Oceana, Inc. v. Pritzker

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OCEANA, INC., :
:
Plaintiff, : Civil Action No.: 11-1896 (RC)
:
v. : Re Document Nos.: 36, 37, 38
:
PENNY PRITZKER, in her official capacity as :
Secretary of the United States Department of :
Commerce, et al., :
:
Defendants. :
:
and :
:
FISHERIES SURVIVAL FUND, :
:
Intervenor–Defendant. :
MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT;
GRANTING FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; AND
GRANTING INTERVENOR–DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Oceana, Inc. (“Oceana”) has filed this suit against Defendants Penny Pritzker, in
her official capacity as Secretary of Commerce,1 the National Oceanic and Atmospheric
Administration (“NOAA”), and the National Marine Fisheries Service (“NMFS”) (collectively,
“Federal Defendants”). Oceana alleges that the Mid-Atlantic Fishery Management Council
Omnibus Amendment to Implement Annual Catch Limits (ACLs) and Accountability Measures
(AMs), 76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197–
1
Secretary Pritzker is substituted for John Bryson pursuant to Federal Rule of Civil
Procedure 25(d).
213) (the “Omnibus Amendment”), violates the Magnuson–Stevens Fishery Conservation and
Management Act (“MSA”), the National Environmental Policy Act (“NEPA”), and the
Administrative Procedure Act (“APA”). The Court has allowed the Fisheries Survival Fund
(“FSF”) to join the suit as Intervenor–Defendant.
This matter is now before the Court on the parties’ cross-motions for summary judgment.
For the reasons set forth below, the Court denies Oceana’s motion for summary judgment and
grants Defendants’ motions for summary judgment.
II. BACKGROUND
A. Statutory Background
1. The Magnuson–Stevens Act
In 1976, in balancing the environmental interests in preventing overfishing and the loss of
marine habitat against the often competing economic interests of the United States’ fishing
industry, Congress enacted the Magnuson–Stevens Fishery Conservation and Management Act,
Pub. L. No. 94-265, 90 Stat. 331 (1976) (codified as amended at 16 U.S.C. §§ 1801 et seq.
(2012)). The MSA established eight regional councils (the “Councils”), which are charged with
the duty of drafting fishery management plans (“FMPs”) for each fishery under their control.
See 16 U.S.C. § 1852(a)(1), (h)(1) (2012).
The required components of FMPs are set forth in Section 1853(a) of the MSA. See id.
§ 1853(a). FMPs proposed by the Councils, and any regulations promulgated to implement
FMPs, must also be consistent with the MSA’s ten “National Standards” for fishery conservation
and management. See id. § 1851(a). The MSA requires that the Secretary of Commerce
establish advisory guidelines (the “Guidelines”) to assist in the development of FMPs based on
the National Standards, but provides that the Guidelines do not have the force of law. See id.
2
§ 1851(b). NMFS has promulgated a set of Guidelines interpreting the ten National Standards,
and has amended the Guidelines over time to keep pace with various changes to the MSA itself.
See 50 C.F.R. §§ 600.305–.355 (2013); see also, e.g., NS1 Guidelines Final Rule, 74 Fed. Reg.
3178 (Jan. 16, 2009) (codified as amended at 50 C.F.R. pt. 600 (2013)) (A.R. 102–38) (revising
the Guidelines based on the 2007 amendments to the MSA).
In 2007, Congress amended the MSA by enacting the Magnuson–Stevens Fishery
Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, 120 Stat.
3575 (2007) (“MSRA”). The amendment included a new required provision for all FMPs,
mandating that FMPs “establish a mechanism for specifying annual catch limits . . . at such a
level that overfishing does not occur in the fishery, including measures to ensure accountability.”
See id. sec. 303(a), § 104(a)(10), 120 Stat. at 3584 (codified at 16 U.S.C. § 1853(a)(15)).
“Overfishing” is defined in the MSA 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) (2012). Maximum sustainable yield (“MSY”), in turn, is “the largest long-
term average catch or yield that can be taken from a stock or stock complex under prevailing
ecological, environmental conditions . . . .” 50 C.F.R. § 600.310(e)(1)(i)(A). Congress
mandated that NMFS comply with the new requirement by fishing year 2010 for fisheries that
were subject to overfishing, and by fishing year 2011 for all other fisheries. See MSRA
§ 104(b), 120 Stat. at 3584 (codified at 16 U.S.C. § 1853 note).
Before bringing the FMPs themselves into compliance with the MSA’s new
requirements, NMFS first updated the Guidelines to set forth the Secretary’s interpretation of the
new requirements in light of the National Standards. Most of the regulations relevant to the
instant dispute relate to National Standard 1 (“NS1”), which provides that “[c]onservation and
3
management measures shall prevent overfishing while achieving, on a continuing basis, optimum
yield from each fishery for the United States fishing industry.” 16 U.S.C. § 1851(a)(1).
Optimum yield (“OY”) is defined as the amount of fish that “will provide the greatest overall
benefit to the Nation, particularly with respect to food production and recreational opportunities,
and taking into account the protection of marine ecosystems . . . .” Id. § 1802(33)(A). OY is less
than or equal to the MSY. See 50 C.F.R. § 600.310(b)(2)(i).
As amended, the NS1 Guidelines set forth an overview of the components the Councils
must, should, or may apply in complying with the MSA’s new mandate. According to the NS1
Guidelines, the overfishing limit (“OFL”) for a given stock is “an estimate of the catch level
above which overfishing is occurring.” Id. § 600.310(e)(2)(i)(D). It is set by first determining
the annual rate of fishing mortality above which overfishing will occur for a particular stock,
known as the maximum fishing mortality threshold (“MFMT”), see id. § 600.310(e)(2)(i)(C),
and then applying the MFMT to the stock’s total size, see id. § 600.310(e)(2)(i)(D). To serve the
goal of preventing the OFL from being exceeded, the Guidelines provide for the computation of
acceptable biological catch (“ABC”), which is a reduced version of the OFL that accounts for
scientific uncertainty in the estimation of the OFL. See id. § 600.310(f)(2)(ii). “Examples of
scientific uncertainty include uncertainty in the estimates of MFMT and biomass.” Id.
§ 600.310(f)(1).
At the center of this regime is the annual catch limit (“ACL”), which is a level of annual
catch at or below the stock’s ABC. See id. § 600.310(f)(2)(iv). The ACL is enforced by
accountability measures (“AMs”), which are in-season and post-season measures to prevent the
ACL from being exceeded, or to initiate corrective measures in the event that ACL is exceeded
4
in a given fishing year. See id. § 600.310(g). FMPs must contain ACLs and AMs for all
managed stocks of fish in the fishery. See id. § 600.310(c), (h).
Another important component of fishery management is the problem of “bycatch”—that
is, “fish which are harvested in a fishery, but which are not sold or kept for personal use . . . .”
16 U.S.C. § 1802(2). Under the Sustainable Fisheries Act, Pub. L. No. 104-297, 110 Stat. 3559
(1996), an earlier amendment to the MSA, NMFS was required to “establish a standardized
reporting methodology to assess the amount and type of bycatch occurring in the fishery . . . .”
Id. sec. 303(a), § 108(a)(7), 110 Stat. at 3575 (codified at 16 U.S.C. § 1853(a)(11)). NMFS most
recently amended the Northeast region’s standardized bycatch reporting methodology in an
omnibus amendment, see Northeast Region Standardized Bycatch Reporting Methodology
Omnibus Amendment, 73 Fed. Reg. 4736 (Jan. 28, 2008) (codified at 50 C.F.R. pt. 648 (2013))
(the “SBRM Amendment”), but the D.C. Circuit ordered that the regulation be vacated and
remanded. See Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir. 2011). NMFS is still in the
rulemaking process on remand. See Notice and Request for Comments, 78 Fed. Reg. 69,391
(Nov. 19, 2013).
When a Council proposes an FMP or an amendment to an FMP, the proposal is submitted
to the Secretary of Commerce, who must approve, disapprove, or partially approve the proposal.
See 16 U.S.C. § 1854(a)(3) (2012). In practice, the Secretary exercises her authority through
NMFS, a division of NOAA within the Department of Commerce. See Fed. Defs.’ Mot. Summ.
J. 3, ECF No. 38.
FMPs are subject to judicial review under Section 706 of the APA. See 16 U.S.C.
§ 1855(f)(1) (2012).
5
2. The National Environmental Policy Act
The National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970)
(codified as amended at scattered sections of U.S.C.), requires federal agencies to consider the
environmental impact of “major Federal actions significantly affecting the quality of the human
environment . . . .” 42 U.S.C. § 4332(C) (2006). FMPs and their amendments are considered
major federal actions sufficient to trigger NEPA. See, e.g., Conservation Law Found. v. Mineta,
131 F. Supp. 2d 19 (D.D.C. 2001). “Before NMFS can approve an FMP amendment, NEPA
requires the preparation of one of three levels of documentation based on the extent of the
project’s impact on the environment.” Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 101 (D.D.C.
2011) (citing 40 C.F.R. § 1501.4(a)–(b)). The most detailed level of documentation, an
environmental impact statement (“EIS”), is required for projects that significantly affect the
environment. See id. (citing 42 U.S.C. § 4332(C) and 40 C.F.R. § 1508.11).
