Flaherty v. Locke

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL S. FLAHERTY et al.,
Plaintiffs,
v.
GINA RAIMONDO et al.,
Civil Action No. 11-660 (TJK)
Defendants,1
and
SUSTAINABLE FISHERIES COALITION,
Defendant-Intervenor.
MEMORANDUM OPINION
Plaintiffs Michael Flaherty, Captain Alan Hastbacka, and the Ocean River Institute
brought this suit to challenge the government’s management and conservation of four species of
fish—blueback herring, alewives, American shad, and hickory shad. In particular, they allege
that the government’s amendment of a federal fishery management plan violated the Magnuson-
Stevens Act, the Administrative Procedure Act, and the National Environmental Policy Act
because it failed to include these four species as part of the Atlantic herring fishery. Over the
long course of this litigation, Plaintiffs have amended or supplemented their complaint several
times to reflect the government’s subsequent amendments to the plan. Now before the Court are
cross-motions for summary judgment relating to Plaintiffs’ remaining challenges, those to
Amendment 5 to the Atlantic herring fishery management plan. For the reasons discussed
1
Defendant Gina Raimondo, who assumed office as Secretary of Commerce in March 2021, is
automatically substituted for Penny Sue Pritzker under Federal Rule of Civil Procedure 25(d).
below, the Court will deny Plaintiffs’ motion, grant Defendants’ and Defendant-Intervenor’s, and
enter judgment on Counts I and IV for Defendants and Defendant-Intervenor.
Background
A. Statutory and Regulatory Background
1. The Magnuson-Stevens Act
Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (the
“MSA”), 16 U.S.C. § 1801 et seq., to conserve and manage the Nation’s fishery resources. The
Act establishes a “national program for the conservation and management of” those resources
with the aim to “prevent overfishing, to rebuild overfished stocks, to insure conservation, to
facilitate long-term protection of essential fish habitats, and to realize the full potential of the
Nation’s fishery resources.” Id. § 1801(a)(6). Congress nominally placed this program under
the authority of the Secretary of Commerce, but in practice the Secretary delegates authority to
the National Marine Fisheries Service (“NMFS” or the “Service”), a sub-agency of the National
Oceanic and Atmospheric Administration. See NRDC v. Nat’l Marine Fisheries Serv., 71 F.
Supp. 3d 35, 40 (D.D.C. 2014).
A key feature of the MSA’s conservation and management program are “fishery
management plans” (“FMPs”), which are designed to “achieve and maintain, on a continuing
basis, the optimum yield from each fishery.” 16 U.S.C. § 1801(b)(4). The Act defines a
“fishery” as “one or more stocks of fish which can be treated as a unit for purposes of
conservation and management and which are identified on the basis of geographical, scientific,
technical, recreational, and economic characteristics,” as well as “any fishing for such stocks.”
Id. § 1802(13). A “stock of fish” is defined as “a species, subspecies, geographical grouping, or
other category of fish capable of management as a unit.” Id. § 1802(42). Each FMP must
include “conservation and management measures”—e.g., catch quotas, restrictions on fishing
2
technique and gear, and other rules and regulations—“necessary and appropriate for the
conservation and management of the fishery, to prevent overfishing and rebuild overfished
stocks, and to protect, restore, and promote the long-term health and stability of the fishery.” Id.
§ 1853(a)(1).
To develop the FMPs, among other tasks, “[t]he Act established eight regional Fishery
Management Councils, each of which has ‘authority over a specific geographic region and is
composed of members who represent the interests of the states included in that region.’” Anglers
Conservation Network v. Pritzker, 809 F.3d 664, 667 (D.C. Cir. 2016) (quoting C & W Fish Co.
v. Fox, 931 F.2d 1556, 1557–58 (D.C. Cir. 1991)). The MSA provides that “[e]ach Council
shall, . . . for each fishery under its authority that requires conservation and management, prepare
and submit to the Secretary (A) a fishery management plan, and (B) amendments to each such
plan that are necessary from time to time.” 16 U.S.C. § 1852(h). The relevant Council here
oversees fisheries in the Atlantic Ocean off the coast of Maine, New Hampshire, Massachusetts,
Rhode Island, and Connecticut. Id. § 1852(a)(1)(A).
