Conservation Council for Hawaii et al v. National Marine Fisheries Service et al
Filing
73
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND FOR VACATUR re 47 - Signed by JUDGE LESLIE E. KOBAYASHI on 12/23/2015. "On the basis of the foregoing, Plaintiffs' Motion f or Summary Judgment and for Vacatur, filed July 20, 2015, is HEREBY GRANTED IN PART AND DENIED IN PART. This Court GRANTS the Motion as to the preliminary issues of standing and justiciability, but DENIES the Motion on the merits of Plaintiffs' claims." (emt, )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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CONSERVATION COUNCIL FOR
HAWAII, CENTER FOR BIOLOGICAL
DIVERSITY, and TURTLE ISLAND
RESTORATION NETWORK,
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
NATIONAL MARINE FISHERIES
)
SERVICE, UNITED STATES
)
DEPARTMENT OF COMMERCE, and
PENNY PRITZKER, SECRETARY OF )
)
COMMERCE,
)
)
Defendants.
_____________________________ )
CIVIL NO. 14-00528 LEK-RLP
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND FOR VACATUR
Before the Court is Plaintiffs Conservation Council for
Hawaii, Center for Biological Diversity, and Turtle Island
Restoration Network’s (collectively “Plaintiffs”) Motion for
Summary Judgment and for Vacatur (“Motion”), filed on July 20,
2015.
[Dkt. no. 47.]
On August 20, 2015, Intervenor-Defendant
Hawaii Longline Association (“HLA”) filed its memorandum in
opposition (“HLA Opposition”), and Defendants National Marine
Fisheries Service (“NMFS”), United States Department of Commerce,
and Penny Pritzker, Secretary of Commerce (collectively “Federal
Defendants”) filed their memorandum in opposition (“Federal
Defendants Opposition”).1
[Dkt. nos. 50, 52.]
their reply on September 3, 2015.
Plaintiffs filed
[Dkt. no. 57.]
This matter came on for hearing on September 25, 2015,
and, later that day, this Court issued an entering order
directing the parties to file additional memoranda.
64.]
[Dkt. no.
HLA and the Federal Defendants filed their respective
memoranda on October 9, 2015.
[Dkt. nos. 66, 68.]
also filed their memorandum on October 9, 2015.
Plaintiffs
[Dkt. no. 69.]
After careful consideration of the Motion, supporting and
opposing memoranda, the arguments of counsel, and the relevant
legal authority, Plaintiffs’ Motion is HEREBY GRANTED IN PART AND
DENIED IN PART.
For the reasons set forth below, this Court
GRANTS Plaintiffs’ Motion insofar as this Court FINDS that
Plaintiffs have standing to pursue this action and CONCLUDES that
their claims are justiciable, but this Court DENIES Plaintiffs’
Motion in all other respects.
BACKGROUND
Plaintiffs filed this action on November 20, 2014.
Plaintiffs filed their First Amended Complaint for Declaratory
and Injunctive Relief (“Amended Complaint”) on January 15, 2015.
[Dkt. no. 18.]
They bring this case pursuant to, inter alia, the
Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-06, and
1
This Court will refer to the Federal Defendants and HLA
collectively as “Defendants.”
2
the Magnuson-Stevens Fishery Conservation and Management Act
(“Magnuson-Stevens Act”), 16 U.S.C. § 1855(f).
[Id. at ¶ 6.]
This case concerns the limits on fishing and catching of bigeye
tuna in the Western and Central Pacific Ocean (“WCPO”).
The
parties agree that it “is an important food fish and is
particularly prized for sushi.
In Hawai`i, it is one of two
species known as `ahi; the other is yellowfin tuna.”
[Id. at
¶ 39; Federal Defs.’ Answer to Amended Complaint (“Federal Defs.’
Answer”), filed 2/2/15 (dkt. no. 21), at ¶ 39.]
The Federal
Defendants acknowledge that, “in 2004, NMFS determined that
overfishing is occurring Pacific-Wide on bigeye tuna, but that
the stock is not overfished.”
[Federal Defs.’ Answer at ¶ 40.]
In the instant case,
Plaintiffs seek to set aside (1) NMFS’s final rule
implementing a management framework for specifying
catch and effort limits and accountability
measures for pelagic fisheries in the U.S. Pacific
territories of American Samoa, Guam, and the
Commonwealth of the Northern Marina Islands;
(2) NMFS’s associated final specifications
purporting to establish a separate catch limit of
2,000 metric tons of long-line caught bigeye tuna
for each of the three territories; and (3) NMFS’s
authorization for each territory to allocate up to
1,000 metric tons of that limit to eligible U.S.
longline fishing vessels. See 79 Fed. Reg. 64,097
(Oct. 28, 2014) . . . .
[Amended Complaint at ¶ 1.]
The contested rule is NMFS, National
Oceanic and Atmospheric Administration (“NOAA”), and Department
of Commerce’s Final rule and final specifications regarding
Western Pacific Pelagic Fisheries; U.S. Territorial Catch and
3
Fishing Efforts Limits.
This Court will refer to it as the
“Quota Shifting Rule.”2
The legal landscape of the instant dispute begins with
the international Convention on the Conservation and Management
of Highly Migratory Fish Stocks in the Western and Central
Pacific Ocean (“Convention”).
I.
The Convention
The United States Senate consented to the ratification
of the Convention in 2004.3
S. Exec. Rep. No. 109-08, at 2, 6.
The Senate’s report acknowledged that legislation was necessary
to implement the Convention.
Id. at 5.
The ratification
occurred in 2007, [Amended Complaint at ¶ 29; Federal Defs.’
Answer at ¶ 29,] when the United States deposited the instrument
of ratification and became a party to the Convention thirty days
later.
Pub. L. No. 109-479, 120 Stat. 3575 (Jan. 12, 2007).
2
Plaintiffs utilize the name “Quota Shifting Rule” in their
pleadings and the instant Motion. See, e.g., Amended Complaint
at ¶ 1; Motion at 2. However, at the hearing on the Motion, they
argued that the name is misleading because it incorrectly implies
that there is an entitlement to catch a certain amount of bigeye
tuna. Plaintiffs argued that there are no quotas at issue in
this case, only catch limits. This Court notes that one of the
definitions of the word “quota” is: “[a]n official limit on the
number or amount of something that is allowed or required over a
given period[.]” Quota, Black’s Law Dictionary (10th ed. 2014)
(emphasis added). For the sake of consistency with the key
documents filed in this case, this Court will also use the name
“Quota Shifting Rule.”
3
The Convention is also referred to as the “WCPFC
Convention” and the “Western and Central Pacific Convention.”
See, e.g., 16 U.S.C. § 6901(12).
4
The objective of the Convention is “to ensure, through
effective management, the long-term conservation and sustainable
use of highly migratory fish stocks in the western and central
Pacific Ocean in accordance with” the “United Nations Convention
on the Law of the Sea of 10 December 1982” (“1982 Convention”)
and the “Agreement for the Implementation of the Provisions of
the United Nations Convention on the Law of the Sea of 10
December 1982 relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks”
(“Agreement”).
[Henkin Decl., Exh. 4 (Convention) at art. 2 &
art. 1, §§ a-b.]
The Convention established the Commission for the
Conservation and Management of Highly Migratory Fish Stocks in
the Western and Central Pacific Ocean (“Commission” or “WCPFC”).
[Id. at art. 1, § c & art. 9 (Establishment of the Commission).]
As a “Contracting Party” to the Convention, the United States is
a member of the Commission.
[Id. at art. 34, §§ 1, 4.]
American
Samoa, Guam, and the Northern Mariana Island (“CNMI”) are among
the territories that are allowed to participate in the Commission
(“Participating Territories” or “PTs”).
[Id. at art. 43.]
The
Convention’s area of application, i.e. “the area of competence of
the Commission” (“Convention Area”), is defined in Article 3,
section 1.
5
The Convention requires members of the Commission to,
inter alia: “adopt measures to ensure long-term sustainability of
highly migratory fish stocks in the Convention Area and promote
the objective of their optimum utilization”; [id. at art. 5,
§ a;] and “promptly implement the provisions of this Convention
and any conservation, management and other measures or matters
which my be agreed pursuant to this Convention from time to time
and shall operate in furthering the objective of this Convention”
[id. at art. 23, § 1].
The Commission’s functions include, inter alia:
(a) determine the total allowable catch or
total level of fishing effort within the
Convention Area for such highly migratory fish
stocks as the Commission may decide and adopt such
other conservation and management measures
[(“CMMs”)] and recommendations as may be necessary
to ensure the long-term sustainability of such
stocks; [and]
. . . .
(c) adopt, where necessary, conservation and
management measures and recommendations for nontarget species and species dependent on or
associated with the target stocks, with a view to
maintaining or restoring populations of such
species above levels at which their reproduction
may become seriously threatened[.]
[Id. at art. 10, § 1.]
The Department of Commerce has stated
that, “[a]s a Contracting Party to the Convention and a Member of
the [Commission], the United States is obligated to implement the
decisions of the [Commission].”
77 Fed. Reg. 51709, 51710
(Aug. 27, 2012).
6
II.
Relevant CMMs
A.
CMM 2005-01
The Commission’s CMM 2005-01 addressed bigeye and
yellowfin tuna.
[Pltfs.’ Concise Statement of Undisputed
Material Facts (“Pltfs.’ CSOF”), filed 7/20/15 (dkt. no. 48),
Declaration of David L. Henkin (“Henkin Declaration”), Exh. 8
(CMM 2005-01).]
It provides that: “Through the adoption of
necessary measures, the total level of fishing effort for bigeye
and yellowfin tuna in the Convention Area shall not be increased
beyond current levels.”
[Id. at ¶ 1 (footnote omitted).]
The
United States’s bigeye tuna catch limit for the three years after
the adoption of CMM 2005-01 was set at its 2004 catch level, [id.
at ¶ 17 & n.2,] which was 4,181 metric tons (“mt”).
[HLA’s
Concise Statement in Opposition to Pltfs.’ Concise Statement of
Material Facts (“HLA CSOF”), filed 8/20/15 (dkt. no. 51), Decl.
of Ryan P. Steen (“Steen Decl.”), Exh. 3 (CMM 2008-01) at 41
(Attachment F (table of “Baseline Longline Bigeye Tuna Catches,
by Flag”)).]
2.
CMM 2008-01
The Commission’s CMM 2008-01 recognized that prior CMMs
that “were developed to mitigate the overfishing of bigeye and
yellowfin tuna and to limit the growth of fishing capacity in
the” WCPO “have been unsuccessful in either restricting the
apparent growth of fishing capacity or in reducing the fishing
7
mortality of bigeye or juvenile yellowfin tuna.”
[Id. at 1.]
The objectives of CMM 2008-01 include:
-Ensure through the implementation of compatible
measures for the high seas and [exclusive
economic zones (“EEZs”)] that bigeye and
yellowfin tuna stocks are maintained at
levels capable of producing their maximum
sustainable yield; . . . [and]
-Achieve, through the implementation of a package
of measures, over a three-year period
commencing in 2009, a minimum of 30%
reduction in bigeye tuna fishing mortality
from the annual average during the period
2001-2004 or 2004[.]
[Id. at ¶ 1.]
Thus, “[t]he total catch of bigeye tuna by
longline fishing gear [was to] be subject to a phased reduction
such that by 1 January 2012 the longline catch of bigeye tuna
[would be] 70% of the average annual catch” in 2004 for the
United States, China, and Indonesia.
[Id. at 7, ¶ 31 & n.3.]
However, because the United States’s catch in the WCPO was less
than 5,000 mt in 2004, it was only required to implement a ten
percent reduction in 2009, 2010, and 2011.
& 41 (Attachment F).]
[Id. at 8, ¶¶ 33, 35
Its limit for each of those years was
3,763 mt, and the limit stayed the same in 2012.
Reg. 51709, 51711 (Aug. 27, 2012).
See 77 Fed.
The limit did not apply to
American Samoa, Guam, and the CNMI (collectively, “U.S. PTs”)
because they were among the “participating territories that
caught less than 2,000 tonnes in 2004.”
(CMM 2008-01) at 8, ¶ 32.]
[Steen Decl., Exh. 3
The limits for those PTs in 2009
8
through 2011 were either 2,000 mt or no limit, as long they were
“undertaking responsible development of their domestic
fisheries.”
[Id. at 8, ¶¶ 32, 34.]
The United States reached its catch limit before the
end of the year in 2009 and 2010, resulting in the closure of the
longline fishery in Hawai`i, i.e. “NMFS prohibited retention of
bigeye tuna in the WCPO.”
[Steen Decl., Exh. 1 (Amendment 7
Fishery Ecosystem Plan for Pelagic Fisheries of the Western
Pacific Region, etc., Including an Environmental Assessment and
Regulatory Impact Review, dated 3/27/14 (“Amendment 7 EA”)) at
14.]
In 2011, after NMFS forecasted that the limit would be
reached in late-November,
under the authority provided in Section 113(a),[4]
4
“Section 113” refers to § 113 of the Consolidated and
Further Continuing Appropriations Act, 2012. Public Law No. 11255, 125 Stat. 552 (Nov. 18, 2011). Section 113 was to remain in
effect until no later than December 31, 2012. Section 113(c).
Congress later extended Section 113 through December 31, 2013.
Consolidated and Further Continuing Appropriations, 2013,
Division B, Title I (Department of Commerce), § 110.
Section 113(a) sates:
The U.S. Participating Territories of the
Commission for the Conservation and Management of
Highly Migratory Fish Stocks in the Western and
Central Pacific Ocean (“Commission”) are each
authorized to use, assign, allocate, and manage
catch limits of highly migratory fish stocks, or
fishing effort limits, agreed to by the Commission
through arrangement with U.S. vessels with permits
issued under the Pelagics Fishery Management Plan
of the Western Pacific Region. Vessels under such
(continued...)
9
the American Samoa government entered into a
two-year fishing agreement with U.S. vessels in
the Hawaii Longline Association (HLA), which
include nearly all vessels operating in the Hawaii
longline fishery. Consistent with Section 113(a),
NMFS attributed 628 mt of bigeye tuna caught by
HLA vessels under the agreement in 2011 to
American Samoa.
[Id.]
A similar situation arose in 2012, and NMFS attributed
771 mt of bigeye tuna catch to American Samoa.
was a similar agreement with the CNMI.
[Id.]
In 2013, there
501 mt of bigeye
tuna caught by Hawai`i longline vessels was attributed to the
CNMI.
Quota Shifting Rule, 79 Fed. Reg. at 64099.
This Court
will refer to this type of agreements as “specified fishing
agreements.”
