Pacific Coast Federation of Fi, et al v. Gary Locke, et al

Filing

FILED OPINION (CONSUELO M. CALLAHAN, PAUL J. WATFORD and EDWARD R. KORMAN) AFFIRMED. Judge: CMC Authoring, FILED AND ENTERED JUDGMENT. [8315571]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS; PORT
ORFORD OCEAN RESOURCE TEAM;
SAN FRANCISCO CRAB BOAT
OWNERS ASSOCIATION,
Plaintiffs-Appellants,
v.
REBECCA M. BLANK, in her official
capacity as Acting Secretary of the
United States Department of
Commerce; NATIONAL MARINE
FISHERIES SERVICE; NATIONAL
OCEANIC AND ATMOSPHERIC
ADMINISTRATION,
Defendants-Appellees.





No. 11-17108
D.C. No.
3:10-cv-04790-CRB
OPINION



Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
August 7, 2012—San Francisco, California
Filed September 10, 2012
Before: Consuelo M. Callahan and Paul J. Watford,
Circuit Judges, and Edward R. Korman,
Senior District Judge.*
*The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, sitting by designation.

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Opinion by Judge Callahan

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COUNSEL
Mark A. White and Andrea Kendrick, Chapman Popik &
White LLP, San Francisco, California; Mary L. Hudson
(argued), Law Office of Mary L. Hudson, Sausalito, California; Alan Waltner, Law Offices of Alan Waltner, San Francisco, California, for the plaintiffs-appellants.
Ignacia S. Moreno, Meredith Flax, Romney Philpott, Joseph
Matthews, Brian C. Toth (argued), U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Mariam McCall, Office of General Counsel,
National Oceanic & Atmospheric Administration, Seattle,
Washington, for the defendants-appellees.
Shirish Gupta, San Mateo, California, for amicus curiae Food
& Water Watch, Inc.
Michael F. Scanlon and J. Timothy Hobbs (argued), K&L
Gates LLP, Seattle, Washington, for amici curiae Environmental Defense Fund, United Catcher Boats, and Midwater
Trawlers Cooperative.

OPINION
CALLAHAN, Circuit Judge:
In 2011, the National Marine Fisheries Service (“NMFS”)
and the Pacific Fishery Management Council (“Pacific Council” or “Council”) adopted changes to the fishery management
plan for the trawl sector of the Pacific Coast groundfish fishery. The changes, adopted as Amendments 20 and 21 to the
PacificCoast Groundfish Fishery Management Plan, are
designed to increase economic efficiency through fleet consolidation, reduce environmental impacts, and simplify future
decisionmaking.

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Plaintiffs-Appellants Pacific Coast Federation of Fishermen’s Associations, et al. (“plaintiffs”) are a collection of primarily non-trawl fishermen’s associations and groups whose
longtime participation in the fishery may shrink under
Amendments 20 and 21. They argue that the Amendments are
unlawful under the Magnuson-Stevens Fishery Conservation
and Management Act (“MSA”), 16 U.S.C. §§ 1801-1884,
which imposes procedural and substantive requirements for
managing fisheries, and the National Environmental Policy
Act (“NEPA”), 42 U.S.C. §§ 4321-4347, which imposes
purely procedural requirements for reviewing the potential
environmental effects of proposed agency actions.
The district court, which had jurisdiction pursuant to 16
U.S.C. § 1861(d) and 28 U.S.C. § 1331, granted summary
judgment to the defendants. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm. NMFS1 complied with the
MSA’s provisions, which required the agency to consider
fishing communities but did not require it to develop criteria
for allocating fishing privileges to such communities or to
restrict privileges to those who “substantially participate” in
the fishery. NMFS also complied with NEPA by preparing a
separate study for each amendment, analyzing a reasonable
range of alternatives, adequately evaluating potential environmental effects, and adopting flexible mitigation measures
designed, in part, to lessen the potential adverse effects of
Amendments 20 and 21 on fishing communities. The plaintiffs reasonably disagree with the balance NMFS struck
between competing objectives, but they do not show that
NMFS exceeded its statutory authority under the MSA or
ignored its obligations under NEPA.
1

The plaintiffs’ MSA arguments concern both NMFS and Pacific Council because both agencies share responsibility for implementing that statute. In contrast, only NMFS has obligations under NEPA. For ease of
reference, we refer simply to “NMFS” throughout this opinion.

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BACKGROUND
A.

Statutory and regulatory background

1.

The MSA
a.

Fishery management plans

The MSA establishes eight Fishery Management Councils
composed of fishing representatives and government and
tribal officials. 16 U.S.C. § 1852. The Councils are charged
with preparing fishery management plans for fisheries that
require “conservation and management.” Id. § 1852(h)(1).
Plans must contain measures to “prevent overfishing and
rebuild overfished stocks,” id. § 1853(a)(1)(A), and “assess
and specify,” among other things, the “optimum yield” from
each fishery, id. § 1853(a)(3); see also 50 C.F.R. § 600.10
(defining “optimum yield”).
To the extent measures are necessary to reduce overall harvest to prevent overfishing, a fishery management plan must
allocate any harvest restrictions fairly and equitably among
the commercial and recreational sectors that participate in the
fishery. 16 U.S.C. § 1853(a)(13), (14). Plans may include
restrictions on fish catch or gear types, establish a limited
access system in order to achieve optimum yield, or include
any other measures “determined to be necessary and appropriate for the conservation and management of the fishery.” Id.
§ 1853(b)(3), (4), (6), (14). Plans must comply with ten
national
standards.
Id.
§§ 1851(a),
1853(a)(1)(C),
1854(a)(1)(A). As relevant here, National Standard 2 requires
that “[c]onservation and management measures shall be based
upon the best scientific information available.” Id.
§ 1851(a)(2); see also 50 C.F.R. § 600.315(b)(1). National
Standard 8 requires that
[c]onservation and management measures shall, consistent with the conservation requirements of this

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chapter (including the prevention of overfishing and
rebuilding of overfished stocks), take into account
the importance of fishery resources to fishing communities by utilizing economic and social data that
meet the requirements of [National Standard 2], in
order to (A) provide for the sustained participation of
such communities, and (B) to the extent practicable,
minimize adverse economic impacts on such communities.
16 U.S.C. § 1851(a)(8); see also 50 C.F.R. § 600.345(b)(2).2
The Fishery Management Councils submit fishery management plans for review by the public and review and approval
by NMFS, acting on behalf of the Secretary of Commerce. 16
U.S.C. § 1854(a). The Councils and NMFS follow the same
process for regulations to implement a given plan. Id.
§§ 1853(c), 1854(b).
b.

Limited access programs

Beginning in 1990, the Fishery Management Councils
began to regulate certain fisheries by adopting programs limiting those who could enter and participate in the fisheries. See
16 U.S.C. § 1853(b)(6) (authorizing “limited access system[s]
. . . in order to achieve optimum yield”). These programs were
referred to as “individual fishing quota” programs, under
which individual fishery participants received privileges to
harvest a specific quantity of fish.
In 1996, Congress imposed a temporary moratorium on
new quota programs until the National Academy of Sciences
2

“Fishing community” means a “community which is substantially
dependent on or substantially engaged in the harvest or processing of fishery resources to meet social and economic needs, and includes fishing vessel owners, operators, and crew and United States fish processors that are
based in such community.” 16 U.S.C. § 1802(17).

