KAHEA et al v. National Marine Fisheries Service et al
Filing
46
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 32 , AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT 29 . Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/27/2012. ~ Hearing on Motions held 4/2/2012; minutes of h earing: doc no. 43 ~ (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL NO. 11-00474 SOM-KSC
KAHEA and FOOD & WATER WATCH, )
)
INC.
)
)
Plaintiffs,
)
)
vs.
)
NATIONAL MARINE FISHERIES
)
SERVICE; MICHAEL D. TOSATTO; )
in his official capacity as
)
Regional Administrator of the )
)
National Marine Fisheries
Service; ERIC C. SCHWAAB, in )
)
his official capacity as
)
Assistant Administrator of
the National Marine Fisheries )
)
Service; and GARY LOCKE, in
)
his official capacity as
)
Secretary of Commerce,
)
)
Defendants.
_____________________________ )
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT,
AND DENYING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT, AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION.
Plaintiffs KAHEA and Food and Water, Inc., seek to
invalidate a one-year fishing permit issued by the National
Marine Fisheries Service (“NMFS”) to Kona Blue Water Farms, Inc.,
(“KBWF”).
See Complaint for Injunctive and Declaratory Relief
¶ 1, Aug. 2, 2011, ECF No. 1.
The permit authorizes KBWF to
“stock, culture and harvest” almaco jack fish using “CuPod gear”
in federal waters off the coast of the Big Island.
Administrative Record (“AR”) at 90.
The “CuPod” is a brass-link
mesh cage that, instead of being tethered to land or anything
stationary, is instead continuously towed behind a vessel,
remaining submerged at a predetermined depth during normal
operations.
AR at 17, 19.
The permit in issue authorized KBWF
to hold up to 2,000 almaco jack at one time in the CuPod, where
they were expected to grow.
AR at 91.
Plaintiffs describe the
KBWF project as a fish farm and characterize its operations as
“aquaculture.”
See Compl. ¶ 1, 5.
Defendants issued KBWF a Special Coral Reef Ecosystem
Fishing Permit, see 50 C.F.R. § 665.224, pursuant to its
regulating authority under the Magnuson-Stevens Fishery
Conservation and Management Act (“MSA”), 16 U.S.C. §§ 1801-1884.
Plaintiffs argue that, although Defendants may properly issue
such permits authorizing “fishing,” KBWF’s project invovles
aquaculture, which is not fishing under the MSA.
Plaintiffs also
argue that, by issuing KBWF a fishing permit, Defendants made a
de facto rule that aquaculture is fishing under the MSA, in
violation of the MSA and the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 551-559, 701-706.
Finally, Plaintiffs
assert that Defendants violated the National Environmental Policy
Act (“NEPA”), 42 U.S.C. § 4321-4347, by failing to prepare an
Environmental Impact Statement.
Plaintiffs and Defendants have filed cross-motions for
summary judgment.
The court denies Plaintiffs’ motion and grants
Defendants’ motion.
2
II.
STATUTORY FRAMEWORKS.
A.
The MSA.
The MSA, 16 U.S.C. §§ 1801 to 1883, was enacted, among
other reasons, “to conserve and manage the fishery resources
found off the coasts of the United States” and, in particular,
within the United States' exclusive economic zone.
1801(b)(1).
16 U.S.C. §
See generally Sea Hawk Seafood, Inc., v. Locke, 568
F.3d 757 (9th Cir. 2009); Or. Trollers Ass'n v. Gutierrez, 452
F.3d 1104, 1108 (9th Cir. 2006).
The MSA provides for the
establishment of eight Regional Fishery Management Councils,
16 U.S.C. § 1852(a), each made up of “individuals who, by reason
of their occupational or other experience, scientific expertise,
or training, are knowledgeable regarding conservation and
management, or the commercial or recreational harvest, of the
fishery resources of the geographical area concerned.”
§ 1852(b)(2)(A).
Id.
The Western Pacific Regional Council (the
“Council”) oversees Hawaii.
Id. § 1852(a)(1)(H)
Each Regional Council is required to prepare and submit
to the Secretary of Commerce a fishery management plan (“FMP”),
as well as any amendments to the FMP as “are necessary from time
to time.”
Id. § 1852(h)(1).
An FMP should contain various
information with respect to any fishery, including conservation
and management measures to be undertaken; a description of the
fishery, including the number of vessels to be allowed in the
3
fishery and the type and quantity of fishing gear to be used; and
the identification of essential fish habitats.
§ 1853(a)(1)-(15).
Id.
An FMP may require any fishing vessel to
obatin a permit authorizing its operation.
Id. § 1853(b)(1).
The FMP applicable to Hawaii is the Hawaii Archipelagic Fishery
Ecosystem Plan.