4
(...continued)
arrangements are integral to the domestic
fisheries of the U.S. Participating Territories
provided that such arrangements shall impose no
requirements regarding where such vessels must
fish or land their catch and shall be funded by
deposits to the Western Pacific Sustainable
Fisheries Fund in support of fisheries development
projects identified in a Territory’s Marine
Conservation Plan and adopted pursuant to section
204 of the Magnuson-Stevens Fishery Conservation
and Management Act (16 U.S.C. 1824). The
Secretary of Commerce shall attribute catches made
by vessels operating under such arrangements to
the U.S. Participating Territories for the
purposes of annual reporting to the Commission.
10
3.
CMM 2013-01
The Commission’s CMM 2013-015 again recognized that
prior CMMs “have been unsuccessful in either restricting the
apparent growth of fishing capacity or in reducing the fishing
mortality of bigeye or juvenile yellowfin tuna.”
Exh. 2 (CMM 2013-01) at 1.]
[Steen Decl.,
Paragraph 40 of CMM 2013-01 states:
“The catch limits in 2014 and thereafter for bigeye tuna shall be
as specified in Attachment F.
Any overage of the catch limit by
a CCM shall be deducted from the catch limit for the following
year for that CCM.”6
[Id. at 10.]
Attachment F, titled “Bigeye
Longline Catch Limits by Flag,” sets the following catch limits
for the United States: 2014 - 3,763 mt; 2015 - 3,554 mt; 2016 3,554 mt; and 2017 - 3,345 mt.
[Id. at 21.]
CMM 2013-01 states:
“Paragraph 40 does not apply to members that caught less than
2,000 tonnes in 2004.
Each member that caught less than 2,000
tonnes of bigeye in 2004 shall ensure that their catch does not
exceed 2,000 tonnes in each of the next 4 years (2014, 2015, 2016
and 2017).”
[Id. at 10, ¶ 41.]
It states that “opportunities
for non-members will be decided by the Commission on a case by
5
The Commission adopted CMM 2013-01 during its Tenth
Regular Session, which occurred December 2 to 6, 2013. [Steen
Decl., Exh. 2 (CMM 2013-01) at i.]
6
“CCM” refers to a Commission member, cooperating nonmember, or participating territory. See, e.g., Henkin Decl.,
Exh. 8 (CMM 2005-01) at 2.
11
case basis.”
[Id.]
CMM 2013-01 does not address the 2014-2017
bigeye tuna catch limits for PTs.
For purposes of, inter alia, paragraph 40, “attribution
of catch and effort shall be to the flag State, except that
catches and effort of vessels notified as chartered under
CMM 2011-05 shall be attributed to the chartering Member or
Participating Territories.”
[Id. at 3, ¶ 5.]
However, CMM 2013-
01 also states: “Unless otherwise stated, nothing in this Measure
shall prejudice the rights and obligations of those small island
developing State Members and Participating Territories in the
Convention Area seeking to develop their domestic fisheries.”
[Id. at 4, ¶ 7.]
CMM 2013-01 was later replaced by CMM 2014-01.
[Reply,
Suppl. Decl. of David L. Henkin (“Henkin Reply Decl.”), Exh. 42
(CMM 2014-01) at 14, ¶ 62.7]
limits for the United States.
CMM 2014-01 has the same catch
[Id. at 22 (Attachment F).]
The
parties’ arguments are based on CMM 2013-01, because it was the
operative measure when NMFS promulgated the Quota Shifting Rule.
However, the Court notes that the relevant provisions of
CMM 2014-01 appear to be substantively identical to the relevant
provisions of CMM 2013-01.
7
Exhibit 42 is not a complete version of CMM 2014-01. It
is missing pages 15 through 22, which are presumably Attachments
A through E. See Henkin Reply Decl., Exh. 42 at 22 (Attachment
F).
12
III. Implementation Act
In 2007, Congress passed the Western and Central
Pacific Fisheries Convention Implementation Act (“Implementation
Act”).
Pub. L. 109-479, Title V, § 501, 120 Stat. 3656.
codified at 16 U.S.C. § 6901, et seq.
It is
16 U.S.C. § 6904 governs
the Secretary of Commerce’s (“Secretary”) rule-making authority.
It states:
(a) Promulgation of regulations
The Secretary, in consultation with the Secretary
of State and, with respect to enforcement
measures, the Secretary of the Department in which
the Coast Guard is operating, is authorized to
promulgate such regulations as may be necessary to
carry out the United States international
obligations under the WCPFC Convention and this
chapter, including recommendations and decisions
adopted by the Commission. In cases where the
Secretary has discretion in the implementation of
one or more measures adopted by the Commission
that would govern fisheries under the authority of
a Regional Fishery Management Council, the
Secretary may, to the extent practicable within
the implementation schedule of the WCPFC
Convention and any recommendations and decisions
adopted by the Commission, promulgate such
regulations in accordance with the procedures
established by the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1801 et
seq.).
(b) Additions to fishery regimes and regulations
The Secretary may promulgate regulations
applicable to all vessels and persons subject to
the jurisdiction of the United States, including
United States flag vessels wherever they may be
operating, on such date as the Secretary shall
prescribe.
The parties agree that “[t]he authority to promulgate regulations
13
pursuant to the Implementation Act has been delegated to NMFS.”
[Amended Complaint at ¶ 34; Federal Defs.’ Answer at ¶ 34
(admitting allegations in Plaintiffs’ paragraph 34).]
The Enforcement section of the Implementation Act
states, in pertinent part:
The Secretary shall prevent any person from
violating this chapter in the same manner, by the
same means, and with the same jurisdiction,
powers, and duties as though all applicable terms
and provisions of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1857)
were incorporated into and made a part of this
chapter. Any person that violates any provision
of this chapter is subject to the penalties and
entitled to the privileges and immunities provided
in the Magnuson-Stevens Fishery Conservation and
Management Act [16 U.S.C.A. 1801 et seq.] in the
same manner, by the same means, and with the same
jurisdiction, power, and duties as though all
applicable terms and provisions of that Act were
incorporated into and made a part of this chapter.
16 U.S.C. § 6905(c).
Because “all applicable terms and
provisions” of the Magnuson-Stevens Act are effectively
incorporated into the Implementation Act when addressing
violations of the Implementation Act, this Court concludes that
regulations promulgated pursuant to the Implementation Act are
subject to judicial review in the manner described in the
Magnuson-Stevens Act.
IV.
Magnuson-Stevens Act
The Ninth Circuit has stated:
The Magnuson–Stevens Fishery Conservation and
Management Act (“Magnuson-Stevens Act”), 16 U.S.C.
§§ 1801–1884, “was enacted to establish a
14
federal-regional partnership to manage fishery
resources.” Nat’l Res. Def. Council, Inc. v.
Daley, 209 F.3d 747, 749 (D.C. Cir. 2000). Under
the Magnuson-Stevens Act, the federal government
exercises “sovereign rights and exclusive fishery
management authority over all fish, and all
Continental Shelf fishery resources, within the
exclusive economic zone” (“EEZ”), 16 U.S.C.
§ 1811(a), which extends from the seaward boundary
of each coastal state to 200 miles offshore, id.
§ 1802(11); City of Charleston v. A Fisherman’s
Best, Inc., 310 F.3d 155, 160 (4th Cir. 2002).
The Magnuson-Stevens Act expressly preserves the
jurisdiction of the states over fishery management
within their boundaries. See 16 U.S.C.
§ 1856(a)(1).
To manage fishing in the EEZ, the MagnusonStevens Act calls for the creation of regional
Fishery Management Councils (“FMCs”), composed of
state and federal officials and experts appointed
by the Secretary of the National Marine Fisheries
Service (“NMFS”). 16 U.S.C. § 1852(b)(1)-(2).
With the cooperation of “the States, the fishing
industry, consumer and environmental
organizations, and other interested persons,” id.
§ 1801(b)(5), the NMFS and FMCs develop and
promulgate Fishery Management Plans (“FMPs”) to
“achieve and maintain, on a continuing basis, the
optimum yield from each fishery,” id.
§ 1801(b)(4). In the Magnuson-Stevens Act,
“optimum yield” means the amount of fish that
“will provide the greatest overall benefit to the
Nation, particularly with respect to food
production and recreational opportunities, and
taking into account the protection of marine
ecosystems.” Id. § 1802(33); see also 50 C.F.R.
§ 600.310(e)(3).
Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1139-40
(9th Cir. 2015) (footnotes omitted).
The regional council for
Hawai`i, American Samoa, Guam, and the CNMI is the Western
Pacific Fishery Management Council (“WESPAC” or “the Council”).
16 U.S.C. § 1852(a)(1)(H).
15
The FMPs and FMP amendments that the regional councils
prepare must be reviewed and approved by NMFS, and must comply
with the requirements of 16 U.S.C. § 1853(a) and applicable laws.
See 16 U.S.C. § 1854(a)(1)-(3).
In addition, regional councils
can propose regulations or modifications to regulations that are
necessary to implement an FMP or an FMP amendment.
§ 1853(c).
Any FMP or regulation implementing an FMP pursuant to the
Magnuson-Stevens Act must be consistent with ten “national
standards for fishery conservation and management.”
16 U.S.C.
§ 1851(a).
Regulations promulgated pursuant to the MagnusonStevens Act are subject to judicial review under certain
provisions of the APA.
16 U.S.C. § 1855(f).
Section
1855(f)(1)(B) states that “the appropriate court shall only set
aside any such regulation or action on a ground specified in
section 706(2)(A), (B), (C), or (D) of” the APA.
5 U.S.C. § 706
is quoted infra.
V.
Quota Shifting Rule
On December 23, 2013, pursuant to Amendment 113, WESPAC
transmitted Amendment 7 to the Secretary, who approved it on
March 28, 2014, after Amendment 113 had lapsed.
The Quota
Shifting Rule, published on October 28, 2014, “implement[s]
conservation and management measures described in Amendment 7.”
79 Fed. Reg. at 64098.
It authorizes “territories to enter into
16
specified fishing agreements with U.S. fishing vessels permitted
under the FEP [(Fishery Ecosystem Plan)], and to allocate to
those vessels a specified portion of the territory’s catch or
fishing effort limit, as determined by NMFS and” WESPAC.
Id.
Further, it notes that:
NMFS is using the framework process to specify a
longline bigeye tuna catch limit of 2,000 mt for
each U.S. participating territory. Additionally,
NMFS specifies that each territory may allocate up
to 1,000 mt of that limit to U.S. longline fishing
vessels based in other U.S. participating
territories or in Hawaii, and identified in a
specified fishing agreement. NMFS will monitor
catches of longline-caught bigeye tuna, including
catches made under specified fishing agreements,
and restrict catches, as appropriate, using the
accountability measures described in this final
rule. The longline bigeye tuna catch limit
specifications are effective for the 2014 fishing
year, which began on January 1, 2014.
Id. (emphasis added).
The Amended Complaint alleges that the Quota Shifting
Rule: violates the Implementation Act and the APA (“Count I”);
and violates the Magnuson-Stevens Act and the APA (“Count II”).
Plaintiffs seek the following relief: a declaratory judgment
concerning the alleged violations; an order vacating and setting
aside the Quota Shifting Rule; any appropriate injunctive relief;
reasonable attorneys’ fees and costs; and any other appropriate
relief.
Plaintiffs argue that, because the United States agreed
to abide by the catch limits established pursuant to the
17
Convention, the Magnuson-Stevens Act and the Implementation Act
require NMFS to implement regulations that enforce the catch
limits.
According to Plaintiffs, the Quota Shifting Rule
violates the applicable CMMs, and therefore: 1) NMFS exceeded its
authority under the Magnuson-Stevens Act and the Implementation
Act when it promulgated the Rule; and 2) the rule is arbitrary,
capricious, an abuse of discretion, or otherwise contrary to law,
within the meaning of the APA.
Plaintiffs therefore argue that
this Court should conclude that the Quota Shifting Rule is
unlawful and set it aside.
STANDARD
The parties agree that this Court’s review of the Quota
Shifting Rule is pursuant to the Magnuson-Stevens Act.
When
reviewing a regulation promulgated pursuant to the MagnusonStevens Act, a district court “shall only set aside any such
regulation or action on a ground specified in section 706(2)(A),
(B), (C), or (D) of” the APA.
16 U.S.C. § 1855(f)(1)(B).
APA provides, in relevant part:
To the extent necessary to decision and when
presented, the reviewing court shall decide all
relevant questions of law, interpret
constitutional and statutory provisions, and
determine the meaning or applicability of the
terms of an agency action. The reviewing court
shall–
. . . .
18
The
(2) hold unlawful and set aside agency
action, findings, and conclusions found to
be–
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory
jurisdiction, authority, or limitations,
or short of statutory right; [and]
(D) without observance of procedure
required by law[.]
5 U.S.C. § 706.
Thus, the Ninth Circuit has stated:
In reviewing regulations promulgated under the
[Magnuson-Stevens Act], “our only function is to
determine whether the Secretary [of Commerce] ‘has
considered the relevant factors and articulated a
rational connection between the Facts found and
the choice made.’” Alliance Against IFQs v.
Brown, 84 F.3d 343, 345 (9th Cir. 1996) (quoting
Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d
1438, 1440–41 (9th Cir. 1990)). “We determine
only if the Secretary acted in an arbitrary and
capricious manner in promulgating such
regulations.” Alliance Against IFQs, 84 F.3d at
345. “Under the APA, we will reverse the agency
action only if the action is arbitrary,
capricious, an abuse of discretion, or otherwise
contrary to law.” Lands Council v. Powell, 379
F.3d 738, 743 (9th Cir. 2004), amended by 395 F.3d
1019 (9th Cir. 2005).
Fishermen’s Finest, Inc. v. Locke, 593 F.3d 886, 894 (9th Cir.
2010) (some alterations in Fishermen’s Finest).
“Even when an
agency explains its decision with ‘less than ideal clarity,’” the
Court must uphold the action “if the agency’s path may be
reasonably discerned.”
San Luis & Delta-Mendota Water Auth. v.
19
Locke, 776 F.3d 971, 994 (9th Cir. 2014) (citation omitted).
This deference is “at its highest where a court is reviewing an
agency action that required a high level of technical expertise.”
Id.
I.
Arbitrary and Capricious Review
The Ninth Circuit has stated that:
“Review under the arbitrary and capricious
standard is narrow, and we do not substitute our
judgment for that of the agency.” Ecology Ctr. v.
Castaneda, 574 F.3d 652, 656 (9th Cir. 2009)
(alterations omitted) (quoting Lands Council v.
McNair (Lands Council II), 537 F.3d 981, 987 (9th
Cir. 2008) (en banc), overruled on other grounds
by Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249
(2008)) (internal quotation marks omitted).
