ANGLERS CONSERVATION NETWORK et al v. PRITZKER et al
Filing
47
MEMORANDUM OPINION to the Order granting in part and denying in part the Cross-Motions for Summary Judgment. Signed by Judge Gladys Kessler on 10/5/15. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANGLERS CONSERVATION
NETWORK, et al . ,
Plaintiffs,
v.
Civil Action No. 14-509 (GK)
PENNY PRITZKER, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Anglers Conservation Network, Paul Eidman, Gateway
Striper
Club,
Inc.,
and
Philip
Lofgren
(collectively,
"Plaintiffs"), bring this case against Secretary of the Department
of Commerce Penny Pritzker ("the Secretary"), the National Oceanic
and Atmospheric Administration
Fisheries
Service
( "NMFS")
("NOAA"), and the National Marine
(collectively,
"Defendants"
or
"the
Government") pursuant to the Magnuson-Stevens Fishery Conservation
and Management Act ("MSA" or "the Act"), 16 U.S.C. §§ 1801 et seq.;
the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321
et
seq.;
and
the
Administrative
Procedure
Act
("APA") ,
5 U.S.C. §§ 701 et seq.
Plaintiffs
Defendants
challenge
promulgated
various
amending
elements
the
fishery
of
a
Rule
that
management
plan
governing the Mackerel, Squid, and Butterfish ("MSB")
fishery off
of the eastern coast of the United States. Specifically, Plaintiffs
contend that Defendants unlawfully failed:
(1)
to include four
species of river herring and shad as "stocks" to be regulated by
the MSB fishery management plan;
(2) to adopt observation measures
necessary to prevent overfishing of the relevant river herring and
shad species;
and
( 3)
to adequately consider the environmental
impact of its chosen course.
This matter is before the Court on Plaintiffs' and Defendants'
Cross-Motions
for
consideration of
Summary
Judgment
the Motions,
[Dkt.
Nos.
[ Dkt.
Oppositions
30,
31].
Upon
Nos.
32,
3 6] ,
Replies [Dkt. Nos. 36, 38], and the entire record herein, and for
the reasons set forth below, the Motions for Summary Judgment filed
by the Parties shall be granted in part and denied in part.
I .
BACKGROUND
A. ·
Statutory Background
1.
Magnuson-Stevens Act
Congress first enacted the MSA in 1976 "to take immediate
action to conserve and manage the fishery resources found off the
coasts of the United States[.]" 16 U.S.C.
§
180l(b) (1).
The Act
establishes a federal-regional framework "for the conservation and
management of the fishery resources of the United States" in order
to "prevent overfishing," "rebuild overfished stocks," "[e]nsure
conservation," and "facilitate long-term protection of essential
fish
habitats."
Council,
Inc.
v.
Id.
§
1801 (a) ( 6);
Daley,
209
F.3d
- 2 -
see
also
747,
749
Natural
(D.C.
Res.
Cir.
Def.
2000).
Regulation of fisheries is accomplished through fishery management
plans
("FMPs")
that
are
developed and prepared by
regional fishery management councils
implemented and enforced by NMFS,
of Commerce. See 16 U.S.C.
§§
1
("councils")
independent
and approved,
a division within the Department
1853-1854.
The MSA divides the United States into eight regions, each of
which is represented by an independent fishery management council.
See id.
§
1852 (a) (1). Councils are composed primarily of members
who represent the interests of the states included in their region
and who are appointed by the Secretary from a list of individuals
submitted
§
by
1852 (b) (1),
1556,
the
governor
of
(2); see also C
1557-58
(D.C.
Cir.
&
1991).
each
constituent
state.
W Fish Co. v. Fox, Jr.,
Id.
931 F.2d
The remaining voting members of
each council consist of the principal marine fishery management
officials from each constituent state and the regional director of
NMFS for the related geographic area. 16 U.S.C.
§
1852 (b) (1) (A),
( B) .
Each
council
is
required
to
prepare
and
submit
to
the
Secretary (acting through NMFS) a fishery management plan and any
necessary amendments to such plan,
authority
that
requires
"for each fishery under its
conservation
and
management[.]"
The Secretary has delegated her authority to
disapprove plans and their amendments under 16 U.S.C.
to NMFS. Oceana, Inc. v. Locke, 831 F. Supp. 2d 95,
2011).
1
-
3 -
§
Id.
approve or
1854 (a) (3)
101 (D.D.C.
§ 1852(h) (1). The term "fishery" is defined in the Act as "one or
more stocks of fish which can be treated as a unit for purposes of
conservation and management and which are identified on the basis
of geographical, scientific, technical, recreational, and economic
characteristics;
and
[]
any
fishing
for
such
§ 1802(13). The term "stock of fish," in turn,
species,
subspecies,
geographical grouping,
stocks."
Id.
is defined as "a
or other category of
fish capable of management as a unit." 16 U.S.C. § 1802(42).
A fishery management plan must describe the species of fish
involved
in
management
fishery
measures"
that
overfishing
"prevent
protect,
the
and
and
specify
are
"necessary
rebuild
the
"conservation
and
overfished
and
appropriate"
to
stocks,
to
and
restore, and promote the long-term health and stability
of the fishery[.]" Id.§ 1853(a)(l)(A),
(2).
After a council prepares and approves a fishery management
plan
or
amendment,
it
is
sent
to
NMFS,
which
reviews
it
for
consistency with the MSA and other applicable laws and publishes
it
in
the
Federal
Register
for
notice
and
comment.
1854(a) (1). After a 60-day notice and comment period,
Id.
§
NMFS must
"approve, disapprove, or partia.lly approve a plan or amendment [,]"
taking into account the views and comments of interested persons.
Id. § 1854 (a) (2), (3).
If NMFS approves a plan or amendment, or does not expressly
disapprove
it
within
30
days,
- 4 -
it
becomes
effective.
Id.
§
1854 (a) (3).
or amendment,
If NMFS disapproves or partially approves the plan
NMFS must
thereafter notify the
council of
"the
applicable law with which the plan or amendment is inconsistent";
the "nature of such inconsistencies"; and specific "actions that
could be taken by the Council to conform such plan or amendment to
the requirements of applicable law." Id.
"may"
thereafter
"submit
a
revised
Secretary for review [.]" Id.
2.
§
1854 (a) (3). The council
plan
or
amendment
to
the
1854 (a) (4).
§
National Environmental Policy Act
Congress enacted NEPA in order "to use
~11
practicable means,
consistent with other essential considerations of national policy,
to improve and coordinate Federal plans, functions, programs, and
resources
to
the
end
that
the
fulfill
Nation may
the
responsibilities of each generation as trustee of the environment
for succeeding generations." 42 U.S. C.
that
goal,
NEPA
Environmental
requires
Impact
all
federal
Statement
("EIS")
§
4 331 (b) . To accomplish
agencies
to
whenever
prepare
they
an
propose
"major Federal actions significantly affecting the quality of the
human environment." Id.
environmental
impacts
comparative form,
§
of
4332 (2) (C) . The EIS must "present the
the
proposal
and the
alternatives
in
thus sharply defining the issues and providing
a clear basis for choice among options by the decisionmaker and
the public." 40 C.F.R.
