Association of Village Council Presidents et al v. National Marine Fisheries Service et al

Filing 97

DECISION AND ORDER: Plaintiffs' Motion at Docket 32 is DENIED. Federal Defendants' Cross-Motion for Summary Judgment at Docket 68 is GRANTED. Plaintiffs' and Intervenor-Plaintiffs' claims are DISMISSED WITH PREJUDICE. Signed by Judge Sharon L. Gleason on 3/11/2025. (JDS, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ASSOCIATION OF VILLAGE
COUNCIL PRESIDENTS, et al.,
Plaintiffs,
and
Case No. 3:23-cv-00074-SLG
CITY OF BETHEL,
Intervenor-Plaintiff,
v.
NATIONAL MARINE FISHERIES
SERVICE, et al.,
Defendants,
and
AT SEA-PROCESSORS
ASSOCIATION, et al.,
Intervenor-Defendants.

DECISION AND ORDER
Before the Court at Docket 32 is Plaintiffs Association of Village Council
Presidents and Tanana Chiefs Conference’s Principal Brief under Local Rule
16.3(c)(1). At Docket 33, Intervenor-Plaintiff City of Bethel joined Plaintiffs’ brief in
full and offered an additional argument with respect to standing. Plaintiffs also filed
an amended supplemental brief at Docket 66.

Intervenor-Defendants At-Sea

Processors Association and United Catcher Boats responded in opposition and

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cross-moved for summary judgment at Docket 67. Defendants National Marine
Fishery Service; United States Department of Commerce; Howard Lutnick,1 in his
official capacity as Secretary of Commerce; and Samuel D. Rauch, III, in his official
capacity as Deputy Assistant Administrator for Regulatory Programs (collectively
“Federal Defendants”) also responded in opposition and cross-moved for summary
judgment at Docket 68.

Plaintiffs replied at Docket 712 and Intervenor-Plaintiff

responded in opposition to Federal Defendants’ cross-motion at Docket 70.

At

Docket 37-1, amici curiae Ocean Conservancy, SalmonState, Native Peoples Action,
Kuskokwim Inter-Tribal Fish, and Alaska Marine Conservation Council jointly lodged
a brief in support of Plaintiffs, which the Court accepted at Docket 41.
The Court heard oral argument on September 26, 2024.3
BACKGROUND
Alaska’s Bering Sea and Aleutian Islands region is home to a complex marine
ecosystem that supports the subsistence, economic, and cultural needs of many
communities in western Alaska.

It also hosts the largest and most productive

groundfish fishery in the world. This suit arises from the apparent tension between
Federal Defendants’ management of the fishery and the needs of Alaskan

The Court substitutes Howard Lutnick, who was recently confirmed as Secretary, pursuant to
Federal Rule of Civil Procedure 25(d).
1

The Court also reviewed Plaintiff’s Notice of Errata Regarding Documents 32 & 71 filed at Docket
80 and has noted the corrections provided.
2

3

Docket 86.

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communities in times of significant change in the Bering Sea and Aleutian Islands
region.
Plaintiffs Association of Village Council Presidents and Tanana Chiefs
Conference are two Alaska Native regional tribal organizations that support the
interests of 98 member tribes and communities, whose tribal members live along the
Yukon and Kuskokwim rivers in southwestern Alaska, their tributaries, and on the
coast of the Bering Sea.4 Intervenor-Plaintiff City of Bethel is a city located on the
banks of the Kuskokwim River in southwestern Alaska.5 Federal Defendants manage
the Bering Sea and Aleutian Islands groundfish fishery.6 Intervenor-Defendants are
two trade associations that represent trawl catcher-processor and catcher vessels
that harvest groundfish in the fishery.7
Together, Plaintiffs and Intervenor-Plaintiff assert that Federal Defendants
acted arbitrarily and capriciously and violated the National Environmental Policy Act
(“NEPA”) in adopting the 2023–2024 and 2024–2025 groundfish harvest
specifications in the Bering Sea and Aleutian Islands region.8 Specifically, they claim
that these harvest specifications improperly relied on outdated environmental impact

4

Docket 32-1 at ¶¶ 6–8; Docket 32-5 at ¶¶ 8–9.

5

Docket 18 at ¶ 3.

6

Docket 1 at ¶¶ 21-24.

7

Docket 10 at 2.

Docket 52 (Plaintiffs’ Supplemental Complaint); Docket 29 (Intervenor’s Complaint); Docket 54 (City
of Bethel’s Joinder to Plaintiffs’ Supplemental Complaint).
8

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statements despite dramatic changes to the ecosystem that Plaintiffs assert
necessitate an updated environmental analysis.9
A.

Regulatory Background
1.

The Magnuson-Stevens Act

The Magnuson-Stevens Fishery Conservation and Management Act, 16
U.S.C. §§ 1801–1891d, provides for the exclusive federal management of fisheries
within the United States’ Exclusive Economic Zone.10 In order to conserve and
manage federal fisheries, the Act establishes eight regional fishery management
councils, which develop Fishery Management Plans (“FMPs”) and plan amendments,
and propose implementing regulations.11 The North Pacific Fishery Management
Council (the “Council”) is the regional council that has “authority over the fisheries in
the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska.”12 Although the
Secretary of Commerce is responsible for reviewing and implementing FMPs, the
Secretary has delegated that authority to the National Marine Fisheries Service
(“NMFS”).13

9

Docket 1 at ¶¶ 116–139; Docket 52 at ¶¶ 24–48.

10

16 U.S.C. § 1811(a); see 16 U.S.C. § 1802(11) (defining “exclusive economic zone”).

11

16 U.S.C. §§ 1852(h), 1853(c).

12

16 U.S.C. § 1852(a)(1)(G).

16 U.S.C. § 1854 (outlining the Secretary’s responsibilities and authority); Fishermen’s Finest, Inc.
v. Locke, 593 F.3d 886, 889 (9th Cir. 2010) (discussing the Secretary’s delegation of authority to
NMFS).
13

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The Magnuson-Stevens Act directs the Council to prepare and submit an FMP
for each fishery under its authority that requires conservation and management.14
Among other things, FMPs must “establish a mechanism for specifying annual catch
limits in the plan . . . , implementing regulations, or annual specifications, at a level
such that overfishing does not occur in the fishery,” “assess and specify . . . the
maximum sustainable yield and optimum yield,” and “include conservation and
management measures that, to the extent practicable and in the following priority—
(A) minimize bycatch; and (B) minimize the mortality of bycatch which cannot be
avoided.”15

Additionally, FMPs must meet national standards, including a

requirement that “[c]onservation and management measures shall be based upon
the best scientific information available.”16 “The term ‘bycatch’ means fish which are
harvested in a fishery, but which are not sold or kept for personal use, and includes
economic discards and regulatory discards.”17
2.

The Fishery Management Plan and the Harvest Specifications
Process

In 1982, NMFS and the Council first established and implemented an FMP for
Groundfish of the Bering Sea and Aleutian Islands Management Area, the fishery at

14

16 U.S.C. § 1852(h)(1).

15

16 U.S.C. § 1853(a)(15), (3), (11); see also 16 U.S.C. § 1802(33) (defining optimum yield).

16

16 U.S.C. § 1851(a)(2).

17

16 U.S.C. § 1802(2).

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the center of this case.18 This FMP and subsequent amendments set a management
policy and objectives for the fishery, including its optimum yield, defined as the
amount of fish that “will provide the greatest overall benefit to the Nation, particularly
with respect to food production and recreational opportunities, and taking into
account the protection of marine ecosystems.”19 In the years at issue here, the FMP
set the annual optimum yield for the Bering Sea and Aleutian Islands groundfish
fishery at 1.4 million to 2.0 million metric tons.20
In addition to establishing the optimum yield range, the FMP also provides that
“harvest specifications” be made annually.21 Among the harvest specifications is the
total allowable catch (“TAC”)—annual catch targets for each target species—the sum
of which must fall within the optimum yield range the FMP specifies.22 The harvest
specifications also include overfishing limits (“OFL”)—the catch level above which
overfishing occurs—and acceptable biological catch (“ABC”)—a level of a stock that
accounts for the scientific uncertainty in the estimate of OFL and any other scientific
uncertainty.23

18

NMFS00085.

19

NMFS00107–117; 16 U.S.C. § 1802(33)(A).

20

NMFS00116–119; see also 50 C.F.R. § 679.20(a)(1)(i)(A).