“Rather, we will reverse a decision as arbitrary
and capricious only if the agency relied on
factors Congress did not intend it to consider,
entirely failed to consider an important aspect of
the problem, or offered an explanation that runs
counter to the evidence before the agency or is so
implausible that it could not be ascribed to a
difference in view or the product of agency
expertise.” Id. (quoting Lands Council II, 537
F.3d at 987) (internal quotation marks omitted).
Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105,
1110 (9th Cir. 2015).
This showing is a “heavy burden.”
Managed
Pharmacy Care v. Sebelius, 716 F.3d 1235, 1244 (9th Cir. 2013).
The arbitrary and capricious standard
requires the [agency] to articulate [] a rational
connection between the facts found and the choice
made. [We] review the record to ensure that
agency decisions are founded on a reasoned
evaluation of the relevant factors, and may not
rubberstamp . . . administrative decisions that
[are] inconsistent with a statutory mandate or
20
that frustrate the congressional policy underlying
a statute . . . .
Sierra Club v. U.S. E.P.A., 671 F.3d 955, 961 (9th Cir. 2012)
(some alterations in Sierra Club) (citations and quotation marks
omitted).
II.
Exceeds Authority Review
When evaluating a challenge to an agency action
pursuant to § 706(2)(C), courts apply the two-step framework that
the United States Supreme Court set forth in Chevron, U.S.A. Inc.
v. Natural Resources Defense Council, 467 U.S. 837 (1984).
See,
e.g., Nw. Envtl. Advocates v. U.S. E.P.A., 537 F.3d 1006, 1014
(9th Cir. 2008).
This district court has described the Chevron
framework as follows:
Under the Chevron framework, the court must
first “determine whether ‘the intent of Congress
is clear.’” Marmolejo–Campos v. Holder, 558 F.3d
903, 908 (9th Cir. 2009) (quoting Chevron, 467
U.S. at 842, 104 S. Ct. 2778). “[I]f the intent
of Congress is clear and unambiguously expressed
by the statutory language at issue,” the court’s
analysis ends, Zuni Pub. Sch. Dist. No. 89 v.
Dep’t of Educ., 550 U.S. 81, 93, 127 S. Ct. 1534,
167 L. Ed. 2d 449 (2007), and “both the court and
the agency ‘must give effect to the unambiguously
expressed intent of Congress.’” Marmolejo–Campos,
558 F.3d at 908 (quoting Chevron, 467 U.S. at
842–43, 104 S. Ct. 2778). If, on the other hand,
the statute is silent or otherwise ambiguous, the
court must determine “whether the agency’s answer
is based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843, 104 S. Ct.
2778.
. . . .
21
In step 2 of the Chevron analysis, the court
need not find that the agency “interpretation is
the only permissible construction of [the statute]
or even the reading [the court] would have
reached, but only that [the agency’s]
interpretation is not arbitrary and capricious.”
Natural Res. Def. Council v. E.P.A., 526 F.3d 591,
605 (9th Cir. 2008) (citing Chevron, 467 U.S. at
843 n.11, 104 S. Ct. 2778). To determine if the
construction is permissible, the court must “‘look
to the plain and sensible meaning of the statute,
the statutory provision in the context of the
whole statute and case law, and to the legislative
purpose and intent.’” Id. (quoting Cuevas–Gaspar
v. Gonzales, 430 F.3d 1013, 1022 (9th Cir. 2005)).
Skyson USA, LLC v. United States, 651 F. Supp. 2d 1202, 1206-07
(D. Hawai`i 2009) (alterations in Skyson).
DISCUSSION
I.
Standing
At the outset, this Court must address Defendants’
argument that Plaintiffs do not have standing to challenge the
Quota Shifting Rule.
Defendants argue that Plaintiffs have not
demonstrated that they have personally suffered a concrete and
particularized injury that is attributable to the Quota Shifting
Rule; Defendants argue that Plaintiffs cannot establish standing
with allegations of harm to the marine ecosystem in general and
to the nearshore fisheries that their members use and enjoy.
Further, even assuming, arguendo, that Plaintiffs’ alleged
ecosystem harm is a legally cognizable injury, Defendants argue
that this Court should still find that Plaintiffs lack standing
22
because the alleged injuries are conjectural and hypothetical,
not actual or imminent.
Plaintiffs have “the burden of proving the existence of
Article III standing at all stages of the litigation.”
See Ctr.
for Biological Diversity v. U.S. Fish & Wildlife Serv., No.
12-17530, 2015 WL 5451484, at *8 (9th Cir. Sept. 17, 2015).
“To
establish standing, organizations, like individuals, must satisfy
the requirements of three elements: (1) injury-in-fact,
(2) causation, and (3) redressability.”
Int’l Longshore &
Warehouse Union v. Nelson, 599 F. App’x 701, 701 (9th Cir. 2015).
“[A]n association has standing to bring suit on
behalf of its members when: [1] its members would
otherwise have standing to sue in their own right;
[2] the interests it seeks to protect are germane
to the organization’s purpose; and [3] neither the
claim asserted nor the relief requested requires
the participation of individual members in the
lawsuit.”
Id. at 702 (alterations in Nelson) (quoting Hunt v. Wash. State
Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53
L. Ed. 2d 383 (1977)).
However, the relevant injury “is not injury to the
environment but injury to the plaintiff.”
Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181
(2000).
The Ninth Circuit has stated that:
[E]nvironmental and aesthetic injuries constitute
injuries in fact for standing purposes. See,
e.g., Mount Graham Red Squirrel v. Espy, 986 F.2d
1568, 1581–82 (9th Cir. 1993) (extinction of
species whose observation in the wild provided
23
plaintiffs scientific, recreational and aesthetic
enjoyment conferred requisite injury for standing
purposes); Fund for Animals, Inc. v. Lujan, 962
F.2d 1391, 1396 (9th Cir. 1992) (diminished
opportunity for Fund members to view the northern
bison herd in Yellowstone established standing to
challenge the National Park Service’s 1990 bison
management plan); Alaska Fish & Wildlife Fed’n and
Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 937
(9th Cir. 1987) (decrease in number of migratory
birds resulting from a permissive hunting policy
injured “those who wish to hunt, photograph,
observe, or carry out scientific studies on the
migratory birds”).
Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 117677 (9th Cir. 2000).
The Supreme Court has stated that “a
plaintiff claiming injury from environmental damage must use the
area affected by the challenged activity and not an area roughly
‘in the vicinity’ of it.”
Lujan v. Defenders of Wildlife, 504
U.S. 555, 565-66 (1992).
In the instant case, Plaintiff Center for Biological
Diversity (“the Center”) “is a nonprofit corporation that works
through science, law and policy to secure a future for all
species, great or small, hovering on the brink of extinction.
. . .
The Center is dedicated to the preservation, protection,
and restoration of biodiversity, native species, and ecosystems.”
[Pltfs.’ CSOF, Decl. of Miyoko Sakashita (“Sakashita Decl.”) at
¶ 3.8]
It has over 50,000 members, including “members who reside
throughout Hawai`i and who use the areas that serve as habitat
8
Miyoko Sakashita is the Center’s director of ocean
programs. [Sakashita Decl. at ¶ 2.]
24
for the fish, marine mammals, sea turtles and other wildlife
killed by the Hawai`i-based deep-set longline fishery.”9
[Id.]
For example, Robert Wintner is a Maui resident and a member of
the TIRN.
He has been “an avid snorkeler and scuba diver for
more than 60 years.”
Decl.”) ¶¶ 1, 3.]
[Id., Decl. of Robert Wintner (“Wintner
Since 2004, he has dived between twenty to
thirty times a year in the open ocean near Molokini, where he has
observed various pelagic species, including yellowfin tuna, a
species that the Hawai`i longline fishery kills as by-catch when
fishing for bigeye tuna.
Although Wintner has never seen a
bigeye tuna at Molokini, he knows others who have, and he hopes
9
Similarly, Plaintiff Turtle Island Restoration Network
(“TIRN”) “is a nonprofit corporation that works through
scientific research, legal and policy advocacy, education, and
restoration efforts to protect marine and riparian wildlife
globally” and to “preserv[e], protect[], and restor[e] . . .
marine biodiversity, native species, and ecosystems.” [Pltfs.’
CSOF, Decl. of Todd Steiner at ¶ 2.] TIRN’s members include
Hawai`i residents “who use the areas that serve as habitat for
the fish, marine mammals, sea turtles and other wildlife killed
by the Hawai`i-based deep-set longline fishery.” [Id.]
Todd Steiner is TIRN’s executive director. [Id. at ¶ 1.]
Plaintiff Conservation Council for Hawai`i (“CCH”) is “a
Hawai`i-based, non-profit citizens’ organization” that “is the
Hawai`i State affiliate of the National Wildlife Federation.”
[Pltfs.’ CSOF, Decl. of Marjorie F.Y. Ziegler at ¶ 2.] Its
“mission is to protect native Hawaiian species and to restore
native Hawaiian ecosystems for future generations.” [Id. at
¶ 3.] “CCH members include wildlife biologists and others who
study and enjoy native Hawaiian marine life, including the fish,
marine mammal, sea turtle and sea bird species that would be
harmed by the fishing activities that NMFS’s Quota Shifting Rule
would authorize.” [Id. at ¶ 6.] Marjorie Ziegler is CCH’s
executive director. [Id. at ¶ 1.]
25
to have a chance to observe and photograph bigeye tuna there in
the future.
[Reply, Suppl. Decl. of Robert Wintner (“Wintner
Suppl. Decl.”) at ¶¶ 3-4.]
Wintner states:
I am concerned that NMFS’ Quota Shifting Rule will
destabilize the marine ecosystem in this region
and impact both pelagic and nearshore species and
habitat by reducing stocks of bigeye tuna, a
critical apex predator, as well as reducing stocks
of ecologically valuable “by-catch” including
seabirds, marine mammals, sea turtles, and other
species.
[Wintner Decl. at ¶ 3.]
Colleen Rene Umberger, a Maui resident and member of
CCH, is an avid scuba diver who has made over 10,000 dives primarily in Hawai`i - in the past thirty years.
[Pltfs.’ CSOF,
Decl. of Colleen Rene Umberger (“Umberger Decl.”) ¶¶ 1-2.]
While
diving in pelagic ecosystems in Hawai`i and the Indo-Pacific, she
has encountered several species of tuna, including bigeye tuna.
[Suppl. Decl. of Colleen Rene Umberger (“Umberger Suppl. Decl.”),
filed 9/23/15 (dkt. no. 58-1), at ¶¶ 3-4]
She states that her
“enjoyment of these areas is dependent on [her] ability to
observe pelagic species, including the bigeye tuna, in their
natural habitat,” and her “recreational, spiritual and aesthetic
interests are harmed by NMFS’s Quota Shifting Rule because it
allows longliners to remove beautiful marine animals from the
ocean that contribute to the complex reef ecosystems [she]
regularly dive[s] in for the purpose of observing marine animals
in the wild.”
[Umberger Decl. at ¶¶ 5, 7.]
26
Even viewing the record in the light most favorable to
Defendants,10 this Court finds that: 1) Plaintiffs are
representing members who face, inter alia, actual and imminent
environmental and aesthetic injuries from the alleged overfishing of bigeye tuna; 2) the injuries are fairly traceable to
the challenged Quota Shifting Rule; 3) the injuries are likely to
be redressed by a favorable decision in this case because
invalidating the Quota Shifting Rule would result in lower levels
of bigeye tuna catch by Hawai`i longliners; 4) the interests that
Plaintiffs seek to protect in this case are germane to their
organizations’ purposes; and 5) neither the claims asserted nor
the relief requested in this case require the participation of
Plaintiffs’ members.
This Court therefore FINDS that there are
no issues of material fact as to the standing issue, and
CONCLUDES, as a matter of law, that Plaintiffs have standing to
pursue the claims in this case.
See Fed. R. Civ. P. 56(a)
(stating that a party is entitled to summary judgment “if 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”).
Plaintiffs’ Motion is GRANTED as to the standing issue.
10
This district court has stated that, in considering a
motion for summary judgment, “[a]ll evidence and inferences must
be construed in the light most favorable to the nonmoving party.”
Maui Elec. Co. v. Chromalloy Gas Turbine, LLC, Civil No. 12–00486
SOM–BMK, 2015 WL 1442961, at *4 (D. Hawai`i Mar. 27, 2015)
(citing T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626, 631 (9th Cir. 1987)).
27
II.
Justiciability
Defendants argue that, even if Plaintiffs have standing
to pursue the claims in this case, the claims are not justiciable
because they improperly seek to enforce international law.
In
Defendants’ view, the only recourse to address NMFS’s allegedly
erroneous interpretation and application of the Convention and
the CMMs is to bring the United States’s violations to the
Commission’s attention.
The Supreme Court has stated:
This Court has long recognized the
distinction between treaties that automatically
have effect as domestic law, and those that —
while they constitute international law
commitments — do not by themselves function as
binding federal law. The distinction was well
explained by Chief Justice Marshall’s opinion in
Foster v. Neilson, 2 Pet. 253, 315, 7 L. Ed. 415
(1829), overruled on other grounds, United States
v. Percheman, 7 Pet. 51, 8 L. Ed. 604 (1833),
which held that a treaty is “equivalent to an act
of the legislature,” and hence self-executing,
when it “operates of itself without the aid of any
legislative provision.” Foster, supra, at 314.
When, in contrast, “[treaty] stipulations are not
self-executing they can only be enforced pursuant
to legislation to carry them into effect.”
Whitney v. Robertson, 124 U.S. 190, 194, 8 S. Ct.
456, 31 L. Ed. 386 (1888). In sum, while treaties
“may comprise international commitments . . . they
are not domestic law unless Congress has either
enacted implementing statutes or the treaty itself
conveys an intention that it be ‘self-executing’
and is ratified on these terms.” Igartua–De La
Rosa v. United States, 417 F.3d 145, 150 (C.A.1
2005) (en banc) (Boudin, C. J.).
Medellin v. Texas, 552 U.S. 491, 504-05 (2008) (some alterations
in Medellin).
The Supreme Court also clarified that: “What we
mean by ‘self-executing’ is that the treaty has automatic
28
domestic effect as federal law upon ratification.
Conversely, a
‘non-self-executing’ treaty does not by itself give rise to
domestically enforceable federal law.
Whether such a treaty has
domestic effect depends upon implementing legislation passed by
Congress.”
Id. at 505 n.2.