§
1502.14.
- 5 -
B.
Factual Background2
1.
Shad and River Herring
At the center of this case are four species of anadromous
fish, that is, fish that spend most of their lives in ocean waters
but migrate upstream to fresh water in the spring to spawn.
See
AR 11408. Anadromous fish play a critical role in the biology of
rivers, estuaries and ocean waters along the Atlantic seaboard as
prey for many species of fish, birds, and marine mammals. AR 8265,
8268, 8291, 8416, 12818, 12947, 13498.
Two of the four species at issue in this case are known as
river herring.
They are: Alewife
(alosa pseudoharengus), which
are most abundant in the Mid-Atlantic and Northeastern states, and
blueback herring
(alosa aestivalis),
which are found from Nova
Scotia to northern Florida and are most abundant in waters south
of the Chesapeake Bay. AR 1148. Alewife spawn in rivers, creeks,
lakes,
and
vegetation,
ponds
over
and sand.
Id.
rocks,
detritus,
submerged
aquatic
Blueback herring generally prefer to
2
Plaintiffs' briefs contained citations to factual materials
beyond the scope of the Administrative Record. The Government
objected to the Court's consideration of those materials and
accordingly, filed a Motion to Strike Extra-Record Documents and
Citations [Dkt. No. 33]. The Court granted that Motion [Dkt. No.
4 4] .
For these reasons, the facts that follow are drawn solely
from the Administrative Record ("AR") [Dkt. No. 43] compiled by
NMFS.
-
6 -
spawn over sand or gravel in swift-flowing areas of rivers and
tributaries. Id.
The other two species are known as shad. They are:
American
Shad (alosa sapidissima), which historically populated all major
North American rivers from Maine to the east coast of Florida. AR
11201, 11411. American shad stocks are river-specific, which is to
say that each major tributary along the Atlantic coast provides
the spawning area for a particular stock of American shad. Id. The
other species
known.
is Hickory Shad (alosa mediocris) of which less is
"[D]istribution
and
movements
of
hickory
shad
are
essentially unknown after they return to the ocean"; however, "due
to harvest along the southern New England coast in the summer and
fall
it
is
assumed
that
they also
follow
a
migratory pattern
similar to the American shad[.]" AR 11411.
The Administrative Record is not entirely clear as to the
current status of the shad and river herring.
Portions indicate
that the four species are relatively numerous, whereas others show
diminishing numbers.
Compare
78
Fed.
Reg.
48,944,
48,992
with
AR 10438.
For example, in May 2012 the Atlantic States Marine Fisheries
Commission
( "ASMFC")
performed
an
assessment
of
52
stocks
of
alewife and blueback herring. AR 12921. However, the ASMFC lacked
sufficient
data
to
develop
estimates
of abundance
and
fishing
mortality for 28 of the 52 stocks. Id. Of the 24 stocks for which
- 7 -
data were available, 23 were depleted relative to historic levels
and one stock was increasing. Id.
By contrast, in 2013, relying on the blueback herring's coastwide population growth
rate,
NMFS
concluded that
the
relative
abundance of blueback herring throughout its range is stable. 78
Fed.
Reg.
48,944,
contiguous
48,992.
populations
Moreover,
of
alewife
significantly increasing. Id.
there
that
are
are
at
least
either
three
stable
or
From a coast-wide perspective, the
trajectory of the alewife population is significantly increasing
and
all
of
the
stock
complexes
are
stable
or
significantly
increasing. Id.
On August 12,
that
listing
2013,
river
NMFS issued a 50-page decision finding
herring
(i.e.,
both
alewife
and
blueback
herring) as threatened or endangered under the Endangered Species
Act
("ESA")
was
not
warranted.
See
78
Fed.
Reg.
48,944.
NMFS
determined that neither species of river herring was in danger of
extinction or likely to become so for the foreseeable future to
2030. Supp. AR, 78 Fed. Reg. at
4~,993.
The pattern of mixed and limited data continues with both
species of shad.
In 2012,
the Mid-Atlantic Fisheries Management
Council ("the Council") set out to study 32 stocks of American and
hickory shad. AR 12924. The Council found that it lacked sufficient
information to make any conclusions about eight of the 32 stocks.
Id. However, it was ·able to conclude that 11 stocks were depleted
-
8 -
relative to historic levels, 2 were increasing, and 11 were stable.
Id.
The
lack
of
adequate
data
has
prevented
any
reliable
assessments of the stock abundance and fishing mortality of shad.
AR 8 5 6 7 , 8 8 0 5 , 9 2 2 7 .
2.
Mackerel, Squid and Butterfish Fishery Management
Plan
The Mid-Atlantic Fisheries Management Council established the
Atlantic Mackerel, Squid and Butterfish Fishery Management Plan in
1983.
The Council manages these three species as a single unit
because of their similarities in fishing seasons and vulnerability
to common threats,
fleets.
River
including the threat of by-catch from foreign
herring
(alewife
(American shad and hickory shad)
occur
seasonally
with
and blueback herring)
and
shad
are anadromous species that co-
mackerel;
fishermen
harvest
them
as
incidental catch in the mackerel fishery. 79 Fed. Reg. 10,031 (Feb.
24,
2014).
When river herring and shad are encountered in the
mackerel fishery, they are either discarded at sea ("bycatch") or
retained
and
sold
as
part
of
the
mackerel
catch
("incidental
catch"). Id.; see also AR 11404.
a.
In June 2010,
Amendment 14
the Mid-Atlantic Fisheries Management Council
published a notice of intent to prepare a new amendment to the MSB
fishery management plan
( "MSB FMP") ,
known as Amendment 14.
75
Fed. Reg. 32,745; see also 79 Fed. Reg. 10,029 (Feb. 24, 2014). In
- 9 -
the initial stages of considering the alternative measures that
might be included in Amendment 14, the Council set out to do the
following:
"1)
improve
moni taring
and
observing
of
incidental
[river herring and shad] catch; 2) consider ways to reduce [river
herring and shad] catch; and 3) consider adding [river herring and
shad]
as managed stocks in the MSB FMP
fishery)
so
as
to
improve
overall
(i.e.
[river
as stocks in the
herring
and
shad]
conservation." AR 8191.