See Administrative Record (“AR”) at 2659-2944.
Congress delegated to the Secretary of Commerce the
overall authority to implement the MSA.
The Secretary acts
through the NMFS and the National Oceanic Atmospheric
Administration.
Sea Hawk, 568 F.3d at 759.
The Secretary is
also vested with the authority to approve, reject, or partially
approve an FMP and any amendments the FMP.
16 U.S.C. §
1854(a)(1)(B).
B.
NEPA.
NEPA is the “basic national charter for protection of
the environment.”
40 C.F.R. § 1500.1(a).
Congress enacted NEPA
to ensure that all federal agencies would factor environmental
considerations into decisionmaking.
To achieve this goal, NEPA
requires a federal agency to prepare an EIS for “major Federal
actions significantly affecting the quality of the human
environment.”
42 U.S.C. § 4332(2)(C).
“NEPA ensures that the
agency . . . will have available, and will carefully consider,
detailed information concerning significant environmental
impacts; it also guarantees that the relevant information will be
4
made available to the larger [public] audience.”
Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.
1998).
If, as here, an agency's regulations do not
categorically require or exclude the preparation of an EIS, the
agency must first prepare an Environmental Assessment (“EA”) to
determine whether the action will have a significant effect on
the environment.
40 C.F.R. § 1501.4.
An EA is less
comprehensive and less detailed than an EIS.
See Conner v.
Burford, 848 F.2d 1441, 1446 (9th Cir. 1988); 40 C.F.R. § 1508.9.
It is a document that: (1) provides sufficient evidence and
analysis for determining whether to prepare an EIS or to issue a
Finding of No Significant Impact (“FONSI”); (2) aids in an
agency's compliance with NEPA when no EIS is necessary; and
(3) facilitates preparation of an EIS when one is necessary.
40 C.F.R. § 1508.9(a).
See
If the EA establishes that the agency's
action “may have a significant effect upon the . . . environment,
an EIS must be prepared.”
Found. for N. Am. Wild Sheep v. United
States Dep't of Agric., 681 F.2d 1172, 1178 (9th Cir. 1982).
If
the EA indicates that the agency's action will not significantly
affect the quality of the human environment, the agency must
issue a FONSI.
See Blue Mountains, 161 F.3d at 1212.
5
III.
FACTUAL BACKGROUND.
KBWF applied for and was granted a Special Coral Reef
Ecosystem Fishing Permit (“SCREFP”) by the NMFS that authorized
KBWF to “demonstrate” the “Velella Concept” in federal waters.
AR at 90.
The Velella Concept cultures 2,000 almaco jack inside
a CuPod, which is a 132-cubic-meter cage.
AR at 19-20.
The fish cultured in the CuPod were to be obtained from
KBWF’s land–based hatchery and taken to the CuPod.
AR at 19-20.
Once at the project site, which was three nautical miles offshore, the CuPod was to be towed behind a sailing vessel in deep
waters (between 10,000 to 20,000 feet).
constantly moving.
AR at 20.
The CuPod was to be
Upon completing their growth cycle
inside the CuPod, the fish were to be removed and taken to land.
AR at 26.
KBWF submitted its permit application on November 5,
2010.
The NMFS proposed the issuance of a limited, one-year
permit so that KBWF could demonstrate the Velella Concept.
See
AR at 19.
As part of its review process, the NMFS prepared a
draft EA.
AR at 4450.
After receiving public comment and
approval by the Council, the NMFS submitted its final EA.
Based
on the EA, the NMFS determined that the KBWF project would not
have a significant impact on the quality of the human environment
and issued a FONSI.
See AR at 10.
6
On July 6, 2011, the SCREFP
was issued.
2012.
See AR at 90.
The permit was to expire on July 8,
Id.
Plaintiffs brought this action on August, 2, 2011,
challenging the issuance of the permit under the MSA, NEPA, and
the APA.
They assert that the NFMS lacked the authority to issue
the permit under the MSA (Claim One); that Defendants engaged in
de facto rulemaking in violation of the MSA and the APA (Claims
Two, Three, Four, and Six); and that Defendants violated NEPA by
failing to prepare an EIS (Claim Five).
The Complaint seeks a
court order declaring that the permit in issue is unlawful,
requiring Defendants to “suspend, rescind, or revoke” the permit,
and enjoining any further activity authorized by the permit.
On February 9, 2012, after the parties had filed
competing summary judgment motions, KBWF completed its project.
See Defs.’ Ex. C, ECF No. 38-1.
CuPod.
Id.
KBWF removed and dismantled the
Defendants say that no additional operations are
scheduled to be conducted under the permit.