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studied those programs and their effects on fishing communities. Pub. L. No. 104-297, § 108(f), 110 Stat. 3559, 3577-79
(1996). The resulting report concluded that quota programs
can be effective solutions to a host of fishery-related problems, including economic inefficiency, overcapitalization (too
many resources directed at too few fish), and overfishing, but
that such programs also can have serious adverse impacts on
fishing communities. The report ultimately recommended lifting the quota moratorium, subject to the report’s guidance.
The report noted that quota programs are most likely to be
successful when their objectives are clear and there is “broad
stakeholder support and participation.” Finally, the report
emphasized the need for quota programs to be designed on a
fishery-by-fishery basis.
In 2007, Congress reauthorized the MSA and lifted the
quota moratorium by adding a section that authorizes “limited
access privilege programs.” Pub. L. No. 109-479, § 106, 120
Stat. 3575, 3586 (2007) (codified at 16 U.S.C. § 1853a).
Under such programs, of which quota programs are a subset,
fishery participants receive “privileges” (or, in the case of
quota programs, “quota shares”) to harvest a certain portion
of the total catch allowed for a particular species. 16 U.S.C.
§ 1802(26). NMFS and the Fishery Management Councils
must structure limited access programs in accordance with
various requirements, some of which concern fishing communities and form the basis of the plaintiffs’ arguments in this
case. See infra Discussion, § A (discussing 16 U.S.C.
§ 1853a(c)(3), (5)).
2.

NEPA

NEPA requires federal agencies to examine and disclose
the environmental impacts of their proposed actions. Baltimore Gas & Elec. Co. v. NRDC, Inc., 462 U.S. 87, 97 (1983).
NEPA’s mandate is purely procedural. Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350-51 (1989); Neigh-

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bors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1070
(9th Cir. 2002).
NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) for all “major Federal actions
significantly affecting the quality of the human environment.”
42 U.S.C. § 4332(2)(C). Under NEPA’s implementing regulations, 40 C.F.R. §§ 1500-1508 (1986), an agency prepares a
draft EIS in which it evaluates the proposed action and its
direct, indirect, and cumulative environmental impacts and
compares the proposed action with reasonable alternatives,
including a “no action” alternative, id. § 1502.14. The agency
then circulates the draft EIS for public review and comment.
Id. §§ 1502.19, 1503.1. The agency reviews and responds to
any comments, makes any appropriate changes to the EIS,
and then circulates the final EIS. Id. § 1503.4. Finally, the
agency selects an alternative and issues a decision. Id.
§ 1505.2.
B.
1.

Factual background
The Pacific groundfish fishery

The Pacific groundfish fishery extends 200 miles into the
Pacific Ocean, along the coasts of California, Oregon, and
Washington, and includes more than 90 species of fish that
dwell near the sea floor. Fishers use many different types of
gear, including trawl nets (nets dragged by boats along the sea
floor), traps, and longlines, but trawls dominate. The trawl
sector consists of two fisheries, one targeting Pacific whiting
(hake) and another targeting non-whiting species. The nontrawl sector includes fishers who use what is called “fixed
gear,” such as longlines and pots, and primarily targets sablefish.
Every two years, the Pacific Council establishes catch limits, called “optimum yields” or “annual catch limits,” which
“represent an annual quantity of fish that the groundfish fish-

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ery as a whole may catch.” Catch limits are divided among
different sectors of the fishery, such as between trawlers and
fixed gear fishers; these divisions are called “allocations.”
Prior to Amendments 20 and 21, the Council enforced catch
limits primarily by regulating the number of fishing trips. The
Council also used gear restrictions and seasonal and area closures. Through trip limits the Council was able to measure
and restrict harvests, but it was not able to comprehensively
measure or limit “bycatch,” which refers to non-targeted (and
often overfished) species that are incidentally caught and discarded. Indeed, before Amendments 20 and 21, bycatch was
recorded on only one-quarter of non-whiting trawl fishing
trips.
In mixed-stock fisheries like the Pacific groundfish fishery,
harvests of healthy species are constrained by measures to
protect overfished species, “even if those species are not targeted by any particular fishery.” The result is sub-optimal harvests. Between 1999 and 2002, seven species were designated
as overfished and have since had very low catch limits. See
NRDC v. Evans, 290 F. Supp. 2d 1051, 1052-53 (N.D. Cal.
2003). The Council has made various efforts over the years to
achieve optimum yields in the trawl fishery while reducing
adverse impacts to these overfished species. Nonetheless, “biological, social, and economic concerns” have remained, and
the fishery has continued to be viewed as “unsustainable.”
2.

Amendments 20 and 21

In 2003, the Pacific Council set out to develop a program
for better managing the Pacific groundfish fishery. The Council ultimately settled on a goal to
[c]reate and implement a capacity rationalization
plan that increases net economic benefits, creates
individual economic stability, provides for full utilization of the trawl sector allocation, considers envi-

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ronmental impacts, and achieves
accountability of catch and bycatch.3

individual

The Council also set other goals, such as simplifying the process for making allocations and reducing Pacific halibut
bycatch.
Work on a plan to achieve these goals began in earnest in
2006, with public workshops, Council meetings, and structuring of alternative courses of action. The Council decided to
divide its goals into two proposals, one for rationalization of
the trawl sector and another for allocations and Pacific halibut
bycatch. Accordingly, NMFS prepared a separate draft and
final EIS for each proposal, evaluating alternatives, considering the alternatives’ potential environmental and economic
consequences, and discussing possible mitigation. The public
was invited to comment on each version of each EIS, as well
as on all proposed and final rules. See Pacific Coast Groundfish Fishery Management Plan, Amendments 20 and 21,
Trawl Rationalization Program, 75 Fed. Reg. 60,868, 60,868
(Oct. 1, 2010) (codified at 50 C.F.R. pt. 660).
In August 2010, NMFS approved Preferred Alternative 4b
as Amendment 20, and various preferred alternatives as
Amendment 21. NMFS issued regulations codifying the
Amendments about two months later. 75 Fed. Reg. at 60,868.
Amendment 20 (“Trawl Rationalization”) divides the trawl
fishery into three sectors4 and then assigns a discrete number
3

According to the Amendment 20 EIS, “rationalization” is “meant to
encompass a variety of measures intended to improve the management of
groundfish resources, in part by improving the economic efficiency of the
fishery.” NMFS focused on rationalizing the trawl sector because of its
historic dominance and superior harvesting abilities.
4
These sectors are: (1) on-shore whiting and non-whiting vessels; (2)
off-shore whiting motherships (which process catch from other vessels);
and (3) off-shore catcher-processors, which process their own catch on
board. The plaintiffs here challenge only the provisions of Amendments
20 and 21 pertaining to the on-shore, non-whiting sub-sector.

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of fishing privileges within each sector. For the on-shore sector, privileges are initially allocated based on catch history
and then become freely transferable after two years. Liberal
transferability is expected to yield economic efficiency and
bycatch reductions, but it also may force out participants from
local fishing communities by consolidating privileges and
making them more expensive. All trawl vessels must employ
observers who measure the number of target fish caught and
the number of non-target fish discarded as bycatch. Finally,
Amendment 20 includes various measures to reduce adverse
impacts to fishing communities. See infra Discussion, §§ A.1,
B.4.
Besides limiting Pacific halibut bycatch, Amendment 21
(“Intersector Allocation”) does various things to support
Amendment 20, the most important of which is to fix allocations of 19 groundfish stocks among the various trawl and
non-trawl sectors. For other species, the Pacific Council will
continue to assign allocations every two years. Amendments
20 and 21 were implemented on January 1, 2011. See 75 Fed.
Reg. at 60,868; Pacific Coast Groundfish Fishery Management Plan, Amendments 20 and 21, Trawl Rationalization
Program, 75 Fed. Reg. 78,344, 78,344 (Dec. 15, 2010) (codified at 50 C.F.R. pt. 660).
C.