First,
as
part
implemented
new
herring/shad
of
bycatch
improve
the
Amendment
measures
that
mortality
precision
of
the
14,
are
in
Council
and
NMFS
minimize
intended
to
mackerel
the
Council
herring/shad catch and bycatch.
the
fishery,
and NMFS' s
estimates
and
of
After a public comment period,
NMFS partially approved Amendment 14, on November 7, 2013. 79 Fed.
Reg. at 10,029, 10,031. Amendment 14 established a mortality cap
measure
for
the herring I shad in the mackerel
fishery.
The cap.
requires the mackerel fishery to close once NMFS has determined
that
the
mackerel
fishery
herring/shad mortality.
Id.
has
caused
a
certain
amount
of
The Council and NMFS reasoned that
capping the allowed level of river herring and shad catch in the
mackerel fishery would provide a strong incentive for the industry
to
continue
to
avoid
river
herring
and
shad,
and
minimize
encounters with and therefore reduce the bycatch of these species.
Id.
- 10 -
Second,
Amendment 14 also set forth several measures NMFS
intends to initiate in the future to reduce herring/shad bycatch
and bycatch mortality,
including the development of a
avoidance strategy" with state and university partners.
"bycatch
79 Fed.
Reg. 10,029, 10,034.
In
addition,
notification
mackerel.
of
Id.
Amendment
intent
to
14
retain
48-hour
requires
more
than
20, 000
pre-trip
pounds
of
Such notification is required to ensure that the
Council and NMFS have sufficient notice to assign observers to the
fishing vessels. Id.
The notification also requires daily catch
reporting for certain mackerel vessels via the Vessel Monitoring
System in order to facilitate monitoring and cross-checking with
other data sources.
Id.
The Amendment also requires six-hour pre-landing notification
via the Vessel Monitoring System to land over 20,000 pounds of
mackerel
to
monitoring,
allow
sufficient
enforcement,
and
notice
portside
to
facilitate
monitoring.
at-sea
Id.
The
Amendment expands requirements related to at-sea observer sampling
to
help
ensure
safe
sampling
Amendment prohibits slippage
and
(i.e.,
improve
data
quality.
The
at sea dumping of fish that
have been caught) on limited access mackerel trips with observers
aboard, and requires vessel operators to submit a released catch
affidavit for each slippage event. Id.
- 11 -
Notably, and at the heart of this case, the final version of
Amendment 14 promulgated by NMFS did not include two measures that
Plaintiffs support.
Amendment
14
First,
the Council recommended a version of
that would have
increased the number of on-board
observers who monitor compliance with applicable law. AR 12799. As
proposed by the Council,
observers would have been on 100% of
certain vessels in the MSB fishery and would have been partially
funded by the fishing industry itself. Id. For a variety of reasons
discussed below, NMFS rejected this measure in the final version
of Amendment 14. 79 Fed. Reg. 10,034.
Second, the Council decided not to recommend the addition of
herring/shad stocks to the MSB fishery in Amendment 14.
Reg.
10, 034.
Instead,
79 Fed.
the Council stated that it would further
consider adding stocks to the fishery in the subsequent Amendment
15. Id.
b.
On
June
14,
Amendment 15
2012,
Amendment 15 "to add
Defendants
and
the
[river herring and shad]
Council
initiated
as stocks in the
fishery," AR 10444, and scoping for the action began in October
2012.
77
Fed.
Reg.
65,867.
Numerous
fishermen
and
other
stakeholders commented on the need to add river herring and shad
to the MSB FMP. AR 13789. On October 8, 2013, after studying the
issue and considering public comments and testimony, the Council
suspended
further
consideration
of
- 12 -
Amendment
15,
and
instead
created a new working group to further study the issue for at least
three
years.
79
Fed.
Reg.
10,034.
termination of Amendment 15,
Plaintiffs
challenged
the
and this Court granted Defendants'
Motion to Dismiss that challenge on September 30,
2014. Anglers
Conservation Network v. Pritzker, 70 F. Supp. 3d 427, 441 (D.D.C.
2014) .
C.
Procedural Background
On February 24, 2014, NMFS promulgated the final version of
Amendment 14. 79 Fed. Reg. 10029.
On March 26,
2014,
while their challenge to the Council's
suspension of Amendment 15 was
still pending,
Plaintiffs filed
their Complaint challenging Amendment 14 [Dkt. No. 1].
On October 27, 2014, Plaintiffs filed their Motion for Summary
Judgment [Dkt. No. 30]. On December 4, 2014, the Government filed
its
[Dkt.
combined
No.
Cross-Motion
31].
On
for
December
combined Opposition and Reply
Summary
19,
2014,
[Dkt.
No.
Judgment
and
Plaintiffs
36),
Opposition
filed
their
and on January 20,
2015, the Government filed its Reply [Dkt. No. 38]
.3
II. STANDARD OF REVIEW
Summary judgment will be granted when there is no genuine
issue as to any material fact. See Fed. R. Civ. P. 56(c). Because
On September 24, 2015, Defendants filed a Notice of Supplemental
Authority [Dkt. No. 45]. No response was filed. The Court is not
relying upon this last-minute submission by Defendants.
3
- 13 -
this case involves a challenge to a final administrative decision,
the
Court's
review
on
Administrative Record.
summary
judgment
Holy Land Found.
(D.C.
Cir.
1977)
for resolving a
(1973)); Richards v.
limited
to
for Relief and Dev.
Ashcroft, 333 F.3d 156, 160 (D.C. Cir. 2003)
411 U.S. 138, 142
is
the
v.
(citing Camp v. Pitts,
INS,
554 F.2d 1173, 1177
("Summary judgment is an appropriate procedure
challenge to a
federal agency's administrative
decision when review is based upon the administrative record.").
Agency decisions under the Magnuson-Stevens Act and NEPA are
reviewed
§
1855 (f) (1) (B)
actions
§]
pursuant
under
706(2) (A),
1238,
Section
("the
the
appropriate
MSA
(D.C.
Locke,
706(2)
"on
a
of
court
ground
the
APA.
shall
16
U.S.C.
only set
aside"
specified
in
[5
U.S.C.
(C), or (D) .");Oceana, Inc. v. Locke, 670 F.3d
(B),
1240-41
Oceana v.
to
Cir.
2011);
C
&
831 F.Supp.2d 95,
W Fish,
106,
(D.D.C. 2011). In relevant part, 5 U.S.C.
931 F.2d at 1562;
2011 WL 6357795,
§
at *8
706(2) requires a court
to hold agency action unlawful if it is "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law."
The arbitrary and capricious standard of the APA is a narrow
standard of review.
Volpe,
401 U.S.
402,
Citizens to Preserve Overton Park,
416
(1971).
Inc.
v.
It is well established in our
Circuit that the "court's review is .
highly deferential" and
"we are 'not to substitute [our] judgment for that of the agency'
but
must
'consider
whether
the
- 14 -
decision
was
based
on
a
consideration of the relevant factors and whether there has been
a clear error of judgment.'" Bloch v. Powell, 348 F.3d 1060, 1070
(D.C.
