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NATURAL RESOURCES DEFENSE COUNCIL, INC. v. DALEY

August 11, 1999

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL., PLAINTIFFS
v.
WILLIAM M. DALEY, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: June L. Green, District Judge.

  MEMORANDUM

This matter is before the Court on cross-motions for summary judgment, pursuant to Fed.R.Civ.P. 56. Plaintiffs seek judicial review under the Magnuson-Stevens Fishery Conservation and Management Act ("FCMA"), 16 U.S.C. § 1855 (f)(1)(B), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706, of a final rule issued by Defendants promulgating the 1999 fishing quota for the summer flounder. In addition, Plaintiffs and Defendants seek summary judgment on the issue of whether the environmental assessment pertaining to the 1999 fishing quota failed to comply with the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-4370(d). For the reasons that follow, the Court denies Plaintiffs' Motion for Summary Judgment and grants Defendants' Cross-Motion for Summary Judgment.

BACKGROUND

This controversy arises from a rule issued by Defendants on December 31, 1998 (63 Fed.Reg. 72203 (1998)) that sets the 1999 summer flounder fishing quota, limiting the total amount of fish by weight that can be landed (brought to shore). The ruling was intended to comply with implementing regulations for the summer flounder Fishery Management Plan ("FMP")*fn1 which requires Defendant National Marine Fisheries Service ("NMFS") to establish certain fishing conservation measures for the upcoming year.

The summer flounder fishery of the Atlantic coast, managed jointly by the Atlantic States Marine Fisheries Commission and the Mid-Atlantic Fishery Management Council, developed a summer flounder FMP (approved by the NMFS) in consultation with the New England and South Atlantic Fisheries Management Councils. Pursuant to 50 C.F.R. § 648.100 and in response to amendments to the FMP adopted as a result of continued population declines, NMFS is required to implement measures for the fishing year to ensure that the target fishing mortality (F), as specified in the FMP, is not exceeded.

The target fishing mortality rate (F) is a statistic that expresses the depletion of the stock of fish attributable to fishermen (reduced by commercial and recreational harvesting), whether by capture or by discard of fatally wounded fish or otherwise, in a given year. See Fishermen's Dock Cooperative, Inc. v. Brown, 75 F.3d 164, 166 (4th Cir. 1996). See generally 50 C.F.R. § 648.100 (a)-(c) (1998) (providing more precise description of F). Its calculation is designed to maximize the harvest under prevailing ecological conditions on a sustainable basis. Therefore, F serves as a threshold index or biological reference point; a failure to achieve (exceeding) the target fishing mortality rate results in overfishing and will detract from the FMP's mission to rebuild the stocks.*fn2 The 1999 target fishing mortality rate (F) for summer flounder was calculated to be 0.24 and thus required that any catch quota for 1999 be set at a level that would ensure that the actual F does not exceed 0.24.

In accordance with 50 C.F.R. § 648.100 (c), NMFS is required to implement the fishing mortality rate (F) through annual quotas, which are specified in terms of the amount of summer flounder by weight that fishermen can bring to shore, also known as total allowable landings ("TAL"). The TAL quota must necessarily "assure that the applicable specified F will not be exceeded." 50 C.F.R. § 648.100 (c). After proper notice and comment, NMFS finalized a rule that established the 1999 TAL quota for summer flounder to be 18.52 million pounds. See AR. at 295, 708-09. This TAL quota was calculated to have an 18 percent chance of achieving (not exceeding) the specified target mortality rate (F) of 0.24.

The final rule also included a measure recommending the states implement an incidental catch*fn3 allocation plan intended to "improve the probability of achieving the target [mortality rate of 0.24]" and to "further reduce the overall mortality." A.R. at 709. There is no evidence in the record that suggests the incidental catch provision influenced or was a factor in the calculation of the 18 percent probability of achieving the target (F). The measure specified that the states allocate a portion of the commercial quota to incidental catch resources so that a coastwide incidental catch allocation of 32.7 percent of the total commercial TAL of 18.52 million pounds can be achieved. Although initially proposed as mandatory, NMFS has corrected the measure to be only voluntary by the states. See id. In addition, NMFS recognizes that the extent to which a voluntary incidental catch allocation plan would enhance the probability of achieving the target (F) is unknown.

Finally, the NMFS was required to prepare an environmental assessment ("EA") to examine the short- and long-term environmental impacts on natural, social, and economic systems that would result from the implementation of the 1999 TAL quota. The EA is designed to determine the nature of the environmental impact from a proposed action and whether an environmental impact statement is required. 40 C.F.R. § 1501.4 (b) & (c). Upon completion of the necessary analyses and consideration of the relevant factors and alternative management scenarios, the NMFS made a finding of "no significant impacts" from the 1999 TAL quota and concluded that preparation of an environmental impact statement was not required under section 102(2)(c) of NEPA.

DISCUSSION

Summary Judgment Standard

A motion for summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex. Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the material presented in the light most favorable to the non-moving party, Actickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and resolve all doubts as to facts or the existence of facts against the moving party. United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Here, the Administrative Record is sufficient for the Court to rule as a matter of law on those facts that are not disputed.

Standard and Scope of Judicial Review

The Court's review of Defendants' decision in a challenged agency action is not de novo, and must focus the inquiry on the administrative record already in existence. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Pursuant to the APA, the Court may set aside an administrative decision if the decision was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with ...


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