21

NMFS00119; see also 50 C.F.R. § 679.20(a).

22

NMFS00116–117.

23

NMFS00117.

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The Council develops recommendations with respect to these and other
harvest specifications based on information and recommendations provided by
scientists from NMFS, academia, state fish and wildlife agencies, tribes, and the
public.24

Consistent with the FMP’s national standards, each year the Council

prepares a Stock Assessment and Fishery Evaluation (“SAFE”) report using “the best
scientific information available.”25

The SAFE report includes three sections: a

scientific assessment of stocks, an economic analysis of the Alaska groundfish
fisheries, and an analysis of ecosystem considerations.26

This third section

incorporates Ecosystem Status Reports for the Bering Sea and Aleutian Islands,
which scientists and staff from federal and state agencies, academic institutions,
tribes, and other institutions draft.27 At each stage in the process, the Council invites
and responds to public comments.28

NMFS00120 (noting that “[t]he Council will develop its harvest specifications recommendations for
Secretarial consideration using . . . recommendations of the Groundfish Plan Team and SSC and
information presented by the Plan Team and SSC in support of these recommendations;. . .
information presented by the Advisory Panel and the public; and . . . other relevant information”); see
also 16 U.S.C. § 1852(g)(1)–(2) (requiring that each Regional Fishery Management Council establish
and maintain a scientific and statistical committee and allowing each council to establish advisory
panels as necessary).
24

16 U.S.C. § 1851(a)(2); 50 C.F.R. § 600.315(d); NMFS00590–91; see also 2SUPP05276–6693
(2023 SAFE report).
25

26

NMFS00591; NMFS000637.

27

NMFS00043; NMFS00606.

28

50 C.F.R. § 679.20(c).

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Based on the annual SAFE report, each year the Council determines and
recommends a new OFL and ABC, which in turn limit TAC. 29 After the Council
recommends harvest specifications, NMFS confirms that they comply with the
Magnuson-Stevens Act, are consistent with the FMP’s harvest strategy, and fall
within the scope of the Harvest Specifications EIS, which the Court discusses
below.30 NMFS, on behalf of the Secretary of Commerce, then implements the
harvest specifications through notice-and-comment rulemaking and publishes them
in the Federal Register.31
3.

The Programmatic EIS and the Harvest Specifications EIS

In 1998, NMFS issued an SEIS to update the EIS used when it first
implemented an FMP for the groundfish fishery.32 In 2004, NMFS again updated this
EIS and analyzed the FMP and potential alternatives in a Supplemental
Programmatic Environmental Impact Statement (“2004 EIS”).33 This EIS included a
discussion of the potential effect of salmon bycatch on subsistence salmon fisheries
in the Yukon-Kuskokwim region.34 Then, in 2015, NMFS considered whether it was

29

See e.g., NMFS00591; NMFS01266.

NMFS00018–43 (Final 2023 and 2024 Harvest Specifications); 2SUPP00020–51 (Final 2024 and
2025 Harvest Specifications).
30

31

See e.g., NMFS00018–48; 2SUPP0020–54.

32

NMFS23380.

33

NMFS23604–827 (2004 Final Programmatic Supplemental EIS).

34

NMFS00971–72.

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necessary to update the 2004 EIS, but ultimately determined that “the current status
of resources can be considered within the range of variability analyzed in the 2004
[EIS]” such that “a supplemental NEPA document is not necessary.”35
Shortly after completing the 2004 EIS, NMFS identified the need to determine
a harvest strategy—the process used to calculate the annual harvest specifications.
Accordingly, in January 2007, NMFS prepared a separate Environmental Impact
Statement (“the Harvest Specifications EIS”), which examined four alternative
harvest strategies to “determine annual harvest specifications.”36

The Harvest

Specifications EIS evaluated each strategy, along with one no action alternative, to
assess their impact on marine resources in the Bering Sea and Aleutian Islands
region, including impacts of target species, non-target fish species, forage fish
species, marine mammals, seabirds, fish habitat, and the ecosystem as a whole.37 It
further considered the social and economic impacts as well as the environmental
justice impacts of each alternative.38 Ultimately, NMFS adopted Alternative 2, which
“[s]et TACs that fall within the range of ABCs recommended by the Council’s
Groundfish Plan Teams and TACs recommended by the Council.”39 The Harvest

35

NMFS23444.

36

NMFS00639–1093, 661 (Harvest Specifications EIS); NMFS01094–98 (Record of Decision).

37

NMFS00644–48.

38

NMFS00648–49.

39

NMFS00644; NMFS01094.

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Specifications EIS incorporated by reference the 2004 EIS, which “functions as a
baseline analysis for evaluating subsequent management actions.”40
4.

Supplementary Information Reports

Each year, in conjunction with establishing the annual harvest specifications,
NMFS prepares a Supplementary Information Report (“SIR”). The purpose of the
SIR is to “evaluate[] the need to prepare a Supplemental EIS” for the annual harvest
specifications.41

The SIR “describes the decision maker’s evaluation of new

information, changed circumstances, or proposed changes to” the harvest strategy.42
The primary source of new information for the SIR is the annual SAFE report, as it
represents the best available scientific information.43
In both the 2023 and 2024 SIRs, NMFS concluded that the 2023–2024 and
2024–2025 harvest specifications would not result in environmental, social, or
economic impacts beyond those analyzed in the 2007 Harvest Specifications EIS
and, accordingly, that a supplemental EIS was not necessary.44

40

NMFS00670–71.

41

E.g., 2SUPP00073.

42

E.g., 2SUPP00074.

43

NMFS00590–91.

44

NMFS00635; 2SUPP00143.

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B.

Factual Background
1.

The Bering Sea and Aleutian Islands Groundfish Fishery

The federal groundfish trawling fishery off the coast of Alaska is the largest
such fishery in the world, harvesting about 2 million metric tons of fish each year.45
Operators catch pollock and other groundfish using pelagic trawls—large, coneshaped nets that are towed through the water by a vessel.46 Pelagic trawls can have
an opening 160 to 400 feet wide and 40 to 100 feet high.47 The mesh is large at the
opening—up to 100 feet—and becomes progressively smaller towards the far end,
diminishing to 4 to 4.5 inches.48

Pelagic trawls are imprecise and, because

groundfish and salmon occur in the same areas, groundfish trawls accidentally catch
thousands of Chinook and chum salmon each year.49 In addition, although pelagic,
or mid-water trawls, are distinct from bottom trawls, or nets dragged along the ocean
floor, pelagic trawls can capture benthic, or bottom-dwelling species, and indirectly
damage sea floor habitat.50

SUPP00179; NMFS06098 (2021 Stock Assessment and Fishery Evaluation Report for the
Groundfish Fisheries of the Gulf of Alaska and Bering Sea/Aleutian Islands Area).
45

46

NMFS00081; NMFS18089.

47

NMFS00081.

48

NMFS00081.

NMFS18089; SUPP00013 (1991–2022 Chinook bycatch); SUPP00015 (1991–2022 non-Chinook
salmon bycatch).
49

NMFS06770 (noting that pelagic trawls “damage or capture benthic [or bottom-dwelling] species”);
NMFS24110–11 (discussing impacts to crab populations); SUPP05184–85 (discussing trawling’s
effects on benthic habitat).
50

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2.

Recent Changes in the Bering Sea and Aleutian Islands Ecosystem
and Impacts to Western Alaska Communities

In recent times, the Bering Sea and Aleutian Islands ecosystem that supports
the fishery has experienced significant changes. Between 2014 and 2021, the Bering
Sea underwent an extended warm period, or a stanza, “unprecedented in terms of
magnitude and duration.”51 This resulted in changes to the physical and biological
environment that caused ripple effects throughout the ecosystem.
The warm stanza caused immediate ecosystem responses: a decrease in the
size of the “cold pool”—a mass of cold, dense water near the sea floor—and a loss
of sea ice with corresponding changes in salinity and impacts to the vertical mixing
in the water column.52 The warm stanza and its impacts to the physical environment
also caused significant biological impacts on the base of the food web that cascaded
to other species.53 Specifically, the warmer temperatures resulted in shifts in the
production of copepods, a species of zooplankton that form the base of the food
web.54 Smaller, less nutrient-rich copepods are less susceptible to temperaturedriven changes and, as a result, in 2018 and 2019, they were relatively more
abundant than larger, more nutritious, copepods.55 Simultaneously, warmer marine

51

NMFS05438–40 (2022 Eastern Bering Sea Ecosystem Status Report).