To determine whether an EIS is required, the agency must first prepare an environmental
assessment (“EA”), which provides evidence for determining whether there is sufficient
environmental impact to trigger an EIS, or whether there is a finding of no significant impact
(“FONSI”). See Mineta, 131 F. Supp. 2d at 22 (citing 40 C.F.R. §§ 1501.3, 1508.9(a)).
Following the EA, the agency either prepares an EIS or issues a FONSI report setting forth the
reasons why the proposed action will not significantly impact the environment. See id. In either
case, the agency must also consider alternatives to the proposed action. See id.
An agency’s compliance with NEPA is reviewable under Section 706 of the APA. See
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 90 (1983).
6
B. The Omnibus Amendment
After NMFS updated the NS1 Guidelines to address the new requirements for ACLs and
AMs set forth in the MSA amendment, the Mid-Atlantic Council drafted the Omnibus
Amendment, which updates the FMPs for the six existing fisheries under the Council’s
jurisdiction: the Atlantic Mackerel, Squids, and Butterfish Fishery; the Atlantic Bluefish
Fishery; the Spiny Dogfish Fishery; the Summer Flounder, Scup, and Black Sea Bass Fishery;
the Surfclam and Ocean Quahog Fishery; and the Tilefish Fishery. See generally Omnibus
Amendment, 76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013))
(A.R. 5197–213). On March 24, 2009, NMFS published a notice of intent, indicating that it was
considering amendments to the six FMPs due to the new ACL and AM requirements. See
Notice, 74 Fed. Reg. 12,314 (Mar. 24, 2009) (A.R. 172–74). After a round of scoping meetings,
the Council drafted the Omnibus Amendment and submitted it to the Secretary, and in May
2011, NMFS published a notice in the Federal Register soliciting input on the Omnibus
Amendment. See Request for Comments, 76 Fed. Reg. 29,717 (May 23, 2011) (A.R. 4663–64).
The proposed rule was published on June 17, 2011, and the agency accepted public comment
through July 22, 2011. See Proposed Rule, 76 Fed. Reg. 35,578 (June 17, 2011) (A.R. 4671–
711). Initially, the agency was going to conduct an EIS, but it then changed the level of NEPA
analysis to an EA. See Notice of Intent, 75 Fed. Reg. 11,129 (Mar. 10, 2010) (A.R. 1920–21).
The agency then released a final EA that concluded with a FONSI. See A.R. 4754–5046. NMFS
published the final Omnibus Amendment on September 29, 2011. See Omnibus Amendment, 76
Fed. Reg. at 60,606 (A.R. 5197).
The Omnibus Amendment sets ACLs and catch targets using a system of buffers. As
noted above, the OFL is reduced to ABC to account for scientific uncertainty, and the Omnibus
7
Amendment contains “ABC control rules” delineating the method for computing the necessary
reduction. See 50 C.F.R. § 648.20 (2013). The ACL for each managed stock is then set equal to
the stock’s ABC, except that for some stocks the ACL is apportioned into sector-ACLs, with
separate catch limits for the commercial and recreational sectors. See Omnibus Amendment, 76
Fed. Reg. at 60,607 (A.R. 5198) (“The Council will recommend to NMFS ACLs set equal to
ABC for all species, with some further subdivision to sector-level ACLs where stocks have pre-
existing allocations for both commercial and recreational fisheries. The sum of these sector
ACLs will be equal to the ABC.”).
Although the ACL and ABC are equal under the Omnibus Amendment, the new
regulatory scheme sets its target at an even lower figure in order to account for management
uncertainty in the collection of data. This reduced figure is called an annual catch target
(“ACT”), and is one type of AM established within the Omnibus Amendment to prevent the
ACL from being exceeded. See id. (“Council staff . . . will review available information and
recommend to the Council the amount of reduction from ACL to ACT necessary to address
management uncertainty.”). The ACTs are set in the first instance by committees, which
propose specific ACTs to the Council and identify the specific sources of management
uncertainty accounted for in their proposal. See 50 C.F.R. §§ 648.22, .71, .101, .121, .141, .161,
.231, .291 (2013). “Management uncertainty may include late catch reporting, misreporting, and
underreporting of catches and is affected by a fishery’s ability to control actual catch.” Id.
§ 600.310(f)(1).
One specific source of management uncertainty is the counting of bycatch, which under
the Omnibus Amendment is estimated after each fishing year rather than counted in near real
time during the season. See Omnibus Amendment, 76 Fed. Reg. at 60,612 (A.R. 5203) (“The
8
monitoring committees will consider the estimated discards for a given specification period . . .
and recommend any necessary reductions for uncertainty associated with discard performance to
the Council to establish ACT(s).”). The Omnibus Amendment does not itself purport to establish
a methodology for reporting bycatch, and therefore relies largely on the methodology set forth in
the SBRM Amendment. The Omnibus Amendment, however, is not completely tied to the
SBRM Amendment, as it authorizes the committees to make “[c]hanges, as appropriate, to the
Northeast Region SBRM, including the coefficient of variation (CV) based performance
standard, fishery stratification, and/or reports[,]” as part of the AMs for each FMP. Id. at 60,617
(A.R. 5208).
The Secretary did not disapprove of the Omnibus Amendment, and the rules went into
effect on October 31, 2011. See id. at 60,606 (A.R. 5197).
C. Procedural History
On October 28, 2011, approximately one month after the Omnibus Amendment was
published in the Federal Register, Oceana filed its complaint in the instant case, seeking vacatur
of the Omnibus Amendment on five different theories: (1) that NMFS’s decision not to consider
additional stocks for inclusion “in the fishery” violated the MSA, NEPA, and APA; (2) that
NFMS violated the MSA and APA in failing to establish sub-ACLs and sub-AMs for bycatch
species that are targets of other fisheries; (3) that NMFS violated the MSA, NEPA, and APA by
delegating to committees the responsibility for quantifying management uncertainty and
proposing ACTs; (4) that NMFS violated the MSA and APA by employing the SBRM
Amendment’s method of bycatch monitoring; and (5) that NMFS failed to establish sufficient
9
AMs under the MSA and APA by not adopting any other in-season bycatch monitoring system
in the Omnibus Amendment.2 See generally Compl., ECF No. 1.
On February 24, 2012, FSF moved to intervene as a defendant on Counts II, IV, and V.
See Mot. Intervene, ECF No. 21. Neither Oceana nor Federal Defendants took a position on
FSF’s motion, and on March 2, 2012, the Court granted FSF leave to intervene on the three
requested counts. See Order, ECF No. 22. The parties filed cross-motions for summary
judgment as to all counts, and briefing was completed on February 22, 2013.
III. STANDARD OF REVIEW
Under the MSA, the Court reviews the implementation or amendment of a fishery
management plan pursuant to the judicial review provisions set forth in chapter 7 of the APA.
See 16 U.S.C. § 1855(f)(1)–(2) (2012). Similarly, an agency’s procedural compliance with
NEPA is reviewed under the APA’s “arbitrary and capricious” standard. See Nevada v. Dep’t of
Energy, 457 F.3d 78, 87–88 (D.C. Cir. 2006). See generally Flaherty v. Bryson, 850 F. Supp. 2d
38, 47 (D.D.C. 2012) (“Agency decisions under the Magnuson–Stevens Act and NEPA are
reviewed pursuant to Section 706(2) of the APA.”).
“Under the ‘arbitrary and capricious’ standard the scope of review is a narrow one.”
Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). On review, the
Court gives the agency’s decision “significant leeway” and does not substitute its own judgment
for that of the agency. Steel Mfrs. Ass’n v. EPA, 27 F.3d 642, 646 (D.C. Cir. 1994). Instead, the
Court will review the agency action in order to determine whether the agency has “articulate[d] a
2
In its complaint, Oceana originally cast a wider net, asserting a broader array of
theories. See generally Compl., ECF No. 1 However, the theories were so narrowed in
Oceana’s summary judgment briefing. See generally Pl.’s Mot. Summ. J., ECF No. 36; Pl.’s
Reply Supp. Mot. Summ. J. 20, ECF No. 42; infra notes 7, 12, 17 and accompanying text.
10
‘rational connection between the facts found and the choices made.’” Bowman Transp., 419
U.S. at 285 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)); accord
Kisser v. Cisneros, 14 F.3d 615, 619 (D.C. Cir. 1994). The administrative record must show that
the agency “considered the relevant factors and explained the facts and policy concerns on which
it relied, and whether those facts have some basis in the record.” Nat’l Treasury Emps. Union v.
Horner, 854 F.2d 490, 498 (D.C. Cir. 1988). Furthermore, the agency’s decision is arbitrary or
capricious if the agency
relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before [it], or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983).
The review is to be based on the record that was before the agency at the time its decision
was made. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971),
abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). The Court “may not
supply a reasoned basis” that the agency itself has not given, but may “uphold a decision of less
than ideal clarity” if the agency’s rationale may reasonably be discerned. Bowman Transp., 419
U.S. at 285–86 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), and Colo. Interstate
Gas Co. v. Fed. Power Comm’n, 324 U.S. 581, 585 (1945)). The Court is merely to determine
whether the agency’s decision was reasoned and supported by record evidence. See State Farm,
463 U.S. at 43.
The Court “will give an extreme degree of deference to the agency when it ‘is evaluating
scientific data within its technical expertise.’” Huls Am. Inc. v. Browner, 83 F.3d 445, 452 (D.C.
