
of Amendment 14. 79 Fed. Reg. 10,034.
Second, the Council decided not to recommend the addition of
herring/shad stocks to the MSB fishery in Amendment 14. 79 Fed.
Reg. 10, 034. Instead, the Council stated that it would further
consider adding stocks to the fishery in the subsequent Amendment
15. Id.
b. Amendment 15
On June 14, 2012, Defendants and the Council initiated
Amendment 15 "to add [river herring and shad] as stocks in the
fishery," AR 10444, and scoping for the action began in October
2012. 77 Fed. Reg. 65,867. Numerous fishermen and other
stakeholders commented on the need to add river herring and shad
to the MSB FMP. AR 13789. On October 8, 2013, after studying the
issue and considering public comments and testimony, the Council
suspended further consideration of Amendment 15, and instead
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created a new working group to further study the issue for at least
three years. 79 Fed. Reg. 10,034. Plaintiffs challenged the
termination of Amendment 15, and this Court granted Defendants'
Motion to Dismiss that challenge on September 30, 2014. Anglers
Conservation Network v. Pritzker, 70 F. Supp. 3d 427, 441 (D.D.C.
2014) .
C. Procedural Background
On February 24, 2014, NMFS promulgated the final version of
Amendment 14. 79 Fed. Reg. 10029.
On March 26, 2014, while their challenge to the Council's
suspension of Amendment 15 was still pending, Plaintiffs filed
their Complaint challenging Amendment 14 [Dkt. No. 1].
On October 27, 2014, Plaintiffs filed their Motion for Summary
Judgment [Dkt. No. 30]. On December 4, 2014, the Government filed
its combined Cross-Motion for Summary Judgment and Opposition
[Dkt. No. 31]. On December 19, 2014, Plaintiffs filed their
combined Opposition and Reply [Dkt. No. 36), and on January 20,
2015, the Government filed its Reply [Dkt. No. 38] .3
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
3
On September 24, 2015, Defendants filed a Notice of Supplemental
Authority [Dkt. No. 45]. No response was filed. The Court is not
relying upon this last-minute submission by Defendants.
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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), (B), (C), or (D) .");Oceana, Inc. v. Locke, 670 F.3d
1238, 1240-41 (D.C. Cir. 2011); C & W Fish, 931 F.2d at 1562;
Oceana v. Locke, 831 F. Supp. 2d 95, 106, 2011 WL 6357795, at *8
(D.D.C. 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
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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).
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) . 4
4
The purpose of a motion for summary judgment challenging final
agency action is "to test the agency action against the
administrative record." LCvR 7 (h). The Court must evaluate the
agency's decision on the basis of "the full administrative record
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III. ANALYSIS
A. Count I: Failure to Include River Herring and Shad Stocks
in the MSB Fishery
1. The Government's Duty to Consider Adding Stocks to
the Fishery
Plaintiffs contend that the Government violated the APA and
the MSA by refusing to add river herring and shad stocks to the
MSB fishery because NMFS's own data and analysis demonstrate that
the four species at issue are caught in the fishery and require
conservation and management. The Government responds with a
variety of arguments as to why it refused to even consider addition
of river herring and shad stocks to the MSB fishery as part of
Amendment 14. The Government also contends on the merits that its.
decision declining to add new stocks to the fishery was not
arbitrary and capricious.
The Government's first response to Plaintiffs' contention is
that the burden for assessing which stocks should be in a fishery
rests with the regional councils, not NMFS. But this Court has
previously rejected that argument. See Flaherty v. Bryson, 850 F.
that was before the Secretary at the time [she] made [her]
decision." Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402,
420 (1971), abrogated on other grounds by Califano v. Sanders, 430
U.S. 99 ( 1977) . In reviewing agency action, the district court
"sits as an appellate tribunal, not as a court authorized to
determine in a trial-type proceeding whether the Secretary's
[action] was factually flawed." Marshall Cnty. Health Care Auth.
v. Shalala, 988 F.2d 1221, 1225 (D.C. Cir. 1993).