Further,
A treaty is, of course, “primarily a compact
between independent nations.” Head Money Cases,
112 U.S. 580, 598, 5 S. Ct. 247, 28 L. Ed. 798
(1884). It ordinarily “depends for the
enforcement of its provisions on the interest and
the honor of the governments which are parties to
it.” Ibid.; see also The Federalist No. 33,
p. 207 (J. Cooke ed. 1961) (A. Hamilton)
(comparing laws that individuals are “bound to
observe” as “the supreme law of the land” with “a
mere treaty, dependent on the good faith of the
parties”). “If these [interests] fail, its
infraction becomes the subject of international
negotiations and reclamations . . . . It is
obvious that with all this the judicial courts
have nothing to do and can give no redress.” Head
Money Cases, supra, at 598, 112 U.S. 580. Only
“[i]f the treaty contains stipulations which are
self-executing, that is, require no legislation to
make them operative, [will] they have the force
and effect of a legislative enactment.” Whitney
[v. Robinson], [124 U.S. 190], 194, 8 S. Ct. 456
[(1888)].
Id. at 505-06 (some alterations in Medellin) (emphasis added).
As previously noted, the Implementation Act gives the
Secretary the authority “to promulgate such regulations as may be
necessary to carry out the United States international
obligations under the WCPFC Convention and this chapter,
including recommendations and decisions adopted by the
Commission,” 16 U.S.C. § 6904(a), and that authority has been
29
delegated to NMFS.
The Implementation Act and the regulations
promulgated thereto are clearly enforceable in the United States.
To the extent that Plaintiffs allege that NMFS exceeded its
Implementation Act authority when it promulgated the Quota
Shifting Rule, that claim is justiciable.
The Federal Defendants acknowledge that the Quota
Shifting Rule was promulgated pursuant to the Magnuson-Stevens
Act.
See Fed. Defs.’ Opp. at 12-13 (quoting 79 Fed. Reg. at
64097-98 (stating that WESPAC “recommends conservation and
management measures for NMFS to implement under the authority of”
Magnuson-Stevens Act); 79 Fed. Reg. at 64106-07 (“NMFS is taking
this action under the [Magnuson-Stevens Act], which authorizes
NMFS to promulgate regulations necessary or appropriate to
implement a plan amendment . . . .”); 79 Fed. Reg. at 64111 (“The
authority citation for part 600 is revised to read as follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.”)); see also
Steen Decl., Exh. 1 (Amendment 7 EA) at 3-4 (abstract of the
amendment).
Under the Magnuson-Stevens Act:
(1) . . . actions described in paragraph (2)
shall be subject to judicial review to the extent
authorized by, and in accordance with, chapter 7
of Title 5, if a petition for such review is filed
within 30 days after the date on which the
regulations are promulgated or the action is
published in the Federal Register, as applicable;
except that –
. . . .
30
(B) the appropriate court shall only set
aside any such regulation or action on a
ground specified in section 706(2)(A), (B),
(C), or (D) of such Title.
(2) The actions referred to in paragraph (1) are
actions that are taken by the Secretary under
regulations which implement a fishery management
plan, including but not limited to actions that
establish the date of closure of a fishery to
commercial or recreational fishing.
. . . .
16 U.S.C. § 1855(f).
To the extent that Plaintiffs bring a claim
pursuant to the APA that the Quota Shifting Rule violates the
Magnuson-Stevens Act, the claim is justiciable.
First, as to Plaintiffs’ Implementation Act claim, the
Federal Defendants assert that the Quota Shifting Rule was only
enacted pursuant to the Magnuson-Stevens Act.
However, they
admit that “NMFS implemented ‘technical administrative changes’
to certain existing international fisheries requirements under
the Implementation Act to make them consistent with the” Quota
Shifting Rule.
[Federal Defs.’ Response to Pltfs.’ Concise
Statement of Facts (“Federal Defs.’ CSOF”), filed 8/21/15 (dkt.
no. 55), at ¶ 19 (citing 79 Fed. Reg. at 640 (stating that the
rule “also makes several technical administrative changes to the
regulations”).]
In addition, the Quota Shifting Rule’s List of
Subjects includes 50 C.F.R. Part 300, “Administrative practice
and procedure, Fish, Fisheries, Fishing, Marine resources,
Reporting and recordkeeping requirements, Treaties.”
31
79 Fed.
Reg. at 64110.
Part 300, Subpart O, titled “Western and Central
Pacific Fisheries for Highly Migratory Species,” states: “This
subpart implements provisions of the Western and Central Pacific
Fisheries Convention Implementation Act (Act) and applies to
persons and vessels subject to the jurisdiction of the United
States.”
50 C.F.R. § 300.210.
One of the regulations in Subpart
O is 50 C.F.R. § 300.224, “Longline fishing restrictions.”
That
regulation is clearly part of the management framework
implemented in the Quota Shifting Rule.
See, e.g., 79 Fed. Reg.
at 64100 (stating that “NMFS has already implemented the 3,763 mt
catch limit for longline-caught bigeye tuna for the United States
for 2014” (citing 50 CFR 300.224)).
Thus, even though the Quota
Shifting Rule does not expressly invoke NMFS’s Implementation Act
authority, see, e.g., id. at 64106 (“NMFS is taking this action
under the Magnuson-Stevens Act.”), this Court concludes that the
rule is clearly part of the regulatory system authorized in the
Implementation Act.
Defendants next argue that Plaintiffs do not seek
review of the Quota Shifting Rule pursuant to either the
Implementation Act or the Magnuson-Stevens Act.
According to
Defendants, Plaintiffs’ claims actually allege violations of the
CMMs, which are not domestically enforceable.
Defendants urge
this Court to follow the analysis in Natural Resources Defense
Council v. Environmental Protection Agency, 464 F.3d (D.C. Cir.
32
2006), in which the D.C. Circuit held that post-ratification
decisions by the parties to the Montreal Protocol on Substances
that Deplete the Ozone Layer (“Montreal Protocol”), Sept. 16,
1987, S. Treaty Doc. NO. 100-10, 1522 U.N.T.S. 29, were not
enforceable in United States courts.
Similar to the instant case: the United States entered
into the Montreal Protocol with various other countries; the
Senate ratified the treaty in 1988; and Congress implemented it
by incorporating the terms of the protocol in the Clean Air Act.
The Montreal Protocol “requires signatory nations . . . to reduce
and eliminate their production and use of ozone-depleting
chemicals in accordance with agreed-upon timetables.”
F.3d at 3 (citing Montreal Protocol arts. 2-21).
NRDC, 464
The Montreal
Protocol allows for exceptions from the ban for production and
consumption that is necessary for critical uses, and the parties
meet annually to determine the critical uses and how much
production and consumption is necessary for the critical uses.
Id. at 4.
At a March 2004 meeting, the parties to the Montreal
Protocol agreed upon Decision ExI/3 and Decision XI/6.
The
Environmental Protection Agency (“EPA”) promulgated rules to
implement the critical use exceptions.
Id. at 5.
The NRDC
brought suit to challenge the rule, arguing that it violated
Decision ExI/3 and Decision XI/6 on various grounds.
D.C. Circuit held that:
33
Id.
The
The “decisions” of the Parties – post-ratification
side agreements reached by consensus among 189
nations – are not “law” within the meaning of the
Clean Air Act and are not enforceable in federal
court.
. . . .
. . . If the “decisions” are “law” –
enforceable in federal court like statutes or
legislative rules – then Congress either has
delegated lawmaking authority to an international
body or authorized amendments to a treaty without
presidential signature or Senate ratification, in
violation of Article II of the Constitution. . . .
Id. at 8.
The Eighth Circuit recognized that, when Congress
implemented the Montreal Protocol, it directed the EPA to abide
by the Protocol’s terms.
§§ 7671(d)(6), 7671m(b)).
Id. at 9 (citing 42 U.S.C.
More importantly, however:
Nowhere does the Protocol suggest that the
Parties’ post-ratification consensus agreements
about how to implement the critical-use exemption
are binding in domestic courts. The only
pertinent language in Article 2H(5) states that
the Parties will “decide to permit” production and
consumption necessary to satisfy those uses that
they “agree[]” to be critical uses. The Protocol
is silent on any specific conditions accompanying
the critical-use exemption. Post-ratification
agreements setting these conditions are not the
Protocol.
Id. (alteration in NRDC).
The decisions could not be subsequent
interpretations of the Montreal Protocol because the Protocol did
not contain details about the critical-use exemption.
Instead of
“interpret[ing] treaty language,” the decisions “fill[ed] in
treaty gaps,” and therefore could not be considered
interpretations and applications of the Protocol.
34
Id. at 9.
The
D.C. Circuit held that article 2H(5) – the only provision
addressing critical uses – was merely an “agreement to agree,”
which was unenforceable in contract.
Id. at 9-10.
In other
words, “[w]ithout congressional action, . . . side agreements
reached after a treaty has been ratified are not the law of the
land; they are enforceable not through the federal courts, but
through international negotiations.”
Id.
This Court, however, finds that there are critical
differences between the Montreal Protocol and its implementing
statute and the instant Convention and the Implementation Act.
First, unlike the Montreal Protocol, the Convention expressly
states that the Commission shall, inter alia:
(a) determine the total allowable catch or
total level of fishing effort within the
Convention Area for such highly migratory fish
stocks as the Commission may decide and adopt such
other conservation and management measures and
recommendations as may be necessary to ensure the
long-term sustainability of such stocks;
. . . .
(c) adopt, where necessary, conservation and
management measures and recommendations for
nontarget species and species dependent on or
associated with the target stocks, with a view to
maintaining or restoring populations of such
species above levels at which their reproduction
may become seriously threatened; [and]
. . . .
(g) develop, where necessary, criteria for
the allocation of the total allowable catch or the
35
total level of fishing effort for highly migratory
fish stocks in the Convention Area[.]
[Henkin Decl., Exh. 4 (Convention) at art. 10, § 1 (emphases
added).]
Further, unlike the Montreal Protocol, the Convention
contemplates that the Commission members will enforce the CMMs.
The Convention requires the members to, inter alia:
-“implement and enforce conservation and management measures
through effective monitoring, control and surveillance”;
[id. at art. 5, § j;]
-“promptly implement the provisions of this Convention and any
conservation, management and other measures or matters which
may be agreed pursuant to this Convention”; [id. at art. 23,
§ 1;] and
-“take such measures as may be necessary to ensure that . . .
fishing vessels flying its flag comply with the provisions
of this Convention and the conservation and management
measures adopted pursuant hereto and that such vessels do
not engage in any activity which undermine the effectiveness
of such measures” [id. at art. 24, § 1(a)].
Finally, unlike the Clean Air Act’s implementation of
the Montreal Protocol, the Implementation Act expressly
authorizes NMFS “to promulgate such regulations as may be
necessary to carry out the United States international
obligations under the WCPFC Convention and this chapter,
including recommendations and decisions adopted by the
Commission.”
16 U.S.C. § 6904(a) (emphasis added).
For these
reasons, this Court concludes that the CMMs are distinguishable
from the decisions described in NRDC, and this Court declines to
follow the reasoning set forth in that case.
36
Further, this Court concludes that NMFS - pursuant to
the Implementation Act and the Magnuson-Stevens Act - adopted the
Quota Shifting Rule, which it believes is necessary to carry out
the United States’s obligations in the relevant CMMs.
The Quota
Shifting Rule clearly treats certain CMMs - in particular
CMM 2013-01 - as authoritative and asserts that the rule follows
them.
For example, the Quota Shifting Rule states:
-“This final rule is consistent with the WCPFC CMM 2013-01
objectives of ending overfishing of bigeye tuna, while
allowing for the limited transfer of available quota between
U.S. participating territories and eligible U.S. fisheries.”
79 Fed. Reg. at 64098.
-“This action is consistent with WCPFC CMM 2013-01, and other
applicable laws.” Id.
-“NMFS . . . will implement the U.S. catch limits specified in
CMM 2013-01 for subsequent years in one or more separate
rulemakings, as appropriate.” Id. at 64100.
-“As documented in the EA, catches by Hawaii and territory
longline fisheries, when combined with U.S. WCPO longline
limit for bigeye tuna of 3,763 mt per year (which will be
reduced in 2015 and again in 2017) would not impede the
CMM 2013-01 objective of ending overfishing on bigeye tuna.”
Id.
-“This final rule is consistent with CMM 2013-01 for
longline-caught yellowfin tuna and the fishing effort limits
for albacore under CMM 2005-02. . . . This final rule does
not undermine the WCPFC’s measures for silky sharks or
oceanic whitetip sharks under CMMs 2013-08 and 2011-04,
respectively.” Id.
-“The management framework implemented by this rule requires the
Council to review any proposed and existing catch or fishing
effort limits and allocation limits at least annually to
ensure consistency with the FEP, Magnuson-Stevens Act, WCPFC
decisions, and other applicable laws.” Id. at 64101
(emphasis added).
37
-“NMFS reviews the recommended limits for consistency with all
applicable laws and WCPFC CMMs and, if consistent, NMFS will
approve the recommendation.” Id.
Thus, insofar as the Quota Shifting Rule makes CMM 2013-01 and
other CMMs part of the regulatory scheme promulgated pursuant to
the Implementation Act and the Magnuson-Stevens Act, this Court
concludes that those CMMs are domestically enforceable.
Because
the relevant CMMs are domestically enforceable, this Court
CONCLUDES that Plaintiffs’ claims are justiciable.
Plaintiffs’
Motion is therefore GRANTED as to the justiciability issue.
This Court now turns to the merits of Plaintiffs’
claims.
III. Alleged Violation of CMM 2013-01
The gravamen of Plaintiffs’ case is that the Quota
Shifting Rule violates CMM 2013-01, which is binding authority
for purposes of the rule.
As previously noted, CMM 2013-01 set
the following bigeye tuna catch limits for the United States:
2014 - 3,763 mt; 2015 - 3,554 mt; 2016 - 3,554 mt; and 2017 3,345 mt.
[Steen Decl., Exh. 2 (CMM 2013-01), at 21
(Attachment F (Bigeye Longline Catch Limits by Flag)).]
The
Quota Shifting Rule allows each U.S. PT to “allocate up to 1,000
mt of [its] limit to eligible U.S. longline fishing vessels.”
Fed. Reg. at 64097.
Plaintiffs argue that the rule violates
CMM 2013-01 for several reasons.
38
79
A.
Catch Limits Applicable to the U.S. PTs
In the Quota Shifting Rule, NMFS takes the position
that “individual catch limits do not apply to the U.S.
participating territories under CMM 2013-01,” and the rule
“specif[ies] a longline bigeye tuna catch limit of 2,000 mt for
each U.S. participating territory.”
79 Fed. Reg. at 64098.
Plaintiffs first argue that this interpretation of CMM 2013-01 is
not supported by the measure’s language.
Plaintiffs emphasize
that the only exception to paragraph 5’s rule attributing catch
to the flag State is the CMM 2011-05 charter.