Cir.
2003)
(quoting S.
Co.
Servs.,
Inc.
v.
FCC,
313 F.3d
574, 579-80 (D.C. Cir. 2002)); see also United States v. Paddack,
825
F.2d 504,
standard
514
cannot
(D.C.
permit
Cir.
1987).
courts
However,
"merely
to
this
rubber
deferential
stamp
agency
actions," NRDC v. Daley, 209 F.3d 747, 755 (D.C. Cir. 2000), nor
be
used
to
shield
the
agency's
decision
from
undergoing
a
"thorough, probing, in-depth review." Midtec Paper Corp. v. United
States, 857 F.2d 1487, 1499
(D.C. Cir. 1988)
(internal citations
and quotations omitted).
An agency satisfies the arbitrary and capricious standard if
it "examine[s] the relevant data and articulate[s] a satisfactory
explanation
for
its
action
including
a
'rational
connection
between the facts found and the choice made.'" Motor Vehicle Mfrs.
Ass'n v.
State Farm Mut. Auto.
Ins. Co.,
(quoting Burlington Truck Lines v.
463 U.S.
United States,
29,
43
371 U.S.
(1983)
156,
168 (1962) ); Lichoulas v. FERC, 606 F.3d 769, 775 (D.C. Cir. 2010).
Finally,
courts
"do
not
defer
to
the
agency's
conclusory
unsupported suppositions." McDonnell Douglas Corp. v. U.S.
or
Dep't
of the Air Force, 375 F.3d 1182, 1186-87 (D.C. Cir. 2004) . 4
The purpose of a motion for summary judgment challenging final
agency action is "to test the agency action against the
administrative record." LCvR 7 (h). The Court must evaluate the
agency's decision on the basis of "the full administrative record
4
- 15 -
III. ANALYSIS
A.
Count I: Failure to Include River Herring and Shad Stocks
in the MSB Fishery
1.
The Government's Duty to Consider Adding Stocks to
the Fishery
Plaintiffs contend that the Government violated the APA and
the MSA by refusing to add river herring and shad stocks to the
MSB fishery because NMFS's own data and analysis demonstrate that
the four species at issue are caught in the fishery and require
conservation
and
management.
The
Government
responds
with
a
variety of arguments as to why it refused to even consider addition
of river herring and shad stocks to the MSB fishery as part of
Amendment 14. The Government also contends on the merits that its.
decision
declining
to
add
new
stocks
to
the
fishery
was
not
arbitrary and capricious.
The Government's first response to Plaintiffs' contention is
that the burden for assessing which stocks should be in a fishery
rests with the regional councils,
not NMFS.
But this Court has
previously rejected that argument. See Flaherty v. Bryson, 850 F.
that was before the Secretary at the time [she] made [her]
decision." Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402,
420 (1971), abrogated on other grounds by Califano v. Sanders, 430
U.S. 99 ( 1977) . In reviewing agency action, the district court
"sits as an appellate tribunal, not as a court authorized to
determine in a trial-type proceeding whether the Secretary's
[action] was factually flawed." Marshall Cnty. Health Care Auth.
v. Shalala, 988 F.2d 1221, 1225 (D.C. Cir. 1993).
- 16 -
Supp. 2d 38, 54
(D.D.C. 2012)
("it is
[NMFS's]
responsibility to
decide whether an FMP, including the composition of its fishery,
satisfies the goals and language of the MSA."
(internal citation
omitted)) .
Al though
with
§
the
amendments
regional
1852 (h) (1),
to
fishery
fisheries
ultimate
management
management
responsibility
for
plans
originate
councils,
the
16
details
u.s.c.
of
any
amendment -- including the decision to add certain stocks to a
fishery
--
rests
with NMFS.
Flaherty,
850
F.
Supp.
2d at
54.
Regardless of what the Council recommends, "NMFS must make its own
assessment
of whether
stocks
be managed as
can
the
Council's
a
unit
and
determination as
require
to
which
conservation
and
management 5 is reasonable." Id. at 55 (citing Motor Vehicle Mfrs.
Ass'n, 463 U.S. at 52).
The Government does not dispute that river herring and shad
could be managed as a unit along with the mackerel,
5
squid,
and
See 16 U.S.C § 1802 (5), which provides that "[t]he term
'conservation and management'
refers to all of the rules,
regulations, conditions, methods, and other measures (A) which are
required to rebuild, restore, or maintain, and which are useful in
rebuilding, restoring, or maintaining, any fishery resource and
the marine environment; and (B) which are designed to assure that- (i) a supply of food and other products may be taken, and that
recreational benefits may be obtained~ on a continuing basis; (ii)
irreversible or long-term adverse effects on fishery resources and
the marine environment are avoided; and (iii) there will be a
multiplicity of options available with respect to future uses of
these resources."
- 17 -
butterfish.
The ultimate question for the Court. is whether the
Government's decision refusing to add river herring and shad stocks
to
the
MSB
fishery
was
"arbitrary,
capricious,
an
abuse
discretion, or otherwise not in accordance with law." 5 U.S.C.
of
§
706.
Second,
the
Government
contends
that
it
need
not
have
considered whether to add new stocks to the fishery because the
Council would be considering it as part of Amendment 15. However,
it is well established that promises of future compliance with the
law cannot satisfy the Government's current legal obligation. See
Conservation Law Found. v. Evans,
2001); see also Oceana,
Inc. v.
209 F.
Pritzker,
Supp.
2d 1,
24 F. Supp.
10
(D.D.C.
3d 49,
62
(D.D.C. 2014); Oceana v. Locke, 831 F. Supp. 2d 95, 121-22 (D.D.C.
2011) . Thus,
if the Court were to conclude that,
based upon the
Administrative Record compiled for Amendment 14, the MSA requires
the addition of river herring and shad stocks to the MSB fishery,
the Government cannot escape Plaintiffs' challenge with the mere
promise to consider the issue as part of a future amendment. 6
6
The Government also notes that in a related case dealing
exclusively with Amendment 15 this Court held that Plaintiffs could
not challenge the Council's failure to proceed with that Amendment.
The Government asserts that "[t]he Court should decline to permit
Plaintiffs to circumvent the Court's previous decision by granting
them the relief they could not obtain in the Amendment 15 case."
Gov't's Reply at 14 (citing Anglers Conservation Network v.
Pritzker, 70 F. Supp. 3d 427, 440 (D.D.C. 2014)). However, despite
the Government's assertions, the opinion the Government cites
sheds no light on whether Plaintiffs may obtain the relief they
- 18 -
Third, the Government also argues that it need not complete
a
wholesale
review of which
stocks
fishery with each amendment to that
Gov't's Mot. at 32
3d 49,
63
should be
in a
particular
fishery's management plan.