Procedural background

The plaintiffs filed suit in October 2010. In January 2011,
the plaintiffs filed an amended complaint alleging that: (1)
Amendment 20’s limited access program violated 16 U.S.C.
§ 1853a by failing to protect and promote the interests of fishing communities, specifically by failing to develop procedures
that would have allowed such communities to receive an initial allocation of privileges; (2) the program violated § 1853a
by failing to restrict the authority to receive and hold privileges to those who “substantially participate” in the fishery;
(3) NMFS violated various MSA national standards in

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approving Amendments 20 and 21; and (4) NMFS violated
NEPA in studying the Amendments.
The district court granted the plaintiffs’ request to expedite
the case under 16 U.S.C. § 1855(f)(4), and, after a hearing,
granted summary judgment in favor of the defendants on all
claims. Pac. Coast Fed’n of Fishermen’s Ass’n v. Locke, 2011
WL 3443533 (Aug. 5, 2011) (unpublished). The court held
that NMFS met its statutory obligations to fishing communities under the MSA, was not required to restrict privileges to
those who “substantially participate” in the fishery, followed
applicable national standards, and complied with NEPA.
NMFS, the court wrote, “could have gone about the process
of developing Amendments 20 and 21 differently and perhaps
avoided at least some of the issues presently before the
Court.” Id. at *1. However, “the Court is not called upon to
decide whether a different process might have been utilized or
whether the path ultimately chosen . . . is the wisest policy.”
Id.
The plaintiffs filed a timely notice of appeal. We granted
the plaintiffs’ unopposed motion to expedite the appeal. The
plaintiffs bring forward many, but not all, of the arguments
they made below.5
STANDARD OF REVIEW
We review the district court’s summary judgment de novo.
Humane Soc’y of the U.S. v. Locke, 626 F.3d 1040, 1047 (9th
Cir. 2010). Our review of NMFS’s compliance with the MSA
and NEPA is governed by the Administrative Procedure Act
5

Two groups of amici who participated in the district court also participate on appeal. Supporting the plaintiffs is Food & Water Watch, Inc., a
non-profit organization representing fishers, conservationists, and consumers. Supporting NMFS are the Environmental Defense Fund (an environmental conservation group) and United Catcher Boats and Midwater
Trawlers Cooperative (fishing trade associations).

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(“APA”), 5 U.S.C. §§ 701-706, under which a court may set
aside an agency action if it is “arbitrary, capricious, an abuse
of discretion or otherwise not in accordance with law,” id.
§ 706(2)(A); see also 16 U.S.C. § 1855(f)(1) (APA governs
NMFS’s compliance with the MSA); Pac. Rivers Council v.
U.S. Forest Serv., ___ F.3d ___, 2012 WL 2333558, *6 (9th
Cir. June 20, 2012) (APA governs agency’s compliance with
NEPA).
Under the APA’s “arbitrary and capricious” standard, we
must determine whether the agency “has considered the relevant factors and articulated a rational connection between the
facts found and the choice made.” Baltimore Gas & Elec. Co.,
462 U.S. at 105; see also Midwater Trawlers Coop. v. Dep’t
of Commerce, 282 F.3d 710, 717 (9th Cir. 2002). This standard of review is “highly deferential, presuming the agency
action to be valid and affirming the agency action if a reasonable basis exists for its decision.” Nw. Ecosystem Alliance v.
U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir.
2007) (citation and internal quotation marks omitted).
Finally, NMFS’s interpretation of the MSA is reviewed
under the two-step framework of Chevron, U.S.A., Inc. v.
NRDC, Inc., 467 U.S. 837 (1984). We ask first “whether Congress has directly spoken to the precise question at issue.” Id.
at 842. If it has, we “must give effect to the unambiguously
expressed intent of Congress,” regardless of the agency’s
interpretation. Id. at 842-43. If, however, the statute is “silent
or ambiguous” with regard to the issue, we next ask “whether
the agency’s answer is based on a permissible construction of
the statute.” Id. at 843 (footnote omitted). We must defer to
the agency’s interpretation if it is reasonable. Id. at 844 (holding that when Congress has left a gap for an agency to fill, “a
court may not substitute its own construction of a statutory
provision for a reasonable interpretation made by the administrator of an agency”).

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DISCUSSION
A.

NMFS complied with the MSA.
1. NMFS met its statutory obligations to fishing
communities.

Section 1853a(c) of the MSA, entitled “Requirements for
limited access privileges,” contains various provisions related
to fishing communities. Among other things, to be eligible to
participate in a limited access program, fishing communities
must “meet criteria developed by the relevant Council [and]
approved by the Secretary” and “develop and submit a community sustainability plan.” 16 U.S.C. § 1853a(c)(3)(A)(I). In
developing participation criteria, the Pacific Council must
consider factors such as traditional fishing practices, the “cultural and social framework relevant to the fishery,” economic
barriers to access, and economic and social impacts from the
limited access program on fishery-dependent persons and
businesses. Id. § 1853a(c)(3)(B).
[1] Section 1853a(c) also requires NMFS to “establish procedures to ensure fair and equitable initial allocations” of
privileges. Such procedures must “include consideration of”
current and past harvests, employment in the harvesting and
processing sectors, investments in and dependent on the fishery, and “the current and historical participation of fishing
communities.” Id. § 1853a(c)(5)(A). In addition, NMFS must
(B) consider the basic cultural and social framework
of the fishery, especially through—
(i) the development of policies to promote
the sustained participation of small owneroperated fishing vessels and fishing communities that depend on the fisheries . . . ;
and

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(ii) procedures to address concerns over
excessive geographic or other consolidation
in the harvesting or processing sectors of
the fishery.
Id. § 1853a(c)(5)(B). NMFS also must
include measures to assist, when necessary and
appropriate, entry-level and small vessel owneroperators, captains, crew, and fishing communities
through set-asides of harvesting allocations, including providing privileges, which may include setasides or allocations of harvesting privileges, or economic assistance in the purchase of limited access
privileges.
Id. § 1853a(c)(5)(C). Finally, NMFS must “ensure that limited access privilege holders do not acquire an excessive share
of the total limited access privileges in the program” by establishing a maximum share and “any other limitations or measures necessary,” and must “authorize” privileges “to be held,
acquired, used by, or issued under the system to persons who
substantially participate in the fishery.” Id. § 1853a(c)(5)(D)(E).
The plaintiffs argue that the preceding provisions required
NMFS to (1) develop criteria for ensuring that quota shares
are distributed to fishing communities, and (2) adopt “other
measures and policies” to ensure the sustained participation of
fishing communities. NMFS responds that § 1853a(c) only
required it to consider the sustained participation of fishing
communities against other objectives, including by developing optional participation criteria or other measures, and that
in any event Amendments 20 and 21 adequately serve to protect fishing communities.
[2] NMFS is correct. The allocation provisions of
§ 1853a(c)(5) require NMFS, in developing “procedures to