Thus, they argue
that the U.S. PTs are not separate entities for purposes of catch
allocation because any catch by a U.S. PT counts against the
United States’s limit.
The Quota Shifting Rule explains the
NMFS’s position as follows:
[WESPAC] based the 2,000-mt limit for each
U.S. territory on past limits provided to WCPFC
members that harvested less than 2,000 mt annually
in previous CMMs (2008-01 and 2011-01), and which
is currently set forth in paragraph 41 of
CMM 2013-01. Paragraph 41 states that each member
that caught less than 2,000 mt of bigeye in 2004
ensure that its catch does not exceed 2,000 mt in
each of the next 4 years (2014, 2015, 2016, and
2017). However, paragraph 7 of CMM 2013-01
exempts [Small Island Developing States (“SIDS”)]
and PTs from the 2,000 mt annual limit meaning
that, under WCPFC decisions, these members are not
subject to individual bigeye limits. This final
rule would effectively remove that exemption and
make American Samoa, Guam, and the CNMI subject to
2,000 mt limits for 2014.
79 Fed. Reg. at 64103.
The issue before this Court is whether
39
this interpretation of CMM 2013-01 is either arbitrary and
capricious or exceeds NMFS’s authority.
As previously noted, CMM 2013-01 states that
Attachment F sets forth the bigeye tuna catch limits for 2014 and
beyond, and that “[a]ny overage of the catch limit by a CCM shall
be deducted from the catch limit for the following year for that
CCM.”
[Steen Decl., Exh. 2 (CMM 2013-01) at 10, ¶ 40 (emphases
added).]
Paragraph 41 exempts certain Commission members from
the effect of paragraph 40, and it states that the Commission
will decide non-members’ opportunities on a case by case basis.
[Id. at 10, ¶ 41.]
However, CCMs also include PTs, see, e.g.,
Henkin Decl., Exh. 8 (CMM 2005-01) at 2, and paragraph 41 does
not address catch limits or opportunities for PTs.
CMM 2013-01
does not expressly establish catch limits for PTs, but neither
does it expressly state that each PT’s catch is attributed to
“the Contracting Party having responsibility for its
international affairs.”
See Convention at art. 43, § 1.
Plaintiffs’ position is premised upon paragraph 5,
which states that - for purposes of inter alia, paragraph 40 “attribution of catch and effort shall be to the flag State.”
[Steen Decl., Exh. 2 (CMM 2013-01) at 3, ¶ 5.]
however, does not define “flag State.”
CMM 2013-01,
It includes a reference
to “Member flag States,” [Id. at 5, ¶ 13,] which suggests that
“Member” and “flag State” are not synonymous and that there are
40
“flag States” that are not “Members.”
This weighs against
Plaintiffs’ argument that paragraph 5 requires that a U.S. PT’s
catch be attributed to the United States.
While this Court acknowledges that CMMs are not
treaties, they are post-ratification decisions adopted by a body
created pursuant to a treaty, and the purpose of the CMMs is to
implement the Convention, a treaty.
Therefore, in interpreting
CMM 2013-01, this Court is guided by the principles governing the
interpretation of treaties.
The Supreme Court has stated:
The interpretation of a treaty, like the
interpretation of a statute, begins with its text.
Air France v. Saks, 470 U.S. 392, 396–397, 105 S.
Ct. 1338, 84 L. Ed. 2d 289 (1985). Because a
treaty ratified by the United States is “an
agreement among sovereign powers,” we have also
considered as “aids to its interpretation” the
negotiation and drafting history of the treaty as
well as “the postratification understanding” of
signatory nations. Zicherman v. Korean Air Lines
Co., 516 U.S. 217, 226, 116 S. Ct. 629, 133 L. Ed.
2d 596 (1996).
Medellin, 552 U.S. at 506-07 (some citations omitted).
This
Court concludes that the text of CMM 2013-01 is ambiguous as to
the issue of whether PTs are separate entities from their
responsible Contracting Parties for purposes of catch allocation
limits, and this Court will look to the prior relevant CMMs to
aid its interpretation of CMM 2013-01.
CMM 2013-01 states that it replaces CMM 2012-01.
[Steen Decl., Exh. 2 (CMM 2013-01) at 13, ¶ 57.]
CMM 2012-01
states that it replaces CMM 2008-01 and CMM 2011-01.
41
[Id.,
Exh. 11 (CMM 2012-01), at 10, ¶ 34.]
Further, the Quota Shifting
Rule states that NMFS previously implemented the United States’s
2014 catch limit pursuant to CMM 2012-01.
79 Fed. Reg. at 64098
(citing 78 FR 58240, September 23, 2013).
NMFS also relied on
CMM 2008-01 and CMM 2011-01 as authority to support its
interpretation of CMM 2013-01 in the Quota Shifting Rule.
Id. at
64108 (“[N]othing in CMM 2013-01 or predecessor decisions of the
WCPFC requires that vessels operate under charters for purposes
of catch attribution.
To the contrary, CMM 2011-01 incorporated
paragraph 2 of CMM 2008-01.”).
Thus, this Court concludes that –
in addition to CMM 2013-01, discussed supra Discussion Section II
– CMM 2008-01, CMM 2011-01, and CMM 2012-01 are domestically
enforceable in this action because they are relevant measures
that NMFS has included in the regulatory scheme promulgated
pursuant to the Implementation Act and the Magnuson-Stevens Act.
Attachment F to CMM 2013-01 only lists the catch limits
“by Flag” for China, Indonesia, Japan, the Republic of Korea,
Chinese Taipei, and the United States.
“CCMs.”
F).]
These are described as
[Steen Decl., Exh. 2 (CMM 2013-01) at 21 (Attachment
Of these CCMs, the United States’s limits are the lowest.
In contrast, Attachment F to CMM 2012-01, which also listed
limits “by Flag,” listed thirty-two CCMs.
In addition to China,
Indonesia, Japan, the Republic of Korea, Chinese Taipei, and the
United States, Attachment F to CMM 2012-01 listed the catch
42
limits for: Australia (2,000); Belize (803); European Union
(2,000); New Zealand (2,000); and Philippines (2,000).
There
were no catch limits specified for the other CCMs, which included
the U.S. PTs.
[Id., Exh. 11 (CMM 2012-01) at 18 (Attachment F).]
Like CMM 2013-01, CMM 2012-01 stated that, for purposes of the
catch limits in Attachment F, “attribution of catch and effort
shall be to the flag State.”
[Id. at 4, ¶ 5 & 8, ¶ 26.]
CMM 2012-01 does not define “flag State,” but the listing of PTs
among the CCMs listed “by Flag” in Attachment F weighs against
Plaintiffs’ interpretation.
In addition, CMM 2012-01 states:
“CCMs shall take necessary measures to ensure that the total
effort and capacity of their respective other commercial tuna
fisheries for bigeye . . . tuna but excluding those fisheries
taking less than 2,000 tonnes of bigeye, . . . shall not exceed
the average level for the period 2001-2004 or 2004.”
[Id. at 9,
¶ 30.]
Attachment F to CMM 2008-01, titled “Baseline Longline
Bigeye Tuna Catches, by Flag,”11 listed twenty-seven CCMs,
including American Samoa, which caught an average of 185 mt from
2001 to 2004.
[Steen Decl., Exh. 3 (CMM 2008-01) at 41
(Attachment F).]
Guam and the CNMI are not included on the list,
11
CMM 2011-01 states that, with two exceptions that are not
relevant here, “[t]he measures applicable for 2011 under CMM
2008-201 shall remain in effect until 28 February, 2013.” [Steen
Decl., Exh. 10 (CMM 2011-01) at 1, ¶ 1.]
43
and the parties agree that those two territories do not engage in
longline fishing for bigeye tuna.
CMM 2008-01 states, in pertinent part:
31. The total catch of bigeye tuna by longline
fishing gear will be subject to a phased reduction
such that by 1 January 2012 the longline catch of
bigeye tuna is 70% of the average annual catch in
2001-2004 or 2004 (Attachment F). . . .
32. Paragraph 31 does not apply to members and
participating territories that caught less than
2,000 tonnes in 2004. Each member that caught
less than 2,000 tonnes of bigeye in 2004 shall
ensure that their catch does not exceed 2,000
tonnes in each of the next 3 years (2009, 2010 and
2011). Consistent with paragraph 3 opportunities
for non members will be decided by the Commission
on a case by case basis.
33. Each member or cooperating non-Member that
caught an average of more than 2,000 tonnes of
bigeye shall be subject to the following catch
limits for bigeye tuna for the years 2009 to 2011
inclusive:
2009: 10% reduction of the catch
specified in Attachment F;
2010: 20% reduction of the catch
specified in Attachment F;
2011: 30% reduction of the catch
specified in Attachment F.
34. In accordance with paragraph 6, the limits
for bigeye tuna established in paragraphs 31 to 33
above, shall not apply to small island developing
State members and participating territories in the
Convention Area undertaking responsible
development of their domestic fisheries.
44
[Id. at 7-8 (emphases added) (footnote omitted).12]
Thus, under CMM 2008-01, the required reduction in
bigeye tuna catch did not apply to PTs that caught less than
2,000 mt in 2004 (like American Samoa), nor did the reductions
apply to PTs that were responsibly developing their domestic
fisheries.
The reductions would not have applied if either Guam
or CNMI decided to develop its bigeye tuna fishery, and it did so
in a responsible manner.
Under CMM 2012-01, the exemption
continued for PTs (and all other CCMs) catching less than 2,000
mt of bigeye tuna.
Although CMM 2013-01 continued the exemption
for members catching less than 2,000 mt, it neither continued nor
abolished the exemption for PTs catching less than 2,000 mt.
It
was silent as to the PTs’ catch limits.
Requiring each PT to attribute its catch to its
responsible Contracting Party would be a major policy change.
This Court does not believe the Commission would make such a
change without expressly setting forth the change.
Further, such
an implicit change would be contrary to other policy statements
in CMM 2013-01.
The Preamble of CMM 2013-01 notes that:
12
Although CMM 2005-01 is not one of the relevant measures
incorporated in the Quota Shifting Rule, this Court notes it
exempted all CCMs that caught less than 2,000 mt in 2004 from the
catch limits, except that those CCMs were required to “ensure
that their catch does not exceed 2,000 tonnes in each of the next
3 years.” [Henkin Decl., Exh. 8 (CMM 2005-01) at 3, ¶¶ 17-18.]
CMM 2008-01 replaced CMM 2005-01 and CMM 2006-01. [Steen Decl.,
Exh. 3 (CMM 2008-01) at 9, ¶ 47.]
45
Article 30(2) of the Convention requires the
Commission to take into account the special
requirements of developing States, in particular
small island developing States and Territories.
This includes ensuring that conservation and
management measures adopted by it do not result in
transferring, directly or indirectly, a
disproportionate burden of conservation action
onto developing States, Parties and Territories[.]
[Steen Decl., Exh. 2 (CMM 2013-01) at 2 (emphases added.]
CMM 2013-01 also states: “Unless otherwise stated, nothing in
this Measure shall prejudice the rights and obligations of those
small island developing State Members and Participating
Territories in the Convention Area seeking to develop their
domestic fisheries.”
[Id. at 4, ¶ 7.]
The Commission also
recognized these policies in CMM 2012-01 and CMM 2008-01.
[Steen
Decl., Exh. 11 (CMM 2012-01) at 2 & 4, ¶ 7; id., Exh. 3
(CMM 2008-01) at 2 & 3, ¶ 6.]
Further, in CMM 2008-01, the
Commission expressly cited the paragraph regarding the
development of domestic fisheries as support for the PTs’
exemptions from catch reductions.
[Steen Decl., Exh. 3 at 8,
¶ 34.]
Not only is CMM 2013-01 silent on the purported change
in the policy regarding the allocation of the PTs’ bigeye tuna
catch, the Commission’s Summary Report of the session during
which that measure was adopted does not reflect any discussion of
the purported change.
The “Tropical Tuna Measure,” which
eventually became CMM 2013-01, was Agenda Item 4 in the
46
Commission’s Tenth Regular Session from December 2 to 6, 2013.
[Administrative Record (“AR”), Exh. D57 (Summary Report) at 6233,
6248-52.]
In fact, during the “informal small group sessions”
held to discuss revisions to the proposed version, issues
regarding “disproportionate burdens” were among the “contentious
issues” addressed.
[Id. at 6251.]
As further evidence of the
Commission’s particular concern that it must avoid placing a
disproportionate burden of conservation on SIDS and territories,
the Commission also adopted:
-CMM 2013-06 (Conservation and Management Measure on the Criteria
for the Consideration of Conservation and Management
Proposals);13 [AR, Exh. D49 at 6089-90;] and
13
CMM 2013-06 stated, inter alia:
1.
CCMs shall develop, interpret and apply
conservation and management measures in the
context of and in a manner consistent with
the 1982 Convention and Articles 24, 25 and
26 of the Agreement. To this end, CCMs shall
cooperate, either directly or through the
Commission, to enhance the ability of
developing States, particularly the least
developed among them and SIDS and territories
in the Convention Area, to develop their own
fisheries for highly migratory fish stocks,
including but not limited to the high seas
within the Convention Area.
2.
The Commission shall ensure that any
conservation and management measures do not
result in transferring, directly or
indirectly, a disproportionate burden of
conservation action onto SIDS and
territories.
[AR, Exh. D49 at 6089-90.]
47
-CMM 2013-07 (Conservation and Management Measure on the Special
Requirements of Small Island Developing States and
Territories)14 [Steen Decl., Exh. 14].
Thus, the interpretation of CMM 2013-01 that Plaintiffs advocate
– in which PTs are no longer recognized as separate entities for
purposes of catch allocation – is inconsistent with the
Convention’s and the Commission’s policies, and it is not
supported by the record of the Commission’s session during which
the measure was adopted.
A change in policy like the interpretation that
Plaintiffs advocate would prejudice the rights of a PT seeking to
develop its domestic fishery.
In light of paragraphs 5 and 7 in
CMM 2013-01, the Commission would not have made such a
significant change without expressly setting forth the change in
the measure.
For example, Plaintiffs describe the American Samoa
bigeye tuna fishery as catching an average of a few hundred mt
per year.
In 2016, the United States’s catch limit will be
3,554 mt (assuming that there is no deduction for overage in
2015), which is already a reduction from its limit of 3,763 mt in
2013.
Once the Hawai`i-based fishery reaches the United States’s
14
CMM 2013-07 contains provisions identical to paragraphs
1-2 of CMM 2013-06. [Steen Decl., Exh. 14 (CMM 2013-07) at 2,
¶¶ 2-3.] In addition, CMM 2013-07 states: “Notwithstanding other
special requirements of SIDS and territories not identified
herein, CMMs shall fully recognise the special requirements of
SIDS and territories in the Convention Area in the implementation
of the Convention this measure and other measures.” [Id. at 1-2,
¶ 1.]