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Supp. 2d 38, 54 (D.D.C. 2012) ("it is [NMFS's] responsibility to
decide whether an FMP, including the composition of its fishery,
satisfies the goals and language of the MSA." (internal citation
omitted)) .
Al though amendments to fishery management plans originate
with the regional fisheries management councils, 16 u.s.c.
§ 1852 (h) (1), ultimate responsibility for the details of any
amendment -- including the decision to add certain stocks to a
fishery -- rests with NMFS. Flaherty, 850 F. Supp. 2d at 54.
Regardless of what the Council recommends, "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 5 is reasonable." Id. at 55 (citing Motor Vehicle Mfrs.
Ass'n, 463 U.S. at 52).
The Government does not dispute that river herring and shad
could be managed as a unit along with the mackerel, squid, and
5 See 16 U.S.C § 1802 (5), which provides that "[t]he term
'conservation and management' refers to 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 of
these resources."
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butterfish. The ultimate question for the Court. is whether the
Government's decision refusing to add river herring and shad stocks
to the MSB fishery was "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. §
706.
Second, the Government contends that it need not have
considered whether to add new stocks to the fishery because the
Council would be considering it as part of Amendment 15. However,
it is well established that promises of future compliance with the
law cannot satisfy the Government's current legal obligation. See
Conservation Law Found. v. Evans, 209 F. Supp. 2d 1, 10 (D.D.C.
2001); see also Oceana, Inc. v. Pritzker, 24 F. Supp. 3d 49, 62
(D.D.C. 2014); Oceana v. Locke, 831 F. Supp. 2d 95, 121-22 (D.D.C.
2011) . Thus, if the Court were to conclude that, based upon the
Administrative Record compiled for Amendment 14, the MSA requires
the addition of river herring and shad stocks to the MSB fishery,
the Government cannot escape Plaintiffs' challenge with the mere
promise to consider the issue as part of a future amendment. 6
6 The Government also notes that in a related case dealing
exclusively with Amendment 15 this Court held that Plaintiffs could
not challenge the Council's failure to proceed with that Amendment.
The Government asserts that "[t]he Court should decline to permit
Plaintiffs to circumvent the Court's previous decision by granting
them the relief they could not obtain in the Amendment 15 case."
Gov't's Reply at 14 (citing Anglers Conservation Network v.
Pritzker, 70 F. Supp. 3d 427, 440 (D.D.C. 2014)). However, despite
the Government's assertions, the opinion the Government cites
sheds no light on whether Plaintiffs may obtain the relief they
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Third, the Government also argues that it need not complete
a wholesale review of which stocks should be in a particular
fishery with each amendment to that fishery's management plan.
Gov't's Mot. at 32 (citing Oceana, Inc. v. Pritzker, 24 F. Supp.
3d 49, 63 (D.D.C. 2014); Pacific Coast Federation of Fishermen's
Associations v. Blank, 693 F.3d 1084, 1102, n.15 (9th Cir. 2012)).
It is true, as Judge Contreras in this District Court has
recognized, that "[i]f the [Government] were required to make a
wholesale reconsideration of which stocks to include in the fishery
every time it amends an FMP, the delay [caused by the amendment
review process] would be much greater." Oceana, Inc. v. Pritzker,
24 F. Supp. 3d 49, 64 (D.D.C. 2014).
Although not every single FMP amendment gives rise to a duty
to consider a wholesale review of which stocks should be added to
the fishery, consideration of certain amendments would logically
include such a duty. It is black letter law that an agency acts
arbitrarily and capriciously when it "entirely fail[s] to consider
an important aspect of the problem." Motor Vehicle Mfrs. Ass' n,
463 U.S. at 43. The Council initially took up Amendment 14 in order
to consider whether "the management framework then in place [was]
seek in this action. Plaintiffs could not obtain relief in Anglers
Conservation Network, 70 F. Supp. 3d at 440, because they failed
to identify "a discrete agency action that [the Government was]
required to take." In this action, by contrast, Plaintiffs
challenge final agency action: Amendment 14.