Cir. 1996) (quoting Int’l Fabricare Inst. v. U.S. EPA, 972 F.2d 384, 389 (D.C. Cir. 1992) (per
11
curiam)). “When examining [a] scientific determination, as opposed to simple findings of fact, a
reviewing court must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. Natural
Res. Def. Council, Inc., 462 U.S. 87, 103 (1983); see also Marsh v. Or. Natural Res. Council,
490 U.S. 360, 378 (1989) (“When specialists express conflicting views, an agency must have
discretion to rely on the reasonable opinions of its own qualified experts, even if, as an original
matter, a court might find contrary views more persuasive.”). Moreover, “[i]f carried out
correctly, arbitrary-and-capricious style review does not put the court into the (agency’s) driver’s
seat. It is, rather, for the agency to decide the exact trade-off among conflicting goals that ‘best
promotes’ the Congressional ‘goal’ in question.” Cont’l Air Lines, Inc. v. Dep’t of Transp., 843
F.2d 1444, 1451 (D.C. Cir. 1988). Thus, in the context of judicial review of an FMP, “[i]t is
therefore especially appropriate for the Court to defer to the expertise and experience of those
individuals and entities—the Secretary, the Councils, and their advisors—whom the [MSA]
charges with making difficult policy judgments and choosing appropriate conservation and
management measures based on their evaluations of the relevant quantitative and qualitative
factors.” Nat’l Fisheries Inst., Inc. v. Mosbacher, 732 F. Supp. 210, 223 (D.D.C. 1990).
Nonetheless, the courts applying the arbitrary and capricious standard of review “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).
Typically, a court may grant summary judgment when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). But when assessing a summary judgment motion in an APA case,
“the district judge sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d
1077, 1083 (D.C. Cir. 2001). “The entire case on review is a question of law, and only a
12
question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir.
1993). “In such a case, summary judgment merely serves as the mechanism for deciding, as a
matter of law, whether the agency action is supported by the administrative record and otherwise
consistent with the APA standard of review.” Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 106
(D.D.C. 2011). “Moreover, the party challenging an agency’s action as arbitrary and capricious
bears the burden of proof.” See San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory
Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc).
IV. ANALYSIS
A. Bycatch of Non-Target Stocks (Count I)
For each species of fish designated as a stock “in the fishery,” the Council must develop
conservation and management measures for that stock, including ACLs and AMs. See 16 U.S.C.
§ 1853(a) (2012); Flaherty v. Bryson, 850 F. Supp. 2d 38, 50 (D.D.C. 2012). In its first claim for
relief, Oceana takes issue with the agency’s failure to consider whether additional non-target
stocks should be included “in the fishery” under the Omnibus Amendment. See Compl. ¶¶ 48–
61, ECF No. 1. As the terms are used in the industry, a “stock of fish” is “a species, subspecies,
geographical grouping, or other category of fish capable of management as a unit.” 16 U.S.C.
§ 1802(42) (2012). A “target stock” is a stock that fishers seek to catch for sale or personal use.
See 50 C.F.R. § 600.310(d)(3) (2013).3 By contrast, “non-target stocks” are “fish caught
incidentally during the pursuit of target stocks in a fishery . . . .” Id. § 600.310(d)(4).4 For
3
The term also includes “economic discards”—fish that are the target of a fishery, but
that the fisher does not retain for economic reasons, such as undesirable size, sex, or quality. See
16 U.S.C. § 1802(9) (definition of “economic discards”); 50 C.F.R. § 600.310(d)(3) (definition
of “target stocks”).
4
The term also includes “regulatory discards,” which are harvested fish that fishers are
required by regulation to either discard or retain but not sell. See 16 U.S.C. § 1802(38)
13
example, squids caught in the Atlantic Mackerel, Squids, and Butterfish Fishery are a target
stock. However, when river herring is incidentally caught as bycatch in the same fishery, river
herring is described as a non-target stock.5 FMPs are required to include mechanisms for ACLs
and AMs for all stocks “in the fishery.”6 See id. § 600.310(c), (h).
When NMFS promulgated the Omnibus Amendment, it included provisions bringing
existing FMPs into compliance with the new requirements of the MSRA but did not include any
new stocks “in the fishery” for any of the existing FMPs. See generally Omnibus Amendment,
76 Fed. Reg. 60,606 (Sept. 29, 2011) (codified at 50 C.F.R. pt. 648 (2013)) (A.R. 5197–213). In
other words, under the Omnibus Amendment, the only stocks “in the fishery” are those that were
already managed under the then-existing FMPs. According to Oceana, NMFS’s failure to
consider whether to include “in the fishery” non-target stocks not already managed in the
FMPs—such as river herring and shad within the Atlantic Mackerel, Squids, and Butterfish
Fishery—violates the MSA, NEPA, and APA.7
(definition of “regulatory discards”); 50 C.F.R. § 600.310(d)(4) (definition of “non-target
stocks”).
5
It is important to note that “non-target stock” and “bycatch” are not totally synonymous,
because the definition of bycatch includes economic discards while the definition of non-target
stock does not. For example, river herring incidentally caught in the Atlantic Mackerel, Squids,
and Butterfish Fishery constitute both bycatch and a non-target stock, because the herring are not
the species sought by the fishers and are not retained for sale or personal use. An Atlantic
mackerel caught in the same fishery but discarded due to unsatisfactory size would meet the
definition of bycatch but would still be a target stock, because the species is sought by fishers in
the fishery. See 16 U.S.C. § 1802(2), (9); 50 C.F.R. § 600.310(d)(3)–(4).
6
Stocks “in the fishery” does not necessarily include ecosystem component species,
which are non-target stocks unlikely to be subject to overfishing absent conservation and
management measures. See 50 C.F.R. § 600.310(d)(5). Such species may, but are not required
to, be included in an FMP. See id. § 610.310(d)(5)(iii).
7
Although Oceana’s complaint does not explicitly allege a violation of the MSA under
Count I, see Compl. ¶ 61, it is clear that Oceana’s claim rests on the theory that the agency acted
arbitrarily and capriciously in its actions (and inactions) taken pursuant to both the MSA and
NEPA.
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1. MSA Claim
The MSA requires the agency to create an FMP “for each fishery under its authority that
requires conservation and management . . . .” 16 U.S.C. § 1852(h)(1) (2012). According to
Oceana, NMFS violated the MSA by failing to consider whether non-target bycatch species,
such as river herring and shad, “require[] conservation and management” and therefore should
have been “in the fishery” in the amended FMPs. See Pl.’s Mot. Summ. J. 14–19, ECF No. 36.
Federal Defendants take the position that, because the Omnibus Amendment was intended solely
to bring existing FMPs into compliance with new provisions of the MSA, they were not required
to consider whether to include new stocks “in the fishery.” See Fed. Defs.’ Mot. Summ. J. 14–
21, ECF No. 38. They also add that NMFS did, in fact, consider the effects of the proposed
measures on non-target bycatch species that are not “in the fishery.” See Fed. Defs.’ Reply
Mem. Supp. Mot. Summ. J. 10–12, ECF No. 43.
a. Piecemeal Compliance
NMFS made clear at the outset that the purpose of its rulemaking here was “to address
the new [MSA] requirements for annual catch limits (ACLs) and accountability measures (AMs)
in an Omnibus Amendment to the fishery management plans (FMPs) for Atlantic mackerel,
butterfish, Atlantic bluefish, spiny dogfish, summer flounder, scup, black sea bass, tilefish,
surfclams, and ocean quahogs”—that is, the then-existing FMPs. Notice, 74 Fed. Reg. 12,314
(Mar. 24, 2009) (A.R. 172). From this, Federal Defendants reason that NMFS was not required
to address all management needs in the Omnibus Amendment, and therefore could properly
focus on bringing existing FMPs into compliance without considering whether to include new
stocks “in the fishery.” See Fed. Defs.’ Mot. Summ. J. 18.
15
Federal Defendants’ argument is unavailing. In support of their argument that an agency
action is not invalid for failure to regulate more comprehensively, Federal Defendants rely
largely on case law in which the D.C. Circuit held that it lacked jurisdiction to consider whether
an agency’s alleged failure to implement a statutory directive invalidated the regulation actually
promulgated. See id. (citing Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 287–88
(D.C. Cir. 1998), and United Tech. Corp. v. EPA, 821 F.2d 714, 720–21 (D.C. Cir. 1987)).8 But
there is no jurisdictional dispute here. In the cases Federal Defendants cite, the court lacked
jurisdiction because the petitioner failed to fully implement the statutory goal in a single
regulation, not because the agency ignored a factor that it was required to consider. See, e.g.,
Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 287–88 (D.C. Cir. 1998)
(“Petitioner’s basic argument is that the promulgated regulations ‘fail to include necessary
requirements’ of the statute—not because the EPA ignored a factor that the statute requires it to
consider, but only because it has not fully implemented the statutory goal.”).