Once a Fishery Management Council develops a proposed FMP or amendment to such a
plan, it must then submit that proposal, along with draft regulations it considers necessary to
implement the proposal, to the Secretary—in practice, the NMFS—to review for consistency
with the MSA and other applicable law. See 16 U.S.C. §§ 1852(h)(1), 1854(a)–(b). The NMFS
must publish the proposal in the Federal Register and facilitate a notice-and-comment process,
after which it must “approve, disapprove, or partially approve [the proposal].” Id. § 1854(a).
The MSA prescribes a similar procedure for the implementing regulations. See id. § 1854(b).
“If, upon completing this review, [the NMFS] approves the FMP or amendment, a final rule and
one or more implementing regulations are published in the Federal Register.” See also Oceana,
3
Inc. v. Locke, 831 F. Supp. 2d 95, 101 (D.D.C. 2011) (“Oceana II”) (citing 16 U.S.C.
§ 1854(b)(3)). The FMP, as incorporated into a final rule, and any accompanying regulations,
are subject to judicial review under the APA upon filing of a petition within 30 days of
promulgation. 16 U.S.C. § 1855(f)(1).
2. The National Environmental Policy Act
Congress enacted the National Environmental Policy Act (“NEPA”) in order “to use all
practicable means, consistent with other essential considerations of national policy, to improve
and coordinate Federal plans, functions, programs, and resources to the end that the Nation may
. . . fulfill the responsibilities of each generation as trustee of the environment for succeeding
generations.” 42 U.S.C. § 4331(b). 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
include a detailed statement about “(i) the environmental impact of the proposed action, (ii) any
adverse environmental effects which cannot be avoided should the proposal be implemented, (iii)
alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s
environment and the maintenance and enhancement of long-term productivity, and (v) any
irreversible and irretrievable commitments of resources which would be involved in the proposed
action should it be implemented.” Id. § 4332(2)(C).
B. Factual Background
Flaherty, Hastbacka, and the Ocean River Institute (“Plaintiffs”) challenge Amendment 5
to the Atlantic Herring Fishery Management Plan developed by the Council in the remaining
counts of the operative complaint. 79 Fed. Reg. 8786. The Atlantic Herring Fishery
Management Plan protects and manages Atlantic herring. See Flaherty v. Bryson, 850 F. Supp.
2d 38, 45 (D.D.C. 2012). Atlantic herring are mainly harvested by trawler vessels, which drag
4
nets behind them to catch the herring and, typically, ensnare “bycatch,” other fish and marine
wildlife. See id. The Atlantic Herring FMP first became effective in 2001, and since then the
Council and the Service have periodically updated it with amendments, some of which the Court
has addressed over the course of this lawsuit. See Flaherty v. Pritzker, 195 F. Supp. 3d 136,
141–43 (D.D.C. 2016) (discussing the factual and procedural history of this case).
Plaintiffs are particularly concerned with four species of fish—blueback herring,
alewives, American shad, and hickory shad—collectively “river herring.” Plaintiffs allege that
river herring are “inextricably involved” with the Atlantic herring fishery because vessels fishing
for Atlantic herring ensnare them as bycatch. See ECF No. 158 (“3d Am. Compl.”) ¶¶ 71–77;
850 F. Supp. 2d at 45–47. River herring have not been designated as a “stock” within the
Atlantic herring fishery such that they would be directly subject to annual catch limits and other
conservation and management measures under the Atlantic Herring FMP. Id. at 50–51.
Throughout this action, Plaintiffs have insisted that not including them in the fishery violates the
MSA. Id. at 50–56; 3d Am. Compl. ¶¶ 82, 107–147 (Counts I–III).
C. Procedural Background
Plaintiffs brought this case in 2011 against the Secretary of Commerce, the National
Oceanic and Atmospheric Administration, and the NMFS, challenging Amendment 4 of the
Atlantic Herring Fishery Management Plan. In the original complaint, ECF No. 1, they alleged
that the Atlantic Herring FMP did not comply with the requirements of the MSA and other
applicable law because it failed to include river herring as “stocks” in the fishery. Id. ¶¶ 70–82.