Alvin Katekaru ¶ 2.
Id. at Decl. of
After being questioned by the court at the
hearing on these motions about whether KBWF, or any other
company, could resume operations under the existing permit, the
NMFS terminated the permit.
Decl. of Michael D. Tosatto, ¶ 2,
Attachment A, ECF No. 44.
7
IV.
LEGAL STANDARD.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
A moving party has both the initial burden of
production and the ultimate burden of persuasion on a motion for
summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court “the portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.
Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
“A fact is
material if it could affect the outcome of the suit under the
governing substantive law.”
Miller, 454 F.3d at 987.
When the
moving party bears the burden of proof at trial, that party must
satisfy its burden with respect to the motion for summary
judgment by coming forward with affirmative evidence that would
entitle it to a directed verdict if the evidence were
uncontroverted at trial.
Id. (quoting C.A.R. Transp. Brokerage
Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir.
2000)).
When the nonmoving party bears the burden of proof on
8
one or more issues at trial, the party moving for summary
judgment may satisfy its burden with respect to those issues by
pointing out to the court an absence of evidence from the
nonmoving party.
Miller, 454 F.3d at 987.
When the moving party meets its initial burden on a
summary judgment motion, “[t]he burden then shifts to the
nonmoving party to establish, beyond the pleadings, that there is
a genuine issue for trial.”
Id.
The court must not weigh the
evidence or determine the truth of a matter; it should only
determine whether there is a genuine issue for trial.
See Balint
v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).
On a
summary judgment motion, “the nonmoving party’s evidence is to be
believed, and all justifiable inferences are to be drawn in that
party’s favor.”
Miller, 454 F.3d at 988 (brackets omitted)
(quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
Summary judgment may also be appropriate when a mixed
question of fact and law involves undisputed underlying facts.
See EEOC v. UPS, 424 F.3d 1060, 1068 (9th Cir. 2005); Colacurcio
v. City of Kent, 163 F.3d 545, 549 (9th Cir. 1998).
V.
ANALYSIS.
A.
Mootness.
1.
NEPA Claim.
Defendants argue that Plaintiffs’ NEPA claim (Claim
Five) is moot because KBWF has completed its project.
9
Issues of
mootness can affect the justiciability of an action after a suit
is filed.
See Hill v. Blind Indus. & Servs. of Maryland, 179
F.3d 754, 757 (9th Cir. 1999) (“Mootness is grounds to dismiss an
action at any time, because there is no longer a case or
controversy for purposes of Article III”).
“[A] case is moot
when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.”
Cnty. of
L.A. v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v.
McCormack, 395 U.S. 486, 496 (1969)).
As the issue of mootness
goes to the court’s subject matter jurisdiction, it is typically
addressed in a motion brought pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure.
Here, the mootness issue is
affected by events occurring even after the present motions were
filed.
Addressing whether a NEPA claim was moot, the Ninth
Circuit has stated, “Where an activity sought to be enjoined has
already occurred, a court cannot undo what has already been
done.”
Friends of the Earth v. Bergland, 576 F.2d 1377, 1379
(9th Cir. 1978) (citing In re Combined Metals Reduction Co., 557
F.2d 179 (9th Cir. 1977)).
However, “[t]he burden of
demonstrating mootness is a heavy one.”
Feldman v. Bomar, 518
F.3d 637, 642 (9th Cir. 2008) (quoting Nw. Envtl. Def. Ctr. v.
Gordon (“Gordon”), 849 F.2d 1241, 1244 (9th Cir. 1988)).
Defendants argue that, with respect to Plaintiffs’ NEPA claim, no
10
live controversy now exists because KBWF has stopped operating
the CuPod.
They argue that this court cannot provide the relief
requested by Plaintiffs (prohibiting further action under the
permit) because no action is being taken under the permit and no
further action will be taken.
After the hearing on these
motions, the NMFS terminated the permit in issue.
The court
agrees with Defendants that Plaintiffs’ NEPA claim is moot.
In determining whether a request for an injunction is
moot, “the question is not whether the precise relief sought at
the time the application for an injunction was filed is still
available.”
Or. Natural Res. Council v. U.S. Bureau of Land
Management, 470 F.3d 818, 820-21 (9th Cir. 2006) (citations
omitted).
Rather, “[t]he question is whether there can be any
effective relief.”
Cir. 1988)).
Id. (quoting Gordon, 849 F.2d at 1244-45 (9th
Because the KBWF project is complete and the permit
has been terminated, the court cannot provide Plaintiffs with any
effective relief relevant to their NEPA claim.
In Feldman, 518 F.3d at 640, the Ninth Circuit held
that a NEPA claim was moot when the action the plaintiffs sought
to enjoin had already been completed, the plaintiffs alleged only
procedural violations, and the plaintiffs were not seeking
monetary compensation.