The issue raised by Oceana in challenging the Omnibus Amendment is different from the
jurisdictional issues raised in the D.C. Circuit cases. Oceana argues that, because NFMS did not
consider whether to include non-target bycatch stocks “in the fishery,” the Omnibus Amendment
is arbitrary and capricious because the ACLs it does set for the already-managed stocks could
result in overfishing of the unregulated bycatch stocks. See Pl.’s Mot. Summ. J. 18; see also
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (holding that an agency acts arbitrarily and capriciously if it “entirely failed to consider
8
Federal Defendants also cite Judge Boasberg’s opinion in Oceana, Inc. v. Locke, 831 F.
Supp. 2d 95 (D.D.C. 2011), where the court found that, based on the narrow scope of the
regulation at issue, it was reasonable under NEPA for NMFS to avoid inquiring whether to
include any additional non-target bycatch species “in the fishery.” See id. at 125–28. But
because that analysis involved NEPA, the court did not address whether the narrow objectives of
the new rule were at odds with the MSA’s statutory mandates.
16
an important aspect of the problem”). The MSA’s new provisions required NMFS to establish a
mechanism for setting ACLs “at a level such that overfishing does not occur in the fishery . . . .”
16 U.S.C. § 1853(a)(15). And if the measures promulgated allow overfishing to occur, then “[a]
future plan to comply with the MSA will not save an otherwise deficient FMP.” Oceana, Inc. v.
Locke, 831 F. Supp. 2d 95, 122 (D.D.C. 2011).
Because the new provisions of the MSA required NMFS to establish a mechanism for
specifying ACLs and AMs such that “overfishing does not occur in the fishery,” the Court rejects
Federal Defendants’ argument that NMFS was not required to consider the Omnibus
Amendment’s impact on identified non-target bycatch species in the fisheries it chooses to
manage under an FMP.
b. Consideration of Bycatch Species Not “in the Fishery”
When Congress most recently reauthorized and expanded the MSA, it added a
requirement that the Secretary “establish a mechanism for specifying annual catch limits . . . at a
level such that overfishing does not occur in the fishery . . . .” Magnuson–Stevens Fishery
Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, sec. 303(a),
§ 104(a)(10), 120 Stat. 3575, 3584 (2007) (codified at 16 U.S.C. § 1853(a)(15)). As Judge
Kessler recently observed, implementation of ACLs to prevent overfishing under this provision
“necessarily entails a decision as to which stocks require conservation and management.”9
9
Federal Defendants attempt to argue that Flaherty is inapplicable to this case because,
there, NMFS originally considered whether to include additional stocks “in the fishery” and then
abandoned that objective without explanation, making an “affirmative decision” not to include
any new stocks. See Fed. Defs.’ Reply Mem. Supp. Mot. Summ. J. 7 (citing Flaherty, 850 F.
Supp. 2d at 45–46). The Court is not persuaded by this attempt to distinguish Flaherty. Federal
Defendants cite only to the factual background section of the opinion, which merely describes
the changing scope of NMFS’s objectives in that case; Judge Kessler’s actual analysis does not
indicate that she considered the changing scope of the agency’s objectives an important factor.
See Flaherty, 850 F. Supp. 2d at 50–56.
17
Flaherty, 850 F. Supp. 2d at 52; see also 16 U.S.C. § 1852(h)(1) (requiring that each Council
prepare an FMP “for each fishery under its authority that requires conservation and
management”). Notably, however, the MSA does not adopt the “in the fishery” classification,
nor does the text of Section 1853(a)(15) state that ACLs must be adopted for all species in need
of conservation and management. Rather, the new provision requires only the establishment of
ACLs and AMs such that overfishing does not occur. See 16 U.S.C. § 1853(a)(15). If bycatch
of non-target stocks is considered in drafting ACLs for target stocks, then such consideration
may suffice if the FMP does not result in the non-target stocks becoming subject to overfishing.
The Guidelines also support the conclusion that the MSA does not require reclassification
of stocks “in the fishery” each time an FMP is amended. They contain no provision mandating
that stocks be considered for reclassification whenever an FMP is amended. Instead, they
provide for periodic monitoring “on a regular basis” to determine whether reclassification is
necessary. See 50 C.F.R. § 600.310(d)(6).
Although NMFS did not consider whether to include non-target bycatch stocks “in the
fishery,” it did consider the impact of the Omnibus Amendment on those stocks. In the
environmental assessment for the Omnibus Amendment, it was determined that, “[b]ecause [it]
would not result in an increase or decrease in catch relative to ABC, the indirect impacts on the
managed resource and non-target species are expected to be identical to those under the status
quo . . . .” A.R. 4890. In other words, because the Omnibus Amendment sets ACL equal to
ABC for all managed stocks, the agency rationally concluded that the changes to the existing
FMPs would not have any greater detrimental impact on non-target bycatch species. See
Omnibus Amendment, 76 Fed. Reg. at 60,607 (A.R. 5198). Oceana cites to no contrary evidence
in the record that suggests that non-target bycatch stocks were subject to overfishing at the time
18
that determination was made. Instead, it relies on a single page from the administrative record
that merely identifies hickory shad, blueback herring, American shad, and alewife as bycatch
species in the Atlantic Mackerel, Squid, and Butterfish Fishery. See A.R. 4864. The cited
evidence does not indicate that those bycatch stocks are subject to overfishing, and it does not
contradict NMFS’s findings as to the impact of the Omnibus Amendment on those stocks. Cf.
Flaherty, 850 F. Supp. 2d at 53 (finding FMP amendment arbitrary and capricious for failing to
explain why record evidence, cited by the plaintiffs, was insufficient to justify reclassification of
river herring as a stock “in the fishery”).
NMFS also argues that its decision not to consider additional stocks for inclusion “in the
fishery” was reasonable in light of the time constraints imposed by the MSRA, see Fed. Defs.’
Mot. Summ. J. 18, and the Court agrees. The statute imposes upon the agency an obligation to
comply with the MSA’s new provisions by the 2010 fishing year for fisheries that were subject
to overfishing, and by 2011 for all others. See 16 U.S.C. § 1853 note. Although other judges
have found that the MSRA’s statutory deadline is no excuse for delay, see Flaherty, 850 F. Supp.
2d at 51–53, the Court finds that a holistic review of the timeline reveals that the agency did not
act in a dilatory fashion. Before NMFS could begin amending the FMPs themselves, it first had
to update the Guidelines in order to set forth the Secretary’s interpretation of the MSA’s new
requirements for ACLs and AMs—a process that began just one month after the MSRA’s
enactment and concluded approximately two years later. See NS1 Guidelines Notice, 72 Fed.
Reg. 7016 (Feb. 14, 2007); NS1 Guidelines Proposed Rule, 73 Fed. Reg. 32,526 (June 9, 2008);
NS1 Guidelines Final Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified at 50 C.F.R. pt. 600)
(A.R. 102–38). These Guidelines set forth the framework that governs not just the Mid-Atlantic
FMPs, but all FMPs nationwide. This warrants great care in their implementation. Given the
19
complexity of the Guidelines and fishery management generally, the Court finds the two-year
timeline reasonable.
The time necessarily spent updating the Guidelines brought the agency much closer to its
deadline. NMFS began the scoping process for the Omnibus Amendment shortly after
completing the Guidelines updates, see Notice, 74 Fed. Reg. at 12,314 (A.R. 172), and produced
a final amendment to all Mid-Atlantic FMPs within approximately two-and-a-half years. See
Omnibus Amendment, 76 Fed. Reg. at 60,606 (A.R. 5197). Because during this time the agency
was required to prioritize fisheries that were subject to overfishing—a category that included no
Mid-Atlantic fisheries—the Court likewise finds that the agency spent a reasonable amount of
time in reviewing the Omnibus Amendment.10
If the agency were required to make a wholesale reconsideration of which stocks to
include “in the fishery” every time it amends an FMP, the delay would be much greater. Oceana
articulates no stopping point on the number of species the agency would have to reconsider
during each amendment, but any principled rule would presumably include all identified bycatch
species, of which there are well over a dozen in the Mid-Atlantic FMPs. See A.R. 4864–65. To
reassess the inclusion of these species “in the fishery” during each amendment would be an
absurd result.11 Indeed, Federal Defendants have noted that the delay would have a “crippling”
effect on the agency. See Fed. Defs.’ Mot. Summ. J. 20–21.
10
Although FMPs are prepared by the Councils, and therefore the Mid-Atlantic Council
would arguably not have been delayed by the requirement to prioritize fisheries that were subject
to overfishing, the agency itself is charged with reviewing all FMPs. See 16 U.S.C. § 1854(a)(3)
(2012).
11
Oceana argues that, by not requiring NMFS to reassess the composition of the fishery
during each amendment, the agency “could forever overlook the conservation and management
needs of bycatch species in the Mid-Atlantic Fisheries and thereby continue to expose these
stocks to overfishing.” See Pl.’s Reply Supp. Mot. Summ. J. 8–9, ECF No. 42. But recent
events show that Oceana’s fear is unfounded. Before Oceana even initiated this litigation,
20
Because Oceana has not shown that NMFS’s consideration of the Omnibus
Amendment’s impact on non-target bycatch species was arbitrary or capricious under the MSA,
the Court will grant Federal Defendants’ motion for summary judgment on Count I’s MSA
theory.
2. NEPA Claim
Count I of Oceana’s complaint also contains a NEPA claim. “NEPA imposes procedural
rather than substantive duties on government agencies undertaking major federal action, such as
the adoption of an FMP or FMP amendment.” Locke, 831 F. Supp. 2d at 124 (citing Citizens
Against Burlington, Inc. v. Busey, 938 F.2d 190, 193–94 (D.C. Cir. 1991)). “NEPA does not . . .
