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