In issue was a program implemented by the
National Park Service (“NPS”) to eradicate the feral pig
population of Santa Cruz Island.
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Id.
The plaintiffs did not
dispute that eradication was appropriate given the pigs’ adverse
effect on the island’s ecological and archeological
infrastructure, but they sought nonlethal methods of addressing
the problem, such as sterilization of the pigs or removal of the
pigs from the island.
Id.
Asserting claims under NEPA and the
California Environmental Quality Act, the plaintiffs challenged
the process by which the NPS had determined that the pigs should
be killed, including its alleged failure to consider reasonable
alternatives and to analyze the cumulative effects of pig
eradication in the EIS that had been prepared for the project.
Id. at 641.
The district court granted summary judgment to the NPS.
Id.
The plaintiffs appealed, but, while their appeal was
pending, the remaining pigs were killed.
Id.
The Ninth Circuit
dismissed the case on mootness grounds, concluding that no
effective relief was available for the alleged procedural
violations in issue.
Id. at 643.
The court stated:
Appellants have never contested that the
presence of feral pigs on Santa Cruz Island
endangered important archeological and
ecological resources; rather, they simply
desired an alternative means of resolving the
problem. Now that the pigs have been killed,
Appellants have suffered whatever harm could
conceivably result from the challenged agency
action. . . . Because we cannot resurrect
the pigs, nor retroactively remedy any pain
that they might have felt from being shot,
nor take any other action to prevent or undo
the eradication at issue here, we lack the
power to grant any effective relief.
12
Id. (citations omitted).
The Ninth Circuit distinguished Feldman from previous
cases that had remained “live” even after the contested projects
had been completed.
In those cases, the Ninth Circuit noted, the
challenged activity caused continuing harm, so a court could
still provide relief by limiting future adverse effects of the
challenged act.
Id. at 642 (citing Or. Natural Res. Council, 470
F.3d at 821 (finding that an appropriate EA could lead to
effective post-harvest relief even though a challenged timberharvesting project had been completed); Neighbors of Cuddy
Mountain v. Alexander, 303 F.3d 1059, 1065–66 (9th Cir. 2002)
(“If warranted, [the district court] might order the Forest
Service to adjust future timber plans to compensate for this
allegedly unlawful one.”); Cantrell v. City of Long Beach, 241
F.3d 674, 678–79 (9th Cir. 2001) (effects of destruction of
historic buildings and trees could still be mitigated); Tyler v.
Cuomo, 236 F.3d 1124, 1137 (9th Cir. 2000) (a challenge to a
housing project that had already been built could still result in
certain modifications); West v. Sec'y of the Dep't of Transp.,
206 F.3d 920, 925 (9th Cir. 2000) (construction of a highway that
was already in use could still be challenged because the highway
could be ordered closed or taken down); Pyramid Lake Paiute Tribe
of Indians v. Hodel, 882 F.2d 364, 368 (9th Cir. 1989) (a
challenge to a completed governmental action affecting fish could
13
still lead to protection in future spawning seasons); Gordon, 849
F.2d at 1245 (same); and Columbia Basin Land Prot. Ass'n v.
Schlesinger, 643 F.2d 585, 591 n. 1 (9th Cir. 1981) (although a
power line had been constructed, the matter was not moot because
the line could still be removed)).
The plaintiffs in Feldman argued that, as in cases the
Ninth Circuit cited as involving continuing harm that could still
be remedied, relief could indeed still be ordered in their case.
Unpersuaded, the Ninth Circuit noted that the particular cases
Feldman sought to analogize its situation to had involved
challenges to actions that, apart from their primary import, also
had secondary effects that could be remedied even after the
primary harm had occurred.
518 F.3d at 643.
Thus, Neighbors of
Cuddy Mountain, 303 F.3d at 1066, pointed to by the plaintiffs in
Feldman, had involved a challenge to sales of timber that the
plaintiffs in that case had challenged.
Even after the sales had
occurred and the trees that had been removed for logs could not
be reinstated, the Ninth Circuit noted that a court could order
the defendants to mitigate resulting damage to, for example, bird
species that had been displaced when the trees were removed.
Similarly, in Gordon, the Ninth Circuit had reversed the
district court's ruling that a matter was moot.
The plaintiffs
in Gordon had challenged salmon fishing regulations applicable to
the 1986 fishing season.
Even though the season had ended and
14
fish harvested in 1986 under those regulations could not be
resurrected, the court said that damage caused by the 1986
regulations could be mitigated by allowing more fish to spawn in
1989.