‘require agencies to elevate environmental concerns over other appropriate considerations. . . .
[I]t require[s] only that the agency take a hard look at the environmental consequences before
taking a major action.’” WildEarth Guardians v. Jewell, 738 F.3d 298, 303 (D.C. Cir. 2013)
(quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983))
(second, third, and fourth alterations in original). Oceana argues that, by not considering
whether to include non-target bycatch stocks “in the fishery,” NMFS violated NEPA because it
failed to take a “hard look” at the impacts of the Omnibus Amendment.12 Federal Defendants
argue that NMFS reasonably limited the scope of its analysis to the existing stocks in the fishery.
NMFS had already begun the scoping process for an amendment to the Atlantic Mackerel,
Squids, and Butterfish FMP that would do more “to monitor and/or minimize the incidental catch
of river herrings (blueback and alewife) and shads (American and hickory)”—the very species to
which Oceana repeatedly points as justification for imposing a higher burden on the agency. See
Amendment 14 Scoping Notice, 75 Fed. Reg. 32,745 (June 9, 2010). Days ago, the agency
published a final rule that imposes heightened reporting requirements and allows the Council to
set a cap on these species. See Amendment 14, 79 Fed. Reg. 10,029 (Feb. 24, 2014) (to be
codified at 50 C.F.R. pt. 648) (effective Mar. 26, 2014).
12
Oceana’s Count I also alleges that NMFS failed to rationally consider whether an EIS
was required, violating NEPA. See Compl. ¶¶ 58–59. But because Oceana does not invoke this
21
Other judges sitting in this district have previously recognized that, where the alleged
NEPA violation involves NMFS’s failure to consider whether to include additional stocks “in the
fishery,” the claim is better understood as a challenge to agency inaction. See, e.g., Locke, 831
F. Supp. 2d at 125. “Rather than asserting that NMFS failed to take a hard look at the
environmental consequences of its actions, therefore, [Oceana’s] claim is more properly viewed
as an allegation that NMFS improperly failed to consider alternative action to maintaining the
status quo composition of the Fishery.” Id.
Where a claim under NEPA is characterized in this manner, “the Court engages in a two-
part process: first, an examination of ‘whether an agency’s objectives are reasonable,’ and
second, ‘whether a particular alternative is reasonable in light of these objectives.’” Id. at 127
(quoting City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999)). The Court engages in
both inquiries “with considerable deference to the agency’s expertise and policy-making role.”
City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999).
The Court finds that NMFS acted reasonably in limiting the Omnibus Amendment to
bringing existing FMPs into compliance with the new provisions of the MSA. As noted above,
neither the MSA nor the Guidelines required that the composition of the fishery be reevaluated
during the promulgation of the Omnibus Amendment. See supra Part IV.A.1.a. Where an issue
is particularly complex, the scope of reasonable alternatives is necessarily limited. See Oceana,
Inc. v. Evans, 384 F. Supp. 2d 203, 241 (D.D.C. 2005) (“The duty to consider all such
alternatives does not extend to situations where the possibilities are so numerous and the goals of
the action so complex that the agency cannot possibly consider every significant alternative in a
reasonable time period.”). This is particularly true of fishery management, which courts have
theory in its briefing, and because APA cases are decided entirely on cross-motions for summary
judgment, the Court will consider Oceana’s EIS theory waived. See also infra Part IV.C.2.
22
recognized is “exceedingly complex.” Id. at 242; accord Locke, 831 F. Supp. 2d at 127. This is
especially so in light of the time constraints NMFS faced, as it was required to implement the
new MSA provisions by 2011.
Because it was reasonable for the agency to limit the Omnibus Amendment’s objectives
to bringing FMPs for managed stocks into compliance with the MSA, the Court next turns to
whether NMFS was required to consider an alternative that increased the number of managed
species “in the fishery.” Because such an alternative would not have furthered the objective of
bringing existing FMPs into compliance with the MSA, the Court finds that the agency acted
reasonably in declining to consider the alternative. The Court will thus grant summary judgment
for Federal Defendants on Oceana’s Count I NEPA theory.
B. Bycatch of Target Stocks in Non-Directed Fisheries (Count II)
Oceana’s second claim for relief challenges the Omnibus Amendment’s alleged failure to
account for bycatch of target stocks in non-directed fisheries. See Compl. ¶¶ 62–67, ECF No. 1.
In this context, a “non-directed fishery” means a fishery managed by an FMP, but which does
not seek to catch the target stock at issue. For example, the bycatch of summer flounder in the
Northeast Multispecies Fishery (also known as the Groundfish Fishery)13 falls within the scope
of this claim, because summer flounder is a target stock of the Summer Flounder, Scup, and
Black Sea Bass Fishery, but is a bycatch species in the Groundfish Fishery. See id. ¶ 65. During
the Omnibus Amendment’s comment period, Oceana recommended that NMFS address this
issue by implementing “sub-ACLs”—that is, by apportioning the species’ overall ACL among
different user groups, including fisheries that catch the species as bycatch. See Omnibus
Amendment, 76 Fed. Reg. 60,610–11 (Sept. 29, 2011) (A.R. 5201–02). It is Oceana’s position
13
The Groundfish Fishery is overseen by the New England Fishery Management
Council. See Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 102 (D.D.C. 2011).
23
that the Omnibus Amendment is arbitrary and capricious under the APA and Section 1853(a)(15)
of the MSA, because it “does not reflect a rational analysis of the catch of target stock in non-
directed fisheries and the implementation of sub-ACLs and [sub-]AMs for such catch, even
though such issues were brought to [NMFS]’s attention in Oceana’s Comment Letters.” Compl.
¶ 65. Federal Defendants and FSF respond that the MSA does not require the implementation of
sub-ACLs, and that, in any event, the Omnibus Amendment accounts for such bycatch in setting
each species’ overall ACL. See FSF’s Cross-Mot. Summ. J. 17–22, ECF No. 37; Fed. Defs.’
Mot. Summ. J. 25–28, ECF No. 38.
Oceana correctly recognizes that sub-ACLs are not a mandatory measure, and that an
FMP must simply establish an overall suite of accountability measures sufficient to prevent
overfishing. See Pl.’s Mot. Summ. J. 22, ECF No. 36 (citing Oceana, Inc. v. Locke, 831 F. Supp.
2d 95, 117 (D.D.C. 2011)). Indeed, the MSA makes no mention of sub-ACLs. Cf. 16 U.S.C.
§ 1853(a)(15) (2012) (requiring that the Secretary “establish a mechanism for specifying
[overall] annual catch limits”). The issue is thus whether NFMS, by not implementing Oceana’s
sub-ACL proposal, acted arbitrarily and capriciously by ignoring bycatch of target stocks in non-
directed fisheries. See also Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983) (holding that an agency acts arbitrarily and capriciously if it
“entirely failed to consider an important aspect of the problem [or] offered an explanation for its
decision that runs counter to the evidence before the agency”).
Both the Guidelines and the administrative record show that bycatch of such stocks is not
ignored, and that NMFS explained as much in declining to adopt sub-ACLs. Under the NS1
Guidelines, ABC accounts for bycatch, either by expressing the ABC figure in terms of all catch,
or expressing the figure in terms of landings while incorporating estimated bycatch and other
24
fishing mortality. See 50 C.F.R. § 600.310(f)(3)(i) (2013). Because the ACL for a stock cannot
exceed its ABC, see id. § 600.310(f)(5)(i), bycatch is thus included in the stock’s overall ACL as
well. Indeed, under the Omnibus Amendment, ABC and ACL are equal. See Omnibus
Amendment, 76 Fed. Reg. at 60,607 (A.R. 5198). The administrative record, including the
Omnibus Amendment’s environmental assessment, demonstrates that the counted landings and
discard estimates for each stock are based on the figures from all fisheries, both directed and
non-directed, in setting the overall ACL. See A.R. 1417, 4782; see also Omnibus Amendment,
76 Fed. Reg. at 60,611 (A.R. 5202) (“All managed species catch, regardless of whether the FMP
is a Mid-Atlantic, South Atlantic, New England, or Secretarial FMP, is fully accounted for under
the respective ACLs, irrespective of whether the catch is directed landings, dead discards in the
directed fishery, or dead discards incurred while targeting other species.”); id. at 60,614 (A.R.
5205) (“[T]he Omnibus Amendment’s system of accounting does, in fact, consider catch from all
directed fishery and other sources.”). Indeed, the NS1 Guidelines advise that stocks identified in
more than one fishery be regulated under a “primary FMP,” and that conservation and
management measures for the stock in other FMPs be included under the primary FMP. See 50
C.F.R. § 600.310(d)(7). The administrative record shows that NMFS believed this approach was
more efficient for the Omnibus Amendment, explaining that sub-ACLs are not a cost-effective
mechanism in instances where the bycatch makes up only a small percentage of the overall catch
for that stock. See Omnibus Amendment, 76 Fed. Reg. at 60,611 (A.R. 5202); see also A.R.