48
limit, NMFS will close the fishery for the remainder of the year.
Requiring American Samoa to attribute its catch to the United
States would put a disproportionate burden of conservation
efforts on it and would prejudice its ability to develop its
fishery.
The American Samoa fishery would likely be unable to
catch its annual average, let alone a larger amount if it decided
to responsibly expand its fishery.
The more sophisticated
Hawai`i-based longline fishery – already faced with a reduced
catch limit – would likely reach the United States’s annual catch
limit before American Samoa reached its annual average, and the
fishery for the United States and all of the U.S. PTs would be
closed thereafter.
Further, the Hawai`i-based longline fishery
would have no incentive to support the development of the
American Samoa fishery because the expansion of the American
Samoa fishery would reduce the amount of bigeye tuna that the
Hawai`i-based fishery could catch.
For these reasons, this Court rejects Plaintiffs’
proffered interpretation and concludes that the Quota Shifting
Rule’s interpretation of CMM 2013-01 as treating the U.S. PTs as
separate entities for purposes of catch allocation is consistent
with the Convention, the relevant historical CMMs, and what
occurred at the Commission’s Tenth Session.
Cf. Air France v.
Saks, 470 U.S. 392, 400 (1985) (agreeing with the interpretation
of the treaty that was “consistent with the negotiating history
49
of the [Warsaw] Convention, the conduct of the parties to the
Convention, and the weight of precedent in foreign and American
courts”).
This Court therefore CONCLUDES that the Quota Shifting
Rule’s interpretation of CMM 2013-01 as treating the U.S. PTs as
separate entities for purposes of catch allocation is not
arbitrary and capricious, and does not exceed NMFS’s authority.
B.
Reallocation of the U.S. PTs’ Limits
Plaintiffs next argue that, even if the U.S. PTs have
catch limits that are separate from the United States’s limit,
the Quota Shifting Rule violates the Implementation Act and the
Magnuson-Stevens Act because CMM 2013-01 does not permit the type
of reallocation agreements like the specified fishing agreements
allowed in the Quota Shifting Rule.
As previously noted,
Plaintiffs emphasize that, for purposes of the CMM 2013-01 catch
limits, “attribution of catch and effort shall be to the flag
State, except that catches and effort of vessels notified as
chartered under CMM 2011-05 shall be attributed to the chartering
Member, or Participating Territory.”
[Steen Decl., Exh. 2
(CMM 2013-01) at 3, ¶ 5.]
In response to the comment that the specified fishing
agreements “do not constitute charter arrangements under
CMM 2011-05,” NMFS stated, inter alia:
Acting pursuant to the directive of Section 113,
the Council also prepared an amendment and final
rule that establishes a management framework for
specifying catch and fishing effort limits and
50
accountability measures for pelagic fisheries in
the territories under the Magnuson-Stevens Act,
including provisions that would allow for the
limited transfer of quota from U.S. participating
territories to eligible U.S. fishing vessels,
consistent with the conservation needs of the
affected stocks. . . .
. . . [N]othing in CMM 2013-01 or predecessor
decisions of the WCPFC requires that vessels
operate under charters for purposes of catch
attribution. To the contrary, CMM 2011-01
incorporated paragraph 2 of CMM 2008-01, which
provided that vessels operated under “charter,
lease or similar mechanisms” by developing states
and participating territories, as an integral part
of their domestic fleet, would be considered to be
vessels of the host island State or territory.
79 Fed. Reg. at 64108.
CMM 2008-01 stated that: “For the
purposes of these measures, vessels operated under charter, lease
or other similar mechanisms by developing islands States and
participating territories, as an integral part of their domestic
fleet, shall be considered to be vessels of the host island State
or territory.”
[Steen Decl., Exh. 3 at 3, ¶ 2.]
was continued in CMM 2011-01.
This provision
[Id., Exh. 10 at 1, ¶ 1.]
In
addition, in 2011, the Commission adopted CMM 2011-05, which
applied to:
Commission Members and Participating Territories
that charter, lease or enter into other mechanisms
with vessels eligible under Para.4 flagged to a
another State or Fishing Entity for the purpose of
conducting fishing operations in the Convention
Area as an integral part of the domestic fleet of
that chartering Member or Participating Territory.
51
[Henkin Decl., Exh. 30 at 1, ¶ 1.15]
CMM 2011-05 acknowledged
“the important contribution of chartered vessels to sustainable
fisheries development in the Western & Central Pacific Ocean[.]”
[Id. at 1.]
Paragraph 5 of CMM 2013-01, read together with
paragraph 1 of CMM 2011-05, continues to authorize catch
15
Plaintiffs note that CMM 2011-05 is not part of the
administrative record. They argue that this Court should take
judicial notice of it pursuant to Fed. R. Evid. 201 because it is
a relevant factor to the promulgation of the Quota Shifting Rule.
[Mem. in Supp. of Motion at 29 n.10.] Rule 201 states, in
pertinent part:
(b) Kinds of Facts That May Be Judicially
Noticed. The court may judicially notice a fact
that is not subject to reasonable dispute because
it:
(1) is generally known within the trial
court’s territorial jurisdiction; or
(2) can be accurately and readily determined
from sources whose accuracy cannot reasonably
be questioned.
(c) Taking Notice.
(1)
The court:
may take judicial notice on its own; or
(2) must take judicial notice if a party
requests it and the court is supplied with
the necessary information.
CMM 2011-05 is part of the Commission’s records, and it is
available on the Commission’s website. It is relevant to the
issues before this Court because, inter alia, it is addressed in
the Quota Shifting Rule. See, e.g., 79 Fed. Reg. at 64108. This
Court therefore FINDS that CMM 2011-05 is subject to judicial
notice pursuant to Rule 201(b)(2), and GRANTS Plaintiffs’
request.
52
allocation agreements, if the vessels are an integral part of the
member’s or PT’s domestic fleet.
Neither CMM 2013-01 nor
CMM 2011-05 sets forth a standard to determine whether a vessel
is an integral part of another domestic fleet.
As previously
noted, WESPAC proposed Amendment 7, which resulted in the Quota
Shifting Rule, pursuant to Section 113.
Section 113 stated that
the U.S. PTs may enter into catch allocation agreements with
United States vessels with FMP permits for the Western Pacific
Region, and, when vessels operate under such arrangements, they
are integral to the U.S. PTs’ domestic fisheries.
Public Law No.
112-55, 125 Stat. 552, 603.
Plaintiffs argue that Section 113 did not require NMFS
to deem United States vessels to be an “integral part” of the
U.S. PTs’ domestic fleets based on specified fishing agreements.
Specifically, they contend that: 1) Section 113 could not be the
authority for any action in the Quota Shifting Rule because it
had lapsed by the time the Quota Shifting Rule was promulgated;
2) the Quota Shifting Rule’s treatment of vessels operating under
specified fishing agreements as essential was a departure from
prior NMFS policy, and the rule did not provide sufficient
justification for the departure; and 3) the interpretation of
“integral part” in Section 113 and the Quota Shifting Rule is
inconsistent with CMM 2011-05.
53
As to Plaintiffs’ first argument, Section 113(c) – the
sunset provision – stated:
Subsection (a) shall remain in effect until the
earlier of December 31, 2012, or such time as –
(1) the Western Pacific Regional Fishery
Management Council recommends an amendment to
the Pelagics Fishery Management Plan for the
Western Pacific Region, and implementing
regulations, to the Secretary of Commerce
that authorize use, assignment, allocation,
and management of catch limits of highly
migratory fish stocks, or fishing effort
limits, established by the Commission and
applicable to U.S. Participating Territories;
(2) the Secretary of Commerce approves the
amendment as recommended; and
(3) such implementing regulations become
effective.
Congress later extended Section 113 through December 31, 2013.
See Consolidated and Further Continuing Appropriations, 2013,
Division B, Title I (Department of Commerce), § 110.
Plaintiffs’ position is that a regulation relying upon
the Section 113 interpretation of “integral part” would only have
been valid if the regulation became effective before Section 113
lapsed.
However, although Section 113(c) states that
Section 113(a) would cease to be effective if implementing
regulations became effective before the sunset date, nothing in
Section 113 required the implementing regulations to become
effective before that date.
Section 113(b)(3) required WESPAC to
“recommend an amendment to the Pelagics Fishery Management Plan
54
for the Western Pacific Region, and associated regulations, to
implement this section.”
WESPAC did propose Amendment 7 prior to
December 31, 2013, and nothing in Section 113 precluded the
effect of that action to extend beyond the sunset date.
Cf.
Republic of Iraq v. Beaty, 556 U.S. 848, 865 (2009) (“We think
the better reading of the eighth [Emergency Wartime Supplemental
Appropriations Act] proviso (the sunset clause) is that the
powers granted by the section could be exercised only for a
limited time, but that actions taken by the President pursuant to
those powers . . . would not lapse on the sunset date.”).
This
Court therefore concludes that the lapse of Section 113 before
the effective date of the Quota Shifting Rule did not render the
Quota Shifting Rule invalid.
Plaintiffs are correct that the interpretation of
“integral part” in the Quota Shifting Rule departed from the
interpretation in previous NMFS regulations.
For example, NMFS,
NOAA, and Department of Commerce’s Final rule regarding
International Fisheries; Western and Central Pacific Fisheries
for Highly Migratory Species; Bigeye Tuna Catch Limits in
Longline Fisheries in 2009, 2010, and 2011 stated:
Under the proposed rule, bigeye tuna catches would
be attributed based upon the place of landing,
which closely aligns with the past practice of
NMFS in its reporting to the WCPFC. NMFS believes
that fish caught by a Hawaii- or West Coast-based
vessel on the high seas or in the portion of the
EEZ surrounding the Hawaiian Archipelago and
subsequently landed in Hawaii acquire little or no
55
nexus with a Participating Territory, and
ordinarily are not attributable to that Territory
for reporting purposes to the WCPFC. CMM 2008-01
does provide that when a vessel is operating under
a charter, lease, or similar arrangement as an
“integral part” of a host Participating
Territory’s domestic fleet, it shall be considered
a vessel of the host Participating Territory for
example, its catch should be attributed to the
host Participating Territory’s fishery for WCPFC
reporting purposes. Although NMFS does not rule
out the possibility that Hawaii- and West
Coast-based vessels might operate under charter
agreements with U.S. Participating Territories,
such arrangements must be consistent with the
applicable FMP and U.S. laws and regulations.
Moreover, NMFS does not believe that CMM 2008-01
requires NMFS to assign catches to the chartering
Participating Territory without regard to where
the fish are caught or landed, particularly where
the Participating Territory’s sole connection to
the vessel and its catch is the contractual
relationship established by the charter agreement.
Accordingly, a determination would have to be made
by NMFS as to whether such vessels are operating
as an “integral part” of the U.S. Participating
Territory’s domestic fleet. To conclude otherwise
would allow practices that undercut the important
conservation objectives of CMM 2008-01. However,
NMFS recognizes that in certain circumstances a
Participating Territory may acquire a sufficient
nexus to a catch even if it is not landed within
its borders . . . .
74 Fed. Reg. 63999, 64002 (Dec. 7, 2009) (emphases added).
Plaintiffs argue that the Quota Shifting Rule is
arbitrary and capricious because it does not include an adequate
explanation for the change in agency policy.
The Supreme Court
has stated that:
the requirement that an agency provide reasoned
explanation for its action would ordinarily demand
that it display awareness that it is changing
56
position. An agency may not, for example, depart
from a prior policy sub silentio or simply
disregard rules that are still on the books. See
United States v. Nixon, 418 U.S. 683, 696, 94 S.
Ct. 3090, 41 L. Ed. 2d 1039 (1974). And of course
the agency must show that there are good reasons
for the new policy. But it need not demonstrate
to a court’s satisfaction that the reasons for the
new policy are better than the reasons for the old
one; it suffices that the new policy is
permissible under the statute, that there are good
reasons for it, and that the agency believes it to
be better, which the conscious change of course
adequately indicates. This means that the agency
need not always provide a more detailed
justification than what would suffice for a new
policy created on a blank slate. Sometimes it
must — when, for example, its new policy rests
upon factual findings that contradict those which
underlay its prior policy; or when its prior
policy has engendered serious reliance interests
that must be taken into account. Smiley v.
Citibank (South Dakota), N.A., 517 U.S. 735, 742,
116 S. Ct. 1730, 135 L. Ed. 2d 25 (1996). It
would be arbitrary or capricious to ignore such
matters. In such cases it is not that further
justification is demanded by the mere fact of
policy change; but that a reasoned explanation is
needed for disregarding facts and circumstances
that underlay or were engendered by the prior
policy.
F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515-16
(2009) (emphasis in Fox).
Although not expressly stated in the
Quota Shifting Rule, Congress’s enactment of Section 113 was a
significant occurrence that prompted NMFS to change its position
on the interpretation of “integral part” for purposes of catch
re-allocation.
Although the Quota Shifting Rule is not a model
of clarity regarding this policy change, that alone is not a
sufficient basis to invalidate the rule, as long as “the agency’s
57
path may reasonably be discerned.”
and quotation marks omitted).
See id. at 513-14 (citation
This Court concludes that it can
be reasonably discerned from the Quota Shifting Rule that NMFS
departed from its prior interpretation of “integral part” because
of the enactment of Section 113.
Turning to Plaintiffs’ argument that the interpretation
of “integral part” in Section 113 and the Quota Shifting Rule is
contrary to the relevant CMMs, this Court reiterates that neither
CMM 2011-05 nor CMM 2013-05 sets forth a standard to determine
whether vessel is “an integral part of the domestic fleet” of the
chartering PT.
Moreover, pursuant to a September 25, 2015 order
from this Court, [dkt. no. 64,] the Federal Defendants presented
evidence that “for fishing years 2011, 2012, and 2013, the U.S.
duly reported its attribution of catch under specified fishing
agreements to the Territories.”
[Federal Defs.’ Additional Mem.
in Opp. at 5.]
The Federal Defendants ask this Court to take judicial
notice of the five exhibits to their Additional Memorandum in
Opposition.
[Id. at 5 n.2.]
The documents are part of the
Commission’s records, and they are available on the Commission’s
website.
They are relevant to the issues before this Court
because they address what the United States reported as its and
the U.S. PTs’ longline bigeye tuna catch during the relevant time
period and the Commission’s response thereto.
58
This Court need
not examine whether the statistics reported were accurate, which
may subject reasonable dispute; it is concerned only with how the
Commission responded to what was reported.
This Court therefore
FINDS that the Federal Defendants’ exhibits are subject to
judicial notice pursuant to Fed. R. Evid. 201(b)(2), and GRANTS
the Federal Defendants’ request.