849 F.2d at 1245.
The plaintiffs in Cantrell challenged as insufficient an
EIS relating to the development of a site that had been a naval
station.
Even after historic buildings and trees had been taken
down, the challenge was not moot, because the secondary damage
could still be mitigated.
The defendants could, for instance,
have been ordered to complete additional environmental review, or
to create new habitats for birds that had previously nested or
foraged in the affected areas.
241 F.3d at 678-79.
Feldman did not involve analogous secondary harm that
could be remedied.
Once the pigs were killed, relief was
unavailable.
The present case is analogous to Feldman in that
Plaintiffs do not allege any continuing harm resulting from the
issuance of the permit.
They identify no secondary harm that can
be mitigated by now requiring Defendants to prepare an EIS.
Although Plaintiffs point to potential environmental impacts that
were raised in comments to the draft EA, such as “potential
cultural impacts [and] impacts to marine mammals and other sea
life,” Compl. ¶ 79, they identify no actual harm resulting from
the KBWF project.
At this point, Plaintiffs are only
15
speculating.
Nor do Plaintiffs suggest any mitigating measures
that the court might take.
Plaintiffs seek to invalidate the
permit because the NMFS allegedly failed to comply with various
statutes in issuing the permit, not because KBWF’s project has
harmed or will harm the environment in any definable or
discernible way.
Now that the permit has been terminated, there
is no effective relief this court can order for an alleged NEPA
violation.
The only harm alleged is what Plaintiffs claim is the
NFMS’s foray outside its authority and alleged flouting of NEPA
procedures.
See Or. Natural Resources Council, 470 F.3d at 825
(Tashima, J., dissenting) (“It is important to remember that NEPA
is only a procedural statute, i.e., it ‘imposes procedural
requirements, but not substantive outcomes, on agency action.’”
(quoting Lands Council v. U.S. Forest Serv., 395 F.3d 1019, 1026
(9th Cir. 2004)).
The present case does not involve issues such as those
raised in Center for Food Safety v. Veneman, 364 F. Supp. 2d
1202, 1213 (D. Haw. 2005).
In that case, a judge in this
district found a NEPA claim not moot even though the permits in
issue authorizing field tests of genetically engineered crops had
expired.
Judge Ezra ruled that effective relief was still
available because he could order the defendants to study the
impact of the testing and could require remedial measures.
The plaintiffs in that case were seeking declaratory and
16
Id.
injunctive relief in connection with the alleged risks posed by
the field tests to public health, the environment, and the
economy.
Id. at 1206.
By contrast, Plaintiffs in this case seek only a
declaration that the permit is unlawful and an injunction
suspending, rescinding, or revoking the permit.
Compl. at 27-28.
The court recognizes that the Complaint also seeks “other relief
that the Court deems just and proper,” which may permit the court
to fashion alternative relief.
See Neighbors of Cuddy Mountain,
303 F.3d at 1066 (holding that a court could provide effective
relief in the form of relief that had not been expressly
requested because the complaint requested “such further relief as
may be necessary and appropriate to avoid further irreparable
harm”).
But the court does not see, and Plaintiffs have not
identified, any relief that could now be ordered to remedy the
alleged NEPA violation.
Plaintiffs point to no continuing harm
or harm that can be mitigated.
2.
Claim Five is thus moot.
MSA and APA Claims.
Given Defendants’ assertion that KBWF no longer
operates pursuant to the permit, the court asked the parties to
submit supplemental briefing regarding the justiciability of
Plaintiffs’ MSA and APA claims.
The court agrees with the
parties that those claims are not moot.
17
Plaintiffs’ MSA claim is not moot because it is
“capable of repetition yet evading review.”
KBWF has told
Defendants that it intends to seek another permit, and the NMFS
is requiring KBWF to submit a new SCREFP application to get a
future permit.
See Fed. Defs.’ Supp. Brief on Mootness, at 2,
Mar. 19, 2012, ECF No. 40.
With respect to the APA claim, Plaintiffs assert that
Defendants made a de facto rule that aquaculture constitutes a
form of fishing under the MSA.
This claim is not moot because,
assuming Defendants did in fact make a rule, a challenge to the
rule’s validity is live so long as the rule remains in effect.
In connection with finding a matter “capable of
repetition yet evading review,” the court must begin with
examining whether the injury suffered is “of a type inherently
limited in duration such that it is likely always to become moot
before federal court litigation is completed.”
Ctr. For
Biological Diversity v. Lohn, 511 F.3d 960, 965 (9th Cir. 2007)
(citing Native Vill. of Noatak v. Blatchford, 38 F.3d 1505,
1509-10 (9th Cir. 1994)).
“[A]n issue that ‘evades review’ is
one which, in its regular course, resolves itself without
allowing sufficient time for appellate review.”