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insufficient to manage [river herring and shad]." Gov't's Mot. at
15 (citing AR 12724); see also 78 Fed. Reg. 53404 (Council adopted
Amendment 14, among other reasons, "to address incidental catch of
river herring and shad").
Plaintiffs respond that because the management of shad and
river herring stocks was a central concern of Amendment 14, failing
to give even a nod to the obvious possibility of adding these
species to the MSB fishery was arbitrary and capricious. However,
despite the Government's contention that it had no duty to consider
adding stocks to the fishery, the Government did, in fact, consider
adding the river herring and shad stocks to the MSB fishery.
Moreover, the Government documented its views in its Draft
Environmental Impact Statement ("DEIS"). AR at 8373. See, infra.
In its final argument, the Government next argues that the
Court should not reach the merits of the stocks-in-the-fishery
question because Plaintiffs have not petitioned NMFS to add river
herring and shad to the fishery under 5 U.S.C. § 553(e). However,
5 U.S.C. § 704 provides that "[a]gency action made reviewable by
statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review."
Amendment 14 falls within §704's reach. 16 U.S.C. § 1855(f). The
Government cites no authority for the proposition that Plaintiffs
were required to petition NMFS in order to challenge Amendment 14.
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Accordingly, Plaintiffs' failure to submit such a petition is
irrelevant.
2. The Government's Decision Rejecting Addi ti on of
Stocks to the Fishery
Plaintiffs contend that the Government's failure to add the
stocks to the fishery was "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. §
706(2).
Citing 16 U.S.C. § 1852 (h) (1) and Flaherty, 850 F. Supp. 2d
at 54-55, Plaintiffs contend that all stocks that can be managed
in a fishery and require conservation and management must be added
to a fishery under an FMP. The Government disagrees, arguing that
the MSA affords NMFS discretion as to whether stocks requiring
conservation and management must be included in an FMP, and that
stocks are required to be added to a fishery only when they are
overfished or approaching an overfished condition. Gov't's Mot. at
32 n. 13 (citing 16 U.S.C. § 1854(e)); Gov't's Reply at 15.
This Court has already considered and ruled on these issues.
In Flaherty, the Court rejected the Government's "overfishing"
standard, stating clearly that while "[i]t is true that the MSA
requires management measures when NMFS finds overfishing [, J it
certainly does not follow that in the absence o~ overfishing NMFS
may simply rubber stamp the Council's decisions." 850 F. Supp. 2d
at 54.
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The Court went on to hold that the MSA requires that any
stocks requiring the conservation and management provided by an
FMP must be placed under one. See Flaherty 850 F. Supp. 2d 38, 54-
55 (D.D.C. 2012) (holding that NMFS must "ensur[e] 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"). The Court reasoned that:
Section [1852(h)] 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. 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.
There is no basis for concluding, as [the Government
does], 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 [an
amendment] complies with Section 1852(h) are therefore
no different than review of NMFS' s conclusion that an
amendment complies with the National Standards.
Flaherty, 850 F. Supp. 2d at 54-55 (internal citations and
quotation marks omitted) . 7
7 The Government relies heavily upon a recently published opinion
from the U.S. District Court for the District of Alaska to support
its contention that the MSA is ambiguous as to "whether all stocks
that have conservation and management needs must be added to a
federal fishery management plan." See Gov' t' s Reply at 14-17
(citing United Cook Inlet Drift Assoc. v. National Marine Fisheries
Service, No. 13-104 (D. Ak. Sept. 5, 2014)). This decision is not
binding on this Court, and the Court declines to follow it.