52

NMFS05438–39.

53

E.g., NMFS05441–42.

54

SUPP01138–39 (2019 Ecosystem Status Report); NMFS05439.

55

SUPP01138–39.

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temperatures increased the metabolic needs of fish.56 The fish that consume the
copepods were thus pressured in two ways—they needed greater energy, but had
reduced access to their usual food source.57 The impacts on those fish in turn
impacted the “body condition and survival” as well as the biomass of the groundfish
that foraged on those fish.58 And these disruptions in the marine ecosystem had
other impacts: seabird die-offs,59 “unusual mortality events” for whales60 and ice
seals,61 and declines in Chinook, chum, and coho salmon stocks.62 By the fall of
2021, however, there was a return to “more average thermal conditions” in the
Eastern Bering Sea and, in November 2022, NMFS concluded that “the extended
warm phase experienced by the [Eastern Bering Sea] ha[d] ended.”63 Temperatures

56

NMFS05442; SUPP00591 (2021 Aleutian Islands Ecosystem Status Report).

NMFS05442 (“Adult fish condition reflects prey availability and growth potential, both impacted by
climate-driven changes in metabolic demand (higher in warmer conditions) and trophic interactions
(changes in prey quality and quantity).”); SUPP00338 (“For groundfish in the southeastern Bering
Sea, bioenergetic indices estimated through 2019 point towards continued increases in thermal
exposure and a resulting increase in metabolic demands, as well as declines in foraging and growing
conditions.”).
57

58

SUPP01138–39; SUPP01274 (noting a decrease in the biomass of pollock in 2018).

SUPP01289–90 (noting that “[a] seabird die-off event, unprecedented in terms of spatial and
temporal scale, occurred in 2018”).
59

SUPP01082–83 (discussing an unusual mortality event of gray whales, an “ecosystem sentinel”
in 2019 and preliminary evidence of emaciation); SUPP03852–53 (discussing an unusual mortality
event for fin and humpback whales in 2015 and 2016).
60

SUPP01084 (discussing the unusual deaths of ice seals 2018 and 2019 from apparent
emaciation).
61

SUPP01995; NMFS05439 (noting declines in juvenile Chinook and unprecedented failures in adult
Chinook, chum, and coho runs in the Arctic-Yukon-Kuskokwim region between 2013 and 2022).
62

63

NMFS05438, 41 (2022 Eastern Bering Sea Ecosystem Status Report).

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in the Aleutian Islands also “cooled, but remained above average, . . . periodically
crossing the threshold to marine heatwave status.”64
The Bering Sea and Aleutian Islands’ marine resources are essential to many
western Alaska communities. Many residents of these communities, including those
in the Yukon-Kuskokwim Delta on the Bering Sea coast, practice a subsistence
lifestyle65 and depend on a variety of marine resources.66 Salmon, in particular,
provide a crucial source of food and culture.67 As changes to the marine ecosystem
in the Bering Sea and Aleutian Islands region have depleted salmon stocks, salmon
bycatch in the groundfish fishery has further diminished stocks and escapement,
which is the number of salmon that “escape” fisheries in the ocean and survive to
return to freshwater streams to spawn.68 Some of the Chinook and non-Chinook
salmon taken as bycatch by the groundfish fishery originated in western Alaska.69

2SUPP06610 (2023 Aleutian Islands Ecosystem Status Report); see also NMFS05673 (2022
Aleutian Islands Ecosystem Status Report).
64

Docket 32-1 at ¶¶ 12–14; Docket 32-2 at ¶ 15; Docket 32-4 at ¶ 9; Docket 32-5 at ¶ 12; Docket
32-6 at ¶ 11.
65

Docket 32-1 at ¶ 14 (discussing subsistence harvests of sea birds, ice seals, and other marine
resources); Docket 32-2 at ¶ 15 (same); Docket 32-3 at ¶¶ 12–13, 18 (same); Docket 32-4 at ¶¶ 18
(same).
66

Docket 32-1 at ¶¶ 13–15; Docket 32-2 at ¶¶ 13, 19, 25; Docket 32-3 at ¶¶ 11, 16–19; Docket 324 at ¶ 9; Docket 32-5 at ¶¶ 7, 13–16; Docket 32-6 at ¶¶ 13–16.
67

SUPP00027 (discussing Chinook bycatch and the “impact rate,” or estimated effect of bycatch on
salmon runs, for western Alaska Chinook stocks); SUPP00061 (analyzing chum bycatch in the
pollock fishery).
68

SUPP00009 (“[I]n 2020, 54% of the Chinook salmon bycatch [in offshore trawl fisheries in the
Bering Sea and Aleutian Islands region] was estimated to have originated from coastal western
Alaska with 2.3% attributed to the middle/upper Yukon River systems.”); see also 2SUPP00106
69

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C.

Procedural Background
On March 10, 2023, NMFS published the Final Harvest Specifications for

Groundfish for the 2023–2024 season in the Federal Register.70 With this final rule,
NMFS also completed a SIR, which concluded that “a supplemental EIS is not
necessary to implement the 2023 and 2024 harvest specifications.”71

The SIR

determined that “(1) the 2023 and 2024 harvest specifications, which were set
according to the preferred harvest strategy, do not constitute a substantial change in
the action; and (2) the information presented does not indicate that there are
significant new circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts that are not addressed through the
annual process of using the preferred harvest strategy to set the harvest
specifications.”72

Further, the SIR found that “the 2023 and 2024 harvest

specifications will result in environmental, social, and economic impacts within the
scope of those analyzed and disclosed in the [Harvest Specifications] EIS.”73

(“[O]nly 21 percent of chum bycatch in the A and B seasons is of western Alaska origin . . . .”).
70

NMFS00018–48 (Final 2023 and 2024 Harvest Specifications).

NMFS00635. In the SIR, NMFS examined ecosystem considerations related to salmon bycatch,
marine mammals, and seabirds. NMFS00611–14 (salmon); NMFS00617–19 (marine mammals);
NMFS00619–21 (seabirds).
71

72

NMFS00635.

73

NMFS00635.

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Plaintiffs initially filed this action challenging the 2023–2024 Final Harvest
Specifications for Groundfish, asserted two NEPA claims, and sought declaratory and
injunctive relief.74 During the pendency of this case, NMFS published Final Harvest
Specifications for the 2024–2025 season.75

Plaintiffs then filed a supplemental

complaint, alleging that NMFS’s 2024–2025 Final Harvest Specifications had the
same deficiencies as the prior year’s specifications challenged in their initial
complaint.76
Plaintiffs ask the Court to enter a declaratory judgment that Federal
Defendants’ “decisions to adopt the 2023-2024 groundfish harvest specifications and
the 2024-2025 groundfish harvest specifications for the Bering Sea and Aleutian
Islands” and their “reliance on the 2004 Alaska Groundfish Fisheries Programmatic
Supplemental Environmental Impact Statement and the 2007 Alaska Groundfish
Harvest Specifications Final Environmental Impact Statement” are arbitrary,
capricious, and not in accordance with NEPA.77 Plaintiffs seek an order vacating the
2023–2024 and 2024–2025 harvest specifications and an order that requires NMFS
to prepare a new EIS or supplement the prior EISs.78

74

Docket 1.

75

2SUPP00020–54.

76

See generally Docket 52.

77

Docket 52 at 11 (incorporating the allegations in Plaintiffs’ Complaint at Docket 1).

78

Docket 52 at 11.

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JURISDICTION
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which
“confer[s] jurisdiction on federal courts to review agency action, regardless of whether
the APA of its own force may serve as a jurisdictional predicate.”79
LEGAL STANDARD
Agency decisions under the Magnuson-Stevens Act and NEPA are reviewed
pursuant to Section 706(2) of the Administrative Procedure Act (“APA”).80 Section
706 provides that a “reviewing court shall . . . hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law . . . [or] in excess of statutory
jurisdiction, authority, or limitations.”81 Agency action is arbitrary and capricious if it:
relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.82

79

Califano v. Sanders, 430 U.S. 99, 105 (1977).