On March 9, 2012, this Court found that the Service had failed to adequately review the proposal
not to include those stocks and granted summary judgment for Plaintiffs on that question. 850 F.
Supp. 2d at 56. The Court later entered a remedial order that, among other things, remanded
Amendment 4 to the Service for reconsideration and required the Service to send a letter to the
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Council “recommending that the Council consider . . . whether ‘river herring’ should be
designated as a stock in the fishery” based on certain information and materials identified by the
Court. See ECF No. 41 at 10–12.
On August 31, 2012, the Service filed a supplemental letter to the Court explaining that,
upon reconsideration, it concluded that Amendment 4 complied with applicable law. See ECF
No. 42-1. On November 22, 2013, Plaintiffs moved to enforce the remedial order, arguing that
the Service, in reconsidering Amendment 4, violated the Court’s instructions. ECF No. 62.
While that motion was pending, Defendant-Intervenor filed an unopposed motion to intervene,
which the Court granted. See ECF Nos. 76, 85. On February 19, 2014, after briefing and a
hearing, the Court denied Plaintiffs’ motion to enforce. See Flaherty v. Pritzker, 17 F. Supp. 3d
52, 54 (D.D.C. 2014).
While those matters were proceeding, the Council developed Amendment 5 to the
Atlantic Herring FMP. Amendment 5 contains a variety of measures related to the management
of the Atlantic herring fishery, some of which concern river herring, but it does not designate
river herring as “stocks” in the fishery. 79 Fed. Reg. 8786. A portion of the amendment
contains measures “to address the catch of river herring in the herring fishery [in order] to
minimize bycatch and bycatch mortality to the extent practicable.” Id. at 8790. The amendment
creates various mechanisms for monitoring river herring bycatch, like slippage prohibitions and
the requirement of affidavits as to released bycatch, and establishes river herring avoidance
areas. Id. The amendment explains that these measures will allow the Council to “develop,
evaluate, and consider regulatory requirements” for the future development of a “river herring
bycatch avoidance strategy” in the herring fishery. Id. On February 13, 2014, the Service
6
approved the proposal and published a final rule implementing Amendment 5. See 79 Fed. Reg.
8786, 8796.
Plaintiffs, with the Court’s leave, filed an amended complaint challenging the
implementation of Amendment 5, see ECF No. 94, which Defendants answered, ECF No. 108.
Over the course of the next two years, the parties filed periodic status reports updating the Court
on efforts by the Council and Service that might resolve the parties’ dispute, including the
Council’s review of whether to develop a new amendment to add river herring to the Atlantic
Herring FMP. See, e.g., ECF Nos. 122, 125, 131, 144; 3d Am. Compl. ¶¶ 99–106.
When the Council decided not to immediately undertake new action to include river
herring in a proposed amendment, however, Plaintiffs sought leave to amend their complaint
again, this time to name the Council as a defendant and bring claims directly against it for failure
to comply with the MSA and the APA. See ECF No. 152. Defendants opposed, arguing that the
Council’s actions at issue were not “final agency actions” subject to review under the APA—
because the Council was not an “agency” under the statute. See ECF No. 153. The Court found
those issues better suited for more targeted briefing on a motion to dismiss and granted
Plaintiffs’ motion to amend the complaint. See ECF No. 156. And on September 14, 2017, the
case was reassigned to the undersigned.
Not long after that, Defendants and Defendant-Intervenor moved to dismiss Counts II and
III. See ECF No. 164 and 166. In Flaherty v. Ross, 373 F. Supp. 3d 97 (D.D.C. 2019), the Court
held that the Council is not an “agency” as defined under the Administrative Procedure Act, and
therefore dismissed Plaintiffs’ claims against it for lack of jurisdiction. After that decision, the
parties cross-moved for summary judgment on Counts I and IV, which remain.
7
Legal Standard
“The court shall grant summary judgment if 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). Because this case involves a challenge to a final administrative decision, the
Court’s review on summary judgment is limited to the Administrative Record. Holy Land
Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 160 (D.C. Cir. 2003); Fund for Animals v.
Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995) (“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.”).
The Court reviews agency decisions under the Magnuson–Stevens Act pursuant to
§ 706(2) of the APA. 16 U.S.C. § 1855(f)(1)(B) (“[T]he 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). 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.”