(citing Oceana, Inc. v. Pritzker, 24 F. Supp.
(D.D.C. 2014); Pacific Coast Federation of Fishermen's
Associations v. Blank, 693 F.3d 1084, 1102, n.15 (9th Cir. 2012)).
It
is
true,
recognized,
as
Judge
Contreras
that "[i]f the
in
[Government]
this
District
Court
has
were required to make a
wholesale reconsideration of which stocks to include in the fishery
every time it amends an FMP,
the delay [caused by the amendment
review process] would be much greater." Oceana, Inc. v. Pritzker,
24 F. Supp. 3d 49, 64
(D.D.C. 2014).
Although not every single FMP amendment gives rise to a duty
to consider a wholesale review of which stocks should be added to
the fishery,
consideration of certain amendments would logically
include such a duty.
It is black letter law that an agency acts
arbitrarily and capriciously when it "entirely fail[s] to consider
an important aspect of the problem." Motor Vehicle Mfrs. Ass' n,
463 U.S. at 43. The Council initially took up Amendment 14 in order
to consider whether "the management framework then in place [was]
seek in this action. Plaintiffs could not obtain relief in Anglers
Conservation Network, 70 F. Supp. 3d at 440, because they failed
to identify "a discrete agency action that [the Government was]
required to take." In this action, by contrast, Plaintiffs
challenge final agency action: Amendment 14.
- 19 -
insufficient to manage [river herring and shad]." Gov't's Mot. at
15 (citing AR 12724); see also 78 Fed. Reg. 53404 (Council adopted
Amendment 14, among other reasons, "to address incidental catch of
river herring and shad").
Plaintiffs respond that because the management of shad and
river herring stocks was a central concern of Amendment 14, failing
to give even a
nod to the obvious possibility of adding these
species to the MSB fishery was arbitrary and capricious. However,
despite the Government's contention that it had no duty to consider
adding stocks to the fishery, the Government did, in fact, consider
adding the
Moreover,
river
the
herring and
Government
shad stocks
documented
its
to
the MSB
views
in
fishery.
its
Draft
Environmental Impact Statement ("DEIS"). AR at 8373. See, infra.
In its final argument,
the Government next argues that the
Court should not reach the merits of the stocks-in-the-fishery
question because Plaintiffs have not petitioned NMFS to add river
herring and shad to the fishery under 5 U.S.C. § 553(e). However,
5 U.S.C. § 704 provides that "[a]gency action made reviewable by
statute
adequate
and
final
remedy
in
agency
a
action
court
are
for
which
subject
Amendment 14 falls within §704's reach.
to
there
is
judicial
no
other
review."
16 U.S.C. § 1855(f). The
Government cites no authority for the proposition that Plaintiffs
were required to petition NMFS in order to challenge Amendment 14.
- 20 -
Accordingly,
Plaintiffs'
failure
to
submit
such
a
petition
is
Rejecting Addi ti on
of
irrelevant.
2.
The Government's Decision
Stocks to the Fishery
Plaintiffs contend that the Government's failure to add the
stocks
to
the
discretion,
fishery
was
"arbitrary,
capricious,
an
abuse
or otherwise not in accordance with law." 5 U.S.C.
of
§
706(2).
Citing 16 U.S.C. § 1852 (h) (1)
at 54-55,
and Flaherty,
850 F. Supp. 2d
Plaintiffs contend that all stocks that can be managed
in a fishery and require conservation and management must be added
to a fishery under an FMP. The Government disagrees, arguing that
the MSA affords NMFS discretion as
to whether stocks
conservation and management must be included in an FMP,
requiring
and that
stocks are required to be added to a fishery only when they are
overfished or approaching an overfished condition. Gov't's Mot. at
32 n. 13 (citing 16 U.S.C. § 1854(e)); Gov't's Reply at 15.
This Court has already considered and ruled on these issues.
In
Flaherty,
standard,
requires
the
Court
rejected the Government's
"overfishing"
stating clearly that while "[i]t is true that the MSA
management measures
when NMFS
finds
certainly does not follow that in the absence
overfishing [, J it
o~
overfishing NMFS
may simply rubber stamp the Council's decisions." 850 F. Supp. 2d
at 54.
- 21 -
The Court went on to hold that the MSA requires that any
stocks requiring the conservation and management provided by an
FMP must be placed under one. See Flaherty 850 F. Supp. 2d 38, 5455 (D.D.C. 2012)
(holding that NMFS must "ensur[e] compliance with
Section 1852(h)'s requirement that the Council prepare an FMP or
amendment for any stock of fish that requires conservation and
management").
The Court reasoned that:
Section [1852(h)] requires FMPs and necessary amendments
for all stocks of fish which can be treated as a unit for
purposes of conservation and management and which are in
need of conservation and management. Thus, NMFS must make
its own assessment of whether the Council's determination
as to which stocks can be managed as a unit and require
conservation and management is reasonable.
There is no basis for concluding, as [the Government
does], that the structure of the MSA weakens Section
1854's command that NMFS review proposed plans and
amendments for compliance with the statute. The standards
to be applied in reviewing NMFS' s conclusion that [an
amendment] complies with Section 1852(h) are therefore
no different than review of NMFS' s conclusion that an
amendment complies with the National Standards.
Flaherty,
850
F.
Supp.
2d
at
54-55
(internal
citations
and
quotation marks omitted) . 7
7
The Government relies heavily upon a recently published opinion
from the U.S. District Court for the District of Alaska to support
its contention that the MSA is ambiguous as to "whether all stocks
that have conservation and management needs must be added to a
federal fishery management plan." See Gov' t' s Reply at 14-17
(citing United Cook Inlet Drift Assoc. v. National Marine Fisheries
Service, No. 13-104 (D. Ak. Sept. 5, 2014)). This decision is not
binding on this Court, and the Court declines to follow it.
- 22 -
As noted earlier, the Government does not dispute that river
herring
and
shad
stocks
can be
treated
as
a
unit
along with
mackerel stocks for the purposes of conservation and management,
which is to say that the Government has not disputed that river
herring and shad could be added to the MSB fishery. See 16 U.S.C.
§
1802(13)
can
be
(defining "fishery" as "one or more stocks of fish which
treated
as
a
unit
for
purposes
of
conservation
and
management and which are identified on the basis of geographical,
scientific, technical, recreational, and economic characteristics;
and
[]
any
fishing
for
such
stocks.") . · Accordingly,
the
only
question is whether river herring and shad require the conservation
and
management
measures
that
inclusion
in
the
MSB
FMP
that
Administrative
would
provide.
The
Government
contends
the
Record
prepared for Amendment 14 "did not demonstrate that herring/shad
required
conservation
management
plan."
and
Gov' t' s
management
Mot.
at
33
under
an
(emphasis
MSA
in
fishery
original) .