1418 (noting that another fishery uses sub-ACLs where bycatch is of a large magnitude, and
stating that “if there is a fishery that rises to the level of concern in that they’re taking a large
25
percentage of the species incidentally, that [sic] we would consider some measure like maybe a
sub ACL”).14
In response to Defendants’ showing that bycatch is accounted for, Oceana’s reply brief
moves the goalposts and asserts that accounting for bycatch in the overall ACL is insufficient
because it does not limit bycatch. See Pl.’s Reply Supp. Mot. Summ. J. 20, ECF No. 42.
Instead, Oceana brushes aside the Omnibus Amendment’s accounting system as merely
“counting fish.” See id. But the MSA requires only that the agency minimize bycatch “to the
extent practicable . . . .” 16 U.S.C. § 1853(a)(11). In phrasing the requirement in such a fashion,
Congress delegated to the agency the discretion to weigh the relevant factors. See Nat’l Coal. for
Marine Conservation v. Evans, 231 F. Supp. 2d 119, 141 (D.D.C. 2002) (“Congress, while aware
of the potential conflicts among the [MSA]’s provisions, nevertheless ‘required the Secretary to
exercise discretion and judgment in balancing among the conflicting national standards . . . .’”
(quoting Alliance Against IFQs v. Brown, 84, F.3d, 343, 350 (9th Cir. 1996))). Indeed, the
National Standards require the agency to balance several competing considerations in developing
FMPs, indicating that Congress did not intend that FMPs must limit bycatch to the greatest
extent possible. For example, National Standards 1, 7, and 9 require, respectively, that the
agency balance optimum yield with conservation, minimize costs and avoid duplication, and
minimize bycatch. See 16 U.S.C. § 1851(a)(1), (7), (9) (2012). The somewhat conflicting nature
of these standards shows that Congress delegated to NMFS the discretion to strike an appropriate
balance, and that there is no statutory mandate that one National Standard be maximized at the
expense of others. See also Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084,
14
As FSF points out, where bycatch makes up only a small percentage of the overall
catch for a given stock, “the interlocking system of sub-ACLs Oceana prefers would virtually
guarantee an essentially serendipitous series of shut-downs from year-to-year in other fisheries,
thus inhibiting the attainment of OY in those fisheries.” FSF’s Cross-Mot. Summ. J. 21.
26
1102 n.15 (9th Cir. 2012) (“The National Standards, and the MSA more generally, require
NMFS to balance conservation with yield, not favor one at the expense of the other.”).
The Court is similarly unconvinced by Oceana’s argument that the Omnibus
Amendment’s accounting system does not establish a mechanism for specifying ACLs and AMs
that prevent overfishing as required by Section 1853(a)(15) of the MSA. See Pl.’s Reply Supp.
Mot. Summ. J. 20. If bycatch in non-directed fisheries is accounted for in a stock’s overall ACL,
which in turn has its own AMs, it seems that those measures would serve to prevent overfishing.
Oceana has not demonstrated otherwise. Accordingly, the Court will grant summary judgment
in favor of all Defendants on Count II.
C. ACT Control Rule (Count III)
As noted above, the Omnibus Amendment employs annual catch targets, or ACTs, as one
type of AM. An ACT is “an amount of annual catch . . . that is the management target of the
fishery, and accounts for management uncertainty in controlling the annual catch at or below the
ACL.” 50 C.F.R. § 600.310(f)(2)(v) (2013). In other words, while the OFL is reduced by
scientific uncertainty to establish the ACL of a stock, the ACL is further reduced by management
uncertainty in order to establish the ACT for that stock. ACTs act as an AM because, by
establishing catch targets below the ACL that account for management uncertainty, they help to
ensure that the ACL is not exceeded. See id. An “ACT control rule” is “a specified approach to
setting the ACT for a stock . . . such that the risk of exceeding the ACL due to management
uncertainty is at an acceptably low level.” Id. § 600.310(f)(2)(vi).
Under the ACT paradigm set forth in the Omnibus Amendment, “Council staff or
species-monitoring committees will review available information and recommend to the Council
the amount of reduction from ACL to ACT necessary to address management uncertainty.
27
Where ACLs are divided into sector-specific ACLs, comparable sector ACTs that address the
associated sector-specific management uncertainties will be used.” Omnibus Amendment, 76
Fed. Reg. 60,607 (Sept. 29, 2011) (A.R. 5198). The ACT control rule for each species is
separately codified within the corresponding FMP. As set forth in the Omnibus Amendment,
committees must recommend an ACT for each species—with some species further broken down
by sector (commercial or recreational)—and identify the specific sources of management
uncertainty considered in setting the ACT. See 50 C.F.R. §§ 648.22, .71, .101, .121, .141, .161,
.231, .291 (2013).
The Guidelines for National Standard 1 advise:
If ACT is specified as part of the AMs for a fishery, an ACT control rule is
utilized for setting the ACT. The ACT control rule should clearly articulate how
management uncertainty in the amount of catch in the fishery is accounted for in
setting the ACT. The objective for establishing the ACT and related AMs is that
the ACL not be exceeded.
Id. § 600.310(f)(6). In Count III of its complaint, Oceana asserts that the Omnibus Amendment,
which relies on the ACT as one type of AM, fails to comply with the MSA and APA because it
does not specify a sufficient ACT control rule. See Compl. ¶¶ 74, 77, ECF No. 1. In the same
Count, Oceana also challenges the Omnibus Amendment’s alleged lack of a sufficient ACT
control rule as a violation of NEPA, asserting that the agency failed to consider feasible and
reasonable alternatives to the ACT AMs it did put in place, and did not take a hard look at the
environmental impacts of those AMs. See id. ¶¶ 75, 77.
1. MSA Claim
Oceana first asserts that the Omnibus Amendment does not contain a sufficient ACT
control rule and thus fails to comply with the MSA. See id. ¶ 74. In relevant part, the MSA
requires that the Secretary of Commerce “establish a mechanism for specifying annual catch
limits in the [FMP] at such a level that overfishing does not occur in the fishery, including
28
measures to ensure accountability.” 16 U.S.C. § 1853(a)(15) (2012). The latter clause sets forth
a statutory requirement that the agency adopt AMs in order to enforce the ACLs. See Oceana,
Inc. v. Locke, 831 F. Supp. 2d 95, 109 (D.D.C. 2011). The MSA does not specify what AMs are
sufficient to satisfy this statutory requirement. The agency, however, has promulgated National
Standards Guidelines to implement the MSA, and the NS1 Guidelines set forth advice as to the
AMs that should be implemented under various circumstances.
Before analyzing the Guidelines themselves, the Court must first determine what weight
the Guidelines are due. Where Congress delegates legally binding interpretive authority to an
agency, “a court may not substitute its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency.” Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 844 (1984). Here, however, the Guidelines do not carry the
force of law and are therefore not automatically entitled to Chevron deference. See 16 U.S.C.
§ 1851(b) (2012) (“The Secretary shall establish advisory guidelines (which shall not have the
force and effect of law), based on the national standards, to assist in the development of fishery
management plans.” (emphasis added)); United States v. Mead Corp., 533 U.S. 218, 234 (2001)
(finding that tariff classification rulings by the Customs Service lacked the force of law and were
therefore “beyond the Chevron pale”). Nonetheless, courts may afford some deference to a non-
binding agency interpretation of its guiding statute depending on the facts and circumstances at
hand—for example, based on the degree of the agency’s thoroughness, consistency, formality, or
expertise in issuing the interpretation. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)
(“We consider that the rulings, interpretations and opinions of the Administrator under this Act,
while not controlling upon the courts by reason of their authority, do constitute a body of
experience and informed judgment to which courts and litigants may properly resort for
29
guidance.”); see also Reno v. Koray, 515 U.S. 50, 61 (1995) (formalities); Good Samaritan
Hosp. v. Shalala, 508 U.S. 402, 417 (1993) (consistency); Aluminum Co. of Am. v. Cent. Lincoln
Peoples’ Util. Dist., 467 U.S. 380, 390 (1984) (expertise); Gen. Elec. Co. v. Gilbert, 429 U.S.
125, 142 (1976) (thoroughness).
The Court concludes that the NS1 Guidelines deserve considerable deference. NMFS
used a highly formal process to amend the Guidelines to reflect the agency’s interpretation of the
MSA’s new requirements for ACLs and AMs. The agency used notice-and-comment procedure
to amend the Guidelines, publishing an initial notice in the Federal Register just one month after
the MSRA was enacted. See NS1 Guidelines Notice, 72 Fed. Reg. 7016 (Feb. 14, 2007). NMFS
accepted public comments during the scoping process, see id., and after more than one year of
deliberation, published a proposed rule for further comment, see NS1 Guidelines Proposed Rule,
73 Fed. Reg. 32,526 (June 9, 2008). It finalized the amendments to the Guidelines on January
16, 2009, approximately two years after the MSRA was enacted. See NS1 Guidelines Final
Rule, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified at 50 C.F.R. pt. 600 (2013)) (A.R. 102–38).
Over the years, NMFS has adopted a detailed and thorough Guideline for each of the ten
National Standards, see 50 C.F.R. §§ 600.305–.355 (2013), which reflects the agency’s expertise
in the subject matter. Indeed, Oceana itself relies on the Guidelines in its briefing and does not
appear to challenge their interpretation of the MSA. See Pl.’s Mot. Summ. J. 24–27, ECF
No. 36.