16 U.S.C. § 1855(f)(1)(B) (“[T]he appropriate court shall only set aside” actions under the
Magnuson-Stevens Act “on a ground specified in [5 U.S.C. §§ ]706(2)(A), (B), (C), or (D).”).
80

81

5 U.S.C. § 706(2).

Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1067 (9th Cir. 2018) (quoting Greater
Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1023 (9th Cir. 2011)).
82

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By contrast, an agency action is proper if “the agency considered the relevant factors
and articulated a rational connection between the facts found and the choices
made.”83
When an agency action is based on factual conclusions drawn from the
administrative record, the reviewing court must determine whether those conclusions
are supported by “substantial evidence.”84 “‘Substantial evidence’ is ‘more than a
mere scintilla but less than a preponderance.’”85

A court’s review of an agency’s

findings under § 706(2) is narrow: “a court is not to substitute its judgment for that of
the agency,” and such deference is especially appropriate where “the challenged
decision implicates substantial agency expertise.”86 This standard is “extremely
deferential,” requiring the reviewing court to “uphold the [agency’s] findings unless
the evidence presented would compel a reasonable finder of fact to reach a contrary
result.”87 “Whether agency action is ‘not in accordance with law’ is a question of

83

Id. (quoting Greater Yellowstone Coal., 665 F.3d at 1023).

84

Id. at 1068; see also Dickinson v. Zurko, 527 U.S. 150, 163–64 (1999).

Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (quoting Sandgathe v. Chater, 108 F.3d
978, 980 (9th Cir. 1997)).
85

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Ninilchik
Traditional Council v. United States, 227 F.3d 1186, 1194 (9th Cir. 2000).
86

Monjaraz-Munoz v. I.N.S., 327 F.3d 892, 895 (9th Cir. 2003) (emphasis in original) (quoting SinghKaur v. I.N.S., 183 F.3d 1147, 1149–50 (9th Cir. 1999)). The Supreme Court’s recent decision in
Loper Bright Enterprises v. Raimondo is not to the contrary. 603 U.S. 369, 392 (2024) (“Section 706
does mandate that judicial review of agency policymaking and factfinding be deferential.”) (emphasis
in original).
87

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statutory interpretation, rather than an assessment of reasonableness in the instant
case.”88
DISCUSSION
A.

Plaintiffs and Intervenor-Plaintiffs Have Standing.
As a threshold matter, the Court must address whether Plaintiffs and

Intervenor-Plaintiff have standing.89 Federal Defendants assert that Plaintiffs do not
satisfy the causation and redressability requirements of Article III standing.90 In their
view, climate change is an intervening cause that substantially contributed to
Plaintiffs’ alleged injury and renders the causal connection between NMFS’s harvest
specifications and Plaintiffs’ injury too attenuated to support standing.91 With respect
to redressability, Federal Defendants insist that Plaintiffs’ requested relief would only
allow a small number of salmon to return to western Alaska and therefore would not
redress Plaintiffs’ alleged inability to adequately access marine resources.92 In a
footnote, Federal Defendants also posit that this Court lacks jurisdiction to hear

Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (citing Nw. Env’t Advocs. v. EPA, 537 F.3d
1006, 1014 (9th Cir. 2008)).
88

Bates v. UPS, 511 F.3d 974, 985 (9th Cir. 2007) (en banc) (“Standing is a threshold matter central
to our subject matter jurisdiction.”).
89

90

Docket 68 at 32–36.

91

Docket 68 at 33–34.

92

Docket 68 at 34–36.

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Plaintiff-Intervenor’s claim under the Magnuson-Stevens Act because such a claim is
untimely.93
Plaintiffs respond that they have standing because members of the tribes and
communities they represent depend on marine resources, including salmon, for
subsistence and as integral parts of their culture, and that Federal Defendants’
decision to authorize groundfish fisheries with what they allege is an insufficient
environmental analysis harms these interests.94 With respect to causation, Plaintiffs
maintain that Federal Defendants’ decision is a contributing cause of their injuries,
which NMFS acknowledges, and that the declines in salmon and other marine
resources are traceable to the harvest specification decisions because large scale
commercial fishing influences the ecosystem and bycatch in the groundfish fishery
has removed thousands of Chinook salmon that could have returned to western
Alaska rivers to spawn, increasing the risk of harm to Plaintiffs’ subsistence,
economic, and cultural interests.95

And Plaintiffs submit that their injuries are

redressable, as “allowing any additional salmon to return to western Alaska rivers to
spawn alleviates some of [Plaintiffs’] injuries related to declining salmon” and

93

Docket 68 at 36 n.8.

94

Docket 32 at 21–24; Docket 71 at 5–6.

95

Docket 71 at 6–8.

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requiring NMFS to prepare a new EIS or update its prior EISs could lead it to consider
a more precautionary approach to its management of the fishery.96
Article III of the Constitution confines the jurisdiction of the federal courts “to
‘cases’ and ‘controversies.’”97 Federal courts enforce this jurisdictional limitation
through the doctrine of standing.98 Plaintiffs bear the burden of demonstrating the
“irreducible constitutional minimum of standing,” which requires three elements. 99 A
plaintiff must show (1) an injury in fact, meaning an “invasion of a legally protected
interest that is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical”; (2) causation, “such that the injury is fairly traceable to
the challenged action of the defendant”; and (3) redressability, meaning that “the
injury will likely be redressed by a favorable decision.” 100

A plaintiff “must

demonstrate standing separately for each form of relief sought.”101
“To demonstrate standing to bring a procedural claim—such as one alleging a
NEPA violation—a plaintiff must show that the procedures in question are designed
to protect some threatened concrete interest of his that is the ultimate basis of his

96

Docket 71 at 9–11.

Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1138 (9th Cir. 2013) (quoting U.S. Const. art. III,
§ 2).
97

98

See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–42 (2006).

99

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

100

Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013) (citing Lujan, 504 U.S. at 560–61).

101

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).

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standing.”102 “Once plaintiffs seeking to enforce a procedural requirement establish
a concrete injury, the causation and redressability requirements are relaxed.”103 But
“a claim of procedural injury does not relieve Plaintiffs of their burden—even if
relaxed—to demonstrate causation and redressability.”104
1.

Plaintiffs have Article III standing.

The record supports, and Federal Defendants do not dispute, that Plaintiffs
have suffered an injury-in-fact. All parties acknowledge a depletion of the resources
in the marine ecosystem in the Bering Sea and Aleutian Islands region. 105 The
members of the tribes and communities that comprise Plaintiffs’ organizations
depend on these as resources for subsistence; the resources also have significant
economic and cultural value to Plaintiffs’ members.106 Impacts to marine resources
in the Bering Sea and Aleutian Islands, and in particular, salmon, thus harm Plaintiffs’
members.107

Moreover, they harm Plaintiffs as organizations, which both have

WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) (internal quotation
marks and citation omitted).
102

103

Id. (internal quotation marks and citation omitted).

104

Whitewater Draw Nat. Res. Conservation Dist. v. Mayorkas, 5 F.4th 997, 1015 (9th Cir. 2021).

105

Docket 32 at 15–20; Docket 68 at 33.

Docket 32-1 at ¶¶ 13–15; Docket 32-2 at ¶¶ 13, 19, 25; Docket 32-3 at ¶¶ 11, 16–19; Docket 324 at ¶ 9; Docket 32-5 at ¶¶ 7, 13–16; Docket 32-6 at ¶¶ 13–16.
106

See Friends of the Earth, 528 U.S. at 181 (citation omitted) (“An association has standing to bring
suit on behalf of its members when its members would otherwise have standing to sue in their own
right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted
nor the relief requested requires the participation of individual members in the lawsuit.”).
107

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missions to protect their members’ traditional cultural values and practices, including
subsistence.108
Further, Plaintiffs’ injuries are fairly traceable to Federal Defendants’ conduct.
A plaintiff “must show that the injury is causally linked or ‘fairly traceable’ to the
[defendant’s] alleged misconduct, and not the result of misconduct of some third party
not before the court.”109 But “[a] causal chain does not fail simply because it has
several links, provided those links are not hypothetical or tenuous and remain
plausible.”110 “Nor does standing require the defendant’s action to be the sole source
of injury.”111
Federal Defendants’ harvest specifications set the total allowable catch of
groundfish, which affects bycatch, which in turn affects the number of salmon that
return to western Alaska rivers to spawn. Although Federal Defendants insist that
their experts have concluded that “‘[s]cience indicates climate change as the primary
driver of poor salmon return in western Alaska’” and that “[c]limate change is, thus,
an intervening cause that has substantially contributed to Plaintiffs’ injury,” they also
acknowledge that salmon bycatch “may be a contributing factor in the decline of

Docket 32-1 at ¶¶ 10, 13, 16–21; Docket 32-5 at ¶¶ 10–12, 18–26; see also Friends of the Earth,
528 U.S. at 181.
108

109

Bellon, 732 F.3d at 1141 (citing Lujan, 504 U.S. at 560–61).