Biodiversity
Legal Found. v. Badgley, 309 F.3d 1166, 1173-74 (9th Cir. 2002).
The Ninth Circuit has held that regulations in effect
for one year do not last long enough for judicial review.
18
Alaska
Ctr. for the Env't v. U.S. Forest Serv., 189 F.3d 851, 855 (9th
Cir. 1999); Greenpeace Action v. Franklin, 14 F.3d 1324, 1329-30
(9th Cir. 1993).
According to Defendants, if a new KBWF
application is approved, KBWF will be issued another one-year
permit.
Any challenge to the proposed permit will become ripe
only when the permit is actually issued.
See Malama Makua v.
Rumsfeld, 136 F. Supp. 2d 1155, 1161-62 (D. Haw. 2001)
(explaining that the APA authorizes judicial review of agency
action only when such action is final) (citing Bennet v. Spear,
520 U.S. 154, 177-78 (1997)).
A new KBWF one-year permit
therefore will evade review if deemed moot upon expiration.
Plaintiffs can, of course, seek a preliminary
injunction barring activity permitted under any newly issued
permit, and an injunction might issue before the passage of a
year.
This, however, does not take Plaintiffs’ claim out of the
“evading review” category.
Even if KBWF’s activities are
enjoined, the permit will expire before judicial review can be
completed, putting Plaintiffs in the position they are in now.
See Greenpeace Action, 14 F.3d at 1330 (explaining that “[n]o
injunction could have preserved this challenge to a short-term
[regulation]” because “[a]lthough the [activity in issue] could
have been enjoined, the expiration of the [regulation] could
not”).
19
The second “capable of repetition yet evading review”
requirement calls for “a reasonable expectation that the
plaintiff will be subjected to the same action again.”
C.F. ex
rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 983
(9th Cir. 2011) (quoting Doe v. Madison Sch. Dist. No. 321, 177
F.3d 789, 798 (9th Cir. 1999) (en banc))).
This requirement is
met here, as the NMFS’s decision to issue KBWF another permit
will again depend on a determination that KBWF’s activities
constitute fishing under the MSA.
B.
MSA Claim.
Having determined that certain claims are not moot, the
court turns to the merits of the “live” claims.
Plaintiffs argue
that Defendants’ issuance of the permit in issue was outside the
authority conferred by law.
The MSA authorizes the NMFS to issue
a SCREFP for fishing, but, Plaintiffs say, KBWF is engaging in
“aquaculture,” not “fishing” as defined by the MSA.
The court
disagrees.
The Administrative Procedure Act governs judicial
review of agency decisions under the MSA.
Alaska Trojan
Partnership v. Guitierrez, 425 F.3d 620, 627 (9th Cir. 2005).
This court may set aside Defendants' administrative decision
“only if it is arbitrary and capricious, an abuse of discretion,
or otherwise not in accordance with the law.”
See id. (citing
5 U.S.C. § 706(2)(A), and Wards Cove Packing Co. v. NMFS, 307
20
F.3d 1214, 1218 (9th Cir. 2002)).
Review under the arbitrary and
capricious standard must be “narrow,” but “searching and
careful.”
(1989).
Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378
The court considers whether there is a rational
connection between the facts found and the choices made by the
agency, and whether the agency committed a clear error of
judgment.
See Or. Natural Res. Council v. Allen, 476 F.3d 1031,
1036 (9th Cir. 2007).
This court must reject a construction of a
statute that is “‘contrary to clear congressional intent or that
frustrate[s] the policy that Congress sought to implement.’” Coyt
v. Holder, 593 F.3d 902, 905–06 (9th Cir. 2010) (quoting
Schneider v. Chertoff, 450 F.3d 944, 952 (9th Cir. 2006)); see
also Mercado–Zazueta v. Holder, 580 F.3d 1102, 1106 (9th Cir.
2009).
A court may not, however, substitute its own judgment for
that of the agency, or merely determine that it would have
decided an issue differently.
Marsh, 490 U.S. at 377.
Plaintiffs do not demonstrate that Defendants’ issuance
of KBWF’s permit was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.”
5 U.S.C. § 706(2)(A).
The NMFS issued the permit pursuant to
50 C.F.R. § 665.224, which expressly applies to Hawaii coral reef
ecosystem permits:
Any person of the United States fishing for,
taking or retaining Hawaii coral reef
ecosystem [management unit species (“MUS”)]
must have a special permit if they, or a
21
vessel which they operate, is used to fish
for any . . . [MUS].
As stated above, the question in this case is whether
Defendants properly concluded that what KBWF proposed to do was
“fishing,” as defined by the MSA.