Analysis
1. Standing
The jurisdiction of the federal courts extends only to cases and controversies of the
“justiciable sort referred to in Article III”—in other words, claims the plaintiff can show they
have “standing” to bring. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish
standing, Plaintiffs must show that (1) they have “suffered an injury in fact that is (a) concrete
and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Friends of the
8
Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000). Defendants first argue that
Plaintiffs’ suit must be dismissed because they lack Article III standing, specifically that they
have failed to establish traceability or redressability. ECF No. 182 (“Def. MSJ”) at 18.
This is not the first time that Defendants have challenged Plaintiffs’ standing. The Court
already held that Plaintiffs had standing to pursue nearly identical claims challenging
Amendment 4. 850 F. Supp. 2d at 48–50. There, Defendants argued that Plaintiffs had failed to
show that their alleged injury was “imminent” and “traceable.” The Court determined that
Plaintiffs had “alleged continuous and ongoing harm to their ability to fish for species dependent
on the Atlantic and river herring” and had therefore established the imminent injury-in-fact
required for standing. Id. at 49. The Court also rejected Defendants’ two arguments directed at
traceability: that Plaintiffs’ injuries were not traceable to Amendment 4 because they (1)
“occurred long before NMFS issued the final rule implementing Amendment 4” and (2)
“because they concern species beyond the scope of the Amendment.” Id. As for the first
argument, the Court held that it did not matter that Plaintiffs’ alleged injuries began before the
rule itself because Plaintiffs needed “only [to] show that the agency’s actions materially
increased the probability of injury.” Id. at 50 (cleaned up). Indeed, the Court noted, “neither
proximate causation nor but-for causation” are necessary to establish traceability. Id. And as for
the second argument—that Plaintiffs’ injury cannot be traced to Amendment 4 because it did not
address river herring—the Court dismissed it as “plainly circular.” Id. After all, Plaintiffs sued
to challenge that very exclusion.
Defendants’ present challenge to Plaintiffs’ standing is similar. While they do not
challenge imminence or injury-in-fact, they call into question traceability as well as
redressability. Defendants first argue that Plaintiff’s injury is not traceable to their conduct
9
because Amendment 5 decreases the risk of injury to Plaintiffs. Def. MSJ at 18. But the
traceability requirement requires only that a party’s injury be “fairly traceable to the defendant’s
allegedly unlawful conduct.” See DaimlerChrysler v. Cuno, 547 U.S. 332, 342 (2006) (citation
and quotation marks omitted). And Plaintiffs allege that Defendants’ unlawful conduct is not
what Amendment 5 did, but what it failed to do: add river herring to the Atlantic Herring FMP.
Thus, it is of no moment that Amendment 5 may decrease the risk of injury to Plaintiffs, as
measured against the status quo ante. Plaintiffs allege that through Amendment 5, Defendants
have unlawfully failed to address a plausible risk of injury to them, so the traceability
requirement is satisfied.
On the issue of redressability, Defendants argue that “Plaintiffs are not entitled to any
relief that would require the Council to revise Amendment 5.” Def. MSJ at 20. And Defendants
point out that the Court did previously dismiss the Council as a defendant because “Congress,
through the APA, has not waived the federal government’s sovereign immunity as applied to the
Council.” 373 F. Supp. 3d at 110. But that dismissal does not mean that the Court cannot
redress Plaintiffs’ injuries. For example, the Court can order the remaining Defendants to
remedy a violation of law, as it already has. See ECF No. 41. And while Defendants suggest
that the law would disfavor such an order, Def. MSJ at 34, the Court must still “assume for the
purposes of standing that [the plaintiff] will ultimately receive the relief sought.” Florida
Audubon Soc’y v. Bentsen, 94 F.3d 658, 665 (D.C. Cir. 1996). Thus, the Court sees no reason to
doubt that Plaintiff’s injuries are redressable.
Finally, Defendants advance an argument that implicates both traceability and
redressability. See Branton v. FCC, 993 F.2d 906, 910 (1993) (traceability and redressability
“tend to merge . . . in a case such as this where the requested relief consists solely of the reversal
10
or discontinuation of the challenged action.”). They challenge the link between the lack of river
herring annual catch limits and accountability measures in Amendment 5 and Plaintiffs’ alleged
injury—challenging causation as well as whether an order requiring implementation of such
measures could redress the injury. But as the Court held earlier, “there is no doubt that increased
regulation of river herring catch would contribute to the rebuilding of that stock.” 850 F. Supp.