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ensure fair and equitable initial allocations” of quota shares,
to “includ[e] consideration of” four specific factors and to
“consider” the “basic cultural and social framework of the
fishery.” Id. § 1853a(c)(5)(A)-(B). These provisions do not
require that fishing communities receive an allocation of
quota or, as the district court explained, “even be made eligible to do so.” Pac. Coast Fed’n of Fishermen’s Ass’n, 2011
WL 3443533, *6. Similarly, the plain language of
§ 1853a(c)(3) says that fishing communities must do certain
things “[t]o be eligible” to participate in a fishery, including
comply with “participation criteria for eligible communities”
that NMFS develops. 16 U.S.C. § 1853a(c)(3)(A)-(B). But
this language does not mandate that NMFS actually develop
participation criteria. In short, § 1853a requires NMFS to take
fishing communities into account in fashioning a limited
access program (something NMFS did; see infra); it does not
require NMFS to guarantee communities any particular role
in that program. Congress could have taken any number of
steps to guarantee fishing communities a specific role, but it
did not.6
The plaintiffs rely on § 1853a(c)’s legislative history to
supply mandatory requirements not found within the MSA
itself. Although there is “no reason to resort to legislative history” where, as here, the statute is clear, United States v. Gonzales, 520 U.S. 1, 6 (1997); see also Am. Rivers v. FERC, 201
F.3d 1186, 1204 (9th Cir. 1999), legislative history nonetheless can be “instructive,” Suzlon Energy Ltd. v. Microsoft
Corp., 671 F.3d 726, 728 (9th Cir. 2011). Here, § 1853a(c)’s
legislative history actually underscores the fact that NMFS
6

For example, Congress could have: (1) added requirements pertaining
to participation criteria or allocations in the eleven requirements for limited access programs listed in § 1853a(c)(1); (2) imposed requirements on
NMFS or the Pacific Council, not just on fishing communities, in subsection (c)(3); (3) used a word stronger than “consider” in subsection (c)(5);
or (4) required an allocation to fishing communities in subsection (c)(5)
in the same way it prohibited an allocation to regional fishery associations
in subsection (c)(4).

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was required only to consider fishing communities in developing a limited access program, not guarantee them a certain
type or level of participation in it.
For example, the House Report on the bill that eventually
would become § 1853a states that the bill “creates a discretionary authority and criteria for the allocation of shares to
fishing communities and regional fishery associations.” H.R.
Rep. No. 109-567, at 32 (2006). In keeping with this permissive language, the Senate Report for the corresponding Senate
bill states that the bill “contains specific provisions that would
authorize the issuance of quota to fishing communities.” S.
Rep. No. 109-229, at 25 (2006) (emphasis added); see also id.
at 8 (explaining that limited access programs would be “expanded to allow allocation of harvesting privileges to fishing
communities . . . .” (emphasis added)).7
The plaintiffs alternatively argue that Amendments 20 and
21 “defy[ ] the National Standard 8 policy of fostering community participation in the fishery.” But that standard requires
only that conservation and management measures “take into
account the importance of fishery resources to fishing communities by utilizing [the best available] economic and social
data.” 16 U.S.C. § 1851(a)(8) (emphasis added). As we have
explained, “[t]he National Standards do not require any particular outcome with respect to allocations; rather, they provide a framework for the Council’s analysis. There is nothing
in the MSA that guarantees [a particular group] a directed . . .
fishery.” Fishermen’s Finest, Inc. v. Locke, 593 F.3d 886, 896
(9th Cir. 2010); see also 50 C.F.R. § 600.345(b)(2)
(“[National] [S]tandard [8] does not constitute a basis for allo7

Senator Daniel Inouye, one of the bill’s sponsors, talked about his
intent to reduce overcapacity but also “sustain thriving fishing communities” by “promot[ing] access to residents of our coastal communities.” 152
Cong. Rec. S. 11,701, at 11,700 (Dec. 8, 2006). But even Senator Inouye
referred only to the need to “consider” and “take into account” limited
access programs’ social and economic implications. Id.

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cating resources to a specific fishing community nor for providing preferential treatment based on residence in a fishing
community.”).
[3] The question remains whether NMFS met its obligations to consider fishing communities in fashioning Amendments 20 and 21. It did. NMFS recognized that fishing
communities must be considered under the MSA; surveyed
the current status of fishing communities (including observing
that many are “faltering” under the status quo); described the
effects of quota programs and other management tools on
those communities; and explained how communities participated in the Pacific Council’s decisions. In addition, NMFS
proposed, and the Council adopted, various measures to mitigate the impacts of trawl rationalization on fishing communities, including, among other things: an adaptive management
program under which up to ten percent of quota shares would
be reserved for communities; a two-year moratorium on share
transfers; a five-year review that includes a community advisory committee; and limits on the accumulation of shares by
single entities. These measures will provide an “equitable initial allocation” of quota shares, “assist” entry-level participants and fishing communities, and prevent a single share
holder from acquiring “excessive” shares. 16 U.S.C.
§ 1853a(c)(5)(A), (C)-(D).
It is true that, despite these measures, Amendments 20 and
21 may weaken at least some fishing communities. Yet
NMFS was aware of the potential implications of approving
Amendments 20 and 21. For example, NMFS explained in its
final rule adopting the Amendments:
While the trawl rationalization program would move
the fishery toward some of its most important goals
and objectives, in order for the program to realize
those benefits, a large amount of consolidation
would have to occur, resulting in fewer people
employed in the fishery. The Council acknowledged

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and expressed concern about the expected consolidation and its impacts, and noted the need to attend to
the potential for disproportionate impacts on some
communities. . . . The Council also expressed an
interest in maintaining the character of the fleet and
a diversified industry. Balancing the need for consolidation to generate adequate levels of benefit with
the potential adverse impacts of consolidation was a
major challenge. At the same time, continuation of
status quo would have its own impacts, with both the
buyback program and cumulative limits having
caused significant consolidation in the fleet and a
redistribution of vessels along the coast.
Because of the high degree of concern about
impacts on communities and maintaining some sharing of benefits (both among harvesters and between
harvesters, processors, and others dependent on the
fishery) the Council made a number of tradeoffs in
the trawl rationalization program that may prevent
the program from reaching the full degree of economic efficiency that might otherwise be achievable
through rationalization. For example, accumulation
limits would help disperse fishery benefits, but
would inhibit consolidation. Additionally, some
[quota] was set aside for use in an [adaptive management program] to address such objectives as community and processor stability, new entry, conservation,
and other unidentified/unforeseen adverse consequences. A number of other measures were also considered as the Council struggled to find a balance
among sectors, states, vessels, ports, conservation
obligations, and its responsibility to try to develop a
regime that maximizes economic benefits while
simultaneously realizing, recognizing, and honoring
the social effects of its decisions.
75 Fed. Reg. at 60,872.

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[4] In arguing that NMFS was required to adopt a policy
that better protects the historic role of non-trawl fishing communities in the groundfish fishery, the plaintiffs seek relief the
MSA does not require and this court is not empowered to
grant. See Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“[A]
reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors and within
the scope of the authority delegated to the agency by the statute . . . . The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its
judgment for that of the agency.”).
2. NMFS was not required to restrict quota shares
to those who “substantially participate” in the fishery.
Section 1853a(c) provides:
(1) In general. Any limited access privilege program
to harvest fish submitted by a Council or approved
by the Secretary under this section shall—
....
(D) prohibit any person other than a United
States citizen, a corporation, partnership, or
other entity established under the laws of
the United States or any State, or a permanent resident alien, that meets the eligibility
and participation requirements established
in the program from acquiring a privilege to
harvest fish, including any person that
acquires a limited access privilege solely
for the purpose of perfecting or realizing on
a security interest in such privilege;
....