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As noted earlier, the Government does not dispute that river
herring and shad stocks can be treated as a unit along with
mackerel stocks for the purposes of conservation and management,
which is to say that the Government has not disputed that river
herring and shad could be added to the MSB fishery. See 16 U.S.C.
§ 1802(13) (defining "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;
and [] any fishing for such stocks.") . · Accordingly, the only
question is whether river herring and shad require the conservation
and management measures that inclusion in the MSB FMP would
provide.
The Government contends that the Administrative Record
prepared for Amendment 14 "did not demonstrate that herring/shad
required conservation and management under an MSA fishery
management plan." Gov' t' s Mot. at 33 (emphasis in original) .
Plaintiffs disagree, arguing that "[t]he best available scientific
information in the [A] dministrati ve [R] ecord demonstrates that
river herring and shad need conservation and management, that catch
in federal fisheries has contributed to their decline, and that
their addition as stocks managed in the plan is necessary to
conserve and manage them[.]" Pls.' Reply at 13.
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As already noted, supra at p. 7, the current status of the
four species of river herring and shad is not entirely clear from
the data available. Plaintiffs note that a variety of factors
have caused declines in the river herring and shad populations.
See AR 8389-92, 10436-39, 13498. Among other things, Plaintiffs
point to a report from May 2012, stating that "[o]f the 52 stocks
of alewife and blueback herring for which data were available, 23
were depleted relative to historic levels, one stock was
increasing, and the status of 28 stocks could not be determined
because the time-series of available data was too short." Atlantic
States Marine Fisheries Commission Stock Assessment Overview:
River Herring, AR 10438. Furthermore, "the Protected Special
Division of NMFS designated river herring as a 'species of concern'
in 2006." Pls.' Mot. at 11 (citing 71 Fed. Reg. 61,022). s
However, the Administrative Record also contains significant
positive information about the well-being of river herring and
shad stocks. Sources in the Record demonstrate that the coast-wide
population of blueback herring growth rate is stable. 78 Fed. Reg.
48,944, 48,992. With respect to alewife, at least three contiguous
populations are stable to significantly increasing. Id. The coast-
wide trajectory for alewife is significantly increasing, and all
8
In other words, reliable data could not be obtained for more
than half of the 52 stocks.
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of the stock complexes are stable or significantly increasing. Id.
When the Mid-Atlantic Fishery Management Council set out to study
32 stocks of hickory shad in 2012, it found that 11 stocks were
depleted relative to historic levels, two were increasing, and 11
were stable. AR 12924. The Council concluded it lacked sufficient
information to reach any conclusions about eight of the 32 stocks.
Id.
In further support of its position that herring/shad do not
require conservation and management in the MSB fishery, the
Government points out that materials Plaintiffs cite to show that
river herring in the Mid-Atlantic are overfished relate to state,
not federally, managed waters. See AR 7838, 7975-76. The Government
also notes NMFS findings that dams and barriers, rather than
fishing in federally-managed f isherie.s, are "the most important
threat" to river herring, 78 Fed. Reg. 48,970, and contends that
bycatch in federally managed fisheries has not been shown to have
a strong connection to the amount of shad stocks, AR 8335. The
Government also points to state and federal actions to address
these problems, including a herring bycatch avoidance program and
state fishery management plans and fishing moratoria, that make
conservation and management measures in an FMP unnecessary.
Gov't's Mot. at 16-18 (citing 79 FR 10,029 at 10,034); id. at 23
(58 Fed. Reg. 44,190).
- 25 -
As the Draft Environmental Impact Statement summarizes, "the
uncertainty regarding the current factors causing [river herring
and shad] populations to remain in a depressed state means that it
is difficult to identify specific causes and link remedies to
specific outcomes. Given this, the extent of benefits from adding
[river herring and shad] as stocks in the fishery is very difficult
to quantify even though impacts are likely to be positive."
AR 8267.
Plaintiffs' burden is to show that NMFS acted arbitrarily or
capriciously in determining that river herring and shad are not in
need of conservation and management measures provided by an FMP.