Plaintiffs disagree, arguing that "[t]he best available scientific
information
in
the
[A] dministrati ve
[R] ecord demonstrates
that
river herring and shad need conservation and management, that catch
in federal fisheries has contributed to their decline,
their addition as
stocks managed in
the plan
conserve and manage them[.]" Pls.' Reply at 13.
- 23 -
is
and that
necessary to
As already noted,
supra at p.
7, the current status of the
four species of river herring and shad is not entirely clear from
the data available.
Plaintiffs note that a variety of factors
have caused declines in the river herring and shad populations.
See AR 8389-92,
10436-39,
13498. Among other things,
Plaintiffs
point to a report from May 2012, stating that "[o]f the 52 stocks
of alewife and blueback herring for which data were available, 23
were
depleted
increasing,
relative
to
historic
levels,
one
stock
was
and the status of 28 stocks could not be determined
because the time-series of available data was too short." Atlantic
States
River
Marine
Herring,
Fisheries
AR
10438.
Commission
Stock
Furthermore,
Assessment
"the
Overview:
Protected
Special
Division of NMFS designated river herring as a 'species of concern'
in 2006." Pls.' Mot. at 11 (citing 71 Fed. Reg. 61,022). s
However, the Administrative Record also contains significant
positive information about the well-being of river herring and
shad stocks. Sources in the Record demonstrate that the coast-wide
population of blueback herring growth rate is stable. 78 Fed. Reg.
48,944, 48,992. With respect to alewife, at least three contiguous
populations are stable to significantly increasing. Id. The coastwide trajectory for alewife is significantly increasing, and all
In other words, reliable data could not be obtained for more
than half of the 52 stocks.
8
- 24 -
of the stock complexes are stable or significantly increasing. Id.
When the Mid-Atlantic Fishery Management Council set out to study
32 stocks of hickory shad in 2012,
it found that 11 stocks were
depleted relative to historic levels, two were increasing, and 11
were stable. AR 12924. The Council concluded it lacked sufficient
information to reach any conclusions about eight of the 32 stocks.
Id.
In further support of its position that herring/shad do not
require
conservation
and
management
in
the
MSB
fishery,
the
Government points out that materials Plaintiffs cite to show that
river herring in the Mid-Atlantic are overfished relate to state,
not federally, managed waters. See AR 7838, 7975-76. The Government
also
notes
NMFS
findings
that
dams
and barriers,
fishing in federally-managed f isherie.s,
threat" to river herring,
78 Fed. Reg.
rather
than
are "the most important
48,970, and contends that
bycatch in federally managed fisheries has not been shown to have
a strong connection to the amount of shad stocks,
AR 8335.
The
Government also points to state and federal actions to address
these problems, including a herring bycatch avoidance program and
state fishery management plans and fishing moratoria,
conservation
and
management
Gov't's Mot. at 16-18
measures
in
an
FMP
that make
unnecessary.
(citing 79 FR 10,029 at 10,034); id. at 23
(58 Fed. Reg. 44,190).
- 25 -
As the Draft Environmental Impact Statement summarizes, "the
uncertainty regarding the current factors causing [river herring
and shad] populations to remain in a depressed state means that it
is
difficult
to
identify specific causes
and link remedies
to
specific outcomes. Given this, the extent of benefits from adding
[river herring and shad] as stocks in the fishery is very difficult
to
quantify
even
though
impacts
are
likely
to
be
positive."
AR 8267.
Plaintiffs' burden is to show that NMFS acted arbitrarily or
capriciously in determining that river herring and shad are not in
need of conservation and management measures provided by an FMP.
In light of the evidence just cited,
as well as the uncertainty
and lack of reliable data as to why and how the river herring and
shad populations have declined, it cannot be said that Defendants
have been arbitrary and capricious in making their decision.
In
the
face
of
such
uncertainty,
the
Government
is
not
obligated to add stocks to the fishery simply because the "impacts
[of doing so] are likely to be positive." Id. An agency need only
"examine
the
explanation
relevant
for
its
data
action
and
articulate
including
a
satisfactory
a
'rational
connection
between the facts found and the choice made.'" Motor Vehicle Mfrs.
Ass'n,
463
U.S.
at
43.
NMFS
has
Government must prevail on Count I.
- 26 -
done
so,
and
therefore,
the
B.
Count II: Monitoring
Prevent Overfishing
and
Accountability
Measures
to
Plaintiffs' second objection to Amendment 14 is that it fails
to include sufficient monitoring and accountability measures to
prevent overfishing of river herring and shad stocks in the MSB
fishery. They contend that by failing to approve specific observer
coverage levels recommended by the Council, NMFS has violated MSA
provisions codified at 16 U.S.C.
§§
1851 (a)
and §§ 1853 (a)
and
acted arbitrarily and capriciously.
1.
The Government's Rejection of 100% Observer Coverage
As part of Amendment 14,
the Council recommended that NMFS
mandate the placement of an observer on every small mesh bottom
trawl mackerel trip in the MBS fishery (referred to by the Parties
as
"100%
observer
coverage").
Plaintiffs
assert
that
the
Government should have approved the 100% observer coverage plan,
which would have been funded through "cost sharing" (i.e., dividing
the
costs
of
coverage
between
NMFS
and
fishing
industry
participants). The Government responds that the Council's proposal
would have violated federal statutes outside of the MSA framework,
in contravention of 16 U.S.C. § 1853(a) (1) (C)'s requirement that
provisions of fishery management plans "shall [be] consistent with
. . any other applicable law[.]"
NMFS objected to the 100% observer coverage recommendation
because it would have obligated the agency to make future outlays
- 27 -
for observer coverage beyond what Congress has allocated and to
augment its budget by accepting fees from the fishing industry.
This,
the
Government
contends,
would
statutes: the Anti-Deficiency Act,
violate
31 U.S.C.
the
following
1341(a) (1), which
§
prohibits federal officers from making expenditures or authorizing
obligations
that
Miscellaneous
exceed
Receipts
Congressional
Statute,
31
appropriations;
U.S.C.
the
3302(b),
§
which
requires government officials to deposit money received on behalf
~f
the United States in the Treasury not the particular agency;
and
18
U.S.C.
§
209,
which prohibits
the
payment
of
federal
employees' salaries from non-governmental sources.
The Administrative
Record amply documents
about the cost-sharing proposal,
13598,
13375,
and
Plaintiffs
e.g.,
do
NMFS' s
concerns
AR Emails 14142,
not
directly
13187,
contest
the
Government's arguments based on the statutes named above.9
Instead,
about
Plaintiffs contend that the Government's concerns
unfunded
mandates
are
inapposite
because
the
Council
intended that the fishing industry would pay the entire cost of
100% observer coverage. However, the Administrative Record shows
9 Plaintiffs do note that the Government has engaged in "cost
sharing" programs with industry participants in other fisheries in
order to provide higher observer coverage levels. However, the
Government points out
that those programs were expressly
authorized by statute for particular fisheries only. See 16 U.S.C.