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(5) Allocation. In developing a limited access
privilege program to harvest fish a Council or the
Secretary shall—
....
(E) authorize limited access privileges to
harvest fish to be held, acquired, used by,
or issued under the system to persons who
substantially participate in the fishery,
including in a specific sector of such fishery, as specified by the Council.
....
(7) Transferability. In establishing a limited access
privilege program, a Council shall—
(A) establish a policy and criteria for the
transferability of limited access privileges
(through sale or lease), that is consistent
with the policies adopted by the Council for
the fishery under paragraph (5) . . . .
16 U.S.C. § 1853a(c).
The plaintiffs argue that § 1853a(c)(5) and (c)(7) require
NMFS to restrict the authority to receive and hold quota
shares to those who “substantially participate” in the fishery.
NMFS, however, construes § 1853a(c)(1)(D) to be the sole
provision setting forth who is excluded from acquiring quota
shares, and § 1853a(c)(5)(E) to mean “that those who substantially participate in the fishery must be among those eligible
to acquire [shares], but are not the only entities or person[s]
who can receive [shares].” 75 Fed. Reg. at 78,353.
[5] NMFS has the better argument, for three reasons. First,
reading § 1853a(c)(5) and (c)(7) as the plaintiffs do requires

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inserting the word “only” or “solely” into subsection (c)(5).
The courts, however, “ordinarily resist reading words or elements into a statute that do not appear on its face.” Dean v.
United States, 556 U.S. 568, 572 (2009); see also Stanton Rd.
Assocs. v. Lohrey Enters., 984 F.2d 1015, 1020 (9th Cir.
1993) (explaining that the court “lack[s the] power” to “read
into the statute words not explicitly inserted by Congress”).
Second, while the MSA refers to “persons who substantially participate in the fishery” in § 1853a(c)(5), that phrase
is not found in § 1853a(c)(1)(D), which is the only provision
that specifies who may not acquire quota shares—i.e., “any
person other than” an American citizen, lawful permanent resident, or legal entity who meets “the eligibility and participation requirements established in the program.” 16 U.S.C.
§ 1853a(c)(1)(D). “It is a general principle of statutory construction that when one statutory section includes particular
language that is omitted in another section of the same Act,
it is presumed that Congress acted intentionally and purposely
in the disparate inclusion or exclusion.” Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 452 (2003) (citation and internal quotation marks omitted).
[6] Third, limiting quota shares to those who “substantially
participate” in the fishery would conflict with other parts of
§ 1853a(c). See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355,
370 (1986) (“[W]here possible, provisions of a statute should
be read so as not to create a conflict.”). Section
1853a(c)(1)(D) allows a quota share (which is, once again, a
type of “privilege”) to be held by “any person that acquires
a limited access privilege solely for the purpose of perfecting
or realizing on a security interest in such privilege.” 16 U.S.C.
§ 1853a(c)(1)(D). This allowance is inconsistent with limiting
shares to “substantial participants” in the fishery. Similarly,
§ 1853a(c)(5)(C) directs NMFS to “include measures to
assist, when necessary and appropriate, entry-level . . . owneroperators, captains, crew, and fishing communities through
set-asides of harvest allocations, including providing privi-

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leges.” Id. § 1853a(c)(5)(C) (emphasis added). “Entry-level”
persons and communities are, by definition, persons and communities who do not yet “substantially participate” in the fishery. Though the plaintiffs are correct that entry-level persons
may join through community and regional fishing associations, nothing in the MSA limits them to those avenues.8
[7] Despite this commonsense reading of the MSA, the
plaintiffs proffer four reasons why NMFS is obligated to limit
quota shares to those who “substantially participate” in the
fishery. First, the plaintiffs say it is “significant[ ]” that
§ 1853a(c)(1)(D) refers to “the eligibility and participation
requirements established in the program.” The implication is
that NMFS was required to adopt eligibility criteria that
accord with how the plaintiffs read the MSA. However, as the
district court explained, the plaintiffs seek to “graft[ ] a
requirement for agency action onto an authorization for
agency action.” Pac. Coast Fed’n of Fishermen’s Ass’n, 2011
WL 3443533, *9 (emphasis added). That is, § 1853a(c)(1)(D)
does not require, but rather simply contemplates, that “eligibility and participation requirements” may be “established in
the program.” Moreover, even if NMFS were required to
establish eligibility criteria beyond those in the MSA, there is
no mandate that those criteria screen out everyone who does
not “substantially participate” in the fishery.9
Second, the plaintiffs point to certain statements in
§ 1853a(c)’s legislative history. Again, legislative history is
8

Throughout most of NMFS’s decisionmaking process, fishing communities expressed little or no interest in receiving an initial allocation of
quota shares. Accordingly, NMFS developed other mechanisms (adaptive
management, transferability and accumulation limits, etc.) to address the
impacts of Amendments 20 and 21 on fishing communities.
9
To the extent the plaintiffs argue that § 1853a(c)(5)(E) itself sets forth
the “eligibility and participation requirements” referred to in
§ 1853a(c)(1)(D), that argument fails; § 1853a(c)(1)(D) plainly contemplates requirements “established in the program” by NMFS, not by the
MSA.

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irrelevant where, as here, the statute is clear. Am. Rivers, 201
F.3d at 1204. In any event, the best history the plaintiffs can
point to is a Senate Report that states: “[S]ection [1853a]
restricts the holding, acquisition, use, or issuance of [privileges] only to persons who substantially participate in a fishery.” S. Rep. No. 109-229, at 26 (2006) (emphasis added).
However, this statement, when read in context, plainly is concerned not with whether those who have not historically participated in the fishery should receive privileges, but with the
possibility a person might obtain a privilege and then fail to
use it, thereby effectively reducing the total allowable catch.
See id.10 Moreover, the corresponding House Report states
that a very similar provision to § 1853a(c)(5) “authorize[s] all
those who substantially participate in the fishery to hold a
limited access privilege”—it does not say that the provision
restricts privileges to that group.11 H.R. Rep. No. 109-567, at
32 (July 17, 2006) (emphasis added).
Third, the plaintiffs refer to a November 2007 NMFS technical memorandum the Pacific Council considered when
developing Amendments 20 and 21. The memorandum
explains:
10

The full paragraph reads: “[Privileges] are not intended to be used as
a mechanism to reduce harvests through refinement of catch quota by
those who are not fishery participants. Total quota available for harvest is
established separately under the conservation requirements of the Act.
Therefore, this section restricts the holding, acquisition, use, or issuance
of [privileges] only to persons who substantially participate in a fishery.”
11
The plaintiffs also cite an individual representative’s statement that
the then-bill “protects small fishermen from those who would like to consolidate fisheries. The privileges are to be held by fishermen who are
actively engaged and substantially participate in the fishery.” 152 Cong.
Rec. E2243-02 (daily ed. Dec. 27, 2006) (statement of Rep. Rahall). Even
if this statement could be read to support the plaintiffs’ argument, “[t]he
floor statements of an individual member of Congress who did not sponsor
the bill . . . have limited value in interpreting congressional intent.” Inland
Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 702 (9th Cir.
1996).

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The MSA does put some constraints on what the
Councils can choose to do. As previously discussed,
[§ 1853(c)(5)(E)] links privileges to be acquired or
held by persons to those who substantially participate in the fishery.
....
While the Councils have some latitude in determining who may or may not acquire harvesting privileges, it is certainly more restrictive than the
“anybody can own” criterion mentioned above,
because of the citizenship requirements and the
“substantially participate in the fishery” clause.
(Emphasis added.) However, even this excerpt stands only for
the proposition that privileges and participation are and must
be “link[ed],” a requirement NMFS has satisfied by making
substantial participants eligible to receive quota shares.
The plaintiffs’ final argument is one of policy: allowing
persons who do not substantially participate in the fishery to
acquire and hold quota shares leads to “liberal transferability,” which in turn can result in “extreme or excessive fleet
consolidation, regional shifts in fishing commerce, loss of
fishing-related employment[,]” and other effects. However, as
discussed above, NMFS was aware of these effects but
decided to partially prioritize economic efficiency and fleet
consolidation over the protection of existing fishery participants, a choice that required fewer restrictions on who could
acquire and hold quota shares. The MSA did not preclude
NMFS from making that choice.
B.
1.