In light of the evidence just cited, as well as the uncertainty
and lack of reliable data as to why and how the river herring and
shad populations have declined, it cannot be said that Defendants
have been arbitrary and capricious in making their decision.
In the face of such uncertainty, the Government is not
obligated to add stocks to the fishery simply because the "impacts
[of doing so] are likely to be positive." Id. An agency need only
"examine the relevant data and articulate a satisfactory
explanation for its action including a 'rational connection
between the facts found and the choice made.'" Motor Vehicle Mfrs.
Ass'n, 463 U.S. at 43. NMFS has done so, and therefore, the
Government must prevail on Count I.
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B. Count II: Monitoring and Accountability Measures to
Prevent Overfishing
Plaintiffs' second objection to Amendment 14 is that it fails
to include sufficient monitoring and accountability measures to
prevent overfishing of river herring and shad stocks in the MSB
fishery. They contend that by failing to approve specific observer
coverage levels recommended by the Council, NMFS has violated MSA
provisions codified at 16 U.S.C. §§ 1851 (a) and §§ 1853 (a) and
acted arbitrarily and capriciously.
1. The Government's Rejection of 100% Observer Coverage
As part of Amendment 14, the Council recommended that NMFS
mandate the placement of an observer on every small mesh bottom
trawl mackerel trip in the MBS fishery (referred to by the Parties
as "100% observer coverage"). Plaintiffs assert that the
Government should have approved the 100% observer coverage plan,
which would have been funded through "cost sharing" (i.e., dividing
the costs of coverage between NMFS and fishing industry
participants). The Government responds that the Council's proposal
would have violated federal statutes outside of the MSA framework,
in contravention of 16 U.S.C. § 1853(a) (1) (C)'s requirement that
provisions of fishery management plans "shall [be] consistent with
. . any other applicable law[.]"
NMFS objected to the 100% observer coverage recommendation
because it would have obligated the agency to make future outlays
- 27 -
for observer coverage beyond what Congress has allocated and to
augment its budget by accepting fees from the fishing industry.
This, the Government contends, would violate the following
statutes: the Anti-Deficiency Act, 31 U.S.C. § 1341(a) (1), which
prohibits federal officers from making expenditures or authorizing
obligations that exceed Congressional appropriations; the
Miscellaneous Receipts Statute, 31 U.S.C. § 3302(b), which
requires government officials to deposit money received on behalf
~f the United States in the Treasury not the particular agency;
and 18 U.S.C. § 209, which prohibits the payment of federal
employees' salaries from non-governmental sources.
The Administrative Record amply documents NMFS' s concerns
about the cost-sharing proposal, e.g., AR Emails 14142, 13187,
13598, 13375, and Plaintiffs do not directly contest the
Government's arguments based on the statutes named above.9
Instead, Plaintiffs contend that the Government's concerns
about unfunded mandates are inapposite because the Council
intended that the fishing industry would pay the entire cost of
100% observer coverage. However, the Administrative Record shows
9 Plaintiffs do note that the Government has engaged in "cost
sharing" programs with industry participants in other fisheries in
order to provide higher observer coverage levels. However, the
Government points out that those programs were expressly
authorized by statute for particular fisheries only. See 16 U.S.C.
§ 1862 (authorizing, under MSA § 313, a system of fees for
observers in North Pacific fisheries).
- 28 -
that the Council intended that industry participants would pay
$325 per day toward the cost of an observer, whereas the actual
cost for an observer can be more than double that amount. AR 11255,
11575, 13735, 14144.
For these reasons, the Court concludes that NMFS' s
disapproval of the Council's 100% observer coverage proposal was
not arbitrary, capricious, or contrary to law. 10
2. Standardized Bycatch Reporting Methodology
Observers placed onboard fishing vessels to monitor their
. compliance with applicable laws and regulations are generally
allocated in accordance with the Standardized Bycatch Reporting
Methodology ("SBRM") Omnibus Amendment. Plaintiffs contend that
because NMFS declined to adopt the Council's recommendation, the
level of observer coverage in the MSB will be so low as to violate
the MSA. Plaintiffs' contention relies, in part, upon the fact
that at that time, the SBRM inadequately allocated observers to
the MSB fishery.