The NS1 Guidelines support the agency’s position that the ACT is not a mandatory AM
under Section 1853(a)(15) of the MSA. The Guidelines identify the ACT as merely one of many
types of in-season AMs that may be employed. See 50 C.F.R. § 600.310(g)(2). Rather than
mandate the adoption of ACTs, the Guidelines state only that “ACTs are recommended in the
30
system of accountability measures so that ACL is not exceeded.” Id. § 600.310(f)(2)(v)
(emphasis added).
Nonetheless, NMFS did choose to implement ACTs as one type of AM in the Omnibus
Amendment. Where an FMP uses ACTs, “an ACT control rule is utilized for setting the
ACT.”15 Id. § 600.310(f)(6); see also id. § 600.310(f)(2)(vi) (defining ACT control rule). The
Guidelines also provide some direction as to the content that should be contained in ACT control
rules. In particular, in a provision relied upon heavily by Oceana, they provide that “[t]he ACT
control rule should clearly articulate how management uncertainty in the amount of catch in the
fishery is accounted for in setting ACT.” Id. § 600.310(f)(6). According to Oceana, the
Omnibus Amendment is invalid because it does not “clearly articulate” how the agency accounts
for management uncertainty in arriving at the ACT. See Pl.’s Mot. Summ. J. 25–26, ECF
No. 36. Instead, Oceana asserts that NMFS left itself unfettered discretion as to the method for
setting ACTs, and even whether to set ACTs at all. See id. at 27.
The Court begins by noting that the Guidelines provide that the ACT control rule “should
clearly articulate how management uncertainty in the amount of catch in the fishery is accounted
for in setting ACT.” See 50 C.F.R. § 600.310(f)(6) (emphasis added). Under the Guidelines,
“[s]hould is used to indicate that an action or consideration is strongly recommended to fulfill the
Secretary’s interpretation of the Magnuson–Stevens Act, and is a factor reviewers will look for
15
Although Oceana’s complaint and briefing are not clear on this point, one could read
Oceana’s claim as asserting that NMFS did not implement any ACT control rule, and that a
control rule is mandated by the NS1 Guidelines whenever ACTs are used. The Court reads the
Guidelines differently. In recognizing that “an ACT control rule is utilized for setting the
ACT[,]” 50 C.F.R. § 600.310(f)(6), NMFS was not imposing a separate substantive requirement
upon FMPs that use ACTs. In view of the provision’s lack of any language signifying
obligation, cf. id. § 600.305(c)(1) (providing that the Guidelines use the word “must” to denote
obligation to act), it is clear that this language in the Guidelines simply serves to define any rule
establishing an ACT-setting approach as an “ACT control rule.”
31
in evaluating a SOPP or FMP.” Id. § 600.305(c)(3) (emphases added). By contrast, the
Guidelines use the word “must” to denote obligations to act. See id. § 600.305(c)(1) (“Must is
used, instead of ‘shall’, to denote an obligation to act; it is used primarily when referring to
requirements of the Magnuson–Stevens Act, the logical extension thereof, or of other applicable
law.”). Thus, even assuming that the Omnibus Amendment’s ACT control rules do fail to
“clearly articulate” how management uncertainty is accounted for in setting the ACT, such detail
is not required in order to comply with the MSA.16 See also Locke, 831 F. Supp. 2d at 117
(finding that sub-AMs are not mandatory when sub-ACLs are used in an FMP, even though the
Guidelines provide that sub-AMs “should” accompany sub-ACLs).
Because the ACT itself is not a mandatory AM, and because the NS1 Guidelines do not
mandate that any specific content be included in the ACT control rule when ACTs are employed,
the ultimate inquiry under Section 1853(a)(15) of the MSA is whether NMFS established an
overall suite of AMs to prevent overfishing. See id. As Federal Defendants point out, the
16
Nor is Oceana sufficiently specific about what it thinks a “clear articulation” would
entail. Both the Guidelines and the Omnibus Amendment’s ACT control rules require that the
committees consider and identify sources of management uncertainty, including uncertainty in
the ability of managers to constrain catch and uncertainty in quantifying true catch amounts. See
50 C.F.R. § 600.310(f)(6)(i). Perhaps Oceana believes a rigid mathematical formula is required
or recommended—it does not say.
This case is not like Oceana, Inc. v. Locke, 670 F.3d 1238 (D.C. Cir. 2011), which
Oceana points to. In that case, the D.C. Circuit found that NMFS failed to comply with a
statutory mandate that it establish a standardized bycatch reporting methodology. See id. at
1241. There, the agency left itself discretion to depart entirely from its SBRM reporting duties
based on a vaguely defined exception. See id. Here, the Omnibus Amendment’s ACT control
rules contain no such escape hatch.
The SBRM case is also distinguishable on the basis that, by failing to “establish” a
sufficient methodology, NMFS violated its statutory duty under the MSA. See 16 U.S.C.
§ 1853(a)(11). Here, by contrast, Oceana argues that the agency left itself too much discretion in
executing a recommended AM. Oceana has not argued that the overall suite of AMs in the
Omnibus Amendment fails to “establish” AMs as required by the MSA. See id. § 1853(a)(15).
Such a theory may have been analogous to the SBRM case—the Court need not decide, because
Oceana has not presented the issue here.
32
Omnibus Amendment uses ACTs alongside several other AMs, such as commercial trip and
possession limits, and overage repayments. See Omnibus Amendment, 76 Fed. Reg. at 60,607
(A.R. 5198). Oceana, in both its complaint and its briefing, chose to focus narrowly on NMFS’s
alleged failure to adopt a sufficient ACT control rule, ignoring the other AMs that are in place.
In failing to show that the AMs in place are insufficient to ensure accountability, and instead
describing as mandatory AM components that are not so, Oceana has not met its burden of
demonstrating the Omnibus Amendment’s non-compliance with the MSA. See San Luis Obispo
Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en
banc) (“[T]he party challenging an agency’s action as arbitrary and capricious bears the burden
of proof.” (citing Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 746 F.2d 1492, 1502 (D.C.
Cir. 1984))). The Court will therefore enter judgment in favor of Defendants as to Oceana’s
Count III MSA claim.
2. NEPA Claim
Oceana has also claimed that the agency violated NEPA in its alleged failure to take a
hard look at the alternatives to, and environmental impacts of, the Omnibus Amendment’s
mechanism for specifying ACTs. See Compl. ¶¶ 75, 77. However, in its briefing, Oceana does
not present any argument or citation in support of its NEPA theory on Count III. In a case based
solely on judicial review of agency action, the district court sits as an appellate tribunal and
disposes of the case on cross-motions for summary judgment. See Locke, 831 F. Supp. 2d at 106
(“In such a case, summary judgment merely serves as the mechanism for deciding, as a matter of
law, whether the agency action is supported by the administrative record and otherwise
consistent with the APA standard of review.”); see also Am. Bioscience, Inc. v. Thompson, 269
F.3d 1077, 1083 (D.C. Cir. 2001) (“[W]hen a party seeks review of agency action under the
33
APA, the district judge sits as an appellate tribunal.”); Marshall Cnty. Health Care Auth. v.
Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (“The entire case on review is a question of law,
and only a question of law.”). Thus, a plaintiff’s failure to raise arguments or theories in its
motion for summary judgment results in waiver of those arguments. See EMILY’s List v. FEC,
569 F. Supp. 2d 18, 25 n.6 (D.D.C. 2008), rev’d on other grounds, 581 F.3d 1 (D.C. Cir. 2009);
see also New York v. U.S. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005) (per curiam) (finding waiver in
petitioner’s failure to raise argument in its opening brief). Accordingly, the Court will consider
Oceana’s NEPA theory waived as to Count III.
D. Use and Sufficiency of the SBRM (Count IV)
In Count IV of its complaint, Oceana challenges the Omnibus Amendment’s alleged use
of the SBRM as a bycatch reporting methodology, arguing that the FMPs’ alleged use of the
SBRM fails to provide the NMFS with timely, accurate, and precise enough information to
meaningfully enforce ACLs. See Compl. ¶¶ 78–90, ECF No. 1. The SBRM is not established
by the Omnibus Amendment itself, but was instead established by the SBRM Amendment, a
separate rule, promulgated earlier by the NMFS in cooperation with the councils for the New
England and Mid-Atlantic regions. See SBRM Amendment, 73 Fed. Reg. 4736 (Jan. 28, 2008)
(codified at 50 C.F.R. pt. 648 (2013)). The SBRM Amendment requires the NMFS to place
enough independent observers within each “fishing mode”—that is, combination of vessel type
and fishing gear—to gather statistically reliable data on bycatch. See id. at 4738.
However, the SBRM Amendment is no longer in effect. In 2011, the D.C. Circuit
ordered that the rule be vacated and remanded to the agency because it failed to comply with the
MSA’s requirement that the NMFS “establish” a standardized reporting methodology to assess
the amount and type of bycatch. Oceana, Inc. v Locke, 670 F.3d 1238, 1243 (D.C. Cir. 2011);
34
see also 16 U.S.C. § 1853(a)(11) (2012). The rule left the agency an escape hatch “[i]n any year
in which external operational constraints would prevent NMFS from fully implementing the
required at-sea observer coverage levels,” see SBRM Amendment, 73 Fed. Reg. at 4738, and the
court found that this gave the agency “complete discretion to determine when an external
operational constraint prevents [it] from fully implementing the required coverage levels.”