110

Id. at 1141–42 (internal quotation marks and citation omitted).

111

Id. at 1142.

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salmon.”112 Additionally, the Council noted that “[t]he cause(s) of the decline in
Chinook salmon returns is not well understood, but it is likely that climate warming in
both the marine and freshwater environments and, to some extent, bycatch in the
[Eastern Bering Sea] fisheries may be factors.”113 With respect to chum salmon,
NMFS estimated that the annual bycatch of chum that originated in western Alaska
by the pollock fleet in the groundfish fishery over a five year period averaged 49,927
fish per year.114 That this salmon bycatch in the fishery that Federal Defendants
manage is likely a “contributing factor” rather than a “primary driver” of the declining
salmon runs in western Alaska does not weaken the causal chain to the point that it
cannot support Plaintiffs’ standing.
Nor are Plaintiffs’ injuries too attenuated from Federal Defendants’ actions.
Rather, as described above, they are two steps removed. And the links in the chain
of causation connecting the agency’s actions to Plaintiffs’ injury are plausible, not
merely hypothetical. As Federal Defendants acknowledge, bycatch from the
groundfish fishery is a potential factor in salmon declines.115 That stands to reason.

Docket 68 at 33–34 (internal quotation marks omitted) (first quoting NMFS00039; and then
quoting NMFS00040).
112

113

NMFS27678.

114

2SUPP00106.

115

See NMFS00040; NMFS27678.

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As another district court has noted, “as a practical matter, the volume of a fishery’s
total annual catch is inextricably linked to the amount of its bycatch.”116
Federal Defendants suggest that this case is akin to Bellon. In Bellon, the
plaintiffs sought to compel state agencies to regulate greenhouse gas emissions from
the oil refineries located in the state of Washington under a cooperative federal-state
scheme; Plaintiffs asserted that the agencies’ failure to set and apply regulatory
standards contributed to those refineries’ greenhouse gas pollution, impairing their
recreational, aesthetic, economic, and health interests.117 The Ninth Circuit held that
traceability was lacking because the plaintiffs there “offer[ed] only vague, conclusory
statements that the Agencies' failure to set [certain regulatory] standards at the Oil
Refineries contributes to greenhouse gas emissions, which in turn, contribute to
climate-related changes that result in their purported injuries.”118 The Court held that
“Plaintiffs’ causal chain—from lack of [regulatory] controls to [their] injuries—consists
of a series of links strung together by conclusory, generalized statements of
‘contribution,’ without any plausible scientific or other evidentiary basis that the
refineries' emissions are the source of their injuries.”119 Thus, the Circuit Court held
that the plaintiffs had failed to connect their localized injuries to the greenhouse gas

116

Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 108 (D.D.C. 2011).

117

732 F.3d at 1136–37, 1140.

118

Id. at 1142.

119

Id.

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emissions of the Washington state oil refineries, in part because science could not
“identify a specific source of CO2 emissions” and “designate it as the cause of specific
climate impacts at an exact location.”120 In this case, there is no such indeterminacy.
As discussed, Plaintiffs have concretely connected their injuries—the depletion of
marine resources, particularly salmon, in western Alaska—to Federal Defendants’
management of the groundfish fishery in the Bering Sea and Aleutians Islands
region.121 Although climate change is one cause of Plaintiffs’ injuries, scientists have
quantified the bycatch of the groundfish fishery and identified it as another likely
cause of Plaintiffs’ injuries.
The third requirement, redressability, is also met here. Standing requires that
“the injury will likely be redressed by a favorable decision.”122 “[T]he ‘fairly traceable’
and ‘redressability’ components for standing overlap and are ‘two facets of a single
causation requirement.’”123 In cases such as this that involve procedural claims, the
redressability requirement is relaxed and “is satisfied when ‘the relief requested—
that the agency follow the correct procedures—may influence the agency’s ultimate
decision.’”124

Having concluded that Plaintiffs’ injuries are traceable to Federal

120

Id. at 1142–44.

121

See supra, at 23–25.

122

Townley, 722 F.3d at 1133 (9th Cir. 2013) (citing Lujan, 504 U.S. at 560–61).

Bellon, 732 F.3d at 1146 (quoting Allen v. Wright, 468 U.S. 737, 753 n.19 (1984), abrogated on
other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014)).
123

124

WildEarth Guardians, 795 F.3d at 1156 (quoting Salmon Spawning & Recovery All. v. Gutierrez,

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Defendants’ alleged failure to adequately consider recent changes to the Bering Sea
and Aleutian Islands region’s ecosystem in their management of the groundfish
fishery, it follows this Court must also conclude that, if NMFS followed different
procedures, the agency could conclude that different, more protective management
is appropriate and that such management could help remediate Plaintiffs’ injuries.125
2.

Intervenor-Plaintiff has Article III standing.

Separately, Federal Defendants assert that this Court lacks jurisdiction to hear
Intervenor-Plaintiff’s claim because Intervenor-Plaintiff did not intervene before the
30-day limit for challenges to regulations implementing an FMP under the MagnusonStevens Act had lapsed.126 Intervenor-Plaintiff responds that the Court already ruled
that it has standing by allowing intervention at Docket 26 and that, in any case, the
addition of Intervenor-Plaintiff as a party is an amendment to Plaintiffs’ Complaint that
“relates back” to the Complaint.127

545 F.3d 1220, 1126 (9th Cir. 2008)).
Id. at 1154 (emphasis omitted) (noting that plaintiffs seeking to enforce a procedural right “must
show only that they have a procedural right that, if exercised, could protect their concrete interests”
for purposes of the traceability and redressability elements of standing); see also Hall v. Norton, 266
F.3d 969, 977 (9th Cir. 2001) (“A plaintiff . . . who asserts inadequacy of a government agency’s
environmental studies under NEPA need not show that further analysis by the government would
result in a different conclusion. It suffices that, as NEPA contemplates, the [agency’s] decision could
be influenced by the environmental considerations that NEPA requires an agency to study.” (citing
Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001))).
125

126

Docket 68 at 36 n.8.

127

Docket 70 at 2–3.

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“Arguments raised only in footnotes . . . are generally deemed waived.”128 And
in any case, Intervenor-Plaintiff’s claim is timely as it relates back to Plaintiffs’ original
complaint, which was timely filed.129 The Ninth Circuit has not addressed whether an
intervenor’s complaint relates back to the date of the original pleading. 130 However,
the District Court for the Eastern District of California agreed with other district courts
in sister jurisdictions and concluded that “a complaint in intervention relates-back to
the date of the original complaint, despite expiration of the statute of limitations,
where ‘(1) the proposed intervenor is the real party in interest, or there is a
‘community of interest’ between proposed intervenor’s and plaintiff’s claims; (2)
intervenor’s motion is timely within the meaning of Rule 24; and (3) no prejudice to
defendants would result.’”131

This Court finds the Eastern District’s analysis

persuasive and applies it here.

Est. of Saunders v. Comm’r of Internal Revenue, 745 F.3d 953, 962 n.8 (9th Cir. 2014) (first citing
City of Emeryville v. Robinson, 621 F.3d 1251, 1262 n.10 (9th Cir. 2010); and then citing Graves v.
Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam)).
128

See 16 U.S.C. § 1855(f) (requiring a petition for judicial review be “filed within 30 days after the
date on which the regulations are promulgated or the action is published in the Federal Register”);
see also NMFS00018–48 (Final 2023 and 2024 Harvest Specifications published March 10, 2023);
Docket 1 (complaint filed April 7, 2023).
129

Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 629 F. Supp. 2d 1091,
1102 (E.D. Cal. 2009), aff’d in part, rev’d in part on other grounds, 618 F.3d 1066 (9th Cir. 2010)
(“The Ninth Circuit . . . has never addressed whether an intervenor’s complaint may relate-back to
the original complaint where the statute of limitations has otherwise expired.”).
130

Id. at 1104 (quoting New York v. Gutierrez, Case No. 08-cv-2503, 2008 WL 5000493, at *13
(E.D.N.Y. Nov. 20, 2008)).
131

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In this case, there is a community of interest between Plaintiff and IntervenorPlaintiff’s claims as these parties all seek the same relief and have similar
subsistence, economic, and cultural interests in salmon and other marine
resources.132 Intervenor-Plaintiff’s motion was timely filed within the meaning of Rule
24133 and Federal Defendants and Intervenor-Defendants are not prejudiced, as
Intervenor-Plaintiff asserts the same claims as Plaintiffs.134 Therefore, this Court has
jurisdiction to hear Intervenor-Plaintiff’s claims.
B.