Our Court of Appeals has already found the SBRM to be unlawful
and has remanded it to NMFS for further consideration. Oceana,
10 For the first time in their Reply, Plaintiffs note that, having
disapproved of the Council's observer coverage proposal, the
Secretary failed to make specific recommendations for improvement
as called for by 16 U.S.C. § 1854 (a) (3) (C). The Court need not
address this because an argument not raised in an opening brief is
forfeited. Fox v. Gov't of D.C., No. 14-7042, 2015 WL 4385290, at
*3 (D.C. Cir. July 17, 2015).
- 29 -
Inc. v. Locke, 670 F.3d 1238, 1243 (D.C. Cir. 2011). Accordingly,
to the extent that Plaintiffs' contentions actually challenge the
methodology of the SBRM, the Court shall decline to consider them,
given the Court of Appeals' remand to NMFS. See Oceana, 831 F.
Supp. 2d at 114 ("No matter the grounds for [plaintiff's] present
challenge to the Multispecies FMP's standardized bycatch-reporting
methodology, this Court can provide no further relief because the
SBRM Amendment has already been remanded.").
However, it would appear that Plaintiffs are not without
remedy with respect to the validity of the SBRM. As Judge Contreras
stated in Oceana, "[t]o the extent Plaintiffs subsequently believe
the standardized bycatch-reporting methodology that eventually
results from [] remand is inadequate, [they] will have the
opportunity to challenge it at a future date." Id.
3. Observer Coverage and Production of Reliable Data
Not all of Plaintiffs' challenges to the level of observer
coverage in the fishery are based upon NMFS's denial of the 100%
coverage scheme or objections to the SBRM methodology which is no
longer in effect. Plaintiffs also argue that the elements of
Amendment 14 that the Government did adopt are -- without the 100%
observer coverage -- insufficient to meet its obligations under
the MSA.
Plaintiffs contend that the MSA's National Standard 2, which
states that "[c]onservation and management measures shall be based
- 30 -
upon the best scientific information available," 16 U.S.C.
§ 185l(a) (2), requires NMFS to "deploy sufficient observer
coverage to provide statistically reliable data," Pls.' Reply at
4 (citing Oceana, Inc. v. Evans, No. 04-08ll(ESH), 2005 WL 555416,
at *40 (D.D.C. 2005)); Oceana, 670 F.3d at 1239. 11 While Plaintiffs
admit that "the MSA does not require specific observer coverage
levels," Pls.' Reply at 4, they argue that current observer levels
are insufficient to produce statistically reliable data.
Plaintiffs misconstrue National Standard 2. National
Standard 2 requires NMFS to base "[c]onservation and management
measures . . . upon the best scientific information available[.]"
16 U.S. C. § 18 51 (a) (2) (emphasis added) . "[NMFS must] utilize the
best scientific data available, not the best scientific data
possible." The Ocean Conservancy v. Gutierrez, 394 F. Supp. 2d
147, 157 (D.D.C. 2005) aff'd sub nom. Oceana, Inc. v. Gutierrez,
488 F.3d 1020 (D.C. Cir. 2007) (quoting Bldg. Indus. Ass'n of
Superior California v. Norton, 247 F.3d 1241, 1246 (D.C. Cir.
2001)).
11 Neither of the two cases from this circuit that Plaintiffs cite
actually support their proposition that the MSA requires
sufficient observers to generate statically reliable data. The
sections of each case that Plaintiffs cite discuss the data-
collection goals of particular rules promulgated by NMFS rather
than requirements of the MSA. See Oceana v. Evans, 2005 WL 555416,
at *40; Oceana, 670 F.3d at 1239.