2d at 50. And Plaintiffs need only show “a substantial likelihood that the judicial relief
requested will prevent or redress the[ir] claimed injury.” Duke Power Co. v. Carolina Envtl.
Study Group, Inc., 438 U.S. 59, 79 (1978). Plaintiffs have demonstrated all three requirements
of standing. Thus, the Court proceeds to the merits.
2. Administrative Procedure Act Claim (Count I)
Plaintiffs claim that Amendment 5’s failure to add river herring to the Atlantic Herring
FMP violated the APA because it contravened the MSA. They argue that the MSA requires the
NMSA to include “all stocks of fish that are involved in a fishery and require conservation and
management to be added to FMPs.” Pl. MSJ at 23 (citing 16 U.S.C. §§ 1852(h)(1), 1853(a)(2)).
Plaintiffs say that river herring are in need of “conservation and management” for purposes of
the MSA. And while Amendment 5 contains a variety of measures related to the management of
the Atlantic herring fishery, some of which concern river herring, it does not designate river
herring as “stocks” in the fishery. 79 Fed. Reg. 8790. Thus, Plaintiffs argue, NMFS’s approval
of Amendment 5 was arbitrary and capricious under the APA.
NFMS’s approval of Amendment 5 was not arbitrary and capricious. To begin with,
Plaintiffs appear to argue that simply because NFMS approved the amendment, it also had to
reconsider the definition of the Atlantic herring fishery as part of the amendment. The Court
disagrees. NFMS’s assent to Amendment 5 did not impose on it a duty to revisit a separate
11
issue, the fishery’s definition. The MSA’s text lays out the NMFS’s obligations. BP Am. Prod.
Co. v. Burton, 549 U.S. 84, 91 (2006) (“We start, of course, with the statutory text.”). The MSA
requires the Secretary to review proposed FMPs and FMP amendments and ensure that they
conform to “the national standards, the other provisions of the [MSA], and any other applicable
law.” 16 U.S.C. § 1854(a)(1). And an FMP must “contain a description of the fishery,
including, but not limited to . . . the species of fish involved and their location.” 16 U.S.C.
§ 1853 (a)(2). But the statute is silent as to the reassessment of that description in subsequent
FMP amendments. Instead, it provides only that each council update FMPs by submitting to the
Secretary “amendments to each [FMP] that are necessary from time to time.” 16 U.S.C.
§ 1852(h)(1).
The relevant regulations are also silent on the question of when a fishery’s definition
must be reassessed. National Standard Guideline 1 outlines the requirements for species
identified as “stocks” in an FMP. 50 C.F.R. § 600.310(d). The Guideline does not require
reevaluation of the stocks in every FMP Amendment, but instead merely notes that “Councils
should review the available quantitative or qualitative information . . . [about] stocks within a
complex on a regular basis.” Id. § 600.310(d)(2)(ii)(B) (emphasis added). See also Oceana, Inc.
v. Pritzker, 24 F. Supp. 3d 49, 63 (D.D.C. 2014) (“Oceana III”) (“The Guidelines also support
the conclusion that the MSA does not require reclassification of stocks ‘in the fishery’ each time
an FMP is amended.”).