NMFS complied with NEPA.
NMFS was not required to evaluate Amendments
20 and 21 and in a single EIS.

The plaintiffs argue that a single EIS was required for
Amendments 20 and 21 under two NEPA regulations: 40

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C.F.R. §§ 1502.4(a) and 1508.25(a)(1). Section 1502.4(a)
states that “[p]roposals or parts of proposals which are related
to each other closely enough to be, in effect, a single course
of action shall be evaluated in a single impact statement.”
Section 1508.25(a)(1), meanwhile, directs agencies to study
“connected actions” in “the same impact statement,” and sets
forth criteria for determining whether actions are “connected.”
[8] As an initial matter, the plaintiffs argue that a single
EIS was separately required under both sections. However,
§ 1502.4(a) does not impose an independent test for determining when to study related actions in a single EIS. Klamath Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 998 (9th Cir.
2004). Rather, as the section’s full language makes clear, it
directs agencies to § 1508.25 to make that determination:
Agencies shall make sure the proposal which is the
subject of an environmental impact statement is
properly defined. Agencies shall use the criteria for
scope (§ 1508.25) to determine which proposal(s)
shall be the subject of a particular statement. Proposals or parts of proposals which are related to each
other closely enough to be, in effect, a single course
of action shall be evaluated in a single impact statement.
40 C.F.R. § 1502.4(a) (emphasis added). Thus, whether an
agency must prepare a single EIS for more than one proposal
turns on the criteria set forth in § 1508.25.12
12

This conclusion is not undermined by dictum in Native Ecosystems
Council v. Dombeck, 304 F.3d 886, 893 (9th Cir. 2002), that “[a] single
NEPA review document is required for distinct projects when there is a
single proposal governing the projects, [citation], or when the projects are
‘connected,’ ‘cumulative,’ or ‘similar’ actions under the regulations implementing NEPA.” (Emphasis added.) Both Native Ecosystems Council and
the case it cites, Kleppe v. Sierra Club, 427 U.S. 390, 399, 410 (1976),
were concerned with whether an EIS was required for nonexistent pro-

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[9] Turning to those criteria, the plaintiffs argue that
Amendments 20 and 21 are “connected” actions. Actions are
“connected” if they:
(i) Automatically trigger other actions which may
require environmental impact statements.
(ii) Cannot or will not proceed unless other actions
are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and
depend on the larger action for their justification.
Id. § 1508.25(a)(1). By contrast, “[w]hen one of the projects
might reasonably have been completed without the existence
of the other, the two projects have independent utility and are
not ‘connected’ for NEPA’s purposes.” Great Basin Mine
Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2000) (“The
crux of the [independent utility] test is whether each of two
projects would have taken place with or without the other
. . . .”) (citation and internal quotation marks omitted).
[10] Amendments 20 and 21 have independent utility, and
thus are not connected actions under § 1508.25(a)(1). First,
the two amendments have overlapping, but not co-extensive,
goals. Whereas Amendment 20’s goals are to increase net
economic benefits, maximize allowable trawl harvests, consider environmental impacts, and improve individual accountgrammatic proposals, not whether two or more existing proposals were a
“single course of action.” In any event, we have since reaffirmed that
§ 1502.4(a) “directs the agency to use the ‘scoping’ provisions contained
in 40 C.F.R. § 1508.25 to determine whether nominally separate proposals
are a ‘single course of action.’ ” Klamath Siskiyou Wildlands Ctr., 387
F.3d at 998; cf. Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291,
1306 (9th Cir. 2003) (explaining that Ninth Circuit case law requires “the
preparation of a comprehensive EIS only for cumulative and connected
actions,” not “similar” actions).

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ability of catch and bycatch, Amendment 21’s goals are to
simplify allocation decisions, support Amendment 20, and
limit Pacific halibut bycatch. Similarly, whereas Amendment
20 is limited to trawling, Amendment 21 allocates catch limits
between trawl and non-trawl sectors. While it is true the
record is replete with statements about how Amendments 20
and 21 are linked, two actions are not connected simply
because they benefit each other or the environment. See Nw.
Res. Info. Ctr. v. NMFS, 56 F.3d 1060, 1068-69 (9th Cir.
1995) (two actions were not connected merely because they
both would benefit salmon); Sylvester v. U.S. Army Corps of
Eng’rs, 884 F.2d 394, 400 (9th Cir. 1989) (“[E]ach [action]
could exist without the other, although each would benefit
from the other’s presence.”).
Perhaps more important than parsing NMFS’s words or
predicting whether it would adopt one Amendment without
the other is answering the question whether, in preparing separate EISs, NMFS evaded its duty to fully study the combined
effects of Amendments 20 and 21. This is the real concern
behind § 1508.25. See Great Basin Mine Watch, 456 F.3d at
969 (“The purpose of this requirement is to prevent an agency
from dividing a project into multiple ‘actions,’ each of which
individually has an insignificant environmental impact, but
which collectively have a substantial impact.” (citation and
internal quotation marks omitted)); W. Radio Servs. Co. v.
Glickman, 123 F.3d 1189, 1194 (9th Cir. 1997) (explaining
that NEPA prevents an agency from “illegally segmenting
projects in order to avoid consideration of an entire action’s
effects on the environment”) (citing Thomas v. Peterson, 753
F.2d 754, 758-59 (9th Cir. 1985) (finding connected actions
under § 1508.25)).
[11] This “divide and conquer” concern is not present here.
NMFS prepared lengthy EISs that thoroughly studied the
direct, indirect, and cumulative effects of Amendments 20 and
21, individually and together. The plaintiffs nonetheless argue
that studying the two Amendments in separate EISs allowed

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NMFS to “dismiss public comments . . . on the basis that they
were made on the wrong EIS or were outside the scope of the
particular amendment.” However, the plaintiffs’ record citations, and indeed the record as a whole, show just the opposite: NMFS clarified what each amendment did and
substantively addressed the misdirected comment or referred
the reader to the appropriate EIS, where those issues were
always addressed. NMFS’s decision to prepare two amendments, and hence two EISs, did not undermine its compliance
with NEPA.
2.

NMFS studied a reasonable range of alternatives.

[12] NEPA requires an agency to study a range of reasonable alternatives to the proposed action. See 42 U.S.C.
§ 4332(2)(C); 40 C.F.R. §§ 1502.1, 1502.14, 1502.16; Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 865
(9th Cir. 2004). The alternatives analysis is the “heart” of an
EIS. Ctr. for Biological Diversity v. U.S. Dep’t of Interior,
623 F.3d 633, 642 (9th Cir. 2010) (quotation marks and citation omitted). We “review an agency’s range of alternatives
under a ‘rule of reason’ standard that requires an agency to set
forth only those alternatives necessary to permit a reasoned
choice.” Presidio Golf Club v. Nat’l Park Serv., 155 F.3d
1153, 1160 (9th Cir. 1998) (quotation marks, alteration, and
citation omitted); see also N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir. 2006) (“Under NEPA, ‘an
agency’s consideration of alternatives is sufficient if it considers an appropriate range of alternatives, even if it does not
consider every available alternative.’ ” (quoting Headwaters,
Inc. v. BLM, 914 F.2d 1174 (9th Cir. 1990))).13
13

The Supreme Court has made clear that “inherent in NEPA and its
implementing regulations is a ‘rule of reason.’ ” Dep’t of Transp. v Public
Citizen, 541 U.S. 752, 767 (2004); see also Vermont Yankee Nuclear
Power Corp. v. NRDC, Inc., 435 U.S. 519, 551 (1976) (“Common sense
also teaches us that the ‘detailed statement of alternatives’ cannot be found
wanting simply because the agency failed to include every alternative
device and thought conceivable by the mind of man.”).