The United States’s 2012 Annual Report to the Western
and Central Pacific Fisheries Commission (“2012 Report”) stated:
In 2011 the Consolidated and Further Continuing
Appropriations Act, 2012 (Pub. L. 112-55, 125
Stat. 552 et seq.) was passed, and if, after
November 19, 2011, the U.S. vessel landing the
fish was included in a valid arrangement under
Sec. 113(a) of the [Consolidated and Further
Continuing Appropriations Act (“CFCAA”)], the fish
was assigned to the fishery of American Samoa.
[Federal Defs.’ Additional Mem. in Opp., Exh. 1 at 20.]
Table 1f
of the 2012 Report set forth the breakdown of the annual longline
catch of bigeye tuna in the North Pacific Ocean by the United
States from 2007 through 2011, and by American Samoa from 2009
through 2011.16
The catch attributed to the United States in
2011 was 3,565 mt.
In light of the specified fishing arrangement
- described in the 2012 Report as a Section 113(a) arrangement -
16
Table 1f of the 2012 Report
Samoa’s longline bigeye tuna catch
[Federal Defs.’ Additional Mem. in
data is not relevant to the issues
instant Motion.
59
also includes American
in the South Pacific Ocean,
Opp., Exh. 1 at 10,] but that
before this Court in the
in 2011, the catch attributed to American Samoa was 965 mt,
compared to 310 mt in 2010 and 89 mt in 2009.
[Id. at 10.]
The United States’s 2013 Annual Report to the Western
and Central Pacific Fisheries Commission (“2013 Report”) included
the same language regarding Section 113(a) arrangements – i.e.
specified fishing agreements – as the 2012 Report.
Defs.’ Additional Mem. in Opp., Exh. 2 at 19.]
[Federal
Table 1f of the
2013 Report also set forth the breakdown of bigeye tuna catch in
the North Pacific by: the United States from 2008 through 2012;
and American Samoa from 2009 through 2012.17
In 2012, the catch
attributable to the United States was 3,654 mt, and the catch
attributable to American Samoa was 1,338 mt.
[Id. at 9.]
The United States’s 2014 Annual Report to the Western
and Central Pacific Fisheries Commission (“2014 Report”) noted
the passage of Section 113 in 2011 and stated:
Pursuant to this act and NMFS regulations under 50
CFR 300.224, if the U.S. vessel landing the fish
was included in a valid arrangement under
Sec. 113(a) of the CFCAA, its catch during those
periods was attributed to the fishery of American
Samoa in 2011 and 2012, and CNMI in 2013.
[Federal Defs.’ Additional Mem. in Opp., Exh. 3 at 17.]
17
Table 1f
Although the statistics for the United States’s bigeye
tuna catch in Table 1f of the 2012 Report and in Table 1f of the
2013 Report were virtually identical, the statistics for American
Samoa are different. Table 1f of the 2013 Report states that the
following amounts were attributed to American Samoa: 156 mt in
2009; 507 mt in 2010; and 1,086 mt in 2011. Compare Federal
Defs.’ Additional Mem. in Opp., Exh. 1 at 10, with id., Exh. 2 at
9.
60
of the 2014 Report also set forth the breakdown of bigeye tuna
catch in the North Pacific by: the United States from 2009
through 2013; American Samoa from 2009 through 2013; and CNMI in
2013.
In 2013, the catch attributable to the United States was
3,612 mt, the catch attributable to American Samoa was 276 mt,
and the catch attributable to CNMI was 501.
[Id. at 8.]
The United States’s 2015 Annual Report to the Western
and Central Pacific Fisheries Commission (“2015 Report”) included
similar language regarding specified fishing agreements as the
2014 Report.
It stated that a portion of United States bigeye
tuna catch was attributed to CNMI in 2014 pursuant to a specified
fishing agreement.
Exh. 4 at 18.]
[Federal Defs.’ Additional Mem. in Opp.,
Table 1f of the 2015 Report also set forth the
breakdown of bigeye tuna catch in the North Pacific by: the
United States from 2010 through 2014; American Samoa from 2010
through 2014; and CNMI in 2013 and 2014.
In 2014, the catch
attributable to the United States was 3,815 mt, the catch
attributable to American Samoa was 245 mt, and the catch
attributable to CNMI was 1,000.
[Id. at 8.]
The Commission’s Technical and Compliance Committee
submitted a 2014 Final Compliance Monitoring Report (Covering
2013 Activities) (“TCC Report”), and it was adopted at the
Commission’s Eleventh Regular Session, September 23-29, 2015.
[Federal Defs.’ Additional Mem. in Opp., Exh. 5.]
61
The TCC Report
found the United States to be compliant with paragraph 26 of
CMM 2012-01,18 which preceded CMM 2013-01.
[Id. at 30, 34.]
In light of the lack of standards for the “integral
part” designation in the relevant CMMs, and the Commission’s
finding that – even with the use of specified fishing agreements
– the United States was in compliance with the CMM 2012-01 catch
limits, this Court CONCLUDES that the Quota Shifting Rule’s
interpretation of the relevant CMMs as allowing such agreements
is reasonable.
Plaintiffs essentially disagree with the
interpretation in the Quota Shifting Rule, but, even if this
Court agreed with Plaintiffs’ position, it cannot “substitute its
judgment for that of the agency.”
See Fox Television, 556 U.S.
at 513 (citation and quotation marks omitted).
This Court
therefore CONCLUDES that the Quota Shifting Rule’s interpretation
of CMM 2013-01 and CMM 2011-05 as allowing the re-allocation of
United States bigeye tuna catch through specified fishing
agreements with the U.S. PTs is not arbitrary and capricious, and
does not exceed NMFS’s authority.
C.
Effect of the Quota Shifting Rule
Plaintiffs’ next set of arguments address the effect of
the Quota Shifting Rule.
Plaintiffs argue that, even if the U.S.
PTs have separate catch limits and they have the ability to enter
18
Paragraph 26 states: “The catch limits for bigeye tuna
shall be as specified in Attachment F.” [Steen Decl., Exh. 11
(CMM 2012-01) at 8.]
62
into agreements to re-allocate part of their limits to the United
States, this Court should still conclude that the Quota Shifting
Rule is invalid because: 1) it makes the United States’s catch
limit illusory, and it is contrary to CMM 2013-01, which requires
the reduction of bigeye tuna catch; 2) it will impermissibly
increase the catch of non-target species; and 3) the specified
fishing agreements do not actually further the development of the
U.S. PTs’ fisheries because what the U.S. PTs receive in the
agreements is not commensurate with the benefits that Hawai`ibased vessels receive from the agreements.
The Court emphasizes
that its consideration of these issues is limited to whether, in
promulgating the Quota Shifting Rule, NMFS acted arbitrarily and
capriciously or exceeded its authority.
The Court’s function in
this case is not to evaluate whether, in light of events that
occurred after the promulgation of the rule, a different rule
would have been more effective.
1.
Effect on Bigeye Tuna Stock
Plaintiffs argue that CMM 2013-01 requires the
reduction in bigeye tuna catch, and the Quota Shifting Rule is
invalid because it allows the United States to increase its
catch, but that is over-simplifying the matter.
The relevant
objectives of CMM 2013-01 are:
General
1.
Compatible measures for the high seas and
exclusive economic zones (EEZs) are implemented so
63
that bigeye . . . tuna stocks are, at a minimum,
maintained at levels capable of producing their
maximum sustainable yield as qualified by relevant
environmental and economic factors including the
special requirements of developing States in the
Convention Area as expressed by Article 5 of the
Convention. . . .
. . . .
Bigeye
3.
the fishing mortality rate for bigeye tuna
will be reduced to a level no greater than Fmsy,
i.e. F/Fmsy # 1. This objective shall be achieved
through step by step approach through 2017 in
accordance with this Measure.
[Steen Decl., Exh. 2 (CMM 2013-01) at 2-3, ¶ 1.]
The Quota
Shifting Rule is not per se invalid because the rule makes it
possible for the United States to catch more bigeye tuna.
CMM 2013-01 aims to keep the bigeye tuna stock at a sustainable
level and to reduce the mortality rate, but it recognizes that
those concerns must be weighed against the relevant economic
factors, such as the needs of developing states, like the U.S.
PTs.
NMFS considered all of those factors in promulgating the
Quota Shifting Rule, and there is no evidence that the agency
relied upon facts that Congress did not intend it to consider.
See Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d
1105, 1110 (9th Cir. 2015) (stating that the Ninth Circuit will
reverse an agency decision on the ground that it is arbitrary and
capricious if, inter alia, “the agency relied on factors Congress
did not intend it to consider”).
64
For example, NMFS examined the status of the bigeye
tuna stock in the Western and Central Pacific Ocean, and pointed
out that the 2014 stock assessment concluded that the stock “is
subject to overfishing, but not overfished or approaching an
overfished condition.”
79 Fed. Reg. at 64108.
Further, bigeye
tuna is not listed as “threatened or endangered under the
Endangered Species Act.”
Id.
It considered the Amendment 7 EA,
see, e.g., 79 Fed. Reg. at 64099-101, which stated:
[B]igeye tuna is a pan-Pacific stock that has
recently been assessed separately in the WCPO and
EPO for management purposes. The WCPO stock
assessment is expansive, covering bigeye tuna from
Indonesia in the far western Pacific, to the 150°
W in the central Pacific Ocean. The WCPO stock
assessment further separates fishing areas into
six regions, and evaluates biomass and fishing
mortality information and trends within the
regions. The regions with the highest impact to
bigeye tuna in the WCPO are Regions 3 and 4 –
representing 88 percent of bigeye tuna fishing
mortality. Regions 3 and 4 comprise the tropical
equatorial zone between 20° N and 10° S, and
whereby the area between 10° N and 10° S is
distinguished as the core zone for the tropical
tuna longline and purse seine fisheries. The
majority of fishing effort by the Hawaii longline
fishery occurs north of above 20° N in Region 2,
and further 98 percent of bigeye tuna caught by
the Hawaii longline fishery comes from north of
10° N and outside of the which [sic] is outside of
the core equatorial zone of heavy purse seine and
longline fishing.
Fishing activity by Hawaii longline vessels
conducted under Territory agreements pursuant to
Section 113 would likely center around Hawaii,
both within the EEZ and on the adjacent high seas
in the North Pacific subtropical zone and outside
of 10° N and 10° S equatorial belt. . . . [T]he
estimated impact of bigeye tuna catches in
65
Region 2 on the stock is much lower than Region 4
where the fishery and stock also occur. According
to the 2011 stock assessment for bigeye tuna in
the WCPO, the trends in biomass in Region 2 are
estimated to be more due to recruitment trends
rather than fishing. . . .
[Steen Decl., Exh. 1 (Amendment 7 EA) at 125 (footnote and
citations omitted).]
The Amendment 7 EA opined that the stock
management approach under the proposed amendment
is also consistent with the Magnuson-Stevens Act
in managing the bigeye tuna throughout the range
of the species, taking into account stock status,
and U.S. and Territory longline catches of bigeye
tuna which do not affect the stock status (i.e.,
whether it is in an overfishing condition or not)
and comprise a small fraction of the total WCPO
bigeye tuna catch. Whereas the authority provided
to the Territories in Section 113 allows for an
unlimited amount of bigeye tuna to be assigned by
the Territories under agreements with FEPpermitted vessels, this action would limit the
amount available to be transferrable to 1,000 mt
of bigeye tuna annually per Territory and thereby
provide greater conservation and management of
pelagic MUS.
NMFS anticipates that the Pelagics FEP fisheries,
including the Hawaii deep-set longline fishery,
would continue to operate largely unchanged in
terms of fishing location, the number of vessels
that deep-set fish, the number of hooks deployed,
catch rates of target, non-target, bycatch
species, depth of hooks, or deployment techniques
in setting longline gear, with respect to
baseline operations. This was observed in 2011
and 2012 when Territory agreements were authorized
under the status quo (Section 113).
[Id. at 160.]
66
NMFS also addressed measures to ensure sustainability
of the stock and to limit mortality.
The Quota Shifting Rule
states:
NMFS is taking this action to implement limits for
longline-caught bigeye tuna for the territories to
ensure sustainable management and to limit the
overall mortality of bigeye tuna from fisheries of
the United States and U.S. territories. This
action establishes accountability measures for
attributing and restricting catch and fishing
effort towards territorial limits, including
catches and effort made under territory fishing
agreements. Annual review and action by the
Council and NMFS will help ensure achievement of
the WCPFC’s conservation goals. If, based on the
conservation needs of the stock, NMFS disapproves
the Council’s annual recommendation, or if the
Council recommends and NMFS approves an allocation
limit of zero, then no territory fishing
agreements would be accepted for the year covered
by that action.
79 Fed. Reg. at 64102.
It also states:
the Council will review existing and proposed
catch or effort limits and the portion available
for allocation at least annually to ensure
consistency with WCPFC decisions, the FEP, the
Magnuson-Stevens Act, and other applicable laws.
Based on this review, at least annually, the
Council will recommend to NMFS whether such catch
or effort limit or the portion available for
allocation should be approved for the next fishing
year. NMFS will review all Council
recommendations and, if determined to be
consistent with WCPFC decisions, the FEP, the
Magnuson-Stevens Act, and other applicable laws,
will approve the Council’s recommendations. If
NMFS determines that a Council recommendation is
inconsistent with WCPFC decisions, the FEP, the
Magnuson-Stevens Act, or other applicable laws,
NMFS will disapprove the recommendation. If NMFS
disapproves a catch or fishing effort limit
specification or allocation limit, or if the
Council recommends and NMFS approves no catch or
67
fishing effort limit specification or allocation
limit, then no specified fishing agreements would
be authorized for the fishing year covered by such
action.
Id. at 64098.
Further, “NMFS will monitor catches of
longline-caught bigeye tuna, including catches made under
specified fishing agreements, and restrict catches, as
appropriate, using the accountability measures described in this
final rule.”
Id.
NMFS concluded that, with these accountability
measures in place, the process under the Quota Shifting Rule
“will help ensure sustainability of the stock” and “does not
impede the WCPFC objective of ending overfishing of bigeye tuna.”
Id. at 64099.
NMFS anticipated that the United States would
catch no more than 1,000 mt per year pursuant to specified
fishing agreements and believed that it was unlikely that the
United States would catch the maximum 3,000 mt per year allowed
under the Quota Shifting Rule.
Id. at 64100.
Although NMFS anticipated that the use of specified
fishing agreements would result in re-allocated catch of no more
than 1,000 mt per year, NMFS has already utilized two specified
fishing agreements of up to 1,000 mt each for 2015.