Plaintiffs Have Not Waived Any Arguments.
Federal Defendants and Intervenor-Defendants assert that Plaintiffs waived

any argument that NEPA requires a standalone, or project-specific, EIS for each
annual harvest specifications decision because they did not raise this issue during
the appropriate comment period before the agency.135 In their briefing, Plaintiffs
respond that they put Federal Defendants on notice that a new EIS was required by
raising in their comments that no NEPA document analyzed the impacts of NMFS’s
harvest specifications decision “with a view to the current, drastic changes to the
environment” and, in any event, the agency had independent knowledge of the

132

See Docket 29 at 5, ¶¶ 5–6.

See Kalbers v. U.S. Dep’t of Just., 22 F.4th 816, 822 (9th Cir. 2021) (“Timeliness hinges on three
primary factors: (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the
prejudice to other parties; and (3) the reason for and length of the delay.”) (internal quotation marks
and citation omitted).
133

134

See generally Docket 29.

135

Docket 68 at 36–39; Docket 67 at 23–25.

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issue.136 Additionally, Plaintiffs suggest that NMFS “could either produce an EIS for
the annual harvest specifications decisions or it could produce a broader,
supplemental EIS for the overall strategy—similar to the 2007 harvest specifications
strategy EIS or the 2004 programmatic EIS for the fisheries management plans—as
long as that document also analyzes the effects of the annual harvest specifications
decisions. In either case, the Service could tier to the EIS in future years, so long as
there are not significant changes requiring supplemental NEPA analysis.”137 Further,
at oral argument, Plaintiffs clarified that they are not arguing that each annual harvest
specifications decision requires a standalone, or project-specific, EIS.138

Given

Plaintiffs’ clarification, the Court finds that Plaintiffs have not waived their argument
that a new or supplemental EIS is needed for the specific years challenged here.
C.

NMFS 2023–2024 and 2024–2025 Decisions that the Harvest
Specifications Did Not Require a Supplemental EIS Do Not Violate NEPA.
Plaintiffs assert that the 2023–2024 and 2024–2025 harvest specifications

decisions are major federal actions with potentially significant effects on the human
environment and thus required either an EIS or a supplemental EIS to comply with
NEPA.139

In their view, Federal Defendants’ reliance on the 2007 Harvest

Specifications EIS is arbitrary and violates NEPA because the 2007 EIS does not

136

Docket 71 at 11–12.

137

Docket 71 at 15.

138

Docket 94 at 6–7.

139

Docket 32 at 25–33; Docket 66 at 5.

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consider the current environmental context, particularly with respect to changed
ocean conditions, seabird and marine mammal mortality events, and salmon
declines.140 Furthermore, Plaintiffs contend that NMFS cannot analyze this new
information in its annual harvest specifications process in lieu of a NEPA document
because the new information about the current environment is significant and
requires a supplemental EIS.141
Federal Defendants and Intervenor-Defendants do not contest that the harvest
specifications decisions are major federal actions that may have significant effects
on the human environment.142 But Federal Defendants maintain that the annual
harvest specifications decisions do not require a separate EIS as the decisions “[are]
within the scope of a completed NEPA analysis—the [2007] Harvest Specifications
EIS.”143 And they insist that NMFS appropriately used annual SIRs to assess whether
new information required a supplemental EIS and properly concluded no
supplementation was necessary.144 Intervenor-Defendants offer similar arguments
and further submit that the 2007 Harvest Specifications EIS has satisfied NEPA for

140

Docket 32 at 33–42; Docket 66 at 6–8.

Docket 32 at 42–44 (citing Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir.
2000)).
141

142

See Docket 68 at 39–41; Docket 67 at 25–29.

143

Docket 68 at 39–41.

144

Docket 68 at 43–44.

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17 years and that completing an EIS annually would be impracticable.145 And they
assert that Federal Defendants properly concluded that they did not need to
supplement the 2007 Harvest Specifications EIS after considering new information,
and that this Court must defer to that decision.146
“NEPA imposes procedural requirements designed to force agencies to take a
hard look at environmental consequences of their actions.”147 “To that end, NEPA
requires agencies to prepare a detailed EIS for any ‘major Federal actions
significantly affecting the quality of the human environment.’”148 In the normal course,
an agency first prepares a less exhaustive EA, which is a “concise public document”
that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to
prepare an [EIS].”149 Not only must agencies complete an EIS prior to taking major
federal action, they also must
prepare supplements to either draft or final environmental impact
statements if a major Federal action is incomplete or ongoing, and:
(i) The agency makes substantial changes in the proposed action that
are relevant to environmental concerns; or

Docket 67 at 29–32. As noted above, Plaintiffs are not seeking a new EIS for each set of annual
harvest specifications.
145

146

Docket 67 at 32–46.

Solar Energy Indus. Ass’n v. FERC, 80 F.4th 956, 991 (9th Cir. 2023) (internal quotation marks
and citations omitted).
147

148

Id. (quoting 42 U.S.C. § 4332(C)).

149

40 C.F.R. § 1508.9(a).

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(ii) There are significant new circumstances or information about the
significance of adverse effects that bear on the analysis.150
Under this standard, “an agency is not required to make a new assessment under
NEPA every time it takes a step that implements a previously studied action, so long
as the impacts of that step were contemplated and analyzed by the earlier
analysis.”151
1.

The 2007 Harvest Specifications EIS includes subsequent annual
harvest specifications in its scope.

The Court first addresses whether the 2023–2024 and 2024–2025 annual
harvest specifications decisions fall within the scope of the 2007 Harvest
Specifications EIS. The relevant inquiry to determine what type of NEPA analysis is
required for an ongoing action is not “whether the previous EIS adequately analyzed
the impacts of the subsequent action.”152 Rather, “in deciding whether a previous
EIS is the EIS for a subsequent action, [the Ninth Circuit has found] it appropriate to
rely on an EIS’s defined scope.”153 “If the defined scope of the initial EIS included
the subsequent action, NEPA requirements for the subsequent action would fall
under the supplementation rubric.”154 And if the defined scope of the initial EIS is

150

40 C.F.R. § 1502.9(d)(1).

Mayo v. Reynolds, 875 F.3d 11, 16 (D.C. Cir. 2017); accord N. Alaska Env’t Ctr. v. U.S. Dep’t of
the Interior, 983 F.3d 1077, 1091 (9th Cir. 2020).
151

152

N. Alaska Env’t Ctr, 983 F.3d at 1090.

153

Id. at 1093.

154

Id.

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ambiguous, then a court “must determine whether the agency’s interpretation of the
scope is reasonable.”155
The 2007 Harvest Specifications EIS purports to analyze the impacts of
“harvest strategy to determine the annual harvest specifications for the federally
managed groundfish fisheries in the [Gulf of Alaska] and [Bering Sea and Aleutian
Islands] management areas.”156 That EIS further provides that “[t]he action being
analyzed is the alternative harvest strategies, or in other words, the principles for
determining the TACs.”157 Although the harvest strategy and the annual harvest
specifications are distinct actions, the latter is an implementation of the principles
established in the former and is thus within its defined scope. Mayo v. Reynolds, a
case decided by the D.C. Circuit, provides a direct analogue.158 In that case, a
plaintiff challenged annual decisions authorizing recreational elk hunting in Grand
Teton National Park on the grounds that the park had authorized the annual hunts
without NEPA review.159 The Court concluded that an earlier EIS that had analyzed
an elk management plan and alternatives “was clearly sufficient to cover elk hunting
during the ensuing fifteen years . . . absent a material change [in the action] causing

Id. at 1094 (citing Ka Makini ’O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 959 & n.3 (9th
Cir. 2002)).
155

156

NMFS00643.

157

NMFS00662.