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[13] In this case, NMFS studied enough alternatives “to
permit a reasoned choice.” In Chapter 2 of the Amendment 20
EIS, NMFS studied in detail seven alternatives (four primary
alternatives, two of which had sub-alternatives). These alternatives varied in many respects, ranging from how they managed catch, initially allocated privileges, and treated
processors to the accumulation limits they set and the species
they covered. The alternatives’ most important difference was
their “catch control tool”; whereas the “no action” or “status
quo” alternative would have used trip and seasonal limits, the
other alternatives proposed various types of quota systems or
cooperatives. For Amendment 21, NMFS studied six alternatives in detail, which differed primarily based on how they
allocated groundfish stocks among different sectors.
The plaintiffs object that NMFS considered only quota programs in the Amendment 20 EIS, “with no variations at all
from NMFS’s initial proposal (such as community shares,
auctions, limited term shares, etc.).” In the plaintiffs’ view,
NMFS was required to “embrace the range of options an
agency can lawfully pursue under its substantive mandates.”
This argument fails as a matter of law and a matter of fact.
“An agency need not . . . discuss alternatives similar to alternatives actually considered, or alternatives which are ‘infeasible, ineffective, or inconsistent with the basic policy
objectives’ ” of the project. N. Alaska Envtl. Ctr., 457 F.3d at
978 (quotation omitted); Westlands Water Dist., 376 F.3d at
868, 871. NMFS identified Amendment 20’s “purpose and
need” as providing a trawl rationalization program that would
improve economic efficiency and stability, consider environmental impacts, and reduce bycatch through individual
accountability. NMFS reasonably determined that quota programs would be most effective in meeting these goals for
most sectors, but it studied alternatives that differed in how
those programs would be designed and implemented.14 These
14

Because project alternatives are based on an EIS’s “purpose and
need,” 40 C.F.R. § 1502.13, an agency’s alternatives analysis may be

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alternatives allowed NMFS to fully vet the consequences of
its actions.
Moreover, NMFS did consider catch control tools besides
quotas. Most obviously, NMFS studied in detail a “no action”
alternative that would have used trip and seasonal limits (the
Pacific Council’s current management tools) in place of quotas. NMFS also studied in detail three alternatives that would
have used cooperatives rather than quotas, although only for
sectors not at issue in this litigation. NMFS also briefly considered and rejected auctions, performance-based allocations,
and area-based management. NEPA permits agencies to eliminate alternatives from detailed analysis so long as they
“briefly discuss the reasons for their having been eliminated.”
40 C.F.R. § 1502.14(a).
As for Amendment 21, the plaintiffs complain that NMFS
studied alternatives that uniformly were based on recent catch
inadequate if it draws its purpose and need statement too narrowly, Nat’l
Parks & Conservation Ass’n v. BLM, 606 F.3d 1058, 1070-72 (9th Cir.
2009). Only amicus Food & Water Watch argues that NMFS committed
this error here; the plaintiffs do not raise this issue except in their reply
brief, and then only tersely. See Simmons v. Navajo Cnty., Ariz., 609 F.3d
1011, 1022 n.3 (9th Cir. 2010) (“[W]e decline to consider an argument
raised only by [amicus] on appeal.” (alteration in Simmons) (quotation
marks and citation omitted)); Turtle Island Restoration Network v. U.S.
Dep’t of Commerce, 672 F.3d 1160, 1166 n.8 (9th Cir. 2012)
(“[A]rguments raised for the first time in a reply brief are waived.” (quotation marks and citation omitted)).
Even if this issue were properly before us, we would conclude that
NMFS drafted reasonable statements of purpose and need for Amendments 20 and 21. See Friends of Southeast’s Future v. Morrison, 153 F.3d
1059, 1066-67 (9th Cir. 1998) (explaining that “this court has afforded
agencies considerable discretion to define the purpose and need of a project,” and accordingly reviews such a statement for reasonableness).
NMFS’s statements sought to further MSA-compliant management goals
and were not so narrow as to leave only one viable alternative. See Nat’l
Parks & Conservation Ass’n, 606 F.3d at 1070; City of Carmel-By-TheSea, v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155-56 (9th Cir. 1997).

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histories, with only “minor variations in the allocation methodology.” As with Amendment 20, the plaintiffs overlook
Amendment 21’s purpose and need, which was to simplify
management decisions by making fixed allocations, support
trawl rationalization by eliminating the uncertainty of biennial
allocations, and limit Pacific halibut bycatch. Thus, while the
alternatives take the similar approach of making fixed allocations for certain stocks, they differ materially in how they
would make those allocations—i.e., based on recent total
catch percentages for some or all sectors, on historical landed
catch for some sectors, or on recent catch with carve-outs for
certain species. These material differences allowed NMFS to
thoroughly study the potential consequences of its action.
Finally, the plaintiffs contend that NMFS’s decision was
predetermined because NMFS “had selected all of the key
features of their proposed trawl [quota] Program by September 2006,” before NMFS prepared the EISs. The plaintiffs are
incorrect. NMFS identified preferred alternatives at various
points in the NEPA process, just as NEPA requires. See 40
C.F.R. § 1502.14(e); see also Metcalf v. Daley, 214 F.3d
1135, 1142 (9th Cir. 2000) (“NEPA does not require that
agency officials be ‘subjectively impartial,’ ” only that “projects be objectively evaluated.” (citation omitted)). However,
NMFS did not select alternatives until the conclusion of the
NEPA process. The planning and evaluation for Amendments
20 and 21 took seven years, during which time NMFS appropriately winnowed its options.
3.

NMFS adequately evaluated impacts on fish
habitat and non-trawl fishing communities.

[14] An EIS must contain “a reasonably thorough discussion of the significant aspects of the probable environmental
consequences” of a proposed action. City of Carmel-By-TheSea, 123 F.3d at 1150 (quotation marks and citation omitted).
“Alternatively phrased, we review agency decisions to ensure
that ‘the agency has taken a “hard look” at the potential envi-

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ronmental consequences of the proposed action.’ ” Nw. Envtl.
Advocates v. NMFS, 460 F.3d 1125, 1133 (9th Cir. 2006)
(quoting Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 993).
Excluding appendices, the Amendment 20 and 21 EISs
contain 384 and 102 pages of detailed effects analysis, respectively. The plaintiffs nonetheless complain that this analysis
is inadequate because it focuses mostly on socioeconomic
impacts; only a small portion is devoted to the Amendments’
environmental effects, and an even smaller portion to the
Amendments’ effects on groundfish habitat specifically. In
the plaintiffs’ view, NEPA requires more, especially since the
Amendments will, in their view, “ensure the long-term domination of trawling” in the fishery and trawling is harder on
fish habitat than fishing using fixed gear.
[15] The plaintiffs are incorrect. Amendments 20 and 21
will not necessarily favor trawling over fixed gear relative to
current management. The EISs explain that trawling is permitted under the existing fishery management plan and is
responsible for the majority of the catch. Amendments 20 and
21 may actually decrease trawling’s dominance by consolidating the trawling fleet, allowing trawlers to switch to fixed
gear, and allocating more fish to non-trawlers than they have
caught in recent years. NMFS will re-evaluate Amendment
21’s allocations every five years.
The record is candid that the effects of Amendments 20 and
21 on groundfish habitat are less conclusive. The Amendment
20 EIS discusses “general shifts in fishing location [that]
would translate to either an increase or decrease of trawling
in certain areas.” Rationalization would allow for shifts
between trawl gear and fixed gear. Although fixed gear “is
thought to be less destructive to bottom habitat” than trawl
gear, and therefore could “reduce the impacts to habitat that
is currently trawled,” that switch also could aggravate adverse
impacts by exposing currently-untrawled areas to fishing. The
EIS supports this discussion with modeling, incorporates by