The structure of the MSA also supports the conclusion that the NMFS had no duty to
consider amending the Atlantic herring fishery’s definition in Amendment 5 simply because it
approved it. Other portions of the MSA illustrate that when Congress wanted to establish a clear
timeline for amendment of some aspect of an FMP, it knew how to do so. For example, the
12
MSA requires that the Secretary immediately inform the relevant regional counsel when it is
determined that a fishery is overfished. 16 U.S.C. § 1854(e)(2). It then sets a two-year deadline
for the Council to “prepare and implement [an FMP], plan amendment, or proposed regulations
. . . to end overfishing in the fishery and to rebuild affected stocks of fish” and provides that if
the Council fails to act within the two-year period, the Secretary must prepare an appropriate
FMP or plan amendment. Id. at § 1854(e)(3)-(5). Thus, as one court concluded, “where a
species is found to be both experiencing overfishing and already overfished,” the MSA requires
that “any plan amendment designed to halt the overfishing also include a plan to rebuild the
overfished stocks.” N. Carolina Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 97
(D.D.C. 2007); see 16 U.S.C. § 1853 (a)(10).2
But as the court in N. Carolina Fisheries observed, some of the MSA’s required
provisions are “quite general . . . while others are more specific.” 518 F. Supp. 2d at 97–98. In
contrast to the specific provisions at issue in N. Carolina Fisheries, the MSA creates no similar
process or timeline for amendments to an FMP generally or to update of the description of a
fishery. And “Congress generally acts intentionally when it uses particular language in one
section of a statute but omits it in another.” Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383,
391 (2015). The absence of such provisions underscores the Court’s conclusion that by
approving Amendment 5, the NMFS was not required to also consider whether to change the
fishery’s definition, and the Court will not create such a duty. See Rotkiske v. Klemm, 140 S. Ct.
2Congress amended this structure slightly in the 2007 Reauthorization of the MSA. See Pub. L.
No. 109–479, § 104(c)(3), 120 Stat. at 3584. While N. Carolina Fisheries analyzes an earlier
version of the statute, this Court’s analysis references the present version of the statute, which is
materially similar.
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355, 361 (2019) (“Atextual judicial supplementation is particularly inappropriate when . . .
Congress has shown that it knows how to adopt the omitted language or provision.”).
Plaintiffs also argue that NFMS’s approval of Amendment 5 was arbitrary and capricious
because in their view river herring need conservation and management under the MSA, and so it
was “necessary” that Amendment 5 include them in the Atlantic herring fishery. 16 U.S.C.
§ 1852. But the NFMS had reached no such conclusion. In accordance with the Court’s
remedial order, ECF No. 41, the NMFS recommended that the Council consider whether river
herring should be part of the fishery. ECF No. 42-2. The Council then considered that question
in a process separate from the development of Amendment 5. See ECF No. 182-1, at 16. And
the Council did not find that river herring should be added. Thus, this argument provides no
reason to find that NFMS’s approval of Amendment 5 was arbitrary and capricious, and
Plaintiffs do not identify any other reason to conclude that the amendment was flawed for this
reason.3
3
In Count I of the operative complaint, Plaintiffs allege only that NFMS’s approval of
Amendment 5 was arbitrary and capricious; they do not challenge the Council’s decision to
decline to add river herring to the fishery because river herring were not in need of conservation
and management. ECF No. 158 at 31–34. And as the Court has already held, the Council is not
an “agency” such that its decisions are reviewable under the APA. 373 F. Supp. 3d at 110. In
any event, the Court notes that the relevant regulations afford this decision significant discretion.
81 Fed. Reg. 71,864 (noting that National Standard 1 guidelines “allow significant discretion for
the Councils to evaluate the specific facts presented by a wide variety of stocks and fisheries to
determine the necessity and utility of federal management”). And Plaintiffs do not explain with
any clarity the basis on which they could argue that that decision was arbitrary and capricious.
See also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983) (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.”).
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3. National Environmental Policy Act Claim (Count IV)
NEPA requires an agency to prepare an Environmental Impact Statement for any
proposed major federal action “significantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(C). An EIS requires the agency to “take a hard look at the environmental
consequences before taking a major action.” Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87,
97 (1983) (cleaned up). “An EIS must detail the environmental impact of the proposed action,
any adverse effects, alternatives to the proposed action, the relationship between the short-term
uses and the long-term effects, and any irreversible commitments of resources.” Conservation L.
Found. v. Ross, 374 F. Supp. 3d 77, 111 (D.D.C. 2019).
Defendants prepared an EIS for Amendment 5 to the Atlantic Herring FMP. See Final
Environmental Impact Statement for Amendment 5 to the Atlantic herring FMP (March 25,
2013) (“FEIS”); see also Oceana II, 831 F. Supp. 2d at 101 (“The approval of FMPs and
amendments to FMPs are considered major Federal actions within the meaning of NEPA.”).