158

875 F.3d 11 (D.C. Cir. 2017).

159

Id. at 14.

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unforeseen environmental consequences.”160 In so deciding, the Court noted that
“an agency is not required to make a new assessment under NEPA every time it
takes a step that implements a previously studied action.”161 “So long as the impacts
of the steps that the agency takes were contemplated and analyzed by the earlier
NEPA analysis, the agency need not supplement the original EIS or make a new
assessment.”162
Here, in the 2007 Harvest Specifications EIS, NMFS studied strategies for
determining annual harvest specifications—essentially a management plan similar to
that in Mayo.

Further, requiring an EIS for each annual harvest specifications

decision would be impractical, if not impossible. Plaintiffs acknowledged as much at
oral argument, suggesting that NMFS could remedy the alleged NEPA violation by
supplementing the 2004 or 2007 EIS and tiering to that supplemented analysis in
future years.163 Consistent with the Magnuson-Stevens Act, the FMP requires that
harvest specifications be made annually.164 The agency reasonably concluded that
the scope of the 2007 EIS adopted a strategy for the preparation of the annual harvest

160

Id. at 21.

161

Id. (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373 (1989)).

162

Id. (citation omitted).

163

Docket 94 at 6.

NMFS00119; see also 16 U.S.C. § 1853(a)(4) (requiring a fishery management plan to “assess
and specify . . . the capacity and the extent to which fishing vessels of the United States, on an
annual basis, will harvest the optimum yield”).
164

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specifications that applied to the 2023–24 and 2024–25 harvest specification
decisions. Accordingly, “the appropriate rubric” for considering Plaintiffs’ contentions
that Federal Defendants did not appropriately consider new information is whether
supplementation of that EIS is required.
2.
NMFS’s determination in its SIRs that it did not need to supplement
the 2007 Harvest Specifications EIS did not violate NEPA.
Plaintiffs insist that “[e]ven if the 2007 harvest specifications EIS included the
2023-2024 and 2024-2025 harvest specifications decisions, the Service’s decision to
rely on the 2007 EIS was arbitrary because 1) neither the SIRs nor the harvest
specifications process considered the relevant NEPA question—whether conditions
today are significantly different from conditions in 2007; and 2) the record shows
changes since 2007 are significant and must be analyzed in a supplemental EIS.”165
Federal Defendants respond that NMFS properly employed SIRs to consider whether
new information was significant and would require a supplemental EIS and
reasonably concluded that no such EIS was necessary.166 Intervenor-Defendants
add that NMFS used SIRs to evaluate the very issues Plaintiffs insist require
supplementation—changed ocean conditions, seabird and marine mammal mortality
events, and salmon abundance—among other information to reasonably conclude

165

Docket 71 at 16; see also Docket 32 at 44–48.

166

Docket 68 at 43–52.

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that supplementation was unnecessary.167 And they reiterate that the process is
scientifically-driven and entitled to deference.168
As noted above, an agency cannot simply rely on its original EIS when a major
federal action is ongoing.169 Rather, it “must be alert to new information that may
alter the results of its original environmental analysis, and continue to take a ‘hard
look at the environmental effects of [its] planned action, even after a proposal has
received initial approval.’”170 An agency must supplement an EIS when “[t]here are
substantial new circumstances or information about the significance of adverse
effects that bear on the analysis.”171 “New circumstances are circumstances which
significantly change the underlying project, and new information is intervening
information not already considered.”172 “If there remains major Federal action to
occur, and if the new information is sufficient to show that the remaining action will
affect the quality of the human environment in a significant manner or to a significant
extent not already considered, a supplemental EIS must be prepared.”173 By contrast,

167

Docket 67 at 32–44.

168

Docket 67 at 45–46.

169

See supra, at 32–33.

Friends of the Clearwater v. Dombeck, 222 F.3d 552, 557 (9th Cir. 2000) (alteration in original)
(quoting Marsh, 490 U.S. at 374).
170

171

40 C.F.R. § 1502.9(d)(1).

Earth Island Inst. v. U.S. Forest Serv., 87 F.4th 1054, 1069 (9th Cir. 2023) (internal quotation
marks and citation omitted).
172

173

Marsh, 490 U.S. at 374 (internal quotation marks and citation omitted).

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“[s]upplementation is not required when an agency takes a ‘hard look’ at the new
circumstances or information in an SIR and determines that the impact will not be
significantly different from those it already considered.”174
Although SIRs are not mentioned in NEPA or its implementing regulations,
“courts have upheld agency use of SIRs and similar procedures for the purpose of
determining whether new information or changed circumstances require the
preparation of a supplemental EA or EIS.”175

However, the Ninth Circuit has

“repeatedly warned that once an agency determines that new information is
significant, it must prepare a supplemental EA or EIS; SIRs cannot serve as a
substitute.”176 Ultimately, “[i]t is inconsistent with NEPA for an agency to use an SIR,
rather than a supplemental EA or EIS,” to present information and analysis that was
required in earlier NEPA documents or to correct earlier deficiencies.177
This Court reviews an agency’s decision not to supplement an EIS under the
arbitrary and capricious standard.178 Review under this standard is “searching and
careful” but “narrow,” especially where, as here, the challenged decision implicates

174

Id. (citation omitted).

175

Idaho Sporting Cong. Inc, 222 F.3d at 566; see also Earth Island Inst., 87 F.4th at 1069.

176

Idaho Sporting Cong. Inc, 222 F.3d at 566.

177

Id. at 567.

178

Dombeck, 222 F.3d at 556 (citing Marsh, 490 U.S. at 377).

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substantial agency expertise.179

Indeed, “[w]hether new information requires

supplemental analysis is a ‘classic example of a factual dispute the resolution of
which implicates substantial agency expertise.’”180 And “[a] dispute as to whether an
SEIS is required must be resolved in favor of the expert agency so long as the
agency’s decision is based on a reasoned evaluation of the relevant factors.”181
Plaintiffs here maintain that NMFS did not properly use SIRs to consider
whether new information or circumstances were significant so as to require
supplementation of the 2007 Harvest Specifications EIS. Plaintiffs challenge the
SIRs on two fronts: first, they assert that the SIRs failed to consider “whether
conditions today are significantly different from conditions in 2007” and second, they
assert that the SIRs came to the wrong conclusion and that the agency “record shows
changes since 2007 are significant and must be analyzed in a supplemental EIS.”182
Contrary to Plaintiffs’ assertions, NMFS did consider whether conditions today
are significantly different from conditions in 2007 in the SIRs. In the two SIRs most
relevant to the harvest specifications challenged in this case—the 2023 and 2024
SIRs—NMFS considered the corresponding annual SAFEs, which themselves

179

Id. (internal quotation marks and citations omitted).

Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (quoting Marsh,
490 U.S. at 376).
180

Kunaknana v. U.S. Army Corps of Eng’rs, Case No. 3:13-cv-00044-SLG, 2015 WL 3397150, at
*3 (D. Alaska May 26, 2015) (internal quotation marks omitted) (first citing Marsh, 490 U.S. at 376;
and then citing Selkirk Conservation All. v. Forsgren, 336 F.3d 944, 954 (9th Cir. 2003)).
181

182

Docket 71 at 16; see also Docket 32 at 44–48.

