OCEANA, INC. v. GUTIERREZ et al
Filing
157
MEMORANDUM OPINION AND ORDER that National Marine Fisheries Services shall have until July 1, 2021, to complete the remand. Further ordered that the National Marine Fisheries Service shall submit a status report every sixty days, updating the Court on both the status of the remand and the status of reinitiation. Signed by Judge Paul L. Friedman on November 13, 2020. (lcan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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OCEANA, INC.,
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Plaintiff,
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v.
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WILBUR L. ROSS, United States
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Secretary of Commerce, et al.,
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Defendants,
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and
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FISHERIES-SURVIVAL FUND,
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Defendant-Intervenor.
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____________________________________)
Civil Action No. 08-1881 (PLF)
MEMORANDUM OPINION AND ORDER
On October 1, 2020, this Court issued an opinion [Dkt. No. 155] and order [Dkt.
No. 154] remanding the case to the National Marine Fisheries Services (“NMFS”) because of
deficiencies in the Incidental Take Statement (“ITS”) for the Biological Opinion issued by
NMFS respecting the impact of the Atlantic Sea Scallop Fishery on the Northwest Atlantic
distinct population segment of loggerhead sea turtles. In its opinion, the Court directed “NMFS
either to more clearly explain whether there is a correlation between the dredge hour surrogate
and the numerical take limit . . . or, if unable to do so, to select a more appropriate surrogate or
other mechanism for monitoring loggerhead takes resulting from dredge fishing.”
October 1, 2020 Opinion at 24. The Court further directed “NMFS to explain the discrepancy
between its briefing in this Court and the second revised ITS regarding the reliability of the
bycatch estimates for sea turtles from the dredge fishery.” Id. The Court’s order also directed
NMFS to submit status reports every sixty days, updating the Court on its formal consultation
process. See October 1, 2020 Order at 2.
The Court ordered the parties to “meet and confer in order to propose a schedule
by which the [NMFS] will address the deficiencies identified” in the opinion. See October 1,
2020 Order at 1. The parties were directed to “file a joint status report informing the Court
whether they have reached agreement on a proposed schedule” or, if they failed to reach an
agreement, “inform[ing] the Court of their respective positions.” Id. The parties met and
conferred on October 23, 2020, and October 29, 2020, but did not reach an agreement on a
proposed schedule. See Joint Status Report of October 30, 2020 (“Joint Status Report”) [Dkt.
No. 156] at 2. They therefore filed a Joint Status Report setting forth their respective positions.
After reviewing the Court’s opinion and order, NMFS determined that rather than
attempting to more clearly explain the dredge hour surrogate, it will abandon it entirely and
revise the monitoring plan for the ITS. See Joint Status Report at 3. NMFS states that it is
currently reviewing updates to the “Murray model” for calculating bycatch estimates to
“determine whether the model, either as described or with modification to address potential
limitations, is an appropriate monitoring tool.” Id. at 4. NMFS requests four months – until
March 1, 2021 – to complete its review of the Murray model and determine whether it is an
appropriate monitoring tool. See id. In the event that NMFS determines that the Murray model
is not an appropriate monitoring mechanism, it requests an additional ten months to “develop a
new mechanism,” and states that it is already considering “several alternative approaches.” Id.
at 5. In total, NMFS requests fourteen months – until January 1, 2022 – to complete the remand.
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Oceana asserts that NMFS’s “proposed schedule is unreasonable and
demonstrates their pattern of delay and misconduct that this Court found necessitated ‘greater
judicial oversight.’” Joint Status Report at 2-3 (quoting October 1, 2020 Opinion at 18-24).
Oceana urges the Court to give NMFS only until March 1, 2021, to complete the remand in its
entirety. It asserts that this proposed deadline would ensure NMFS completes “remand before
the start of the loggerhead sea turtle migration to the mid-Atlantic region” and ensure that these
proceedings are not further unreasonably delayed. See id. at 3.
The Court declines to adopt either party’s proposed schedule. Oceana’s proposed
deadline of March 1, 2021, does not afford NMFS sufficient time to adequately address the
deficiencies noted in the Court’s October 1, 2020 opinion. But in view of the history of this
case, the Court is unwilling to give NMFS fourteen months to complete the remand. Nor does
the Court see any reason to split the remand into two parts. This Court has twice before
remanded the ITS at issue here, directing NMFS to more clearly explain the relationship between
the dredge hour surrogate and the loggerhead take limit, or to select a more appropriate
surrogate. See October 1, 2020 Opinion at 4-7. NMFS has twice failed to do either. It now
requests fourteen months to identify a more appropriate monitoring mechanism, which is
precisely what it should have been doing since the Court’s first remand in December 2014. See
id. at 4. The Court concludes that NMFS must complete the remand in fewer than fourteen
months. Accordingly, it is hereby
ORDERED that the National Marine Fisheries Services shall have until July 1,
2021, to complete the remand by either selecting the Murray model as the monitoring
mechanism or developing a new monitoring mechanism that addresses the deficiencies identified
in the Court’s October 1, 2020 opinion; and it is
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FURTHER ORDERED that the National Marine Fisheries Services shall submit a
status report every sixty days, updating the Court on both the status of the remand and the status
of reinitiation. The Court recognizes that the first of the scheduled status reports currently is due
on November 30, 2020. NMFS therefore is not required to include an update regarding remand
in this upcoming status report. It shall, however, provide the Court with an update on the status
of the remand in every subsequent status report, beginning with the status report due on
January 29, 2021.
SO ORDERED.
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/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: November 13, 2020
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