Plaintiffs argue that Defendants violated NEPA because the Amendment 5 EIS failed to take a
“hard look” at the definition of the Atlantic herring fishery and consider all reasonable
alternatives to address river herring bycatch.
Plaintiffs’ challenge misunderstands the scope of an EIS. An EIS focuses on the
proposed federal action and need only take a “hard look” at that action and a limited range of
alternatives to it. Conservation L. Found., 374 F. Supp. 3d at 111. As discussed above, the
MSA did not require Defendants to reconsider a separate issue, the description of the fishery,
when approving Amendment 5. Therefore, to the extent Plaintiffs challenge the failure of the
EIS to take a “hard look” at the description of the Atlantic herring fishery, or consider
alternatives to the present description, such an analysis is not required by NEPA. Kleppe v.
15
Sierra Club, 427 U.S. 390, 410 (1976) (“The only role for a court is to insure that the agency has
taken a hard look at environmental consequences; it cannot interject itself within the area of
discretion of the executive as to the choice of the action to be taken.”) (quotation marks omitted).
Similarly, an EIS need only consider a limited range of alternatives to the relevant action,
defined by the agency’s objectives. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190,
195 (D.C. Cir. 1991) (“[T]he proposed alternative is reasonable only if it will bring about the
ends of the federal action”). Nothing in the record here suggests that the objective of
Amendment 5 included a reassessment of whether river herring should be included as “stocks” in
the fishery. The agency’s objectives, which included “measures to address river herring
bycatch,” were far more modest.4 74 Fed. Reg. 68,576.
Plaintiffs also suggest that Defendants needed to consider the addition of river herring to
the fishery description as an alternative measure to “address river herring bycatch.” 74 Fed. Reg.
68,576. But an agency need not consider every possible alternative that could address an
objective. Instead, “the agency has discretion to choose a manageable number of alternatives to
present a reasonable spectrum of policy choices that meet the goals of the action.” Oceana, Inc.
v. Evans, 384 F. Supp. 2d 203, 241 (D.D.C. 2005) (“Oceana I”). And under NEPA, the Court’s
role is merely “to assure that [the agency] has met ‘certain minimal standards of rationality’ in
designing a reasonable range of alternatives.” Id. at 246 (citation omitted). The Court evaluates
4
The NMFS issued a Notice of Intent to prepare an EIS for Amendment 5, which defined the
“measures considered under Amendment 5 [to] include: catch-monitoring program; measures to
address river herring bycatch; criteria for midwater trawl access to groundfish closed areas; and
measures to address interactions with the Atlantic mackerel fishery.” 74 Fed. Reg. 68,576(cleaned up).
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the adequacy of an EIS according to a “rule of reason,” given the scope and purpose of the
proposed action. Tongass Conservation Soc’y. v. Cheney, 924 F.2d 1137, 1140 (D.C. Cir. 1991).
In considering this objective, the NMFS considered three alternatives: a “no action”
alternative, “river herring monitoring/avoidance,” and closures for “river herring protection.”
FEIS at xii–xxii. And within these three alternatives, NMFS considered six suboptions,
including 100% observer coverage, sampling, trigger-based monitoring, cooperation with the
fishing industry for bycatch analysis, closed areas, and trigger-based closed areas. Id. at xxi–
xxii. NMFS’s consideration of this variety of alternatives and suboptions fulfilled its duty to
consider a reasonable range of alternatives under NEPA. See Oceana III, 24 F. Supp. 3d at 65
(“Where an issue is particularly complex, the scope of reasonable alternatives is necessarily
limited.”) See also id. (identifying fishery management as “exceedingly complex”). This is
especially so when there is little record evidence that inclusion of river herring in the Atlantic
herring fishery is a good fit for the NMFS’s narrower goal of addressing river herring bycatch.
16 U.S.C. § 1853 (describing the FMP provisions required for each species of fish named in a
fishery description, which stretch beyond addressing bycatch).
Conclusion
For all these reasons, Defendants’ Motion for Summary Judgment, ECF No. 182, and
Defendant-Intervenor’s Motion for Summary Judgment, ECF No. 183, will be granted and
Plaintiffs’ Motion for Summary Judgment, ECF No. 178, will be denied. A separate order will
issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 26, 2021
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