- 31 -
Section 1851(a) (2) "'does not mandate any affirmative
obligation on [NMFS'] part' to collect new data." Massachusetts v.
Pritzker, 10 F. Supp. 3d 208, 220 (D. Mass. 2014) (quoting
Commonwealth of Mass. by Div. of Marine Fisheries v. Daley, 10
F. Supp. 2d 74, 77 (D. Mass. 1998)). Indeed, National Standard
Guidelines acknowledge that NMFS might often have "insufficient
data" in fisheries and provide guidance on how to proceed. See,
e.g., 50 C.F.R. §§ 600.310 (e) (iv), (g) (2), (4) and (1) (1) . 12
Plaintiffs also contend that current observer coverage levels
violate § 1853(a) (ll)'s requirement that NMFS "establish a
standardized reporting methodology to assess the amount and type
of bycatch occurring in the fishery[.]" At its core, this argument
attacks the SBRM, which as noted above, is already on remand and
thus, is beyond this Court's review. Oceana, 831 F. Supp. 2d at
114.
Plaintiffs argue that "it' was arbitrary and capricious to
reject the measures that the Council developed to provide the
Secretary with reliable estimates of catch when it has a mandatory
duty to provide them under 16 U.S.C. § 1853(a) (5) ." Pls. Mot. at
12 Plaintiffs rely on a slip opinion from the U.S. District Court
for the District of Alaska. See The Boat Company v. Pritzker, No.
12-cv-0250-HRH slip op. at 33 (D. Alaska, Aug. 6, 2014). That case
is inapposite because it construes a statute applicable only to
North Pacific fisheries. See 16 U.S.C. § 1862 (b) (1) (A) (requiring
the North Pacific Council to ensure plans and plan amendments are
reasonably calculated to "gather reliable data") .
- 32 -
29. Section 1853 (a) (5) merely requires that FMPs "specify the
pertinent data which shall be submitted to the Secretary .
including, but not limited to . . . catch by species in numbers of
fish or weight thereof[.]" Id. On its face§ 1853(a)(5) does not
give rise to any duty to collect additional data through increased
observer coverage.
Finally, Plaintiffs argue that without significantly
increasing observer coverage, NMFS will be unable to "establish a
mechanism for specifying annual catch limits in the plan . . at
a level such that overfishing does not occur in the fishery . . .
including measures to ensure accountability" as required by 16
U.S.C. § 1853(a) (15).
However, regulations implementing the MSA already clearly
contemplate the possibility that annual catch limits and
accountability measures might have to be accepted on the basis of
limited data. 50 C.F.R. § 600.310(g) (4) ("Some fisheries have
highly variable annual catches and lack reliable inseason [sic] or
annual data on which to base [accountability measures]. If there
are insufficient data upon which to compare catch to [annual catch
limits], either in season or on an annual basis, [accountability
measures] could be based on comparisons of average catch to average
[annual catch limits] over a three-year moving average."); see
also id.§ 600.310(g)(2).
- 33 -
In summary, the Government has reasonably concluded that the
Council's observer coverage proposal would violate applicable law,
and Plaintiffs have failed to show that NMFS is legally required
to produce more abundant data by way of increased observer
coverage. Accordingly, the Court concludes that the Government has
not been arbitrary and capricious in rejecting Plaintiffs'
challenge to Amendment 14's lack of additional observer coverage
must fail. 13
C. Count III: The National Environmental Policy Act
Plaintiffs contend that the Government failed to adequately
consider the environmental impact of failing to add the river
herring and shad stocks to the fishery.
It has long been established that NEPA requires agencies to
"take a 'hard look' at the environmental consequences before taking
a major action." Baltimore Gas & Elec. Co., 462 U.S. at 97 (1983)
(internal citations omitted) . To comply with this requirement,
agencies contemplating major policy proposals, must prepare
Environmental Impact Statements ("EIS") that "present the
environmental impacts of the proposal and the alternatives in
comparative form, thus sharply defining the issues and providing
a clear basis for choice among options by the decisionmaker and
the public." 40 C.F.R. § 1502.14; see also 42 U.S.C. § 4332(C).