Oceana, 670 F.3d at 1241 (alteration in original) (internal quotation marks omitted). The agency
is still promulgating a new rule pursuant to the remand. See Notice and Request for Comments,
78 Fed. Reg. 69,391 (Nov. 19, 2013) (opening a comment period through December 19, 2013).
Federal Defendants argue that, because the SBRM Amendment has already been vacated
and remanded, the Court can provide no further relief to Oceana. See Fed. Defs.’ Mot. Summ. J.
33–34, ECF No. 38. Oceana counters that the continued use of the SBRM is arbitrary and
capricious, citing general case law on the arbitrary and capricious standard. See Pl.’s Omnibus
Reply Br. 26, ECF No. 42. Defendants have the better argument here. As Judge Boasberg found
in ruling on Oceana’s challenge to an amendment to the New England FMPs, the sufficiency of
the SBRM “is the very question being litigated in a separate case involving the SBRM
Amendment.” Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 114 (D.D.C. 2011). Like Amendment
16 at issue in that case, the Omnibus Amendment itself does not purport to establish a bycatch
reporting methodology, and Oceana’s claim thus rests on the SBRM Amendment itself. Because
the SBRM Amendment has been vacated and remanded to the agency, there is no further remedy
the Court can provide. See id. (“No matter the grounds for Oceana’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.”).
35
To the extent Oceana wishes to challenge the new methodology resulting from the
remand, it must wait until the issue is ripe for adjudication. As noted, the agency is still in the
rulemaking phase. Because the Court can provide no further relief under the theory outlined in
Count IV of the complaint, the Court will also dismiss this count.
E. In-Season Bycatch Monitoring Measures (Count V)
Oceana’s fifth and final claim asserts that, by declining to adopt in-season bycatch
monitoring, NMFS failed to establish sufficient AMs under Section 1853(a)(15) of the MSA.17
See Pl.’s Mot. Summ. J. 28–29, ECF No. 36. Defendants take the position that the MSA does
not require NMFS to monitor in-season bycatch in near real time. The MSA requires the
Secretary to “establish a mechanism for specifying annual catch limits in the [FMP] at such a
level that overfishing does not occur in the fishery, including measures to ensure accountability.”
16 U.S.C. § 1853(a)(15) (2012). As the Court has already noted, the latter clause requires the
Secretary to implement AMs to enforce ACLs. See supra Part IV.C.1 (citing Oceana, Inc. v.
Locke, 831 F. Supp. 2d 95, 109 (D.D.C. 2011)). The MSA itself is not specific as to the AMs it
requires, and so the Court, applying the doctrine of Skidmore v. Swift & Co., 323 U.S. 134
(1944), again views the NS1 Guidelines with considerable deference. See supra Part IV.C.1
(applying Skidmore to the NS1 Guidelines).
Neither the MSA nor the Guidelines support Oceana’s assertion that NMFS was required
to implement in-season bycatch monitoring. Section 1853(a)(15) of the MSA broadly mandates
that the Secretary implement AMs, and does not specifically mention in-season bycatch
17
Oceana’s complaint asserted a broader claim, alleging that the Omnibus Amendment
failed to establish any bycatch reporting methodology, violating Section 1853(a)(5), (11), and
(15) of the MSA. See Compl. ¶¶ 91–95, ECF No. 1. However, Oceana relies solely on its in-
season bycatch monitoring theory under Section 1853(a)(15) in its briefing, thus waiving the
remaining theories it originally asserted. See also supra Part IV.C.2.
36
monitoring—or bycatch at all.18 See 16 U.S.C. § 1853(a)(15); see also Oceana, Inc. v. Locke,
831 F. Supp. 2d 95, 109 (D.D.C. 2011) (“Nothing in the statute’s text compels the conclusion
that ‘measures to ensure accountability’ with ACLs required by § (a)(15) must also, by
themselves, meet the requirements of § (a)(11).”). The NS1 Guidelines, which interpret the
MSA’s mandate that the Secretary balance optimum yield with conservation and management in
the establishment of ACLs and AMs, provide only that “[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) (2013) (emphasis added). Thus, although they are highly
recommended, in-season AMs (and in-season bycatch monitoring, specifically) are not
mandatory.
Oceana cites to Locke for the proposition that “ACL monitoring . . . requires in-season
bycatch reports that measure discards in near real time . . . .” Locke, 831 F. Supp. 2d at 109. But
as FSF points out, Judge Boasberg was citing to the administrative record in that case, not to law,
indicating that the quoted language relates to the requirements of the specific FMP at issue in
that case. See FSF’s Cross-Mot. Summ. J. 27–28, ECF No. 37-1; see also Fed. Defs.’ Mot.
Summ. J. 36–37, ECF No. 38. See generally Amendment 16, 75 Fed. Reg. 18,262 (Apr. 9, 2010)
(codified as amended at 15 C.F.R. pt. 902 and 50 C.F.R. pt. 648 (2013)) (detailing weekly vessel
trip reporting requirements imposed by the amendment). This case relates to the fisheries within
the jurisdiction of the Mid-Atlantic Council, whose FMPs do not explicitly require “in-season
18
Section 1853(a)(11), which Oceana originally asserted in Count V and then waived,
see supra note 17, requires that the Secretary “establish a standardized reporting methodology to
assess the amount and type of bycatch occurring in the fishery,” 16 U.S.C. § 1853(a)(11), but
likewise does not explicitly state that the methodology must use in-season measures. Moreover,
as the Court noted above, NMFS is in the process of reissuing a standardized bycatch reporting
methodology on remand, following the D.C. Circuit’s rejection of the SBRM Amendment. See
supra Part IV.D.
37
bycatch reports that measure discards in near real time”—not the New England FMPs at issue in
Locke.
Because near-real-time in-season bycatch monitoring is not mandatory, the ultimate issue
of the Omnibus Amendment’s compliance with the MSA rests on whether the overall suite AMs
is sufficient to enforce the ACLs. See also supra Part IV.C.1. Defendants do not deny that some
form of accounting for bycatch, whether in-season or post-season, is an important component in
the overall suite. In the Omnibus Amendment’s final publication in the Federal Register, NMFS
stated:
In lieu of monitoring total catch on a real-time basis, the Omnibus Amendment
contemplates a two-part examination of the fisheries: Inseason monitoring of
landings . . . and post-fishing year accounting of dead discards. The monitoring
committees will consider the estimated discards for a given specification
period . . . and recommend any necessary reductions for uncertainty associated
with discard performance to the Council to establish ACT(s).
Omnibus Amendment, 76 Fed. Reg. 60,612 (Sept. 29, 2011) (A.R. 5203) (emphasis added).
NMFS acknowledged that the post-season estimation method “contains some uncertainty,
particularly if the discard estimates utilized to offset the ACT or to derive the landing limits
before the fishery occurs are variable.” Id. But this is accounted for in the management
uncertainty in setting the ACT, and thus the ACTs and post-season bycatch estimation go hand-
in-hand.
Oceana asserts that post-season estimates will not generate precise enough data to
meaningfully enforce ACLs. See Pl.’s Mot. Summ. J. 29. But this assertion is unsupported by
evidence or data. Instead, Oceana focuses exclusively on the alleged need for in-season
monitoring without explaining why NMFS’s chosen alternative was arbitrary and capricious.
Although the method of using post-season bycatch estimates to create an ACT “buffer” in lieu of
real-time monitoring contains inherent uncertainty, see Omnibus Amendment, 76 Fed. Reg. at
38
60,612 (A.R. 5203), the availability of corrective AMs such as overage adjustments in
subsequent fishing years, see 50 C.F.R. § 600.310(g)(3), makes NMFS’s choice appear
reasonable. While near-real-time bycatch monitoring may lead to more reliable data in theory,
NMFS explained that it lacked the resources to undertake such a measure. See Omnibus
Amendment, 76 Fed. Reg. at 60,612 (A.R. 5203). Oceana does not directly challenge this
reasoning, but instead asserts that its own preferred AM is superior.19 Upon review of an agency
action, “[o]nce assured the [agency] has engaged in reasoned decisionmaking, it is not for [the
Court] to reweigh the conflicting evidence or otherwise substitute [its] judgment for that of the
[agency].” Ind. Mun. Power Agency v. FERC, 56 F.3d 247, 254 (D.C. Cir. 1995). This is
particularly true when the agency is using scientific and technical expertise and balancing its
resources. See Huls Am. Inc. v. Browner, 83 F.3d 445, 452 (D.C. Cir. 1996).
Because Oceana has not shown that NMFS acted arbitrarily and capriciously in deciding
not to adopt in-season bycatch monitoring measures, the Court will enter judgment in favor of
Defendants as to Count V.
V. CONCLUSION
For the foregoing reasons, the Court will deny Oceana’s motion for summary judgment,
and grant Defendants’ motions for summary judgment. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: March 10, 2014 RUDOLPH CONTRERAS
United States District Judge
19
In response, Oceana quotes Locke for the proposition that “[s]tatutory requirements
that render fishery management more difficult or expensive, may not simply be disregarded.”
Locke, 831 F. Supp. 2d at 121, quoted in Pl.’s Mot. Summ. J. 29. However, as noted above, in-
season monitoring is not mandatory under the MSA or NS1 Guidelines.
39