§
1862 (authorizing, under MSA § 313, a system of fees for
observers in North Pacific fisheries).
- 28 -
that the Council intended that industry participants would pay
$325 per day toward the cost of an observer, whereas the actual
cost for an observer can be more than double that amount. AR 11255,
11575, 13735, 14144.
For
these
reasons,
the
Court
concludes
that
NMFS' s
disapproval of the Council's 100% observer coverage proposal was
not arbitrary, capricious, or contrary to law. 10
2.
Standardized Bycatch Reporting Methodology
Observers placed onboard fishing vessels
. compliance
with
applicable
laws
and
to monitor their
regulations
are
generally
allocated in accordance with the Standardized Bycatch Reporting
Methodology
("SBRM")
Omnibus Amendment.
Plaintiffs contend that
because NMFS declined to adopt the Council's recommendation, the
level of observer coverage in the MSB will be so low as to violate
the MSA.
Plaintiffs'
that at that time,
contention relies,
in part,
upon the fact
the SBRM inadequately allocated observers to
the MSB fishery.
Our Court of Appeals has already found the SBRM to be unlawful
and has remanded it to NMFS for further consideration.
10
Oceana,
For the first time in their Reply, Plaintiffs note that, having
disapproved of the Council's observer coverage proposal, the
Secretary failed to make specific recommendations for improvement
as called for by 16 U.S.C. § 1854 (a) (3) (C). The Court need not
address this because an argument not raised in an opening brief is
forfeited. Fox v. Gov't of D.C., No. 14-7042, 2015 WL 4385290, at
*3 (D.C. Cir. July 17, 2015).
- 29 -
Inc. v. Locke, 670 F.3d 1238, 1243 (D.C. Cir. 2011).
Accordingly,
to the extent that Plaintiffs' contentions actually challenge the
methodology of the SBRM, the Court shall decline to consider them,
given the Court of Appeals'
remand to NMFS.
See Oceana,
831 F.
Supp. 2d at 114 ("No matter the grounds for [plaintiff's] present
challenge to the Multispecies FMP's standardized bycatch-reporting
methodology, this Court can provide no further relief because the
SBRM Amendment has already been remanded.").
However,
it would appear
that
Plaintiffs
are
not
without
remedy with respect to the validity of the SBRM. As Judge Contreras
stated in Oceana, "[t]o the extent Plaintiffs subsequently believe
the
standardized bycatch-reporting methodology
results
from
[]
remand
is
inadequate,
that
[they]
eventually
will
have
the
opportunity to challenge it at a future date." Id.
3.
Observer Coverage and Production of Reliable Data
Not all of Plaintiffs'
challenges to the level of observer
coverage in the fishery are based upon NMFS's denial of the 100%
coverage scheme or objections to the SBRM methodology which is no
longer
in
effect.
Plaintiffs
also
argue
that
the
elements
of
Amendment 14 that the Government did adopt are -- without the 100%
observer coverage -- insufficient to meet its obligations under
the MSA.
Plaintiffs contend that the MSA's National Standard 2, which
states that "[c]onservation and management measures shall be based
- 30 -
upon
§
the
best
scientific
185l(a) (2),
requires
information
NMFS
to
available,"
"deploy
16
sufficient
U.S.C.
observer
coverage to provide statistically reliable data," Pls.' Reply at
4 (citing Oceana, Inc. v. Evans, No. 04-08ll(ESH), 2005 WL 555416,
at *40 (D.D.C. 2005)); Oceana, 670 F. 3d at 1239. 11 While Plaintiffs
admit that "the MSA does not require specific observer coverage
levels," Pls.' Reply at 4, they argue that current observer levels
are insufficient to produce statistically reliable data.
Plaintiffs
misconstrue
National
Standard
National
2.
Standard 2 requires NMFS to base "[c]onservation and management
measures . . . upon the best scientific information available[.]"
16 U.S. C.
best
§
18 51 (a) (2)
scientific
data
(emphasis added) . "[NMFS must] utilize the
available,
not
possible." The Ocean Conservancy v.
147, 157
488
the
best
Gutierrez,
scientific
394
F.
data
Supp.
2d
(D.D.C. 2005) aff'd sub nom. Oceana, Inc. v. Gutierrez,
F.3d 1020
(D.C.
Cir.
Superior California v.
2007)
Norton,
(quoting Bldg.
247
F.3d 1241,
Indus.
1246
Ass'n of
(D.C.
Cir.
2001)).
Neither of the two cases from this circuit that Plaintiffs cite
actually support
their proposition that the MSA requires
sufficient observers to generate statically reliable data. The
sections of each case that Plaintiffs cite discuss the datacollection goals of particular rules promulgated by NMFS rather
than requirements of the MSA. See Oceana v. Evans, 2005 WL 555416,
at *40; Oceana, 670 F. 3d at 1239.
11
- 31 -
Section
1851(a) (2)
"'does
not
mandate
any
affirmative
obligation on [NMFS'] part' to collect new data." Massachusetts v.
Pritzker,
10
F.
Supp.
Commonwealth of Mass.
F.Supp.2d
74,
77
(D.
3d
208,
by Div.
Mass.
220
(D.
Mass.
2014)
of Marine Fisheries v.
1998)).
Indeed,
National
(quoting
Daley,
10
Standard
Guidelines acknowledge that NMFS might often have "insufficient
data" in fisheries and provide guidance on how to proceed.
e.g., 50 C.F.R.
§§
600.310 (e) (iv),
See,
(g) (2), (4) and (1) (1) . 12
Plaintiffs also contend that current observer coverage levels
violate
§
1853(a) (ll)'s
requirement
that
NMFS
"establish
a
standardized reporting methodology to assess the amount and type
of bycatch occurring in the fishery[.]" At its core, this argument
attacks the SBRM, which as noted above, is already on remand and
thus,
is beyond this Court's review. Oceana,
831 F.
Supp.
2d at
114.
Plaintiffs argue that "it' was arbitrary and capricious to
reject
the measures
that the
Council developed to provide
the
Secretary with reliable estimates of catch when it has a mandatory
duty to provide them under 16 U.S.C.
12
§
1853(a) (5) ." Pls. Mot. at
Plaintiffs rely on a slip opinion from the U.S. District Court
for the District of Alaska. See The Boat Company v. Pritzker, No.
12-cv-0250-HRH slip op. at 33 (D. Alaska, Aug. 6, 2014). That case
is inapposite because it construes a statute applicable only to
North Pacific fisheries. See 16 U.S.C. § 1862 (b) (1) (A) (requiring
the North Pacific Council to ensure plans and plan amendments are
reasonably calculated to "gather reliable data") .