The MSA defines “fishing”
broadly:
The term “fishing” means-(A) the catching, taking, or harvesting
of fish;
(B) the attempted catching, taking, or
harvesting of fish;
(C) any other activity which can
reasonably be expected to result in the
catching, taking, or harvesting of fish; or
(D) any operations at sea in support of,
or in preparation for, any activity described
in subparagraphs (A) through (C).
16 U.S.C. § 1802.
The NMFS determined that KBWF’s project fell
within this definition.
In particular, the NMFS concluded that
the project involved the “harvesting of fish.”
The Ninth Circuit has held that the “interpretation of
statutes and regulations by an agency charged with their
administration is entitled to due deference and should be
accepted unless demonstrably irrational or clearly contrary to
the plain meaning.”
Adams v. Bowen, 872 F.2d 926, 926 (9th Cir.
1989) (quoting Nevitt v. United States, 828 F.2d 1405, 1406-07
(9th Cir. 1987)).
Defendants’ interpretation of the word
“harvesting” was not irrational or contrary to plain meaning.
The MSA does not define “harvesting,” nor is there a regulation
22
defining the term.
The court is unaware of any legislative
history discussing the definition of “fishing” or the meaning of
“harvesting” in the MSA.
The court is also unaware of a
definition of “aquaculture” in the MSA.
Defendants look to the dictionary definition of
“harvest” as “the act or process of gathering in a crop.”
See
Memo in Supp. of Fed. Defs.’ Cross-Motion for Summ. J. 11, Feb.
7, 2012, ECF No. 32-1 (quoting Harvest Definition, MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary/harvest (last visited
Apr. 27, 2012)).
“Crop,” says Defendants, is defined as “a plant
or animal . . . that can be grown and harvested extensively for
profit or subsistence.”
Id. (quoting Crop Definition, MERRIAM-
WEBSTER, http://www.merriam-webster.com/dictionary/crop (last
visited Apr. 27, 2012)).
Defendants’ determination that KBWF’s
project falls within the term “harvesting” was reasonable.
The
project involves growing and gathering a “crop” of almaco jack to
sell for human consumption.
Defendants also contend that construing KBWF’s project
as “fishing” does not contravene congressional intent, even
though the project does not involve traditional fishing, as in
the casting of a line.
They point out that the definition of
“fishing” in the MSA also includes “any operations at sea in
support of, or in preparation for” fishing.
16 U.S.C.
§ 1802(16)(D); see Duckworth v. United States, 705 F. Supp. 2d
23
30, 45-48 (D.D.C. 2010) (ruling that the laying of lobster traps
without bait is “fishing” under the MSA).
The court is not persuaded by Plaintiffs’ argument that
the Western Pacific Regional Council’s definition of “harvest” in
the FMP is controlling here.
According to Plaintiffs, because
Congress did not define “harvesting” in the MSA, the authority to
define the term was delegated to the Regional Fishery Councils.
The Council, in the FMP, has defined “harvest” as “the catching
or taking of a marine organism or fishery MUS by any means.”
at 2676.
AR
Plaintiffs argue that characterizing KBWF’s project as
“harvesting” contradicts the definition of “harvest” in the FMP,
as it involves neither the catching nor taking of fish.
Adopting the definition of “harvest” in the FMP–-“the
catching and taking of fish”–-would render the word “harvesting”
in the MSA superfluous.
That is, the MSA’s definition of
“fishing” as “the catching, taking, or harvesting of fish” would
be equivalent to “the catching, taking, or the catching and
taking of fish.”
This court is required to “interpret statutes
as a whole, giving effect to each word and making every effort
not to interpret a provision in a manner that renders other
provisions of the same statute inconsistent, meaningless or
superfluous.”
United States v. Cabaccang, 332 F.3d 622, 627 (9th
Cir. 2003) (en banc) (quoting Boise Cascade Corp. v. EPA, 942
F.2d 1427, 1432 (9th Cir. 1991)).
24
The definition of “harvest” in
the FMP completely destroys any purpose for inclusion of the word
“harvesting” in the MSA.
The court recognizes that statutes may define terms by
listing words that are redundant, share similar definitions, or
are not mutually exclusive.
For example, the MSA defines a
“fishing vessel” as “any vessel, boat, ship, or other craft which
is normally used for, or of a type which is normally used for (A)
fishing.”
16 U.S.C. § 1802(18).
It is difficult to see the
distinction between a “boat” and a “craft,” and arguably the
terms are repetitious.
The court is not, however, saying that a
list of similar words is necessarily problematic.
Rather, the
court is concerned that Plaintiffs are arguing that the MSA must
be read as repeating the very same words within the definition of
“fishing.”