See Pacific
Island Pelagic Fisheries; 2015 CNMI Longline Bigeye Tuna Fishery;
Closure, 80 Fed. Reg. 74002-01, 74003 (Nov. 27, 2015) (closing
“the U.S. pelagic longline fishery for bigeye tuna in the western
and central Pacific Ocean as a result of the fishery reaching the
2015 allocation limit of 1,000 mt for the CNMI”); Pacific Island
68
Pelagic Fisheries; 2015 U.S. Territorial Longline Bigeye Tuna
Catch Limits for Guam, 80 Fed. Reg. 75437-01 (Dec. 2, 2015)
(announcing a valid specified fishing agreement).
However, that
fact alone does not support Plaintiffs’ position that the Quota
Shifting Rule is invalid.
There has been no evidence in this
case that, in promulgating the Quota Shifting Rule, NMFS either
failed to consider that the re-allocated catch may exceed 1,000
mt or offered an estimated re-allocation level that was contrary
to the evidence before it.
See Cascadia Wildlands, 2015 WL
5306321, at *3 (stating that the Ninth Circuit will reverse an
agency decision on the ground that it is arbitrary and capricious
if the agency, inter alia, “entirely failed to consider an
important aspect of the problem, or offered an explanation that
runs counter to the evidence before the agency or is so
implausible that it could not be ascribed to a difference in view
or the product of agency expertise”).
Moreover, the Quota Shifting Rule clearly allows up to
three specified fishing agreements of up to 1,000 mt each, and
NMFS has mechanisms in place to evaluate the conditions of the
bigeye tuna stock to determine the appropriate re-allocation
level.
The EA analyzed the impacts of the specified
territory catch limits for bigeye tuna, not only
in 2014 when the limits are in effect, but also
through 2017 and 2020 when based on existing
management measures and the best scientific
information available, overfishing of bigeye tuna
69
is expected to end. In addition, the EA analyzed
various catch levels of bigeye tuna under
agreements, including the most likely scenario
that the territories would assign 1,000 mt to U.S.
vessels, based on the latest stock assessment of
bigeye tuna in the WCPO (2011), along with other
stock assessments and information for non-target
and protected marine species.
The stock status trend in the Tuna Management
Simulator (TUMAS) model (developed by the
Secretariat of the Pacific Community, the science
provider to the WCPFC) using recent average
recruitment of WCPO bigeye tuna, suggests further
improvements in stock conditions by 2017 and 2020.
The 2014 allocation allows each territory to
transfer no more than 1,000 mt. In the future, if
the best scientific information available and
environmental analyses indicate that stock
conditions have not improved as projected, the
Council and NMFS would likely approve a smaller
transferable allocation, or none at all. Further,
the annual review process allows the Council and
NMFS to take corrective action, as appropriate, to
meet the conservation needs of the stock,
non-target stock, or protected species.
79 Fed. Reg. at 64102 (emphasis added).
Similarly, if NMFS would
limit the re-allocation of bigeye tuna to less than 1,000 mt a
year, when necessary based on the status of the stock, it follows
that NMFS would only authorize the re-allocation of more than
1,000 mt a year - up to 3,000 mt - if the status of the stock
could support that re-allocation level.
Ultimately, the Quota Shifting Rule states that “NMFS
is satisfied that safeguards, including the availability of
annual review and prompt corrective action, are sufficient to
respond to any change in the conservation needs of the stock and
70
to keep impacts of this action to a minimum.”
64102.
79 Fed. Reg. at
Thus, although the Quota Shifting Rule allows the United
States to increase its catch of bigeye tuna, in promulgating the
rule, NMFS considered the relevant factors, the available
evidence, and concluded that the rule would further the
development of the U.S. PTs’ domestic fisheries and would not
impair the objectives of maintaining the sustainability of the
bigeye tuna stock and decreasing morbidity.
Such findings
require “a high level of technical expertise,” and therefore this
Court’s deference to NMFS’s findings is “at its highest.”
See
San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 994
(9th Cir. 2014).
Plaintiffs have not presented any ground for
this Court to disregard the high level of deference.
They have
not presented evidence that NMFS relied on improper factors,
failed to consider important aspects of the problem, or offered
unsupported or implausible explanations for its findings.
This
Court therefore rejects Plaintiffs’ argument that the Quota
Shifting Rule is arbitrary or capricious and/or exceeds NMFS’s
authority because NMFS failed to adequately consider the effect
of the rule on the bigeye tuna stock.
2.
Effect on Non-target Species
Plaintiffs also argue that “[t]he Quota Shifting Rule
will result in increased bycatch of yellowfin and northern
albacore tuna, sea turtles, seabirds, and silky and oceanic
71
whitetip sharks, undermining the effectiveness of conservation
and management measures adopted pursuant to the Convention to
protect these species.”
[Amended Complaint at ¶ 4.]
Further,
they allege that it will “increase bycatch of species protected
under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq.,
including, but not limited to, critically endangered Main
Hawaiian Islands insular false killer whales and leatherback and
loggerhead sea turtles.”
[Id.]
The Amendment 7 EA recognized that “catches of nontarget species in the Hawaii longline fishery are driven by the
fishing effort for bigeye tuna.
If fishing effort for bigeye
tuna increases, the catches of other target and non-target stocks
would be expected to increase commensurate with the increases in
fishing effort.”
[Steen Decl., Exh. 1 at 137.]
Shifting Rule incorporates this principle.
The Quota
79 Fed. Reg. at 64099
(“Catches of non-target species under this rule are commensurate
with the level of fishing effort for bigeye tuna.”).
However, as
with the effect on the bigeye tuna stock, the Quota Shifting Rule
is not per se invalid because it would result in the increased
catch of non-target species.
The Amendment 7 EA stated:
The likely scenario under Alternative 4 and SubAlternative 4(b) is expected to result in Hawaii
longline fishing effort and catch levels similar
to those observed in 2011 and 2012. Catches of
non-target species under this Alternative are
72
anticipated to be within baseline levels described
under Alternative 1 and would be sustainable.[19]
[Steen Decl., Exh. 1 at 137.]
In addition to noting the impacts
reflected in the Amendment 7 EA, the Quota Shifting Rule states:
Moreover, in a Biological Opinion dated September
19, 2014, NMFS concluded that the continued
operation of the Hawaii deep-set longline fishery
under effort levels expected under the proposed
action is not likely to jeopardize the continued
existence of ESA-listed humpback whales, sperm
whales, the MHI insular false killer whale
distinct population segment (DPS), North Pacific
loggerhead DPS, leatherback sea turtles, olive
ridley sea turtles, green sea turtles, and the
Indo-west Pacific scalloped hammerhead DPS. NMFS
based this conclusion on a careful assessment of
the effects of the action, together with the
environmental baseline and the cumulative effects.
. . . With respect to Western and Central
North Pacific (WCNP) striped marlin, NMFS does not
anticipate this action to result in catches that
exceed the U.S. limit for WCPO striped marlin
under CMM 2010-01. Each cooperating member,
non-member, and participating territory of the
WCPFC is subject to a 20-percent reduction of the
highest catch of North Pacific striped marlin
between 2000 and 2003. The measure provides that
each flag/chartering member, cooperating
non-member, and participating territory (CCM)
shall decide on the management measures required
to ensure that its flagged/chartered vessels
19
Alternative 1 was titled “No action/Status quo - Manage
Territory Limits Consistent with Existing Provisions of
Section 113.” [Steen Decl., Exh. 1 (Amendment 7 EA) at 37.] In
other words, “the Territories could harvest the amount of pelagic
[management unit species] that is agreed to by the WCPFC. At
present, under the existing regulatory regime and Section 113,
the Territories can harvest an unlimited amount of bigeye tuna
and transfer an unlimited amount to eligible U.S.
vessels . . . .” [Id.] Alternative 4, together with SubAlternative 4(b), describe the management framework ultimately
adopted in the Quota Shifting Rule. [Id. at 40-44.]
73
operate under the specified catch limits.
CMM 2010-01 provides exemptions to catch limits
for the SIDS and PTs. The WCPO striped marlin
limit applicable to the U.S. (i.e., Hawaii)
fisheries in 2013 and beyond is 457 mt annually,
which accounts for the 20 percent reduction agreed
to in CMM 2010-01. U.S. catch has been below
levels agreed to by the WCPFC. Table 12 in
Amendment 7 describes recent catches of North
Pacific striped marlin by U.S. longline vessels,
including catches attributed under fishing
agreements. Historical average landings from
2008-2012 are only 60 percent of the U.S. limit
under CMM 2010-01 for 2013 and beyond. Although a
non-target species caught while targeting bigeye
tuna and swordfish, striped marlin are highly
marketable and longline fishermen typically
discard less than five percent.
NMFS has no information that impacts on
sharks will increase under the proposed action.
With the exception of mako and thresher sharks
that are sometimes retained for market in low
quantities, U.S. longline fishermen based in the
Pacific Islands release most sharks alive.
. . . NMFS expects fishing effort, expected
catch rates, and total catches for target and
non-target species to remain within the range
observed in 2011, 2012, and 2013 under Section
113.
79 Fed. Reg. at 64099.
Although the actual re-allocated catch of bigeye tuna
pursuant to specified fishing agreements – and therefore also the
catch of non-target species – has exceeded the estimated amount,
NMFS did consider the possible catch of up to 3,000 mt of bigeye
tuna per year pursuant to such agreements - and the commensurate
catch of non-target species.
In addition, as with the bigeye
tuna stock, the Quota Shifting Rule states that “the annual
74
review process allows the Council and NMFS to take corrective
action, as appropriate, to meet the conservation needs of the
stock, non-target stock, or protected species.”
64102 (emphasis added).
79 Fed. Reg. at
NMFS would not allow the re-allocation
of more than 1,000 mt of bigeye tuna if it resulted in
impermissible catch levels of non-target species.
Like NMFS’s findings regarding the effect of the rule
on the bigeye tuna stock, its findings regarding the effect on
non-target species are entitled to the highest deference because
they require a high level of technical expertise.
Plaintiffs
have not presented any ground for this Court to disregard the
high level of deference.
They have not presented evidence that
NMFS relied on improper factors, failed to consider important
aspects of the problem, or offered unsupported or implausible
explanations for its findings.
This Court therefore rejects
Plaintiffs’ argument that the Quota Shifting Rule is arbitrary or
capricious and/or exceeds NMFS’s authority because NMFS failed to
adequately consider the effect of the rule on non-target species.
3.
Effect on the U.S. PTs
Plaintiffs have also criticized the Quota Shifting Rule
on the ground that the benefits that the U.S. PTs receive in
exchange for entering into the specified fishing agreements is
not commensurate with the benefits that Hawai`i-based longline
fishing industry receives.
Plaintiffs submitted excerpts of an
75
agreement dated October 14, 2013 between the CNMI and a Hawai`i
corporation, acting on its own behalf and on behalf of certain
Hawai`i-based vessels.
[Henkin Reply Decl., Exh. 44.]
At the
hearing on the Motion, Plaintiffs pointed out that, in 2014, the
CNMI received $175,000 in exchange for allocating 1,000 mt of its
bigeye tuna catch limit, and Plaintiffs emphasized that this
amounts to only $0.08 per pound.
Plaintiffs have primarily raised this argument in
connection with their position that a Hawai`i-based vessel
operating under such an agreement is not an integral part of the
U.S. PT’s domestic fleet.
However, to the extent that Plaintiffs
allege that the inadequacy of the agreements is one of the
grounds that warrant invalidating the Quota Shifting Rule, this
Court rejects Plaintiffs’ argument.
First, such a claim is not
properly before this Court because Plaintiffs did not include it
within their Amended Complaint.
Second, even assuming, arguendo,
that the claim was properly before this Court, it would fail on
the merits.
In promulgating the Quota Shifting Rule, NMFS
considered the importance of specified fishing agreements to the
U.S. PTs’ domestic fisheries:
Absent Territorial agreements, the mechanism that
agreements offer for the infusion of capital in
support of responsible fisheries development would
be eliminated, resulting in a lower potential for
Territorial diversification (e.g., American Samoa)
and capacity-building (Guam and CNMI), which would
76
enable the U.S. Territories to participate in the
world’s largest tuna fishery. For example, under
the 2011 and 2012 ASG/HLA agreement, funds were
transmitted to NMFS to deposit into the
Sustainable Fisheries Fund to support fisheries
development projects identified in the American
Samoa MCP.
[Steen Decl., Exh. 1 (Amendment 7 EA) at 129.]
The importance of
these benefits to the U.S. PTs are reflected in the Quota
Shifting Rule.
See, e.g., 79 Fed. Reg. at 64098 (noting that the
rule “requires that any fishing agreements between the U.S.
participating territories and U.S. vessels include support for
fisheries development projects in the territories and as
described in their marine conservation plans”); id. at 64109
(“specified fishing agreements must either provide for landing or
offloading of catch in the ports of the relevant territory or
provide funds to the Western Pacific Sustainable Fisheries Fund
to support fisheries development in that territory”).
Further,
as previously noted, the Quota Shifting Rule establishes criteria
that a specified fishing agreement must meet to be approved, as
well as accountability measures to monitor agreements in force.
Establishing an effective mechanism to ensure the
adequacy of the consideration exchanged between a Hawai`i-based
vessel and a U.S. PT in a specified fishing agreement is an
agency action that requires a high level of technical expertise.
Thus, this Court accords the highest deference to NMFS’s adoption
of accountability measures to ensure that specific agreements are
77
appropriate.
Plaintiffs have not presented any evidence that
would overcome such deference.
The Court has rejected all of Plaintiffs’ allegations
that NMFS failed to properly consider the effects of the Quota
Shifting Rule.
Having considered all of Plaintiffs’ arguments
regarding the validity of the Quota Shifting Rule,20 the Court
cannot conclude that the rule is arbitrary and capricious, nor
can the Court conclude that the rule exceeds NMFS’s authority.
In light of this Court’s ruling, it does not need to address
Plaintiffs’ arguments regarding remedy.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for
Summary Judgment and for Vacatur, filed July 20, 2015, is HEREBY
GRANTED IN PART AND DENIED IN PART.
This Court GRANTS the Motion
as to the preliminary issues of standing and justiciability, but
DENIES the Motion on the merits of Plaintiffs’ claims.
//
//
//
//
//
20
Any specific argument by Plaintiffs that this Court did
not expressly address in this Order is hereby deemed rejected on
the merits. This Court has not deemed any argument waived for
failure to raise it during the administrative proceedings.
78
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 23, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
CONSERVATION COUNCIL FOR HAWAII, ET AL. VS. NATIONAL MARINE
FISHERIES SERVICE, ET AL.; CV 14-00528 LEK-RLP; ORDER GRANTING IN
PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND FOR VACATUR
79
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