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include Ecosystem Status Reports.183 These Ecosystem Status Reports catalogue
new information about physical changes to the ocean,184 seabird mortality events,185
marine mammal mortality events,186 and salmon abundance.187

And NMFS

considered whether this, and other,188 information warranted the supplementation of
the 2007 Harvest Specifications EIS in its annual SIRs. In its SIRs, NMFS wrote
This year there is no additional or new information that falls outside the
scope of the Harvest Specifications EIS’s process for the consideration
of new information (i.e., the new information is not of a scale or scope
that it could not be incorporated and integrated into the SAFE reports
and the harvest specifications based on those reports through the
NMFS00590–92 (February 2023 SIR); 2SUPP00077–81 (February 2024 SIR); NMFS01264–315
(2022 SAFE used in 2023 SIR); 2SUPP06150–353 (2023 SAFE used in 2024 SIR).
183

NMFS05460–94 (2022 Eastern Bering Sea Ecosystem Status Report’s (“ESR”) discussion of
physical oceanographic conditions, including climate, surface and bottom temperatures, sea ice, and
the cold pool); NMFS05686–706 (2022 Aleutian Islands ESR’s discussion of physical oceanographic
conditions); 2SUPP06384–425 (2023 Eastern Bering Sea ESR’s discussion of physical
oceanographic changes); 2SUPP06628–43 (2023 Aleutian Islands ESR’s discussion of physical
oceanographic conditions).
184

NMFS05571–77 (2022 Eastern Bering Sea ESR’s discussion of seabirds, including mortality);
NMFS05734–43 (2022 Aleutian Islands ESR’s discussion of seabirds); NMFS05739–40 (discussion
of mortality); 2SUPP06525–31 (2023 Eastern Bering Sea ESR’s discussion of seabirds, including
mortality); 2SUPP06653–61 (2023 Aleutian Islands ESR’s discussion of seabirds, including
mortality).
185

NMFS05578–80 (2022 Eastern Bering Sea ESR’s discussion of marine mammals, including
unusual mortality events); NMFS05744–48 (2022 Aleutian Islands ESR’s discussion of marine
mammals); 2SUPP06661 (2023 Aleutian Islands ESR’s conclusion there was no new information
regarding marine mammals).
186

NMFS05534–42 (2022 Eastern Bering Sea ESR’s discussion of salmon abundance, size, and
other indices); NMFS05717–19 (2022 Aleutian Islands ESR’s discussion of salmon); 2SUPP06474–
89 (2023 Eastern Bering Sea ESR’s discussion of salmon, including Yukon and Kuskokwim Chum
runs and subsistence harvests); 2SUPP06650–52 (2023 Aleutian Islands ESR’s discussion of
salmon).
187

For example, the SIRs also relied on annual Alaska Marine Mammal Stock Assessments.
NMFS00623 n.77; see NMFS22408–806 (2018 Alaska Marine Mammal Stock Assessment);
2SUPP29786–884 (2023 Alaska Marine Mammal Stock Assessment).
188

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harvest specifications process and implementation of the harvest
strategy analyzed in the Harvest Specifications EIS).189
It then concluded that:
After reviewing the information. . . presented in the SAFE reports, [the
regional administrator] ha[s] determined that (1) the 2023 and 2024
harvest specifications, which were set according to the preferred harvest
strategy, do not constitute a substantial change in the action; and (2) the
information presented does not indicate that there are significant new
circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts that are not addressed
through the annual process of using the preferred harvest strategy to set
the harvest specifications. Additionally, the 2023 and 2024 harvest
specifications will result in environmental, social, and economic impacts
within the scope of those analyzed and disclosed in the EIS. Therefore,
a supplemental EIS is not necessary to implement the 2023 and 2024
harvest specifications. Further, at this time, the available information
does not indicate a need to prepare additional supplemental NEPA
documentation for the 2023 and 2024 harvest specifications.190
By reviewing up-to-date information and considering whether the information
indicated a substantial change in the impacts of the harvest specifications process
not considered in the 2007 Harvest Specifications EIS, NMFS considered whether
supplementation was necessary and articulated its conclusion that it was not, as
NEPA requires. Its harvest specifications decisions are therefore not arbitrary and
capricious on this basis.

2SUPP00079 (2024 SIR); see also NMFS00592 (2023 SIR) (“This year there is no additional or
new information that falls outside the scope of the Harvest Specifications EIS’s process for the
consideration of new information that would inform the harvest specifications process. Thus, the new
information available is not of a scale and scope that require an SEIS.”).
189

190

NMFS00635 (2023 SIR); see also 2SUPP00143 (2024 SIR’s identical conclusion).

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Additionally, Plaintiffs maintain that the record reflects that the new information
about climatic changes, seabird and marine mammal mortality events, and salmon
abundance was so significant that it must be analyzed in a supplemental EIS.191 In
particular, Plaintiffs stress that the warm stanza the Eastern Bering Sea experienced
was “unprecedented” in terms of magnitude and duration, and thus not accounted for
in the 2007 Harvest Specifications EIS.192 Plaintiffs also assert that “[n]owhere has
the Service addressed whether changes its own experts described as unprecedented
are significant and explained its conclusion.”193
In evaluating whether new information or circumstances are “significant” so as
to require a supplemental EIS, an agency must consider whether “the action will
affect the quality of the human environment in a significant manner or to a significant
extent not already considered.”194

Here, NMFS appropriately considered the new

information under this standard in its SIRs, as the Court has quoted its conclusions
above. NMFS’s conclusion—that the new information is not of a scale or scope to
place it outside what was considered in the Harvest Specifications EIS—is inherently
a factual determination that NMFS makes based on its expertise. In particular,
although NMFS determined that it was a low abundance year for Chinook salmon

191

Docket 71 at 16–25; see also Docket 32 at 44–48.

192

Docket 71 at 20–21 (citing NMFS05438–40).

193

Docket 71 at 17.

194

Marsh, 490 U.S. at 374 (internal quotation marks and citation omitted).

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based on salmon runs in the Unalakleet, Upper Yukon, and Kuskokwim rivers,195 it
nonetheless concluded “[t]he information and circumstances presented in the 2023
SAFE reports indicate the annual implementation of the groundfish harvest
specifications will not affect the human environment in a significant manner or to a
significant extent not already considered in the Harvest Specifications EIS” as that
EIS had “analyzed impacts of the harvest strategy on salmon, salmon bycatch,
directed salmon fisheries, and subsistence harvests, including in the context of
salmon run failures.”196

As the Court discussed above, it will defer to NMFS’s

substantial expertise on these fact-based determinations.197
The harvest specifications decisions are not arbitrary and capricious because
NMFS concluded, based on its reasoned evaluation of the new information regarding
changes in the Bering Sea and Aleutian Islands region, that the harvest specifications
would not result in significant impacts to the human environment that were not
considered in the 2007 Harvest Specifications EIS, such that a supplemental EIS was
not required.

195

2SUPP00105.

196

2SUPP00106.

See Marsh, 490 U.S. at 377; see also Loper Bright Enters. v. Raimondo, 603 U.S. 369, 392 (2024)
(“Section 706 does mandate that judicial review of agency policymaking and factfinding be
deferential.”) (emphasis in original); see supra, at 38–39.
197

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3.

Plaintiffs do not demonstrate that the 2004 programmatic EIS for the
FMP must be supplemented.

Finally, in a footnote, Plaintiffs assert that the 2004 programmatic EIS, which
the 2007 Harvest Specifications EIS incorporates by reference and uses as the
“overarching analytical framework” and “baseline analysis for evaluating subsequent
management actions,” did not consider and address the more recent drastic change
conditions in the North Pacific ecosystem.198 Federal Defendants respond that the
age of an EIS is not determinative of its adequacy and that the 2004 programmatic
EIS is outside the scope of Plaintiffs’ challenge.199
“Arguments raised only in footnotes, or only on reply, are generally deemed
waived.”200 And in any event, Plaintiffs have not identified reasons that the 2004
programmatic EIS must be supplemented.

Plaintiffs assert that the 2007 EIS

incorporates the 2004 EIS by reference and relies on its analysis. But they do not
point to any specific portion of the 2004 EIS’s analysis that they claim is outdated.
Although clearly a significant amount of time has passed since both the 2007 and
2004 EISs were prepared, the passage of time alone is not enough to require
supplementation.201 Therefore, without further detail, the Court cannot conclude that

198

Docket 32 at 35 n.7 (citing NMFS06565–66); see also Docket 71 at 15–16.

199

Docket 68 at 51–52 n.15.

Est. of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014) (first citing City of Emeryville v.
Robinson, 621 F.3d 1251, 1262 n.10 (9th Cir. 2010); and then citing Graves v. Arpaio, 623 F.3d 1043,
1048 (9th Cir. 2010) (per curiam)).
200

Ass’n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1184 (9th Cir.
1997) (“[S]ignificant circumstantial change is the triggering factor requiring a new or supplemental
201

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the harvest specifications decisions in the 2007 EIS are arbitrary or capricious
because they are supported by an EIS that incorporates another, older EIS from
2004.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
1.

Plaintiffs’ Motion at Docket 32 is DENIED.

2.

Federal Defendants’ Cross-Motion for Summary Judgment at Docket 68 is

GRANTED.

Plaintiffs’ and Intervenor-Plaintiffs’ claims are DISMISSED WITH

PREJUDICE.
The Clerk of Court is directed to enter final judgment accordingly.
DATED this 11th day of March 2025, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

EIS, not the passage of time alone.”).
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