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reference, pursuant to 40 C.F.R. § 1502.21, a previous comparative analysis of the effects of different types of gear on
fish habitat, and refers readers to Amendment 19, which was
specifically aimed at protecting fish habitat. See 71 Fed. Reg.
27,408 (May 11, 2006) (codified, as amended, at 50 C.F.R. pt.
660).
As for Amendment 21, NMFS explained that it would “not
provide more bottom trawl opportunity than status quo management measures and allocations,” and in fact would provide
higher non-trawl allocations for most species than the status
quo or any other alternative. Thus, even if trawl gear has more
impacts than fixed gear on fish habitat, “potential adverse
impacts from trawl gear could be expected to be lower under
the proposed action than under” current management or other
alternatives. These discussions may be less robust than the
discussions of socioeconomic effects, but NEPA only requires
agencies to discuss impacts “in proportion to their significance.” 40 C.F.R. § 1502.2(b).
The plaintiffs’ two remaining arguments lack merit. First,
the Amendment 20 and 21 EISs extensively discuss potential
effects on non-trawl communities. While the plaintiffs point
specifically to the non-trawl community of Port Orford, Oregon, the Amendment 20 EIS at least mentions that community
at several points, and the plaintiffs make no showing that the
EISs’ more general discussion of non-trawl communities does
not apply to Port Orford.
Second, in arguing that NMFS failed to adequately study
the impacts of trawling on groundfish habitat, the plaintiffs
contend that NMFS also failed to comply with MSA National
Standard 2, which provides that “[c]onservation and management measures shall be based upon the best scientific information available,” 16 U.S.C. § 1851(a)(2), and with various
other “action forcing” National Standards that promote conservation, see id. § 1851(a)(1), (4), (5), (9). NMFS, however,
explained why Amendments 20 and 21 comply with each of

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the National Standards; disclosed the potential impacts of
trawling on habitat and identified uncertainty where it exists;
and ultimately settled on amendments that promote conservation by posting observers on all boats, improving economic
efficiency and individual accountability, and reducing
bycatch.15
4.

MNMFS adequately considered mitigation.

[16] NEPA’s implementing regulations require agencies to
discuss potential mitigation measures in their EISs and decision documents. See 40 C.F.R. §§ 1502.14(f), 1502.16(e)-(h),
1505.2(c), 1508.25(b)(3); see also id. § 1508.20 (defining
“mitigation”). Mitigation must “be discussed in sufficient
detail to ensure that environmental consequences have been
fairly evaluated.” Methow Valley Citizens Council, 490 U.S.
at 353. Such discussion necessarily includes “an assessment
of whether the proposed mitigation measures can be effec15

The National Standards, and the MSA more generally, require NMFS
to balance conservation with yield, not favor one at the expense of the
other. See Alliance Against IFQs v. Brown, 84 F.3d 343, 349 (9th Cir.
1996) (observing this “tension” in the Standards). As NMFS explained,
As management needs arise, the Council and NMFS respond to
them. Amendment 19 established extensive protections for habitat. Amendment 20 maintains those protections while specifically
addressing a separate management need for rationalization as
described in the purpose and needs statement. While [fishery
management plan] amendments must comply with the broad
array of policy objectives in the MSA’s National Standards and
within the FMP, not every [plan] amendment will thoroughly
address every management need in the fishery simultaneously.
NMFS and the Council will continue to review the best available
information regarding habitat needs and develop additional management measures if necessary and appropriate.
Cf. Nw. Res. Info. Ctr., 56 F.3d at 1069 (“[W]e . . . cannot force an agency
to aggregate diverse actions to the point where problems must be tackled
from every angle at once. To do so risks further paralysis of agency decisionmaking.”).

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tive.” S. Fork Band Council of W. Shoshone of Nev. v. U.S.
Dep’t of Interior, 588 F.3d 718, 727 (9th Cir. 2009).
Amendment 20 contains two primary mitigation features.
The first is an “adaptive management program” under which
up to ten percent of the quota shares each year will be set
aside to address unforeseen effects, such as harm to fishing
communities and barriers to entry for new participants. In the
record, NMFS discussed, but did not adopt, criteria for deciding when and how to allocate these reserve shares, and stated
that shares not used for adaptive management would be proportionally distributed to privilege holders. The second mitigation feature is a quadrennial review to make sure the
program is meeting its goals, with the first review occurring
five years after program implementation. The review process
includes a community advisory committee. Amendment 20
also contains other measures expected to meaningfully reduce
the impacts of trawl rationalization on fishing communities,
such as caps on the accumulation of quota shares and an initial two-year moratorium on transferring shares. Amendment
21 contains a five-year review provision, but no other mitigation.
[17] The plaintiffs argue that these mitigation measures are
vague, uncertain, and inadequate. However, we previously
have found reasonably detailed mitigation evaluations like the
ones at issue here to be sufficient. See, e.g., Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 476-77 (9th Cir.
2000); City of Carmel-by-the-Sea, 123 F.3d at 1154; see also
Tillamook Cnty. v. U.S. Army Corps of Eng’rs, 288 F.3d
1140, 1144 (9th Cir. 2002) (“While the [agency] was required
to develop the proposed mitigation measures ‘to a reasonable
degree,’ it was not required to develop a complete mitigation
plan detailing the ‘precise nature . . . of the mitigation measures.’ ” (quoting Wetlands Action Network, 222 F.3d at
1121))). The plaintiffs also argue that there is no assurance
that adaptive management reserve shares will be allocated to
fishing communities. However, an “assurance” that a particu-

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lar number of privileges will go to a particular purpose at a
particular time is not only inconsistent with the notion of
“adaptive management,” it is not required by NEPA: “a mitigation plan need not be legally enforceable, funded or even in
final form to comply with NEPA’s procedural requirements.”
Nat’l Parks & Conservation Ass’n v. U.S. Dep’t of Transp.,
222 F.3d 677, 681 n.4 (2000); see also Methow Valley Citizens Council, 490 U.S. at 352 (“There is a fundamental distinction, however, between a requirement that mitigation be
discussed in sufficient detail to ensure that environmental
consequences have been fairly evaluated, on the one hand,
and a substantive requirement that a complete mitigation plan
be actually formulated and adopted, on the other.”).16 Moreover, NMFS explained that waiting to distribute privileges
under the adaptive management program makes sense; the
Amendments will be easier to implement, their effects will be
more discernible, and the program will be better developed.
CONCLUSION
The MSA requires NMFS to consider fishing communities
in fashioning a limited access program, not to guarantee them
a particular role in the program. The MSA also requires
NMFS to make fishing privileges available to those who substantially participate in a fishery, not to restrict such privileges
to that group. NMFS satisfied these duties and complied with
the MSA’s National Standards. As for NEPA, NMFS appropriately studied Amendments 20 and 21 in separate EISs, considered an adequate range of alternatives, evaluated the
Amendments’ impacts on fish habitat and non-trawl communities, and considered and adopted appropriate mitigation
measures. The district court’s judgment for the Federal
Defendants-Appellees is AFFIRMED.
16

An agency must implement the measures it chooses to adopt in its
decision. See 40 C.F.R. § 1505.3. However, NEPA, as a purely procedural
statute, does not require an agency to adopt particular mitigation measures.