13
Again, the fact that SBRM is on remand limits the Court's
ability to address this issues.
- 34 -
The EIS must be "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 .. Slater, 198 F.3d 862, 867 (D.C. Cir.
1999).
Plaintiffs' principal objection to the Government's final EIS
is that NMFS should have included at least one policy alternative,
of the four it chose, that would have analyzed the effect of not
immediately adding river herring and shad stocks to the MSB
Fishery. They argue that without analysis or explanation, NMFS
rejected the possibility of giving a "hard look to see the
consequences of including the stocks in the MSB as part of
Amendment 14." Pls.' Mot. at 43.
The Government argues that it had no. legal obligation to
consider the alternative of not immediately adding river herring
and shad to the MSB Fishery. The four alternatives which were
chosen by NMFS simply cannot satisfy the Government's obligation
to consider the impacts of refusing to add river herring and shad
to the fishery, especially given the fact that the 2011 statutory
deadline was not being met.
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Amendment 14 fails to take a hard look at the environmental
impacts of its composition of the fishery by failing to analyze a
reasonable range of alternatives. Those alternatives should have
included the immediate addition of river herring and shad as stocks
with temporary conservation and management measures as proxies for
status determination criteria and other measures necessary to
prevent overfishing and conservation of the species.
NEPA requires an agency to explore and objectively evaluate
a reasonable range of alternatives and the associated impacts on
the environment. 42 U.S.C. § 4332 (C). See also Flaherty, 850 F.
Supp.2d at 71. A key objective of Amendment 14 was to consider
adding river herring and shad to the MSB Fishery, in order to
prevent overfishing. Given that objective, it is hard to
understand why the Government, which is statutorily obligated to
consider an adequate range of alternatives in the EIS, failed to
include the alternative of adding river herring and shad to the
stocks.
Moreover, it is striking that NMFS never provided an
explanation of why it did not consider the alternative of adding
river herring and shad when such consideration would clearly have
brought about the "ends of the federal action."
In Flaherty, this Court emphasized that "[a] central function
of NEPA's requirements is for the agency to consider environmental
- 36 -
impacts '[b]efore approving a project,'" not after the damage is
done. 850 F.2d at 72 (emphasis added). Instead of even considering
the environmental impact of not including river herring and shad
in the MSB Fishery, Defendants pushed the issue off to Amendment
15, thereby delaying even further consideration of a reasonable
alternative which had long been sought by many members of the
public. "Agency determinations about EIS requirements are
supposed to be 'forward-looking,'" not action to simply postpone
consideration of relevant alternatives. Foundation on Economic
Trends v. Heckler, 756 F.2d 143, 158 (D.C. Cir. 1985).
Consequently, the Court concludes that Final Rule 14 violates
NEPA and the APA by failing to take a "hard look" at the
environmental impacts of its definition of the fishery, by failing
to analyze the reasonable alternative of examining the
environmental impact of not adding the river herring and shad to
the fishery, and by failing to consider the direct, indirect, and
cumulative impacts of its decision in the accompanying EIS.
CONCLUSION
In summary, the Court has concluded that as to Count 1 - the
failure to include river herring and shad stocks in the MSB
fishery, and as to Count 2 - monitoring and accountability measures
to prevent overfishing -- the Government has not violated either
the MSA or the APA for the reasons spelled out in Sections A and
- 37 -
B, supra. However, as to Count 3 - the National Environmental
Policy Act -~ the Court concludes that the Government has failed
to comply with NEPA and the APA because it has not taken a "hard
look" at all of the ramifications from failing to consider the
impact of not immediately including river herring and shad in the
MSB fishery.
A separate Order accompanies this Memorandum Opinion.
Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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