The equivalent in the definition of “fishing vessel”
would be any “vessel, boat, or boat.”
In such a definition, the
second “boat” would be ignored as superfluous.
That is, the
second “boat” would essentially be deleted from the definition.
Yet, at the hearing on the present motions, even while arguing
that the Council has the authority to narrow a statutory
definition, Plaintiffs conceded that it would be “problematic” if
an FMP deleted a word from a statutory definition.
Transcript of
Proceedings, April 2, 2012, at 10:9 - 11:19.
Nor is this court persuaded by Plaintiffs that
Defendants are bound by the Council’s statement in the FMP that
25
aquaculture is a “non-fishing activity.”
take that statement out of context.
AR at 2883.
Plaintiffs
The FMP refers to
aquaculture in a section addressing impacts that may adversely
affect a fish habitat.
Id.
Defendants contend that the Council
did not intend to define “aquaculture,” as it is not defined in
the definitions section of the FMP.
Nor, according to
Defendants, did the Council seek to affect whether or how
“aquaculture” could be regulated.
There is no indication that
the Council intended to say that everything listed as “nonfishing” in that section was categorically outside the MSA’s
broad definition of “fishing.”
Absent something indicating such
an intent, the court does not read the FMP in that expansive
manner.
The bottom line is that the NMFS’ characterization of
the KBWF project as “fishing” was not arbitrary, capricious, an
abuse of discretion, or otherwise contrary to law.
the court defers to the NMFS.
Accordingly,
Summary judgment is warranted in
favor of Defendants with respect to Claim One.
C.
De Facto Rulemaking.
Claims Two, Three, Four, and Six assert that Defendants
promulgated a de facto rule when they issued the SCREFP in issue.
The APA defines a rule as:
the whole or a part of an agency statement of
general or particular applicability and
future effect designed to implement,
interpret, or prescribe law or policy . . . .
26
The most common example of “rules” issued under the APA are
regulations promulgated by agencies.
See Am. Oceans Campaign v.
Daley, 183 F. Supp. 2d 1, 10-11 (D.D.C. 2000) (“Under the APA,
the terms “rule” and “regulation” are used interchangeably.”).
Plaintiffs argue that, by construing KBWF’s activities as
“fishing,” Defendants set forth a rule that aquaculture is
“fishing” for purposes of the MSA.
The court disagrees.
Distinguishing between agency action that results in
adjudication and agency action that results in a rule, the Ninth
Circuit has stated that “rulemaking affects the rights of broad
classes of unspecified individuals.”
Yesler Terrace Cmty.
Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994); see also
MacLean v. Dep’t of Homeland Sec., 543 F.3d 1145 (9th Cir. 2008)
(“An agency adjudication may require a notice and comment period
if it constitutes de facto rulemaking that ‘affects the rights of
broad classes of unspecified individuals.’” (quoting Yesler
Terrace Cmty, 37 F.3d at 448)).
The permit issued to KBWF did not create a rule that
aquaculture is “fishing.”
The NMFS issued one permit authorizing
a specific project to “stock, culture, and harvest” almaco jack
using the CuPod in a designated area.
not expressly authorize “aquaculture.”
AR at 90.
The permit does
Even if KBWF’s activities
do constitute aquaculture, the issuance of the permit does not
mean that every application the NMFS receives requesting a permit
27
to conduct aquaculture will be granted so long as the application
meets other permitting requirements.
If the NMFS receives a
SCREFP application seeking to conduct aquaculture, the NMFS will
have to look at the specific activities proposed and determine
whether those actions involve “the catching, taking, or
harvesting of fish.”
16 U.S.C. § 1802(16).
Calling an activity
“aquaculture” will not be enough.
Plaintiffs’ analogy to American Oceans Campaign v.
Daley, 183 F. Supp. 2d at 10-11, is unpersuasive.
In American
Oceans, the plaintiffs challenged amendments to an FMP.
The
United States District Court for the District of Columbia treated
the amendments like regulations in part because they applied
generally to many fisheries and had future effect.
Id. at 11.
The single-use permit issued in this case is not akin to such
amendments, which apply to all individuals and organizations
within an FMP’s geographic area.
There is no indication that
KBWF’s permit applies to any other fishery or that it has any
future effect.
Summary judgment is therefore warranted in favor
of Defendants with respect to Claims Two, Three, Four, and Six.
VI.
CONCLUSION.
Defendants’ summary judgment motion is granted, and
Plaintiffs’ summary judgment motion is denied.
28
The Clerk of
Court is directed to enter judgment in favor of Defendants and to
close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 27, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
KAHEA et al. v. National Marine Fisheries Service, et al.; Civil No. 11-00474 SOM/KSC;
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT.
29
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