- 32 -
29.
Section 1853 (a) (5)
merely requires that FMPs "specify the
pertinent data which shall be submitted to the Secretary .
including, but not limited to . . . catch by species in numbers of
fish or weight thereof[.]" Id. On its face§ 1853(a)(5) does not
give rise to any duty to collect additional data through increased
observer coverage.
Finally,
Plaintiffs
argue
that
significantly
without
increasing observer coverage, NMFS will be unable to "establish a
mechanism for specifying annual catch limits in the plan .
. at
a level such that overfishing does not occur in the fishery . . .
including measures to ensure accountability" as
required by 16
U.S.C. § 1853(a) (15).
However,
contemplate
regulations
the
implementing the MSA already
possibility
that
annual
catch
clearly
limits
and
accountability measures might have to be accepted on the basis of
limited data.
50
C.F.R.
§
600.310(g) (4)
("Some
fisheries
have
highly variable annual catches and lack reliable inseason [sic] or
annual data on which to base [accountability measures].
If there
are insufficient data upon which to compare catch to [annual catch
limits], either in season or on an annual basis,
[accountability
measures] could be based on comparisons of average catch to average
[annual catch limits]
over a
three-year moving average.");
also id.§ 600.310(g)(2).
- 33 -
see
In summary, the Government has reasonably concluded that the
Council's observer coverage proposal would violate applicable law,
and Plaintiffs have failed to show that NMFS is legally required
to
produce
more
abundant
data
by
way
of
increased
observer
coverage. Accordingly, the Court concludes that the Government has
not
been
arbitrary
and
capricious
in
rejecting
Plaintiffs'
challenge to Amendment 14's lack of additional observer coverage
must fail.
C.
13
Count III: The National Environmental Policy Act
Plaintiffs contend that the Government failed to adequately
consider the
environmental
impact
of failing to add the
river
herring and shad stocks to the fishery.
It has long been established that NEPA requires agencies to
"take a 'hard look' at the environmental consequences before taking
a major action." Baltimore Gas & Elec. Co., 462 U.S. at 97 (1983)
(internal
citations omitted) .
agencies
contemplating
Environmental
Impact
environmental
impacts
major
comparative form,
To comply with this
policy
Statements
of
the
proposals,
("EIS")
proposal
must
prepare
"present
that
and the
requirement,
the
alternatives
in
thus sharply defining the issues and providing
a clear basis for choice among options by the decisionmaker and
the public." 40 C.F.R.
§
1502.14; see also 42 U.S.C.
§
4332(C).
Again, the fact that SBRM is on remand limits the Court's
ability to address this issues.
13
- 34 -
The
EIS
must
be
"evaluated
identified and defined]
in
objectives;
light
of
[its
reasonably
an alternative is properly
excluded from consideration in an environmental impact statement
only if it would be reasonable for the agency to conclude that the
alternative does not 'bring about the ends of the federal action. '"
City of Alexandria, Va. V .. Slater, 198 F.3d 862,
867
(D.C. Cir.
1999).
Plaintiffs' principal objection to the Government's final EIS
is that NMFS should have included at least one policy alternative,
of the four it chose, that would have analyzed the effect of not
immediately
Fishery.
rejected
adding
river
herring
and
shad
stocks
to
the
MSB
They argue that without analysis or explanation, NMFS
the
consequences
possibility
of
Amendment 14."
including
of
giving
the
a
stocks
"hard
in
the
look
to
see
the
MSB
as
part
of
Pls.' Mot. at 43.
The Government argues
that
it had no. legal obligation to
consider the alternative of not immediately adding river herring
and shad to the MSB Fishery.
The four alternatives which were
chosen by NMFS simply cannot satisfy the Government's obligation
to consider the impacts of refusing to add river herring and shad
to the fishery, especially given the fact that the 2011 statutory
deadline was not being met.
-
35 -
Amendment 14 fails to take a hard look at the environmental
impacts of its composition of the fishery by failing to analyze a
reasonable range of alternatives.
Those alternatives should have
included the immediate addition of river herring and shad as stocks
with temporary conservation and management measures as proxies for
status
determination
criteria
and
other measures
necessary
to
prevent overfishing and conservation of the species.
NEPA requires an agency to explore and objectively evaluate
a reasonable range of alternatives and the associated impacts on
the environment.
Supp.2d at 71.
42 U.S.C.
§
4332 (C).
See also Flaherty, 850 F.
A key objective of Amendment 14 was to consider
adding river herring and shad to the MSB Fishery,
in order to
prevent
is
overfishing.
Given
that
objective,
it
hard
to
understand why the Government, which is statutorily obligated to
consider an adequate range of alternatives in the EIS,
failed to
include the alternative of adding river herring and shad to the
stocks.
Moreover,
it
is
striking
that
NMFS
never
provided
an
explanation of why it did not consider the alternative of adding
river herring and shad when such consideration would clearly have
brought about the "ends of the federal action."
In Flaherty, this Court emphasized that "[a] central function
of NEPA's requirements is for the agency to consider environmental
- 36 -
impacts '[b]efore approving a project,'" not after the damage is
done. 850 F.2d at 72 (emphasis added).
Instead of even considering
the environmental impact of not including river herring and shad
in the MSB Fishery, Defendants pushed the issue off to Amendment
15,
thereby delaying even further consideration of a reasonable
alternative which had long been sought by many members of the
"Agency
public.
determinations
about
EIS
requirements
are
supposed to be 'forward-looking,'" not action to simply postpone
consideration of relevant alternatives.
Foundation on Economic
Trends v. Heckler, 756 F.2d 143, 158 (D.C. Cir. 1985).
Consequently, the Court concludes that Final Rule 14 violates
NEPA
and
the
APA
by
failing
to
take
a
"hard
look"
at
the
environmental impacts of its definition of the fishery, by failing
to
analyze
the
reasonable
alternative
of
examining
the
environmental impact of not adding the river herring and shad to
the fishery, and by failing to consider the direct, indirect, and
cumulative impacts of its decision in the accompanying EIS.
CONCLUSION
In summary, the Court has concluded that as to Count 1 - the
failure
to
include
river
herring
and
shad
stocks
in
the
MSB
fishery, and as to Count 2 - monitoring and accountability measures
to prevent overfishing -- the Government has not violated either
the MSA or the APA for the reasons spelled out in Sections A and
- 37 -
B,
supra.
Policy Act
However,
-~
as to Count 3 -
the National Environmental
the Court concludes that the Government has failed
to comply with NEPA and the APA because it has not taken a "hard
look" at all of the ramifications from failing to consider the
impact of not immediately including river herring and shad in the
MSB fishery.
A separate Order accompanies this Memorandum Opinion.
Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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